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C L A S S A C T I O N R E P O R T E R
Tuesday, June 6, 2023, Vol. 25, No. 113
Headlines
3M COMPANY: Garth Sues Over Exposure to Toxic Chemicals
3M COMPANY: Jackson Suit Transferred to D. South Carolina
3M COMPANY: Moseley Sues Over Exposure to Toxic Chemicals
3M COMPANY: Sloan Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Witherspoon Sues Over Exposure to Toxic Foams
450 NORTH RIVER: Collado's Objection to Discovery Orders Sustained
A&L HOMECARE: Rulings on Notice Facilitation in Clark Suit Vacated
ALBERTSONS COS: Faces Class Action Over December 2022 Data Breach
AMAZON WEB: Redd Suit Dismissed for Lack of Personal Jurisdiction
AMBER GROVE: Faces Dickson Suit Over Unlawful Labor Practices
AMC ENTERTAINMENT: June 29-30 Settlement Fairness Hearing Set
AMERICAN HONDA: Parties Stipulate to Extend Class Cert Deadlines
ANCESTRY.COM: Judge Tosses Class Action Over Yearbook Photos
ARC AUTOMOTIVE: Class Action Over Airbag Inflators Pending
ARCONIC INC: $74MM Class Settlement to Be Heard on Aug. 9
ARRAY TECHNOLOGIES: Plymouth Allowed to Replead Securities Suit
ASCENSION HEALTH: Halczenko and Applegate Class Suits Consolidated
ASCENSION HEALTH: Halczenko Has Leave to File 3rd Amended Complaint
ATKINS & OGLE: Wins in Part Summary Judgment Bid in Ray FDCPA Suit
B&L DELIVERY: Court Denies Bid to Lift Stay in Harris Class Suit
BAYER AG: Court Certifies Damages Class in Fund Securities Suit
BHP BILLITON: Seeks Stay of Scheduling Order Deadlines in Black
BIOHM HEALTH: Website Not Accessible to Blind, Cromite Alleges
BOARDROOM INC: E.D. Michigan Refuses to Dismiss Nock Class Suit
BP EXPLORATION: All of Rounds' Claims Dismissed With Prejudice
BRANDEIS UNIVERSITY: Omori Lose Class Certification Bid
BUMBLE INC: $18MM Class Settlement to be Heard on Aug. 4
CADWALLADER WICKERSHAM: Faces Class Action Over 2022 Data Breach
CALIFORNIA: Striking of Disqualification Statement in Lennar Tossed
CALIFORNIA: Sued Over Mistreatment of Children in Foster Care
CHAMPION PETFOODS: Wins in Part Summary Judgment Bid in Rydman Suit
CHOICE HEALTH: Faces Class Action Over Telemarketing Calls
CONSOLIDATED WORLD: Cost-Allocation Order in Bakov Suit Affirmed
COUNTRY FAIR: Standing Order Reversed; Budai FACTA Suit Dismissed
CROSS-LINES RETIREMENT: Bid to Exclude White Testimony Partly OK'd
DARCARS OF RAILROAD: Gaska Class Suit Remanded to State Court
DELAWARE COUNTY, PA: Dismissal of School Districts' Suit Affirmed
DIRECT RECOVERY: Default Judgment Issued in Rankin Suit as Sanction
DISH NETWORK: Fuentes' Bid to Remand to Alameda Super. Court Denied
DST SYSTEMS: Loses Bid to Stay Injunction in Highfill Class Suit
DST SYSTEMS: Loses Bid to Stay Injunction in Horan Class Suit
DST SYSTEMS: Loses Bid to Stay Injunction in Hursh Class Suit
DST SYSTEMS: Loses Bid to Stay Injunction in Kane Class Suit
DST SYSTEMS: Loses Bid to Stay Injunction in Larson Class Suit
ELI LILLY: Settles Insulin Overpricing Class Action for $13.5M
ET PROPERTY: Fails to Pay Proper Wages, Castro Suit Alleges
FASTENAL CO: Bid to Dismiss Petrosino Suit Over Unpaid Wages Denied
FASTENAL COMPANY: Final Approval of Class Settlement Modified
FREEJUMP DEVELOPPEMENT: Pacelli Sues Over Defective Airbags
FTX TRADING: Financiers, Celebrity Endorsers Sued Over Fraud Scheme
FUSION LOGISTICS: Fails to Pay Proper Wages, Brown Suit Alleges
GLASSES USA: New Vision Dismissal Denied; Stay of Discovery Lifted
GODADDY.COM: 11th Cir. Agrees to En Banc Review of TCPA Suit Ruling
HAPPY STATE: Tex. App. Affirms in Part Dismissal of Williams Suit
HARBORONE BANK: Class Settlement in Meaden Gets Initial Approval
HORNELL BREWING: Court Narrows Claims in 1st Amended Brunts Suit
HYUNDAI MOTOR: Settlement Claim Submission Deadline Set Dec. 7
J.R. SIMPLOT: Marcy Can File Second Amended Class Action Complaint
JOHNSON & JOHNSON: Court Refuses to Strike Carr's Class Claims
LANIER INC: $182K Class Settlement in Allen Suit Wins Prelim. Nod
LIBERTY MUTUAL: Bid for Class Certification Due March 15, 2024
LOVISA AMERICA: Magistrate Judge Endorses Dismissal of Martin Suit
LOYA CASUALTY: Withholds Settlement Money for Interest, Suit Claims
LUCKY TARO: Fails to Pay Proper Wages, Campos Suit Alleges
MAKES CENTS: Slate's Bid to Take Discovery & Defer Response Granted
MCGEE AIR: $420K Class Settlement in Ibrahim Suit Wins Prelim. OK
MDL 2972: Blackbaud Opposition to Martin Class Cert Bid Due June 9
MDL 2972: Blackbaud Opposition to Mortensen Class Cert Due June 9
MDL 2972: Blackbaud Opposition to Sloane Class Cert Bid Due June 9
MENZIES AVIATION: Zakay Law Files Labor Class Action in California
MID-CENTURY INSURANCE: Averts Class Action Over Recorded Calls
MONSANTO CO: Racine County Receives PCB Class Action Checks
NATIONAL GRID: Summary Judgment Bid in Nightingale Suit Allowed
NATIONAL RIFLE: Faces Class Action Over Automated Text Messages
NATIONSBENEFITS LLC: Fails to Prevent Data Breach, Banks Says
NEW JERSEY: Skelton May Serve Howard and Myers by Alternative Means
NEW YORK, NY: $2.45MM Class Settlement to be Heard on Aug. 23
NEW YOU BARIATRIC: Fails to Pay Proper Wages, Colvin Alleges
NEXTERA ENERGY: Court Narrows Claims in Stallbaumer Class Suit
PHARAOH ENERGY: Fails to Pay Proper Wages, Carlson Alleges
PHO VIETNAM: Fails to Pay Overtime Premiums, Nguyen Suit Claims
PLUG POWER INC: Buttar Sues Over Drop in Share Price
PRUDENT FIDUCIARY: Sued Over Mismanagement of Retirement Plan
PRUDENTIAL INSURANCE: Moreland Must Show Why Suit Is Not Moot
QLS MANAGEMENT: Fails to Pay Proper Overtime Wages, English Says
REEDHEIN & ASSOCIATES: Adolph's Class Settlement Has Final Approval
RH: Gross Law Firm Investigates Potential Securities Class Action
ROAMING NETWORKS: Fails to Pay Proper Wages, Quiros Alleges
SAFECO INSURANCE: Court Grants Bid for Summary Judgment in Dow Suit
SALDUTTI LLC: Bid for Partial Dismissal of Prashad Suit Granted
SAMSUNG ELECTRONICS: Wesley's Suit Over Defective Ranges Dismissed
SATER FOOTHILL: Fails to Provide Meal, Rest Breaks, Suit Says
SEMI-TROPIC COOPERATIVE: $600K Deal in Martinez Suit Has Final Nod
SHYFT GROUP: Arias Suit Remanded to Los Angeles County Super. Court
SUKUT CONSTRUCTION: Court Dismisses Rodriguez's Individual Claims
SUNRUN INC: Faces Cantu Suit Over Video Privacy Violations
SUNVALLEYTEK INT'L: Oh's Bid for Preliminary Injunction Denied
SYNCHRONY FINANCIAL: $34MM Settlement to be Heard on July 31
TACTILE SYSTEMS: $5MM Class Settlement to Be Heard on Aug. 23
TENARIS SA: $9.5MM Class Settlement to Be Heard on Oct. 19
TIKTOK INC: Griffith Sues Over Data Privacy Violations
TITLEMAX INC: Data Breach Class Action Suit Pending
TOLER APPRAISAL: Bid for Partial Judgment in Gregory Suit Denied
TORY BURCH: Loses Bid for Protective Order in Wilkins Class Suit
UNITED STATES: Astakhov Sues Over Unlawful Parolees' Benefits
UNITED STATES: Federal Claims Court Dismisses Etchegoinberry Suit
VC RENOVATIONS: Fails to Pay Proper Wages, Ayala Suit Alleges
VIACOM INC: $122.5MM Class Settlement to Be Heard on July 25
WASATCH ADVANTAGE: Deal on Damages Calculation in Terry Suit OK'd
WASHINGTON: Guerin's Summary Judgment Bid in Fowler v. DRS Granted
WEBSTER BANK: Customers File Data Breach Class Action
WELLPATH LLC: Fails to Pay Proper Wages, El-Amin Alleges
WELLS FARGO: $300MM Class Settlement to Be Heard on Aug. 17
WISCONSIN: Bid for Class Certification in Smith v. Carr Denied
*********
3M COMPANY: Garth Sues Over Exposure to Toxic Chemicals
-------------------------------------------------------
Monica Garth, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company), Case No.
2:23-cv-02117-RMG (D.S.C. May 18, 2023), is brought for damages for
personal injury resulting from exposure to 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.
The Defendant collectively designed, marketed, developed,
manufactured, distributed, released, promoted, sold, and/or
otherwise inappropriately disposed of PFAS chemicals with knowledge
that it was highly toxic and bio persistent, which would expose
plaintiff to the risks associated with PFAS.
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. Defendant knew,
or should have known, that PFAS remain in the human body while
presenting significant health risks to humans.
The Plaintiff was unaware of the dangerous PFAS in his drinking
water and unaware of the toxic nature of the Defendant's PFAS in
general. Plaintiff's consumption of PFAS from Defendant's
contamination and inappropriate disposal caused Plaintiff to
develop the serious medical conditions and complications alleged
herein.
Through this action, Plaintiff seeks to recover compensatory and
punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to Defendant's
PFAS at various locations. Plaintiff further seeks injunctive,
equitable, and declaratory relief arising from the same, says the
complaint.
The Plaintiff was exposed to PFAS chemicals through drinking water
both at home and at his place of work, due to contamination on
behalf of the 3M plant in Decatur, Alabama and potential AFFF
sources, and was diagnosed with thyroid disease as a result of
exposure to Defendant's PFAS contamination.
The Defendant is a designer, marketer, developer, manufacturer,
distributor, releaser, promotors and seller of PFAS chemicals.[BN]
The Plaintiff is represented by:
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
- and -
Hunter Garnett, Esq.
GARNETT PATTERSON INJURY LAWYERS
100 Jefferson St S #300
Huntsville, AL 35801
Phone: 256-539-8686
3M COMPANY: Jackson Suit Transferred to D. South Carolina
---------------------------------------------------------
The case styled as Mike Jackson, Sonja Vaden, Timothy Vaden, J.R.
by and through his Parent and Next Friend, Elizabeth Garcia, David
Lopez, Tabetha Alonzo, Matt Turner, Ethan Acuss, Persophone
Guitron, Jimmy Easton, Jenna Carroll, Teaff Toka, Nelda Ramirez as
proposed representative of Juan C. Ramirez, Ricky Jones, Julie
Jones, Ilyea Shanz, Dominga Mullikin as legal representative of
Emma Ramirez, Corey Graham, Susie Landin, Juan Landin, and on
behalf of all others similarly situated v. 3M Company formerly
known as: Minnesota Mining and Manufacturing, Co.; AGC Chemicals
Americas Inc.; Amerex Corporation; Arkema Inc; Archroma US Inc.;
Buckeye Fire Equipment Company; Carrier Global Corporation;
ChemDesign Products Inc.; Chemguard Inc.; Chemicals Inc.; Clariant
Corporation, individually; Clariant Corporation, as successor in
interest to Sandoz Chemical Corporation; Corteva Inc.,
individually; Corteva Inc., as successor in interest to DuPont
Chemical Solutions Enterprise; Deepwater Chemicals Inc.; Dupont De
Nemours Inc., individually; Dupont De Nemours Inc. as successor in
interest to DuPont Chemical Solutions Enterprise; Dynax
Corporation; E.I. DuPont de Nemours and Company individually; E.I.
DuPont de Nemours and Company as successor in interest to DuPont
Chemical Solutions Enterprise; Kidde-Fenwal Inc. individually;
Kidde-Fenwal Inc as successor in interest to Kidde Fire Fighting,
Inc.; Nation Ford Chemical Company; The Chemours Company,
individually; The Chemours Company, as successor in interest to
DuPont Chemical Solutions Enterprise; The Chemours Company FC, LLC,
individually; The Chemours Company FC, LLC, as successor in
interest to DuPont Chemical Solutions Enterprise; Tyco Fire
Products, LP, individually; Tyco Fire Products, LP, as successor in
interest to The Ansul Company; Does 1-20, fictitious names whose
present identities are unknown; Case No. 1:23-cv-02692 was
transferred from the U.S. District Court for the Southern District
of New York, to the U.S. District Court for the District of South
Carolina on May 19, 2023.
The District Court Clerk assigned Case No. 2:23-cv-02144-RMG to the
proceeding.
The nature of suit is stated as Tort Product Liability.
3M -- https://www.3m.com/ -- (originally the Minnesota Mining and
Manufacturing Company) is an American multinational conglomerate
operating in the fields of industry, worker safety, healthcare and
consumer goods.[BN]
The Plaintiffs are represented by:
Andrew W. Croner, Esq.
Patrick James Lanciotti, Esq.
NAPOLI SHKOLNIK PLLC
360 Lexington Avenue, 11th Floor
New York, NY 10017
Phone: (212) 397-1000
Fax: (646) 843-7603
Email: acroner@napolilaw.com
planciotti@napolilaw.com
- and -
Paul J. Napoli, Esq.
NAPOLI SHKOLNIK
1302 Avenida Ponce de Leon
Santurce, Puerto Rico
Phone: (833) 271-4502
Email: pnapoli@napolilaw.com
The Defendants are represented by:
Jordan David Sagalowsky, Esq.
MAYER BROWN LLP
1221 Avenue Of The Americas
New York, NY 10020
Phone: (212) 506-2500
Fax: (212) 262-1910
Email: jsagalowsky@mayerbrown.com
3M COMPANY: Moseley Sues Over Exposure to Toxic Chemicals
---------------------------------------------------------
Janice Moseley, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company), Case No.
2:23-cv-02118-RMG (D.S.C. May 18, 2023), is brought for damages for
personal injury resulting from exposure to 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.
The Defendant collectively designed, marketed, developed,
manufactured, distributed, released, promoted, sold, and/or
otherwise inappropriately disposed of PFAS chemicals with knowledge
that it was highly toxic and bio persistent, which would expose
plaintiff to the risks associated with PFAS.
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. Defendant knew,
or should have known, that PFAS remain in the human body while
presenting significant health risks to humans.
The Plaintiff was unaware of the dangerous PFAS in his drinking
water and unaware of the toxic nature of the Defendant's PFAS in
general. Plaintiff's consumption of PFAS from Defendant's
contamination and inappropriate disposal caused Plaintiff to
develop the serious medical conditions and complications alleged
herein.
Through this action, Plaintiff seeks to recover compensatory and
punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to Defendant's
PFAS at various locations. Plaintiff further seeks injunctive,
equitable, and declaratory relief arising from the same, says the
complaint.
The Plaintiff was exposed to PFAS chemicals through drinking water
both at home and at his place of work, due to contamination on
behalf of the 3M plant in Decatur, Alabama and potential AFFF
sources, and was diagnosed with bladder cancer as a result of
exposure to Defendant's PFAS contamination.
The Defendant is a designer, marketer, developer, manufacturer,
distributor, releaser, promotors and seller of PFAS chemicals.[BN]
The Plaintiff is represented by:
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
- and -
Hunter Garnett, Esq.
GARNETT PATTERSON INJURY LAWYERS
100 Jefferson St S #300
Huntsville, AL 35801
Phone: 256-539-8686
3M COMPANY: Sloan Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Allen Sloan, 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 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-01544-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 working career
as a military and/or civilian firefighter and was diagnosed with
testicular 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: Witherspoon Sues Over Exposure to Toxic Foams
---------------------------------------------------------
Donald Ray Witherspoon and Judy Witherspoon, 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-01550-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 Donald Ray Witherspoon regularly used, and was
thereby directly exposed to, AFFF in training and to extinguish
fires during his working career, and was diagnosed with 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
450 NORTH RIVER: Collado's Objection to Discovery Orders Sustained
------------------------------------------------------------------
In the case, OCTAVIO COLLADO, for himself and all others similarly
situated, Plaintiff v. 450 NORTH RIVER DRIVE, LLC, et al.,
Defendants, Case No. 22-cv-23074-BLOOM/Otazo-Reyes (S.D. Fla.),
Judge Beth Bloom of the U.S. District Court for the Southern
District of Florida sustains in part and overruled in part the
Plaintiff's objection to discovery rulings.
The lawsuit is a putative class action brought against the
Defendants for alleged violations of the Fair Labor Standards Act
("FLSA"), the Florida Minimum Wage Act, and Florida common law. The
Plaintiff claims that he was denied payment owed to him while
working at the Defendants' restaurant, Kiki on the River.
The cause is before the Court upon Collado's Objection to and
Appeal of Order, filed on April 17, 2023. 450 North River Drive,
LLC, d/b/a Kiki on the River, Roman Jones, and RJ River, LLC,
jointly filed a Response. At issue in the present motion are
discovery rulings issued by Magistrate Judge Otazo-Reyes on April
5, 2023, and memorialized in a written Order published the
following day.
The first discovery issue involves the Plaintiff's request for the
addresses of Jones and other managerial employees of the
Defendants' restaurant, as well as Jones' date of birth and social
security number. Judge Otazo-Reyes ordered the Defendants to
provide the last known addresses of individuals no longer under
their control, but she concluded that the Defendants could provide
defense counsel's address for individuals still under the
Defendants' control. As for Jones' social security number and date
of birth, Judge Otazo-Reyes ruled that the Defendants may provide
such information under the terms of the anticipated confidentiality
order. The Plaintiff argues that the Magistrate Judge erred in
denying his request for the addresses of witnesses.
Judge Bloom finds that the Plaintiff's only purported reason for
requesting Jones' Personal Identifiable Information ("PII") is to
conduct a background check on him. She says Jones' history of
criminal convictions, if any, is discoverable. However, it is
unclear how a broader background check reasonably could lead to
other matters that could bear on any issue that is or may be in the
case. Given that lack of relevancy, and the legitimate concern of
identity theft, the Plaintiff has not shown that immediate
production of Jones's PII is proportional to the needs of the case.
Accordingly, his Objections with respect to Jones' PII are
overruled. His Objections with respect to the addresses of Jones
and the Defendants' managerial employees is sustained.
Next, the Plaintiff directs the Court to its Interrogatory No. 7
directed to Kiki, in which the Plaintiff requests information
related to the number of employees in each position and the
percentage of tips/overtips distributed to each employee each week.
Rather than providing those calculations, Kiki directed the
Plaintiff to its payroll records.
The Plaintiff argued before Judge Otazo-Reyes that Kiki should be
required to produce the numbers and calculations he requested.
Judge Otazo-Reyes ordered Kiki to identify all responsive documents
by Bates number, but concluded that Kiki need not perform the
computations required by this interrogatory because they can be
equally performed by Plaintiff based on the data contained in said
documents.
Judge Bloom holds that the Plaintiff has failed to show that Judge
Otazo-Reyes's ruling on Interrogatory No. 7 was clearly erroneous
or contrary to law. The Plaintiff's Objections do not reveal what
calculations have already been performed by the Defendant, and the
Court does not find merit in the Plaintiff's argument that the
produced documents lack information that he needs to perform the
calculations at issue. To the extent the Plaintiff is unable to
perform those calculations, he should follow Judge Otazo-Reyes'
instruction to first seek Kiki's assistance, and, if that fails,
bring the issue again to her attention. Hence, the Plaintiff's
Objections are overruled as to this issue.
Next, the Plaintiff objects to Judge Otazo-Reyes' ruling with
respect to the signatories on the Defendants' bank accounts and
leases. Judge Otazo-Reyes mostly agreed with Jones, sustaining the
Plaintiff's Objections to Interrogatories Nos. 6, 11, and 13. With
respect to Interrogatory No. 10, she ordered Jones to disclose all
of KiKi and RJ River's bank accounts for which Jones was a
signatory, but did not require Jones to disclose the names of other
signatories on those accounts. In his Objections, the Plaintiff
argues that Judge Otazo-Reyes' Order deprives him of relevant,
discoverable evidence.
Judge Bloom sees no relevance as to the names of other signatories
to those agreements. Accordingly, the Plaintiff's Objections on
this issue are sustained in part and overruled in part. Jones must
identify the bank accounts, contracts, and leases he signed on
behalf of Kiki or RJ River during the relevant period. However, he
need not identify other signatories to those agreements.
Lastly, the Plaintiff objects to what he represents was an ore
tenus ruling sustaining Jones's objections to Interrogatory No. 2,
in which he asked whether Jones has ever been charged with a crime,
and, if so, details regarding such charges. He argues that the
Defendant's criminal history is relevant for impeachment purposes
and therefore discoverable. In Response, the Defendants argue there
is no relation between Jones's criminal history and the Plaintiff's
claims.
Judge Bloom finds that apart from impeachment purposes, the
Plaintiff has made no argument as to the relevance of Jones'
history of criminal charges. Accordingly, the Defendants'
Objections to Interrogatory No. 2 are sustained in part and
overruled in part. The Plaintiff is entitled to Jones's history of
criminal convictions, but he is not entitled to information
regarding criminal charges brought against Jones that did not
result in conviction.
Accordingly, Judge Bloom sustains in part and overrules in part the
Plaintiff's Objections. The Defendants will supplement their
interrogatory responses consistent with the Order. Specifically,
they will:
a. Provide the addresses of Jones and other individuals listed
on the Defendants' Rule 26(a) disclosure;
b. Identify all bank accounts, contracts, and leases to which
Jones was a signatory during the time period during which Plaintiff
worked for Defendants; and
c. Disclose Jones' history of criminal convictions, if any,
including the nature and location of the conviction, and the case
number.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/g7mwc from Leagle.com.
A&L HOMECARE: Rulings on Notice Facilitation in Clark Suit Vacated
------------------------------------------------------------------
In the case, BROOKE CLARK, Plaintiff, LARRY HOLDER; CALVIN MARCUM,
JESSICA VANWINKLE, Plaintiffs-Appellees/Cross-Appellants v. A&L
HOMECARE AND TRAINING CENTER, LLC; NILA IRBY; DAWNETTA ABBETT,
RUTHIE LUCAS, Defendants-Appellants/Cross-Appellees, Case Nos.
22-3101, 21-3102 (6th Cir.), the U.S. Court of Appeals for the
Sixth Circuit vacates the district court's Aug. 4, 2021 Order on
notice facilitation and remands the case for proceedings consistent
with its Opinion.
Under the Fair Labor Standards Act of 1938 (FLSA), plaintiffs may
litigate federal minimum-wage and overtime claims on behalf of
other "similarly situated" employees. At issue in the case is the
showing of similarity that is necessary for a district court to
facilitate notice of an FLSA suit to employees who were not
originally parties to the suit.
In September 2020, the named Plaintiffs -- a number of former
"home-health aides" -- brought the suit against A&L Homecare &
Training, LLC and its owners (collectively, "A&L") under the FLSA
and Ohio law. They alleged that A&L had paid them less than the
correct overtime rate and under-reimbursed their vehicle expenses,
thereby reducing their pay below the federal and state minimum
wages.
The Plaintiffs thereafter moved for the district court to
facilitate notice of their action to three groups of other
employees who had worked for A&L. The court adopted the two-step
"certification" procedure, applied the usual "fairly lenient"
standard, and "conditionally certified" two of the three groups as
"collectives" for purposes of receiving notice of the suit. It
further held, however, that it would not facilitate notice to
employees who had left A&L more than two years before (which, in
its view, was the applicable limitations period here) or who had
signed a "valid arbitration agreement" with A&L.
The district court also observed that the Sixth Circuit had not yet
addressed the merits of the Lusardi two-step "certification"
approach, and that the Fifth Circuit had recently rejected it. Nor,
the district court observed, had the Sixth Circuit addressed the
effect of an alleged arbitration agreement on an employee's ability
to receive notice. The court therefore certified its order for
interlocutory review under 28 U.S.C. Section 1292(b). The Sixth
Circuit granted permission for A&L to appeal and for the Plaintiffs
to cross-appeal that order.
The principal question in the case is one of law. The Plaintiffs
argue the Sixth Circuit should adopt the Lusardi v. Xerox Corp.,
118 F.R.D. 351, 361 (D.N.J. 1987), approach and its lenient
standard for "conditional certification" for purposes of sending
notice of an FLSA suit to other employees. A&L counters that the
Sixth Circuit should adopt the Fifth Circuit's approach -- under
which, as A&L understands it, the district court must make a
"final" determination of substantial similarity before facilitating
notice of the suit to other employees.
The Sixth Circuit vacates the district court's notice determination
and remands for the court to redetermine that issue under the
strong-likelihood standard. It disagrees that a district court can
or should determine -- in absentia -- whether other employees are
"actually" similarly situated to the original plaintiffs. Notice
sent to employees who are not, in fact, eligible to join the suit
amounts to solicitation of those employees to bring suits of their
own. To the extent practicable, therefore, court-approved notice of
the suit should be sent only to employees who are in fact similarly
situated.
For a district court to facilitate notice of an FLSA suit to other
employees, the Plaintiffs must show a "strong likelihood" that
those employees are similarly situated to the Plaintiffs
themselves. In applying this standard, district courts should
expedite their decision to the extent practicable. The limitations
period for FLSA claims typically is two years. If the Plaintiffs in
an FLSA suit move for court-approved notice to other employees, the
court should waste no time in adjudicating the motion. To that end,
a district court may promptly initiate discovery relevant to the
motion, including if necessary by "court order."
That leaves the Plaintiffs' cross-appeal. The Sixth Circuit
disagrees that district courts can or should determine, by a
preponderance of the evidence, whether absent employees have agreed
to arbitrate their claim. It likewise rejects the Plaintiffs'
assertion that an arbitration defense is off-limits for purposes of
the notice determination because that defense presents "merits
questions." Thus, on remand, the district court should consider the
parties' evidence as to arbitration agreements along with all the
other evidence in determining whether the Plaintiffs have met the
strong-likelihood standard.
Finally, as to the Plaintiffs' remaining argument, a limitations
defense is likewise a defense like any other for purposes of
determining similarity. Hence the district court should consider
the parties' respective showings on that issue when making its
notice determination on remand.
A full-text copy of the Court's May 19, 2023 Opinion is available
at https://tinyurl.com/bp9cdw48 from Leagle.com.
ARGUED: M. Scott McIntyre -- smcintyre@bakerlaw.com -- BAKER &
HOSTETLER LLP, Cincinnati, Ohio, for the
Appellants/Cross-Appellees.
Gregory R. Mansell -- Greg@MansellLawLLC.com -- MANSELL LAW LLC,
Columbus, Ohio, for the Appellees/Cross-Appellants.
ON BRIEF: M. Scott McIntyre -- smcintyre@bakerlaw.com -- BAKER &
HOSTETLER LLP, Cincinnati, Ohio, Gregory V. Mersol --
gmersol@bakerlaw.com -- BAKER & HOSTETLER LLP, Cleveland, Ohio, for
the Appellants/Cross-Appellees.
Gregory R. Mansell, Carrie J. Dyer -- Carrie@MansellLawLLC.com --
Rhiannon M. Herbert -- Rhiannon@MansellLawLLC.com -- MANSELL LAW
LLC, Columbus, Ohio, for the Appellees/Cross-Appellants.
Steven P. Lehotsky, LEHOTSKY KELLER LLP, Washington, D.C., Lindsey
Rothfeder, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
Richard J. (Rex) Burch -- rburch@brucknerburch.com -- BRUCKNER
BURCH PLLC, Houston, Texas, Andrew R. Biller --
Eabiller@billerkimble.com -- BILLER & KIMBLE, LLC, Cincinnati,
Ohio, Robert E. DeRose -- bderose@barkanmeizlish.com -- BARKAN
MEIZLISH DEROSE COX, LLP, Columbus, Ohio, for Amici Curiae.
ALBERTSONS COS: Faces Class Action Over December 2022 Data Breach
-----------------------------------------------------------------
Kelly Mehorter, writing for ClassAction.org, reports that
Albertsons Companies, Inc. faces a proposed class action over a
December 2022 data breach that impacted tens of thousands of
current and former employees.
The 55-page lawsuit contends that the breach, during which an
unauthorized actor gained access to files containing employees'
personal information over the course of at least three days, was a
direct result of the grocery store operator's failure to implement
reasonable cybersecurity measures.
According to the case, Albertsons, one of the largest grocers in
the United States, had a legal duty under contract, industry
standards, and state and federal laws to protect consumers'
personal information from unauthorized exposure. Despite these
obligations, the company maintained its employees' data in a
"reckless manner" on a computer network that was "vulnerable to
cyberattacks," the complaint alleges.
The case says that data thieves responsible for the hack were able
to exfiltrate victims' names, dates of births and Social Security
numbers, all of which can be used to commit various crimes.
"As a result of the Data Breach, Plaintiff and Class Members have
been exposed to a heightened and imminent risk of fraud and
identity theft," the suit says, adding that affected individuals
must now spend significant amounts of time, money and effort to
guard against these threats.
The plaintiff, a Pennsylvania resident who worked for Albertsons
from 2000 to 2003, says she received from the company on April 21 a
notice letter alerting her to the incident, the complaint relays.
However, the suit contends that the document omits several
pertinent details, including what steps have been taken to ensure a
breach does not occur again.
Per the notice letter, Albertsons "immediately launched a forensic
investigation" after supposedly discovering the unauthorized access
on December 23 last year, and found that copies of data had been
removed from certain file servers between December 22 and 24, the
suit relays.
The case contends that Albertsons knew or should have known the
importance of safeguarding employee data against the increasingly
common, though reasonably preventable, threat of a cyberattack. For
example, cybercriminals would have exfiltrated only unintelligible
data had Albertsons properly encrypted its employees' personal
information, the filing alleges.
The lawsuit seeks to cover anyone whose personally identifiable
information was maintained on Albertsons Companies' computer
systems that were compromised in the data breach and who received
from Albertsons a notice of data breach letter. [GN]
AMAZON WEB: Redd Suit Dismissed for Lack of Personal Jurisdiction
-----------------------------------------------------------------
In the case, Cynthia Redd, individually and on behalf of all others
similarly situated, Plaintiff v. Amazon Web Services, Inc.,
Defendant, Case No. 22 C 6779 (N.D. Ill.), Judge Elaine E. Bucklo
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, grants the Defendant's motion to dismiss.
Redd filed the putative class action in Illinois state court
against Amazon Web Services, Inc. ("AWS"), alleging violations of
the Illinois Biometric Information Privacy Act ("BIPA"), 740 ILCS
14/1 et seq. AWS timely removed the suit to federal court and seeks
to dismiss the complaint for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2) or, alternatively, for
failure to state a claim under Rule 12(b)(6). At the same time,
Redd seeks remand of her claim under Section 15(c) of BIPA to state
court, asserting that she lacks Article III standing to litigate
that claim in federal court.
In her remand motion, Redd argues that she pleads only a procedural
violation of Section 15(c) and that she consequently fails to meet
the injury-in-fact requirement for Article III standing. In other
words, she maintains that federal courts lack subject-matter
jurisdiction over that claim. In its motion, AWS argues for
dismissal of Redd's complaint for lack of personal jurisdiction.
When confronted with concurrent motions implicating both
subject-matter jurisdiction and personal jurisdiction, a federal
court can decide for itself in which order to address them.
Because a ruling for AWS on personal jurisdiction grounds would
obviate the need to consider the remand motion entirely, Judge
Bucklo opts to resolve the Rule 12(b)(2) motion first.
Redd argues that AWS's jurisdictional attack is inadequate because
AWS does not, as it must, offer any sworn statements, authenticated
documents or information that would establish a factual dispute as
to jurisdiction and provide an evidentiary basis for dismissal.
Taking the facts alleged in the complaint as true, Judge Bucklo
concludes that Redd has failed to make a prima facie showing of
personal jurisdiction. It is not enough that Redd was affected by
AWS' conduct in Illinois because a plaintiff cannot be the only
link between a defendant and the forum. Rather, Redd must show that
AWS purposefully directed its activities at Illinois, and the
relationship among the Defendant, the forum, and the litigation
must arise out of contacts that the Defendant itself creates with
the forum state. Without some indication that AWS itself targeted
Illinois, it cannot be subjected personal jurisdiction.
Because Redd has failed to make a prima facie showing of personal
jurisdiction, she is not entitled to the limited jurisdictional
discovery she requests. For these reasons, AWS' motion to dismiss
for lack of personal jurisdiction is granted. Redd's motion to
remand is denied as moot.
A full-text copy of the Court's May 17, 2023 Memorandum Opinion &
Order is available at https://rb.gy/c44sw from Leagle.com.
AMBER GROVE: Faces Dickson Suit Over Unlawful Labor Practices
-------------------------------------------------------------
AMBER BOWEN DICKSON, individually, and on behalf of other members
of the general public similarly situated; Plaintiff, v. AMBER GROVE
PLACE, LLC, a California limited liability company; AMBER GROVE
MANAGEMENT, LLC, an Oregon limited liability company; ANTHEM MEMORY
CARE LLC, an Oregon limited liability company; AMC CHICO, LLC, an
unknown business entity; and DOES 1 through 100, inclusive,
Defendants, Case No. 23CV01364 (Cal. Super. Ct., May 23, 2023)
arises out of the Defendants' violations of the California Labor
Code and the California Business & Professions Code.
The Defendants employed Plaintiff as an hourly-paid, nonexempt
employee, from approximately October 2019 to approximately March
2021, in the State of California, County of Butte. Allegedly, the
Defendants violated the said laws by, among other things, failing
to pay Plaintiff accurate overtime compensation and minimum wages.
In addition, the Defendants also failed to keep complete or
accurate payroll records, says the suit.
Amber Grove Place, LLC is an assisted living community in Chico,
California. [BN]
The Plaintiff is represented by:
Arby Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
Facsimile: (818) 265-1021
AMC ENTERTAINMENT: June 29-30 Settlement Fairness Hearing Set
-------------------------------------------------------------
SUMMARY NOTICE OF PENDENCY OF STOCKHOLDER CLASS ACTION AND PROPOSED
SETTLEMENT, SETTLEMENT HEARING, AND RIGHT TO APPEAR IN THE COURT OF
CHANCERY OF THE STATE OF DELAWARE
In re AMC Entertainment Holdings, Inc. Stockholder Litigation,
Consolidated C.A. No. 2023-0215-MTZ
TO: All holders of AMC Entertainment Holdings, Inc. ("AMC") Class
A common stock (NYSE: "AMC") ("Common Stock") between August 3,
2022, through and including the record time, expected to be set as
of the close of business in accordance with any New York Stock
Exchange and/or Depository Trust Company requirements or policies,
on the business day prior to the full conversion of all outstanding
AMC Preferred Equity Unit (NYSE: "APE") into shares of Common Stock
on which the 1-for-10 reverse stock split of AMC equity is
effective (the "Class Period"), whether beneficial or of record,
including the legal representatives, heirs, successors-in-interest,
transferees, and assignees of all such foregoing holders, but
excluding Defendants (defined below) (the "Settlement Class").
Any capitalized terms used in this Summary Notice that are not
otherwise defined in this Summary Notice shall have the meanings
given to them in the Stipulation and Agreement of Compromise,
Settlement, and Release dated April 27, 2023 (the "Stipulation"),
which is available at the "Investor Relations" section of AMC's
website, investor.amctheatres.com/newsroom/default.aspx, and Lead
Counsel's websites, blbglaw.com, gelaw.com and fksfirm.com.
PLEASE READ THIS SUMMARY NOTICE CAREFULLY. YOUR RIGHTS WILL BE
AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT, AND YOU
MAY BE ENTITLED TO RECEIVE A PAYMENT FROM THE SETTLEMENT.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Court of
Chancery of the State of Delaware (the "Court"), that the
above-captioned stockholder class action (the "Action") has been
preliminarily certified as a class action on behalf of the
Settlement Class defined above.
YOU ARE ALSO NOTIFIED that Lead Plaintiffs Allegheny County
Employees' Retirement System, Usbaldo Munoz, and Anthony Franchi
(collectively, "Plaintiffs"), individually and on behalf of the
Settlement Class, and Defendants Adam M. Aron, Denise Clark, Howard
W. Koch, Jr., Philip Lader, Gary F. Locke, Kathleen M. Pawlus, Keri
Putnam, Anthony J. Saich, Adam J. Sussman, Lee Wittlinger, and AMC
(collectively, "Defendants") have reached a proposed settlement
consisting of a payment to the record holders of Common Stock as of
the Settlement Class Time of one share of Common Stock for every
7.5 shares of Common Stock owned by such record holders as of the
Settlement Class Time (after giving effect to the Reverse Stock
Split) (the "Settlement Payment"), as set forth in the Stipulation
(the "Settlement"). No fractional shares of Common Stock will be
issued as part of the Settlement Payment. Record holders of Common
Stock who would otherwise be entitled to receive a fractional share
of the Settlement Payment will receive a cash payment in lieu
thereof in the same manner as will be provided in connection with
the Reverse Stock Split. The Settlement, if approved, will resolve
all claims in the Action.
A hearing (the "Settlement Hearing") will be held before Vice
Chancellor Morgan T. Zurn on June 29 to 30, 2023, at the Leonard L.
Williams Justice Center, 500 N. King Street, Wilmington, Delaware,
to, among other things: (i) determine whether the proposed
Settlement is fair, reasonable, and adequate to the Settlement
Class; (ii) determine whether a Judgment, substantially in the form
attached as Exhibit D to the Stipulation, should be entered
dismissing the Action with prejudice as against Defendants and
lifting the Status Quo Order; (iii) determine whether the
application by Lead Counsel for an award of attorneys' fees and
expenses and incentive awards should be approved; (iv) hear and
rule on any objections to the proposed Settlement, Lead Counsel's
application for an award of attorneys' fees and expenses, and/or
Lead Counsel's application for incentive awards to Plaintiffs; and
(v) consider any other matters that may properly be brought before
the Court in connection with the proposed Settlement.
The date and time of the Settlement Hearing may change. Such
changes may occur without written notice to Settlement Class
Members. If such a change occurs, the Parties will do their best
to alert the Settlement Class Members of the change, but you are
encouraged to monitor the Court's docket, the "Investor Relations"
section of AMC's website,
investor.amctheatres.com/newsroom/default.aspx, and Lead Counsel's
websites, blbglaw.com, gelaw.com and fksfirm.com. You may also
confirm the date and time of the Settlement Hearing by contacting
Lead Counsel as indicated below.
Any Settlement Member may object to or support the Settlement, Lead
Counsel's application for an award of attorneys' fees and expenses,
and/or Lead Counsel's application for incentive awards to
Plaintiffs. In so doing, however, any Objector or Supporter must,
on or before May 31, 2023, follow the instructions set forth in the
Notice.
Please do not contact the Court or the Office of the Register in
Chancery regarding this Summary Notice. All questions about this
Summary Notice or proposed Settlement should be directed to Lead
Counsel:
By electronic mail to:
AMCSettlementObjections@blbglaw.com
By mail to:
AMC Investor Submissions
c/o John Mills, Esq.
Bernstein Litowitz Berger & Grossmann LLP
1251 Avenue of the Americas
New York, NY 10020
BY ORDER OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE
Dated: May 8, 2023
AMERICAN HONDA: Parties Stipulate to Extend Class Cert Deadlines
----------------------------------------------------------------
In the class action lawsuit captioned as RONDA ANN BROWNING et al,
individually, and on behalf of other members of the general public
similarly situated, v. AMERICAN HONDA MOTOR CO., INC., a California
corporation, and HONDA MOTOR COMPANY LTD., a Japanese corporation,
Case No. 5:20-cv-05417-BLF (N.D. Cal.), the Parties stipulate to
continue the discovery, dispositive motion, and class certification
deadlines as follows:
-- The Parties seek a 150-day continuance of the Plaintiffs'
July
28, 2023 deadline to file their Motion for Class
Certification,
to be reset to December 18, 2023. A more detailed briefing
stipulation will be submitted with or shortly after the
December
18, 2023, Class Certification filing deadline.
On August 5, 2020, the Plaintiffs filed their original complaint.
the Plaintiffs' First Amended Complaint was filed on December 15,
2020.
On January 20, 2021, the Defendant AHM filed its Motion to Dismiss
the Plaintiffs' First Amended Complaint. Briefing was completed on
April 23, 2021.
On June 17, 2021, the Court heard oral argument on this Motion to
Dismiss, held an initial case management conference, and set the
deadline for the Plaintiffs to file their Motion for Class
Certification for August 5, 2022, approximately 13.5 months from
the conference.
On July 16, 2021, the Court granted AHM's Motion to Dismiss without
prejudice to the Plaintiffs filing an amended complaint by August
16, 2021. The Plaintiffs' Second Amended Complaint was filed on
August 16, 2021.
On September 30, 2021, AHM filed its Motion to Dismiss the
Plaintiffs' Second Amended Complaint. Briefing was completed on
December 17, 2021, and the Court heard the Motion on February 3,
2022.
On May 10, 2022, the Court granted the Plaintiff's requested
stipulation. On June 6, 2022, AHM filed its Motion to Dismiss the
Plaintiffs' Third Amended Complaint. Briefing was completed on
August 1, 2022, and the Court heard the Motion on October 6, 2022.
Also on October 6, 2022, the Court denied AHM's Motion to Dismiss.
American Honda is the North American subsidiary of the Honda Motor
Company. It was founded in 1959.
A copy of the Parties' motion dated May 17, 2023 is available from
PacerMonitor.com at https://bit.ly/3WBmOrV at no extra charge.[CC]
The Plaintiffs are represented by:
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Laura E. Goolsby, Esq.
CAPSTONE LAW APC, Esq.
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: tarek.zohdy@capstonelawyers.com
cody.padgett@capstonelawyers.com
laura.goolsby@capstonelawyers.com
The Defendant is represented by:
Amir Nassihi, Esq.
Michael L. Mallow, Esq.
Stephanie S. McGraw, Esq.
SHOOK, HARDY & BACON L.L.P.
555 Mission St. Suite 2300
San Francisco, CA 94105
Telephone: (415) 544-1900
Facsimile: (415) 391-0281
E-mail: anassihi@shb.com
mmallow@shb.com
smcgraw@shb.com
ANCESTRY.COM: Judge Tosses Class Action Over Yearbook Photos
------------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports that a Chicago
federal judge won't second-guess herself for tossing a proposed
class action lawsuit that accused Ancestry.com of violating the
Illinois Right of Publicity Act.
The suit concerned old yearbook photos the company used when
advertising its pay service. In September, Judge Virginia Kendall
granted summary judgment to Ancestry, finding plaintiff lawyers
failed to work around the IRPA's one-year statute of limitations.
They tried to argue each payment Ancestry made to a company that
licenses yearbook names and images started the statute over.
Lawyers at Clifford Law Offices, Morgan and Morgan and Bursor &
Fisher filed a motion for reconsideration that was rejected May
23.
They said the Illinois Supreme Court's recent ruling in Tims v.
Black Horse Carriers, which denied a one-year statute of limitation
on cases brought under the state's Biometric Information Privacy
Act.
"Unlike the BIPA, the IRPA protects the publication of matters
related to the right of privacy and, thus, falls under the one-year
statute of limitations," Kendall wrote. "Simply consider the law's
name. The legislature titled the statute the 'Illinois Right of
Publicity Act.'
"That the law protects the publication of private information is
immediately apparent. The legislative text teaches the same
lesson."
Kendall had already thrown out claims under Illinois' Consumer
Fraud and Deceptive Business Practices Act in late 2021.
IRPA has no express statute of limitations, but a federal court in
July 2019 determined it was one year because IRPA "completely
supplanted the common-law tort of appropriation of likeness," which
has a one-year statute. [GN]
ARC AUTOMOTIVE: Class Action Over Airbag Inflators Pending
----------------------------------------------------------
What: Vehicles that are equipped with ARC airbag inflators.
Who: The National Highway Traffic Safety Administration (NHTSA)
demanded an immediate recall of the 67 million airbag inflators
manufactured by ARC Automotive, Inc. of Knoxville, TN.
Where: Currently, the ARC Inflator recall is only taking place in
the United States. However, the NHTSA believes a broader recall is
necessary.
Why: Drivers are potentially at risk of being injured or killed by
the faulty inflator. Metal shards and shrapnel may be propelled at
high speeds, causing severe cuts, burns, eye injuries, torn
arteries, broken bones, and death. Regardless of fault in an
accident, or the number of parties involved, those injured by an
exploding airbag may still have a claim.
How Can I Identify the Recalled Product?: The National Highway
Traffic Safety Administration has advised all vehicle owners to
check their 17-digit Vehicle Identification Number (VIN) on the
NHTSA website to confirm if their vehicle has been affected by the
recall. Drivers may also contact their vehicle's manufacturer for
more information.
What is Causing the Inflators to Rupture?
After an 8-year-long investigation, the NHTSA concluded that the
ARC inflators, when deployed in a car accident, has the potential
to explode and propel metal fragments at high speeds into a
vehicle's cabin. This is caused due to the unstable ammonium
nitrate contained in the canister. Similar to the recent recalls
due to the Takata airbags, the issue behind the compound used to
create a small explosion to inflate the airbag, ammonium nitrate,
is that the compound can deteriorate when exposed repeatedly to
high temperatures and humidity. Then when burned too fast, it can
create larger explosions. Victims of the ARC inflators have
suffered severe cuts, burns, eye injuries, torn arteries, broken
bones, and death.
Which Auto Companies Are Involved?
With cases dating back to 2009, an estimated 51 million inflators
were potentially affected. The NHTSA's records show that those
vehicles that are equipped with the potentially affected inflators
were installed in the cars made between the model years 2002 and
2017. Companies that have either been involved in a lawsuit or have
willingly sent out recalls for their potentially affected vehicles
currently include General Motors Company, Ford Motor Company, BMW
AG, and Volkswagen AG.
Who Has Filed a Lawsuit Against ARC?
In May 2022, Marlene Beaudoin passed away after an airbag module
exploded in her SUV. Her family filed a lawsuit alleging negligence
after they claimed that pieces of the airbag inflator, steering
wheel, and steering column from Marlene's Chevy Traverse pierced
her chest, neck, and head. In June 2022, a class action lawsuit was
filed in the US District Court: Northern District of California
against ARC Automotive Inc., General Motors, Ford, Audi, Joyson
Safety Systems, and Toyoda Gosei North America that claims ARC
Automotive and other regulatory bodies who studied the accident
reports should have informed the defendants of the issues with the
inflators.
Then again, in August 2022, a prosed class action lawsuit was filed
in the US District Court: District of South Carolina, claiming that
the vehicle owners did not receive a warning that their vehicles
contained defective ARC airbags with the ARC inflators. Since the
start of the investigation, multiple other lawsuits have been
filed, naming other vehicle companies like Volkswagen, Hyundai, and
Kia.
Who Is Eligible For an ARC Lawsuit?
Those individuals who have suffered an injury or have a loved one
who has died due to a defective ARC inflator may be eligible to
file a lawsuit. When drivers get behind the wheel of a car, they
expect that the safety components of the car are working in a way
that is meant to protect them from danger rather than potentially
placing them in harm's way. As reported by the NHTSA, the ARC
airbag inflator has the potential to explode and propel metal
fragments into the vehicle cabin that can easily injure or kill
vehicle occupants. ARC Automotive and any other auto company's
inactions to remove the inflators from the market must be held
liable.
Why You Should Contact Morgan & Morgan
Contacting an attorney will always help benefit your case. At
Morgan & Morgan, our attorneys have extensive experience with
automobile lawsuits, including expertise in cases that involve the
faulty Takata airbags, self-driving vehicles, and much more. Our
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What Are the Next Steps To File a Lawsuit?
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ARCONIC INC: $74MM Class Settlement to Be Heard on Aug. 9
---------------------------------------------------------
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF PENNSYLVANIA
MARTIN HOWARD, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,
vs.
ARCONIC INC., et al.,
Defendants.
Civ. Action No. 2:17-cv-01057-MRH
(Consolidated)
CLASS ACTION
SUMMARY NOTICE OF PROPOSED
SETTLEMENT OF CLASS ACTION
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED (i) ARCONIC
INC. ("ARCONIC" OR THE "COMPANY") SECURITIES BETWEEN NOVEMBER 4,
2013 AND JUNE 27, 2017, INCLUSIVE, INCLUDING FOR THE AVOIDANCE OF
DOUBT, ARCONIC DEPOSITARY SHARES, AND (ii) ARCONIC DEPOSITARY
SHARES, EACH REPRESENTING A 1/10TH INTEREST IN A SHARE OF 5.375%
CLASS B MANDATORY CONVERTIBLE PREFERRED STOCK, SERIES 1, PAR VALUE
$1 PER SHARE, LIQUIDATING PREFERENCE $500 PER SHARE PURSUANT TO
AND/OR TRACEABLE TO THE REGISTRATION STATEMENT AND PROSPECTUS
ISSUED IN CONNECTION WITH ARCONIC'S SEPTEMBER 18, 2014 INITIAL
PUBLIC PREFERRED STOCK OFFERING, AND ARE NOT OTHERWISE EXCLUDED
FROM THE SETTLEMENT CLASS.
THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER
SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS
ENTIRETY.
YOU ARE HEREBY NOTIFIED that a hearing will be held on August 9,
2023, at 9:30 a.m., before Judge Mark R. Hornak, via
videoconference, to determine whether: (1) the proposed settlement
(the "Settlement") of the above-captioned action as set forth in
the Stipulation of Settlement ("Stipulation")1 for $74,000,000 in
cash should be approved by the Court as fair, reasonable, and
adequate; (2) for purposes of the proposed Settlement only, the
Litigation should be certified as a class action on behalf of the
Settlement Class; (3) the Judgment, as provided under the
Stipulation, should be entered, among other things, dismissing the
Litigation with prejudice; (4) to award Lead Counsel attorneys'
fees and expenses out of the Settlement Fund (as defined in the
Stipulation and referred to in the Notice of Pendency and Proposed
Settlement of Class Action ("Notice"), which is discussed below)
and to award Lead Plaintiffs reimbursement of their time and
expenses in connection with their representation of the Settlement
Class, and, if so, in what amounts; and (5) the Plan of Allocation
should be approved by the Court as fair, reasonable, and adequate.
The Court has decided to conduct the Settlement Hearing via
videoconference. In order to determine whether the date and time
of the Settlement Hearing have changed, it is important that you
monitor the Court's docket and the Settlement website,
www.ArconicSecuritiesSettlement.com. Updates regarding the
Settlement Hearing, including any changes to the date or time of
the hearing, will be posted to the Settlement website,
www.ArconicSecuritiesSettlement.com.
IF YOU PURCHASED OR OTHERWISE ACQUIRED ARCONIC SECURITIES,
INCLUDING ARCONIC DEPOSITARY SHARES BETWEEN NOVEMBER 4, 2013 AND
JUNE 27, 2017, INCLUSIVE, YOUR RIGHTS MAY BE AFFECTED BY THE
SETTLEMENT OF THIS LITIGATION.
To seek to share in the distribution of the Settlement Fund, you
must establish your rights by submitting a Proof of Claim and
Release form ("Proof of Claim") by mail (postmarked no later than
August 21, 2023) or electronically (no later than August 21, 2023).
Your failure to submit your Proof of Claim by August 21, 2023 will
subject your claim to rejection and preclude your receiving any of
the recovery in connection with the Settlement. If you are a
Settlement Class Member and do not validly and timely request
exclusion from the Settlement Class in accordance with the
requirements set by the Court, you will be bound by the Settlement
and any judgment and release entered in the Litigation, including,
but not limited to, the Judgment, whether or not you submit a Proof
of Claim.
The Notice, which more completely describes the Settlement and your
rights thereunder (including your right to object to the
Settlement), the Proof of Claim, the Stipulation (which, among
other things, contains definitions for the defined terms used in
this Summary Notice and the Notice), and other Settlement
documents, may be accessed online at
www.ArconicSecuritiesSettlement.com, or by writing to:
Arconic Securities Settlement
c/o A.B. Data, Ltd.
P.O. Box 173091
Milwaukee, WI 53217
Telephone: 866-963-9979
info@ArconicSecuritiesSettlement.com
Inquiries should NOT be directed to Defendants, the Court, or the
Clerk of the Court.
Inquiries, other than requests for the Notice or for a Proof of
Claim, may be made to Lead Counsel:
POMERANTZ LLP
Jeremy Lieberman
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: 212-661-1100
jalieberman@pomlaw.com
ROBBINS GELLER RUDMAN & DOWD LLP
Ellen Gusikoff Stewart
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 800-449-4900
settlementinfo@rgrdlaw.com
IF YOU DESIRE TO BE EXCLUDED FROM THE SETTLEMENT CLASS, YOU MUST
SUBMIT A REQUEST FOR EXCLUSION SUCH THAT IT IS RECEIVED BY JULY 19,
2023, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL
SETTLEMENT CLASS MEMBERS WILL BE BOUND BY THE SETTLEMENT EVEN IF
THEY DO NOT SUBMIT A TIMELY PROOF OF CLAIM.
IF YOU ARE A SETTLEMENT CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT
TO THE SETTLEMENT, THE PLAN OF ALLOCATION, OR THE REQUEST BY LEAD
COUNSEL FOR AN AWARD OF ATTORNEYS' FEES NOT TO EXCEED 33 1/3% OF
THE $74,000,000 SETTLEMENT AMOUNT AND EXPENSES NOT TO EXCEED
$975,000 AND AWARDS TO LEAD PLAINTIFFS NOT TO EXCEED $75,000 IN THE
AGGREGATE IN CONNECTION WITH THEIR REPRESENTATION OF THE SETTLEMENT
CLASS. ANY OBJECTIONS MUST BE FILED WITH THE COURT AND SENT TO
LEAD COUNSEL AND DEFENDANTS' COUNSEL SO THAT THEY ARE RECEIVED BY
JULY 19, 2023, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE.
DATED: MAY 30, 2023
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF PENNSYLVANIA
1 This Summary Notice incorporates by reference the definitions in
the Stipulation of Settlement dated April 21, 2023 ("Stipulation"),
which can be viewed and/or obtained at
www.ArconicSecuritiesSettlement.com. In the event any defined term
herein or in the Notice conflicts with the defined term as used in
the Stipulation, the Stipulation controls.
ARRAY TECHNOLOGIES: Plymouth Allowed to Replead Securities Suit
---------------------------------------------------------------
In the case, PLYMOUTH COUNTY RETIREMENT ASSOCIATION and CARPENTERS
PENSION TRUST FUND FOR NORTHERN CALIFORNIA, Individually and on
Behalf of All Others Similarly Situated, Plaintiffs v. ARRAY
TECHNOLOGIES, INC., ATI INTERMEDIATE HOLDINGS, LLC, JIM FUSARO,
NIPUL PATEL, TROY ALSTEAD, ORLANDO D. ASHFORD, FRANK CANNOVA, RON
P. CORIO, BRAD FORTH, PETER JONNA, JASON LEE, ATI INVESTMENT
PARENT, LLC, OAKTREE ATI INVESTORS, L.P., OAKTREE POWER
OPPORTUNITIES FUND IV, L.P., OAKTREE POWER OPPORTUNITIES FUND IV
(PARALLEL), L.P., GOLDMAN SACHS & CO. LLC, J.P. MORGAN SECURITIES
LLC, GUGGENHEIM SECURITIES, LLC, CREDIT SUISSE SECURITIES (USA)
LLC, BARCLAYS CAPITAL INC., UBS SECURITIES LLC, COWEN AND COMPANY,
LLC, OPPENHEIMER & CO. INC., JOHNSON RICE & CO. LLC, ROTH CAPITAL
PARTNERS, LLC, PIPER SANDLER & CO., MUFG SECURITIES AMERICAS INC.,
NOMURA SECURITIES INTERNATIONAL, INC., and MORGAN STANLEY & CO.
LLC, Defendants, Case No. 21 Civ. 4390 (VM) (S.D.N.Y.), Judge
Victor Marrero of the U.S. District Court for the Southern District
of New York grants the Defendants' Motion to Dismiss the
Consolidated Class Action Complaint with leave to replead.
Lead Plaintiffs Plymouth and Carpenters brought the suit on behalf
of a putative class of "all persons and entities that purchased or
otherwise acquired Array securities during the period from Oct. 14,
2020, through May 11, 2021, inclusive." During the Class Period,
Array conducted three public offerings of common stock in October
2020, December 2020, and March 2021.
The Plaintiffs assert claims pursuant to Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934, 15 U.S.C. Section 78a et
seq., plus Rule 10b-5 of the Securities and Exchange Commission
promulgated thereunder, 17 C.F.R. Section 240.10b-5, as well as
under Sections 11, 12(a)(2), and 15 of the Securities Exchange Act
of 1933, 15 U.S.C. Section 77a et seq.
The Defendants filed the instant Motion to Dismiss the CAC pursuant
to Federal Rules of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") and
9(b) and the Private Securities Litigation Reform Act of 1995 (the
"PSLRA"), 15 U.S.C. Section 78u-4, supported by their memorandum of
law and the declaration of Lisa H. Bebchic.
Array is a Delaware Corporation with its principal offices located
in New Mexico. It is a manufacturer of systems that allow solar
panels to move throughout the day, redirecting the panels'
orientation to optimize exposure to the sun. Array's "trackers"
comprise an integrated system consisted mainly, and importantly
here, of steel as well as other accompanying components, such as
motors, gear boxes, and electrical control systems. Prior to
conducting its initial public offering ("IPO") in October 2020,
Array was known as ATI Intermediate Holdings, LLC. Post-IPO, the
NASDAQ Global Market listed Array's stock under the ticker,
"ARRY."
During the Class Period, Fusaro and Patel were, respectively, the
CEO and CFO of Array. The Individual Securities Act Defendants
(Alstead, Ashford, Cannova, Corio, Forth, Jonna, and Lee) were all
members of the Board of Directors of Array during the Class Period.
Fusaro, Patel, and the members of the Board of Directors signed
each of the registration statements identified in the CAC. The IPO
and the supplemental public offerings ("SPO") made in December 2020
and March 2021 were underwritten by a veritable horde of the
biggest financial institutions in the world, as named as Defendants
in the caption to this action.
The Plaintiffs provide retirement and/or pension benefits to their
members and manage assets on their members' behalf. As part of
those activities, their PSLRA certifications indicate they combined
to purchase over 89,000 shares of ARRY during the Class Period at a
cost of over $3 million.
To raise funds and allow the Oaktree parties and founders of Array,
specifically Ron Corio, to cash out their holdings, Array organized
three public offerings of stock during the Class Period. The first,
Array's IPO, closed in October 2020 with proceeds totaling over
$1.035 billion. Then, in December 2020, Array made an SPO that
closed in December 2020 ("December 2020 SPO"), generating an
additional $1.1 billion in proceeds. Finally, Array made another
SPO that closed in March 2021 ("March 2021 SPO") resulting in an
additional $870 million in proceeds. For each offering, Array filed
the required S-1 Registration Statements with the Securities and
Exchange Commission along with a Prospectus, each of which were
signed by the Individual Securities Act Defendants and Fusaro and
Patel.
About six weeks after the close of the March 2021 SPO, Array made
additional disclosures regarding the effect that rising commodity
and logistics costs were having on its bottom line. On May 10,
2021, it disclosed that steel comprised around 50% of its cost of
goods and, because steel prices were not normalizing at the rate
Array previously envisioned, it was withdrawing its full year 2021
guidance issued in March. Array also indicated it was reviewing
contracts to pass some of those costs along to its customers.
Reacting to this news, Array's stock prices fell by $11.49 per
share, closing at $13.46 per share -- a 46% drop -- on May 12,
2021.
Plymouth and Julien Keippel filed dueling putative class action
complaints in May and June 2021. Having found that the complaints
and other papers filed in both actions involved the same or
substantially similar underlying conduct, claims, and parties, the
Court consolidated the cases along with others that had been filed.
It then appointed Plymouth and Carpenters as the Lead Plaintiffs
and granted their motion to appoint Labaton Sucharow LLP as the
lead counsel for the putative class.
After the CAC was filed, and pursuant to the Court's Individual
Practices, Defendants filed a pre-motion letter identifying grounds
on which dismissal of the CAC would be appropriate. The Plaintiffs
responded by letter, opposing those grounds, and the Defendants
then informed the Court that the informal letter exchange had
failed to resolve the dispute and sought a pre-motion conference or
a briefing schedule on a motion to dismiss.
The Court denied the request for a pre-motion conference and
directed the parties to propose a briefing schedule if they sought
to fully brief the motion to dismiss. It adopted the parties'
briefing schedule. The Defendants then filed their Motion, Brief,
and supporting declaration. The Plaintiffs filed their opposition
and the Defendants filed their reply.
Judge Marrero finds that the core of the Plaintiffs' allegations
that leads to dismissal of their claims, is that investors, like
the Plaintiffs, were harmed when Array failed to accurately predict
the future. The securities laws do not require any issuer,
including Array, to have such prescience for divining market
volatility with the precision that the Plaintiffs seek, especially
not in the context of all the financial market challenges,
uncertainties, and volatility engendered by the COVID-19 pandemic.
Hence, the Plaintiffs' claims must be dismissed.
For these reasons, Judge Marrero grants the motion of the
Defendants to dismiss in its entirety.
Within 21 days of the date of the Decision and Order, the
Plaintiffs may, by letter not to exceed five pages, seek leave to
replead, setting forth with particularity what amendments to the
CAC they would make to cure the deficiencies in the CAC. The
Defendants may respond within ten days thereafter by letter not to
exceed five pages.
A full-text copy of the Court's May 19, 2023 Decision & Order is
available at https://tinyurl.com/bdhycdwz from Leagle.com.
ASCENSION HEALTH: Halczenko and Applegate Class Suits Consolidated
------------------------------------------------------------------
In the cases, PAUL HALCZENKO DR., et al., on behalf of themselves
and those similarly situated Plaintiffs v. ASCENSION HEALTH, INC.,
et al., Defendants. KAYLYN APPLEGATE, et al., on behalf of
themselves and those similarly situated Plaintiffs v. ST. VINCENT
HEALTH, INC., et al., Defendants, Case Nos. 1:21-cv-02816-JPH-MG,
1:22-cv-01097-JPH-MG (S.D. Ind.), Magistrate Judge Mario Garcia of
the U.S. District Court for the Southern District of Indiana,
Indianapolis Division, grants the Plaintiffs' Motion to
Consolidate.
On Nov. 8, 2021, the Plaintiffs in Halczenko filed the instant case
pursuant to Title VII of the Civil Rights Act of 1964 and the
Americans with Disabilities Act of 1990 ("ADA"), alleging patterns
of religious discrimination by the Defendants. These Plaintiffs
allege that they were discriminated against after requesting
religious accommodations from the Defendants' mandate that its
employees and the employees of Defendants' affiliates receive the
COVID-19 vaccine.
Further, they allege that the Defendants suspended and/or
terminated them and other similarly situated employees that it
regarded as disabled after failing to provide these individuals a
reasonable accommodation regarding the COVID-19 pandemic and their
status as unvaccinated individuals. The Plaintiffs who had written
employment agreements further argue breach of written employment
agreement claims alleging their agreements only authorized "for
cause" termination for "refusal to comply with any written
Policy(ies) of "Employer", which they argue was defined as St.
Vincent Health, not a policy of Ascension.
A similar lawsuit, Applegate, was filed in this district on May 27,
2022, where a different set of employees filed a new action
asserting the same Title VII and breach of contract claims as those
asserted by the Plaintiffs in this case against the same
Defendants.
On Feb. 3, 2023, Halczenko Plaintiffs filed the instant motion
requesting that the matter be consolidated with Applegate, for all
purposes. On Feb. 17, 2023, the Defendants filed an opposition and
on Feb. 24, 2023, the Plaintiffs replied.
Judge Garcia finds that the Defendants have not shown that they
would be prejudiced by consolidation. As the Plaintiffs point out,
the factual and legal allegations underlying both cases are largely
the same. Consolidating the two cases clearly furthers judicial
economy. Absent consolidation, Judge Garcia says there would be
separate trials involving identical legal claims and substantially
overlapping evidence, which would waste judicial time and resources
for claims that could be more efficiently adjudicated in one trial.
Further, as both cases are proceeding before the same District
Court Judge and the Undersigned Magistrate Judge, consolidation
negates the need for potentially redundant motions practice and
rulings.
Finally, and without commenting on the ultimate merits of the
Plaintiffs' arguments -- or the Defendants' responses -- Judge
Garcia notes again that consolidation does not deprive any party of
any substantial rights which he may have possessed had the actions
proceeded separately. Moreover, the cases are in similar stages of
litigation, with Applegate's discovery closing June 30, 2023, and
Halczenko's Sept. 15, 2023, and no trial date has been set in
either case. Should a need arise to sever certain parties or issues
at a later stage of the litigation, Fed. R. Civ. P. 42(b) provides
an appropriate remedy. On the current record, Judge Garcia finds
the two actions are appropriate for consolidation.
Therefore, the Plaintiffs' Motion to Consolidate the case and
Applegate is granted. He consolidates the cases as follows: The
action pending as Case No. 1:22-cv-1097 is consolidated the action
pending as Case No. 1:21-cv-2816. All further proceedings in these
consolidated matters will occur in Case No. 1:21-cv-2816.
To eliminate the confusion of having two operative complaints, the
Plaintiffs are ordered to file a Consolidated Class Action
Complaint in Halczenko within 15 days of the Order.
The Clerk is directed to close Case No. 1:22-cv-1097. No final
judgment will issue in that case.
The Clerk is further directed to docket a copy of the Order in Case
No. 1:22-cv-1097.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/2sypmeup from Leagle.com.
ASCENSION HEALTH: Halczenko Has Leave to File 3rd Amended Complaint
-------------------------------------------------------------------
In the case, PAUL HALCZENKO Dr., JENNIFER JIMENEZ, ERIN NICOLE
GILLESPIE, VALERIE FRALIC, KRISTIN EVANS on behalf of Themselves
and all those similarly situated, Plaintiffs v. ASCENSION HEALTH,
INC., ST. VINCENT HOSPITAL AND HEALTH CARE CENTER, INC. d/b/a
ASCENSION ST. VINCENT HOSPITAL, Defendants, Case No.
1:21-cv-02816-JPH-MG (S.D. Ind.), Magistrate Judge Mario Garcia of
the U.S. District Court for the Southern District of Indiana,
Indianapolis Division, grants in part and denies in part the
Plaintiff's Motion for Leave to File Third Amended Class Action
Complaint.
The Plaintiffs in this putative class action are current or former
employees of healthcare facilities operated by the Defendants. They
allege that the Defendants violated their rights under Title VII by
denying their requests for religious exemptions to a COVID-19
vaccine requirement. The Plaintiffs have previously amended their
complaint, adding individual plaintiffs as notice of right-to-sue
letters are received from the EEOC, and corresponding defendant
entities employing these new plaintiffs.
Now pending before the Court is the Plaintiffs' Motion for Leave to
File Third Amended Class Action Complaint. They seek leave to
revise their allegations and make clear the relief being sought, to
add three new Plaintiffs and three new defendants, as well as
remove aspects of the Second Amended Complaint that are no longer
accurate. The Defendants oppose the Motion and the Plaintiffs have
replied to those arguments.
The Plaintiffs propose to amend their complaint to: (1) add three
new individual plaintiffs (Richard Brokinsky, Kristen Olejnik, and
Modiene Kane) alleging violations of Title VII and the Americans
with Disabilities Act (the "ADA"); and (2) add three new
defendants—Ascension Health Alliance, Inc., (a Missouri Nonprofit
Corporation), St. Vincent Anderson Regional Hospital (an Indiana
Corporation), and Ascension Technologies (a Missouri Corporation)
-- i.e., the employers of some of the new proposed plaintiffs. Of
note, the ADA claims proposed on behalf of Bokinsky, Olejniik, and
Kane are the first-time claims under the ADA have been raised in
this lawsuit.
The Defendants oppose these amendments. First, they argue they will
suffer undue prejudice because of the Plaintiffs' delay in adding
new parties and claims. Second, they say the proposed ADA
amendments are futile for various reasons: (1) the proposed ADA
claims are untimely and unexhausted; (2) the ADA claims fail as a
matter of law; and (c) the ADA claims are incapable of class
treatment. The Defendants also argue the Plaintiffs' new Title VII
claims have not been administratively exhausted because the
Plaintiffs have not alleged that they timely filed charges against
any of the new proposed Defendants.
Judge Garcia holds that the Plaintiffs' unvaccinated status cannot
support a claim that the Defendants regarded them as disabled under
the ADA. To the extent that the Plaintiffs argue the Defendants
regarded them as being disabled because it regarded them as having
COVID-19, this claim also fails. Any argument that the Defendants
perceived them as potentially infectious are similarly foreclosed,
as the ADA's definition of disability does not cover employer
perception of a person to be presently healthy with a potential to
be disabled in the future.
Judge Garcia further holds that the new ADA claims do not cure any
defects or grow out of the ADA Plaintiffs' original claims of
religious discrimination. Rather, the ADA claims present a "an
entirely new theory recovery." Thus, the proposed ADA claims do not
relate back to the Plaintiffs' timely Title VII charges such that
they are untimely and permitting them an amendment to add these
claims is futile. Because he has found leave to assert these ADA
claims would be futile, Judge Garcia need not discuss the
Defendants' arguments that these ADA claims are incapable of class
treatment.
For these reasons, the Plaintiffs' leave to assert ADA claims on
behalf of three new Plaintiffs or on behalf of a class is denied.
Finally, Judge Garcia agrees that the Defendants have not
articulated how the additional Title VII religious claims on behalf
of three additional plaintiffs will cause undue prejudice under Fed
R. Civ. P. 15(a)(2). Discovery for these claims will likely overlap
significantly with the discovery already completed or underway.
However, he notes that he is unlikely to permit the addition of new
plaintiffs in the future, as noted through the Court's
amendment/joinder deadline outlined to the parties. Therefore, the
Plaintiffs are granted leave to amend and file a Third Amended
Complaint to include the additional Title VII claims.
Judge Garcia grants in part and denies in part the Plaintiff's
Motion for Leave to File Second Amended Complaint as follows:
a. The Plaintiffs' Motion is granted to the extent that they
may amend their Complaint to add Title VII claims on behalf of
Brokinsky, Olejnik, and Kane.
b. The Plaintiffs' Motion is denied as to their proposed ADA
claims.
The Plaintiffs will file their amended complaint and any
accompanying exhibits in accordance with the rulings within seven
days of the Order.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/27ha39wk from Leagle.com.
ATKINS & OGLE: Wins in Part Summary Judgment Bid in Ray FDCPA Suit
------------------------------------------------------------------
In the case, Melvin Ray, Plaintiff v. Bree W. Ogle, et al.,
Defendants, Case No. 1:22 CV 1265 (N.D. Ohio), Judge Patricia A.
Gaughan of the U.S. District Court for the Northern District of
Ohio, Eastern Division:
a. denies the Plaintiff's Motion to Deny Defendants' Motion
for Summary Judgment or to Defer Consideration Pursuant to
F.R.C.P. 56(d); and
b. grants in part and denies in part the Defendants' Motion
for Summary Judgment.
The case arises under the Fair Debt Collection Practices Act
("FDCPA"). Ray filed the class action complaint against Defendants
Bree W. Ogle and Atkins & Ogle Law Offices, LLC, alleging
wrongdoing in connection with the collection of a debt. Ogle is a
shareholder of Atkins & Ogle. The Defendants primarily handle debt
collection matters on behalf of their clients.
In July of 2015, the Plaintiff obtained a loan in the amount of
$30,000 from Best Egg. Best Egg is an online lending platform and
offers funding through Cross River Bank. According to the
Defendants, Cross River Bank sold the loan to UHG I in 2020. UHG I
is a client of the Defendants.
At some point, the Plaintiff fell behind on the loan payments. On
June 11, 2021, the Defendants filed a lawsuit in state court to
collect on the debt. In connection with that lawsuit, they
submitted an affidavit from Kaelyn Kowalik. The affidavit
identifies UHG 1 as the current debt holder and further identifies
Cross River Bank as the original creditor.
Kowalik avers that she (1) is responsible for keeping the books and
records of UHG I; (2) reviewed the books and records of UHG I; and
(3) determined that Ray owed $30,198. 93. Plaintiff then signed the
affidavit, which was notarized. The signature block of the
affidavit reads as follows, FURTHER AFFIANT SAYETH NOT: 4/20/21
Cross River Bank Date By: [signature] Name: Kaelyn Kowalik Title:
Account Administrator
The Plaintiff, i.e., the Defendant in the state court action, moved
to dismiss the complaint. The motion did not raise an issue
regarding the affidavit. The motion was unopposed, and the state
court granted it with prejudice.
At some point, the Plaintiff learned of the inconsistencies in the
affidavit and filed the instant lawsuit. Count one is a claim for
violation of the FDCPA. Count two alleges a violation of the Ohio
Consumer Sales Practices Act ("OCSPA"). Count three is a claim for
"commission of criminal acts." Counts four and five assert claims
for fraud and negligence, respectively.
The Defendants move for summary judgment on all claims, and the
Plaintiff opposes the motion. The Plaintiff also moves pursuant to
Rule 56(d) asking that the Court deny or delay a ruling on the
summary judgment motion. The Defendants oppose this motion.
The Plaintiff responds to the Defendants' motion for summary
judgment and alternatively moves for discovery pursuant to Rule
56(d). According to the Defendants did not fully cooperate during
discovery. In response, the Defendants argue that the Plaintiff's
Rule 56(d) motion cannot be granted because he opposes their
summary judgment motion.
Upon review, Judge Gaughan denies the Plaintiff's Rule 56(d)
motion. She does not permit a nonmovant to preview a summary
judgment motion after having failed to follow the local rules
regarding discovery disputes. She says the Plaintiff had ample time
for discovery and knew of the alleged shortcomings in the
production with sufficient time left to file a motion to compel. He
chose not to and now argues in the alternative that he might need
additional evidence to defeat the summary judgment motion. Hence,
the Plaintiff's Rule 56(d) motion is not well-taken.
Summary Judgment is appropriate when no genuine issues of material
fact exist, and the moving party is entitled to judgment as a
matter of law. The burden of showing the absence of any such
genuine issues of material facts rests with the moving party.
As to count one, Judge Gaughan finds that (i) although dismissal of
the claim may be warranted if the creditor establishes that it
owned the debt, the Defendants fail to present admissible evidence
on this point; (ii) there is a genuine issue of material fact as to
whether the error in the affidavit of Ogle is subject to the bona
fide error defense; (iii) Ogle avers that her law firm does not
report credit information, nor does the firm provide information to
anyone that reports to credit bureaus; and (iv) the Defendants
point to other cases in which courts have applied the six year
statute of limitations to collection action.
As to count two, which arises under the OCSPA. The Plaintiff
alleges that the misconduct identified also violates the OCSPA. In
their motion, the Defendants assert the same arguments. Judge
Gaughan denies the Defendants' motion, except to the extent the
Plaintiff alleges that the Defendants' credit reporting acts
violate the statute.
As to their state law claims, the Plaintiff asserts claims for
negligence, fraud, and violation of criminal statutes. According to
the Defendants, these claims fail because they are, in actuality,
third-party legal malpractice claims.
Upon review, Judge Gaughan finds that summary judgment is warranted
as to the state law claims. She finds that (i) evidence is
insufficient to create a genuine issue of material fact as to
whether defendants acted fraudulently, maliciously, or in bad faith
as required to defeat attorney-immunity to third-parties; (ii) the
Plaintiff's evidence falls short of creating a genuine issue of
material fact, and the general immunity rule precludes the state
law claims; and (iii) the Plaintiff cites no law from Ohio, the
Sixth Circuit, or the Supreme Court that has established a duty of
care on the part of attorneys representing creditors through either
the FDCPA or the OCSPA. Because the Plaintiff fails to satisfy the
duty element of a negligence claim, the Defendants are entitled to
summary judgment.
For the forgoing reasons, Judge Gaughan denies the Plaintiff's Rule
56(d) motion and grants in part and denies in part the Defendants'
motion for summary judgment. The Defendants are entitled to summary
judgment with respect to counts one and two to the extent they are
based on credit reporting. They are also entitled to summary
judgment on counts three, four, and five. Judge Gaughan denies the
Defendants' motion in all other respects.
A full-text copy of the Court's May 17, 2023 Memorandum of Opinion
& Order is available at https://rb.gy/efpxw from Leagle.com.
B&L DELIVERY: Court Denies Bid to Lift Stay in Harris Class Suit
----------------------------------------------------------------
In the case, TYLER HARRIS and PABLO MATA, on behalf of themselves
and all others similarly situated, Plaintiffs v. B&L DELIVERY LLC
and BOB MAYNARD, Defendants, Civil Action No. 5:20-29-KKC (E.D.
Ky.), Judge Karen K. Caldwell of the U.S. District Court for the
Eastern District of Kentucky, Central Division, Lexington, denies
the Defendants' Motion to Lift Stay and Modify Agreed Order.
On Jan. 28, 2020, Harris and Mata filed the action against
Defendants B& and Maynard, asserting individual, class action, and
collective action claims. The Plaintiffs are former employees of
B&L, and Maynard owns B&L. They seek to recover unpaid wages
because Defendants allegedly required them to work "off the clock"
without compensation, failed to compensate them for overtime hours
worked, and docked their hours for meal breaks regardless of
whether they took the breaks. Accordingly, the Plaintiffs bring
claims for violations of the Fair Labor Standards Act (29 U.S.C.
Section 207) and the Kentucky Wages and Hours Act (KRS Sections
337.285, 337.060).
On March 26, 2020, the Defendants raised an arbitration defense in
their Answer to the Complaint, stating that the Complaint is
barred, because the Plaintiffs have agreed to arbitrate all the
claims alleged in the Complaint. The Defendants simultaneously
filed a Motion to Compel Arbitration. They sought to compel
arbitration because all these claims are subject to arbitration
under contracts signed by both Plaintiffs as a condition of their
employment.
In arguing that the claims were subject to arbitration under the
Federal Arbitration Act (9 U.S.C. Section 2), the Defendants
stated, the final factor of the analysis is whether some, but not
all, of the claims are subject to arbitration. All of them fall
squarely within the bounds of the agreement. On April 14, 2020, the
parties filed a Proposed Agreed Order to Compel Arbitration and
Stay Court Proceedings, and the Court entered that order the next
day. Accordingly, the Court stayed the proceedings pending
arbitration.
The parties subsequently engaged in arbitration and regularly filed
status reports with the Court about the arbitration. In the
arbitration, the Plaintiffs moved to conditionally certify a class
action for their state law claims and a collective action for their
federal claims. On April 27, 2021, the Arbitrator granted the
Plaintiffs' motion. Discovery closed on Sept. 30, 2022. On Oct. 17,
2022, the Defendants filed a Motion to Lift Stay and Modify
Arbitration Order, nearly a year and a half after the Arbitrator
granted Plaintiffs' motion seeking conditional certification.
For the first time, the Defendants contend that arbitration must
only proceed on the Plaintiffs' individual claims because the
arbitration agreement does not compel arbitration of the class
action and collective action claims. The Defendants request that
the Court lifts the current stay and amends the Agreed Order to
require the arbitration of the Plaintiffs' individual claims only,
leaving the Court to resolve the class action and collective action
claims.
Before reaching the merits of the Defendants' motion, Judge
Caldwell must address a threshold question: Have the Defendants
waived their argument that the Arbitrator may not resolve the
Plaintiffs' class action and collective action claims? More
precisely, have they waived their right to a judicial determination
regarding the arbitrability of these claims and their right to
object to the arbitration of the same?
Based on the circumstances of the case, Judge Caldwell holds that
the Defendants have waived their right to have the Court decide the
arbitrability of the class action and collective claims, and their
right to object to the arbitration of these claims. Before now, the
Defendants never asked the Court to determine if the arbitration
agreement encompasses class action or collective action claims.
Their waiver is apparent in their active participation in
arbitration proceedings, including by engaging in (and completing)
discovery and disputing the Plaintiffs' motion for conditional
certification.
Moreover, Judge Caldwell finds that the Defendants failed to timely
object to the arbitration of the Plaintiffs' class action and
collective action claims. She says they had ample opportunity to do
so. Because the Defendants did not seek an initial determination by
a court and participated in the arbitration proceedings without
contesting the arbitrator's authority to resolve the matter, they
have waived their right to a judicial determination of
arbitrability of the class action and collective action claims, and
their right to object to the arbitration of those claims.
Judge Caldwell cannot help but conclude that the Defendants'
delayed motion is pure gamesmanship. Arbitration is not a forum for
parties to test their legal theories. She cannot permit parties to
initiate arbitration, develop their arguments during those
proceedings, receive a final decision, and then come back to the
Court if they are unhappy with the decision. This wastes the
parties' time, the Arbitrator's time, and the Court's time.
Fairness dictates that Judge Caldwell denies the Defendants'
motion. Therefore, she denies the Defendants' motion.
A full-text copy of the Court's May 23, 2023 Opinion & Order is
available at https://tinyurl.com/mr4huux4 from Leagle.com.
BAYER AG: Court Certifies Damages Class in Fund Securities Suit
---------------------------------------------------------------
In the case, SHEET METAL WORKERS NATIONAL PENSION FUND, et al.,
Plaintiffs v. BAYER AKTIENGESELLSCHAFT, et al., Defendants, Case
No. 20-cv-04737-RS (N.D. Cal.), Judge Richard Seeborg of the U.S.
District Court for the Northern District of California grants the
Plaintiffs' motion for class certification.
The Plaintiffs in this securities action have moved for
certification of a damages class under Federal Rule of Civil
Procedure 23(b)(3). The Defendants, in opposition, focus largely on
the contention that the Plaintiffs have not established typicality
or predominance because their acquisitions of Bayer American
Depositary Receipts do not qualify as domestic transactions under
federal securities law.
The case arises out of averred misrepresentations made by Bayer and
its executives in connection with the company's acquisition of the
agrochemical company Monsanto. In the Second Amended Class Action
Complaint ("SAC"), the Plaintiffs bring claims under sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Section
78j(b); and Rule 10b-5 promulgated thereunder, 17 C.F.R. Section
240.10b-5. These claims are based on two categories of averred
misrepresentations, only one of which (the Defendants' alleged
statements concerning Bayer's due diligence efforts surrounding the
Monsanto acquisition) was pleaded adequately and remains a viable
theory of liability.
The Plaintiffs are each pension funds that collectively purchased
close to 600,000 Bayer American Depositary Receipts, or "ADRs."
Purchasing ADRs allows American investors to trade equities of a
foreign corporation domestically. Bayer ADRs are traded in the
over-the-counter market and each ADR represents an ownership
interest in ordinary shares of Bayer that have been held on deposit
by The Bank of New York Mellon.
After two motions to dismiss were denied, the Plaintiffs moved for
certification of a damages class under Rule 23(b)(3). The proposed
class is defined as follows: All persons or entities that purchased
or otherwise acquired Bayer's publicly traded ADRs from May 23,
2016 to July 6, 2020, inclusive (the Class Period).
Excluded from the Class are (1) Defendants; (2) members of the
immediate family of each of the Individual Defendants; (3) any
subsidiary or affiliate of Bayer, including its employee retirement
and benefit plan(s) and their participants or beneficiaries, to the
extent they made purchases through such plan(s); (4) the directors
and officers of Bayer during the Class Period, as well as the
members of their immediate families; and (5) the legal
representatives, heirs, successors, and assigns of any such
excluded party.
The Plaintiffs additionally seek appointment as class
representatives, and for appointment of Cohen Milstein Sellers &
Toll PLLC as the Class Counsel.
In support of their motion, the Plaintiffs rely on the expert
report of Dr. Joshua Mitts, who looks to trading data to determine
that irrevocable liability for purchasing Bayer ADRs occurred
within the United States. They also refer to the expert report of
Chad Coffman, a financial analyst who discusses the efficiency of
the Bayer ADR market during the Class Period and describes an
"out-of-pocket" model for measuring classwide damages.
The Defendants, for their part, rely on the expert testimony of
Cristian Zarcu. Mr. Zarcu reaches the opposite conclusion as Dr.
Mitts, arguing that, based on his examination of the trading data
and his experience as a trader, such irrevocable liability occurred
outside the United States for many of the ADRs purchased by the
putative class members. They also provide expert testimony from Dr.
Mark Garmaise, whose report rebuts Coffman's findings on market
efficiency and critiques his approach to calculating damages.
Finally, the Plaintiffs offer rebuttal reports from Dr. Mitts and
Coffman.
The Defendants' main argument is that class certification is
inappropriate because many of the Plaintiffs' transactions occurred
outside of the United States. On this basis, they contest the
Plaintiffs' assertion that they have shown typicality and the
predominance of common questions.
As this constitutes the primary zone of disagreement between the
parties, Judge Seeborg first provides an overview of the relevant
law in this area, followed by a discussion of how the Plaintiffs
acquired Bayer ADRs. He concludes that the Plaintiffs' transactions
do not raise extraterritoriality concerns. There are no significant
extraterritoriality concerns on the record presented. The
Defendants' additional arguments against class certification are
similarly unconvincing. The Plaintiffs have made all the requisite
showings under Rule 23 and the proposed class will be certified.
For these reasons, Judge Seeborg holds that the Plaintiffs have met
all of the requirements of Rule 23(a) and Rule 23(b)(3). As such,
he grants the motion and certifies the following class: All persons
or entities that purchased or otherwise acquired Bayer's publicly
traded American Depositary Receipts from May 23, 2016 to July 6,
2020, inclusive (the Class Period).
Excluded from the Class are (1) Defendants; (2) members of the
immediate family of each of the Individual Defendants; (3) any
subsidiary or affiliate of Bayer, including its employee retirement
and benefit plan(s) and their participants or beneficiaries, to the
extent they made purchases through such plan(s); (4) the directors
and officers of Bayer during the Class Period, as well as the
members of their immediate families; and (5) the legal
representatives, heirs, successors, and assigns of any such
excluded party.
The Plaintiffs are appointed as the class representatives, and
Cohen Milstein Sellers & Toll PLLC is appointed as the Class
Counsel. A separate order will enter regarding the associated
administrative motions to file materials under seal. A further case
management conference is scheduled for June 15, 2023.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/ycxaskwb from Leagle.com.
BHP BILLITON: Seeks Stay of Scheduling Order Deadlines in Black
---------------------------------------------------------------
In the class action lawsuit captioned as AARON PARISH BLACK, AS
TRUSTEE OF THE RALPH J. AND REBA J. FAMILY TRUST, AARON PARISH
BLACK, AS TRUSTEE OF THE REBA J. PARISH TRUST, NORMA J. BRYANT, AND
DAN LARRY PENNINGTON, individually and on behalf of a class of
similarly situated individuals, v. BHP BILLITON PETROLEUM
(FAYETTEVILLE), LLC and MMGJ ARKANSAS UPSTREAM, LLC, Case No.
4:20-cv-00178-LPR (E.D. Ark.), the Defendants request the Court
stay all remaining scheduling deadlines until the Court decides the
issue of class certification and issues a new scheduling order, or
alternatively for an extension of the motion's deadline.
-- The Court's Final Scheduling Order, as amended by the Third
Amended Scheduling Order, sets the close of discovery for June
30, 2023, and the deadline for submission of motions other
than
motions in limine for July 3, 2023.
-- On May 16, 2023, the Court stayed the scheduling orders in
three
cases concerning the same facts and circumstances as this one.
-- At its discretion, the Court may consider summary judgment
motions before deciding the issue of class certification when
doing so could "clarify or simplify the litigation. "
-- The Defendants have conferred with Plaintiffs about this
motion,
and Plaintiffs state that they "are not inclined to agree to a
stay of the litigation."
A copy of the Defendants' motion dated May 17, 2023 is available
from PacerMonitor.com at https://bit.ly/3IKI5JV at no extra
charge.[CC]
The Defendants are represented by:
Michael B. Heister, Esq.
R. Ryan Younger, Esq.
E. Jonathan Mader, Esq.
QUATTLEBAUM, GROOMS & TULL PLLC
111 Center Street, Suite 1900
Little Rock, AR 72201
Telephone: (501) 379-1700
Facsimile: (501) 379-1701
E-mail: mheister@qgtlaw.com
ryounger@qgtlaw.com
jmader@qgtlaw.com
- and -
David W. Jones, Esq.
BECK REDDEN LLP, Esq.
1221 McKinney, Suite 4500
Houston, TX 77010
Telephone: (713) 951-3700
Facsimile: (713) 951-3720
E-mail: djones@beckredden.com
BIOHM HEALTH: Website Not Accessible to Blind, Cromite Alleges
--------------------------------------------------------------
SEANA CROMITIE, individually and on behalf of all others similarly
situated, Plaintiff v. BIOHM HEALTH LLC, Defendant, Case No.
1:23-cv-04316-JLR (S.D.N.Y., May 24, 2023) alleges Defendant's
violation of the Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's
website, www.biohmhealth.com, is not equally accessible to blind
and visually impaired consumers, it violates the ADA. The Plaintiff
seeks a permanent injunction to cause a change in the Defendant's
corporate policies, practices, and procedures so that Defendant's
website will become and remain accessible to blind and
visually-impaired consumers.
BIOHM HEALTH LLC operates as a microbiome company. The Company
offers products and services that address the total microbiome of
both bacteria and fungi, allowing consumers to maintain total
digestive health and provides personalized wellness programs. [BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
Email: mrozenberg@steinsakslegal.com
BOARDROOM INC: E.D. Michigan Refuses to Dismiss Nock Class Suit
---------------------------------------------------------------
In the case, REGINA NOCK, individually and on behalf of all others
similarly situated, Plaintiff v. BOARDROOM, INC. d/b/a BOTTOM LINE
INC., Defendant, Civil Action No. 22-cv-11296 (E.D. Mich.), Judge
Bernard A. Friedman of the U.S. District Court for the Eastern
District of Michigan, Southern Division, denies Bottom Line's
motion to dismiss the complaint.
Nock commenced the putative class action against Bottom Line. She
alleges that Bottom Line violated Michigan's Preservation of
Personal Privacy Act when it disclosed her personal identifying
information to third parties without obtaining her consent. Before
the Court is Bottom Line's motion to dismiss the complaint.
Bottom Line publishes Bottom Line Personal newsletter. Nock
subscribed to the newsletter some time before July 31, 2016. She
asserts that Bottom Line disclosed her personal identifying
information to data aggregators, data appenders, data cooperatives,
and list brokers, who then disclosed that information to aggressive
advertisers, political organizations, and non-profit companies. To
supplement these allegations, the complaint includes an embedded
screenshot of list broker NextMark, Inc.'s website, offering to
rent or exchange the personal identifying information of all Bottom
Line's active U.S. subscribers through April 30, 2022.
Nock filed a putative class action complaint seeking statutory
damages under Michigan's Preservation of Personal Privacy Act
("PPPA"). She alleges that Bottom Line violated section 2 of the
statute, sometime before July 31, 2016, by disclosing the personal
identifying information of its Michigan subscribers to third
parties without their consent. Bottom Line now moves to dismiss the
complaint.
Judge Friedman opines that Article III standing poses no obstacle
to the PPPA claim. He further opines that the PPPA claim is timely
because the PPPA's statute of limitations is six-years. Lastly, he
opines that the allegations are more than adequate to show that
Bottom Line plausibly violated the PPPA sometime before July 31,
2016.
Because Nock states a plausible claim for relief under the PPPA --
even without the embedded NextMark screenshot -- her allegations
are alone sufficient to withstand Rule 12(b)(6) scrutiny.
Accordingly, Judge Friedman denies Bottom Line's motion to dismiss
the complaint.
A full-text copy of the Court's May 19, 2023 Opinion & Order is
available at https://tinyurl.com/3mz39ses from Leagle.com.
BP EXPLORATION: All of Rounds' Claims Dismissed With Prejudice
--------------------------------------------------------------
In the case, GREGORY ALPHONSE ROUNDS v. BP EXPLORATION &
PRODUCTION, INC. ET AL., SECTION: "H," Civil Action No. 17-4576
(E.D. La.), Judge Janice Triche Milazzo of the U.S. District Court
for the Eastern District of Louisiana:
a. grants Defendants BP Exploration & Production, Inc.; BP
America Production Company; BP p.l.c.; Transocean Holdings,
LLC; Transocean Deepwater, Inc.; Transocean Offshore
Deepwater Drilling, Inc.; and Halliburton Energy Services,
Inc.'s Motion in Limine to Exclude the General Causation
Opinions of Plaintiff's Expert, Dr. Jerald Cook;
b. grants the Defendants' Motion for Summary Judgment Due to
Plaintiff's Inability to Prove Medical Causation; and
c. denies Rounds' Motion for Admission of Plaintiff's Expert
Opinions Because of BP Defendants' Spoliation of Evidence
of Plaintiff's Exposure.
The case is one among the "B3 bundle" of cases arising out of the
Deepwater Horizon oil spill. This bundle comprises claims for
personal injury and wrongful death due to exposure to oil and/or
other chemicals used during the oil spill response (e.g.,
dispersant). These cases were originally part of a multidistrict
litigation ("MDL") pending in the Eastern District of Louisiana
before Judge Barbier. During this MDL, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement
Agreement, but the B3 plaintiffs either opted out of this agreement
or were excluded from its class definition. Subsequently, Judge
Barbier severed the B3 cases from the MDL to be reallocated among
the judges of this Court. This case was reassigned to Section H.
Plaintiff Rounds filed a lawsuit against the Defendants based on
his alleged exposure to toxic chemicals following the Deepwater
Horizon oil spill in the Gulf of Mexico. He contends that his
exposure to crude oil and dispersants caused a litany of health
conditions. He brings claims for general maritime negligence,
negligence per se, and gross negligence against the Defendants.
Now before is the Defendants' Motion in Limine and their Motion for
Summary Judgment. In the Motion in Limine, the Defendants argue
that the Plaintiff's expert on medical causation, Dr. Cook, fails
to satisfy the Fifth Circuit's requirements for an admissible
general causation opinion in toxic tort cases and should therefore
be excluded as unreliable. They argue that assuming their Motion in
Limine is granted, the Plaintiff lacks expert testimony on general
causation and therefore fails to present a genuine issue of
material fact as to whether his injuries were caused by exposure to
oil and dispersants.
Also before the Court is the Plaintiff's motion entitled Motion for
Admission of Plaintiff's Expert Opinions because of BP Defendants'
Spoliation of Evidence of Plaintiff's Exposure. He asks the Court
to allow Dr. Cook's expert testimony considering the Defendants'
failure to preserve evidence of exposure to toxic chemicals by
clean-up workers or perform biomonitoring and dermal monitoring of
those workers.
Judge Milazzo holds that nine sections of the Eastern District of
Louisiana, including this one, have excluded Dr. Cook's June report
or its earlier versions, holding generally that Dr. Cook's opinions
are unreliable and unhelpful where he fails to identify the level
of exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiffs' complaints. The Plaintiff's new
arguments neither cure nor explain the deficiencies of Dr. Cook's
report.
Accordingly, Judge Milazzo agrees that these new arguments do not
alter the outcome of the Defendants' Motion in Limine. For the same
reasons already articulated by Judges Africk, Ashe, Barbier,
Guidry, Morgan, Vance, Vitter, and Zainey, she grants the
Defendants' Motion in Limine.
In response to the Defendants' Motion, the Plaintiff has filed a
motion seeking admission of Dr. Cook's report through a different
mechanism—as a sanction for spoliation.
As previously explained, the lack of quantitative data regarding
the clean-up workers' exposure to a given chemical at a given level
does not affect Dr. Cook's ability to opine on whether a specific
chemical is capable generally of causing certain health issues for
the general population. Thus, his report still fails to provide
evidence of general causation as is required by the Fifth Circuit
for toxic tort cases.
Put simply, Dr. Cook's report is flawed in ways unrelated to BP's
decision not to conduct monitoring. Accordingly, even if the
Plaintiff could prove that the Defendants spoliated evidence, Judge
Lilazzo says Dr. Cook's opinion remains unhelpful, unreliable, and
inadmissible. Other sections of the Court have reached the same
result. The Plaintiff's Motion is therefore denied. Because the
Plaintiff cannot prove general causation, Judge Milazzo also grants
the Defendants' Motion for Summary Judgment.
All of the Plaintiff's claims are dismissed with prejudice.
A full-text copy of the Court's May 19, 2023 Order & Reasons is
available at https://tinyurl.com/yhma6m6s from Leagle.com.
BRANDEIS UNIVERSITY: Omori Lose Class Certification Bid
-------------------------------------------------------
In the class action lawsuit captioned as ALAN THOMAS OMORI and
LINFEI YANG, individually and on behalf of all others similarly
situated, v. BRANDEIS UNIVERSITY, Case No. 1:20-cv-11021-NMG (D.
Mass.), the Hon. Judge Nathaniel M. Gorton entered an order denying
the plaintiffs' motion for class certification:
-- The Tuition Class
"All students enrolled at Brandeis University during the
Spring
2020 academic term and charged tuition by Brandeis;" and
-- The Studio Fee Class
"All students enrolled at Brandeis University during the
Spring
2020 academic term and charged a Studio Fee by Brandeis."
Finally, the students cite class certification decisions in
Arredondo v. Univ. of La Verne, 341 F.R.D. 47 (C.D. Cal. 2022) and
Ninivaggi, 2023 WL 2734343. In Ninivaggi, the court stated that the
"fair market value of an online education [at the University of
Delaware] does not vary by student. "
The Court concludes that plaintiffs in the case at bar have not
proffered an actual value of Spring 2020 online education that can
be applied class-wide. As a result, their damages model necessarily
implicates subjective and individualized questions. On the facts of
this case, therefore, the value of the post-COVID education
provided by Brandeis in Spring, 2020 would require individualized
proof complicated by "the presence of thousands of plaintiffs."
The putative class action arises out of the decision by Brandeis to
retain the full amount of tuition and fees collected from students
for the Spring, 2020 semester despite closing its on-campus
facilities and transitioning from in-person to online instruction
in response to the COVID-19 pandemic.
The Plaintiffs brought a four-count complaint, alleging breach
of contract, both express and implied (Counts I & II), unjust
enrichment (Count III) and conversion (Count IV). They seek to
recover, on behalf of a class, tuition and fees allegedly paid
in consideration for "in-person instruction and use of campus
facilities" which were denied to Brandeis students during the
second half of the Spring, 2020 academic term.
Brandeis University is a private research university in Waltham,
Massachusetts. Founded in 1948 as a non-sectarian, coeducational
institution sponsored by the Jewish community, Brandeis was
established on the site of the former Middlesex University.
A copy of the Court's order dated May 17, 2023 is available from
PacerMonitor.com at https://bit.ly/3J8sKmP at no extra charge.[CC]
BUMBLE INC: $18MM Class Settlement to be Heard on Aug. 4
--------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE BUMBLE, INC.
SECURITIES LITIGATION
Civil Action No. 22-cv-624 (DLC)
CLASS ACTION
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR
ATTORNEYS' FEES AND LITIGATION EXPENSES
TO: All persons or entities who purchased or otherwise acquired
the publicly traded Class A common stock of Bumble Inc. ("Bumble")
between September 10, 2021 and January 24, 2022, inclusive,
directly in or traceable to Bumble's Secondary Public Offering of
Bumble Class A stock, which closed on September 15, 2021, and were
damaged thereby (the "Settlement Class").
Certain persons and entities are excluded from the Settlement
Class, as set forth in the full Notice of (I) Pendency of Class
Action and Proposed Settlement; (II) Settlement Fairness Hearing;
and (III) Motion for Attorneys' Fees and Litigation Expenses (the
"Notice"), available at www.BumbleSecuritiesLitigation.com.
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Southern District of New York (the "Court"), that the
above-captioned securities class action (the "Action") is pending
in the Court.
YOU ARE ALSO NOTIFIED that Lead Plaintiff Louisiana Sheriffs'
Pension & Relief Fund in the Action, on behalf of itself and the
Settlement Class, has reached a proposed settlement of the Action
for $18,000,000 in cash (the "Settlement"). If approved, the
Settlement will resolve all claims in the Action.
A hearing will be held on August 4, 2023, at 2:00 p.m., before the
Honorable Denise L. Cote, in person at the United States District
Court for the Southern District of New York, Courtroom 18B of the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street,
New York, New York 10007-1312 (or such other date as may be
subsequently ordered by the Court), to determine, among other
things: (i) whether the proposed Settlement should be approved as
fair, reasonable, and adequate; (ii) whether, for purposes of the
proposed Settlement only, the Action should be certified as a class
action on behalf of the Settlement Class, Lead Plaintiff should be
certified as Class Representative for the Settlement Class, and
Lead Counsel should be appointed as Class Counsel for the
Settlement Class; (iii) whether the Action should be dismissed with
prejudice against Defendants, and the Releases specified and
described in the Stipulation and Agreement of Settlement dated as
of March 27, 2023 (and in the Notice) should be granted; (iv)
whether the proposed Plan of Allocation should be approved as fair
and reasonable; (v) whether Lead Counsel's motion for an award of
attorneys' fees and expenses should be approved; and (vi) any other
matters that may properly be brought before the Court in connection
with the Settlement.
If you are a member of the Settlement Class, your rights may be
affected by the pending Action and the Settlement, and you may be
entitled to share in the Net Settlement Fund. If you have not yet
received the Notice and Claim Form, you may obtain copies of these
documents by contacting the Claims Administrator by mail at Bumble
Securities Litigation, c/o JND Legal Administration, P.O. Box
91460, Seattle, WA 98111; by telephone at 844-798-0752; or by email
at info@BumbleSecuritiesLitigation.com. Copies of the Notice and
Claim Form can also be downloaded from the Settlement website,
www.BumbleSecuritiesLitigation.com.
If you are a member of the Settlement Class, in order to be
eligible to receive a payment from the Settlement, you must submit
a Claim Form postmarked (if mailed), or submitted online at
www.BumbleSecuritiesLitigation.com, no later than September 11,
2023. If you are a Settlement Class Member and do not submit a
proper Claim Form, you will not be eligible to receive a payment
from the Settlement, but you will nevertheless be bound by any
judgments or orders entered by the Court in the Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than July 12, 2023, in
accordance with the instructions set forth in the Notice. If you
properly exclude yourself from the Settlement Class, you will not
be bound by any judgments or orders entered by the Court in the
Action and you will not be eligible to receive a payment from the
Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees and
expenses must be filed with the Court and delivered to Lead Counsel
such that they are received no later than July 12, 2023, in
accordance with the instructions set forth in the Notice.
Please do not contact the Court, the Office of the Clerk of the
Court, Defendants, or Defendants' Counsel regarding this notice.
All questions about this notice, the proposed Settlement, or your
eligibility to participate in the Settlement should be directed to
the Claims Administrator or Lead Counsel.
Requests for the Notice and Claim Form should be made to:
Bumble Securities Litigation
c/o JND Legal Administration
P.O. Box 91460
Seattle, WA 98111
844-798-0752
info@BumbleSecuritiesLitigation.com
www.BumbleSecuritiesLitigation.com
Inquiries, other than requests for the Notice and Claim Form,
should be made to Lead Counsel:
Jeremy P. Robinson, Esq.
Bernstein Litowitz Berger & Grossmann LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
800-380-8496
settlements@blbglaw.com
By Order of the Court
CADWALLADER WICKERSHAM: Faces Class Action Over 2022 Data Breach
----------------------------------------------------------------
Richard Weiner, writing for Akron Legal News, reports that
Cadwallader Wickersham and Taft, New York City's oldest law firm
with over 400 attorneys in four offices, has been hit with a
proposed class action lawsuit over a 2022 data breach. The lawsuit
was first reported by the Bressler Risk Blog.
The suit, filed by Painesville, Ohio attorney Patrick Perotti in
the Southern District of New York, alleges that the law firm
"failed to prevent the data breach because it did not adhere to
commonly accepted security standards and failed to detect that its
databases were subject to a security breach."
Perotti's suit alleges that upwards of 93,000 people "had
identifying information compromised and are at risk . . .".
The attack happened on November 15 and 16, 2022, and reportedly
affected the firm's operations for weeks thereafter in addition to
allegedly compromising client data. According to media reports, the
firm had to wipe data from its laptops and forced some of its
internal systems offline. The firm's internal document management
system stayed offline for weeks, according to reports, and only
came back up after a work-around whose functionality was less than
the original system's and which did not include access to Microsoft
Word. Some of that reporting has been disputed by the firm.
Nevertheless, pretty cool to see a local kid go after such a big
target, isn't it?
ABA hacked
The American Bar Association suffered a data breach on March 17,
2023 which affected the online credentials of almost 1.5 million
members.
As far as anyone can tell, apparently, no member data was
compromised or stolen and there was no ransomware. But there is
concern that legacy credentials could still be abused -- because,
you know, you still use your passwords from ten years ago, right?
So here is another warning for you to change your passwords and
sign-in credentials regularly. And also to not have your
10-year-old ABA passwords be the same as your current online
banking passwords. [GN]
CALIFORNIA: Striking of Disqualification Statement in Lennar Tossed
-------------------------------------------------------------------
In the case, NORTH AMERICAN TITLE COMPANY, et al., Petitioners v.
SUPERIOR COURT OF FRESNO COUNTY, Respondent, CAROLYN CORTINA, et
al., Real Party in Interest, Case No. F084913 (Cal. App.), the
Court of Appeals of California, Fifth District, directs the
issuance of a writ of mandate to vacate the ruling striking the
statement of disqualification.
The Petitioner, formerly known as North American Title Co., Inc.
and now known as Lennar Title, Inc., alleges the trial judge
improperly struck its statement of disqualification for cause as
untimely, insufficient, and successive. During oral argument, the
trial judge made comments accusing the Petitioner and the other
Defendants of participating in a "name change shell game," a
"corporate game of three-card monte," and that they were engaged in
"more trickery" and "scheming" to evade payment. At the time of the
comments, no judgment had been entered, and issues of fraudulent
transfer, alter ego, or successor liability were never presented to
the court, let alone ultimately decided.
The Petitioner filed the instant statement for disqualification for
cause roughly a year after the comments were made, but during which
time the superior court judge was subject to preemptory
disqualification under section 170.6 and disqualification for cause
by codefendants, and the matter was stayed pending appellate review
of those filings. The trial judge struck the Petitioner's statement
for disqualification as untimely asserting the Petitioner knew of
the statements for years before seeking disqualification;
successive based on finding petitioner was inextricably intertwined
with codefendant and treated petitioner as if it, not codefendant,
had filed the prior statement of disqualification; and insufficient
for failing to allege facts to support a finding requiring
disqualification.
In 2007, Plaintiff Carolyn Cortina filed a class action complaint
alleging various wage and hour violations against her employer,
then named North American Title Co., Inc., a California
corporation. The complaint was amended in 2009 and 2010 to add 12
additional named plaintiffs and class representatives.
In 2010, the superior court granted certification to two classes;
the "exempt" and "non-exempt" subclasses, referring to groups of
employees that were categorized as salaried and hourly-wage
employees, respectively. Before proceeding to a court trial in
September 2015, class representatives dismissed statutory wage and
hour causes of action under the Labor Code and proceeded solely
under Business and Professions Code section 17200 et seq., also
known as the unfair competition law.
In October 2016, following an approximate 41-day bench trial, the
trial judge issued a statement of decision decertifying the
non-exempt class and finding liability in favor of class
representatives as to the exempt class. Judgment was ultimately
entered on Aug. 31, 2022, against Lennar Title in the amount of
approximately $43.5 million. According to the docket, the trial
judge made his first ruling in the case in September 2010, presided
over the court trial as to liability in 2015 and 2016, and was
assigned as the judge for all purposes on June 25, 2020.
A series of business transactions occurred in 2018 and 2019
resulting in the sale of the name North American Title Co., Inc. to
a different company. Although trial had commenced in the action
years earlier, the business transactions and corporate name changes
caused class representatives to seek additional discovery and
attempt to add Doma Title as a defendant to the action. In
adjudicating issues arising from class representatives' efforts to
conduct discovery and amend its complaint to add a new party after
liability had been determined, the trial judge made comments about
Lennar Title and Doma Title of California, Inc., which both parties
relied upon to seek to disqualify the trial judge for cause.
On Jan. 4, 2022, after spending a year and a half to add Doma Title
to the litigation, class representatives provided notice they
intended to dismiss Doma Title without prejudice and have the trial
judge declare Doma Title's pending request for judicial
disqualification as moot. The class representatives noted Doma
Title was refusing to participate in discovery and intended to file
a demurrer to seek its dismissal from the action. On Jan. 25, 2022,
the other judge dismissed Doma Title from the action without
prejudice.
On July 28, 2022, Judge Randy Edwards denied the disqualification
motion of Doma Title without prejudice. The order explained the
motion to disqualify was made moot by the dismissal of Doma Title
from the action. Since the dismissal was without prejudice, the
denial of disqualification was likewise without prejudice should
Doma Title again become a party to the proceeding at a time
subsequent to the order.
Having resolved Doma Title's motions to disqualify, the class
representatives filed a status conference statement requesting the
trial judge enter judgment as soon as possible. On Aug. 18, 2022,
Lennar Title filed a verified statement to disqualify the trial
judge for cause on the grounds that (1) a person aware of the facts
might reasonably entertain a doubt that the judge would be able to
be impartial and (2) the judge has displayed bias or prejudice
toward a lawyer in the proceeding. Lennar Title relied on the same
comments as Doma Title, as well as statements in the trial judge's
answer to Doma Title's statement of disqualification for cause
explaining the comments were directed towards Lennar Title, not
Doma Title.
On Aug. 26, 2022, the trial judge issued the order striking Lennar
Title's statement of disqualification that is subject to review in
this petition. Lennar Title filed the instant petition for writ of
mandate with the Court of Appeals on Sept. 9, 2022. The oral
argument was held on April 20, 2023.
The Court of Appeals approaches this writ proceeding fully aware of
the nature and age of the case, as well as knowing the issuance of
the order to show cause and ultimate review of the writ caused
additional delay. With the enactment of section 170.3(d),
fundamental fairness is promoted by ensuring that the parties,
through a petition for a writ of mandate, receive as speedy an
appellate determination as possible. This process may not have been
as speedy as the Legislature envisioned but was nonetheless
necessary to assure that even the shadow of bias is kept out of our
courts.
Upon review, the Court of Appeals concludes that the trial judge
lacked authority to strike Lennar Title's statement of
disqualification. It determines that a statement of
disqualification for bias, prejudice, or appearance of impartiality
cannot be found to be impliedly waived as untimely under section
170.3, subdivision (b)(2). Additionally, it finds that the
Petitioner had never filed a prior statement of disqualification
and the statement was not insufficient on its face.
Finding the order striking the statement of disqualification flawed
in several respects, the Court of Appeals grants the writ and
orders the superior court to vacate the order striking the
statement of disqualification. As the statement of disqualification
was stricken seven days after it was served, the trial judge will
be provided three days from the date the statement of
disqualification is reinstated to respond before being deemed to
have consented to disqualification by operation of time.
A full-text copy of the Court's May 19, 2023 Opinion is available
at https://tinyurl.com/562hc2ss from Leagle.com.
Morgan, Lewis & Bockius, Thomas Peterson --
thomas.peterson@morganlewis.com -- Barbara J. Miller --
barbara.miller@morganlewis.com -- and John D. Hayashi --
john.hayashi@morganlewis.com -- for the Petitioners.
No appearance made for the Respondent.
Wagner Jones Kopfman & Artenian, Andrew B. Jones and Lawrence M.
Artenian -- lartenian@wagnerjones.com; Cornwell & Sample, Stephen
R. Cornwell and Rene' Turner Sample; Wanger Jones Helsley, Patrick
D. Toole -- ptoole@wjhattorneys.com -- for Real Party in Interest.
CALIFORNIA: Sued Over Mistreatment of Children in Foster Care
-------------------------------------------------------------
Beau Yarbrough, writing for The San Bernardino Sun, reports that
San Bernardino County is being sued over its treatment of foster
children.
A 68-page class action lawsuit was filed on Thursday, May 25, in
U.S. District Court in Riverside, on behalf of more than 5,800
children who are or will likely end up in foster care.
The suit was filed against the California Department of Social
Services, CDSS Director Kim Johnson, Gov. Gavin Newsom, San
Bernardino County, the county Board of Supervisors and Department
of Children and Family Services and CFS Director Jeany Zepeda. A
second class of plaintiffs consists of hundreds of children with
disabilities in the foster care system, whom the lawsuit claims
have been especially harmed by the foster care system.
"Workers in San Bernardino County can't possibly protect these
children because of their high caseloads, no matter how hard they
might try," Marcia Robinson Lowry, director of A Better Childhood,
the national nonprofit that brought the lawsuit, is quoted as
saying in a news release issued on May 25.
"This is an ingrained system that ignores the needs of these
children, and far too many children are suffering grievously
because of it," Lowry continued. "California should be doing far
better for its most vulnerable children. Neither the state nor the
county is stepping in to help these kids and reform is long
overdue."
San Bernardino County only learned of the lawsuit on May 25 and did
not immediately have a response, as officials were "still in the
process of reviewing and evaluating the complaint," according to
spokesperson Martha Guzman-Hertado. Jason Montiel, a spokesperson
for the California Department of Social Services, said the
department does not comment on ongoing litigation.
The May 25 lawsuit follows San Bernardino County settling a foster
child sexual abuse case for $7.8 million last September.
In December, the San Bernardino County grand jury issued a harsh
report that called the department "too broken to fix" and said the
entire system should be dismantled and replaced, arguing that
"foster children are put in danger in San Bernardino County."
According to the grand jury, the number of substantiated child
abuse among San Bernardino County's foster children has risen over
the last three years.
In its response to the grand jury report, the county said,
"Children and Family Services believes in the services that it
provides to the community."
The lawsuit mirrors many of the concerns raised by the grand jury.
According to the lawsuit, children in the care of the county
receive far worse care than the national average and the plaintiffs
are well aware of problems with the system.
The suit alleges that Children and Family Services fails to
adequately screen would-be foster parents or monitor children once
placed within them; does inadequate planning for how to handle each
case; does not have the ability to place children in short-term
emergency housing — leading to sometimes housing them in the
department's offices overnight; doesn't provide adequate healthcare
to children in their care; fails to protect them from mistreatment
while in foster care; doesn't get enough children into permanent
placements and does not provide effective services for children
with disabilities.
And all of this, according to the lawsuit, comes down to the
department having too few caseworkers juggling too many cases.
"High caseloads prevent CFS's caseworkers from adequately assessing
a child's safety or well-being, developing individualized case
plans, facilitating reunification services, placing children in
appropriate placements, or deciding when to petition to terminate
parental rights, all of which are required under state and federal
laws," the lawsuit reads in part. "Manageable caseloads can exist
only when an agency develops and maintains an adequately funded and
well-planned child welfare system that aggressively recruits,
trains, and retains caseworkers."
According to the lawsuit, both the Child Welfare League of America
and the Council on Accreditation recommend caseworkers have a
caseload of 12 to 15 children. But according to the 2022 grand jury
report, Children and Family Services caseworkers instead have
caseloads of 70 to 90 children each.
The lawsuit asks that the U.S. District Court require the county do
the following:
-- Align county caseworkers' caseloads with Child Welfare League
of America and the Council on Accreditation recommendations.
-- Recruit and retain enough qualified employees to properly
supervise children.
-- Provide an adequate individualized plan for all children
placed in CFS's care within 60 days.
-- Create a written plan for family reunification, adoption or
another permanent family-like setting.
-- Create a written plan for children whose cases include
special treatment, services or safety concerns.
-- Create adequate short-term emergency housing options so
foster children don't have to sleep in the department's offices.
-- Properly screen all prospective foster homes and conduct
in-home visits at least once a month, interviewing the foster
children separately from their foster parents.
The lawsuit also asks for "reasonable costs and expenses incurred
to litigate this action, including reasonable attorneys' fees."
[GN]
CHAMPION PETFOODS: Wins in Part Summary Judgment Bid in Rydman Suit
-------------------------------------------------------------------
In the case, HOLLY RYDMAN, individually and on behalf of a class of
similarly situated individuals, Plaintiff v. CHAMPION PETFOODS USA,
INC., et al., Defendants, Case No. C18-1578 TSZ (W.D. Wash.), Judge
Thomas S. Zilly of the U.S. District Court for the Western District
of Washington, Seattle:
a. denies the Plaintiff's motion for class certification; and
b. grants in part and denies in part the Defendants' motion
for summary judgment.
Rydman, a Washington resident, representing a putative class of
similarly situated individuals, claims that she was misled by
statements and omissions concerning dog food produced by Defendants
Champion Petfoods USA, Inc. and Champion Petfoods LP (together,
"Champion"). In her Second Amended Complaint ("SAC"), the Plaintiff
alleges that the dog food she purchased contained and/or had a
material risk of containing non-conforming ingredients and
contaminants, such as: (1) Heavy Metals; (2) non-fresh ingredients;
and (3) non-regional ingredients. As a result, the Plaintiff
contends the following statements found on Champion's packaging
were misleading: (1) "Biologically Appropriate"; and (2) "Fresh
Regional Ingredients."
The Plaintiff purchased Champion dog food between approximately
December 2014 and February 2018 from a local Washington pet store.
She purchased the following Champion dog food diets: ORIJEN Six
Fish, ACANA Singles Lamb & Apple, ACANA Singles Duck & Pear, ACANA
Singles Pork & Squash, ACANA Regionals Grasslands, ACANA Regionals
Meadowland, ACANA Regionals Wild Atlantic, ACANA Heritage Red Meat,
ACANA Heritage Free-Run Poultry, and ACANA Heritage Freshwater Fish
(collectively, the "Dog Food"). She makes no allegation that the
consumption of Champion's Dog Food by her dogs resulted in illness
or harm.
The Plaintiff's theory of the case is not that the alleged
inclusion of heavy metals, non-fresh ingredients, and/or
non-regional ingredients harmed her dogs. Rather, she contends that
she paid a premium price for the Dog Food because of Champion's
alleged misstatements and omissions. In support of her
"overpayment" claim, she offers expert testimony from Stefan
Boedeker, an economist and statistician, and Bruce Silverman, a
former marketing executive.
Boedeker's conjoint surveys attempted to quantify the economic
losses allegedly suffered as a result of the misstatements and
omissions at issue. Silverman has opined that, given the "Fresh"
and "Regional" packaging statements, reasonable consumers would not
expect non-fresh or non-regional ingredients to be in the Dog
Food.
As putative class representative, the Plaintiff seeks to certify 10
different classes, each correlated with one of the different kinds
of dog food that she bought. Champion opposes certification of any
class and also moves for summary judgment. Judge Zilly first
addresses Champion's motion for summary judgment. He then turns to
the Plaintiff's motion for class certification.
As to the motion for summary judgment, Judge Zilly (i) grants the
Defendants' motion for summary judgment as to the Plaintiff's CPA
claim premised on the phrase "Biologically Appropriate," because
the phrase "Biologically Appropriate" does not have the capacity to
deceive a substantial portion of the population; (ii) denies
Champion's motion for summary judgment as to Plaintiff's CPA claim
relating to the "Fresh" statements because the Plaintiff presents
enough evidence to create a factual dispute concerning whether
Champion's "Fresh" statements could mislead a reasonable consumer;
(iii) denies Champion's motion for summary judgment as to the
Plaintiff's CPA claim premised on any affirmative
misrepresentations about "Regional" ingredients; and (iv) grants
Champion's motion for summary judgment as to the Plaintiff's CPA
claim concerning the "heavy metals" omissions because the Plaintiff
does not contend that the levels of heavy metals in the Dog Food
present a risk of harm to any pet that ingests the products.
With respect to unjust enrichment, Judge Zilly says both parties
(and the Court) recognize that the Plaintiff's unjust enrichment
claim is intertwined with her CPA claim. The Plaintiff's CPA claim
survives in part, which in turn creates a basis for her unjust
enrichment claim. Champion's motion for summary judgment is granted
in part and denied in part as to the Plaintiff's unjust enrichment
claim, which is narrowed to be co-extensive with her CPA claim.
Lastly, Judge Zilly grants the Defendants' motion for summary
judgment as to the Plaintiff's claims for negligent
misrepresentation, fraudulent misrepresentation, and breach of
express warranty, and dismisses those claims with prejudice.
Turning to the Plaintiff's motion for class certification, Judge
Zilly says although the Plaintiff has attempted to draft around the
Ninth Circuit's decision in Reitman v. Champion Petfoods USA, Inc.,
830 F. App'x 880 (9th Cir. 2020), the reasoning of Reitman applies
with full force and effect to the ten classes that the Plaintiff
has proposed to certify. With respect to the "non-fresh" omissions
(regrinds and expired ingredients) theory, the Plaintiff has not
identified questions with "common answers," or shown that "common,
aggregation-enabling, issues" are more prevalent or important that
"non-common, aggregation-defeating, individual issues." She has not
satisfied Rule 23(b)(3)'s predominance requirement and, as a
result, the Plaintiff's motion to certify the ten proposed classes
is denied.
For the foregoing reasons, Judge Zilly denies the Plaintiff's
motion for class certification. He grants in part and denies in
part the Defendants' motion for summary judgment as follows:
(a) The Plaintiff's CPA (Count I) and unjust enrichment (Count
VII) claims are dismissed in part as to (i) affirmative
misrepresentation and omission theories relating to the phrases
Biologically Appropriate, Delivering Nutrients Naturally, Nourish
as Nature Intended, and Ingredients We Love From People We Trust,
and (ii) theories premised on regional/non-regional and heavy
metals omissions;
(b) The Plaintiff's CPA (Count I) and unjust enrichment (Count
VII) claims survive as to (i) affirmative misrepresentation
theories based on the Fresh and Regional packaging messages, and
(ii) the non-fresh omissions theory vis-a-vis Champion's inclusion
of regrinds and expired ingredients; and
(c) The Plaintiff's negligent misrepresentation (Count II),
fraudulent misrepresentation (Count III), and breach of express
warranty (Count V) claims are dismissed with prejudice.
The Clerk is directed to send a copy of the Order to all counsel of
record.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/bofye from Leagle.com.
CHOICE HEALTH: Faces Class Action Over Telemarketing Calls
----------------------------------------------------------
The Hollywood Gossip's Simon Delott, citing Us Weekly, reports that
a woman named Juanita Williams has filed a class-action lawsuit
against Choice Health Insurance and against Digital Media
Solutions.
This is new -- she filed earlier in May.
According to her, she has received numerous telemarketing calls
from these firms. The catch? She is listed on the national "Do Not
Call" registry.
Williams is seeking $1,500 per call.
Additionally, her filing includes an allegation that one of Choice
Health's calls in September of 2022, when she answered, transferred
her immediately to one of their insurance agents.
According to the lawsuit, the healthcare company informed her that
Digital Media Solutions had provided her number for them as a
prospective sales lead.
Ruelas launched Digital Media Solutions in 2012
This firm presents itself as a "leading provider of
technology-enabled digital performance advertising solutions" with
the aim of "connecting consumers and advertisers."
There are absolutely ad services that can benefit both the seller
and the consumer. But that doesn't mean that people are always
happy about these "connections." Obviously.
Digital Media Solutions lists Luis Ruelas as both cofounder and the
executive vice president of business development.
Luis has not publicly addressed the lawsuit. Neither has his wife,
Teresa Giudice.
Any legal case involving these two is likely to receive a lot of
scrutiny. But, we should emphasize that it does not involve Teresa
beyond the fact that it's her husband's company.
So, what is this all about? Is this a frivolous lawsuit from
someone who hates spam calls as much as the rest of us?
We do not claim to know the facts of the case.
However, if someone on the Do Not Call list received unwelcome
business solicitations anyway, then yeah, that could be a big deal.
And a costly mistake.
This is a federal law, and Congress ensured that Americans can sue
for statutory damages when companies make unsanctioned calls like
this.
If it's 100 calls, Luis and his company can probably eat the bill.
But depending upon the extent of the issue . . . it's possible that
the financial damages will be severe. $1,500 can add up pretty
quickly.
The majority of spam calls come from rogue, criminal operations
that have no intention of abiding by the Do Not Call list or any
other law. But if a legitimate business is doing this . . . they
may have to pay up. [GN]
CONSOLIDATED WORLD: Cost-Allocation Order in Bakov Suit Affirmed
----------------------------------------------------------------
In the case, ANGEL BAKOV, et al., Plaintiffs-Appellees v.
CONSOLIDATED WORLD TRAVEL, INC., Defendant-Appellant, Case No.
21-2653 (7th Cir.), the U.S. Court of Appeals for the Seventh
Circuit affirms the district court's cost-allocation order.
The case presents a narrow but important question about the
administration of class actions: what authority do district courts
have to impose the cost of class notice on a defendant that already
has been found liable to the class? The court in the case before
ruled that Consolidated World Travel, Inc. (CWT) had to bear those
costs.
The class asserts in this action that CWT violated the Telephone
Consumer Protection Act (TCPA) by calling class members using
prerecorded voice messages, a practice the law expressly prohibits.
Operating under a fictitious name, CWT employed a company called
Virtual Voice Technologies Pvt. Ltd. (VVT), which is based in
India, to call millions of people across the United States and
offer them "a free cruise simply to show you a great time." On
these calls, agents would communicate by using a soundboard, which
enabled them to choose among 47 prerecorded prompts. For every
customer who agreed to have their call transferred from VVT to CWT
and then stayed on the line for at least 60 seconds, CWT paid VVT a
$3.50 commission.
Relying on Federal Rule of Civil Procedure 23(b)(3), the Plaintiffs
initially moved to certify a nationwide class of people who had
received VVT's calls. On March 21, 2019, the district court granted
in part and denied in part the motion. It certified a class of
Illinois residents, but to the extent the motion asked for a
nationwide class, the court denied it. The judge took this step
based on his belief that the Supreme Court's decision in
Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S.
255 (2017), required a finding of no personal jurisdiction over CWT
for purposes of the claims of the proposed nonresident class
members. With that decision in hand, the Plaintiffs used two
third-party service providers to identify and send notice to the
28,239 Illinois class members. The Plaintiffs covered that cost.
About six months later, the parties submitted cross-motions for
summary judgment. The district court granted the class' motion on
the TCPA claim. It also determined that CWT's TCPA violations were
committed willfully or knowingly. That finding permitted an award
of anything from actual to treble damages.
Shortly after the liability determination, the Seventh Circuit
issue its opinion in Mussat v. IQVIA, Inc., holding that "the
principles announced in Bristol-Myers do not apply to the case of a
nationwide class action filed in federal court under a federal
statute. In those circumstances, the named representatives must be
able to demonstrate either general or specific personal
jurisdiction, but the unnamed class members are not required to do
so.
Mussat undercut the reason behind the district court's decision to
limit the class to Illinois, and so the court reopened that
question. It ultimately granted the Plaintiffs' motion to amend the
class-certification order; the revised order certified a nationwide
class, in keeping with the Plaintiffs' original request. It then
entered summary judgment in favor of the nationwide class for the
same reasons it had entered summary judgment in favor of the
Illinois class. At the same time, it determined that the new class
members were entitled to notice and an opportunity to opt out.
Following that decision, the court noted that it had "some
discretion" to shift notice costs to the defendant. It pointed to
the considerations laid out in Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340 (1978), and asked the parties for additional briefing
on the availability and location of class members, possible methods
of notifying them, the estimated cost, and who should pay that
cost.
The Plaintiffs proposed that the parties use the same method that
they had employed to identify and send notice to the Illinois class
members. They submitted documentation from third-party service
providers estimating that the total cost of identifying and sending
notice to the new members would be $602,838. CWT did not oppose the
Plaintiffs' plan, but it argued that cost-shifting was not
appropriate. In CWT's view, the Supreme Court's decisions in
Oppenheimer and Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974),
flatly precluded the district court from shifting costs to
defendants except in situations where such costs were nominal for
defendants.
The district court resolved this dispute in the Plaintiffs' favor,
through a minute order requiring CWT to bear the costs of providing
notice to the nationwide class. It explained that it was doing so
because CWT's liability already had been established through the
summary judgment order. It added that it was going to wait until
the final damages determination before deciding whether Plaintiffs
were also entitled to reimbursement of the costs of providing
notice to the Illinois class members.
Interestingly, CWT did not request that the Plaintiffs be required
to post a bond for the cost of notice to the nationwide class
members. It did, however, file a notice of appeal from this order.
It contended that the Supreme Court's decision in Eisen established
that an order allocating the cost of class notification to a
defendant is an immediately appealable "collateral order."
The Seventh Circuit agrees with CWT that these cases support its
appellate jurisdiction, and so it proceeds to the question at hand.
Seizing on language from Oppenheimer, CWT contends that it should
not be forced to pay class-notice costs as a penalty for
successfully arguing that the newly added class members should be
identified and notified of the class action. But, the Seventh
Circuit finds that there is nothing in the record to suggest that
the district court shifted costs to penalize CWT. It was obliged to
furnish notice to the new class members because of Rule
23(c)(2)(B), regardless of what CWT filed. The situation in
Oppenheimer was different -- there, the district court based its
decision to shift costs in part because it was the defendant's
opposition to a proposed redefinition of the class that
necessitated incurring the cost. Shifting costs in response to a
liability determination is another matter.
As a final note, the Seventh Circuit again emphasizes the unusual
way in which the case unfolded. In the mine run of cases, a
class-certification decision and class notice come before a
decision on the merits. Indeed, that is how this case initially
proceeded: the district court ruled on Plaintiffs' class
certification motion, ordered notice to the certified class, and
then ruled on the cross-motions for summary judgment. The standard
operating procedure was disrupted because the Seventh Circuit's
intervening decision in Mussat prompted the district court to
reconsider its initial denial of the Plaintiffs' motion to certify
a nationwide class. Nothing the Seventh Circuit said here would
justify a delay in the class-certification decision altogether in
the hopes of obtaining a merits ruling and a shift in costs.
As Rule 23(c)(1)(A) states, courts "must" rule on class
certification at an early practicable time after a person sues or
is sued as a class representative. This case is different precisely
because the court properly ruled on class certification, found a
class, and proceeded to the merits. When the law changed, it was
entitled to revisit the scope of the certified class, and that is
what it did.
The Seventh Circuit concludes that the district court's
cost-allocation order did not represent an abuse of discretion, and
so it affirms the order.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/y5yhzbk4 from Leagle.com.
COUNTRY FAIR: Standing Order Reversed; Budai FACTA Suit Dismissed
-----------------------------------------------------------------
In the case, JORDAN BUDAI, ANDREA SCIOLA, AND ASHLEY GENNOCK,
INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED v.
COUNTRY FAIR, INC., Appellant, Case No. 461 WDA 2022 (Pa. Super.),
Judge Mary Jane Bowes of the Superior Court of Pennsylvania
reverses the order entered on Aug. 20, 2020, determining that the
Plaintiffs had standing to assert a cause of action based on
Country Fair's violation of the federal Fair and Accurate Credit
Transactions Act, and dismisses the Plaintiffs' complaint.
Congress enacted FACTA in 2003, as an amendment to the Fair Credit
Reporting Act, to prevent identity theft. To achieve this, FACTA
requires, in relevant part, that debit and credit card numbers be
truncated on printed receipts. FACTA provides that any person who
is negligent in failing to comply with any requirement imposed
under this subchapter with respect to any consumer is liable to
that consumer in an amount equal to the sum of (1) any actual
damages sustained by the consumer because of the failure" as well
as (2) the costs and attorney fees for the successful action. To
remedy willful violations, FACTA provides for actual damages or
statutory damages, plus punitive damages, and attorneys' fees.
Between July 28 and July 30, 2017, the Plaintiffs patronized
Country Fair retail stores and made purchases with their debit or
credit cards. Each time they received a paper receipt, it displayed
the first four and the last four digits of the credit or debit
cards used for payment.
The Plaintiffs filed a class action federal suit against Country
Fair, alleging that Country Fair had willfully violated FACTA. They
claim that storing the offending receipts to prevent identity theft
by a third party who might happen across the discarded receipts was
burdensome. The District Court, applying the holding in Kamal v. J.
Crew Grp., Inc., 918 F.3d 102, 106 (3d Cir. 2019), that a bare
procedural violation does not create Article III standing,
dismissed the Plaintiffs' complaint.
Thereafter, the Plaintiffs transferred the complaint to state court
pursuant to 42 Pa.C.S. Section 5103. Country Fair filed preliminary
objections alleging that the Plaintiffs lacked standing and failed
to allege facts sufficient to establish a willful violation of
FACTA. The trial court concluded that the Plaintiffs had statutory
standing under FACTA, such that they did not need to invoke the
traditional principles of standing under Pennsylvania law, and that
they had sufficiently averred a willful violation of FACTA.
Country Fair filed a motion for reconsideration, which the trial
court granted. Upon second review, the court once again overruled
Country Fair's preliminary objections, but this time for different
reasons. To wit, the trial court reversed its earlier decision,
holding instead that FACTA did not confer statutory standing. It
further concluded that the Third Circuit's holding in Kamal
regarding Article III standing in FACTA cases was not compelling
since Pennsylvania does not adhere to Article III's concrete-injury
requirement. Rather, applying Pennsylvania's traditional standing
principles to the above facts, the trial court concluded that the
Plaintiffs had standing.
This timely appeal followed. Country Fair presents the following
issues for the Superior Court's consideration:
1. Whether the Plaintiffs -- whose one-count complaint
alleging a technical violation of FACTA, was dismissed by the
United States District Court for the Western District of
Pennsylvania for lack of standing -- have standing to pursue that
claim under Pennsylvania law?
2. Whether Pennsylvania law allows the Plaintiffs to obtain a
different result in their federal claim and survive dismissal by
walking across the street from federal court to state court?
Country Fair argues that Congress never created a statutory right
to sue in state court based on a technical violation of FACTA that
does not implicate any harm and that the Plaintiffs cannot satisfy
Pennsylvania's traditional tripartite test because they have not
suffered a concrete injury that is actual or imminent. The
Plaintiffs, on the other hand, allege that the trial court
correctly concluded they had established standing pursuant to
Pennsylvania law. If the Court is not so inclined, they urge it to
affirm based upon the trial court's conclusion that they satisfied
Pennsylvania's traditional three-part test for standing.
Judge Bowes disagrees with the Plaintiffs' contention that FACTA
conferred upon them statutory standing. She says while FACTA
includes liability provisions that create private rights of action,
there is no standing provision that expressly prescribes the
parties who may pursue a FACTA action in Pennsylvania courts. As
FACTA contains no standing provision, Plaintiffs may not invoke
statutory standing to pursue their action in state court. Lacking
statutory standing, Pennsylvania's traditional standing doctrine
applies.
In conclusion, Judge Bowes holds that the core concept of standing
doctrine has not been satisfied and the trial court erred in
overruling Country Fair's preliminary objection as to standing.
Since she concludes that the Plaintiffs lack standing under
Pennsylvania law, she reverses the order overruling Country Fair's
preliminary objection and dismisses the complaint. In light of her
disposition, Judge Bowes declines to address Country Fair's second
issue concerning the resurrection of the Plaintiffs' federal claim
in state court as any purported holding would be purely advisory.
Judgment is entered.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/3gp8m from Leagle.com.
CROSS-LINES RETIREMENT: Bid to Exclude White Testimony Partly OK'd
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In the class action lawsuit captioned as DONALD COE, LINDA SMITH,
and EDWARD YOST, Individually and on behalf of all others similarly
situated, v. CROSS-LINES RETIREMENT CENTER, INC., and YOUNG
MANAGEMENT CORP., Case No. 2:22-cv-02047-EFM-ADM (D. Kan.), the
Hon. Judge Eric F. Melgren entered an order granting in part and
denying in part the Defendants' motion to exclude the opinions and
testimony of Jeffrey White.
The Court further ordered that the Plaintiffs' motion to exclude
the opinions and testimony and David Poplin is granted in part and
denied in part.
The Plaintiffs contend that Poplin's opinions on the appropriate
standard of care, apartment preparation, White's methodology and
opinion, and the migration patterns of bed bugs are unreliable. the
Plaintiffs frame most of their arguments as attacking Poplin's
methodology. In doing so, they rely on White's expert testimony,
his academic sources, and the National Pest Management
Association's standards to show Poplin's conclusions are
"unreliable."
The Plaintiffs challenge the Defendants' expert, David Poplin on
multiple grounds.
First, they claim that his lack of formal education or experience
with "multi-unit, low-income, elderly and disabled residential
housing" within the last five years renders him unqualified to give
an opinion as to how to treat Cross-Lines' units or the appropriate
standard of care.
Second, the Plaintiffs' consider his testimony regarding the impact
of the COVID pandemic on the pest extermination industry to be
unreliable and unhelpful to a jury.
Third, the Plaintiffs contend that Poplin's failure to review any
of the treatment records before his inspection in December 2022
makes him unqualified to testify about Cross-Lines' condition at
any other time within the proposed class period. Finally, the
Plaintiffs raise a bevy of arguments relevant to the weight of
Poplin's testimony yet irrelevant to its admissibility.
Before the Court are competing Motions to Exclude Expert from the
parties each seeking to exclude the other's expert witness. First,
the Defendants Cross-Lines Retirement Center, Inc. and Young
Management Corp. seek to exclude the testimony of the Plaintiffs’
expert Jeffrey White. For their part, the Plaintiffs Donald Coe,
Linda Smith, and Edward Yost move to exclude the Defendants' expert
witness, David Poplin.
Each of the named the Plaintiffs, two septuagenarians and one
octogenarian, rent residential apartments in apartment complexes
owned by Cross-Lines and operated by Young, Cross-Lines'property
manager. Cross-Lines is a nonprofit corporation, with its mission
statement having as its goal the provision of rental housing to
elderly families and individuals. Because of its nonprofit status,
Cross-Lines receives federal subsidies to purportedly allow it to
offer lower rent. The facts underlying the Plaintiffs' claims are
fairly sstraightforward.
Cross-Lines is a retirement community.
A copy of the Court's order dated May 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3MGhDlH at no extra charge.[CC]
DARCARS OF RAILROAD: Gaska Class Suit Remanded to State Court
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In the case, ARKADIUSZ JOSEF GASKA and KATARZYNA GASKA,
individually and on behalf of a class of others similarly situated,
Plaintiffs v. DARCARS OF RAILROAD AVENUE, INC., Defendant, Case No.
3:22-cv-1201-MPS (D. Conn.), Judge Michael P. Shea in the U.S.
District Court for the District of Connecticut grants the
Plaintiffs' motion to remand, denies all other pending motions, and
remand the case to state court.
Plaintiffs Arkadiusz Josef Gaska and Katarzyna Gaska bring the
action against DARCARS on behalf of themselves and others similarly
situated who purchased a motor vehicle from the Defendant and who
have either paid a 'commission' that was added on to the sales
price of the vehicle, have paid more than the price advertised by
DARCARS for the vehicle that they purchased, or both. The Gaskas
allege that these sales and advertising practices violated the
Connecticut Unfair Trade Practices Act ("CUTPA").
DARCARS is a Connecticut corporation with a principal place of
business in Connecticut that does business as DARCARS Lexus of
Greenwich and sells motor vehicles. The Gaskas are both citizens of
Connecticut who together purchased a vehicle from DARCARS and were
harmed by DARCARS's sales and advertising practices.
The Gaskas allege that DARCARS has a business practice of adding a
commission of approximately 2% to the price of new and used
vehicles sold on a retail basis. They claim that DARCARS sells
vehicles for more than the advertised price.
The Gaskas assert that DARCARS has treated other customers
similarly and bring class claims on behalf of two classes.
The commission class ("Commission Class") consists of people who
"during the period commencing three years prior to the commencement
of this action and continuing until such time as there is an order
certifying this case as a class action purchased a new or used
motor vehicle from DARCARS" and "DARCARS charged them a Commission
in addition to the Price of Vehicle as reflected in the Purchase
Order."
The advertised price class ("Advertised Price Class") consists of
people who "during the period commencing three years prior to the
commencement of this action and continuing until such time as there
is an order certifying this case as a class action purchased a new
or used motor vehicle from DARCARS" where "DARCARS had advertised
the vehicle on its website or on a third-party website for a
specific price (the 'Advertised Price')" and "the Price of Vehicle
charged to them as reflected in the Purchase Order was greater than
the Advertised Price."
The Gaskas claim that DARCARS is liable to them and the Commission
Class for their damages in the amount of the Commission plus the
additional sales tax and finance charges attributable to the
Commission and in the discretion of the Court, for punitive damages
and attorney's fees. For the Gaskas and members of the Advertised
Price Class, DARCARS is liable for damages "in the amount of the
difference between the Advertised Price and the Price of Vehicle as
reflected in the Purchase Orders, plus the additional sales tax and
finance charges attributable to the amounts that they were
overcharged" and, in the court's discretion, punitive damages and
attorney's fees. The actual damages claimed by the Gaskas on behalf
of themselves and putative class members are more than $15,000.
Before filing the lawsuit, the Gaskas sought to arbitrate their
individual claims and claimed $10,000 in punitive damages.
DARCARS removed the action to federal court, claiming that Judge
Shea has jurisdiction over the Gaskas' claims under the Class
Action Fairness Act ("CAFA"), codified at 28 U.S.C. Section
1332(d). The Gaskas have moved to remand the case to state court or
in the alternative, for leave to conduct jurisdictional discovery
to establish whether remand is required. DARCARS opposes both
motions and has instead moved to compel arbitration and stay the
case pending the conclusion of the arbitral process.
Judge Shea first decides the motion to remand, which, at least in
part, concerns his subject-matter jurisdiction over the case,
before considering DARCARS's motion to compel arbitration. The
Gaskas argue that Judge Shea does not have subject-matter
jurisdiction to hear the case and so must remand it to state court
because DARCARS has not alleged class damages that can plausibly be
alleged to exceed $5 million as required by CAFA, and,
alternatively, that the local-controversy exception to jurisdiction
under CAFA is met.
Judge Shea concludes that the case should be remanded under CAFA's
discretionary exception because doing so is in the interests of
justice. He finds that (i) DARCARS has established CAFA's
jurisdictional amount by a preponderance of the evidence; (ii)
fewer than two-thirds of the class are citizens of Connecticut, and
thus that the local controversy exception does not apply; (iii) the
remaining proposed discovery questions ask for information about
potential damages that is unnecessary to establish CAFA's
jurisdictional amount because that amount can be established by
extrapolating the Gaskas' claimed individual damages to the
proposed class; and (iv) it is in the interests of justice to
remand the case to state court under 28 U.S.C. Section 1332(d)(3).
Because he finds that exercising jurisdiction over the case is not
in the interests of justice, Judge Shea denies DARCARS's motion to
compel arbitration and stay the case without prejudice to DARCARS's
raising that issue in state court.
For these reasons, Judge Shea grants the motion to remand, and
denies the motion for leave to conduct discovery and the motions to
compel arbitration and stay the action.
A full-text copy of the Court's May 17, 2023 Ruling is available at
https://rb.gy/lrhq2 from Leagle.com.
DELAWARE COUNTY, PA: Dismissal of School Districts' Suit Affirmed
-----------------------------------------------------------------
In the case, Chester Upland School District and Chichester School
District, Appellants v. Delaware County Board of Assessment Appeals
and City of Chester, Case No. 171 C.D. 2022 (Pa. Cmmw.), Judge Anne
E. Covey of the Commonwealth Court of Pennsylvania affirms the
Delaware County Common Pleas Court's Jan. 12, 2022 order.
The Chester Upland School District and Chichester School District
appeal from the trial court's Jan. 12, 2022 Order sustaining the
Board's preliminary objections and dismissing the School Districts'
complaint seeking declaratory relief to revoke real estate tax
exemptions for several properties in their districts.
There are three issues for the Court's review: whether the trial
court erred or committed legal error by ruling that the Declaratory
Complaint should be dismissed with prejudice (1) for lack of
subject matter jurisdiction; (2) due to the principles of res
judicata and/or collateral estoppel; and (3) for failure to conform
to law and/or failure to state a claim upon which relief can be
granted.
On Jan. 21, 2021, the School Districts, which are two County school
districts, filed the Declaratory Complaint in the trial court,
averring therein that they had appealed to the Board seeking to
revoke the real estate tax exemptions granted for several
properties in their respective districts following a countywide
assessment revision conducted pursuant to the Consolidated County
Assessment Law. Therein, the School Districts alleged that in each
Exemption Appeal, the Board provided written notice by First Class
Mail to the respective property owner(s) and to the respective
School Districts that a hearing would be held. The School Districts
further averred that the Board conducted separate hearings on each
of their respective Exemption Appeals at which their counsel
appeared, but neither the property owner(s) nor their
representatives attended to demonstrate that the subject properties
were entitled to the exemptions, and at each hearing, the School
Districts' counsel requested that, in the absence of property owner
challenges, the tax exemptions for the subject properties should be
revoked. The School Districts declared that the Board ultimately
denied the School Districts' requests and declined to revoke the
real estate tax exemptions for the 127 properties listed in
Declaratory Complaint Exhibit A.
The School Districts' Declaratory Complaint consisted of two
counts. In Count I, the School Districts sought to obtain a
judicial determination pursuant to the Declaratory Judgments Act
that the Board employed the incorrect legal standard in declining
to revoke the subject properties' exemptions and, therefore, the
trial court should direct the Board to revoke those exemptions. In
Count II, the School Districts attempted to initiate a class action
against the Board and the City of Chester in the City's capacity
individually and as a representative of the class of all referenced
property owners.
On March 1, 2021, the Board filed the Preliminary Objections to the
Declaratory Complaint. Therein, the Board averred that on Dec. 9,
2020, under a separate trial court number, the School Districts
filed a complaint in mandamus and an emergency motion for
peremptory judgment in mandamus, wherein the School Districts
sought a ruling that the Board impermissibly refused to revoke the
real estate tax exemptions when the property owners did not appear
at the hearing and, thus, failed to prove entitlement to the real
estate tax exemption. The Board further stated that on Dec. 15,
2020, the trial court held a hearing on the Emergency Motion,
during which the School Districts and the Board reached an
agreement in open court; the trial court entered an order on Dec.
18, 2020, affording the School Districts until Jan. 31, 2021, to
appeal to the trial court from the Board's determinations in the
Exemption Appeals; and, on Jan. 5, 2021, the trial court dismissed
the School Districts' Emergency Motion.
In its Preliminary Objections, the Board asserted: (1) the trial
court lacked subject matter jurisdiction; (2) the School Districts'
claims are barred by res judicata and collateral estoppel; and (3)
the Declaratory Complaint failed to conform to law/failed to state
a claim upon which relief can be granted. The trial court sustained
the Preliminary Objections and dismissed the Declaratory Complaint
with prejudice.
On March 16, 2022, the trial court issued its opinion pursuant to
Pennsylvania Rule of Appellate Procedure (Rule) 1925(a). Regarding
the Board's first Preliminary Objection -- that the trial court
lacked subject matter jurisdiction because the School Districts
failed to exhaust their administrative remedies -- the trial court
stated that the School Districts are attempting to bypass the
individual appeals process. It sustained the Board's second
Preliminary Objection -- the School Districts' action was barred by
res judicata and collateral estoppel -- because the trial court
previously decided the matters at issue in its Mandamus Case
disposition.
Finally, the trial court sustained the Board's third Preliminary
Objection -- that the Declaratory Complaint failed to conform to
law/failed to state a claim upon which relief can be granted
—--reasoning that because the Assessment Law provides a process
for the School Districts to adequately obtain the relief they seek,
the proposed class action lawsuit is improper.
Additionally, the School Districts named the City as a defendant in
conjunction with their request that the trial court certifies the
Declaratory Case as a class action and appoints the City as class
representative to represent the class of property owners listed in
Exhibit A to the Declaratory Compliant. However, the City is also a
taxing district and, as a taxing district, the City has a vested
pecuniary interest in the assessment of every property located
within its geographic boundaries. The inherent conflict between the
City and the interests of the property owners within its boundaries
prohibits class certification.
The School Districts appealed to this Court. They first argue that
the trial court erred by sustaining the Board's first Preliminary
Objection that the trial court lacked subject matter jurisdiction
because the School Districts had not exhausted their
administrative/statutory remedies. They contend that they exhausted
their administrative remedies, and further claim, that the relief
they requested is permissible under the Declaratory Judgments Act.
Judge Covey opines that a party may not seek judicial resolution of
a dispute until he or she has exhausted available statutory or
administrative remedies. In Martel v. Allegheny Cnty., 216 A.3d
1165, 1172 (Pa. Cmwlth. 2019), the Court held that if a party fails
to pursue a statutory remedy, the court is without power to act
until the statutory remedies have been exhausted, even in cases
where a constitutional question is presented.
Contrary to the School Districts' contention, Judge Covey finds
that Martel does not stand for the proposition that because the
School Districts commenced the appeals process under the Assessment
Law and appealed from the Board's decision to the trial court, they
may also file an action in the trial court's equitable jurisdiction
seeking declaratory relief. Rather, the School Districts may seek
equitable relief in their statutory appeals to the trial court from
the Exemption Appeals. In the Exemption Appeals, the Assessment Law
permitted the School Districts to appeal from each Board
determination to the trial court, and the School Districts did so.
The statutory remedy includes an appeal from the Board to the trial
court and is not exhausted until it is complete.
The School Districts filed the instant Declaratory Case in the
trial court seeking equity jurisdiction, contending, inter alia,
that the Board's misapplication of the relevant burden violates
their due process rights. As in Martel, Judge Covey opines that the
School Districts' constitutional challenge applies to the Board's
application of the Assessment Law and, thus, it does not meet the
requisite Beattie standard by raising a "substantial question of
constitutionality." Accordingly, the trial court properly sustained
the Board's first Preliminary Objection for lack of subject matter
jurisdiction.
For all of these reasons, the Delaware County Common Pleas Court's
Jan. 12, 2022 Order is affirmed.
Judge Fizzano Cannon did not participate in the decision in the
matter.
A full-text copy of the Court's May 17, 2023 Opinion is available
at https://rb.gy/qciam from Leagle.com.
DIRECT RECOVERY: Default Judgment Issued in Rankin Suit as Sanction
-------------------------------------------------------------------
In the case, BRUCE RANKIN, On behalf of himself and others
similarly situated, Plaintiff v. DIRECT RECOVERY SERVICES, LLC, and
DNF ASSOCIATES, LLC, Defendants, Civil File No. 21-1560 (MJD/LIB)
(D. Minn.), Judge Michael J. Davis of the U.S. District Court for
the District of Minnesota:
a. adopts the Report and Recommendation by Magistrate Judge
Leo I. Brisbois, dated April 7, 2023; and
b. directs the parties to mediation and to begin prosecuting
the case.
The matter is before the Court on the Report and Recommendation by
Judge Brisbois. The R&R recommends that Direct Recovery be found in
contempt of court for failing to obtain legal counsel to formally
appear on its behalf to negotiate settlement and, if unsuccessful,
to file a responsive pleading to the Amended Complaint, and that an
entry of default judgment be entered against Direct Recovery as a
sanction for this contempt.
The lawsuit is a putative class action brought pursuant to the
Telephone Consumer Protection Act, 47 U.S.C. Section 227 ("TCPA").
The action is also brought as an individual claim pursuant to the
Fair Debt Collection Practices Act ("the FDCPA").
Rankin alleges that to collect on an unpaid balance on his
brother's Celtic Bank Indigo Mastercard, Direct Recovery placed
robocalls to his cellphone. He states that these calls to his
cellphone and the cellphones of other class members caused them
aggravation and unwanted payments to cellphone carriers for receipt
of these calls. He alleges that these calls also invaded his and
class members' privacy, were an intrusion upon seclusion, caused
diminished cellular battery life, and wasted data storage
capacity.
The Amended Complaint asserts class allegations on behalf of two
putative classes: The No Consent Class and The "Stop Calling"
Subclass. It bases liability on, and seeks statutory and injunctive
relief for, violations of the TCPA on behalf of Class Members and
Rankin. It also seeks liability for violations of the FDCPA on
behalf of Rankin. For this violation, Rankin seeks statutory
damages, actual damages, attorneys' fees and costs, and other
relief.
Prior to August 2020, Matthew Rankin, Rankin's brother, incurred a
consumer debt on a Celtic Bank Indigo Mastercard. DNF, a debt
collector, hired Direct Recovery to collect the debt.
During 2020 and 2021, Rankin alleges that Direct Recovery called
him to attempt to collect his brother's debt without prior consent
even though Rankin is not responsible for the debt. The Amended
Complaint alleges 9 phone calls between Rankin and Direct Recovery.
Rankin called Direct Recovery twice, once being a callback in
response to a "dead air" robo call.
On March 27, 2022, Rankin filed an Application for Default with the
Court and the Clerk of Court filed an Entry of Default against
Direct Recovery on March 29, 2022. On May 10, 2022, Rankin filed a
Motion for Default Judgment against Direct Recovery. On June 1,
2022, the Parties stipulated to dismissal of all claims against
Defendant Celtic Bank with prejudice and Celtic Bank was dismissed
as a party. On June 6, 2022, Rankin filed an Amended Complaint,
which differed from the original complaint only by substituting DNF
for Celtic Bank. On Aug. 8, 2022, the Court denied Rankin's Motion
for Default Judgment without prejudice and ordered the Parties to
work toward settlement. On Oct. 17, 2022, the Court appointed James
M. Rosenbaum as Special Master in this case and ordered the Parties
to contact Special Master Rosenbaum as soon as possible to schedule
a mediation session.
After multiple opportunities to note appearance of counsel in the
Record and failing to do so, Judge Brisbois filed the R&R
recommending the Court finds Direct Recovery in contempt and that
the Court issues default judgment against Direct Recovery as a
sanction for its noncompliance with Court orders. Direct Recovery
did not file objections to the R&R. DNF filed objections.
First, on April 21, 2023, DNF filed objections to the R&R. Rankin
had until May 5, 2023 to file a response to DNF's objections but
failed to do so. Therefore, the Court assumes Rankin does not
object to DNF's proposed resolution of the issues raised by its
objections.
DNF agrees that the Court should find Direct Recovery in contempt
and enter default judgment against Direct Recovery but has concerns
regarding entry of default judgment against Direct Recovery at this
time because an early entry of judgment could have ramifications
for DNF since Rankin asserts DNF is jointly and severally liable
for Direct Recovery's alleged conduct, allegations DNF denies.
Therefore, DNF requests that entry of default be held in abeyance
until the case is concluded as to DNF.
Judge Davis finds that (1) Direct Recovery and DNF are alleged to
be jointly and severally liable; (2) the rights (or at least
liabilities) of DNF are alleged to arise from the actions of Direct
Recovery; and (3) no separate legal process will be applied to the
Defendants' cases. Thus, he holds that any judgment DNF receives
will accrue to Direct Recovery.
Judge Davis also agrees that if, for some reason, Rankin asserts
that DNF is vicariously liable for Direct Recovery's actions, this
would further support his decision to hold entry of default
judgment in abeyance.
Unless the Parties are conducting discovery without Court
involvement, the only real work that has been done on the case
since it was filed has been dismissing Celtic Bank as a defendant
and filing the Amended Complaint naming DNF as a defendant. Other
than that, almost all docket entries pertain to getting Direct
Recovery to obtain counsel and/or comply with Court orders. DNF has
now appeared in the action and filed its Answer and Judge Davis
resolves the final motion that was pending at the time Rankin filed
his letter. Accordingly, he says it is time to move the case
forward. To that end, he notes that the Parties have not contacted
Special Master Rosenbaum to schedule a mediation despite being
ordered to do so on Oct. 17, 2022.
For these reasons, Judge Davis adopts the R&R with the following
modification:
(a) He adopts the R&R as to a finding of contempt against
Direct Recovery;
(b) He adopts the R&R as to a finding that entry of default
judgment is the appropriate sanction for Direct Recovery's
contempt; and
(c) He modifies the R&R by holding entry of default judgment
against Direct Recovery in abeyance until resolution of the case on
the merits.
Within one week of entry of the Order, the Parties must contact
Special Master Rosenbaum to schedule a private mediation.
Within two weeks of entry of the Order, they must submit a joint
Rule 26(f) Report to Judge Brisbois and contact his chambers to
schedule a Rule 16 Scheduling Conference.
A full-text copy of the Court's May 23, 2023 Order is available at
https://tinyurl.com/4evsuxa2 from Leagle.com.
Adam Strauss & Benjamin William Tarshish, Tarshish Cody, PLC; Amy
L. Wells, Wells Law Office, Inc.; James A. Francis --
jfrancis@consumerlawfirm.com -- & Lauren K.W. Brennan --
lbrennan@consumerlawfirm.com -- Francis Mailman Soumilas, P.C.,
Counsel for the Plaintiff.
No appearance on behalf of Defendant Direct Recovery Services,
LLC.
Brendan H. Little -- BLITTLE@LIPPES.COM -- Lippes Mathias LLP,
Kiralyn Locke -- pnewman@bassford.com -- and Patrick D Newman --
pnewman@bassford.com -- Bassford Remele, PA, on behalf of Defendant
DNF Associates, LLC.
DISH NETWORK: Fuentes' Bid to Remand to Alameda Super. Court Denied
-------------------------------------------------------------------
Judge Jeffrey S. White of the U.S. District Court for the Northern
District of California denies Fuentes' motion to remand the case,
NARCISO FUENTES, Plaintiff v. DISH NETWORK L.L.C., Defendant, Case
No. 16-cv-02001-JSW (N.D. Cal.), to the Superior Court of the State
of California for the County of Alameda.
On March 7, 2016, Fuentes filed a complaint in the California
Superior Court for the County of Alameda, asserting putative class
claims against Dish for alleged violations of California's Home
Solicitation Sales Act (the "HSSA claim"), Civil Code section 1632
(the "CTA claim"), the Consumer Legal Remedies Act (the "CLRA
claim"), and the Unfair Competition Law ("UCL claim"). Dish removed
the case to this Court on the basis that the Court had jurisdiction
under the Class Action Fairness Act. This motion is Fuentes' first
motion to remand.
During this litigation, the Court resolved a motion to compel
arbitration, motions to dismiss, Fuentes' motion for class
certification, and the parties' motions for summary judgment. The
Court denied the motion for class certification. It concluded Dish
was entitled to summary judgment on Fuentes' CTA claim, the CLRA
claim, in part, and the UCL claim, in part. It concluded Fuentes
was entitled to summary judgment on his claim for alleged
violations of the HSSA and the CLRA claim, and the UCL claim to the
extent those claims depended on his HSSA claim.
The parties agreed to enter a stipulated judgment, under which
Fuentes will recover damages in the amount of $2,590. Therefore,
the only other relief available is Fuentes' request for public
injunctive on the UCL and CLRA claims. However, Fuentes terminated
his Dish subscription in August 2017, has not subscribed since that
time, and does not intend to subscribe to Dish in the future.
Judge White explains that standing is not dispensed in gross and a
plaintiff must have standing for each form of relief they seek. The
parties agree that Fuentes lacks standing to pursue injunctive
relief. Fuentes argues that requires the Court to remand the case
for lack of jurisdiction. Dish argues that because the Court has
ruled on the question of liability on each of his claims, there are
no unadjudicated claims to remand.
Judge White agrees with Dish. Citing Vaughn v. Tesla, Inc., 87 Cal.
App. 5th 208, 236-237 (2023), he says that a public injunction is
sought by an aggrieved person in an action filed on his or her own
behalf, not on behalf of the public, even though the primary
purpose and effect of the relief is to prohibit and enjoin conduct
that is injurious to the general public. A public injunction is a
unitary remedy that cannot be divided into 'individual' and
'representative' components.
Accordingly, Fuentes' motion to remand is denied. The parties will
file a stipulated judgment.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/uh342 from Leagle.com.
DST SYSTEMS: Loses Bid to Stay Injunction in Highfill Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as KELLY HIGHFILL, v. DST
Systems, Inc., Case No. 4:21-09046-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 8, 2023, is available from
PacerMonitor.com at https://bit.ly/42RwEru at no extra charge.[CC]
DST SYSTEMS: Loses Bid to Stay Injunction in Horan Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as Horan v. DST Systems Inc.,
Case No. 4:21-cv-09120 (W.D. Mo., Filed Oct 19, 2021), 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 8, 2023, is available from
PacerMonitor.com at https://bit.ly/3O49OZD at no extra charge.[CC]
DST SYSTEMS: Loses Bid to Stay Injunction in Hursh Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as THERESA HURSH, v. DST
SYSTEMS, INC., Case No. 4:21-09017-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 8, 2023, is available from
PacerMonitor.com at https://bit.ly/3Br34NS at no extra charge.[CC]
DST SYSTEMS: Loses Bid to Stay Injunction in Kane Class Suit
------------------------------------------------------------
In the class action lawsuit captioned as Kane v. DST Systems Inc.,
Case No. 4:21-cv-09137 (W.D. Mo., Filed Oct 20, 2021), 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 8, 2023, is available from
PacerMonitor.com at https://bit.ly/42ACaip at no extra charge.[CC]
DST SYSTEMS: Loses Bid to Stay Injunction in Larson Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as Larson v. DST Systems
Inc., Case No. 4:21-cv-09137 (W.D. Mo., Filed Oct 20, 2021), 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 8, 2023, is available from
PacerMonitor.com at https://bit.ly/41upDff at no extra charge.[CC]
ELI LILLY: Settles Insulin Overpricing Class Action for $13.5M
--------------------------------------------------------------
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.
About Hagens Berman
Hagens Berman -- http://www.hbsslaw.com-- 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. [GN]
ET PROPERTY: Fails to Pay Proper Wages, Castro Suit Alleges
-----------------------------------------------------------
CARLOS CASTRO, individually and on behalf of all others
similarly-situated, Plaintiff v. ET PROPERTY MANAGEMENT, INC.; ET
GENERAL CONSTRUCTION, INC.; ETBK REAL ESTATE CORP.; and EDWARD
TORRES, Defendants, Case No. 1:23-cv-03953 (E.D.N.Y., May 26, 2023)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Castro was employed by the Defendants as a handyman and
helper.
E.T. Property Management is a full-service property management
company whose goal is to deliver superior management for owners in
NYC. [BN]
The Plaintiff is represented by:
Lauren R. Reznick, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
FASTENAL CO: Bid to Dismiss Petrosino Suit Over Unpaid Wages Denied
-------------------------------------------------------------------
In the case, JONATHAN PETROSINO, individually and on behalf of all
others similarly situated, Plaintiff v. FASTENAL COMPANY,
Defendant, Case No. 1:22-CV-705 (MAD/DJS) (N.D.N.Y.), Judge Mae A.
D'Agostino of the U.S. District Court for the Northern District of
New York denies the Defendant's motion to dismiss for failure to
state a claim and for lack of subject matter jurisdiction.
On July 1, 2022, Petrosino commenced the class action against the
Defendant asserting violations of New York Labor Law ("NYLL"), Art.
6 Section 191. Specifically, he claims that the Defendant failed to
pay him and similarly situated manual workers timely wages, by
paying them every other week rather than weekly, and without a New
York State Department of Labor express authorization to do so.
The Defendant is a company headquartered in Minnesota with its
principal place of business in Winona, Minnesota. The Plaintiff is
a Florida resident, and was employed at the Defendant's location in
Schenectady, New York from 2016 to 2017.
The Plaintiff defines the proposed class: as all persons employed
by Defendant in the State of New York over the last six years who
(1) earned nine hundred dollars a week or less; and/or (2) did not
have the authority to hire and fire other employees (the Class).
Members of the Class include, but are not limited to persons
employed by Defendant in the following capacities: warehouse
associate, supply chain associate, shipping, customer site
warehouse support, receiving lead, manufacturing lead/coordinator.
Persons employed in each of these capacities were required to spend
more than 25% of their time engaged in physical labor.
The Plaintiff alleges that he and similarly situated current and
former manual workers are entitled to liquidated damages, interest,
and attorney's fees.
On Oct. 21, 2022, the Defendant filed a motion to dismiss for
failure to state a claim and for lack of subject matter
jurisdiction. It argues that (1) the Court does not have subject
matter jurisdiction because the Plaintiff lacks standing as he has
failed to allege an injury in fact, and (2) the Plaintiff failed to
state a claim because there are no express or implied rights of
action for untimely wage payment violations of NYLL Section 191.
The Plaintiff opposes the motion.
In each of the Defendant's arguments, it asks the Court to find
that a New York Appellate Division case, Vega v. CM and Associates
Construction Management., LLC, either does not apply to the section
of the NYLL at issue or was incorrectly decided.
Judge D'Agostino finds that the higher court would be likely to
find that the Plaintiff may be entitled to liquidated damages, as
Vega found, and as both state and federal courts have followed
since that decision. Accordingly, the Plaintiff does have standing
based on the alleged injury of untimely wage payments in violation
of NYLL Section 191 and may be entitled to liquidated damages,
dependent on the facts of the case, based on NYLL Section 198(1-a).
Finding no other barriers to jurisdiction, Judge D'Agostino
determines the Court has subject matter jurisdiction.
In addition, Judge D'Agostino holds that other courts have
recognized an implied right of action and Vega's analysis of such
an implied right, and the Court concurs in those findings. Based on
the foregoing, the Defendant has failed to provide persuasive
evidence that the highest state court would depart from Vega's
interpretations, and Judge D'Agostino finds there is a private
right of action for untimely wage payments in violation of NYLL
Section 191.
For these reasons, the Defendant's motion to dismiss is denied. The
Clerk of the Court will serve a copy of the Memorandum-Decision and
Order on the parties in accordance with the Local Rules.
A full-text copy of the Court's May 17, 2023 Memorandum-Decision &
Order is available at https://rb.gy/m37i1 from Leagle.com.
PHILIP LAWRENCE FRAIETTA, ESQ. -- pfraietta@bursor.com -- YITZCHAK
KOPEL, ESQ. -- ykopel@bursor.com -- BURSOR & FISHER, P.A. — NEW
YORK OFFICE, in New York City, Attorneys for the Plaintiff.
EVAN B. CITRON, ESQ. -- evan.citron@ogletree.com -- JESSICA R.
SCHILD, ESQ. -- jessica.schild@ogletree.com -- OGLETREE DEAKINS, in
New York City, Attorneys for the Defendant.
FASTENAL COMPANY: Final Approval of Class Settlement Modified
-------------------------------------------------------------
In the class action lawsuit captioned as MIESHIA MARIE JACKSON, et
al., v. FASTENAL COMPANY, Case No. 1:20-cv-00345-SAB (E.D. Cal.),
the Hon. Judge Stanley A. Boone entered an order that the
Plaintiff's motion for final approval of class action settlement
and motion for attorneys' fees is granted, as modified, as follows:
The conditional class certification contained in the Preliminary
Approval Order is deemed final, as to the class consisting of:
"All hourly non-exempt individuals who are or were employed by
the Defendant in California at any point during the period from
January 21, 2016, through July 16, 2021."
The Notice of Proposed Class Action Settlement and Hearing Date
for Court Approval and the Share Form mailed to all class
members
is deemed to fairly and adequately describe the terms of the
proposed settlement agreement and joint stipulation; was the
best
notice practicable under the circumstances; was valid, due and
sufficient notice to all class members.
All 1,992 Settlement Class members are deemed bound to the order
granting final approval of class action settlement and are deemed
to have released the released claims defined in the settlement
agreement and addendum.
Craig J. Ackermann and Avi Kreitenberg of Ackermann & Tilajef,
P.C., and Jonathan Melmed of Melmed Law Group P.C. are appointed as
counsel for the class, and found to be adequate counsel experienced
in similar litigation.
The gross settlement of $2,400,000.00 is approved. Payment of up to
$19,300.00 is approved to CPT Group, Inc., for fulfilling its
duties as the settlement administrator.
The Plaintiff is awarded a class representative incentive award in
the amount of $5,000.00. The Plaintiff's counsel is awarded
attorneys' fees in the amount of $480,000.00. The allocation of
$24,000.00 as payment for penalties under the California Labor Code
Private Attorney Generals Act (PAGA), and payment of 75% thereof
($18,000.00) to the Labor and Workforce Development Agency for its
portion of the PAGA penalties is approved.
The parties and the settlement administrator are directed to,
following the "Effective Date" (as defined in the settlement
agreement), carry out the implementation schedule set forth in the
settlement agreement.
The action is dismissed with prejudice, with each side to bear its
own costs and attorneys' fees except as otherwise provided by the
settlement and ordered by the Court.
The Court shall retain jurisdiction to consider any further
applications arising out of or in connection with the settlement.
The Plaintiff Mieshia Marie Jackson brings this action on behalf of
herself and others similarly situated against the Defendant
Fastenal Company, alleging various wage and hour violations under
California state law.
The complaint brings the following causes of actions: failure to
pay overtime wages; failure to provide compliant rest breaks and/or
pay missed rest break premiums; failure to provide compliant meal
periods and/or pay missed meal period premiums; and (4) failure to
reimburse business expenses; and (5) failure to provide complete
and accurate wage statements.
The Plaintiff was employed by the Defendant in California as a
non-exempt employee.
The Defendant is an industrial supply company based in Winona,
Minnesota.
A copy of the Court's order dated May 18, 2023, is available from
PacerMonitor.com at https://bit.ly/3OJrIAY at no extra charge.[CC]
FREEJUMP DEVELOPPEMENT: Pacelli Sues Over Defective Airbags
-----------------------------------------------------------
CLARISSA PACELLI, individually and on behalf of all others
similarly situated Plaintiff v. FREEJUMP DEVELOPPEMENT, d/b/a/
Freejump System, Defendant, Case No. 3:23-cv-00028-RSB (W.D. Va.,
May 23, 2023) alleges that the Defendant's Freejump Airbag is
defective and unreasonably dangerous under Virginia law.
The Freejump Airbag was marketed and sold by Defendant as a safer
and more effective replacement for traditional body protectors.
During the show jumping competition on May 23, 2021, the Plaintiff
was thrown from her horse while approaching a jump. The Plaintiff's
Freejump Airbag failed to inflate and she hit the ground, landing
on her back with significant force. Due to the severity of her
injuries, Plaintiff required extensive physical therapy for her
injuries. Moreover, she seeks damages for her personal injury as a
separate non-class claim.
Freejump Developpement, d/b/a Freejump System is a French
corporation with its principal place of business at Chateau Perron,
33210 Roaillan, Bordeaux, France. The company designed,
manufactured, registered, promoted, marketed, distributed and sold
the Freejump Airbag in the US including to Plaintiff in the
Commonwealth of Virginia. [BN]
The Plaintiff is represented by:
Jeffrey A. Travers, Esq.
David J. Dickens, Esq.
THE MILLER FIRM, LLC
108 Railroad Avenue
Orange, VA 22960
Telephone: (540) 672-4224
Facsimile: (540) 672-3055
E-mail: jtravers@millerfirmllc.com
FTX TRADING: Financiers, Celebrity Endorsers Sued Over Fraud Scheme
-------------------------------------------------------------------
Investing.com reports that in a dramatic twist, the collapsed FTX
cryptocurrency exchange finds itself at the heart of a brewing
legal storm. According to a Bloomberg report, the prominent
financiers and high-profile celebrity endorsers of the now-defunct
platform are under the lens, facing potential consolidated
class-action lawsuits.
This wave of litigation comes after the colossal failure of Sam
Bankman-Fried's digital-asset empire, an incident that left
investors counting losses in the billions. The developments have
cast a long shadow over the once-promising cryptocurrency
landscape, sparking heated debates about accountability and
investor protection in the digital-asset ecosystem.
Top-tier VC Firms and Sports Icons in Spotlight
Several heavyweight venture capital and private equity firms,
including Sequoia Capital Operations LLC and Thoma Bravo LLC, are
under the legal microscope. These firms are vested in FTX, adding
further complexity to their current situation.
High-profile sports figures such as ex-NFL quarterback Tom Brady,
ex-NBA centre Shaquille O'Neal, and former Boston Red Sox slugger
David Ortiz are also in the spotlight. This is a result of their
endorsements of the exchange.
David Boies Advocates for Streamlined Legal Justice in Crypto
Scandal
Reports suggest that the implications of consolidating the lawsuits
under a single judge are substantial. Moreover, per a point
strongly advocated by veteran lawyer David Boies, this move will
make the alleged abetment cases manageable.
Furthermore, the aim is to streamline the procedure through
Multi-District Litigations (MDLs), which can curb expenses by
eliminating repetitive pre-trial document exchanges. This strategy
also provides a venue for test trials, which can evaluate the
legitimacy of claims.
Bankman-Fried's Alleged $1.8 Billion Fraud Scheme
Bankman-Fried is accused of orchestrating one of US history's most
massive fraud schemes, allegedly defrauding investors of $1.8
billion under the pretense of adequate controls and risk management
at FTX. Allegations also suggest he misused customer funds for
personal expenses and real estate acquisitions.
While this situation unfolds, the legal debate over the appropriate
venue for the lawsuits continues. Some advocates argue for the
federal court in Miami, where FTX operated in the US, while others
propose the federal court in San Francisco. [GN]
FUSION LOGISTICS: Fails to Pay Proper Wages, Brown Suit Alleges
---------------------------------------------------------------
DARLENE BROWN; TIERRA HARCUM; LATORYIA HAILEY; MICHAEL CARTER; and
DARREN JACKSON JR, individually and on behalf of all others
similarly situated, Plaintiffs v. FUSION LOGISTICS INC.;
AMAZON.COM, INC.; and AMAZON LOGISTICS, INC., Defendants, Case No.
5:23-cv-00690 (W.D. Tex., May 26, 2023) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
The Plaintiffs were employed by the Defendants as delivery
associates.
FUSION LOGISTICS, INC. provides Nationwide end-to-end logistics
solutions, local dedicated delivery, and an array of management
services to both Shippers and Carriers in the small-package, final
mile delivery space. [BN]
The Plaintiff is represented by:
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
Email: ssb@llrlaw.com
kconnon@llrlaw.om
- and -
Michaela Wallin, Esq.
Alexandra K. Piazza, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4620
Email: mwallin@bm.net
apiazza@bm.net
- and -
Ryan Allen Hancock, Esq.
WILLIG, WILLIAMS & DAVIDSON
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Telephone: (215) 656-3600
Facsimile: (215) 567-2310
Email: rhancock@wwdlaw.com
GLASSES USA: New Vision Dismissal Denied; Stay of Discovery Lifted
------------------------------------------------------------------
In the case, New Vision Unlimited, LLC, dba Vision Unlimited,
individually and on behalf of all others similarly situated,
Plaintiff v. Glasses USA, Inc., and others, Defendants, Civil
Action No. 22-22534-Civ-Scola (S.D. Fla.), Judge Robert N. Scola,
Jr., of the U.S. District Court for the Southern District of
Florida denies the Defendants' motion to dismiss and lifts the stay
of discovery.
New Vision, an optical goods and services provider, brings the
putative class action against four online contact-lens retailers --
Defendants Optimax Investments, Ltd.; Lens.com, Inc.; Web EyeCare,
Inc.; and Contact Lens King, Inc. -- alleging that they each
engaged in false advertising in violation of Section 43(a) of the
Lanham Act, 15 U.S.C. Section 1125(a)(1)(B). In response, the
Defendants have jointly filed a motion to dismiss, submitting New
Vision has failed to state a claim for false advertising under the
Lanham Act. New Vision responded opposing the motion and thereafter
the Defendants timely replied.
Previously the Court granted the Defendants' motion for a stay in
the case, concluding that, upon a "preliminary peek" of the
motion-to-dismiss briefing, the Court found at least one of the
Defendants' arguments appeared to be clearly meritorious and truly
case dispositive.
New Vision is an eye-care professional and provider of optical
goods and services, including contact lens fittings and contact
lens sales. It has seven brick and mortar locations in the Miami
area and two websites. The Defendants are four unrelated online
retailers of optical products, including corrective contact
lenses.
The Defendants promote their lenses through Google and other search
engines, advertising low prices. These advertised prices are "far
lower" than the prices New Vision and other "honest" retailers
advertise. Because consumers of contact lenses are very price
conscious, they are drawn to the Defendants' ads.
But, says New Vision, the Defendants' advertised prices are not
truthful: only after a customer has filled out online forms,
providing details about her prescriptions, contact information for
her doctor (to verify her prescription), and certain biographical
and payment information, do the Defendants reveal there is a
"processing fee" added to the order. This added fee results in the
charge for the order being about twice the initially advertised
cost. This final cost ends up being about the same as the prices
honest retailers such as the Plaintiff advertise, because this is
the true market price.
On the one hand New Vision says that the Defendants do everything
they can to hide the extra fee on their checkout pages and, as a
result, "many times," consumers do not even notice that the total
amount they are being charged for the order is about the same as
what they would have paid if they bought from New Vision. New
Vision says that even if customers do notice the extra fee, they go
through with the purchase anyway. Other customers still, New Vision
proffers, mistakenly believe all contact-lens retailers charge
similar "processing fees."
New Vision complains that the Defendants' practices amount to false
advertising under the Lanham Act and seeks damages and other relief
on its own behalf and on behalf of a proposed class of similarly
situated plaintiffs.
To state a claim of false advertising under the Lanham Act, a
plaintiff must allege that (1) the advertisements of the opposing
party were false or misleading; (2) the advertisements deceived, or
had the capacity to deceive, consumers; (3) the deception had a
material effect on purchasing decisions; (4) the misrepresented
product or service affects interstate commerce; and (5) the movant
has been -- or is likely to be -- injured as a result of the false
advertising. The Defendants maintain that New Vision fails to
allege facts establishing the first, second, third, and fifth
elements of its false-advertising claim.
After careful review, Judge Scola is not persuaded. He finds that
(i) the Defendants have not established that the complaint falls
short of alleging their advertisements were false or misleading;
(ii) the allegations implicate a direct deception as to the actual
cost of an item; not an inference or assumption that the Plaintiff
made based on information that was omitted from an ad; (iii) the
Defendants have improperly framed their materiality analysis,
focusing only on the consumers' ultimate decisions to go through
with their purchases of the Defendants lenses, without any
consideration of the separate deceptive advertisement that got them
there; and (iv) the New Vision has failed to plead any facts as to
its own advertising, brands, and prices.
In sum, Judge Scola finds that New Vision has managed to plead just
enough to nudge its standing allegations across the line from
conceivable to plausible. Therefore, he denies the Defendants'
motion to dismiss. Accordingly, he lifts the previously imposed
stay of discovery. Further, Judge Scola orders the Defendants to
file their answers to the complaint. Finally, as set forth in the
Court's stay order, the parties must file an amended joint
discovery plan and conference report.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/94coa from Leagle.com.
GODADDY.COM: 11th Cir. Agrees to En Banc Review of TCPA Suit Ruling
-------------------------------------------------------------------
Christine M. Reilly, Esq., and Madelaine A. Newcomb, Esq., of
Manatt, Phelps & Phillips LLP, in an article for Mondaq, disclosed
that the Eleventh U.S. Circuit Court of Appeals has agreed to an en
banc review of a notable decision issued last July with respect to
Article III standing for purposes of a Telephone Consumer
Protection Act (TCPA) lawsuit. The review could have major
implications, including possible reconsideration of the Eleventh
Circuit's prior ruling in Salcedo v. Hanna that a single text
message is insufficient to establish Article III standing.
Susan Drazen filed a TCPA class action against GoDaddy.com in
Alabama, alleging that the company used an automated telephone
dialing system (ATDS) to send unwanted calls and text messages
promoting its products. Her case was consolidated with two similar
suits filed in Arizona.
The parties reached a $35 million settlement agreement that
included $35 in cash or a $150 voucher for GoDaddy for the roughly
1.26 million class members.
While the district court expressed concern that the class was
defined to include recipients of a single call or text message --
which the Eleventh Circuit ruled is insufficient to establish
standing in Salcedo -- it noted that a circuit split exists on the
issue and certified the class, which included plaintiffs outside
the Eleventh Circuit.
Last July, a panel of the Eleventh Circuit reversed class
certification, emphasizing that "every class member must have
Article III standing in order to recover individual damages," and
that a court "cannot . . . check Article III requirements at the
door of the class action. Any class definition that includes
members who would never have standing under our precedent is a
class definition that cannot stand."
Drazen petitioned the court for rehearing.
In March, the full Eleventh Circuit agreed to consider the case,
vacating the panel decision.
"[A] member of this court in active service having requested a poll
on whether this appeal should be reheard by the court sitting en
banc, and a majority of the judges in active service on this court
having voted in favor of granting rehearing en banc, it is ordered
that this appeal will be reheard en banc," the court wrote.
Why it matter
The en banc review of the Drazen case could have a significant
impact on TCPA litigation. If the Eleventh Circuit focuses simply
on the question of whether Salcedo applies in class action cases
that include class members from other federal circuits, the ruling
could affect the number of TCPA class action filings in the
Eleventh Circuit. If the judges take a broader look at the
underlying standing issue in the case -- including a review of
Salcedo itself -- the opinion could have an even larger impact.
[GN]
HAPPY STATE: Tex. App. Affirms in Part Dismissal of Williams Suit
-----------------------------------------------------------------
In the case, JAMIE LYNN WILLIAMS, ON BEHALF OF HERSELF AND ALL
OTHERS SIMILARLY SITUATED, Appellant v. HAPPY STATE BANK, Appellee,
Case No. 07-22-00080-CV (Tex. App.), the Court of Appeals of Texas,
Seventh District, Amarillo:
a. affirms in part and reverses in part the trial court's
order granting Happy's motion to dismiss and dismissing the
lawsuit with prejudice; and
b. remands the matter to the trial court for further
proceedings.
Williams initiated a class action suit against Happy for breached
contract. The purported breach involved the ways Happy levied its
$27 fee for items or debits made against accounts lacking
sufficient funds. One such breach allegedly occurred when Happy
assessed the fee upon the same "item" or check each time it was
presented for payment by a merchant.
According to Williams, the contract permitted only one assessment
per the same check or item. Another breach purportedly occurred
when Happy charged overdraft Fees on debit transactions that did
not overdraw checking accounts at the time the underlying
transaction occurred. Allegedly, Happy "sequestered" enough funds
in the account to pay the item; so, there were funds available to
pay the debit. That pretermitted Happy from levying an overdraft
fee upon the item.
Happy joined issue, denied the allegations, and asserted a
multitude of defenses. That was followed by its combined motion to
dismiss under Rule 91a of the Texas Rule of Civil Procedure and for
summary judgment. And there began the deviation from Rule 91a's
supposed ease in application. The trial court was asked, at the
onset of the suit, to address two different motions having
different standards of review. Williams responded to the motion,
and the trial court convened a hearing.
Upon entertaining argument from the parties, the trial court
granted the Rule 91a aspect of the motion, dismissed the suit with
prejudice, and awarded Happy its attorney's fees. Williams
appealed.
The parties do not dispute the involvement of a contract. Their
initial argument lies upon which provisions are susceptible to
consideration. Happy appended the entire document to its answer and
asks us to consider it. On the other hand, Williams requested to
consider only the allegations in her pleading and the contract
excerpts attached to it.
The Court of Appeals must decide the motion based solely on the
pleading of the cause of action, together with any permitted
pleading exhibits. It opines that the contract afforded Happy the
right to assess a fee each time an item was paid or returned due to
a want of funds, irrespective of whether the same item was
previously returned. Also, nothing in Williams' pleading limited
her claim of breached contract to them. Nor did her pleading
indicate that she failed to bring them to the attention of Happy
within the purported time limit. So, the alleged defense was and is
not an appropriate ground for Rule 91a dismissal at this juncture.
In sum, the Court of Appeals affirms the trial court's dismissal of
the cause of action involving the repeated assessment of overdraft
fees on items repeatedly returned due to the unavailability of
sufficient funds for payment. It reverses the remainder of the
order and remands the cause to the trial court.
A full-text copy of the Court's May 17, 2023 Memorandum Opinion is
available at https://rb.gy/6q7ng from Leagle.com.
HARBORONE BANK: Class Settlement in Meaden Gets Initial Approval
----------------------------------------------------------------
In the class action lawsuit captioned as RITA MEADEN, individually
and on behalf of all others similarly situated, v. HARBORONE BANK,
Case No. 1:23-cv-10467-AK (D. Mass.), the Hon. Judge Angel Kelley
entered an order granting Meaden's unopposed motion for preliminary
approval of the class action settlement.
A final approval hearing shall be held on October 11, 2023, at
10:30 a.m. Eastern Time, in Courtroom 8 of the John Joseph Moakley
Courthouse, One Courthouse Way, Boston, Massachusetts.
At the final approval hearing, the Court shall consider, among
other issues, the fairness, reasonableness, and adequacy of the
settlement; the proposed plan for distribution, attorneys' fees,
and the class representative service award; and any objections to
the settlement by class members.
A separate order, generally adopting the parties' proposed order,
shall issue, summarizing the Court's findings, directing
dissemination of the class notice, and providing further details
regarding the schedule for the final approval hearing.
The Court appoints Rita Meaden as class representative and
KalielGold PLLC and Whatley Kallas, LP as class counsel for all the
reasons discussed above. See Fed. R. Civ. P. 23(g).
The Plaintiff brings this putative class action against HarborOne,
alleging breach of contract and breach of the covenant of good
faith and fair dealing. The parties engaged in successful class
settlement negotiations and mediation led by a neutral third party.
As a result, they have submitted a preliminary class action
settlement agreement for the Court's approval.
On June 22, 2022, Meaden filed this putative class action in state
court on behalf of herself and all others similarly situated
against HarborOne, alleging breach of contract and breach of the
covenant of good faith and fair dealing.
Meaden alleges that HarborOne charges more than one $35
insufficient funds fee on the same transaction in violation of its
account documents. While HarborOne Bank denies liability, the
parties engaged in settlement discussions and attended mediation
before the Honorable Margaret R. Hinkle on November 29, 2022.
A copy of the Court's order dated May 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3oJ5uEC at no extra charge.[CC]
HORNELL BREWING: Court Narrows Claims in 1st Amended Brunts Suit
----------------------------------------------------------------
In the case, NICHOLAS BRUNTS, individually and on behalf of all
others similarly situated, Plaintiff v. HORNELL BREWING CO., INC.,
et al., Defendants, Case No. 4:22CV648 HEA (E.D. Mo.), Judge Henry
Edward Autrey of the U.S. District Court for the Eastern District
of Missouri, Eastern Division, grants in part and denies in part
the Defendant's Motion to Dismiss the First Amended Complaint.
On April 8, 2022, Brunts filed the putative class action proceeding
against the Defendants in the Circuit Court of St. Louis County,
Missouri, alleging breach of warranty, breach of implied contract,
unjust enrichment, and violations of the Missouri Merchandising
Practices Act. He asserts that the Defendants sold a variety of
Arizona beverages, falsely representing that the products were "All
Natural" or "100% Natural" when the beverages contained added
coloring and unnatural ingredients.
The Defendant timely removed the matter to federal court, invoking
the Court's diversity jurisdiction under the Class Action Fairness
Act of 2005 (CAFA), 28 U.S.C. Section 1332(d). The Plaintiff filed
a motion to remand the case back to the Circuit Court of St. Louis
County, Missouri, which was denied.
On Aug. 31, 2022, the Plaintiff filed an Amended Complaint. The
Defendant filed the instant motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and (6), which the Plaintiff
opposes.
The Plaintiff's Amended Complaint alleges that the Defendant
falsely labels and advertises certain AriZona beverage products as
being All Natural, when they contain multiple ingredients that are
not natural. Hornell is the owner, manufacturer, and distributor of
the Products, and is the company that created and/or authorized the
false, misleading, and deceptive packaging of the Products.
The purportedly All Natural AriZona beverages are collectively
referred to as the Products, which include the following AriZona
beverages: Kiwi Strawberry Fruit Juice Cocktail; Lemonade Fruit
Juice Cocktail; Mucho Mango Fruit Juice Cocktail; Fruit Punch Fruit
Juice Cocktail; Orangeade; Grapeade; Lemonade Drink Mix; Golden
Bear Strawberry Lemonade; Watermelon Fruit Juice Cocktail and Rx
Energy Herbal Tonic. The Products, regardless of flavor or color of
packaging, uniformly claim to be ALL NATURAL. The ALL NATURAL label
is a key selling point for the Products.
By representing the Products to be "All Natural," the Defendant is
capitalizing on consumers' preference for food items with no
artificial additives. However, the Products cannot be labeled as
"All Natural" because they contain multiple unnatural ingredients,
including ascorbic acid, high fructose corn syrup, malic acid,
erythritol, and added coloring.
Consequently, the Defendants' practice of capitalizing on
consumers' preferences for healthier products by falsely labeling
their Products "All Natural" and/or "100% Natural" is deceptive and
misleading. By falsely labeling the Products as being "All
Natural," the Defendant Hornell has profited from consumers'
preference for food products that are perceived to be healthier and
made free from any unnatural ingredients, preservatives, and/or
added coloring. The Food and Drug Administration ("FDA") does not
regard foods with added coloring as natural, no matter the source
of the coloring agent.
The Plaintiff and the class members purchased the Products with
being aware that the Products are not, in fact, "All Natural." The
Defendant possessed specialized knowledge regarding the data and
information concerning the formula of the Products and its clams.
In fact, in regard to the False Claims, the Product is a credence
good because its purported "All Natural" label cannot be
independently verified by the consumer at the time of purchase. In
purchasing the Products, the Plaintiff and the class members had no
choice but to necessarily and justifiably rely upon the False
Claims as accurate. Had they known that the False Claims were
false, the Plaintiffs would not have purchased the Product or would
not have paid as much for the Products. If, at some point in the
future, the Product was improved to actually be "All Natural," the
Plaintiff would then purchase the Products again.
As the direct and proximate result of the False Claims, the
Plaintiff and the class members have suffered economic injury by
being deprived of the benefit of the bargain they were promised by
the Defendant. By marketing, selling and distributing the Product
to purchasers in Missouri, the Defendant made actionable statements
that the Products were not "All Natural," but at all times failed
to disclose that the Product was not in fact "All Natural."
Defendant engaged in the described actionable statements, omissions
and concealments with knowledge that the representations were false
and/or misleading, and with the intent that consumers rely upon
such concealment, suppression and omissions.
Alternatively, the Defendant was reckless in not knowing that the
False Claims were false and misleading at the time they were made.
As the distributor, marketer, producer, manufacturer, and seller of
the Products, the Defendant possessed specialized knowledge
regarding the data and information concerning the chemical formula
of the Products which the Plaintiff and the class members could not
and did not review. All of the Plaintiffs' claims are based on
misleading statements that violate FDA regulations. Such claims do
not seek to impose any additional or different obligations beyond
those already required by such FDA regulations.
The Plaintiff seeks compensatory damages, restitution, attorney's
fees, rescission, and such further relief as the Court deems just,
including injunctive relief, and all profits, benefits, and other
compensation obtained by the Defendant through the inequitable
conduct, on behalf of a putative class of Missouri citizens who
purchased the Products over a five-year period in Missouri.
Judge Autrey grants in part and denies in part the Defendant's
Motion to Dismiss. He denies the Defendant's Motion to Dismiss the
Plaintiff's (i) claims as expressly preempted, (ii)claim that a
reasonable customer is likely to be deceived, and (iii) breach of
express warranty claim. He grants its Motion to Dismiss (i) the
fraud claims for failure to satisfy the Rule 9(b) particularity
requirements, (ii) as to the Products other than "Mucho Mango," and
(iii) for injunctive relief for lack of subject-matter jurisdiction
pursuant to Rule 12(b)(1).
Among other things, Judge Autrey opines that (i) when taking the
allegations contained in the Amended Complaint as true, the
Plaintiff claims are not preempted; (ii) the Plaintiff's fraud
claims are not pled with sufficient particularity to satisfy the
Rule 9(b) requirements; (iii) the Plaintiff fails to allege the
product composition of Mucho Mango, or any of the other Products in
his Amended Complaint; (iv) the Plaintiff does not have standing to
seek injunctive relief; and (v) the Plaintiff has adequately pled
his breach of express warranty claim.
The Plaintiff is given 14 days from the date of the Opinion,
Memorandum, and Order to file a Second Amended Complaint addressing
the issues.
A full-text copy of the Court's May 19, 2023 Opinion, Memorandum &
Order is available at https://tinyurl.com/266zumdj from
Leagle.com.
HYUNDAI MOTOR: Settlement Claim Submission Deadline Set Dec. 7
--------------------------------------------------------------
A class action Settlement has been proposed in a lawsuit alleging
that certain Hyundai vehicles (called the "Class Vehicles" and
listed below) have a defect that can cause engine seizure,
stalling, engine failure, and possibly engine fire, and that some
owners and lessees have been improperly denied repairs under the
vehicle's warranty. Hyundai has not been found liable for any
claims alleged in the lawsuit, and the parties have instead reached
a voluntary settlement in order to avoid lengthy litigation and to
provide relief to Class Members.
You may be eligible for benefits of the class action Settlement if
you owned or leased a Class Vehicle, which are certain vehicle
models equipped with the corresponding genuine multi-port fuel
injection ("MPI") or gasoline direct injection ("GDI") engine
below:
Model Year Model Engine
2011-2015 Sonata Hybrid (HEV) Theta II 2.4-liter MPI Hybrid
2016-2019 Sonata Hybrid/Plug-In Hybrid (HEV/PHEV) Nu 2.0-liter GDI
Hybrid
2010-2012 Santa Fe Theta II 2.4-liter MPI
2010-2013 Tucson Theta II 2.4-liter MPI
2014-2021 Tucson Nu 2.0-liter GDI
2014 Elantra Coupe Nu 2.0-liter GDI
2014-2016 Elantra Nu 2.0-liter GDI
2014-2020 Elantra GT Nu 2.0-liter GDI
2012-2017 Veloster Gamma 1.6-liter GDI
Under the proposed Settlement, and subject to satisfying the proof
requirements, Hyundai will provide financial and other benefits for
certain qualifying engine-related repairs and/or engine failures or
engine fires. The Settlement extends the Powertrain Limited
Warranty to 15 years or 150,000 odometer miles from the date of the
vehicle's original retail delivery, whichever comes first, for
damage to the engine short block or long block assembly caused by
connecting rod bearing failure (the "Extended Warranty"). In order
to obtain the Extended Warranty, you must have completed the Knock
Sensor Detection System ("KSDS") update at a Hyundai dealership
prior to any covered engine failure. Class Vehicles subject to
Hyundai Recall Numbers 198 and 209 (NHTSA Recall Numbers 20V746 and
21V727) are exempt from this requirement. Generally, to obtain
non-Extended Warranty benefits, you need to first complete the free
KSDS update at a Hyundai dealership by November 4, 2023.
The deadline to submit a claim for most benefits is December 7,
2023. Any extension of this date will be posted on the scheduling
and key dates section of this website. Please see the complete
Class Settlement Notice for more information regarding the
Settlement. [GN]
J.R. SIMPLOT: Marcy Can File Second Amended Class Action Complaint
------------------------------------------------------------------
In the case, DANIELLE MARCY, an individual, on behalf of herself
and others similarly situated Plaintiff v. J.R. SIMPLOT COMPANY;
and DOES 1 50, inclusive, Defendant, Case No. 2:22-cv-00523-TLN-CKD
(E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court for
the Eastern District of California grants the Parties' Joint
Stipulation for Leave to Permit Plaintiff to File a Second Amended
Class Action Complaint.
On April 21, 2023, the Plaintiff filed a First Amended Complaint.
The Parties further met and conferred, and the Plaintiff has agreed
to dismiss her Fourth Cause of Action (Unfair Competition) in her
FAC.
The Parties respectfully request that the Court permits the
Plaintiff to file a Second Amended Class Action Complaint.
Having considered the Parties' Joint Stipulation for Leave to
Permit Plaintiff to File a Second Amended Class Action Complaint,
Judge Nunley orders the Plaintiff to file her Second Amended Class
Action Complaint, within five days of receiving notice that the
Court has signed the Order permitting amendment. The Defendant will
file a responsive pleading to the Plaintiff's Second Amended Class
Action Complaint within 30 days after service of the Second Amended
Complaint.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/bmrq4 from Leagle.com.
ERIC B. KINGSLEY, LIANE KATZENSTEIN LY, JESSICA BULAON, KINGSLEY &
KINGSLEY, APC Encino, CA, Attorneys for Plaintiff DANIELLE MARCY.
MICHAEL J. NADER -- michael.nader@ogletree.com -- ALEXANDRA M.
ASTERLIN -- alexandra.asterlin@ogletreedeakins.com -- OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C. Sacramento, CA, Attorneys for
Defendant J.R. SIMPLOT COMPANY.
JOHNSON & JOHNSON: Court Refuses to Strike Carr's Class Claims
--------------------------------------------------------------
In the case, TYESHAH CARR, on behalf of herself and all others
similarly situated, Plaintiff v. JOHNSON & JOHNSON CONSUMER INC.
and VOGUE INTERNATIONAL LLC, Defendants, Case No. 21-CV-6557 (EK)
(JRC) (E.D.N.Y.), Judge Eric Komitee of the U.S. District Court for
the Eastern District of New York denies the Defendants' motion to
strike the class allegations in the complaint.
Carr brings the putative class action against Defendants Johnson &
Johnson Consumer Inc. ("JJCI") and Vogue International LLC,
alleging that their haircare products contained a dangerous
chemical that caused her hair loss and various scalp injuries. She
alleges claims for design defect, failure to warn, and negligence.
The Defendants now move to strike the class allegations in the
complaint. They have not yet answered or moved to dismiss and the
Plaintiff has not yet sought to certify the proposed class.
Vogue and JJCI develop, market, and distribute a line of shampoo
and conditioner products under the brand name "OGX." In February
2021, Carr alleges, she (and her daughter) "used OGX Products" as
directed on the product label.
After washing, Carr suffered "significant hair loss" and "hair
thinning," and her "once healthy" hair "became brittle" and "fell
out in clumps." She further experienced severe scalp irritation,
redness, rashes, itching, and burning. Carr's daughter suffered a
similar injury, with significant hair loss. After Carr stopped
using the OGX Products, she no longer experienced any new hair
loss, hair thinning, or scalp irritation. Similarly, her daughter's
hair loss slowed after she stopped using the products.
The OGX Products in question contained "DMDM hydantoin," a chemical
compound that works as a preservative and releases formaldehyde.
According to the complaint, medical and scientific studies over the
last few decades have shown the "harmful effects" of formaldehyde
and DMDM, linking the chemicals to reactions such as dermatitis,
itchiness, and red rashes.
Carr alleges that the Defendants have known about the harms
associated with DMDM for approximately a decade. In August 2012,
for example, JJCI committed to phasing formaldehyde and other
harmful ingredients out of its adult personal care products by the
end of 2015. JJCI's own commitments, as well as DMDM-related
litigation against an industry competitor and online consumer
reviews of DMDM-containing products, also put Defendants on notice
of DMDM's effects. The Defendants removed DMDM from their OGX
Products in or around September 2021.
Carr brings strict products-liability and negligence claims against
Defendants on behalf of the following class: All residents of the
United States who purchased OGX Products containing DMDM and
suffered hair loss, thinning hair, or other injuries after using
the product, who have retained Squitieri & Fearon, LLP as their
counsel, and who have not separately filed a lawsuit against
Defendants by the date of the class certification order.
She alleges that the OGX Products caused an unreasonably high rate
of adverse dermatological and other reactions due to DMDM --
indeed, that hundreds or thousands of other consumers also suffered
hair loss or other injuries from them. And Carr alleges that the
Defendants could have used non-DMDM alternatives as preservatives
or reduced the amount of DMDM in their products. She also alleges
that the Defendants failed to warn consumers about the risks posed
by the OGX Products.
The Defendants assert that the putative class is impossible to
certify because Carr's claims of injury are "highly
individualized." They also argue that the proposed class, as
defined, (i) demonstrates that joinder of all class members is
actually practical and (ii) constitutes an impermissible
"fail-safe" class, further rendering certification inappropriate.
Because these and related issues are better resolved later, Judge
Komitee holds that it would be premature to strike the class
allegations now. Despite the uphill certification battle that Carr
may face down the line, he is not prepared to dispose of the Rule
23 issues presented at this stage -- with no factual record, based
simply on assumptions drawn from the complaint and the conclusions
of other courts examining generally similar types of allegations.
Moreover, Judge Komitee holds that concerns about the potential
'fail-safe' nature of the proposed class are best resolved at the
class certification stage, not through a motion to strike. And like
other Rule 23(a) requirements, numerosity is a fact-intensive
inquiry better resolved at the class certification stage.
For these reasons, the Defendants' motion to strike is denied
without prejudice to renew.
A full-text copy of the Court's May 17, 2023 Memorandum & Order is
available at https://rb.gy/ovw0w from Leagle.com.
LANIER INC: $182K Class Settlement in Allen Suit Wins Prelim. Nod
-----------------------------------------------------------------
In the case, DANIEL ALLEN, Plaintiff v. LANIER, INC., and MICHAEL
H. LANIER, Defendants, Case No. 22-cv-268-jdp (W.D. Wis.), Judge
James D. Peterson of the U.S. District Court for the Western
District of Wisconsin grants the parties' motion to certify a
federal collective and a state class, and for preliminarily
approval of their proposed settlement.
The lawsuit is a proposed class and collective action about the
proper method of reimbursing delivery drivers for vehicle-related
expenses, such as gas and repairs. Allen delivered pizzas for the
Defendants who operate Domino's Pizza restaurants in Wisconsin.
Allen contends that the Defendants' reimbursement rate of $1.50 per
delivery was so low that it deprived him of the minimum wage
required under the Fair Labor Standards Act and Wisconsin wage
law.
The parties previously moved to certify a federal collective and a
state class and to preliminarily approve their proposed settlement.
The Court denied the motion without prejudice and directed the
parties to address several concerns. The parties now renew their
motion.
First, Judge Peterson examines that class and collective
certification. The class includes all delivery drivers, who worked
at the Defendants' Wisconsin restaurants from July 23, 2019, to
April 1, 2023.
Judge Peterson explains that Federal Rule of Civil Procedure 23
governs certification for both federal collectives and state
classes. He concludes that the Allen has satisfied each of the
relevant Rule 23 requirements. He finds that (i) the definition is
clear and uses objective criteria; (ii) there are 483 potential
members of the class and collective, which is numerous enough to
make joinder impractical; (iii) there are common questions of law
and fact, and Allen is an adequate representative who has claims
that are typical of the class and collective; (iv) Forester Haynie
PLLC has significant experience litigating and obtaining
settlements for similar class and collective action; and (v) a
class action is superior to other methods of adjudicating the case
because the large size of the class and the small amount of damages
for each class or collective member makes individual lawsuits
impractical.
Next, Judge Peterson examines the preliminary approval. Under the
settlement agreement, the maximum amount to be paid by the
Defendants is $182,000, which is divided up as follows: a net
settlement fund of $93,833.33 for class and collective members;
$10,000 for a reserve fund; $60,666.67 for attorney's fees; $10,000
for the administrator; $5,000 for costs; and $2,500 for Allen's
incentive payment.
Judge Peterson is persuaded that preliminary approval is
appropriate. But there are caveats to preliminary approval of the
settlement -- primarily related to attorney fees. He finds that the
claims of the class and the collective are substantially identical,
but the allocation between the class and collective is not.
However, he preliminarily approves the proposed settlement, with
the caveat that the Plaintiff's counsel must justify its fee
request based on the actual recovery of the class and collective.
Under this approach, the counsel's fees are likely to be
substantially higher than one-third of the fee and recovery
combined. In that event, the counsel will have to show why they are
entitled to a larger share.
The parties' motion for final approval of the settlement and the
Plaintiff's counsel's motion for attorney fees should also include
the following information. First, the parties should clearly
describe all the efforts they took to provide notice to the class
members, being as specific as possible. Second, the parties should
identify the amount of the settlement fund that class and
collective members have claimed. Third, the class counsel's motion
for attorney fees must comply with the Court's procedures for fee
petitions, which may be found on its website.
Fourth, the parties should address what should happen to any money
left if the court reduces the requested attorney fees. Fifth, and
finally, 28 U.S.C. Section 1715(b) requires the counsel to give
notice of the class settlement to certain state and federal
officials, and the Court must wait 90 days after notice is provided
before approving the settlement. If they haven't already done so,
the parties should notify the appropriate officials at the same
time they notify the class and the collective.
Judge Peterson certifies the following class and collective under
Federal Rule of Civil Procedure 23 and 29 U.S.C. Section 216(b):
All persons who worked for Defendants at Domino's Pizza stores in
Wisconsin as delivery drivers between July 23, 2019, through April
1, 2023.
Judge Peterson approves Forester Haynie PLLC as the class counsel.
Judge Peterson also grants the parties' motion for preliminary
approval of the settlement.
The claims administrator had until June 1, 2023, to send out the
class notices, giving members 50 days to opt in to the collective,
opt out of the class, or file an objection.
The parties may have until Aug. 1, 2023, to file a motion for final
approval and a motion for fees and costs.
The Court will hold a fairness hearing on Aug. 29, 2023.
A full-text copy of the Court's May 17, 2023 Opinion & Order is
available at https://rb.gy/6i0l5 from Leagle.com.
LIBERTY MUTUAL: Bid for Class Certification Due March 15, 2024
--------------------------------------------------------------
In the class action lawsuit captioned as BRITTANY VONBERGEN v.
LIBERTY MUTUAL INSURANCE COMPANY, Case No. 2:22-cv-04880-GEKP (E.D.
Pa.), the Hon. Judge Gene E.K. Pratter entered a scheduling order
as follows:
-- The proponents of any issue as to which as Oct. 6,
2023
an expert will be offered shall identify
and submit curriculum vitae for all expert
witnesses on liability and damages and shall
serve reports for all such witnesses:
-- The Respondent(s) as to any such issue who Nov. 17,
2023
will offer an opposing expert shall identify
and submit curriculum vitae for all expert
witnesses on liability and damages and shall
serve reports for all such expert witnesses:
-- Discovery depositions, if any, of expert Jan. 10,
2024
Witnesses may be taken on or before:
-- Any motion under Federal Rule of Evidence March 15,
2024
702 (including so-called Daubert motions)
shall be filed on or before:
-- Any motion for class certification shall March 15,
2024
be filed and served on or before:
-- Any motion for summary judgment shall be May 30, 2024
filed on or before:
-- All trial exhibits shall be marked and June 21,
2024
Exchanged on or before:
Liberty Mutual is an American diversified global insurer and the
sixth-largest property and casualty insurer in the United States.
A copy of the Court's order dated May 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3N34tR6 at no extra charge.[CC]
LOVISA AMERICA: Magistrate Judge Endorses Dismissal of Martin Suit
------------------------------------------------------------------
In the case, RUTH MARTIN, on behalf of herself and others similarly
situated, Plaintiff v. LOVISA AMERICA, LLC, Defendant, Case No.
1:22-cv-01356-ADA-EPG (E.D. Cal.), Magistrate Judge Erica P.
Grosjean of the U.S. District Court for the Eastern District of
California recommends that the Plaintiff's request for voluntary
dismissal be granted.
Martin initiated the putative class action on Oct. 23, 2022,
alleging violations of the California Invasion of Privacy Act (Cal.
Penal Code Sections 631, 632.7). She seeks statutory penalties and
injunctive relief on behalf of herself and other class members who
"(1) communicated with Defendant via the chat feature on
Defendant's website using a cellular telephone and (2) whose
communications were recorded and/or eavesdropped upon without prior
consent."
On April 7, 2023, the Plaintiff filed a notice of voluntary
dismissal pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). Specifically, she seeks dismissal of her individual
claims with prejudice and dismissal of the class claims without
prejudice.
Judge Grosjean explains that typically, parties may dismiss an
action without a court order pursuant to Federal Rule of Procedure
41 by filing a stipulation of dismissal signed by all parties who
have appeared. Rule 23(e), however, governs the dismissal of class
actions, even before class certification has occurred. The court
must determine whether dismissal would prejudice class members due
to: (1) class members' possible reliance on the filing of the
action if they are likely to know of it either because of publicity
or other circumstances, (2) lack of adequate time for class members
to file other actions, because of a rapidly approaching statute of
limitations, (3) any settlement or concession of class interests
made by the class representative or counsel in order to further
their own interests (Diaz factors). Regardless, in no
pre-certification dismissal would the court reject the dismissal
and require anything more than notice to the class and an
opportunity to intervene.
The Plaintiff first argues that the Diaz factors do not apply
because that case was decided prior to amendments to Rule 23(e),
which clarified that Rule 23(e) applies to certified classes or
settlement classes. However, she also argues that even if the Court
were to apply the Diaz factors to these circumstances, dismissal
would be proper.
Applying the Diaz factors, Judge Grosjean finds that dismissal of
the Plaintiff's class claims without prejudice will not harm any
putative class members. Moreover, the case is in its early stages
as the Defendant has not filed an answer and the Court has not yet
held a scheduling conference. Accordingly, Judge Grosjean finds
that this factor does not prejudice putative class members.
Second, the Plaintiff argues that because the one-year statute of
limitations on her claims does not run until October 2023, the
rights of the putative class are preserved by the solely individual
dismissal of her claims with prejudice. Accordingly, this factor
does not prejudice the putative class members because there is
adequate time to file other actions.
Finally, there is no indication that dismissal represents a
concession of class member interests. Additionally, the putative
class members will be free to pursue their claims.
Judge Grosjean finds that dismissal of the action without prejudice
does not present a risk of prejudice to the putative class.
Therefore, notice to the putative class members is not required.
Thus, she recommends that Martin's individual claims for violations
of the California Invasion of Privacy Act against Lovisa be
dismissed with prejudice and all claims brought by Martin on behalf
of the putative class for violations of the California Invasion of
Privacy Act against Lovisa be dismissed without prejudice. She also
recommends that the Clerk of the Court be directed to close the
case.
Within 21 days after being served with these findings and
recommendations, any party may file written objections with the
Court. Such a document should be captioned "Objections to
Magistrate Judge's Findings and Recommendations." Any response to
the objections will be served and filed within 14 days after
service of the objections. The parties are advised that failure to
file objections within the specified time may result in the waiver
of rights on appeal.
A full-text copy of the Court's May 23, 2023 Findings &
Recommendations is available at https://tinyurl.com/333dcwh8 from
Leagle.com.
LOYA CASUALTY: Withholds Settlement Money for Interest, Suit Claims
-------------------------------------------------------------------
JOSE MARROQUIN and JUAN GONZALEZ, individually and on behalf of all
others similarly situated, LOYA CASUALTY INSURANCE COMPANY,
Defendant, Case No. 5:23-cv-00927 (C.D. Cal., May 23, 2023), arises
out of the Defendant's violations of the California's Unfair
Competition Law.
Plaintiffs Marroquin and Gonzalez allege that the Defendant
insurance company has the practice in which it withholds settlement
money from personal injury cases so they may benefit from any
additional interest earned. The Defendant's business model is to
allegedly receive the payout from a personal injury case and
withhold from client in the hopes of accruing interest for itself.
Loya Casualty Insurance Company is a Texas Corporation with its
Corporate headquarters located at: 1800 Lee Trevino, Suite 201, El
Paso, Texas. Its primary business is operating as an insurance
provider of non-standard coverage. [BN]
The Plaintiffs are represented by:
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP, APC
301 E. Bethany Home Road, Suite C-195
Phoenix, AZ 85012
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ryan@kazlg.com
- and –
Aryanna Young, Esq.
KAZEROUNI LAW GROUP, APC
2221 Camino Del Rio S, Suite 101
San Diego, CA 92108
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: aryanna@kazlg.com
LUCKY TARO: Fails to Pay Proper Wages, Campos Suit Alleges
----------------------------------------------------------
ANDREA CAMPOS, individually and on behalf of all other similarly
situated, Plaintiff v. LUCKY TARO, INC.; and DOES 1 through 100,
inclusive, Defendants, Case No. 23STCV11801 (Cal. Super., Los
Angeles Cty., May 24, 2023) is an action against the Defendants for
failure to pay minimum wages, overtime compensation, provide meals
and rest periods, and provide accurate wage statements.
Plaintiff Campos was employed by the Defendants as a driver.
LUCKY TARO, INC. offers exotic Asian produce such as Big Taro,
Hawaiian Purple Yam Green Mango Dragon Fruit, Mangosteen, longan,
and cocon. [BN]
The Plaintiff is represented by:
Christian J. Petronelli, Esq.
Mitchel D. Vanderpool, Esq.
PETRONELLI LAW GROUP, PC
295 Redondo Avenue, Suite 201
Long Beach, CA 90803
Telephone: (888) 855-3670
Facsimile: (888) 449-9675
Email: christian@petronellilaw.com
mitch@petronellilaw.com
MAKES CENTS: Slate's Bid to Take Discovery & Defer Response Granted
-------------------------------------------------------------------
In the case, DEANDRE SLATE, on behalf of Plaintiff and the class
members described below, Plaintiff v. MAKES CENTS, INC., doing
business as MaxLend; UETSA TSAKITS, INC.; DAVID JOHNSON; KIRK
MICHAEL CHEWNING; CANE BAY PARTNERS VI, LLLP; DIMENSION CREDIT
(CAYMAN), L.P.; STRATEGIC LINK CONSULTING, LP; ESOTERIC VENTURES,
LLC; INFOTEL INTERNATIONAL LTD.; M. MARK HIGH, LTD.; KIM ANDERSON;
JAY CLARK; and DOES 1-20, Defendants, Case No. 22 C 4165 (N.D.
Ill.), Judge Joan H. Lefkow of the U.S. District Court for the
Northern District of Illinois, Eastern Division:
a. grants in part and denies in part the Plaintiff's motion to
take discovery and defer response; and
b. denies the Defendants' motion to dismiss, motion to compel
arbitration, and motion to strike class allegations without
prejudice to renewal.
Slate filed the putative class action on Aug. 9, 2022, alleging
that Makes Cents, as well as related entities and individuals, are
in the business of extending loans at exorbitant interest rates by
contracting with a Native American tribe that is beyond the reach
of Illinois usury and consumer protection laws. He seeks damages
for violation of the Illinois Interest Act, 815 ILCS 205/6 (Count
I), the Illinois Predatory Loan Prevention Act, 815 ILCS 123/15-1-1
et seq., and the Illinois Consumer Fraud Act, 815 ILCS 505/1 et
seq. (Count II), and treble damages under the Racketeer Influenced
and Corrupt Organizations Act (RICO), 18 U.S.C. Section 1964
(Counts III-V).
The Defendants have moved to dismiss under Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6) on the basis that MaxLend is an arm
of the Mandan, Hidatsa, and Arikara Nation ("the Tribe" or "the
Nation"), a federally recognized sovereign American Indian tribe
located in North Dakota. As such, they contend, MaxLend is immune
from suit and the claims against them must be dismissed for lack of
jurisdiction. In addition, they contend that Slate fails to state a
claim against the "non-tribal" defendants under RICO or any of the
Illinois statutes. Alternatively, the Defendants contend that the
case must be submitted to arbitration as provided in the loan
agreements Slate signed.
Slate seeks discovery before responding to the pending motions
relating to whether the Defendants are actually an arm of a Native
American tribe and whether the arbitration clause in his loan
agreement is valid.
As to Slate's request for discovery relating to sovereign immunity,
Judge Lefkow opines that there are detailed and specific
allegations supporting Slate's claim that MaxLend is not actually a
tribal commercial entity but that it has "rented a tribe" in order
to evade predatory lending laws. So, Slate's allegations are
sufficient to demonstrate that discovery related to the
Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and
Resort, 629 F.3d 1173 (10th Cir. 2010), issues is justified. For
these reasons, the motion for discovery is granted, to be
supervised in scope by the designated magistrate judge.
As to Slate's motion for discovery relating to the validity of the
arbitration clause, Judge Lefkow is not persuaded that he has made
a threshold showing that, if one assumes the validity of the loan
agreements, the arbitration clause would be invalid. If, as he
argues, the arbitration clause is a sham amounting to a prospective
waiver of all federal and state statutory rights, Slate does not
identify what factual issues other than the scope of the waivers
made in the loan agreements need to be explored.
Judge Lefkow denies the motion for discovery related to the
validity of the arbitration clause. She says if the loan agreement
itself turns out to be void, then the question of enforceability of
any of its provisions would present only questions of law. For
reasons of judicial economy, she denies the Defendants' other
pending motions without prejudice to refiling following the close
of limited discovery.
For these reasons, Judge Lefkow grants in part and denies in part
the Plaintiff's motion to take discovery and defer response. She
allows the Plaintiff to take discovery limited to factors relevant
to the Defendants' claim of sovereign immunity. Supervision of this
discovery, including scope, timing, and motions, is referred to the
designated magistrate judge.
Judge Lefkow denies the motion for discovery related to the
validity of the arbitration clause without prejudice to renewal
after resolution of the sovereign immunity defense. She denies
without prejudice the Defendants' motion to dismiss, motion to
compel arbitration, and motion to strike class allegation without
prejudice to renewal after the designated magistrate judge has
closed threshold discovery.
A full-text copy of the Court's May 17, 2023 Opinion & Order is
available at https://rb.gy/jmdx7 from Leagle.com.
MCGEE AIR: $420K Class Settlement in Ibrahim Suit Wins Prelim. OK
-----------------------------------------------------------------
In the case, Mohamed Ibrahim on behalf of himself and others
similarly situated, Plaintiffs v. McGee Air Services Inc., a
Washington Corporation, and Does 1 through 50, Inclusive,
Defendants, Case No. 3:22-CV-00744-VC (N.D. Cal.), Judge Vince
Chhabria of the U.S. District Court for the Northern District of
California grants the Plaintiff's motion for preliminary approval
of the settlement of the class action and PAGA claims.
The Gross Settlement Amount means a non-reversionary common fund of
a total all-in value of $420,000 and includes without limitation
any and all payments the Defendant may be responsible for under the
Settlement, including any Fees Award and Costs Award to the Class
Counsel, the Named Plaintiff Enhancement Payment, the Class Member
Payments, the PAGA Payment (which includes payments to the
California Labor and Workforce Development Agency), and Settlement
Administration Costs.
On May 11, 2023, at 1:00 p.m., in Courtroom 5 of the Court, via
Video, Judge Chhabria heard the Plaintiff's Amended Motion for
Preliminary Approval. He grants the Plaintiff's motion for
preliminary approval of the settlement of the class action and PAGA
claims.
The Settlement Class described in the settlement is conditionally
certified for settlement purposes. The Settlement Class means all
current and former California employees (both exempt and
non-exempt) who worked for McGee as agents, including station
agents, aircraft fleet, aircraft agents, ramp agents, customer
service agents, interline agents and/or as supervisors of those
positions during the Settlement Class Period, Dec. 30, 2017,
through the date of preliminary approval of the Settlement.
The Settlement also involves a PAGA Group, who worked from Oct. 26,
2020, through the date of preliminary approval of the Settlement.
The PAGA Group members, unlike members of the Settlement Class,
cannot opt out of the Group. The Settlement Class members may opt
out of the settlement or object to the Settlement within 45 days
after the date of mailing or transmission of the class notice by
the Settlement Administrator.
Judge Chhabria preliminarily approves the Stipulation of Settlement
of Class Action and Release of Claims between the Plaintiff and the
Defendant as appropriate under Fed R. Civ. P. 23(e)(1)(B) because
it is likely to satisfy the standard for final settlement approval
under Fed R. Civ. P. 23(e)(2).
Judge Chhabria approves the form of the Notice to the Settlement
Class as it provides class members with the information they need
about the proposed Settlement and approves the method of
dissemination of notice as it meets the requirements of Due
Process.
Judge Chhabria appoints (i) named Plaintiff Mohamed Ibrahim as the
Class Representative; (ii) the Law Offices of Matthew Kumin as the
Class Counsel; and (iii) CPT to serve as the Settlement
Administrator. He directs the Settlement Administrator to provide
notice to class members as set forth in the Settlement.
Judge Chhabria sets the following deadlines:
a. Transmission of Settlement Class List and PAGA Aggrieved
Employee Lists from McGee to Settlement Administrator - 21 days
after entry of preliminary approval order
b. Notice of Class Action Settlement mailed to - 14 days after
transmission of Class Members Settlement Class List and PAGA
Aggrieved Employee Lists
c. Motion for Attorneys' Fees and Expenses - 14 days before
opt-out and objections deadline
d. Deadline for Opt-outs and Objections - 45 days after
mailing of notice
e. Motion for Final Approval and Class Representative Service
Award - 35 days before final approval hearing
f. Reply Brief(s) in Support of Motions for Final Approval,
Attorneys' Fees, and Service Award - 7 days before final approval
hearing
g. Final Approval Hearing - Aug. 31, at 1 p.m. by Zoom
At the Final Fairness Hearing, the Court will consider whether the
Settlement should be finally approved as fair, reasonable and
adequate under Rule 23(e) of the Federal Rules of Civil Procedure
and rule on the motion for attorney's fees, costs and service award
to be submitted by Plaintiff.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/ybeu5y4k from Leagle.com.
Matthew Kumin -- matt@mattkuminlaw.com -- Law Office of Matthew
Kumin, Oakland, CA, Attorneys for the Plaintiff and the Putative
Class and PAGA Representatives.
MDL 2972: Blackbaud Opposition to Martin Class Cert Bid Due June 9
------------------------------------------------------------------
In the class action lawsuit captioned as Martin v. Blackbaud Inc.,
Case No. 3:20-cv-03286 (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 Martin 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/3q8uvcI at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Mortensen Class Cert Due June 9
-----------------------------------------------------------------
In the class action lawsuit captioned as Mortensen v. Blackbaud
Inc., Case No. 3:20-cv-04042 (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 Mortensen 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/3qbigvW at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Sloane Class Cert Bid Due June 9
------------------------------------------------------------------
In the class action lawsuit captioned as Sloane v. Blackbaud Inc.,
Case No. 3:20-cv-04380 (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 Sloane 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/3Mr5HnX at no extra charge.[CC]
MENZIES AVIATION: Zakay Law Files Labor Class Action in California
------------------------------------------------------------------
The Los Angeles labor law attorneys, at Zakay Law Group, APLC and
JCL Law Firm, APC, filed a class action complaint against Menzies
Aviation (USA) Inc., Aircraft Service International, Inc. and Air
Menzies International (USA) Inc. (collectively, hereinafter,
"Menzies Aviation") for allegedly failing to provide employees with
timely, off-duty meal and rest periods. The Menzies Aviation class
action lawsuit, Case No. 23STCV09054, is currently pending in the
Los Angeles County Superior Court of the State of California. A
copy of the complaint can be read here.
According to the lawsuit, Menzies Aviation allegedly violated
California Labor Code Sections 201, 202, 203, 204, 226, 226.7, 246,
510, 512, 558,, 1174(d), 1194, 1197, 1197.1, 1198, 2800, 2802 and
2804 by failing to: (1) pay minimum wages; (2) pay overtime wages;
(3) provide meal and rest periods; (4) provide accurate itemized
wage statements; (5) provide wages when due; (6) reimburse for
required business expenses; and (7) pay sick pay.
As a result of their rigorous work schedules, Menzies Aviation's
employees were allegedly unable to take off duty rest breaks and
were not fully relieved of duty for rest periods. Specifically, the
lawsuit alleges employees were required from time-to-time to work
in excess of four (4) hours without being provided ten (10) minute
rest periods as a result of their overburdened work requirements
and inadequate staffing. Further, the lawsuit alleges these
employees were denied their first rest periods of at least ten (10)
minutes for some shifts worked of at least two (2) to four (4)
hours from time to time, a first and second rest period of at least
ten (10) minutes for some shifts worked of between six (6) and
eight (8) hours from time to time, and a first, second and third
rest period of at least ten (10) minutes for some shifts worked of
ten (10) hours or more from time to time. Additionally, Menzies
Aviation's employees were also allegedly not provided with one-hour
wages in lieu thereof. As a result of their allegedly rigorous work
schedules and inadequate staffing, Menzies Aviation's employees
were from time to time allegedly denied their proper rest periods
by Menzies Aviation.
If you would like to know more about the Menzies Aviation lawsuit,
please contact Attorney Jackland Hom today by calling (619)
255-9047.
Zakay Law Group, APLC and JCL Law Firm, APC are labor and
employment law firms with offices located in California that
dedicate their practices to fighting for employees who have been
wronged by their employers due to unfair employment practices.
Contact one of their attorneys today if you need help with
workplace issues regarding wage and hour, wrongful termination,
retaliation, discrimination, and harassment. [GN]
MID-CENTURY INSURANCE: Averts Class Action Over Recorded Calls
--------------------------------------------------------------
Scott Holland, writing for Cook County Record, report that a state
appeals panel has agreed the owner of a Northwest Side French
catering company can't pursue its class action complaint accusing
its insurance provider of surreptitious telephone recordings.
Cook County Circuit Court Judge Anna Demacopolous dismissed
complaint the complaint brought by bakery and catering company Cook
Au Vin against Mid-Century Insurance Company in March 2022, ruling
the company lacked standing to sue regarding a conversation between
its attorney, William Meyer, and the insurer, a subsidiary of
Farmers Insurance Group.
According to court records, Cook Au Vin, which opened in 2005,
wanted Mid-Century to pay more than $360,000 from its general
commercial liability policy for losses sustained during
government-ordered Covid closures starting in March 2020. It filed
the claim on July 2, 2020, and the call in question happened the
same day when Mid-Century Claim representative Erin Dufner called
Meyer.
When Dufner notified Meyer the call was being recorded, according
to a transcript, Meyer interjected to indicate a preference that
not be the case. Dufner said she didn't know whether it would be
possible to turn off the recording device. After a brief exchange
about contact information, Meyer again objected to the recording.
"Both I and my client do not consent to recording of phone calls,"
Meyer said, informing Dufner of his belief she violated a state
eavesdropping law.
Cook Au Vin challenged the dismissal before the Illinois First
District Appellate Court. Justice Debra Walker wrote the panel's
opinion, issued May 24; Justices Margaret Stanton-McBride and Jesse
Reyes concurred.
"The eavesdropping statute prohibits the surreptitious recording of
a private conversation by one who is not a party to the
conversation," Walker wrote. And although the restaurant
acknowledged "Meyer and Dufner were the actual parties to the
recorded conversation," she continued, it insisted it also was a
party in interest due to Meyer's role as its attorney-agent in
relation to the insurance policy.
The panel said there are situations in which a corporation can be
legally considered party to a private conversation when an employee
or officer is speaking strictly as a company representative, but
"Meyer's role as plaintiff's attorney is legally distinguishable
from that of a corporate officer," Walker wrote.
Even Meyer's role as Cook Au Vin's hired attorney was sufficient to
establish standing, the panel continued, dismissal also would be
proper under a different part of the law because Mid-Century
adequately argued the restaurant's complaint had incurable
defects.
The law Mid-Century allegedly violated "requires consent only if
the eavesdropping device is used in a surreptitious manner to
record a private conversation," Walker wrote. "(Cook Au Vin's) lack
of consent is not a factor unless we find that Mid-Century made a
surreptitious recording and that it did so to record a private
conversation."
The transcript showed Dufner announced the call was recorded, the
panel said, which negated any surreptitiousness. Cook Au Vin
insisted Dufner was late to disclose this fact, but Walker wrote
the transcript shows "Dufner informed Meyer of the recording as
soon as she had the opportunity to do so. When Dufner called Meyer
and identified herself, Meyer requested a moment to get his notes
so he could write down her name and telephone number. Dufner gave
him that information and then immediately informed Meyer that the
call was being recorded."
The panel also noted the conversation was in no way secret or
something Mid-Century "could not otherwise have heard." While Cook
Au Vin insisted it, through Meyer, expected the phone call to be
private, the panel said that expectation was unreasonable to the
degree needed to sustain the complaint.
"Dufner called Meyer to obtain information to process plaintiff's
insurance claim, and plaintiff has not alleged that it did not
expect Dufner to forward that information to other employees at
Mid-Century," Walker wrote. "Furthermore, Mid-Century had a valid
reason for recording the conversation. Dufner informed Meyer that
the call was being recorded for customer service purposes. If
Dufner had to take written notes on the conversation, she might
have misquoted information given by Meyer. An audio recording in
this situation is the best evidence of the words spoken."
While the restaurant said Dufner's claimed inability to stop the
recording revealed an improper excuse for recording, the panel said
that logic was conclusory and unsupported by factual evidence.
Cook Au Vin has been represented by attorneys from Fuksa Khorshid,
of Chicago.
Representing Mid-Century is the Chicago firm of Locke Lord. [GN]
MONSANTO CO: Racine County Receives PCB Class Action Checks
-----------------------------------------------------------
Rachel Kubik, writing for The Journal Times, reports that local
governments are receiving checks from Monsanto in connection to a
class action lawsuit regarding water quality.
Racine County has received $2,003,786 and Caledonia has received
$634,634. Neither has decided how it will spend the money.
Plaintiffs in the case asserted that Monsanto manufactured a class
of industrial chemicals called polychlorinated biphenyls between
the 1930s and 1977 that allegedly impaired the environment,
including bodies of water.
Monsanto's best known product was Roundup, a glyphosate-based
herbicide, developed in the 1970s. Monsanto was acquired by Bayer
in 2018.
Plaintiffs alleged that PCBs are present at sites and public
properties, including in stormwater, wastewater systems, water
bodies, natural resources, and fish and wildlife, and sought
compensatory damages and relief. [GN]
NATIONAL GRID: Summary Judgment Bid in Nightingale Suit Allowed
---------------------------------------------------------------
In the case, ROBERT NIGHTINGALE, Plaintiff v. NATIONAL GRID USA
SERVICE COMPANY, INC., FIRST CONTACT LLC, and IQOR US INC.,
Defendants, Civil Action No. 19-12341-NMG (D. Mass.), Judge
Nathaniel M. Gorton of the U.S. District Court for the District of
Massachusetts allows the Defendants' motion for summary judgment.
The lawsuit involves claims of unfair and deceptive business
practices in violation of regulations promulgated by the
Massachusetts Attorney General under the Massachusetts Consumer
Protection Act, M.G.L. c. 93A, Section 2. Nightingale brought the
action under section 9 of that statute on behalf of himself and a
putative class against National Grid, iQor, and its subsidiary
First Contact. The Court denied the Plaintiff's motion for class
certification in April 2023. Now pending before the Court is the
Defendants' motion for summary judgment.
Nightingale is a resident of Boston, Massachusetts. National Grid
is an electricity, natural gas, and energy delivery company with a
principal place of business in Waltham, Massachusetts. iQor
provides business process services, including first-party debt
collection services. First Contact is a wholly owned subsidiary of
iQor and provides business support services. iQor is a Florida
corporation and First Contact is a limited liability company
located in St. Petersburg, Florida.
The Plaintiff alleges that he incurred a debt to National Grid for
electricity services and that National Grid contracted with First
Contact and iQor to collect that debt. In 2018, the Defendants are
alleged to have called the Plaintiff's phone more than two times
within a seven-day period on multiple occasions. Nightingale claims
that the Defendants' repeated calls: 1) caused him emotional
distress, 2) wasted his time and deprived him of the use of his
phone and 3) invaded his personal privacy.
In October 2018, the Plaintiff filed suit in Massachusetts Superior
Court on behalf of himself and a putative class of Massachusetts
consumers against National Grid. During discovery, National Grid
represented that it had contracted with First Contact to place
first-party collection calls on its behalf. In September 2019,
Nightingale filed a second amended complaint naming First Contact
and iQor as co-defendants. The Defendants then collectively removed
the action to this Court pursuant to the Class Action Fairness Act,
28 U.S.C. Section 1453(b).
The Defendants filed a motion to dismiss the second amended
complaint for failure to state a claim which the Court denied in
August 2020. In December 2022, the Plaintiff moved to certify a
class and a sub-class of Massachusetts residents who were called
more than twice within a seven-day period regarding their debts to
National Grid. The Court denied that motion in April 2023.
The Defendants moved for summary judgment in October 2022, which
the Plaintiff has opposed. The Plaintiff has also filed motions to
exclude certain testimony and to certify a question of law to the
Massachusetts Supreme Judicial Court ("the SJC"). Those
non-dispositive motions are not related to or dependent upon the
resolution of the Plaintiff's motion for class certification or the
Defendants' pending motion for summary judgment and they are, in
fact, rendered moot by virtue of the Court's instant decision.
First, Judge Gorton holds that the alleged conduct in the case at
bar does not rise to nearly the same level of outrageousness.
Nightingale's conclusory characterization of the subject debt
collection calls as being akin to stalking and/or "violating" does
not create a genuine dispute of material fact with respect to his
claimed emotional damages.
Next, apart from his speculation about the potential effect of
simultaneous calls or being put in a hypothetical bad mood, Judge
Gorton says there is no indication, based upon the Plaintiff's call
records or testimony, that he was deprived of the use of his phone
or lost an appreciable amount of time due to the calls. Although
the Court does not dismiss the argument that tying up someone's
phone or wasting their time might constitute a "distinct injury or
harm" for purposes of Section 9 in other factual circumstances, the
undisputed facts demonstrate that the Plaintiff did not suffer a
distinct injury separate from the statutory violation of Section
2.
Finally, Judge Gorton holds that a reasonable fact-finder could
determine that the calls placed by the Defendants were unreasonable
relative to their purpose but could not determine that they caused
a substantial or serious intrusion upon the sphere of personal
privacy maintained by Nightingale. Also, there is no background
context of ill-gotten personal information and it would be improper
to infer that the collection calls to Nightingale, standing alone,
caused an invasion of Nightingale's personal privacy.
For the foregoing reasons, Judge Gorton allows the Defendants'
motion for summary judgment.
A full-text copy of the Court's May 19, 2023 Memorandum & Order is
available at https://tinyurl.com/y6xreuur from Leagle.com.
NATIONAL RIFLE: Faces Class Action Over Automated Text Messages
---------------------------------------------------------------
Kelly Mehorter, writing for ClassAction.org, reports that a
proposed class action alleges the National Rifle Association of
America Political Victory Fund (NRA-PVF) has illegally sent
automated text messages to consumers nationwide without consent.
The 12-page lawsuit claims the Virginia-based political action
committee (PAC), which contributes money to political campaigns of
candidates endorsed by the NRA, has violated the federal Telephone
Consumer Protection Act (TCPA) by failing to secure recipients'
permission before sending them automated text messages to promote
its political agenda.
The plaintiff, an Arizona woman who claims to have no relationship
with the organization and never consented to be contacted, says she
received an unsolicited text from the NRA-PVF on November 6 last
year.
Per the case, the message included a video file that was
automatically downloaded to her phone and contained an artificial
or prerecorded voice. The TCPA prohibits the use of an artificial
or prerecorded voice to deliver a message for non-emergency
purposes without consent, the filing notes.
The plaintiff says the spam text was an "invasion of her privacy"
and a "disruption to her daily life," causing her "aggravation" and
"annoyance."
According to the case, the defendant has subjected "thousands, if
not tens-of-thousands" of Arizonians to its "intrusive" automated
text messages, which the PAC allegedly sent out "en mass without
variation."
The lawsuit looks to represent anyone in the United States who,
within the past four years, was sent a text message from the
National Rifle Association of America Political Victory Fund or
anyone on its behalf to their cellular telephone number or
residential line that included an artificial or prerecorded voice
in a video without their prior express consent. [GN]
NATIONSBENEFITS LLC: Fails to Prevent Data Breach, Banks Says
-------------------------------------------------------------
BEVERLY BANKS; RANDALL LYNN CARTER; JAMES CRAIG; BARBARA KOSBAB;
LAWRENCE KOSBAB; STEPHEN LAZAROFF; ROBERTA PLATT; RICHARD XAVER;
CYNTHIA WHITES; VALARIE VENEZIA; and NICHOLAS VENEZIA, individually
and on behalf of all others similarly situated, Plaintiffs v.
NATIONSBENEFITS, LLC, Defendant, Case No. 0:23-cv-60976-AHS (S.D.
Fla., May 24, 2023) alleges Defendant's violation of the Arkansas
Deceptive Trade Practices Act ("ADTPA")
The Plaintiffs allege in the complaint that the Defendant failed to
adequately safeguard the sensitive, and valuable Private
Information between January 28, 2023, and January 30, 2023, and the
Defendant allowed the Private Information of the Plaintiffs and
millions of other individuals to be accessed and exfiltrated by an
unauthorized third-party (the "Data Breach"). Despite the
occurrence of the Data Breach in January 2023, the Defendant did
not begin notifying impacted individuals such as the Plaintiffs and
Class Members until April 27, 2023. This delay deprived the
Plaintiffs and Class Members of the opportunity to take meaningful
steps to mitigate the impact of the Data Breach, say the
Plaintiffs.
As a result, the Plaintiffs and Class Members are at substantially
increased risk of identity theft, both currently and for the
indefinite future. Plaintiffs' and Class Members' Private
Information -- including their names linked with their dates of
birth, health plan identification numbers, Medicare identification
numbers, and Social Security numbers which were compromised by
cyber criminals in the Data Breach -- is highly valuable to bad
actors who may seek to commit fraud and identity theft, the suit
asserts.
NATIONAL BENEFIT SOLUTIONS LLC is a benefits consulting company.
The Company provides consumers with information about employer and
employee benefits.
The Plaintiff is represented by:
Eric S. Dwoskin, Esq.
DWOSKIN WASDIN LLP
433 Plaza Real, Suite 275
Boca Raton, FL 33432
Telephone: (561) 849-8060
Email: edwoskin@dwowas.com
- and -
Erin Green Comite, Esq.
Anja Rusi, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
156 South Main Street
P.O. Box 192
Colchester, CT 06145
Telephone: (860) 537-5537
Facsimile: (860) 537-4432
Email: ecomite@scott-scott.com
arusi@scott-scott.com
- and -
Joseph P. Guglielmo, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6344
Email: jguglielmo@scott-scott.com
- and -
Ian W. Sloss, Esq.
Steven L. Bloch, Esq.
Brett Burgs, Esq.
SILVER GOLUB & TEITELL LLP
One Landmark Square, Floor 15
Stamford, CT 06901
Telephone: (203) 325-4491
Facsimile: (203) 325-3769
Email: isloss@sgtlaw.com
sbloch@sgtlaw.com
bburgs@sgtlaw.com
NEW JERSEY: Skelton May Serve Howard and Myers by Alternative Means
-------------------------------------------------------------------
In the case, RAYMOND SKELTON, Plaintiff v. NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al., Defendants, Civil No. 19-18597 (RMB/SAK)
(D.N.J.), Magistrate Judge Sharon A. King of the U.S. District
Court for the District of New Jersey, Camden Vicinage, grants
Skelton's motion for an order allowing service of process upon
Defendants Jamil Howard and Candice Myers by alternative means.
On Dec. 15, 2022, the Plaintiff filed his Second Amended Class
Action Complaint ("SAC") naming seventeen new individual
defendants. To date, service of the Plaintiff's SAC has either been
accepted or waived on behalf of all but two of the Defendants --
namely, Howard and Myers. Summons was issued for both parties on
March 3, 2023.
Service upon Howard was first attempted at his last known address
by a process server on March 21, 2023. However, the property was
vacant, and the utilities had been shut off. The counsel then
performed his own investigation to identify other last known
address(es) for Howard and another address was obtained. Service
was attempted by the process server at this address -- an apartment
located in Morrisville, Pennsylvania -- on March 30, 2023. While no
one answered the door, a television was heard inside the residence.
Further attempts were made at this address to no avail on April 4,
2023, April 7, 2023, April 10, 2023, and April 17, 2023. Service
was next attempted by the Plaintiff's process server at Howard's
place of employment on May 1, 2023. However, an employee stated
that Howard was not available at the time.
On March 21, 2023, service on Myers was first attempted by a
process server at her home address, where there was no answer. On
March 22, 2023, the process server again attempted service at
Myers' home address without success. During another attempt, on
March 25, 2023, the process server spoke with an individual who
indicated she was a resident and that Myers resided there but
refused to respond to the door. The process server also observed a
package addressed to Myers and a call/mailbox listing Myers as a
resident.
On March 27, 2023, the process server returned to Myers' residence
and was greeted by a woman who identified herself as Myers'
daughter. The woman opened the door revealing a lady who identified
herself as Myers, refused to accept documents, and asked to send
any correspondence to her lawyer. Additional attempts were made to
no avail on March 31, 2023, April 5, 2023, and April 10, 2023. The
counsel then contacted Myer's purported counsel, who stated that
they were not representing Myers in the present matter and would
not be accepting service on her behalf. Service was next attempted
by the process server at Myers' place of employment on May 1, 2023.
However, an employee stated that Myers was not available at the
time.
The Plaintiff now moves for an Order to permit service of process
upon Defendants Howard and Myers by alternative means. His motion
is supported by the Affidavit of Keith Altman, Esquire, his
counsel. Attached thereto as Exhibits A and B are Affidavits of
Non-Service regarding all service attempts on Defendants Howard and
Myers, respectively. Despite the Plaintiff's repeated attempts to
personally serve Howard and Myers, the Plaintiff has been unable to
do so.
The Plaintiff asserts that Howard and Myers reside at the addresses
where service has been attempted but that they are clearly avoiding
service. He further asserts that he has incurred expenses in his
repeated attempts to personally serve them. Thus, the Plaintiff now
seeks to serve Howard and Myers by leaving process at their usual
places of residence and by also mailing copies via certified
first-class mail to their addresses.
Judge King is satisfied that the Plaintiff has demonstrated due
diligence in his attempts to locate and serve Howard and Myers. She
finds that the Plaintiff has exercised due diligence by
demonstrating in detail his good faith, exhaustive efforts to
search, find, and serve the Defendants, who appear to be evading
service.
Moreover, Judge King finds that the Plaintiff's submissions in
support of his motion for alternative service establish that the
proposed method of service would involve a process server leaving a
copy of the Summons and SAC at each Defendants' usual place of
residence, and by also mailing a copy via certified first-class
mail to the residence. While this alternative method of
"leave-and-mail" service is not expressly contemplated by New
Jersey Court Rules, it is certainly permissible, if it is
consistent with due process of law. Given the particular facts and
circumstances in the case, the Court finds that Plaintiff's
proposed method of service is consistent with the elementary and
fundamental requirement of due process.
Accordingly, Judge King grants the Plaintiff's motion. The
Plaintiff will serve Howard and Myers in accordance with her
Opinion and Order by June 9, 2023.
A full-text copy of the Court's May 19, 2023 Opinion & Order is
available at https://tinyurl.com/39vac8h5 from Leagle.com.
NEW YORK, NY: $2.45MM Class Settlement to be Heard on Aug. 23
-------------------------------------------------------------
Sysco Metro v. The City of New York
Index No. 101637/2015
NOTICE OF SETTLEMENT
If you are the registered owner or lessor of a Tractor that was
issued a parking summons from the City of New York between January
1, 2014, and May 2, 2022, and the summons contained a description
of the vehicle body type on the summons as something other than a
Tractor, and the Tractor is not enrolled in a Reduced Fine Program,
you may be entitled to a payment from a class action settlement.
This Notice may affect your legal rights. Please read it
carefully.
A Court has authorized this Notice. This is not a solicitation from
a lawyer.
This Notice informs you of a proposed settlement in a class action
lawsuit concerning Body Type Summonses issued by the City of New
York to Tractors.
The lawsuit is Sysco Metro v. The City of New York, Index No.
101637/2015 (the "Action"), in the Supreme Court of the State of
New York, County of New York (the "Court). In the Action,
Petitioner alleges that Respondents violated the Vehicle and
Traffic Law by enforcing parking summonses in which the body type
description of a Tractor was listed incorrectly as something
other than a Tractor. Respondents deny these allegations and any
wrongdoing or unlawful conduct.
The purpose of this Notice is to inform you of this Action, the
proposed settlement of the Action (the "Settlement"), and a hearing
to be held by the Court to consider: (i) whether
the Settlement should be approved; (ii) whether the proposed plan
for allocating the proceeds of the Settlement (the "Plan of
Allocation") should be approved; and (iii) the application by the
attorneys for the Petitioner Class (Class Counsel) for attorneys'
fees and expenses. This Notice describes important rights you may
have and what steps you must take if you want to participate in the
Settlement, want to object, or want to be excluded from the
Settlement Class.
If approved by the Court, the proposed Settlement will create a
$2,450,000 (two million four hundred fifty thousand dollars)
Settlement Fund for the benefit of eligible Settlement Class
Members, less attorneys' fees and expenses (amount to be determined
by the Court), Notice and Administrative Costs, and taxes (the "Net
Settlement Fund").
The settlement resolves claims by Sysco Metro, NY, LLC ("Sysco" or
"Petitioner"), on behalf of itself and all members of the
Settlement Class against the City of New York and the New York City
Department of Finance Commercial Adjudications Unit a/k/a
Adjudication Division (collectively, "Respondents" or the "City of
New York") (together with Respondents, the "Parties"). It releases
the Respondent Releasing Parties (defined below) from liability.
If you are a Settlement Class Member, your legal rights will be
affected by this Settlement whether you act or do not act. Please
read this Notice carefully.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT A CLAIM FORM BY
AUGUST 9, 2023
The only way to get a payment under this Settlement.
EXCLUDE YOURSELF FROM
THE CLASS BY JULY 19, 2023
Get no payment. This option is the only one, assuming your claim is
timely brought, that might allow you to ever bring or be part of
any other lawsuit against the Respondent Releasing Parties
concerning the Class Released Claims.
OBJECT BY JULY 19, 2023
Write to the Court about why you do not like the Settlement or the
attorneys' fees and expense application. If you object, you still
will be a member of the Settlement Class. See Question 10 below for
details.
GO TO A HEARING AUGUST 23, 2023, AT 10:00 A.M., AND
FILE A NOTICE OF INTENTION TO APPEAR BY
JULY 19, 2023
Ask to speak in Court at the Settlement Hearing about the
Settlement.
DO NOTHING
Get no payment AND give up your rights to bring your own individual
action.
This Notice explains rights and options—and the deadlines to
exercise them.
The Judge in charge of this case still must decide whether to
approve the Settlement. Payments will be made to all Settlement
Class Members who timely submit valid Claim Forms if the Court
approves the Settlement and the Settlement becomes effective. This
Notice summarizes the proposed Settlement. For the precise terms
and conditions of the Settlement, please see the
Settlement Agreement, available at
www.nyctractorticketsettlement.com, or contact the
Settlement Administrator at P.O. Box 225391, New York,
NY 10150-5391.
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK'S OFFICE
TO INQUIRE ABOUT THIS SETTLEMENT OR THE CLAIMS PROCESS.
NEW YOU BARIATRIC: Fails to Pay Proper Wages, Colvin Alleges
------------------------------------------------------------
DYSHAWN COLVIN, individually, and on behalf of all others similarly
situated, Plaintiff v. NEW YOU BARIATRIC GROUP, LLC, Defendant,
Case No. 154686/2023 (N.Y. Sup., New York Cty., May 24, 2023) is a
class action against the Defendant seeking to recover Plaintiff's
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs.
Plaintiff Colvin was employed by the Defendant as a manual worker.
NEW YOU BARIATRIC GROUP, LLC provides bariatric weight loss
solutions in the Dallas-Fort Worth, Texas area through use of
gastric bypass, sleeve and more. [BN]
The Plaintiff is represented by:
Abdul K. Hassan, Esq.
215-28 Hillside Avenue
Queens Village, NY 11427
Telephone: (718) 740-1000
Facsimile: (718) 355-9668
Email: abdul@abdulhassan.com
NEXTERA ENERGY: Court Narrows Claims in Stallbaumer Class Suit
--------------------------------------------------------------
In the case, JUSTIN STALLBAUMER, Plaintiff v. NEXTERA ENERGY
RESOURCES, LLC, et al., Defendants, Case No. 22-cv-04031-HLT-ADM
(D. Kansas), Judge Holly L. Teeter of the U.S. District Court for
the District of Kansas:
a. grants in part and denies in part the Defendants' Motion to
Dismiss the Amended Complaint for Lack of Personal
Jurisdiction and Failure to State a Claim; and
b. denies as moot the Plaintiff's Motion for Leave to File
Surreply Brief and Motion for Leave to File Corrected
Exhibit.
The case arises out of the construction of wind turbines in Kansas.
The Plaintiff is a property owner in Nemaha County, Kansas. The
Defendants are three entities that the Plaintiff contends are
responsible for constructing the wind farm near his property. The
Plaintiff asserts claims for nuisance, violation of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
Sections 1961-1968, and civil conspiracy. He also asserts class
claims on behalf of others who suffered damages for which the
Defendants are liable. The Defendants move to dismiss all claims on
various grounds.
The Plaintiff owns a farm in Nemaha County, Kansas, less than two
miles from the city of Corning, Kansas. His farm is near land on
which Defendants have constructed industrial wind turbines. The
wind turbines are part of a project known as the Soldier Creek Wind
Project.
The Defendants are NextEra Energy Resources LLC ("NEER"), NextEra
Energy Project Management LLC ("NEPM"), and Soldier Creek Wind LLC.
They are engaged in power generating activities, including the
Project.
The first claim asserted is for nuisance. The Plaintiff alleges
that the Defendants developed, constructed, engaged in related
regulatory, legal, and public interface matters, and continue to
operate the Project with its massive tower array near his property.
He experiences annoying or severe noise, light, or shadow
distractions from the wind turbines about 85-90% of the time. He
alleges that the Defendants placed towers too close and in too high
concentration to non-participating properties.
The Plaintiff's second claim is a civil RICO claim. He alleges NEER
and NEPM operated the Soldier Creek enterprise by engaging in
predicate acts of racketeering. He also alleges that Westar Energy,
"in a conspiracy with the Defendants," threatened to fire a Corning
city councilman from his position at Westar unless he refrained
from voting in a way adverse to the Defendants' interest or
advocating against the Project. He alleges these actions violated
K.S.A. Section 21-6001 (bribery) and K.S.A. Section 21-5922
(interference with the conduct of public business through coercion
or intimidation).
The Plaintiff's third claim is for civil conspiracy under Kansas
law. He alleges the Defendants had a meeting of the minds on how to
obtain their objective, they committed acts in furtherance of that
objective, and had a meeting of the minds and cooperated to engage
in overt acts of intimidation, coercion, or deception against local
officials, and/or local citizens, and committed unlawful conduct
actionable in tort and otherwise violated the law in an actionable
manner and damages to him and the putative class were the proximate
result.
The Plaintiff's amended complaint finally includes class claims.
The class claims are based on Defendants' development of the
Project. Plaintiff identifies two classes:
1. Class: All owners of property and residents in Nemaha
County, Kansas that have suffered harm or damages resulting from
liable conduct of any Defendant based on claims made by Plaintiff
herein.
2. Subclass: All owners of property and residents in Nemaha
County, Kansas living within three miles of Corning, Kansas who
have suffered harm or damages resulting from liable conduct of any
Defendant based on claims made by Plaintiff therein.
This is the third case pending before the Court regarding the
Project, all of which involve the same attorneys and similar
issues. Like this case, the earlier cases sought to assert nuisance
claims against Soldier Creek and various NextEra entities. The
Court dismissed all NextEra entities from those cases, as well as
all claims except the nuisance claims against Soldier Creek, citing
Bloom v. NextEra Energy, Inc., 2022 WL 2918136 (D. Kan. 2022);
Renne v. NextEra Energy, Inc., 2022 WL 2918123 (D. Kan. 2022).
Thus, although the Court independently considers the pleadings in
this case, it notes that many of the arguments raised have been
directly addressed by those earlier two cases.
The Defendants move to dismiss all claims, arguing that the
Plaintiff fails to state any plausible claim for relief against
NEER, NEPM, or Soldier Creek.
First, Judge Teeter dismisses the Plaintiff's nuisance claim
against NEER and NEPM because they do not own or operate the
Project. She finds that the Plaintiff never moves beyond
conclusions to meaningfully argue how NEER and NEPM can be held
liable for nuisance under any of his theories. This fails to
satisfy well-established pleading standards.
Second, Judge Teeter denies the Defendants' motion to dismiss the
Plaintiff's nuisance claim as to Soldier Creek. She says the
amended complaint explains how the wind turbines near the
Plaintiff's property disrupt the use and enjoyment of various parts
of his home. Nor is the Court convinced that the Plaintiff's
damages are too conjectural or that his allegations assert only a
public nuisance. Further, to the extent the Plaintiff alleges a
nuisance based on negligence, that is pleaded in the alternative
and dismissal is not appropriate at this stage.
Third, Judge Teeter agrees with the Defendant that the amended
complaint falls short of plausibly alleging a pattern of
racketeering sufficient to state a RICO claim. She finds that the
Plaintiff has not alleged the type of long-term criminal activity
against which the RICO statute is aimed. His RICO claim must be
dismissed.
Fourth, Judge Teeter dismisses the Plaintiff's civil conspiracy
claim. She holds that to the extent the Plaintiff alleges that the
Defendants have formed a civil conspiracy, that claim must fail
because they are affiliated entities. Moreover, the conspiracy
claim against NEER and NEPM must likewise be dismissed. Although
the nuisance claim against Soldier Creek survives, a corporation is
not capable of conspiring with itself.
Finally, the Plaintiff's amended complaint include a section titled
"CLASS CLAIMS." In that section, he asserts claims on behalf of a
class and subclass who "have suffered harm or damages resulting
from liable conduct of any Defendant based on claims made by
Plaintiff herein." The Defendants move to strike and dismiss the
Plaintiff's class claims on grounds that a class could not be
certified because the proposed classes are impermissible fail-safe
classes, and the Court would have to determine the merits of a
person's substantive claim to determine if that person was a class
member.
Judge Teeter has little confidence that allowing further amendment
of the pleadings will be fruitful. She says it will mostly likely
result in yet another round of motions to dismiss, which will delay
the case that has already been pending for a year with little
progress. Accordingly, she strikes and dismisses the Plaintiff's
class claims.
Based on the foregoing, Judge Teeter grants in part and denies in
part the Defendants' Motion to Dismiss. She dismisses all claims
against NEER and NEPM for failure to state a claim. She likewise
dismisses the RICO, civil conspiracy, and class claims against
Soldier Creek. The sole surviving claim is a claim for nuisance
against Soldier Creek.
Judge Teeter denies as moot the Plaintiff's Motion for Leave to
File Surreply Brief and Motion for Leave to File Corrected Exhibit
because the Defendants have withdrawn the personal-jurisdiction
argument addressed in the proposed surreply.
A full-text copy of the Court's May 17, 2023 Memorandum & Order is
available at https://rb.gy/3b0d1 from Leagle.com.
PHARAOH ENERGY: Fails to Pay Proper Wages, Carlson Alleges
----------------------------------------------------------
RANDY CARLSON; and LUCAS NEWTON, individually and on behalf of all
others similarly situated, Plaintiff v. PHARAOH ENERGY SERVICES,
LLC, Defendant, Case No. 2:23-cv-00461 (D.N.M., May 25, 2023) seeks
to recover from the Defendant unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendant as field personnel.
PHARAOH ENERGY SERVICES, LLC is an oil and gas company, with a
portfolio of production and exploration assets in South East Asia
and the Middle East. [BN]
The Plaintiffs are represented by:
Josh Borsellino, Esq.
BORSELLINO, P.C.
1020 Macon St., Suite 15
Fort Worth, Texas 76102
3267 Bee Cave Rd., Ste. 107, Box # 201
Austin, TX 78746
Telephone: (817) 908-9861
Facsimile: (817) 394-2412
Email: josh@dfwcounsel.com
PHO VIETNAM: Fails to Pay Overtime Premiums, Nguyen Suit Claims
---------------------------------------------------------------
Hung Nguyen, on behalf of himself and others similarly situated in
the proposed FLSA Collective Action, Plaintiff v. Pho Vietnam 87
Corporation, Pho 87 Vietnamese Restaurant Inc., and Nancy Huynh,
Defendants, Case No. 1:23-cv-04298 (S.D.N.Y., May 23, 2023) arises
out of the Defendant's violations of the Fair Labor Standards Act,
and violations of Articles 6 and 19 of the New York State Labor Law
and their supporting New York State Department of Labor
regulations.
The Plaintiff was employed as a waiter at Defendants' restaurant
from approximately May 2022 to, through and including, May 2023.
During the entire employment period, the Plaintiff worked six days
per week as follows: from approximately 9:00 AM to 9:00 PM, for a
total period of approximately 72 during each of the weeks,
respectively. However, Plaintiff never received an overtime premium
of one and one-half times their regular rate of pay for the hours
worked in excess of 40 per week, says the suit.
Pho Vietnam 87 Corp. is a domestic corporation organized and
existing under the laws of the State of New York. It owns, operates
and/or controls a restaurant, known as "Pho 87 Vietnam", located at
87 Chrystie St., New York, New York.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-006
E-mail: Joshua@levinepstein.com
PLUG POWER INC: Buttar Sues Over Drop in Share Price
----------------------------------------------------
SHAFQUAT BUTTAR, individually and on behalf of all others similarly
situated, Plaintiff v. PLUG POWER INC.; ANDREW MARSH; PAUL B.
MIDDLETON; DAVID MINDNICH; and MARTIN D. HULL, Defendants, Case No.
1:23-cv-00576-UNA (D. Del., May 25, 2023) is a federal securities
class action on behalf of the Plaintiff and a class of all persons
and entities who purchased or otherwise acquired Plug common stock
between August 9, 2022, and March 1, 2023, inclusive, seeking to
pursue remedies under the Securities Exchange Act of 1934.
The Plaintiff alleges in the complaint that the Defendants made
materially false and misleading statements, as well as failed to
disclose material adverse facts, about the Company's business and
operations. Specifically, Defendants misrepresented and failed to
disclose that the Company was unable to effectively manage its
supply chain and product manufacturing, resulting in reduced
revenues and margins, increased inventory levels, and several large
deals being delayed until at least 2023, among other issues. As a
result, Defendants' statements about the Company's business,
operations, prospects, and ability to effectively manage its supply
chain and production lacked a reasonable basis.
The price of Plug common stock declined $0.88 per share, or more
than 6 per cent, from a close of $14.21 per share on March 1, 2023,
to close at $13.33 per share on March 2, 2023.
As a result of the Defendants' wrongful acts and omissions, and the
significant decline in the market value of the Company's common
stock when the truth was revealed, the Plaintiff and other members
of the Class have suffered significant damages, says the suit.
PLUG POWER, INC. operates as a green hydrogen company. The Company
focuses on building an end-to-end green hydrogen ecosystem, from
production, storage, and delivery to energy generation to help
customers meet business goals and decarbonize the economy, as well
as provides material handling, e-mobility, power generation, and
industrial applications.
The Plaintiff is represented by:
Ryan M. Ernst, Esq.
BIELLI & KLAUDER, LLC
1204 N. King Street
Wilmington, DE 19801
Telephone: (302) 803-4600
Email: rernst@bk-legal.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
600 Third Avenue, 20th Floor
POMERANTZ LLP
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
PRUDENT FIDUCIARY: Sued Over Mismanagement of Retirement Plan
-------------------------------------------------------------
LISA ARNOLD; BRANDI TROUT; and SANDRA GOLDEN-WOODS, individually
and on behalf of the Churchill Holdings, Inc. Employee Stock
Ownership Plan, and on behalf of all others similarly situated,
Plaintiffs v. MIGUEL PAREDES; PRUDENT FIDUCIARY SERVICES, LLC;
LAWSON H. HARDWICK, III; MATTHEW C. CLARKE; and CECIL O. KEMP, JR.,
Defendants, Case No. 3:23-cv-00545 (M.D. Tenn. May 26, 2023)
alleges violation of the Employee Retirement Income Security Act of
1974.
According to the complaint, the Plaintiffs seek to enforce their
rights under ERISA and the Churchill Holdings, Inc. Employee Stock
Ownership Plan ("Plan"), to recover the losses incurred by the Plan
and the improper profits realized by the Defendants resulting from
their causing prohibited transactions and breaches of fiduciary
duty or knowingly participating in prohibited transactions and
breaches of fiduciary duty, and failing to meet their duties as
co-fiduciaries, and equitable relief, including reforming the 2020
Transaction contracts, rescinding the 2020 Transaction, removing
the Trustee as a fiduciary and enjoining the Trustee from acting as
a fiduciary for any employee benefit plan that covers or includes
any Churchill employees or members of the Class, and removing
Hardwick, Clarke and Kemp as fiduciaries and enjoining them from
acting as fiduciaries for any employee benefit plan that covers or
includes any Churchill employees or members of the Class.
The Plaintiffs seek that the prohibited transactions be declared
void, the Defendants be required to restore any losses to the Plan
arising from their ERISA violations, Defendants be ordered to
disgorge to the Plan any improper profits, and any monies recovered
for the Plan to be allocated to the accounts of the Class members.
PRUDENT FIDUCIARY SERVICES, LLC provides professional Independent
Fiduciary, ERISA Consulting, and Expert Witness services related to
ESOPs and other employee benefit plans. [BN]
The Plaintiff is represented by:
Benjamin A. Gastel, Esq.
HERZFELD, SUETHOLZ, GASTEL,
LENISKI & WALL, PLLC
223 Rosa L. Parks Ave., Ste 300
Nashville, TN 37203
Telephone: (615) 800-6225
Facsimile: (615) 994-8625
Email: ben@hsglawgroup.com
- and -
Alyson S. Beridon, Esq.
HERZFELD, SUETHOLZ, GASTEL,
LENISKI & WALL, PLLC
425 Walnut St., Ste 2315
Cincinnati, OH 45202
Telephone: (513) 381-2224
Email: alyson@hsglawgroup.com
- and -
Gregory Y. Porter, Esq.
Ryan T. Jenny, Esq.
Mark G. Boyko, Esq.
BAILEY GLASSER LLP
1055 Thomas Jefferson St., NW, Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
Email: gporter@baileyglasser.com
rjenny@baileyglasser.com
mboyko@baileyglasser.com
- and -
Robert A. Izard, Esq.
Douglas P. Needham, Esq.
Christopher M. Barrett, Esq.
IZARD, KINDALL & RAABE, LLP
29 South Main Street, Suite 305
West Hartford, CT 06107
Telephone:(860) 493-6292
Facsimile: (860) 493-6290
Email: rizard@ikrlaw.com
dneedham@ikrlaw.com
cbarrett@ikrlaw.com
PRUDENTIAL INSURANCE: Moreland Must Show Why Suit Is Not Moot
-------------------------------------------------------------
In the case, SOCORRO MORELAND, Plaintiff v. THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, et al., Defendants, Case No.
20-cv-04336-RS (N.D. Cal.), Judge Richard Seeborg of the U.S.
District Court for the Northern District of California orders the
Plaintiff to file a supplemental brief showing why the action
should not be dismissed as moot, or why, at a minimum, class
certification should not be denied.
The hearing on the Plaintiff's motion for class certification, set
for May 25, 2023, is vacated.
By letter dated Sept. 16, 2022, the Defendant offered to reinstate
the Plaintiff's life insurance policy, without requiring payment of
premiums for the period the policy had been declared lapsed and
with credit for the "paid up additional units of insurance" that
otherwise would have accrued during that time. The letter advised
that the Plaintiff could accept the offer of reinstatement by
paying a $8.60 monthly premium by Nov. 13, 2022. It was copied to
the Plaintiff's counsel of record.
By letter dated Dec. 2, 2022, the Defendant advised the Plaintiff
that it had processed the reinstatement, applied his $8.60 payment,
and that his insurance coverage was in effect. The Plaintiff filed
his motion for class certification on Dec. 2, 2022. The Defendant
subsequently filed a declaration that the Plaintiff was current on
his payments as of Jan. 30, 2023 and that the policy remained in
force.
The Plaintiff's reply brief in support of class certification
argues class representatives are allowed to seek certification even
if they have already received complete relief on their individual
claims. For this proposition, he relies on Chen v. Allstate Ins.
Co., 819 F.3d 1136 (9th Cir. 2016). Chen, however, held only that a
defendant could not moot a named plaintiff's individual claims by
placing funds in escrow pending entry of judgment in the
plaintiff's favor.
The Plaintiff also cites to Deposit Guaranty Nat. Bank, Jackson,
Miss. v. Roper, 445 U.S. 326 (1980), but there too the claims were
not moot where at no time did the named plaintiffs accept the
tender in settlement of the case. In contrast, the Plaintiff was
offered what appears to be complete relief on his individual
claims, and he affirmatively acted to accept that relief.
Accordingly, within 10 days of the date of the Order, the Plaintiff
will file a supplemental brief, not to exceed 15 pages, showing why
the action should not be dismissed as moot, or why, at a minimum,
class certification should not be denied. Within 10 days
thereafter, the Defendant may file a response, also not to exceed
15 pages. The matter will then be taken under submission without
further briefing or oral argument, unless otherwise ordered.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/2x8tzwfs from Leagle.com.
QLS MANAGEMENT: Fails to Pay Proper Overtime Wages, English Says
----------------------------------------------------------------
ELIZABETH ENGLISH, on behalf of herself and all others similarly
situated, Plaintiff v. QSL MANAGEMENT LLC, Defendant, Case No.
3:23-cv-10894-MCR-ZCB (N.D. Fla., May 22, 2023), arises out of the
Defendant's violations of the Fair Labor Standards Act.
From approximately December 13, 2021 through February 24, 2023,
Plaintiff English worked for Defendant QSL in Charlottesville,
Virginia as a registered medication aide. This is a non-exempt,
hourly position entitled to overtime pay. Plaintiff contends that
Defendant has violated and continues to violate the FLSA by having
a policy and practice of failing to include non-discretionary
bonuses and similar forms of incentive compensation in calculating
overtime rates paid to Plaintiff and similarly situated employees
for work in excess of 40 hours per week or eight hours daily and 80
per pay period. This resulted and results in Plaintiff and
similarly situated employees receiving less overtime wages than
they are entitled to receive under the FLSA.
QSL Management LLC is a Delaware limited liability company with its
registered offices at 219 East Garden Street, Suite 400, Pensacola,
FL and at 125 S Alcaniz St Ste 2, Pensacola, FL. The company
operates numerous assisted living facilities in several states. It
often operates the facilities under the name "The Blake." [BN]
The Plaintiff is represented by:
Richard E. Johnson
LAW OFFICE OF RICHARD E. JOHNSON
314 West Jefferson St.
Tallahassee, FL 32301
Telephone: 850-425-1997
E-mail: rick@rej-law.com
- and -
Zev H. Antell, Esq.
BUTLER CURWOOD, PLC
140 Virginia Street, Suite 302
Richmond, VA 23219
Telephone: (804) 648-4848
Facsimile: (804) 237-1413
E-mail: zev@butlercurwood.com
- and -
Timothy Coffield, Esq.
COFFIELD PLC
106-F Melbourne Park Circle
Charlottesville, VA 22901
Telephone: (434) 218-3133
Facsimile: (434) 321-1636
E-mail: tc@coffieldlaw.com
REEDHEIN & ASSOCIATES: Adolph's Class Settlement Has Final Approval
-------------------------------------------------------------------
In the case, BRIAN ADOLPH, individually and on behalf of all others
similarly situated; KERRI ADOLPH, individually and on behalf of all
others similarly situated; Plaintiff v. REEDHEIN & ASSOCIATES d/b/a
TIMESHARE EXIT TEAM; MAKAYMAX INC.; HEIN & SONS INDUSTRIES, INC.;
BRANDON REED, individually; and TREVOR HEIN, individually,
Defendants, Case No. 2:21-cv-01378-BJR (W.D. Wash.), Judge Barbara
Jacob Rothstein of the U.S. District Court for the Western District
of Washington, Seattle, grants the Plaintiffs' Motion for Final
Approval of Class Settlement.
Judge Rothstein has considered all the submissions related to the
Motion. She approves the terms of the Settlement Agreement dated
April 12, 2022, as fair, reasonable, enforceable, and adequate.
Judge Rothstein excludes from the class all members who provided a
request for exclusion. The following Class Members, the 36
customers who sent requests to opt-out to Simpluris and identified
by name and address, have provided valid exclusion requests and are
excluded from the Settlement Agreement:
a. John Edwards, 10608 Pookey Way, Upper Marlboro, MD 20774;
b. William H. Hoover, 12337 Highway 175, Masnfield, LA 71052;
c. Rudolf Kilpert, 60 Hansen Rd., Unit 58, Mississauga, ON L5B
2P6, Canada;
d. Joseph Daghe, 23630 E. Mineral Pl., Aurora, CO 80016;
e. Albert Krause, 307 W. Welton Ave., Temple, TX 76501;
f. Betty Lusk, 846 San Fernando Ln., New Braunfels, TX 78132;
g. Lea Paveling, 98 Falconer Dr., Unit 19, Mississauga, ON L5N
1Y2, Canada;;
h. Ko Tangen, 332 C St., Apt. 43, Chula Vista, CA 91910;
i. Jeanine Gilroy, 14646 124th Pl. NE, Woodinville, WA 98072;
j. Robert Chamberlin, 8345 Big Bend Blvd., St. Louis, MO 63119;
k. Hartvig Lund, 23299 Pelican Bass Ln., Pelican Rapids, MN
56572
l. Ann Roberts, 408-4900 Cartier St., Vancouver, BC V6M 4H2,
Canada;
m. Judy Breunig, 3830 Keck Ave., Evansville, IN 47715;
n. Richard Burnstiner, 948 Markham Ct., El Dorado Hills, CA
95762;
o. Erik Solita, 2411 34th Ct., Kenosha, WI 53144;
p. Victor Slade, 307 Evans Estate Dr., Cary, NC 27513;
q. Annette Freda, 105-72 Flatlands 9 St., Brooklyn, NY 11236;
r. James Junk, 133 Sasse Rd., Cabot, PA 16023;
s. Kent Sager, 5071 W. Frenchglen Dr., Eagle, ID 83616;
t. Brian Cress, 2049 Wyndham Hills Dr., Holt, MI 48842;
u. Linda Lewis, 41 Old Ware Rd., Phenix City, AL 36869;
v. Philip Beiriger, 1224 Madison Ave., Dyer, IN 46311;
w. Lee Emery, 11043 SW Summerfield Dr., Apt. 2, Tigard, OR
97224;
x. Kevin Pressler, 13725 25th Ave. SE, Mill Creek, WA 98012;
y. Christine Pressler, 13725 25th Ave. SE, Mill Creek, WA
98012;
z. Ivan Ronayne, 14 Ashdale Ave., Ottawa, ON K2C 3H1, Canada;
aa. Laura Gray, 842 Bunker Hill St., Apt. 3a, Charlestown, MA
02129;
bb. Daniel Dumke, 331 Calle Felicidad, San Clemente, CA 92672;
cc. Everdien Ronayne, 14 Ashdale Ave., Ottawa, ON K2C 3H1,
Canada;
dd. Jemil Metti, 770 West River Dr., Commerce Township, MI
48382;
ee. William Moreland, 890 Deans Lane, Box 248, Seeley's Bay, ON
K0H 2N0, Canada;
ff. Eileen Moreland, 890 Deans Lane, Box 248, Seeley's Bay, ON
K0H 2N0, Canada;
gg. Dawn Schmidt, 2957 40th Ave. NE, Tacoma, WA 98422;
hh. Stephen Honea, 25 N. Kriklyn Ave., Upper Darby, PA 19082;
ii. Kathryn Honea, 25 N. Kriklyn Ave., Upper Darby, PA 19082;
and
jj. Connie Medeiros, 620 Arbor Rd., Mississauga, ON L5G 2J9,
Canada.
The Confession of Judgment with Covenant Not to Execute will be
signed and entered into the record.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/2mjamrxb from Leagle.com.
Gregory Albert -- info@albertlawpllc.com.com -- Albert Law PLLC,
Seattle, WA, Attorney for Class Attorney for the Plaintiffs.
RH: Gross Law Firm Investigates Potential Securities Class Action
-----------------------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
RH:
The investigation focuses on whether the Company issued false
and/or misleading statements and/or failed to disclose information
pertinent to investors. RH, the holding company behind retailer
Restoration Hardware, announced on February 3, 2023, that "our
previously unaudited financial statements for the three months
ended April 30, 2022, the three and six months ended July 30, 2022,
and the three and nine months October 29, 2022 (collectively the
'Prior Financial Statements') should no longer be relied upon due
to material unintentional errors in certain of these financial
periods with respect to our calculation of basic and diluted net
income per share." Based on this news, shares of RH fell by more
than 7.3% in intraday trading on February 6, 2023.
Due to the forgoing, The Gross Law Firm is investigating potential
securities fraud claims on behalf of certain RH investors. If you
incurred a loss on your RH investment, please contact us using the
link below to discuss your rights.
https://securitiesclasslaw.com/securities/rh-loss-submission-form/?wire=4
WHY GROSS LAW FIRM? The Gross Law Firm is a nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
ROAMING NETWORKS: Fails to Pay Proper Wages, Quiros Alleges
-----------------------------------------------------------
JONATHAN JOSE CHAVES QUIROS, individually and on behalf of all
others similarly situated, Plaintiff v. ROAMING NETWORKS, INC.; and
NIKOLA PETROVIC, Defendants, Case No. 0:23-cv-60983-XXXX (S.D.
Fla., May 25, 2023) is an action against the Defendants for failure
to pay the Plaintiff and the class minimum wages and overtime
compensation for hours worked in excess of 40 hours per week.
Plaintiff Quiros was employed by the Defendants as an installation
technician.
ROAMING NETWORKS, INC. provide professional services, consulting,
design, implementation and integration in the fields of radio
networks, fiber optic networks and backhaul and backbone
transmission systems. [BN]
The Plaintiff is represented by:
Daniel I. Schlade, Esq.
JUSTICIA LABORAL, LLC
6232 N. Pulaski, #300
Chicago, IL 60646
Telephone: (773) 550-3775
Email: dschlade@justicialaboral.com
danschlade@gmail.com
SAFECO INSURANCE: Court Grants Bid for Summary Judgment in Dow Suit
-------------------------------------------------------------------
In the case, SUSAN DOW, Plaintiff v. SAFECO INSURANCE COMPANY OF
AMERICA, Defendant, Case No. CV 20-31-BLG-SPW (D. Mont.), Judge
Susan P. Watters of the U.S. District Court for the District of
Montana, Billings Division, grants the Defendant's Motion for
Summary Judgment.
Before the Court is Safeco's Motion for Summary Judgment. Safeco
asserts that summary judgment is appropriate because Dow, the named
and Representative Plaintiff, cannot establish any breach of her
insurance policy contract, has suffered no injury nor incurred
damages, and cannot establish any violation of the Montana Unfair
Trade Practices Act ("MUTPA"). Dow, in response, asserts that
Safeco breached the contract and injured her by failing to include
industry-standard general contractor overhead and profit ("GCOP")
on roof-related line items when calculating the actual cash value
("ACV") of her damages for the loss estimate. Safeco, in its reply,
argues that Dow elected to invoke the "replacement cost" benefits
under the policy, rather than the ACV Payment, and she undisputedly
received the full benefits accorded to her under the policy.
In August 2018, a storm damaged Dow's property, including the roof.
Dow insured the property with Safeco under Policy No. OM2676703.
Dow made a claim under the policy due to the storm damage. Safeco
agreed that the damage was covered and agreed to pay Dow's loss
amount as provided by the policy.
The policy provides, among other things, that in the event of a
covered loss, Safeco will pay the amount actually and necessarily
incurred to repair or replace the damaged dwelling. It also states
that Dow may disregard the replacement cost loss settlement
provisions and make a claim for loss or damage on an actual cash
value basis. The policy defines actual cash value as the cost of
materials and labor that would be necessary to repair the damage,
less reasonable deduction for wear and tear, deterioration, and
obsolescence.
Dow elected to repair the damage to the property rather than accept
the actual cash value. She hired Jon Hooley of Big Sky Contractors
("BSC") to perform the repairs. BSC completed the roof repairs and
sent Dow an invoice for $27,345.88 on May 1, 2019. The invoice
solely reflected the cost of the roof repairs and included a 20%
surcharge for GCOP totaling $4,557.65. Dow sent the May invoice to
Safeco. In September 2019, after all of the storm damage repairs on
the house were completed, Safeco paid Dow $103,873.72, including
$28,623 for the roof repair. In September and November, BSC issued
two new invoices, updating the roof repair cost to $28,581.76 and
requesting a supplement of $5,724.80 for roof GCOP.
Dow contends that these invoices were sent based on Safeco's final
loss estimate, which apparently formed the basis of the contract
for repairs between Dow and BSC. No additional work was done on the
roof between the May invoice and the November invoice aside from
minor gutter repairs. Dow now asserts that Safeco owes her $5,724
in unpaid roof GCOP, which she would then presumably pay to BSC.
BSC has not pursued collection of the unpaid invoice amount. Dow's
agreement with BSC only requires her to pay the amount she actually
received from Safeco.
Judge Watters holds that summary judgment is appropriate in this
instance because the undisputed material facts demonstrate that Dow
has not been injured by the breach of contract she alleges and has
no damages because she was fully compensated under the terms of the
policy. The policy states that Safeco must cover the amount
actually and necessarily incurred to repair or replace the damaged
dwelling. Dow admits that Safeco paid the full amount that BSC
invoiced her for the roof repairs in May 2019, plus the updated
amount for additional gutter repair. This amount reflected the
industry-standard 20% GCOP for the roof repairs.
For these reasons, Judge Watters grants Safeco's Motion for Summary
Judgment. As the Motion pertains solely to Dow and not the class as
a whole judgment will be entered against Dow, and the Class Counsel
will identify a new Class Representative within 60 clays of the
Order. After a suitable Class Representative has been produced, the
Court will calendar a scheduling conference to set the remaining
deadlines for this matter.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/3a73tfnh from Leagle.com.
SALDUTTI LLC: Bid for Partial Dismissal of Prashad Suit Granted
---------------------------------------------------------------
In the case, ANDY PRASHAD, on behalf of himself and all others
similarly situated, Plaintiffs v. ROBERT L. SALDUTTI, LLC D/B/A
SALDUTTI LAW GROUP and ROBERT L. SALDUTTI Defendants, Case No.
1:22-cv-00535-NLH-MJS (D.N.J.), Judge Noel L. Hillman of the U.S.
District Court for the District of New Jersey grants the
Defendants' motion for partial dismissal pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6).
The Plaintiff is a domiciliary of Mount Vernon, New York. Defendant
Robert L. Saldutti is an attorney engaged in the business of
collecting debts and Defendant Robert L. Saldutti, LLC, which
conducts business as Saldutti Law Group, is a law firm based in
Cherry Hill, New Jersey engaged in debt collection.
Some time prior to Feb. 3, 2021, Prashad purportedly incurred a
debt related to an auto loan with First Atlantic Federal Credit
Union ("FAFCU"), with the associated contract giving rise to the
obligation emailed to him -- who provided an electronic signature
while physically located in New York. Thereafter, the debt -- then
in default -- was transferred or assigned to the Defendants for
collection.
The Defendants filed a lawsuit against the Plaintiff on behalf of
FAFCU in New Jersey Superior Court - Law Division in Monmouth
County on Feb. 3, 2021. The Plaintiff resided in Mount Vernon, New
York at the time of filing and no contract giving rise to the debt
was signed in Monmouth County.
The Defendants sought entry of default against the Plaintiff on May
5, 2021, but the request was denied for failure to comply with
service rules. After a subsequent request for entry of default was
denied as premature, default was entered against the Plaintiff on
Nov. 23, 2021 and the Defendants sought entry of default judgment
on Dec. 8, 2021. The request was denied by the Law Division as
Defendants sought to collect a 25% fee but failed to do so by
motion. The Plaintiff alleges that the Defendants were not entitled
to such attorney's fees, the fees requested were excessive, and
Monmouth County was an inappropriate and inconvenient venue because
he did not sign the relevant contract there or reside in the county
at the time the action was instituted.
The Plaintiff filed the instant one-count action on Feb. 2, 2022 on
behalf of himself and six classes of New Jersey consumers alleging
violations of the Fair Debt Collection Practices Act, ("FDCPA"), 15
U.S.C. Section 1692 et seq., and asserting that he was subject to
unfair and abusive practices, was harmed by misleading
debt-collection communications, and incurred legal fees while
defending the state-court action in an inappropriate venue. He
further alleges that it is the Defendants' policy and practice to
file collection lawsuits against consumers in violation of the
FDCPA by filing in incorrect judicial venues and otherwise using
false, deceptive, misleading, unfair, or unconscionable means and
that Defendants filed lawsuits in improper venues or sought to
collect sums to which they were not entitled with respect to at
least thirty other New Jersey consumers.
The complaint lists eight subsections of the FDCPA violated by the
Defendants' alleged actions and practices, including falsely
representing services rendered or compensation that may be received
in violation of 15 U.S.C. Section 1692e(2)(B), taking or
threatening an action that cannot legally be taken in violation of
Section 1692e(5), collecting or attempting to collect an amount not
expressly authorized by an agreement or law in violation of Section
1692f(1), and filing a collection action in a county in which the
consumer did not reside and the relevant contract was not signed in
violation of Section 1692i(a)(2).
The Defendants moved for partial dismissal with respect to the
Plaintiff's claims unrelated to venue -- particularly the
Defendants' alleged improper attempt to collect attorney's fees.
The Plaintiff filed an opposition, to which the Defendants
replied.
The Defendants challenge the Plaintiff's standing as to his claim
relating to their pursuit of attorney's fees in the state-court
action. Any actual damages incurred by the Plaintiff as a result of
the filing of the collection action were in connection to a motion
to vacate default based on the Defendants filing in an allegedly
inappropriate venue, according to them, and because they ultimately
consented to dismissal of the state-court action, their application
for attorney's fees was never adjudicated and the Plaintiff has not
pled a resulting concrete injury necessary for standing. The
Plaintiff argues that he suffered a concrete harm by being forced
to defend a collection action in an inconvenient venue and
incurring related legal fees.
Judge Hillman opines that TransUnion LLC v. Ramirez, 141 S.Ct. 2190
(2021), requires the Plaintiff to plead not only that the
Defendants were wrong, but that he was harmed by that wrong. He
reads the Plaintiff's complaint as alleging that the attorney's
fees sought were unauthorized and excessive, Monmouth County was an
inappropriate venue for the state-court action, and the Defendants
engaged in general misleading communications and failures to
provide accurate information without specifying any concrete harm
resulting from these alleged wrongs other than the legal fees
incurred in defending the improper state-court action. The
Plaintiff identifies no historical or common-law analogue to any
other alleged harm he has suffered, and Judge Hillman is unable to
identify one himself.
Furthermore, even outside the context of standing, Judge Hillman
opines that courts within the Third Circuit have rejected
duplicative claims under the FDCPA when a plaintiff's underlying
contention has been the filing of a collection action in an
improper venue in violation of 15 U.S.C. Section 1692i(a)(2).
Judge Hillman therefore grants the Defendants' motion to dismiss to
the extent that the Plaintiff's complaint is premised on harms
other than allegations of filing the state-court action in an
improper venue and related costs incurred. He says dismissal is
without prejudice and the Plaintiff will be provided 30 days from
the date of the Opinion to file an amended complaint pleading
concrete and specific harms other than those related to improper
venue. If the Plaintiff declines to file an amended complaint,
dismissal of the Plaintiff's claims unrelated to improper venue
will be with prejudice.
For these reasons stated, the Defendants' motion for partial
dismissal is granted. The Plaintiff will have 30 days to file an
amended complaint consistent with the Opinion. An Order consistent
with the Opinion will be entered.
A full-text copy of the Court's May 17, 2023 Opinion is available
at https://rb.gy/2ka40 from Leagle.com.
LAWRENCE C. HERSH -- lh@hershlegal.com -- RUTHERFORD, N.J. On
behalf of the Plaintiffs.
THOMAS BRENDAN O'CONNELL -- toconnell@slgcollect.com -- MICHAEL
JAMES HAGNER, SALDUTTI LAW GROUP, CHERRY HILL, N.J., On behalf of
the Defendants.
SAMSUNG ELECTRONICS: Wesley's Suit Over Defective Ranges Dismissed
------------------------------------------------------------------
In the case, KATHY WESLEY, ALESIA CHARLES, DANIELLE D'ANDREA, DAVID
MARK EDMONDSON, NIKILYN GRIMSLEY, PAUL LIND, JO PEACOCK, and
THERESA SIMPSON, individually and on behalf of all others similarly
situated, Plaintiffs v. SAMSUNG ELECTRONICS AMERICA, INC.,
Defendant, Civil Action No. 20-18629 (D.N.J.), Judge John Michael
Vazquez of the U.S. District Court for the District of New Jersey
grants Samsung's motion to dismiss the Plaintiffs' Third Amended
Complaint.
The case returns to the Court on Samsung's motion to dismiss the
Plaintiffs' TAC. Judge Vazquez reviewed the submissions in support
and in opposition and considered the motions without oral argument
pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b).
In this putative class action, the Plaintiffs allege that they
purchased Samsung gas and electric ranges from various authorized
resellers, such as BestBuy, Sears, Wayfair, Lowes, and Home Depot.
They reviewed Samsung marketing materials and were aware that their
ranges were covered by a Samsung warranty, which was included in
the user manual that came with the range. This warranty covers
manufacturing defects in materials and workmanship for one year.
After purchasing the ranges, the Plaintiffs began to experience
problems with the temperature settings of the ovens, as the ovens
would not maintain the set temperature. They attempted to contact
Samsung to have the ranges repaired but the repairs were either
unsuccessful or the Plaintiffs were unable to obtain repair
services. Plaintiffs Wesley, Peacock, D'Andrea, Lind, Simpson,
Grimsley, and Edmondson have since used replacement appliances.
The Plaintiffs allege that at least 87 Samsung gas and electric
range models fail to properly cook food on account of a defect in
the Samsung oven temperature sensor bearing component model number
DG32-00002B and the Range's control board. They define the alleged
defect as a "distortion of information received by the control
board, which in turn causes the oven to deviate from the
user-selected temperature (the 'Defect')."
The Plaintiffs allege that when the Defect manifests, the
temperature sensor fails to correctly regulate resistance in the
metal conducting material that connects to the control board. This
causes the ovens to deviate from the user-selected temperature,
becoming either far too hot, posing a safety risk, or barely warm
at all. The Plaintiffs further allege that Samsung knew of, and
failed to disclose the Defect, and continues to manufacture and
sell ranges with the defective sensor. Had they known of the
Defect, they would not have purchased their ranges or would have
paid a significantly lower price.
The Plaintiffs filed the putative class action on Dec. 9, 2020 and
filed the First Amended Complaint on March 3, 2021. Samsung moved
to dismiss, and on Dec. 3, 2021, the Court granted the motion in
part and afforded the Plaintiffs 30 days to file an amended
complaint. On April 5, 2022, the Plaintiffs filed the Second
Amended Complaint and Samsung moved to dismiss, or in the
alternative, moved to strike the class allegations. The Plaintiffs
opposed and filed a cross-motion for leave to file a TAC.
On Oct. 28, 2022, the Court granted in part and denied in part
Samsung's motion to dismiss and to strike (granting the motion to
dismiss without prejudice, and denying the motion to strike), and
denied the Plaintiffs' cross-motion for leave to file an amended
complaint. Nevertheless, because the Plaintiffs were granted leave
to amend to cure the deficiencies in the SAC, the Court noted that,
should the Plaintiffs file an amended pleading, they may add the
new Plaintiffs that they sought to join in the cross-motion.
On Nov. 28, 2022, the Plaintiffs filed the TAC. The TAC includes
eight Plaintiffs who bring allegations individually and on behalf
of all other similarly situated: Kathy Wesley (Florida), Alesia
Charles (California), Danielle D'Andrea (New Jersey), David Mark
Edmondson (Washington), Nikilyn Grimsley (Virginia), Paula Lind
(Illinois), Theresa Simpson (Pennsylvania), and Jo Peacock
(Florida). The TAC asserts claims for breach of express warranty on
behalf of the New Jersey, Illinois, Florida, Pennsylvania,
Virginia, and Washington subclasses (Count I), breach of implied
warranty of merchantability on behalf of the New Jersey, Florida,
Pennsylvania, Virginia, and Washington subclasses (Count II), and
violations of the Song-Beverly Consumer Warranty Act and California
Consumers Legal Remedies Act on behalf of the California subclasses
(Count III and Count IV, respectively).
In sum, Judge Vazquez opines that the TAC adds more detail to the
alleged defective sensor and makes clear that the Plaintiffs are
not adopting the technicians' diagnoses as their own. Yet, the TAC
still falls short of plausibly pleading a defect considering other
specific allegations which appear to attribute the defect to other
components.
In the SAC Opinion, the Court stated that it was the last time that
the Court will grant the Plaintiffs' leave to amend. But because
the Plaintiffs' allegations have improved dramatically, Judge
Vazquez provides one more opportunity to adequately plead a
defect.
For these reasons, the Defendant's motion to dismiss is granted.
The Plaintiffs have 30 days to file another amended complaint, if
they so choose, consistent with the Opinion. If the Plaintiffs fail
to file a fourth amended complaint, the dismissal will be with
prejudice. This is the last time that the Court will grant the
Plaintiffs' leave to amend. An appropriate Order accompanies Judge
Vazquez's Opinion.
A full-text copy of the Court's May 17, 2023 Opinion is available
at https://rb.gy/yejku from Leagle.com.
SATER FOOTHILL: Fails to Provide Meal, Rest Breaks, Suit Says
-------------------------------------------------------------
The Los Angeles labor law attorneys at Zakay Law Group, APLC and
JCL Law Firm, APC, filed a class action complaint against Sater
Foothill Group, Inc., Sater Foothill LLC, Sater Oil Group, Inc.,
and Sater Oil International, LLC (hereinafter, collectively, "Sater
Foothill & Sater Oil dba Arco") for allegedly failing to provide
meal and rest breaks. The class action lawsuit, Case No.
23STCV05016, is currently pending in the Los Angeles County
Superior Court of the State of California. A copy of the Complaint
can be read here.
According to the lawsuit, Sater Foothill & Sater Oil dba Arco
allegedly violated California Labor Code Sections 201, 202, 203,
204, 210, 226, 226.7, 246, 510, 512, 558, 1194, 1197, 1197.1, 1198
and 2802 by failing to: (1) pay minimum wages; (2) pay overtime
wages; (3) provide required meal and rest periods; (4) provide
accurate itemized wage statements; (5) provide wages when due; (6)
reimburse for required business expenses; and (7) provide sick
pay.
As a result of their rigorous work schedules, Sater Foothill &
Sater Oil dba Arco's employees were allegedly unable to take off
duty meal breaks and were not fully relieved of duty for meal
periods. Specifically, the lawsuit alleges employees were from time
to time interrupted during their off-duty meal breaks to complete
tasks for Sater Foothill & Sater Oil dba Arco. Employees were
allegedly required to perform work as ordered by Sater Foothill &
Sater Oil dba Arco for more than five (5) hours during a shift
without receiving an off-duty meal break. Further, the lawsuit
alleges Sater Foothill & Sater Oil dba Arco failed to provide
employees with a second off-duty meal period each workday in which
these employees were required bySater Foothill & Sater Oil dba Arco
to work ten (10) hours of work. Sater Foothill & Sater Oil dba
Arco's policy allegedly caused employees to remain on-call and on
duty during what was supposed to be their off-duty meal periods.
Employees therefore allegedly forfeited meal breaks without
additional compensation and in accordance with Sater Foothill &
Sater Oil dba Arco's strict corporate policy and practice.
If you would like to know more about the Sater Foothill & Sater Oil
dba Arco lawsuit, please contact Attorney Jackland Hom today by
calling (619) 255-9047.
Zakay Law Group, APLC, and JCL Law Firm, APC are labor and
employment law firms with offices located in California that
dedicate their practices to fighting for employees who have been
wronged by their employers due to unfair employment practices.
Contact one of their attorneys today if you need help with
workplace issues regarding wage and hour, wrongful termination,
retaliation, discrimination, and harassment. [GN]
SEMI-TROPIC COOPERATIVE: $600K Deal in Martinez Suit Has Final Nod
------------------------------------------------------------------
In the case, FABIAN CABALLERO MARTINEZ, on behalf of himself and
all others similarly situated, Plaintiff v. SEMI-TROPIC COOPERATIVE
GIN & ALMOND HULLER, INC., and DOES 1 through 20, inclusive,
Defendants, Case No. 1:19-cv-1581 JLT CDB (E.D. Cal.), Judge
Jennifer L. Thurston of the U.S. District Court for the Eastern
District of California grants the Plaintiff's motion for final
approval of the Settlement, and his motion attorneys' fees and
costs, costs for settlement administration, and a service payment
for the class representative.
Martinez asserts Semi-Tropic failed to comply with wage and hour
laws. The Plaintiff now seeks final approval of a settlement
reached in the action. In addition, he seeks attorneys' fees and
costs from the settlement fund, costs for settlement
administration, and a service payment for the class representative.
The Defendant does not oppose these requests, and no class member
submitted objections to the settlement terms. The Court found the
matters suitable for decision without oral arguments pursuant to
Local Rule 230(g), and the hearing for final approval was vacated.
The Plaintiff is a former, non-exempt employee of the Defendant. He
reports that he performed janitorial work and moving and sorting
loads of almonds for shipment. The Plaintiff alleges the Defendant
failed to provide uninterrupted meal periods and rest periods, or
pay a premium wage in lieu thereof. According to him, the Defendant
also failed to provide Class members, including him, with accurate
itemized wage statements. Finally, the Plaintiff asserts that upon
his termination, the Defendant failed to compensate him for all
hours worked.
On Nov. 5, 2019, the Plaintiff initiated the action by filing a
complaint. He filed a First Amended Complaint on Jan. 30, 2020,
identifying the following causes of action: (1) failure to pay
overtime wages in violation of federal law; (2) failure to pay
minimum wages; (3) failure to pay overtime wages under California
law; (4) failure to furnish itemized wage statements; (5) meal
period violations; (6) rest period violations; (7) failure to pay
wages due upon termination or resignation; (8) violation of Cal.
Bus. & Prof. Code Section 17200, et seq.; and (9) civil penalties
pursuant to California's Private Attorney General Act.
The Plaintiff asserted the claims were brought on behalf of himself
and a class including: "All persons employed by Defendant in the
State of California at any time within four years of the filing of
the Initial Complaint in this action." The Defendant filed its
First Amended Answer on March 5, 2020.
The parties participated in mediation with Steven M. Vartabedian on
June 1, 2021. As a result of mediation, they later entered into the
Settlement Agreement and Release which they executed with the
counsel between January and March 2022. The Plaintiff submitted
this agreement to the California Labor & Workforce Development
Agency (LWDA) on March 2, 2022. He filed an unopposed motion for
approval of the amended settlement.
The Court appointed Fabian Caballero Martinez as the Class
Representative and authorized his request for an incentive payment
up to the amount of $10,000, subject to a petition and review when
seeking final approval. It appointed the firm of Mallison &
Martinez as the Class Counsel, who were authorized to seek fees not
to exceed 33 1/3% of the gross settlement amount and identified
costs, also subject to review at final approval stage. Simpluris,
Inc. was appointed the Settlement Administrator, and authorized to
seek up to $5,000 for administrative costs. The Court also
preliminarily approved a PAGA payment of $50,000 from the gross
settlement, including $37,500 to California's Labor and Workforce
Development Agency with the remainder to be paid to aggrieved
employees.
On Oct. 31, 2022, the Court approved the Class Notice. The
Settlement Administrator received one election to not participate
in the Settlement, from Edgar Villela Lizorraga. No objections were
received by either the Settlement Administrator or the Court.
Pursuant to the Amended Settlement Agreement and Release, the
parties agree to a gross settlement amount of $600,000 for the
class defined as follows: "any individual who worked for
Semi-Tropic in the State of California as an hourly paid,
non-exempt employee at any time between Nov. 5, 2015 and June 3,
2021." In addition, the Settlement includes an "Escalator Clause,"
under which the gross settlement amount will be increased, pro
rata, if the number of Class Members increases by more than 10% of
the 155 members estimated at the time of execution. The Defendant
agrees to pay funds necessary to make the payments approved by the
Court, including any share of employer-side payroll taxes, after
final approval of the Settlement.
The settlement fund will cover payments to class members, including
an additional payment to Plaintiff as the Class Representative. In
addition, the Settlement provides for payments to the Class Counsel
for attorneys' fees and costs, to the Settlement Administrator, and
the California Labor & Workforce Development Agency, including the
following:
a. The Class Representative will receive a service payment up
to $10,000;
b. The Class counsel will receive up to $200,000 for
attorneys' fees, which equals 33 1/3 % of the gross settlement
amount, and costs in an amount to be determined by the Court;
c. The California Labor and Workforce Development Agency shall
receive $37,500 from the total PAGA payment of $50,000; and
d. The Settlement Administrator will receive up to $5,000 for
fees and expenses.
After these payments, the remaining money will be distributed as
settlement shares to the class members. If the Court approves less
than the amount requested for attorney's fees, costs, or payment to
the LWDA, the remainder will be retained in the Net Settlement
Amount for distribution to the Participating Class Members.
The entire Net Settlement Amount will be distributed, and if any
checks are returned or are not cashed with 180 days, that money
will not be returned to the Defendant. Instead, the uncashed funds
will be distributed to a cy pres beneficiary approved by the
Court.
The Settlement provides that the Plaintiff and the class members,
other than those who elect not to participate in the Settlement,
shall release Semi-Tropic from claims arising in the class period.
Judge Thurston finds the Amended Settlement Agreement and Release
is fair, adequate, and reasonable. The factors set forth under Rule
23 and Ninth Circuit precedent weigh in favor of final approval of
the settlement agreement.
Accordingly, Judge Thurston grants the Plaintiff's motion for final
approval of the Settlement and the certification of the Settlement
Class.
The class is defined as follows: Any individual who worked for
Semi-Tropic in the State of California as an hourly paid,
non-exempt employee at any time between Nov. 5, 2015 and June 3,
2021.
Pursuant to his request, Edgar Villela Lizorraga is excluded from
the Settlement Class.
The PAGA award in the amount of $50,000 from the Gross Settlement
Amount, including payment of $37,500 to California's Labor and
Workforce Development Agency and $12,500 to aggrieved employees, is
approved.
The request for a class representative service payment for the
Plaintiff is granted in the amount of $2,500.
Judge Thurston grants the Class Counsel's motion for fees in the
modified amount of 20% of the gross settlement fund, which totals
$120,000. She also grants the Class Counsel's request for
litigation costs in the amount of $10,527.33. She approves the
Settlement Administration costs in the amount of $5,000 to be paid
from the gross settlement fund.
The action is dismissed with prejudice, with each side to bear its
own costs and attorneys' fees except as otherwise provided by the
Settlement and ordered by the Court.
The Clerk of Court is directed to close the action.
The Court retains jurisdiction to consider any further applications
arising out of or in connection with the Settlement.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/ypr4t6ax from Leagle.com.
SHYFT GROUP: Arias Suit Remanded to Los Angeles County Super. Court
-------------------------------------------------------------------
In the case, Octavio Agusto Arias v. The Shyft Group GTB, LLC, Case
No. CV 23-1582-JFW (DFMx) (C.D. Cal.), Judge John F. Walter of the
U.S. District Court for the Central District of California grants
the Plaintiff's Motion to Remand.
On Nov. 29, 2022, the Plaintiff filed a Class Action Complaint in
Los Angeles County Superior Court, alleging that the Defendant
employed him as an hourly-paid, non-exempt employee from
approximately 2013 to approximately August 2022. According to the
Plaintiff's Complaint, throughout his employment, the Defendants
failed to pay for all hours worked (including minimum, straight
time, and overtime wages), failed to provide him with legally
compliant meal periods, failed to authorize and permit him to take
rest periods, failed to timely pay all final wages to him when the
Defendants terminated his employment, failed to furnish him
accurate wage statements, failed to indemnify him for expenditures,
and failed to produce requested employment records.
The Plaintiff alleges the following claims for relief: (1) failure
to pay minimum and straight time wages (Cal. Labor Code Sections
204, 1194, 1994.2, and 1197); (2) failure to pay overtime wages
(Cal. Labor Code Sections 1194 and 1198); (3) failure to provide
meal periods (Cal. Labor Code Sections 226.7, 512); (4) failure to
authorize and permit rest periods (Cal. Labor Code Section 226.7);
(5) failure to timely pay final wages at termination (Cal. Labor
Code Sections 201-203); (6) failure to provide accurate itemized
wage statements (Cal. Labor Code) Section 226); (7) failure to
indemnify employees for expenditures (Cal. Labor Code Section
2802); (8) failure to produce requested employment records (Cal.
Labor Code Sections 226 and 1198.5); and (9) unfair business
practices (Cal. Bus. & Prof. Code Section 17200, et seq.
On behalf of himself and all other similarly situated, the
Plaintiff seeks, inter alia, unpaid minimum and straight time
wages; liquidated damages; unpaid overtime wages; break premiums;
wage statement penalties; waiting time penalties; unreimbursed
business expenses; statutory penalties for the Defendant's alleged
failure to maintain accurate employee records; restitution;
declaratory relief; and attorneys' fees.
On March 2, 2023, the Defendant filed a Notice of Removal, alleging
that the Court has jurisdiction pursuant to 28 U.S.C. Section
1332(d), the Class Action Fairness Act of 2005 ("CAFA"). In support
of its Notice of Removal, the Defendant estimated that the
aggregate value of all matters in controversy exceeds
$5,073,430.31, using assumptions and estimates allegedly based on
the allegations of the Plaintiff's Complaint.
Judge Walter finds that the matter is appropriate for decision
without oral argument. The hearing calendared for May 22, 2023 was
hereby vacated and the matter was taken off calendar.
In his Motion, the Plaintiff claims that the Defendant's
calculation of the amount in controversy is based on flawed
reasoning and faulty assumptions. The Defendant argues that, given
the allegations in the Complaint, it is entitled to, for example,
assume an 80-100% violation rate for meal periods and 100%
violation rate for rest periods.
Judge Walter agrees. He finds that it is the Defendant's burden to
demonstrate by a preponderance evidence that the amount in
controversy exceeds $5 million. He concludes that the Defendant has
failed to satisfy that burden. More specifically, it has failed to
adequately justify its assumed violation rates. Notably, even if
the Court adjusts the Defendant's assumed violation rates by a
minor amount (e.g., a 75% violation rate for failure to provide
meal breaks and a 75% violation rate for unpaid minimum and
overtime wages), the amount in controversy would not exceed $5
million.
For these reasons, Judge Walter grants the Plaintiff's Motion to
Remand and remands the action to Los Angeles County Superior
Court.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/ocs7q from Leagle.com.
SUKUT CONSTRUCTION: Court Dismisses Rodriguez's Individual Claims
-----------------------------------------------------------------
Magistrate Judge Christopher D. Baker of the U.S. District Court
for the Eastern District of California dismisses the cases, JIMMY
RODRIGUEZ, Plaintiff v. SUKUT CONSTRUCTION, INC., et al.,
Defendants. JIMMY RODRIGUEZ, Plaintiff v. DRAGADOS USA, INC., et
al., Defendants, Case Nos. 1:22-cv-01181-CDB, 1:22-cv-01500-CDB
(E.D. Cal.), with prejudice as to the Plaintiff's individual claims
only and without prejudice as to the representative claims.
In these two related cases -- one brought as a putative class
action, one brought pursuant to California's Private Attorneys
General Act of 2004 -- the Defendants filed motions to compel
arbitration and for judgment on the pleadings, both noticed for
hearing before the Court on April 24, 2023.
On April 4, 2023, the Defendants filed in the respective cases
joint stipulations to continue the hearings on the motion to compel
arbitration and motion for judgment on the pleadings. The counsel
for the parties represented in their stipulations that they reached
a settlement agreement in principle on an individual, non-class
basis with respect to the Plaintiff's claims. Further, the
Plaintiff agreed to voluntarily dismiss his class claims in both
cases.
On May 12, 2023, the parties filed a joint status report noting
they were finalizing the terms of a comprehensive settlement
agreement providing for a dismissal with prejudice of the
Plaintiff's individual claims and a dismissal without prejudice of
the class and representative claims in both actions.
On May 18, 2023, the parties filed joint stipulations noticing
voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) in
both cases. They agree that the cases be dismissed in their
entirety, with prejudice as to the Plaintiff's individual claims,
and without prejudice as to the representative claims asserted in
both actions.
Accordingly, considering the parties' representations, Judge Baker
denies as moot the Defendants' motions to compel arbitration filed
in both cases. Both cases are terminated in their entirety by
operation of law with prejudice as to the Plaintiff's individual
claims only and without prejudice as to the representative claims,
with all parties bearing their own attorney's fees and costs,
without further order from the Court.
The Clerk of Court is directed to close both cases.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/4p7m7zk9 from Leagle.com.
SUNRUN INC: Faces Cantu Suit Over Video Privacy Violations
----------------------------------------------------------
JESSE CANTU, individually and on behalf of all others similarly
situated, Plaintiffs v. SUNRUN INC., d/b/a WWW.SUNRUN.COM,
Defendant, Case No. 3:23-cv-00974-JO-AHG (S.D. Cal., May 26, 2023)
alleges Defendant's violation of the Video Privacy Protection Act.
According to the Plaintiff in the complaint, when someone watches a
video on www.sunrun.com, the Defendant secretly reports all the
details to Google. The details includes the visitor's personally
identifiable information, the titles watched, and more. In sum,
each video is a "digital trojan horse" that the Defendant uses to
secretly collect PII, build profitable targeted advertising
databases, and bombard viewers with unwanted advertising, says the
suit.
SUNRUN INC. provides solar energy solutions. The Company sells,
installs, monitors, and maintains battery and solar panels on
homeowner's roofs to supply solar electricity. Sunrun serves
customers in the United States. [BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
SUNVALLEYTEK INT'L: Oh's Bid for Preliminary Injunction Denied
--------------------------------------------------------------
In the case, DAVID OH, Plaintiff v. SUNVALLEYTEK INTERNATIONAL,
INC., Defendant, Case No. 22-cv-00866-SVK (N.D. Cal.), Magistrate
Judge Susan van Keulen of the U.S. District Court for the Northern
District of California denies the Plaintiff's motion for a
preliminary injunction.
In this putative class action, Oh alleges that Sunvalleyte, which
makes, sells and markets consumer electronics, paid for high
ratings and reviews of its products on websites like Amazon.com
without disclosing this information to consumers. All Parties have
consented to the jurisdiction of a magistrate judge.
Sunvalleytek is a California corporation with its principal place
of business in San Jose, California. According to an amended
corporate disclosure Sunvalleytek, it is a wholly owned subsidiary
of Sunvalley (HK) limited; which is a wholly owned subsidiary of
Shenzhen Sunvalley Innovation Technology Co., Ltd; which in turn is
a wholly owned subsidiary of Guangdong SACA Precision Manufacturing
Co., Ltd.
In 2019, the Plaintiff purchased three products sold by the
Defendant on Amazon.com. He claims that he read and relied on
product reviews when making these purchases. The Plaintiff alleges
that despite the positive reviews of the products he purchased,
they were poorly made and of low quality. He seeks to represent a
class of consumers who purchased the Defendant's products.
According to the First Amended Complaint, Amazon delisted the
Defendant's products in June 2021 because its product review
practices violated Amazon's terms of service.
Now before the Court is the Plaintiff's motion for a preliminary
injunction that would freeze certain assets of the Defendant and
require the Defendant to provide an accounting. The Plaintiff
claims that the Defendant has brought an arbitration against
Amazon, seeking over $4 million that Amazon allegedly owes for past
sales. The Plaintiff's motion for class certification is in
briefing and set for hearing on July 11, 2023.
Judge van Keulen finds the matter suitable for determination
without oral argument. She says the FAC includes claims for
violation of various consumer protection statutes, as well as a
claim for quasi-contract/unjust enrichment. The relief sought by
the Plaintiff for himself and on behalf of the proposed class
includes damages, restitution, disgorgement, injunctive relief, and
other remedies.
The Parties' briefs did not thoroughly address whether the types of
equitable claims asserted by the Plaintiff establish a "cognizable
claim to specific assets," such as a possible award in the
arbitration between Sunvalleytek and Amazon, that would support the
asset-freezing injunction the Plaintiff seeks.
Judge van Keulen need not resolve that issue, however, because even
if an asset-freezing injunction is available on the equitable
claims, the Plaintiff's motion must be denied for several other
reasons. First, the evidence submitted by Plaintiff in support of
his motion for preliminary injunction is not authenticated by an
affidavit or declaration. Second, even if the Court considered the
evidence submitted by the Plaintiff, the Plaintiff has not
demonstrated that an asset-freezing injunction is appropriate.
Moreover, the Plaintiff's evidence falls far short of showing that
irreparable harm is likely to result absent a preliminary
injunction.
For these reasons, the Plaintiff's motion for preliminary
injunction is denied.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/nmzhg from Leagle.com.
SYNCHRONY FINANCIAL: $34MM Settlement to be Heard on July 31
------------------------------------------------------------
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
IN RE: SYNCHRONY FINANCIAL
SECURITIES LITIGATION
No. 3:18-cv-1818-VAB
CLASS ACTION
This is a securities class action against Synchrony Financial
("Synchrony") and certain of its senior executives (collectively,
Defendants) under Sections 10(b), 20A, and 20(a) of the Securities
Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder. The
action alleges that during the Class Period, Synchrony falsely
represented that its consistent and disciplined underwriting
practices had led to a higher quality loan portfolio than those of
its competitors, but that, in truth, Synchrony relaxed its
underwriting standards and increasingly offered private-label
credit cards to riskier borrowers to sustain growth.
Plaintiffs Have Reached a Proposed Settlement of the Action for $34
Million
Lead Plaintiff Stichting Depositary APG Developed Markets Equity
Pool ("Lead Plaintiff") and Plaintiff Stichting Depositary APG
Fixed Income Credits Pool (collectively with Lead Plaintiff,
"Plaintiffs"), on behalf of themselves and the Class, have reached
a proposed settlement of the Action for $34,000,000 in cash
("Settlement"). If approved by the Court, the Settlement will
resolve all claims in the Action.
If you are a member of the Class, your rights will be affected and
you may be eligible for a payment from the Settlement. The Class
consists of:
all persons or entities who purchased or otherwise acquired the
common stock of Synchrony from January 19, 2018, through July 12,
2018, inclusive (the "Class Period"), and who were damaged thereby
Certain persons and entities are excluded from the Class by
definition (see paragraph 31 of the Notice) or may request
exclusion pursuant to the instructions set forth in the Notice (see
paragraph 64 of the Notice).
Please read the Notice to fully understand your rights and options.
Copies of the Notice and Claim Form can be found in the Case
Documents list on the right of this page. You may also visit the
case website, SynchronySecuritiesLitigation.com, for more
information about the Settlement.
To be eligible to receive a payment under the proposed Settlement,
you must submit a Claim Form postmarked (if mailed) or submitted
on-line by no later than September 7, 2023.
Payments to eligible claimants will be made only if the Court
approves the Settlement and a plan of allocation, and only after
any appeals are resolved, and after the completion of all claims
processing. Please be patient, as this process will take some time
to complete.
IMPORTANT DATES AND DEADLINES
September 7, 2023
Claim Filing Deadline. Claim Forms must be postmarked (if mailed)
or submitted on-line no later than September 7, 2023.
July 10, 2023
Exclusion Deadline. To exclude yourself from the Class, you must
submit a written request for exclusion so that it is received no
later than July 10, 2023, in accordance with the instructions in
the Notice.
July 10, 2023
Objection Deadline. Any objections to the proposed Settlement, the
proposed Plan of Allocation, or the motion for attorneys' fees and
expenses, must be received no later than July 10, 2023, in
accordance with the instructions in the Notice.
July 31, 2023
at 10:00 a.m. Eastern Time Settlement Hearing. The Settlement
Hearing will be held July 31, 2023 at 10:00 a.m. Eastern Time,
before the Honorable Victor A. Bolden of the United States District
Court for the District of Connecticut, either in person in
Courtroom 2 of the Brien McMahon Federal Building, United States
Courthouse, 915 Lafayette Boulevard, Bridgeport, CT 06604, or by
telephone or videoconference (in the discretion of the Court). The
Settlement Hearing will be held by the Court to consider, among
other things, whether the proposed Settlement is fair, reasonable,
and adequate and should be approved; whether the proposed Plan of
Allocation is fair and reasonable and should be approved; and
whether Lead Counsel's motion for attorneys' fees and expenses
should be approved.
Background and History of the Litigation
The Action alleges that Synchrony falsely represented that its
consistent and disciplined underwriting practices had led to a
higher quality loan portfolio than those of its competitors, but
that, in truth, Synchrony relaxed its underwriting standards and
increasingly offered private-label credit cards to riskier
borrowers to sustain growth.
Plaintiffs allege that Synchrony represented that it had tightened
credit standards, but falsely characterized those underwriting
changes as modest. In fact, the Company had made significant
modifications to its underwriting policies, but concealed that
these modifications were damaging its relationships with its retail
partners, including Walmart. Defendants concealed from investors
that Synchrony's retail partners were pushing back on these
underwriting changes. Specifically, during Synchrony's January 19,
2018 earnings call, Defendant Keane (Synchrony's then-CEO) told
investors, "We are not getting any pushback on credit."
On July 12, 2018, news broke that Walmart was considering ending
its partnership with Synchrony, with media outlets reporting that
Walmart "want[ed] Synchrony to approve a higher percentage of
applicants" and had "aired those concerns in a meeting with
Synchrony's board last year." The media also reported that day
that, in late 2017, Walmart launched "for the ‘first time,' a
formal request for bids from other credit card issuers," and met
with Capital One and Goldman Sachs in early 2018. This news
contradicted Defendants' false statement and caused Synchrony's
share price to fall 5.3%, to $32.69, by the close of that day (July
12, 2018), and to continue to decline another 1.6% on the following
day (July 13, 2018), closing at $32.44.
On February 5, 2019, following the filing of a class action, the
Court appointed Stichting Depositary APG Developed Markets Equity
Pool as Lead Plaintiff, and BLB&G as Lead Counsel, for the Class.
On April 5, 2019, Lead Plaintiff filed an Amended Class Action
Complaint on behalf of a class of investors who purchased or
otherwise acquired Synchrony common stock between October 21, 2016
and November 1, 2018 and in particular, alleged that the truth
about Defendants' fraud was revealed to investors through a series
of partial corrective disclosures.
On June 26, 2019, Defendants filed their motion to dismiss. BLB&G
filed an opposition on August 21, 2019 and, on October 11, 2019,
the Defendants filed their reply. On October 21, 2019, Plaintiffs
filed before Judge Bolden a motion for partial modification of the
PSLRA stay, seeking to obtain an unredacted copy of the complaint
in Walmart's 2018 lawsuit against Synchrony. Simultaneously,
Plaintiffs filed a motion in the District Court for the Western
District of Arkansas, seeking to unseal Walmart's complaint. The
Western District of Arkansas granted that motion on November 15,
2019, and Defendants appealed to the Eighth Circuit Court of
Appeals. Defendants simultaneously moved the Western District of
Arkansas and the Eighth Circuit Court of Appeals for an emergency
stay of the District Court's order granting our motion to unseal
pending the appeal. On December 18, 2019, the Eighth Circuit Court
of Appeals granted Defendants' motion for a stay but denied
Defendants' motion for an expedited appeal, holding that the appeal
was stayed pending a decision by the District of Connecticut on our
motion for partial modification of the PSLRA stay.
Judge Bolden held oral argument on Defendants' motion to dismiss
the complaint on March 26, 2020. On March 31, 2020, he issued an
order granting Defendants' motion to dismiss in its entirety and
dismissing Plaintiffs' claims with prejudice. This decision also
rendered moot Plaintiffs' motion for partial modification of the
PSLRA stay. Judge Bolden held that the complaint failed to allege
the falsity of any of the alleged false statements. Plaintiffs
appealed this decision to the Second Circuit Court of Appeals, and
argued the appeal on November 12, 2020. On February 16, 2021, the
Second Circuit affirmed in part and reversed in part Judge Bolden's
order granting Defendants' motion to dismiss.
On May 17, 2021, Defendants filed a renewed motion to dismiss the
Amended Complaint. Plaintiffs filed their opposition to this motion
on July 1, 2021. On August 2, 2021, Defendants filed a reply in
further support of their motion to dismiss. On February 11, 2022,
the Court denied Defendants' renewed motion to dismiss. The Court
also ordered the parties to proceed with discovery.
On June 24, 2022, consistent with the Court's rulings, Plaintiffs
moved to certify a class of investors who purchased or otherwise
acquired the common stock of Synchrony from January 19, 2018
through July 12, 2018, inclusive.
Discovery in the Action commenced and continued through December
2022. The Parties continued to meet and confer as their discovery
efforts continued—exchanging numerous letters concerning disputed
discovery issues over several months. On August 29, 2022, the Court
held a remote discovery conference and on September 26, 2022, after
ruling on several additional discovery disputes, the Court extended
the case schedule. Over the course of discovery, Defendants
produced more than 50,000 documents to Plaintiffs, including almost
300,000 pages, and Plaintiffs' Counsel reviewed those documents on
a rolling basis as Defendants produced them.
In January 2023, the Parties reached an agreement to settle the
Action for $34,000,000 for the benefit of the Class
On February 3, 2023, the Court entered a Ruling and Order on Class
Certification, which granted Plaintiffs' motion for class
certification and certified the Action to proceed as a class action
on behalf of a class of all persons or entities who purchased or
otherwise acquired the common stock of Synchrony between January
19, 2018, and July 12, 2018, inclusive, and who were damaged
thereby. The Order also appointed Lead Plaintiff as Class
Representative for the Class and Bernstein Litowitz Berger &
Grossmann LLP as Class Counsel.
On April 3, 2023, the Parties entered into the Stipulation and
Agreement of Settlement, which sets forth the terms and conditions
of the Settlement. On April 12, 2023, the Court preliminarily
approved the Settlement, authorized this Notice to be disseminated
to potential Class Members, and scheduled the Settlement Hearing to
consider whether to grant final approval to the Settlement for July
31, 2023.
TACTILE SYSTEMS: $5MM Class Settlement to Be Heard on Aug. 23
-------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued a statement regarding the
Tactile Securities Litigation:
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BRIAN MART, Individually and on Behalf of All Others Similarly
Situated,
Plaintiff,
vs.
TACTILE SYSTEMS TECHNOLOGY, INC., et al.,
Defendants.
Civ No. 0:20-cv-02074-NEB-DTS
CLASS ACTION
SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
TO:
ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED TACTILE SYSTEMS
TECHNOLOGY, INC. ("TACTILE" OR THE "COMPANY") PUBLICLY TRADED
SECURITIES DURING THE PERIOD FROM MAY 7, 2018 THROUGH JUNE 8, 2020,
INCLUSIVE, AND WERE DAMAGED THEREBY ("CLASS" OR "CLASS MEMBERS")
THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER
SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS
ENTIRETY.
YOU ARE HEREBY NOTIFIED that a hearing will be held on August 23,
2023, at 10:00 a.m. (Central time), before the Honorable Nancy E.
Brasel via Zoom at the link available at
https://www.zoomgov.com/j/1600690317?pwd=M2RaOHSXFVZHVoR2ErQWl6cXd2UT09,
to determine whether: (1) the proposed settlement (the
"Settlement") of the above-captioned action as set forth in the
Stipulation of Settlement ("Stipulation")1 for $5,000,000 in cash
should be approved by the Court as fair, reasonable, and adequate;
(2) the Judgment as provided under the Stipulation should be
entered dismissing the Litigation with prejudice; (3) to award Lead
Counsel attorneys' fees and expenses out of the Settlement Fund (as
defined in the Notice of Pendency and Proposed Settlement of Class
Action ("Notice"), which is discussed below), and, if so, in what
amounts; and (4) the Plan of Allocation should be approved by the
Court as fair, reasonable, and adequate.
To keep the number of video links to a manageable number, observers
that wish to only watch the hearing shall participate by telephone
using the following information:
Dial: 1‐669‐254‐5252
Meeting ID: 160 069 0317
Passcode: 144682
IF YOU PURCHASED OR ACQUIRED TACTILE PUBLICLY TRADED SECURITIES
FROM MAY 7, 2018 THROUGH JUNE 8, 2020, INCLUSIVE, YOUR RIGHTS MAY
BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION.
To share in the distribution of the Settlement Fund, you must
establish your rights by submitting a Proof of Claim and Release
form ("Proof of Claim") by mail (postmarked no later than August
23, 2023) or electronically (no later than August 23, 2023). Your
failure to submit your Proof of Claim by August 23, 2023, will
subject your claim to rejection and preclude your receiving any of
the recovery in connection with the Settlement of this Litigation.
If you purchased or acquired Tactile publicly traded securities
from May 7, 2018 through June 8, 2020, inclusive, and do not
request exclusion from the Class, you will be bound by the
Settlement and any judgment and release entered in the Litigation,
including, but not limited to, the Judgment, whether or not you
submit a Proof of Claim.
If you have not received a copy of the Notice, which more
completely describes the Settlement and your rights thereunder
(including your right to object to the Settlement), and a Proof of
Claim, you may obtain these documents, as well as a copy of the
Stipulation (which, among other things, contains definitions for
the defined terms used in this Summary Notice) and other Settlement
documents, online at www.TactileSecuritiesSettlement.com, or by
contacting the Claims Administrator:
Tactile Securities Settlement
Claims Administrator
c/o Gilardi & Co. LLC
P.O. Box 301134
Los Angeles, CA 90030-1134
1-888-846-6829
Inquiries should NOT be directed to Defendants, the Court, or the
Clerk of the Court.
Inquiries, other than requests for the Notice or for a Proof of
Claim, may be made to Lead Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
Ellen Gusikoff Stewart
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 1-800-449-4900
settlementinfo@rgrdlaw.com
IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A
REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED BY AUGUST 2, 2023,
IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL CLASS MEMBERS
WILL BE BOUND BY THE SETTLEMENT EVEN IF THEY DO NOT SUBMIT A TIMELY
PROOF OF CLAIM.
IF YOU ARE A CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE
SETTLEMENT, THE PLAN OF ALLOCATION, THE REQUEST BY LEAD COUNSEL FOR
AN AWARD OF ATTORNEYS' FEES NOT TO EXCEED 30% OF THE $5,000,000
SETTLEMENT AMOUNT AND EXPENSES NOT TO EXCEED $139,000. ANY
OBJECTIONS MUST BE FILED WITH THE COURT AND SENT TO LEAD COUNSEL
AND DEFENDANTS' COUNSEL BY AUGUST 2, 2023, IN THE MANNER AND FORM
EXPLAINED IN THE NOTICE.
DATED: May 4, 2023
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
1 The Stipulation can be viewed and/or obtained at
www.TactileSecuritiesSettlement.com.
TENARIS SA: $9.5MM Class Settlement to Be Heard on Oct. 19
----------------------------------------------------------
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
In re Tenaris S.A. Securities Litigation
Case No. 1:18-cv-07059-KAM-SJB
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF
SETTLEMENT CLASS AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS
HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND
REIMBURSEMENT OF LITIGATION EXPENSES
TO: All persons and entities who, during the period between May
1, 2014, and December 5, 2018, inclusive, purchased or otherwise
acquired American Depositary Shares of Tenaris S.A. ("Tenaris") and
who suffered economic losses as a proximate result of the alleged
wrongdoing (the "Settlement Class").
Please read this notice carefully, your rights will be affected by
a class action lawsuit pending in this court.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Eastern District of New York, that the above-captioned
litigation (the "Action") has been certified as a class action on
behalf of the Settlement Class, except for certain persons and
entities who are excluded from the Settlement Class by definition
as set forth in the full Notice of (I) Pendency of Class Action,
Certification of Settlement Class, and Proposed Settlement; (II)
Settlement Fairness Hearing; and (III) Motion for an Award of
Attorneys' Fees and Reimbursement of Litigation Expenses (the
"Notice").
YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have
reached a proposed settlement of the Action for $9,500,000 in cash
(the "Settlement"), that, if approved, will resolve all claims in
the Action.
A hearing will be held on October 19, 2023 at 10:00 a.m., before
the Honorable Kiyo A. Matsumoto at the United States District Court
for the Eastern District of New York, United States Courthouse,
Courtroom 6C South, 225 Cadman Plaza East, Brooklyn, NY 11201, to
determine: (i) whether the proposed Settlement should be approved
as fair, reasonable, and adequate; (ii) whether the Action should
be dismissed with prejudice against Defendants, and the Releases
specified and described in the Stipulation and Agreement of
Settlement dated March 3, 2023 (and in the Notice) should be
granted; (iii) whether the proposed Plan of Allocation should be
approved as fair and reasonable; and (iv) whether Lead Counsel's
application for an award of attorneys' fees and reimbursement of
expenses should be approved.
If you are a member of the Settlement Class, your rights will be
affected by the pending Action and the Settlement, and you may be
entitled to share in the Settlement Fund. The Notice and Proof of
Claim and Release Form ("Claim Form") can be downloaded from the
website maintained by the Claims Administrator,
www.TenarisSecuritiesSettlement.com. You may also obtain copies of
the Notice and Claim Form by contacting the Claims Administrator at
In re Tenaris Securities Litigation, c/o A.B. Data, Ltd., P.O. Box
173022, Milwaukee, WI 53217, 1-877-388-1758.
If you are a member of the Settlement Class, in order to be
eligible to receive a payment under the proposed Settlement, you
must submit a Claim Form postmarked or online no later than
September 12th, 2023. If you are a Settlement Class Member and do
not submit a proper Claim Form, you will not be eligible to share
in the distribution of the net proceeds of the Settlement, but you
will nevertheless be bound by any judgments or orders entered by
the Court in the Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than September 28th,
2023, in accordance with the instructions set forth in the Notice.
If you properly exclude yourself from the Settlement Class, you
will not be bound by any judgments or orders entered by the Court
in the Action and you will not be eligible to share in the proceeds
of the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees and
reimbursement of expenses, must be filed with the Court and
delivered to Lead Counsel and Defendants' Counsel such that they
are received no later than September 28th, 2023, in accordance with
the instructions set forth in the Notice.
Please do not contact the Court, the Clerk's office, Tenaris, or
its counsel regarding this notice. All questions about this
notice, the proposed Settlement, or your eligibility to participate
in the Settlement should be directed to Lead Counsel or the Claims
Administrator.
Requests for the Notice and Claim Form should be made to:
In re Tenaris Securities Litigation
c/o A.B. Data, Ltd.
P.O. Box 173022
Milwaukee, WI 53217
877-388-1758
info@TenarisSecuritiesSettlement.com
www.TenarisSecuritiesSettlement.com
Inquiries, other than requests for the Notice and Claim Form,
should be made to Lead Counsel:
GLANCY PRONGAY & MURRAY LLP
Kara M. Wolke, Esq.
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
(888) 773-9224
settlements@glancylaw.com
Dated: May 29, 2023
By Order of the Court
United States District Court
Eastern District of New York
TIKTOK INC: Griffith Sues Over Data Privacy Violations
------------------------------------------------------
BERNADINE GRIFFITH, individually and on behalf of all others
similarly situated, Plaintiff v. TIKTOK, INC.; and BYTEDANCE, INC.,
Defendants, Case No. 5:23-cv-00964 (C.D. Cal., May 26, 2023)
alleges Defendant's violation of the California Consumer Privacy
Act ("CCPA").
The Plaintiff asserts that the complaint is about the Defendants'
unauthorized interception, collection, saving and use of non-TikTok
users' highly personal data whenever the non-TikTok users visit a
website with the TikTok SDK installed. The Defendants engaged in
this conduct even where non-TikTok users employed privacy settings
that are meant to block third-party tracking of their web activity,
says the Plaintiff.
The purpose of the lawsuit of the Plaintiff is to put an end to the
Defendants' practice and compensate those injured to the fullest
extent of the law.
TIKTOK INC. operates as a free service and social media application
for creating and sharing short mobile videos. The Company provides
a fully realized platform for connecting individuals to a vibrant
community of content creators. TikTok serves customers worldwide.
[BN]
The Plaintiff is represented by:
Ekwan E. Rhow, Esq.
Marc E. Masters, Esq.
Christopher J. Lee, Esq.
BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
DROOKS, LINCENBERG & RHOW, P.C.
1875 Century Park East, 23rd Floor
Los Angeles, CA 90067-2561
Telephone: (310) 201-2100
- and -
Jonathan M. Rotter, Esq.
Kara M. Wolke, Esq.
Gregory B. Linkh, Esq.
GLANCY PRONGAY & MURRAY, LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067-2561
Telephone: (310) 201-9150
- and -
Kalpana Srinivasan, Esq.
Steven Sklaver, Esq.
Michael Gervais, Esq.
SUSMAN GODFREY L.L.P.
1900 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067
Telephone: (310) 789-3100
TITLEMAX INC: Data Breach Class Action Suit Pending
---------------------------------------------------
Emery Winter, writing for Karell, reports that a VERIFY reader
received a letter appearing to be from TitleMax, a car title and
personal loan company, warning them of a data breach. They wanted
to know if the letter is real or a scam, and if there might be a
class action lawsuit related to it.
THE QUESTION
Did TitleMax send out a letter warning customers of a data breach?
THE ANSWER
This is true.
Yes, TitleMax did send out a letter warning customers of a data
breach.
WHAT WE FOUND
TMX Finance, the parent company of TitleMax, TitleBucks and
InstaLoan, sent all potentially affected people a notification
letter or email warning them that their data may have been
compromised in a recent data breach, according to an alert on the
TitleMax website.
The company says it detected "suspicious activity" in its systems
on Feb. 13. An investigation revealed the breach first occurred on
Dec. 10, 2022. TMX reported the breach to consumers on March 30,
2023, according to the report TMX submitted to the Office of the
Maine Attorney General.
TMX's report to the Maine Attorney General says the breached data
contained personal information for 4.8 million people.
The compromised information includes:
Names
Dates of Birth
Social Security numbers
Passport numbers
Driver's license numbers
Federal/state identification card numbers
Tax identification numbers
Financial account information
Addresses
Phone numbers
Email addresses
Although TMX believes the breach has been contained, it's
continuing to monitor its systems and its investigation into the
incident is still ongoing. The company has reported it to the FBI.
What should I do if I've received a notification letter or email?
TMX is offering affected customers an activation code for 12 months
of free credit monitoring and identity protection services through
Experian IdentityWorks. TMX recommends that customers enroll in
this program before July 31, 2023, when the promotional codes
expire. Instructions for enrolling are in the notification letter
and email.
Additionally, TMX recommends you review your financial account
statements and credit reports closely. Promptly notify your bank if
you notice any suspicious activity on your bank account. Consider
placing a fraud alert on your credit report or a security freeze on
your credit file.
A security freeze will keep creditors from accessing your credit
report, which keeps them from approving any new credit account
under your name, USA.gov says.
If you want to put a security freeze on your credit file, you'll
need to do it separately with each of the three main credit
reporting bureaus: Equifax, Experian and TransUnion.
Is there a class action lawsuit against TMX?
Currently, TMX is the target of a class action complaint and mass
arbitration, ClassAction.org, an online information resource about
class action lawsuits, says.
The class action lawsuit was filed on March 31, the same day
TitleMax announced the data breach. It alleges the victims'
personal information was compromised due to TMX's "negligent and/or
careless acts and omissions." Additionally, the suit alleges that
TMX failed to warn its customers they were at increased risk of
identity theft and fraud by waiting more than three months after
the breach first occurred to report it.
The lawsuit looks to cover all people whose information was
accessed or acquired in the data breach.
Right now, there's nothing any potential claimant has to do to
participate in the lawsuit, ClassAction.org says. If the lawsuit is
settled, then a claimant typically has to fill out a form and file
a claim either online or through the mail in order to get their
money.
However, there is no guarantee that the class action lawsuit will
succeed. TitleMax's loans come with a clause requiring borrowers to
resolve any disputes with the company through arbitration,
ClassAction.org says. Arbitration is a way of settling a legal
dispute before a neutral arbitrator instead of a judge or jury, and
comes with a different set of rules.
Because of this, some lawyers are attempting to recruit people to
make mass arbitration claims. Mass arbitration is "when hundreds or
thousands of consumers file individual arbitration claims against
the same company over the same issue at the same time,"
ClassAction.org says. The goal is similar to that of a class action
lawsuit — to get the company to settle instead of paying the
costly fees for arbitrating every individual claim.
To join in mass arbitration, you need to file a claim with a law
firm and might need to potentially share additional information
with the lawyers representing you. ClassAction.org links to the
claim form for one law firm handling mass arbitration cases against
TMX, and other law firms may potentially seek to represent clients
in mass arbitration, as well.
It costs nothing to sign up or participate in mass arbitration with
most law firms, including the one ClassAction.org is providing a
claims form for; the lawyers will only be paid if you win your
claim with a predetermined portion of the settlement. For this
case, ClassAction.org says you could be entitled to a claim worth
$200 or more. [GN]
TOLER APPRAISAL: Bid for Partial Judgment in Gregory Suit Denied
----------------------------------------------------------------
In the case, MIKAYLA GREGORY, Plaintiff v. TOLER APPRAISAL GROUP,
LLC, and GATEWAY MORTGAGE GROUP, LLP, Defendants, Civil Action No.
5:22-cv-00330 (S.D.W. Va.), Judge Irene C. Berger of the U.S.
District Court for the Southern District of West Virginia, Beckley
Division, denies Gateway's Motion for Partial Judgment on the
Pleadings.
On April 21, 2020, Gregory filed a complaint against the Defendants
in the Circuit Court of Raleigh County, West Virginia, alleging
seven state law claims. On Aug. 13, 2020, she filed an amended
class action complaint, alleging five state law claims against the
same Defendants. On March 23, 2021, the Plaintiff again amended,
filing a second amended class action complaint alleging two state
law claims against the Defendants.
On April 13, 2022, Gregory moved to add a claim pursuant to the
Truth in Lending Act (TILA), 15 U.S.C. Section 1639e. On July 22,
2022, her motion was granted and the governing complaint, the Third
Amended Class Action Complaint (Complaint), was deemed served. The
action was subsequently removed pursuant to 28 U.S.C. Section 1331.
The Complaint names Gateway and Toler and alleges that the
Defendants have engaged in improper lending and appraisal
practices, including improperly seeking to influence an appraiser.
The Complaint contains the following causes of action: Count I - an
individual claim of Illegal Loan in Excess of Fair Market Value or
Residential Property, as to Gateway; Count II - an individual claim
of Breach of Professional Standards and Negligence, as to Toler;
and Count III - a class claim of a Truth-In-Lending Violation, 15
U.S.C. Section 1639e. Gregory requests certification of the
proposed class, injunctive relief, compensatory damages,
restitution, attorneys' fees and costs, and prejudgment and post
judgment interest.
Gateway has now moved to dismiss Count III, under Rule 12(c) of the
Federal Rules of Civil Procedure. It requests judgment on the
pleadings resulting in dismissal of Count III, arguing that 15
U.S.C. Section 1639e creates no private right of action.
Looking at the language of the statute, Judge Berger finds no
ambiguity -- Congress intended to create a private right of action
for violations of Section 1639e. Turning to the language of Section
1640(a), it creates liability for a creditor's violation under
"this part" except as otherwise provided by Section 1640. In this
way, the language in Section 1640(e) compliments the penalties
provision in Section 1639e(k), and the two provisions can be read
in harmony. No language in either statute indicates that Section
1639e is to be enforced only by government actors. Lastly, other
courts have held that similarly situated provisions create a
private right of action.
Having found no ambiguity in the language of Section 1639e and
Section 1640, Judge Berger concludes that Section 1639e does create
a private right of action. After thorough review and careful
consideration and for the reasons she stated, she denies Gateway's
Motion for Partial Judgment on the Pleadings. She directs the Clerk
to send a copy of her Order to counsel of record and to any
unrepresented party.
A full-text copy of the Court's May 17, 2023 Memorandum Opinion &
Order is available at https://rb.gy/alti8 from Leagle.com.
TORY BURCH: Loses Bid for Protective Order in Wilkins Class Suit
----------------------------------------------------------------
In the case, ANJANEE WILKINS, individually and on behalf of all
others similarly situated, Plaintiff v. TORY BURCH, LLC, Defendant,
Case No. 4:23-CV-422 RLW (E.D. Mo.), Judge Ronnie L. White of the
U.S. District Court for the Eastern District of Missouri, Eastern
Division, denies the Defendant's Unopposed Motion for Protective
Order and to Seal Disclosure Statement.
The Plaintiff brings the putative class action against the
Defendant for alleged deceptive practices, unjust enrichment, and
money had and received. The Defendant is a Delaware limited
liability company with its principal place of business in New York,
New York. On May 9, 2023, the Defendant filed an unopposed motion
for an extension of time to file an answer or otherwise respond to
the Plaintiff's First Amended Complaint. The Court granted the
motion the next day and gave the Defendant until June 16, 2023, to
answer or otherwise respond.
The matter is before the Court on the Defendant's Unopposed Motion
for Protective Order and to Seal Disclosure Statement. It seeks an
order from the Court allowing it to: (1) disclose only its sole
Missouri member in its Disclosure Statement, and (2) file its
Disclosure Statement under seal. The Plaintiff does not oppose the
motion.
First, the Defendant states that one of its members is a Missouri
LLC with at least one sub-member who is a citizen of Missouri. This
would defeat diversity jurisdiction under 28 U.S.C. Section
1332(a), which requires complete diversity. However, Judge White
finds that the Plaintiff asserts diversity jurisdiction under 28
U.S.C. Section 1332(d)(2)(A), which requires only minimal
diversity. Thus, the Defendant's disclosure does not defeat
diversity jurisdiction. Judge White cannot adequately determine
whether disqualification is necessary based on the citizenship of
one member of the LLC. He therefore denies the Defendant's motion
to limit disclosure.
Next, the Defendant asserts that its members are its investors and
their identity is sensitive information. It argues that public
disclosure of its members' information could harm its business.
The Defendant fails, however, to explain why such information is
sensitive or why divulsion of such information could potentially
harm its business, Judge White finds. He says the Defendant's
conclusory statements do not constitute a compelling reason for
non-disclosure. Other courts have reached similar conclusions.
Thus, he denies the Defendant's motion to file its Disclosure
Statement under seal.
The Defendant will file a complete Disclosure Statement no later
than June 6, 2023.
A full-text copy of the Court's May 23, 2023 Memorandum & Order is
available at https://tinyurl.com/4mu3k243 from Leagle.com.
UNITED STATES: Astakhov Sues Over Unlawful Parolees' Benefits
-------------------------------------------------------------
STANISLAV ASTAKHOV; ALONA ASTAKHOVA; YEVHENII SHAPIRO; and
ANASTASIIA VOLKOVA, individually and on behalf of all others
similarly situated, Plaintiffs v. UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; UNITED STATES DEPARTMENT OF HOMELAND
SECURITY; and UNITED STATES OF AMERICA, Defendants, Case No.
1:23-cv-01502 (D. Colo., May 25, 2023) seeks to challenge the
Defendants' failure to provide the Plaintiffs and the Class
employment authorization incident to status, failure to exempt them
from the $410 filing fee, and request a refund of the fees already
paid.
According to the complaint, as part of the United States'
commitment to providing humanitarian assistance, Congress passed
legislation providing Ukrainian and Afghan parolees benefits
available to refugees. This included the benefits of automatic
employment authorization (known as employment authorization
incident to status) and exemption from the initial $410 fee to
apply for employment authorization. Notwithstanding the
legislation, the United States Department of Homeland Security
(DHS) and United States Citizenship and Immigration Services
(USCIS) did not grant Ukrainian and Afghan parolees employment
authorization incident to status and unlawfully continued to
require them to pay the $410 filing fee to apply for employment
authorization.
On November 21, 2022, USCIS issued a news alert acknowledging that
Ukrainian and Afghan parolees were entitled to the same automatic
employment authorization and fee exemption as refugees. USCIS
therefore stopped charging the $410 fee effective that day.
However, it refused to refund the fees to Afghan and Ukrainian
parolees who had already paid, says the suit.
UNITED STATES OF AMERICA is a country of 50 states covering a vast
swath of North America, with Alaska in the northwest and Hawaii
extending the nation's presence into the Pacific Ocean. [BN]
The Plaintiffs are represented by:
Elizabeth Smith, Esq.
MOTLEY RICE LLC
401 9th St. NW, Suite 630
Washington, DC 20004
Telephone: (202) 232-5504
Facsimile: (202) 232-5513
Email: esmith@motleyrice.com
UNITED STATES: Federal Claims Court Dismisses Etchegoinberry Suit
-----------------------------------------------------------------
In the case, MICHAEL ETCHEGOINBERRY, II, et al., Plaintiffs v. THE
UNITED STATES, Defendant, Case No. 11-564 L (Fed. Cl.), Judge
Zachary N. Somers of the U.S. Court of Federal Claims grants the
government's motion to dismiss the Plaintiffs' complaint.
On Sept. 25, 2020, the government moved to dismiss the Plaintiffs'
complaint for failure to state a claim pursuant to Rule 12(b)(6) of
the Rules of the U.S. Court of Federal Claims ("RCFC"). In its
motion to dismiss, the government principally argues that the
Plaintiff's just compensation claim is based on "inaction" by the
United States and that a just compensation claim cannot be based on
the government's failure to act. The government moves to dismiss
the Plaintiffs' complaint for failure to state a claim.
In 1902, to encourage crop farming in the West's drier regions,
including California, Congress enacted the Reclamation Act to
authorize the construction of water projects from which irrigation
water would be sold to farmers at a subsidized price. The Central
Valley Project is the nation's largest reclamation project,
consisting of dams and water conveyance facilities that span the
length of California's Central Valley, from Shasta Dam, in the
north, to the Friant-Kern Canal, in the south. As an integral part
of the Central Valley project, in 1960, Congress authorized the
construction of the San Luis Unit, with the principal purpose of
furnishing water for irrigation of land in Merced, Fresno, and
Kings Counties, California.
To effectively farm the land in the San Luis Unit, within which the
Plaintiffs' land is located, effective drainage is required: when
fresh water is brought in to irrigate, salty water remains and must
be removed to avoid a build-up of salt in the soil that is
detrimental to the production of various crops. In 1955, the
Department of the Interior apprised Congress of the need to develop
a drainage system for the lands serviced by the San Luis Unit. In
1960, when Congress enacted the San Luis Act, authorizing the
construction of the San Luis Unit, it provided not only for the
provision of irrigation water but also mandated the establishment
of the drainage facilities and services necessary to sustain
effective crop farming.
On June 21, 1961, the State of California notified the Secretary of
the Interior that it would not be providing drainage for the San
Luis Unit; as a result, in January 1962, the Secretary advised
Congress that it would construct the San Luis interceptor drain as
set forth in the San Luis Act. However, beginning in 1967, water
deliveries to lands within the San Luis Unit began without
completion of drainage infrastructure.
Since the late 1970s, Congress has appropriated funds so that the
Bureau of Reclamation could examine solutions to drainage other
than the construction of the master drain. In other words,
Reclamation suggested that the construction of the San Luis
interceptor drain may not be the appropriate drainage solution.
This trend away from the express mandate of the San Luis Act
continued. In both a September 1990 report and December 1991 draft
Environmental Impact Statement ("EIS"), Reclamation favored
in-valley solutions and proposed actions that did not include
construction of the interceptor drain.
The issue of drainage in the San Luis Unit was (and still is) the
subject of extensive litigation in the U.S. District Court for the
Eastern District of California and the U.S. Court of Appeals for
the Ninth Circuit. In 1995 and 2000, the Eastern District of
California and the Ninth Circuit respectively found that
Reclamation had a statutory duty to provide drainage to the San
Luis Unit, but the Ninth Circuit clarified that Interior had
discretion to determine how to best drain the land in Westlands.
After the rulings, a Reclamation plan of action in April 2001
questioned whether the San Luis drain is environmentally or
economically feasible. Despite a plethora of studies, numerous
attempts at concocting various plans, and extensive litigation, the
drainage infrastructure has still, to date, not been completed.
The case at bar is far from the first time that drainage in the San
Luis Unit has been the subject of litigation. Although arising
under different legal claims, theories, and contexts, several
lawsuits have been filed since 1979 relating to the federal
government's failure to provide drainage services to the San Luis
Unit, several of which are based on the same operative facts as
this case and some of which asserted just compensation claims.
These cases are (i) E.D. Cal.: Barcellos and Wolfsen, Inc. v.
Westlands Water Dist., No. CV-F-79-106 (E.D. Cal. filed Apr. 26,
1979) and Westlands Water Dist. v. United States, No. CV-F-81-245
(E.D. Cal. filed July 24, 1981); (ii) Firebaugh Canal Co. v. United
States, No. 88-cv-634 (E.D. Cal. filed Dec. 9, 1988) and Sumner
Peck Ranch, Inc. v. Bureau of Reclamation, No. 91-cv-048 (E.D. Cal.
filed Jan. 31, 1991); (iii) Claus v. United States, No. 270-85 L
(Cl. Ct. filed May 9, 1985); Schwab v. United States, No. 892-85 L
(Cl. Ct. filed May 16, 1985); and Freitas v. United States, No.
88-218 L (Cl. Ct. Apr. 5, 1988); (iv) Firebaugh Canal Water Dist.
v. United States, No. 03-cv-2790 (Fed. Cl. filed January 27, 2004);
(v) Firebaugh Canal Water Dist. v. United States, 70 Fed. Cl. 593
(2006); (vi) Westlands Water District v. United States, No. 12-12
(Fed. Cl. filed Jan. 6, 2012); and (vii) Etchegoinberry v. United
States, No. 11-564 L (Fed. Cl. filed Sept. 2, 2011).
In the present lawsuit, the Plaintiffs filed a complaint on Sept.
2, 2011, alleging that the federal government's failure to provide
drainage effected a physical taking. On Dec. 8, 2011, the
government filed a motion to dismiss for lack of subject matter
jurisdiction, arguing the Plaintiffs' complaint was time barred
because events giving rise to the United States' alleged liability
occurred years before September 2, 2005. Judge Horn, in 2013,
denied the government's motion, finding the complaint was timely
filed.
Judge Horn held that the federal government's decades of inaction
to implement a permanent drainage solution caused landowners to be
justifiably uncertain about the permanent nature of the damage to
their lands within a timeframe that made the Plaintiffs' complaint
timely filed. In addition, she found that the 2008 Feasibility
Report, combined with the 2010 Connor letter, amounted to the
federal government repudiating its statutory duty to provide
drainage; therefore, the Plaintiffs' claims accrued within the
statute of limitations.
The motion pending before the Court is a motion under RCFC 12(b)(6)
to dismiss the Plaintiffs' complaint for failure to state a claim.
According to the government, the Court must dismiss the Plaintiffs'
claims because they are based on government inaction and takings
liability does not arise from government inaction or failure to
act. Previously, the government moved under RCFC 12(b)(1) to
dismiss the Plaintiffs' claims for lack of subject matter
jurisdiction because the government argued the Plaintiffs' claims
were untimely.
As noted, Judge Horn denied the government's RCFC 12(b)(1) motion.
However, Judge Somers, in trying to better understand the
Plaintiffs' protean allegations as to exactly what action by the
government caused the alleged taking, has become convinced that the
Plaintiffs' claims are barred by the statute of limitations.
Accordingly, because the Tucker Act's statute of limitations is
jurisdictional, he must dismiss the Plaintiffs' complaint even
though an RCFC 12(b)(1) motion is not currently pending before it,
the law of the case notwithstanding.
In response to the government's motion to dismiss for lack of
subject matter jurisdiction, the Plaintiffs asserted that their
claims were not untimely because the stabilization doctrine delayed
accrual of their claims. According to them, their complaint clearly
alleges that the Government has taken and befouled their properties
through the inundation of water, and that such a process has been
continuous and gradual over time, and both the Supreme Court and
the Court have ruled the application of the stabilization doctrine
entirely appropriate in these circumstances.
Moreover, the Plaintiffs contended that the facts alleged in the
Plaintiffs' Complaint demonstrate justifiable uncertainty all the
way through 2008, well within the limitations period. They argued
that it was not until the 2010 Connor letter, which according to
Plaintiffs was a repudiation by the United States of its statutory
obligation to provide drainage, that their uncertainty ended and
their claims accrued. The government disagreed with the Plaintiffs
and argued that any justifiable uncertainty ended well before Sept.
2, 2005. In disagreeing with the Plaintiffs' alleged uncertainty,
the government challenged the jurisdictional facts alleged in their
complaint.
Judge Somers holds that there are several problems with the
Plaintiffs' attempted application of the stabilization doctrine and
justifiable uncertainty to delay the accrual of their claims.
First, it is not clear that the stabilization doctrine even applies
to Plaintiffs' just compensation claim. That is to say, it does not
appear that the Plaintiffs are alleging a taking by an intermittent
and gradual, physical process. Rather, it appears that the
"process" at issue here is not intermittent (in the
stabilization-sense), gradual, or physical. Instead, the alleged
taking here results from the failure to remove excess irrigation
water from regularly scheduled releases that then occupied (or
"inundated" to use the Plaintiffs' terminology) and damaged (or
"befouled") their property. The physical occupation (excess
irrigation water the United States was obligated to remove) has
existed in the form of a flowage or seepage easement since delivery
of irrigation water began for each property.
Thus, according to Judge Somers, there does not seem to exist in
this case the same type of intermittent, gradual, physical process
that existed in flooding and erosion cases in which the
stabilization doctrine has been applied in the past. The Plaintiffs
themselves are literally putting the irrigation water on their
properties that ultimately results in the wastewater that is
causing the alleged taking in the form of a flowage or seepage
easement. This is not the incremental (and thus difficult to
perceive) erosion that exists in stabilization-erosion cases or the
intermittent (and thus possibly not permanent) flooding that exists
in stabilization-flooding cases.
Second, even if the occupation of the Plaintiffs' land by excess
irrigation water is akin to those takings for which the
stabilization doctrine has been applied, Judge Somers finds that
the event that the Plaintiffs claim stabilized the taking -- the
2010 Connor letter, which, according to them, repudiated the United
States' obligation to provide drainage -- could not have stabilized
their claims because it does not contain a repudiation of the
United States' statutory drainage obligation. Instead, a plain
reading of the 2010 Connor letter clearly indicates that rather
than repudiating the United States' obligation, the letter actually
reaffirms that obligation while suggesting a possible alternative
to provide drainage as part of an ongoing discussion between
stakeholders.
In other words, if the Plaintiffs' claims still had not stabilized
at the time the letter was written and the letter was insufficient
to stabilize their claims, then their claims were not ripe (to the
extent the 2010 Connor letter was necessary for their accrual) at
the time they filed suit. Indeed, if the Plaintiffs are correct
that their claims were not stale when filed, their claims may still
be unripe today as other courts that have examined the drainage
issue have determined that the United States is complying with that
obligation.
Finally, even if what is contained in the 2010 Connor letter did,
in fact, constitute a repudiation of the United States' drainage
obligation, Judge Somers says there were many more events that
occurred prior to Sept. 2, 2005, that should have put the
Plaintiffs on notice that their claims had stabilized and ending
any uncertainty that the taking was permanent.
In sum, Judge Somers takes no position regarding the government's
assertion that the Plaintiffs' claim is based on inaction; however,
he must nonetheless dismiss the Plaintiffs' complaint for another
reason: lack of subject matter jurisdiction. Judge Horn previously
ruled, in response to an earlier motion to dismiss filed by the
United States, that the Plaintiffs' claims were filed within the
applicable six-year statute of limitation based on the
stabilization doctrine, citing Etchegoinberry v. United States, 114
Fed. Cl. 437 (2013).
However, after reviewing the extensive record in the case,
applicable case law, and related litigation in this and other
federal courts in order to assess fully the government's RCFC
12(b)(6) motion, Judge Somers simply cannot concur that the
Plaintiffs' complaint was filed within six years of the date on
which the claims accrued. Accordingly, he must dismiss the
Plaintiffs' complaint pursuant to RCFC 12(h)(3) and the
government's previous motion to dismiss.
Although he is sympathetic to the damage to the Plaintiffs' lands
caused by the United States' failure to fulfill its statutory
drainage obligation, Judge Somers cannot allow the case, which is
clearly beyond the Court's jurisdiction, to proceed. Accordingly,
pursuant to RCFC 12(h)(3) and the arguments made by the government
in its previously denied RCFC 12(b)(1) motion, the Plaintiffs'
complaint is dismissed. The Clerk will enter judgment accordingly.
A full-text copy of the Court's May 19, 2023 Opinion & Order is
available at https://tinyurl.com/5fjy6caz from Leagle.com.
Eric L. Klein -- eklein@bdlaw.com -- with whom were Gus B. Bauman
-- gbauman@bdlaw.com -- William Kershaw, Kaitlyn Shannon --
kshannon@bdlaw.com -- Alexander Horning -- ahorning@bdlaw.com --
and Felicia Isaac, Beveridge & Diamond, P.C., all of Washington,
D.C., for the Plaintiffs.
Frank J. Singer, with whom was William J. Shapiro, Trial Attorneys,
Environment & Natural Resources Division, Civil Division,
Department of Justice, of Washington D.C., for the Defendant.
VC RENOVATIONS: Fails to Pay Proper Wages, Ayala Suit Alleges
-------------------------------------------------------------
CARLOS AYALA, individually and on behalf of all others similarly
situated, Plaintiff v. VC RENOVATIONS CORPORATION; and CARLOS
CONTRERAS GOMEZ, Defendant, Case No. 1:23-cv-03907 (E.D.N.Y., May
25, 2023) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Ayala was employed by the Defendants as a ceramic tile
installer.
VC RENOVATIONS CORPORATION owns and operates a construction and
remodeling company known as VC Renovations, located at Sunnyside,
NY. [BN]
The Plaintiff is represented by:
Erik M. Bashian, Esq.
BASHIAN & PAPANTONIOU, P.C.
500 Old Country Road, Ste. 302
Garden City, NY 11530
Telephone: (516) 279-1554
Facsimile: (516) 213-0339
Email: eb@bashpaplaw.com
- and -
Nolan Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Road, Ste. 500
Boca Raton, FL 33431
Telephone: (954) 745-0588
Email: klein@nklegal.com
VIACOM INC: $122.5MM Class Settlement to Be Heard on July 25
------------------------------------------------------------
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN RE VIACOM INC.
STOCKHOLDERS LITIGATION
Consolidated C.A. No. 2019-0948-SG
SUMMARY NOTICE OF PENDENCY AND PROPOSED
SETTLEMENT OF STOCKHOLDER CLASS ACTION,
SETTLEMENT HEARING, AND RIGHT TO APPEAR
TO:
All holders of Viacom Inc. ("Viacom") common stock at any time from
August 13, 2019 through and including December 4, 2019 (the "Class
Period"), whether beneficial or of record, including the legal
representatives, heirs, successors-in-interest, transferees, and
assignees of all such foregoing holders (the "Settlement Class").
Certain persons and entities are excluded from the Settlement Class
by definition, as set forth in the full Notice of Pendency and
Proposed Settlement of Stockholder Class Action, Settlement
Hearing, and Right to Appear (the "Long-Form Notice"), available at
www.ViacomStockholdersLitigation.com. Any capitalized terms used in
this Summary Notice that are not otherwise defined in this Summary
Notice shall have the meanings given to them in the Stipulation and
Agreement of Settlement, Compromise, and Release dated March 28,
2023 (the "Stipulation"), which is also available at
www.ViacomStockholdersLitigation.com.
Please read this SUMMARY notice carefully. your rights will be
affected by a class action lawsuit pending in this court.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Court of
Chancery of the State of Delaware (the "Court"), that the
above-captioned stockholder class action (the "Action") has been
preliminarily certified as a class action on behalf of the
Settlement Class defined above.
YOU ARE ALSO NOTIFIED that (i) Lead Plaintiff California Public
Employees' Retirement System ("Lead Plaintiff"), on behalf of
itself and the Settlement Class and Additional Plaintiffs Park
Employees' and Retirement Board Employees' Annuity and Benefit Fund
of Chicago ("Chicago Park") and Louis Wilen; (ii) defendants Shari
E. Redstone, National Amusements, Inc., NAI Entertainment Holdings
LLC, Thomas J. May, Judith A. McHale, Ronald Nelson, and Nicole
Seligman (collectively, "Defendants"); and (iii) Paramount Global
("Paramount," and together with Lead Plaintiff and Defendants, the
"Parties") have reached a proposed settlement of the Action for
$122,500,000 in cash (the "Settlement"). The terms of the
Settlement are stated in the Stipulation. If approved by the Court,
the Settlement will resolve all claims in the Action.
A hearing (the "Settlement Hearing") will be held on July 25, 2023,
at 11:00 a.m., before The Honorable Sam Glasscock III, Vice
Chancellor, either in person at the Court of Chancery of the State
of Delaware, Sussex County, Court of Chancery Courthouse, 34 The
Circle, Georgetown, Delaware 19947, or remotely by telephone or
videoconference (in the discretion of the Court), to, among other
things: (i) determine whether to finally certify the Settlement
Class for settlement purposes only, pursuant to Court of Chancery
Rules 23(a), 23(b)(1), and 23(b)(2); (ii) determine whether Lead
Plaintiff and Lead Counsel, Bernstein Litowitz Berger & Grossmann
LLP, have adequately represented the Settlement Class, and whether
Lead Plaintiff should be finally appointed as class representative
for the Settlement Class and Lead Counsel should be finally
appointed as class counsel for the Settlement Class; (iii)
determine whether the proposed Settlement should be approved as
fair, reasonable, and adequate to the Settlement Class, and in the
best interests of the Settlement Class; (iv) determine whether the
proposed Order and Final Judgment approving the Settlement,
dismissing the Action with prejudice, and granting the Releases
provided under the Stipulation should be entered; (v) determine
whether the proposed Plan of Allocation of the Net Settlement Fund
is fair and reasonable, and should therefore be approved; (vi)
determine whether and in what amount any award of attorneys' fees
and expenses to Plaintiffs' Counsel (the "Fee and Expense Award")
should be paid out of the Settlement Fund, including any incentive
awards for Lead Plaintiff and Additional Plaintiff Chicago Park
(the "Incentive Awards"); (vii) hear and rule on any objections to
the Settlement, the proposed Plan of Allocation, and/or Lead
Counsel's application for a Fee and Expense Award, including any
Incentive Awards; and (viii) consider any other matters that may
properly be brought before the Court in connection with the
Settlement.
Any updates regarding the Settlement Hearing, including any changes
to the date, time, or format of the hearing or updates regarding
remote or in-person appearances at the hearing, will be posted to
the Settlement website, www.ViacomStockholdersLitigation.com.
If you are a member of the Settlement Class, your rights will be
affected by the pending Action and the Settlement, and you may be
entitled to share in the Net Settlement Fund. If you have not yet
received the Long-Form Notice, you may obtain a copy of the
Long-Form Notice by contacting the Settlement Administrator by mail
at Viacom Stockholders Litigation, c/o A.B. Data, Ltd., P.O. Box
173058, Milwaukee, WI 53217; by telephone at 877-390-3177; or by
email at info@ViacomStockholdersLitigation.com. A copy of the
Long-Form Notice can also be downloaded from the Settlement
website, www.ViacomStockholdersLitigation.com.
If the Settlement is approved by the Court and the Effective Date
occurs, the Net Settlement Fund will be distributed on a pro rata
basis to Eligible Class Members1 in accordance with the proposed
Plan of Allocation stated in the Long-Form Notice or such other
plan of allocation as is approved by the Court. Pursuant to the
proposed Plan of Allocation, each Eligible Class Member will be
eligible to receive a pro rata payment from the Net Settlement Fund
equal to the product of (i) the number of Eligible Shares2 held by
the Eligible Class Member and (ii) the "Per-Share Recovery" for the
Settlement, which will be determined by dividing the total amount
of the Net Settlement Fund by the total number of Eligible Shares
held by all Eligible Class Members. As explained in further detail
in the Long-Form Notice at paragraphs 25-35, pursuant to the Plan
of Allocation, payments from the Net Settlement Fund to Eligible
Class Members will be made in the same manner in which Eligible
Class Members received the Merger Consideration. Eligible Class
Members do not have to submit a claim form to receive a payment
from the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's application for a Fee and Expense
Award, including any application by Lead Plaintiff and Additional
Plaintiff Chicago Park for Incentive Awards, must be filed with the
Register in Chancery in the Court of Chancery of the State of
Delaware and delivered to Lead Counsel, Representative Defendants'
Counsel, and Paramount's Counsel such that they are received no
later than July 10, 2023, in accordance with the instructions set
forth in the Long-Form Notice.
Please do not contact the Court or the Office of the Register in
Chancery regarding this Summary Notice. All questions about this
Summary Notice, the proposed Settlement, or your eligibility to
participate in the Settlement should be directed to the Settlement
Administrator or Lead Counsel.
Requests for the Long-Form Notice should be made to the Settlement
Administrator:
Viacom Stockholders Litigation
c/o A.B. Data, Ltd.
P.O. Box 173058
Milwaukee, WI 53217
877-390-3177
info@ViacomStockholdersLitigation.com
www.ViacomStockholdersLitigation.com
Inquiries, other than requests for the Long-Form Notice, should be
made to Lead Counsel:
Edward Timlin
Bernstein Litowitz Berger & Grossmann LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
800–380–8496
settlements@blbglaw.com
BY ORDER OF THE COURT
OF CHANCERY OF THE
STATE OF DELAWARE
1 "Eligible Class Members" has the meaning ascribed to it in the
Long-Form Notice.
2 "Eligible Shares" has the meaning ascribed to it in the Long-Form
Notice.
WASATCH ADVANTAGE: Deal on Damages Calculation in Terry Suit OK'd
-----------------------------------------------------------------
In the case, UNITED STATES OF AMERICA, ex rel. DENIKA TERRY, ROY
HUSKEY III, and TAMERA LIVINGSTON, and each of them for themselves
individually, and for all other persons similarly situated and on
behalf of the UNITED STATES OF AMERICA Plaintiffs/Relators v.
WASATCH ADVANTAGE GROUP, LLC, et al., Defendants, Case No.
2:15-CV-00799-KJM-DB (E.D. Cal.), Judge Kimberly J. Mueller of the
U.S. District Court for the Eastern District of California,
Sacramento Division, grants the parties' stipulation regarding
damages calculation.
The other Defendants are WASATCH PROPERTY MANAGEMENT, INC., WASATCH
POOL HOLDINGS, LLC, CHESAPEAKE APARTMENT HOLDINGS, LLC, LOGAN PARK
APARTMENTS, LLC, LOGAN PARK APARTMENTS, LP, ASPEN PARK HOLDINGS,
LLC, BELLWOOD JERRON HOLDINGS, LLC, BELLWOOD JERRON APARTMENTS, LP,
BENT TREE APARTMENTS, LLC, CALIFORNIA PLACE APARTMENTS, LLC,
CAMELOT LAKES HOLDINGS, LLC, CANYON CLUB HOLDINGS, LLC, COURTYARD
AT CENTRAL PARK APARTMENTS, LLC, CREEKSIDE HOLDINGS, LTD, HAYWARD
SENIOR APARTMENTS, LP, HERITAGE PARK APARTMENTS, LP, OAK VALLEY
APARTMENTS, LLC, OAK VALLEY HOLDINGS, LP, PEPPERTREE APARTMENT
HOLDINGS, LP, PIEDMONT APARTMENTS, LP, POINT NATOMAS APARTMENTS,
LLC, POINT NATOMAS APARTMENTS, LP, RIVER OAKS HOLDINGS, LLC, SHADOW
WAY APARTMENTS, LP, SPRING VILLA APARTMENTS, LP, SUN VALLEY
HOLDINGS, LTD, VILLAGE GROVE APARTMENTS, LP, WASATCH QUAIL RUN GP,
LLC, WASATCH PREMIER PROPERTIES, LLC, WASATCH POOL HOLDINGS III,
LLC, and DOES 1-4.
On Nov. 23, 2022, the Court issued an order granting the
Plaintiffs' Motion for Partial Summary Judgment and denying the
Defendants' Motion for Summary Judgment, or in the Alternative
Summary Adjudication, or in the Further Alternative, Class
Decertification. The Order held that the Defendants are liable to
the certified classes for breach of contract and unfair business
practices in violation of California's Unfair Competition Law.
As to the Plaintiffs' class claim for breach of contract, the
Court's Order stated that the Defendants breached the tenancy
addendum by requiring tenants to pay excess rent in the form of
charges contained in the ASAs. The Plaintiffs were damaged in the
amount of the excess rent they were required to pay, which the
Court will determine in the second phase of the litigation.
As to the Plaintiffs' class claim for violation of the Unfair
Competition Law, it stated that the Plaintiffs have suffered injury
in the form of lost money or property as a result of the
Defendants' unlawful practice of requiring the Plaintiffs to pay
additional charges beyond their share of rent set out in the HAP
contracts. The Court determined exact damages in the second phase
of the litigation
The Defendants informed the Plaintiffs that they plan to argue that
the Defendants' costs incurred in providing those additional
services to Section 8 tenants should be considered in any damages
calculation on the class claims. They have clarified that they plan
to argue that only the value of and costs incurred in providing
renters insurance and media packages to Section 8 tenants should be
considered in any damages calculation on the class claims in this
litigation. The Plaintiffs dispute that there is any validity to
the Defendants' argument that they are entitled to an offset for
the value of any service and/or the cost of providing any service
to Section 8 tenants.
The Parties wish to avoid costly discovery and unnecessary
litigation on the Plaintiffs' class claims for breach of contract
and violation of California's Unfair Competition Law by narrowing
the scope of the issues. Therefore, they stipulate and jointly
request the Court to order that:
1. The Defendants reserve their right to argue that the value
of the renters' insurance and media packages received by class
tenants and the cost to the Defendants of providing renters'
insurance and media packages to the class members should be
considered in the calculation of any damages or restitution awarded
to the class. As to all other services, including RentPlus,
security alarms and services, in-unit washers and dryers, uncovered
parking, covered parking, parking garages, pet-related services,
month-to-month leasing, and storage, the Defendants waive any
argument that the costs of providing the services or the value of
those services are relevant to the calculation of damages or
restitution.
2. The Defendants' arguments concerning the value of renters'
insurance and media packages and the cost of providing renters
insurance and media packages to Section 8 tenants are limited to
the calculation of damages or restitution on the Plaintiffs'
certified class claims. Any costs that the Defendants incurred to
provide additional services are not relevant to the Plaintiffs'
claim brought under the False Claims Act.
Judge Mueller so ordered.
A full-text copy of the Court's May 17, 2023 Order is available at
https://rb.gy/j0hcd from Leagle.com.
Laura L. Ho -- HoLHO@GBDHLEGAL.COM -- Anne Bellows --
abellows@gbdhlegal.com -- Stephanie Tilden -- stilden@gbdhlegal.com
-- GOLDSTEIN, BORGEN, DARDARIAN & HO, Oakland, CA.
Andrew Wolff -- info@awolfflaw.com -- LAW OFFICES OF ANDREW WOLFF,
PC, Oakland, CA.
Jesse Newmark -- jessenewmark@centrolegal.org -- CENTRO LEGAL DE LA
RAZA, Oakland, CA.
Jocelyn Larkin -- impactfund@impactfund.org -- Lindsay Nako, THE
IMPACT FUND, Berkeley, CA, Attorneys for the Plaintiffs and
Relators and the Certified Classes.
LEWIS BRISBOIS BISGAARD & SMITH LLP Ryan Matthews --
Ryan.Matthews@lewisbrisbois.com -- Attorneys for the Defendants.
WASHINGTON: Guerin's Summary Judgment Bid in Fowler v. DRS Granted
------------------------------------------------------------------
In the case, MICKEY FOWLER, et al., Plaintiffs v. TRACY GUERIN,
Director of the Washington State Department of Retirement Systems,
Defendant, Case No. 3:15-cv-05367-BHS (W.D. Wash.), Judge Benjamin
H. Settle of the U.S. District Court for the Western District of
Washington, Tacoma, grants the Director's motion for summary
judgment on her limitations period defense and dismisses the matter
with prejudice.
Fowler represents a class of Washington teachers who transferred
from one state retirement plan, Teachers Retirement System (TRS)
Plan 2, to a later plan, TRS Plan 3, prior to Jan. 20, 2002. He
asserts that the Department of Retirement Systems (DRS) failed to
properly account for the daily interest he had earned on his Plan 2
retirement funds when he transferred those funds to Plan 3. He sued
in June 2015, asserting a single 42 U.S.C. Section 1983 takings
claim for violation of his Fifth Amendment rights. The Director
argues that Fowler's claim is time-barred as a matter of law.
The dispute involves a class of Washington State teachers asserting
that the DRS unlawfully failed to pay them daily interest on their
retirement account balances when they transferred from TRS Plan 22
to TRS Plan 3, prior to Jan. 20, 2002. Fowler contends that most
class members transferred in 1996-1997.
Fowler's predecessor, Jeffrey Probst, sued in Thurston County
Superior Court in 2005, asserting that the DRS violated Washington
statutes and its fiduciary duties when it failed to properly
account for the interest accrued on balances transferred into the
new TRS Plan 3. The Superior Court dismissed the case because the
DRS had authority to calculate interest as it did, and did not act
in an arbitrary and capricious manner -- Probst v. Wash. State
Dep't of Ret. Sys., 167 Wn.App. 180, 185 (2012) ("Probst I").
Fowler appealed, and Division Two of the Washington Court of
Appeals reversed, holding that the DRS's rule failed to
appropriately consider whether to account for daily interest, and
its adoption of the rule was therefore arbitrary and capricious. It
declined to reach Fowler's "constitutional takings argument,"
having resolved the case on other grounds.
The Superior Court in turn remanded the action to the DRS for
additional rulemaking under the Administrative Procedures Act
(APA), consistent with the Court of Appeals' Probst I opinion.
Fowler read Probst I as requiring the Superior Court to itself
determine the interest owed and asked the Court of Appeals to
recall its mandate. Fowler also appealed the Superior Court's
order.
The Court of Appeals declined to recall its mandate, and its
unpublished opinion addressed the "only issue properly before it":
whether the Superior Court had abused its discretion by remanding
the action to the DRS under the APA and Probst I -- Probst v. Wash.
State Dep't of Ret. Sys., 185 Wn.App. 1015, 2014 WL 7462567, at *1,
2 (Dec. 30, 2014) ("Probst II"). Division II concluded that it had
not. It explained that Fowler misconstrued Probst I, that the
Superior Court correctly ruled that the APA applied, and that it
properly remanded the action to the DRS. It affirmed the Superior
Court's remand.
Six months later, on June 1, 2015, Fowler sued DRS Director Guerin
in this Court, expressly asserting a 42 U.S.C. Section 1983 takings
claim for violation of the Fifth Amendment, as applied to the
states through the Fourteenth Amendment. Director Guerin moved for
summary judgment on Fowler's claim, arguing it was (1) barred by
the Eleventh Amendment; (2) barred by the Rooker-Feldman doctrine;
(3) barred by issue or claim preclusion; (4) not ripe for review;
and (5) meritless as a takings claim because the teachers were not
entitled to daily interest.
This Court agreed that the claim was not yet ripe under Williamson
County Regional Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), because the administrative remedy -- the
DRS rulemaking -- was, at that time, ongoing. It, like the parties,
viewed the claim as a regulatory takings claim. It dismissed
Fowler's claim without prejudice as prudentially unripe.
Fowler appealed and, just before oral argument, the DRS' new, 2018
rule went into effect. The new, retroactive rule confirmed the
prior, non-daily interest calculation: "Your individual account
does not 'earn' or accrue interest on a day by day basis."
The Ninth Circuit reversed this Court's order dismissing the case
on ripeness grounds, concluding that the DRS' withholding of the
interest accrued on the Teachers' accounts constitutes a per se
taking to which Williamson County's prudential ripeness test does
not apply. The Ninth Circuit remanded the case to reconsider class
certification, and to permit discovery, if necessary, before
deciding if the class should be given injunctive relief.
On remand, this Court certified the following plaintiff class: All
active and retired TRS members who: (1) were previously members of
TRS Plan 2 and (2) transferred from TRS Plan 2 to TRS Plan 3 prior
to Jan. 20, 2002.
On Fowler's motion, the Court refined this definition in January
2021, and the class consists of "all teachers who transferred from
TRS Plan 2 to TRS Plan 3 prior to Jan. 20, 2002."
Meanwhile, the Director sought and obtained (over Fowler's
objection) leave to amend her Answer to assert that, if the
teachers' per se takings claim was ripe, it was barred by the
applicable three-year limitations period. The Court rejected
Fowler's claims.
The Director moved for summary judgment on her limitations period
affirmative defense. Fowler also sought summary judgment on the
Director's limitations period affirmative defense.
The Court concluded that Fowler had established a takings claim,
but that his only viable theory to avoid the conclusion that his
claim was time-barred was the application of equitable tolling.
Because the elements of equitable tolling under Washington law were
not clear, the Court informed the parties of its intent to certify
a question to the Washington Supreme Court.
With the parties' input, it certified the following question to
that court: Under Washington law, what are the necessary and
sufficient conditions -- the minimum predicates -- a plaintiff in a
civil action (other than a personal restraint or habeas corpus
petition) must establish to equitably toll the limitations period
otherwise applicable to their claim?
This Court stayed the case pending the answer.
The Washington Supreme Court's published opinion reaffirmed that a
plaintiff seeking to equitably toll a limitations period must
establish four elements: A plaintiff seeking equitable tolling of
the statute of limitations in a civil suit must demonstrate that
such extraordinary relief is warranted because (1) the plaintiff
has exercised diligence, (2) the defendant's bad faith, false
assurances, or deception interfered with the plaintiff's timely
filing, (3) tolling is consistent with (a) the purpose of the
underlying statute and (b) the purpose of the statute of
limitations, and (4) justice requires tolling the statute of
limitations.
The parties have submitted supplemental briefing on the impact of
this holding on the pending motions. Both address each of the four
required elements, but the Court is primarily concerned with the
second element. If Fowler could establish this element, the Court
would have little trouble concluding that he was otherwise
diligent, that equitable tolling is consistent with the purposes of
the Fifth Amendment and of the limitations period, and that justice
requires tolling.
But after reviewing the briefing, the record, and the prior
opinions, Judge Settle concludes that Fowler cannot establish that
the Director's bad faith, false assurances, or deception interfered
with his timely filing this lawsuit. Equitable tolling does not
apply, and Fowler's Section 1983 takings claim in this Court is
time-barred as a matter of law.
Judge Settle explains that because the alleged taking occurred, and
Fowler's Section 1983 claim accrued, far more than three years
before he brought the suit, his claim is facially time-barred.
Judge Settle is aware that the case has been ongoing for eight
years, has been to the Ninth Circuit and the Washington Supreme
Court, and that the motions decided have been pending for six
months. The dispute itself is now more than 20 years old, and it
has spent time in five different courts.
Judge Settle recognizes the irony of the determination that the
class takings claim is time-barred; such a determination is usually
made at the front end of litigation. The State settled with the
teachers who transferred funds after January 2020, to preserve its
defense that claims based on earlier transfers were untimely.
Fowler prevailed on the timeliness of his claims in state court,
but his perhaps understandable effort to assert his takings claim
here is time-barred.
Hence, Judge Settle grants the Director's motion for summary
judgment on her limitations period defense and dismisses the matter
with prejudice. He denies the motion to vacate the Court's prior
rulings. He also denies Fowler's motion for summary judgment on the
Director's limitations period affirmative defense.
The Clerk will enter a judgment and close the case.
A full-text copy of the Court's May 19, 2023 Order is available at
https://tinyurl.com/42pxe2rr from Leagle.com.
WEBSTER BANK: Customers File Data Breach Class Action
-----------------------------------------------------
Elaine Briseno, writing for Law360, reports that a pair of Webster
Bank customers filed a proposed class action on May 25 in
Connecticut federal court following a two-month-long data breach,
alleging the company's subpar security measures allowed
cybercriminals to pilfer their protected information. [GN]
WELLPATH LLC: Fails to Pay Proper Wages, El-Amin Alleges
--------------------------------------------------------
WADEEDAH EL-AMIN, individually and on behalf of all others
similarly situated, Plaintiff v. WELLPATH LLC f/k/a/ CORRECT CARE
SOLUTIONS LLC, Defendant, Case No. 1:23-cv-00566-UNA (D. Del., May
24, 2023) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff El-Amin was employed by the Defendants as nurse.
WELLPATH LLC f/k/a/ CORRECT CARE SOLUTIONS LLC is a healthcare
company based in Nashville, Tennessee, U.S. and one of the largest
for-profit healthcare providers for prisoners. [BN]
The Plaintiff is represented by:
Sue L. Robinson, Esq.
Brain E. Farnan, Esq.
Michael J. Farnan, Esq.
FARNAN LLP
919 N. Market St., 12th Floor
Wilmington, DE 19801
Telephone: (302) 777-0300
Facsimile: (302) 777-0301
Email: srobinson@farnanlaw.com
bfarnan@farnanlaw.com
mfarnan@farnanlaw.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
Email: 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
Email: rburch@brucknerburch.com
- and -
William C. (Clif) Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER PLLC
101 N. Shoreline Blvd., Suite 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
Email: clif@a2xlaw.com
austin@a2xlaw.com
WELLS FARGO: $300MM Class Settlement to Be Heard on Aug. 17
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued a statement regarding the
Wells Fargo 2018 Securities Litigation:
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
PURPLE MOUNTAIN TRUST, Individually
and on Behalf of All Others Similarly Situated,
Plaintiff,
vs.
WELLS FARGO & COMPANY, et al.,
Defendants.
Case No. 3:18-cv-03948-JD
CLASS ACTION
SUMMARY NOTICE
IF YOU PURCHASED OR ACQUIRED WELLS FARGO & COMPANY ("WELLS FARGO")
COMMON STOCK FROM NOVEMBER 3, 2016 THROUGH AUGUST 3, 2017,
INCLUSIVE (THE "CLASS PERIOD"), YOU COULD RECEIVE A PAYMENT FROM A
CLASS ACTION SETTLEMENT. CERTAIN PERSONS ARE EXCLUDED FROM THE
DEFINITION OF THE CLASS AS SET FORTH IN THE STIPULATION OF
SETTLEMENT.
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Northern District of California, that in the
above-captioned litigation (the "Action"), a Settlement has been
proposed for $300,000,000.00 in cash. A hearing will be held on
August 17, 2023, at 10:00 a.m., before the Honorable James Donato,
at the United States District Court, Northern District of
California, Phillip Burton Federal Building & United States
Courthouse, Courtroom 11 – 19th Floor, 450 Golden Gate Avenue,
San Francisco, CA 94102, for the purpose of determining whether:
(i) the proposed Settlement should be approved by the Court as
fair, reasonable and adequate; (ii) the proposed Plan of Allocation
for distribution of the Settlement proceeds is fair, reasonable and
adequate and therefore should be approved; and (iii) the
application of Lead Counsel for the payment of attorneys' fees and
expenses from the Settlement Fund, including interest earned
thereon, should be granted.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY
BE AFFECTED BY THE SETTLEMENT OF THE LITIGATION, AND YOU MAY BE
ENTITLED TO SHARE IN THE SETTLEMENT FUND. You may obtain a copy of
the Stipulation of Settlement, the Notice of Proposed Settlement of
Class Action (the "Notice"), and the Proof of Claim Form at
www.WellsFargo2018SecuritiesLitigation.com or by contacting the
Claims Administrator: Wells Fargo 2018 Securities Litigation, c/o
Gilardi & Co. LLC, P.O. Box 8040, San Rafael, CA 94912-8040;
1-888-416-6687.
If you are a Class Member, to be eligible to share in the
distribution of the Net Settlement Fund, you must submit a Proof of
Claim by mail postmarked no later than August 21, 2023, or submit
it online by that date. If you are a Class Member and do not submit
a valid Proof of Claim, you will not be eligible to share in the
distribution of the Net Settlement Fund, but you will still be
bound by any judgment entered by the Court in this Action
(including the releases provided for therein).
To exclude yourself from the Class, you must have mailed a written
request for exclusion so that it was received by January 26, 2023,
in accordance with the instructions set forth in the notice of
class certification disseminated pursuant to Court order. If you
are a Class Member and have not excluded yourself from the Class,
you will be bound by any judgment entered by the Court in this
Action (including the releases provided for therein) whether or not
you submit a Proof of Claim. If you submitted a valid request for
exclusion, you will have no right to recover money pursuant to the
Settlement.
Any objection to the proposed Settlement, the Plan of Allocation,
or the fee and expense application must be filed with the Court no
later than July 27, 2023.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE. If you have any
questions about the Settlement, or your eligibility to participate
in the Settlement, you may contact Lead Counsel at the following
address or by calling 1-800-449-4900:
ROBBINS GELLER RUDMAN & DOWD LLP
SCOTT H. SAHAM, ESQ.
655 West Broadway, Suite 1900
San Diego, CA 92101
settlementinfo@rgrdlaw.com
DATED: May 1, 2023
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
WISCONSIN: Bid for Class Certification in Smith v. Carr Denied
--------------------------------------------------------------
In the case, JAMES ALFRED SMITH, JR., JONATHAN WINN, KAMAAL ALLEN,
MARTINEZ M. EDWARDS, DEVONTE MITCHELL, ROMELE WALLACE, and EQUANTEZ
SLOAN, Plaintiffs v. SECRETARY KEVIN A. CARR, Defendant, Case No.
23-cv-261-wmc (W.D. Wis.), Judge James D. Peterson of the U.S.
District Court for the Western District of Wisconsin denies the
Plaintiffs' motions for certification of a class and for
appointment of class counsel.
The pro se Plaintiffs contend that their equal protection and due
process rights were violated in extended supervision revocation
proceedings. They move for certification of a class and request the
appointment of class counsel. Smith, who authored the complaint and
motion, is incarcerated at the Milwaukee Secure Detention Facility.
Publicly available Wisconsin Department of Corrections (DOC)
records show that the remaining Plaintiffs, except for Winn, are
also incarcerated there.
Judge Peterson opines that the Plaintiffs' filings are hard to
follow, but he understands them to be alleging that their
revocations violate due process because they are based on
inaccurate or insufficient information, and equal protection
because of the unreasonable terms of supervision generally imposed
on minority supervisees. He says he must deny the motion for class
certification because the Plaintiffs are not represented by a
lawyer.
The Plaintiffs attempt to remedy this problem by asking the court
to appoint counsel for the class. The court should seek counsel to
represent a plaintiff if: (1) he has made reasonable attempts to
secure counsel; and (2) the factual and legal difficulty of the
case exceeds the particular plaintiff's capacity as a layperson to
coherently present it.
To satisfy the Court that they have made reasonable attempts to do
so, Judge Peterson says the Plaintiffs must contact several lawyers
requesting representation and submit letters from at least three
attorneys declining to represent them or an affidavit signed under
penalty of perjury under 28 U.S.C. Section 1746 that describes who
they contacted, when they contacted them, and any response they
received. The Plaintiffs submitted no evidence that they met the
first requirement, so he must deny this motion on this ground.
Finally, Judge Peterson finds that none of the Plaintiffs have paid
the $402 filing fee or filed a motion to proceed in forma pauperis
and supporting financial information. Under the Prison Litigation
Reform Act, a prisoner plaintiff proceeding in forma pauperis is
required to pay the statutory filing fee of $350 for any civil
action or he will be dismissed from the case.
Smith faces an additional problem: he has filed at least three
previous civil actions while imprisoned that were dismissed because
they were frivolous or because they failed to state a claim.
Consequently, Smith may not proceed with a civil action in the
Court without paying the full $402 filing fee, unless he can show
that he is subject to imminent danger of serious physical injury,
which he is not alleging in the lawsuit.
Once the Plaintiffs have complied with the filing fee requirement,
Judge Peterson will screen the complaint as required under 28
U.S.C. Sections 1915, 1915A. Although he has not yet considered the
merits of the Plaintiffs' claims, he notes for their benefit that
as a general matter if they are seeking to challenge ongoing
revocation proceedings, the federal court cannot interfere with
those proceedings under Younger v. Harris, 401 U.S. 37 (1971),
absent extraordinary circumstances. Nor can the Plaintiffs pursue
damages claims in this type of civil lawsuit if a judgment in their
favor would "necessarily imply the invalidity" of a prior
conviction, sentence, or revocation.
For these reasons, Judge Peterson denies the Plaintiffs' motion for
class certification and for class counsel. Smith may not proceed as
a plaintiff in the lawsuit unless he pays the full $402 filing fee
by June 13, 2023. The remaining Plaintiffs will be dismissed unless
they either pay the full filing fee or file a motion to proceed in
forma pauperis by June 13, 2023.
A full-text copy of the Court's May 23, 2023 Opinion & Order is
available at https://tinyurl.com/mtyxr6ss from Leagle.com.
*********
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