/raid1/www/Hosts/bankrupt/CAR_Public/230721.mbx
C L A S S A C T I O N R E P O R T E R
Friday, July 21, 2023, Vol. 25, No. 146
Headlines
3M COMPANY: Villegas Sues Over Exposure to Toxic Chemicals
3M COMPANY: Vogler Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Walker Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Wills Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Wilson Sues Over Exposure to Toxic Chemicals & Foams
AMERICAN BEHAVIORAL: White Suit Seeks Unpaid Overtime Wages in Fla.
ANCESTRY.COM LLC: Filing for Class Cert. Bid in Wilson Due Oct. 27
ANTHONY WILLS: Dalcollo Bid to Certify Class Denied as Moot
AUTONEUM NORTH: Underpays Manufacturing Workers, Lemke Says
BANK OF AMERICA: Class Cert Oral Argument Adjourned to July 20
BAYERISCHE MOTOREN: Court Narrows Claims in Ballou Class Complaint
BBCK ONE: Helfant Sues for Violations of Delaware Corporate Law
BLACK CEO: Eggnatz Must File Renewed Bid for Class Cert, Court Says
BLUEGREEN VACATIONS: Allowed Leave to File Class Cert Suggestions
BLUEGREEN VACATIONS: Bid to Strike Expert Opinions Mooted in Laskey
BOSTON SCIENTIFIC: Union Asset Seeks Leave to File Docs Under Seal
BOYNE USA: Court Grants Bid to Certify Class in Anderson Suit
CAESARS ENTERTAINMENT: Mendoza Balks at Disclosed Subscribers' Info
CAROTHERS HOLDING: Simpson Seeks Conditional Status of Classes
CENTRAL STEEL: Bocardo Sues Over Failure to Pay Overtime Wages
CHICAGO, IL: Faces Class Suit Over City's Car Stickers
CHOICE RECOVERY: Gavin Case Stayed Pending Ruling in Coffey Suit
CROSS-LINES RETIREMENT: Bid for Reconsideration Tossed as Moot
DAVID YURMAN: Martin Sues Over Blind-Inaccessible Website
DCD AUTOMOTIVE: Court Allows Arbitration in Fairfield Class Suit
DESLAURIERS INC: Massachusetts Bay Files Suit in N.D. Illinois
DEVON ENERGY: Bid to Permanently Seal Subpoenas OK'd
E.I. DU PONT DE NEMOURS: Camden Files Suit in D. South Carolina
ECKERD COLLEGE: Bishop Files ADA Suit in S.D. New York
EDWARD JONES: Bid to Quash Subpoena Granted in Anderson Suit
ELEKTA INC: Filing for Class Certification Bid Due April 4, 2024
ELITE ERA LLC: Toro Files ADA Suit in S.D. New York
ELITE LABOR: N.D. California Narrows Claims in Gomez Labor Suit
EQT CORP: Court Denies Asbury Renewed Bid for Class Cert.
EVOLUTION POWER: Has Made Unsolicited Calls, Lynch Alleges
EYEMED VISION: Filing for Class Certification Bid Due March 1, 2024
FARMERS INSURANCE: Or. App. Flips $26-Mil. Penalty in Bellshaw Suit
FCA US: Court Strikes Class Cert Replies from Records in Bledsoe
FILOSADELFIA LLC: McCain Files Suit Over Alleged Tip Skimming
FINGER MANAGEMENT: Fails to Pay Proper Wages, Martinez Alleges
FRUIT OF THE EARTH: Kenney Appeals Claims Dismissal to 9th Cir.
HAIR CLUB: Zapata Labor Code Suit Removed to E.D. California
HEALTH CARE SERVICE: Court Dismisses Smith Suit Without Prejudice
JCK AMERICAN: Khokhar Sues Over Truck Drivers' Unpaid Wages
KIMBERLY CLARK CORP: Whiteside Appeals Case Dismissal Ruling
LMND MEDICAL: Marden Sues Over Unlawful Disclosure of Personal Info
LUCKY NAIL: Files Fraudulent Tax Returns, Zhuang Suit Alleges
MAVERICK TRANSPORTATION: Court Refuses to Dismiss Lewis BIPA Suit
MDL 3075: Court Transfers 7 Suits to Food Photos Copyright Row
MERRILL LYNCH: Court Won't Reconsider Exclusion of Officer Opinion
NASSAU COUNTY, NY: Madson Sues Over Improper Block Fee Collection
NEW HORIZONS: Fails to Safeguard Patients' Info, Murray Claims
NHS MANAGEMENT: Court Directs Griggs to Amend Complaint by July 21
NISSAN NORTH: Hagenbaugh's Bid for Entry of Default Judgment Denied
OREGON: Thielman Appeals Case Dismissal to 9th Cir.
PROGRESS SOFTWARE: Bailey Sues Over Failure to Protect SPI
PROGRESS SOFTWARE: Fails to Prevent Data Breach, Meyer Alleges
RANCHO EL TABACO: Torres Sues Over Unpaid Wages for Helpers
RELIANT REHABILITATION: Court Dismisses Cox Suit
ROSS STORES: Faces Spady Suit Over Fair Workweek Law Violations
SALSAS OF TITUSVILLE: Paz Loses Conditional Status Bid
SAMSUNG ELECTRONICS: Court Stays Haythe Suit Pending Arbitration
SEED INVEST: Mueller Sues Over Deceptive Stock Sale Solicitations
SLEEPY'S LLC: Bid for Reconsideration Denied in Gundell Suit
TEKSYSTEMS INC: Filing for Class Cert. Bid Due Oct. 6, 2024
TEXAS HEALTH: More Time to File Response OK'd in Langham
TMX FINANCE: Carrington Seeks More Time to File Class Certification
TRANSPERFECT GLOBAL: Court Junks Bid for Leave to File Sur-Reply
TRANSWORLD SYSTEMS: Class Cert. Bid in Brown Suit Due Feb. 27, 2024
UNITED SERVICES: Coleman Optional Reply Due July 28
WESTMONT COLLEGE: Bishop Files ADA Suit in S.D. New York
WHIRLPOOL CORPORATION: Court Narrows Claims in Tapply Suit
WINGS OVER HAPPY: $106K Settlement in Carts Suit Has Court Approval
XPO LOGISTICS: Filing for Class Cert. Bid in Quinones Due Dec. 15
YOUTUBE LLC: Court Denies Bid to Dismiss Colombo BIPA Complaint
ZILLOW GROUP: Judgment and Attys.' Fees in Underwriters Suit Upheld
Asbestos Litigation
ASBESTOS UPDATE: J&J to Pay Cancer Patient $18.8MM in Exposure Suit
*********
3M COMPANY: Villegas Sues Over Exposure to Toxic Chemicals
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Jesus Villegas, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTSLP, 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-02770-RMG (D.S.C., June 16, 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 during the Plaintiff's working career in the
military and/or as a civilian and was hypothyroidism 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Vogler Sues Over Exposure to Toxic Chemicals & Foams
----------------------------------------------------------------
Randall L. Vogler, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA,
INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM,
INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTSLP, 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-02683-RMG (D.S.C., June 15,
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 testicular cancer
(Germ Cell tumor) 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Walker Sues Over Exposure to Toxic Chemicals & Foams
----------------------------------------------------------------
Terry L. Walker, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTSLP, 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-02684-RMG (D.S.C., June 15, 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 prostate cancer
as a result of exposure to the Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Wills Sues Over Exposure to Toxic Chemicals & Foams
---------------------------------------------------------------
Patrick David Wills, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining andManufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARKEMA, INC.; CARRIER GLOBAL
CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CORTEVA, INC.;
DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT
INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE PLC; NATION FORD CHEMICAL COMPANY; THE CHEMOURS COMPANY; TYCO
FIRE PRODUCTSLP, as successor-in-interest to The Ansul Company;
UNITED TECHNOLOGIES CORPORATION; Case No. 2:23-cv-02779-RMG
(D.S.C., June 16, 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 during the Plaintiff's working career in the
military and/or as a civilian and was diagnosed with hypothyroidism
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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Wilson Sues Over Exposure to Toxic Chemicals & Foams
----------------------------------------------------------------
Ronald B. Wilson, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTSLP, 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-02686-RMG (D.S.C., June 15, 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 kidney 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
AMERICAN BEHAVIORAL: White Suit Seeks Unpaid Overtime Wages in Fla.
-------------------------------------------------------------------
KIANA WHITE and KEANI EPP, individually and on behalf of all others
similarly situated, Plaintiffs v. AMERICAN BEHAVIORAL RESEARCH
INSTITUTE, LLC D/B/A RELAXIUM, Defendant, Case No. 9:23-cv-81000
(S.D. Fla., July 5, 2023) is a class action against the Defendant
for failure to pay overtime wages in violation of the Fair Labor
Standards Act.
Plaintiff White worked exclusively for Relaxium as an hourly
customer service provider, and later a team lead and shift
supervisor, from approximately December 2021 through May 2023.
Plaintiff Epp worked exclusively for Relaxium as an hourly customer
service provider, and later a quality analyst, from approximately
July 2021 through February 2023.
American Behavioral Research Institute, LLC, doing business as
Relaxium, is a limited liability company doing business in Florida.
[BN]
The Plaintiffs are represented by:
C. Ryan Morgan, Esq.
MORGAN & MORGAN, P.A.
N. Orange Ave., 16th Floor
P.O. Box 4979
Orlando, FL 32802
Telephone: (407) 420-1414
Facsimile: (407) 867-4791
E-mail: rmorgan@forthepeople.com
- and -
Paul M. Botros, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Telephone: (954) 327-5352
Facsimile: (954) 327-3017
E-mail: pbotros@forthepeople.com
- and -
Melissa C. Hasso, Esq.
SHERINIAN & HASSO LAW FIRM
111 E. Grand Ave., Ste. 212
Des Moines, IA 50309
Telephone: (515) 224-2079
Facsimile: (515) 224-2321
E-mail: Melissah_sherinianlaw@msn.com
- and -
Lauren Braddy, Esq.
Casey L. Kellum, Esq.
ANDERSON ALEXANDER, PLLC
101 N. Shoreline Blvd., Ste. 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: lauren@a2xlaw.com
casey@a2xlaw.com
ANCESTRY.COM LLC: Filing for Class Cert. Bid in Wilson Due Oct. 27
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In the class action lawsuit captioned as Wilson v. Ancestry.com
LLC, et al., Case No. 2:22-cv-00861 (S.D. Ohio, Filed Feb. 21,
2022), the Hon. Judge Kimberly A. Jolson entered an order granting
joint motion to modify scheduling order as follows:
-- Close of Fact Discovery: Sept. 29, 2023
-- Class Certification Motion and Oct. 27, 2023
Class Certification Expert
Disclosures due by:
Ancestry.com LLC is an American genealogy company based in Lehi,
Utah. The company operates a network of genealogical, historical
records, and related genetic genealogy websites.[CC]
ANTHONY WILLS: Dalcollo Bid to Certify Class Denied as Moot
------------------------------------------------------------
In the class action lawsuit captioned as JUSTIN DALCOLLO, v.
ANTHONY WILLS, et al., Case No. 3:23-cv-00828-SPM (S.D. Ill.), the
Hon. Judge Stephen P. McGlynn entered an order denying the motion
to alter or amend judgment pursuant to Federal Rule of Civil
Procedure 59(e
-- The motion to certify class, motion for leave to file second
amended complaint, and motion to admit additional exhibits are
denied as moot.
-- The Court finds that the newly discovered evidence referenced
by
the Plaintiff is not grounds for altering or amending the
judgment.
-- The motion to certify class, the motion for leave to file
second
amended complaint, and the motion to admit additional exhibits
are denied as moot.
The Plaintiff, an inmate of the Illinois Department of Corrections,
initiated this civil action by filing a complaint on March 9, 2023.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/447gHOV at no extra charge.[CC]
AUTONEUM NORTH: Underpays Manufacturing Workers, Lemke Says
-----------------------------------------------------------
Christine Lemke, individually and on behalf of all others similarly
situated, Plaintiff v. Autoneum North America, Inc., Defendant,
Case No. 3:23-cv-01308-JJH (N.D. Ohio, June 30, 2023) arises from
the Defendant's practices and policies of not paying its non-exempt
employees, including Plaintiff and other similarly-situated
employees, for all hours worked, including overtime compensation,
in violation of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a manufacturing
employee from approximately August 2016 through March 27, 2022. She
asserts that Defendant classified her and other similarly-situated
employees as non-exempt from the FLSA's compensation requirements.
Autoneum North America, Inc. produces automobile materials,
components, and systems for noise and heat protection and operates
manufacturing facilities throughout the United States.[BN]
The Plaintiff is represented by:
Alanna Klein Fischer, Esq.
Anthony J. Lazzaro, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Bldg., Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
E-mail: alanna@lazzarolawfirm.com
anthony@lazzarolawfirm.com
BANK OF AMERICA: Class Cert Oral Argument Adjourned to July 20
--------------------------------------------------------------
In the class action lawsuit captioned as THE CITY OF PHILADELPHIA
et al., v. BANK OF AMERICA CORPORATION et al., Case No.
1:19-cv-01608-JMF (S.D.N.Y.), the Hon. Judge Jesse M. Furman
entered an order that oral argument in this case, previously
scheduled for July 6, 2023, is adjourned to July 20, 2023.
Oral argument will still be held in person in Courtroom 1105 of the
Thurgood Marshall Courthouse, 40 Centre Street, New York, New York.
If any party has an unmovable conflict with the new date and time,
the parties should immediately confer and file a joint letter to
that effect, proposing other dates and times during the weeks of
July 17th and July 24th that would work for all parties.
Bank of America is an American multinational investment bank and
financial services holding company.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/46BuE9n at no extra charge.[CC]
BAYERISCHE MOTOREN: Court Narrows Claims in Ballou Class Complaint
------------------------------------------------------------------
In the case, SUSAN BALLOU, individually and on behalf of all others
similarly situated, Plaintiff(s) v. BAYERISCHE MOTOREN WERKE
AKTIENGESELLSCHAFT and BMW OF NORTH AMERICA, LLC, Defendants, Civil
Action No. 18-11765 (D.N.J.), Judge Claire C. Cecchi of the U.S.
District Court for the District of New Jersey grants in part and
denies in part BMW of North America, LLC's motion to dismiss the
Plaintiff's putative class-action complaint.
The matter comes before the Court on BMW NA's motion to dismiss
Ballou's putative class-action complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). The Plaintiff opposed the Defendant's
motion and the Defendant replied in support of its motion. Judge
Cecchi decides the matter without oral argument pursuant to Federal
Rule of Civil Procedure 78(b).
The Plaintiff brings the putative class action on behalf of
purchasers of certain MINI Cooper vehicles equipped with specific
engines that are purportedly predisposed to premature chain
assembly system failure. The Class Vehicles include, but are not
limited to, MINI Cooper models R55, R56, R57, R58, and R59
utilizing the N16 or N18 engine, model years 2011 through (and
including) 2015, sold and/or leased in the United States.
The Plaintiff alleges that the Chain Defect results from
manufacturing, material, and/or workmanship defects. According to
her, primary chain assembly failure presents a significant safety
hazard to a vehicle's driver and passengers, and to other
motorists, due to the potential for unexpected and unwarned loss of
engine power and power-assisted steering, limited ability to
accelerate or maintain vehicle speed, reduced braking capabilities,
and the possibility of sudden and catastrophic engine
self-destruction. She claims that this defect was exacerbated by
the Defendants' failure to include proper information about engine
timing chain assembly inspection, maintenance, and/or service
intervals in the Owner's Manual and Service and Warranty pamphlet.
The Plaintiff contends that the Defendants knew or should have
known about the Chain Defect when selling the Class Vehicles, and
moreover, that the Defendants concealed this risk from the
Plaintiff and failed to take appropriate remedial action while she
owned and operated her Class Vehicle. She contends that Class
Engine failures resulting from the Chain Defect can cost Class
Vehicle owners between $3,000 and $15,000 and have resulted in
diminution in Class Vehicle resale value.
The Plaintiff, a Florida resident, purchased a new 2012 MINI
Clubman S, equipped with a Class Engine, from an authorized Florida
dealer in March 2012. The Class Vehicle purchase came with a
limited express warranty covering a period of 48 months or 50,000
miles, whichever comes first. The Plaintiff purportedly experienced
engine primary chain assembly failure in February 2018 at 46,062
miles. She avers that while the failure occurred outside the
warranty period, her Class Vehicle exhibited unmistakable symptoms
(known only by the Defendants) of degradation and impending
premature failure within the express warranty period.
The Plaintiff alleges that she incurred approximately $3,000 in
expenses replacing the primary timing chain in her Class Vehicle
after it purportedly failed prematurely, which the Defendants
refused to reimburse. She maintains that she would not have
purchased her Class Vehicle had the Defendants disclosed that Class
Vehicles were prone to premature failure and/or the respective
safety risks.
The Plaintiff initiated the action on July 18, 2018, on behalf of a
nationwide class and Florida subclass, contending that the
Defendants breached express and implied warranties and defrauded
consumers by failing to disclose the Chain Defect. The complaint
specifically alleges breach of express warranty (Count One); breach
of implied warranty of merchantability (Count Two); violation of
the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2310 ("MMWA")
(Count Three); violation of the Florida Deceptive and Unfair Trade
Practices Act, Fla. Stat. Sections 501.201 et seq. ("FDUTPA")
(Count Four); negligent misrepresentation (Count Five); and unjust
enrichment (Count Six).
The Defendant filed the instant motion to dismiss the Plaintiff's
putative class-action complaint pursuant to Rule 12(b)(6). The
Plaintiff filed an opposition to which the Defendant replied.
The Defendant moves to dismiss the Plaintiff's express warranty
claims on the ground that her alleged chain failure occurred after
the agreed upon warranty period. The Plaintiff argues that the
Chain Defect manifested through performance degradation during the
warranty period and, regardless, that the claims survive due to the
alleged substantive and procedural unconscionability of the express
warranty.
Judge Cecchi opines that the Plaintiff has adequately pleaded that
Defendants knew about the Chain Defect as early as 2011,
misleadingly concealed it from her at or before the time of sale
and manipulated the warranty terms to avoid paying for resultant
repairs. Further, the Plaintiff has sufficiently alleged procedural
unconscionability stemming from the Defendants' exclusive knowledge
of the defect, her significantly weaker bargaining position, her
lack of meaningful choice in setting warranty terms, and the
purported unfair and unreasonably favorable warranty terms for the
Defendants.
The Defendant next argues that the Plaintiff's implied warranty
claim fails because the Class Vehicles' express warranty limited
any implied warranties to the same duration and the Plaintiff did
not discover the defect until well after that warranty period had
expired. The Plaintiff contends that her implied warranty claim
should survive dismissal because the Chain Defect existed at the
time of sale and the vehicle exhibited symptoms of impending
failure during the express warranty period.
Judge Cecchi holds that whether the Chain Defect and its potential
to cause premature failure in Class Vehicles made those vehicles
unreliable and unsafe is a question of fact to be resolved at
summary judgment or by a jury. Accordingly, she denies the
Defendant's motion to dismiss the breach of implied warranty claim
(Count Two).
The Defendant then argues that because the Plaintiff's state law
warranty claims fail, so too must the MMWA claims. The Plaintiff
agrees that its federal cause of action under the MMWA rises and
falls with its corresponding state-law warranty claims. However,
she asserts that she has stated valid breach of warranty claims,
rending the MMWA claims sufficient to survive the motion to
dismiss.
Judge Cecchi agrees with the Plaintiff. She finds that the MMWA
creates a federal cause of action for state law express and implied
warranty claims. The Plaintiff bases her MMWA claims on the
underlying state law claims for breach of warranty. As this Court
has determined the sufficiency of the Plaintiff's express and
implied warranty claims at the pleading stage, dismissal of the
MMWA claim (Count Three) is not warranted.
The Defendant argues for dismissal of the Plaintiff's FDUTPA claim
as time-barred under Florida's statute of limitations. The
Plaintiff contends that the Defendants' affirmative fraudulent
misrepresentation and active fraud warrant tolling and equitable
estoppel such that the claims are timely.
Judge Cecchi holds that additional and/or clarifying factual
allegations would assist the Court to resolve whether the
Plaintiff's FDUTA claim is permissible under these equitable
principles. Therefore, the Plaintiff's FDUTPA claim (Count Four) is
dismissed without prejudice.
The Defendant asserts that the Plaintiff's negligent
misrepresentation claim is prohibited under Florida's economic-loss
rule. The Plaintiff appears to abandon this claim in her
opposition. Therefore, the Defendant's motion to dismiss the
Plaintiff's negligent misrepresentation claim (Count Five) is
granted.
Lastly, the Defendant argues that the Plaintiff is unable plead
unjust enrichment under Florida law because she has adequate
remedies at law and because it is uncontested that a valid contract
exists between the parties.
BMA NA's arguments are premature and do not warrant dismissal at
this point, Judge Cecchi opines. Despite the purported express
warranty covering the Chain Defect and other causes of action
available, the Plaintiff sufficiently alleges in the alternative
that the Defendants benefited financially from its alleged breach
of express and implied warranties, misrepresentations, and fraud as
to constitute unjust enrichment. Thus, Judge Cecchi refuses to
dismiss the Plaintiff's unjust enrichment claim (Count Six) at this
stage.
For these reasons, Judge Cecchi grants the Defendant's motion to
dismiss as to Counts Four and Five and denies as to Counts One,
Two, Three, and Six. An appropriate Order accompanies her Opinion.
A full-text copy of the Court's June 28, 2023 Opinion is available
at https://tinyurl.com/5xmmwskt from Leagle.com.
BBCK ONE: Helfant Sues for Violations of Delaware Corporate Law
---------------------------------------------------------------
HOWARD HELFANT, on behalf of himself and other similarly situated
members of West Coast Met. IT, LLC Plaintiff v. BBCK ONE HOLDING
CORP., Defendant, Case No. 2023-677 (Del. Ch., June 30, 2023) is a
verified complaint brought by the Plaintiff, pro per, and of other
similarly situated members of West Coast Management II, LLC (WCII)
for declaratory relief against: (1) BBCK One Holding Corp. relating
to its violation of the Delaware General Corporation Law; and (2)
for breaching its fiduciary obligations under WCII's corporate
operating agreement; and (3) BBCK pursuing litigation in an
improper choice of forum in the State of New Jersey that
effectively deprives WCII's stockholders/members of their
substantive rights to assert (a) the State of Delaware as WCII
stockholders/members agreed Choice of Law, (b) the State of
Delaware as WCII stockholders/members agreed Forum Selection venue,
(c) the State of Delaware's protections under its Internal Affairs
Doctrine, (d) the State of Delaware's protections under its
Derivative Claims Act, and (e) BBCK's failure to abide by a clear
and unambiguous Arbitration Agreement in West Coast Management II's
corporate operating agreement.
BBCK, a minority member of West Coast Management II, LLC, filed a
derivative lawsuit against Helfant, and other company members in
New Jersey on May 31, 2022.
The nine-count complaint alleges claims under the New Jersey law
for: Fraud (Count I); Conspiracy to Misappropriate Funds (Count
II); Aiding and Abetting the Commission of Fraud (Count III);
Unjust Enrichment (count IV); Breach of Fiduciary Duty (Count V);
Conversion (Count VI); Fraudulent Conversion (Count VII); Theft
(Count VIII); and Negligence (Count IX).
West Coast's principal business operations is the commercial
managing of cultivation and harvesting of legal cannabis in
California.
The dispute originates when the Company's business went into
collapse after California's Yolo county changed its licensing and
permit approval requirements.
Helfant, an individual, is a personally named defendant in BBCK's
improperly filed lawsuit in New Jersey that disregards Delaware's
intrinsic and statutory jurisdiction. He is also the sole managing
member of WCII and challenges Defendant BBCK's defiance of its
obligation to abide by the Company's Choice of Law Provision
(designating Delaware), its Forum Selection Clause governing
internal membership disputes (designating Delaware law and
compelling arbitration), and its Alternative Dispute Resolution
Clause (designating American Arbitration Association) as expressly
written in West Coast Management II's corporate operating
agreement.
According to the complaint, BBCK's defiance to abide by the
Company's corporate operating agreement violates the Delaware
General Corporate Law statutes. Further, BBCK's failure to abide by
the corporate operating agreement that clearly sets forth a
specified venue for internal LLC membership disputes (i.e. American
Arbitration Association) as well as Delaware law operating
agreement, illicitly seeks to eliminate the substantive rights of
the Company's members, particularly Plaintiff, by bringing a
"derivative" lawsuit in New Jersey against Plaintiff, the Company
and all its other members regarding an "internal affair" membership
controversy; thus denying Delaware its intrinsic rights and
prerogative to govern companies incorporated under it laws, and
those parties that have agreed to its choice of law and
jurisdiction. Essentially, BBCK, has breached well-established
Delaware corporate law, as well as the Company's agreed corporate
Operating Agreement, by unilaterally and surreptitiously bringing a
cause of action in its hometown of New Jersey against Plaintiff,
the Company and all its other members, says the suit.
.[BN]
BLACK CEO: Eggnatz Must File Renewed Bid for Class Cert, Court Says
-------------------------------------------------------------------
In the class action lawsuit captioned as David Ulery Joshua Eggnatz
v. Black CEO, LLC, et al., Case No. 1:22-cv-02709-MDB (D. Colo.),
the Court entered an order directing the Plaintiff to file a
renewed motion for class certification and damages discovery as to
all the Defendants, which will moot the pending motion for same at
ECF No. 16.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3XKzVYs at no extra charge.[CC]
BLUEGREEN VACATIONS: Allowed Leave to File Class Cert Suggestions
-----------------------------------------------------------------
In the class action lawsuit captioned as Laskey, et al., v.
Bluegreen Vacations Unlimited, Inc., et al., Case No. 6:22-cv-03194
(W.D. Mo., Filed July 29, 2022), the Hon. Judge entered an order
granting the Defendants' consent motion for leave to submit
supplemental suggestions in opposition to plaintiffs' motion to
modify class definition or class certification.
-- The Defendants have 5 days from the date of this order to
submit
their supplemental suggestions.
The nature of suit states Torts -- Personal Property -- Other
Fraud.
Bluegreen is a leisure, travel, and tourism company.[CC]
BLUEGREEN VACATIONS: Bid to Strike Expert Opinions Mooted in Laskey
-------------------------------------------------------------------
In the class action lawsuit captioned as Laskey, et al., v.
Bluegreen Vacations Unlimited, Inc., et al., Case No. 6:22-cv-03194
(W.D. Mo., Filed July 29, 2022), the Hon. Judge M. Douglas Harpool
entered an order finding as moot the Defendants' motion to strike
and exclude proposed expert opinions of Brad Roth on Class
Certification and at Summary Judgment.
-- The Plaintiffs have filed a voluntary withdrawal of expert
designation stating that they voluntarily withdraw the
Plaintiffs' designation of expert witness Brad Roth.
The nature of suit states Torts -- Personal Property -- Other
Fraud.
Bluegreen is a leisure, travel, and tourism company.[CC]
BOSTON SCIENTIFIC: Union Asset Seeks Leave to File Docs Under Seal
------------------------------------------------------------------
In the class action lawsuit re Boston Scientific Corporation
Securities Litigation, Case No. 1:20-cv-12225-ADB (D. Mass.), the
Lead Plaintiff Union Asset Management Holding AG asks the Court to
enter an order granting them leave to file under seal.
1. On May 26, 2023, the Defendants filed their opposition to Lead
the Plaintiff's motion for class certification and supporting
papers, in support of which the Declaration of Yaw A. Anim attaches
certain exhibits (Exhibits 1-7, 9) which include proprietary,
commercially and competitively sensitive information and discovery
materials that have been marked "Confidential" by Lead Plaintiff
during the discovery process under the terms of the parties' Joint
Stipulation And Order Concerning The Production And Exchange Of
Confidential Information.
A copy of the Plaintiff's motion dated June 26, 2023, is available
from PacerMonitor.com at https://bit.ly/3NHd1wj at no extra
charge.[CC]
The Plaintiff is represented by:
Lauren A. Ormsbee, Esq.
Michael D. Blatchley, Esq.
Salvatore Graziano, Esq.
Mark Lebovitch, Esq.
Aasiya F.M. Glover, Esq.
Alexander T. Payne, Esq.
Emily A. Tu, Esq.
BERNSTEIN LITOWITZ BERGER &
GROSSMANN LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: salvatore@blbglaw.com
markl@blblgaw.com
michaelb@blbglaw.com
laureno@blbglaw.com
aasiya.glover@blbglaw.com
alex.payne@blbglaw.com
emily.tu@blbglaw.com
- and -
T. Christopher Donnelly, Esq.
Peter E. Gelhaar, Esq.
Peter K. Levitt, Esq.
DONNELLY, CONROY & GELHAAR
LLP
260 Franklin Street, Suite 1600
Boston, MA 02110
Telephone: (617) 720-2880
Facsimile: (617) 720-3554
E-mail: tcd@dcglaw.com
peg@dcglaw.com
pkl@dcglaw.com
BOYNE USA: Court Grants Bid to Certify Class in Anderson Suit
-------------------------------------------------------------
In the case, LAWRENCE ANDERSON, as trustee for the LAWRENCE T.
ANDERSON AND SUZANNE M. ANDERSON JOINT REVOCABLE LIVING TRUST;
ROBERT AND NORA ERHART; and TJARDA CLAGETT, Plaintiffs v. BOYNE
USA, INC.; BOYNE PROPERTIES, INC.; and SUMMIT HOTEL, LLC,
Defendants, Case No. CV 21-95-BU-BMM (D. Mont.), Judge Brian Morris
of the U.S. District Court for the District of Montana, Butte
Division, grants the Plaintiffs' Motion for Class Certification and
denies the Defendants' Motion to Deny Class Certification.
Plaintiffs Anderson, Erharts, and Claggett move the Court for class
certification. Defendants Boyne USA, Inc., Boyne Properties, Inc.,
and Summit Hotel, LLC (collectively "Boyne") move to deny class
certification.
Boyne owns and operates Big Sky Resort, as well as three
condominium-hotels at the base of Big Sky known as the Summit,
Shoshone, and Village Center. Anderson owns a unit in the Shoshone.
Erharts own units in the Summit. Claggett owns a unit in the
Village Center.
Boyne marketed the Condos as investments to prospective purchasers
and made representations regarding the economic benefits of
ownership. Unit owners may lease their units exclusively through
Boyne. Title to the Condos remains subject to certain Declarations.
Boyne drafted the Declarations and allowed no amendments without
its consent. He prepared the standard rental-management agreement
("RMA") that unit owners must sign with him if they are not using
their unit for personal use. The RMA requires unit owners to pay
Boyne 50% of gross rental revenue "after the payment of costs."
The Declarations allow Condos to be used either by the unit owners
or as "transient hotel type accommodation." They require all unit
owners to use Boyne, or an agent designated by Boyne, as their
exclusive rental agents. Unit owners must wait at least three years
before they may decide not to renew the rental management contract
with Boyne. A decision not to renew the rental management contract
with Boyne requires a vote of 75% of unit owners. Boyne itself owns
all of the commercial units in the Village Center. He also owns
several residential units. His ownership constitutes 22% of the
voting units in the Village Center, in addition to approximately
25% of the voting units in the Shoshone.
Boyne charges unit owners several costs, per the RMA, including
resort fees, credit card processing fees, and wholesalers and
travel agent commissions. The RMAs contain no definitions of these
terms. Boyne's receipts provided to Condo guests reference
different fees as compared to the receipts that Boyne keeps for its
own records. A back-of-house example receipt from a March 2016
guest reservation that Boyne provided in discovery lists "Resort
Service Fee" twice, but the receipt makes no mention of package
breakfast fees. The guest's receipt for the same reservation, by
contrast, contains two $60 "Pkg Breakfast" charges, but contains no
resort fees. Neither receipt lists credit card processing fees,
"wholesalers," or travel agent commissions.
Boyne also controls the central reservation center through which
guests of the Condos make their reservations. He uses this system
to control pricing for each of the units and to determine which
units are booked first. The Plaintiffs allege that their contracts
with Boyne violate state and federal law. They plead their claims
as a putative class.
Boyne filed a motion to dismiss on March 25, 2022. The Court
granted, in part, and denied, in part, the motion on July 7, 2022,
following a motion hearing. Boyne filed a second motion to dismiss
on Nov. 17, 2022. The Court denied the motion on Feb. 22, 2023,
following a hearing on the motion.
Boyne subsequently sought to terminate the Plaintiffs' RMAs,
effective Feb. 24, 2023. The Plaintiffs filed a Motion to Maintain
the Status Quo on Feb. 3, 2023. The Court granted, in part, and
denied, in part, the motion on Feb. 23, 2023, following a motion
hearing. It issued a temporary injunction preventing Boyne from
terminating the Plaintiffs' RMAs. The Court denied the Plaintiffs'
requests to enjoin certain communications between Boyne and
putative class members.
On May 3, 2023, the Plaintiffs and Boyne have filed cross-motions
urging the Court to grant and deny, respectively, class
certification for the Plaintiffs.
The Plaintiffs seek to certify the following class: All persons and
entities, other than Boyne, that: (i) own or have owned a unit in
the Summit, the Shoshone, or the Village Center; and (ii) have
participated in the Boyne rental management program.
The Court conducted a hearing on the pending motions on May 18,
2023.
Judge Morris concludes that the Plaintiffs have satisfied the
numerosity, typicality, commonality, and adequacy requirements
imposed by Fed. R. Civ. P. 23(a)(1). A class action proves the
superior method to resolve the Plaintiffs' legal claims in light of
their complexity and alleged antitrust elements, the centrality of
common contractual documents and Boyne's class-wide rental
management practices, and considerations of judicial economy. For
these reasons, Judge Morris will certify the class under Rule
23(b)(2) for potential declaratory and injunctive relief and under
Rule 23 (b)(3) for potential damages.
Accordingly, the Plaintiffs' Motion for Class Certification and the
Defendants' Motion to Deny Class Certification is denied.
Judge Morris certifies the following class pursuant to Fed. R. Civ.
P. 23(b)(2), for potential injunctive and declaratory relief, and
23(b)(3), for potential damages: All persons and entities, other
than Boyne, that: (i) own or have owned a unit in the Summit, the
Shoshone, or the Village Center; and (ii) have participated in the
Boyne rental management program.
Plaintiffs' counsel, Benjamin Alke, Jeffrey Tierney, Devlan Geddes,
John Crist, Haley Ford, and Henry Tesar, are appointed as the class
counsel.
A full-text copy of the Court's June 28, 2023 Order is available at
https://tinyurl.com/2j68pea6 from Leagle.com.
CAESARS ENTERTAINMENT: Mendoza Balks at Disclosed Subscribers' Info
-------------------------------------------------------------------
GENARO MENDOZA, individually and on behalf of all others similarly
situated, Plaintiff v. CAESARS ENTERTAINMENT, INC., Defendant, Case
No. 1:23-cv-03591 (D.N.J., July 5, 2023) is a class action against
the Defendant for violation of the Video Privacy Protection Act.
According to the complaint, the Defendant is engaged in the
practice of collecting and disclosing the personally identifiable
information of its website subscribers without consent. The
Plaintiffs seek damages and other legal and equitable remedies
resulting from the Defendant's violations of the VPPA.
Caesars Entertainment, Inc. is a casino entertainment company,
headquartered in Las Vegas, Nevada. [BN]
The Plaintiff is represented by:
Kevin S. Riechelson, Esq.
COHEN & RIECHELSON
3500 Quakerbridge Road, Suite 203
Hamilton, NJ 08619
Telephone: (609) 394-8585
Facsimile: (609) 394-8620
E-mail: kriechelson@crlawoffices.com
- and -
Nicholas A. Coulson, Esq.
Lance Spitzig, Esq.
LIDDLE SHEETS COULSON, PC
975 East Jefferson Avenue
Detroit, MI 48207
Telephone: (313) 392-0015
E-mail: ncoulson@lsccounsel.com
lspitzig@lsccounsel.com
CAROTHERS HOLDING: Simpson Seeks Conditional Status of Classes
--------------------------------------------------------------
In the class action lawsuit captioned as HUBERT SIMPSON, LYNDA
MASON, ALLISON MONTGOMERY, PIERRE DAVIS, LAVONNE JONES HAYNES
ANDERSON, MARIO BLACK, ANDREA BYERS, BURLIN ALLEN, SR., BURLIN
ALLEN, JR., and JACQUELINE W. McCLINTON, individually, and on
behalf of themselves and all others similarly situated, v.
CAROTHERS HOLDING COMPANY, LLC, doing business as York Memorial
Cemetery, a/k/a York Memorial Park, STONEMOR GP, LLC, STONEMOR,
NORTH CAROLINA, LLC STONEMOR NORTH CAROLINA FUNERAL SERVICES, INC.,
STONEMOR, NORTH CAROLINA SUBSIDUARY, LLC, STONEMOR PARTNERS, LP,
Case No. 3:23-cv-00217-KDB-SCR (W.D.N.C.), the Plaintiffs ask the
Court to enter an order conditionally certifying Classes as
defined:
a. All persons who purchased internment rights or services at
York
Memorial Cemetery from January 1, 1969, to the present;
and/or
b. All persons who entered into Agreements authorizing their
family
members or other relations to be interred at York Memorial
Cemetery from January 1, 1969, to the present.
The Plaintiffs also ask the Court to enter an order:
-- Appointing them as the representatives of the Class and their
counsel as Class Counsel; and
-- Authorizing representative(s) of deceased persons who would
have
otherwise been a member of those persons.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3O5hrOW at no extra charge.[CC]
The Plaintiffs are represented by:
N. Clifton Cannon, Jr., Esq.
Kimberly Best, Esq.
Pamela A. Hunter, Esq.
LAW OFFICE OF N. CLIFTON CANNON, JR., PLLC
355 South New Hope Road, Suite B
Gastonia, NC 28055
Telephone: (704) 867-9070
CENTRAL STEEL: Bocardo Sues Over Failure to Pay Overtime Wages
--------------------------------------------------------------
Linda Bocardo, individually and on behalf of all others similarly
situated v. Central Steel and Wire Company, LLC, Case No.
1:23-cv-04361 (N.D. Ill., July 6, 2023), is brought arising under
the Fair Labor Standards Act ("FLSA"), Illinois Minimum Wage Law
("IMWL"), for the Defendant's failure to pay Plaintiff and other
similarly-situated employees all earned overtime wages.
Under the FLSA and IMWL, employers must pay all non-exempt
employees an overtime wage premium of pay one and one-half times
their regular rates of pay for all time they spend working in
excess of 40 hours in a given workweek. The Defendant failed to pay
Plaintiff, the Collective Members and the Class Members one and
one-half times their regular rate of pay for all time they spent
working in excess of 40 hours in a given workweek, says the
complaint.
The Plaintiff was employed by the Defendant as a warehouse worker
from June 2010 through approximately May 5, 2023.
Central Steel distributes, processes, and fabricates ferrous and
nonferrous metals.[BN]
The Plaintiff is represented by:
Michael L. Fradin, Esq.
8401 Crawford Ave. Ste. 104
Skokie, IL 60076
Phone: 847-986-5889
Facsimile: 847-673-1228
Email: mike@fradinlaw.com
- and -
James L. Simon, Esq.
SIMON LAW CO.
5000 Rockside Road
Liberty Plaza – Suite 520
Independence, OH 44131
Phone: (216) 816-8696
Email: james@simonsayspay.com
CHICAGO, IL: Faces Class Suit Over City's Car Stickers
------------------------------------------------------
Leah Hope of ABC 7 Eyewitness News reports that likely thousands of
car owners qualify for a class action lawsuit that was just granted
last week against the city of Chicago, involving city stickers.
West Side resident Rodney Shelton said his grandmother's old car
needed lots of repairs.
It wasn't functioning, so he parked it in a friend's private lot.
One day in 2015, a friend called to say there were tickets on that
car.
Shelton discovered he had 77 tickets for not having a city
sticker.
With the penalties, he said he owed the city $20,000.
"Just the fact that you have a municipal code that allows you to go
on someone's private property because it's open, to do that it's
just not right. It's just not right," Shelton said.
Shelton and likely thousands of other car owners qualify for a
class action lawsuit that was just granted last week against the
city.
Anyone who got a fine or penalty between Jan. 1, 2010 to present
over $250 can be part of the litigation.
"You get one or two of these tickets and someone is in a lot of
trouble because they can't afford to pay them, and what happens
then is they lose their car because the city tows it or they lose
their job," said Jacie Zolna, attorney for the plaintiffs.
Zolna said most of those who got the penalties over $250 got
violations for not having city stickers.
"We discovered through this lawsuit is that not only are they
ticketing, not only are they disproportionately ticketing
minorities in low-income communities, but they are ticketing them
in amounts that are higher than allowed in the law," Zolna said.
As for Shelton, he hopes to recoup some of the penalties he did
eventually pay. But he said he almost lost his job because his
driver's license was suspended due to debt. He had to file for
bankruptcy to get his license back and allow him time to pay off
the $20,000.
"This is egregious at the end of the day; at the end of the day
this is egregious," Shelton said.
The city would not comment, as the litigation is ongoing.
Anyone who qualifies for the class action suit should get a notice
later this year informing them of next steps to try to get back
money from the city for parking ticket penalties. [GN]
CHOICE RECOVERY: Gavin Case Stayed Pending Ruling in Coffey Suit
----------------------------------------------------------------
In the class action lawsuit captioned as DOROTHY GAVIN, et al., v.
CHOICE RECOVERY, INC., et al., Case No. 3:23-cv-00046-DJH-CHL (W.D.
Ky.), the Hon. Judge Colin H. Lindsay entered an order granting the
joint stipulation construed as a joint motion to stay.
The Court says, "The case is stayed pending a ruling on
class-certification in Jordan Coffey v. Equifax Information
Services, LLC, Case No. 5:22-cv-00271 (E.D. Ky. filed Oct. 14,
2022). The Parties shall file a status report ninety days from
entry of this order and every ninety days thereafter regarding the
status of the Coffey action and their joint or several proposals
regarding the continued stay of this matter."
Choice is a collection agency for healthcare and medical debt,
dental bills, rent, and student loans.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3JNib8O at no extra charge.[CC]
CROSS-LINES RETIREMENT: Bid for Reconsideration Tossed as Moot
--------------------------------------------------------------
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 denying as moot the
Defendants' motion for reconsideration.
At the class certification stage, any conclusion about the
admissibility of expert testimony "is not finally determinative of
the admissibility of the expert's testimony at a trial on the
merits."
Accordingly, the ultimate admissibility of Poplin's testimony for
trial was not at issue before the Court in its prior order. Rather,
the issue was whether Poplin's testimony was admissible solely for
the purposes of class certification. The Court in ruling on the
Defendant's Motion is restricted to addressing the same issue.
The Defendants appear to have overlooked this entirely, even though
the Court quoted the same language as above in its prior order. It
should be noted that the Defendants do not move for reconsideration
of this Court's order granting class certification.
After the Defendants moved to dismiss two of the Plaintiffs'
claims, seven remain:
(1) injunctive relief;
(2) violations of the Fair Housing Act (FHA);
(3) violation of the implied warranty of habitability;
(4) breach of contract and statutory duty;
(5) failure to provide essential services;
(6) negligence; and
(7) violation of the Kansas Consumer Protection Act.
Cross Lines Retirement Center offers affordable housing for the
elderly and disabled.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3JJmvpO at no extra charge.[CC]
DAVID YURMAN: Martin Sues Over Blind-Inaccessible Website
---------------------------------------------------------
DAMIAN MARTIN, on behalf of himself and all others similarly
situated, Plaintiffs v. DAVID YURMAN IP, LLC, Defendant, Case No.
1:23-cv-04929 (E.D.N.Y., June 30, 2023) is a civil rights action
against Defendant for the failure to design, construct, maintain,
and operate its website, www.davidyurman.com, to be fully
accessible to and independently usable by Plaintiff and other blind
or visually-impaired people in violation of the Americans with
Disabilities Act.
According to the complaint, Plaintiff was injured when he attempted
on June 3, 2023 and again on June 6, 2023 to access Defendant's
website from his home in an effort to shop for Defendant's
products, but encountered barriers that denied the full and equal
access to online goods, content, and services. Specifically,
Plaintiff wanted to purchase the Defendant's "Box Chain Necklace in
Sterling Silver, 2.7mm." Due to Defendant's failure to build the
website in a manner that is compatible with screen access programs,
Plaintiff was unable to understand and properly interact with the
website, and was thus denied the benefit of purchasing the said
product that Plaintiff wished to acquire from the website, says the
suit.
The Plaintiff now seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
David Yurman IP, LLC is a privately held American designer jewelry
company.[BN]
The Plaintiff is represented by:
Ara V. Naljian, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: analjian@steinsakslegal.com
DCD AUTOMOTIVE: Court Allows Arbitration in Fairfield Class Suit
----------------------------------------------------------------
In the lawsuit captioned HEATHER FAIRFIELD, individually and on
behalf of a class of all persons and entities similarly situated,
Plaintiff v. DCD AUTOMOTIVE HOLDINGS, INC., Defendant, Case No.
22-cv-11977-DJC (D. Mass.), Judge Denise J. Casper of the U.S.
District Court for the District of Massachusetts allows the
Defendant's motion to compel arbitration and to dismiss or stay
this case in favor of arbitration.
Plaintiff Heather Fairfield has filed this purported class action
lawsuit against Defendant DCD Automotive Holdings, Inc. ("DCD")
alleging violations of the Telephone Consumer Protection Act
("TCPA"), 47 U.S.C. Section 227 (Counts I and II).
DCD is a holding company that owns and operates several car
dealerships. One of DCD's wholly owned subsidiaries operates under
the brand name "Boch Honda." On Sept. 7, 2015, Fairfield purchased
a new car from a Boch Honda in Norwood, Massachusetts, and executed
a number of documents.
Among other documents, Fairfield executed the Motor Vehicle
Purchase Contract ("MVPC"), which provided for Fairfield's purchase
of a new car. In relevant part, the MVPC requires that any
controversy or dispute arising out of or relating in any way to the
MVPC, including the applicability of this arbitration clause and
the validity of the MVPC, will be resolved by neutral binding
arbitration, and that the Purchaser will not have the right to
participate in a class action or any other collective proceeding
against the Dealer.
In calculating the price of Fairfield's purchase, the MVPC also
lists a $2,044 Serv Contract that Fairfield purchased from Boch
Honda by executing the Vehicle Services Contract registration form
("VSC"). The VSC also contains an arbitration provision and
incorporates by reference a Coverage Booklet that Fairfield
received at the time of her purchase.
In relevant part, the VSC provides that it contains a binding
arbitration provision, which may be enforced by the parties to the
Contract. The Coverage Booklet further provides that any claim or
controversy arising out of or relating to the Contract, or to its
breach, will be settled by binding arbitration administered by the
American Arbitration Association (the "AAA").
Finally, Fairfield executed the Retail Installment Sales Contract
("RISC"), which provided financing for Fairfield's car purchase
from seller-creditor Boch Honda. In the RISC, Fairfield agreed to
be contacted by Boch Honda for certain purposes: "You agree that we
may try to contact you in writing, by email or using
prerecorded/artificial voice messages, text messages, and automatic
telephone dialing systems, as the law allows. You also agree that
we may try to contact you in these and other ways at any address or
telephone number you provide us, even if the telephone number is a
cell phone number or the contact results in a charge to you."
Ms. Fairfield's TCPA claims arise out of telemarketing calls that
she allegedly received from Boch Honda or DCD, encouraging her to
trade her car in at the dealership and buy a new car. When
Fairfield asked her local Boch Honda dealership to stop the calls,
she was informed that "the local dealership has no control over
them" and that the calls were sent by the "marketing department."
DCD's general manager avers that any calls Fairfield received from
"DCD/Boch" were "service reminder call[s]" regarding recommended
service on the car she purchased in 2015. DCD asserts that
Fairfield consented to receiving such "service reminder calls" when
she signed the RISC.
Ms. Fairfield filed this action on Nov. 20, 2022. DCD now moves to
compel arbitration and dismiss this action, or alternatively, to
stay the action pending arbitration. She contests whether DCD can
enforce any delegation or arbitration provision because DCD was not
a party to the VSC. The Court heard the parties on the pending
motion and took the matter under advisement.
Without deciding the issue, Judge Casper says there appears to be a
basis to conclude that DCD is an intended beneficiary of the
agreement to arbitrate here. First, DCD is the owner and operator
of Boch Honda, the signatory to the VSC. The RISC and MVPC indicate
that the VSC is part of the total purchase price for the motor
vehicle that Fairfield purchased.
Second, Judge Casper explains, the language of the VSC contemplates
that there may be disputes with third parties, and DCD is now such
a third party. Third, DCD bought the VSC from CostGuard, resold it
to Fairfield and is obligated to honor her services claims under it
for her vehicle.
For at least these reasons, Judge Casper finds that there arguably
is a basis here to conclude that DCD is an intended beneficiary of
the agreement to arbitrate, which included delegation of
arbitrability to the arbitrator.
Accordingly, the Court concludes that the matter, including all
arbitrability issues including but not limited to the issue of
DCD's standing to enforce the arbitration agreement, be referred to
the arbitrator.
DCD further seeks to arbitrate on an individual basis and to
enforce the class action waivers in the MVPC and VSC. Judge Casper
holds that should the arbitrator decide that the TCPA claims are
arbitrable, the arbitration will proceed on an individual basis.
The final issue to resolve is whether the Court should stay this
action pending arbitration or dismiss the action because both of
Fairfield's TCPA claims may be subject to arbitration.
Under the circumstances presented, the Court will stay proceedings
pending the arbitrability determination by the arbitrator. If the
arbitrator determines that the claims are arbitrable, the Court
will dismiss this action without prejudice.
For these reasons, the Court allows DCD's motion to compel
arbitration, and stays the proceedings pending the outcome of an
arbitrability determination. Accordingly, counsel for the parties
are ordered to file a joint status report by July 26, 2023, and
every thirty (30) day thereafter regarding the status of the
arbitration.
A full-text copy of the Court's Memorandum and Order dated June 26,
2023, is available at https://tinyurl.com/4jdkwshf from
Leagle.com.
DESLAURIERS INC: Massachusetts Bay Files Suit in N.D. Illinois
--------------------------------------------------------------
A class action lawsuit has been filed against Deslauriers, Inc., et
al. The case is styled as Massachusetts Bay Insurance Company,
Hanover Insurance Company, v. Deslauriers, Inc., Gabriela Bautista,
on behalf of all others similarly situated, Case No. 1:23-cv-04331
(N.D. Ill., July 6, 2023).
The nature of suit is stated as Insurance Contract for Declaratory
Judgement.
Deslauriers Inc. -- https://deslinc.com/ -- is company that
manufactures and distributes concrete forming and testing
accessories.[BN]
The Plaintiff is represented by:
Jeffrey Alan Goldwater, Esq.
Kelly M. Ognibene, Esq.
LEWIS BRISBOIS BISGAARD & SMITH, LLP
550 West Adams, Suite 300
Chicago, IL 60661
Phone: (312) 345-1718
Email: Jeffrey.Goldwater@lewisbrisbois.com
kelly.ognibene@lewisbrisbois.com
DEVON ENERGY: Bid to Permanently Seal Subpoenas OK'd
----------------------------------------------------
In the class action lawsuit captioned as WAKE ENERGY, LLC, and WAKE
OPERATING, LLC, v. DEVON ENERGY PRODUCTION COMPANY L.P., Case No.
5:21-cv-00352-PRW (W.D. Okla), the Hon. Judge Patrick R. Wyrick
entered an order granting Devon's motion to permanently seal
subpoenas.
Accordingly, the subpoenas are permanently sealed, and the Court
Orders Wake to show cause in writing on or before June 30, 2023,
why its conduct related to the subpoenas was "substantially
justified" or why "other circumstances make an award of expenses
unjust." Devon's Motion for Protective Order to Quash Subpoena is
also granted, and the subpoena issued to KPMG is quashed in its
entirety.
Devon Energy provides oil and natural gas exploration and
production services.
A copy of the Court's order dated June 23, 2023, is available from
PacerMonitor.com at https://bit.ly/3pEeWK5 at no extra charge.[CC]
E.I. DU PONT DE NEMOURS: Camden Files Suit in D. South Carolina
---------------------------------------------------------------
A class action lawsuit has been filed against E.I. du Pont de
Nemours & Company, et al. The case is styled as City of Camden,
City of Brockton, City of Sioux Falls, California Water Service
Company, City of Delray Beach, Coraopolis Water & Sewer Authority,
Township of Verona, Dutchess County Water and Wastewater Authority
and Dalton Farms Water System, City of South Shore, City of
Freeport, Martinsburg Municipal Authority, Village of Bridgeport,
City of Benwood, Niagara County, City of Pineville, City of Iuka,
individually and on behalf of all others similarly situated v. E.I.
du Pont de Nemours & Company now known as EIDP Inc., DuPont de
Nemours Inc., The Chemours Company, The Chemours Company FC LLC,
Case No. 2:23-cv-03230-RMG (D.S.C., July 6, 2023).
The nature of suit is stated as Prop. Damage Prod. Liability.
DuPont de Nemours, Inc. -- http://www.dupont.com/-- commonly
shortened to DuPont, is an American multinational chemical company
first formed in 1802 by French-American chemist and industrialist
Eleuthere Irenee du Pont de Nemours.[BN]
The Plaintiff is represented by:
Michael A. London, Esq.
DOUGLAS AND LONDON PC
59 Maiden Lane, 6th Floor
New York, NY 10038
Phone: (212) 566-7500
Fax: (212) 566-7501
Email: mlondon@douglasandlondon.com
- and -
Paul J. Napoli, Esq.
NAPOLI SHKOLNIK
1302 Avenida Ponce de Leon
Santurce, Puerto Rico
Phone: (833) 271-4502
Email: pnapoli@napolilaw.com
- and -
Scott Summy, Esq.
BARON & BUDD PC
3102 Oak Lawn Avenue, Suite 1100
Dallas, TX 75219
Phone: (214) 521-3605
Email: ssummy@baronbudd.com
ECKERD COLLEGE: Bishop Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Eckerd College, Inc.
The case is styled as Cedric Bishop, on behalf of himself and all
other persons similarly situated v. Eckerd College, Inc., Case No.
1:23-cv-05807 (S.D.N.Y., July 6, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Eckerd College -- https://www.eckerd.edu/ -- is a private liberal
arts college in St. Petersburg, Florida.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
EDWARD JONES: Bid to Quash Subpoena Granted in Anderson Suit
------------------------------------------------------------
In the class action lawsuit captioned as EDWARD ANDERSON, RAYMOND
KEITHCORUM, and JESSE AND COLLEEN WORTHINGTON, individually and on
behalf of all others similarly situated, v. EDWARD D. JONES & CO.,
L.P., Case No. 2:18-cv-00714-DJC-AC (E.D. Cal.), the Hon. Judge
Allison Claire entered an order granting the Defendant's motion to
quash.
In sum, the Plaintiff has not established the relevance of the
settlement agreement. Gundersen's relationships with the Plaintiffs
are independent of his settlement with EDJ in the lawsuit against
Ms. Rodriguez, so the Defendant's inquiries into the former does
not make the latter relevant.
Because the agreement is not relevant, the Plaintiffs' need for the
information is low and cannot outweigh the Defendant's interest in
maintaining the confidentiality which it negotiated.
The Defendant has moved to quash a Fed. R. Civ. P. 45 third-party
subpoena, ECF No. 117, and the motion is before the undersigned
pursuant to E.D. Cal. R. 302(c)(1). The Plaintiffs oppose the
motion, ECF No. 123, and the Defendant has filed a reply. The
matter was heard on a shortened schedule on June 21, 2023.
The case is a class action lawsuit in which the Plaintiffs allege
that EDJ, a registered broker-dealer and a fiduciary under
California law, breached its fiduciary duty by failing to conduct
an appropriate account-type suitability analysis before
recommending that the Plaintiffs transfer from commission-based
accounts, through which EDJ is compensated based on commissions per
trade, to more expensive fee-based accounts, through which EDJ is
compensated based on a percentage of the value of assets under
management.
The Plaintiffs had previously been clients of Dalas Gundersen when
he was a financial advisor at EDJ, and they are currently clients
of Mr. Gundersen at another firm. ECF No. 123 at 2. Neither Ms.
Rodriguez nor Mr. Gundersen are parties to this lawsuit.
Edward Jones offers securities brokerage and investment advisory
services.
A copy of the Court's order dated June 23, 2023, is available from
PacerMonitor.com at https://bit.ly/3JOe38O at no extra charge.[CC]
ELEKTA INC: Filing for Class Certification Bid Due April 4, 2024
----------------------------------------------------------------
In the class action lawsuit captioned as CARLA TRACY, DARRYL
BOWSKY, and DEBORAH HARRINGTON, individually and on behalf of all
others similarly situated, v. ELEKTA, INC. and NORTHWESTERN
MEMORIAL HEALTHCARE, Case No. 1:21-cv-02851-SDG (N.D. Ga.), the
Hon. Judge Steven D. Grimberg entered a scheduling order as
follows:
-- Beginning of Document Production and June 22, 2023
Fact Discovery:
-- Substantial Completion of Document December 22, 2023
Productions by Parties:
-- Fact Discovery Closes: February 22, 2024
-- Rule 16.3 Conference: March 7, 2024
-- Plaintiffs file any Class April 4, 2024
Certification Motion along with
Class Certification Expert
Declarations in Support:
-- The Defendant files any Opposition May 6, 2024
to Plaintiffs' Class Certification
Motion along with any Expert
Declarations in Support:
-- The Plaintiffs file any Reply in May 20, 2024
Support of Motion for Class
Certification along with any
Rebuttal Expert Declarations in
Support:
Elekta provides medical equipment. The Company offers neurosurgery,
stereotactics radiosurgery, brachytherapy, elekta neuromag, and
oncology software.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3XH35ra at no extra charge.[CC]
ELITE ERA LLC: Toro Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Elite Era, LLC. The
case is styled as Luis Toro, on behalf of himself and all others
similarly situated v. Elite Era, LLC, Case No. 1:23-cv-05780
(S.D.N.Y., July 6, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Elite Era Official -- https://www.eliteeraofficial.com/ -- is a
company that operates in the Information Technology and Services
industry.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
ELITE LABOR: N.D. California Narrows Claims in Gomez Labor Suit
---------------------------------------------------------------
Judge Maxine M. Chesney of the U.S. District Court for the Northern
District of California grants in part and denies in part the motion
to dismiss or to strike class allegations in the lawsuit titled
FERNANDO GOMEZ, Plaintiff v. ELITE LABOR SERVICES WEEKLYS, LTD., et
al., Defendants, Case No. 21-cv-03860-MMC (N.D. Cal.).
Before the Court is Defendant Elite Labor Services Weeklys, Ltd.'s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) or, in the
Alternative, Motion to Strike Class and Representative Allegations
Pursuant to Fed. R. Civ. P. 12(f), filed May 3, 2023. Plaintiff
Fernando Gomez has filed opposition, to which Elite has replied.
In the operative complaint, the Sixth Amended Complaint ("6AC"),
Gomez asserts two Causes of Action against Elite, by whom he was
employed from Dec. 6, 2018, through Feb. 28, 2019. In the First
Cause of Action, asserted by Gomez on his own behalf and on behalf
of a putative class, Gomez alleges that Elite violated Section 226
of the California Labor Code by failing to furnish wage statements
to its employees and, in the alternative, assuming Elite did
furnish such statements, it did not timely furnish them. In the
Second Cause of Action, Gomez asserts a representative claim under
the Private Attorneys General Act ("PAGA"), based on the same
allegations on which he bases the First Cause of Action.
A. Elite's Motion to Dismiss/Strike
Elite argues that the 6AC is subject to dismissal in its entirety
in light of a release provision set forth in a settlement agreement
filed in a state court action Gomez filed against Elite.
Judge Chesney notes finds that the language on which Elite relies
(see Joint Stipulation of Class Settlement Section 5.7.2) is
ambiguous, however, as to whether the parties agreed Gomez would
waive all his claims against Elite that existed at the time the
settlement agreement became effective, or whether the claims
asserted in the instant action were excluded from the scope of the
release. Moreover, neither party has offered, nor does it appear
either party could offer at this stage of the proceedings, the
evidence needed to resolve the ambiguity.
In short, Judge Chesney says, Elite has not shown dismissal of the
6AC under such theory is proper at the pleading stage.
The Plaintiff, in his First Cause of Action, asserts Elite did not
furnish any wage statements to employees or, in the alternative, it
did not timely furnish them. Elite argues the 6AC does not include
facts to support a finding that Elite failed to furnish wage
statements to employees other than Gomez. The Court agrees.
To the extent his claim is asserted on behalf of other employees,
Gomez first relies on a declaration signed by Anjelica Bernal,
Elite's Payroll Manager, in which Bernal, according to Gomez, avers
Elite mailed copies of his wage statements to him. Gomez then
concludes that his allegation that he received no wage statements
calls into question whether the procedures were followed for other
employees.
To state a cognizable claim, Judge Chesney points out that a
plaintiff must plead "factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged," citing See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
Here, Judge Chesney finds that the 6AC lacks factual content to
support the inference Gomez apparently seeks to have drawn, i.e.,
an inference that his lack of receipt of wage statements was the
result of a systematic failure on the part of Elite, as opposed to
a circumstance specific to him, such as the use of an incorrect
mailing address or a delivery error on the part of the postal
service.
Mr. Gomez also relies on his allegation that Bernal, in identifying
Elite's "practices" as to wage statements, has averred that those
practices were followed by Elite from Feb. 3, 2019, through the
present. According to Gomez, because Bernal did not set forth the
practices Elite followed prior to Feb. 3, 2019, it appears that
Elite did not provide wage statements to him and other aggrieved
employees prior to that date.
The inference Gomez seeks to have drawn, however, is not
reasonable, as the absence of a statement by Bernal as to policies
in place prior to Feb. 3, 2019, is not an admission that no
practice existed during such period, Judge Chesney opines.
Moreover, it is readily apparent Bernal selected Feb. 3, 2019, as
the relevant date because Gomez's initial complaint was filed on
Feb. 3, 2020, and the putative class he seeks to represent consists
of individuals in California employed by Elite during the period
beginning one year before the filing of this action.
To the extent Gomez's alternative claim, that Elite did not timely
furnish wage statements, is asserted on behalf of a class, Elite
argues such claim likewise is subject to dismissal. The Court again
agrees.
As long as wage statements are furnished on at least a semimonthly
basis, an employer that pays wages in "cash" may furnish wage
statements "separately" from the wages, and Gomez alleges he
received his wages on "pay cards," a form of payment equivalent to
payment by cash, Judge Chesney says.
As noted, Gomez's PAGA claim is derivative of his First Cause of
Action, which, in light of the findings set forth, will be limited
to his individual claim that Elite did not comply with Section 226.
Under such circumstances, Judge Chesney opines, the PAGA claim is
subject to dismissal in its entirety, as an employee bringing a
PAGA claim cannot do so purely in an individual capacity; the
employee must bring the action on behalf of himself or herself and
others.
B. Plaintiff's Request to Further Amend
In his opposition, Gomez requests further leave to amend, in this
instance, leave to file a Seventh Amended Complaint. Judge Chesney
finds that Gomez has not shown further leave is warranted.
By order filed Feb. 24, 2023, the Court struck from the
then-operative complaint, the Fourth Amended Complaint, the class
and representative allegations alleged therein, for the reason that
Gomez had not alleged facts sufficient to show Elite failed to
furnish wage statements to any employee other than himself. In that
same order, Gomez was afforded leave to amend, and Gomez, in his
6AC, has not cured the noted deficiency, nor has he, either in his
opposition or otherwise, identified any additional factual
allegations he could make to state such a claim on behalf of the
putative class.
Rather, Judge Chesney points out, Gomez submits a declaration in
which his counsel requests an opportunity to conduct discovery to
determine whether other employees received wage statements in the
mail. Similarly, Gomez has not identified any additional factual
allegations he could make to support his alternative claim that any
furnished wage statements were untimely; rather he requests leave
to conduct discovery to determine if a factual basis exists to
warrant such claim.
Lastly, to the extent Gomez refers in the 6AC to a potential claim
that any furnished wage statements had a "year-to-date total" that
was not "accurate," Gomez, having alleged he never received wage
statements, is not in a position to allege that any wage statements
Elite mailed to him were inaccurate; indeed, as with his pleaded
claims, he seeks discovery to determine whether such a claim is
cognizable, Judge Chesney holds.
Under such circumstances, further leave to amend will not be
afforded, Judge Chesney rules.
For the reasons stated here, Judge Chesney orders that:
1. Elite's motion to dismiss and strike is granted in part and
denied in part, as follows:
a. to the extent Elite seeks dismissal of the 6AC in light
of the above-referenced settlement agreement, the
motion is denied;
b. to the extent Elite seeks an order striking the class
action allegations offered by Gomez in support of the
First Cause of Action, the motion is granted; and
c. to the extent Elite seeks an order dismissing the Second
Cause of Action, the motion is granted;
2. Elite is directed to file, no later than fourteen days from
the date of this order, an answer to the First Cause of
Action as asserted on behalf of Gomez; and
3. Pursuant to the Court's order of Aug. 27, 2021, the parties
are directed to meet and confer and thereafter submit, no
later than fourteen days from the date of this order, a
proposed pretrial schedule.
A full-text copy of the Court's Order dated June 26, 2023, is
available at https://tinyurl.com/3z6tk2vs from Leagle.com.
EQT CORP: Court Denies Asbury Renewed Bid for Class Cert.
----------------------------------------------------------
In the class action lawsuit captioned as PATRICIA ASBURY, et al.,
v. EQT CORPORATION, et al., Case No. 2:18-cv-01005-CB (W.D. Pa.),
the Hon. Judge Cathy Bissoon entered an order denying the
Plaintiff's renewed motion for class certification.
Before reaching the certification issue, the Court will dispense
with some secondary matters. The Defendants EQT Corporation and EQT
Production Company oppose certification on the basis that neither
have had any involvement with the Storage Fields, and thus are not
proper parties to the case. The Plaintiff has not resisted these
the Defendants' arguments and evidence, and it appears that the
claims against them rightly may be terminated, voluntarily or
otherwise.
EQT is an American energy company engaged in hydrocarbon
exploration and pipeline transport.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3PNtPEK at no extra charge.[CC]
EVOLUTION POWER: Has Made Unsolicited Calls, Lynch Alleges
----------------------------------------------------------
JAMES MICHAEL LYNCH, individually and on behalf of all others
similarly situated, Plaintiff v. EVOLUTION POWER, LLC, Case No.
CACE-23-015531 (Fal. Cir., Orange Cty., July 10, 2023) seeks to
stop the Defendants' practice of making unsolicited calls.
EVOLUTION POWER, LLC is an independent solar provider, developing
innovative renewable energy projects. [BN]
The Plaintiff is represented by:
Jeremy Dover, Esq.
DEMESMIN & DOVER, PLLC
1650 SE 17th Street, Suite 100 Fort
Lauderdale, FL 33316 Office
Tel: (866) 954-6673
Fax: (954) 916-8499
Email: PIP-Pleadings@attorneysoftheinjured.com
Jdover@ attorneysoftheinjured.com
EYEMED VISION: Filing for Class Certification Bid Due March 1, 2024
-------------------------------------------------------------------
In the class action lawsuit captioned as CHANDRA TATE, et al., v.
EYEMED VISION CARE, LLC, Case No. 1:21-cv-00036-DRC (S.D. Ohio),
the Hon. Judge Douglas R. Cole entered a third amended order as
follows:
-- Substantial completion of document Nov. 17, 2023
production:
-- The Plaintiffs' class certification Feb. 9, 2024
expert report(s) and designation(s):
-- The Plaintiffs' class March 1, 2024
certification motion:
-- The Defendant's class certification March 22, 2024
expert report(s) and designation(s):
-- The Defendant's opposition to class April 19, 2024
certification motion:
-- Rebuttal class certification expert May 3, 2024
report(s) and designation(s):
-- The Plaintiffs' reply in support of May 31, 2024
class certification motion:
-- The Plaintiffs' merit expert July 31, 2024
report(s) and designation(s):
-- Fact discovery deadline: August 23, 2024
-- The Defendant's merit expert September 6, 2024
report(s) and designation(s):
-- Rebuttal merit expert report(s) October 2, 2024
and designation(s):
-- Disclosure of lay witnesses: October 30, 2024
-- Expert discovery deadline: October 30, 2024
-- Dispositive motion deadline: December 18, 2024
EyeMed Vision Care provides vision insurance benefits.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3DnxG3X at no extra charge.[CC]
FARMERS INSURANCE: Or. App. Flips $26-Mil. Penalty in Bellshaw Suit
-------------------------------------------------------------------
In the case, Steven BELLSHAW, individually and on behalf of all
other similarly situated persons, Plaintiff-Respondent v. FARMERS
INSURANCE COMPANY OF OREGON, an Oregon corporation,
Defendant-Appellant, Case Nos. 15CV16877; A173722 (Or. App.), the
Court of Appeals of Oregon reverses the trial court's order
awarding each member of the class the statutory penalty of $100,
for a total award of more than $26 million.
The case concerns a class action proceeding against Farmers
Insurance for providing insufficient notices to customers regarding
their rights with respect to choosing an auto repair shop. The
trial court found that the notice in question did not satisfy all
of the statutory requirements, and thus awarded each member of the
class the statutory penalty of $100, for a total award of more than
$26 million.
In 1977, the Oregon Legislature enacted ORS 746.280, which provided
that an insurer could not require that a particular person make the
repairs to the insured's motor vehicle as a condition for recovery
by the insured under a motor vehicle liability insurance policy.
The Legislature also enacted ORS 746.290, which required insurers
to notify their customers of the provisions of ORS 746.280, and ORS
746.300, which created a right of action for an insured whose
insurer violates ORS 746.280 or 746.290.
In 1993, the Oregon Insurance Division issued Bulletin 93-3 (1993
Bulletin), which approved specific language for insurance companies
to use to comply with ORS 746.290. The Defendant began using the
language from the 1993 Bulletin in its notices that were sent with
all new policies issued in Oregon (Notice). It is undisputed that
the Defendant continued to use the same Notice until after this
action was filed.
In 2007, the legislature passed Senate Bill (SB) 523, which amended
ORS 746.280 to require insurers to meet specific requirements when
recommending a repair shop to an insured at the time a claim was
made following damage to a vehicle. The original ORS 746.280 became
ORS 746.280(1), and the legislature added three additional
provisions, regarding notice of an insured's rights at the time a
claim was filed before an insurer recommended a repair shop,
prohibitions on insurers limiting the cost of repairs if a customer
did not choose a recommended shop, and additional required notices
if a customer did choose a recommended shop. In amending ORS
746.280, the legislature did not disturb the ORS 746.290
cross-reference, which continued to require insurers to notify
their customers of "the provisions of ORS 746.280."
In response to SB 523, the Defendant created new notices that were
sent to customers at the time a claim was filed and updated its
customer service script to reflect the changes to ORS 746.280.
However, it did not update the Notice that accompanied policies
when they were initially issued. The Department of Consumer and
Business Services (DCBS), the successor to the Oregon Insurance
Division, did not update its 1993 Bulletin guidance to insurance
companies until 2015, and continued to approve the Defendant's
Notice.
Bellshaw purchased his auto liability policy from defendant in May
2011. In 2013, he was in an accident that necessitated repairs. He
accepted a recommendation of a repair shop from defendant,
believing his policy would not cover repairs completed by a
dealership. Bellshaw was ultimately dissatisfied with the repairs
and brought a suit against defendant and the other party to the car
accident (who was also insured by the Defendant). The case was
tried to a jury, which ultimately awarded Bellshaw no damages.
Eventually Bellshaw brought the current action in June 2015, based
on the allegation that the Defendant violated the notice
requirements of ORS 746.290(2).2 After written discovery and
depositions, along with extensive briefing and arguments, the trial
court ruled in January 2018 on the parties' cross-motions for
summary judgment, concluding that the Notice provided to each
customer did not comply with the requirements of ORS 746.290(2)(b).
Following further motions and hearings regarding the class
definition and the amount of damages due, the court issued its
general judgment in March 2020. The Defendant filed the instant
appeal.
On appeal, the Defendant raises six assignments of error. In its
first assignment of error, it asserts that the trial court
misinterpreted the statute at issue. In its second and third
assignments of error, it argues that the aggregate statutory
penalty violates its due process rights. In its fourth and fifth
assignments of error, the Defendant argues that the trial court
erred by certifying a class that included time-barred claims. In
its sixth assignment of error, the Defendant asserts that the trial
court erred by amending the class parameters after making a
decision on the merits.
The Court of Appeals concludes that the Defendant's Notice did not
comply with the requirements of ORS 746.290(2)(b). The trial court
did not err in its interpretation of the statute. However, it
concludes that the trial court misapplied the statute of
limitations analysis, and the resulting class definition includes
claims that are time-barred, including the claim of the only named
class representative, which requires reversal on the fourth and
fifth assignments of error and remand to the trial court, and
eliminates the need to address the sixth assignment of error. Given
the change in class definition, the aggregate statutory damages
amount will change and must be reassessed; the Court of Appeals
offers guidance as to how the trial court will need to resolve the
due process issues on remand. It accordingly reverses and remands
for further proceedings.
A full-text copy of the Court's June 28, 2023 Opinion is available
at https://tinyurl.com/4s28znm5 from Leagle.com.
Brad S. Daniels -- brad.daniels@stoel.com -- argued the cause for
the Appellant. Also on the briefs were Timothy W. Snider --
timothy.snider@stoel.com -- Stephen H. Galloway --
stephen.galloway@stoel.com -- and Stoel Rives LLP.
Nadia H. Dahab -- ndahab@stollberne.com -- argued the cause for the
Respondent. Also on the brief were David F. Sugerman --
david@sugermandahab.com -- and Sugerman Law Office; Tim Quenelle --
tim.quenelle@gmail.com -- and Tim Quenelle PC; and Amy Johnson and
Law Offices of Amy R. Johnson.
FCA US: Court Strikes Class Cert Replies from Records in Bledsoe
----------------------------------------------------------------
In the class action lawsuit captioned as JAMES BLEDSOE, et al.,
individually and on behalf of all others similarly situated, v. FCA
US LLC, a Delaware corporation, and CUMMINS INC., an Indiana
corporation, Case No. 4:16-cv-14024-TGB-RSW (E.D. Mich.), the Hon.
Judge Terrence G. Berg entered striking stipulated order regarding
the Plaintiffs' replies to FCA us LLC's and Cummins Inc.'s
Opposition to the Plaintiffs' second amended motion for class
certification.
On June 9, 2023, The Plaintiffs' filed their Reply to FCA US LLC's
Opposition to the Plaintiffs' second amended motion for class
certification and their reply to Cummins Inc.'s Opposition to the
Plaintiffs' second amended motion for class certification. It
subsequently came to the Plaintiffs' attention that both briefs
contain a factually incorrect statement that the Defendants have
not conducted any vehicle inspections.
FCA US designs, engineers, manufactures, and sells vehicles.
A copy of the Court's order dated June 23, 2023, is available from
PacerMonitor.com at https://bit.ly/3PHDdcQ at no extra charge.[CC]
The Plaintiffs are represented by:
Steve W. Berman, Esq.
Garth Wojtanowicz, Esq.
Jerrod C. Patterson, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
E-mail: steve@hbsslaw.com
garthw@hbsslaw.com
jerrodp@hbsslaw.com
- and -
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
Dennis A. Lienhardt, Jr., Esq.
THE MILLER LAW FIRM PC
950 W. University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
E-mail: epm@millerlawpc.com
ssa@millerlawpc.com
- and -
James E. Cecchi, Esq.
Zachary Jacobs, Esq.
CARELLA, BYRNE, CECCHI, OLSTEIN,
BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
E-mail: JCecchi@carellabyrne.com
ZJacobs@carellabyrne.com
- and -
Christopher A. Seeger, Esq.
SEEGER WEISS LLP
77 Water Street
New York, NY 10005
Telephone: (212) 584-0700
E-mail: cseeger@seegerweiss.com
- and -
Paul J. Geller, Esq.
Stuart A. Davidson, Esq.
Mark J. Dearman, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
E-mail: pgeller@rgrdlaw.com
sdavidson@rgrdlaw.com
mdearman@rgrdlaw.com
The Defendant is represented by:
Stephen A. D’Aunoy, Esq.
Carl L. Rowley, Esq.
Thomas L. Azar, Jr., Esq.
THOMPSON COBURN LLP
One US Bank Plaza
St. Louis, MO 63101
Telephone: (314) 552-6000
E-mail: sdaunoy@thompsoncoburn.com
crowley@thompsoncoburn.com
tazar@thompsoncoburn.com
- and -
Jeffrey A. Soble, Esq.
Jonathan W. Garlough, Esq.
Leah R. Imbrogno, Esq.
FOLEY & LARDNER LLP
321 North Clark Street, Suite 2800
Chicago, IL 60654
Telephone: (312) 832-4500
Facsimile: (312) 832-4700
E-mail: jsoble@foley.com
jgarlough@foley.com
limbrogno@foley.com
FILOSADELFIA LLC: McCain Files Suit Over Alleged Tip Skimming
-------------------------------------------------------------
ALICIA MCCAIN, individually and on behalf of all others similarly
situated, Plaintiff v. FILOSADELFIA LLC, d/b/a/ Sin City Cabaret
Nightclub, d/b/a Sin City; KONSTANTINE (GUS) DRAKOPOULOS; and FRANK
ANTONIO, Defendants, Case No. 230700835 (Pa. Com. Pl., Philadelphia
Cty., July 10, 2023) seeks to recover all tips kept by the
Defendants, liquidated damages, interest, and attorneys' fees and
costs.
Plaintiff McCain was employed by the Defendants as an exotic
dancer.
FILOSADELFIA LLC, d/b/a/ Sin City Cabaret Nightclub, d/b/a Sin City
is an adult nightclub. [BN]
The Plaintiff is represented by:
Ryan P. Mccarthy, Esq.
James E. Goodley, Esq.
GOODLEY McCARTHY LLC
1650 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 394-0541
FINGER MANAGEMENT: Fails to Pay Proper Wages, Martinez Alleges
--------------------------------------------------------------
CARLOS JOSE MARTINEZ, individually and on behalf of all others
similarly situated, Plaintiff v. FINGER MANAGEMENT CORP.; PARKVIEW
APARTMENTS, LLC; JOHN VOLANDES; and PETER VOLANDES, Defendants,
Case No. 23-cv-05901 (S.D.N.Y., July 10, 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 Martinez was employed by the Defendants as a
superintendent.
FINGER MANAGEMENT CORP. provides full service property management
for residential, commercial, cooperative & condominium properties.
[BN]
The Plaintiff is represented by:
Meredith R. Miller, Esq.
MILLER LAW, PLLC
167 Madison Avenue, Suite 503
New York, NY 10016
Telephone: (347) 878-2587
Email: meredith@millerlaw.nyc
FRUIT OF THE EARTH: Kenney Appeals Claims Dismissal to 9th Cir.
---------------------------------------------------------------
Plaintiff ANN KENNEY filed an appeal from the District Court's
Order dated June 2, 2023 entered in the lawsuit entitled ANN
KENNEY, individually and on behalf of all others similarly
situated, Plaintiff v. FRUIT OF THE EARTH, INC.; and CVS PHARMACY,
INC., Defendants, Case No. 3:21-cv-01016-JLS-MSB, in the U.S.
District Court for the Southern District of California, San Diego.
As reported in the Class Action Reporter, the complaint, filed on
May 27, 2021, is an action alleging that the Defendant falsely
labeled the CVS Health Clear Zinc Sun Lotion in 2.0 fluid oz. and
the CVS Health Clear Zinc Lotion in 4.0 fluid oz. The Plaintiff
asserts in the complaint that to obtain an unfair competitive
advantage in the billion-dollar sunscreen market, the Defendants
are exposing consumers to harmful chemical active ingredients
hidden in their sunscreens by fraudulently passing them off as safe
mineral active ingredients. The Defendants have reaped many
millions of dollars through this alleged fraudulent scheme based on
a calculated business decision to put profits over people.
Specifically, the Defendants falsely and misleadingly label certain
of their Sunscreen Products as "Clear Zinc Sun Lotion".
On June 1, 2023, Plaintiff Kenney filed a Joint MOTION to Dismiss
and Stipulation to Dismiss which the Court granted the following
day through an Order entered by Judge Jinsook Ohta. Specifically,
the Court ordered that:
- Plaintiff's claims for legal remedies under the third cause of
action for violation of the California Consumers Legal Remedies Act
and fourth cause of action for breach of warranty are dismissed
with prejudice; and
- Plaintiff and Defendants have waived their respective rights, if
any, to recover attorneys' fees and costs exclusively incurred in
the prosecution or defense of Plaintiff's claims for legal remedies
under the CLRA and/or for breach of warranty.
The appellate case is captioned as Ann Kenney v. Fruit of the
Earth, Inc., et al., Case No. 23-55583, in the United States Court
of Appeals for the Ninth Circuit, filed on July 3, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Ann Kenney Mediation Questionnaire was due on July
10, 2023;
-- Appellant Ann Kenney opening brief is due on August 29,
2023;
-- Appellees CVS Pharmacy, Inc. and Fruit of the Earth, Inc.
answering brief is due on September 28, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant ANN KENNEY, individually and on behalf of all
others similarly situated, is represented by:
Katherine Elinor Bruce, Esq.
CADES SCHUTTE, LLP
1000 Bishop Street, Suite 1200
Honolulu, HI 96813
Telephone: (808) 521-9200
- and -
Ryan Clarkson, Esq.
Glenn A. Danas, Esq.
Katelyn Leeviraphan, Esq.
CLARKSON LAW FIRM, PC
22525 Pacific Coast Highway
Malibu, CA 90265
Telephone: (213) 788-4050
Defendants-Appellees FRUIT OF THE EARTH, INC., et al, are presented
by:
Hannah Beth Shanks-Parkin, Esq.
Ricky L. Shackelford, Esq.
GREENBERG TRAURIG, LLP
1840 Century Park, E, Suite 1900
Los Angeles, CA 90067
Telephone: (310) 586-7794
HAIR CLUB: Zapata Labor Code Suit Removed to E.D. California
------------------------------------------------------------
The case styled LAURA ZAPATA, individually and on behalf of all
others similarly situated v. HAIR CLUB FOR MEN, LLC and DOES 1-100,
inclusive, Case No. STK-CV-UOE-2023-0004251, was removed from the
Superior Court of the State of California for San Joaquin County to
the U.S. District Court for the Eastern District of California on
July 5, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:23-cv-01298-DB to the proceeding.
The case arises from the Defendants' violations of the California
Labor Code including failure to pay proper wages and overtime
compensation, failure to pay meal and rest break premiums at the
proper regular rate of pay, failure to provide and maintain
accurate wage statements, failure to provide meal periods, failure
to provide rest breaks, and failure to reimburse expenses.
Hair Club for Men, LLC is a provider of hair loss treatment
solutions, doing business in California. [BN]
The Defendant is represented by:
Justin T. Curley, Esq.
SEYFARTH SHAW LLP
560 Mission Street, 31st Floor
San Francisco, CA 94105
Telephone: (415) 397-2823
Facsimile: (415) 397-8549
E-mail: jcurley@seyfarth.com
- and -
Reiko Furuta, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
E-mail: rfuruta@seyfarth.com
HEALTH CARE SERVICE: Court Dismisses Smith Suit Without Prejudice
-----------------------------------------------------------------
Judge Susan P. Watters of the U.S. District Court for the District
of Montana, Billings Division, dismisses without prejudice the
lawsuit styled VICTORIA SMITH, on behalf of herself and all others
similarly situated, Plaintiffs v. HEALTH CARE SERVICE CORPORATION,
and JOHN DOES 1-10, Defendants, Case No. CV 22-50-BLG-SPW (D.
Mont.).
Before the Court are United States Magistrate Judge Kathleen
DeSoto's Findings and Recommendation, filed March 7, 2023. Judge
DeSoto recommends the Court grant the Motion to Dismiss filed by
Defendant Health Care Service Corporation, doing business as Blue
Cross Blue Shield of Montana, ("Blue Cross"), pursuant to Federal
Rule of Civil Procedure 12(b)(6). Plaintiff Victoria Smith timely
objected to the Findings and Recommendation.
After a careful review of the filed objections and Blue Cross's
response, the Court rejects the legal standard applied by Judge
DeSoto, adopts her recommendation that the case be dismissed, and
rejects her recommendation that the case be dismissed with
prejudice. Accordingly, the Court construes Blue Cross's motion as
challenging subject matter jurisdiction under Rule 12(b)(1), grants
the motion, and orders the case to be dismissed without prejudice.
The parties do not object to Judge DeSoto's recitation of the facts
of the case. The Court, therefore, adopts Judge DeSoto's recitation
of the facts and reiterates only those necessary to its analysis of
Smith's objections.
Ms. Smith received total hip replacement surgery in 2004. The
replacement eventually failed, and she underwent a second hip
replacement surgery in May 2018. Blue Cross paid for the medical
expenses from the May 2018 surgery.
After her second surgery, Smith sued the manufacturer of her
prosthetic hip replacement. Her case "resolved" in April 2021. On
Feb. 11, 2022, Smith's attorney wrote a letter to Blue Cross's
subrogation vendor, the Rawlings Company ("Rawlings"), to obtain
information about a potential Blue Cross lien. Rawlings responded
on February 15 with a four-page summary of the $42,245.56 in
medical expenses paid by Blue Cross on behalf of Smith.
Ms. Smith filed this putative class action in state court on March
2, 2022, and Blue Cross removed the case to this Court on May 23,
2022, based on diversity jurisdiction pursuant to 28 U.S.C.
Sections 1332, 1441. She sought three claims for relief. First, she
requested a declaratory ruling that Blue Cross may not subrogate
before Smith and all class members "have been made whole and
without conducting a made whole analysis." She argued that the
February 15 letter from Rawlings constituted an assertion of Blue
Cross's subrogation lien prior to its undertaking of a made whole
analysis and to Smith being fully compensated, contrary to Montana
law. Smith presented two other counts, which she does not discuss
in her objections.
The Plaintiff lodges two objections: (1) Judge DeSoto failed to
construe evidence in a light most favorable to her in determining
that Blue Cross did not assert a subrogation lien against Smith;
and (2) Judge DeSoto's recommendation that the case be dismissed
with prejudice is contrary to law.
The Court finds that the first objection is proper and reviews
Judge DeSoto's analysis of the matter de novo. However, her second
objection is improper because Smith had the opportunity to argue it
to Judge DeSoto in response to Blue Cross's argument in its opening
brief but failed to do so. Thus, the Court reviews Judge DeSoto's
analysis of the matter for clear error. Smith did not object to
Judge DeSoto's recommendations on the declaratory judgment and
insurance bad faith claims, so the Court will also review those
recommendations for clear error.
The Court also takes issue with Judge DeSoto's application of the
Rule 12(b)(6) standard, based on Blue Cross's filing of its motion
pursuant to Rule 12(b)(6), because Blue Cross invokes subject
matter jurisdiction concepts in briefing.
Blue Cross moved to dismiss Smith's Complaint on the grounds that
she failed to state a claim for relief, pursuant to Rule 12(b)(6).
Based on Blue Cross's characterization of its motion as pursuant to
Rule 12(b)(6) motion, Judge DeSoto applied the legal standard for a
Rule 12(b)(6) in recommending that the Court grant Blue Cross's
motion and dismiss Smith's case with prejudice.
Ms. Smith argues in her second objection concerning dismissal with
or without prejudice that Blue Cross relies on a subject matter
jurisdiction concept -- ripeness -- as the basis for its motion,
despite filing its motion to dismiss under Rule 12(b)(6).
Curiously, Judge Watters notes, Smith does not object to the legal
standard applied by Judge DeSoto and did not argue in initial
briefing that Blue Cross's motion should be construed as a Rule
12(b)(1) challenge. Smith also did not argue to Judge DeSoto that
the case should be dismissed without prejudice because it concerned
ripeness; rather, she only argued that amendment of her complaint
would not be futile.
Judge Watters opines that when an asserted claim is unripe, there
is no actual claim, and thus, no case or controversy, for the Court
to adjudicate, so the complaint must be dismissed.
The Court finds Judge DeSoto erred in failing to construe Blue
Cross's motion as a challenge to subject matter jurisdiction under
Rule 12(b)(1). Judge Watters explains that the core of this case is
whether Blue Cross prematurely "asserted" its subrogation rights
against Smith. Blue Cross's chief argument is that it has not yet
asserted those rights, and, therefore, Smith's contention that Blue
Cross prematurely did so is "hypothetical."
Based on the facts in the Complaint, Judge Watters says Blue Cross
still could, in theory, prematurely assert its subrogation rights
against Smith. Or, it could properly assert them after Smith has
been fully compensated for her damages, and negate the basis for
Smith's lawsuit. Put another way, Judge Watters explains, Blue
Cross argues that Smith asks the Court to litigate contingent
future events that may not occur as anticipated, or indeed may not
occur at all. In fact, Blue Cross describes Smith's claim as "not
ripe." Judge Watters finds that Blue Cross's motion bears the
badges of ripeness, so it is properly construed as a Rule 12(b)(1)
motion.
Because Blue Cross's motion is actually one challenging ripeness
and is, therefore, a Rule 12(b)(1) motion, Judge Watters opines
that the legal standard applicable to Rule 12(b)(6) motions --
namely that the Court must construe the facts in the light most
favorable to the plaintiff and cannot undertake factfinding -- is
not applicable. Instead, no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims. The Court also may resolve
factual disputes where necessary, contrary to Smith's argument in
her objection.
Further, Judge DeSoto's determinations were purely legal, Judge
Watters notes. Judge DeSoto did not resolve any factual disputes,
of which there are none. Rather, she applied undisputed facts to
the law to determine whether the facts constituted an assertion of
a subrogation lien.
Accordingly, the Court overrules Smith's objection and adopts Judge
DeSoto's finding that Blue Cross did not assert its subrogation
lien against her.
Ms. Smith did not object to Judge DeSoto's recommendations on the
declaratory judgment and insurance bad faith claims. The Court does
not find Judge DeSoto committed clear error and adopts her
recommendations on these issues in full.
Ms. Smith next objects that Judge DeSoto improperly recommended
that the case be dismissed with prejudice. Smith argues that Blue
Cross's exclusive argument for dismissal rests on jurisdictional
grounds, namely ripeness.
Putting aside the paradox created by Smith's simultaneous assertion
of this jurisdictional argument and those relying on the standards
for Rule 12(b)(6) motions, the Court agrees. As stated, Blue
Cross's motion is properly construed as made under Rule 12(b)(1).
Under Rule 12(b)(1), ripeness challenges must be dismissed without
prejudice because they may ripen and be proper for adjudication in
the future. Thus, the Court sustains Smith's objection and rejects
Judge DeSoto's recommendation that the case be dismissed with
prejudice.
For these reasons, the Court finds that Judge DeSoto (1) applied
the incorrect legal standard, (2) correctly found that Blue Cross
did not assert a subrogation claim against Smith as a matter of law
and that dismissal of her case is proper, and (3) incorrectly
concluded that dismissal should be with prejudice. Analyzing the
Findings and Recommendation under Rule 12(b)(1), the Court finds
dismissal of this case without prejudice is proper.
Judge Watters, therefore, holds that Judge DeSoto's Findings and
Recommendation are adopted in part and rejected in part. Blue
Cross's Motion to Dismiss is granted and this matter is dismissed
without prejudice. The Clerk of Court is directed to enter judgment
in favor of Blue Cross and close this matter.
A full-text copy of the Court's Order dated June 26, 2023, is
available at https://tinyurl.com/2rv5zrdj from Leagle.com.
JCK AMERICAN: Khokhar Sues Over Truck Drivers' Unpaid Wages
-----------------------------------------------------------
SACHIN KHOKHAR, on behalf of himself and others similarly situated,
Plaintiff v. J C K AMERICAN TRANSPORT, INC., and AZAD PAWAR,
Defendants, Case No. 3:23-cv-01211-JLS-DDL (S.D. Cal., June 30,
2023) arises from the Defendants' alleged unlawful labor policies
and practices in violation of the California Labor Code and the
Fair Labor Standards Act.
The complaint asserts Defendants' failure to pay minimum wage,
failure to pay overtime, failure to timely pay wages due and owing
upon termination of employment, failure to furnish accurate
itemized wage statements, breach of oral contract, failure to
provide personnel files, and engagement in unfair competition.
The Plaintiff was employed by Defendants from May 3, 2022 through
September 21, 2022 as a truck driver.
J C K American Transport, Inc. is a freight shipping trucking
company.[BN]
The Plaintiff is represented by:
Tiffany Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 110
Flushing, NY 11355
Telephone: (718) 762-1324
Facsimile: (718) 762-1342
E-mail: troylaw@troypllc.com
- and -
C. Douglass Thomas, Esq.
TECHNOLOGY & INNOVATION LAW GROUP, P.C.
1055 E Brokaw Road Suite 30-355
San Jose, CA 95131
Telephone: (866) 535-2006
Facsimile: (866) 535-2006
E-mail: dthomas@tipatents.com
KIMBERLY CLARK CORP: Whiteside Appeals Case Dismissal Ruling
------------------------------------------------------------
Plaintiff SUMMER WHITESIDE filed an appeal from the District
Court's Order dated June 1, 2023 entered in the lawsuit entitled
SUMMER WHITESIDE, individually and on behalf of all others
similarly situated, Plaintiff v. KIMBERLY-CLARK CORP., Defendant,
Case No. 5:22-cv-01988, in the United States District Court for the
Central District of California.
According to the complaint, in an effort to increase profits and to
obtain an unfair advantage over its lawfully acting competitors,
the Defendant falsely and misleadingly labels certain of its
Huggies brand wipe products with the following claims: "Plant-based
wipes" and "natural care" deliberately leading reasonable
consumers, including Plaintiff, to incorrectly believe that the
products are composed of only water, natural ingredients, and
ingredients that come from plants and that have not undergone
substantial processing. The Defendant's conduct violated the
California's Unfair Competition Law, the False Advertising Law, and
the Consumers Legal Remedies Act, says the suit.
On January 30, 2023, the Defendant filed a MOTION to dismiss the
case for lack of jurisdiction which the Court granted on June 1
through an Order signed by Judge Jesus G. Bernal.
The appellate case is captioned as Summer Whiteside v. Kimberly
Clark Corp., Case No. 23-55581, in the United States Court of
Appeals for the Ninth Circuit, filed on July 3, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Summer Whiteside Mediation Questionnaire was due on
July 10, 2023;
-- Appellant Summer Whiteside opening brief is due on August 29,
2023;
-- Appellee Kimberly Clark Corp. answering brief is due on
September 28, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant, SUMMER WHITESIDE, individually and on behalf
of all others similarly situated, is represented by:
Ryan Clarkson, Esq.
Glenn A. Danas, Esq.
Katelyn Leeviraphan, Esq.
CLARKSON LAW FIRM, PC
22525 Pacific Coast Highway
Malibu, CA 90265
Telephone: (213) 788-4050
- and -
Zachary Crosner, Esq.
CROSNER LEGAL, P.C.
9440 Santa Monica Boulevard, Suite 301
Beverly Hills, CA 90210
Telephone: (866) 276-7637
Defendant-Appellee KIMBERLY CLARK CORP. is represented by:
Andrew Michael Kasabian, Esq.
GIBSON, DUNN & CRUTCHER, LLP
3161 Michelson Drive, Suite 1200
Irvine, CA 92612-4412
Telephone: (949) 451-4341
- and -
Timothy William Loose, Esq.
GIBSON, DUNN & CRUTCHER, LLP
333 S Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7746
LMND MEDICAL: Marden Sues Over Unlawful Disclosure of Personal Info
-------------------------------------------------------------------
MATTHEW MARDEN and MICHELLE IGOE, individually and on behalf of all
others similarly situated, Plaintiff v. LMND MEDICAL GROUP, INC.,
d/b/a LEMONAID HEALTH, a California Professional Corporation, LMND
MEDICAL GROUP, a Kansas Professional Association, LMND MEDICAL
GROUP, a New Jersey Professional Corporation, and LMND MEDICAL
GROUP, a Texas Professional Association, Defendants, Case No.
3:23-cv-03288 (N.D. Cal., June 30, 2023) is a class action against
the Defendants for negligence, invasion of privacy, breach of
confidence, unjust enrichment, and violations of the Electronics
Communication Privacy Act, the California Invasion of Privacy Act,
the California Confidentiality of Medical Information Act, the
California Customer Records Act, the Massachusetts Data Breach
Statute, and the Massachusetts Consumer Protection Act.
This is a class action lawsuit for damages and injunctive relief
arising from Defendants' alleged unlawful practice of disclosing
Plaintiffs' and Class members' individually identifiable health
information and protected health information to unauthorized third
parties including, but not limited to, Meta Platforms, Inc. d/b/a
Meta, Google LLC, and TikTok Inc., referred to herein as Pixel
Information Recipients.
According to the complaint, Defendants installed and implemented
"pixels" and similar tracking technologies on their website at
https://www.lemonaidhealth.com/ such as those made available by the
Pixel Information Recipients. Invisible to the naked eye, each of
the Pixels collect and transmit information from the user's browser
to the corresponding Pixel Information Recipient as the user enters
information into the website. The Pixels secretly enable the
unauthorized transmission and disclosure of Plaintiffs' and Class
Members' IIHI and PHI by Defendants, says the suit.
The Plaintiffs allege Defendants breached their obligations to
Plaintiffs and the Class members in one or more of the following
ways: (i) failing to adequately review its marketing programs and
web-based technology to ensure the website was safe and secure;
(ii) failing to remove or disengage technology that was known and
designed to share patients' private information; (iii) failing to
obtain the consent of patients, including Plaintiffs and Class
members, to disclose their private information to Facebook or
others; (iv) failing to take steps to block the transmission of
Plaintiffs' and Class members' private information through the
Pixels and Conversions API; (v) failing to warn Plaintiffs and
Class members of such sharing and disclosures; (vi) otherwise
failing to design and monitor the website to maintain the
confidentiality and integrity of Plaintiffs' and other patients'
private information.
LMND Medical Group, Inc. is a primary care services provider
headquartered in San Francisco, California.[BN]
The Plaintiffs are represented by:
Matthew A. Smith, Esq.
MIGLIACCIO & RATHOD LLP
201 Spear St., Ste 1100
San Francisco, CA 94105
Telephone: (415) 489-7004
E-mail: msmith@classlawdc.com
- and -
Nicholas Migliaccio, Esq.
Jason Rathod, Esq.
Bryan G. Faubus, Esq.
MIGLIACCIO & RATHOD LLP
412 H St. NE
Washington, DC 20002
Telephone: (202) 470-3520
Facsimile: (202) 800-2730
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
bfaubus@classlawdc.com
LUCKY NAIL: Files Fraudulent Tax Returns, Zhuang Suit Alleges
-------------------------------------------------------------
SAI E. ZHUANG, individually and on behalf of all others similarly
situated, Plaintiff v. LUCKY NAIL SPA, INC.; JIAN JIAN HAN; and
RONGGAI YANG, Defendants, Case No. 1:23-cv-05118 (E.D.N.Y., July 5,
2023) is a class action against the Defendants for filing
fraudulent tax information returns in violation of the U.S.
Internal Revenue Code.
The Plaintiff was employed by the Defendants as a general worker
from on or about April 1, 2017, until March 16, 2021.
Lucky Nail Spa, Inc. is an owner and operator of a nail salon, with
a principal address at 266 Atlantic Avenue, East Rockaway, New
York. [BN]
The Plaintiff is represented by:
John Troy, Esq.
Aaron Schweitzer, Esq.
Tiffany Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Blvd., Suite 110
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: TroyLaw@TroyPllc.com
MAVERICK TRANSPORTATION: Court Refuses to Dismiss Lewis BIPA Suit
-----------------------------------------------------------------
Chief District Judge Nancy J. Rosenstengel of the U.S. District
Court for the Southern District of Illinois denies the motion to
dismiss the lawsuit entitled JOSHUA LEWIS, individually and on
behalf of all others similarly situated, Plaintiff v. MAVERICK
TRANSPORTATION LLC, and LYTX, INC., Defendants, Case No.
3:22-cv-46-NJR (S.D. Ill.).
On Nov. 17, 2021, Plaintiff Lewis filed a Class Action Complaint
against Maverick and Lytx in the Third Judicial Circuit of Madison
County, Illinois. Lewis was employed with Maverick as a truck
driver.
Lytx is a video telematics and fleet management systems corporation
based out of San Diego, California, and provides video and
analytics services to the transportation industry. One of the
products Lytx provides to customers is the SF-300 DriveCam. The
DriveCam records video of the inside of trucks to monitor drivers.
According to Lewis, the DriveCam scans the driver's face geometry
and harnesses those biometric data points by feeding them into
sophisticated algorithms that identify the driver's actions, in
what amount to constant AI surveillance. In 2020, Maverick
contracted with Lytx to install the DriveCam technology into its
trucks. Lewis alleges his truck was retrofitted with Lytx's
DriveCam technology around October 2020.
Mr. Lewis alleges that Maverick and Lytx violated the Illinois
Biometric Information Privacy Act (BIPA). Specifically, he alleges
Lytx violated sections 15(a), 15(b), and 15(c) of BIPA. Under BIPA,
a private entity must establish and make publicly available a
protocol for retaining and handling biometric data. This data must
be destroyed "when the initial purpose for collecting or obtaining
such identifiers or information has been satisfied or within 3
years of the individual's last interaction with the private entity,
whichever occurs first."
On Jan. 10, 2022, Maverick and Lytx removed the case to this Court,
asserting that the Court has subject matter jurisdiction pursuant
to 28 U.S.C. Sections 1332, 1441, and 1446. Specifically, the
Defendants assert that the Court has original jurisdiction over
this matter pursuant to the Class Action Fairness Act ("CAFA").
After removing, Defendant Lytx sought five extensions to
responsively plead--and, as a result, this action was delayed from
January 2022 to June 2022. Then, on June 24, 2022, Lytx filed its
Motion to Sever Claims and Transfer to the Northern District of
Illinois, or Alternatively to Stay this Action--noting that in more
than eight months since the Cavanaugh Action was filed, the case
has progressed significantly.
On Dec. 5, 2022, the Court denied the Motion to Sever Claims and
Transfer to the Northern District of Illinois, or Alternatively to
Stay this Action. Lytx then filed a Motion to Dismiss.
Lytx argues that BIPA requires the Plaintiff to plead that data
derived from Lytx's DriveCam device is used to identify someone.
Lytx notes that biometric information must be both "based on an
individual's biometric identifier" and "used to identify an
individual." Lytx's argument follows that the Plaintiff does not
plausibly plead that a "scan of face geometry" was used to identify
him.
According to Lytx, the Plaintiff's allegations focus on the
DriveCam device's ability to monitor drivers' actions and
behaviors. Also, Lytx asserts the Plaintiff does not allege that he
provided Lytx with any information--like his name or address--that
could connect an alleged scan of his face geometry with his
identity.
The Court did not observe that the purpose of BIPA is to ensure how
an individual's data is used. Instead, Judge Rosenstengel opines,
the text of the statute demonstrates that its purpose is to ensure
that consumers understand, before providing their biometric data,
how that information will be used, who will have access to it, and
for how long it will be retained.
Accordingly, the Court finds that BIPA does not require Lewis to
plead that the data collected by Lytx is used to identify him.
For these reasons, Judge Rosenstengel denies the Motion to Dismiss
filed by Lytx. The action will proceed on all of Lewis's claims.
A full-text copy of the Court's Memorandum and Order dated June 26,
2023, is available at https://tinyurl.com/2p8ep2mj from
Leagle.com.
MDL 3075: Court Transfers 7 Suits to Food Photos Copyright Row
--------------------------------------------------------------
In the multi-district litigation captioned "In re: Prepared Food
Photos, Inc., Copyright Litigation," MDL No. 3075, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation, transfers two cases each from the U.S. District Court
for the Middle District of Florida, District of Maryland and the
Southern District of New York, and one from the Southern District
of Florida, all to the Middle District of Florida and, with the
consent of that court, assigned to Judge Mary S. Scriven for
coordinated or consolidated pretrial proceedings.
Defendant MyPizza Technologies, Inc. (Slice) and Southern District
of New York defendant Angelo's Pizza of Poughkeepsie, Inc., moved
to centralize the seven copyright infringement actions to the
Middle District of Florida. Common plaintiff Prepared Food Photos,
Inc., opposes centralization and, alternatively, suggests a
Southern District of Florida transferee forum. All actions can be
expected to share factual questions arising from alleged violations
of the Copyright Act by Slice, which provides independent pizzerias
an online ordering platform, automated marketing, and other
app-based services, and certain local pizzerias for their alleged
use of copyrighted photos that were owned by plaintiff Prepared
Food Photos. In each action before the panel, plaintiff brings
claims against Slice and local restaurants for direct and
contributory infringement, seeking actual damages and disgorgement
of profits or up to $150,000 for each instance of alleged
infringement, as well as attorneys' fees and costs.
Plaintiff Prepared Food Photos argued that movants did not
meaningfully discuss informal coordination and that centralization
would be inconvenient for the local defendants. Plaintiff
reportedly rejected efforts to cooperatively bring all cases to a
single district and the alternatives plaintiff proposes:
cross-noticing depositions, agreeing to avoid duplication in
discovery and somehow consolidating motion practice on common
issues, do not appear adequate in these circumstances, as these
cases against common defendant Slice will remain pending in four
districts before six judges. Plaintiff's estimates of future case
filings have ranged from 21 to 75 cases. Even at the low end of
that estimate, informally coordinating so many cases would be a
challenge, notes the panel.
The panel further finds the Plaintiff's convenience arguments
equally unavailing. Aside from plaintiff, no other party has
opposed centralization. Common defendant Slice, the web and app
platform to which the photos allegedly were posted without
authorization--likely is the primary source of discovery among all
actions. Litigating in a single district before one judge will be
convenient for both Prepared Food Photos and Slice. The Middle
District of Florida is the appropriate transferee district for
these cases since plaintiff Prepared Food Photos is based in this
district, adds the panel.
A full-text copy of the court's June 5, 2023 order is available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3075-Transfer_Order-5-23.pdf
MERRILL LYNCH: Court Won't Reconsider Exclusion of Officer Opinion
------------------------------------------------------------------
In the case, SARAH VALELLY, on behalf of herself, individually, and
on behalf of all others similarly situated, Plaintiff v. MERRILL
LYNCH, PIERCE, FENNER & SMITH INC., Defendant, Case No. 19-CV-7998
(VEC) (S.D.N.Y.), Judge Valerie Caproni of the U.S. District Court
for the Southern District of New York denies the Plaintiff's motion
for reconsideration of the Court's order granting the Defendant's
motion to exclude Dr. Micah Officer's opinion and testimony.
The putative class action involves the "sweep" feature of Merrill
Edge Self-Directed Investing Accounts. The sweep feature allowed
Defendant to move automatically the Plaintiff's uninvested cash
into a Bank of America money market account. In support of the
Plaintiff's motion for class certification, the Plaintiff proffered
the opinion of Dr. Officer. On March 21, 2023, the Court granted
the Defendant's motion to exclude Dr. Officer's opinion and
testimony. On April 4, 2023, the Plaintiff filed a motion for
reconsideration.
In August 2017, Valelly opened three accounts at Merrill Lynch: (i)
a Cash Management Account ("CMA"); (ii) a Roth Individual
Retirement Account ("Roth IRA"); and (iii) a Traditional Individual
Retirement Account ("Traditional IRA"). The Client Relationship
Agreement ("CRA"), which governs all three accounts, contained a
so-called "reasonable rate" provision, pursuant to which the
Defendant was obligated to pay no less than a reasonable rate of
interest on the uninvested cash held in the Plaintiff's retirement
accounts.
The Plaintiff alleges that the Defendant breached the CRA by
failing to pay a reasonable interest rate on her swept cash (the
"Reasonable Rate Claim"). She also alleges that the Defendant
breached the implied covenant of good faith and fair dealing by
failing to consider her retirement accounts "linked;" had the
accounts been linked, she would have earned a higher interest rate
on the swept cash (the "Statement-Linking Claim").
On March 4, 2022, the Plaintiff disclosed to the Defendant that she
would rely on an expert report prepared by Dr. Officer in support
of her motion for class certification. She engaged Dr. Officer as a
finance consultant to opine on "two related questions," both of
which he answered in the affirmative: (1) whether there is "a
valid, common methodology to calculate damages on a class-wide
basis," and (2) whether it is "possible to determine a reasonable
interest rate that would apply to the uninvested cash in the
retirement accounts of the class-members." Dr. Officer was not
asked to provide the exact reasonable interest rate for estimating
damages, but rather to discuss some of the potential rates that
could be used to calculate damages for all investors in the
proposed class.
The Plaintiff's Merrill Lynch brokerage accounts are covered by the
Defendant's Retirement Asset Savings Program ("RASP"). The
Defendant categorized RASP accounts into four tiers based on the
account holder's total assets under management ("AUM"). An account
holder's AUM reflects the sum of the assets in each of the account
holder's "statement-linked" accounts. The interest rate paid on
cash in the sweep account varied depending on the AUM: the higher
the AUM, the higher the interest rate paid to the account holder.
In his report, Dr. Officer concluded that a common methodology
exists for calculating damages: the difference between (i) how much
an account holder was actually paid on their cash in the sweep
program, and (ii) how much they should have received had they been
paid a `reasonable' rate on their cash that was in the sweep
program. She further opined that ascertaining damages on the
Plaintiff's Statement-Linking Claim would require a mere arithmetic
calculation to determine the higher rate of interest available
under statement-linking for each investor in the class compared to
the actual rate of interest paid without regard to
statement-linking.
Each of Dr. Officer's proposed damages formulas required a
determination of what constitutes a "reasonable" rate of interest
with respect to RASP accounts. Dr. Officer discussed two potential
models for determining a "reasonable" rate of interest: (1) BANA's
previously used "pass-through" model; or (2) "market alternative"
rates -- specifically, rates paid by Treasury and Government Money
Market Mutual Funds ("MMF" or "MMFs"), which BANA purportedly
viewed as "highly substitutable with bank deposits as a sweep
option" for customers. The Defendant argued that Dr. Officer's
testimony and report were inadmissible because his proposed
methodologies for determining a reasonable rate of interest failed
to offer any real expert analysis for how to determine a
"reasonable" rate. The Court agreed.
The Plaintiff urges the Court to reconsider its decision to exclude
Dr. Officer's report and testimony. She argues that the Court
improperly considered a question that goes to the merits of the
underlying action, rather than treating Dr. Officer's report and
opinion as limited to answering whether predominance is satisfied
— i.e., whether damages could be calculated on a class-wide
basis.
The Plaintiff also argues that the Court erred in holding as a
matter of law, that government MMF rates are not proper comparators
to deposit rates for swept cash. Alternatively, she seeks
clarification on the scope of its ruling: whether the Court has
ruled as a matter of law that evidence that (i) the interest rates
paid by the Defendant's competitors on MMF sweep accounts and (ii)
the interest rates derived through the pass-through model are not
relevant to determining whether Merrill's sweep rates were
reasonable, or, rather, whether the Court was only striking
Officer's Report with respect to class certification. The Defendant
opposes the motion.
Judge Caproni denies the Plaintiff's Motion for Reconsideration.
She opines that in a class motion, Dr. Officer was only required to
demonstrate that the determination of a reasonable rate can be made
on a class-wide basis consistent with the Plaintiff's theory of
liability. Judge Caproni does not disagree with that statement. But
she did not resolve a motion for class certification. She reviewed
Dr. Officer's expert report and opinions and determined whether
they met the standard for admissibility under Federal Rule of
Evidence 702 and Daubert. The Plaintiff has not identified any
intervening change of controlling law, new evidence, or any clear
error in the Court's decision to exclude Dr. Officer's opinion and
testimony.
The Plaintiff alternatively asks the Court to clarify the scope of
its holding in the Daubert opinion. She insists that the Court
should at a minimum clarify that it accepts Officer's report that a
government MMF is as secure, if not more secure, than a bank
deposit account, and whether MMFs and FDIC-insured accounts are
comparable instruments is a jury question that should await trial.
These issues were discussed at length in the Court's Daubert
opinion and re-articulated in the present Opinion; to the extent
the Plaintiff suggests any ambiguity at all, Judge Caproni's
discussion should suffice to clarify the scope of her ruling.
Otherwise, she denies the Plaintiff's motion for clarification.
For the reasons she stated, Judge Caproni denies the Plaintiff's
motion for reconsideration. The Clerk of Court is respectfully
directed to terminate the open motion at docket entry 159.
A full-text copy of the Court's June 28, 2023 Opinion is available
at https://tinyurl.com/279xk8z5 from Leagle.com.
NASSAU COUNTY, NY: Madson Sues Over Improper Block Fee Collection
-----------------------------------------------------------------
JOHN MADSON, individually and on behalf of all other similarly
situated, v. COUNTY OF NASSAU; and NASSAU COUNTY DEPARTMENT OF
ASSESSMENTS, Defendants, Case No. 610853/20223 (N.Y. Sup., Nassau
Cty., July 10, 2023) is a class action lawsuit against the
Defendants seeking redress and reimbursement for the millions of
dollars in "fees" paid by the Plaintiff and other similarly
situated residents of the County pursuant to Section 19-17.0 of the
Nassau County Administrative Code, which requires that any person
presenting an instrument to the Nassau County Clerk for recording
and indexing or for the satisfaction or cancellation of a lien and
the indexing of such satisfaction or cancellation, pay the sum of
$300 "for each block under which such instrument is required to be
indexed."
The Plaintiff alleges in the complaint that the Block Fee is
excessive and not reasonably necessary to maintain the County's
real property registry and bears no correlation to the benefits
conferred upon those residents making the payments. Additionally,
the revenue generated from the Block Fee is used by the County for
general revenue purposes and therefore constitutes an unlawful tax,
says the Plaintiff.
COUNTY OF NASSAU is an affluent inner suburban county located on
Long Island, immediately to the east of New York City. [BN]
The Plaintiff is represented by:
Jason S. Giaimo, Esq.
Lee S. Shalov, Esq.
McLAUGHLIN & STERN, LLP
260 Madison Avenue
New York, NY 10016
Telephone: (212) 448-1100
Email: jgiaimo@mclaughlinstern.com
lshalov@mclaughlinstern.com
NEW HORIZONS: Fails to Safeguard Patients' Info, Murray Claims
--------------------------------------------------------------
ANDREA MURRAY, individually and on behalf of all others similarly
situated, Plaintiff v. NEW HORIZONS MEDICAL, INC., Defendant, Case
No. 1:23-cv-11501 (D. Mass., July 5, 2023) is a class action
against the Defendant for negligence, breach of implied contract,
breach of the implied covenant of good faith and fair dealing, and
unjust enrichment.
The case arises from the Defendant's failure to properly secure and
safeguard the protected health information and personally
identifiable information of the Plaintiff and similarly situated
patients stored within its system following a data breach on
February 12, 2023. The Defendant also failed to timely notify the
Plaintiff and similarly situated individuals about the data breach.
As a result, the PII and PHI of the Plaintiff and Class members
were compromised and damaged through access by and disclosure to
unknown and unauthorized third parties, says the suit.
New Horizons Medical, Inc. is a healthcare services provider, with
its principal place of business at 214 Howard Street, Framingham,
Massachusetts. [BN]
The Plaintiff is represented by:
James J. Reardon, Esq.
REARDON SCANLON LLP
45 South Main Street, 3rd Floor
West Hartford, CT 06107
Telephone: (860) 955-9455
Facsimile: (860) 920-5242
E-mail: james.reardon@reardonscanlon.com
- and -
Kevin Laukaitis, Esq.
LAUKAITIS LAW LLC
954 Avenida Ponce De Leon, Suite 205, #10518
San Juan, PR 00907
Telephone: (215) 789-4462
E-mail: klaukaitis@laukaitislaw.com
NHS MANAGEMENT: Court Directs Griggs to Amend Complaint by July 21
------------------------------------------------------------------
In the lawsuit entitled SHYMIKKA GRIGGS, Plaintiff v. NHS
MANAGEMENT LLC, Defendant, Case No. 2:22-cv-00565-RDP (N.D. Ala.),
Judge R. David Proctor of the U.S. District Court for the Northern
District of Alabama, Southern Division, directs the Plaintiff to
file an amended complaint by July 21, 2023, to establish
jurisdiction under the Class Action Fairness Act.
The case arises from a "sophisticated cyberattack" perpetrated
against Defendant NHS Management, LLC ("NHS") between Feb. 25,
2021, and March 16, 2021. NHS is a limited liability company
established in 2002 under Delaware law that maintains its principal
place of business in Alabama. It provides management and consulting
services for nursing homes and physical rehabilitation facilities
located in Alabama (35 facilities), Arkansas (5 facilities),
Florida (5 facilities), and Missouri (5 facilities). Plaintiff
Shymikka Griggs is an Alabama citizen and former NHS employee.
On April 4, 2022, NHS notified the Plaintiff that her personal
information was accessed during the 2021 data breach. The accessed
information included her name, date of birth, Social Security
number, medical information, and health insurance information. She
says the personal information of over 500 individuals was exposed
during the data breach. This included NHS employees and vendors, as
well as patients and residents of the facilities NHS serves and
their family members and guardians.
The Plaintiff filed the instant action on May 4, 2022, claiming
that NHS is responsible for the data breach because of its failure
to follow industry standard practices for securing sensitive
information. She alleges that NHS "inadequately trains its
employees on cybersecurity policies, fails to enforce those
polices, or maintains unreasonable or inadequate security practices
and systems."
The class action complaint against NHS contains seven counts, and
each claim arises from state common law: (1) Negligence; (2)
Negligence Per Se; (3) Breach of Implied Contract; (4) Invasion of
Privacy; (5) Unjust Enrichment; (6) Breach of Confidence; and (7)
Breach of Fiduciary Duty.
The Plaintiff also seeks to bring these claims on behalf of
similarly situated individuals whose personal information was
accessed during the data breach. She proposes two classes. The
first includes all persons whose Personal Information was
compromised as a result of the Data Breach reported to HHS on or
about Oct. 29, 2021, by Defendant NHS (the 'Class'). The second is
a subclass of those Alabama citizens who Personal Information was
compromised as a result of the Data Breach reported to HHS on or
about Oct. 29, 2021, by Defendant NHS (the "Alabama subclass").
Ms. Griggs claims that members of the proposed Class are citizens
of states different from the Defendant. Judge Proctor notes that
she provides no other information about the identity or citizenship
of proposed class members.
On Jan. 24, 2023, the Court entered an order requiring the parties
to provide supplemental briefing on the existence of subject matter
jurisdiction under the Class Action Fairness Act ("CAFA"). In
response to that order, NHS provided the Plaintiff with an email
communication outlining the number of putative plaintiffs, who were
sent notices of the 2021 data breach which was broken down by the
state to which each individual's notice was sent. This document
shows that NHS sent notice letters to putative class members at
addresses in nearly every state. It also shows that slightly more
than two-thirds of the notice letters dispatched by NHS to putative
class members were sent to Alabama addresses.
The Plaintiff alleges that this court has subject matter
jurisdiction under CAFA, 28 U.S.C. Section 1332(d). But, Judge
Proctor notes, CAFA also provides exceptions to federal
jurisdiction: (1) the local controversy exception, Section
1332(d)(4)(A); (2) the home state exception, Section 1332(d)(4)(B);
and (3) the discretionary exception, Section 1332(d)(3).
However, Judge Proctor says the Court need not address the
applicability of CAFA's exceptions in this case because the
Plaintiff has failed to establish the threshold requirements for
original CAFA jurisdiction. The Plaintiff has failed to plausibly
allege minimal diversity.
In her complaint, the Plaintiff alleges that members of the
proposed Class are citizens of states different from the Defendant.
But, Judge Proctor finds that the Plaintiff provides no facts
supporting this conclusory allegation.
Judge Proctor also finds that NHS notice letters establish
residency, not citizenship. And, the mere fact that NHS serves
facilities in states other than Alabama or Delaware is insufficient
to establish the citizenship of any putative class member,
especially when the Plaintiff has not specifically identified any
putative plaintiffs. The Plaintiff's factual allegations do not
provide sufficient information for the court to determine the
citizenship of any putative class members.
Therefore, Judge Proctor holds that the Plaintiff has not met her
burden to establish the existence of subject matter jurisdiction
under CAFA.
However, the Court is cognizant of the possibility that the
Plaintiff may be able replead her Complaint with allegations that
establish CAFA jurisdiction. Should she believe she may have
information which, if pled, could establish CAFA jurisdiction, on
or before July 21, 2023, Judge Proctor says she will file an
amended complaint. Any amended complaint must appropriately address
the citizenship of putative class members. If no amendment is
filed, the Court will dismiss the case without prejudice.
A full-text copy of the Court's Memorandum Opinion and Order dated
June 26, 2023, is available at https://tinyurl.com/4cmxer4k from
Leagle.com.
NISSAN NORTH: Hagenbaugh's Bid for Entry of Default Judgment Denied
-------------------------------------------------------------------
Judge Malachy E. Mannion of the U.S. District Court for the Middle
District Court of Pennsylvania denies without prejudice the
Plaintiffs' unopposed motion for entry of default judgment in the
lawsuit styled DAVID HAGENBAUGH, et al., Plaintiffs v. NISSAN NORTH
AMERICA, INC., et al., Defendants, Case No. 3:20-1838 (M.D. Pa.).
The lawsuit is a multi-defendant case in which the Plaintiffs
allege the Defendants acted in concert to defraud customers, who
were purchasing or leasing automobiles by virtue of fraudulent
promises of future benefits. The Plaintiffs served all nine named
Defendants, but four of those defendants have yet to respond, and
the Clerk entered default against them accordingly.
However, Judge Mannion opines, since the Amended Complaint alleges
the Defendants are jointly liable to the Plaintiffs based on
concerted action, and since the case proceeds against some of the
Defendants, who have not defaulted, long-established Supreme Court
precedent counsels against entering default judgment against some
but not all Defendants at this stage of the case. Thus, the Court
will deny the Plaintiffs' motion without prejudice to renewal of
the motion at a later stage.
The Plaintiffs' operative pleading describes a scheme, whereby the
Defendant Owners, Manufacturers, and Dealerships allegedly operated
in concert to defraud customers, who were purchasing or leasing
automobiles by making promises under a so-called "Set for Life
Program."
The program included free oil and filter changes, car washes, state
inspections, powertrain warranties, and loaner vehicles for as long
as Plaintiffs owned their cars. The Defendants allegedly made the
promises to induce customers to buy or lease cars but knew they
could not deliver upon these promises. The Dealerships closed their
doors around September 2018, and the Defendant Owners and
Manufactures refuse to provide the benefits specified in the Set
for Life Program.
According to the Plaintiffs, this conduct entitles them to damages
based on four state law theories: Pennsylvania's Unfair Trade
Practices and Consumer Protection Law (UTPCPL), breach of contract,
unjust enrichment, and fraud.
The Defendant Dealerships were personally served with process on
Nov. 3, 2020. One of the Defendant Owners, Saporito, was served by
the United States Marshal on Dec. 15, 2021. Neither the Dealerships
nor Saporito have entered an appearance in this litigation or filed
a response to the Amended Complaint.
The Plaintiffs sought entry of default against the nonresponsive
parties, which the Clerk entered. The Plaintiffs now ask the Court
to enter default judgment against the defaulting Defendants
pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure.
According to Judge Mannion, the Plaintiffs have asserted the same
four claims against all Defendants, defaulting and non-defaulting
alike. The specific factual allegations in the amended complaint
impugn, in most instances, all "Defendants" collectively. In
addition, the thrust of the allegations contained in the amended
complaint is concerted action on the part of all Defendants to
fraudulently induce Plaintiffs to buy their vehicles. In addition,
the amended complaint is yet to pass muster for purpose of
Defendant Kia's pending motion to dismiss. These factors discourage
entry of default judgment against some of the Defendants at this
stage of the case due to the possibility of logically inconsistent
judgments.
Judge Mannion holds that one of many examples of the possibility of
logically inconsistent judgments will suffice. It is possible,
Judge Mannion explains, that judgment could be entered in favor of
Defendant Kia (an answering-defendant against whom the Plaintiffs'
claims are currently active) on the Plaintiffs' fraud-related
claims for failure to show justifiable reliance on the Defendants'
representations. That finding would be logically inconsistent with
a default judgment against the Dealerships and Owner Saporito (the
defaulting-defendants), which would require the Court to accept the
Plaintiffs' allegation of justifiable reliance on the Defendants'
representations as true.
Thus, the Court believes there is just reason for delay due to the
possibility of logically inconsistent judgments.
In light of the foregoing, Judge Mannion rules that the Plaintiffs'
motion for entry of default judgment will be denied without
prejudice to renewal of the motion at a later stage.
A full-text copy of the Court's Memorandum dated June 26, 2023, is
available at https://tinyurl.com/3wr54kfp from Leagle.com.
OREGON: Thielman Appeals Case Dismissal to 9th Cir.
---------------------------------------------------
Plaintiffs MARC THIELMAN, et al., filed an appeal from the District
Court's Opinion and Order and Judgment dated June 29, 2023 entered
in the lawsuit entitled MARC THIELMAN et al., Plaintiffs v. SHEMIA
FAGAN et al., Defendants, Case No. 3:22-cv-01516-SB, in the United
States District Court for the District of Oregon.
Plaintiffs Marc Thielman, Ben Edtl, Janice Dysinger, Don Powers,
Sandra Nelson, Chuck Wiese, Loretta Johnson, Terry Noonkester,
Diane Rich, Pam Lewis, and Senator Dennis Linthicum filed this suit
on October 8, 2022, on behalf of themselves and all others
similarly situated against Shemia Fagan, in her official capacity
as the former Oregon Secretary of State, and twelve Oregon
counties, challenging the constitutionality of Oregon's
computerized vote tabulation and vote-by-mail systems.
The Plaintiffs allege that Oregon's computerized vote tabulation
and mail-in voting systems violate their constitutional rights,
including violations of the Due Process Clause, the Equal
Protection Clause, and their fundamental right to vote. The
Plaintiffs also allege that "organized criminals" are manipulating
Oregon's elections, and they base their claims on a documentary
about voting irregularities in other states and reports of voting
irregularities in Oregon. The Plaintiffs seek entry of a judgment
declaring that Oregon's voting systems are unconstitutional and
enjoining their use.
On February 17, 2023, the Defendant filed motion to dismiss the
Plaintiffs' first amended complaint. On the same day, Washington
County filed a joint motion to dismiss the first amended complaint,
joining the Secretary of State's motion. Washington County also
filed a corrected motion for a joint motion to dismiss the first
amended complaint.
On June 29, 2023, the Court entered an opinion and order granting
the Secretary's motion to dismiss the Plaintiffs' claims for lack
of subject matter jurisdiction and dismissed the Plaintiffs' claims
without leave to amend; granting the County Defendants' corrected
joinder in the Secretary's motion to dismiss; and denying as moot
the County Defendants' original joinder in the Secretary's motion
to dismiss.
The appellate case is captioned as Marc Thielman, et al. v. Shemia
Fagan, et al., Case No. 23-35452, in the United States Court of
Appeals for the Ninth Circuit, filed on July 5, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellants Steve Corderio, Janice Dysinger, Ben Edtl, Loretta
A. Johnson, Pam Lewis, Dennis Linthicum, Sandra Nelson, Terry
Noonkester, Don Powers, Diane Rich, Marc Thielman, Jeanine Wenning
and Chuck Wiese Mediation Questionnaire was due July 12, 2023;
-- Transcript shall be ordered by August 4, 2023;
-- Transcript is due on September 5, 2023;
-- Appellants Steve Corderio, Janice Dysinger, Ben Edtl, Loretta
A. Johnson, Pam Lewis, Dennis Linthicum, Sandra Nelson, Terry
Noonkester, Don Powers, Diane Rich, Marc Thielman, Jeanine Wenning
and Chuck Wiese opening brief is due on October 10, 2023;
-- Appellees Clackamas County, Coos County, Deschutes County,
Douglas County, Shemia Fagan, Jackson County, Klamath County, Lane
County, Linn County, Marion County, Multnomah County, Washington
County and Yamhill County answering brief is due on November 13,
2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants MARC THIELMAN, et al., individually and on
behalf of all others similarly situated, are represented by:
Stephen J. Joncus, Esq.
JONCUS LAW, PC
13203 SE 172nd Avenue
Suite 166 No. 344
Happy Valley, OR 97086
Telephone: (971) 236-1200
Defendants-Appellees SHEMIA FAGAN, in her official capacity as
Oregon Secretary of State, et al., are represented by:
Brian Simmonds Marshall, Esq.
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
Telephone: (971) 673-1880
- and -
Stephen L. Madkour, Esq.
CLACKAMAS COUNTY COUNSEL
2051 Kaen Road
Oregon City, OR 97045
Telephone: (503) 742-5395
- and -
John Mansfield, Esq.
WASHINGTON COUNTY COUNSEL
161 NW Adams Avenue
Hillsboro, OR 97124
Telephone: (503) 846-8747
- and -
B. Andrew Jones, Esq.
MULTNOMAH COUNTY ATTORNEY'S OFFICE
501 SE Hawthorne Boulevard, Suite 500
Portland, OR 97214
Telephone: (503) 988-3138
- and -
Eugene J. Karandy, II, Esq.
LINN COUNTY COUNSEL
PO Box 100
Albany, OR 97321
Telephone: (541) 967-3840
PROGRESS SOFTWARE: Bailey Sues Over Failure to Protect SPI
----------------------------------------------------------
Bruce Bailey, individually and on behalf of all others similarly
situated v. PROGRESS SOFTWARE CORPORATION and PENSION BENEFIT
INFORMATION, LLC d/b/a PBI RESEARCH SERVICES, Case No.
0:23-cv-02028-KMM-DTS (D. Minn., July 5, 2023), is brought on
behalf of all persons whose SPI was compromised as a result of
Defendants' failure to: adequately protect consumers' SPI,
adequately warn its current and former customers and potential
customers of its inadequate information security practices, and
effectively monitor its platforms for security vulnerabilities and
incidents (the "Class").
PBI is a company that markets services to pension funds and
insurance companies. These services largely encompass helping to
locate individuals for those companies and funds. It uses MOVEit to
transfer the sensitive personal information ("SPI") of the clients
and beneficiaries of those companies and funds.
Numerous companies and entities have come forward since mid-June
2023 to announce that the SPI of their clients or (in the case of
government records) residents had been stolen. These include the
Lousiana Office of Motor Vehicles, the Oregon Department of
Transportation, the California Public Employees Retirement System
("CalPERS"), Genworth Finance, Wilton Reassurance, the Tennessee
Consolidated Retirement System, and the National Student
Clearinghouse. At the time of this writing, new companies and
entities continue to come forward to indicate that their
information has been stolen as well.
For the purposes of this complaint, on June 22, 2023, CalPERS
announced publicly that on June 16, 2023, PBI had been the
recipient of a hack and exfiltration of SPI involving approximately
770,000 individuals who are and have been members of the pension
fund (the "Data Breach"). However, the total number of individuals
affected by the Data Breach, as of this writing, is at least 15
million individuals.
CalPERS reported that this SPI included at least "First and Last
Name; Date of Birth; and Social Security Number. It could have also
included the names of former or current employers, spouse or
domestic partner, and child or children. The information that was
taken involves anyone who was receiving an ongoing monthly benefit
payment as of this spring."
Various online sources have identified the hacker group responsible
as CL0P, a Russian ransomware group "known for asking for
multi-million-dollar ransoms." CL0P are also identified as having
been behind the recent Accellion and Fortra data breaches, both
huge breaches the subject of ongoing litigation. Plaintiff and
Class members now face a present and imminent lifetime risk of
identity theft, which is heightened here by the potential loss of
Social Security numbers, says the complaint.
The Plaintiff was informed by letter that he had been a victim of
the Data Breach.
PSC is a software company that creates and markets software and
applications primarily geared toward businesses.[BN]
The Plaintiff is represented by:
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
111 W. Jackson Blvd., Suite 1700
Chicago, IL 60604
Phone: (312) 984-0000
Fax: (212) 686-0114
Email: malmstrom@whafh.com
PROGRESS SOFTWARE: Fails to Prevent Data Breach, Meyer Alleges
--------------------------------------------------------------
KELLY L. MEYER, individually and on behalf of all others similarly
situated, Plaintiff v. PROGRESS SOFTWARE CORPORATION, Defendants,
Case No. 1:23-cv-11543-PGL (D. Mass, July 10, 2023) is a class
action against the Defendant for its failure to properly secure and
safeguard the Plaintiff's and other similarly situated individuals'
names, addresses, Social Security numbers, birthdates, demographic
information, driver's license numbers, vehicle registration
numbers, and other personally identifiable information and
financial information from the well-known Russian cybergang, Clop.
The Plaintiff alleges in the complaint that the Defendant failed to
properly monitor and properly implement data security practices
with regard to the computer network and systems that housed the
Private Information. Had the Defendant properly monitored its
networks, it would have discovered the Breach sooner, says the
Plaintiff.
The Plaintiff's and Class Members' identities are now allegedly at
risk because of the Defendant's negligent conduct as the private
information that the Defendant collected and maintained is now in
the hands of data thieves and other unauthorized third parties.
PROGRESS SOFTWARE CORPORATION develops, markets, and distributes
applications. The Company offers databases, application, messaging
servers, and development tools. [BN]
The Plaintiff is represented by:
J. Tucker Merrigan, Esq.
Thomas T. Merrigan, Esq.
SWEENEY MERRIGAN LAW, LLP
268 Summer Street, LL
Boston, MA 02210
Telephone: (617) 391-9001
Facsimile: (617) 357-9001
Email: tucker@sweeneymerrigan.com
tom@sweeneymerrigan.com
- and -
Maureen M. Brady, Esq.
MCSHANE & BRADY, LLC
1656 Washington Street, Suite 120
Kansas City, MO 64108
Telephone: (816) 888-8010
Facsimile: (816) 332-6295
Email: mbrady@mcshanebradylaw.com
- and -
Sharon J. Zinns, Esq.
ZINNS LAW, LLC
4243 Dunwoody Club Drive, Suite 104
Atlanta, GA 30350
Telephone: (404) 882-9002
Email: sharon@zinnslaw.com
- and -
John A. Love, Esq.
LOVE CONSUMER LAW
2500 Northwinds Parkway, Suite 330
Alpharetta, GA 30009
Telephone: (404) 855-3600
Facsimile: (404) 301-2300
Email: tlove@loveconsumerlaw.com
RANCHO EL TABACO: Torres Sues Over Unpaid Wages for Helpers
-----------------------------------------------------------
MARCO ANTONIO TORRES, individually and on behalf of all others
similarly situated, Plaintiff v. RANCHO EL TABACO DELI CORP.; EL
POPO MINI MARKET CORP.; and JESUS LEAL, Defendants, Case No.
1:23-cv-05067 (E.D.N.Y., July 5, 2023) is a class action against
the Defendants for failure to pay minimum, overtime, and
spread-of-hours wages in violation of the Fair Labor Standards Act
and the New York Labor Law and for liquidated damages and statutory
penalties pursuant to the New York Wage Theft Prevention Act.
The Plaintiff was employed by the Defendants as a general helper at
El Popo Market from 2010 through June 2020 and at Rancho El Tabaco
from June 2020 through June 6, 2023.
Rancho El Tabaco Deli Corp. is the owner and operator of the Rancho
El Tabaco, located at 35th Avenue, Astoria, New York.
El Popo Mini Market Corp. is the owner and operator of the El Popo
Market, located at Roosevelt Avenue, Jackson Heights, New York.
[BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter Hans Cooper, Esq.
CILENTI & COOPER, PLLC
60 East 42nd Street, 40th Fl.
New York, NY 10165
Telephone: (212) 209-3933
Facsimile: (212) 209-7102
E-mail: pcooper@cpclaw.com
RELIANT REHABILITATION: Court Dismisses Cox Suit
------------------------------------------------
In the class action lawsuit captioned as JORDYN COX, et al., v.
RELIANT REHABILITATION HOLDINGS, INC., et al., Case No.
3:22-cv-00046-GFVT (E.D. Ky.), the Hon. Judge Gregory F. Van
Tatenhove entered an order:
1. granting the Reliant Defendants' motion to dismiss;
2. dismissing the Plaintiffs' claims against the Reliant
Defendants;
3. denying as moot Reliant Defendants' motion to strike class-
action allegations; and
4. striking case from the Court's active docket.
The Plaintiffs thus fail to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). Generally, a court must
dismiss the entire action when the Plaintiffs' claims are resolved
before class certification.
The Reliant Defendants are not residents of Kentucky. The complaint
alleges that Reliant Rehabilitation Holdings is a Delaware
corporation with its principal place of business in Texas and
Reliant Pro Rehab is a Delaware corporation with its principal
place of business in Texas.
The Plaintiffs do not argue that the Defendants are residents of
Kentucky. Therefore, KRS 413.190(2) does not toll the Plaintiffs'
fiduciary claims and the time to bring them expired before the
Plaintiffs filed their complaint.
The Plaintiffs Jordan Cox, Taylor McVay, and David Bleeker are the
administrators of the estates of Karl Belcher, Timothy Farrow, and
Della Bleeker.
At different times between 2011 and 2015, Mr. Belcher, Mr. Farrow,
and Ms. Bleeker each resided at a skilled nursing facility in
Kentucky.
The skilled nursing facilities contracted with the Defendants
Reliant Rehabilitation Holdings and Reliant Pro Rehab, who provided
rehabilitation therapy services to the nursing homes' residents.
Mr. Belcher received gait training rehabilitation therapy by the
Defendants from July 2012 to March 2013.
Mr. Farrow received therapy from June 2013 to March 2015.
Reliant Rehabilitation provides physical, occupational, and speech
therapy services.
A copy of the Court's order dated June 23, 2023, is available from
PacerMonitor.com at https://bit.ly/46GAkza at no extra charge.[CC]
ROSS STORES: Faces Spady Suit Over Fair Workweek Law Violations
---------------------------------------------------------------
RASHIEK SPADY, individually and on behalf of all others similarly
situated, Plaintiff v. ROSS STORES, INC., Defendant, Case No.
230700366 (Pa. Ct. Com. Pl., July 5, 2023) is a class action
against the Defendant for violations of the Philadelphia Fair
Workweek Employment Standards including failing to provide
compliant written good faith estimates of employees' work
schedules; failing to provide 14-days' notice of employees' works
schedules; failing to pay required penalties and Predictability Pay
and obtain written consent when Ross changed employees' work
schedules with less than 14-days' notice; failing to ensure at
least nine hours of rest between employees' shifts; changing
employees' schedules at the last minute; and failing to offer new
shifts to current employees before hiring new employees.
The Plaintiff was employed as an hourly employee at the Ross store
located at 701 Market St., Philadelphia, Pennsylvania from
approximately March 2023 through May 2023.
Ross Stores, Inc. is a discount retail company, with its principal
place of business in Dublin, California. [BN]
The Plaintiff is represented by:
Ryan Allen Hancock, Esq.
WILLIG, WILLIAMS & DAVIDSON
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Telephone: (215) 656-3600
Facsimile: (215) 567-2310
E-mail: rhancock@wwdlaw.com
- and -
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (267) 256-9973
E-mail: ssb@llrlaw.com
kconnon@llrlaw.com
- and -
Sally J. Abrahamson, Esq.
WERMAN SALAS P.C.
705 8th St. SE, #100
Washington, DC 20003
Telephone: (202) 830-2016
E-mail: sabrahamson@flsalaw.com
SALSAS OF TITUSVILLE: Paz Loses Conditional Status Bid
------------------------------------------------------
In the class action lawsuit captioned as EMMA PAZ, v. SALSAS OF
TITUSVILLE CORPORATION; and JESUS VALENCIA, Case No.
6:22-cv-00834-RBD-LHP (M.D. Fla.), the Hon. Judge Roy B. Dalton,
Jr. entered an order denying the Plaintiff's motion to
conditionally certify action as a collective under the Fair Labor
Standards Act (FLSA).
The Plaintiff, who alleges that she worked overtime without being
paid and was fired when she complained, seeks to conditionally
certify the following collective under 29 U.S.C. section 216(b):
"All current and former employees, who are, were or have worked
in
excess of 40 hours per week without being properly compensated
at a
rate of time and a half, or have not been paid the statutorily
mandated minimum wage, and employed by the Defendants within the
three year period prior to the filing of this lawsuit."
Salsas is a family-owned restaurant.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3PO79nE at no extra charge.[CC]
SAMSUNG ELECTRONICS: Court Stays Haythe Suit Pending Arbitration
----------------------------------------------------------------
In the lawsuit styled SONYA HAYTHE, DOUGLAS SMITH, and PETER
COFFIN, individually and on behalf of all others similarly
situated, Plaintiffs v. SAMSUNG ELECTRONICS AMERICA, INC.,
Defendant, Case No. 22-CV-3509 (VEC) (S.D.N.Y.), Judge Valerie
Caproni of the U.S. District Court for the Southern District of New
York grants the Defendant's motion to compel arbitration and stays
the case pending arbitration.
On April 29, 2022, Plaintiffs Sonya Haythe, Douglas Smith, and
Peter Coffin brought a putative class action against Samsung for
allegedly misrepresenting the capabilities of certain Samsung
televisions the Plaintiffs had purchased.
Upon purchasing the televisions in 2020 and 2021, the Plaintiffs
agreed to Samsung's terms and conditions (the "Terms and
Conditions"), including an arbitration clause (the "Arbitration
Clause").
Samsung first moved to compel arbitration on July 13, 2022. On Aug.
4, 2022, the Court denied the motion without prejudice in light of
the Plaintiffs' Amended Complaint. Samsung renewed its motion on
Sept. 9, 2022.
Although the Plaintiffs argue that the motion should be denied
because their dispute with Samsung is not within the scope of the
Arbitration Clause, Judge Caproni finds that the parties clearly
consented to arbitrate questions of arbitrability. The Arbitration
Clause expressly gives the arbitrator exclusive authority to
determine the scope and applicability of the Clause and it
incorporates by reference the rules of the International Chamber of
Commerce (the "ICC").
The Arbitration Clause provides in relevant part that any claim,
dispute or controversy that a "User" may have against Samsung
arising out of, relating to, or connected in any way with the
determination of the scope or applicability of this clause, will be
resolved exclusively by final and binding arbitration. Judge
Caproni notes that this interpretation of the Arbitration Clause is
reinforced by its incorporation of ICC rules, which assign the
arbitrator initial responsibility to determine issues of
arbitrability.
For all of those reasons, Judge Caproni finds there is clear and
unmistakable evidence that the parties agreed to arbitrate
questions of arbitrability.
For these reasons, Judge Caproni grants the Defendant's motion to
compel arbitration and to stay this case. The action is stayed
pending the conclusion of arbitration. The parties must submit a
joint update on the status of arbitration every six months, on the
first of that month, or if the first falls on a weekend or holiday,
on the first business day thereafter. The first report is due on
Dec. 1, 2023.
The Clerk of Court is directed to close the open motion at Docket
Entry 30 and to stay the case.
A full-text copy of the Court's Opinion and Order dated June 26,
2023, is available at https://tinyurl.com/4dk8r7uv from
Leagle.com.
SEED INVEST: Mueller Sues Over Deceptive Stock Sale Solicitations
-----------------------------------------------------------------
JOSEPH MUELLER, individually and on behalf of all others similarly
situated, Plaintiff v. SEED INVEST TECHNOLOGY LLC, PLUTO HOLDINGS
LLC, RYAN MICHAEL FEIT, CHRISTOPHER M. MYERS, CIRCLE INTERNET
FINANCIAL PUBLIC LIMITED COMPANY and SI SECURITIES LLC, Defendants,
Case No. 653225/2023 (N.Y. Sup. Ct., July 5, 2023) is a class
action against the Defendants for violations of Section 12(a)(2) of
the Securities Act of 1933.
According to the complaint, the Defendants made materially false
and misleading statements relating to the solicitation, marketing
and sale of NowRx Inc.'s Series C Preferred Stock, convertible into
shares of common stock, at a price of $10.50 per share during the
period from September 30, 2021 through November 2022. Specifically,
the Defendants' solicitations failed to disclose and misrepresented
NowRx's financial condition, liquidity, asset valuation and
viability. In November 2022, NowRx announced it was winding down
and selling all its assets for $1, damaging investors, says the
suit.
Seed Invest Technology LLC is an equity crowdfunding company,
headquartered in New York, New York.
Pluto Holdings LLC is a real estate company based in California.
Circle Internet Financial Public Limited Company is a crypto
finance company based in Boston, Massachusetts.
SI Securities LLC is an affiliate of Seed Invest Technology LLC,
headquartered in New York, New York. [BN]
The Plaintiff is represented by:
Lee Squitieri, Esq.
SQUITIERI & FEARON, LLP
305 Broadway, 7th Floor
New York, NY 10007
Telephone: (212) 421-6492
Facsimile: (212) 421-6553
E-mail: lee@SFclasslaw.com
- and -
Fletcher Moore, Esq.
Justin Kuehn, Esq.
MOORE KUEHN, PLLC
30 Wall Street, 8th Floor
New York, NY 10005
Telephone: (212) 709-8245
Facsimile: (917) 634-3035
E-mail: fmoore@moorekuehn.com
SLEEPY'S LLC: Bid for Reconsideration Denied in Gundell Suit
------------------------------------------------------------
In the class action lawsuit captioned as JEFFREY GUNDELL, on behalf
of himself and others similarly situated, V. SLEEPY'S,LLC, et al.,
Case No. 3:15-cv-07365-RK-DEA (D.N.J.), the Hon. Judge Robert
Kirsch entered a scheduling order as follows:
1. The Defendants' motion for reconsideration is denied.
2. The Plaintiffs are ordered to show cause by no later than
July
7, 2023, as to why Count II should not be dismissed given
Judge
Quraishi's rulings as to Counts I and III; the Defendant is
to
file any opposition by July 14, 2023; the Plaintiff is to
file
any reply by July 21, 2023.
3. The Plaintiffs Motion for Reconsideration on Judge Quraishi's
denial of class certification as to Count H is stayed and the
Clerk of Court is instructed to administratively terminate
the
motion pending the resolution of the dispositive matters
related
to Count II.
The Plaintiffs complaint arises from alleged contractual violations
that prevented him from receiving a full refund on a mattress base
he bought from the Defendants. Count I sought certification of an
injunctive or damages class pursuant to Federal Rule of Civil
Procedure 23(b)(2) or 23(b)(3) for the Defendants' alleged
violations of the Truth-in-Consumer Contract, Warranty and Notice
Act ("TCCWNA").
The alleged violations in Count I stem from the Defendants'
inclusion of "Limitation of Liability" and "no refunds" provisions
in its sales contracts that the Plaintiff argues contravene
statutory provisions within the New Jersey Consumer Fraud Act
("CFA").
Sleepy's offers mattresses, box springs, bed frames, headboards and
related bedding furniture, and bedding accessories.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3NLB9hp at no extra
charge.[CC]
TEKSYSTEMS INC: Filing for Class Cert. Bid Due Oct. 6, 2024
-----------------------------------------------------------
In the class action lawsuit captioned as BO AVERY, PHOEBE RODGERS,
KRISTY CAMILLERI, AND JILL UNVERFERTH, individually, on behalf of
themselves and on behalf of all others similarly situated, v.
TEKSYSTEMS, INC. Case No. 3:22-cv-02733-JSC (N.D. Cal.), the Court
entered an order modifying Pretrial Order as follows:
-- Deadline to Move for Class October 6, 2023
Certification:
-- The Defendant’s Class Cert. November 17, 2023
Opposition Deadline:
-- The Plaintiffs' Reply Deadline: December 8, 2023
TEKsystems is a provider of IT staffing, talent management and
services.
A copy of the Court's order dated June 23, 2023, is available from
PacerMonitor.com at https://bit.ly/3rl47xb at no extra charge.[CC]
The Plaintiffs are represented by:
Rachel Bien, Esq.
OLIVIER & SCHREIBER LLP
128 N Fair Oaks Ave
Pasadena, CA 91103
Telephone: (213) 325-3430
E-mail: rachel@os-legal.com
- and -
Sally J. Abrahamson, Esq.
WERMAN SALAS P.C.
335 18th Place NE
Washington, D.C. 20002
Telephone: (202) 830-2016
E-mail: sabrahamson@flsalaw.com
The Defendant is represented by:
Brian P. Long, Esq.
Andrew L. Scroggins, Esq.
SEYFARTH SHAW LLP
601 South Figueroa Street, Suite 3300
Los Angeles, CA 90017
Telephone: (213) 270-9600
E-mail: bplong@seyfarth.com
ascroggins@seyfarth.com
TEXAS HEALTH: More Time to File Response OK'd in Langham
--------------------------------------------------------
In the class action lawsuit captioned as SUSAN LANGHAM, V. TEXAS
HEALTH AND HUMAN SERVICES, Case No. 6:22-cv-00057-JDK (E.D. Tex.),
the Hon. Judge Jeremy D. Kernodle entered an order granting
unopposed motion to extend time to file the Defendant's response to
the Plaintiff's motion to authorize notice to potential collective
action plaintiffs and certify class.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/44C9Woi at no extra charge.[CC]
TMX FINANCE: Carrington Seeks More Time to File Class Certification
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In the class action lawsuit captioned as SHENEEQUA CARRINGTON,
Individually and on Behalf of All Others Similarly Situated, v. TMX
FINANCE CORPORATE SERVICES, INC. and TMX FINANCE LLC, d/b/a
"TitleMax" "TitleBucks" and "InstaLoan," Case No.
4:23-cv-00121-RSB-CLR (S.D. Ga.), the Plaintiff moves for an order
to extend the time for filing her motion for class certification
until 30 days following the completion of class discovery.
A copy of the Plaintiff's motion dated June 26, 2023, is available
from PacerMonitor.com at https://bit.ly/43l6hdc at no extra
charge.[CC]
The Plaintiff is represented by:
John C. Bell, Jr., Esq.
THE BELL FIRM
PO Box 1547
Augusta, GA 30903-1547
Telephone: (706) 722-2014
E-mail: Jolm@bellfirm.net Pam@bellfirm.net
- and -
Lori G. Feldman,Esq.
Croton-on-Hudson, New York 10520
Telephone: (917) 983-9321
E-mail: lfeldman@4-Justice.com
- and -
David J. George,Esq.
GEORGE FELDMAN MCDONALD PLLP
9897 Lake Worth Drive, Suite 302
Lake Wmih, FL 33467
Telephone: (561) 232-6002
E-mail: dgeorge@4-J ustice.com
bbrown@4-Justice.com
TRANSPERFECT GLOBAL: Court Junks Bid for Leave to File Sur-Reply
----------------------------------------------------------------
In the class action lawsuit captioned as Michele Metcalf v.
Transperfect Global Inc., Case No. 1:19-cv-10104-ER-KHP (S.D.N.Y.),
the Court entered an order that the Defendant's motion for leave to
file a sur-reply to the Plaintiffs' motion for class certification
is denied.
TransPerfect is a translation and language services company based
in New York City.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/44vaSLz at no extra charge.[CC]
The Defendant is represented by:
Daniel Turinsky, Esq.
DLA PIPER LLP (US)
Telephone: (212) 335-4566
Facsimile: (917) 778-8631
TRANSWORLD SYSTEMS: Class Cert. Bid in Brown Suit Due Feb. 27, 2024
-------------------------------------------------------------------
In the class action lawsuit captioned as Brown v. Transworld
Systems Inc., et al., Case No. 2:20-cv-00680 (W.D. Wash., Filed May
5, 2020), the Hon. Judge David G. Estudillo entered an order that
the motion for class certification is due Feb. 27, 2024.
The suit alleges violation of the Fair Credit Reporting Act
involving consumer credit.
Transworld is a debt collection company.[CC]
UNITED SERVICES: Coleman Optional Reply Due July 28
---------------------------------------------------
In the class action lawsuit captioned as EILEEN-GAYLE COLEMAN, et
al., v. UNITED SERVICES AUTOMOBILE ASSOCIATION et al., Case No.
3:21-cv-00217-RSH-KSC (S.D. Cal.), the Hon. Judge Robert S. Huie
entered an order granting the Plaintiffs' motion for leave to file
a renewed motion for class certification.
-- The Plaintiffs shall file their renewed motion no later than
June
30, 2023.
-- The Defendants' opposition shall be filed no later than July
21,
2023.
-- The Plaintiffs' optional reply shall be filed no later than
July
28, 2023.
On March 21, 2023, the Court issued an Order denying the
Plaintiffs' motion for class certification. On April 4, 2023, the
Plaintiffs moved for leave to renew their motion for class
certification.
The Court thus exercises its discretion to grant the Plaintiffs
leave to file their renewed motion, without expressing any opinion
as to whether that motion satisfies the requirement of predominance
under Rule 23(b)(3).
United Services is an American financial services company providing
insurance and banking products exclusively to members of the
military, veterans, and their families.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3JNIPyz at no extra charge.[CC]
WESTMONT COLLEGE: Bishop Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Westmont College. The
case is styled as Cedric Bishop, on behalf of himself and all other
persons similarly situated v. Westmont College, Case No.
1:23-cv-05808 (S.D.N.Y., July 6, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Westmont College -- https://www.westmont.edu/ -- is a private
Christian liberal arts college in Montecito, California.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
WHIRLPOOL CORPORATION: Court Narrows Claims in Tapply Suit
----------------------------------------------------------
In the class action lawsuit captioned as JODI TAPPLY, et al., v.
WHIRLPOOL CORPORATION, Case No. 1:22-cv-00758-JMB-RSK (W.D. Mich.),
granting in part and denying in part the Defendant's motion to
dismiss.
Specifically, the motion is denied as to the Defendant's standing
argument and granted on all other grounds. The Plaintiffs' Counts
I–X are dismissed.
In sum, the Plaintiffs' Counts II, III, and IV–VII are properly
dismissed as The Plaintiffs have failed to plausibly allege The
Defendant's pre-sale knowledge of the Defect or a duty to
disclose.
The Plaintiffs Jodi Tapply, Jeannette Buschman, Michael Partipilo,
Barbara Lester, and Vicki Meyerholz bring this action arising from
their purchase of certain Whirlpool oven/stove ranges, "including
those sold under the Whirlpool, Maytag, KitchenAid, JennAir, Amana,
Roper, Admiral, Affresh, and Gladiator brand names."
In sum, the Plaintiffs' Counts II, III, and IV–VII are properly
dismissed as The Plaintiffs have failed to plausibly allege The
Defendant's pre-sale knowledge of the Defect or a duty to
disclose.
Whirlpool Corporation is an American multinational manufacturer and
marketer of home appliances.
A copy of the Court's order dated June 23, 2023, is available from
PacerMonitor.com at https://bit.ly/3PGSJWq at no extra charge.[CC]
WINGS OVER HAPPY: $106K Settlement in Carts Suit Has Court Approval
-------------------------------------------------------------------
In the case, TY CARTS, et al., individually and on behalf of all
other similarly situated individuals, Plaintiffs v. WINGS OVER
HAPPY VALLEY MDF, LLC d/b/a WINGS OVER HAPPY VALLEY, et al.,
Defendants, Case No. 4:17-cv-00915 (M.D. Pa.), Judge Yvette Kane of
the U.S. District Court for the Middle District of Pennsylvania
grants the Named Plaintiffs' motion for settlement approval of a
Fair Labor Standards Act collective action.
Before the Court is a motion for settlement approval of a FLSA
collective action brought by Named Plaintiffs Ty Carts, Lewis
Grove, Colin Krieger, and Branden Ronald. Defendants Wings Over
Happy Valley MDF, LLC, and Steven C. Moreira concur in the motion.
Along with the Plaintiffs' motion, the Court has considered their
brief in support of the motion, the parties' proposed settlement
agreement, and the declaration of the Plaintiffs' attorney David S.
Gaines, Jr.
The Named Plaintiffs initiated this collective action in 2017,
asserting claims under the FLSA, 29 U.S.C. Sections 201-219, as
well as state law, alleging that the Defendants required their
delivery drivers to share tips with kitchen employees in violation
of 29 U.S.C. Section 203(m). The Plaintiffs further alleged that
the Defendants insisted upon this arrangement to avoid paying their
kitchen workers an appropriate wage.
After unsuccessful mediation efforts and the filing of an amended
complaint, the Court conditionally certified the Plaintiffs' FLSA
collective class. Since the commencement of this action, 24
plaintiffs filed consent forms to become party plaintiffs.
Seventeen of them failed to file consent forms within the
applicable limitations period, and none of the Named Plaintiffs
filed a consent form. Accordingly, the Court granted the
Defendants' later-filed motion for partial summary judgment,
granting judgment in their favor as to the Opt-In Plaintiffs' and
Named Plaintiffs' FLSA claims, leaving seven Opt-In Plaintiffs'
FLSA claims and Named Plaintiffs' state law claims.
After the Court granted partial summary judgment in the Defendants'
favor, the Court held a status conference during which the counsel
for both parties indicated that they were gathering information
upon which to calculate damages to prepare for a settlement
conference. The Court referred the case for mediation, and Chief
Magistrate Judge Mehalchick assigned the case to Magistrate Judge
Arbuckle for the purpose of conducting a settlement conference. It
also set a trial commencement date of Aug. 15, 2023. About two
months later, in April 2023, Magistrate Judge Arbuckle reported
that the parties had a reached a settlement. At a status conference
held the same month, the parties indicated that they would be
seeking approval of their proposed settlement agreement, and the
Court set a briefing schedule for a motion to approve the
settlement.
The Plaintiffs' Counsel filed the pending motion for settlement
approval on June 8, 2023, along with a brief in support, a copy of
the Settlement Agreement, and the Plaintiffs' Counsel's
declaration. The Settlement Agreement contemplates disbursement of
$106,388.18, from which $50,000 will be paid to the Plaintiffs'
attorneys for fees and costs.
In line with Lynn's Food Stores, Judge Kane first examines whether
the Settlement Agreement is a product of a bona fide dispute.
Having presided over the years-long proceedings in the case and
ruled upon numerous motions, some dispositive, and upon
consideration of the Plaintiffs' allegations and the Defendants'
answer thereto, she finds that the settlement resolves a bona fide
FLSA dispute. The issues at the core of the parties' dispute are
factual, as reflected in the Court's Memorandum resolving the
Defendant's motion for summary judgment and turn on whether the
Defendants required delivery drivers to share their tips with
kitchen employees who were not permitted to collect tips under the
FLSA. Additionally, the process by which the parties reached
settlement -- a lengthy settlement conference mediated by
Magistrate Judge Arbuckle, accompanied by extensive negotiations --
further supports that the dispute is bona fide.
Judge Kane then discusses whether the settlement is "fair and
reasonable" under the applicable legal framework and whether the
release provision contained in the Settlement Agreement
"impermissibly frustrates" the purposes of the FLSA. She concludes
that the Settlement Agreement's release provision does not
impermissibly frustrate implementation of the FLSA. Given that the
Plaintiffs' Counsel and his firm have worked roughly 300 hours over
six years litigating the case, she also finds no reason to believe
that approving the proposed attorneys' fees would result in a
windfall out of proportion to the efforts of counsel to bring the
case to a conclusion.
In addition, Judge Kane finds that (i) no Named or Opt-In Plaintiff
has objected to the attorneys' fees to be paid from the settlement
fund; (ii) the Plaintiffs' Counsel has substantial experience in
wage-and-hour litigation; (iii) the action has clearly been pending
for a long duration, and FLSA collective actions are, by their
nature, complex; (iv) the Plaintiffs acknowledge the risk of
decertification and of not recouping all back wages given the
difficulty recreating hours worked and by whom; (v) the Settlement
in this case is the result of an investment of about 300 hours by
the Plaintiffs' Counsel; (vi) the reasonableness of the fee award
requested or is, at worst, neutral but, when applied in light of
the lodestar cross-check, infra, appears eminently reasonable; and
(vii) she declines to approve the reasonableness of the hourly rate
claimed by the Plaintiffs' Counsel and concludes that the requested
fee of $50,000 is reasonable.
For the foregoing reasons, Judge Kane grants the joint motion to
approve the Settlement Agreement. An appropriate Order follows.
A full-text copy of the Court's June 28, 2023 Memorandum is
available at https://tinyurl.com/mvdxa6ud from Leagle.com.
XPO LOGISTICS: Filing for Class Cert. Bid in Quinones Due Dec. 15
-----------------------------------------------------------------
In the class action lawsuit captioned as MILTON QUINONES, an
individual, on behalf of himself and all others similarly situated
v. XPO LOGISTICS, INC., a Delaware Corporation; XPO LOGISTICS
CARTAGE, LLC., a Delaware Corporation; and DOES 1 through 100
inclusive, Case No. 2:23-cv-01301-AB-KS (C.D. Cal.), the Hon. Judge
Andre Birotte Jr. entered an order setting additional case
deadlines regarding plaintiff's motion for class certification.
1. Deadline for the Plaintiff's Motion Dec. 15, 2023
for Class Certification:
2. Deadline for the Defendants' Opposition Feb. 16, 2024
To the Plaintiff's Motion for Class
Certification:
3. Deadline for the Plaintiff's Reply Mar. 1, 2024
in Support of motion for class
certification:
4. Hearing on the Plaintiff's Motion Mar. 15, 2024
for Class Certification:
XPO Logistics is a diversified trucking and logistics company.
A copy of the Court's order dated June 26, 2023, is available from
PacerMonitor.com at https://bit.ly/3JMA7R3 at no extra charge.[CC]
YOUTUBE LLC: Court Denies Bid to Dismiss Colombo BIPA Complaint
---------------------------------------------------------------
In the case, NATHAN COLOMBO, individually and on behalf of all
others similarly situated, Plaintiff v. YOUTUBE, LLC, et al.,
Defendants, Case No. 3:22-cv-06987-JD (N.D. Cal.), Judge James
Donato of the U.S. District Court for the Northern District of
California denies YouTube's motion to dismiss the complaint for
failure to state a claim.
Plaintiff Colombo sued Defendants YouTube, LLC and Google LLC
(collectively, YouTube) on behalf of himself and a putative class
of Illinois residents for violating the Illinois Biometric
Information Privacy Act (BIPA). The operative second amended
complaint (SAC) presents two claims alleging that YouTube violated
Sections 15(a) and (b) of BIPA by collecting sensitive biometric
identifiers and biometric information through its "Face Blur" and
"Thumbnail Generator" video editing tools without first obtaining
the necessary informed written consent or providing data retention
and destruction policies to consumers. YouTube has asked to dismiss
the complaint under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim.
Launched in 2012, YouTube's "Face Blur" tool uses facial
recognition technology to enable its users, who create videos, to
"'select the faces' in the user's particular video that they would
'like to blur,' which when applied and saved, will result in those
faces appearing blurry and ostensibly unrecognizable to any viewer
of the video." According to the complaint, when the tool is
deployed, YouTube scans the entire video to detect all unique faces
within the video. Through this process, YouTube captures and stores
scans of face geometry from all detected faces, creating a unique
"faceId" for each.
The video creator can then select which faces the creator would
like to blur out in the video. When the 'Face Blur' tool is run
multiple times on the same video, the previously stored result is
provided to the user without actually rerunning the tool again,
even weeks after the initial run. Colombo alleges that YouTube
permanently stores the scans of face geometry and does not disclose
that they are collected and stored.
The "Thumbnail Generator" is a feature that at first auto-generates
photographic thumbnails (screenshots from an uploaded video) and
allows creators to choose their own thumbnails for their videos.
Colombo says that it is common knowledge that thumbnails with
faces, especially faces with more expression, generate more clicks
and views. YouTube is said to capitalize on this by scanning all
videos for faces at the time they are uploaded and then using this
face data to auto-generate thumbnails that contain faces. Through
this process, YouTube scans, detects, and collects facial geometry
within each YouTube video, including videos uploaded within
Illinois, and then stores the metadata associated with the videos.
Colombo's claims arise under BIPA. The Court has substantial
familiarity with BIPA from In re Facebook Biometric Information
Privacy Litigation and Zellmer v. Facebook, and has filed several
detailed decisions that inform the discussion. In pertinent part,
BIPA was enacted in 2008 and manifests Illinois' substantial policy
of protecting its citizens' right to privacy in their personal
biometric data. BIPA regulates the collection, retention, and
disclosure of personal biometric identifiers and biometric
information by major national corporations, among others. It
provides a private right of action to any person aggrieved by a
violation of the statute.
YouTube's kickoff objection is that Colombo has not plausibly
alleged that the data collected from the Face Blur and Thumbnail
Generator tools qualify as "biometric identifiers" or "biometric
information" within the meaning of BIPA. In its view, biometric
identifiers must identify a person and biometric information must
actually be used to identify a person. It says that Colombo does
not allege a single fact that would plausibly lead to the
conclusion that the data it collects can be used to identify the
individuals in the uploaded videos.
The point is not well taken, Judge Donato opines. The operative
complaint plausibly alleges that YouTube's Face Blur and Thumbnail
Generator tools capture and store scans of face geometry and
YouTube does not demonstrate otherwise. YouTube's request to ignore
the definition of "biometric identifier" supplied by the Illinois
legislature in favor of a single-minded focus on the word
"identifier" is also misdirected. Nothing in the canons of
statutory interpretation warrants a different conclusion.
In addition, YouTube's suggestion that applying BIPA to the Face
Blur and Thumbnail Generator tools would conflict with the
statute's intent is unavailing. Whether the putative class might
properly include non-users whose faces appear in YouTube videos is
a matter better suited to class certification proceedings.
YouTube then says that Colombo's claims would require an
impermissible extraterritorial application of BIPA and that his
interpretation of the statute would run afoul of the dormant
Commerce Clause.
Neither argument is persuasive, Judge Donato opines. While
YouTube's headquarters and data servers may be elsewhere, that is
not dispositive. Making the geographic coordinates of a server the
most important circumstance in fixing the location of an Internet
company's conduct would yield questionable results and effectively
gut the ability of states without server sites to apply their
consumer protection laws to residents for online activity that
occurred substantially within their borders.
YouTube's dormant Commerce Clause theory fares no better. It is a
limitation upon the power of the States intended to prohibit
"discrimination against interstate commerce" and state regulations
that unduly burden interstate commerce. The case arises from an
Illinois resident's interactions with YouTube from within his home
state and consequently is deeply rooted in BIPA's native soil of
Illinois.
YouTube's closing argument is that the Section 15(a) claim should
be dismissed because Colombo has not pleaded facts establishing
that he is 'aggrieved' by YouTube's alleged violation of that
section as is required to bring a claim under BIPA. Colombo says
that YouTube failed to develop or implement a BIPA-compliant data
collection policy and therefore failed to comply with any
BIPA-compliant policy in its handling of his personally identifying
information.
At the pleadings stage, this is enough to move forward, Judge
Donato says. While 'the duty to disclose' a written policy under
Section 15(a) is owed to the public generally, not to particular
persons whose biometric information the entity collects, Colombo
plausibly alleges that his privacy interests have been directly
affected by YouTube's conduct in not complying with a
data-retention policy in handling his data.
A full-text copy of the Court's June 28, 2023 Order is available at
https://tinyurl.com/9t994uf3 from Leagle.com.
ZILLOW GROUP: Judgment and Attys.' Fees in Underwriters Suit Upheld
-------------------------------------------------------------------
In the case, CERTAIN UNDERWRITERS AT LLOYDS, LONDON SUBSCRIBING TO
CERTIFICATE 480887, AS SUBROGEE TO TWILIO, INC., Plaintiff and
Appellant v. ZILLOW GROUP, INC., et al., Defendants and
Respondents, Case Nos. A164516, A165480, A165257 (Cal. App.), the
Court of Appeals of California, First District, Division Four,
affirms the trial court's:
a. judgment finding that Twilio failed to give the Defendants
control over the defense and settlement of a class action;
and
b. award to the Defendants for their attorney's fees as the
parties prevailing on the contracts.
Certain Underwriters at Lloyds, London Subscribing to Certificate
480887 (Underwriters), as subrogee to Twilio, appeal from a trial
court order granting summary judgment to Zillow, Inc., Zillow
Group, Inc., and Trulia, LLC (collectively, Zillow) and Handy
Technologies, Inc. on Underwriters' complaint for indemnity and
other claims. Relying on agreements between Twilio and the
Defendants, Underwriters sought to recover defense and settlement
costs Twilio incurred in a class action based on the Defendants'
use of Twilio's services.
The trial court ruled that Twilio failed to give defendants control
over the defense and settlement of the class action, which the
agreements made a condition precedent to defendants' obligation to
indemnify Twilio. It also awarded the Defendants their fees as the
parties prevailing on the contracts.
Twilio offers internet-based communications services that software
companies like the Defendants can use to facilitate communications
between their end users. Twilio's services can include recording
end users' text message or voice communications and making the
recordings available to the software companies.
In 2014, Twilio signed enterprise service agreements (ESAs) with
Handy and Zillow. Section 2.4 of the ESAs required Handy and Zillow
to ensure (or use commercially reasonable efforts to ensure) that
their use of Twilio's services was in accordance with applicable
laws and the terms of the agreement, including an acceptable use
policy incorporated into the agreement by reference. The ESAs also
required defendants not to use Twilio's services in a way that
violated any data protection statute or similar law. Both ESAs also
contained indemnification provisions. The ESAs also contained
attorney's fees provisions.
On April 12, 2016, Angela Flowers served Twilio with a class action
complaint alleging, among other claims, that Twilio violated the
California Invasion of Privacy Act, Penal Code sections 630 et seq.
(CIPA), by intercepting and recording without consent the
communications of Handy's and Zillow's end users.
The next day, Twilio sent identical letters to Handy and Zillow. It
said that it was writing "to inform" Handy and Zillow of the
Flowers litigation, briefly described the core allegations in the
complaint, and stated, "Twilio intends to defend this lawsuit
vigorously and disputes the merits of these claims." It reminded
the Defendants that the ESAs obligated them to use its services in
accordance with applicable law and that section 2.4 prohibited
defendants from using its services to violate or facilitate the
violation of any law, including laws regarding recording of data.
Zillow responded with a letter confirming that its use of the
Twilio platform complied with all applicable laws.
Twilio proceeded to defend the Flowers litigation. In May 2016,
Twilio demurred to the Flowers complaint, arguing in part that the
complaint alleged only that Twilio's customers used Twilio's tools
to record communications and that Twilio was not responsible for
its customers' misuse of its services. The Flowers court overruled
the demurrer as to the CIPA claims in August 2016. Twilio then
proceeded with litigation, and defendants cooperated with Twilio's
requests for information at various points.
In January 2018, the Flowers court certified one class of users who
made or received a phone call that Twilio recorded for Handy
between April 2010 and June 2017 and another class of users who
made or received a text message that Twilio recorded for Handy
between April 2010 and April 2016 or for Zillow between April 2010
and January 2018.
In February 2018, Twilio sent Handy and Zillow each a letter
titled, "Notice for Indemnification" regarding the Flowers
litigation informing the Defendants that the Flowers court had
certified a class and asserted that the ESAs between Twilio and the
Defendants entitled Twilio to indemnification. Twilio also demanded
that defendants indemnify it, but it did not ask defendants to take
over Twilio's defense. Twilio followed up two months later with an
additional letter to each Defendant to update them on the status of
the litigation. It also asked them to continue to cooperate with
Twilio's requests for data and assistance in preparation for the
mediation.
In an August 2018 tolling and reservation of rights agreement,
Twilio suspended its indemnity demand and released Handy from any
obligation to respond to it, without prejudice to Twilio
reasserting its demand later. Handy waived the right to control
Twilio's defense of the Flowers litigation but reserved the right
to be informed of any settlement for which Twilio intended to seek
indemnification. Handy agreed that any time-based defense it might
raise to Twilio's indemnification claim, including defenses
alleging lack of timely action or notice, would be tolled during
the pendency of the agreement. But Handy did not waive any
time-based defenses it might have had based on circumstances that
occurred prior to the tolling agreement. The tolling agreement was
in effect from August 2018 to December 2019.
In October 2018, Zillow asked Twilio for an update on the
litigation, and Twilio responded that the parties had reached an
agreement in principle to settle. After the motion for approval was
filed, Zillow told Twilio that it would not be objecting to the
settlement. The terms of the settlement required Twilio to pay $10
million and change its policies. Twilio did not admit liability.
The Flowers court gave final approval to the settlement in June
2019.
Underwriters insured Twilio and paid $5 million of the Flowers
settlement. Underwriters, as Twilio's subrogee, sued Handy and
Zillow in 2020, alleging causes of action for breach of contract,
contractual indemnity, equitable indemnity, contribution,
comparative equitable indemnity, apportionment of fault, and
declaratory relief. They sought to recover Twilio's expenses from
the Flowers litigation, including the costs of defense and the
final settlement.
Underwriters, Handy, and Zillow filed cross-motions for summary
judgment, with the Defendants raising several different arguments
why they were not obligated to indemnify Twilio under the ESAs. In
January 2021, the trial court denied Underwriters' motion and
granted the Defendants' motions. Underwriters appealed from the
order granting the Defendants' motions and the ensuing judgment.
The Defendants then sought to recover their attorney's fees, based
on the fee provisions in the ESAs. Zillow requested about $685,000
in fees, and Handy requested. The trial court granted the
Defendants' motions for attorney's fees, awarding Zillow about
$460,000 and Handy $650,000. Underwriters appealed from those
orders as well.
Underwriters attack the trial court's ruling on numerous grounds.
The Court of Appeals is unpersuaded.
Underwriters contend that the three letters Twilio sent the
Defendants about the Flowers litigation satisfied the control of
defense condition, contending that the sufficiency of these letters
as tenders of defense is an issue of fact unsuitable for resolution
on summary judgment.
The Court of Appeals opines that Twilio's three letters to the
Defendants are insufficient as a matter of law to constitute a
tender of Twilio's defense to them, so they do not present a
genuine issue of material fact precluding summary judgment.
Underwriters also did not waive and are not estopped from enforcing
the condition regarding the indemnifying parties' control of
defense and settlement. In addition, the trial court's failure to
address the tolling agreement does not change the analysis because
the tolling agreement came too late. Handy's waiver of the right to
control the defense after August 2018 cannot change the fact that
Twilio had long since failed to comply with the control of defense
and settlement condition.
Underwriters next quarrel with the trial court's characterization
of the "Conditions of Indemnification" provision as establishing
conditions precedent. The Civil Code states that contractual
conditions "may be precedent, concurrent, or subsequent."
The Court of Appeals finds that although they dispute that the
control of defense condition is a condition precedent, Underwriters
nowhere explain what other kind of condition it could be or the
significance of any such alternative classification. The only
plausible alternative is to call it a condition concurrent, but
that would not change the outcome. Relatedly, if Twilio had offered
the Defendants the right to control Twilio's defense and settlement
of the Flowers litigation, the Defendants' refusal to exercise that
right would surely prevent them from relying on the condition to
defeat their indemnity obligations, whether because the condition
is a condition concurrent or under a theory of waiver, estoppel, or
some other doctrine.
Underwriters then argue the trial court rewrote the conditions of
indemnification by ruling that Twilio had to tender the defense of
the Flowers litigation and offer to confer settlement authority on
the Defendants to be entitled to indemnity. They contend the only
affirmative obligation the ESAs placed on Twilio was to promptly
notify the Defendants of the Flowers complaint.
Underwriters' interpretation of the ESAs is not plausible, the
Court of Appeals opines. The only way for Twilio to assert or
request the benefits of the indemnity agreement, given the control
of defense condition, was to inform the Defendants that it was
placing its defense in their hands in some fashion. If Twilio never
offered control over its defense to the Defendants, they had no
reason to ask for it. This is especially true because the
Defendants continue to dispute whether they would owe an indemnity
under the agreements even if Twilio had satisfied the express
conditions in the ESAs.
Underwriters also accuse the trial court of requiring Twilio to use
"magic words" to tender the defense of the Flowers case to
defendants, instead of allowing the notice of claim to serve as the
request for a defense.
But as the trial court pointed out, the ESAs describe the three
conditions of indemnity in the conjunctive, entitling the
Defendants to notice, exclusive control, and cooperation from
Twilio. The Court of Appeals opines that because the agreements
list three independent conditions and join them with the
conjunction "and," it would be improper to construe the agreements
to allow notice alone to satisfy the control of defense condition,
thereby rendering the control of defense condition surplusage. By
stating that Twilio itself intended to defend the litigation
vigorously and by then proceeding to control its own defense,
Twilio's letters and behavior deprived the Defendants of their
exclusive control rights and therefore failed to satisfy the
control condition.
In their fifth argument, Underwriters contend the trial court
disregarded section 2778, which they contend gave Twilio the right
to conduct its own defense if it wished. But the Court of Appeals
opines that the ESAs evince a contrary intent by making the
Defendants' exclusive control of the defense and settlement of a
claim "a condition of the obligations" to "defend, indemnify, and
hold Twilio harmless." The ESAs thus displaced the right to defend
itself that Twilio may have had under subdivision 4 of section
2778.
Underwriters' sixth argument, like their fourth, borrows from
insurance law. They argue the trial court's ruling that Twilio was
not entitled to indemnity because it failed to request a defense
violates the notice-prejudice rule, which requires an insurer to
prove that the insured's late notice of a claim has substantially
prejudiced its ability to investigate and negotiate payment for the
insured's claim. They accuse the trial court of failing to address
the need for defendants to prove prejudice and failing to cite any
authority permitting defendants to avoid their indemnity
obligations due to defective notice.
Because the control of defense and settlement condition implicates
the same concerns and Underwriters offer no reason why the Court of
Appeals should treat the two types of conditions differently, it
likewise declines to apply the notice-prejudice rule. Underwriters
cite no case applying the notice-prejudice rule outside the
insurance context. Moreover, even if the rule did apply to
indemnity agreements, it still would not be grounds for reversing
the judgment. As the name suggests, the notice-prejudice rule
concerns an insurer's ability to deny coverage because of an
insured's failure to give timely notice of a claim.
The Underwriters also argue that the trial court erred in granting
summary judgment of their claims for equitable indemnity.
According to the Court of Appeals the Underwriters' contention that
the trial court erred in granting summary judgment of their
equitable claims for the pre-2014 period fails for the same reason.
In each of their claims for equitable indemnity, comparative
equitable indemnity, and apportionment of fault, Underwriters
alleged they were entitled to equitable relief in the alternative
to their express indemnity claims, in the event that the ESAs were
declared unenforceable. The Defendants had no reason to suspect
Underwriters were claiming equitable relief as to the time period
preceding the ESAs.
Underwriters then challenge the trial court's grant of summary
judgment as to their breach of contract claims based on the ESAs,
which they contend are separate from their claims for contractual
indemnity based on the ESAs.
The breach of contract claims are a classic claim for implied
indemnity, the Court of Appeals holds. And because implied
indemnity is a type of equitable indemnity, Underwriters' breach of
contract claims are therefore barred under the rule that when
parties have expressly contracted with respect to the duty to
indemnify, the extent of that duty must be determined from the
contract and not by reliance on the independent doctrine of
equitable indemnity.
Underwriters' appeal from the trial court's order granting the
Defendants their attorney's fees as prevailing parties in a dispute
arising from the ESAs rests primarily on the argument that the
Defendants should not have prevailed at summary judgment. Because
the Court of Appeals affirms the trial court's summary judgment
ruling, it also affirm its ruling that the Defendants were
prevailing parties.
Finally, Underwriters argue the amount of fees the Superior Court
awarded Handy constitutes an abuse of discretion. But the Court of
Appeals opines that Underwriters have failed to demonstrate that
the $650,000 award to Handy was so large, either in isolation or in
comparison to Zillow's award, that it shocks the conscience,
suggests the trial court was influenced by passion or prejudice, or
was otherwise an abuse of discretion.
Hence, the trial court's judgment and orders are affirmed.
A full-text copy of the Court's June 28, 2023 Opinion is available
at https://tinyurl.com/bbpr32zm from Leagle.com.
Asbestos Litigation
ASBESTOS UPDATE: J&J to Pay Cancer Patient $18.8MM in Exposure Suit
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Brendan Pierson, writing for Reuters.com, reports that Johnson &
Johnson's (JNJ.N) must pay $18.8 million to a California man who
said he developed cancer from exposure to its baby powder, a
setback for the company as it seeks to settle thousands of similar
cases over its talc-based products in U.S. bankruptcy court.
The jury ruled in favor of Emory Hernandez Valadez, who filed suit
last year in California state court in Oakland against J&J, seeking
monetary damages. Hernandez, 24, has said he developed
mesothelioma, a deadly cancer, in the tissue around his heart as a
result of heavy exposure to the company's talc since childhood. The
six-week trial was the first over talc that New Brunswick, New
Jersey-based J&J has faced in almost two years.
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