/raid1/www/Hosts/bankrupt/CAR_Public/230815.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, August 15, 2023, Vol. 25, No. 163
Headlines
3M COMPANY: Allen Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Green Sues Over Exposure to Toxic Foams & Chemicals
3M COMPANY: Murray Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Ricketts Sues Over Exposure to Toxic Chemicals
3M COMPANY: Simpson Sues Over Exposure to Toxic Foams & Chemicals
AMAZON.COM SERVICES: Fails to Pay Time Spent for COVID Screenings
AMERICAN EXPRESS: Theodore Sues Over Excessive Interest Charges
AMGEN INC: Robbins Geller Named Lead Counsel in Roofers Class Suit
ANDREWS & LAWRENCE: Sanctions vs. Lawrence in Bertinelli Suit Nixed
ANNE FONTAINE: Faces Mackey FTSA Suit Over Telephonic Sales Calls
ATHENE ANNUITY: Fails to Secure Customers' Info, Weissman Alleges
BANK OF MONTREAL: Holiday Pay Class Action Set to Be Certified
BAUSCH HEALTH: Bids for Lead Plaintiff Appointment Due Sept. 25
BCCL WORLDWIDE: Kishore Alleges Unlawful Private Info Disclosure
BELL ENERGY: Filing for Class Cert. Bid Due Jan. 15, 2024
BEREAL: Faces Class Action in Illinois Over BIPA Violations
BP EXPLORATION: Becht's Bid to Compel Production of Docs Denied
BRIAN COLLIER: Court Tosses Bid for Class Certification
BRISTOW US: Fails to Pay Overtime Wages Under FLSA, Mosley Alleges
BUMBLE INC: Court Denies Bid to Dismiss Dzananovic BIPA Class Suit
BWS INSPECTION: Fails to Pay OT Wages Under FLSA, Pearrow Alleges
BWS INSPECTION: Fails to Pay OT Wages Under FLSA, Wood Alleges
CADILLAC CASTING: Underpays Maintenance Workers, Wilson Suit Claims
CALIFORNIA: Angel Appeals Case Dismissal Ruling to 9th Cir.
CAROLINA LOGISTICS: Fails to Pay Minimum & OT Wages, Litvinyuk Says
CHARLES MACHINE: Remand of Remillard Suit to Superior Court Denied
CHARTER COMMUNICATIONS: Faces Mulvihill Suit Over Robocalls
CHURCH CHURCH: Class Settlement in Hollins Suit Has Prelim. Nod
COMFORT EXPERTS: Starling Must File Bid Class Cert Bid by Dec. 8
CONNECTICUT: Filing for Class Cert. Bid Due March 4, 2024
CONTRA COSTA COUNTY, CA: Settle Bus Drivers' Suit for $190,000
CV PIZZA: Fails to Pay Minimum & OT Wages Under FLSA, Martinez Says
DOUGLAS HOLDINGS: Suit Seeks Conditional Cert. of Settlement Class
DVH HOSPITAL: Alvarez Alleges Unpaid OT, Untimely Payment of Wages
E & E OF FIVE: Nwajei Seeks to Recover Misappropriated Tips
EL RANCHON STEAKHOUSE: Hernandez Seeks to Recover Unpaid Wages
EQUIFAX INFORMATION: Seeks to Stay Proceedings Pending Prior Action
EXTREME LOANS: Miller Sues Over Illegal Telemarketing Calls
FALU CORP: Fails to Pay Minimum & OT Wages, McIntyre Suit Alleges
FROEDTERT HEALTH: Fails to Pay Proper Wages, Lutz Claims
GEMSTONE SUPERMARKETS: Reyes Sues Over Cooks' Unpaid Overtime
GOBRANDS INC: Initial Approval of Class Action Settlement Sought
GOODRX HOLDINGS: Lowey, Bursor Named Co-Lead Class Counsel in Doe
GOOGLE LLC: Faces Williams Class Suit Over TrueView Video Ads
GREATBANC TRUST: McDermott Defendants Seek to Alter Schedule
HALAL GUYS: Compelled to Produce Redacted Docs in Hegazy Labor Suit
HDR ENGINEERING: Bacani Suit Remanded to Riverside Superior Court
IDEXX DISTRIBUTION: Mac Dula Sues Over Failure to Pay Proper Wages
INFORMA MEDIA: W.D. Michigan Refuses to Toss Gottsleben PPPA Suit
INJURED WORKERS: Pierce Atwood Discusses Ruling in Breach Suit
INOVA HEALTH: Court Narrows Claims in Ellison Class Action
JLM DECORATING: August 28 Extension to File Class Cert Bid Sought
KONTOOR BRANDS: Illegally Wiretaps Website Visitors, Licea Says
LAS VEGAS SANDS: Faces Securities Suit Over SG Casino Operations
LEHIGH HANSON: Hardy Sues Over Site Supervisors' Unpaid Overtime
LEPRINO FOODS: Finder Bid to Stay Proceedings Denied w/o Prejudice
LEVIN PAPANTONIO: Must Face TCPA Class Action, Court Rules
LLR INC: Van Seeks More Time to File Class Cert. Reply
LOS ANGELES, CA: Must Face Prearraignment Cash Bail Class Action
LUXOTTICA RETAIL: Settles Accufit Class Action for $39 Million
MARCHANT-SCHMIDT: Haen Sues Over Material Expeditors' Unpaid Wages
MARYLAND: Bid for Summary Judgment Deferred in Fitch Suit
MASTRONARDI PRODUCE-USA: Prelim Approval of Settlement Deal Sought
MATERION BRUSH: $1.5MM Class Settlement in Lucyk Suit Has Final OK
MCMENAMINS INC: Kirby Bid to File First Amended Complaint OK'd
MIAMI LAKES: Fails to Provide Proper Wages, Carrion Says
MIDLAND CREDIT: Faces Suit in Calif. Over Unlawful Debt Collection
MITSUBISHI CHEMICAL: Humphries Alleges Breach of Fiduciary Duties
MULTICOIN CAPITAL: Faces O'Keefe Class Suit Over FTX Fraud
MULVADI CORP: Judge Okays $7.8MM Class Action Settlement
NEW JERSEY: Dismissal of Federal Claims in Marrara v. Murphy Upheld
OPIE'S OUTPOST: James Seeks to Recover Unpaid Overtime Wages
PENSION BENEFIT: Sanguinetti Files Data Breach Class Action
PENUMBRA INC: Continues to Defend Labor Code-Related Class Suit
PEPSICO INC: Hoskin Sues Over Unauthorized Collection of Biometrics
PHARMERICA CORP: Young Sues Over Unprotected Personal, Health Info
PHILO INC: Court Defers Ruling on Bid to Dismiss May Class Suit
PHREESIA INC: Kellyman Sues Over Illegal Debt Collection Practices
PILGRIM'S PRIDE: 10th Cir. Reverses Dismissal of Securities Suit
PLANETART LLC: Faces Najera Suit Over Illegal Biometric Collection
POSITANO PIZZA: Fails to Pay OT Wages Under FLSA, McGuire Alleges
PPG IND: Parties Must Complete Fact Discovery by April 26, 2024
PROVIDENCE PUBLIC: PLEE Suit Seeks Class Certification
QUEST DIAGNOSTICS: Court Modifies July 13, 2023 Order in ERISA Suit
RANGE RESOURCES: Filing for Class Cert. Bid Extended to Nov. 13
REALPAGE INC: Dempsey Sues Over Inflated Student Housing Prices
REGULATORY DATACORP: Carr's Bid to Seal Class Cert Docs Granted
ROHM CO: Settles Class Suit Over Capacitors' Price Fixing Scheme
ROOSEVELT UNIVERSITY: Narasimhan Balks at Unprotected Personal Info
SCHUTZ CONTAINER: Faces Welch Wage-and-Hour Suit in D.N.J.
SEA LIMITED: Faces Muraweh Class Suit Over 17.74% Share Price Drop
SENIOR EXCHANGE: Court OK's Case Management Plan in Jimenez Suit
SIEMENS INDUSTRY: Enomoto Suit Removed to N.D. California
STELLENBOSCH UNIVERSITY: Fraud Scheme Class Action Can Proceed
SUBARU OF AMERICA: Class Certification Bids Due August 13, 2024
SYNGENTA CROP: Ott Sues Over Overpriced Crop Protection Products
SYRACUSE UNIVERSITY: Settles Class Action Over 2020 Data Breach
TIGER GLOBAL: Faces O'Keefe Class Action Suit Over FTX Fraud
TOOLEY OIL: Seeks to File Docs in Antitrust Suit Under Seal
TORRANCE REFINING: White Suit Remanded to LA County Superior Court
TRANSPARENT BUSINESS: Greenberg Sues Over Unsolicited Sales Calls
TRIAD PIZZA: Class Settlement in Lester Suit Gets Initial OK
TRIUMPH CSR: Moore Sues Over Pre-Recorded Telemarketing Calls
UNITED AIRLINES: Hughes Allowed Leave to Amend Complaint
UNITED STATES: Faces Class Action Over Handling of Asylum Seekers
UNITED STATES: Faces Masseur Suit Over Breast Milk Express Breaks
UNIVERSAL PRESSURE: Rodriguez Seeks Hitch Workers' Unpaid Overtime
VENICE HMA: Loses Bid to Dismiss White's First Amended Complaint
VI-JON LLC: Moreno Appeals Dismissal Order in Mislabeling Suit
WAKE FOREST: Agrees to Settle Class Action Over ERISA Violations
WASHINGTON, DC: Class Cert Bid Briefing Stayed in V.C. Suit
WEGMANS FOOD: Second Extension of Class Cert Deadline Sought
WELLS FARGO: Class Settlement in McCoy Suit Wins Final Approval
WICHITA, KS: Class Cert. Response Due August 11 in Progeny
YMCA: Ortiz Files Suit in Cal. Super. Ct.
YOUNG ADULT: Fails to Pay Therapist Minimum & OT Wages, Turner Says
ZELOUF INTERNATIONAL: Herrera ADA Suit Removed to S.D. New York
ZUFFA LLC: Garcia Suit Removed to D. Nevada
[*] GSE Litigation Revolves Around Financial Illiteracy
*********
3M COMPANY: Allen Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Paul David Allen, 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-03698-RMG (D.S.C., July 31, 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 Plaintiff's working career in the
military and/or as a civilian and was diagnosed with prostate
cancer as a result of exposure to the Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
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: Green Sues Over Exposure to Toxic Foams & Chemicals
---------------------------------------------------------------
Samuel J. Green, 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-03701-RMG (D.S.C., July 31, 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 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: Murray Sues Over Exposure to Toxic Film-Forming Foams
-----------------------------------------------------------------
Cynthia Murray, and Tom Murray by the Proposed Administrator and
Next-of-Kin, Cynthia Murray, 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 PRODUCTS LP, as
successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:23-cv-03723-RMG (D.S.C., Aug. 1,
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
Decedent in their intended manner, without significant change in
the products' condition. Decedent 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.
Decedent's consumption, inhalation and/or dermal absorption of PFAS
from Defendant's AFFF products caused Decedent to develop the
serious medical conditions and complications alleged herein
including death.
Through this action, Plaintiff seeks to recover compensatory and
punitive damages arising out of the permanent and significant
damages sustained as a direct result of Decedent's exposure to
Defendants' AFFF products at various locations during the course of
Decedent's training and firefighting activities. Plaintiff further
seeks injunctive, equitable, and declaratory relief arising from
the same, says the complaint.
The Plaintiff Cynthia Murray is the proposed personal
representative/administrator/executor of the Estate of Tom Murray
who regularly used, and was thereby directly exposed to, AFFF in
training and to extinguish fires during his working career as a
military and/or civilian firefighter and was diagnosed with brain
cancer as a result of exposure to the Defendants' AFFF products.
Decedent's diagnosis caused and/or contributed to his death.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Ricketts Sues Over Exposure to Toxic Chemicals
----------------------------------------------------------
Joseph Ricketts, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company), Case No.
2:23-cv-03686-RMG (D.S.C. July 31, 2023), is brought for damages
for personal injury resulting from exposure to the toxic chemicals
collectively known as per and polyfluoroalkyl substances ("PFAS").
PFAS includes, but is not limited to, perfluorooctanoic acid
("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related
chemicals including those that degrade to PFOA and/or PFOS.
The Defendant collectively designed, marketed, developed,
manufactured, distributed, released, promoted, sold, and/or
otherwise inappropriately disposed of PFAS chemicals with knowledge
that it was highly toxic and bio persistent, which would expose
plaintiff to the risks associated with PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendant knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Plaintiff was unaware of the dangerous PFAS in his drinking
water and unaware of the toxic nature of the Defendant's PFAS in
general. Plaintiff's consumption of PFAS from Defendant's
contamination and inappropriate disposal caused Plaintiff to
develop the serious medical conditions and complications alleged
herein.
Through this action, Plaintiff seeks to recover compensatory and
punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to Defendant's
PFAS at various locations. Plaintiff further seeks injunctive,
equitable, and declaratory relief arising from the same, says the
complaint.
The Plaintiff was exposed to PFAS chemicals through drinking water
both at home and at his place of work, due to contamination on
behalf of the 3M plant in Decatur, Alabama and potential AFFF
sources, and was diagnosed with prostate cancer as a result of
exposure to Defendant's PFAS contamination.
The Defendant is a designer, marketer, developer, manufacturer,
distributor, releaser, promotors and seller of PFAS chemicals.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
- and -
Hunter Garnett, Esq.
GARNETT PATTERSON INJURY LAWYERS
100 Jefferson St S #300
Huntsville, AL 35801
Phone: 256-539-8686
3M COMPANY: Simpson Sues Over Exposure to Toxic Foams & Chemicals
-----------------------------------------------------------------
Matthew W. Simpson, 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-03702-RMG (D.S.C., July 31,
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 Plaintiff's working career in the
military and/or as a civilian and was diagnosed with
hyperthyroidism 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
AMAZON.COM SERVICES: Fails to Pay Time Spent for COVID Screenings
-----------------------------------------------------------------
BOBBY MUNIZ, on behalf of himself and on behalf of all others
similarly situated, Plaintiff v. AMAZON.COM SERVICES, LLC,
Defendant, Case No. 5:23-cv-02768 (E.D. Pa., July 19, 2023) is a
class action lawsuit brought by the Plaintiff, individually and on
behalf of all others similarly situated, against the Defendant to
recover unpaid wages, penalties, and attorneys' fees and costs
pursuant to the Pennsylvania Minimum Wage Act.
According to the complaint, the Defendant implemented an illegal
policy requiring its non-exempt workers to undergo a COVID-19
screening each shift without pay. This physical and medical
examination constitutes compensable time that was worked by the
Plaintiff. By failing to pay for this time worked, Amazon has
violated Pennsylvania law. In addition to the Plaintiff, Amazon has
failed to pay for the time spent undergoing COVID-19 screenings by
thousands of other workers across the Commonwealth of Pennsylvania,
says the suit.
The Plaintiff worked for Amazon as an hourly, non-exempt employee
at the Easton fulfilment center in Pennsylvania. He worked as a
fulfillment center associate from approximately May 2020 to October
2020.
Amazon.com Services, LLC provides e-commerce services with its
principal place of business located in Seattle, Washington.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
2 Greenway Plaza, Ste. 250
Houston, TX 77046
Telephone: (713) 999-5228
E-mail: matt@parmet.law
- and -
Don J. Foty, Esq.
HODGES & FOTY, LLP
2 Greenway Plaza, Suite 250
Houston, TX 77046
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
AMERICAN EXPRESS: Theodore Sues Over Excessive Interest Charges
---------------------------------------------------------------
DIANA THEODORE v. AMERICAN EXPRESS NATIONAL BANK, Case No.
3:23-cv-03710-AGT (N.D. Cal., July 26, 2023) is a class action
brought by the Plaintiff alleging that American Express violated
the Credit Card Accountability, Responsibility, and Disclosure Act
of 2009 by increasing the interest rates on its credit cards ten or
more times since March 2022, imposing those increases on protected
balances and failing to provide the required 45-day notice.
Despite the crushing impact of the variable rate hikes on millions
of cardholders across the United States -- and the massive revenue
these hikes have generated for the Defendant credit card issuers --
the Defendant designed and adopted a proprietary calculation method
to unlawfully increase credit card interest rates over this period.
Specifically, since March 2022, the Defendant has repriced and
recalculated daily interest charges imposed on the Plaintiff and
the Classes of cardholders before the Prime Rate index has actually
increased and imposed these rate increases on cardholders'
protected balances. As a result, millions of the Defendant's
cardholders have been charged and paid excessive interest on
transactions that should never have endured those interest rate
increases, says the suit.
The Plaintiff brings this action to recover actual damages for
herself and the proposed Class and Subclass and also to secure
injunctive and declaratory relief ordering American Express to
cease and desist in this unlawful practice.
The Plaintiff brings this proposed class action on behalf of
herself and, under Rules 23(a), 23(b)(2) & 23(b)(3) of the Federal
Rules of Civil Procedure, on behalf of herself and both a
nationwide class and a California subclass:
All American Express consumer credit card cardmembers who
carried a card balance from at least one billing period to
another between March 2022 and today on a variable rate
credit card (the "Class").
All American Express consumer credit card cardmembers who
carried a card balance from at least one billing period to
another between March 2022 and today on a variable rate
credit card while a resident of the State of California
(the "Subclass").
Excluded from this proposed class are the Defendant; Defendant's
affiliates and subsidiaries; the Defendant's current or former
officers and directors; the Defendant's current employees, agents,
or other representatives; the district judge and magistrate judge
to whom this case is assigned and those judges' immediate
families.
Plaintiff Diana Theodore is a citizen of the State of California,
and has been an American Express credit cardholder.
American Express, a federal savings bank and wholly-owned
subsidiary of American Express Company, issues several credit cards
under the American Express brand.[BN]
The Plaintiff is represented by:
Ben M. Harrington, Esq.
Shayne C. Stevenson, Esq.
Breanna Van Engelen, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
E-mail: benh@hbsslaw.com
shaynes@hbsslaw.com
breannav@hbsslaw.com
- and –
Knoll D. Lowney, Esq.
Claire Tonry, Esq.
SMITH & LOWNEY, PLLC
2317 E. John Street
Seattle, WA 98112
Telephone: (206) 860-2883
Facsimile: (206) 860-4187
E-mail: knoll@smithandlowney.com
claire@smithandlowney.com
AMGEN INC: Robbins Geller Named Lead Counsel in Roofers Class Suit
------------------------------------------------------------------
In the case, ROOFERS LOCAL NO. 149 PENSION FUND, on behalf of
itself and all others similarly situated, Plaintiff v. AMGEN INC.,
et al., Defendants, Case No. 23 Civ. 2138 (JPC) (S.D.N.Y.), Judge
John P. Cronan of the U.S. District Court for the Southern District
of New York grants Asbestos Workers Philadelphia Pension Fund's
unopposed motion for appointment as Lead Plaintiff and of Robbins
Geller Rudman & Dowd LLP as Lead Counsel.
The Complaint in this proposed class action, initially filed March
13, 2023, alleges that Defendants Amgen and two of its senior
executives, defrauded members of the public who purchased Amgen
common stock. On the same date, the law firm of Robbins Geller,
which serves as counsel to both Named Plaintiff Roofers Local No.
149 Pension Fund and Lead Plaintiff Movant the Asbestos Fund, two
purported members of the proposed class seeking compensation in
this action, issued a press release through the newswire service
Business Wire announcing that the action had been filed and
describing the allegations made therein.
As explained in the press release, any member of the proposed class
could move the Court for appointment as Lead Plaintiff at any point
through the first business day at least 60 days from the
publication of the press release -- in this case, by May 12, 2023.
Two such motions were filed by that date. The former sought the
appointment of the Plumbers and Steamfitters Local 60 Pension Trust
("Local 60") as Lead Plaintiff and the appointment of its counsel,
Labaton Sucharow LLP, as Lead Counsel. The latter sought the
appointment of the Asbestos Fund as Lead Plaintiff and of Robbins
Geller as Lead Counsel. Subsequently, upon reviewing the competing
motion filed by the Asbestos Fund, Local 60 withdrew its motion,
leaving the Asbestos Fund's motion unopposed.
Judge Cronan explains that in a class action arising under the
Securities Exchange Act of 1934, 15 U.S.C. Sections 78a-78qq, a
district court will appoint as lead plaintiff the member or members
of the purported plaintiff class that the court determines to be
most capable of adequately representing the interests of class
members, whom the law refers to as the most adequate plaintiff.
That provision further sets forth the procedures that a court must
employ in order to identify the most adequate plaintiff.
In particular, the court must "adopt a presumption that the most
adequate plaintiff" is the "person or group of persons" who satisfy
three conditions. First, the most adequate plaintiff must have
either filed the complaint or moved for appointment as Lead
Plaintiff. Second, the most adequate plaintiff must, in the
determination of the court, have the largest financial interest in
the relief sought by the class. Third, the most adequate plaintiff
must otherwise satisfy the requirements of Rule 23 of the Federal
Rules of Civil Procedure.
The Asbestos Fund satisfies these conditions. First, it has filed a
timely motion for appointment as Lead Plaintiff. Second, in the
Court's determination, the Asbestos Fund is the person or group of
persons with the largest financial interest in the relief sought by
the class. Finally, the Asbestos Fund satisfies the relevant
requirements of Rule 23 of the Federal Rules of Civil Procedure.
Thus, the Asbestos Fund satisfies the various requirements that it
must meet to benefit from the statutory presumption that it is the
most adequate plaintiff: it has timely moved to be appointed Lead
Plaintiff, it has the largest financial interest known to the Court
in the relief sought by the class, and it both advances claims
typical of the class and can be expected to fairly and adequately
protect the interests of the class. And since no plaintiff (nor any
other party) has offered any proof to rebut the presumption that
the Asbestos Fund is the most adequate plaintiff, the presumption
has not been rebutted. Consequently, Judge Cronan finds that the
Asbestos Fund is the most adequate plaintiff and therefore appoints
it the Lead Plaintiff, as required by law.
Having been appointed the Lead Plaintiff, the Asbestos Fund is
vested with the authority to select Lead Counsel for the class.
Judge Cronan has reviewed Robbins Geller's firm resume, which sets
forth its extensive experience representing plaintiffs in
securities class actions and profiles the partners and other
attorneys who have led those representations. Consequently, he
grants approval for the Asbestos Fund's choice of Lead Counsel.
Judge Cronan therefore appoints the Asbestos Fund as the Lead
Plaintiff and Robbins Geller as the Lead Counsel. The Clerk of
Court is respectfully directed to close the motions pending at
Docket Numbers 16 and 20. The Lead Plaintiff and the Defendants
will jointly propose a schedule for the Lead Plaintiff to amend the
Complaint, if it so wishes, and for the Defendants to answer or
otherwise respond to whichever pleading is then operative.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/25rtz6rz from Leagle.com.
ANDREWS & LAWRENCE: Sanctions vs. Lawrence in Bertinelli Suit Nixed
-------------------------------------------------------------------
In the cases, ANDREWS & LAWRENCE PROFESSIONAL SERVICES, LLC,
Defendant and 3rd-Party Plaintiff-Appellant v. ALEXA BERTINELLI;
CIVIL JUSTICE, INC.; RICHARD SCOTT GORDON; GORDON, WOLF & CARNEY,
CHTD., Third Party Defendants-Appellees. TORIN KIRK ANDREWS; KARY
B. LAWRENCE, Defendants and 3rd-Party Plaintiffs-Appellants, and
ANDREWS & LAWRENCE PROFESSIONAL SERVICES, LLC, Defendant v. ALEXA
BERTINELLI; CIVIL JUSTICE, INC.; RICHARD SCOTT GORDON; GORDON, WOLF
& CARNEY, CHTD., Third Party Defendants-Appellees, Case Nos.
22-1592, 22-1658 (4th Cir.), the U.S. Court of Appeals for the
Fourth Circuit affirms in part and vacates in part the district
court's order awarding Rule 11 sanctions against Appellants Andrews
& Lawrence Professional Services, LLC (ALPS), Torin Andrews, and
Kary Lawrence.
The Fourth Circuit affirms the district court's orders granting
Rule 11 sanctions against Lawrence Professional Services, L.L.C.
and Torin Andrews, and vacates the sanctions order against Kary
Lawrence.
The case originated in Maryland circuit court. Appellees Richard
Gordon, an attorney with the law firm of Gordon, Wolf & Carney,
Chtd., and Alexa Bertinelli, an attorney with Civil Justice Inc.,
filed class actions on behalf of several homeowners against their
homeowners' associations and management companies (collectively,
"the HOAs"), challenging the legality of promissory notes
containing confessed judgment clauses ("CJPNs") used by the HOAs
when resolving disputes with homeowners over unpaid HOA fees. ALPS,
Andrews, and Lawrence, who were the collection attorneys for the
HOAs, were included as defendants in the class actions given their
role in drafting and executing the CJPNs. Because attorney fees are
included in the total amount of the promissory note, the collection
attorneys are also third-party beneficiaries under the CJPNs.
Generally speaking, the CJPNs provide that if a homeowner defaults
on a payment agreement, the Defendants may enter judgment in the
full amount due under the promissory note, plus costs and attorney
fees, without notice or process given to the homeowner. The
homeowners agreed to the CJPNs to avoid collection actions for
unpaid HOA dues. However, while the case at bar was proceeding, the
Maryland Court of Appeals held that Maryland's Consumer Protection
Act prohibited the use of promissory notes containing confessed
judgments to collect delinquent HOA assessments.
The court explained that the legislature "has determined that the
use of a contract related to a consumer transaction which contains
a confessed judgment clause that waives a consumer's right to
assert a legal defense to an action constitutes an unfair, abusive,
or deceptive trade practice and is therefore prohibited." It
concluded that the collection of HOA assessments falls within the
broad purview of the Consumer Protection Act, which prohibits the
use of confessed judgment clauses for the collection of consumer
debts.
On Feb. 3, 2021, shortly after the Defendants removed the action to
federal court, the Plaintiffs filed a fifth amended complaint,
asserting class action claims against the defendants and, inter
alia, claims alleging violations of the Maryland Consumer
Protection Act, Md. Code Ann., Com. Law Section 13-101 et seq., and
the Fair Debt Collection Practices Act, 15 U.S.C. Sections 1692e
and 1692f. They thereafter reached settlement agreements with the
HOAs, which include a stipulation that the CJPNs are void and
unenforceable. Defendants ALPS, Andrews, and Lawrence are the only
remaining Defendants, and they have represented themselves in this
action.
On March 8, 2021, ALPS, Andrews, and Lawrence (the "third-party
Plaintiffs") filed a third-party complaint against counsel for the
Plaintiffs, naming Gordon and his law firm, and Bertinelli and her
employer, as the third-party Defendants. Count I alleged that the
third-party Defendants engaged in a civil conspiracy to solicit
clients to sue the third-party Plaintiffs for their role in
drafting and enforcing the CJPNs, in violation of Maryland's
criminal barratry statute. Count II alleged that the third-party
Defendants intentionally and with malice interfered with the
third-party Plaintiffs' rights under the CJPNs by "forcing" the
HOAs, through intimidation and coercion, to agree to voiding the
promissory notes, thereby cancelling the third-party Plaintiffs'
rights as express beneficiaries of the settlement contracts. The
third-party claim included no factual allegations of particular
conduct engaged in by the third-party Defendants.
On April 21, 2021, the third-party Defendants filed a joint motion
for judgment on the pleadings as to the merits of the third-party
complaint and a motion for sanctions under Rule 11 for filing the
third-party complaint. On March 1, 2022, the district court granted
the motion for judgment on the pleadings.
The district court held that the intentional interference claim was
wholly conclusory -- unsupported by any specific factual
allegations to support it. It held that the civil conspiracy claim
also failed because Maryland's barratry statute, which is a
criminal statute, provides no private right to a cause of action
and, therefore, cannot serve as the predicate for a civil
conspiracy action.
In the alternative, the district court held that, even if the
criminal barratry statute could give rise to a civil conspiracy
claim for tortious conduct, the third-party Plaintiffs failed to
allege facts that plausibly alleged the criminal offense of
barratry. The district court also granted the third-party
Defendants' motion for sanctions under Rule 11 and, on May 12,
2022, ordered ALPS to reimburse legal counsel for the third-party
Defendants in the total amount of $27,349.
On May 26, the district court amended its May 12 order to clarify
that the award of sanctions applied to the individual attorneys --
Andrews and Lawrence -- in addition to ALPS. See Fed. R. Civ. P.
11(c)(1). Payment was due within 14 days. ALPS, Andrews, and
Lawrence filed interlocutory appeals from both orders, as well as
motions for reconsideration and to stay payment of the sanctions
award. The district court denied the motions and, on Oct. 25, 2022,
directed entry of a final judgment on the March 1 and May 26
orders.
Under Rule 54(b), the Fourth Circuit may review an otherwise
interlocutory order if the district court directs entry of a final
judgment as to one or more, but fewer than all, claims or parties
and, as in this case, expressly determines that there is no just
reason for delay. The Fourth Circuit reviews the Rule 54(b)
certification for abuse of discretion.
In the case, the district court's dismissal of the third-party
complaint and award of sanctions under Rule 11 resolved all claims
between the parties to the third-party complaint and addressed
issues separate from the claims involved in the underlying lawsuit.
The district court also denied the Defendants' motion to stay the
sanctions award. The Fourth Circuit holds that the district court
did not abuse its discretion in certifying the judgment under Rule
54(b) and therefore proceed to the merits of this appeal. It
reviews the district court's decision to impose sanctions for an
abuse of discretion.
The Fourth Circuit discerns no abuse of discretion in the district
court's decision to award sanctions against ALPS and Andrews. It
holds that the third-party complaint contained wholly conclusory
claims -- unsupported by factual allegations, unwarranted by
existing law or a nonfrivolous argument for extending the law, and
filed to harass, delay, and increase the costs of the
already-protracted litigation.
The intentional interference claim fares even worse, the Fourth
Circuit opines. It says the third-party Plaintiffs asserted, with
not a shred of factual allegations in support, that the third-party
defendants intimidated, coerced and forced the HOAs to agree to
rescind the promissory notes to eliminate the third-party
Plaintiffs' rights under the notes. On the contrary, it is not
surprising that, in light of the Goshen Run ruling, the HOAs agreed
to void the CJPNs as a part of their settlement agreements with the
Plaintiffs.
For these reasons, the Fourth Circuit affirms the award of
sanctions against ALPS and Andrews. However, it vacates and remands
the district court's order as applied to Lawrence. Andrews signed
the third-party complaint on behalf of the third-party Plaintiffs,
but Lawrence had retired from the firm by that time and, therefore,
was merely a "represented party."
In its May 26 order, the district court imposed sanctions upon
ALPS, Andrews, and Lawrence under Rule 11(b)(1)-(3). In an August
12 order, however, it clarified that the sanctions were imposed
upon ALPS and Andrews for violations of Rules 11(b)(1)-(3) and upon
Lawrence for violations of Rule 11(b)(1) and (b)(3). The district
court did not, however, explain why Lawrence was responsible for
those violations. Accordingly, the Fourth Circuit vacates and
remands the sanctions order as applied to Lawrence for
reconsideration and, if sanctions are reimposed, an explanation as
to why they are appropriate.
For the foregoing reasons, the Fourth Circuit affirms the district
court's orders granting Rule 11 sanctions against Lawrence
Professional Services, L.L.C. and Torin Andrews. It vacates the
sanctions order against Kary Lawrence and remands for further
proceedings in accordance with its Opinion.
A full-text copy of the Court's July 7, 2023 Opinion is available
at https://tinyurl.com/3275zeh8 from Leagle.com.
ON BRIEF: Torin K. Andrews, COMMUNITY ASSOCIATION LEGAL SERVICES,
LLC, Ijamsville, Maryland, for the Appellants.
R. Scott Krause -- Scott.Krause@lewisbrisbois.com -- LEWIS BRISBOIS
BISGAARD & SMITH, LLP, Baltimore, Maryland, for Appellees Richard
School Gordon and Gordon, Wolf & Garney, Chtd. Mark G. Chalpin,
Gaithersburg, Maryland, for Appellees Alexa Bertinelli and Civil
Justice, Inc.
ANNE FONTAINE: Faces Mackey FTSA Suit Over Telephonic Sales Calls
-----------------------------------------------------------------
HUNTER MACKEY, individually and on behalf of all others similarly
situated V. ANNE FONTAINE USA, INC., Case No. CACE-23-015954 (Fla.
Cir., July 21, 2023) alleges that the Defendant violated the
Florida Telephone Solicitation Act's Caller ID Rules by
transmitting a phone number that was not configured for two-way
communication when it made telephonic sales calls by text message.
The Defendant allegedly transmitted 24129 to Plaintiff' s Cell
Phone's caller identification service when it made the Anne
Fontaine Text Message Sales Calls. The Plaintiff called 24129 and
the call could not be completed as dialed. The Plaintiff also
attempted to text the Anne Fontaine Callers by sending the
following text message: Do you offer express shipping. In response,
the Plaintiff received only a generic automated message that did
not answer his question. As such, with each Anne Fontaine Text
Message Sales Calls, the Defendant transmitted a telephone number
to the Caller ID Service of the Plaintiff and the Plaintiff Class
that was not capable of receiving telephone calls and failed to
connect the recipients, including the Plaintiff, to the Anne
Fontaine Callers, as explicitly required by the FTSA's Caller ID
Rules, the lawsuit claims.
The Plaintiff and the members of the Plaintiff Class are entitled
to $500 in liquidated damages against the Defendant for each
violation of the Caller ID Rules. The Plaintiff and the members of
the Plaintiff Class are also entitled to an injunction requiring
the Defendant to transmit to Plaintiffs' caller identification
services a telephone number that is capable of receiving telephone
calls and that connects to Anne Fontaine Callers when it makes Anne
Fontaine Text Message Sales Calls, the lawsuit adds.
The Plaintiff is the regular user of a cellular telephone number
that receives Defendant's telephonic sales calls, and resides in
Broward County, Florida.
Anne Fontaine sells various goods to persons throughout
Florida.[BN]
The Plaintiff is represented by:
Joshua A. Glickman, Esq.
Shawn A. Heller, Esq.
SOCIAL JUSTICE LAW COLLECTIVE, PL
974 Howard Ave.
Dunedin, FL 34698
Telephone: (202)709-5744
Facsimile: (866)893-0416
E-mail: josh@sjlawcollective.com
shawn@sjlawcollective.com
ATHENE ANNUITY: Fails to Secure Customers' Info, Weissman Alleges
-----------------------------------------------------------------
RICHARD WEISSMAN, individually and on behalf of all others
similarly situated v. ATHENE ANNUITY AND LIFE COMPANY and PENSION
BENEFIT INFORMATION, LLC, Case No. 1:23-cv-03999 (D.N.J., July 26,
2023) sues the Defendants for their failure to secure and safeguard
his and approximately 1,209,825 other individuals' personally
identifying information, including their names, partial mailing
addresses, dates of birth, and Social Security Numbers.
Athene provides the PII and Personal Health Information of its
customers to PBI in connection with PBI's audit and address
research services. On May 31, 2023, PBI were informed by Progress
Software of a vulnerability in the MOVEit software that had been
"exploited by an unauthorized third party." PBI learned through
their investigation that the third party accessed one of their
MOVEit servers on May 29 and May 30, 2023 and "downloaded data."
PBI began notifying affected persons of the Data Breach on July 14,
2023, over a month after learning of the Data Breach, says the
suit.
As a direct result of the Data Breach, the Plaintiff has allegedly
suffered injury and damages including actual damages of $371.06 to
retain a company to monitor the identity theft caused by the
Defendants; a substantial and imminent risk of identity theft; the
wrongful disclosure and loss of confidentiality of his highly
sensitive PII/PHI; deprivation of the value of his PII/PHI; and
overpayment for services that did not include adequate data
security.
Thus, the Plaintiff asserts claims for negligence, breach of
fiduciary duty, breach of implied contract, and unjust enrichment,
and seeks declaratory relief, injunctive relief, monetary damages,
statutory damages, punitive damages, equitable relief, and all
other relief authorized by law.
Athene provides annuities or related services.[BN]
The Plaintiff is represented by:
Barry J. Gainey, Esq.
GAINEY McKENNA & EGLESTON
375 Abbott Road
Paramus, NJ 07652
Telephone: (201) 225-9001
Facsimile: (201) 225-9002
E-mail: bgainey@gme-law.com
- and -
Thomas J. McKenna, Esq.
Gregory M. Egleston, Esq.
GAINEY McKENNA & EGLESTON
501 Fifth Avenue, 19th Floor
New York, NY 10017
Telephone: (212) 983-1300
Facsimile: (212) 983-0383
E-mail: tjmckenna@gme-law.com
gegleston@gme-law.com
BANK OF MONTREAL: Holiday Pay Class Action Set to Be Certified
--------------------------------------------------------------
Investment Executive reports that a proposed class action against
Bank of Montreal seeking holiday and vacation pay for certain
employees paid largely on commission is on the verge of being
certified in the Supreme Court of British Columbia.
In the case, Paul Cheetham, who worked as a "private wealth
consultant" at the bank, brought a proposed class action on behalf
of non-unionized employees who were paid variable compensation
(commissions and bonuses on top of a base salary) -- specifically
other private wealth consultants and mortgage specialists. The
class action claimed damages for breach of contract and breach of
duty of good faith stemming from unpaid statutory vacation and
holiday pay.
The bank opposed certification of the suit, arguing among other
things that the employees' variable compensation included their
required vacation and holiday pay.
The court largely sided with the proposed plaintiff, ruling that
the case meets the tests for certifying a case as a class action.
Among other things, the court said there's a potentially viable
claim for breach of contract, that a class action is the
"preferable procedure" for these claims, and that Cheetham is a
suitable representative plaintiff for the case.
However, the court said that before the case can be certified as a
class action, the claim needs to be amended so that certain other
proposed issues meet the requirements of class action legislation.
Without those revisions, the plaintiff's pleadings are
"insufficient to support a claim for breach of the duty of good
faith," the court said in its decision.
"However, the plaintiff has articulated a manner in which the claim
can be framed to disclose a proper cause of action for a breach of
the duty of good faith," it said.
"In the circumstances, I find that it is appropriate to permit the
plaintiff an opportunity to amend his pleadings to plead breach of
the duty of good faith."
The court dismissed some of the proposed grounds for the action,
finding they aren't viable.
Once the claim is revised in line with the court's direction, the
claim will be in a position to be certified as a class action.
"The parties are to arrange for a further hearing to discuss the
timing of the submissions and the next steps in this litigation
that arise from these reasons," the court said. [GN]
BAUSCH HEALTH: Bids for Lead Plaintiff Appointment Due Sept. 25
---------------------------------------------------------------
Law Offices of Howard G. Smith on Aug. 1 disclosed that a class
action lawsuit has been filed on behalf of investors who purchased
Bausch Health Companies Inc. ("Bausch" or the "Company") (NYSE:
BHC) securities between August 6, 2020 and May 3, 2023, inclusive
(the "Class Period"). Bausch investors have until September 25,
2023 to file a lead plaintiff motion.
Investors suffering losses on their Bausch investments are
encouraged to contact the Law Offices of Howard G. Smith to discuss
their legal rights in this class action at 888-638-4847 or by email
to howardsmith@howardsmithlaw.com.
On May 4, 2023, Bausch released its first quarter 2023 financial
results, revealing negative earnings, indicating further delay of
its B+L spinoff share distribution, which had been originally
scheduled for May 2022. Analysts claimed that the probability of a
distribution was now less than 50% and unlikely to occur in the
near term.
On this news, Bausch's stock price fell $1.51, or 25.3%, to close
at $5.89 per share on May 4, 2023, thereby injuring investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) the B+L spinoff would not result in two strong separate
companies; (2) without B+L, Bausch was left overly leveraged and
without the cashflow generated by B+L; (3) distribution of the B+L
spinoff shares would not occur as represented; (4) the above
statements omitted and/or concealed the potential damages Bausch
faced from the Opt-Out Plaintiffs; (5) the spinoff was not intended
to benefit Bausch shareholders but instead designed to subvert the
Opt-Out Plaintiffs' lawsuit against the company; and (6) as a
result, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis at all relevant times.
If you purchased Bausch securities, have information or would like
to learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Howard G. Smith, Esquire, of Law Offices of
Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at
(888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or
visit our website at www.howardsmithlaw.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
Law Offices of Howard G. Smith
Howard G. Smith, Esquire
215-638-4847
888-638-4847
howardsmith@howardsmithlaw.com
www.howardsmithlaw.com [GN]
BCCL WORLDWIDE: Kishore Alleges Unlawful Private Info Disclosure
----------------------------------------------------------------
HARI KISHORE and BRETT WALKER, on behalf of themselves and all
others similarly situated, Plaintiffs v. BCCL WORLDWIDE, INC.,
Defendant, Case No. 3:23-cv-03594-SK (N.D. Cal., July 20, 2023)
arises from the Defendant's unlawful disclosure of Plaintiffs' and
Class Members' private information about their personal
video-viewing habits and activities in violation of the Video
Privacy Protection Act and the California's Unfair Competition
Law.
BCCL Worldwide Inc. is a California corporation headquartered in
Redwood City, San Mateo County, California. It does business as
Willow TV, a video-streaming and paid-cable service offering access
to pre-recorded cricket matches.
According to the complaint, despite a clear legal obligation to
keep Plaintiffs' and other Class Members' video choices private,
Willow chose to affirmatively disclose this information to a third
party, Meta Platforms Inc., without Plaintiffs' or other Class
Members' knowledge or authorization. Using pieces of tracking
software, including the Meta Pixel, Willow purposefully discloses
its customers' viewing choices to Meta (formerly Facebook) so that
Willow may more effectively profit from its users' private data.
And Willow not only fails to seek specific consent to extract its
users' data for profit, it affirmatively promises users that it
will not do that, writing on its website that "[w]e do not provide
any personally identifiable information to third party websites . .
. without your consent."
Instead of complying with the law and honoring its promises to keep
its customers' information private, Willow sent the full titles of
the videos that Plaintiffs and other Class Members watched on
Willow to Meta alongside unique information allowing members of the
public and Meta to easily identify them. Willow never sought, let
alone received, Plaintiffs' or other Class Members' consent to do
this. The Plaintiffs accordingly bring this class action on behalf
of themselves and all others similarly situated to recover actual
and statutory damages against Willow for its alleged unlawful
conduct.[BN]
The Plaintiffs are represented by:
Julian Hammond, Esq.
Christina Tusan, Esq.
Adrian Barnes, Esq.
Ari Cherniak, Esq.
Polina Brandler, Esq.
HAMMONDLAW, P.C.
1201 Pacific Ave, 6th Floor
Tacoma, WA 98402
Telephone: (310) 807-1666
E-mail: jhammond@hammondlawpc.com
ctusan@hammondlawpc.com
abarnes@hammondlawpc.com
acherniak@hammondlawpc.com
pbrandler@hammondlawpc.com
- and -
Jason Harrow, Esq.
GERSTEIN HARROW LLP
3243B S. La Cienega Blvd.
Los Angeles, CA 90016
Telephone: (323) 744-5293
E-mail: jason@gerstein-harrow.com
- and -
Charles Gerstein, Esq.
GERSTEIN HARROW LLP
810 7th Street NE, Suite 301
Washington, DC 20002
Telephone: (202) 670-4809
E-mail: charlie@gerstein-harrow.com
BELL ENERGY: Filing for Class Cert. Bid Due Jan. 15, 2024
---------------------------------------------------------
In the class action lawsuit captioned as SHAWN MILLER, individually
and on behalf of all others similarly situated, v. BELL ENERGY
SERVICES, LLC AND DAKOTA PETROLEUM SERVICES, LLC, Case No.
1:23-cv-00051-CRH (D.N.D.), the Hon. Judge Clare R. Hochhalter
entered an order adopting the parties' proposed
scheduling/discovery plan with the following modification:
(1) The parties shall make by August 15, 2023, Rule 26(a)(1)
initial disclosures.
(2) The parties propose the following discovery plan:
(a) Discovery will be needed on these subjects, and the
parties
propose that it be conducted in two phases:
Phase 1 Discovery:
1) whether a collective and/or a class action is
appropriate in this matter.
Phase 2 Discovery:
1) whether the Defendants properly paid compensation to
the
Plaintiff and potential class members as required by
the
Fair Labor Standards Act and the North Dakota Century
Code 34 and the North Dakota Minimum Wage and Work
Conditions Order (N.D. Admin Code section
46-02-07-01,
et seq.
2) whether the Defendants acted in good faith or with
reasonable grounds in the payment of wages to the
Plaintiff and potential class members;
3) defenses asserted by the Defendants and any
exemptions
to the FLSA and the ND Wage Laws requirements
governing
payment of overtime; and
4) the amount of alleged damages, if any.
(b) Disclosure, discovery, or preservation of electronically
stored information should be handled as follows: To the
extent it is available, the parties agree to produce
electronically stored information in pdf format unless
otherwise requested and agreed to by the parties.
(3) The parties have agreed to the following deadlines for
filing
Motions for Collective Action/Class Action:
Motions for collective/class certification: Jan. 15,
2024
Response to motions for collective/class Jan. 31,
2024
Certification:
Reply: Feb. 15,
2024
(4) The parties shall be ready to evaluate March 1,
2024
the case for settlement purposes by:
Bell Energy is a company that operates in the Utilities industry.
A copy of the Court's order dated July 19, 2023 is available from
PacerMonitor.com at https://bit.ly/43OwT6S at no extra charge.[CC]
BEREAL: Faces Class Action in Illinois Over BIPA Violations
-----------------------------------------------------------
Kelsey McCroskey, writing for Class Action.org, reports that a
proposed class action lawsuit claims French photo-sharing app
BeReal has unlawfully captured, stored and used Illinois residents'
biometric data, including facial geometry, without consent.
The 19-page lawsuit alleges that the homonymous company behind the
app has violated the Illinois Biometric Information Privacy Act
(BIPA) by collecting and storing users' biometric information
without notice or written consent and failing to provide publicly
available policies that outline how long it will retain their data
and when it will be destroyed.
According to the suit, a consumer who creates a BeReal account
--which requires them to enter their name, birthdate and phone
number -- is subsequently prompted by the app once a day to take a
picture of themselves and share it with friends.
As the case tells it, if a user does not capture a photo of their
face, the app may flash a message on the screen stating, "who goes
there?" or "[u]mm, anybody here?" Similarly, the app may comment
with "[a]ye what a smile" or "[b]onus point for the smile!" if the
individual is smiling in the picture, the complaint relays.
The filing claims these flashed messages indicate that the app uses
facial detection and facial expression recognition software, both
of which rely on scans of face geometry—a biometric identifier
protected under the BIPA.
Although BeReal readily discloses that it captures "all sorts of
different data" -- such as a user's photos, geolocation, "event
logs" and more -- the app's terms and privacy policy make no
mention of collecting biometric information, the lawsuit states.
The defendant declares that the facial geometry scans captured by
the app's software are not sent back to BeReal's servers but are
stored only on the user's device, the suit explains. However,
because BeReal has failed to notify consumers that the app collects
their biometric information, users are not aware that they would be
exposing themselves if their devices were to fall into the wrong
hands, the case contends.
"Whether or not the biometric information remains solely on a
user's phone, no user has any knowledge that this sensitive
information has been obtained and sits on their phone," the
complaint says. "If a user's phone is hacked or lost, then the
biometric information surreptitiously collected on the phone puts
the [plaintiff and other users] at risk."
The plaintiff, a New York resident, started using the BeReal app in
July 2022, the filing says. Despite the BIPA's requirements, BeReal
never obtained written consent before capturing the man's biometric
information or provided guidelines for the retention and
destruction of his protected data, the case alleges.
The lawsuit looks to represent anyone who had their face geometry
collected and/or stored by BeReal while residing in Illinois. [GN]
BP EXPLORATION: Becht's Bid to Compel Production of Docs Denied
---------------------------------------------------------------
In the case, GEORGE BECHT v. BP EXPLORATION & PRODUCTION, INC., ET
AL., SECTION "J" (2), Civil Action No. 23-1119 (E.D. La.),
Magistrate Judge Donna Phillips Currault of the U.S. District Court
for the Eastern District of Louisiana denies:
a. the Plaintiff's Motion to Compel Production of Document;
b. the Plaintiff's Motion to Stay or Defer Ruling on Partial
Dismissal; and
c. Defendants BP Exploration & Production, Inc. and BP America
Production Company's Ex Parte Motion for Leave to File
Document under Seal for In Camera Inspection.
Plaintiff Becht filed this Back-End Litigation Option ("BELO")
lawsuit against Defendants BP Exploration & Production, Inc. and BP
America Production Co. seeking compensation for two
Later-Manifested Physical Conditions ("LMPCs"), as defined in the
Deepwater Horizon Medical Benefits Class Action Settlement
Agreement (the "MSA"), allegedly caused by exposure to crude oil
and clean-up chemicals while performing response activities as a
boat captain in the aftermath of the Deepwater Horizon Oil Spill.
The Defendants filed a Motion for Partial Dismissal, alleging that
the Plaintiff's claim of prostate cancer must be dismissed as
untimely and for failure to satisfy conditions precedent mandated
by the MSA. The parties submitted briefs and obtained leave to file
supplemental memoranda. Currently in dispute is Exhibit No. 6 to
the Plaintiff's Surreply Memorandum, which exhibit was obtained
during discovery in a separate BP case filed in the Northern
District of Florida. The document is a four-page calendar
invitation for a 2011 industrial hygiene conference call containing
a detailed meeting agenda transmitted by one of BP's in-house
attorneys to other in-house and outside counsel and several
non-attorney BP employees.
Upon notification by the Plaintiff's counsel that the document
would be exhibited in the Plaintiff's Surreply, the Defense counsel
clawed back the document, invoking attorney-client privilege and
work product protection. The Defendants also filed a Notice of
Confidential Document indicating that the disputed document was
produced to the Plaintiff's counsel in another Deepwater Horizon
case, is subject to a protective order in that case, and the
privilege status of the document should be briefed in the other
case given the operative protective order there.
The Plaintiff then filed a Motion to Compel production of same,
disputing the attorney-client privilege and work product
designations. Specifically, he asserts that the document is not
privileged because the in-house attorney who authored it was
predominantly acting in his capacity as a business advisor rather
than providing legal advice. Even if the document contains
privileged communications, the Plaintiff argues he has a
substantial need for the document and is unable to obtain the
substantial equivalent of the document without undue hardship,
hence production is warranted under FED. R. CIV. P. 26(b)(3).
Alternatively, the Plaintiff avers that the crime-fraud exception
and/or implied waiver doctrine should apply. Finally, he argues
that the Court can appropriately render a privilege determination
although the document was produced in another case and under
another Court's protective order because that protective order only
provides procedures for challenging confidentiality, not privilege.
He also moved for a stay or deferral of ruling on the Defendants'
motion for partial dismissal pending a ruling on the disputed
document.
The Defendants oppose the motion to compel, arguing that the
document is facially privileged and subject to the protection set
forth in the Frassetti protective order, noting that the magistrate
judge in that case recently ruled that a similar document was
protected by attorney-client privilege and not subject to any
waiver or exception. They further reiterate their privilege and
work product protection arguments, emphasize that the privileged
nature of the document entitled Defendants to claw back same,
dispute the Plaintiff's contention that BP waived its privilege
assertion, and argue that the substantial need and crime-fraud
exceptions do not apply. The Defendants also filed a Motion for
Leave to File Document under Seal Document for In Camera
Inspection, attaching the disputed exhibit and requesting that the
court seal same in its entirety.
In Reply, the Plaintiff argues that the Defendants cannot equitably
use the "dual role" its attorneys played during the oil spill
response to shield "purely industrial hygiene and sampling-related
workstreams." He also clarifies that he did not proffer the
document to defense counsel as evidence of causation, but rather in
support of his equitable tolling arguments, and reiterates that the
exceptional need exception applies because the Plaintiff cannot
obtain the substantial equivalent of the materials by other means
without undue burden due to BP's fraudulent concealment. Finally,
the Plaintiff avers that a privilege determination is a factual
determination, thus the Northern District of Florida's recent Order
granting the Defendants' Motion to Enforce Protective Order does
not apply as it pertains to a different document that presents an
entirely different factual circumstance.
Judge Currault explains that the document at issue was produced
during discovery in another Deepwater Horizon case, Frassetti v.
BP, No. 21-551 (N.D. Fla.), filed in December 2020. That case was
dismissed by joint stipulation in 2022. The document was produced
subject to the protection set forth in the Northern District of
Florida's Order Governing Confidential Materials and Discovery of
Electronically Stored Information in that case (the "Frassetti
order").
The Frassetti order provides that information may be designated as
confidential when the producing party reasonably believes that the
information disclosed contains information subject to protection
under FED. R. CIV. P. 26(c). Further, all confidential information
in that case will be kept confidential by the parties and used
solely for the purpose of investigation the claims and defenses
asserted in that matter and for no other purpose.
If any party objects to a confidential designation, the party must
transmit a written objection, attempt to resolve the dispute
informally, and, if no agreement can be reached, counsel may move
for informal pre-motion mediation with that court. The Frassetti
order is subject to modification: "Nothing in this Protective Order
will preclude any of the parties from otherwise seeking a
modification of this Protective Order through motions made before
this Court." The Frassetti Court retained jurisdiction to enforce
the Protective Order at the conclusion of the litigation.
The Plaintiff does not seek modification of the Frassetti order.
Rather, he asks the Court to disregard the Frassetti order
altogether, arguing that Judge Currault can determine whether the
Defendants' privilege invocation is proper because the Frassetti
order only provides procedures for challenging confidentiality.
Judge Currault holds that he will not ignore a governing protective
order issued by another federal court. Further, it does not appear
that the Plaintiff has properly issued discovery in the case before
seeking to compel production of this document. No Request for
Production is included, no response to same, no privilege log, and
no other item suggesting that the document at issue has been
requested in this case. Considering the impropriety of a privilege
review of the disputed document at this time, the unredacted
version of the document must be stricken from the record.
Moreover, Judge Currault holds that the Plaintiff's argument that
ruling on the Defendants' pending Motion for Partial Summary
Judgment would be premature prior to a ruling on the disputed
document is without merit. Despite the Plaintiff's characterization
of the document as "key" to his fraudulent concealment claim, he
has referenced numerous other exhibits to his Complaint in support
of that argument and he has not demonstrated that ruling on the
Defendants' motion without consideration of the disputed document
would cause him any hardship. The Motion for Partial Dismissal is
fully briefed, and the court will consider same under the
parameters of Rule 12 and Supreme Court precedent regarding the
appropriate consideration of documents in support or opposition of
dismissal without further undue delay.
For the foregoing reasons, Judge Currault cannot undertake review
of a document subject to another court's Protective Order unless or
until that Court rules on the confidentiality designation of the
document and grants the parties permission to disclose same to
collateral litigants. Accordingly, he denies the Plaintiff's Motion
to Compel, the Plaintiff's Motion to Stay or Defer Ruling, and the
Defendants' Motion for Leave to File Document Under Seal for In
Camera Review.
The Clerk is instructed to strike from the record the document
temporarily filed under seal at ECF No. 23-2 in accordance with
Local Rule 5.6.
A full-text copy of the Court's July 7, 2023 Order & Reasons is
available at https://tinyurl.com/2p9haets from Leagle.com.
BRIAN COLLIER: Court Tosses Bid for Class Certification
-------------------------------------------------------
In the class action lawsuit captioned as JUAN MANUEL ALBARADO, v.
BRIAN COLLIER, et al., Case No. 9:19-cv-00226-MAC-ZJH (E.D. Tex.),
the Hon. Judge Marcia A. Crone entered an order that:
-- The Report and Recommendation of United States Magistrate
Judge;
and
-- The motion for class certification is denied.
The Plaintiff Juan Manuel Albarado, proceeding pro se, filed this
civil rights lawsuit. The court previously referred this matter to
the Honorable Zack Hawthorn, United States Magistrate Judge, at
Beaumont, Texas, for consideration pursuant to applicable laws and
orders of the court.
The magistrate judge has submitted a Report and Recommendation of
United States Magistrate Judge recommending that a motion for class
certification be denied. To date, the parties have not filed
objections.
A copy of the Court's order dated July 19, 2023 is available from
PacerMonitor.com at https://bit.ly/3OEg7D9 at no extra charge.[CC]
BRISTOW US: Fails to Pay Overtime Wages Under FLSA, Mosley Alleges
------------------------------------------------------------------
BENJAMIN MOSLEY; STEVEN TUCKER; GRAYSON YOUNG; KURT STRANGE; and
GLENN JIMENEZ, individually and on behalf of those similarly
situated, v. BRISTOW U.S., LLC and BRISTOW HOLDINGS U.S., INC.,
Case No. 2:23-cv-02674 (E.D. La., July 21, 2023) seeks to recover
unpaid overtime wages under the Fair Labor Standards Act.
The Plaintiffs, along with other similarly situated individuals in
the tech crew, AMTs, and pilots, were required to work at least
twelve hours per day for fourteen straight days - totaling a
minimum of 84 hours per week. However, the Plaintiffs and those
similarly situated would be directed to only clock in for 11.43
hours per day, even though they worked twelve hours per day, and
oftentimes longer depending on Defendants' needs, the lawsuit
alleges.
Further, after working a minimum of 168 hours over a two week
period, 84 hours per week, the Plaintiffs and those similarly
situated would receive a bi-weekly paycheck reflecting only 80
hours, 88 hours less than they actually worked, and including no
overtime for the 44 plus hours of overtime worked in those weeks,
the lawsuit claims.
The Plaintiffs and those similarly situated under the same unlawful
pay policies were non-exempt employees under the FLSA and were
never paid an overtime rate of one and one-half times their regular
rate of pay for hours worked in excess of 40 hours per week.
The Plaintiffs and those similarly situated routinely requested
explanation on the Defendants' instituted pay schemes and were
often not responded to, or simply informed that the pay scheme was
"company policy" without further explanation.
The Plaintiffs seek restitution of unpaid wages, an award of
damages, attorneys' fees, costs, and declaratory relief to make
them and similarly situated current and former employees of Bristow
Defendants whole for the damages they have suffered due to the
Defendants' unlawful pay practices and violations of law.
Plaintiffs Mosley, Tucker, and Young are/were "tech crew"
employees, and the Plaintiffs Jimenez and Strange pilots, for
Defendants' helicopter company.
Bristow US is a helicopter company performing operations on the
Louisiana coast from Defendants' Louisiana business location in
Galliano, LA.[BN]
The Plaintiffs are represented by:
Kenneth C. Bordes, Esq.
KENNETH C. BORDES, ATTORNEY AT LAW, LLC
4224 Canal St.
New Orleans, LA 70119
Telephone: (504) 588-2700
Facsimile: (504) 708-1717
E-mail: kcb@kennethbordes.com
- and -
Charles J. Stiegler, Esq.
STIEGLER LAW FIRM LLC
318 Harrison Ave., Suite 104
New Orleans, La. 70124
Telephone: (504) 267-0777
Facsimile: (504) 513-3084
E-mail: Charles@StieglerLawFirm.com
BUMBLE INC: Court Denies Bid to Dismiss Dzananovic BIPA Class Suit
------------------------------------------------------------------
In the case, DARIO DZANANOVIC, individually and on behalf of all
others similarly situated, Plaintiff v. BUMBLE, INC., et al.,
Defendants, Case No. 21-cv-06925 (N.D. Ill.), Judge Andrea R. Wood
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, denies the Defendants' motion to dismiss the
complaint for lack of personal jurisdiction.
Dzananovic, an Illinois resident, has brought this putative class
action against Defendants Bumble, Inc., Buzz Holdings L.P. ("Buzz
Holdings" or "Bumble Holdings"), and Bumble Trading LLC, claiming
that they violated Illinois's Biometric Information Privacy Act
("BIPA"), 740 ILCS 14/1 et seq. Specifically, Dzananovic alleges
that the Defendants used their facial recognition technology to
collect his biometric information while he used the photo
verification feature on the Bumble online dating application. Now
before the Court is the Defendants' motion to dismiss the complaint
for lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2).
As alleged, the Bumble App is a popular dating platform -- with
approximately 100 million registered users globally -- on which
women initiate contact with prospective dating partners. The App
functions using "a freemium model," where certain services are
free, but users must pay for subscriptions or in-app purchases to
access premium features. In the third quarter of 2021, for example,
the Bumble App generated $142.5 million in revenue from premium
services.
Bumble, Inc. is an American social media company that formerly
operated the Bumble App; it is now a holding company with a
controlling equity interest in Buzz Holdings. Bumble, Inc. manages
Buzz Holdings' business and affairs and controls Bumble Trading's
operations. While Bumble Holdings operates the Bumble App, Bumble
Trading runs the marketing and advertising of the Bumble App in the
United States and controls personal information collected and
processed through the App. Bumble, Inc.'s main source of revenue
from the App consists of users' subscriptions and in-app purchases.
The Defendants generate revenue from thousands of paying users in
Illinois.
Dzananovic is an Illinois resident who has used the Bumble App
since March 2021. To use the Bumble App, users must provide
personal identifying information ("PII"), including date of birth,
location, gender identity, and sexual preference; Bumble then
collects, retains, and uses the data for targeted marketing
practices. Additionally, Bumble has machine learning capabilities,
allowing it to analyze users' behavioral information to personalize
potential matches shown to users and to target users who are more
apt to become paid members. Further, the App has an optional photo
verification feature to help protect users from fake accounts.
The Defendants promote the photo verification feature as a way for
users to flirt, connect, and network comfortably, knowing the
person you're talking to is exactly who they say they are. To
verify an account, a user uploads a photograph mimicking a pose
that the App provides, and the App subsequently reviews the photo
and confirms or rejects the requested verification. In particular,
the App uses an artificial intelligence tool to conduct a facial
scan of the photo, extract geometric data from it, and then create
a facial template.
BIPA regulates private entities' collection, use, safeguarding,
handling, storage, retention, and destruction of biometric
identifiers and information. According to Dzananovic, the
Defendants violated BIPA by failing to inform him and other
Illinois residents that they were collecting, storing, and using
their biometric information and identifiers when they used the
Bumble App. As a result, Dzananovic has sued the Defendants on
behalf of himself and a class of similarly situated Illinois
residents who had their biometric information and/or biometric
identifiers collected, captured, received, or otherwise obtained,
or disclosed by the Defendants while residing in Illinois.
The Defendants argue that the Complaint must be dismissed under
Rule 12(b)(2) because the Court lacks personal jurisdiction over
them.
Judge Wood states that the Court can exercise either general or
specific personal jurisdiction over a defendant. Dzananovic does
not contend that the Court has general jurisdiction over these
Defendants, so Judge Wood limits her present inquiry to whether it
has specific jurisdiction. For the Court to exercise specific
personal jurisdiction: (1) defendants must have purposefully
directed their activities at the forum state or purposefully
availed themselves of the privilege of conducting business in the
forum; (2) the alleged injury must arise out of or relate to the
defendants' forum-related activities; and (3) any exercise of
personal jurisdiction must comport with traditional notions of fair
play and substantial justice.
First, Judge Wood considers whether the Defendants purposefully
directed their activities at Illinois or purposefully availed
themselves of the privilege of conducting business in Illinois.
With respect to Bumble Trading, she opines that Dzananovic has made
a sufficient showing that Bumble Trading purposefully directed its
activities toward Illinois and purposefully availed itself of the
Illinois market.
Regarding Bumble, Inc. and Buzz Holdings, she opines that resolving
factual disputes in the filings and declarations in Dzananovic's
favor for present purposes, Bumble, Inc. and Buzz Holdings have a
role in the operation and marketing of the Bumble App and
leveraging of user data for targeted marketing. Thus, for the same
reasons as with respect to Bumble Trading, Judge Wood concludes
that Bumble, Inc. and Buzz Holdings purposefully availed themselves
of the Illinois market and purposefully directed their activities
toward Illinois.
Next, Judge Wood addresses whether Dzananovic's claim arises out of
or relates to the Defendants' forum-related activities. The
Defendants argue that Dzananovic's BIPA claim, which pertains to
their alleged collection of his biometric information through the
Bumble App's photo verification feature, does not arise out of or
relate to Bumble Trading's marketing of the App.
Judge Wood determines that Dzananovic's BIPA claim relates to the
Defendants' forum activities. She opines that the Defendants have
presented no authority suggesting that marketing activity in the
forum state must specifically mention a specific feature or benefit
of a platform, such as the photo verification feature, for a
connection to exist between the marketing activity and the
plaintiff's claim -- especially when the feature is promoted
nationally.
Finally, Judge Wood considers whether exercising jurisdiction over
the Defendants would offend traditional notions of fair play and
substantial justice. She opines that exercising personal
jurisdiction over the Defendants comports with traditional notions
of fair play and substantial justice. The Defendants have done more
than just make the Bumble App accessible in Illinois; specifically,
they have used the Bumble App to purposefully avail itself of the
Illinois market and have conducted targeting marketing in
Illinois.
Accordingly, for the foregoing reasons, the Defendants' motion to
dismiss is denied.
A full-text copy of the Court's July 7, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/3rkzvv8t from
Leagle.com.
BWS INSPECTION: Fails to Pay OT Wages Under FLSA, Pearrow Alleges
-----------------------------------------------------------------
DAMON PEARROW, individually and on behalf of all others similarly
situated v. BWS INSPECTION SERVICES, LLC, Case No.
6:23-cv-00529-ADA-DTG (W.D. Tex., July 21, 2023) seeks to recover
unpaid overtime wages and other damages under the Fair Labor
Standards Act.
The Plaintiff contends that instead of paying overtime, the
Defendant paid their employees (including the Plaintiff) a set "day
rate" for each day worked regardless of the total number of hours
worked in a week. Accordingly, the Day Rate Workers all regularly
worked in excess of 40 hours each week and were scheduled for
12-hour shifts for weeks at a time. The Defendant knowingly,
willfully, and/or in reckless disregard carried out these illegal
policies that deprived the Plaintiff and the Day Rate Workers of
overtime wages in violation of the FLSA, the Plaintiff alleges.
The class of similarly situated employees (the "Day Rate Workers")
consist of:
"All current and former inspectors who worked for or on behalf
of BWS Inspection Services, LLC were paid a day rate at anytime
in the past three years."
The Plaintiff worked as an inspector for BWS from November 2019 to
October 2021.
BWS provides inspection services to the oil and gas industry and
BWS's services include the inspection of pipeline and facility
construction, maintenance, and operations.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
BWS INSPECTION: Fails to Pay OT Wages Under FLSA, Wood Alleges
--------------------------------------------------------------
JERROD WOOD and DAMON PEARROW, on behalf of themselves and on
behalf of all others similarly situated v. BWS INSPECTION SERVICES,
LLC, Case No. 6:23-cv-00538-ADA-JCM (W.D. Tex., July 26, 2023)
alleges that the Defendant failed to compensate the Plaintiffs and
all other similarly situated workers at the rate of time and one
half their regular rate of pay for all hours worked over 40 in a
workweek as required under the Fair Labor Standards Act and the New
Mexico Minimum Wage Act.
According to the complaint, although the Defendant permitted and/or
required the FLSA Class Members to work in excess of 40 hours per
workweek, the Defendant has denied them full compensation for their
hours worked over 40. Accordingly, the Defendant did not pay the
Plaintiffs on a salary basis. Instead, the Defendant paid the
Plaintiffs a set day rate regardless of the number of hours they
worked each day or each week. The Defendant did not pay Plaintiffs
a minimum, guaranteed amount each week, says the suit.
Plaintiffs Jerrod Wood and Damon Pearrow and the employees they
seek to represent are current and former employees paid on a day
rate basis by the Defendant.
The Defendant operates in the oil and gas industry and performs
inspection services.[BN]
The Plaintiffs are represented by:
Don J. Foty, Esq.
HODGES & FOTY, L.L.P.
2 Greenway Plaza, Suite 250
Houston, TX 77046
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
CADILLAC CASTING: Underpays Maintenance Workers, Wilson Suit Claims
-------------------------------------------------------------------
KENNETH WILSON, individually and on behalf of all others similarly
situated, Plaintiff v. CADILLAC CASTING, INC., Defendant, Case No.
1:23-cv-00786 (W.D. Mich., July 25, 2023) is a class action against
the Defendant for its failure to pay overtime wages in violation of
the Fair Labor Standards Act of 1938 and the Michigan's Improved
Workforce Opportunity Wage Act.
The Plaintiff worked as an hourly-paid, non-exempt employee in the
position of maintenance at Defendant's Cadillac, Michigan location
from March 2023 until early June 2023.
Cadillac Casting, Inc. is an iron foundry company, with its
principal place of business located at 1500 4th Avenue, Cadillac,
Michigan. [BN]
The Plaintiff is represented by:
Scott S. Luzi, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: sluzi@walcheskeluzi.com
CALIFORNIA: Angel Appeals Case Dismissal Ruling to 9th Cir.
-----------------------------------------------------------
Plaintiffs Janine Angel, et al., filed an appeal from the District
Court's Order dated June 15, 2023 entered in the lawsuit entitled
JANINE ANGEL, et al. v. CINDY MARTEN, et al., Case No.
2:21-cv-07333-ODW-PVC, in the U.S. District Court for the Central
District of California, Los Angeles.
On September 14, 2021, Plaintiff Janine Angel, individually and on
behalf of her child C.A., along with several other disabled
California public school students and their parents, brought suit
against the California Department of Education, Governor Gavin
Newsom, several California school districts, and the school
districts' superintendents, alleging that Defendants denied the
Student Plaintiffs a Free Appropriate Public Education as required
by the federal Individuals with Disabilities Education Act when
Defendants closed schools and transitioned to remote instruction
during the COVID-19 pandemic.
The Defendants moved to dismiss Plaintiffs' Second Amended
Complaint dated December 6, 2022 pursuant to Federal Rule of Civil
Procedure 12(b)(1) and (b)(6).
Defendants California Department of Education, Chris Essman, and
Tony Thurmond separately moved to dismiss the claims against them
pursuant to Rule 12(b)(1) on the grounds that they have settled the
claims against them on January 9, 2023.
On January 23, 2023, Defendants Berryessa Union School District,
Capistrano School District, Roxanne Fuentes, Kirsten M. Vital
Brulte also filed a motion to dismiss Plaintiffs' second amended
complaint.
On June 15, 2023, Judge Otis D. Wright, II entered an Order
GRANTING Defendants' January 9, 2023 motion to dismiss and denying
as moot Defendants' January 23, 2023 motion to dismiss.
The appellate case is captioned as Janine Angel, et al. v. Cindy
Marten, et al., Case No. 23-55625, in the United States Court of
Appeals for the Ninth Circuit, filed on July 18, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellants Maria Alavarez Garcia, Janine Angel, Erin
Bebereia, Hannah Bell, Yvonne Chavez Lombardi, Michele Florentz,
Jessica Granados, Tina Gunn, Kiimberly A. Hill, Miranda Keck,
Shushanik Khachaturian, Tamara Lowder, Michael Martin, Jesse W.
McFaddin, Megan Meier, Michelle Radich, Maria Rizzo, Kerry Sarner,
Leanna Wasco and Dana West Mediation Questionnaire was due on July
25, 2023;
-- Appellants Maria Alavarez Garcia, Janine Angel, Erin
Bebereia, Hannah Bell, Yvonne Chavez Lombardi, Michele Florentz,
Jessica Granados, Tina Gunn, Kiimberly A. Hill, Miranda Keck,
Shushanik Khachaturian, Tamara Lowder, Michael Martin, Jesse W.
McFaddin, Megan Meier, Michelle Radich, Maria Rizzo, Kerry Sarner,
Leanna Wasco and Dana West opening brief due 09/20/2023. Appellees
Andre G. Alvarado, Berryessa Union School District, Troy A. Brown,
Austin Buetner, Burbank Unified School District, California
Department of Education, Capistrano School District, Chino Unified
School District, Conejo Valley Unified School District, Kelly
Dextraze, Norm Enfield, Chris Essman, Fresno Central Unified School
District, Roxanne Fuentes, Matthew Gulbrandsen, Robert Haley,
Hesperia Unified School District, Matt Hill, Lamont Jackson,
Patrick Kelly, Kent Kern, Marian Kim-Phelps, Doug Kimberly, Lake
Elsinore Unified School District, Lincoln Unified School District,
Live Oak Unified School District, Los Angeles Unified School
District, Lucille Lynch, Cindy Marten, Mark W. McLaughlin,
Murrietta Valley Unified School District, Gavin Newsom, David
Olney, Poway Unified School District, San Diego Unified School
District, San Dieguito Union High School District, San Joaquin
County Office of Education, San Juan Unified School District, Tony
Thurmond and Kirsten M. Vital Brulte answering brief is due on
October 20, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants JANINE ANGEL, on behalf of C.A., and
individually, by and through Guardian ad Litem Dr. Ronald Savage,
et al., are represented by:
Rory J. Bellantoni, Esq.
BRAIN INJURY RIGHTS GROUP, LTD.
300 E 95th Street, Suite 130
New York, NY 10128
Telephone: (646) 850-5035
Defendants-Appellees CINDY MARTEN, in her official capacity as
former Superintendent, et al., are represented by:
Sarah Sutherland, Esq.
ORBACH HUFF & HENDERSON, LLP
2877 Historic Decatur Road, Suite 200
San Diego, CA 92106
Telephone: (858) 988-4188
- and -
Andrew Z. Edelstein, Esq.
AGCA-OFFICE OF THE CALIFORNIA ATTORNEY GENERAL
300 S Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6307
- and -
Leonard Bruce Garfinkel, Esq.
CDE - CALIFORNIA DEPARTMENT OF EDUCATION
1430 N Street, Suite 5319
Sacramento, CA 95814
Telephone: (916) 319-0860
- and -
David Salazar, Esq.
FAGEN FRIEDMAN & FULFROST LLP
6300 Wilshire Boulevard
Los Angeles, CA 90048
Telephone: (323) 330-6338
- and -
Jaime Hernandez, Esq.
OLIVAREZ MADRUGA LAW ORGANIZATION, LLP
500 S Grand Avenue, 12th Floor
Los Angeles, CA 90071
Telephone: (213) 744-0099
- and -
Sue Ann Evans, Esq.
DANNIS WOLIVER KELLEY
444 W Ocean Boulevard, Suite 1070
Long Beach, CA 90802
Telephone: (562) 366-8500
- and -
Kennett L. Patrick, Esq.
WINET PATRICK GAYER CREIGHTON & HANES
1215 W Vista Way
Vista, CA 92083
Telephone: (760) 758-4261
- and -
Sydney J. Blaauw, Esq.
S. Daniel Harbottle, Esq.
Tracy Petznick Johnson, Esq.
HARBOTTLE LAW GROUP
18401 Von Karman Avenue, Suite 200
Irvine, CA 92612
Telephone: (949) 428-8769
CAROLINA LOGISTICS: Fails to Pay Minimum & OT Wages, Litvinyuk Says
-------------------------------------------------------------------
NIKITA LITVINYUK, on behalf of the State of California, and others
similarly situated and aggrieved v. CAROLINA LOGISTICS INC., a
South Carolina corporation; and DOES 1-100, inclusive, Case No.
23STCV17164 (Cal. Super., July 21, 2023) alleges that the
Defendants misclassified and continue to misclassify the Plaintiff
and the aggrieved employees as independent contractors in an
attempt to evade California labor laws, including minimum, straight
time and overtime wages and sick pay laws, expense reimbursement
requirements, and wage statement requirements.
Because the Defendants improperly classified the Plaintiff as an
independent contractor rather than as a non-exempt employee, the
Plaintiff was not properly and fully compensated for all hours
worked, as the Plaintiff was not paid all owed minimum and straight
time wages for all hours worked. Also, the Plaintiff was required
to use his personal cell phone and personal vehicle, pay for all
fuel costs and vehicle and/or equipment maintenance, tools and/or
equipment required to perform the job duties the Defendants
assigned to him. The Defendants did not reimburse the Plaintiff for
these expenses, says the suit.
As part of its misclassification scheme, the Defendants have failed
and continue to fail to furnish timely, accurate itemized wage
statements and failed and continue to fail to pay all wages due and
owing upon separation of employment, the Plaintiff adds.
Accordingly, the Plaintiff seeks to recover on behalf of the State
of California, and all Aggrieved Employees, the civil penalties
provided by Private Attorney General Act, plus reasonable
attorney's fees and costs.
The Plaintiff began working for the Defendants in May 5, 2022 as a
driver and/or similar title(s).
Carolina Logistics provides transportation/logistics services.[BN]
The Plaintiff is represented by:
Zachary M. Crosner, Esq.
Jamie Serb, Esq.
Brandon Brouillette, Esq.
CROSNER LEGAL, PC
9440 Santa Monica Blvd. Suite 301
Beverly Hills, CA 90210
Telephone: (310) 496-5818
Facsimile: (310) 510-6429
E-mail: zach@crosnerlegal.com
jamie@crosnerlegal.com
bbrouillette@crosnerlegal.com
CHARLES MACHINE: Remand of Remillard Suit to Superior Court Denied
------------------------------------------------------------------
Judge Richard Seeborg of the U.S. District Court for the Northern
District of California denies the Plaintiff's motion to remand the
case, CHRISTOPHER LEE REMILLARD, Plaintiff v. THE CHARLES MACHINE
WORKS, et al., Defendants, Case No. 23-cv-02639-RS (N.D. Cal.), to
the Superior Court of the State of California for the County of
Sonoma.
Remillard filed the putative wage and hour class action in Sonoma
County Superior Court, raising nine state law claims for relief.
The Defendants then removed under the Class Action Fairness Act
("CAFA"), 28 U.S.C. Section 1332(d). The Plaintiff has moved to
remand on the grounds that the Defendants have not shown CAFA's $5
million amount-in-controversy requirement is satisfied. The motion
is suitable for disposition without oral argument.
The Plaintiff's concise motion argues that the Defendants have
failed to prove, by a preponderance of the evidence, that the
amount in controversy here exceeds $5 million. Though the Notice of
Removal included calculations (rather than bare assertions of the
amount in controversy), the Plaintiff contends these were all based
on unreasonable assumptions that are unsupported by the allegations
in the Complaint or by the evidence.
The Notice of Removal provided damages estimates for six of the
nine claims for relief, as well as for attorney fees. It did not
include estimated damages for Claims 5, 7, and 9, nor did it
include potential liquidated damages. The Defendants calculated
these figures based on employee data, as described in a declaration
provided by one of its employees. For instance, between Oct. 3,
2018, and the date of the Notice of Removal, there were at least
642 employees in California who worked approximately 88,420
workweeks with an average hourly salary of $20.86. They also rely
on the estimated number of workers whose employment was separated
from Oct. 3, 2019, onward, and the number of wage statements issued
from Oct. 3, 2021, onward.
Reviewing the available evidence, Judge Seeborg holds that the
Defendants' calculations are all based on reasonable assumptions.
It should be noted at the outset that the Complaint describes what
courts in the Ninth Circuit have typically referred to as a
"pattern and practice of labor law violations," meaning that while
violations have occurred, they did not necessarily occur "every
time the wage and hour violation could arise."
With respect to unpaid minimum wages and overtime wages, Judge
Seeborg finds that the Defendants rely on an assumption that only
one hour per week was not compensated at the correct rate1 -- a
conservative estimate routinely endorsed by courts in evaluating
CAFA's amount in controversy requirement when plaintiff fails to
include specific allegations. Similarly, the reliance on a 20%
violation rate for meal period and rest period violations has been
permitted where the complaint, as in this case, does not specify
the frequency of the alleged missed meal or rest periods. Granting
that the damages estimates for these four claims are sound, the
Defendants have already cleared the $5 million threshold (to wit,
$8,300,884).
Since the estimates for these four claims are credible, Judge
Seeborg says the wage statement estimate is credible as well,
because any one of the four violations in a given week would render
the wage statements incorrect. The Defendants' choice to rely on
the maximum waiting time penalties for the 229 separated employees
was similarly reasonable. Finally, though the Plaintiff is
partially correct that the Ninth Circuit has rejected a per se rule
that attorney fees be calculated at 25% of the damages total for
the purposes of the amount in controversy, it has not held that
such a figure is per se unreasonable. Reducing the attorney fee
award to 20%, or 15%, or even nothing at all, would not change the
calculus, because the damages estimates alone readily surpass $5
million.
The Plaintiff's motion attempts to poke holes in the Defendants'
calculations by describing them as speculative and unsubstantiated.
However, it is his own attacks that are cursory and conclusory. The
motion is unaccompanied by any declaration or any alternative
violation rate grounded in real evidence. The Plaintiff does not
suggest what a more accurate amount in controversy would look like,
and it is not the Court's job to fill in the blanks. While the
Supreme Court has instructed district courts to weigh the parties'
proof once jurisdiction has been challenged, there is no competing
proof to weigh in the case.
In view of these reasons, Judge Seeborg holds that the Defendants'
Notice of Removal provides a reasonable basis to conclude that the
amount in controversy exceeds CAFA's $5 million requirement. He,
therefore, denies the motion to remand.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/yy4yyj4f from Leagle.com.
CHARTER COMMUNICATIONS: Faces Mulvihill Suit Over Robocalls
-----------------------------------------------------------
JUDY F. MULVIHILL, individually, and on behalf of all other
individuals similarly situated v. CHARTER COMMUNICATIONS, INC.
d/b/a SPECTRUM and JOHN DOES 1-10, Case No. 6:23-cv-03542-TMC
(D.S.C., July 21, 2023) contends that the Defendant promotes and
markets its merchandise, in part, by sending unsolicited robocalls
to wireless phone users, in violation of the Telephone Consumer
Protection Act.
In March 2023, the Defendant started placing phone calls to the
Plaintiff's cellular phone number in an attempt to contact an
individual unknown to the Plaintiff named "Zachary Kelly." Shortly
after the calls began, the Plaintiff answered a call from
Defendant. Upon answering the Defendant's call, the Plaintiff was
greeted with an artificial and/or prerecorded voice prior to being
transferred to a live representative, the Plaintiff alleges.
Once the Plaintiff was connected with a live representative, the
Plaintiff informed the representative that she is not the
individual that Defendant was trying to contact; notified the
Defendant that it was calling the wrong number; and requested that
the Defendant cease its calls to the Plaintiff's cellular phone
number. Despite the Plaintiff's request that Defendant cease its
misguided calls, the Defendant continued pounding the Plaintiff
with calls in an effort to contact an unknown third party, the
Plaintiff claims.
In total, the Defendant placed no less than 42 robocalls to the
Plaintiff's cellular phone number from March 2023 through the
present, including calls from the phone number (844) 206-9035. At
no point in time did Plaintiff provide Defendant with consent to
place calls to her cellular phone number ending in 8838 in
connection with an account held by "Zachary Kelly," the Plaintiff
adds.
As a result of the Defendant's alleged refusal to cease its
invasive robocalls, the Plaintiff was forced to change her cellular
telephone number to escape the Defendant's robocalls.
The Plaintiff was the sole operator, possessor, and subscriber of
the cellular telephone number ending in 8838.
Charter Communications is a prominent cable and internet service
provider that provides cable and internet services to more than 31
million customers in 41 states, including the State of South
Carolina.[BN]
The Plaintiff is represented by:
J. Paul Porter, Esq.
CROMER BABB PORTER & HICKS, LLC
Columbia, SC 29211
Telephone: (803) 799-9530
Facsimile: (803) 799-9533
E-mail: Paul@CBPHLaw.com
- and -
Mohammed O. Badwan, Esq.
SULAIMAN LAW GROUP, LTD.
2500 South Highland Avenue, Suite 200
Lombard, IL 60148
Telephone: (630) 575-8180
E-mail: mbadwan@sulaimanlaw.com
CHURCH CHURCH: Class Settlement in Hollins Suit Has Prelim. Nod
---------------------------------------------------------------
In the case, BETH HOLLINS, Plaintiff v. CHURCH CHURCH HITTLE +
ANTRIM, et al., Defendants, Case No. 2:20-CV-304 JD (N.D. Ind.),
Judge John D. DeGuilio of the U.S. District Court for the Northern
District of Indiana, Hammond Division, preliminarily approves the
settlement, preliminarily certifies the class for settlement
purposes, approves the notice to class members, and sets the matter
for a final approval hearing.
Plaintiff Hollins has filed an amended motion for preliminary
approval of a class settlement and preliminary certification of the
class for settlement purposes. The Court denied a prior motion
seeking preliminary approval of the settlement, explaining that
insufficient information had been submitted to the Court. The
Plaintiff has now provided additional information, including an
exhibit detailing the hours worked on the case by counsel.
Defendants Church Church and Elizabeth Barnes, on behalf of
creditor Aberdeen Ventures, attempted to collect a $81.52 medical
debt incurred by Hollins. In attempting that collection, the
Defendants sent Hollins two letters in which they threatened or
implied that litigation might be instituted against her.
On Aug. 18, 2020, Hollins filed her Complaint in the instant action
on behalf of herself and on behalf of a putative class. The
Complaint alleged that the Defendants never actually intended to
initiate litigation against Hollins, despite the letters'
representations. Hollins brought one claim under the Fair Debt
Collection Practices Act, which prohibits debt collectors from
using "any false, deceptive, or misleading representation or means
in connection with the collection of any debt."
On Jan. 7, 2021, the Plaintiff, as an individual and representative
of the class, moved for preliminary approval of a class settlement
and preliminary certification of a putative class for settlement
purposes. According to the settlement, this putative class consists
of: "(a) all individuals (b) to whom defendant Church Church Hittle
+ Antrim sent a letter seeking to collect a medical or healthcare
debt stating (i) We may take legal action against you for the
collection of the above amount, or (ii) We may file suit against
you or (iii) client does not wish to file suit against you.
However, if you do not pay or make payment arrangements, we will
proceed as necessary; (c) on behalf of Aberdeen Ventures d/b/a
Immediate Care Center, (d) which letter was sent at any time from
Aug. 18, 2019 through and including Sept. 8, 2020."
The Court then denied the motion, explaining that the Plaintiff did
not provide the Court with sufficient information to determine that
the settlement was fair, reasonable, and adequate. Its denial was
largely based on the Plaintiff's counsel failing to provide any
information to show its requested fees were reasonable under the
lodestar method.
The Plaintiff has now filed an amended motion for preliminary
approval of the class settlement and for preliminary class
certification. The settlement and proposed class is the same as
that previously submitted, but the Plaintiff now includes more
exhibits and briefing in support. As relevant here, the settlement
provides for relief to class members in the amount of $4,000, which
will be distributed evenly among the class members who submit a
claim form and do not exclude themselves from the settlement. The
settlement separately provides for $1,000 to Hollins as the
Plaintiff and the Class Representative. Finally, the settlement
provides that the Plaintiff may petition the Court for approval of
attorneys' fees and costs in the amount of $14,000 and that the
Defendants will pay those fees as the Court finds reasonable up to
$14,000.
The Defendants have filed no objection to the amended motion for
preliminary approval of the class settlement and preliminary
certification of the class for settlement purposes.
Having reviewed the proposed settlement and other submissions of
the parties, Judge DeGuilio finds that the representations, terms,
and conditions of the parties' Proposed Settlement Agreement are
fair, reasonable, and adequate. Accordingly, he preliminarily
approves the settlement agreement, pending the Final Approval
Hearing.
As previously stated, for purposes of the Proposed Settlement only,
Judge DeGuilio preliminarily certifies the following class, under
Federal Rule of Civil Procedure 23(b)(3): "The class consists of
(a) all individuals (b) to whom defendant Church Church Hittle +
Antrim sent a letter seeking to collect a medical or healthcare
debt stating (i) We may take legal action against you for the
collection of the above amount, or (ii) Wee may file suit against
you or (iii) client does not wish to file suit against you.
However, if you do not pay or make payment arrangements, we will
proceed as necessary; (c) on behalf of Aberdeen Ventures d/b/a
Immediate Care Center, (d) which letter was sent at any time from
Aug. 18, 2019 through and including Sept. 8, 2020."
For settlement purposes only, Judge DeGuilio preliminarily appoints
the named-Plaintiff, Beth Hollins, as the Class representative and
finds that she meets the requirements of Federal Rule of Civil
Procedure 23. He also preliminarily appoints counsel for the
Plaintiff, Edelman, Combs, Latturner & Goodwin, LLC, as the Class
Counsel.
If for any reason the proposed settlement agreement ultimately does
not become effective, the parties will notify the Court and return
to their positions in this lawsuit as those positions existed right
before the parties executed the proposed stipulation. Nothing
stated in the Proposed Class Settlement Agreement or in this Order
will be considered an admission or waiver of any kind by any of the
parties or used as evidence against, or over the objection of, any
party for any purpose in this litigation or in any other action or
proceeding of any kind.
After reviewing the Manner of Notice to the Class and the Proposed
Claim Form, Judge DeGuilio approves the proposed notice and claim
form (except with respect to revisions ordered below) and directs
that:
a. The notice of hearing form must be substantially similar to
the form provided and approved, except the revisions below are
ordered to be made:
- In order to clarify the effect of remaining in the
class, paragraph 9 should be amended to and read in its entirety as
follows: If you are a member of the class, you designate the class
representative as your agent to make decisions on your behalf
concerning the litigation, the method and manner of conducting the
litigation, the entering of an agreement with plaintiffs' counsel
concerning attorneys' fees and costs, and all other matters
pertaining to this lawsuit. If you are a member of this class, you
are giving the class representative and class counsel the authority
to negotiate and accept a settlement of your claims in this matter,
subject to objections and the Court's final approval. These
decisions and agreements made and entered into by the
representative plaintiff will be binding on you if you are a member
of this class. If you desire, you may also retain a lawyer of your
choice and have that lawyer enter an appearance in this case, at
your own cost. For a complete statement of all the contentions,
proceedings, and settlement terms in this case, you should consult
the filings regarding this lawsuit, which are available for your
inspection at the Clerk of the United States District Court for the
Northern District of Indiana, Hammond Division, 5400 Federal Plaza,
Hammond, Indiana 46320. You may also contact the Clerk's office at
(219) 852-6500.
- In order to clarify when objections must be submitted,
paragraph 17 should be amended to and read in its entirety as
follows: If you are a Class Member, you can object to the
settlement. In order to object to the settlement or any part of the
settlement, you must send a letter stating that you object and the
reasons why you think the Court should not approve the settlement.
These objections must be filed by October 9, 2023. You must include
the case name and number, which is Beth Hollins v. Church Church
Hittle + Antrim, et al., Case No. 20-cv-304-JD-APR (N.D. Ind.). You
must also include your name, address, and telephone number. You
must include the factual and legal grounds for the objection and
documents, if any, to support the objection. If you are objecting
to the settlement, you may also appear at the Final Approval
Hearing.
Judge DeGuilio notes that the table provided in paragraph 17 should
still be included in the notice form.
- In order to clarify where the Final Approval Hearing is
being held, paragraph 18 of the proposed notice will be amended to
and read in its entirety as follows: The Court will hold a Final
Approval Hearing before the Honorable Jon E. DeGuilio on December
6, 2023 at 10:30 a.m. in the Fourth-Floor courtroom of the United
States District Court for the Northern District of Indiana, Hammond
Division, 5400 Federal Plaza, Hammond, Indiana 46320. The purpose
of the hearing will be for the Court to determine whether the
proposed settlement is fair, reasonable, and adequate, and in the
best interests of the class, and to determine the appropriate
amount of compensation for the Class Representative and Class
Counsel. At that hearing, the Court will be available to hear any
objections and arguments concerning the fairness of the proposed
settlement.
- At the end of the notice, the following language must
be added: This notice has been authorized by the United States
District Court for the Northern District of Indiana. The Court has
taken no position in this case regarding the merits of the claims
or the proposed settlement.
— The deadlines below must be included in the Notice:
Pages 1, 2, and 4: Claim Forms must be submitted by
Oct. 9, 2023.
Page 1, 2, and 3: Exclusion Request must be
submitted by Oct. 9, 2023.
Pages 1 and 3: Objections to be submitted by Oct. 9,
2023. Additionally, any other counsels retained by Class Members
should enter appearances by Oct. 9, 2023.
The date of the Final Approval Hearing as set forth at the end of
this Order will be included in the Notice in the space provided on
page 1 and page 3 of the Notice.
With these revisions, Judge DeGuilio approves the parties' proposed
class notice and claim form and directs they be mailed to the last
known address of the Class Members reflected in the Defendants'
records within 30 days of entry of this Preliminary Approval Order.
The settlement administrator, Class-Settlement.com, will distribute
the notice and claim form by letter via First Class U.S. Mail. Each
notice must be sent with a request for forwarding addresses. Before
mailing the notice required by this paragraph, the settlement
administrator will obtain updated addresses for the Class Members
through the National Change of Address database.
If a notice is returned as undeliverable and a forwarding address
is provided, the settlement administrator will forward any such
returned notice to the address provided within four days of
receipt. If a notice is returned as undeliverable and a forwarding
address is not provided, the settlement administrator will seek to
ascertain the Class Member's current address using skip-tracing. If
the settlement administrator finds through skip-tracing that the
Class Member has a different address, the settlement administrator
will send the notice to that address.
Class Members have until Oct. 9, 2023, to submit a claim, request
to be excluded, or object to the Agreement.
Within 14 days after the requests for exclusions are due, the
settlement administrator or class counsel must file with the Court
a notice of the exclusions, listing the names of all persons who
timely excluded themselves from the Settlement Class by submitting
their requests for exclusions.
At least 30 days before the Final Approval Hearing:
a. the Class Counsel must file a fee petition requesting an
award of attorneys' fees and costs no greater than $14,000;
b. the Defendants must file a notice that it has complied with
the notice requirements of the Class Action Fairness Act of 2005,
28 U.S.C. Section 1715(b);
c. the Defendants, through a settlement administrator, must
file with this Court and serve a declaration certifying that notice
and the claim form has been mailed as directed in this Order; and
d. the parties are to request Final Approval of the Settlement
and jointly file a memorandum of points and authorities in support
of the motion.
The settlement administrator is Class-Settlement.com
Any Class Member who does not timely opt out of the Agreement may
appear at the final approval hearing to argue that the proposed
Agreement should not be approved. All written objection papers must
be mailed to the Clerk of the Court, as explained in the notice,
served on Counsel for the parties, and postmarked no later than
Oct. 9, 2023. If necessary or desired, the parties may respond to
any objections seven days before the final approval hearing. There
will be no replies from objectors.
The Final Approval Hearing will be held on Dec. 6, 2023, at 10:30
a.m. (CST).
The Court reserves the right to adjourn or continue the Final
Approval Hearing, and any adjournment or continuance may be without
further notice of any kind other than oral announcement at the
Final Approval Hearing or at any later hearing.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/3wvu4jnn from Leagle.com.
COMFORT EXPERTS: Starling Must File Bid Class Cert Bid by Dec. 8
----------------------------------------------------------------
In the class action lawsuit captioned as KIMBERLY STARLING, on
behalf of herself and all others similarly situated, v. COMFORT
EXPERTS, INC., et al., Case No. 4:23-cv-00246-BP (N.D. Tex.), Hon.
Judge Hal R. Ray, Jr. entered an order directing the Plaintiff to
file a motion for class certification on or before December 8,
2023.
In the Joint Report, the Plaintiff proposes December 8, 2023, as
the deadline for class certification motions. The Defendant does
not oppose this date.
Under Local Civil Rule 23.2, the deadline for filing a motion for
class certification is 90 days after the filing of a class action
complaint "or at such other time as the presiding judge by order
directs." So that the parties may conduct needed discovery on the
class certification issue and the Court may resolve the issue in a
timely manner.
Comfort Experts provides heating, ventilation, and air conditioning
(HVAC) service.
A copy of the Court's order dated July 19, 2023 is available from
PacerMonitor.com at https://bit.ly/3YfZgtf at no extra charge.[CC]
CONNECTICUT: Filing for Class Cert. Bid Due March 4, 2024
---------------------------------------------------------
In the class action lawsuit captioned as TERESA BEATTY, NATASHA
TOSADO, and DOUGLAS JOHNSON, individually and on behalf of all
others similarly situated, v. MICHELLE GILMAN, Commissioner of the
Connecticut Department of Administrative Services, AND ANGEL
QUIROS, Commissioner of the Connecticut Department of Corrections,
in their official capacities, Case No. 3:22-cv-00380 (D. Conn.,
Filed March 14, 2022), the Hon. Judge Jeffrey A. Meyer entered a
scheduling order as follows:
-- The Plaintiffs' motion for class March 4, 2024
certification and any expert
reports concerning class
certification are due no later
than:
-- The Defendants shall file any April 18, 2024
opposition to class certification
and any expert reports concerning
class certification no later than:
-- The Plaintiffs shall file any May 20, 2024
reply brief in support of their
motion for class certification by:
The nature of suit states Civil Rights.[CC]
CONTRA COSTA COUNTY, CA: Settle Bus Drivers' Suit for $190,000
--------------------------------------------------------------
Jeanita Lyman, writing for Danville San Ramon, reports that the San
Ramon Valley Unified School District is set to pay out a
$190,000-plus settlement in a class action lawsuit brought by a
former bus driver with the district, with the case that was
initiated years ago over unpaid labor coming to a close.
Representatives for neither party in the lawsuit Murrell v SRVUSD
appeared in for a hearing on the final approval of a class action
and representative action settlement July 27 at the Contra Costa
County Superior Court, meaning a tentative ruling issued ahead of
the hearing goes into effect.
The ruling by Judge Charles S. Treat grants a motion by plaintiff
Christopher Murrell to provide final approval for a class action
and Private Attorneys General Act (PAGA) lawsuit that he first
brought against the district in 2019, marking an end to several
years of litigation in the matter.
With final approval uncontested in the most recent hearing, SRVUSD
is set to pay out a $193,470 settlement to Murrell and other former
bus drivers in the district. Murrell is set to receive $5,000 plus
$64,490 in attorney's fees. The settlement administrator's fee is
set at $4,500, with PAGA penalties of $3,000 including a $2,250
payment to the state Labor and Workforce Development agency.
A majority of the settlement, however -- approximately $105,826 --
is set to be paid out to the estimated 76 members of the class
represented in the lawsuit, amounting to an average payment of
approximately $1,392 each.
"The proposed settlement will certify a class of all current and
former non-exempt employees employed at defendants' facilities as
bus drivers or transportation vehicle drivers between April 24,
2016 and May 10, 2022," Treat wrote in the final decision on July
27.
Murrell, a former bus driver with the district, initially filed the
class action complaint for damages, restitution and injunctive
relief with the county superior court in April 2019, alleging that
SRVUSD failed to pay minimum wages to him and other bus drivers in
the district, approximately six years after starting the job in
2013.
Specifically, Murrell alleged in the complaint that some
requirements of the job -- such as cleaning and maintaining
vehicles, and time between driving on split-shifts, time to travel
between work sites, and time spent traveling to acquire required
certifications -- amounted to unpaid labor by bus drivers in the
district. The complaint defined the subclass in the settlement as
SRVUSD drivers who were not paid minimum wages for all hours
worked.
Following the years-long litigation process, Treat's ruling favors
Murrell and finds substance behind the allegations that the school
district failed to pay bus drivers at a minimum wage for all hours
worked, and contends with arguments from the district's legal
counsel that the issues raised by Murrell failed to identify a
class of plaintiffs, and that they had adjusted the way in which
drivers were paid as of 2020.
"Plaintiff's counsel provides a reasonable and detailed analysis,
showing that the settlement represents approximately 100%
compensation for a reasonable estimate of the value of the claims,"
Treat wrote in his final decision.
Given that the settlement is meant to make up for unpaid work, the
amount paid out to each subclass member will depend on the amount
of time worked prior to the district's policy update in 2020.
"The individual payments will vary considerably, however, because
of the allocation formula prorating payments according to the
number of weeks worked during the relevant time," Treat wrote.
Since Treat's preliminary approval of Murrell's motion ahead of the
final approval, 76 current or former bus drivers with the district
were sent out, none of whom objected to the complaint or elected to
opt out. Those receiving funds from the settlement aren't required
to take any additional actions, with funds being disbursed based on
the number of weeks they worked during the period between 2016 and
2022.
While the final decision by Treat is largely the same as the
preliminary ruling issued ahead of the hearing, the final decision
solidifies the $5,000 payment to Murrell on the grounds that he
took on additional risks to his reputation and future employment
during the more than four years of litigation, which Treat
estimated he spent hundreds of hours of work on.
Following the payment and disbursement of the settlement, Murrell
and the district are subject to a compliance hearing through the
court, with 5% of the awarded attorney's fees being withheld by the
settlement administrator until satisfactory compliance is
determined by the court. [GN]
CV PIZZA: Fails to Pay Minimum & OT Wages Under FLSA, Martinez Says
-------------------------------------------------------------------
MAYRA MARTINEZ, on behalf of herself and all others similarly
situated v. CV PIZZA, LLC, MILLENNIAL PIZZA, LLC, DOMINO'S PIZZA,
INC., DOMINO'S PIZZA FRANCHISING, LLC, DOMINO'S PIZZA LLC, VINOD
KUMAR, and CHAD VICKERS, Case No. 1:23-cv-04749 (N.D. Ill., July
21, 2023) alleges that the Defendant failed to compensate the
Plaintiff and similarly-situated individuals with minimum and
overtime wages as required by the Fair Labor Standards Act, the
Illinois Minimum Wage Law, the Illinois Wage Payment and Collection
Act, and the Chicago Minimum Wage Ordinance.
According to the complaint, the Plaintiff and similarly situated
workers are Domino's employees who the Defendants knowingly and
willfully failed to pay overtime and minimum wages, including
minimum wages and overtime wages that were improperly underpaid due
to the Defendants' common scheme and practice of altering time
records, not allowing workers to record all time worked, and
failing to reimburse workers for expenses incurred in the course of
their employment.
The Defendants allegedly engage in a consistent practice of
deliberately refusing to allow the Plaintiff and the class members
to be compensated for hours worked in excess of 40 hours in one
week; failing to pay the Plaintiff and likely class members for
travel time between work sites; and implementing a scheme wherein
the Defendants altered the Plaintiff's and likely class members'
timekeeping records in order to avoid paying for hours worked and
overtime.
The Plaintiff seeks to represent two classes:
The CV Pizza Class:
All current and former Domino's workers employed at
Illinois restaurants owned and operated by CV Pizza who
worked for CV Pizza ten years before the filing of this
action through the date of judgment.
The Millennial Pizza Class
All current and former Domino’s workers employed at
Illinois restaurants owned and operated by Millennial
Pizza who worked for Millennial Pizza ten years before
the filing of this action through the date of judgment
Excluded from the classes are Defendants' legal representatives,
officers, directors, assigns, and successors, or any individual
who has or who at any time during the class period has had, a
controlling interest in Defendants; the Judge(s)to whom this
case is assigned and their immediate family as well as all
persons who timely opt out of the Rule 23 classes.
The Plaintiff was employed at Domino's for almost ten years. Her
employment ended in July 2023.
CV Pizza is an Illinois corporation that operates Domino's Pizza
franchises in Chicago.[BN]
The Plaintiff is represented by:
Francisco Fernandez del Castillo, Esq.
DEL CASTILLO LAW GROUP, LLC
11 E Adams St., Suite 1401
Chicago, IL 60603
Telephone: (312) 216-0111
E-mail: francisco@delcastillolawgroup.com
DOUGLAS HOLDINGS: Suit Seeks Conditional Cert. of Settlement Class
------------------------------------------------------------------
In the class action lawsuit captioned as JOY EBERLINE, CINDY
ZIMMERMANN, and TRACY POXSON, individually and on behalf of all
others similarly situated, v. DOUGLAS J. HOLDINGS, INC., et. al.,
Case No. 5:14-cv-10887-JEL-KGA (E.D. Mich.), the Plaintiff asks the
Court to enter an order conditionally certifying the Settlement
Class and preliminarily approving the Parties' proposed
settlement.
-- The Plaintiffs request conditional certification of the
proposed
class and conditional approval of the collective action for
settlement purposes only.
-- The proposed settlement class would consist of any student
who
attended the Defendant Douglas J. Institute, Inc.'s
cosmetology
programs in Michigan and participated in the Alpha, Beta,
Gamma,
and/or Salon Life courses in 2012 through 2022.
-- The Plaintiffs request that the proposed class notices and
claim
form be approved for distribution to members of the
settlement
class.
-- The Plaintiffs request that the Plaintiffs be appointed as
Class
Representatives.
-- The Plaintiffs request that Kroll Settlement Administration
LLC
be appointed as the Settlement Administrator.
A copy of the Plaintiffs' motion dated July 19, 2023, is available
from PacerMonitor.com at https://bit.ly/3qbYpxk at no extra
charge.[CC]
The Plaintiffs are represented by:
John C. Philo, Esq.
Anthony D. Paris, Esq.
SUGAR LAW CENTER FOR
ECONOMIC & SOCIAL JUSTICE
4605 Cass Avenue, 2nd Floor
Detroit, MI 48201
Telephone: (313) 993-4505
Facsimile: (313) 887-8470
E-mail: jphilo@sugarlaw.org
- and -
Kathryn Bruner James, Esq.
Julie H. Hurwitz, Esq.
GOODMAN, HURWITZ & JAMES, P.C.
1394 E. Jefferson Ave.
Detroit, MI 48207
Telephone: (313) 567-6170
Facsimile: (313) 251-6068
E-mail: kjames@goodmanhurwitz.com
jhurwitz@goodmanhurwitz.com
The Defendants are represented by:
Matthew T. Nelson, Esq.
Amanda M. Fielder, Esq.
Brandon J. Cory, Esq.
Michael G. Brady, Esq.
Adam T. Ratliff, Esq.
WARNER NORCROSS + JUDD LLP
150 Ottawa Avenue NW, Suite 1500
Grand Rapids, MI 49503
Telephone: (616) 752-2000
Facsimile: (616) 752-2500
E-mail: mnelson@wnj.com
afielder @wnj.com
bcory@wnj.com
mbrady@wnj.com
aratliff@wnj.com
DVH HOSPITAL: Alvarez Alleges Unpaid OT, Untimely Payment of Wages
------------------------------------------------------------------
MARIANA ALVAREZ, on behalf of herself and all others similarly
situated, Plaintiff v. DVH HOSPITAL ALLIANCE LLC; DOES 1 through
50; inclusive, Defendants, Case No. A-23-874229-C (D. Nev., Clark
Cty., July 19, 2023) seeks to recover Plaintiff's unpaid wages from
the Defendants pursuant to the Nevada Constitution and Nevada
Revised Statute.
The complaint alleges the Defendants' failure to pay Plaintiff and
Nevada Overtime Class Members one and one-half times their regular
rate of pay for all hours worked in excess of eight hours in a
workday and failure to timely remit all wages due and owing to the
waiting time wages Class members.
The Plaintiff was at all relevant times a resident of the State of
Nevada and was employed by Defendant as a non-exempt hourly
employee from June 2022 to April 2023.
DVH Hospital Alliance LLC provides healthcare services in
Nevada.[BN]
The Plaintiff is represented by:
Christian Gabroy, Esq.
Kaine Messer, Esq.
GABROY MESSER
The District at Green Valley Ranch
170 South Green Valley Parkway Suite 280
Henderson, NV 89012
Telephone: (702) 259-7777
Facsimile: (702) 259-7704
E-mail: christian@gabroy.com
kmesser@gabroy.com
E & E OF FIVE: Nwajei Seeks to Recover Misappropriated Tips
-----------------------------------------------------------
ANTHONY NWAJEI, on behalf of himself and others similarly situated
v. E & E OF FIVE TOWNS INC. d/b/a Barbacoa Burger House, EDUARD
SHAULOV a/k/a Eddie Shaulov, and EDDIE DOE, Case No. 1:23-cv-05541
(E.D.N.Y., July 21, 2023) seeks to recover misappropriated tips
pursuant to the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiff alleges that he is entitled to recover from the
Defendants: liquidated damages, penalties for failure to provide a
wage notice at time of hire, penalties for failure to provide wage
statements with each payment of wages, prejudgment and post
judgment interest, and/or reasonable attorneys' fees and costs. The
Plaintiff was not given a wage notice at any time during her
employment after her hiring. Throughout Plaintiff Nwajei's
employment, the Defendants' menus informed customers that at an
"18% service charge [would be] added for all diners," says the
suit.
The customers asked their servers, including the Plaintiff Nwajei,
to convey to the owners their complaints that they weren't sure
whether the "service charge" was being disbursed to their servers,
and that they were being asked for additional tips. Beginning no
earlier than January 2, 2023, and no later than February 11, 2023,
in response to customers' complaints, the Defendants included a
notice on customers' receipts that the "service charge" would "go
to the house and the house [would] split amongst all service
staff," to wit, servers, runners, bussers, and bartenders. However,
throughout Nwajei's employment, the Defendants did not distribute
any portion of the "service charges" to any of the service
employees, but retained the entirety of the "service Charges" for
themselves, the suit claims.
On November 23, 2022, in response to his and customers' complaints
about misappropriated tips, the Defendants changed Nwajei's regular
wage, but did not restore Nwajei's misappropriated tips or correct
the tip misappropriation going forward, the suit further alleges.
Nwajei was employed by the Defendants from August 1, 2022 through
June 28, 2023, to work as a server at Defendants' kosher burger
restaurant.[BN]
The Plaintiff is represented by:
John Troy, Esq.
Aaron B. Schweitzer, Esq.
Tiffany Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard, Suite 110
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: troylaw@troypllc.com
EL RANCHON STEAKHOUSE: Hernandez Seeks to Recover Unpaid Wages
--------------------------------------------------------------
LIVANY YASURI MIRANDA HERNANDEZ, on behalf of herself and all
others similarly situated v. EL RANCHON STEAKHOUSE, INC. And
ABRAHAM CARCAMO, Case No. 1:23-cv-00966 (E.D. Va., July 21, 2023)
alleges that the Defendants failed to pay direct wages and/or any
other form of direct compensation for the hours the Plaintiff and
the Class Members performed compensable employment duties, in
violation of the Federal Fair Labor Standards Act and the Virginia
Minimum Wage Act.
The complaint contends that the Defendants failed to provide the
Plaintiff or the Class Members the "notice" required to comply with
the "tip credit" method of minimum wage compliance. The suit
further says that Defendants failed to permit the Plaintiff and the
Class Members to keep and/or retain all tips received from
Defendants' customers because the Defendants required the Plaintiff
and the Class Members to pay the Defendants an unlawful kickback of
$25.00 per shift, paid by the Plaintiff and the Class Members to
Defendants directly from their earned tips, to cover Defendants'
vendor fee for the cleaning of Defendant's El Ranchon Steakhouse
Bar & Grill.
The Defendants now owe the Plaintiff and the Class Members payment
by the Defendants to the Plaintiff and the Class Members of the
"free and clear" full applicable minimum wage rate for each hour
worked; a return of all tips and/or other monies deducted,
assigned, and/or paid by the Plaintiff and the Class Members to the
Defendant each shift; statutory liquidated damages;
pre/post-judgment interest; and attorney's fees and costs the suit
alleges.
The Plaintiff was employed by the Defendants as a waitress and/or
performing similar server and customer-facing employment duties
from March 2021 through May 27, 2023.
EL RANCHON STEAKHOUSE, INC. is a steakhouse restaurant based in
Virginia.[BN]
The Plaintiff is represented by:
Gregg C. Greenberg, Esq.
ZIPIN, AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, MD 20910
Telephone: (301) 587-9373
E-mail: GGreenberg@ZAGFirm.com
EQUIFAX INFORMATION: Seeks to Stay Proceedings Pending Prior Action
-------------------------------------------------------------------
In the class action lawsuit captioned as SAMUEL PETER MANCUSO, v.
EQUIFAX INFORMATION SERVICES, LLC, Case No. 1:23-cv-02443-MLB-LTW
(N.D. Ga.), Equifax asks the Court to enter an order granting its
motion to stay proceedings pending the prior class action in:
-- RE: EQUIFAX, FAIR CREDIT REPORTING ACT LITIGATION, Case No.
1:22-
cv-3072-LMM-CCB, in the Northern District of Georgia
Equifax is a data, analytics, and technology company that provides
information solutions and human resources business process
outsourcing services.
A copy of the Defendant's motion dated July 19, 2023, is available
from PacerMonitor.com at https://bit.ly/3rIin2X at no extra
charge.[CC]
The Defendant is represented by:
Eric Barton, Esq.
SEYFARTH SHAW LLP
1075 Peachtree Street, N.E., Suite 2500
Atlanta, GA 30309-3958
Telephone: (404) 885-1500
Facsimile: (404) 892-7056
E-mail: ebarton@seyfarth.com
EXTREME LOANS: Miller Sues Over Illegal Telemarketing Calls
-----------------------------------------------------------
LYNDSEE MILLER, individually and on behalf of all others similarly
situated, Plaintiff v. EXTREME LOANS LLC, a Michigan company,
Defendant, Case No. 2:23-cv-11727-LVP-KGA (E.D. Mich., July 19,
2023) seeks to stop the Defendant from violating the Telephone
Consumer Protection Act by making telemarketing calls to Plaintiff
and other consumers without consent including calls to phone
numbers that are registered on the National Do Not Call registry
and to consumers who have expressly requested that the calls stop.
The complaint alleges that Defendant placed telemarketing cold
calls to consumers who have done a credit pull, as per Plaintiff's
experience, despite the fact that those consumers have never
provided consent to receive telemarketing calls.
Extreme Loans provides mortgage-related services including loan
refinancing for consumers with its headquarters located in
Southfield, Michigan.[BN]
The Plaintiff is represented by:
Stefan Coleman, Esq.
COLEMAN PLLC
66 West Flagler Street, Suite 900
Miami, FL 33130
Telephone: (877) 333-9427
E-mail: law@stefancoleman.com
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
237 S Dixie Hwy, Floor 4
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
FALU CORP: Fails to Pay Minimum & OT Wages, McIntyre Suit Alleges
-----------------------------------------------------------------
JON DONOVAN McINTYRE, individually and on behalf of those
similarly-situated v. THE FALU CORPORATION, and HECTOR ALEXANDER
FALU MUHAMMAD, Case No. 3:23-cv-00733 (M.D. Tenn., July 21, 2023)
alleges that the Defendant withheld employees' last paychecks,
including the portion of the last paycheck constituting overtime
compensation, thereby violating both the minimum wage and overtime
provisions of the Fair Labor Standards Act and the non-payment of
wages provisions of the Kentucky Wages and Hours Act.
According to the complaint, when the Defendants realized that
Plaintiff was no longer going to continue to be employed, the
Defendants withheld the Plaintiff's final paychecks, along with the
paychecks of other similarly situated employees, the Plaintiff
asserts. For the workweeks of February 12, 2021, to February 18,
2021, and February 19, 2021, to February 25, 2021, the Plaintiff
worked 88 hours (40 hours of non-overtime work and 48 hours of
overtime work) in each workweek. The Defendants knowingly failed to
properly compensate Plaintiff and the Collective Members for all
hours worked when they worked in excess of 40 hours per week,
including by failing to pay proper overtime premiums at a rate of
one and one-half times their regular hourly wage, the suit
asserts.
The Plaintiff worked for the Defendant to provide security services
and was paid an hourly rate.
Falu Corporation is engaged in the security business.[BN]
The Plaintiff is represented by:
Mark N. Foster, Esq.
LAW OFFICE OF MARK N. FOSTER, PLLC
Madisonville, KY 42431
Telephone: (270) 213-1303
E-mail: MFoster@MarkNFoster.com
- and -
Philip Bohrer, Esq.
Scott E. Brady, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-7000
E-mail: phil@bohrerbrady.com
scott@bohrerbrady.com
FROEDTERT HEALTH: Fails to Pay Proper Wages, Lutz Claims
--------------------------------------------------------
Nichole Lutz, on behalf of herself and all others similarly
situated, Plaintiff v. Froedtert Health Inc., Defendant, Case No.
2:23-cv-00974 (E.D. Wis., July 20, 2023) seeks redress for
Froedtert's failure to pay Plaintiff straight time and overtime pay
required by the Fair Labor Standards Act and Wisconsin law.
Plaintiff Lutz is an adult resident of the State of Wisconsin who
is currently employed by Defendant Froedtert in its Sterile
Processing Department beginning in October 2020.
Froedtert is a Wisconsin corporation operating numerous hospitals,
clinics, and other healthcare related facilities and businesses in
southeastern part of the state.[BN]
The Plaintiff is represented by:
Yingtao Ho, Esq.
THE PREVIANT LAW FIRM S.C.
310 W. Wisconsin Avenue, Suite 100MW
Milwaukee, WI 53203
Telephone: (414) 271-4500
Facsimile: (414) 271-6308
E-mail: yh@previant.com
GEMSTONE SUPERMARKETS: Reyes Sues Over Cooks' Unpaid Overtime
-------------------------------------------------------------
MARVIN ALBERTO MOLINA REYES, on behalf of himself, individually,
and on behalf of all others similarly-situated, Plaintiff v.
GEMSTONE SUPERMARKETS, INC. d/b/a HOLIDAY FARMS, and DAVID MANDELL,
individually, Defendants, Case No. 2:23-cv-05513 (E.D.N.Y., July
20, 2023) arises from the Defendants' alleged unlawful labor
practices in violation of the Fair Labor Standards Act, the New
York Labor Law, and the N.Y. Comp. Codes R. & Regs.
This is a civil action for damages and other redress based upon
alleged willful violations that Defendants committed of Plaintiff's
rights guaranteed to him by: (i) the overtime provisions of the
FLSA; (ii) the overtime provisions of the NYLL; (iii) the NYLL's
requirement that employers furnish employees with a wage statement
containing specific categories of accurate information on each
payday; (iv) the NYLL's requirement that employers furnish
employees with a wage notice containing specific categories of
accurate information at the time of hire; and (v) any other
claim(s) that can be inferred from the facts set forth herein.
The Plaintiff worked for Defendants as a cook at Defendants'
location in Woodbury, New York from August 13, 2022 to December 23,
2022.
Gemstone Supermarkets, Inc., d/b/a Holiday Farms, is a New York
corporation that operates at least eight supermarkets in New
York.[BN]
The Plaintiff is represented by:
Tenzin Tashi, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
GOBRANDS INC: Initial Approval of Class Action Settlement Sought
----------------------------------------------------------------
In the class action lawsuit captioned as JONATHAN BEER,
individually and on behalf of all others similarly situated, v.
GOBRANDS, INC., Case No. 2:22-cv-07386-FMO-RAO (C.D. Cal.), the
Parties move the Court for entry of an order:
1. Granting preliminary approval of the proposed class action
settlement;
2. Preliminarily certifying, for settlement purposes only, a
settlement class in the case that is comprised of:
"All California residents who signed up for a Gopuff "Fam"
free
trial and who thereafter were enrolled in the Fam program and
charged at least one monthly subscription fee following the
end
of the free trial, during the Class Period;"
3. Preliminarily appointing the Plaintiff Jonathan Beer as class
representative for settlement purposes;
4. Preliminarily appointing Dovel & Luner LLP as Class Counsel;
5. Preliminarily finding that the terms of the Settlement are
fair,
reasonable and adequate, and comply with Rule 23(e) of the
Federal Rules of Civil Procedure;
6. Approving that the proposed Notice Plan complies with the
requirements of Rule 23 and due process, and that the Notice
is
to be sent to the Settlement Class Members as set forth in
the
Settlement Agreement and pursuant to the deadlines in the
Agreement.
The Parties have reached a hard-fought class-wide resolution of
this class action that will provide substantial relief to
Settlement Class Members.
GoBrands is a provider of online retail and delivery services. The
company offers baby essentials, electronics, batteries and
chargers.
A copy of the Parties' motion dated July 19, 2023, is available
from PacerMonitor.com at https://bit.ly/44MMDs1 at no extra
charge.[CC]
The Plaintiff is represented by:
Simon Franzini, Esq.
Grace Bennett, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, CA 90401
Telephone: (310) 656-7066
Facsimile: (310) 656-7069
E-mail: simon@dovel.com
grace@dovel.com
The Defendant is represented by:
Courtney L. Baird, Esq.
Ayad Mathews, Esq.
DUANE MORRIS LLP
865 South Figueroa Street, Suite 3100
Los Angeles, CA 90017
Telephone: (619) 744-2285
Facsimile: (619) 923-3115
E-mail: clbaird@duanemorris.com
amathews@duanemorris.com
GOODRX HOLDINGS: Lowey, Bursor Named Co-Lead Class Counsel in Doe
-----------------------------------------------------------------
In the case, JANE DOE, et al., Plaintiffs v. GOODRX HOLDINGS, INC.,
et al., Defendants, Case No. 23-cv-00501-AMO (N.D. Cal.), Judge
Araceli Martinez-Olguin of the U.S. District Court for the Northern
District of California grants the Plaintiffs' motion to appoint
interim co-lead class counsel.
Before the Court is the Plaintiffs' motion to appoint interim
co-lead class counsel, submitted by all the Plaintiffs' counsel,
who have entered an appearance in this matter. The motion requests
the following counsel structure in this putative class action: the
firm Lowey Dannenberg, P.C. and Bursor & Fisher, P.A. as the
interim co-lead counsel, to be supported by the firm Schubert
Jonckheer & Kolbe LLP as liaison counsel, and an executive
committee comprised of counsel from Shub & Johns LLC, Zimmerman Law
Offices, P.C., and Israel David LLC. In her discretion, Judge
Martinez-Olguin finds that the motion is suitable for decision
without oral argument.
In designating interim class counsel, courts consider the following
factors set forth in Rule 23(g)(1): (i) the work counsel has done
in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex
litigation, and the types of claims asserted in the action; (iii)
counsel's knowledge of the applicable law; and (iv) the resources
that counsel will commit to representing the class.
To determine whether to appoint Lowey Dannenberg and Bursor &
Fisher as interim co-lead class counsel, Judge Martinez-Olguin
considers in turn the four factors set forth in Rule 23(g)(1).
First, she finds that Lowey Dannenberg and Bursor & Fisher have
completed in investigating or identifying potential claims in the
action. To date, Lowey Dannenberg and Bursor & Fisher have
collaborated to conduct extensive research and investigation of the
claims against the Defendants. Because their efforts have informed
the allegations and complaint against the Defendants, the first
factor weighs in favor of appointing Lowey Dannenberg and Bursor &
Fisher as the interim co-lead counsel.
Next, Judge Martinez-Olguin considers Lowey Dannenberg's and Bursor
& Fisher's relevant experience in class actions, complex
litigation, and the consumer privacy claims at issue in the action.
She finds that Lowey Dannenberg has experience successfully
prosecuting and leading multi-defendant complex class actions,
including holding responsibility for arguing motions for class
certification and motions for summary judgment in consumer privacy
class actions. Bursor & Fisher also evidences relevant experience
litigating consumer class actions and with complex litigation,
including consumer fraud and telecommunications. Because Lowey
Dannenberg and Bursor & Fisher have shown relevant experience
leading and litigating complex consumer class actions, the second
factor also weighs in favor of appointing them as co-lead class
counsel.
Judge Martinez-Olguin next considers Lowey Dannenberg's and Bursor
& Fisher's knowledge of the applicable law. Lowey Dannenberg's
litigation team consists of founding members and leaders of the
firm's data breach and privacy practice who are serving as class
counsel in another privacy class action in this District. Bursor &
Fisher similarly has extensive experience litigating and trying
consumer protection class actions. Lowey Dannenberg's subject
matter expertise and Bursor & Fisher's extensive class action trial
experience satisfy the third Rule 23 factor.
The fourth Rule 23 factor requires that Judge Martinez-Olguin
considers the resources Lowey Dannenberg and Bursor & Fisher will
commit in their representation of the putative class. She finds
that each firm has experience funding large class actions and
committing the staffing necessary to prosecute complex class
actions. Additionally, Lowey Dannenberg states that it will commit
its e-discovery infrastructure and the e-discovery expertise of its
members to this action. Thus, because Lowey Dannenberg and Bursor &
Fisher have the financial resources and combined technical
infrastructure required to represent a complex class action, the
fourth factor weighs in favor of appointing Lowey Dannenberg and
Bursor & Fisher.
Finally, Judge Martinez-Olguin evaluates the agreed-upon leadership
structure. In their motion for appointment of interim co-lead class
counsel, all Plaintiffs' counsel jointly request that this Court
appoint Shubert Jonckheer & Kolbe LLP, as liaison counsel, and Shub
& Johns LLC, Zimmerman Law Offices, P.C., and Israel David LLC to
an executive committee. Each of these firms has experience
litigating complex class actions. Given these previous and on-going
collaborations, Judge Martinez-Olguin concludes that Lowey
Dannenberg and Bursor & Fisher can effectively delegate the
workstreams between the other firms.
Thus, Judge Martinez-Olguin finds it appropriate to appoint
Schubert Jonckheer & Kolbe LLP, Shub & Johns LLC, Zimmerman Law
Offices, P.C., and Israel David LLC to their requested roles.
Accordingly, she grants the motion and APPOINTS: (i) Lowey
Dannenberg, P.C., and Bursor & Fisher, P.A., as interim co-lead
class counsel; (ii) Schubert Jonckheer & Kolbe LLP, as interim
liaison counsel; and (iii) Shub & Johns LLC, Zimmerman Law Offices,
P.C., and Israel David LLC to an interim executive committee.
Additionally, she grants Lowey Dannenberg's and Bursor & Fisher's
request to have the responsibility for, and authority over, the
following matters for the action and any subsequently related
cases:
a. The initiation, response, scheduling, briefing, and
argument related to all pleadings or motions;
b. The scope, order, and conduct of all discovery
proceedings;
c. Communicating with the Court, Defendants' counsel, and all
Plaintiffs and Plaintiffs' counsel;
d. Ensuring all work by Plaintiffs' counsel is in the best
interest of the Plaintiffs and the proposed class and are based on
the qualifications and expertise of the persons assigned particular
tasks or responsibilities, counsel's knowledge of the law, facts
and issues, efficiency, and cost-effectiveness;
e. Directing, supervising and monitoring the activities of
additional Plaintiffs' counsel, if any, and implementing procedures
to ensure that schedules are met and unnecessary expenditures of
time and funds by counsel are avoided;
f. Employing and consulting with experts;
g. Conducting settlement discussions with Defendants on behalf
of the Plaintiffs and the proposed class to resolve this litigation
as interim co-lead class counsel deem appropriate, subject to
approval of this Court where required;
h. Assessing litigation costs, as appropriate, and to collect
such assessments;
i. Reviewing time, lodestar, and expense reports from each
Plaintiffs' counsel, including paralegals and other staff members,
at monthly intervals;
j. Allocating attorneys' fees and costs among the Plaintiffs'
counsel; and
k. Overseeing the conduct of the litigation so that it
proceeds smoothly and efficiently and performing such other duties
as necessary or as authorized by further order of the Court.
In light of their appointments as interim co-lead counsel, Judge
Martinez-Olguin will hold Lowey Dannenberg and Bursor & Fisher
accountable for fulfilling these responsibilities until a class has
been certified and class counsel is appointed on a non-interim
basis.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/4x8jf7ms from Leagle.com.
GOOGLE LLC: Faces Williams Class Suit Over TrueView Video Ads
-------------------------------------------------------------
DASHAWN WILLIAMS and DEVON HOLMES, on behalf of themselves and all
others similarly situated v. GOOGLE, LLC, Case No. 5:23-cv-03685
(N.D. Cal., July 26, 2023) arises from unlawful practice of
misleading advertisers about "TrueView" video advertisements, which
has bilked businesses out of billions of dollars spent on digital
ads.
According to the complaint, these practices are in breach of
Google's agreements with advertisers (as well as agreements with
advertisement firms for which the advertisers are third-party
beneficiaries) and have unjustly enriched Google. Google charges
advertisers for its proprietary TrueView video ads. Google promises
that TrueView advertisements must be skippable, audible, and
playing of the video (and ad) cannot be solely initiated by passive
user scrolling. However, this is not true: many of the TrueView
advertisements are, in fact, displayed as muted, auto-playing
videos either "out-stream" or obscured on independent sites. Yet,
Google charges a premium price, promising that the ads it places
will run on high-quality sites, before the page's main video
content, with the audio on, and that brands will only pay for ads
that are not skipped, the Plaintiffs allege.
The TrueView practice is not only violative of Google's policies
and promises and deceptive, but it serves no purpose but to further
enrich Google who charges a premium for these TrueView
advertisements and receives inflated payments due to artificial
views of TrueView advertisements, the Plaintiffs add.
The Plaintiffs and other consumers of advertising services have
been injured by Google's breach of contract and violations of
consumer protection statutes. Thus, they seek redress for Google's
misleading and deceptive misrepresentations in its publicly
available marketing materials, including its own policies, and for
Google's omission of material facts pertaining to that practice in
its publicly available marketing materials, including its own
policies.
Google is an American multinational technology company with its
headquarters and principal place of business located in Mountain
View, California.[BN]
The Plaintiffs are represented by:
John J. Nelson, Esq.
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
402 W Broadway, Suite 1760
San Diego, CA 92101
Telephone: (858) 209-6941
E-mail: jnelson@milberg.com
gklinger@milberg.com
GREATBANC TRUST: McDermott Defendants Seek to Alter Schedule
------------------------------------------------------------
In the class action lawsuit captioned as ARMANDO ZAVALA, JOSE
DAVALOS, and PABLO GONZALEZ, individually and on behalf of all
others similarly situated, v. GREATBANC TRUST COMPANY et al., Case
No. 1:19-cv-00239-ADA-SKO (E.D. Cal.), the McDermott Defendants
file a motion for Administrative Relief and request that the Court
alter the schedule relating to class certification, and postpone
class certification discovery and briefing until after the Court
rules on their pending motion to dismiss the second amended
complaint.
The Plaintiffs filed a Second Amended Complaint (SAC) that added
claims against 32 new Defendants, including the 26 McDermott the
Defendants. After the Plaintiffs filed the SAC -- but before the 26
McDermott Defendants had obtained counsel or appeared in this case
-- the Court set the current class certification schedule, which
requires class certification discovery to be completed by August
11, 2023, and class certification briefing to commence on August
25, 2023.
The McDermott Defendants' Motion to Dismiss, however, will not be
fully briefed until after the current class certification discovery
deadline has passed and is unlikely to be resolved until after
class certification briefing has been completed.
The McDermott Defendants include Robert Berczynski, Aubrey Michael,
Chad Pinter, Jeremy Wilhelm, Mark La Bounty, Ronald Kruse, the
Jeffrey & Karen Fontanella Trust, the La Bounty Family Trust,
Ronald O. Kruse Family Trust, Jordyn Kruse, Ryan Kruse, the Douglas
T. Kruse Trust, the Davis Family Trust, SECAP, the Kruse Feed &
Supply, Inc. Profit Sharing Plan, the Lambert Family Revocable
Trust, Warren Hutchings, Doreen Hutchings, Sidney Earp, Richard
Earp, Mark Krebsbach, Nickie Krebsbach, the Joseph M. & Debra L.
Guenley Revocable Living Trust. the Holdsworth Family Revocable
Trust, Daniel J. Martin, and the Monte and Susan Mello Trust.
GreatBanc is a full-service trust company and independent ERISA
fiduciary specializing in ESOPs (Employee Stock Ownership Plans).
A copy of the Defendants' motion dated July 19, 2023 is available
from PacerMonitor.com at https://bit.ly/3Koqcl4 at no extra
charge.[CC]
The Defendants are represented by:
Theodore M. Becker, Esq.
Julian l. Andre, Esq.
MCDERMOTT WILL & EMERY LLP
2049 Century Park East, Suite 3200
Los Angeles, CA 90067-3206
Telephone: (310) 277-4110
Facsimile: (310) 277-4730
E-mail: tbecker@mwe.com
jandre@mwe.com
HALAL GUYS: Compelled to Produce Redacted Docs in Hegazy Labor Suit
-------------------------------------------------------------------
In the case, AHMED HEGAZY, et al., Plaintiffs v. THE HALAL GUYS,
INC., et al., Defendants, Case No. 22 Civ. 1880 (JHR) (S.D.N.Y.),
Judge Jennifer H. Hearden of the U.S. District Court for the
Southern District of New York grants in part and denies in part the
Plaintiffs' letter-motion to compel the Defendants to produce
certain information relating to employee compensation and hours
that was redacted in the Defendants' document productions.
On March 27, 2023, Plaintiffs Ahmed Hegazy, Shrief Sror, Ramiz
Shehatta, Walid Soltan, Ahmed Abouelkhair, Ahmed Abdelmoneim,
Khaled Hassan, Hossam Ahmed, Islam Soliman, Naser Dakhly, and
Mohamed Ahmdein filed a letter-motion to compel Defendants The
Halal Guys, Inc., All 53 SW Inc., Night 53 SE Inc., The Halal Guys
Franchise Inc., Altawhid Food Supply Inc., Day 53 SE Inc., Elsalam
Enterprise Inc., Ahmed Elsaka, Abdelbaset Elsayed, Mohamed
Abouelenein, Ahmed Abouelenein, and Abdullah Abouelenein to produce
certain information relating to employee compensation and hours
that was redacted in the Defendants' document productions.
The Plaintiffs assert collective and class action claims against
the Defendants -- food service business entities and their alleged
individual owners, managers, and operators -- for purported
violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
Section 201 et seq. and the New York Labor Law ("NYLL"). Under the
FLSA, the Plaintiffs seek unpaid overtime compensation on behalf of
themselves and a collective of "servers and food-cart workers who
were employed by Defendants on or after the date that is three
years and 385 days prior to the filing of the Second Amended
Complaint to the entry of judgment in this case."
The Plaintiffs' motion for conditional certification of a
collective was granted on Sept. 2, 2022. Under the NYLL, the
Plaintiffs bring claims to, inter alia, "recover unpaid wages,
unpaid overtime pay, unpaid spread of hours pay, illegally withheld
tips/gratuities, and reimbursement of the costs of purchasing
required uniform on behalf of a class of all individuals including
the Plaintiffs employed by the Defendants as Food Servers/Food
Vendors on or after the date that is six years and 684 days before
the filing of the original Complaint in this case until the entry
of judgment in this case."
At a conference on Feb. 23, 2023, the parties raised a dispute
concerning the Defendants' productions. Specifically, the
Defendants supposedly had redacted information relating to
employees who are neither individually named Plaintiffs nor opt-ins
into the collective. After meeting and conferring as directed by
the Court, the parties were unable to resolve the issue.
On March 27, 2023, the Plaintiffs filed the instant letter-motion.
The letter-motion seeks to compel the production of unredacted
versions of records pertaining to pay rate, overtime, tips, "weekly
totals of hours worked," and "total compensation" as to individuals
"who worked at the locations at issue, during the periods at issue
in this case."
The Plaintiffs argue that the redacted information is relevant to
their anticipated motion for class certification under Federal Rule
of Civil Procedure 23 with respect to their NYLL claims, which are
based on alleged unpaid wages, overtime, and spread of hours pay,
illegally withheld tips and gratuities, failure to reimburse for
uniform costs, and notice violations.
The Defendants oppose on two principal grounds: (1) concern that
the Plaintiffs' counsel is seeking information to identify new
clients, and (2) the Plaintiffs' alleged failure to explain why the
requested discovery is necessary or relevant at this pre-class
certification stage. They also maintain that the production of
unredacted records is "overly broad and burdensome.
On reply, the Plaintiffs argue that the Defendants have neither
demonstrated that the redacted information should be protected from
disclosure (e.g., on confidentiality grounds) nor established that
producing unredacted versions of the documents would be unduly
burdensome. In addition, the Plaintiffs dispute that they can
identify new clients using the unredacted records, which would only
include employees' names (without any contact or identifying
information).
Judge Hearden opines that the Plaintiffs have established a need
for compensation and hour information relating to the putative Rule
23 class of "Food Servers" and "Food Vendors" employed by the
Defendants "on or after the date that is six years and 684 days
before the filing of the original Complaint until the entry of
judgment in this case." The Defendants' general and conclusory
objections are insufficient and do not overcome Plaintiffs' need
for sufficiently broad discovery relating to their potential class
certification motion. Accordingly, the Plaintiffs are entitled to
the requested compensation and hour information as it relates to
the putative Rule 23 class. The Plaintiffs' application to compel
production of that information is therefore granted.
The Plaintiffs have failed, however, to demonstrate the relevance
of employees' names to their anticipated Rule 23 motion. Judge
Hearden opines that the Plaintiffs have "made no showing that
communication with individual members of the putative class is
necessary to support their assertions under Rule 23, nor that this
information is otherwise relevant to demonstrating satisfaction of
Rule 23 requirements. Accordingly, insofar as the unredacted
records requested by the Plaintiffs include putative class members'
names or any other identifying information, the Plaintiffs' request
is denied without prejudice to renewal should they demonstrate that
such information is relevant to class certification.
For the foregoing reasons, the Plaintiffs' letter-motion to compel
the production of unredacted records is granted in part and denied
in part. Within 30 days, the Defendants will produce the requested
information in accordance with the Memorandum Opinion and Order.
The Clerk of Court is directed to terminate ECF No. 101.
A full-text copy of the Court's July 7, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/54whduhr from
Leagle.com.
HDR ENGINEERING: Bacani Suit Remanded to Riverside Superior Court
-----------------------------------------------------------------
Judge John F. Walter of the U.S. District Court for the Central
District of California remanded the case, Norma Bacani v. HDR
Engineering, Inc., et al., Case No. ED CV 23-681-JFW (KKx) (C.D.
Cal.), to the Superior Court of the State of California for the
County of Riverside.
On May 12, 2023, Plaintiff Bacani filed a Motion for Order
Remanding Action to State Court. On May 22, 2023, Defendant HDR
Engineering, Inc. filed its Opposition. On May 25, 2023, the
Plaintiff filed a Reply. Pursuant to Rule 78 of the Federal Rules
of Civil Procedure and Local Rule 7-15, the Court found the matter
appropriate for submission on the papers without oral argument. The
matter was, therefore, removed from the Court's June 12, 2023
hearing calendar and the parties were given advance notice.
On March 16, 2023, the Plaintiff, on behalf of herself and all
others similarly situated, filed a Class Action Complaint against
the Defendant in Riverside Superior Court, alleging causes of
action for: (1) Failure to Pay All Minimum Wages; (2) Failure to
Pay All Overtime Wages; (3) Meal Period Violations; (4) Rest Period
Violations; (5) Failure to Reimburse Necessary Business Expenses;
(6) Wage Statement Violations; (7) Waiting Time Penalties; and (8)
Unfair Competition.
On April 14, 2023, the Defendant removed this action, alleging that
the Court has jurisdiction pursuant to 28 U.S.C. Section 1332(d),
the Class Action Fairness Act of 2005 ("CAFA"). In her Motion, the
Plaintiff argues that the amount in controversy does not exceed $5
million and moves to remand this action to Riverside Superior
Court. In its Opposition, the Defendant argues that it has met its
burden of demonstrating that at least $5 million is in
controversy.
In her Motion, the Plaintiff argues that this case should be
remanded because the Defendant has failed to establish that the
amount in controversy exceeds $5 million. In order to decide the
Plaintiff's Motion, the Court must first determine if the
Plaintiff's arguments constitute a facial or factual attack on the
Defendant's Notice of Removal. The Plaintiff argues that the
Defendant did not submit sufficient proof supporting its
calculations of the amount in controversy, which constitutes a
facial attack.
However, the Plaintiff also objects to the Defendant's assumed
violation rates and argues that many of the assumptions made by the
Defendant are unreasonable and unsupported by evidence.
Specifically, she objects as unreasonable and unsupported the
Defendant's assumptions that: (1) all Class Members missed at least
one meal break and one rest break per workweek; (2) all Class
Members worked shifts each workweek that were long enough to
entitle them to meal and rest breaks; (3) the Defendant failed to
pay 100% of the Class Members who were terminated or resigned
during the relevant time period the full amount of wages owed to
them at termination or resignation; and (4) the Defendant's wage
statement violation rate was 100 percent.
By challenging the factual basis of the assumptions underlying the
Defendant's calculations, the Plaintiff has mounted a factual
attack. She does not need to put forward her own evidence to mount
a factual attack and may do so by making a reasoned argument
challenging the Defendant's assumptions. As a result, the Court
must determine whether the Defendant has satisfied its burden of
proving by a preponderance of the evidence that the amount in
controversy exceeds $5 million.
Judge Walter finds no factual or evidentiary basis for the
Defendant's assumptions, and that all of its calculations rest on
assumptions that are neither supported by evidence nor based on the
allegations of the Complaint. Moreover, a district court does not
need to perform a detailed mathematical calculation of the amount
in controversy before determining whether the defendant has
satisfied its burden.
Judge Walter concludes that the Defendant has failed to demonstrate
that the amount in controversy exceeds $5 million by a
preponderance of the evidence. For all the foregoing reasons, the
Plaintiff's Motion is granted, and the action is remanded to
Riverside Superior Court for lack of subject matter jurisdiction.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/mufn3ddc from Leagle.com.
IDEXX DISTRIBUTION: Mac Dula Sues Over Failure to Pay Proper Wages
------------------------------------------------------------------
MARNELLE MAC DULA, individually and on behalf of all other
similarly situated employees, Plaintiff v. IDEXX DISTRIBUTION,
INC., a Massachusetts Corporation; and DOES 1 to 100, inclusive,
Defendants, Case No. 23CV005044 (Cal. Super., Sacramento Cty., July
19, 2023) is brought against the Defendants pursuant to California
Code of Civil Procedure to determine alleged violations of the
California Labor Code, California Business and Professions Code.
The Plaintiff alleges the Defendants' failure to pay minimum and
overtime wages, failure to provide meal and rest periods, wage
statement violations, waiting time penalties, failure to reimburse
expenses, and unfair competition.
The Plaintiff and similarly situated employees worked for
Defendants within the claim period as non-exempt employees. The
Plaintiff worked for Defendants from approximately January 2022 to
April 2023.
IDEXX Distribution, Inc. was founded in 2002. The company's line of
business includes the manufacturing of medical, surgical,
ophthalmic, and veterinary instruments and apparatus.[BN]
The Plaintiff is represented by:
Galen T. Shimoda, Esq.
Justin P. Rodriguez, Esq.
Brittany V. Berzin, Esq.
SHIMODA & RODRIGUEZ LAW, PC
9401 East Stockton Boulevard, Suite 120
Elk Grove, CA 95624
Telephone: (916) 525-0716
Facsimile: (916) 760-3733
INFORMA MEDIA: W.D. Michigan Refuses to Toss Gottsleben PPPA Suit
-----------------------------------------------------------------
In the case, MARK GOTTSLEBEN, Plaintiff v. INFORMA MEDIA, INC.,
Defendant, Case No. 1:22-cv-866 (W.D. Mich.), Judge Hala Y. Jarbou
of the U.S. District Court for the Western District of Michigan,
Southern Division, denies the Defendant's motion to dismiss the
amended complaint.
The lawsuit is a putative class action asserting violations of
Michigan's Preservation of Personal Privacy Act (PPPA). Before the
Court is the Defendant's Rule 12(b)(6) motion to dismiss the
amended complaint.
According to the amended complaint, Defendant Informa Media, Inc.,
formerly known as Penton Media, Inc., has owned and operated the
Michigan Farmer magazine since November 2012. Plaintiff Gottsleben
is a Michigan resident who subscribed to this magazine before July
31, 2016. Gottsleben alleges that Informa later disclosed his
"Private Reading Information" to third parties, in violation of the
PPPA. In other words, sometime before July 31, 2016, Informa
allegedly disclosed his name, address, and the fact that he
subscribed to Michigan Farmer. Gottsleben alleges that, following
Informa's disclosures, he received a "barrage of unwanted junk
mail."
Until the PPPA was amended in July 2016, it prohibited "a person
engaged in the business of selling at retail, renting, or lending
books or other written materials, sound recordings, or video
recordings" from "disclosing to any person, other than the
customer, a record or information concerning the purchase, lease,
rental, or borrowing of those materials by a customer that
indicates the identity of the customer." That version of the PPPA
also entitled the customer to recover the following for a violation
of the statute: "actual damages, damages for emotional distress, or
$5,000.00, whichever is greater," as well as "costs and reasonable
attorney fees." The amended version of the PPPA in effect today no
longer allows for $5,000 in statutory damages; it requires
plaintiffs to prove the amount of their actual damages.
Gottsleben's claim relies on the earlier version of the PPPA. He
alleges that Informa disclosed his information during the relevant
pre-July 31, 2016 time period, when that version was still in
effect. In support of his claim, his complaint provides a
screenshot of a "data card" marketed by a "list broker," NextMark,
LLC. NextMark's data card advertised the sale of information from
an "Informa Mailing List," "with counts through 05/19/2021."
Gottsleben also alleges that a "substantially similar" data card
with the "same or similar rates" was advertised online "as far back
as the beginning of 2015 and throughout the entire relevant
pre-July 31, 2016, time period."
Gottsleben further alleges that Informa announced in 2014 that it
had formed a division focused on the delivery of targeted data and
subscriber information to help direct marketers identify, reach and
activate more prospects and generate more effective leads. In other
words, Informa intended to package and sell its subscriber
information directly to third parties instead of relying on list
brokers like NextMark.
Gottsleben seeks statutory damages of $5,000 for each violation of
the PPPA, and he intends to represent a class of other Michigan
residents whose subscription information Informa disclosed to other
parties prior to July 31, 2016. Informa moves to dismiss the
amended complaint, arguing that it is untimely and fails to state a
claim.
Before addressing merits of Informa's motion, Judge Jarbou examins
her subject matter jurisdiction and is satisfied that she has
subject matter jurisdiction over the case. She finds that
Gottsleben alleges that the potential class has "thousands" of
members, each of which would be entitled to at least $5,000 in
statutory damages. With more than a thousand class members entitled
to $5,000 each, the amount in controversy exceeds $5 million.
Informa then argues that Gottsleben's claim is untimely. It argues
that he filed this case after the expiration of the six-year
statute of limitations in Mich. Comp. Laws Section 600.5813.
Because Gottsleben asserts a claim under the previous version of
the PPPA, his claim must have accrued no later than July 30, 2016,
the day before amendment of that statute. He filed his original
complaint in this action on Sept. 19, 2022, more than six years
after July 2016.
Judge Jarbou enforces the Michigan Supreme Court's orders. She says
the Court is simply giving effect to the Michigan Supreme Court's
decision to toll its statutes of limitations and other deadlines
for a period of time. That decision does not conflict with any
federal rules. Where, as in the case, there is no Federal Rule
which covers the point in dispute, Erie commands the enforcement of
state law. To do otherwise would result in an "'inequitable
administration' of the law" whereby Informa could escape from
liability solely because of the fortuity that there is diversity of
citizenship between the litigants.
Finally, Judge Jarbou finds Informa's arguments unpersuasive and
Gottsleben's allegations sufficient to state a plausible claim. She
opines it is plausible to infer that NextMark's database contained
information about the identity of Informa's customers and the
particular publications to which those customers subscribed. And
because this information likely would have originated from Informa,
it is plausible to infer that Informa disclosed this information to
NextMark or to another third party from whom NextMark obtained that
information. Also, considering the contents of NextMark's data card
from 2021 and the alleged existence of a "substantially similar"
data card in 2015, it is plausible to infer that Informa's
purported disclosures in 2016 contained information about its
customers' subscriptions.
For the reasons she discussed, Judge Jarbou holds that Gottsleben's
complaint is timely. Moreover, when construing the allegations in
the complaint in the light most favorable to Gottsleben, he has
pleaded sufficient factual matter to support a plausible claim that
Informa violated Gottsleben's rights under the PPPA before July 31,
2016. Accordingly, Judge Jarbou denies Informa's motion to dismiss
the complaint. An order will be entered in accordance with her
Opinion.
A full-text copy of the Court's July 7, 2023 Opinion is available
at https://tinyurl.com/44w3jjkc from Leagle.com.
INJURED WORKERS: Pierce Atwood Discusses Ruling in Breach Suit
--------------------------------------------------------------
Melanie A. Conroy, Esq., Peter Guffin, Esq., Ariel Pardee, Esq.,
and Vivek J. Rao, Esq., of Pierce Atwood LLP, in an article for
Mondaq, disclosed that in Webb v. Injured Workers Pharmacy, LLC,
the First Circuit recently reversed a lower court's dismissal of
class action claims brought by former pharmacy patients alleging
that their sensitive personal information had been exposed in a
data breach affecting more than 75,000 customers. For our analysis
of the district court decision, see our prior post. For a
discussion of the reasoning underlying the First Circuit's holding
and what to watch for in future litigation, see our recent
analysis. The Webb decision will likely heighten class action risks
that businesses face after data security incidents and will likely
invite an increase in litigation even beyond that context,
including consumer data privacy claims.
Web is not only instructive to the plaintiff's bar, it also offers
guidance to companies and their counsel on how to mitigate
litigation exposure in privacy and data breach cases. Importantly,
Webb breathes fresh life into the privacy torts in determining
whether certain intangible harms are concrete for purposes of
establishing Article III standing. Whether plaintiffs can establish
that they suffered concrete harm as a result of a data breach is a
pivotal issue on which many data breach cases hinge.
Understanding the elements of the privacy torts and the types of
harms they seek to redress is critical, as they help inform us
about privacy and data security practice norms as well as
appropriate factors to consider for incident response. Most states
recognize some of or all the privacy torts: public disclosure of
private facts, intrusion upon seclusion, false light,
appropriation, breach of confidentiality, and defamation. Each of
these forms of invasion is distinct and calls for different things
by way of proof. They seek to protect different individual and
societal interests and provide redress for certain types of
intangible injuries, such as emotional and psychological harms,
reputational harms, relationship harms, vulnerability harms, and
power imbalances.
Appropriation
In Webb, the court held that alleged actual misuse of plaintiff
Webb's personally identifiable information (PII), by itself, is
sufficient to establish a concrete injury and that it is not
necessary for her to allege the existence of any additional harm
resulting from the misuse. The court found that the alleged actual
misuse (filing of fraudulent tax return), "is closely related to
the tort of invasion of privacy based on appropriation of another's
name or likeness, which 'protect[s] . . . the interest of the
individual in the exclusive use of his own identity, in so far as
it is represented by his name or likeness, and in so far as the use
may be of benefit to him or to others.'"
Interestingly, the court pointed out as "also instructive" its
decision in Anderson v. Hannaford Brothers Co., 659 F.3d 151 (1st
Cir. 2011), even though it did not concern Article III standing.
There the court held that the alleged mitigation costs incurred by
plaintiffs in response to a serious data breach, where there was
actual (and a real risk of) misuse of personally identifiable
information, constituted a cognizable harm under Maine law. The
court's reference in Webb to the latter decision, perhaps made in
response to the fact that Injured Workers Pharmacy had not offered
to provide, at its own expense, credit monitoring and identity
protection services to all affected individuals, may offer a
cautionary lesson for potential defendants in data breach cases.
Risk of Future Misuse
Next, the court held that the complaint plausibly alleged a
concrete injury in fact based on the material risk of future misuse
of plaintiff Charley's personally identifiable information and a
concrete harm caused by exposure to this risk. Based on the
"totality of the complaint," including the allegations about the
nature and scope of the data breach itself, specifically, that it
was the result of a targeted attack, the stolen PII included
patient names and social security numbers, and the hackers remained
undetected for almost four months, the court concluded that there
was "an imminent and substantial risk of future misuse of the
plaintiffs' PII."
Further, based on the allegations of the "plaintiffs' lost time
spent taking protective measures that would otherwise have been put
to some productive use," the court found that the complaint had
plausibly alleged a "separate concrete, present harm caused 'by
[the plaintiffs] exposure to [this] risk [of future harm].'" In a
footnote, the court observed that the complaint did not allege that
the plaintiffs purchased identity theft insurance or credit
monitoring services or incurred similar mitigation costs.
Breach of Confidence and Invasion of Privacy
Significantly, the court noted that it did not consider the
question whether "exposure of [plaintiffs] PII in the breach itself
was itself an intangible harm sufficient to confer standing -- for
example, by analogy to the torts of breach of confidence or
invasion of privacy based on public disclosure of private
information", because the plaintiffs did not argue the point. By
making this point in its opinion, the court all but invites future
plaintiffs to make the argument that certain data breach injuries
resulting from unauthorized access to, or acquisition of, sensitive
personal information are closely related to intangible harms
traditionally recognized as providing a basis for lawsuits, such as
reputational harms, disclosure of private information, and
intrusion upon seclusion. The court also left for another day the
question whether an alleged "diminution [in] value of [plaintiffs']
PII" is sufficient to establish standing, since the plaintiffs had
waived this argument.
Privacy & Data Security Lessons for Businesses
Based on the First Circuit's analysis and the questions it left
open, including the renewed vitality bestowed on the privacy torts
in the context of Article III standing, companies should consider
reevaluating their privacy and data security practices and updating
their incident response plans in ways designed to anticipate the
arguments of the plaintiffs' bar and to mitigate their litigation
exposure from a cybersecurity incident. As a start, as part of
their incident response planning, businesses should consider asking
the following questions:
Has the company timely notified all affected customers in a
reasonably accessible manner to ensure that notice was effective
and complaint with applicable deadlines?
How can the company mitigate against the loss of professional and
personal time that may be expended by affected customers in
response to the incident? How can the means of communication and
mitigation measures the company offers to those customers be as
streamlined and time-efficient as possible?
How can the company alleviate customer anxiety concerning any
threats posed by the potential or actual misuse of sensitive
personal data? Useful measures may include follow-up communications
to reassure customers of the company's engagement and vigilance, as
well as free credit monitoring.
Has the company examined its dispute resolution terms with
customers, including terms that could reduce the risk of class
action litigation and mass arbitration?
How can the company predict and preempt injunctive relief that
litigants may seek, including curative disclosures, compliance
improvements, or remedial measures?
Has the company established a rigorous record-keeping process for
communications with affected customers in the event of later
litigation or arbitration? It can be critical to preserve
communications with potential litigants, who may assert theories
that are inconsistent with their actual dealings.
Privacy and data breach class action litigation is a fast-evolving
area of law with rapidly expanding legal obligations created by
active legislatures across the country, and companies should
consult with legal counsel to avoid costly pitfalls [GN]
INOVA HEALTH: Court Narrows Claims in Ellison Class Action
----------------------------------------------------------
In the class action lawsuit captioned as MICHAEL ELLISON, et al.,
v. INOVA HEALTH CARE SERVICES, et al., Case No.
1:23-cv-00132-MSN-LRV (E.D. Va.), the Hon. Judge Michael S.
Nachmanoff entered an order granting in part and denying in part
the Defendants' motion to dismiss or, in the alternative, motion to
strike class claims:
-- Count I is dismissed only as to the Plaintiffs Jenkins and
Graham.
-- Count II is dismissed as to all the Plaintiffs.
-- Count III is dismissed as to all the Plaintiffs.
-- The Plaintiffs' class allegations are stricken from the
Plaintiffs' Amended Complaint.
Stemming from the COVID-19 pandemic, this case involves a
hospital's efforts to respond to the rapidly changing circumstances
of this public health crisis and how those efforts allegedly
impacted its employees’ exercise of their religious beliefs.
In July 2021, the Defendant Inova Health announced that it would
require all hospital employees to receive the COVID-19 vaccine.
However, that mandate was not absolute: employees unable to be
vaccinated for medical reasons or unwilling to be vaccinated for
religious reasons could request either a permanent or temporary
exemption from the otherwise mandatory policy. And, by and large,
when an employee requested an exemption, it was granted within a
few days.
Between March 2022 and December 2022, each of the Plaintiffs either
resigned or were terminated for failure to comply with the
hospital-wide vaccination policy. Each also filed their charges
with the EEOC.
Then, in January 2023, the Plaintiffs filed a class-action
complaint, which was later amended on April 4, 2023. That operative
Complaint divides the claims between two proposed classes, the
"Religious Discrimination Class" and the "Permanent Exemption
Class."
Inova is a health system comprised of more than three hospitals
where all are 5-star rated.
A copy of the Court's order dated July 19, 2023 is available from
PacerMonitor.com at https://bit.ly/3YdUuww at no extra charge.[CC]
JLM DECORATING: August 28 Extension to File Class Cert Bid Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as Martinez, et al. v. JLM
Decorating, Inc. et al, Case No. 1:20-cv-02969-RA-SN (S.D.N.Y.),
the Plaintiffs request an adjournment of the Court's July 26, 2023,
deadline for the Plaintiffs to file their motion for class
certification, to August 28, 2023.
The Plaintiffs make this request to provide additional time for the
parties to attempt to engage in settlement negotiations, pursuant
to the Court’s June 27, 2023 Order, and because of the
Plaintiffs' pending motion to strike the Defendants' Answer for
their failure to produce discovery.
The Plaintiff includes Israel Martinez, and the four opt-in the
Plaintiffs, Juan Carlos Sanchez Benites, Rafael Brito, Rodrigo
Rojas, and Harold Pena.
JLM Decorating is a full-service painting, wallcovering &
decorative firm.
A copy of the Plaintiff's motion dated July 19, 2023 is available
from PacerMonitor.com at https://bit.ly/3QlbPSn at no extra
charge.[CC]
The Plaintiffs are represented by:
Andrew C. Weiss, Esq.
BORRELLI & ASSOCIATES PLLC
655 Third Avenue, Suite 1821
New York, NY 10017
Telephone: (212) 679-5000
Facsimile: (212) 679-5005
KONTOOR BRANDS: Illegally Wiretaps Website Visitors, Licea Says
---------------------------------------------------------------
JOSE LICEA, individually and on behalf of all others similarly
situated, Plaintiff v. KONTOOR BRANDS, INC., a North Carolina
corporation dba WWW.WRANGLER.COM, Defendant, Case No.
2:23-cv-05903-SSS-KK (C.D. Cal., July 20, 2023) is a class action
against the Defendant for intrusion upon seclusion and for
violations of the California Invasion of Privacy Act and the
California Unauthorized Access to Computer Data Act.
According to the complaint, Defendant has secretly installed a
collection of surveillance tools on its website at www.wrangler.com
to identify and "dox" every anonymous visitor. The Defendant
enables the spyware companies to wiretap and eavesdrop on all
conversations conducted through the website chat feature, access
every visitor's device, and extract personal data to identify every
visitor by name. The Defendant and the spyware companies then
exploit their knowledge of visitors' identities, habits, and chat
topics to bombard visitors with targeted marketing, including
unwanted telephone calls and e-mails, the suit claims.
The Plaintiff visited Defendant's website using a smart phone and
conducted a brief conversation with an agent of Defendant through
the website's chat feature while physically within California in
August of 2022.
Kontoor Brands, Inc. is a global lifestyle apparel company based in
North Carolina that is focused on the design, manufacturing,
sourcing, marketing and distribution of a portfolio of clothing
brands throughout the United States via its website and other
distribution channels.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS
A Professional Corporation
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: sferrell@pacifictrialattorneys.com
LAS VEGAS SANDS: Faces Securities Suit Over SG Casino Operations
----------------------------------------------------------------
Las Vegas Sands Corp. (LVSC) disclosed in its Form 10-Q for the
quarterly period ended June 30, 2023, filed with the Securities and
Exchange Commission on July 21, 2023, that on October 22, 2020, The
Daniels Family 2001 Revocable Trust, a putative purchaser of the
company's shares, filed a purported class action complaint in the
U.S. District Court against LVSC, Sheldon G. Adelson and Patrick
Dumont.
The complaint asserts violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and alleges that LVSC made
materially false or misleading statements, or failed to disclose
material facts, from February 27, 2016, through September 15, 2020,
with respect to its operations at Marina Bay Sands, its compliance
with Singapore laws and regulations, and its disclosure controls
and procedures.
On January 5, 2021, the U.S. District Court entered an order
appointing Carl S. Ciaccio and Donald M. DeSalvo as lead
plaintiffs. On March 8, 2021, Lead Plaintiffs filed a purported
class action amended complaint against LVSC, Sheldon G. Adelson,
Patrick Dumont, and Robert G. Goldstein, alleging similar
violations of Sections 10(b) and 20(a) of the Exchange Act over the
same time period of February 27, 2016, through September 15, 2020.
On March 22, 2021, the U.S. District Court granted the Lead
Plaintiffs' motion to substitute Dr. Miriam Adelson, in her
capacity as the Special Administrator for the estate of Sheldon G.
Adelson, for Sheldon G. Adelson as a defendant in this action.
On May 7, 2021, the defendants filed a motion to dismiss the
amended complaint. Lead Plaintiffs filed an opposition to the
motion to dismiss on July 6, 2021, and the defendants filed their
reply on August 5, 2021. On March 28, 2022, the U.S. District Court
entered an order dismissing the amended complaint in its entirety.
The U.S. District Court dismissed certain claims with prejudice but
granted Lead Plaintiffs leave to amend the complaint with respect
to the other claims by April 18, 2022.
On April 8, 2022, Lead Plaintiffs filed a Motion for
Reconsideration and to Extend Time to File the Amended Complaint,
requesting the U.S. District Court to reconsider certain aspects of
its March 28, 2022 order and to extend the deadline for Lead
Plaintiffs to file an amended complaint. The defendants filed an
opposition to the motion on April 22, 2022.
On April 18, 2022, Lead Plaintiffs filed a second amended
complaint. On May 18, 2022, the defendants filed a motion to
dismiss the second amended complaint, which Lead Plaintiffs opposed
on June 17, 2022. The briefing was completed on July 8, 2022, and
the motion is pending before the U.S. District Court.
Las Vegas Sands Corp. is a casino and resort company based in
Nevada.
LEHIGH HANSON: Hardy Sues Over Site Supervisors' Unpaid Overtime
----------------------------------------------------------------
ALEX HARDY, Individually and on behalf of all others similarly
situated, Plaintiff v. LEHIGH HANSON SERVICES, LLC, Defendant, Case
No. 4:23-cv-02662 (S.D. Tex., July 20, 2023) is a class action
against the Defendant seeking to recover unpaid overtime
compensation, liquidated damages, and attorneys' fees and costs
pursuant to the provisions of the Fair Labor Standards Act.
Plaintiff Hardy was employed by Lehigh Hanson in Texas from
approximately September 2021 until July 2023, as a site
supervisor.
Lehigh Hanson produces and sells construction-grade cement,
concrete, and asphalt to its clients across the United States.[BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy, Esq.
Carter T. Hastings, Esq.
ANDERSON ALEXANDER, PLLC
101 N. Shoreline, Suite 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
lauren@a2xlaw.com
carter@a2xlaw.com
LEPRINO FOODS: Finder Bid to Stay Proceedings Denied w/o Prejudice
------------------------------------------------------------------
In the class action lawsuit captioned as JERROD FINDER, on behalf
of himself and a class of others similarly situated, v. LEPRINO
FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS
COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Case No.
1:13-cv-02059-JLT-BAM (E.D. Cal.), the Hon. Judge Barbara A.
McAuliffe entered an order denying the Plaintiffs Jerrod Finder and
Jonathon Talaveras' motion to stay proceedings without prejudice.
1. The Plaintiffs' motion to stay proceedings is denied without
Prejudice; and
2. Leprino's request for sanctions is denied.
On June 8, 2023, the Plaintiffs filed a motion to stay the case
pending the Ninth Circuit's ruling on the appeal following a jury
trial in the related case of Vasquez v. Leprino Foods Co., Case No.
1:17-cv00796-AWI-BAM and global settlement discussions in all
Leprino cases.
The Court found the matter suitable for resolution without oral
argument and vacated the hearing set for July 14, 2023. L.R.
230(g).
Having considered the parties' briefs and the record in this
action, the Plaintiffs' motion will be denied without prejudice.
Finder filed a wage and hour class action against Leprino on
November 15, 2013, alleging California Labor Code violations
including failures to provide a second meal break or accurate
itemized statements, waiting time violations, Unfair Business
Practices Act violations, and Private Attorneys General Act claims
based on those substantive violations.
Leprino is an American company with headquarters in Denver,
Colorado that produces cheese, lactose, whey protein and sweet
whey.
A copy of the Court's order dated July 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3OFyXtC at no extra charge.[CC]
LEVIN PAPANTONIO: Must Face TCPA Class Action, Court Rules
----------------------------------------------------------
Gerald L. Maatman, Jr., Esq., and Jennifer A. Riley, Esq., of Duane
Morris, disclosed that on July 18, 2023, in Mey v. Levin,
Papantonio, Rafferty, Proctor, Buchanan, O'Brien, Barr & Mougey,
P.A., et al., Case No. 5:23-CV-46 (N.D. W. Va. July 18, 2023), the
Court denied a motion to dismiss Plaintiff's claims for alleged
violations of the Telephone Consumer Protection Act (the "TCPA").
In doing so, the Court held that, despite the fact that Levin Law
did not direct and was not involved in the alleged calls, the Court
had personal jurisdiction over Levin Law, and Plaintiff had Article
III standing to pursue the TCPA claims. In doing so, the Court
found allegations concerning the law firm's alleged agency
relationship with a co-defendant sufficient to confer broad
authority to adjudicate Plaintiff's claims against Levin Law under
the TCPA. Additionally, the Court concluded that Plaintiff had
alleged sufficient facts to support a do-not-call claim under the
TCPA by alleging that her cell phone was a residential phone on the
National Do-Not-Call Registry.
Case Background
Plaintiff Diana Mey, a resident of West Virginia, initiated this
lawsuit against two law firms, Levin Law and Principal Law Group,
LLC, alleging that those defendants violated the TCPA by soliciting
clients for a mass tort litigation related to toxic water exposure
at Camp Lejeune. Mey, Doc. 33 at 1-2. Defendant Levin Law filed a
motion to dismiss on numerous grounds, including that the Court
lacked personal jurisdiction, that Plaintiff lacked Article III
standing, that Plaintiff failed to plead direct or vicarious
liability, and that Plaintiff failed to plead a violation of the
TCPA. Id. The Court denied the motion. Id. Specifically, Levin Law
argued that it was not directly involved in any of the phone calls,
which were made by co-defendant MCM Services Group, LLC ("MCM"),
and therefore could not be sued for violation of the TCPA. Id. at
8.
Initially, Levin Law, a Florida professional corporation with a
principal place of business in Pensacola, Florida, argued that it
did not have sufficient minimum contacts with West Virginia because
it did not purposely direct the alleged tortious activity toward
the state. Id. While the Court acknowledged that Levin Law was not
directly involved in the telephone calls placed to Plaintiff, it
held that Plaintiff had provided sufficient facts to find that the
calls were made by an agent under Levin Law's control. Id. at 12.
Specifically, the Court noted that Plaintiff allegedly received a
representation agreement from Principal Law, under which Levin Law
would provide legal services to Plaintiff, and Principal Law would
serve as Levin Law's associate counsel. Id. The Court found that
these allegations were sufficient to plausibly connect Levin Law to
the alleged calls. In a final point regarding personal
jurisdiction, the Court did not address whether it had personal
jurisdiction over out-of-state class members noting that, to
proceed with the case, it needed to find personal jurisdiction only
over the named Plaintiff and Defendants. Id. at 13.
The Court then addressed Levin Law's argument that Plaintiff did
not have Article III standing. Specifically, Levin Law argued that
the calls, which were initiated by MCM, were not traceable to any
conduct by Levin Law, which was a necessary prong in establishing
Article III standing. Id. The Court, however, noted that because
the representation agreement identified Principal Law as Levin's
Law associate counsel, and Plaintiff received the agreement from
Principal Law, the Court reasonably could infer that the calls were
made by someone under Levin Law's control. Id. at 14. As such, the
Court found that Plaintiff had pled sufficient facts to trace the
challenged conduct to the defendant and, as such, had asserted
Article III standing.
The Court addressed Levin Law's final arguments that Plaintiff
failed to plead a theory of liability against it and, further,
failed to state a do-not-call claim under the TCPA. First, the
Court held that Plaintiff asserted sufficient factual allegations
to show vicarious liability and to survive a Motion to Dismiss. Id.
at 15. Second, the Court found no case law supporting dismissal of
a TCPA claim on the basis that the defendant allegedly placed a
call to a cell phone instead of a residential phone. Id. at 17.
Specifically, the Court noted that Plaintiff had alleged that her
cell phone was used for residential purposes and was placed on the
National Do-Not-Call Registry, making the claim actionable under
the TCPA. Id.
Key Takeaways
In this ruling, the Court made interesting findings that will
extend to plaintiffs outside the TCPA context to survive attacks at
the pleading stage of litigation. Specifically, the Court found
both personal jurisdiction and Article III standing despite the
fact that Levin Law did not purposefully direct the activity at
issue. By doing so, the Court agreed with arguments that the
conduct of an alleged agent was enough to establish both personal
jurisdiction and Article III standing. Going forward, plaintiffs
will have yet another way to support personal jurisdiction and
Article III standing at the outset of the case even against
defendants who they do not contend were directly involved in the
conduct about which they complain. Additionally, while there is a
split in authority as to whether the TCPA extends to wireless
telephone numbers, the Court in this litigation had no issue
finding that a cell phone could be a residential phone for purposes
of the TCPA, potentially extending its reach and keeping it
relevant as a potential source of claims against corporate
defendants. [GN]
LLR INC: Van Seeks More Time to File Class Cert. Reply
------------------------------------------------------
In the class action lawsuit captioned as KATIE VAN, individually
and on behalf of all others similarly situated, v. LLR, INC. d/b/a
LuLaRoe, and LULAROE, LLC, Case No. 3:18-cv-00197-JMK (D. Alaska),
the Plaintiff moves the Court to extend the deadline to file her
reply in Support of her renewed and amended motion for class
certification.
1. The Plaintiff filed her renewed and amended motion for class
certification on April 7, 2023. The Defendants filed their
Response in Opposition on July 7, 2023.
2. Pursuant to this Court's May 10, 2023, Order, the Plaintiff
has
14 days, or until and including July 21, 2023, to file her
Reply.
3. Due to the Plaintiff's lead counsel's travel schedule and an
upcoming surgery, the Plaintiff requests an extension of time
to
file her Reply.
Accordingly, the Plaintiff requests that the Court extend her
deadline to file her Reply in Support of her Renewed and Amended
Motion for Class Certification to August 11, 2023.
LuLaRoe is a United States-based multi-level marketing
scheme/company that sells women's clothing.
A copy of the Plaintiff's motion dated July 19, 2023 is available
from PacerMonitor.com at https://bit.ly/47aEyiD at no extra
charge.[CC]
The Plaintiff is represented by:
Kelly K. Iverson, Esq.
LYNCH CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
E-mail: kelly@lcllp.com
- and -
James J. Davis, Jr., Esq.
Goriune Dudukgian, Esq.
NORTHERN JUSTICE PROJECT, LLC
406 G Street, Suite 207
Anchorage, AK 99501
Telephone: (907) 308-3395
Facsimile: (866) 813-8645
E-mail: gdudukgian@njp-law.com
jdavis@njp-law.com
LOS ANGELES, CA: Must Face Prearraignment Cash Bail Class Action
----------------------------------------------------------------
Hillel Aron, writing for Courthouse News Service, reports that a
judge declined on Aug. 1 to remove California Attorney General Rob
Bonta as a defendant in a class action challenging the use of
prearraignment cash bail in Los Angeles.
Filed this past November, the lawsuit seeks to block both the LA
Police Department and LA County Sheriff's Department from using
cash bail to hold arrestees in jail prior to arraignment, their
first chance to appear before a judge. The named plaintiffs in the
case comprise six Angelenos who had been jailed within a five-day
period before the complaint was filed. Lead plaintiff Phillip
Urquidi was 25 and homeless when he was arrested on suspicion of
vandalism and held on $20,000 bail.
Each of the men were held according to a "bail schedule," a formula
for determining a cash bail. Urquidi claims the use of the bail
schedule is unconstitutional since it unfairly forces poor people
to spend up to five additional days -- the amount of time it can
take to see a judge -- in jail. During that time, the plaintiffs
say, arrestees often lose their jobs, stop taking psychiatric
medication or can't take care of sick relatives.
While LA Superior Court Judge Lawrence Riff agreed in May to
temporarily block the use of prearraignment cash bail for
nonviolent, low-level crimes, the injunction did not apply to those
who were already out on bail, on probation or subject to an arrest
warrant.
The ruling has drawn criticism, including some from unlikely
sources. This month, the rapper 50 Cent posted a news report on the
ruling to Instagram, commenting: "LA is finished watch how bad it
gets out there."
Judge Riff gave the parties 60 days to come up with a new system
for how people should be treated in the days between arrest and
arraignment. A hearing on those negotiations is scheduled for Aug.
7.
But two weeks ago, LA County's courts announced a plan of their
own: a new bail schedule largely in line with Riff's ruling -- zero
cash bail for "non-violent, non-serious felonies and misdemeanors."
The court also devised a system for trying to ensure that certain
arrestees are monitored in some way.
Under the plan, which is set to take effect on Oct. 1, most
arrestees will be released right away "on their own recognizance."
Some arrestees -- "persons arrested for certain crimes which pose a
greater risk to the public" -- will be sent to a magistrate judge
who will work out "non-financial pre-arraignment release terms and
conditions" in order to "reduce the risk to the public and victim
safety and the likelihood of the arrestee returning to court." For
example, the arrestee could be signed up for text message reminders
about court appearances, or given an electronic monitoring
bracelet.
The decision by the courts to implement a new prearraignment bail
system represents something of a monkey wrench for the Urquidi
lawsuit. On Aug. 1, Judge Riff suggested that the plaintiffs may be
planning to file an amended complaint that takes into account the
new bail schedule.
Bonta had not been named as a defendant in the original complaint
but was later added at the the behest of the other defendants.
Bonta demurred, arguing his office has nothing to do with bail
schedules or cash bail. More recently, he argued the new bail
schedule meant that the "landscape" of the case had "fundamentally
shifted."
"The new bail schedules raise significant uncertainties about the
relief available in this case, including whether some or all of the
case is moot," Bonta wrote.
Bonta wanted the hearing on the demurrer continued, a move that
drew no objection from the other parties but nevertheless failed to
win over Judge Riff.
"We have an operative complaint," he said. "We have a preliminary
injunction in place. We have an abeyance period coming to an end.
And we have a trial date. Delaying forward progress in the case . .
. just does not seem like the right act of case management from the
court."
A curious feature of the case has been that none of the defendants
have showed much interest in speaking up for the use of
prearraignment cash bail. That likely reflects the political
beliefs of elected officials in the city and county -- most of them
oppose cash bail. Instead, the lawyers for the city and county have
spent much of the proceedings trying to argue that they shouldn't
be there at all. They don't make the laws, they've argued, or set
the bail schedule. It was those arguments that led to Bonta being
joined to the case, with Judge Riff's acquiesce. Bonta's demurrer
thus faced long odds.
Deputy Attorney General Christina Lopez dialed in remotely to the
Aug. 1 hearing where she presented a familiar argument to the
judge: Bonta had nothing to do with setting bail in Los Angeles.
"There's no claim that the the attorney general has any power over
the superior court," said Lopez. "The AG is duty bound to enforce
all the laws of California. We do not have the discretion to decide
a law is unconstitutional and not enforce it."
The plaintiffs in the case had never particularly wanted Bonta as a
defendant. But the city and county have argued that their hands are
tied: if they don't enforce the system of cash bail, which was
drawn up by the Legislature, they themselves could be held liable
by the state attorney general.
This issue led to what has become a familiar occurrence in the
proceedings: a hypothetical question from Judge Riff.
"Let's say, hypothetically, somehow a law got passed that said that
persons of Asian descent may not go west of Fairfax Boulevard after
5 p.m.," Riff said. "And the attorney general were to learn that
the sheriff of LA County is enforcing that law. Could the AG direct
the sheriff, 'Don't enforce that law, it's unconstitutional'?"
"I believe the answer is yes," said Rowley Rice, an attorney for
the plaintiffs. "The California Constitution does give the attorney
general broad enforcement power as top law enforcement official."
A lawyer for the county agreed. "The attorney general has the power
to override the bail schedule," he said.
Lopez disagreed, and said the idea that Bonta was somehow the
sheriff's "boss" was a "novel proposition."
The normally loquacious Riff overruled the demur, offering little
explanation.
"The demur is based on the proposition that the operative complaint
fails to state facts against the attorney general," he said. "The
court concludes it does state facts against the attorney general."
The next hearing in the case is scheduled for Monday,
Aug. 7. The issue of prearraignment cash bail in Los Angeles is
still very much a live one. And a bench trial in the Urquidi suit
is currently scheduled to start in October 2024. [GN]
LUXOTTICA RETAIL: Settles Accufit Class Action for $39 Million
--------------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that LensCrafters
agreed to pay $39 million to settle a lawsuit by prescription
eyeglass customers who accused the eyewear chain of misleading them
about how well its Accufit technology could measure their eyes.
A preliminary settlement of the nearly six-year-old class-action
lawsuit was filed on July 31 in federal court in Brooklyn, and
requires a judge's approval.
LensCrafters was accused of violating New York, California and
Florida consumer protection laws by saying Accufit was five times
more precise, down to 1/10th of a millimeter, than other
measurement methods, and gave customers "clearer, crisper vision"
to let them "see the world more clearly."
Customers said the claims were false because LensCrafters'
manufacturing processes did not support its claims, and that an
update would not be clinically significant.
They claimed to pay more for their glasses than if LensCrafters had
not overpromised and underdelivered.
The settlement covers all U.S. customers of LensCrafters who since
Sept. 5, 2013, bought prescription glasses after being fitted with
Accufit. They are eligible to receive up to $50 for each pair.
LensCrafters and its lawyers did not immediately respond on Aug. 1
to requests for comment.
The company denied wrongdoing and stood by the quality of its
eyewear, but settled to avoid the cost, inconvenience and
distraction of further litigation, court papers show.
LensCrafters said it operates 955 stores in 49 U.S. states,
Washington, D.C., and Puerto Rico, with no stores in Wyoming.
Its parent EssilorLuxottica (ESLX.PA) is based in the Paris suburb
of Charenton-le-Pont.
The plaintiffs' lawyers plan to seek up to $13 million from the
settlement for legal fees.
The case is Allegra et al v Luxottica Retail North America, U.S.
District Court, Eastern District of New York, No. 17-05216. [GN]
MARCHANT-SCHMIDT: Haen Sues Over Material Expeditors' Unpaid Wages
------------------------------------------------------------------
GREGORY HAEN, on behalf of himself and all others similarly
situated, Plaintiff v. MARCHANT-SCHMIDT, INC., Defendant, Case No.
2:23-cv-00968-NJ (E.D. Wis., July 20, 2023) is a class action
against the Defendant seeking to obtain relief under the Fair Labor
Standards Act and Wisconsin's Wage Payment and Collection Laws for
Plaintiff's unpaid overtime compensation, unpaid straight time
(regular) and/or agreed upon wages, liquidated damages, costs, and
attorneys' fees.
According to the complaint, the Defendant's failure to compensate
its hourly paid, non-exempt employees including Plaintiff for
compensable work performed each workweek, including but not limited
to at an overtime rate of pay, was intentional, willful, and
violated federal law as set forth in the FLSA and state law as set
forth in the WWPCL.
The Plaintiff was hired by the Defendant as an hourly-paid,
non-exempt employee in the position of material expeditor working
at Defendant's Fond du Lac, Wisconsin location from March 2019
until the end of his employment in July 2023.
Marchant-Schmidt, Inc. is a product manufacturer based in Fond du
Lac, Wisconsin.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
MARYLAND: Bid for Summary Judgment Deferred in Fitch Suit
---------------------------------------------------------
In the class action lawsuit captioned as KENNETH FITCH, et al. V.
STATE OF MARYLAND, et al., Case No. 1:18-cv-02817-PJM (D. Md.), the
Hon. Judge Peter J. Messitte entered an order as follows:
1. The Defendants' motion for dissolution of the preliminary
Injunction is granted.
2. The Defendants' motion for summary judgment is deferred.
3. The Plaintiffs' motion for leave to file third motion for
class
certification, is denied.
4. By July 31, 2023, the Plaintiffs may provide additional
briefing addressing possible alternative causes of action for fraud
and restitution as opposed to any action for breach of contract.
Maryland is a Mid-Atlantic state that's defined by its abundant
waterways and coastlines on the Chesapeake Bay and Atlantic Ocean.
A copy of the Court's order dated July 19, 2023, is available from
PacerMonitor.com at https://bit.ly/3OFKtFm at no extra charge.[CC]
MASTRONARDI PRODUCE-USA: Prelim Approval of Settlement Deal Sought
------------------------------------------------------------------
In the class action lawsuit captioned as BENJAMIN LOPEZ OSCAR
CARLOS, LOPEZ RAMIREZ and RAMONA REYES SAUCEDO, v. MASTRONARDI
PRODUCE-USA, INC. and MAROA FARMS, INC., Case No.
1:22-cv-00484-RJJ-PJG (W.D. Mich.), the Parties ask the Court to
enter an order:
1) Preliminarily approving the Proposed Settlement Agreement as
fair, reasonable, and adequate to the class;
2) Certifying a settlement class for claims brought pursuant to
Fed. R. Civ. P. 23(b)(3), (e);
3) Preliminarily approving Michigan Immigrant Rights Center and
Farmworker Justice as class counsel for the Class;
4) Preliminarily approving the Plaintiffs as the class
representatives for the Class, and preliminarily approve a
service award to each of them in the amount of $6,000;
5) Approving the form, contents, and method of notice to be
given
to the Class as set forth in the Settlement Agreement;
6) Designating Rust Consulting, Inc. as the settlement
administrator of the settlement and instruct the Settlement
Administrator to disseminate, in accordance with the terms of
the Settlement Agreement and the Preliminary Approval Order,
the
settlement notice to the class;
7) Establishing procedures and schedule deadlines for persons to
object to the settlement, the Settlement Agreement and
Schedule
the Fairness Hearing; and
8) Scheduling deadlines for the filing of:
(a) documents in support of entry of the Final Approval Order;
(b) objections to the settlement, class certification,
appointment of class counsel, and the approval of the
representative the Plaintiffs as the representatives of
the
class.
The parties have resolved the pending claims concerning allegations
that the Defendants violated the Migrant and Seasonal Agricultural
Worker Protection Act (AWPA) by not: paying wages and bonuses when
due, complying with working arrangements, providing required
information on check stubs, complying with pesticide use
regulations, and making required written disclosures about the
terms and conditions of employment, as well as by providing false
and misleading information.
The parties have agreed to the Conditional Class Certification of
Counts I-III based on the following class definition:
"All non-H2A, migrant and seasonal crop care workers who worked
at
Maroa Farms, Inc., 270 N. Fillmore Road, Coldwater, MI at any
time
during the period from June 1, 2019, through the initial mailing
date of the Class Action Settlement Notice."
Mastronardi Produce-USA distributes fresh fruits and vegetables.
A copy of the Parties' motion dated July 20, 2023, is available
from PacerMonitor.com at https://bit.ly/3DBTdWF at no extra
charge.[CC]
The Plaintiffs are represented by:
Anna Hill Galendez, Esq.
Adam Jeffries, Esq.
MICHIGAN IMMIGRANT RIGHTS CENTER
350 E. Michigan Ave, Suite 315
Kalamazoo, MI 49007
Telephone: (616) 600-9433
E-mail: ahill@michiganimmigrant.org
ajeffries@michiganimmigrant.org
- and -
Trent R. Taylor, Esq.
FARMWORKER JUSTICE
1126 16th Street NW, Suite LL101
Washington, D.C. 20006
E-mail: ttaylor@farmworkerjustice.org
Telephone: (202) 293-5420
The Defendants are represented by:
Maria Fracassa Dwyer, Esq.
Hannah K. Reisdorff, Esq.
CLARK HILL PLC
500 Woodward Avenue - Suite 3500
Detroit, MI 48226
Telephone: (313) 965-8300
E-mail: mdwyer@clarkhill.com
hreisdorff@clarkhill.com
MATERION BRUSH: $1.5MM Class Settlement in Lucyk Suit Has Final OK
------------------------------------------------------------------
In the case, Garett Lucyk, individually and on behalf of others
similarly situated, Plaintiffs v. Materion Brush Inc., et al.,
Defendants, Case No. 3:20-cv-2340 (N.D. Ohio), Judge Jeffrey J.
Helmick of the U.S. District Court for the Northern District of
Ohio, Western Division, grants the:
(1) unopposed motion for approval of attorneys' fees,
litigation expenses, and class representative service
awards; and
(2) unopposed motion for final approval of settlement.
On Oct. 14, 2020, Lucyk filed a complaint against his former
employer Defendants Materion Brush, Inc. and Materion Corp.
(collectively, "Materion"), alleging violations of the Fair Labor
Standards Act, 29 U.S.C. Section 201 et seq., ("FLSA"), and
violations of Ohio and common law. Lucyk also sought certification
of a collective action for the FLSA violation and two class actions
for the state and common law violations. Materion denied the
allegations.
Materion is an advanced materials supplier that supplies beryllium,
beryllium alloys, and beryllium composites for use in a variety of
electrical, electronic, thermal, and structural applications.
Materion operates 17 facilities throughout the United States. Lucyk
was employed at the Elmore, Ohio facility as an hourly, non-exempt
production employee in the Rod, Bar, and Tube unit ("RBT") until
his resignation on Feb. 3, 2021. Abraham was and is employed at the
Elmore facility as Lead Operator in the RBT. The Plaintiffs alleged
Materion did not adequately compensate them and others like them
for the time spent pre- and post-shift donning and doffing personal
protective equipment.
Following the filing of the complaint, the parties engaged in
discussions, voluntarily exchanged payroll and time records, and
also agreed to mediation in March 2022. The mediation was
undertaken in good faith by both parties but was unsuccessful. On
April 18, 2022, the Plaintiffs filed a motion for FLSA conditional
certification seeking to certify a nationwide collective action.
On Aug. 2, 2022, Judge Helmick granted in part and denied in part
the Plaintiffs' motion. He found that the Plaintiffs had adequately
shown that others at the Elmore, Ohio facility were similarly
situated individuals and authorized notice to production employees
who had worked at this facility since June 15, 2018. But he
declined to conditionally certify a nationwide collective because
the Plaintiffs' allegations and declarations were localized only to
the Elmore, Ohio facility and did not sufficiently demonstrate
similarity at all Materion facilities.
Prior to the issuance of notice to the proposed collective, the
parties decided to attend a second mediation. On Nov. 17, 2022, the
parties attended a full-day mediation and were able to reach an
agreement. The decision to reach an agreement was informed by the
parties' voluminous exchange of documents such as entry/exit swipe
records, time-keeping policies, training manuals, payroll and
timekeeping data, pay rates, job descriptions, and damages
modeling.
The parties have agreed for the purposes of settlement to certify
this lawsuit as a class action pursuant to Fed. R. Civ. P. 23. The
Settlement Agreement provides substantial relief for approximately
870 individuals who are defined as: All current hourly production
employees who worked for Materion Brush Inc. and Materion Corp. at
their Elmore, Ohio facility between Oct. 14, 2017, and Jan. 16,
2023, and who were required to don and doff protective clothing or
safety gear at the worksite at the start and end of their work
shifts.
The Agreement provides that Materion, without conceding the
validity of the Plaintiffs' claims and without admitting liability,
will create a Gross Settlement Fund of $1.5 million to cover the
full and final resolution of all claims in the lawsuit. Deducted
from this fund will be attorneys' fees, litigation expenses,
settlement administration expenses, and Class Representative
incentive awards, resulting in the Net Settlement Fund.
Settlement Class Members will receive a pro rata share calculated
by dividing the Net Settlement Fund by the total number of weeks
the Settlement Class were employed. This amount will then be
multiplied by the total number of weeks that each member was
employed during the Class Period to achieve the Individual
Settlement Amount.
The requested Class Representative incentive awards in the amount
of $7,500 each to Garett Lucyk and Garrett Abraham are modest and
reflective of the recovery achieved and the time and effort spent
by Plaintiffs in enabling and prosecuting this lawsuit. These
awards are in addition to their Individual Settlement Amounts.
On Dec. 29, 2022, the Plaintiffs filed an unopposed motion for
preliminary approval of settlement, appointment of Class
Representative and Class Counsel, and certification of the
Settlement Class. Judge Helmick granted the motion on March 30,
2023.
On April 27, 2023, the Settlement Administrator issued notice to
870 Class Members. The objection and exclusion period closed on
June 12, 2023. Only 10 people requested exclusion from the
Settlement Class and no objections to the Settlement Agreement were
lodged.
Considering these facts, Judge Helmick finds that the parties'
settlement is fair and reasonable in all respects. He grants the
unopposed motions for final approval of settlement and for approval
of attorneys' fees and litigation expenses. All Class Members who
did not opt out are bound by this Judgment and the terms of the
Settlement Agreement.
Nothing in the Settlement Agreement, this Judgment or the fact of
settlement constitutes an admission by any party of liability,
wrongdoing, violation of law, damages or lack thereof, or the
validity or invalidity of any claim or defense to the lawsuit.
The fees, expenses, and any other costs of Settlement Administrator
in administering the Agreement are reasonable. Payment of $12,349
will be paid out of the Gross Settlement Fund to Simpluris Inc.
Plaintiffs Garett Lucyk and Garrett Abraham are confirmed as the
Class Representatives, and Judge Helmick approves the Class
Representative incentive award as reasonable and appropriate under
the circumstances. Payment of each of the $7,500 awards will be
made from the Gross Settlement Fund.
Kevin J. Stoops of the law firm Sommers Schwartz, P.C. is appointed
as the Class Counsel for the Settlement Class Members for the
purpose of entering into and implementing the Settlement Agreement.
Pursuant to the motion filed by the Class Counsel, Judge Helmick
approves the payment of attorneys' fees to the Class Counsel in the
amount of 33.33% of the Gross Settlement Fund, i.e., $500,000; and
litigation expenses to the Class Counsel in an amount not of
$22,738.37. No other attorneys or law firms will be entitled to any
award of attorneys' fees or costs from Defendants in any way
connected with this litigation.
The lawsuit is dismissed with prejudice.
Without affecting the finality of this Judgment, Judge Helmick
reserves jurisdiction over the implementation, administration, and
enforcement of the Judgment and the Settlement Agreement and all
ancillary matters.
A full-text copy of the Court's July 7, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/34p6mhdx from
Leagle.com.
MCMENAMINS INC: Kirby Bid to File First Amended Complaint OK'd
--------------------------------------------------------------
In the class action lawsuit captioned as ZANE J. KIRBY, et al., v.
MCMENAMINS INC., et al., Case No. 3:22-cv-05168-BHS-MLP (W.D.
Wash.), the Hon. Judge Michelle L. Peterson entered an order
granting the Plaintiff Kirby's motion for leave to file first
amended class action complaint.
-- The Plaintiffs shall file their first amended class action
complaint in the form submitted and serve it on all parties
within 14 days of the Order.
-- The Court finds the September response deadline and November
discovery deadline allow McMenamins sufficient time to conduct
any additional discovery regarding the Additional the
Plaintiffs.
Accordingly, McMenamins has not shown prejudice.
-- McMenamins argues amendment is futile because Mr. Kirby's
claims,
facts, and defenses are different than those of the Additional
the Plaintiffs and because the Additional the Plaintiffs will
not
cure the lack of named the Plaintiffs from every McMenamins
location.
-- The Court does not find these reasons persuasive. Adding the
Plaintiffs who worked at more locations in response to
McMenamins' assertion that employees at each location were
treated differently is not futile and will better enable the
Court to efficiently resolve class claims in one action on the
merits.
-- The Court is also not persuaded by the McMenamins' second
argument. With the proposed amendment, named the Plaintiffs
will
include employees from four out of ten McMenamins locations.
Mr.
Kirby has specifically sought amendment to show a pattern
across
several McMenamins locations. McMenamins has not explained why
every single location must be represented by a named the
Plaintiff. The Court finds that the futility factor weighs in
favor of granting leave to amend.
On February 9, 2022, Mr. Kirby filed a class action complaint in
Lewis County Superior Court, alleging state law causes of action
for:
(1) McMenamins' failure to compensate for missed meal and rest
periods; and
(2) double damages for willful and intentional withholding of
wages.
Mr. Kirby defined the putative class as:
"all individuals who resided in Washington State and who worked
for McMenamins, Inc. in Washington State, who were 'front of
the
house' service positions (bartender, server, or any other
similar
position), paid on an hourly basis at any time from three years
prior to filing the complaint through the date of class
certification."
The complaint asserted Mr. Kirby's claims were "typical of the
claims of members of the Class because he was employed by the
Defendant at their Olympic Club location in Centralia, Washington,
was a bartender and server, and sustained damages arising out of
the Defendant's failure during the Class Period to provide and pay
for missed meal and rest periods."
McMenamins is a family-owned chain of brewpubs, breweries, music
venues, historic hotels, and theater pubs in Oregon and Washington.
A copy of the Court's order dated July 19, 2023, is available from
PacerMonitor.com at https://bit.ly/47eAspF at no extra charge.[CC]
MIAMI LAKES: Fails to Provide Proper Wages, Carrion Says
--------------------------------------------------------
Alberto Carrion and Wilberto Rodriguez, each individually and on
behalf of others similarly situated, Plaintiffs v. Miami Lakes AM,
LLC, a Florida limited liability company d/b/a "Miami Lakes
AutoMall" and Ali Ahmed, individually, Defendants, Case No.
1:23-cv-22700-RNS (S.D. Fla., July 19, 2023) is an action to
recover damages for unpaid wages, minimum wages, liquidated
damages, and other relief brought under the Fair Labor Standards
Act and the Florida Minimum Wage Act.
Plaintiffs Carrion and Rodriguez worked as automobile salesmen at
the Defendants' conglomerated automobile dealership location known
as "Miami Lakes AutoMall" from January 2016 until approximately
March 20, 2023 and from 2010 until approximately March 20, 2022,
respectively.
Miami Lakes AM, LLC d/b/a "Miami Lakes AutoMall" is a Florida
limited liability company which owns and operates the closely,
privately held automobile dealership conglomerate.[BN]
The Plaintiffs are represented by:
Anthony F. Sanchez, Esq.
ANTHONY F. SANCHEZ, P.A.
6701 Sunset Drive, Suite 101
Miami, FL 33143
Telephone: (305) 665-9211
E-mail: afs@laborlawfla.com
MIDLAND CREDIT: Faces Suit in Calif. Over Unlawful Debt Collection
------------------------------------------------------------------
Mike Gibb, writing for Accounts Recovery, reports that this article
is based on a complaint. The defendant has not responded to the
complaint to present its side of the case. The claims mentioned are
accusations and should be considered as such until and unless
proven otherwise.
The case is Kyungnan Lee v. Midland Credit Management, Inc. (Case
No. 2:23-cv-05784) (C.D. Calif.).
The statute of limitations. There have been plenty of collectors
that have been sued over the years for not informing consumers that
the statute of limitations to file a lawsuit to attempt to collect
on a debt has passed. But this complaint here might be one of the
first I have seen where the plaintiff is accusing the collector of
violating the Fair Debt Collection Practices Act in a class action
because a letter it sent informed the plaintiff that the statute of
limitations had expired on a debt and he would not be sued for it
yet, when in fact the statute of limitations had not yet expired
A copy of the complaint, filed in the District Court for the
Western District of California, can be accessed using case number
23-cv-05784 or by clicking here
--https://www.accountsrecovery.net/wp-content/uploads/2023/08/23-cv-05784.pdf
A copy of the letter in question can be accessed by clicking here
--
https://www.accountsrecovery.net/wp-content/uploads/2023/08/23-cv-05784-letter.pdf
The plaintiff received a letter from the defendant, offering to
settle the debt for less than the full balance owed, or to make
monthly payments on the debt until it was paid off. At the bottom
of the front page was a statement: The law limits how long you can
be sued on a debt. Because of the age of your debt, we will not sue
you for it. The discount offer expired on April 7, 2023. The back
page of the letter indicated the charge-off date on the credit card
debt was August 2020. The complaint alleges that the statute of
limitations in California is four years, so when the letter was
sent, the statute of limitations had not expired and the statement
in the letter was false or misleading, in violation of the FDCPA.
Furthermore, had the plaintiff accepted one of the settlement
offers, the statute of limitations would have been extended even
further.
Because the letter does not clearly explain why the debt is
time-barred, the defendant's "willful" and "negligent" violation of
the FDCPA led the plaintiff to experience "increased heart rate,
difficulty with sleep, anxiety, and stress," according to the
complaint.
The complaint accuses the defendant of violating Sections 1692e and
1692f of the FDCPA and seeks to include anyone who received a
letter from the defendant stating that the defendant would not sue
the consumer for the debt because the statute of limitations had
expired, even though the statute of limitations had not yet
expired. [GN]
MITSUBISHI CHEMICAL: Humphries Alleges Breach of Fiduciary Duties
-----------------------------------------------------------------
ROBERT HUMPHRIES, individually and on behalf of all others
similarly situated, Plaintiff v. MITSUBISHI CHEMICAL AMERICA, INC.,
MITSUBISHI CHEMICAL AMERICA EMPLOYEES' SAVINGS PLAN ADMINISTRATIVE
COMMITTEE, KITTY ANTWINE and JANE AND/OR JOHN DOES 1-10,
Defendants, Case No. 1:23-cv-06214 (S.D.N.Y., July 19, 2023) is a
class action against the Defendants for breaching fiduciary duties
in the management, operation and administration of the Mitsubishi
Chemical America Employees' Savings Plan under the Employee
Retirement Income Security Act of 1974.
According to the complaint, the fiduciaries to the Plan failed to
meet their fiduciary obligations in several basic ways. First, the
Plan offered and maintained higher cost share classes when
identical lower cost class shares of the same mutual funds were
available. This resulted in the participants paying additional
unnecessary operating expenses with no value to the participants
and resulting in a loss of compounded returns. Second, the
Defendants wasted participants' money by failing to appropriately
select and monitor the Plan's stable value fund. Third, the
Defendants failed to monitor the Plan's fees and expenses. As a
result, the Plan kicked back payments to recordkeepers and other
non-parties from the retirement savings of Mitsubishi Chemical's
employees in excessive amounts.
Pertinently, Plaintiff is not merely second-guessing Defendants'
investment decisions with the benefit of hindsight. The information
Defendants needed, to make informed and prudent decisions, was
readily available to them when the decisions were made. The
Defendants, however, failed to make prudent decisions and breached
their fiduciary obligations, says the suit.
Plaintiff Humphries resides in Anderson, South Carolina and was an
employee of Mitsubishi Chemical and a participant in the Plan
during the Class Period.
Mitsubishi Chemical America, Inc. is part of the Mitsubishi
Chemical Group, a specialty materials company that operates in
business fields including performance products, chemicals,
industrial gases, and health care.[BN]
The Plaintiff is represented by:
Gustavo F. Bruckner, Esq.
Samuel J. Adams, Esq.
Ankita Sangwan, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
E-mail: gfbruckner@pomlaw.com
sjadams@pomlaw.com
asangwan@pomlaw.com
MULTICOIN CAPITAL: Faces O'Keefe Class Suit Over FTX Fraud
----------------------------------------------------------
CONNOR O'KEEFE, on behalf of himself and all others similarly
situated v. MULTICOIN CAPITAL MANAGEMENT, LLC, Case No.
1:23-cv-00838 (W.D. Tex., July 21, 2023) alleges that there was an
express or implied agreement between at least one of the agents of
FTX and Defendant Multicoin to deceive Class Members and to commit
wrongful conduct, resulting to FTX's fraud, breach of fiduciary
duty to Class Members, and conversion of Class Members property.
The Plaintiff contends that the Defendant provided critical
groundwork for the FTX fraud, including serving on FTX's advisory
board and providing other support, and promoting FTX despite
knowing that Sam Bankman-Fried (SBF), the former CEO of FTX, was
misappropriating Class Member funds, by making public statements
valorizing FTX and publishing glowing profiles of SBF, proclaiming,
for example, that "the FTX competitive advantage" is SBF's "ethical
behavior" and Class Members should "trust [their] money with SBF,
hands-down."
Allegedly, SBF could not have perpetuated the fraud without this
assistance from the Defendant. The Defendant agreed, at least
impliedly, with SBF and/or one or more of his co-conspirators to
commit the overt acts, including
(1) propping up SBF's fraud—and expanding its reach—by
injecting necessary capital into the scheme;
(2) generating for FTX the appearance of legitimate
operations, strong financial condition, and other
credibility, which permitted the scheme to grow in scale
and persist in duration;
(3) advising FTX on ways to continue its growth, thereby
attracting new victims and thrusting the scheme forward;
and
(4) concealing the fraud when the cryptocurrency industry began
to falter, with the purpose of keeping the fraud afloat
until the Defendant could cash out in a public or private
sale or once the crypto market recovered.
On November 18, 2021, the Plaintiff deposited funds by direct
transfer of US dollars from his bank account to an account he
understood to be held by FTX. Later, the Plaintiff transferred
cryptocurrencies into his FTX account from an account he held at
Coinbase Global, another cryptocurrency exchange. Because of the
overt acts taken by the Defendant, the Plaintiff was misled to
believe that the assets placed in his FTX account were safe, that
FTX was a legitimate operation, and that its founder, SBF, was a
trustworthy entrepreneur, says the suit.
The Plaintiff says that he never fully liquidated the funds in his
FTX account. The Plaintiff further asserts that his funds are now
frozen in his FTX account, and he has been unable to withdraw those
funds since the FTX fraud collapsed.
Plaintiff O'Keefe held funds in both U.S. dollars and
cryptocurrencies in a yield-bearing account and/or other account on
the FTX platform.
Multicoin Capital is a thesis-driven investment firm that invests
in cryptocurrencies, tokens, and blockchain companies reshaping
trillion-dollar markets.[BN]
The Plaintiff is represented by:
Alex J. Brown, Esq.
Ryan D. Ellis, Esq.
J. Davis LaBarre, Esq.
THE LANIER LAW FIRM, P.C.
10940 W. Sam Houston Pkwy N, Suite 100
Houston, TX 77064
Telephone: (713) 659-5200
Facsimile: (713) 659-2204
E-mail: Alex.Brown@lanierlawfirm.com
Ryan.Ellis@lanierlawfirm.com
Davis.LaBarre@lanierlawfirm.com
- and -
James R. Swanson, Esq.
Kerry J. Miller, Esq.
Benjamin D. Reichard, Esq.
C. Hogan Paschal, Esq.
Monica Bergeron, Esq.
FISHMAN HAYGOOD L.L.P.
201 St. Charles Avenue, 46th Floor
New Orleans, LA 70170-4600
Telephone: (504) 586-5252
Facsimile: (504) 586-5250
E-mail: jswanson@fishmanhaygood.com
kmiller@fishmanhaygood.com
breichard@fishmanhaygood.com
hpaschal@fishmanhaygood.com
mbergeron@fishmanhaygood.com
MULVADI CORP: Judge Okays $7.8MM Class Action Settlement
--------------------------------------------------------
Julie Steinberg, writing for Bloomberg Law, reports that a $7.8
million settlement of a suit alleging Mulvadi Corp. deceived
consumers about the origins of its coffee got a federal judge's
first nod, adding to the list of approved agreements in
long-running litigation by Hawaiian coffee farmers.
Mulvadi's insurer agreed to the payment, which is beyond the limits
of the company's insurance policy, after the coffee company
declared bankruptcy.
Judge Robert S. Lasnick of the US District Court for the Western
District of Washington preliminarily approved the settlement on
July 31 after the corresponding federal bankruptcy court entered an
order allowing him to consider the deal. [GN]
NEW JERSEY: Dismissal of Federal Claims in Marrara v. Murphy Upheld
-------------------------------------------------------------------
In the case, MICHAEL MARRARA; MICHAEL DOTRO, Plaintiffs, on behalf
of themselves and all those similarly situated, Appellants v.
PHILIP D. MURPHY; STEPHEN SWEENEY; CRAIG COUGHLIN; JOHN DOES 1-10;
JANE DOES 1-10; STATE OF NEW JERSEY, In its official capacity, Case
No. 23-1379 (3d Cir.), the U.S. Court of Appeals for the Third
Circuit affirms the District Court's orders:
a. dismissing the Appellants' federal claims brought under
42 U.S.C. Section 1983, declining to exercise supplemental
jurisdiction over their state law claims, and remanding the
case to state court; and
b. denying various motions filed by the Appellants and
terminated their motion for reconsideration.
Pro se appellants Michael Marrara and Michael Dotro have been
incarcerated at East Jersey State Prison ("EJSP"), for several
years, Marrara since July 2018 and Dotro since September 2017. In
October 2021, they filed a putative class action complaint in the
Superior Court of New Jersey, Law Division, Middlesex County,
against the State of New Jersey and several state officials in
their official capacities. The Defendants thereafter removed the
case to the District Court.
The Appellants then amended their complaint, asserting that New
Jersey's COVID-19 legislation violated various federal and state
constitutional provisions by excluding certain prisoners from
relief. Specifically, the amended complaint alleged that the
statute discriminated against the Appellants and similarly situated
prisoners by awarding Public Health Emergency Credits only to
inmates "scheduled to be released within 365 days" and by excluding
inmates serving sentences pursuant to certain enumerated
convictions. The amended complaint sought as relief an order
declaring that all New Jersey inmates who served time during the
public health emergencies are entitled to Public Health Emergency
Credits. The Appellants also moved for class certification and for
appointment of pro bono counsel.
The Defendants moved to dismiss the amended complaint on several
bases. In an opinion, the District Court dismissed the Appellants'
federal claims upon determining that the State of New Jersey and
the state officials, whom the Appellants sued in their official
capacities, are not "persons" within the meaning of 42 U.S.C.
Section 1983 and thus are not subject to liability. Alternatively,
the court noted that even if the Appellants had sued the officials
in their personal capacities, their claims would nonetheless fail
because a Section 1983 action is not the appropriate remedy for
state prisoners seeking to shorten the terms of their confinement.
Having dismissed the federal claims, the District Court declined to
exercise supplemental jurisdiction over the state law claims and
remanded the case to state court. It also denied the Appellants'
motions for class certification and appointment of counsel as
moot.
The Appellants filed a notice of appeal, and subsequently filed a
motion to amend or alter the judgment pursuant to Federal Rule of
Civil Procedure 59(e). The District Court terminated Appellants'
Rule 59(e) motion for lack of jurisdiction, and the Appellants
filed an amended notice of appeal.
The Third Circuit agrees with the District Court's dismissal of the
Appellants' federal claims because they are not cognizable in a
Section 1983 action. It says although both Section 1983 and habeas
corpus allow prisoners to challenge unconstitutional conduct by
state officers, the two are not coextensive. Whenever a challenge
attacks the validity of the continued conviction or the fact or
length of the sentence, it must be brought by way of a habeas
corpus petition. That is true however the challenge is denominated
and regardless of the relief sought.
The Appellants claim that the enactment of legislation awarding
Public Health Emergency Credits, totaling up to eight months of
early release time, to some inmates and not others violated their
rights to equal protection and due process and violated the
Constitution's Double Jeopardy and Ex Post Facto Clauses. Given
that they are seeking to be awarded those credits (or an order
directing officials to amend the statute to that effect), the
Appellants are effectively demanding a shorter period of
detention.
Contrary to their claims on appeal, the Appellants are not
challenging any procedures that led to their exclusion from the
credits. Rather, they challenge the substance of the statute, and
thus the success of their claims "would necessarily spell speedier
release." Their claims are accordingly within the core of habeas
corpus in attacking the very duration of their physical confinement
itself. The Appellants must therefore bring their federal claims by
way of a petition for a writ of habeas corpus. And the same is true
even though they also appear to seek money damages.
In addition, once the District Court correctly determined that the
Appellants' federal claims sounded in habeas, it did not err in
failing to proceed on that basis because Appellants needed to
exhaust their state remedies, and it appears that they could have
done so by utilizing the State's Inmate Remedy System and appealing
the denial of credits administratively and through the state
courts. The Third Circuit says although the Appellants aver in
their amended complaint that they wrote to prison administration
about the statute, there is no indication that they lacked an
available administrative remedy. The Appellants thus could not have
obtained federal habeas relief in this proceeding.
Because the Third Circuit agrees with the District Court's
dismissal of the amended complaint, it accordingly concludes that
it did not abuse its discretion in denying the motions for class
certification and the appointment of counsel. The District Court
likewise did not err in declining to review the Appellants' state
law claims and remanding them to state court after dismissing the
claims over which it had original jurisdiction.
As for the Appellants' motion to alter or amend the judgment
pursuant to Federal Rule of Civil Procedure 59(e), the Third
Circuit disagrees with the District Court's determination that it
lacked jurisdiction to consider the motion during the pendency of
the appeal. Although the filing of a notice of appeal typically
confers jurisdiction to the Court of Appeals and divests the
District Court of its authority, it says the District Court retains
the power to act in limited circumstances, such as when a timely
Rule 59(e) motion is filed. And the Appellants' motion was timely
with the benefit of the prison mailbox rule.
In their motion, the Appellants argued only that they should be
given another opportunity to amend their complaint to allege
liability against the state officials in their personal capacities.
Contrary to their contention, such amendment would be futile
considering our conclusion that their federal claims must be
brought in a habeas proceeding, and they were therefore not
entitled to reconsideration. Any error committed by the District
Court in failing to consider the Appellants' motion for
reconsideration was accordingly harmless.
Accordingly, the Third Circuit summarily affirms the District
Court's judgment. The Appellants' motion to withdraw their motion
for a stay of state court proceedings is granted. Their motion for
appointment of counsel is denied.
A full-text copy of the Court's July 7, 2023 Opinion is available
at https://tinyurl.com/2263x9zb from Leagle.com.
OPIE'S OUTPOST: James Seeks to Recover Unpaid Overtime Wages
------------------------------------------------------------
Thomas James, on behalf of himself and others similarly situated in
this proposed FLSA Collective Action, Plaintiff v. Opie's Outpost,
LLC, and Stephanie Meyerson, Defendants, Case No. 1:23-cv-05533
(E.D.N.Y., July 20, 2023) seeks injunctive and declaratory relief
and to recover unpaid overtime wages, unlawful deductions,
liquidated and statutory damages, pre- and post-judgment interest,
and attorneys' fees and costs from the Defendants pursuant to the
Fair Labor Standards Act, New York Labor Law, and the NYLL's Wage
Theft Prevention Act.
The Plaintiff was employed as a boarder and dog handler at
Defendants' shop located in Brooklyn, New York from approximately
November 2021 to, through and including, the present date.
Opie's Outpost, LLC, a domestic limited liability company, owns,
operates and/or controls a doggy day care known as "Opie's
Outpost," located in Brooklyn, New York.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
PENSION BENEFIT: Sanguinetti Files Data Breach Class Action
-----------------------------------------------------------
Attorneys for Arias Sanguinetti filed a data breach class action on
behalf of CalPERS members who had their data downloaded by an
unauthorized third party after CalPERS provided that information to
Pension Benefit Information, LLC and The Berwyn Group, Inc.
("PBI").
CalPERS, headquartered in Sacramento, is the nation's largest
public pension fund with assets of approximately $240 billion.
CalPERS provided PBI with the personal information of retired
members, which included their full names, dates of birth and social
security numbers.
PBI's own website claimed the company was focused on "protecting
and securing your information" as their "highest priority." They
also claimed "PBI strives to protect the personally identifiable
information that we collect, maintain or disseminate, including by
using appropriate administrative, physical, and technical
safeguards."
However, in May of 2023, an unauthorized third party downloaded the
information of 769,000 retired CalPERS members through PBI's poorly
protected servers. PBI waited until June 4 of 2023 to notify
CalPERS, which then sent notices to retired members on June 22. To
date, PBI has still not sent any notice to the plaintiff class.
"PBI's false promises compromised the data of hundreds of thousands
of people, many of whom live on a restricted income, and if their
credit or financial accounts are accessed, it would be
catastrophic," said attorney Anthony Jenkins of Arias Sanguinetti.
The lawsuit alleges that PBI was negligent in protecting CalPERS
members' personal information, PBI violated the Customer Records
Act (Cal. Civ. Code Section 1798.82, et seq.), which governs how
PBI should have protected the personal information of CalPERS'
members, and that their right to privacy under the California
Constitution have been violated.
The case is Terry Cheng et al. v. Pension Benefit Information, LLC,
The Berwyn Group, Inc., U.S.D.C. California Western Division, Case
No. 2:23-cv-05481. To read the complaint, click here.
About Arias Sanguinetti
As the premier law firm handling sex abuse cases in Los Angeles,
Arias Sanguinetti's trial lawyers are continually honored and
recognized for their work on behalf of clients the firm has
obtained over $1 billion for clients. The firm's personal injury
and medical malpractice attorneys are regularly ranked as some of
the best in the nation. The firm also made history obtaining the
$852 million settlement against USC on behalf of more than 700
former students, the largest known settlement in a sexual abuse
case in U.S. history, as well as the largest known personal injury
settlement against a university. [GN]
PENUMBRA INC: Continues to Defend Labor Code-Related Class Suit
---------------------------------------------------------------
Penumbra Inc. disclosed in its Form 10-Q Report for the quarterly
period ending June 30, 2023 filed with the Securities and Exchange
Commission on August 1, 2023, that the Company continues to defend
itself from labor-related class suit in the Superior Court of the
State of California.
On April 7, 2023, a former contractor who had been retained by the
Company through a third party staffing agency filed a putative
class action lawsuit as well as a Private Attorney General Act
("PAGA") representative action complaint against the Company in the
Superior Court of the State of California for the County of
Alameda, on behalf of the contractor and similarly situated Company
contractors and employees in California, alleging various claims
pursuant to the California Labor Code related to wages, overtime,
meal and rest breaks, reimbursement of business expenses, wage
statements and records, and other similar allegations.
Additionally, on April 10, 2023, a current employee of the Company
filed a PAGA representative action complaint against the Company in
the Superior Court of the State of California for the County of
Alameda, on behalf of the employee and similarly situated Company
employees in California, alleging similar claims.
The complaints seek payment of various alleged unpaid wages,
penalties, interest and attorneys' fees in unspecified amounts. The
Company believes the claims lack merit, and intends to defend
itself vigorously.
Penumbra is a medical device company headquartered in Alameda,
California.[BN]
PEPSICO INC: Hoskin Sues Over Unauthorized Collection of Biometrics
-------------------------------------------------------------------
WILLIAM HOSKIN, individually and on behalf of all others similarly
situated, Plaintiff v. PEPSICO, INC., Defendant, Case No.
7:23-cv-06413 (S.D.N.Y., July 25, 2023) is a class action against
the Defendant for violation of the Illinois Biometric Information
Privacy Act.
According to the complaint, the Defendant is engaged in the
practice of possessing, collecting, capturing, storing, using,
and/or otherwise obtaining the biometric identifiers and biometric
information of the Plaintiff and other similarly situated
individuals without obtaining informed written consent or providing
or complying with the requisite data retention and destruction
policies as required by BIPA.
The Plaintiff brings this action to prevent the Defendant from
further violating the privacy rights of Illinois residents and to
recover statutory damages for its improper and lackluster
collection, storage, usage, and protection of their biometrics.
PepsiCo, Inc. is an American multinational food, snack, and
beverage corporation, with its principal place of business at 700
Anderson Hill Road, Purchase, New York. [BN]
The Plaintiff is represented by:
Joseph I. Marchese, Esq.
Max S. Roberts, Esq.
BURSOR & FISHER, PA
1330 Avenue of the Americas, 32nd Floor
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: jmarchese@bursor.com
mroberts@bursor.com
- and -
Neal J. Deckant, Esq.
BURSOR & FISHER, P.A.
1990 N. California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ndeckant@bursor.com
PHARMERICA CORP: Young Sues Over Unprotected Personal, Health Info
------------------------------------------------------------------
JAMES YOUNG, individually and on behalf of all others similarly
situated, Plaintiff v. PHARMERICA CORPORATION and RES-CARE, INC.
d/b/a BRIGHTSPRING HEALTH SERVICES, Defendants, Case No.
3:23-cv-00369-BJB (W.D. Ky., July 20, 2023) is a class action
against the Defendants for negligence, negligence per se, breach of
fiduciary duty, breach of implied contract, invasion of privacy,
unjust enrichment, and declaratory relief arising from the
Defendants' failure to protect sensitive personal identifiable
information and protected health information pursuant to the Health
Insurance Portability and Accountability Act.
According to the complaint, PM owed a duty to Plaintiff and class
members to implement and maintain reasonable and adequate security
measures to secure, protect, and safeguard their PII and PHI
against unauthorized access and disclosure. PM breached that duty
by, among other things, failing to implement and maintain
reasonable security procedures and practices to protect the PII and
PHI entrusted to it from unauthorized access and disclosure, says
the suit.
As a result of PM's alleged inadequate security and breach of its
duties and obligations, the data breach occurred, and Plaintiff's
and class members' PII and PHI was accessed and disclosed by an
unauthorized actor. This instant action seeks to remedy these
failings and their consequences. The Plaintiff, thus, brings this
complaint on behalf of himself and all similarly situated
individuals whose PII and/or PHI was exposed as a result of the
data breach, which PM learned of on March 21, 2023, but did not
publicly disclose until May 12, 2023.
PharMerica Corporation provides health care services. The Company
offers skilled nursing, senior living, long term care, oncology,
and hospital pharmacy management services. PharMerica serves
customers in the United States.[BN]
The Plaintiff is represented by:
John C. Whitfield, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
19 North Main Street
Madisonville, KY 42431
Telephone: (270) 821-0656
Facsimile: (270) 825-1163
E-mail: jwhitfield@milberg.com
- and -
E. Michelle Drake, Esq.
BERGER MONTAGUE, PC
1229 Tyler Street NE, Suite 205
Minneapolis, MN 55413
Telephone: (612) 594-5933
Facsimile: (612) 584-4470
E-mail: emdrake@bm.net
- and -
Mark B. DeSanto, Esq.
BERGER MONTAGUE, PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: mdesanto@bm.net
PHILO INC: Court Defers Ruling on Bid to Dismiss May Class Suit
---------------------------------------------------------------
In the case, TOMIKA MAY, et al., Plaintiffs v. PHILO, INC.,
Defendant, Case No. 23-cv-01394-MMC (N.D. Cal.), Judge Maxine M.
Chesney of the U.S. District Court for the Northern District of
California:
(1) defers ruling on Philo's Motion to Dismiss the Class
Action Complaint; and
(2) grants Philo's Motion to Stay Discovery Pending Resolution
of Defendant Philo, Inc.'s Motion to Dismiss the Class
Action Complaint.
Before the Court are two motions filed May 17, 2023, by Philo: (1)
Motion to Dismiss the Class Action Complaint and (2) Motion to Stay
Discovery Pending Resolution of Defendant Philo, Inc.'s Motion to
Dismiss the Class Action Complaint. Plaintiffs Tomika May and
Matthew Kirschenbaum have filed opposition, to which Philo has
replied.
Having read and considered the parties' respective written
submissions, Judge Chesney finds it appropriate to defer ruling on
the motion to dismiss, to allow the Plaintiffs to take limited
discovery regarding May's standing.
In their Complaint, the Plaintiffs allege that Philo operates a
digital subscription service where subscribers may view television
shows and movies, that Philo has installed on its website the
Facebook Pixel, and that Philo disclosed to Facebook, through the
Facebook Pixel, the FID of the subscribers and the specific video
the subscribers requested or obtained.
The Plaintiffs also allege that May has been a "Philo subscriber"
since October 2021 and is also a "Facebook user," that Kirschenbaum
was a "Philo subscriber from 2019 through August 2021" and is also
a "Facebook user," and that Philo disclosed to Facebook each
Plaintiff's FID and the "title of the videos" each Plaintiff
"requested or obtained." Based on these allegations, the Plaintiffs
assert, on their own behalf and on behalf of a putative class, a
claim against Philo under the Video Privacy Protection Act
("VPPA").
The Plaintiffs, as noted, allege that Philo, through its use of the
Facebook Pixel, disclosed to Facebook personal information about
subscribers. In support of the instant motion, Philo offers
evidence that the Facebook Pixel was removed from all pages that
play video on Philo's website in August 2022, and that the Philo
account associated with May's email address first played videos on
the Philo website on Oct. 28, 2022. In light thereof, Philo argues,
May did not suffer a violation of her right to privacy, and,
consequently, she lacks standing to assert a VPPA claim.
Although Philo's evidence, if unrebutted, would support a finding
that May lacks standing, such evidence would also resolve May's
claim on its merits. Where, as in the case, a defendant files a
motion to dismiss for lack of subject matter jurisdiction and the
jurisdictional issue and the substantive issues are so intertwined
that the question of jurisdiction is dependent on the resolution of
factual issues going to the merits, the jurisdictional
determination should await a determination of the relevant facts on
either a motion going to the merits or at trial. Consequently, in
ruling on a jurisdictional motion to dismiss involving factual
issues which also go to the merits, courts employ the standard
applicable to a motion for summary judgment and the moving party
prevails only if the material jurisdictional facts are not in
dispute.
Although the Plaintiffs argue the motion should be denied and they
be allowed to conduct class discovery on the merits prior to any
determination of May's standing, Judge Chesney finds it preferable
to resolve the intertwined issue first, particularly given its
narrow scope. She will, however, afford the Plaintiffs the
opportunity to conduct limited discovery on that issue and will
defer ruling on the instant motion pending completion thereof.
Accordingly, Judge Chesney defers ruling on Philo's motion to
dismiss and affords the Plaintiffs leave to conduct discovery as to
(a) whether Philo has removed the Facebook Pixel from all webpages
that play video, and, if so, the date on which it made that change,
and (b) the dates on which May played a video on the Philo website.
In all other respects, Philo's motion to stay discovery is
granted.
No later than Oct. 6, 2023, jurisdictional discovery will be
completed.
No later than Oct. 27, 2023, the Plaintiffs will file any
supplemental opposition to Philo's motion to dismiss, limited to
the issue of whether May has standing.
No later than Nov. 13, 2023, Philo will file any supplemental
reply.
The hearing on Philo's motion to dismiss is continued from July 28,
2023, to Dec. 1, 2023, at 9:00 a.m.
The Case Management Conference is continued from July 14, 2023, to
Jan. 26, 2024. A Joint Case Management Statement will be filed no
later than Jan. 19, 2024.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/4e3kpm2r from Leagle.com.
PHREESIA INC: Kellyman Sues Over Illegal Debt Collection Practices
------------------------------------------------------------------
JAMAR KELLYMAN, individually and on behalf of all those similarly
situated, Plaintiff v. PHREESIA, INC., Defendant, Case No.
CACE-23-015944 (Fla. Cir., 17th Judicial, Broward Cty., July 20,
2023) arises from the Defendant's violation of the Florida Consumer
Collection Practices Act.
According to the complaint, the Defendant sent an electronic
communication to Plaintiff in connection with the collection of a
consumer debt. The electronic communication was sent to Plaintiff
between the hours of 9:00 p.m. and 8:00 a.m. in the time zone of
Plaintiff. The Defendant did not have the Plaintiff's consent to
communicate with him between the said hours. As such, by Defendant
sending the electronic communication referenced herein, the
Defendant violated the FCCPA, says the suit.
The Plaintiff is the alleged debtor of the consumer debt.
Phreesia, Inc. is a software as a service company that offers
healthcare organizations a set of applications to automate and
manage patient intake.[BN]
PILGRIM'S PRIDE: 10th Cir. Reverses Dismissal of Securities Suit
----------------------------------------------------------------
Shearman & Sterling LLP disclosed that on July 13, 2023, the United
States Court of Appeals for the Tenth Circuit reversed the
dismissal of a putative class action asserting claims against a
poultry producer and certain of its officers under Section 10(b) of
the Securities Exchange Act of 1934. Hogan v. Pilgrim's Pride
Corp., -- F.4th --, 2023 WL 4508545 (10th Cir. 2023). Plaintiff
alleged that the company made misrepresentations regarding its
financial results, business operations, and a purported
price-fixing scheme. The district court dismissed plaintiff's
second amended complaint as barred by the Exchange Act's statute of
repose, but the Tenth Circuit reversed, holding that the statute of
repose did not apply.
The district court had granted defendants' motion to dismiss the
first amended complaint, holding that plaintiff had failed to
adequately allege facts establishing an underlying "antitrust
conspiracy," on which plaintiff's Exchange Act claims were
predicated. Id. at *2. Plaintiff had requested leave to amend in a
footnote. The district court determined that a separate motion for
leave to amend would be required, but that the dismissal would be
without prejudice, because new facts to support plaintiff's claims
might emerge through then-pending antitrust litigation. Id.
Plaintiff then filed a motion to reconsider and, in the
alternative, for leave to amend. The district court denied the
motion to reconsider, but granted leave to amend, clarifying that
it "ha[d] not yet reviewed the proposed Second Amended Complaint"
and that plaintiff should submit his second amended complaint if
there are "genuinely new facts that are materially different tha[n]
those that the [c]ourt had already found to be insufficient to
state a claim." Id. at *3.
The district court did not set a deadline for filing a second
amended complaint, and plaintiff did not file it until nearly 19
months later. Id. The second amended complaint did not add any
parties or causes of action or identify any new challenged
statements; rather, it added factual allegations to support the
existing claims that defendants had engaged in a price-fixing
conspiracy. Id. Defendants moved to dismiss. The district court
granted the motion, holding: (1) challenged statements made more
than five years prior to the filing of the second amended complaint
were barred by the Exchange Act's five-year statute of repose; (2)
any claims based on more recent challenged statements were barred
by Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730–31
(1975), because "[p]laintiff had not been a purchaser or seller of
securities within that five-year period." Pilgrim's Pride, 2023 WL
4508545, at *3. The district court dismissed with prejudice the
claims barred by the statute of repose, declining to "excuse
[plaintiff's] nearly two-year delay in refiling this case" and
declining to apply potential exceptions to the repose period such
as tolling for fraud claims or the relation-back doctrine. Id.
The Tenth Circuit reversed, holding that the statute of repose
applies only to causes of action "brought" later than five years
after the alleged violation, which the Court construed as meaning
to "initiate or commence" a claim. Id. at *5. While noting that the
repose period is "claim specific" and could therefore apply with
respect to claims newly added by amendments to a complaint, the
second amended complaint in this case was not barred by the statute
of repose because it added no new parties or causes of action and
did "not even add additional statements alleged to be fraudulent."
Id. The Court further explained that this determination was
consistent with the relation-back doctrine in Rule 15(c)(1)(B) of
the Federal Rules of Civil Procedure, which permits amendments
relating back to the date of the original pleading when "the
amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set
out—in the original pleading." Id.
The Court further explained that barring the second amended
complaint would not "further the limited purposes of a statute of
repose," noting, "[w]e are aware of no authority suggesting that
statutes of repose are intended to protect litigants from evidence
uncovered late in the course of litigation," which can take years
in complicated cases. Id. at *6. The Court emphasized that "[o]nce
a defendant's repose has been disturbed by the bringing of a claim,
a statute of repose does not protect it from the customary travails
of defending the claim." Id.
The Court also observed that the dismissal of the first amended
complaint "might seem to mean that filing the [second amended
complaint] amounted to 'bringing' a new action" because the new
complaint "interrupt[ed] the repose that [d]efendants expected and
were entitled to after dismissal of the [first amended complaint]."
Id. However, the Court concluded that the order dismissing the
first amended complaint was not a final judgment because it simply
dismissed the first amended complaint, not the action. The Court
explained that while a dismissal without prejudice could in some
circumstances be considered a final judgment where no further
proceedings are anticipated, here "further proceedings were
anticipated" by the decision dismissing the first amended complaint
because it explicitly authorized the filing of a second amended
complaint (although the decision set no deadline for such a
filing). Id. at *7. The Court explained that so long as the case
remained open, defendants had no right to expect repose, and while
defendants "may feel put upon because of the long delay until their
entitlement to repose," they had other options to expedite the
action and either could have requested that the district court
impose a deadline for amendment or moved for dismissal for failure
to prosecute. Id. at *8.
The Court thus reversed the dismissal and remanded for
consideration of the adequacy of the second amended complaint. Id.
[GN]
PLANETART LLC: Faces Najera Suit Over Illegal Biometric Collection
------------------------------------------------------------------
LUCIA NAJERA, SANDRA RODRIGUEZ, and ANGELICA RAMOS, VIRGINIA
GONZALEZ individually and on behalf of other persons similarly
situated v. PLANETART, LLC, Case No. 2023LA000770 (Ill. Cir., July
21, 2023) alleges that the Defendant violated the Illinois
Biometric Information Privacy Act by subjecting the Plaintiffs and
class members to the unlawful biometric scanning and storage
practices.
According to the complaint, the Defendant collects and stores its
employees' fingerprints and requires employees to clock-in and
clock-out by scanning their fingerprints into a
fingerprint-scanning machine. The Plaintiffs and class members have
not been notified where their fingerprints are being stored, for
how long the Defendant will keep the fingerprints, and what might
happen to this valuable information, the suit contends.
The Defendant allegedly did not obtain the Plaintiffs' or class
members' written consent to record, collect, obtain, and/or store
Plaintiffs' and class members' biometric data. Likewise, the
Defendant never provided the Plaintiffs with the requisite
statutory disclosures nor an opportunity to prohibit or prevent the
collection, storage or use of Plaintiffs' unique biometric
identifiers and/or biometric information.
The Plaintiffs bring this action individually and on behalf of
class members pursuant to obtain statutory damages and injunctive
relief for violations of the Illinois BIPA.
The Plaintiffs seek to certify class of:
"All individuals whose biometric data Defendant collected
or stored in Illinois."
The Plaintiffs are individuals subject to the same
fingerprint-storing practices as other of Defendant's employees.
Planetart LLC is a developer of an online on-demand printing
platform designed to create innovative personalized products.[BN]
The Plaintiffs are represented by:
Roberto Luis Costales, Esq.
William H. Beaumont, Esq.
BEAUMONT COSTALES LLC
107 W. Van Buren, Suite 209
Chicago, IL 60605
Telephone: (773) 831-8000
E-mail: rlc@beaumontcostales.com
whb@beaumontcostales.com
POSITANO PIZZA: Fails to Pay OT Wages Under FLSA, McGuire Alleges
-----------------------------------------------------------------
MICHAEL MCGUIRE, CARLO AVERSANO, EDWIN SIAGARAN, LELIS PALACIOS,
MANUEL HERNANDEZ, JOSE MEJIA, SANTOS VIGIL, JUAN MOLINA, JOSE RIOS,
on behalf of themselves and others similarly situated v. ANTONIO
DECRESCENZO, JORGE GONZALEZ, AFFINITY FLSD AND SECURITY CORP. D/B/A
POSITANO PIZZA & RISTORANTE, POSITANO BRICK OVEN PIZZA &
RISTORANTE, Case No. 2:23-cv-05552 (E.D.N.Y., July 21, 2023) arises
from the Defendants' alleged unlawful labor policies and practices
in violation of the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiffs seek to recover unpaid wages for overtime work
performed pursuant to the FLSA as well as liquidated damages,
attorneys' fees, interest, and all costs and disbursements. They
also brought this suit under NYLL for unpaid overtime wages,
liquidated damages for failure to pay overtime premium, liquidated
damages for failure to furnish Plaintiff a notice and
acknowledgment at the time of hiring and for improper pay stubs,
attorneys' fees, civil damages for filing false taxes, interest,
and all costs and disbursements associated with this action.
Accordingly, the Plaintiffs and the other Collective Plaintiffs are
and have been subject to the Defendants common policies, programs,
practices, procedures, protocols, routines, and rules willfully
failing and refusing to pay them one and one-half times their
hourly rate for work in excess of 40 hours per workweek. Also, the
Plaintiffs and Collective and Class plaintiffs typically worked
more than ten hours each day during the week, yet the Defendants
willfully failed to pay them spread of hours wages, the Plaintiffs
claim.
Mr. Mcguire has been employed by the Defendants as a counterperson
and pizza maker from more than six years before the filing date
until the present. He was paid $1,300 weekly from 2017-2018, then
$1,500 weekly from 2019-2021, and $1,650 weekly from 2022 to the
present.
Mr. Aversano was employed by the Defendants as a waiter from more
than six years before the filing date until the present. He was
paid $380 weekly from 2017-2021, then $700 weekly from 2022 to the
present. During the workweek of October 18, 2022, to October 23,
2022, Mr. Aversano worked 60 hours, but was only paid $300 by
check, and the remainder of his pay in cash. During that workweek,
Mr. Aversano was not paid an overtime premium, the suit asserts.
Positano is a restaurant/pizzeria.[BN]
The Plaintiffs are represented by:
Marcus Monteiro, Esq.
MONTEIRO & FISHMAN LLP
91 N. Franklin Street, Suite 108
Hempstead, NY 11550
Telephone: (516) 280-4600
Facsimile: (516) 280-4530
E-mail: mmonteiro@mflawny.com
PPG IND: Parties Must Complete Fact Discovery by April 26, 2024
---------------------------------------------------------------
In the class action lawsuit captioned as CHRISTIAN RODRIGUEZ, ISAAC
DIAZ, STEVEN SEARS, JASON LORICK, and JONI LANIK, on behalf of
themselves and others similarly situated, v. PPG INDUSTRIES, INC.,
Case No. 2:22-cv-00838-WSH-MPK (W.D. Pa.), the Hon. Judge Maureen
P. Kelly entered a case management order as follows:
1. The parties shall make the disclosures Aug. 16,
2023
required by Fed. R. Civ. P. 26(a) by:
2. The parties shall move to amend the Aug. 30,
2023
pleadings or add new parties by:
3. The parties shall complete class April 26,
2024
certification fact discovery by:
4. The parties shall complete the ADR Sept. 19,
2023
process they selected by:
5. The Court will conduct a post class Mach 21,
2024
certification discovery status
conference on:
PPG Industries is an American Fortune 500 company and global
supplier of paints, coatings, and specialty materials.
A copy of the Court's order dated July 19, 2023, is available from
PacerMonitor.com at https://bit.ly/43RnueK at no extra charge.[CC]
PROVIDENCE PUBLIC: PLEE Suit Seeks Class Certification
------------------------------------------------------
In the class action lawsuit captioned as Parents Leading for
Educational Equity (PLEE); A.A. by next friend Rachel Cohn; Rachel
Cohn; R.G., by next friend Dell Johnny; Dell Johnny; L.C., by next
friend Lorena Rodriguez; and Lorena Rodriguez, each individually
and on behalf of all persons similarly situated; v. Providence
Public School Department; the Providence School Board; the Rhode
Island Department of Education; and Angelica Infante-Green,
Commissioner of Education; Case No. 1:23-cv-00301-MSM-PAS (D.R.I.),
the Plaintiffs move the case to proceed as a class action pursuant
to Fed. R. Civ. P. 23(b)(2):
The Plaintiff class consists of the following subclasses:
a. Subclass 1:
Identified Children denied timely evaluation and
determination
of eligibility for special education and related services:
All children, who are or hereafter will be between the ages
of
three and five, with disabilities as defined by the IDEA,
living
or will live in the City of Provience and who have been
identified by Providence Public School Department as
requiring
an initial evaluation for eligibility for special education
services and have not received or will not receive an initial
evaluation and determination of eligibility for special
education and related services.
The Plaintiffs A.A. and Rachel Cohn seek to represent this
subclass.
b. Subclass 2:
Children with IEPs denied IEP Services:
All children, who are or hereafter will be between the ages
of
three and five, with disabilities, as defined by the IDEA,
living or will live in the City of Providence, who have been
determined eligible for preschool programs under Part B of
the
IDEA and have been provided an IEP, but have been denied or
delayed in the provision of the preschool programs and
services
identified in their IEPs on the claimed basis of unavailable
resources or staffing. the Plaintiffs R.G., and L.C. and
their
parents Dell Johnny and Lorena Rodriguez seek to represent
this
subclass.
The class claims are:
a. the Defendants Rhode Island Department of Education (RIDE)
Infante-Green, and Providence School District and School
Board
have violated their Child Find obligations under the IDEA by
failing to timely evaluate, and determine eligibility for
children with disabilities ages 3-5, including the
Plaintiffs;
b. the Defendants RIDE, Infante-Green, and Providence School
District and School Board have violated their statutory
obligations to provide a free appropriate public education
(FAPE) to students ages 3-5, including the Plaintiffs, by
failing to provide the services and supports identified in
their IEPs;
c. the Defendant RIDE has failed to supervise the District or
use
federal funds to provide direct services itself so that
children ages 3-5, including the Plaintiffs, can receive
FAPE,
and has thereby violated its obligations under the IDEA;
d. All the Defendants have violated Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. section 794, by
failing
to ensure that the Plaintiffs receive educational services
that
will present equal opportunity to benefit from education;
e. All the Defendants have violated Title II of the ADA, 42
U.S.
C. section 12131, et seq., by failing to provide the
Plaintiffs
with the special education and related services they require
in
order to access the same educational opportunities as their
peers without disabilities.
Providence Public School Department is the administrative force
behind the primary public school district of Providence, Rhode
Island.
A copy of the Plaintiffs' motion dated July 18, 2023 is available
from PacerMonitor.com at https://bit.ly/3DE98Ua at no extra
charge.[CC]
The Plaintiff is represented by:
Ellen Saideman, Esq.
LAW OFFICE OF ELLEN SAIDEMAN
7 Henry Drive
Barrington, RI 02806
Telephone: (401) 258-7276
Facsimile: (401) 709-0213
E-mail: esaideman@yahoo.com
- and -
Lynette Labinger, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF RHODE ISLAND
128 Dorrance Street, Box 710
Providence, RI 02903
Telephone: (401) 465-9565
LL@labingerlaw.com
- and -
Jennifer L. Wood, Esq.
THE R.I. CENTER FOR JUSTICE
1 Empire Plaza, Ste. 410
Providence, RI 02903
Telephone: (401) 837 6431
E-mail: jwood@centerforjustice.org
QUEST DIAGNOSTICS: Court Modifies July 13, 2023 Order in ERISA Suit
-------------------------------------------------------------------
In the class action lawsuit RE QUEST DIAGNOSTICS ERISA LITIGATION,
Case No. 2:20-cv-07936-JXN-LDW (DNJ), the Hon. Judge Julien X.
Neals entered an order modifying the July 13, 2023 Order as
follows:
(1) The Defendant's motion for leave to file supplemental
briefing
in opposition to the Plaintiffs motion for class
certification
is granted.
(2) The Plaintiffs motion to certify class is administratively
terminated.
(3) The Plaintiff shall refile its motion for class
certification
by no later than July 28, 2023.
(4) The Defendant's response shall be filed by no later than
August
7, 2023.
(5) The Plaintiffs reply shall be filed by no later than Aug.
14,2023.
Quest Diagnostics is an American clinical laboratory. A Fortune 500
company, Quest operates in the United States, Puerto Rico, Mexico,
and Brazil.
A copy of the Court's order dated July 19, 2023 is available from
PacerMonitor.com at https://bit.ly/44Q4o9W at no extra charge.[CC]
RANGE RESOURCES: Filing for Class Cert. Bid Extended to Nov. 13
---------------------------------------------------------------
In the class action lawsuit captioned as RUPERT, et al., v. RANGE
RESOURCES -- APPALACHIA, LLC et al., Case No. 2:21-cv-01281 (W.D.
Pa., Filed Sept. 24, 2021), the Hon. Judge Patricia L. Dodge
entered an order granting joint motion to amend Amended Case
Management Order as follows:
-- Completion of Class Certification Sept. 8, 2023
Discovery by:
-- The Plaintiffs' Disclosure of Class Sept. 15,
2023
Certification Experts and Reports by:
-- The Defendant's Disclosure of Class Oct. 16, 2023
Certification Experts and Reports by:
-- Discovery of Class Certification Oct. 30, 2023
Experts Completed by:
-- The Plaintiffs' Motion for Class Nov. 13, 2023
Certification by:
-- The Defendant's Memorandum in Dec. 11, 2023
Opposition to Class Certification
by:
-- The Plaintiffs' Reply Memorandum Dec. 29, 2023
in Further Support of Class
Certification by:
The nature of suit states Diversity-Contract Dispute.
Range Resources is a U.S. independent natural gas and NGL producer
with operations focused in stacked-pay projects.[CC]
REALPAGE INC: Dempsey Sues Over Inflated Student Housing Prices
---------------------------------------------------------------
BENJAMIN DEMPSEY and IVONNE ARRIOLA MENDIETA, individually and on
behalf of all others similarly situated, Plaintiffs v. REALPAGE,
INC.; THOMA BRAVO FUND XIII, L.P., THOMA BRAVO FUND XIV, L.P.,
THOMA BRAVO L.P., GREYSTAR MANAGEMENT SERVICES, LP, BH MANAGEMENT
SERVICES, LLC, CAMPUS ADVANTAGE, INC., CARDINAL GROUP HOLDINGS LLC,
CA VENTURES GLOBAL SERVICES, LLC, UNIVERSITY HOUSE COMMUNITIES
GROUP, LLC, TIMBERLINE REAL ESTATE VENTURES LLC, and B.HOM STUDENT
LIVING LLC, Defendants, Case No. 1:23-cv-01832 (D. Colo., July 19,
2023) challenges an unlawful agreement among Lessor Defendants of
student housing properties to artificially inflate the prices of
student housing across the United States, including near college
campuses, in violation of Section 1 of the Sherman Act for
agreement in restraint of trade and for conspiracy to exchange
competitive information and in violation of state antitrust
statutes.
During the Class Period, Defendants and their co-conspirators
entered and engaged in a contract, combination, or conspiracy to
fix, raise, stabilize or maintain at artificially high levels, the
rents they charge for student housing leases in various states to
unreasonably restrain trade and commerce in violation of the
various state antitrust laws.
In formulating and effectuating this conspiracy, Defendants and
their co-conspirators performed acts in furtherance of the
combination and conspiracy, including: agreeing to fix, increase,
maintain, or stabilize student housing leases at artificially high
levels which injured Plaintiffs and members of the Class; exchange
of competitively sensitive information between and among Lessor
Defendants; and participating in meetings and trade association
conversations among themselves in the United States and elsewhere
to implement, adhere to, and police the unlawful agreements they
reached, the suit claims.
As a result of Defendants' unlawful conduct, the Plaintiffs and
members of the Class have been harmed by being forced to pay
inflated, supracompetitive prices for leases, alleges the suit.
Plaintiff Dempsey is a resident of the State of Alabama and was a
student at Auburn University. He rented a purpose-built student
housing unit at The Beacon in Auburn, Alabama.
Plaintiff Mendieta is a resident of the State of Florida and was a
student at Florida State University. She rented a purpose-built
student housing unit at The Osceola in Tallahassee, Florida.
RealPage, Inc. provides software and services to the residential
real estate industry.[BN]
The Plaintiffs are represented by:
Rusty E. Glenn, Esq.
SHUMAN, GLENN & STECKER
600 17th Street, Suite 2800
South Denver, CO 80202
Telephone: (303) 861-3003
Facsimile: (303) 536-7849
E-mail: rusty@shumanlawfirm.com
- and -
Tricia R. Herzfeld, Esq.
Anthony A. Orlandi, Esq.
HERZFELD SUETHOLZ GASTEL LENISKI AND WALL, PLLC
223 Rosa L. Parks Avenue, Suite 300
Nashville, TN 37203
Telephone: (615) 800-6225
E-mail: tricia@hsglawgroup.com
tony@hsglawgroup.com
- and -
David R. Scott, Esq.
Amanda Lawrence, Esq.
Patrick McGahan, Esq.
Michael Srodoski, Esq.
G. Dustin Foster, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
156 South Main Street
P.O. Box 192
Colchester, CT 06145
Telephone: (860) 537-5537
Facsimile: (860) 537-4432
E-mail: david.scott@scott-scott.com
alawrence@scott-scott.com
pmcgahan@scott-scott.com
msrodoski@scott-scott.com
gfoster@scott-scott.com
- and -
Patrick J. Coughlin, Esq.
Carmen A. Medici, Esq.
Fatima Brizuela, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
600 West Broadway, Suite 3300
San Diego, CA 92101
Telephone: (619) 798-5325
Facsimile: (619) 233-0508
E-mail: pcoughlin@scott-scott.com
cmedici@scott-scott.com
fbrizuela@scott-scott.com
- and -
Kristen Anderson, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
E-mail: kanderson@scott-scott.com
- and -
Thomas J. Undlin, Esq.
Stacey Slaughter, Esq.
Geoffrey H. Kozen, Esq.
J. Austin Hurt, Esq.
ROBINS KAPLAN LLP
800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
Telephone: (612) 349-8500
Facsimile: (612) 339-4181
E-mail: tundlin@robinskaplan.com
sslaughter@robinskaplan.com
gkozen@robinskaplan.com
ahurt@robinskaplan.com
- and -
Swathi Bojedla, Esq.
Mandy Boltax, Esq.
HAUSFELD LLP
888 16th Street, N.W., Suite 300
Washington, DC 20006
Telephone: (202) 540-7200
E-mail: sbojedla@hausfeld.com
mboltax@hausfeld.com
- and -
Gary I. Smith, Jr., Esq.
HAUSFELD LLP
600 Montgomery Street, Suite 3200
San Francisco, CA 94111
Telephone: (415) 633-1908
E-mail: gsmith@hausfeld.com
- and -
Katie R. Beran, Esq.
HAUSFELD LLP
325 Chestnut Street, Suite 900
Philadelphia, PA 19106
Telephone: (215) 985-3270
E-mail: kberan@hausfeld.com
- and -
Eric L. Cramer, Esq.
Michaela L. Wallin, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: ecramer@bm.net
mwallin@bm.net
- and -
Daniel J. Walker, Esq.
BERGER MONTAGUE PC
2001 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20006
Telephone: (202) 559-9745
E-mail: dwalker@bm.net
- and -
Brendan P. Glackin, Esq.
Dean M. Harvey, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, Suite 2900
San Francisco, CA 94111
Telephone: (415) 956-1000
E-mail: bglackin@lchb.com
dharvey@lchb.com
- and -
Christian P. Levis, Esq.
Vincent Briganti, Esq.
Peter Demato, Esq.
Radhika Gupta, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: vbriganti@lowey.com
clevis@lowey.com
pdemato@lowey.com
rgupta@lowey.com
- and -
Christopher M. Burke, Esq.
Walter W. Noss, Esq.
Yifan (Kate) Lv, Esq.
KOREIN TILLERY P.C.
707 Broadway, Suite 1410
San Diego, CA 92101
Telephone: (619) 625-5621
Facsimile: (314) 241-3525
E-mail: cburke@koreintillery.com
wnoss@koreintillery.com
klv@koreintillery.com
- and -
Joseph R. Saveri, Esq.
Steven N. Williams, Esq.
Cadio Zirpoli, Esq.
Kevin E. Rayhill, Esq.
JOSEPH SAVERI LAW FIRM, LLP
601 California Street, Suite 1000
San Francisco, CA 94108
Telephone: (415) 500-6800
E-mail: jsaveri@saverilawfirm.com
swilliams@saverilawfirm.com
czirpoli@saverilawfirm.com
krayhill@saverilawfirm.com
- and -
Benjamin J. Widlanski, Esq.
Javier A. Lopez, Esq.
KOZYAK TROPIN & THROCKMORTON LLP
2525 Ponce de Leon Blvd., 9th Floor
Coral Gables, FL 33134
Telephone: (305) 372-1800
E-mail: bwidlanski@kttlaw.com
jal@kttlaw.com
- and -
Jennifer W. Sprengel, Esq.
Daniel O. Herrera, Esq.
Alexander Sweatman, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
135 S. LaSalle, Suite 3210
Chicago, IL 60603
Telephone: (312) 782-4880
Facsimile: (312) 782-4485
E-mail: jsprengel@caffertyclobes.com
dherrera@caffertyclobes.com
asweatman@caffertyclobes.com
REGULATORY DATACORP: Carr's Bid to Seal Class Cert Docs Granted
---------------------------------------------------------------
In the class action lawsuit captioned as JEFFERY N. CARR, SR., on
behalf of himself and all others similarly situated, v. REGULATORY
DATACORP, INC., and BUREAU VAN DIJK ELECTRONIC PUBLISHING, INC.,
Case No. 2:22-cv-02139-MRP (ED. Pa.), the Hon. Judge Mia R. Perez
entered an order granting the Plaintiff's motion to seal documents
in support of the Plaintiff's motion for class certification.
Regulatory provides comprehensive risk and compliance protection
services.
A copy of the Court's order dated July 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3KoGIkR at no extra charge.[CC]
ROHM CO: Settles Class Suit Over Capacitors' Price Fixing Scheme
-----------------------------------------------------------------
EP&T Magazine reports that four proposed national settlements
totaling CAD $21.94 million for the benefit of class members have
been reached in class actions alleging price fixing and related
conduct on behalf of Canadians who purchased electrolytic and film
capacitors and products containing electrolytic and film
capacitors.
ROHM, Fujitsu, KEMET and Nichicon (together, the "Settling
Defendants") have separately agreed to pay CAD $450,000, CAD
$465,000, CAD $6,200,000 and CAD $14,150,000 respectively for the
benefit of Electrolytic Settlement Class Members. KEMET and
Nichicon have also agreed to pay CAD $325,000 and CAD $350,000
respectively for the benefit of Film Settlement Class Members.
An "electrolytic capacitor" and a "film capacitor" are two types of
electronic components used in an electrical circuit to store a
charge. They are found in electronics such as smartphones, gaming
consoles, home appliances and televisions, among other electronic
products.
To be a member of these class actions, one must have purchased an
aluminum and tantalum electrolytic capacitor or a product
containing an aluminum and tantalum electrolytic capacitor between
September 1, 1997 and December 31, 2014 or have purchased a film
capacitor or a product containing a film capacitor between January
1, 2002 and December 31, 2014.
Settlements are not admissions of liability, fault or wrongdoing
In addition, the Settling Defendants have agreed to provide
cooperation to the plaintiffs in pursuing their claims against the
non-settling defendants. The settlements are not admissions of
liability, fault, or wrongdoing, but are compromises of disputed
claims. The settlements must be approved by the courts before they
become effective.
Because the class actions are still ongoing and other settlements
may be reached, the ROHM, Fujitsu, KEMET and Nichicon settlement
amounts will not be distributed to class members at this time. A
process for the payment of claims to class members, which is
subject to court approval and will be on further notice to the
class, will be put in place later.
For more detailed information, and to view the courts' orders, the
settlement agreements, the court-approved notices and an
explanation of the rights of settlement class members, please visit
www.capacitorclassaction.ca. [GN]
ROOSEVELT UNIVERSITY: Narasimhan Balks at Unprotected Personal Info
-------------------------------------------------------------------
KEERTHI NARASIMHAN, individually and on behalf of all others
similarly situated, Plaintiff v. ROOSEVELT UNIVERSITY, Defendant,
Case No. 1:23-cv-04680 (N.D. Ill., July 19, 2023) is a class action
brought by the Plaintiff seeking to redress Defendant's unlawful,
willful and wanton failure to protect the personal identifiable
information of approximately 47,877 individuals that was exposed in
a major data breach of Defendant's network in violation of its
legal obligations.
According to the complaint, Plaintiff and the Class Members have
had their personal identifiable information exposed as a result of
Roosevelt University's inadequately secured computer network. The
Defendant allegedly betrayed the trust of Plaintiff and the other
Class Members by failing to properly safeguard and protect their
personal identifiable information and thereby enabling
cybercriminals to steal such valuable and sensitive information.
Due to Defendant's negligence, cybercriminals obtained sensitive
information that could be used to commit identity theft and wreak
havoc on the financial and personal lives of tens of thousands of
individuals, says the suit.
Roosevelt University is a private university with its principal
campus in Chicago, Illinois.[BN]
The Plaintiff is represented by:
Mason A. Barney, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Telephone: (212) 532-1091
E-mail: mbarney@sirillp.com
- and -
A. Brooke Murphy, Esq.
MURPHY LAW FIRM
4116 Will Rogers Pkwy, Suite 700
Oklahoma City, OK 73108
Telephone: (405) 389-4989
E-mail: abm@murphylegalfirm.com
SCHUTZ CONTAINER: Faces Welch Wage-and-Hour Suit in D.N.J.
----------------------------------------------------------
VICTORIA WELCH, individually and on behalf of all others similarly
situated, Plaintiff v. SCHUTZ CONTAINER SYSTEMS, INC., Defendant,
Case No. 2:23-cv-03970 (D.N.J., July 25, 2023) is a class action
against the Defendant for violations of the Fair Labor Standards
Act of 1938 and the North Carolina Wage and Hour Act including
failure to pay overtime wages, failure to timely pay wages during
employment, and withholding of wages.
Ms. Welch worked as a pallet welder at one of the Schutz Facilities
located at 138 Walser Road, Lexington, North Carolina from
approximately January 2021 until April 15, 2022.
Schutz Container Systems, Inc. is a manufacturer of carbon fiber,
drums, and containers, headquartered in New Jersey. [BN]
The Plaintiff is represented by:
Ravi Sattiraju, Esq.
SATTIRAJU & THARNEY, LLP
50 Millstone Road, Building 300, Suite 202
East Windsor, NJ 08520
Telephone: (609) 469-2110
Facsimile: (609) 228-5649
E-mail: rsattiraju@s-tlawfirm.com
- and -
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and -
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
E-mail: dbryant@bryantlegalllc.com
SEA LIMITED: Faces Muraweh Class Suit Over 17.74% Share Price Drop
------------------------------------------------------------------
Yahya Muraweh, individually and on behalf of all others similarly
situated v. Sea Limited, Forrest Xiaodong Li, and Tony Tianyu Hou,
Case No. 2:23-cv-01455-DLR (D. Ariz., July 21, 2023) is a federal
securities class action on behalf of a class consisting of all
persons and entities other than Defendants that purchased or
otherwise acquired Sea securities between April 23, 2022, and May
15, 2023, both dates inclusive, seeking to recover damages caused
by the Defendants' violations of the federal securities laws and to
pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934.
The Plaintiff contends that the Defendants made false and/or
misleading statements and/or failed to disclose that: Sea
overstated its ability to manage the growth of its user base and
loan book while enhancing its profitability; Sea's expansion to a
broader user base and growing loan book rendered the Company
significantly more vulnerable to higher credit losses; as a result,
the Company was likely to book a significant increase in loan loss
reserves; the foregoing was likely to have a significant negative
impact on Sea's earnings; and as a result, the Company's public
statements were materially false and misleading.
On May 16, 2023, Sea issued a press release announcing its
financial results for the first quarter of 2023. Sea reported
first-quarter earnings that fell significantly short of
expectations due to a sharp increase in loan loss reserves. The
Company advised that "our provision for credit losses increased by
120.5% to US$177.4 million in the first quarter of 2023 from
US$80.5 million in the first quarter of 2022, primarily driven by
expansion to a broader user base and the growth of our loan book"
(emphasis added). Sea also disclosed that the Company's previous
Chief Investment Officer, David Ma, had left that role and joined
the Company's Board of Directors.
On this news, Sea's American Depositary Share ("ADS") price fell
$15.62 per ADS, or 17.74%, to close at $72.45 per ADS on May 16,
2023, the suit alleges.
The Plaintiff acquired Sea securities at artificially inflated
prices during the Class Period and was damaged upon the revelation
of the alleged corrective disclosures. The Plaintiff resides in
Maricopa County, Arizona.
Sea, together with its subsidiaries, provides digital
entertainment, e-commerce, and digital financial services in Asia,
Latin America, and internationally.[BN]
The Plaintiff is represented by:
Gary A. Gotto, Esq.
KELLER ROHRBACK LLP
3101 North Central Avenue, Suite 1400
Phoenix, AZ 85012
E-mail: ggotto@kellerrohrback.com
Telephone: (602) 230-6322
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
SENIOR EXCHANGE: Court OK's Case Management Plan in Jimenez Suit
----------------------------------------------------------------
In the class action lawsuit captioned as VANESSA JIMENEZ,
Individually, and on Behalf of All Others Similarly Situated, v.
SENIOR EXCHANGE INC., Case No. 1:23-cv-00323-ALC-JW (S.D.N.Y.), the
Hon. Judge Jennifer E. Willis entered an order approving proposed
case management plan:
The action is a website accessibility case under Title III of the
Americans with Disabilities Act, The Rehabilitation Act of 1973 and
state and local laws.
The Defendant owns and operates the website https://www.Senior.com/
and advertises, markets, distributes, and/or sells its services in
New York State. The Defendant's website is, however, not designed
to be read by screen-reading software. Because of this, the
Plaintiff encountered multiple barriers that denied the Plaintiff
access to the website equal to the access sighted individuals
enjoy.
The parties jointly propose to the Court the following discovery
plan:
-- All fact discovery must be Dec. 15, 2023
completed by:
-- Depositions shall be Nov. 18, 2023
completed by:
-- Initial sets of interrogatories Sept. 1, 2023
shall be served on or before:
-- Requests for admission must be Sept. 1, 2023
Served on or before:
-- Initial requests for production Sept. 1, 2023
were/will be exchanged on:
-- Last date to amend the Complaint: Aug. 18, 2023.
The Defendant is a California-based company that offers a range of
products for sale, targeting a largely older demographic of
consumers as well as those who suffer from certain disabilities.
A copy of the Court's order dated July 19, 2023, is available from
PacerMonitor.com at https://bit.ly/3rTC8ov at no extra charge.[CC]
SIEMENS INDUSTRY: Enomoto Suit Removed to N.D. California
---------------------------------------------------------
The case captioned as Chanielle Enomoto and Brandon Johnson,
individually and on behalf of all others similarly situated v.
SIEMENS INDUSTRY, INC., Case No. 23CV036600 was removed from the
Superior Court of the State of California for the County of
Alameda, to the United States District Court for the Northern
District of California on July 28, 2023, and assigned Case No.
4:23-cv-03779-DMR.
The Complaint is a putative class action alleging the following
causes of action: failure to pay minimum wages; failure to pay
overtime wages; failure to provide meal periods; failure to provide
rest periods; failure to maintain payroll records; failure to
provide accurate, itemized wage statements; failure to reimburse
business expenses; failure to pay wages and commissions at
separation; failure to provide written commissions agreement;
unlawful deduction of wages; and unfair business practices.[BN]
The Defendants are represented by:
September Rea, Esq.
Armida Derzakarian, Esq.
POLSINELLI LLP
2049 Century Park East, Suite 2900
Los Angeles, CA 90067
Phone: (310) 556-1801
Facsimile: (310) 556-1802
Email: srea@polsinelli.com
aderzakarian@polsinelli.com
STELLENBOSCH UNIVERSITY: Fraud Scheme Class Action Can Proceed
--------------------------------------------------------------
Ernest Mabuza, writing for TimesLIVE, reports that the path has
been cleared for the Stellenbosch University Law Clinic to finally
launch a class action case against the Lifestyle Direct Group's
bogus loan-application operation.
This follows the dismissal by the Constitutional Court of an
application for leave to appeal in the high-profile case relating
to the alleged defrauding of thousands of consumers by the
Lifestyle Direct Group International from 2015 to 2019
The class action will be the first of its kind to be brought by a
South African university law clinic.
The clinic applied for the certification of a class action against
the websites and their owners who allegedly duped consumers into
believing they were applying for a loan when in fact they were
locked into a subscription for "legal services".
The Western Cape High Court certified the class action -- only the
10th class action in the country to be successfully certified -- in
2021. After the certification, those responsible for the alleged
fraudulent scheme lodged three unsuccessful attempts at appealing
the certification order. A final appeal attempt was submitted to
the Constitutional Court at the end of last year.
"We are delighted that the final attempt at frustrating the
institution of the class action on behalf of thousands of deceived
consumers has failed and that we may now launch the class action
trial proceedings. More information about the class action will
follow in due course," said Dr Stephan van der Merwe, senior
supervising attorney at the law clinic and a lecturer at the
university.
The high court class certification gave the law clinic permission
to go ahead with its bid to "undo" certain agreements which
Lifestyle -- under companies named Loan Locator, Loan Tracker, Loan
Quest and several others -- allegedly concluded with thousands of
consumers.
It also gave the clinic permission to go ahead with its bid to
reverse the debit orders the companies actioned on their victims'
bank accounts, and compensate them for the losses allegedly
incurred "as a consequence of a fraudulent scheme".
The university said its law clinic is involved in many aspects of
the legal profession, including the provision of legal services.
The clinic has provided direct legal services to more than 6,300
people -- many of whom would otherwise have been unable to access
or afford legal advice -- in the past five years.
The clinic's managing attorney, Prof Theo Broodryk, said because
many South Africans were unable to afford legal services, the
clinic's contribution to improving legal access was significant.
According to the clinic's social impact report 2018-22, 41% of
those who consulted at the clinic qualified for legal aid, with
many -- 35% -- seeking help for family-related matters. Just more
than a third of all consultations were related to eviction issues.
The clinic said teaching was its core focus and final-year law
students were encouraged to develop important skills in a clinical
setting by providing legal services to Stellenbosch's indigent
community.
The institution said the law clinic has engaged in several
high-impact litigation cases in recent years. One matter that
garnered public interest was the clinic's written submission in
2018 to the National Treasury to have feminine hygiene products
listed as zero-VAT items.
The so-called tampon tax was scrapped after various representations
made, including those of the clinic, a year later, bringing SA in
line with countries such as Kenya, Canada, Germany and Australia.
[GN]
SUBARU OF AMERICA: Class Certification Bids Due August 13, 2024
---------------------------------------------------------------
In the class action lawsuit captioned as DANNY WESTON, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED et al., v. SUBARU OF
AMERICA, INC. et al., Case No. 1:20-cv-05876-CPO-SAK (D.N.J.), the
Hon. Judge Sharon A. king entered an amended scheduling order as
follows:
1. Pretrial factual discovery is extended to: Dec. 22,
2023
2. Expert Discovery: Jan. 22,
2024
3. Deposition of proposed class July 12,
2024
certification:
4. Class certification motions: Aug. 13,
2024
Subaru of America is the exclusive United States marketer of Subaru
products manufactured by Fuji Heavy Industries Ltd.
A copy of the Court's order dated July 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3rRA7ci at no extra charge.[CC]
SYNGENTA CROP: Ott Sues Over Overpriced Crop Protection Products
----------------------------------------------------------------
ROBERT OTT and ANDREW STANLEY, on behalf of themselves and all
others similarly situated, Plaintiffs v. SYNGENTA CROP PROTECTION
AG, SYNGENTA CORPORATION, SYNGENTA CROP PROTECTION, LLC, and
CORTEVA, INC., Defendants, Case No. 1:23-at-00614 (E.D. Cal., July
20, 2023) arises out of an anticompetitive scheme by Defendants,
two manufacturing giants in the crop protection product industry,
to illegally block rivals from the market and insulate themselves
from competition in violation of the Sherman Act, the Clayton Act,
the state antitrust laws, and state consumer protection laws.
According to the complaint, the Defendants have entered into
exclusionary "loyalty agreements" with substantially all of their
major customers that deter those customers from purchasing products
from manufacturers other than Defendants. The effect of those
exclusionary agreements has been to lock rival manufacturers out of
the market and force farmers like Plaintiffs to pay artificially
inflated prices for the certain crop protection products that are
essential to their business.
Since they profit from participating in Defendants' loyalty
programs and face significant financial consequences if they do
not, these distributors readily exclude generic products from their
distribution lists. As a result, generic competitors are almost
entirely foreclosed from efficiently distributing their products.
Prices remain high and farmers pay millions of dollars more than
they otherwise would have for crop protection products containing
Defendants' ingredients, says the suit.
The Plaintiffs request declaratory and equitable relief and seek to
recover overcharges and treble damages for injuries sustained by
Plaintiffs and the Class resulting from Defendants' anticompetitive
agreements and unlawful foreclosure of competition in the relevant
markets that maintained and enhanced Defendants' dominant position
and monopoly power.
Plaintiff Robert Ott is a farmer who owns a farm in California.
During the Class Period, Ott purchased one or more Syngenta and/or
Corteva crop protection products.
Syngenta Crop Protection AG is a provider of agricultural science
and technology, in particular seeds and pesticides with its
management headquarters in Basel, Switzerland.[BN]
The Plaintiffs are represented by:
Christopher T. Micheletti, Esq.
Qianwei Fu, Esq.
ZELLE LLP
555 12th Street, Suite 1230
Oakland, CA 94607
Telephone: (415) 693-0700
Facsimile: (415) 693-0770
E-mail: cmicheletti@zellelaw.com
qfu@zellelaw.com
SYRACUSE UNIVERSITY: Settles Class Action Over 2020 Data Breach
---------------------------------------------------------------
Emily Garcia, writing for Bloomberg Law, reports that Syracuse
University settled a proposed class action brought by a student
after his personal information was stolen in a 2020 data breach and
his bank account was hacked.
Trevor Miller alleged in his complaint that between Sept. 24 and
Sept. 28, 2020, a hacker was able to obtain sensitive personal
information for 9,800 students and prospective students. Although
Syracuse discovered the breach on Sept. 28, it didn't notify
students until February 2021, when it sent them a letter offering a
free year of credit monitoring, Miller said. [GN]
TIGER GLOBAL: Faces O'Keefe Class Action Suit Over FTX Fraud
------------------------------------------------------------
CONNOR O'KEEFE, on behalf of himself and all others similarly
situated v. TIGER GLOBAL MANAGEMENT, LLC, Case No. 1:23-cv-06336
(S.D.N.Y., July 21, 2023) alleges that there was an express or
implied agreement between agents of FTX and the Defendant to
deceive Class Members and to commit wrongful conduct, resulting to
FTX's fraud, breach of fiduciary duty to Class Members, and
conversion of Class Members property.
The Plaintiff contends that the Defendants conspired with FTX to
perpetuate the fraud, and each committed critical overt acts in
furtherance of it:
-- the Defendant Banks provided a suite of non-routine, high
risk banking services to FTX, when traditional financial
institutions would not, including accepting and/or
transferring Class Members (defined herein) funds into
accounts that the Defendant Banks knew were held by entities
that Sam Bankman-Fried (SBF), the former CEO of FTX,
separately owned; developing
proprietary blockchain software and other infrastructure
necessary to SBF's looting
of Class Members funds; and helping to fence Class Member
funds across the U.S. border.
-- the Defendant VCs wielded their power, influence, and deep
pockets to launch FTX's house of cards to its multi-billion
dollar scale
-- the Defendant Fenwick & West set up a network of shadowy
front organizations, which SBF used to conceal his siphoning
of Class Member funds into entities that he separately owned.
-- the Defendant Accounting Firms performed sham audits of FTX's
primary entities, certifying that FTX's financials were sound
and sufficient controls in place, despite knowing full well
that neither was true.
SBF could not have perpetuated the fraud without this assistance
from the Defendant. The Plaintiff, on behalf of himself and all
others similarly situated, seeks damages for Defendant's knowing
and substantial assistance in furtherance of SBF's fraud, the
lawsuit says.
The Defendant agreed, at least impliedly, with SBF and/or one or
more of his co-conspirators to commit the overt acts, including
(1) propping up SBF's fraud—and expanding its reach—by
injecting more than $2 billion of necessary capital into
the scheme;
(2) generating for FTX the appearance of legitimate operations,
strong financial condition, and other credibility, which
permitted the scheme to grow in scale and persist in
duration;
(3) advising FTX on ways to continue its growth, thereby
attracting new victims and thrusting the scheme forward;
and
(4) concealing the fraud when the cryptocurrency industry began
to falter, with the purpose of keeping the fraud afloat
until the Defendant could cash out in a public or private
sale or once the crypto market recovered.
On November 18, 2021, the Plaintiff deposited funds by direct
transfer of US dollars from his bank account to an account he
understood to be held by FTX. FTX promised that his assets would be
secure and would return yields of 5-8%. Later, the Plaintiff
transferred cryptocurrencies into his FTX account from an account
he held at Coinbase Global, another cryptocurrency exchange.
Because of the overt acts taken by the Defendant, the Plaintiff was
misled to believe that the assets placed in his FTX account were
safe, that FTX was a legitimate operation, and that its founder,
SBF, was a trustworthy entrepreneur, the suit alleges.
The Plaintiff never fully liquidated the funds in his FTX account.
The Plaintiff's funds are now allegedly frozen in his FTX account,
and he has been unable to withdraw those funds since the FTX fraud
collapsed.
Plaintiff O'Keefe held funds in both U.S. dollars and
cryptocurrencies in a yield-bearing account and/or other account on
the FTX platform.
Tiger Global is an investment firm focused on public and private
companies focused on the global Internet, software, consumer, and
financial technology industries.[BN]
The Plaintiff is represented by:
Danielle Teutonico, Esq.
James R. Swanson, Esq.
Kerry J. Miller, Esq.
Benjamin D. Reichard, Esq.
C. Hogan Paschal, Esq.
Monica Bergeron, Esq.
FISHMAN HAYGOOD L.L.P.
201 St. Charles Avenue, 46th Floor
New Orleans, LA 70170-4600
Telephone: (504) 586-5252
Facsimile: (504) 586-5250
E-mail: dteutonico@fishmanhaygood.com
jswanson@fishmanhaygood.com
kmiller@fishmanhaygood.com
breichard@fishmanhaygood.com
hpaschal@fishmanhaygood.com
mbergeron@fishmanhaygood.com
TOOLEY OIL: Seeks to File Docs in Antitrust Suit Under Seal
------------------------------------------------------------
In the class action lawsuit re California Gasoline Spot Market
Antitrust Litigation, Case No. 3:20-cv-03131-JSC (N.D. Cal.),
Tooley Oil Company move the Court, pursuant to the order modifying
sealing procedures for class certification briefing and civil local
Rule 79-5, for an administrative order to file under seal
materials, specifically sealing confidential class certification
material already provisionally filed under seal under Local Rule
79-5, which it has designated as confidential.
Tooley seeks to seal only those materials previously designated as
confidential under the Stipulated Protective Order, which are
included within Exhibits A-E to the concurrently filed Declaration
of Garrett M. Fahy in Support of the motion. The redacted contents
of Exhibits A-E, identified in the below table, contain Tooley's
private and proprietary information concerning the sourcing of its
products, its market allies and operations, the pricing and
marketing strategies for its products and services, and its
understandings of the risks of its industry and its position
relative to its competitors, all of which are closely held aspects
of Tooley's business operations.
A copy of the Defendant's motion dated July 19, 2023 is available
from PacerMonitor.com at https://bit.ly/44Q5Zgb at no extra
charge.[CC]
TORRANCE REFINING: White Suit Remanded to LA County Superior Court
------------------------------------------------------------------
Judge George H. Wu of the U.S. District Court for the Central
District of California remands the case, Jacqueline White v.
Torrance Refining Co. LLC, Case No. CV 23-3216-GW-PVCx (C.D. Cal.),
to the Superior Court of the State of California for the County of
Los Angeles.
The Court held a hearing on a Motion to Remand Action to State
Court on July 3, 2023 and in advance of that hearing issued a
tentative ruling. With the following additional comments about the
attorneys' fee arguments defendant Torrance Refining Co., LLC
("Defendant") offered at that hearing, Judge Wu now confirms his
tentative ruling as his final ruling.
Judge Wu has two principal problems with the Defendant's attorneys'
fee arguments that prevent it from adopting its position on that
topic.
First, the Defendant's argument for a large fee figure attributable
to the claims of White alone is effectively dependent on treating
the action as if it were not a putative class action. But it is a
putative class action. Judge Wu is unaware of binding authority
that allows a removing defendant to treat a putative class action
as if it were not a putative class action simply to argue for an
increased amount of attorney' fees under-consideration for purposes
of amount-in-controversy calculations as to the claims of the named
plaintiff alone.
Second, it is hard to understand the Defendant's argument as
anything other than a contention that anytime an employment case,
or even a case involving the wage-and-hour subset of that
litigation-type, is filed in, or removed to, federal court, so long
as the parties are of diverse citizenship, diversity jurisdiction
will exist because the action will always present a likelihood of
more than $75,000 at stake just in terms of attorneys' fees alone.
Until the Ninth Circuit or the Supreme Court instruct this Court
that this is an appropriate assumption for a court to make, or a
rule for a court to apply, Judge Wu will not be the one to adopt
that approach.
To be clear, the Court understands it must consider future
attorneys' fees in making amount-in-controversy determinations. But
Judge Wu finds use of a 25% figure (or something close thereto) to
be a much more appropriate method than to simply assume upwards of
$75,000 in attorneys' fees in every employment-related lawsuit.
Concluding that the lawsuit will produce that figure in fees just
because another case did so -- whether or not that other case
involved the same plaintiff's counsel -- makes too many
assumptions, at too early a stage of a case, about similarities
between cases that otherwise may have nothing but counsel in
common.
For the reasons set forth in the Court's prior tentative ruling,
Judge Wu remands the action to the Superior Court of the State of
California for the County of Los Angeles.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/4jhfaypf from Leagle.com.
TRANSPARENT BUSINESS: Greenberg Sues Over Unsolicited Sales Calls
-----------------------------------------------------------------
CHARLES GREENBERG, individually and on behalf of all others
similarly situated, Plaintiff v. TRANSPARENT BUSINESS CORPORATION,
INC., Defendant, Case No. CACE-23-015881 (Fla. Cir., 17th Judicial,
Broward Cty., July 19, 2023) is a class action brought by the
Plaintiff under the Florida Telephone Solicitation Act.
According to the complaint, the Defendant engages in telephonic
sales calls to Plaintiff and other consumers to promote its goods
and service without having secured prior express written consent as
required by the FTSA. The Defendant's alleged telephonic sales
calls have caused Plaintiff and the Class members harm, including
violations of their statutory rights, statutory damages, annoyance,
nuisance, and invasion of their privacy.
Through this action, Plaintiff seeks an injunction and statutory
damages on behalf of himself and the Class members, and any other
available legal or equitable remedies resulting from the unlawful
actions of Defendant, says the suit.
Transparent Business Corporation is an online cloud service company
that offers remote workplace products.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
Christopher E. Berman, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
cberman@shamisgentile.com
- and -
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (786) 623-0915
E-mail: scott@edelsberglaw.com
chris@edelsberglaw.com
TRIAD PIZZA: Class Settlement in Lester Suit Gets Initial OK
-------------------------------------------------------------
In the class action lawsuit captioned as SCOTT LESTER, JR.,
individually and on behalf of similarly situated persons, v. TRIAD
PIZZA LLC, BD PIZZA CO. LLC, PIEDMONT PARTNERS LLC, PIEDMONT PIZZA
INC., PIZZA PIEDMONT LLC, and BRADLEY C. DAVIS, Case No.
1:22-cv-00616-TDS-JEP (M.D.N.C.), the Hon. Judge Thomas D.
Schroeder entered an order on preliminary approval of settlement as
follows:
1. The court has jurisdiction over the subject matter of
this action pursuant to 28 U.S.C. section 1331, 29 U.S.C.
section 216(b), and 28 U.S.C. section 1367.
2. The court preliminarily finds that this action satisfies
the applicable prerequisites for class action treatment under
Federal Rule of Civil Procedure 23, Pursuant to Federal Rule
of
Civil Procedure 23(b)(3), this action is preliminarily
certified, for settlement purposes only, as a class action on
behalf of the following class of the Plaintiffs with respect
to
the claims asserted in this lawsuit:
"All persons who worked as delivery drivers for Triad Pizza,
LLC, BD Pizza Co. LLC, Piedmont Partners LLC, Piedmont Pizza
Inc., or Pizza Piedmont LLC at Domino's Pizza stores at any
time
during the Release Period [of November 29, 2019, through July
18, 2023].
3. Pursuant to Federal Rule of Civil Procedure 23, the court
appoints the Plaintiff Scott Lester as Class Representative.
4. Pursuant to Federal Rule of Civil Procedure 23(g), the
court appoints Katherine Serrano and Forester Haynie PLLC, as
well as Jacob J. Modla and Cromer Babb Porter & Hicks, LLC,
as
Class Counsel.
5. The court approves as Claims Administrator CAC Services
Group,
LLC, 6420 Flying Cloud Drive, Suite 101, Eden Prairie, MN
55344.
This action is a putative collective action pursuant to the Fair
Labor Standards Act, and a putative class action under the North
Carolina Wage and Hour Act. The Plaintiff contends that the
Defendants "used a flawed method" to reimburse pizza delivery
drivers for expenses related to the drivers' vehicles, which
resulted in "unreasonably low rates."
A copy of the Court's order dated July 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3rSPotu at no extra charge.[CC]
TRIUMPH CSR: Moore Sues Over Pre-Recorded Telemarketing Calls
-------------------------------------------------------------
INNAZIA MOORE, individually and on behalf of all others similarly
situated, Plaintiff v. TRIUMPH CSR ACQUISITION, LLC, a Colorado
registered company, Defendant, Case No. 1:23-cv-04659 (N.D. Ill.,
July 19, 2023) seeks to stop the Defendant from violating the
Telephone Consumer Protection Act by making pre-recorded
telemarketing calls to Plaintiff and other consumers without
consent, in addition to placing calls to consumers after they have
communicated stop to the Defendant's employees.
The complaint alleges that Defendant Auguste Escoffier places
pre-recorded solicitation calls to consumers to solicit them to
attend one of Defendant's courses which range from $21,751 to
$33,035. According to a job posting on Indeed, Defendant Auguste
Escoffier admissions representatives engage in cold calling to
generate business for the school. In addition to placing
unsolicited pre-recorded calls to consumers, Auguste Escoffier is
also negligent when it comes to removing phone numbers from its
calling system, despite opt-out requests from consumers, as per
Plaintiff Moore's experience, says the suit.
In response to these calls, Plaintiff Moore brings forward this
case seeking injunctive relief requiring the Defendant to cease
from violating the TCPA, as well as an award of statutory damages
to the members of the Classes and costs.
Triumph CSR Acquisition, LLC, d/b/a Auguste Escoffier School of
Culinary Arts, provides professional culinary arts programs to
students across the U.S. through physical schools located in
Colorado and Texas, as well as through online courses.[BN]
The Plaintiff is represented by:
Juneitha Shambee Esq.
SHAMBEE LAW OFFICE, LTD.
701 Main St., Ste. 201A
Evanston, IL 60202
Telephone: (773) 741-3602
E-mail: juneitha@shambeelaw.com
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
237 S Dixie Hwy, Floor 4
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
UNITED AIRLINES: Hughes Allowed Leave to Amend Complaint
--------------------------------------------------------
In the class action lawsuit captioned as DARRELL HUGHES,
individually and on behalf of all others similarly situated, v.
UNITED AIRLINES, INC. and Does 1 through 20, inclusive, Case No.
3:22-cv-08967-LB (N.D. Cal.), the Hon. Judge Laurel Beeler entered
an order granting leave to amend complaint.
The Court said, "Second, the remaining issue is whether under Rule
15(a)(2), United is prejudiced by adding Ms. Goings (resulting in a
prayer for injunctive relief on the breaks claims), and whether
under Rule 15(c), the amendment relates back to the date of the
original pleading. At the hearing, United essentially conceded that
-- if section 512.2(c) did not exist and if the plaintiff satisfied
the other Rule 15(a)(2) amendment factors and the Rule 15(c)
relation-back factors -- it would not be prejudiced under Rule
15(a)(2) or unfairly prejudiced under Rule 15(c)."
In October 2022, plaintiff Darrell Hughes -- who was a flight
attendant with United Airlines from November 2015 to August 2, 2022
-- sued United on behalf of a putative class of current and former
flight attendants and pilots for various wage-and-hours
violations.
United Airlines operates domestic and international route network
spanning cities large and small across the United States and all
six inhabited continents.
A copy of the Court's order dated July 17, 2023 is available from
PacerMonitor.com at https://bit.ly/3KltBkq at no extra charge.[CC]
UNITED STATES: Faces Class Action Over Handling of Asylum Seekers
-----------------------------------------------------------------
Sarah Alegre, writing for FOX5, reports that immigration rights
groups have filed a lawsuit against the Biden Administration on its
current policy handling asylum seekers at the border.
The group argues that not all migrants have access to smart phones,
which could prevent them from getting an appointment with border
officials.
The lawsuit comes shortly after a federal judge blocked the Biden
Administration's asylum policy to lower border crossings.
Ever since the expiration of Title 42 in May, the CBP One Mobile
App is raising concern amongst migrant advocates like Pedro Rios.
"Greater opportunities need to be available for someone to be able
to show up at a port and say, 'I fear for my life, how can I get an
asylum claim started?'" explained Rios who works as the Director of
the American Transervice Committe of San Diego. "Congress said the
people that are fleeing harm should be able to seek asylum in a way
that does not present any obstructions for them to do so, and this
CBP One app does exactly that."
Because of this claim, a new class action lawsuit is now out
against the Biden Administration's policy requiring people to
schedule an appointment to enter U.S. soil through the app.
Ori Lev is a partner at the firm representing the several
nonprofits including The Center for Gender and Refugee Studies who
filed the suit in a federal court, calling the policy "cruel".
"Ostensibly, they say it's not required in order to be able to
access the asylum process but as a factual matter they are turning
people away at ports of entry to seek asylum," Lev said. "Sometimes
they're choosing between…cellular service, or…trying to find
data and trying to get an appointment, or…. trying to pay for
food and a night's lodging or medical care."
The policy, however, claims to allow people to explain why they
can't use the app in person, but Lev says it isn't enough.
"If you don't have an appointment, you're not going to be heard,
and I think all of these people should have an opportunity to be
heard and have their claims adjudicated," Lev said.
DHS disputes these claims. They say 99% of migrants who try, are
securing appointments through the CBP One app. [GN]
UNITED STATES: Faces Masseur Suit Over Breast Milk Express Breaks
-----------------------------------------------------------------
CHRISTY G. MASSEUR, TAYLOR ALLEN, and MELISSA M. GEORGE, On behalf
of themselves and all others similarly situated v. THE UNITED
STATES POSTAL SERVICE (USPS), ET AL., Case No. 1:23-cv-02129
(D.D.C., July 21, 2023) alleges that the Defendants refuse to
provide reasonable breaks to express breast milk to Plaintiffs and
those similarly situated in violation of the the Fair Labor
Standards Act of 1938 as amended by the Providing Urgent Maternal
Protections for Nursing Mothers Act.
According to the complaint, the Defendants' failure to comply with
the PUMP Act has had a significant impact on Ms. Masseur, Ms.
Allen, Ms. George and other breastfeeding employees. Instead of
supporting breastfeeding mothers, the Defendants' practices forced
those mothers into a Hobson's choice between using demeaning,
unsanitary spaces to express milk, abandoning pumping at work
altogether, or quitting their jobs, the lawsuit contends.
The Plaintiffs assert two causes of action against the Defendants'
nationwide policy of failing to provide sufficient break time and a
functional place, shielded from view and free from intrusion, which
may be used by an employee to express breast milk. The Plaintiffs
seek injunctive and declaratory relief, compensatory and punitive
damages, reasonable attorneys' fees, litigation costs, and pre-and
post-judgment interest.
The Plaintiffs bring this claim on behalf of themselves and
similarly situated former and current hourly employees of the
Defendants who were expressing breastmilk at any time from December
29, 2022, to the resolution of this action and who, upon request,
were denied reasonable break times to express milk or denied a
private, functional space to express breast milk and who elect to
opt-in to this action.
The members of the FLSA Collective are victims of the Defendants'
alleged practice of refusing to provide sufficient break times or
"a place, other than a bathroom, that is shielded from view and
free from intrusion from coworkers and the public, which may be
used by an employee to express breast milk," as required by 29
U.S.C. Section 218d.
Ms. Masseur is a current employee of USPS who works as a Mail
Processing Clerk in Mobile, Alabama. She gave birth to her fifth
child in July 2022. When she returned to work in the Fall of 2022,
she requested a private space to pump milk, but USPS failed to
provide one for her.
Ms. Allen is a current employee of USPS who works as a City Mail
Carrier in Pine Bluff and White Hall, Arkansas. She gave birth to a
child in 2020 and then gave birth to a second child in September
2022. When she returned to work in 2022, she asked her supervisor
for a private space to pump milk, but the supervisor failed to
provide an adequate space for Ms. Allen to express milk.
USPS is an independent agency of the executive branch of the United
States federal government responsible for providing postal service
in the U.S.
The Defendants also include THE UNITED STATES POSTAL SERVICE; THE
UNITED STATES POSTAL SERVICE BOARD OF GOVERNORS; LOUIS DEJOY in his
official capacity as Postmaster General of the United States and
member of the United States Postal Service Board of Governors;
DOUGLAS TULINO in his official capacity as Deputy Postmaster
General of the United States and member of the United States Postal
Service Board of Governors; ROBERT M. DUNCAN in his official
capacity as a member of the United States Postal Service Board of
Governors; ROMAN MARTINEZ in his official capacity as Chairman and
member of the United States Postal Service Board of Governors;
DONALD L. MOAK in his official capacity as a member of the United
States Postal Service Board of Governors; WILLIAM D. ZOLLARS in his
official capacity as a member of the United States Postal Service
Board of Governors; ANTON G. HAJJAR In his official capacity as
Vice Chairman and member of the United States Postal Service Board
of Governors; AMBER F. MCREYNOLDS in her official capacity as a
member of the United States Postal Service Board of Governors;
RONALD A. STROMAN in his official capacity as a member of the
United States Postal Service Board of Governors; DANIEL TANGHERLINI
in his official capacity as a member of the United States Postal
Service Board of Governors; and DEREK KAN in his official capacity
as a member of the United States Postal Service Board of
Governors.[BN]
The Plaintiffs are represented by:
Aaron Siri, Esq.
Mason A. Barney, Esq.
Oren Faircloth, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Telephone: (212) 532-1091
E-mail: mbarney@sirillp.com
ofaircloth@sirillp.com
UNIVERSAL PRESSURE: Rodriguez Seeks Hitch Workers' Unpaid Overtime
------------------------------------------------------------------
JOSEPH RODRIGUEZ, on behalf of himself and all others similarly
situated, Plaintiff v. UNIVERSAL PRESSURE PUMPING, INC., Defendant,
Case No. 4:23-cv-02716 (S.D. Tex., July 25, 2023) is a class action
against the Defendant for failure to pay overtime wages and failure
to pay timely wages in violation of the Fair Labor Standards Act.
Mr. Rodriguez has been employed by the Defendant as a hitch worker
in a parts coordinator position in Midland, Texas since October
2022.
Universal Pressure Pumping, Inc. is a provider of fracking
services, equipment, and support, headquartered in Houston, Texas.
[BN]
The Plaintiff is represented by:
Matt Bachop, Esq.
DEATS, DURST & OWEN, PLLC
8140 N Mopac Expy., Suite 4-250
Austin, TX 78759
Telephone: (512) 474-6200
Facsimile: (512) 474-7896
E-mail: mbachop@ddollaw.com
- and -
Molly A. Elkin, Esq.
Patrick Miller-Bartley, Esq.
McGILLVARY STEELE ELKIN LLP
1101 Vermont Ave. NW, Suite 1000
Washington, DC 20005
Telephone: (202) 833-8855
Facsimile: (202) 452-1090
E-mail: mae@mselaborlaw.com
smb@mselaborlaw.com
VENICE HMA: Loses Bid to Dismiss White's First Amended Complaint
----------------------------------------------------------------
In the case, CALLIE WHITE, et al., Plaintiffs v. VENICE HMA, LLC,
and VENICE HMA HOLDINGS, LLC, Defendants, Case No.
8:22-cv-1989-CEH-AEP (M.D. Fla.), Judge Charlene Edwards Honeywell
of the U.S. District Court for the Middle District of Florida,
Tampa Division, denies the Defendants' motion to dismiss the
Plaintiffs' first amended complaint.
In this putative class action, the Plaintiffs allege that the
Defendants violated the Worker Adjustment and Retraining
Notification ("WARN") Act when they closed ShorePoint Venice
Hospital without the required advance notice. The Defendants now
request dismissal pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), because they contend that the Amended
Complaint does not adequately allege that the Plaintiffs have
suffered an "employment loss" as defined by the WARN Act.
On Aug. 29, 2022, the named Plaintiffs filed suit against Venice
HMA, LLC, d/b/a ShorePoint Health Venice, and Venice HMA Holdings,
LLC ("Defendants"), alleging that Defendants violated the WARN Act,
29 U.S.C. Section 2101-09. Each of the named Plaintiffs is a former
employee of ShorePoint Health Venice Hospital ("the hospital"),
with varying degrees of experience and seniority. The Defendants
have common ownership over the hospital.
On Aug. 22, 2022, the Defendants' CEO sent a mass email to
employees informing them that the hospital would be closing as of
Sept. 22, 2022. The CEO's email stated, "Retaining our valued team
members is our top priority during this transition. There are
sufficient job openings across ShorePoint Health for the majority
of our staff." The email went on to announce that the Defendants
would host job fairs in the coming days, at which hospital
employees could apply for positions at their other facilities.
When employees applied for such a position, their application
stated that requesting a transfer "does not guarantee you will be
interviewed for the opening." Some of the named Plaintiffs did not
receive any transfer offers. Other named Plaintiffs did receive
transfer offers, but the offered positions had less seniority, a
lower salary, and fewer benefits. No transfer offers were made
until after the named Plaintiffs and putative class members'
employment was terminated and the hospital closed.
In all, the Plaintiffs allege that the named Plaintiffs and
approximately 600 employees lost their jobs as a result of the
hospital closure. They further allege that they experienced an
"employment loss," as defined by the WARN Act, by the time the
hospital closed on Sept. 22, 2022. They allege that the Defendants
failed to provide adequate notice of the hospital's closure, in
violation of the WARN Act.
The Defendants now move to dismiss this action under Federal Rule
of Civil Procedure 12(b)(1), for lack of subject matter
jurisdiction, and 12(b)(6), for failure to state a claim upon which
relief may be granted. They argue that the Plaintiffs failed to
sufficiently allege that they experienced an "employment loss" as
required under the WARN Act. They first contend that any layoff has
not yet lasted six months, rendering the Plaintiffs' claim
premature. Moreover, the CEO's email clearly communicated an intent
to continue their employment rather than provide notice of an
employment loss, and any actual loss in employment has been
temporary. As a result of these pleading inadequacies, the
Defendants argue that the Plaintiffs lack standing and have failed
to state a claim.
The Plaintiffs oppose the motion to dismiss, maintaining that the
named Plaintiffs suffered an employment loss as defined by the WARN
Act. They argue that the hospital was permanently closed for more
than two months by the time of the Plaintiffs' response, which
constitutes a "plant closing" that does not necessitate a delay of
six months. Moreover, inviting employees to apply for new
employment is not the same as a transfer offer, particularly where
there was no guarantee of receiving an offer and Defendants did not
represent that all current employees would be able to remain. In
any event, the Plaintiffs contend that the WARN Act requires that
valid transfer offers be made prior to the closure, which did not
occur.
Judge Honeywell finds that the Amended Complaint contains adequate
allegations to plausibly allege that employees experienced an
employment loss within the meaning of the WARN Act. The Defendants'
arguments regarding standing and the failure to state a claim rest
exclusively on their contention that the Plaintiffs' allegations do
not establish that they experienced an employment loss. Because the
Court has found that the Plaintiffs' allegations regarding an
employment loss are sufficient, the Defendants' motion to dismiss
under both Rule 12(b)(1) and 12(b)(6) must be denied.
Accordingly, Judge Honeywell denies the Defendants' Motion to
Dismiss Plaintiffs' First Amended Complaint.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/fdued3pr from Leagle.com.
VI-JON LLC: Moreno Appeals Dismissal Order in Mislabeling Suit
--------------------------------------------------------------
Plaintiff ANTHONY MORENO filed an appeal from the District Court's
Order and Clerk's Judgment dated July 18, 2023 entered in the
lawsuit styled ANTHONY MORENO, individually and on behalf of others
similarly situated, Plaintiff v. VI-JON, LLC, Defendant, Case No.
3:20-cv-01446-JM-BGS, in the United States District Court for the
Southern District of California.
On July 27, 2020, the Plaintiff filed a consumer class action
complaint against Defendant, seeking damages and equitable relief
for the alleged false and misleading labeling on Defendant's hand
sanitizing products. The complaint alleged violations of the
California's Unfair Competition Law, the California's False
Advertising Law, and the California Consumer Legal Remedies Act;
breach of warranty; and quasi-contract.
On September 14, 2020, Plaintiff filed the First Amended Complaint.
The FAC asserted FAL, UCL, CLRA, breach of express warranty, and
quasi-contract claims against Defendant for misrepresenting and
misleading consumers regarding the hand sanitizing products. On
March 3, 2021, the court granted Defendant's motion to dismiss with
leave to amend.
On March 24, 2021, Plaintiff filed the Second Amended Complaint.
The SAC asserted FAL, UCL, CLRA, breach of express warranty, breach
of implied warranty, and quasi-contract claims against Defendant
for misrepresenting and misleading consumers regarding the hand
sanitizing products. On December 6, the Court granted Defendant's
motion to dismiss the SAC under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Since it was the second time leave to
amended had been given, the Clerk of Court was ordered to close the
case. The Plaintiff promptly appealed.
In a memorandum disposition, the U.S. Court of Appeals, Ninth
Circuit, reversed the order granting dismissal pursuant to Rule
12(b)(1) and vacated the District Court's 12(b)(6) ruling. The
Ninth Circuit directed that Plaintiff be granted leave to file a
Third Amended Complaint.
On January 10, 2023, the Plaintiff filed its Third Amended
Complaint. On January 24, the Defendant filed a motion to dismiss
the TAC which the Court granted on March 20 through an Order signed
by Judge Jeffrey T. Miller.
On April 10, the Plaintiff filed its Fourth Amended Complaint with
Jury Demand to which the Defendant filed a motion to dismiss which
was granted again by the Court through Judge Miller on July 18. A
Clerk's Judgment was entered granting Defendant's motion to dismiss
Plaintiff's fourth amended complaint without leave to amend.
The appellate case is captioned as ANTHONY MORENO, individually,
and on behalf of others similarly situated, Plaintiff-Appellant v.
VI-JON, LLC, Defendant-Appellee, Case No. 23-55631, in the United
States Court of Appeals for the Ninth Circuit, filed on July 19,
2023.
The briefing schedule in the Appellate Case states that:
-- Appellant's Mediation Questionnaire was due on July 26,
2023;
-- Transcript shall be ordered by August 17, 2023;
-- Transcript shall be filed by September 18, 2023;
-- Appellant's opening brief and excerpts of record shall be
served and filed on October 26, 2023;
-- Appellee's answering brief and excerpts of record shall be
served and filed on November 27, 2023;
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellee's brief. Failure
of the appellant to comply with the Time Schedule Order will result
in automatic dismissal of the appeal.[BN]
WAKE FOREST: Agrees to Settle Class Action Over ERISA Violations
----------------------------------------------------------------
Hall Benefits Law, LLC on July 31 disclosed that Wake Forest
University Baptist Medical Center has agreed to settle a proposed
ERISA class action lawsuit pending in a North Carolina federal
district court. In Garnick et al. v. Wake Forest University Baptist
Medical Center et al., former employees claimed that plan
administrators had violated their fiduciary duties under ERISA in
administering the $2 billion retirement plan covering about 30,000
participants. The parties informed the judge that they had reached
a settlement in principle and agreed to a deadline of July 10,
2023, for the motion for preliminary approval.
In their suit, plan participants claimed that the administrators
had failed to use the plan's size to negotiate reasonable
record-keeping fees and monitor and offer healthy investment
options. More specifically, the parties alleged that while the plan
charged each plan participant between $110 and $141 in annual plan
management fees, other plans of similar size charged only about $40
in annual plan management fees per participant. The plan
participants also alleged that they suffered significant losses
because the committee that oversaw the investment options for the
plan failed to seek out lower-cost investment fund options that
would have resulted in better returns.
Wake Forest filed a motion to dismiss the suit in December 2021,
arguing that the former workers made only general allegations
rather than specific claims of misconduct or self-dealing. However,
U.S. District Judge William Osteen Jr. disagreed, ruling that the
plan participants had alleged enough specificity to maintain their
claims that the defendant may have mismanaged their retirement
plan.
HBL has experience in all areas of benefits and employment law,
offering a comprehensive solution to all your business benefits and
HR/employment needs. We help ensure you are in compliance with the
complex requirements of ERISA and the IRS code, as well as those
laws that impact you and your employees. Together, we reduce your
exposure to potential legal or financial penalties. Learn more by
calling 470-571-1007. [GN]
WASHINGTON, DC: Class Cert Bid Briefing Stayed in V.C. Suit
-----------------------------------------------------------
In the class action lawsuit captioned as V.C., et al., v. DISTRICT
OF COLUMBIA, Case No. 1:23-cv-01139 (D.D.C., Filed April 24, 2023),
the Hon. Judge Colleen Kollar-Kotelly entered an order granting
joint motion to stay briefing on the Plaintiff's motion for class
certification.
-- The Defendant's opposition to the Plaintiff's motion for class
certification is stayed until further order of Court.
-- The motion states that "[the Parties have conferred and
believe
that pausing briefing on the Motion for Class Certification
while
discovery occurs will be a more efficient use of their (and
the
Court's) time.
-- The Parties also propose that after the Court issues a
Scheduling
Order, the Parties will provide a proposed schedule which will
include class-certification briefing, in accordance with LCvR
16.3(c)(12)."
The nature of suit states Prisoner Civil Rights.
District of Columbia is a compact city on the Potomac River,
bordering the states of Maryland and Virginia. [CC]
WEGMANS FOOD: Second Extension of Class Cert Deadline Sought
------------------------------------------------------------
In the class action lawsuit captioned as THOMAS LOEPER, JR., on
behalf of himself and others similarly situated, v. WEGMANS FOOD
MARKETS, INC., Case No. 3:22-cv-02044-MEM (M.D. Pa.), the Parties
ask the Court to enter an order extending the August 1, 2023,
deadline for class certification set forth in the Court's May 15,
2023, Scheduling Order.
Specifically, the Defendant has produced to the Plaintiff payroll
data and time data for the putative class, documents relating to
the facility at issue, and samples of other data relevant to
calculating alleged unpaid overtime.
The Plaintiff has engaged a damages consultant and industrial
engineer to evaluate the records and facility maps to calculate
alleged damages for purposes of facilitating settlement
discussions. The Plaintiff anticipates this process will be
completed within the next two weeks and will position the parties
for informed settlement discussions. Extending the existing
deadline will enable the Parties to conserve money, time, and other
resources, the Parties contend.
Wegmans is a privately held American supermarket chain.
A copy of the Parties' motion dated July 19, 2023 is available from
PacerMonitor.com at https://bit.ly/47b4QRT at no extra charge.[CC]
The Plaintiff is represented by:
Pete Winebrake, Esq.
Deirdre Aaron, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
- and -
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (267) 256-9973
The Defendant is represented by:
Stephen J. Jones, Esq.
Todd R. Shinaman, Esq.
Michael J. Lingle, Esq.
Sarah L. Tufano, Esq.
Adam R. Tarosky, Esq.
NIXON PEABODY LLP
1300 Clinton Square
Rochester, NY 14064
Telephone: (585) 263-1000
E-mail: sjones@nixonpeabody.com
tshinaman@nixonpeabody.com
mlingle@nixonpeabody.com
stufano@nixonpeabody.com
atarosky@nixonpeabody.com
WELLS FARGO: Class Settlement in McCoy Suit Wins Final Approval
---------------------------------------------------------------
In the case, DONALD E. McCOY, III; MAXIMILIANO OLIVERA, Plaintiffs
v. WELLS FARGO BANK, N.A., Defendant, Civ. No. 1:20-cv-00176-MC (D.
Or.), Judge Michael McShane of the U.S. District Court for the
District of Oregon, Medford Division, grants the Plaintiffs'
Unopposed Motion for Final Approval of Class Action Settlement.
On July 7, 2023, the Court held a Final Approval Hearing on the
Motion. Notice of the Final Approval Hearing was given in
accordance with the Court's Preliminary Approval Order. At the
Final Approval Hearing, the parties and all other interested
persons were afforded the opportunity to be heard in support of and
in opposition to the Agreement.
Judge McShane certifies the Class, pursuant to Fed. R. Civ. P.
23(a) and (b)(3) solely for purposes of this Settlement, composed
of any person who, during the Class Period: (i) was a borrower on a
Federally Related Mortgage Loan during the Class Period; (ii) sent
a writing (that was not a payment coupon) to Wells Fargo at the
Designated Address requesting information about or asserting an
error concerning that Federally Related Mortgage Loan; (iii) had a
code on Wells Fargo's records showing there was active litigation
and who received a letter from Wells Fargo referencing active
litigation, active mediation, or active bankruptcy; and (iv) to
whom neither Wells Fargo nor its counsel provided all of the
requested information or corrected the error within the time
provided by 12 U.S.C. 2605(e).
The Class Period refers to the period beginning on Feb. 2, 2017
through June 1, 2022, inclusive. A Federally Related Mortgage Loan
means a loan as defined by RESPA and Regulation X, 12 U.S.C.
Section 2602(1), 12 C.F.R. Section 1024.2(b). The Designated
Address means PO Box 10335, Des Moines, IA 50306.
Excluded from the Class are those persons who timely and validly
requested exclusion from the Class, the judge to whom this case is
assigned and the judge's immediate family members.
Judge McShane fully and finally approves the Agreement and its
terms as being fair, reasonable, and adequate within the meaning of
Fed. R. Civ. P. 23 and directing its consummation pursuant to its
terms and conditions. Neither his Order nor the Agreement
constitutes an admission by Wells Fargo of any liability or
wrongdoing whatsoever.
The Order, the Agreement, and the Judgment are binding on and have
res judicata and preclusive effect in all pending and future
lawsuits or other proceedings encompassed by the Class Released
Claims maintained by or on behalf of the Class Releasors.
The preliminary appointment of Plaintiffs Donald E. McCoy III and
Maximiliano Olivera as the Class Representatives, and Marc E. Dann,
Thomas A. Zimmerman, Jr., and Jeffrey A. Long as the Class Counsel,
are confirmed.
The Action and the Plaintiffs' claims for damages are dismissed
with prejudice and, except as otherwise explicitly provided for in
the Agreement, without costs.
The Class Releasees are discharged and released from all Class
Released Claims. The Class Releasors are permanently barred and
enjoined from instituting and prosecuting any and all of the Class
Released Claims against any Class Releasees.
There were no objections to the Settlement. Judge McShane finds
that the Estate of Raymond T. Majewski, Sr. has properly excluded
itself from this Settlement and is therefore not a Class Member for
purposes of the Order. The Estate of Raymond T. Majewski, Sr. will
neither share in nor be bound by the Order or the Judgment.
Judge McShane reserves continuing and exclusive jurisdiction over
the Settlement, including all future proceedings concerning the
administration, consummation, and enforcement of the Agreement.
The Class Counsel's Fee and Expense Application is approved and the
Class Counsel is awarded $260,000 in attorneys' fees, plus
$3,202.59 in reimbursed costs, and expenses. This amount will be
paid in accordance with the terms of the Agreement.
The Class Counsel's Incentive Award Application is also approved
and the Plaintiffs are awarded $5,000 each.
Judge McShane approves the procedure for handling
uncashed/unclaimed checks as set forth in the Agreement, including
the payment to the cy pres recipient, Credit Builder's Alliance.
The Court will enter a Judgment dismissing all claims of the Class
Members through separate entry.
A full-text copy of the Court's July 7, 2023 Order is available at
https://tinyurl.com/8n26584p from Leagle.com.
WICHITA, KS: Class Cert. Response Due August 11 in Progeny
----------------------------------------------------------
In the class action lawsuit captioned as Progeny, et al., v.
Wichita, Kansas, City of, et al., Case No. 6:21-cv-01100 (D. Kan.,
Filed April 15, 2021), the Hon. Judge entered an order granting
unopposed motion for extension of time to file response as to
motion for class certification.
-- Response deadline: Aug. 11, 2023
Wichita is a city in south-central Kansas.[CC]
YMCA: Ortiz Files Suit in Cal. Super. Ct.
-----------------------------------------
A class action lawsuit has been filed against Young Men's Christian
Association Of San Francisco. The case is styled as Mayra Ortiz,
individually and on behalf of others similarly situated v. Young
Men's Christian Association Of San Francisco, a/k/a Y.M.C.A. OF SAN
FRANCISCO, Case No. CGC23608054 (Cal. Super. Ct., San Francisco
Cty., Aug. 1, 2023).
The case type is stated as "Other Non-Exempt Complaints."
The YMCA -- http://www.ymcatrivalley.org/-- is a nonprofit
organization whose mission is to put Christian principles into
practice through programs that build healthy spirit, mind and
body.[BN]
The Plaintiff is represented by:
Jonathan Genish, Esq.
BLACKSTONE LAW
8383 Wilshire Blvd., Ste. 745
Beverly Hills, CA 90211-2442
Phone: 855-786-6355
Fax: 855-786-6356
Email: jgenish@blackstonepc.com
YOUNG ADULT: Fails to Pay Therapist Minimum & OT Wages, Turner Says
-------------------------------------------------------------------
BELINDA TURNER, on behalf of herself and the Class Members v. YOUNG
ADULT INSTITUTE, INC.; and DOES 1 through 10, inclusive, Case No.
2:23-at-00709 (E.D. Cal., July 26, 2023) seeks to recover minimum
and overtime wages pursuant to the California Labor Code.
The Plaintiff alleges that the Defendant failed to provide
compensation for all hours worked, failed to provide legally
compliant meal and rest periods, and pay premiums, failed to
reimburse necessary business expenses, failed to provide sick pay,
failed to maintain accurate and complete payroll records, failed to
provide accurate, itemized wage statements, and failed to pay all
wages due timely upon separation from employment.
Accordingly, the Defendant maintains policies and procedures which
create a working environment where hourly employees are routinely
compensated at a rate that is less than the statutory minimum wage.
The Plaintiff and Class Members routinely work time off-the-clock
without compensation for this time. As a result of the unlawful
acts and/or omissions of the Defendant, the Plaintiff and Class
Members have been deprived of minimum wages in an amount to be
determined at trial, and are entitled to a recovery of such amount,
plus liquidated damages, interest, attorneys' fees, and costs of
suit pursuant to California Labor Code sections 1194, 1194.2 and
1197.1, says the suit.
The Plaintiff, on behalf of herself and others similarly situated,
seeks compensation, damages, penalties, and interest pursuant to
the California Labor Code and the Industrial Welfare Commission
Wage Orders. The Plaintiff, on behalf of herself and others
similarly situated, further alleges that Defendant is liable for
violations of California's Unfair Competition Law.
The Plaintiff has worked for the Defendant as a Registered
Behavioral Therapist at Defendant's Lodi, California location from
February 28, 2021 to the present. She was, and is, classified as an
hourly, non-exempt employee and is paid $28 per hour.
Young Adult is in the business of operating facilities catering to
individuals with intellectual and developmental disabilities.[BN]
The Plaintiff is represented by:
Anthony J. Orshansky, Esq.
Justin Kachadoorian, Esq.
COUNSELONE, PC
9301 Wilshire Boulevard, Suite 650
Beverly Hills, CA 90210
Telephone: (310) 277-9945
Facsimile: (424) 277-3727
E-mail: anthony@counselonegroup.com
justin@counselonegroup.com
ZELOUF INTERNATIONAL: Herrera ADA Suit Removed to S.D. New York
---------------------------------------------------------------
The case styled as Carlos Herrera, on behalf of himself and all
others similarly situated v. Zelouf International Corp., Case No.
154939/2023 was removed from the Supreme Court, New York County, to
the U.S. District Court for the Southern District of New York on
August 1, 2023.
The District Court Clerk assigned Case No. 1:23-cv-06721 to the
proceeding.
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Zelouf International -- https://zelouffabrics.com/ -- is a
third-generation wholesaler and fabric converter headquartered in
New York City.[BN]
The Plaintiff appears pro se.
The Defendants is represented by:
Peter T. Shapiro, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP (WATER ST)
77 Water Street, Suite 2100
New York, NY 10005
Phone: (212) 232-1322
Fax: (212) 232-1399
Email: Peter.Shapiro@lewisbrisbois.com
ZUFFA LLC: Garcia Suit Removed to D. Nevada
-------------------------------------------
The case captioned as Saul Garcia, individually, and on behalf of
all similarly situated v. ZUFFA, LLC d/b/a ULTIMATE FIGHTING
CHAMPIONSHIP, a Nevada limited liability company, Case No.
23STCV02457 was removed from the Eighth Judicial District Court of
the State of Nevada for Clark County, to the United States District
Court for the District of Nevada on Aug. 2, 2023, and assigned Case
No. 2:23-cv-01211-JAD-VCF.
The Complaint alleges two causes of action: Violation of the
California Unfair Competition Law; and Violation of the California
Consumer Legal Remedies Act.[BN]
The Defendants are represented by:
J. Colby Williams, Esq.
Philip R. Erwin, Esq.
CAMPBELL & WILLIAMS
710 South Seventh Street
Las Vegas, NV 89101
Phone: 702.382.5222
Email: jcw@cwlawlv.com
pre@cwlawlv.com
[*] GSE Litigation Revolves Around Financial Illiteracy
-------------------------------------------------------
Berkley Insurance v. FHFA Shows How GSE Litigation Revolved Around
Financial Illiteracy
By David Fiderer
The verdict in Berkley Insurance v. FHFA illustrates a truism of
modern life. A clever professional, starting from a false premise,
can rationalize away anything. Which is why most of us are better
off relying on our common sense. The jury in Berkeley saw through a
decade's worth of verbal noise -- thousands of litigation pages --
to conclude that the notorious net worth sweep applied to the two
government sponsored enterprises, Fannie Mae and Freddie Mac,
reflected bad faith. The net worth sweep was a contract provision
declaring that all positive income shall be forever distributed as
cash dividends to the U.S. Treasury and assure that GSE equity
never exceeds zero.
You don't need a CPA or a fancy law degree to figure out that the
rationale for the net worth sweep was always absurd. Nobody is
clairvoyant and stuff happens, which is why you always need to set
aside something for a rainy day. Even if you're in the process of
winding down a business, you never know when you may incur some
unexpected expenses. Which is why you always keep something in
reserve until you're certain that every fixed obligation can be
repaid.
The initial false premise proved to be the massive non-cash
accounting provisions declared by the GSEs' accountants after the
government takeover in September 2008. If accountants had
estimated future cash credit losses with uncanny accuracy, the
government's "bailout" of the GSEs would have approximated zero,
and senior preferred dividends would have been nominal. The initial
errors, of vastly overinflated loan loss provisions, fueled the
broader false premise that the GSEs had a fatally flawed business
model, which is why the government advocated winding down two home
lenders with loan performance that is airways exponentially
superior to any other segment of the market. Nonetheless, the GSE
regulator/conservator, the Federal Housing Finance Agency, and the
U.S. Treasury were determined to prove that their first impressions
are never wrong. In August 2012, right after Fannie management
informed Treasury that a big chunk of those initial accounting
provisions was about to be reversed, FHFA and Treasury revised the
terms of Treasury's senior preferred shares. The dividend coupon
changed, from 10% cash or 12% PIKs, to 100% of all positive income
or zero for any quarter with negative income. As the press release
announced, "Treasury Department Announces Further Steps to Expedite
Wind Down of Fannie Mae and Freddie Mac."
Money talks. By the end of 2013, the massive GSE "bailout" had been
repaid. How did the government rationalize keeping the net worth
sweep? With an extended word salad that duped a lot of seasoned
jurists by pandering to financial illiteracy. In Collins v. Yellen
-- https://tinyurl.com/3z2sdjzx -- Justice Samuel Alito failed to
distinguish between debt and equity, and failed to connect the
proper noun with the proper modifier. His flawed reasoning was
carried forward by Judge Royce Lamberth in Berkley. The difficulty
of parsing through the text of an author who ignores the tenets of
financial literacy is encapsulated in Brandolini's Law --
https://tinyurl.com/y6jyjfc3 -- "the amount of energy needed to
refute bullshit is an order of magnitude bigger than to produce
it."
Cash Dividends Are Always Contingent
Because some people with highfalutin credentials forgot some basic
definitions, we must belabor the obvious distinction between fixed
and conditional obligations. Debt is a fixed obligation to repay
cash, both interest and principal, on dates certain. Whereas equity
is always a conditional obligation to return cash out of a surplus,
known as shareholder equity. Debt claims have priority; so every
cash dividend is subject to a condition precedent, some
demonstration that the company will be able repay its debt. If
that condition is never met, cash dividends will never be paid out.
If a company is in conservatorship, we know that the condition has
not been met. So the idea that a company in conservatorship would
ever pay out cash dividends is oxymoronic. After announcing the
net worth sweep, the government argued that cash dividends were
part of its plan to segue from GSE conservatorship into GSE
receivership; but that pretext was nonsensical, because no one
knows if there would be sufficient cash to cover unexpected
expenses until the final stages of liquidation.
Though preferred shares may have attributes that seem similar to
debt -- with contractually fixed dividend rates payable on
scheduled dates -- they are still equity. If the company doesn't
meet the condition of sufficient capitalization, those preferred
dividends are not paid in cash; they must be held as accounting
accruals, or distributed as payments in kind. Distribution of cash
dividends reduces a company's shareholder equity, whereas accrual
of preferred dividends does not. Which is why all preferred
dividends should accrue until the GSEs emerged from
conservatorship.
The government extended a commitment to the GSEs to fund future
equity shortfalls. But that commitment does not obviate the
condition precedent for all cash dividends; quite the opposite. The
government commitment is finite; so payment of any cash dividend
reduces total resources to cover any future shortfall.
One might argue that the government's unfunded commitment made the
GSEs sort of quasi-solvent, thereby making payment of cash
dividends a legally viable option. Maybe. The GSEs did pay out cash
dividends before 2013, and some of those dividends were funded by
draws under the government commitment. But those payouts were
antithetical to the obligation of the regulator/conservator, which
is to preserve the safety and soundness of the two institutions. In
any event, the pre-2013 cash dividends were an exercise of an
option, a choice to disregard the more prudent PIK alternative;
there was never a fixed obligation to pay out cash by a certain
date.
Yet Justice Alito and his colleagues simply ignored the essential
condition for all cash dividends, as reflected in this key passage
in Collins v. Yellen:
[T]he shareholders claim that the FHFA could have protected
Treasury's capital commitment by ordering the companies to
pay the dividends in kind rather than in cash. This argument
rests on a misunderstanding of the agreement between the
companies and Treasury. Paying Treasury in kind would not
have satisfied the cash dividend obligation; it would only
have delayed that obligation, as well as the risk that the
companies' cash dividend obligations would consume
Treasury's capital commitment.
False. There never was an obligation, or risk of future
obligations, to consume Treasury's capital commitment with cash
dividends. Again -- sorry for being redundant but a lot of smart
people miss this point -- Treasury's commitment was intended to
fund capital shortfalls; whereas cash dividends are supposed to be
funded out of capital surpluses. If the GSEs never attained
sufficient capital to pay out preferred dividends, the government
would never recover its investment. Equity is never a guarantee of
any return, and never a fixed obligation to repay cash.
Lack of Consideration
Because Treasury never had a legally binding right to receive cash
dividends in the absence of a surplus, Treasury never gave up
anything of value in the famous Third Amendment to the senior
preferred stock agreement, which imposed the net worth sweep.
Because Treasury never gave up anything of value, there was no
consideration, which, as Justice Alito should remember, is a
required element of an enforceable contract.
The Third Amendment transformed Treasury's senior preferred shares,
which represented a conditional obligation to pay out at a fixed
coupon rate, into to a fixed obligation to pay cash at a variable
rate, designed to fix the end result. Under the revised deal, the
GSEs must distribute all positive income as a cash dividend, so
that GSEs must fix their equity levels at zero.
How was this legally possible? It wasn't, under the applicable law.
So Justice Alito transposed which phrases modified which nouns in
the statutes. Consider this key passage, referring to the Federal
Housing Finance Agency, the regulator/conservator of the GSEs:
An FHFA conservatorship, however, differs from a typical
conservatorship in a key respect. Instead of mandating that
the FHFA always act in the best interests of the regulated
entity, the Recovery Act authorizes the Agency to act in
what it determines is "in the best interests of the
regulated entity or the Agency." Thus, when the FHFA acts
as a conservator, it may aim to rehabilitate the regulated
entity in a way that, while not in the best interests of the
regulated entity, is beneficial to the Agency and, by
extension, the public it serves.
Here we encounter Brandolini's Law, the need to untangle word games
used to obscure the truth. An action may be beneficial even if it
is not necessarily in the best interests of a party, for the same
reason that Oxycontin, while offering beneficial pain relief, may
not be in the best interests of one's overall health. And the net
worth sweep offered nothing beneficial and nothing in the best
interests of the GSEs or FHFA, which are left with fewer financial
resources to work with. The net worth sweep is only beneficial to
Treasury, which, for those who know how to read a statute, is the
not relevant Agency, which is FHFA. Since FHFA received no
benefit, nothing beneficial can be afforded, "by extension, the
public it serves." The history of the United States is replete with
abuses of power, which are rationalized on the pretext that they
are beneficial to the public. Alito offers us another one.
Timing Differences Under GAAP
The entire controversy is framed by timing differences under GAAP,
the disconnect between cash accounting and accrual accounting.
Timing differences can be very complicated; but the basic concept
is rather simple. Nobody is clairvoyant. So when lenders
guesstimate their cash recovery on outstanding loans, they are
supposed to err on the side of caution. Eventually loan loss
guesstimates must be reconciled with actual results. It turned out
that the GSE accountants' extreme errors added up to about $160
billion.
Everything flowed out of those initial errors. One of the tenets of
financial literacy is that you cannot put on blinders, for the same
reason that you cannot judge the Titanic's safety record based on
the first four days at sea. You must look at all the numbers over
the duration of an economic and industry cycle, and figure out how
the numbers fit together. Defenders of the net worth sweep reject
this idea; an acknowledgement of the erroneous accounting
assumptions, made immediately after the government takeover, might
compel Treasury to reconsider its policy goal --
https://tinyurl.com/bdfhz8bn -- to prevent the GSEs from emerging
out of conservatorship.
FHFA Doubles Down on Illiteracy
In Berkley Insurance v. FHFA, the latest incarnation of private
litigation challenging the net worth sweep, FHFA doubled down on
illiteracy, by extending Alito's twisted logic. Since the payout of
cash dividends prior to 2013 was no longer conditional, FHFA
inferred that they must be mandatory. And since the payout is
mandatory, the payout cannot be optional. And since there is no
option, the Court should instruct the jury that there was no
payment-in-kind option was legally available, as if the words in
the contract never existed. U.S. District Court Judge Royce
Lamberth, who knows how to read, declined to go that far. But FHFA
also wanted to banish the word "option" as it applied to the choice
to pay cash dividends prior to the net worth sweep. Bound by the
warped reasoning of Collins v. Yellen, which he endorses, Lamberth
struggled to square the circle. He got confused over the
definitions of "option" and "penalty," and imagined that the words
were antonyms, like an either/or proposition. Here's an explainer
for those who don't see the absurdity. When you buy a car, you have
an option of paying cash, or paying for it later, over time, which
incurs a penalty that most people call interest. If you choose not
to pay installments on time, you incur a penalty rate on interest.
The option always exists, no matter which choice you make.
Lamberth's comments and rulings also reflect a lack of awareness of
timing differences under GAAP, and the conditionality of all
dividends, and a willful blindness to the critical fact that cash
dividends reduce equity and impair the GSEs, whereas PIKs do not.
He writes:
[P]rior to the Third Amendment, if the GSEs had insufficient
net profits to pay their 10 percent cash dividend to
Treasury, two courses of action were possible: (1) draw on
the Treasury Commitment to satisfy the dividend obligation
at the normal 10 percent rate or (2) flout the dividend
obligation and incur the associated penalty of adding the
amount of that obligation to the Liquidation Preference and
increasing the rate to 12 percent until all dividend
obligations are satisfied.2
Defendants [FHFA] argue, and this Court has agreed in a
prior opinion, see Perry Capital LLC v. Lew, 70 F. Supp. 3d
208,216 n.7 (D.D.C. 2014), aff'd in part, rev'd in part on
other grounds sub nom. Perry Capital LLC v. Mnuchin, 864
F.3d 591 (D.C. Cir. 2017), that the second course of action
was better characterized as a "penalty" than an "option" in
the legal sense -- that is, it would not satisfy the GSEs'
cash dividend obligations to Treasury under the contract.
However, that does not mean it was not an "option" in the
colloquial sense -- that is, it was a possible course of
action. In other words, there is nothing logically or
legally incoherent about describing a contractual mechanism
as a "penalty" for failing to meet a party's obligations and
recognizing as a practical matter that that party has the
"option" of shrugging and accepting -- the associated
penalty instead of doing everything in its power to meet
those obligations.
Thus, the parties' quibbling over whether adding to the
Liquidation Preference is better characterized as a
"penalty" or a "payment-in-kind option" obscures the real
issue facing FHFA prior to the Third Amendment: Although
FHFA as a practical matter could have flouted its cash
dividend obligations and incurred the associated contractual
penalty, that was a temporary solution that merely would
have kicked the can down the road. Defendants have
repeatedly asserted in these cases and others that part of
the rationale for the Net Worth Sweep was preventing erosion
of the Treasury Commitment. As the Supreme Court put it in
Collins, "paying Treasury in kind would not have satisfied
the cash dividend obligation, and the risk that the
companies' cash dividend obligations would consume
Treasury's capital commitment in the future would
have remained."
"This raises serious questions," seems like a tiresome cliche when
the answers are so obvious. Why did FHFA pay out cash dividends
during conservatorship? Why did FHFA impose the net worth sweep
just before the GSEs changed their accounting assumptions, and the
losses that triggered the initial bailout were reversed? Why did
FHFA falsely claim that cash dividends in conservatorship were
mandatory, and that cash dividends threatened to use up the
government commitment to fund capital shortfalls? How does the net
worth sweep jibe with Treasury's stated goal of winding down the
GSEs? How does it jibe with FHFA Director Edward DeMarco's
declaration that the GSEs cannot be rehabilitated by being
recapitalized? The overarching answer is that few want to open up
a can of worms, and evaluate whether prior decisions stand the test
of time.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***