/raid1/www/Hosts/bankrupt/CAR_Public/231010.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, October 10, 2023, Vol. 25, No. 203
Headlines
3M CO: Glenville Retains Robert King as Legal Counsel in PFAS Suit
ABM INDUSTRIES: Reyes Sues Over Unpaid Overtime Wages
AMAZON WEB: Filing for Class Cert. Bid Amended to May 17, 2024
AMAZON.COM INC: Completion of Discovery Extended to Nov. 22
AMERICAN COASTAL: Rosen Law Firm Investigates Securities Claims
ARCHER AVIATION: Bids for Lead Plaintiff Appointment Due Nov. 20
ARDELYX INC: Consolidated Securities Suit Over "Tenapanor" Ongoing
ASPYR MEDIA: Sued Over Video Game's Cancelled Restored Content DLC
BANK OF AMERICA: Powe Files Suit in W.D. North Carolina
BEAN N BEAN: Durantas Files ADA Suit in E.D. New York
BIENVILLE ORTHOPAEDIC: McCoy Files Suit in S.D. Mississippi
BIOPLUS SPECIALTY: Ruling on Approval of Gilbert Accord Deferred
BLUELINE TEAM: Starling Sues Over Unsolicited Telemarketing Calls
BLUGLACIER LLC: Hernandez Files ADA Suit in S.D. New York
BLUM'S CORSET SHOP: Erkan Files ADA Suit in E.D. New York
BRADFORD EXCHANGE: Whiteman Suit Removed to S.D. Florida
BRADY MARTZ: Kiesow Files Suit in D. North Dakota
BREAD FINANCIAL: Faces Childs Suit Over Alleged TCPA Violations
BURGER KING: Defends Whopper False Advertising Class Action
CAESARS ENTERTAINMENT: Garcia Files Suit in D. Nevada
CAL CARTAGE: Muniz Suit Removed to C.D. California
CARESOURCE: Fails to Protect Personal Info, Higham Suit Claims
CASE WESTERN: Deadline Extension to File Opposition Briefs Sought
CENTERVILLE CLINICS: Doe Suit Remanded to Pennsylvania State Court
CHERRY CENTRAL: Hernandez Files ADA Suit in S.D. New York
CLUB 1 HOTELS: Vickers Files TCPA Suit in E.D. New York
COINBASE GLOBAL: Donovan Suit Transferred to S.D. New York
COMMONWEALTH EDISON: Dismissal of Consolidated Suit Under Appeal
CRUISE LLC: Ramos Files Suit in Cal. Super. Ct.
DAIRYLAND EQUIPMENT: Judge Okays $122MM Class Action Settlement
DC WINERY: Harrington Seeks Conditional Status of Collective Action
DENTSPLY SIRONA: Lead Plaintiff Seeks to Certify Class Action
DIRECT BUILDING: Jackson Suit Transferred to M.D. Pennsylvania
DIXXON SUPPLY: Zelvin Files ADA Suit in S.D. New York
EPIC GAMES: Settlement Claims Filing Deadline Set Jan. 17, 2024
ERSTWHILE JEWELRY: Erkan Files ADA Suit in E.D. New York
ESTELLE'S DRESSY: Erkan Files ADA Suit in E.D. New York
EVOLUS INC: Shareholder Suit Over Wrinkle Meds Pending in NY Court
FIRSTENERGY SERVICE: Putorek Files Suit in N.D. West Virginia
FORD MOTOR: Chaney et al. Sue Over Vehicle's Transmission Defect
FORD MOTOR: Johnson Sues Over Defective Rear View Cameras
FORD MOTOR: Judge Tosses Class Action Over Shifter Bushings
FRESHWORKS INC: Consolidated Shareholder Suit Over IPO Ongoing
GAME TIME: S.D. California Tosses Helems Suit With Leave to Amend
GENERAC HOLDINGS: Gross Law Firm Investigates Securities Claims
GENERAL MOTORS: Ridell Suit Seeks to Certify Class
GENTING NEW YORK: Weitz Files TCPA Suit in S.D. Florida
GOLDMAN SACHS: AP-Fonden Seeks to Certify Class Action
GREENVILLE COUNTY, SC: Loftis Suit Removed to D. South Carolina
HOMEDELIVERYLINK INC: Faces Vera Class Suit Over Illegal Deductions
HUB CYBER: Bids for Lead Plaintiff Appointment Due October 16
HUMBOLDT COUNTY, CA: Ruling in Cannabis Abatement Program Appealed
INOVA HEALTH: E.D. Virginia Narrows Claims in Ellison Class Suit
INTERNATIONAL BUSINESS: Malinowski Sues Over Alleged Data Breach
JANUS HOMECARE: Garcia Seeks Conditional Collective Certification
JIFFY LUBE: Court Grants Bid to Compel Arbitration in Fuentes Suit
JOHNSON & JOHNSON: Bid to Dismiss Edley Complaint Due Oct. 24
JOHNSON & JOHNSON: Walker Sues Over False and Misleading Claims
KATHLEEN ALLISON: Court Tosses Blake's Bid to Certify Class Action
KENVUE INC: Rosen Law Firm Investigates Securities Claims
KOELSCH SENIOR: Fite Suit Removed to E.D. California
KOOMA III LLC: Lunemann Seeks Proper Wages for Restaurant Servers
MARS PETCARE: Audet & Partners Investigates Dog Treats' Class Suit
MCADOO'S SEAFOOD: Brixey Seeks to Certify Class Action
MHM HEALTH: Lewis Files Conditional Class Certification Bid
MIDMARK CORP: Fails to Pay Proper Overtime Wages, Cummins Alleges
MOSHAY INC: Dawson Files ADA Suit in S.D. New York
MOUNTAIRE FARMS: Residents Get Payouts in Contamination Class Suit
NEW YORK INTERNATIONAL: Gonzalez Sues Over Labor Law Violations
NORTH MISSISSIPPI HEALTH: Wins Partial Summary Judgment vs Woods
NORTHWELL HEALTH: Faces K.M. Suit Over Disclosure of Private Info
NORTHWESTERN MEDICINE: Court Hears Oral Arguments in BiPA Suits
OTAY LAKES: Court Dismisses Renn Complaint With Leave to Amend
OXFORD INDUSTRIES: Hernandez Files ADA Suit in S.D. New York
PAUL BOND BOOT: Jones Files ADA Suit in S.D. New York
PHARMACARE US: Continuance of Class Cert Hearing Sought
PHP OF NC: Johnson Seeks to Certify FLSA Collective Action
PHYSIO LOGIC MEDICINE: Martinez Files ADA Suit in E.D. New York
PINNACLE TOO: Charles Suit Seeks to Certify Class Action
PROCTER & GAMBLE: NPI Sues Over Ineffective Medications
PROGRESSIVE DIRECT: $2MM Settlement in Stedman Suit Has Prelim. OK
PROGRESSIVE DIRECT: Grady Seeks Rule 23 Class Certification
PUFF CORP: Miller Files ADA Suit in W.D. New York
RB HEALTH: Striegel Sues Over False Marketing and Advertising
RECKITT BENCKISER: Prescott Wins Prelim. Nod of Class Settlement
RESTORE FRANCHISING: Martinez Files ADA Suit in E.D. New York
RIVERSIDE TRANSPORTATION: Phillips Sues Over Unpaid Wages
RLB USA: Fails to Pay Proper Overtime Wages, Garcia Suit Claims
ROSE & REMINGTON: Mercedes Files ADA Suit in S.D. New York
SAMSARA INC: Rosen Law Firm Investigates Securities Claims
SHEKINAH LOGISTICS: Guzman Files Suit in Cal. Super. Ct.
SIEMENS INDUSTRY: Enomoto Suit Transferred to C.D. California
SMILE BRANDS: Durantas Files ADA Suit in E.D. New York
STABILITY AI: Faces Copyright Infringement Class Action Suit
STATE FARM: Baldwin Seeks to Certify National Class
TATA STEEL: About 2,000 IJmuiden Residents Join Health Hazard Suit
TIRE DISCOUNTERS: Court Snobs Global Settlement in Lindsey Suit
TRADE FORCE NYC: Martinez Files ADA Suit in E.D. New York
UNITED AIRLINES: Faces Class Action Suit Over Lost Luggage
UNITED STATES: Court Grants in Part Bid to Dismiss Schelske v. DoD
UNITED STATES: DoD to Start Upgrading Discharge Statuses Amid Suit
VENCHI US: Martin Files ADA Suit in E.D. New York
VERISK ANALYTICS: Faces Ahringer Securities Class Suit
VIRTUAL DINING: Martinez Files ADA Suit in E.D. New York
VIVENDI TICKETING: Loughead Files Suit in C.D. California
WASHINGTON: Court Dismisses Demos Prisoner Suit Without Prejudice
WASSERSTROM HOLDINGS: Court Consolidates Gruscinski & Coffey Suits
WEATHERFORD US LP: Approval of $325K Granillo Deal Held in Abeyance
WESTFIELD, MA: Wage Theft Class Action Moved to Superior Court
WHITEFISH, MT: Court Certifies Rule 23 Class in Beck Suit
YOUNG LIVING: O'Shaughnessy Suit Seeks to Certify Class Action
*********
3M CO: Glenville Retains Robert King as Legal Counsel in PFAS Suit
------------------------------------------------------------------
Chad Arnold, writing for The Daily Gazette, reports that for years,
drinking water in Glenville has been contaminated with per- and
polyfluoroalkyl substances. Now, town lawmakers are hoping to
collect damages in hopes to address the issue.
Town Board members voted to retain the services of Robert King and
Stag Liuzza, a law firm representing thousands of municipalities
across the country in a class action lawsuit against the makers of
the chemicals -- known collectively as PFAS contaminants, or
"forever chemicals " -- like 3M and DuPont.
"This law firm has led the litigation process and it's best to go
with them because they're so invested in it," said Supervisor Chris
Koetzle. "We're hoping to get a settlement from this."
The agreement will not cost the town any money up front, but comes
with a 25% contingency fee for any monetary settlement reached
outside of court, or one-third of any award resulting from a
trial.
Koetzle said it's unclear how much the town stands to gain, but
said any money awarded to the town will be used to upgrade the
carbon filtration system at the town's drinking water plant that
can wean out the chemicals. The town provides drinking water to
approximately 7,000 residents.
PFAS chemicals are found in everything from non-stick cookware,
clothing, plastic containers and certain types of insulation. But
the chemicals, which do not break down in the environment, have
been found in public drinking water systems throughout the country,
prompting health concerns and sparking numerous high-profile
lawsuits. PFAS contaminants have been linked to certain types of
cancer, weakened immune systems and other adverse health effects.
Locally, Hoosick Falls in Rensselaer County received a $65 million
payout from Saint-Gobain, Honeywell International, 3M and DuPont to
settle a federal lawsuit that accused the companies of
contaminating the village's drinking water supply. The money was
used to provide cash payments and fund long-term medical monitoring
for thousands of residents impacted by the contamination first
discovered in 2014.
In Glenville, Koetzle said he believes the contamination can be
linked to fire-suppression foam that was used at the Stratton Air
National Guard base at the Schenectady County airport located in
the eastern part of town.
"I don't want to speculate, but it doesn't take a sleuth to know
who has used PFOAs in town," he said. "That could be the Air Guard
base. They're the only ones who fight jet fuel fires."
The contamination level has remained below the actionable levels of
7 parts per trillion for PFOA's set by the U.S. Environmental
Protection Agency. The town reported PFOA contaminants of around 2
parts per trillions in its latest water quality report released
earlier this year.
In March, the EPA announced new proposed regulations that lower the
allowable continent levels to 4 parts per trillion, and the federal
government has set aside billions to tackle the contaminants
through an infrastructure bill approved by Congress last year.
Koetzle said the town is monitoring the new proposed regulations,
but noted there is "concern" the contaminated levels would rise to
actionable levels.
"That would make this even more important," he said. [GN]
ABM INDUSTRIES: Reyes Sues Over Unpaid Overtime Wages
-----------------------------------------------------
Walter Reyes, an individual, solely as an aggrieved employee
representative on behalf of all similarly situated current and
former aggrieved employees v. ABM INDUSTRIES INCORPORATED, a
Delaware Corporation; and DOES 1 through 10, inclusive, Case No.
23STCV22949 (Cal. Super. Ct., Los Angeles Cty., Sept. 21, 2023), is
brought stemming from unpaid wages earned and due, including but
not limited to unpaid wages, unpaid and illegally calculated
overtime compensation, illegal meal and rest period policies,
failure to maintain required records, failure to provide accurate
itemized wage statements, failure to indemnify employees for losses
incurred in discharging their duties, and interest, attorneys'
fees, costs, and expenses thereon.
While employed as non-exempt Janitorial workers, Plaintiff and the
Aggrieved Employees routinely worked periods of 4 hours or more,
twice per work day, without receiving 2 full, uninterrupted, 10
minute rest break periods per every 4 hours worked, in violation of
California Industrial Commission's Order 5. The Defendants did not
provide Plaintiffs and the Aggrieved Employees, All Non Exempt
Janitorial Workers, a full and uninterrupted 30 minute meal period
for every five hours worked. Defendants did not obtain written meal
period and/or rest period waivers signed by Plaintiffs and
Plaintiff Aggrieved Employees for days where meal periods and rest
periods were missed by Plaintiffs and Aggrieved Employees.
Moreover, Plaintiffs and Aggrieved Employees were not compensated
for missed meal and rest periods in compliance with applicable
California laws and regulations. The allegations complained of in
this paragraph place Defendants in clear violation of the
California Industrial Welfare Commission Wage Order 5 and
applicable Labor Codes, says the complaint.
The Plaintiff and aggrieved employee representative Walter Reyes is
a resident of the State of California who was employed by
Defendants as a non-exempt employee.
The Defendants own and operate janitorial and housekeeping
companies providing janitorial and housekeeping services to various
companies throughout the United States.[BN]
The Plaintiff is represented by:
Shoham J. Solouki, Esq.
Grant Joseph Savoy, esq.
SOLOUKI | SAVOY, LLP
316 W. 2nd Street, Suite 1200
Los Angeles, CA 90012
Phone: (213) 814-4940
Facsimile: (213) 814-2550
Email: Shoham@soloukisavoy.com
grant@soloukisavoy.com
AMAZON WEB: Filing for Class Cert. Bid Amended to May 17, 2024
--------------------------------------------------------------
In the class action lawsuit captioned as ANN MAYHALL, on behalf of
her Minor Child, D.M., individually and on behalf of all others
similarly situated, v. AMAZON WEB SERVICES INC., et al., Case No.
2:21-cv-01473-TL-MLP (W.D. Wash.), the Hon. Judge Michelle L.
Peterson entered an order amending the Plaintiff's motion setting
trial date and pretrial schedule as follows:
Event Date
JURY TRIAL to begin at 9:00 a.m., on: April 7, 2025
Motion for Class Certification May 17, 2024
Response to Motion for Class 45 days after filing
Certification of motion
Reply in Support of Motion for Class 30 days after filing
Certification of response
All motions related to discovery must Oct. 4, 2024
be filed by this date and noted for
consideration no later than the third
Friday thereafter (see LCR 7(d))
Discovery to be completed by Nov. 15, 2024
Settlement Conference, if mediation Jan. 13, 2025
has been requested by the parties
per LCR 39.1, held no later than
Mediation per LCR 39.1, if requested Feb 12, 2025
by the parties, held no later than
All motions in limine must be filed by Mar. 10, 2025
Pretrial Conference Mar. 31, 2025
On January 7, 2022, the Defendants filed a motion to dismiss all
counts of Plaintiff's complaint.
Amazon is a subsidiary of Amazon that provides on-demand cloud
computing platforms and APIs to individuals, companies, and
governments, on a metered, pay-as-you-go basis.
A copy of the Court's order dated Sept. 29, 2023, is available from
PacerMonitor.com at https://bit.ly/3PH1tKl at no extra charge.[CC]
AMAZON.COM INC: Completion of Discovery Extended to Nov. 22
-----------------------------------------------------------
In the class action lawsuit captioned as Won v. Amazon.com, Inc. et
al., Case No. 1:21-cv-02867 (E.D.N.Y., Filed May 20, 2021), the
Hon. Judge Nicholas G. Garaufis entered an order extending to
November 22, 2023, the time to complete discovery in the individual
action and class certification.
-- Motion for Class Certification to Dec. 21, 2023
be served on or before:
-- If Defendant decides not to produce Jan. 22, 2024
an expert report in opposing
Plaintiffs motion for class
certification, Defendant's
opposition will be served on or
before:
-- The Plaintiff's reply will be Feb. 21, 2024
served, and the fully-briefed
motion filed, on or before:
-- If Defendant decides to produce Feb. 21, 2024
an expert report in opposing
Plaintiffs motion for class
certification, Defendants
opposition and expert report
will be served on or before:
The suit alleges violation Civil Rights related laws.
Amazon.com is an American multinational technology company focusing
on e-commerce, cloud computing, online advertising, digital
streaming, and artificial intelligence.[CC]
AMERICAN COASTAL: Rosen Law Firm Investigates Securities Claims
---------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Sept. 24
announced that it is investigating potential securities claims on
behalf of shareholders of American Coastal Insurance Corporation
(NASDAQ: ACIC) resulting from allegations that American Coastal may
have issued materially misleading business information to the
investing public.
SO WHAT: If you purchased American Coastal securities you may be
entitled to compensation without payment of any out of pocket fees
or costs through a contingency fee arrangement. The Rosen Law Firm
is preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=19156 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On August 21, 2023, American Coastal issued a
press release stating that it "has identified certain errors
related to the reporting of discontinued operations for the
previously issued unaudited condensed consolidated financial
statements for the three months ended March 31, 2023, which errors
had the effect of understating the net income for the three months
ended March 31, 2023 by approximately $6.4 million. These errors
were discovered in the course of preparing [American Coastal's]
interim financial statements for the fiscal quarter ended June 30,
2023, and included errors in [American Coastal's] accounting for
income tax expense primarily relating to the deconsolidation of
[American Coastal's] former subsidiary, United Property & Casualty
Insurance Company." Accordingly, American Coastal determined that
the statements at issue should no longer be relied upon.
On this news, American Coastal's stock price fell $0.38 per share,
or 5%, to close at $7.22 per share on August 22, 2023.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
ARCHER AVIATION: Bids for Lead Plaintiff Appointment Due Nov. 20
----------------------------------------------------------------
Bernstein Liebhard LLP on Sept. 25 announced that a securities
class action lawsuit has been filed on behalf of investors who
purchased or acquired the securities of Archer Aviation, Inc.
("Archer" or the "Company") (NYSE: ACHR) between September 17, 2021
and August 15, 2023, inclusive (the "Class Period"). The lawsuit
was filed in the United States District Court for the Northern
District of California and alleges violations of the Securities
Exchange Act of 1934 against the Company and certain of its
officers (the "Complaint").
If you purchased or acquired Archer Aviation securities, and/or
would like to discuss your legal rights and options please visit
Archer Aviation, Inc. Shareholder Class Action Lawsuit or contact
Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com.
According to the Complaint, Archer purports to design and develop
electric vertical takeoff and landing ("eVTOL") aircraft for use in
urban air mobility ("UAM") networks. Since its inception, Archer
has consistently touted the efficacy of its eVTOL aircraft design
and flight testing procedures, the profitability of its business
partnerships, and its ability to secure from the Federal Aviation
Administration ("FAA") the necessary regulatory certification for
the mass production of aircraft for commercial use.
Plaintiff alleges that Defendants made materially false and
misleading statements throughout the Class Period, including
failing to disclose to investors that Archer: (i) relied on heavily
edited videos of earlier flights to exaggerate the amount of flight
testing it had performed and the sophistication of its eVTOL
aircraft; (ii) had misrepresented the nature and profitability of
its business partnerships, (iii) was unlikely to secure FAA
certification in the timeframe it had represented to investors.
On August 16, 2023, before the market opened, Grizzly Research
released a report on Archer (the "Report"). The Report alleged,
among other things, that Archer relies on heavily edited videos of
earlier flights to misrepresent the amount of flight testing the
Company has actually performed and the sophistication of Archer's
eVTOL aircraft. The Report also alleged that investigators who had
spoken to former Archer employees and businesses in close proximity
to its flight-testing facilities who witness its flights, confirmed
that Archer conducts far fewer flights than the Company has
claimed. Finally, the Report alleged that Archer misrepresented the
timelines for its lab and manufacturing facility in San Jose,
California, becoming operational, and securing FAA certification of
its prototype aircraft.
On this news, Archer's stock price fell $0.41 per share, or 6.46%,
to close at $5.94 per share on August 16, 2023.
If you wish to serve as lead plaintiff, you must move the Court no
later than November 20, 2023. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased or acquired Archer securities, and/or would like
to discuss your legal rights and options please visit Archer
Aviation, Inc. Shareholder Class Action Lawsuit or contact Peter
Allocco at (212) 951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for sixteen consecutive
years.
Contact Information:
Peter Allocco, Esq.
BERNSTEIN LIEBHARD LLP
https://www.bernlieb.com
Telephone: (212) 951-2030
pallocco@bernlieb.com [GN]
ARDELYX INC: Consolidated Securities Suit Over "Tenapanor" Ongoing
------------------------------------------------------------------
Ardelyx, Inc. disclosed in its Form 10-Q for the quarterly period
ended June 30, 2023, filed with the Securities and Exchange
Commission on August 2, 2023, that it is facing a consolidated
securities suit alleging violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, as amended, and Rule 10b-5
thereunder, by making false and misleading statements and omissions
of material fact related to the irritable bowel syndrome with
constipation drug, "tenapanor."
The plaintiffs seek damages and interest, and an award of costs,
including attorneys' fees.
On August 12, 2021, a putative securities class action lawsuits
were commenced in the U.S. District Court for the Northern District
of California naming as defendants Ardelyx and two current officers
captioned "Siegel v. Ardelyx, Inc., et al.," Case No.
5:21-cv-06228-HSG.
On July 19, 2022, the court consolidated this and appointed a lead
plaintiff and lead counsel. The lead plaintiff filed an amended
complaint on September 29, 2022. Defendants filed a motion to
dismiss the amended complaint on December 2, 2022. In January and
February 2023, in lieu of filing a response to defendant's motion
to dismiss, plaintiffs filed a motion seeking leave to further
amend their complaint and defendants filed an opposition to the
motion for leave to further amend the complaint.
On April 6, 2023, the court granted plaintiff's motion for leave to
further amend the complaint. With the second amended complaint, the
plaintiffs seek to represent all persons who purchased or otherwise
acquired Ardelyx securities between March 6, 2020 and July 19,
2021. Defendants filed a motion to dismiss the amended complaint on
June 2, 2023, with a hearing on the motion to dismiss was held on
September 14, 2023.
Ardelyx, Inc. is a biopharmaceutical company into the discovery of
new biological mechanisms and pathways to develop potent and
efficacious therapies that minimize the side effects and drug-drug
interactions frequently encountered with traditional, systemically
absorbed medicines.
ASPYR MEDIA: Sued Over Video Game's Cancelled Restored Content DLC
------------------------------------------------------------------
Rhiannon Bevan, writing for The Gamer, reports that Star Wars:
Knights of the Old Republic 2 - The Sith Lords was ported to Switch
last year, breathing new life into the often-overlooked sequel.
Better yet, the announcement trailer stated that the Restored
Content Mod would be available as DLC, which as many fans will tell
you, is the best way to experience the classic RPG. However, amid
trouble behind the scenes, the DLC was later cancelled, leaving
KOTOR 2 just as unfinished as it is on other platforms.
Now, fans are mobilising, launching a class action lawsuit against
developer Aspyr Media and publisher Saber Interactive. The suit is
said to involve multiple fans who purchased KOTOR 2 on Switch,
arguing that they would not have done so if not for the promised
DLC. The suit argues that Aspyr and Saber are legally obligated to
provide refunds, as some buyers say they never even played the game
because they were waiting for the restored content.
The case, Malachi Mickelonis v. Aspyr Media, Inc. et al, can be
viewed online, showing that it was filed in July of this year. The
fans and their lawyer, Ray Kim, demand a jury trial, and the
defendants have until October 4 to respond.
"In 2022, Defendants [Aspyr and Saber] advertised KOTOR to users of
the video console Nintendo Switch as having never-before released
'Restored Content DLC,'" reads the lawsuit. "Plaintiff and numerous
other consumers were excited about the new content that Defendants
claimed was 'coming soon.' In fact, KOTOR sat at the top of
Nintendo's e-Shop rankings."
But of course, the DLC was later cancelled on June 2, a few days
after we reported that all references to the restored content had
been quietly removed from the announcement trailer.
"Plaintiff felt completely duped," the lawsuit continues. "In fact,
Plaintiff did not even play KOTOR after purchasing it, instead
choosing to wait until the Restored Content DLC was released."
This isn't too hard to believe. The general consensus in the
fanbase is that you should only play with the restored content mod
installed, even if it's your first playthrough. Far from being
material that the original developer, Obsidian, felt didn't fit the
game, much of it was only removed due to time constraints.
Still, there are a few things getting in the way of the plaintiffs
being successful here. For starters, games and in-game content are
often cancelled -- an unfortunate reality of the industry.
Furthermore, even if refunds weren't granted, Aspyr did offer
affected fans a copy of KOTOR 2 on Steam -- where the mod can be
played for free -- or another Star Wars game altogether. It remains
to be seen if these fans can argue that this didn't go far enough,
and that an exception to the usual refund procedures should have
been granted. [GN]
BANK OF AMERICA: Powe Files Suit in W.D. North Carolina
-------------------------------------------------------
A class action lawsuit has been filed against Bank of America NA,
et al. The case is styled as Chad Powe, Individually and on behalf
of all other persons similarly situated v. Bank of America NA, Bank
of America Corporation, Case No. 3:23-cv-00600-RJC-DCK (W.D.N.C.,
Sept. 21, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
The Bank of America Corporation -- http://www.bankofamerica.com/--
is an American multinational investment bank and financial services
holding company headquartered at the Bank of America Corporate
Center in Charlotte, North Carolina.[BN]
The Plaintiff is represented by:
Joel R. Rhine, Esq.
RHINE LAW FIRM, PC
1612 Military Cutoff Rd, Suite 300
Wilmington, NC 28403
Phone: (910) 772-9960
Fax: (910) 772-9062
Email: jrr@rhinelawfirm.com
BEAN N BEAN: Durantas Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Bean N Bean Corp. The
case is styled as Hakan Durantas, on behalf of himself and all
others similarly situated v. Bean N Bean Corp., Case No.
1:23-cv-06982 (E.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bean & Bean Coffee -- https://beannbeancoffee.com/ -- is a
specialty coffee roasting company with four retail locations,
including a roastery in Queens New York, and an online shop.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
BIENVILLE ORTHOPAEDIC: McCoy Files Suit in S.D. Mississippi
-----------------------------------------------------------
A class action lawsuit has been filed against Bienville Orthopaedic
Specialists, LLC. The case is styled as Bradley McCoy, Nancy McCoy,
on behalf of themselves and all others similarly situated v.
Bienville Orthopaedic Specialists, LLC, Case No.
1:23-cv-00243-HSO-RPM (S.D. Miss., Sept. 22, 2023).
The nature of suit is stated as Other P.I. for Account Receivable.
Bienville Orthopaedic Specialists LLC --
https://www.bienvilleortho.com/ -- is the largest provider of
orthopaedic care on the Mississippi Gulf Coast.[BN]
The Plaintiff is represented by:
Jonathan Matthew Eichelberger, Esq.
EICHELBERGER LAW FIRM, PLLC
308 E. Pearl St., Suite 201
Jackson, MS 39201
Phone: (601) 292-7940
Fax: (601) 510-9103
Email: matt@ike-law.com
BIOPLUS SPECIALTY: Ruling on Approval of Gilbert Accord Deferred
----------------------------------------------------------------
U.S. Magistrate Judge Daniel C. Irick of the U.S. District Court
for the Middle District of Florida, Orlando Division, defers ruling
on the Plaintiff's Unopposed Motion for Preliminary Approval of
Class Action Settlement in the lawsuit styled BONNIE GILBERT, DAVID
GATZ, WENDY BRYAN, LORI GRADER, DARYL SWANSON, PATRICIA WHITE,
ALICIA DUNN, CRYSTAL HULLETT and STEPHEN GABBARD, Plaintiffs v.
BIOPLUS SPECIALTY PHARMACY SERVICES, LLC, Defendant, Case No.
6:21-cv-2158-RBD-DCI (M.D. Fla.).
In the operative Complaint, the named Plaintiffs bring various
claims, including a claim under the Florida Deceptive and Unfair
Trade Practices Act (FDUTPA), individually and on behalf of those
similarly situated. The named Plaintiffs allege that the
Defendant, a national specialty pharmacy, failed to adequately
protect sensitive information, including names, dates of birth,
addresses, and social security numbers.
The named Plaintiffs claim that the Defendant experienced a data
incident between Oct. 25, 2021, and Nov. 11, 2021, during which an
unauthorized third party gained access to its network (the Data
Incident).
The parties litigated the case for approximately two years, engaged
in discovery, filed dispositive motions, and eventually reached
settlement.
As such, the parties filed a Joint Notice of Settlement, and the
Court administratively closed the case and directed the parties to
file a motion for preliminary approval of proposed class
settlement. Pending before the Court is the Plaintiffs' Unopposed
Motion for Preliminary Approval of Class Settlement (the Motion).
The named Plaintiffs make an unopposed request for the Court to:
(1) certify the settlement class pursuant to Federal Rule of Civil
Procedure 23(b)(3); (2) preliminarily approve the settlement; (3)
appoint the proposed class representatives, class counsel, and
settlement administrator; (4) approve the notice plan; and (5)
approve a schedule leading up to a final approval hearing.
The Plaintiffs propose the following "Settlement Class":
all persons who were notified that their information may
have been impacted in the Data Incident. The Settlement
Class specifically excludes: (i) BioPlus and its respective
officers and directors; (ii) all Settlement Class Members
who timely and validly request exclusion from the Settlement
Class; (iii) the Judge and/or magistrate assigned to
evaluate the fairness of this settlement; and (iv) any other
Person found by a court of competent jurisdiction to be
guilty under criminal law of initiating, causing, aiding, or
abetting the Data Incident or who pleads nolo contender to
any such charge.
While the Settlement Agreement defines "Settlement Class" in this
regard, the named Plaintiffs further divide the class into two
groups. The Plaintiffs do not call the groups "sub-classes" but in
essence the Settlement Agreement provides for two categories of
individuals who are treated differently. The Plaintiffs identify
the first group as "Claims-Made Settlement Class Members" or
"Non-SSN Class Members" who include:
approximately 218,750 Settlement Class Members who were
notified that their information may have been impacted in
the Data Incident, and whose Social Security numbers were
not impacted in the Data Incident. The Claims-Made
Settlement Class Members are eligible to submit a claim
under the Claims-Made Benefits.
The named Plaintiffs explain that through this reversionary fund,
the Defendant will pay approved fees, costs, and expenses, and from
the remaining fund, the Non-SSN Settlement Class Members are
permitted to claim (1) compensation of $25 per hour for up to two
hours of time spent dealing with issues related to the Data
Incident and (2) reimbursement of documented out of pocket expenses
or losses up to $750. Following the payment of attorneys' fees and
expenses, settlement administration expenses, and claims made by
Non-SSN Class Members, any funds remaining under the $1,175,000 cap
will revert to the Defendant.
The named Plaintiffs then identify the second group as "Common-Fund
Settlement Class Members" or "SSN Class Members" who include:
approximately 130,438 Settlement Class Members who were
notified of the Data Incident and who were notified that
their Social Security numbers may have been impacted in the
Data Incident. Common-Fund Settlement Class Members are
eligible to submit a claim under the Common Fund.
The "Common Fund" or "SSN Settlement Fund" is defined as "a
non-reversionary common fund to be funded by BioPlus in the amount
of $1,025,000." The Plaintiffs explain that the Defendant has
agreed to create this non-reversionary fund and SSN Class Members
will be able to claim (1) compensation of $25 per hour for up to
three hours of time spent dealing with issues related to the Data
Incident; (2) reimbursement of documented out of pocket expenses or
losses up to $7,500; and (3) a pro rata distribution of funds
remaining fund.
The Court does not reach the issue of preliminary settlement
approval because there are deficiencies with the named Plaintiffs'
request for certification of class for the purpose of settlement.
Even though the Motion is unopposed, the Court must still find that
the named Plaintiffs have standing.
Here, Judge Irick finds that the Plaintiffs have not established
standing because they have not addressed it. The failure to discuss
standing is problematic because the class includes all persons
notified that their information may have been impacted in the Data
Incident. The Court does not conclude that a potential impact from
a security breach is not an injury in fact, but the Court will make
no assumptions.
In sum, Judge Irick opines, since the named Plaintiffs do not
mention standing, there is no legal basis to support such a finding
and the Court requires supplemental briefing.
Turning to Rule 23(a) of the Federal Rules of Civil Procedure, the
Court finds that the named Plaintiffs did not adequately discuss
typicality or adequacy of representation. As an initial matter,
with respect to typicality, the named Plaintiffs' conclusory
statement that the claims are typical of other class members
"because they are based on the same legal theories and underlying
events" does not help the Court in determining if relief is
warranted.
Judge Irick points out that the named Plaintiffs have the burden to
show that the claims are typical of the claims of the settlement
class and their say so without an analysis is insufficient.
Further, the Court has concerns regarding the existence of
typicality for the same reason it questions standing.
Again, the Plaintiffs draw a distinction between class members with
respect to the type of claim for payment and entitlement to
reimbursement; the pro rata distribution of funds; the reversionary
nature of the applicable fund; the nature of the notice; and the
prospect of a reduction of an award for fees, costs, and expenses.
The Court is unsure if there is a sufficient nexus between the
named Plaintiffs' claims or defenses because there is no discussion
regarding the group the named Plaintiffs fall into under the
Settlement Agreement.
To be clear, Judge Irick explains, even if all named Plaintiffs are
in the SSN Class Member group it may be that their claims and
defenses are still typical of the Non-SSN Class Members or vice
versa, but the named Plaintiffs need to address that issue. In
other words, the distinction between the class members may be
entirely permissible and a non-event for typicality purposes, but
the named Plaintiffs' failure to provide any analysis on typicality
in general leaves the Court guessing.
Likewise, the Court requires additional clarification on the
adequacy of representation. Rule 23(a)(4) requires that the
representative parties fairly and adequately protect the interests
of the class.
Judge Irick notes that the named Plaintiffs provide authority on
the adequacy requirement, but their entire analysis is that they
Plaintiffs have no conflicts with the Settlement Class and have
actively participated in this case despite not receiving any
special treatment. That paragraph sheds no further light on this
blanket assertion, and without more it is not clear if potential
conflicts exist between the named Plaintiffs and other putative
class members especially in light of the distinction between the
SSN and Non-SSA Class Members, Judge Irick opines.
As with Article III standing and typicality under Rule 23(a), Judge
Irick says the named Plaintiffs must clarify how they can
adequately represent all class members with no substantial
conflict. The Court does not imply that the named Plaintiffs
cannot, but they must adequately address the issue.
Based on the foregoing, Judge Irick holds that ruling on the Motion
is deferred. The named Plaintiffs' deadline to file a supplemental
brief of no more than ten pages to address the deficiencies
identified in this Order was on Sept. 29, 2023, or they must
withdraw the Motion and file a revised motion for the requested
relief.
The failure to comply with this Order within the allotted time may
result in a recommendation that the Motion be denied.
A full-text copy of the Court's Order dated Sept. 14, 2023, is
available at https://tinyurl.com/cxbp9tz8 from PacerMonitor.com.
BLUELINE TEAM: Starling Sues Over Unsolicited Telemarketing Calls
-----------------------------------------------------------------
R'kes Starling, on behalf of himself and all others similarly
situated v. BLUELINE TEAM, INC., Case No. 1:23-cv-08377 (S.D.N.Y.,
Sept. 21, 2023), is brought arising out of Defendant's practice of
making unsolicited prerecorded telemarketing calls without prior
express written consent (or any consent whatsoever), in violation
of the Telephone Consumer Protection Act ("TCPA") and the Texas
Business & Commerce Code.
The Defendant, or someone acting on its behalf and at its
direction, makes prerecorded telemarketing calls marketing its
financial products. Because each of these calls were advertising
Defendant's products and/or services, they constitute telemarketing
and telephone solicitations. The Plaintiff has done no business
with Defendant and has never provided Defendant prior express
written consent to call his telephone with prerecorded messages.
Accordingly, Plaintiff brings this TCPA action on behalf of himself
and two classes of similarly situated individuals, says the
complaint.
The Plaintiff Starling received Defendant's prerecorded telephone
calls.
The Defendant is a corporation organized and existing under the
laws of New York.[BN]
The Plaintiff is represented by:
Javier L. Merino, Esq.
THE DANN LAW FIRM
1520 U.S. Highway 130, Suite 101
North Brunswick, NJ 08902
Phone: (201) 355-3440
Fax: (216) 373-0536
Email: notices@dannlaw.com
- and -
Eric H. Weitz, Esq.
Max S. Morgan, Esq.
THE WEITZ FIRM, LLC
1515 Market Street, #1100
Philadelphia, PA 19102
Phone: (267) 587-6240
Fax: (215) 689-0875
Email: eric.weitz@theweitzfirm.com
max.morgan@theweitzfirm.com
BLUGLACIER LLC: Hernandez Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against BluGlacier, LLC. The
case is styled as Marlelis Hernandez, individually, and on behalf
of all others similarly situated v. BluGlacier, LLC, Case No.
1:23-cv-08414 (S.D.N.Y., Sept. 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
BluGlacier -- https://bluglacier.com/ -- is a sustainable salmon
producers helps in upgrading the lives of individuals and the
general well-being of the planet.[BN]
The Plaintiff is represented by:
Ian Piasecki, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (347) 745-0445
Email: ipiasecki@mizrahikroub.com
BLUM'S CORSET SHOP: Erkan Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Blum's Corset Shop of
Patchogue, Inc. The case is styled as Nihal Erkan, on behalf of
herself and all others similarly situated v. Blum's Corset Shop of
Patchogue, Inc., Case No. 1:23-cv-06975 (E.D.N.Y., Sept. 21,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Blum's Swimwear & Intimates -- https://www.shopblums.com/ -- offers
a wide selection of swimsuit apparel and lingerie from popular
brands.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
BRADFORD EXCHANGE: Whiteman Suit Removed to S.D. Florida
--------------------------------------------------------
The case styled as Alan Whiteman, on behalf of himself and all
others similarly situated v. The Bradford Exchange, LTD., JetBlue
Airways Corporation, Case No. CACE-22-003979 was removed from the
Superior Court, San Diego County, to the U.S. District Court for
the Southern District of Florida on Sept. 22, 2023.
The District Court Clerk assigned Case No. 0:23-cv-61826-WPD to the
proceeding.
The nature of suit is stated as Other Fraud.
The Bradford Exchange -- http://www.bradfordexchange.com/-- is an
American producer and seller of collectible goods, jewelry, sports
memorabilia and apparel.[BN]
The Plaintiff appears pro se.
Alec Huff Schultz, Esq.
HILGERS GRABEN PLLC
1221 Brickell Avenue, Suite 900
Miami, FL 33131
Phone: (305) 630-8304
Email: aschultz@hilgersgraben.com
- and -
William M. Burgess, Esq.
HILGERS GRABEN PLLC
1201 Peachtree Street N.E., Suite 100
Atlanta, GA 30361
Phone: (404) 595-7747
The Defendant is represented by:
Denise Brody Crockett, Esq.
Lazaro Fernandez, Jr., Esq.
STACK FERNANDEZ & HARRIS, P.A.
1001 Brickell Bay Drive, Suite 2650
Miami, FL 33131
Phone: (305) 371-0001
Fax: (305) 371-0002
Email: dcrockett@stackfernandez.com
lfernandez@stackfernandez.com
- and -
Gayle I. Jenkins, Esq.
WINSTON & STRAWN, LLP
333 S. Grand Avenue, 38th floor
Los Angeles, CA 90071
Phone: (213) 615-1863
Email: gjenkins@winston.com
BRADY MARTZ: Kiesow Files Suit in D. North Dakota
-------------------------------------------------
A class action lawsuit has been filed against Brady Martz &
Associates, P.C. The case is styled as Alec R. Kiesow, individually
and on behalf of all others similarly situated v. Brady Martz &
Associates, P.C., Case No. 3:23-cv-00184-ARS (D.N.C., Sept. 22,
2023).
The nature of suit is stated as Other P.I. for Account Receivable.
Brady, Martz & Associates, P.C. -- https://www.bradymartz.com/ --
is an accounting firm based in North Dakota.[BN]
The Plaintiff is represented by:
Bryan L. Bleichner, Esq.
CHESTNUT CAMBRONNE PA
100 Washington Avenue South, Suite 1700
Minneapolis, MN 55401
Phone: (612) 339-7300
Fax: (612) 336-2940
Email: bbleichner@chestnutcambronne.com
BREAD FINANCIAL: Faces Childs Suit Over Alleged TCPA Violations
---------------------------------------------------------------
CLAYTON CHILDS, on behalf of himself and others similarly situated,
Plaintiff v. BREAD FINANCIAL PAYMENTS, INC., Defendant, Case No.
2:23-cv-03046-EAS-EPD (S.D. Ohio, Sept. 22, 2023) alleges claims
against the Defendant for violations of the Telephone Consumer
Protection Act.
Plaintiff Childs asserts that the Defendant violated the TCPA by
using an artificial or prerecorded voice in connection with
non-emergency calls it places to telephone numbers assigned to a
cellular telephone service, without prior express consent.
Headquartered in Ohio, Bread Financial offers
personalized payment, lending and saving solutions. [BN]
The Plaintiff is represented by:
Brian T. Giles, Esq.
GILES & HARPER, LLC
7247 Beechmont Ave.
Cincinnati, OH 45230
Telephone: (513) 379-2715
E-mail: bgiles@gilesharper.com
- and -
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (617) 485-0018
Facsimile: (508) 318-8100
E-mail: anthony@paronichlaw.com
- and -
Aaron D. Radbil, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: (561) 826-5477
E-mail: aradbil@gdrlawfirm.com
BURGER KING: Defends Whopper False Advertising Class Action
-----------------------------------------------------------
Danielle Wiener-Bronner, writing for CNN, reports that when it
comes to food advertising, what you see is rarely what you get. A
flurry of recent lawsuits wants to change that.
Over the past few years, lawyers have been bringing class action
suits against fast food companies, alleging that they're
misrepresenting food in their marketing.
Lawyers James Kelly and Anthony Russo, in particular, have been
leading the charge, bringing cases against Taco Bell, Wendy's,
McDonald's, Burger King and Arby's. These companies use ads that
don't match up with their actual food, the suits allege.
As evidence, the complaints feature images of food marketing
alongside shots of their real-life counterparts. In the ads,
burgers look tall, heaped with meat and cheese, topped with golden,
rounded buns. But in the photos of burgers bought from a real fast
food location, they're flat, with meat and cheese barely peeking
out of limp, white buns. Tacos are no different: In Taco Bell's
ads, Crunchwraps look hearty and plump. In photos in the lawsuit,
they look flat and nearly empty. The suits are ongoing.
"We saw a record number of food litigation lawsuits filed from 2020
to 2023, with hundreds of new suits every year," said Tommy Tobin,
a lawyer at Perkins Coie and Lecturer at UCLA Law, adding that
"food litigation is a fast-growing area of law."
The explosion has been largely driven by the efforts of a handful
of lawyers, including Russo and Kelly, said Bonnie Patten,
executive director of Truth in Advertising, a nonprofit
organization that focuses on protecting consumers from false
advertising.
Their cases focus on quantity, she said, essentially arguing that
food in ads appears more bountiful than what customers actually
get. Other lawyers, like Spencer Sheehan, focus on how food is
described. Sheehan, a New York lawyer, has filed hundreds of class
action suits focusing on misleading words on packaged foods -- like
use of the word "vanilla" on foods made with little or no actual
vanilla.
Major chains have also been targeted for how they describe food.
Last year a class action suit was brought against Starbucks
claiming that the chain is misleading buyers of its "Refreshers"
beverages by naming them for ingredients they don't have. The
complaint states that, for example, "the Mango Dragonfruit and
Mango Dragonfruit Lemonade Refreshers contain no mango," and that
in fact "all of the products are predominantly made with water,
grape juice concentrate, and sugar." Starbucks argued, among other
things, that the fruits mentioned indicate a flavor rather than an
ingredient.
"The allegations in the complaint are inaccurate and without
merit," a Starbucks spokesperson said in a statement, adding, "we
look forward to defending ourselves against these claims."
For a judge or jury to side with the plaintiffs in false
advertising claims, lawyers have to successfully make the case that
the ads would trick a "reasonable consumer," Tobin, explained.
"Under this standard, a court asks whether a reasonable consumer
would be misled by the product's marketing or labeling," he said.
The courts will have to draw the line between false advertising and
just, well, advertising -- which might be trickier than it sounds.
What is a reasonable consumer?
Burger King, in a bid to dismiss the lawsuit against it, argued
that its ads are fair.
"Reasonable consumers viewing food advertising know" that food in
ads "has been styled to make it look as appetizing as possible,"
Burger King argued in a recent filing. That "innate" knowledge,
plus the fact that a Whopper patty is always made with a quarter
pound of beef, as promised, means that the ads are fine, according
to Burger King.
"The plaintiffs' claims are false," a Burger King spokesperson said
in a statement about the lawsuit. "The flame-grilled beef patties
portrayed in our advertising are the same patties used in the
millions of Whopper sandwiches we serve to guests nationwide."
Arby's, McDonald's, and Taco Bell did not respond to requests for
comment. Wendy's declined to comment, citing the ongoing
litigation.
For Russo, that argument doesn't cut it. He's more concerned with
what he calls the "common-sense eyeball test." The fast food chains
targeted in his suit, he said, are failing.
"If you look at what their advertisements are showing, and you look
at what on a regular basis, every consumer is getting . . .
[there's] a glaring disparity," he said. "You could talk about
weight … you could talk about volume, those are all the things
the experts get into," he said. But if the image is drastically
different from the product, he argues, those details don't matter.
In the Burger King case, a judge recently agreed to punt the
question of what is "reasonable" to a jury, refusing to dismiss the
case in full as Burger King requested.
Starbucks will also have to face many of the claims brought against
it in the class action. "Plaintiffs have adequately alleged that a
significant portion of the general consuming public could be misled
by the names of the at-issue beverages," a recent order states.
What you see is not what you get
For Patten, a reasonable consumer is an "average consumer." The
legal system, she said, often expect more from a reasonable
consumer than she would from an average one.
"Trial courts tend to have a very high opinion of who the
reasonable consumer is," she said. "And I think as a result of
that, will dismiss a lot of these types of class actions, taking
the position that the reasonable consumer of course knows that this
type of advertising exaggerates the quality and quantity of food."
But Patten has heard from many complaining about this specific
discrepancy, between how much food they expect due to advertising,
and how much food they actually get.
"We get it for burgers, we've gotten it for buckets of chicken, all
sorts of different kinds of fast food," she said.
When it comes to allegations of false advertising, there are more
egregious questions than whether a taco on the screen matches a
taco in the hand. And Patten's not convinced that class actions are
the way to go -- if they're not dismissed, they often get settled,
offering the defendant certain protections and giving consumers a
small sum of cash, while their lawyers walk away with a larger
bundle.
But with people watching their budgets, it's worth examining
whether customers are getting as much food as they expect from
major fast food chains.
When people are "using their limited resources to purchase this,
and then they're not being provided with the quantity of food
they're expecting -- that is an issue, no doubt."
The suits, and the attention they've received, can help inform the
public of what to really expect, Patten said.
They "can help educate consumers and make more savvy purchasers of
their dinners," she said. "The best defense against deceptive
marketing is an educated consumer." [GN]
CAESARS ENTERTAINMENT: Garcia Files Suit in D. Nevada
-----------------------------------------------------
A class action lawsuit has been filed against Caesars Entertainment
Inc. The case is styled as Paul Garcia, individually and on behalf
of all others similarly situated v. Caesars Entertainment Inc.,
Case No. 2:23-cv-01482-CDS-EJY (S.D.N.Y., Sept. 21, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
Caesars Entertainment, Inc. -- https://www.caesars.com/corporate --
formerly Eldorado Resorts, Inc., is an American hotel and casino
entertainment company founded and based in Reno, Nevada that
operates more than 50 properties.[BN]
The Plaintiff is represented by:
William Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: wdownes@mizrahikroub.com
CAL CARTAGE: Muniz Suit Removed to C.D. California
--------------------------------------------------
The case captioned as Jose A. Muniz, individually, and on behalf of
all others similarly situated v. CAL CARTAGE WAREHOUSING &
TRANSLOADING LLC, a limited liability company; NATIONAL FREIGHT,
INC., a corporation; NATIONAL DISTRIBUTION CENTERS, LLC, a limited
liability company; NFI CALIFORNIA CARTAGE HOLDING COMPANY, LLC, a
limited liability company; and DOES 1 through 10, inclusive, Case
No. 23STCV19668 was removed from the Superior Court of the State of
California for the County of Los Angeles, to the United States
District Court for the Central District of California on Sept. 22,
2023, and assigned Case No. 2:23-cv-07956.
The Complaint asserts the following eight causes of action: Failure
to Provide Meal Periods; Failure to Provide Rest Breaks; Failure to
Pay Overtime Wages; Failure to Pay Timely Wages; Failure to Pay All
Wages Due to Discharged and Quitting Employees; Failure to Maintain
Required Records; Failure to Furnish Accurate Itemized Statements;
and Unfair and Unlawful Business Practices.[BN]
The Defendants are represented by:
Allison S. Wallin, Esq.
LITTLER MENDELSON P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067.3107
Phone: 310.553.0308
Fax: 800.715.1330
Email: awallin@littler.com
- and -
Alvin Arceo, Esq.
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Phone: 415.433.1940
Fax: 415.399.8490
Email: aarceo@littler.com
CARESOURCE: Fails to Protect Personal Info, Higham Suit Claims
--------------------------------------------------------------
TODD HIGHAM, on behalf of minor child A.H., individually and on
behalf of all others similarly situated, Plaintiff v. CARESOURCE,
Defendant, Case No. 3:23-cv-00276-TMR-PBS (S.D. Ohio, Sept. 22,
2023) alleges claims against the Defendant for negligence,
negligence per se, unjust enrichment, breach of implied contract,
and for violations of the Health Insurance Portability and
Accountability Act, the Health Information Technology for Economic
and Clinical Health Act, and the Federal Trade Commission Act.
The Plaintiff seeks to hold CareSource responsible for the injuries
CareSource inflicted on Plaintiff and approximately 3,180,537
similarly situated persons due to CareSource's impermissibly
inadequate data security, which caused the personal information of
Plaintiff and those similarly situated to be exfiltrated by
unauthorized access by cybercriminals on or about May 31, 2023.
Through this action, Plaintiff seeks to remedy these injuries on
behalf of themselves and all similarly situated individuals whose
PII and PHI were exfiltrated and compromised in the data breach.
Plaintiff seeks remedies including, but not limited to,
compensatory damages, treble damages, punitive damages,
reimbursement of out-of-pocket costs, and injunctive relief --
including improvements to CareSource's data security systems,
future annual audits, and adequate credit monitoring services
funded by CareSource.
Headquartered in Dayton, Ohio, CareSource provides public health
care programs including Medicaid, Medicare, and Marketplace. It is
the largest Medicaid plan in Ohio and is second largest in the
United States. [BN]
The Plaintiff is represented by:
Jesse A. Shore, Esq.
MORGAN & MORGAN
300 Madison Ave. Suite 200
Covington, KY 41011
Telephone: (859) 899-8786
Facsimile: (859) 899-8807
- and -
John A. Yanchunis, Esq.
Ra O. Amen, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 North Franklin Street 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
E-mail: jyanchunis@forthepeople.com
ramen@forthepeople.com
CASE WESTERN: Deadline Extension to File Opposition Briefs Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as DANIEL LOZADA,
individually and on behalf of all others similarly situated, v.
CASE WESTERN RESERVE UNIV., Case No. 1:20-cv-02336-DAR (N.D. Ohio),
the Parties seek a 21-day extension of the deadline for Opposition
and Reply briefs for Summary Judgment and Class Certification:
Existing Date Requested Date
Opposition Briefs: Oct. 6, 2023 Oct. 27, 2023
Reply Briefs: Oct. 20, 2023 Nov. 10, 2023
Case Western is a private research university in Cleveland, Ohio.
A copy of the Parties' motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/46vbIbB at no extra
charge.[CC]
The Plaintiff is represented by:
Jeffrey S. Goldenberg, Esq.
GOLDENBERG SCHNEIDER, LPA
4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45242
Telephone: (513) 345-8291
Facsimile: (513) 345-8294
E-mail: jgoldenberg@gs-legal.com
- and -
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
Brett R. Cohen, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
E-mail: jbrown@leedsbrownlaw.com
mtompkins@leedsbrownlaw.com
bcohen@leedsbrownlaw.com
The Defendant is represented by:
Carole S. Rendon, Esq.
Karl Fanter, Esq.
Douglas Shively, Esq.
Elliot Nash, Esq.
BAKER & HOSTETLER LLP
Key Tower 127 Public Square, Suite 2000
Cleveland, OH 44114
Telephone: (216) 621-0200
Facsimile: (216) 696-0740
E-mail: crendon@bakerlaw.com
kfanter@bakerlaw.com
dshively@bakerlaw.com
enash@bakerlaw.com
CENTERVILLE CLINICS: Doe Suit Remanded to Pennsylvania State Court
------------------------------------------------------------------
In the lawsuit styled JANE DOE, individually and on behalf of all
others similarly situated, Plaintiff v. CENTERVILLE CLINICS INC.,
Defendant, Case No. 2:23-cv-01107-NR (W.D. Pa.), Judge J. Nicholas
Ranjan of the U.S. District Court for the Western District of
Pennsylvania grants the Plaintiff's motion to remand and remands
the lawsuit to the Court of Common Pleas of Washington County for
further proceedings.
Defendant Centerville Clinics is a nonprofit healthcare system that
provides medical services to around 40,000 patients in
Pennsylvania. In providing those services, Centerville encouraged
patients to use certain "online platforms" to, among other things,
find providers, schedule appointments, book procedures, communicate
with their doctors, and review their medical histories.
Plaintiff Jane Doe brings this class action against Centerville
alleging it installed software on its platforms that shared users'
private data with third parties, including medical treatment
sought, medical conditions, appointment type and date, physician
selected, specific button/menu selections, content (such as
searches for symptoms or treatment options) typed into free text
boxes, demographic information, email addresses, phone numbers, and
emergency contact information.
The Plaintiff alleges that these disclosures breached standards
under the Health Insurance Portability and Accountability Act of
1996 (HIPAA), industry standards, and the purported class members'
expectations of privacy. She brought claims in state court for
common law Intrusion Upon Seclusion, Breach of Implied Contract,
Unjust Enrichment, Breach of Fiduciary Duty, violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law,
and violation of the Pennsylvania Wiretapping and Electronic
Surveillance Control Act.
Centerville then removed the case to federal court, citing two
bases for federal jurisdiction in its notice of removal. First,
Centerville asserts that the Secretary of Health and Human Services
has deemed Centerville a United States Public Health Service
employee, so it could remove the case pursuant to 42 U.S.C. Section
233, et seq.
In the alternative, Centerville argues that removal is proper under
the federal-officer removal statute at 28 U.S.C. Section
1442(a)(1), as Centerville is either a federal officer or a person
acting under a federal officer through its status as a Public
Health Service employee.
The Plaintiff opposes removal and has moved to remand the case to
state court. Having reviewed the relevant law and the parties'
briefs and exhibits, the Court agrees with the Plaintiff and grants
her motion to remand.
Under Section 233(a), within 15 days of receiving notice of a
state-court action against a defendant, the Attorney General must
make an appearance in state court and advise such court as to
whether the HHS Secretary has deemed the defendant to be an
employee of PHS. But where the Attorney General fails to timely
appear in state court, the state-court defendant can remove the
action itself so the district court can make the appropriate
determination on the proper forum for the action.
Judge Ranjan notes that Centerville (not the Attorney General)
removed this action pursuant to Section 233(l)(2), arguing that
though the Attorney General appeared in state court within 15 days
of receiving notice, it did not "advise" on the scope
determination, thereby, triggering Centerville's removal right. But
that isn't the proper procedure, Judge Ranjan holds.
Centerville cites some cases in response, but Judge Ranjan finds
they are distinguishable or inapposite. Those cases concerned suits
that didn't address removal, or where the Attorney General never
appeared in state court (not, as here, where he appeared but hadn't
yet "advised" on the certification).
Centerville also points out that HHS already determined that
"Centerville is deemed to be a PHS employee for the relevant
periods," and so that "determination controls the Court's removal
jurisdiction under Section 233(l)(2)." It appears Centerville is
arguing that a prior deeming determination counts here. But it
doesn't, Judge Ranjan points out. So just because Centerville has a
prior determination from HHS, that doesn't mean HHS has deemed it
an employee of PHS for purposes of this action.
Once the Attorney General had made a timely appearance, Centerville
needed to wait for the appropriate authorities to make the relevant
determinations as stated in Section 233, rather than take matters
into its own hands, Judge Ranjan says. If HHS and the Attorney
General conclude that Centerville was a deemed employee acting
within the scope of its employment for the actions underlying the
Plaintiff's suit, then the Attorney General may remove this case at
that time, as he is empowered to do.
Centerville's alternative ground for removal (federal-officer
removal) fails for similar reasons, Judge Ranjan holds. To invoke
removal under Section 1442, Centerville must show, among other
things, that its removal raises a colorable federal defense to the
Plaintiff's claims.
But the only defense Centerville raises is the absolute immunity
afforded by Section 233. To permit Centerville to raise Section 233
as a defense for purposes of Section 1442, when it didn't abide by
the removal procedures of Section 233, would sidestep the framework
of Section 233, Judge Ranjan points out.
Finally, the Court denies the Plaintiff's request for fees and
costs because it concludes that Centerville's removal notice was
not frivolous or objectively unreasonable.
Accordingly, Judge Ranjan grants the Plaintiff's motion to remand.
The Court remands this case forthwith to the Court of Common Pleas
of Washington County for further proceedings. This Order is without
prejudice to the United States Attorney General removing the action
upon making the requisite scope certification.
Judge Ranjan denies the Plaintiff's request for fees and costs. The
Clerk of this Court will mark this case as closed.
A full-text copy of the Court's Memorandum Order dated Sept. 14,
2023, is available at https://tinyurl.com/3uv4du44 from
PacerMonitor.com.
CHERRY CENTRAL: Hernandez Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Cherry Central
Cooperative, Inc. The case is styled as Marlelis Hernandez,
individually, and on behalf of all others similarly situated v.
Cherry Central Cooperative, Inc., Case No. 1:23-cv-08361 (S.D.N.Y.,
Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cherry Central -- https://www.cherrycentral.com/ -- is a
farmer-owned cooperative that believes we are stronger when we work
together.[BN]
The Plaintiff is represented by:
Ian Piasecki, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (347) 745-0445
Email: ipiasecki@mizrahikroub.com
CLUB 1 HOTELS: Vickers Files TCPA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Club 1 Hotels, LLC.
The case is styled as Lachae Vickers, individually and on behalf of
all others similarly situated v. Club 1 Hotels, LLC, Case No.
1:23-cv-07054 (E.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Club 1 Hotels -- https://www.club1hotels.com/ -- is a leading
global travel technology company offering free members-only access
to exclusive wholesale rates that are up to 60% off compared to
online travel agencies.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 Ne 1st Ave, Suite 1205
Miami, FL 33132
Phone: (305) 479-2299
Email: ashamis@shamisgentile.com
COINBASE GLOBAL: Donovan Suit Transferred to S.D. New York
----------------------------------------------------------
The case styled as Kenneth Donovan and Hussien Kassfy, John Brambl,
individually and on behalf of others similarly situated v. COINBASE
GLOBAL, INC.; GMO-Z.COM TRUST COMPANY, INC.; and COINBASE INC.,
Case No. 3:22-cv-02826 was transferred from the U.S. District Court
for the Northern District of California, to the U.S. District Court
for the Southern District of New York on Sept. 25, 2023.
The District Court Clerk assigned Case No. 1:23-cv-08431-AT to the
proceeding.
The nature of suit is stated as Securities/Commodities.
Coinbase Global, Inc., branded Coinbase -- http://www.coinbase.com/
-- is an American publicly traded company that operates a
cryptocurrency exchange platform.[BN]
The Plaintiff is represented by:
Elizabeth Kramer, Esq.
Kevin Osborne, Esq.
Julie Erickson, Esq.
Erickson Kramer Osborne LLP
44 Tehama Street
San Francisco, CA 94105
Phone: 415-635-0631
Fax: 415-599-8088
Email: elizabeth@eko.law
kevin@eko.law
julie@eko.law
The Defendant is represented by:
Meredith Richardson Dearborn, Esq.
Randall Scott Luskey, Esq.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA 94105
Phone: (628) 432-5100
Email: mdearborn@paulweiss.com
rluskey@paulweiss.com
- and -
Kristina Bunting, Esq.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
Phone: (212) 373-3000
- and -
Heather S. Nyong'o, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
650 California Street, Suite 2000
San Francisco, CA 94108
Phone: (650) 815-4140
- and -
Nicole Tatz, Esq.
Nowell Bamberger, Esq.
Nowell D. Bamberger, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2112 Pennsylvania Avenue, NW
Washington, DC 20037
Phone: (202) 974-1973
Email: ntatz@cgsh.com
nbamberger@cgsh.com
- and -
Samuel Loewenson Levander, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP (NYC)
One Liberty Plaza
New York, NY 10006
Phone: (212) 225-2000
Email: slevander@cgsh.com
COMMONWEALTH EDISON: Dismissal of Consolidated Suit Under Appeal
----------------------------------------------------------------
Commonwealth Edison Company disclosed in its Form 10-Q report for
the quarterly period ended June 30, 2023, filed with the Securities
and Exchange Commission in August 2, 2023, that the plaintiffs
filed an appeal with the First District Court of Appeals with
regards to a dismissed consolidated consumer case.
Three putative class action lawsuits against Commonwealth Edison
were filed in Illinois state court in the third quarter of 2020
seeking restitution and compensatory damages on behalf of its
customers. The cases were consolidated into a single action in
October of 2020. In November 2020, Citizens Utility Board (CUB)
filed a motion to intervene in the cases pursuant to an Illinois
statute allowing CUB to intervene as a party or otherwise
participate on behalf of utility consumers in any proceeding which
affects the interest of utility consumers. On November 23, 2020,
the court allowed CUB's intervention, but denied CUB's request to
stay these cases.
Plaintiffs subsequently filed a consolidated complaint,
Commonwealth Edison filed a motion to dismiss on jurisdictional and
substantive grounds on January 11, 2021. Briefing on that motion
was completed on March 2, 2021. The parties agreed, on March 25,
2021, along with the federal court plaintiffs discussed above, to
jointly engage in mediation. The parties participated in a one-day
mediation on June 7, 2021 but no settlement was reached.
On December 23, 2021, the state court granted Commonwealth Edison's
motion to dismiss with prejudice. On December 30, 2021, plaintiffs
filed a motion to reconsider that dismissal and for permission to
amend their complaint. The court denied the plaintiffs' motion on
January 21, 2022. Plaintiffs have appealed the court's ruling
dismissing their complaint to the First District Court of Appeals.
On February 15, 2022, Commonwealth Edison moved to dismiss the
federal plaintiffs' refiled state law claims. The court granted
dismissal of the refiled state claims on February 16, 2022. The
original federal plaintiffs appealed that dismissal on February 18,
2022. The state appeals were consolidated on March 21, 2022.
Parties are awaiting oral argument and/or a decision.
Commonwealth Edison Company is a utility services holding company
engaged in the energy transmission and distribution businesses in
Northern Illinois, including the City of Chicago.
CRUISE LLC: Ramos Files Suit in Cal. Super. Ct.
-----------------------------------------------
A class action lawsuit has been filed against Cruise LLC, et al.
The case is styled as Julian Ramos, on behalf of himself and others
similarly situated v. Cruise LLC, Actalent Services, LLC, Actalent,
Inc., Does 1 Through 50, Inclusive, Case No. CGC23609247 (Cal.
Super. Ct., San Francisco Cty., Sept. 21, 2023).
The case type is stated as "Other Non-Exempt Complaints."
Cruise LLC -- http://getcruise.com/-- is an American self-driving
car company headquartered in San Francisco, California.[BN]
The Plaintiff is represented by:
Roman Shkodnik, Esq.
David Yeremian, Esq.
DAVID YEREMIAN & ASSOCIATES, INC.
2540 Foothill Blvd., Ste. 201
La Crescenta, CA 91214-4583
Phone: 818-230-8380
Fax: 818-230-0308
Email: roman@yeremianlaw.com
david@yeremianlaw.com
DAIRYLAND EQUIPMENT: Judge Okays $122MM Class Action Settlement
---------------------------------------------------------------
Laura Brown, writing for Minnesota Lawyer, reports that three years
of litigation have ended with a settlement of nearly $122 million
in a class action over problems dairy farmers encountered while
using a robotic milker. U.S. District Judge Katherine Menendez
granted final approval of the settlement on Sept. 1 in St. Paul.
Milking robots are machines that milk cows instead of farmers doing
it by hand, with the cows setting their own milking schedules. The
technology was introduced in the United States a couple of decades
ago. Robotic milkers are intended to slash labor costs, increase
milk yield and save time. Cows are also supposed to be less
susceptible to infections and stress due to the robotic system's
voluntary rotation.
However, only a small percentage of dairy farms use the machines
because of their cost. Each unit costs roughly $200,000, with many
dairy farms requiring two or three to fully transition their
operations to robotic.
Lely is a Dutch company that designs and manufactures robotic
milking systems, including the Lely Astronaut A4 robotic milking
system. It owns Maasland, which wholly owns Lely North America, an
Iowa-based subsidiary of Lely.
Jared Kruger, a dairy farmer who lives in Wabasha, Minnesota,
purchased a Lely Astronaut A4 robotic milking system from Dairyland
Equipment Services. A year after purchasing the system, he noticed
a heightened somatic cell count in the cows' milk, indicating an
immune response to a mastitis-causing pathogen. The cell count
increased enough that it was no longer able to be certified as
Grade A. Kruger alleged that the robotic milking unit was defective
and had caused infection to the cows' udders.
Kruger contacted Dairyland to let them know that the system was
failing to separate contaminated milk, properly examine milk
quality, or detect mastitis. Although Dairyland washed the system
and checked the vacuum pump, the Lely Astronaut A4 robotic milking
system continued to have issues. Eventually, Kruger stopped using
the system.
Originally, Kruger sued Lely along with three other dairy farmers.
They voluntarily dismissed their claims. Subsequently, Kruger
brought the action on behalf of himself and a putative class.
Kruger alleged breach of contract, breaches of express and implied
warranties, fraudulent concealment, negligence, and strict
liability. Additionally, Kruger accused Lely of violating the False
Statement in Advertising Act, the Minnesota Deceptive Trade
Practices Act, and the Prevention of Consumer Fraud Act.
Litigation went on for nearly three years. After discovery and
mediation, the parties were able to agree on a settlement. The
class consisted of around 400 members. Nearly all of the class
members participated, which Menendez noted was "unprecedented" and
"far exceeds the average claims rate."
Class members were able to choose from two options, and there was
about a 50-50 split in which options class members selected. They
could trade in their A4 systems for an A5 system for a
substantially reduced payment of $40,000. Alternatively, they could
get a share from a cash fund established by Lely. That amount
varied based on how many robots were purchased. They also received
another $1,000 per A4 and either a four-year extended warranty or
another $7,000 cash per A4.
"This is another historic nationwide class settlement that will
provide extraordinary financial and operational relief to farmers
who purchased the Lely A4," said Patrick Stueve, partner at Stueve
Siegel Hanson LLP in Kansas City, Missouri, which led the
plaintiffs' case.
Stueve says "another" because the settlement comes just a year
after final approval for a settlement involving DeLaval, another
company that manufactures milking robots. That was a $55 million
settlement that involved 185 farmers.
In May 2022, Stueve Siegel Hanson, Cullenberg & Tensen PLLC, and
Perrone Law PLLC filed another lawsuit against DeLaval and Tetra
Laval, arguing that the milking robot VMS V300 has the same or
similar defect. That case is still pending in U.S. District Court
in Minnesota.
Lely's General Counsel Caius Ort stressed in a press release that
the company disagreed with the plaintiffs but agreed to settle to
stop drawing it out.
"We do not agree with the assertions made against our company in
the lawsuit," stated Ort. "However, the legal process is lengthy,
expensive and distracting -- so we have decided to reach a
settlement that is in the best interest of Lely, as well as our
employees, our Lely Center network and our customers. This decision
allows us to move on and to focus on what we do best, which is to
provide a sustainable, profitable and enjoyable future in farming
for our valued customers." [GN]
DC WINERY: Harrington Seeks Conditional Status of Collective Action
-------------------------------------------------------------------
In the class action lawsuit captioned as BRENDAN HARRINGTON,
individually and on behalf of all others similarly situated, v. DC
Winery, LLC, d/b/a First Batch Hospitality; Brian Leventhal; and
John Stires, individually, Case No. 1:22-cv-00689-TSC (D.D.C.), the
Plaintiffs file a renewed motion for conditional certification and
notice of a collective action pursuant to the Fair Labor Standards
Act (FLSA):
"All individuals who worked as bartenders or servers for the
Defendants in the District of Columbia at any time during the
three
year period preceding the filing of this lawsuit, and who
were paid a direct cash subminimum hourly wage."
The Plaintiffs also ask the Court to enter an order:
-- Authorizing the proposed Notice attached as Exhibit 5 to the
Plaintiff’s Memorandum in Support of this Motion, to be
issued by
first class mail; and the purposed Notice attached as Exhibit
6
to be issued by e-mail and text message.
-- Authorizing a reminder notice attached as Exhibit 7 to all
individuals who have not yet opted-in to this matter within 45
days of the first notice mailing.
-- Authorizing Plaintiff's counsel to disseminate Court-approved
notice to the proposed collective members and allowing
putative
collective members 90 days from mailing of the Notice and
Consent
Forms to return their signed Consent to Join Lawsuit Form and
opt-in to this action.
-- Requiring Defendants, within ten (10) days from the date of
the
Court's Order granting this Motion, to provide an Excel file
(.xls) containing the names, addresses, e-mail addresses,
phone
numbers, dates of employment, and position(s) held of all
putative collective members who work or worked for DC Winery
as
bartenders or servers during the three year period preceding
the
filing of this lawsuit.
The Plaintiffs inclyde, Brendan Harrington, and Opt-in Plaintiffs,
Larisa Paz and Alexandra Scott, individually and on behalf of other
similarly situated current and former bartenders and servers
employed by DC Winery, LLC; Brian Leventhal; and John Stires.
The case is a collective action lawsuit seeking to recover unpaid
wages under the FLSA) and the District of Columbia Minimum Wage Act
("DCMWA").
The Plaintiffs worked as bartenders and servers for DC Winery and
were all paid a direct cash wage of less than minimum wage, plus
tips left by customers. This action challenges DC Winery's common
practice of paying its bartenders and servers subminimum hourly
wages; and paying its bartenders and servers subminimum wages to
perform both tipped
and non-tipped job duties at its location in Washington, DC.
DC Winery owns and operates several restaurants, including the
restaurant District Winery in Washington, DC.
A copy of the Plaintiffs' motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/48Cphrp at no extra
charge.[CC]
The Plaintiffs are represented by:
Drew N. Herrmann, Esq.
Pamela G. Herrmann, Esq.
HERRMANN LAW, PLLC
801 Cherry St., Suite 2365
Fort Worth, TX 76102
Telephone: (817) 479-9229
Facsimile: (817) 840-5102
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
- and –
Harold L. Lichten, Esq.
Matthew Thomson, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: hlichten@llrlaw.com
mthomson@llrlaw.com
DENTSPLY SIRONA: Lead Plaintiff Seeks to Certify Class Action
-------------------------------------------------------------
In the class action lawsuit re Dentsply Sirona, Inc. Securities
Litigation, Case No. 1:18-cv-07253-NG-PK (E.D.N.Y.), the Lead
Plaintiff move the Court for entry of an Order, pursuant to FED. R.
CIV. P. 23(a), 23(b)(3) and 23(g):
1. Certifying a Class consisting of
(i) all persons who purchased or otherwise acquired the
common stock of Dentsply International and its
successor-
in-interest Dentsply Sirona, Inc. between February 20,
2014 and August 7, 2018 and were damaged thereby; and
(ii) all persons who acquired the common stock of Dentsply
Sirona in exchange for their shares of common stock of
Sirona Dental Systems, Inc. in connection with the
Merger
and were damaged thereby;
2. Excluding from the Class (a) Defendants; (b) members of the
immediate family of each of the Officer and Director
Defendants;
and (c) any subsidiary or affiliate of Dentsply Sirona and
the
directors and officers of the Company or its subsidiaries or
affiliates;
3. Appointing Lead Plaintiff Strathclyde as Class
Representative;
4. Certifying this action as a class action pursuant to Rules
23(a)
and 23(b)(3) because (a) the Class is sufficiently numerous,
(b)
there are issues of law and fact common to the Class, (c) the
Class Representative’s claims are typical of the claims of
absent Class members, (d) the Class Representative is
adequate,
(e) a class action here is superior to other potential
mechanisms, and (f) issues common to the Class predominate
over
issues pertaining to individual Class members; and
5. Appointing Lead Counsel Barrack, Rodos & Bacine as Class
Counsel
pursuant to Rule 23(g).
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3ZEDbVX at no extra
charge.[CC]
The Plaintiff is represented by:
Michael A. Toomey, Esq.
Jeffrey W. Golan, Esq.
Robert A. Hoffman, Esq.
Chad A. Carder, Esq.
Jordan R. LaPorta, Esq.
BARRACK RODOS & BACINE
11 Times Square
640 Eighth Avenue, 10th Floor
New York, NY 10036
Telephone: (212) 688-0782
Facsimile: (212) 688-0783
DIRECT BUILDING: Jackson Suit Transferred to M.D. Pennsylvania
--------------------------------------------------------------
The case styled as Gerard Jackson, individually and on behalf of
all others similarly situated v. Direct Building Supplies LLC doing
business as: ReNu Solar, Case No. 2:23-cv-03615 was transferred
from the U.S. District Court for the Eastern District of
Pennsylvania, to the U.S. District Court for the Middle District of
Pennsylvania on Sept. 21, 2023.
The District Court Clerk assigned Case No. 4:23-cv-01569-MWB to the
proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Direct Building Supplies LLC doing business as ReNu Solar --
http://www.renu-solar.com/-- is a solar and roofing company
changing homes in the areas they service.[BN]
The Plaintiff is represented by:
Jeffrey M. Bower, Esq.
BOWER LAW ASSOCIATES, PLLC
403 South Allen Street, Suite 210
State College, PA 16801
Phone: (814) 234-2626
Fax: (814) 237-8700
Email: jbower@bower-law.com
DIXXON SUPPLY: Zelvin Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Dixxon Supply, LLC.
The case is styled as Lynn Zelvin, on behalf of himself and all
others similarly situated v. Dixxon Supply, LLC, Case No.
1:23-cv-08376 (S.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dixxon Supply, LLC -- https://www.dixxon.com/ -- offers quality
flannels built to last.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
EPIC GAMES: Settlement Claims Filing Deadline Set Jan. 17, 2024
---------------------------------------------------------------
Hunt4Freebies reports that January 17, 2024, is the deadline to
submit claims in a new $245 million class action settlement for
Epic Games Fortnite.
This lawsuit alleges that Epic Games charged gamers for unwanted
items, allowed children to make credit card purchases & locked the
accounts of consumers who disputed these unwanted charges Read
below on how you can claim your cash before the deadline. Scroll
down to see all the details.
Who is eligible to apply for a refund?
You may apply for a refund if any of these statements are true:
You were charged in-game currency for items you didn't want between
January 2017 and September 2022
Your child made charges to your credit card without your knowledge
between January 2017 and November 2018
Your account was locked between January 2017 and September 2022
after you complained to your credit card company about wrongful
charges
You must be at least 18 to complete a claim form. If you are not
yet 18, a parent or guardian must complete the claim form for you.
How Much will I Receive?
Those who qualify, can file a claim to receive cash refunds for
Fortnite purchases. Refund estimates are not available at this
time, but payment amounts will vary based on the number of claims
filed & the damages claimed. However, you will need to provide your
Epic Games account information.
How Do I Submit a Claim?
To apply for a refund, you will need a claim number or your Epic
Account ID.
If you didn't get an email with a claim number, you can locate your
Epic Account ID by following these steps.
https://www.epicgames.com/help/en-US/epic-accounts-c5719348850459/account-security-c5719366891291/what-is-an-epic-account-id-and-where-can-i-find-it-a5720265298075
Go here --
https://www.fortniterefund.com/File-a-Claim??portalid=0?portalid=0
-- to submit your claims online by 1/17/24 date. [GN]
ERSTWHILE JEWELRY: Erkan Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Erstwhile Jewelry
Corp. The case is styled as Nihal Erkan, on behalf of herself and
all others similarly situated v. Erstwhile Jewelry Corp., Case No.
1:23-cv-06977 (E.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Erstwhile -- https://erstwhilejewelry.com/ -- is a New York City
based, fifth generation purveyor of vintage engagement rings and
wedding bands.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
ESTELLE'S DRESSY: Erkan Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Estelle's Dressy
Dresses, Inc. The case is styled as Nihal Erkan, on behalf of
herself and all others similarly situated v. Estelle's Dressy
Dresses, Inc., Case No. 1:23-cv-06978 (E.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Estelle's Dressy Dresses -- https://www.estellesdressydresses.com/
-- is the World's Largest Dress store.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
EVOLUS INC: Shareholder Suit Over Wrinkle Meds Pending in NY Court
------------------------------------------------------------------
Evolus, Inc. disclosed in its Form 10-Q for the quarterly period
ended June 30, 2023, filed with the Securities and Exchange
Commission on August 3, 2023, that it is currently facing a
consolidated securities class action lawsuit captioned "In re
Evolus Inc. Securities Litigation," No. 1:20-cv-08647 (PGG).
On October 16 and 28, 2020, two putative securities class action
complaints were filed in the U.S. District Court for the Southern
District of New York by Evolus shareholders Armin Malakouti and
Clinton Cox, respectively, naming the company and certain of its
officers as defendants. The complaints assert violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, claiming that the defendants
made false and materially misleading statements and failed to
disclose material adverse facts related to the company's
acquisition of the right to sell prabotulinumtoxinA-xvfs or
"Jeuveau(R)," the complaint against the company filed by Allergan
and Medytox in the U.S. International Trade Commission related to
Jeuveau, and risks related to the ITC Action. The complaints assert
a putative class period of February 1, 2019 to July 6, 2020.
The court consolidated the actions on November 13, 2020. On
September 17, 2021, the court appointed a lead plaintiff and lead
counsel. On November 17, 2021, the lead plaintiff filed an amended
class action complaint against the company, three of its officers,
and Alphaeon Corporation, the company's former majority
shareholder. On January 18, 2022, the company and the officer
defendants served their motion to dismiss the amended complaint. On
February 10, 2022, Alphaeon Corporation served its motion to
dismiss the amended complaint. Both motions were fully briefed on
June 16, 2022.
Evolus, Inc. is a performance beauty company focused on delivering
products in the self-pay aesthetic market. It is headquartered in
Newport Beach, California.
FIRSTENERGY SERVICE: Putorek Files Suit in N.D. West Virginia
-------------------------------------------------------------
A class action lawsuit has been filed against FirstEnergy Service
Company. The case is styled as Alexa Putorek, on behalf of HERSELF
and all others similarly situated v. FirstEnergy Service Company,
Case No. 1:23-cv-00076-TSK (W.D.N.C., Sept. 21, 2023).
The nature of suit is stated as Other Contract.
FirstEnergy's -- https://www.firstenergycorp.com/ -- 10 regulated
distribution companies form one of the nation's largest
investor-owned electric systems.[BN]
The Plaintiff is represented by:
Denali Skye Hedrick, Esq.
Jonathan R. Marshall, Esq.
BAILEY & GLASSER LLP
209 Capitol Street
Charleston, WV 25301
Phone: (304) 940-9809
Email: dhedrick@baileyglasser.com
jmarshall@baileyglasser.com
- and -
Jason E. Causey, Esq.
BORDAS & BORDAS, PLLC
1358 National Rd
Wheeling, WV 26003
Phone: (304) 242-8410
Fax: (304) 242-3936
Email: jcausey@bordaslaw.com
- and -
Patricia M. Kipnis, Esq.
BAILEY & GLASSER LLP
923 Haddonfield Road, Suite 300
Cherry Hill, NJ 08002
Phone: (856) 324-8219
Fax: (304) 342-1110
Email: pkipnis@baileyglasser.com
FORD MOTOR: Chaney et al. Sue Over Vehicle's Transmission Defect
----------------------------------------------------------------
SHAWN CHANEY, CATHIS ANTONIO HERNANDEZ, KEVIN SMITH, GWENDOLYN
TERRY, DAVID TERRY III, CARRIE NAPIORKOWSKI and WITOLD "VIC"
NAPIORKOWSKI, individually and on behalf of all others similarly
situated, Plaintiffs v. FORD MOTOR COMPANY, Defendant, Case No.
1:23-cv-01141 (W.D. Tex., Sept. 22, 2023) alleges claims against
the Defendant for, among other things, breach of express warranty,
negligence, unjust enrichment, and for violations of the Texas
Deceptive Trade Practices and Consumer Protection Act.
The Plaintiffs bring this case individually and on behalf of all
similarly situated persons who purchased or leased a Ford vehicle
equipped with a 10R80 10-speed transmission that was designed,
manufactured, distributed, advertised, marketed, sold, and/or
leased by Ford or Ford’s parent, subsidiary, or affiliates. They
allege that the class vehicles have one or more design and/or
manufacturing defects, including but not limited to defects
contained in the Vehicles' 10R80, a 10-speed automatic transmission
that can shift harshly and erratically, causing the vehicle to
jerk, lunge, clunk, hesitate, surge, or slip between gears. This
common design and/or manufacturing defect in Ford's 10R80
transmissions is a potentially life-threatening safety issue, and
Ford has refused to recall or replace the defective transmissions,
say the Plaintiffs.
As a result of their reliance on Ford's alleged omissions and/or
misrepresentations, Plaintiffs and other owners and/or lessees of
the class vehicles have suffered ascertainable loss of money,
property, and/or loss in value of their class vehicles.
Headquartered in Dearborn, Michigan, Ford Motor Company is a
publicly traded corporation organized under the laws of the State
of Delaware. Through its various entities, Ford designs,
manufactures, advertises, markets, distributes, and sells and/or
leases its vehicles in the United States and worldwide. [BN]
The Plaintiffs are represented by:
John R. Fabry, Esq.
Luis Muñoz, Esq.
THE CARLSON LAW FIRM, P.C.
1717 N. Interstate Highway 35, Suite 305
Round Rock, TX 78664
Telephone: (512) 671-7277
Facsimile: (512) 238-0275
E-mail: JFabry@carlsonattorneys.com
LMunoz@carlsonattorneys.com
- and-
Mark R. Miller, Esq.
WALLACE MILLER LLP
150 N. Wacker Dr., Suite 1100
Chicago, IL 60606
Telephone: (312) 589-6280
Facsimile: (312) 275-8174
E-mail: mrm@wallacemiller.com
- and -
Mitchell Breit, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN
405 E. 50th Street
New York, NY 10022
Telephone: (630) 796-0903
E-mail: mbreit@milberg.com
- and -
Leland Belew, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN
227 W. Monroe Street
Suite 2100
Chicago, IL 60606
Telephone: (865) 412-2700
E-mail: lbelew@milberg.com
- and -
Sidney F. Robert, Esq.
BRENT COON AND ASSOCIATES
300 Fannin, Suite 200
Houston, TX 77002
Telephone: (713) 225-1682
Facsimile: (713) 225-1785
E-mail: sidney.robert@bcoonlaw.com
FORD MOTOR: Johnson Sues Over Defective Rear View Cameras
---------------------------------------------------------
BRENT JOHNSON, individually and on behalf of all others similarly
situated, Plaintiff v. FORD MOTOR COMPANY, Defendant, Case No.
1:23-cv-14027 (N.D. Ill., Sept. 22, 2023) seeks for declaratory
judgment and/or injunctive relief, as well as money damages against
Ford, for unfair, unlawful, and fraudulent business practices;
breach of express and implied warranties; and related claims.
The Plaintiff brings this action on behalf of himself and all
persons or entities residing in the United States who purchased or
leased a 2020–2023 Ford Explorer equipped with a Rear View
360-Degree Camera, which intermittently fails, displaying a
completely or partially blank screen in place of the display. When
the 360-Degree Camera fails, the vehicle does not display the
federally-mandated image of the area directly behind the vehicle
while reversing. Instead, the driver sees a blue or back screen.
The defect causes a serious safety issue: drivers of the Class
Vehicles--large, high riding SUVs--cannot see what is behind them
when in reverse. Moreover, Plaintiff asserts that Ford is engaged
in unlawful trade practices by employing deception, deceptive acts
or practices, fraud, misrepresentations, or concealment in
connection with the sale of the Class Vehicles.
Headquartered in Dearborn, Michigan, Ford is responsible for the
manufacturing, sales, marketing, service, distribution, import, and
export of the class vehicles. It is also the warrantor and
distributor of Ford vehicles, including the class vehicles,
throughout the United States. [BN]
The Plaintiff is represented by:
Adam J. Levitt, Esq.
John E. Tangren, Esq.
Daniel R. Ferri, Esq.
DICELLO LEVITT LLP
Ten North Dearborn Street, Sixth Floor
Chicago, IL 60602
Telephone: 312-214-7900
E-mail: alevitt@dicellolevitt.com
jtangren@dicellolevitt.com
dferri@dicellolevitt.com
- and -
Jason T. Dennett, Esq.
Kaleigh N. Boyd, Esq.
TOUSLEY BRAIN STEPHENS PLLC
1200 Fifth Avenue, Suite 1700
Seattle, WA 98101
Telephone: 206-682-5600
E-mail: jdennett@tousley.com
kboyd@tousley.com
- and -
Jason L. Lichtman, Esq.
Andrew Kaufman, Esq.
Muriel Kenfield-Kelleher, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: 212-355-9500
E-mail: jlichtman@lchb.com
akaufman@lchb.com
mkenfieldkelleher@lchb.com
FORD MOTOR: Judge Tosses Class Action Over Shifter Bushings
-----------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Ford
shifter bushing recall convinced a federal judge to dismiss a class
action lawsuit that alleges Ford shifter cable bushings wear out
and detach.
New York plaintiff Sergio Diaz and Illinois plaintiff Retha Connors
filed the lawsuit for more than $5 million, yet neither Ford owner
alleges their vehicle had any problems with the shifter bushings.
In addition, the plaintiffs do not claim they took their vehicles
to Ford dealers for inspections.
Plaintiff Diaz owns a 2017 Escape and Conners owns a 2014 Escape.
Both vehicles are equipped with allegedly defective shift cable
bushings. These components connect the transmission to the gear
shifter.
But the shifter bushing can degrade and detach, allowing a vehicle
to roll away if the emergency brake isn't engaged.
According to the Ford class action, the defective shifter bushing
is the Hilex (Hytrel 4556).
Ford issued a shifter bushing recall of 2013-2014 Ford Escape and
2013-2016 Ford Fusion vehicles in 2018. Since then, Ford has issued
additional recalls with the most recent shift bushing recall
announced in June 2022.
The Ford shift cable bushing recalls included these vehicles:
2013-2019 Ford Escape
2013-2016 Ford Fusion
2013-2018 Ford C-Max
2013-2021 Ford Transit Connect
2015-2018 Ford Edge
The 2018 recall said Fusion and Escape vehicles had shifter
bushings which contained a contaminant that caused the bushings to
wear out.
By the 2022 recall, Ford said the root cause of the problem was
still unknown, but engineers believed heat and humidity caused the
bushing to break down.
Ford has offered to replace the bushings with "shift bushings
[that] are manufactured from a different grade material with a heat
stabilizer. Additionally, a cap will be installed over the shift
bushing for protection against contaminants."
Additionally, owners who paid their own money for repairs would be
reimbursed.
Ford Shifter Bushing Class Action Lawsuit Dismissed
According to the plaintiffs, "Ford does not know whether the cap
fixes the Bushing Defect, and, on information and belief, the
replacement bushings do not remedy the Bushing Defect. Indeed,
owners have reported that the replacement bushings disintegrated
within three years."
Ford argued the plaintiffs failed to allege an injury because the
bushings in their vehicles did not have any problems. But Judge
George Caram Steeh said the vehicles no not need to have defective
bushings to establish an injury.
"Plaintiffs allege that Ford concealed the defect, which diminished
the value of their vehicles, and had they known their vehicles
contained a defective part they would have paid less or not
purchased them at all." -- Judge Steeh
But the judge also noted Ford offered to replace the defective
bushings with new bushings made of a different material. The
automaker also offered to reimburse owners for out-of-pocket
expenses.
Because of the actions provided by the shifter bushing recall and
because the vehicles owned by the plaintiffs had no bushing
problems, the judge ruled In light of the availability of this
remedy, and the fact that the defect has not manifested in their
vehicles, it is not clear how the plaintiffs have been injured.
"A named plaintiff must allege facts showing that he or she
personally suffered economic loss as a result of an inadequate
recall to state a cognizable injury on the basis of a recalled
product. Although Plaintiffs contend that they were injured by
overpaying for their vehicles at the point of sale, they do not
plausibly allege that such diminished value will persist after the
defective bushings are replaced by Ford." -- Judge Steeh
The plaintiffs failed to provide facts to support the claim the new
shifter bushings are prone to degrading. And the assertion the
vehicles will be defective after the recall repairs "is conclusory
and speculative."
The Ford shifter bushing lawsuit was dismissed because the
plaintiffs failed to contend they suffered an injury in fact.
The Ford shifter bushing lawsuit was filed in the U.S. District
Court for the Eastern District of Michigan: Sergio Diaz, et al., v.
Ford Motor Company.
The plaintiffs are represented by the Miller Law Firm, and Fegan
Scott LLC. [GN]
FRESHWORKS INC: Consolidated Shareholder Suit Over IPO Ongoing
--------------------------------------------------------------
Freshworks Inc. disclosed in its Form 10-Q for the quarterly period
ended June 30, 2023, filed with the Securities and Exchange
Commission on August 3, 2023, that on November 1, 2022, a purported
company stockholder filed a securities class action complaint in
the U.S. District Court for the Northern District of California
against the company, certain of its current officers and directors,
and underwriters of the IPO.
On April 14, 2023, the court appointed lead plaintiff filed a
consolidated amended class action complaint. The complaint alleges
that defendants violated Sections 11, 12(a)(2), and 15 of the
Securities Act of 1933 by making material misstatements or
omissions in offering documents filed in connection with its IPO.
The complaint seeks unspecified damages, interest, fees, costs, and
rescission on behalf of purchasers and/or acquirers of common stock
issued in the IPO. On June 14, 2023, a motion was filed to dismiss
the complaint.
Freshworks Inc. is a software development company that provides
modern software-as-a-service products. It is headquartered in San
Mateo, California.
GAME TIME: S.D. California Tosses Helems Suit With Leave to Amend
-----------------------------------------------------------------
In the lawsuit captioned JESSE HELEMS, on behalf of all those
similarly situated, Plaintiff v. GAME TIME SUPPLEMENTS, LLC dba RSP
NUTRITION, a Florida corporation, Defendant, Case No.
3:22-cv-01122-L-AHG (S.D. Cal.), Judge M. James Lorenz of the U.S.
District Court for the Southern District of California grants the
Defendant's motion to dismiss without prejudice and with leave to
amend.
Pending before the Court in this putative class action alleging
deceptive advertising practices is Defendant Game Time Supplements,
LLC's Motion to Dismiss the Complaint. The Plaintiff has filed a
Response in Opposition, and the Defendant filed a Reply.
Plaintiff Jesse Helems ordered RSP Nutrition's AminoLean
Pre-Workout powder blackberry pomegranate flavor on May 13, 2022.
He purchased AminoLean in order to maintain the substantial weight
loss he achieved in 2016 when he dropped 160 pounds out of 300
through cardio-based fitness and careful tracking of his daily
caloric intake.
Defendant Game Time Supplements, LLC, dba RSP Nutrition, is a
Florida corporation with its principal place of business in that
state. RSP Nutrition manufactures "pre-workout" nutritional
powders, including AminoLean. These dietary supplements are meant
to boost energy and encourage muscle growth, workout recovery, and
weight loss. RSP Nutrition states on the front and back labels of
AminoLean, and in advertising materials, that these Products
contain zero calories per serving.
The Plaintiff claims that AminoLean contains between 20 to 30
calories per serving, as measured by all the relevant methods that
the federal Food and Drug Administration ("FDA") uses to estimate
caloric content, therefore, the Defendant makes deceptive
statements and omits material relevant information from its labels
and advertising material in order to deceive consumers, who are
seeking low-calorie products for weight loss and maintenance.
The Plaintiff contends that RSP Nutrition's zero-calorie
representations are, thus, in direct violation of FDA guidance for
labeling calories under 21 C.F.R. Section 101.9(c) and state law.
Through this action, Helems seeks to represent a class of
individuals, who purchased AminoLean and seeks damages, injunctive
relief, and attorneys' fees and costs.
On Aug. 1, 2022, Plaintiff Jesse Helems filed the Complaint in this
putative class action alleging the following claims: (1) violation
of the Florida Deceptive and Unfair Trade Practice Act ("FDUTPA")
(nationwide class); (2) violation of the "unfair" prong of
California's Unfair Competition Law ("UCL") (California subclass);
(3) violation of the UCL's "fraudulent" prong (California
subclass); (4) violation of the UCL's "unlawful" prong (California
subclass); (5) violation of California's False Advertising Law
("FAL") (California subclass); (6) violation of the Consumer Legal
Remedies Act ("CLRA") (California subclass); and (7) unjust
enrichment.
Defendant Game Time Supplements filed the present Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) on Oct. 14,
2022. On Oct. 31, 2022, the Plaintiff filed a Response in
Opposition to the Motion. On Nov. 7, 2022, the Defendant filed a
Reply. On July 17, 2023, the Defendant filed a Supplemental
Document citing a recently decided case. On Sept. 1, 2023, the
Defendant filed a Notice of Supplemental Authority.
The Defendant argues, among other things, that the Complaint does
not include any assertion that the Plaintiff intends to purchase
AminoLean in the future, therefore, he has not established a threat
of actual or imminent harm to demonstrate standing. In response,
the Plaintiff claims that he has standing and relies on Davidson v.
Kimberley-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) for the
proposition that a consumer, who was previously deceived by false
advertising may still have standing to pursue an injunction even
after the consumer knows that the advertising was false at the time
of purchase because the consumer may suffer a future harm.
Judge Lorenz notes that the Plaintiff has not asserted an ongoing
interest or intention to purchase AminoLean in the future. As a
result, Judge Lorenz finds that the Plaintiff has failed to
establish standing for his injunctive relief claim.
Because the Plaintiff has not alleged that he would like to
purchase AminoLean again, Judge Lorenz finds that he has failed to
allege that he faces an imminent or actual threat of future harm
due to the Defendant's false advertising. Accordingly, the
Defendant's Motion to Dismiss is granted on the issue of standing.
Under the Federal Food, Drug and Cosmetics Act ("FDCA"), the
nutrition labeling of food must provide the total number of
calories per serving, if any.
Judge Lorenz holds that the Plaintiff's reliance on Metague v.
Woodbolt Distribution, LLC, No. 8:20-cv-02186-PX, 2021 WL 2457153,
at *1 (D.Md. June 16, 2021) is unavailing. First, Metague is not
binding on this Court because it is a decision from the United
States District Court of Maryland. Second, the plaintiff in Metague
alleged that he conducted independent research on the product,
XTEND, using each of the five FDA methods applicable to measuring
caloric content, which revealed that XTEND exceeded the value
represented by greater than 20% making it "misbranded." Unlike in
Metague, Judge Lorenz points out, the Plaintiff only alleged only
that he conducted the bomb calorimetry method on AminoLean.
The Plaintiff has failed to plead a sufficient factual basis for
his claim that AminoLean is mislabeled under all of the approved
FDA methods, Judge Lorenz holds. Accordingly, the Court grants the
Defendant's Motion to Dismiss the Plaintiff's caloric labeling
misrepresentation claim with leave to amend.
Because the Plaintiff failed to assert that he had no adequate
remedy at law, the Court grants the Defendant's Motion to Dismiss
on the Plaintiff's equitable restitution claims under the UCL,
CLRA, FAL and FDUTPA.
Because the alleged damage was done in California, Judge Lorenz
holds that the reasoning in Hutson v. Rexall Sundown, Inc., 837
So.2d 1090, 1094 (Fla. Dist. Ct. App. 2003) is controlling.
Accordingly, the Court grants the Defendant's motion on this
ground.
Whether the Plaintiff titles the cause of action "unjust
enrichment" or "quasi-contract," it remains a cause of action for
equitable relief, and as noted, he has not alleged that his legal
remedies are inadequate, therefore, Judge Lorenz holds that the
Plaintiff cannot pursue an equitable claim. For this reason,
Defendant's Motion to Dismiss the unjust enrichment claim is
granted.
Judge Lorenz opines that the lack of particularized factual
allegations that the Plaintiff actually relied on the caloric
statements prior to purchase is insufficient to meet the heightened
pleading standard for a fraud claim under CLRA, UCL, or FAL. Hence,
the Defendant's Motion to Dismiss is granted on these claims.
For these reasons, the Court grants the Motion to Dismiss without
prejudice and with leave to amend.
A full-text copy of the Court's Order dated Sept. 14, 2023, is
available at https://tinyurl.com/27khhxrr from PacerMonitor.com.
GENERAC HOLDINGS: Gross Law Firm Investigates Securities Claims
---------------------------------------------------------------
The Gross Law Firm on Oct. 2 issued the following notice to
shareholders of Generac Holdings Inc.:
On August 2, 2023, Generac announced revised downwards guidance for
2023 due to "weakness in residential products." The Company blamed
the downturn on a "softer consumer spending environment" which led
to weaker-than-expected sales of the Company's residential units.
Following this news, Generac's stock price fell by $37.46 per
share, or approximately 25% to close at $115.95 per share.
Due to the forgoing, The Gross Law Firm is investigating potential
securities fraud claims on behalf of certain Generac investors. If
you incurred a loss on your GNRC investment, please contact us
using the link below to discuss your rights.
https://securitiesclasslaw.com/securities/generac-loss-submission-form/?id=50099&from=3
WHY GROSS LAW FIRM? The Gross Law Firm is a nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
GENERAL MOTORS: Ridell Suit Seeks to Certify Class
--------------------------------------------------
In the class action lawsuit captioned as ROBERT RIDDELL,
individually and on behalf of all others similarly situated, v.
GENERAL MOTORS LLC, Case No. 1:20-cv-00254-SNLJ (E.D. Mo.), the
Plaintiff Robert Riddell moves for certification of a class defined
as follows pursuant to Rule 23 of the Federal Rules of Civil
Procedure:
"All purchasers of a 2011-2014 Chevrolet Avalanche, 2011-2014
Chevrolet Silverado, 2011-2014 Chevrolet Suburban, 2011-2014
Chevrolet Tahoe, 2011-2014 GMC Sierra, 2011-2014 GMC Yukon, and
2011-2014 GMC Yukon XL manufactured on or after February 10,
2011
that was equipped with a Generation IV 5.3-liter V8 Vortec 5300
LC9
engine that was purchased in the State of Missouri."
The Plaintiff also asks the Court to enter an order:
-- Appointing him as Class Representative; and
-- Appointing of DiCello Levitt LLP and Beasley, Allen, Crow,
Methvin, Portis & Miles, P.C. as Class Counsel; and
General Motors is an American multinational automotive
manufacturing company.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3RLnF8S at no extra
charge.[CC]
The Plaintiff is represented by:
Greg G. Gutzler, Esq.
Adam J. Levitt, Esq.
John E. Tangren, Esq.
Daniel R. Ferri, Esq.
Blake Stubbs, Esq.
DICELLO LEVITT LLP
485 Lexington Avenue, Suite 1001
New York, NY 10017
Telephone: 646-933-1000
E-mail: ggutzler@dicellolevitt.com
alevitt@dicellolevitt.com
jtangren@dicellolevitt.com
dferri@dicellolevitt.com
bstubbs@dicellolevitt.com
- and –
W. Daniel “Dee” Miles III, Esq.
H. Clay Barnett III, Esq.
J. Mitch Williams, Esq.
Rebecca D. Gilliland, Esq.
BEASLEY, ALLEN, CROW, METHVIN,
PORTIS & MILES, P.C.
272 Commerce Street
Montgomery, AL 36104
Telephone: (334) 269-2343
E-mail: Dee.Miles@BeasleyAllen.com
Clay.Barnett@BeasleyAllen.com
Mitch.Williams@BeasleyAllen.com
Rebecca.Gilliland@BeasleyAllen.com
GENTING NEW YORK: Weitz Files TCPA Suit in S.D. Florida
-------------------------------------------------------
A class action lawsuit has been filed against Genting New York LLC.
The case is styled as Brandon Weitz, individually and on behalf of
all others similarly situated v. Genting New York LLC doing
business as: Resorts World Bimini, Case No. 1:23-cv-23628-XXXX
(S.D. Fla., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Genting New York LLC owns and operates casino. The Company offers
restaurant, luxurious hotels, slots, lottery and electronic games,
and entertainment services, as well as dining facilities.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 Ne 1st Ave, Suite 1205
Miami, FL 33132
Phone: (305) 479-2299
Email: ashamis@shamisgentile.com
GOLDMAN SACHS: AP-Fonden Seeks to Certify Class Action
------------------------------------------------------
In the class action lawsuit captioned as SJUNDE AP-FONDEN,
individually and on behalf of all others similarly situated, v. THE
GOLDMAN SACHS GROUP, INC., et al., Case No. 1:18-cv-12084-VSB-KHP
(S.D.N.Y.), the Plaintiff asks the Court to enter an order as
follows:
(1) Certifying class action pursuant to Federal Rules of Civil
Procedure 23(a) and 23(b)(3), on behalf of the following
class:
"All persons and entities that purchased or otherwise
acquired
Goldman's common stock between October 29, 2014 and November
8,
2018, inclusive, and were damaged thereby."
Excluded from the Class are: (i) Defendants; (ii) Goldman's
subsidiaries and affiliates; (iii) any officer, director, or
controlling person of Goldman, and members of the immediate
families of such persons; (iv) any entity in which any
Defendant has a controlling interest; (v) Defendants'
directors' and officers' liability insurance carriers, and
any
affiliates or subsidiaries thereof; and (vi) the legal
representatives, heirs, successors, and assigns of any
excluded
party.
(2) appointing Plaintiff as Class Representative for the
proposed
Class; and
(3) Appointing Kessler Topaz Meltzer & Check, LLP as Class
Counsel
for the Class and Bernstein Litowitz Berger & Grossmann LLP
as
Liaison Counsel for the Class;
Goldman is a global investment banking, securities and investment
management firm.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3ti9nmd at no extra
charge.[CC]
The Plaintiff is represented by:
Andrew L. Zivitz, Esq.
Matthew L. Mustokoff, Esq.
Johnston de F. Whitman, Jr., Esq.
Jamie M. McCall, Esq.
David A. Bocian, Esq.
Nathan A. Hasiuk, Esq.
Vanessa Milan, Esq.
Nathaniel C. Simon, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
Facsimile: (610) 667-7056
E-mail: azivitz@ktmc.com
mmustokoff@ktmc.com
jwhitman@ktmc.com
jmccall@ktmc.com
dbocian@ktmc.com
nhasiuk@ktmc.com
vmilan@ktmc.com
nsimon@ktmc.com
- and -
Salvatore J. Graziano, Esq.
Rebecca E. Boon, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: sgraziano@blbglaw.com
rebecca.boon@blbglaw.com
GREENVILLE COUNTY, SC: Loftis Suit Removed to D. South Carolina
---------------------------------------------------------------
The case captioned as Dwight A. Loftis, Mikell "Mike" Burns,
Patrick B. Haddon, Adam M. Morgan, T. Alan Morgan, Ashley B.
Trantham, Michelle Shuman and the South Carolina Public Interest
Foundation, on behalf of all others similarly situated v.
Greenville County Council and Greenville County, Case No.
2023-CP-23-04287 was removed from the Court of Common Pleas for the
Thirteenth Circuit, Greenville County, South Carolina, to the
United States District Court for the District of South Carolina on
Sept. 21, 2023, and assigned Case No. 6:23-cv-04744-TMC.
The Plaintiffs' Complaint asserts nine causes of action all arising
out of the process by which Defendants prepared and adopted
Greenville County's budget. The causes of action include a claim
seeking a declaration that Defendants violated the Federal Single
Audit Act of 1984 ("FSAA") and a claim for prohibiting freedom of
expression in violation of the First Amendment of United States
Constitution. The Plaintiffs' Complaint also includes a claim for
violating the South Carolina Constitution Article I, § 2,
statutory claims for failure to comply with the following South
Carolina statutes during the budget preparation and adoption
process, claims brought for violating Greenville County Codes as
well as claims for violating Greenville County Council Rules III
and IV during the preparation and adoption of the Greenville County
budget.[BN]
The Defendants are represented by:
Rivers S. Stilwell, Esq.
Andrew A. Mathias, Esq.
Clarence R. Turner IV, Esq.
MAYNARD NEXSEN PC
104 S. Main Street, Suite 900 (29601)
Post Office Drawer 10648
Greenville, SC 29603-0648
Phone: 864.370.2211
Facsimile: 864.282.1177
Email: RStilwell@maynardnexsen.com
AMathias@maynardnexsen.com
CTurner@maynardnexsen.com
HOMEDELIVERYLINK INC: Faces Vera Class Suit Over Illegal Deductions
-------------------------------------------------------------------
JHONNY VERA and RICARDO BAUTISTA, on behalf of themselves and all
others similarly situated, v. HOMEDELIVERYLINK, INC. (HDL), Case
No. 1:23-cv-14278 (N.D. Ill., Sept. 28, 2023) alleges that illegal
deductions were made from Plaintiffs' wages in violation of the
Illinois Wage Payment and Collection Act.
HDL allegedly required the Plaintiffs and other Illinois Drivers to
sign independent contractor agreements in order to work for HDL.
Although HDL classified the Plaintiffs, as well as the other
Illinois Drivers, as independent contractors, the control
manifested over the Illinois Drivers by HDL demonstrates that they
are Defendant's "employees" under the IWPCA, the lawsuit says.
The Plaintiffs contend that HDL deducts certain expenses directly
from the compensation it pays to the Plaintiffs and Illinois
drivers, including when HDL determines, in its sole discretion,
that a delivery has been made in a manner it deems to be
unsatisfactory. HDL will deduct the costs of such damage from
delivery drivers' paychecks.
HDL also requires drivers to incur certain expenses in the course
of their work, including the costs of insurance and fuel, which
should properly be borne by HDL. These expenses amount to thousands
of dollars each month, the Plaintiffs add.
The Plaintiffs bring this case as a class action on behalf of all
individuals who contracted to provide delivery services for HDL as
delivery drivers in Illinois, and who personally provided delivery
services to HDL, who have either been classified as independent
contractors or have not been paid or treated as employees during
the relevant statutory period.
Plaintiff Jhonny Vera worked for HDL between March 2020 and
December 2022, delivering furniture and appliances for HDL's
clients, including Ashley Furniture.
Plaintiff Ricardo Bautista has worked for HDL between 2021 and the
present, delivering furniture and appliances for HDL's clients.
HDL is in the business of providing delivery of retail merchandise
for its customers.[BN]
The Plaintiffs are represented by:
Bradley Manewith, Esq.
Harold L. Lichten, Esq.
Olena Savytska, Esq.
LICHTEN & LISS-RIORDAN, P.C.
5 Revere Dr., Suite 200
Northbrook, IL 60062
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: bmanewith@llrlaw.com
hlichten@llrlaw.com
osavytska@llrlaw.com
HUB CYBER: Bids for Lead Plaintiff Appointment Due October 16
-------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of common stock of HUB Cyber Security Ltd. (NASDAQ:
HUBC, HUBCZ, HUBCW) f/k/a Hub Cyber Security (Israel) Ltd. ("Legacy
HUB") pursuant and/or traceable: (a) through Legacy HUB's merger
(the "Merger") with Mount Rainier Acquisition Corp. ("Mount
Rainier"); (b) to the registration statement and proxy
statement/prospectus (collectively, the "Offering Documents")
issued in connection with the Merger; and/or traceable to the
registration statement and proxy statement/prospectus
(collectively, the "Offering Documents") issued in connection with
the Merger; and/or (c) between March 23, 2022 and June 13, 2023,
both dates inclusive (the "Class Period"), of the important October
16, 2023 lead plaintiff deadline.
SO WHAT: If you purchased HUB Cyber securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the HUB Cyber class action, go to
https://rosenlegal.com/submit-form/?case_id=18848 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than October 16, 2023.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
litigate securities class actions, but are merely middlemen that
refer clients or partner with law firms that actually litigate the
cases. Be wise in selecting counsel. The Rosen Law Firm represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
Rosen Law Firm has achieved the largest ever securities class
action settlement against a Chinese Company. Rosen Law Firm was
Ranked No. 1 by ISS Securities Class Action Services for number of
securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, the Offering
Documents and defendants made false and/or misleading statements
and/or failed to disclose that: (1) PIPE financing in connection
with the Merger was not committed; (2) HUB would not be led by
Legacy HUB's then-current management team, including defendant
Moshe; (3) the Company had downplayed the full scope and severity
of deficiencies in its compliance controls and procedures,
including its disclosure controls and procedures and internal
controls over financial reporting; (4) the Company overstated its
remediation of, and/or ability to remediate, the foregoing
deficiencies; (5) accordingly, the Company had hundreds of
thousands of dollars of unexplained expenses incurred, and/or funds
misappropriated or otherwise fraudulently obtained, by a senior
officer of the Company; (6) the foregoing increased the risk that
the Company would be unable to timely file one or more of its
periodic financial reports with the SEC, as required by the
NASDAQ's listing rules; (7) as a result, the Company was also at an
increased risk of being delisted from the NASDAQ; (8) all the
foregoing, once revealed, was likely to negatively impact the
Company's business, financial results, and reputation; and (9) as a
result, the Offering Documents and Defendants' public statements
throughout the Class Period were materially false and/or misleading
and failed to state information required to be stated therein. When
the true details entered the market, the lawsuit claims that
investors suffered damages.
To join the HUB Cyber class action, go to
https://rosenlegal.com/submit-form/?case_id=18848 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
HUMBOLDT COUNTY, CA: Ruling in Cannabis Abatement Program Appealed
------------------------------------------------------------------
Nichole Norris, writing for Kym Kemp, reports that the legal battle
wages on against Humboldt County's cannabis abatement program, with
stakes raised Thursday in the Ninth Circuit. The class action
federal lawsuit challenging Humboldt County's cannabis abatement
program was denied by the Northern District Court. Now, The
Institute of Justice has appealed that ruling. If the Appeal is
granted, it could have implications for other counties, cities and
states with similar cannabis (or other property) abatement
programs, as these rulings apply to all of California, Montana,
Idaho, Nevada, Arizona, Oregon, Washington, Hawaii, and Alaska.
On May 12, in a blow to impacted property owners, the Northern
District Court Judge Robert M. Illman granted the County's Motion
to Dismiss all claims.
"[T]he Plaintiffs' assertions as to their supposed injuries ring
hollow," Judge Illman wrote, adding, "[N]o Plaintiff has sustained
any actual injury in the nature of excessive fines and fees in
violation of the Eighth and Fourteenth Amendments, and given the
fact that any future injury is speculative at best, Plaintiffs
lacks standing to pursue a claim that they have been subjected to
"excessive fines and fees."
Judge Illman said further:
"The [First Amended Complaint] contains no competent allegations
which establish that any action taken by the County that shocks the
conscience, that was arbitrary or discriminatory, or that
interfered with rights implicit in the concept of ordered liberty.
In other words, Plaintiffs have not even approached "show[ing] as a
threshold matter that a state actor deprived [them] of a
constitutionally protected life, liberty, or property interest," or
that the land use actions involved in this case failed to advance
legitimate governmental purposes."
The nationally acclaimed human interest law firm the Institute for
Justice, which initially brought the class action Federal lawsuit
in October 2022, refutes the Northern District Court Judge's
interpretation of the law. On September 21 they filed their opening
appeal brief with the Ninth Circuit Court of Appeals for CORRINE
MORGAN THOMAS, et al., v. COUNTY OF HUMBOLDT, CALIFORNIA.
The Institute for Justice explained why they are appealing the
magistrates decision to dismiss their complaint entirely, stating,
"The trial court . . . ruled that Plaintiffs' allegations were
implausible and unworthy of the presumption of truth. The court
declared -- at the motion-to-dismiss stage -- that the County's
code enforcement has been "even-handed, proportionate,
non-discriminatory, and non-arbitrary." Plaintiffs ask this Court
to reverse and remand the case to a judge who will apply the law
correctly and impartially."
The cannabis abatement program was born right after the
legalization of cannabis The Institute for Justice wrote, "Humboldt
County['s] respon[se] to the legalization of marijuana… [was]
amending its code to maximize revenue at the expense of civil
rights."
The Institute for Justice highlighted some of the issues with what
they call the "fine-driven code- enforcement program," where,
"Innocent people are trapped unless they pay their way out,"
stating,
"The County charges people with cannabis-adjacent offenses based on
permitting violations on their property. Under the guise of
nuisance-abatement orders, it fines them millions of dollars while
it denies them the permits they need to "abate" the violations.
People who appeal wait years for hearings that never come. All the
while, the County uses ruinous fines and permit denials to pressure
people into settlements."
The Institute for Justice insists, "A punishment system
uninterested in guilt is unconstitutional," and they elaborate to
the appeals court how Humboldt County's cannabis abatements
violates the Constitution in five distinct ways, which are:
"First, a system designed to squeeze money out of people without
providing them a hearing violates procedural due process. Second,
the County's arbitrary issuance of penalties and its indifference
to innocence violate substantive due process. Third, making
non-remedial permits contingent on settling abatement cases is an
unconstitutional condition. Fourth, the penalties for
cannabis-related violations are unconstitutionally excessive, both
on their face and as applied to innocent purchasers. And fifth, the
Seventh Amendment guarantees a jury in suits for penalties like
these."
Over 1,200 properties have been impacted by the cannabis abatement
program since it began in 2017. In addition to the plaintiffs,
hundreds of notice recipients who applied for an appeal hearing
within ten days of receiving their notice, are also a part of the
"class," who are eagerly awaiting a favorable decision. In some
cases, abatement recipients sit in limbo with their property,
infrastructure and millions in penalties and various remediation
and administrative costs on the line. All class action plaintiffs
expressed concerns with increased stress and uncertainty, some,
like Rhonda Olson and the Thomases, even struggle with subsequent
health issues they attribute to the abatement.
The Institute for Justice told the Ninth Circuit that the impacts
are far reaching beyond Humboldt County and the tactics are being
replicated in other areas, further illustrating the importance of
this appeal.
Oral argument at the Appeal level is discretionary with the Court,
however The Institute for Justice argued in their opening brief,
"Plaintiffs-Appellants respectfully submit that oral argument is
warranted in this case given the importance of these issues for the
named Plaintiffs, the hundreds of class members affected by
Humboldt County's Code Enforcement program, and the people in other
jurisdictions that are now emulating the type of suspicion-less and
fine-driven code enforcement that Humboldt pioneered to maximize
government proceeds from cannabis."
At this time the briefing schedule is this: Humboldt County's
counsel replies with a rebuttal to the Institute of Justice brief
within 30 days. Then the Institute for Justice has 21 days to
answer the rebuttal, and oral arguments may or may not be scheduled
thereafter at the Court's discretion. [GN]
INOVA HEALTH: E.D. Virginia Narrows Claims in Ellison Class Suit
----------------------------------------------------------------
In the lawsuit styled MICHAEL ELLISON, et al., Plaintiffs v. INOVA
HEALTH CARE SERVICES, et al., Defendants, Case
1:23-cv-00132-MSN-LRV (E.D. Va.), Judge Michael S. Nachmanoff of
the U.S. District Court for the Eastern District of Virginia,
Alexandria Division, issued an Amended Memorandum Opinion granting
in part and denying in part the Defendants' Motion to Dismiss or,
in the alternative, Motion to Strike Class Claims.
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, 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.
But, in November 2021 (and in response to continuing
pandemic-related concerns), the United States Centers for Medicare
and Medicaid ("CMS") issued a mandate requiring all medical care
providers and their employees to be vaccinated. The CMS mandate
also outlined procedures for how covered healthcare providers were
to evaluate exemption requests--procedures that were far more
robust than the ones Inova implemented during the initial phases of
its vaccination policy. Inova was, therefore, required to update
its policy, meaning that previously granted exemption requests
needed to be re-evaluated.
In February 2022, Inova announced that any employee, who had
previously been granted an exemption from the vaccine policy,
needed to reapply so that their request could be evaluated in light
of the new policy. Inova admitted that it was "going back on its
word" but explained that it was obligated to do so under the CMS
mandate, which required exemption requests to be scrutinized more
closely.
After the implementation of the new policy, Plaintiffs Michael
Ellison, Arin Jenkins, and Andrea Graham all reapplied for
religious exemptions, asserting that various tenets of their
Christian faith prevented them from receiving the vaccine. Each of
the Plaintiffs' requests were denied.
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 Equal Employment Opportunity Commission (EEOC), and each
received a right-to-sue letter.
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."
The Religious Discrimination Class--represented by all
Plaintiffs--alleges that Inova violated both Title VII of the Civil
Rights Act of 1964 and the Virginia Human Rights Act ("VHRA") by,
among other things, firing employees or refusing to hire applicants
based on their religious exercise.
The Permanent Exemption Class--represented by Plaintiffs Ellison
and Jenkins--alleges that Inova created a binding contract when it
granted "permanent" exemptions to induce each class member to
continue working at Inova. In the alternative, the Permanent
Exemption Class argues that Inova's promise of permanent exemptions
is, nonetheless, enforceable because the promise created a
quasi-contract that blocks the hospital's attempt to change
course.
On April 18, 2023, Inova filed a motion to dismiss the Plaintiffs'
claims or strike the class allegations. The Plaintiffs responded on
May 2. Inova replied. The Court held oral argument on May 26.
The Plaintiffs' principal argument is that the Defendants, by
rejecting requests for religious exemptions from the vaccine
requirement, violated Title VII's requirement that an employee's
religious beliefs be accommodated. With one exception, the Court
disagrees.
The Court finds that each Plaintiffs' beliefs are sincerely held as
there is no evidence introduced at this stage of the proceedings
that suggests that the beliefs have been concocted for litigation
or are otherwise disingenuous. For that reason, the Court will
direct its focus to the question of religiosity.
However, the Court will nonetheless reject all but one of the
Plaintiffs' claims as it finds that they are not rooted in concerns
that are religious in nature. Therefore, the Plaintiffs' VHRA
claims will be dismissed.
Judge Nachmanoff also finds that the Permanent Exemption Class's
claims fail as well. Ellison, Jenkins, and the putative members of
their class allege that the Defendants were contractually obligated
to honor the "permanent" exemptions that the employees were given
under the original vaccination policy and that the Defendants
breached that contract when they revoked those exemptions.
Alternatively, the Plaintiffs contend that, even if granting the
exemptions did not create an enforceable contract, the Defendants
are, nonetheless, liable under equitable promissory estoppel
principles. Judge Nachmanoff holds that neither theory holds up
under scrutiny.
Because the Plaintiffs remained free to unilaterally sever the
employment relationship both before and after the alleged
agreement, the Court finds that they did not provide the
consideration necessary to create a binding agreement. And because
the Court finds that any agreement between the parties was not
supported by valuable consideration, it must also conclude that the
Plaintiffs' breach-of-contract claims fail to provide a basis for
relief. The Plaintiffs' breach-of-contract claims will, therefore,
be dismissed.
Considering the presumption that must be applied, Judge Nachmanoff
finds that the Plaintiffs fail to establish that the Defendants
could reasonably expect the employees to believe not only that
their employment conditions were substantially altered, but that
the hospital would do so implicitly. Because the doctrine of
promissory estoppel requires such a showing, the Plaintiffs'
promissory estoppel claims must, therefore, be dismissed.
Finally, Judge Nachmanoff holds that the Plaintiffs' class
allegations will be stricken. Under Rule 23 of the Federal Rules of
Civil Procedure, one or more members of a putative class may sue as
representative parties on behalf of all if they satisfy the
threshold requirements.
The Court finds that--because it is clear that the Plaintiffs
cannot satisfy Rule 23's "commonality" element--they cannot pursue
their lone remaining claim (failure to accommodate abortion-based
objections to the vaccine policy on a class basis. The Court
concludes that it is apparent from the Amended Complaint that the
purported class cannot be certified. The Plaintiffs' class
allegation will, therefore, be stricken from the Amended
Complaint.
For these reasons, the Court rules that the Defendants' Motion to
Dismiss or, in the alternative, Motion to Strike Class Claims is
granted in part and denied in part.
Count I is dismissed only as to Plaintiffs Jenkins and Graham.
Count II is dismissed as to all Plaintiffs. Count III is dismissed
as to all Plaintiffs. The Plaintiffs' class allegations are
stricken from the Plaintiffs' Amended Complaint.
A full-text copy of the Court's Amended Memorandum Opinion dated
Sept. 14, 2023, is available at https://tinyurl.com/3tch675y from
PacerMonitor.com.
INTERNATIONAL BUSINESS: Malinowski Sues Over Alleged Data Breach
----------------------------------------------------------------
ELAINE D. MALINOWSKI, individually, and on behalf of all others
similarly situated, Plaintiffs v. INTERNATIONAL BUSINESS MACHINES
CORPORATION and JOHNSON & JOHNSON HEALTH CARE SYSTEMS, INC.,
Defendant, Case No. 1:23-cv-08421 (S.D.N.Y., Sept. 22, 2023) arises
from the Defendant's failure to properly secure and safeguard
Representative Plaintiff's and Class Members' protected health
information and personally identifiable information stored within
Defendants' information network.
Among others, Plaintiff Malinowski alleges claims against the
Defendants for negligence, breach of implied contract, and for
violations of the Health Insurance Portability and Accountability
Act and the Federal Trade Commission Act. With this class action,
Plaintiff seeks to hold Defendants responsible for the harms it
caused and will continue to cause Plaintiff and, at least,
thousands of other similarly situated persons in the massive and
preventable cyberattack purportedly discovered by Defendants on
August 2, 2023, in which cybercriminals infiltrated Defendants'
inadequately protected network servers and accessed highly
sensitive PHI/PII that was being kept unprotected.
Headquartered in Armonk, New York, IBM provides infrastructure,
software, and consulting services for clients as they pursue the
digital transformation of the world's mission-critical businesses.
[BN]
The Plaintiff is represented by:
Jared R. Cooper, Esq.
ROBINSON YABLON COOPER & BONFANTE, LLP
232 Madison Avenue, Suite 909
New York, NY 10016
Telephone: (212) 725-8566
Facsimile: (212) 725-8567
E-mail: jared@rycbinjury.com
- and -
Daniel Srourian, Esq.
SROURIAN LAW FIRM, P.C.
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (213) 474-3800
Facsimile: (213) 471-4160
E-mail: daniel@slfla.com
JANUS HOMECARE: Garcia Seeks Conditional Collective Certification
-----------------------------------------------------------------
In the class action lawsuit captioned as RAQUEL GARCIA, on behalf
of herself, FLSA Collective Plaintiffs, and the Class, v. JANUS
HOMECARE AGENCY, INC., Case No. 1:23-cv-03321-MKV (S.D.N.Y.), the
Plaintiff asks the Court to enter an order granting motion for
conditional collective certification and for court facilitation of
notice pursuant to 29 U.S.C. section 216(b).
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3ZD5R1y at no extra
charge.[CC]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eighth Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
JIFFY LUBE: Court Grants Bid to Compel Arbitration in Fuentes Suit
------------------------------------------------------------------
Judge Anita B. Brody of the U.S. District Court for the Eastern
District of Pennsylvania grants the Defendant's motion to compel
arbitration in the lawsuit entitled Victor Fuentes, Plaintiff v.
Jiffy Lube International, Inc., Defendant, Case No.
2:18-cv-05174-AB (E.D. Pa.).
Oscar Jimenez is an intervenor in ongoing antitrust class action
litigation against Jiffy Lube International, Inc. ("Jiffy Lube").
He seeks to represent a nationwide class of former Jiffy Lube
franchisee employees in their claims against Jiffy Lube. Jiffy Lube
argues that Jimenez is bound by an arbitration agreement, and that
he may not proceed with these claims in court.
Jiffy Lube is the largest "quick lube" chain in the United States,
providing oil change and other light automotive repair services at
over 2,000 Jiffy Lube shops across the United States and Canada.
Each Jiffy Lube shop is owned and operated by an independent
business that enters into a franchise agreement with Jiffy Lube.
From at least 2014 until December 2018, Jiffy Lube incorporated a
clause into its franchise agreements that prohibited franchisees
from soliciting or hiring employees from other Jiffy Lube
franchisees. Former Jiffy Lube franchisee employees claim that the
"no-poach" agreements artificially restricted competition between
Jiffy Lube franchisees.
On Nov. 29, 2018, former Jiffy Lube franchisee employee Victor
Fuentes filed a complaint against Jiffy Lube, individually and on
behalf of a nationwide class. He sought to represent a nationwide
class of former Jiffy Lube franchisee employees, who had their
wages depressed as a result of the "no-poach" provisions contained
in Jiffy Lube's franchise agreements.
On July 22, 2022, nearly four years later, Fuentes and Jiffy Lube
allegedly reached a settlement of class claims. The proposed
settlement class was no longer nationwide. It simply encompassed
those employees, who had worked at a Jiffy Lube in the greater
Philadelphia metropolitan area.
Six weeks after Fuentes and Jiffy Lube proposed this settlement,
Jimenez moved to intervene. Jimenez is a former employee of a
California-based Jiffy Lube franchisee, Alamitos Enterprises, LLC
("Alamitos"). He attached a new complaint alleging violations of
antitrust law, which he sought to litigate on behalf of himself and
a nationwide class of former Jiffy Lube workers. He did not oppose
the existing proposed settlement agreement for the Philadelphia
area. Instead, he put himself forward as a plaintiff for continued
litigation of nationwide class claims or a California subclass. In
March 2023, the Court granted Jimenez's motion to intervene given
his interest in the case as a potential class member.
Mr. Jimenez began to litigate his claims. On April 5, 2023, he
moved for appointment as a class representative. On April 6, 2023,
he moved to access the existing discovery record. On April 19,
2023, Jiffy Lube moved to compel Jimenez to arbitrate his claims.
On April 21, 2023, Jiffy Lube moved to dismiss Jimenez's complaint
for failure to state a claim.
Jiffy Lube submits that this case must be sent to arbitration for
two reasons. First, Jimenez acknowledged receipt of an arbitration
agreement that became binding after 30 days of employment. Second,
the scope of the arbitration agreement includes all claims arising
from his employment.
Mr. Jimenez opposes the motion to compel arbitration. He argues (1)
that he did not sign the arbitration provision, and therefore, did
not agree to arbitrate his claims, and (2) that he was not put on
sufficient notice that his continued employment could constitute an
assent to the arbitration agreement. He does not contest that his
claims fall within the scope of the arbitration agreement.
Judge Brody notes that while Jimenez does not reference the
arbitration agreement in his Complaint, it is clearly integral to
his claims. Further, Jiffy Lube attached the arbitration agreement
to its motion, and Jimenez does not contest its authenticity.
Mr. Jimenez asserts that he was never made aware of the arbitration
agreement, and so he cannot be bound by it. Judge Brody opines that
Jimenez's bare assertion that he was not made aware of the
arbitration agreement is insufficient, without more, to create a
genuine issue of material fact as to whether he acknowledged
receipt of the agreement on the ADP platform.
Judge Brody, therefore, evaluates Jiffy Lube's motion to compel
arbitration under a motion to dismiss standard. The Court accepts
the facts in the Complaint as true and construe them in the light
most favorable to the Plaintiff, Jimenez.
Mr. Jimenez acknowledged receipt of the arbitration agreement, did
not opt out, and continued employment. He is, therefore, bound to
arbitrate his claims subject to that agreement, Judge Brody holds.
For the reasons discussed in this Memorandum, Judge Brody grants
the Defendant's Motion to Compel Arbitration.
The remainder of the motions filed by Intervenor Oscar Jimenez's
claims will be resolved as moot because he may not proceed as a
plaintiff in this litigation. Defendant Jiffy Lube's motion to
dismiss the complaint will likewise be resolved as moot.
A full-text copy of the Court's Memorandum dated Sept. 14, 2023, is
available at https://tinyurl.com/4uevbjcb from PacerMonitor.com.
JOHNSON & JOHNSON: Bid to Dismiss Edley Complaint Due Oct. 24
-------------------------------------------------------------
In the class action lawsuit captioned as EDLEY, et al., v. JOHNSON
& JOHNSON, Case No. 3:22-cv-02970 (D.N.J., Filed May 23, 2022), the
Hon. Judge Georgette Castner entered an order setting October 24,
2023 schedule for Johnson & Johnson's Motion to Dismiss the
Complaint as well as its Motion to Strike Class Allegations and/or
Deny Class Certification.
In light of oral argument, the Clerk is directed to
administratively terminate the motions pending at ECF Nos.24 &25
and to reopen and reset the motions for the October 25, 2023 Motion
Day.
The nature of suit states Torts -- Personal Injury -- Asbestos
Personal Injury Product Liability.
Johnson is an American multinational, pharmaceutical, and medical
technologies corporation.[CC]
JOHNSON & JOHNSON: Walker Sues Over False and Misleading Claims
---------------------------------------------------------------
Michael Walker, individually and, on behalf of those similarly
situated v. JOHNSON & JOHNSON CONSUMER INC., KENVUE, INC., RECKITT
BENCKISER LLC, PROCTER & GAMBLE, WAL-MART, INC. WAL-MART STORES
EAST 1, LP, Case No. 4:23-cv-00663-FJG (W.D. Mo., Sept. 21, 2023),
is brought against Defendants on behalf of consumers who purchased
Defendants' over-the counter ("OTC") decongestant products
containing phenylephrine (i.e., the "Products") which contained
false and misleading claims.
The Plaintiff purchased in both Missouri and Kansas the following
products for personal and household use to relieve congestion
associated with a cold: Sudafed PE, Vick's DayQuil Vick's Nyquil
Cold & Flu, Vicks Nyquil Severe Cold & Flu, Vicks Nyquil Cold + Flu
plus Congestion, Mucinex Sinus Max, and Wal-Mart Equate Products.
During the Class Period, based on the false and misleading claims
by Defendants, Plaintiff was unaware that Defendants' oral
decongestant Products were not an effective remedy for congestion
and/or cold symptoms. None of these products was effective in
relieving congestion.
The Plaintiff purchased Defendants' Products on the assumption that
the labeling of the Products was accurate and that the Products
worked as advertised. Plaintiff would not have purchased
Defendants' Products had he known they were not effective and
lacked the ability to provide relief for congestion and/or cold
symptoms as marketed by Defendants. As a result, Plaintiff suffered
injury in fact when he spent money to purchase Products he would
not otherwise have purchased absent Defendants' misconduct, says
the complaint.
The Plaintiff purchased products from Defendants.
Johnson & Johnson Consumer Inc. manufactures, markets, advertises,
labels, distributes, and sells phenylephrine products under its
Sudafed and Benadryl product lines.[BN]
The Plaintiff is represented by:
Robert A. Horn, Esq.
Joseph A. Kronawitter, Esq.
Taylor P. Foye, Esq.
HORN AYLWARD & BANDY, LLC
2600 Grand Boulevard, Suite 1100
Kansas City, MO 64108
Phone: (816) 421-0700
Facsimile: (816) 421-0899
Email: rhorn@hab-law.com
jkronawitter@hab-law.com
tfoye@hab-law.com
- and -
Kirk J. Goza, Esq.
Bradley D. Honnold, Esq.
GOZA & HONNOLD, LLC
9500 Nall Avenue, Suite 400
Overland Park, KS 66207
Phone: 913.451.3433
Fax: 913.839.0567
Email: kgoza@gohonlaw.com
bhonnold@gohonlaw.com
- and -
Thomas P. Cartmell, Esq.
Tyler W. Hudson, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Avenue, Suite 300
Kansas City, MO 64112
Phone: (816) 701-1100
Email: tcartmell@wcllp.com
thudson@wcllp.com
KATHLEEN ALLISON: Court Tosses Blake's Bid to Certify Class Action
------------------------------------------------------------------
In the class action lawsuit captioned as KENYATA BLAKE, v. KATHLEEN
ALLISON, et al., Case No. 2:23-cv-00208-AC (E.D. Cal.), the Hon.
Judge Allison Claire entered an order that:
1. The Plaintiff's request for leave to proceed in forma
pauperis
is granted.
2. The Plaintiff is obligated to pay the statutory filing fee of
$350.00 for this action. The Plaintiff is assessed an initial
partial filing fee in accordance with the provisions of 28
U.S.C. section 1915(b)(1). All fees shall be collected and
paid
in accordance with this court's order to the appropriate
agency
filed concurrently herewith.
3. The Plaintiff's motion for appointment of counsel is denied.
4. The Plaintiff's motion to certify this case as a class action
is
denied.
5. The Plaintiff's motion to remove Charles Stevenson as a co-
plaintiff is granted to the extent the Clerk of the Court is
directed to update the docket to reflect that Charles
Stevenson
is not a plaintiff and is otherwise denied as moot because
Stevenson is not properly before this court as a plaintiff.
6. The Plaintiff's motion for screening is granted.
7. The Plaintiff's complaint fails to state a claim upon which
relief may be granted and will not be served.
8. Within 30 days from the date of service of this order,
plaintiff
may file an amended complaint that complies with the
requirements of the Civil Rights Act, the Federal Rules of
Civil
Procedure, and the Local Rules of Practice. The amended
complaint must bear the docket number assigned this case and
must be labeled "First Amended Complaint."
9. The Clerk of the Court is directed to send plaintiff a copy
of
the prisoner complaint form used in this district.
The complaint alleges that defendants Allison, Kernan, Covello,
Lizarraga, Bettencourt, Ahmed, and Larrabee have subjected
plaintiff to unconstitutional conditions of confinement and denied
him equal protection in violation of the Eighth and Fourteenth
Amendments.
The Plaintiff alleges that he has been forced to drink and bathe in
contaminated water that has caused him to suffer from dizzy spells,
pain in his joints, and extreme fatigue.
A copy of the Court's order dated Sept. 29, 2023 is available from
PacerMonitor.com at https://bit.ly/3teROU3 at no extra charge.[CC]
KENVUE INC: Rosen Law Firm Investigates Securities Claims
---------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Sept. 24
announced that it is investigating potential securities claims on
behalf of shareholders of Kenvue Inc. (NYSE: KVUE) resulting from
allegations that Kenvue may have issued materially misleading
business information to the investing public.
SO WHAT: If you purchased Kenvue securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law Firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=19241 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: Rosen Law Firm is investigating potential civil
securities claims.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
KOELSCH SENIOR: Fite Suit Removed to E.D. California
----------------------------------------------------
The case captioned as Bessie R. Fite, an individual, on behalf of
herself and others similarly situated v. KOELSCH SENIOR
COMMUNITIES, LLC, a Washington limited liability company; FRESNO
MEMORY CARE, LLC, a Delaware limited liability company; CEDARBROOK
MEMORY CARE COMMUNITY, a California business entity, form unknown;
and DOES 1 through 50, inclusive, Case No. 23CV006509 was removed
from the Superior Court of the State of California for the County
of Sacramento, to the United States District Court for the Eastern
District of California on Sept. 21, 2023, and assigned Case No.
2:23-at-00967.
The Plaintiff's Complaint asserts the following 10 causes of
action: Failure to Pay Minimum Wages; Failure to Pay Wages and
Overtime Under Labor Code; Meal Period Liability Labor Code;
Rest-Break Liability Labor Code; Failure to Maintain Records
Required under Labor Code; and Violation of Business & Professions
Code and Labor Code.[BN]
The Defendants are represented by:
Diane Marie O'Malley, Esq.
Michael E. Turner, Esq.
Josue R. Aparicio, Esq.
Jennifer A. Puza, Esq.
HANSON BRIDGETT LLP
425 Market Street, 26th Floor
San Francisco, CA 94105
Phone: (415) 777-3200
Facsimile: (415) 541-9366
Email: domalley@hansonbridgett.com
mturner@hansonbridgett.com
japaricio@hansonbridgett.com
jpuza@hansonbridgett.com
KOOMA III LLC: Lunemann Seeks Proper Wages for Restaurant Servers
-----------------------------------------------------------------
CAYLA LUNEMANN, on behalf of herself and similarly situated
employees, Plaintiff v. KOOMA III LLC (d.b.a. Kooma Asian Fusion &
Sushi Bar), Defendant, Case No. 2:23-cv-03704 (E.D. Pa., Sept. 22,
2023) seeks all available relief under the Fair Labor Standards Act
and the Pennsylvania Minimum Wage Act.
The Plaintiff was employed by Defendant as a server at the
restaurant until approximately January 2023. Allegedly, the
Defendant has required Plaintiff and other servers to contribute a
portion of their tips to, inter alia, Sushi Chefs.
By requiring Plaintiff and other servers to share tips with Sushi
Chefs, Defendant has willfully violated the FLSA and PMWA and
forfeited its right to utilize the tip credit in satisfying its
minimum wage obligations to Plaintiff and other servers. In
addition, Defendant has willfully violated the FLSA and PMWA by
utilizing the tip credit to pay Plaintiff and other servers for
time associated with non-tip-generating tasks, says the suit.
Kooma III LLC owns and operates the Kooma Asian Fusion & Sushi Bar
located at 201 North Main Street, King of Prussia, PA. [BN]
The Plaintiff is represented by:
Peter Winebrake
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone:(215) 884-2491
MARS PETCARE: Audet & Partners Investigates Dog Treats' Class Suit
------------------------------------------------------------------
Audet & Partners, LLP is investigating claims that may form the
basis of a class action lawsuit against Mars Petcare, parent
company of Pedigree, the manufacturer of Dentastix dog treats. For
some time, Pedigree has been marketing Dentastix as facilitating
"up to 80% tartar reduction" in dogs who chew Dentastix. The
National Advertising Division (NAD) of the Council of Better
Business Bureaus, however, has issued a public statement disputing
the claimed efficacy of Dentastix. The NAD has stated that in
clinical tests, the actual reduction of tartar buildup in dogs was
approximately 47%.
The NAD statement claims that Pedigree essentially misstated the
results of clinical trial undertaken by Summit Ridge Farms, the
results of which had suggested a mean reduction in tartar buildup
of 46.7% over a 28-day trial. The NAD claims that Pedigree then
undertook a post-hoc analysis of the Summit Ridge study results and
reclassified the test subjects in a way that allegedly overstated
the effectiveness of Dentastix chews in reducing tartar buildup.
The claims set forth in the opinion recently issued by the NAD may
give rise to a Dentastix class action lawsuit on behalf of
purchasers of Dentastix for false advertising and other causes of
action. If you have purchased Dentastix and given the product to
your dog, you are urged to contact us for a free, confidential case
evaluation. You can call us at (800) 965-1461, complete and submit
our online case inquiry form on the right side of this page, or
e-mail class action attorney Michael McShane at
mmcshane@audetlaw.com. [GN]
MCADOO'S SEAFOOD: Brixey Seeks to Certify Class Action
------------------------------------------------------
In the class action lawsuit captioned as Alexis Brixey,
individually and on behalf of all others similarly situated, v.
McAdoo's Seafood Company, LLC d/b/a McAdoo's Seafood Co. & Oyster
Bar; and Wiggins Hospitality Group, LLC d/b/a La Cosecha Mexican
Table, Case No. 5:23-cv-00232-DAE (W.D. Tex.), the Plaintiffs ask
the Court to enter an order certify the case pursuant to 29 U.S.C.
section 216(b) and authorizing notice to the Putative Collective
Members.
-- The Plaintiffs request a 90-day opt-in period from the initial
date of transmitting the proposed notice and consent forms.
-- After the passage of thirty (30) days, Plaintiffs request
permission to send a reminder notice to putative collective
members who have not yet responded to the initial notice and
consent form.
Mr. Brixey and Opt-in Plaintiffs work or worked for McAdoo's and La
Cosecha. The Defendants utilize the same compensation structure to
pay all servers and bartenders and uniformly subject all servers
and bartenders, including Plaintiffs, to the same employment
policies at both of Defendants' restaurants—McAdoo's and La
Cosecha.
The Plaintiffs worked as servers and bartenders for Defendants and
were all paid a direct subminimum hourly wage of less than $7.25
per hour and, in violation of the Fair Labor Standards Act
("FLSA"), were illegally (1) required to contribute a portion of
their tips to a tip pool that Defendants cannot show the tips
pooled were distributed solely among customarily and regularly
tipped employees; (2) required to perform non-tipped work unrelated
to their tipped occupation
(i.e., "dual jobs") before, during, and at the end of their shifts
at a subminimum hourly rate; (3) required to perform non-tipped
work that was performed for more than 30 continuous minutes and
exceeded twenty percent (20%) of their time worked during each
workweek at a subminimum hourly rate; and (4) required to pay for
mandatory uniforms, tools, and other non-203(m) items.
The Plaintiffs seeks to certify and send court-authorized notice to
the proposed collective of similarly situated employees defined as:
Server Collective Members: All current and former employees who
worked for Defendants as servers at any time within the three (3)
year period since this Complaint was filed and were paid a direct
cash wage of less than minimum wage.
Bartender Collective Members: All current and former employees who
worked for Defendants as bartenders at any time within the three
(3) year period since this Complaint was filed and were paid a
direct cash wage of less than minimum wage.
A copy of the Plaintiffs' motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3tcYCBr at no extra
charge.[CC]
The Plaintiff is represented by:
Drew N. Herrmann, Esq.
Pamela G. Herrmann, Esq.
HERRMANN LAW, PLLC
801 Cherry St., Suite 2365
Fort Worth, TX 76102
Telephone: (817) 479-9229
Facsimile: (817) 840-5102
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
MHM HEALTH: Lewis Files Conditional Class Certification Bid
-----------------------------------------------------------
In the class action lawsuit captioned as PENNY LEWIS, individually
and on behalf of all others similarly situated, v. MHM HEALTH
PROFESSIONALS, LLC f/k/a MHM HEALTH PROFESSIONALS, INC., Case No.
4:22-cv-00228-SEP (E.D. Mo.), the Plaintiff asks the Court to enter
an order granting his motion for conditional certification.
MHM has systemically and repeatedly violated the Fair Labor
Standards Act (FLSA) since at least July 2019. It failed to pay its
correctional facility workers in Arizona for their meal breaks and
security screenings. Then it failed to pay all of its non-exempt
workers on time and in full during and after a failure of MHM’s
timekeeping and payroll software.
The Plaintiffs are MHM workers affected by one or all of these pay
practices. The Plaintiffs ask their co-workers be notified of this
collective action and their right to join it to recover any damages
they may be owed.
The Plaintiffs' evidence easily exceeds the lenient standard for
conditional certification, and the Court should certify this
collective action and order notice to be sent to the putative
collective members.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3ZG0n6n at no extra
charge.[CC]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
Sammy O. Homsi, Esq.
PARMET PC
2 Greenway Plaza. Suite 250
Houston, TX 77046
Telephone: (713) 999-5228
E-mail: matt@parmet.law
sammy@parmet.law
- and -
Andrew R. Frisch, Esq.
Angeli Murthy, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Telephone: (954) WORKERS
Facsimile: (954) 327-3013
E-mail: AFrisch@forthepeople.com
AMurthy@forthepeople.com
MIDMARK CORP: Fails to Pay Proper Overtime Wages, Cummins Alleges
-----------------------------------------------------------------
CHRISTOPHER CUMMINS, on behalf of himself and all others similarly
situated, Named Plaintiff v. MIDMARK CORPORATION, Defendant, Case
No. 3:23-cv-00277-MJN-CHG (S.D. Ohio, Sept. 22, 2023) arises out of
the Defendant's violations of the Fair Labor Standards Act of 1938,
the Ohio Minimum Fair Wage Standards, and the Ohio Prompt Pay Act.
Plaintiff Cummins worked for Defendant from approximately September
2013 until March 15, 2023 in various hourly, non-exempt positions
at one of its manufacturing facilities located at 260 Depot St.,
Leesburg, Ohio. During the three years preceding this Complaint,
Cummins worked as a manufacturing employee in the position of
welder. Throughout his employment, Defendant classified him and
other manufacturing employees, including, but not limited to, in
the positions of welder, machine operators, and assemblers, as
non-exempt. Moreover, Plaintiff alleges that the Defendant violated
FLSA and the Ohio wage laws for its willful failure to pay overtime
wages, says the suit.
Midmark is an Ohio for-profit corporation that manufactures and
supplies medical, dental, and animal health products. [BN]
The Plaintiff is represented by:
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
MOSHAY INC: Dawson Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Moshay Inc. The case
is styled as Lashawn Dawson, on behalf of himself and all others
similarly situated v. Moshay Inc. doing business as: A4 Apparel,
Case No. 1:23-cv-08354-JLR (S.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Moshay Inc. doing business as A4 -- https://www.a4.com/ --
manufactures and markets a wide range of sports and athletic
apparel for men, women, and youths through online store and
dealers.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Phone: (516) 287-3458
Email: glevy@glpcfirm.com
MOUNTAIRE FARMS: Residents Get Payouts in Contamination Class Suit
------------------------------------------------------------------
Zoe Read, writing for WHYY, reports that Millsboro, Del. residents
are getting compensation for their contaminated wells from a class
action settlement with Mountaire Farms. But they say their troubles
aren't over.
Diane Longo used to be so afraid of the water from her private well
that she went to her friend's house to shower for four years. She
also brought back gallons of water for herself, her husband, and
their dogs.
Longo said she wasn't the only one who didn't trust what came out
of her taps.
"My family wouldn't come to visit me, because they were afraid of
the water," she said.
The 72-year-old left Philadelphia for the town of Millsboro, Del.
to enjoy retirement and be closer to the beach. But, instead of
relaxation, Longo has felt the stress of having contaminated
water.
The well water at her home contains nitrates, which are linked to
some serious health problems, including blue baby syndrome among
infants, thyroid disease, and some cancers. Nitrates can be found
in fertilizers, discharge from sewage systems, and animal manure,
which if near the ground's surface, may contaminate the
groundwater.
Longo is one of more than 3,000 Millsboro residents receiving
compensation from a 2021 $65 million class action settlement with
Mountaire Farms. The company's chicken processing plant is in
Sussex County, Delaware's southernmost county.
According to a lawsuit filed in 2018, Mountaire sprayed
contaminated wastewater from a failing treatment system, as well as
liquefied sludge, onto nearby fields. That caused high levels of
nitrates to seep into groundwater, and ultimately residents'
drinking water, for nearly 20 years -- putting people at risk for
serious health problems, according to the lawsuit.
In August, residents began to receive their settlement checks,
which range from a few thousand to hundreds of thousands of
dollars. Mountaire also has taken steps to address nitrate
pollution as part of a separate consent agreement with the state's
Department of Natural Resources and Environmental Control.
But the outcome of the settlements do not resolve the anger and
worry felt by residents such as Longo. Their well water continues
to contain nitrates above state standards, according to recent
private water tests obtained by WHYY News, and residents say they
want to know the cause.
Residents also continue to face various health problems. Longo, who
lost her husband to mouth and throat cancer in 2021, only has one
functioning kidney and suffers from mysterious sores on her skin
that come and go. Though she doesn't know the cause, she suspects
it's the water.
"There's no closure in this, because we don't have any answers,"
said Longo, who was awarded around $90,000 from the settlement.
Mountaire, which is the town's main employer, declined a request
for an interview.
However, the company said in a written statement it has invested
more than $100 million dollars to prevent nitrate pollution as part
of the settlement with DNREC -- the agency issued Mountaire a
notice of violation in 2017.
The company upgraded its wastewater treatment facility, and nitrate
levels at the plant have fallen to safe levels. Mountaire also
found an alternative way to dispose of its treated wastewater and
have planted trees to soak up nitrates. The company currently is in
compliance with its permits, according to DNREC.
Mountaire also has paid for filtration systems for dozens of
residents as part of the agreement with DNREC -- but some people
are still waiting. Mountaire said the process was delayed because
it was required to receive unanimous consent from the community.
The company originally offered to connect residents to a municipal
water supply, but not enough residents agreed to that option.
Some neighborhoods, including Longo's, were outside the boundaries
to receive a filtration system.
A legacy of nitrate contamination in Millsboro
DNREC Secretary Shawn Garvin said he can't comment on why nitrates
in some private wells remain above state standards. However,
environmental scientists say nitrates can come from several
sources, including wastewater facilities, landfills, and leaking
septic systems. The contaminants also stay in soil and groundwater
for years. So, pinpointing the sources requires extensive
investigation.
"There are legacy issues, there are problems with wells in
general," Garvin said.
It is estimated that more than half of Sussex County residents rely
on private wells for drinking water. Federal and local government
agencies do not monitor or require the testing or treating of
private well water, which means homeowners must take it upon
themselves to ensure their water is safe.
"I always encourage anybody who's on private wells to make sure
they are testing their water," Garvin said.
Nitrates can be removed with filtration systems. However, these
systems can cost thousands of dollars, leaving many residents who
can't afford it with contaminated water.
Nitrates have contaminated peoples' wells in Sussex County for
decades. Patricia Marini Fausey, another Millsboro resident,
received a letter from the state in 1988 about nitrates in her well
water.
The now 80-year-old said the only advice she received was to not
allow pregnant people or children to drink it. Marini Fausey has
bladder cancer and said three of her dogs also died of cancer. She
wonders if the contaminated water is the culprit.
"Recently, I've been told there's nothing more they can do for me,"
said Marini Fausey, who said she was not accepted into the lawsuit
because she filed her paperwork too late.
Millsboro resident Angela Ellis said she suffered debilitating
kidney stones four times over a period of a year. The 50-year-old's
health problems made it difficult for her to hold a full-time job,
and she struggled to pay her mortgage.
Ellis, who also said she was too late to participate in the
settlement, wonders if the nitrate contamination caused her health
issues. She said she believes if government agencies were required
to regulate peoples' wells and inform them of contamination,
illnesses could have been prevented.
"I felt like I was too young to always be sick -- I was sick for
the entire year," Ellis said. "It just makes me angry. I don't know
how I would have known [about the contamination] if my neighbor
didn't tell me. I was never told anything -- I just went on
drinking the water."
A health survey of 249 Millsboro residents, conducted for the
lawsuit against Mountaire, found unusually high rates of cancer,
gastrointestinal disease, Crohn's disease, diarrhea, wheezing,
shortness of breath and other ailments.
Dr. Marilyn Howarth, an environmental toxicologist at the
University of Pennsylvania, said nitrates are known to cause a
variety of health problems, but that linking them to any one
diagnosis or illness is challenging.
"The literature has shown an association between colon cancer and
nitrates. There are several studies that have suggested that maybe
bladder cancer, and breast cancer and thyroid disease are having an
association," she said. "But it's very difficult to show causation
with any of these."
Several Millsboro residents also report bothersome skin problems,
including itching for at least an hour after showering, and getting
red sores that break open and bleed. Howorth and other scientists
interviewed by WHYY News were perplexed by those symptoms.
Moving onward after Mountaire settlement
Millsboro resident Phyllis Blackiston said she was so frustrated by
the contamination in Delaware that she left and moved to North
Carolina.
The 76-year-old said she has an underactive thyroid, as well as
skin problems. Blackiston's late husband suffered from infections
that wouldn't heal and had a hole that went through his foot that
had to be rinsed with saline and packed daily. He died of cancer in
2018.
"I'm angry that this has just been overlooked, and allowed to
poison people by contaminating your wells," said Blackiston, who
was awarded about $200,000 from Mountaire.
In North Carolina, where she has treated municipal water instead of
a private well, she said her skin problems have disappeared.
"My skin has not broken out," Blackiston said. "I don't have that.
That's all healed. And my skin does not itch."
Last year, Diane Longo purchased filtration systems for her home so
she could feel safe using her water again.
Her garage wall is lined with thousands of dollars in various
filtration systems for the water that enters her house. These
filtration systems stop the nitrates from going through her taps.
But it didn't come without a price.
"I sold my jewelry in order to make ends meet -- things I didn't
want to have to sell that belonged to my mom and things like that,"
said Longo, who hopes to use the settlement money to reduce the
debt she incurred for the filtration systems. "That shouldn't have
happened. They should have been helping us." [GN]
NEW YORK INTERNATIONAL: Gonzalez Sues Over Labor Law Violations
---------------------------------------------------------------
Abraham Gonzalez, and Efrain Zamora Nendieta, on behalf of
themselves and all other persons similarly situated, Plaintiffs v.
New York International Bagel & Coffee Inc., and Mahmoud E. Ismail,
Defendants, Case No. 1:23-cv-07065 (S.D.N.Y., Sept. 22, 2023)
arises out of the Defendants' violations of the Fair Labor
Standards Act, the New York Labor Law, and the Wage Theft
Prevention Act.
Plaintiff Abraham Gonzalez and Efrain Zamora Nendieta were employed
as cleaners of push carts for food vendors at New York
International Bagel & Coffee. The Plaintiffs have each been paid in
cash throughout their employment by the Defendants, and received no
paystubs or wage statements of any sort with their pay.
Moreover, Plaintiffs allege that they are entitled to: compensation
for wages paid at less than the statutory minimum wage, unpaid
wages from Defendants for overtime work for which they did not
receive overtime premium pay as required by law, and liquidated
damages pursuant to the FLSA, because the Defendants' violations
lacked a good faith basis. The Plaintiffs further complain that
they are entitled to compensation for wages paid at less than the
statutory minimum wage; back wages for overtime work for which the
Defendants willfully failed to pay overtime premium pay as required
by the NYLL and the supporting New York State Department of Labor
regulations; compensation for the Defendants' violations of the
"spread of hours" requirements of NYLL; liquidated damages pursuant
to NYLL for these violations; and statutory damages for the
Defendants' violation of the WTPA.
Headquartered in Long Island, New York International Bagel & Coffee
Inc. owns and operates bagel and coffee shops. [BN]
The Plaintiffs are represented by:
Michael Samuel, Esq.
THE SAMUEL LAW FIRM
1441 Broadway
Suite 6085
New York, NY 10018
Telephone:(212)563-9884
E-mail: michael@thesamuellawfirm.com
NORTH MISSISSIPPI HEALTH: Wins Partial Summary Judgment vs Woods
----------------------------------------------------------------
In the class action lawsuit captioned as STANLEY WOOD and CHASTITY
WOOD, Individually, and on Behalf of a Class of Similarly Situated
Persons, v. NORTH MISSISSIPPI HEALTH SERVICES, INC. et al., Case
No. 1:20-cv-00042-TBM-RP (N.D. Miss.), the Hon. Judge Taylor B.
McNeel entered an order granting Alliance Collection's motion to
dismiss or for summary judgment.
-- All of the Woods' claims asserted against Alliance Collection
are
dismissed with prejudice.
-- The North Mississippi Health Services, North Mississippi
Clinics,
LLC, North Mississippi Medical Center, Inc., and Tupelo Service
Finance's Motion for Partial Summary Judgment is granted.
-- The Woods' motion to certify class is denied without prejudice
to
refiling.
On February 23, 2021, Stanley and Chastity Wood, a husband and
wife, filed their First Amended Class Action Complaint on behalf of
themselves and similarly situated persons.
Their claims stem from alleged balance bills that the Defendants
sent Chastity Wood, and the methods by which the Defendants sought
to collect the debt. In their Amended Complaint, the Woods assert
five causes of action against the Hospital Defendants, and Alliance
Collection including:
(1) violations of the Fair Debt Collection Practices Act;
(2) violations of Mississippi Code Section 83-9-5;
(3) fraud and misrepresentation;
(4) breach of contract; and
(5) civil conspiracy.
The Woods propose a class of:
"All patients with generic commercial insurance who made a
payment
to the Providers or their debt collectors after receiving a
balance
bill.
The class period includes patients who made such a payment
within
three years prior to the commencement of this action on February
26, 2020.
In the alternative, the Woods request "the Court exercise its
discretion to redefine the damages class, or certify an issues
class to resolve the following questions of law: Whether the
practice of collecting balance bills breaches the oral or implied
contract made between the patient and the Providers at the point of
sale and/or is an actionable violation of Miss. Code section
83-9-5(1)(i) and, thus, violates 15 U.S.C. section 1692f(1), which
forbids the collection of any amount not expressly authorized by
the agreement creating the debt or permitted by law.
North Mississippi is a nonprofit, community-owned, and integrated
health care delivery system
A copy of the Court's order dated Sept. 29, 2023 is available from
PacerMonitor.com at https://bit.ly/48EhRnO at no extra charge.[CC]
NORTHWELL HEALTH: Faces K.M. Suit Over Disclosure of Private Info
-----------------------------------------------------------------
K.M, on behalf of herself and all others similarly situated,
Plaintiff v. Northwell Health, Inc., Defendant, Case No.
1:23-cv-08407 (S.D.N.Y., Sept. 22, 2023) arises from the
Defendant's unlawful practice of disclosing its patients'
confidential information, including personally identifiable
information and protected health information to third parties,
including Meta Platforms, Inc. d/b/a Meta and Google, Inc. without
consent, through the use of tracking software that is embedded in
Defendant's website.
Unbeknownst to Plaintiff and Class Members, however, Defendant had
embedded
the Facebook Pixel into its Website, surreptitiously forcing
Plaintiff and Class Members to transmit their Private Information
to Facebook. The Plaintiff alleges claims against the Defendant for
breach of fiduciary duty/confidentiality, invasion of privacy,
breach of implied contract, unjust enrichment, negligence and for
violations of Electronic Communications Privacy Act.
Northwell Health, Inc. owns and controls https://www.northwell.edu,
which it encourages patients to use for finding and booking medical
appointments, locating physicians and treatment facilities,
communicating medical symptoms, searching medical conditions and
treatment options, and more. [BN]
The Plaintiff is represented by:
Douglas H. Sanders, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (516) 203-7616
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and -
Glen Abramson, Esq.
Alex M. Honeycutt, Esq.
MILBERG COLEMAN BRYSON PHILLIPS
GROSSMAN, PLLC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (866) 252-0878
E-mail: gabramson@milberg.com
ahoneycutt@milberg.com
- and -
Bryan L. Bleichner, Esq.
Philip J. Krzeski, Esq.
CHESTNUT CAMBRONNE PA
100 Washington Avenue South, Suite 1700
Minneapolis, MN 55401
Telephone: (612) 339-7300
Facsimile: (612) 336-2940
E-mail: bbleichner@chestnutcambronne.com
pkrzeski@chestnutcambronne.com
- and -
Terence R. Coates, Esq.
Dylan J. Gould, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
119 E. Court St., Ste. 530
Cincinnati, OH 4502
Telephone: (513) 651-3700
Facsimile: (513) 665-0219
E-mail: tcoates@msdlegal.com
dgould@msdlegal.com
- and -
Joseph M. Lyon, Esq.
THE LYON LAW FIRM, LLC
2754 Erie Ave.
Cincinnati, OH 45208
Telephone: (513) 381-2333
Facsimile: (513) 766-9011
E-mail: jlyon@thelyonfirm.com
NORTHWESTERN MEDICINE: Court Hears Oral Arguments in BiPA Suits
---------------------------------------------------------------
Andrew Adams, writing for My Journal Courier, reports that the
medical industry is going to court over the state's stringent laws
on biometrics privacy as lawmakers are thinking about broader
privacy frameworks for children's online data.
The Illinois Supreme Court has heard oral arguments in a pair of
class action suits brought by two suburban nurses, Lucille Mosby
and Yana Mazya, who allege their employers violated the state's
Biometric Information Privacy Act. The landmark 2008 law gives
Illinois residents the ability to sue companies that misuse
biometric data, such as fingerprints or facial scans.
It's the same act that formed the basis of several high-profile
lawsuits that have led to massive penalties or settlements, such as
the $650 million Facebook agreed to pay its Illinois users after it
was alleged to have misused biometric data.
The nurses allege that, by requiring the use of fingerprint
scanners to open medicine cabinets, Northwestern Medicine, UChicago
Medicine and Becton, Dickinson and Co. -- the company that makes
the medicine cabinets -- violated the Biometric Information Privacy
Act.
According to court filings, the hospital systems did not collect
written releases allowing them to use the fingerprint data, nor did
the hospitals provide information about how the biometrics would be
stored or eventually destroyed. They also failed to obtain consent
to disclose the fingerprint data to third-party vendors that host
it.
But lawyers for the defendants argued the use of biometrics to
manage medicine falls under an exemption to the law because it
counts as, in the words of the law, "health care treatment,
payment, or operations under the federal Health Insurance
Portability and Accountability Act."
The exact wording of the law, and the definition of "under," faced
scrutiny from lawyers on both sides of the case as they argued
about the intersection of the Biometric Information Privacy Act and
the federal HIPAA law.
"If the defendant is correct, that means the General Assembly
decided that as much as 10 percent of the Illinois workforce should
have no biometric privacy protection whatsoever, simply by virtue
of working in the health care field," the nurses' attorney, Jim
Zouras, told the court.
Beyond the specifics of the case, the hospitals' lawyers also
focused on its potential industrywide impact. In their legal brief
filed ahead of arguments, they said health care providers would
potentially face "catastrophic liability."
In a February decision against fast food chain White Castle, the
Supreme Court ruled that each separate violation of the Biometric
Information Privacy Act -- meaning every time the company required
an employee to sign in using biometric data -- represented a
separate violation of the law. With penalties of $1,000 or $5,000
per violation included, White Castle estimated the ruling could
eventually cost the company $17 billion.
That level of liability could be disastrous if applied to the
medical community, the defendants argued.
"Biometrics are industry standard at this point," Matt Wolfe, a
lawyer for Becton, Dickinson and Co., told the justices. "Over the
last 15 years, this type of technology has become extremely widely
used in the health care setting."
A lower court agreed with the nurses in 2022, with Justice Sharon
Oden Johnson of the First District Appellate Court writing
lawmakers "did not exclude health-care employee biometric
information" from biometrics protections.
The case has drawn the attention of both the wider medical industry
and the business community.
Several major advocacy and trade groups filed amicus briefs in the
case, generally supporting the exclusion of health care workers
from Biometric Information Privacy Act protections. These include
the Illinois Health and Hospital Association, the Advanced Medical
Technology Association and a coalition of private hospitals
including Springfield-based Memorial Health, Northshore University
Health System and Rush University System for Health in the Chicago
area.
The Illinois Chamber of Commerce and the U.S. Chamber of Commerce
also filed briefs warning of potential "annihilative liability" for
hospitals if the court rules in the nurses' favor, referencing a
line from a dissent written by Justice David Overstreet in the
White Castle case.
While most of the amicus briefs supported the hospitals' arguments,
the American Nurses Association filed an amicus brief supporting
the plaintiffs.
"To exempt hundreds of thousands of healthcare workers from
coverage without explicit language from the legislature to that
effect would be contrary to BIPA's purpose," the organization's
lawyers wrote in their brief.
The justices will now take the arguments into consideration,
although there is no timetable for a decision being filed.
Considering broader framework
While the high court considers the state's existing privacy
regulations, lawmakers are thinking about broader privacy
frameworks. A Senate committee met in Chicago to discuss an
unrelated proposal that would create a framework for data privacy
focused on strengthening protections for minors online.
The hearing, held by the Senate Judiciary Committee, was to discuss
a proposal from Sen. Sue Rezin, R-Morris, to implement an
"age-appropriate design code." The proposed policy would require
companies that offer online services "likely to be accessed by
children" to assess the impact of their product on children and
explain privacy policies in language that children would
understand.
Under Rezin's bill as it is written, businesses would be liable for
civil penalties of up to $2,500 per affected child for negligent
violations of privacy protections and up to $7,500 per affected
child for intentional violations.
The proposal would also place new privacy and data restrictions on
companies, limiting their ability to profit from and share data
collected from or about minors. This has drawn support from some
youth activists, who say a policy like this could help curb the
harmful effects of social media.
"I'm here to speak on behalf of my generation for the harm we've
experienced," Zamaan Qureshi, co-chair of the advocacy organization
Design It For Us, told lawmakers. "Some of our generation have
developed depression, eating disorders and attempted or taken their
life due to social media."
Rezin said the proposal is "almost identical" to a similarly named
California law passed in 2022. That law was inspired in turn by
another similarly named policy adopted in the United Kingdom.
The age-appropriate design code would also require companies to
estimate the age of their users to a "reasonable level of
certainty" and apply child-focused protections based on that
estimated age. Alternatively, the companies could apply those
protections to all users.
But Tyler Diers, a representative of the tech industry lobbying
group TechNet, argued such a requirement would encourage web
companies to collect more personally identifiable information than
they already do, leading to increased risks from data breaches.
TechNet's members include Apple, Google and Meta -- the owner of
Facebook and Instagram -- among other large tech companies.
A federal judge in the Northern District of California granted a
preliminary injunction in a lawsuit brought by tech lobbying group
NetChoice that objects to California's age-appropriate design code
law. The judge found the tech industry's argument that the law
violates the First Amendment would likely prevail at trial.
When asked about the pending legal challenges to the ideas
underlying her bill, Rezin said she expects to iron out some of
those details in future legislation.
"The hearing was a first step in educating my colleagues on how
social media companies are creating algorithms to addict minors
because they view minors as a product they can advertise to, to
make money off of," Rezin said. [GN]
OTAY LAKES: Court Dismisses Renn Complaint With Leave to Amend
--------------------------------------------------------------
In the lawsuit captioned ALBERT RENN, on behalf of himself, all
others similarly situated, and the general public, Plaintiff v.
OTAY LAKES BREWERY, LLC, Defendant, Case No. 3:23-cv-01139-GPC-BLM
(S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for
the Southern District of California issued an order, sua sponte,
dismissing complaint for lack of subject matter jurisdiction with
leave to amend.
The Defendant filed a motion to dismiss the complaint pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 9(b) which was fully
briefed. However, after a review of the briefing and the complaint,
the Court, sua sponte, dismisses the complaint for lack of subject
matter jurisdiction under Rule 12(b)(1) with leave to amend.
On June 20, 2023, Plaintiff Albert Renn filed a purported class
action complaint against Defendant Otay Lakes Brewery, LLC, for
fraudulently marketing its alcoholic "Nova Kombucha" as "good for
you" and promoting "health, balance and goodness." The Plaintiff
challenges the following two statements on the labels of the
Products as being deceptive:
(1) Some things in life are good for you, other things in life
are fun. They don't meet each other very often, but when
they do, life gets pretty brilliant, pretty quickly; and
(2) Nova Easy Kombucha is one of those rare things where
health, balance and goodness get a lot more interesting.
The Plaintiff complains that these health and wellness messages are
false and misleading because Nova Kombucha contains six to eight
percent alcohol by volume and any alcohol consumption harms health
by causing cancer and other chronic diseases.
The Plaintiff started purchasing various flavors of Nova Kombucha
once a month starting around 2022 from local stores, such as Vons
and Ralphs. When he purchased the Product, the Plaintiff was
looking for a healthy product, and as such, read and relied on the
health and wellness representations on the Product. As a lay
consumer, the Plaintiff did not have specialized knowledge about
the composition of the Product or the effects of consuming the
Product. At the time he purchased the Product, the Plaintiff was
unaware of the extent to which consuming the Product adversely
affects health or what amount of Kombucha might have such an
effect.
The health and wellness representations were deceptive because the
Product contains alcohol and any consumption of alcohol increases
the risk of disease, the Plaintiff contends. He claims he would not
have purchased or would not have been willing to pay as much for
the Product if he knew the labeling claims were false and
misleading. The Product costs more than similar products without
misleading labels and would have cost less absent the false and
misleading statements.
The Plaintiff alleges causes of action under 1) California's Unfair
Competition Law, ("UCL"), California Business & Professions Code;
2) California's False Advertising Law, ("FAL"), California Business
& Professions Code; 3) California's Consumers Legal Remedies Act
("CLRA"); 4) California Commercial Code section 2313(1) for breach
of express warranties; 5) California Commercial Code section 2314
for breach of the implied warranty of merchantability; and claims
for 6) negligent representation; 7) intentional misrepresentation;
and 8) unjust enrichment.
In its Rule 12(b)(6) motion, the Defendant argues that the
Plaintiff lacks "standing" to pursue any of his claims because he
does not sufficiently allege that he purchased any specific flavor
of the Products. The Defendant also asserts that the Plaintiff
lacks "standing" because he fails to allege that the labels of the
fifteen Products, at issue, are substantially similar to those he
allegedly purchased.
Judge Curiel finds that the Plaintiff fails to address the
Defendant's argument on his failure to allege the specific Products
he purchased.
As a threshold issue, Judge Curiel notes that the Defendant does
not articulate whether the Plaintiff lacks Article III standing,
which must be raised under Rule 12(b)(1), or statutory standing,
which must be brought under Rule 12(b)(6). Notwithstanding the
Defendant's failure to assert Article III standing under Rule
12(b)(1), courts have an independent obligation to determine
whether subject matter jurisdiction exists, even in the absence of
a challenge from any party.
Thus, after the Court's review, it concludes under Rule 12(b)(1),
it lacks subject matter jurisdiction, and as such, sua sponte,
dismisses the complaint.
While the Court lacks subject matter jurisdiction over all claims
in the complaint, the Court also addresses the Defendant's argument
that the Plaintiff does not have Article III standing to pursue
injunctive relief because he cannot establish a likelihood of
future harm because he now knows the Products contain alcohol and
the potential harm in consuming alcohol. The Plaintiff responds
that he has sufficiently alleged future harm based on his desire to
purchase the Products in the future.
Judge Curiel finds that the Plaintiff cannot plausibly allege he
will be subject to future harm. Accordingly, the Court also
concludes that he has failed to allege Article III standing for
injunctive relief.
Because the Plaintiff may be able to demonstrate subject matter
jurisdiction, the Court grants him leave to amend.
Based on this reasoning, the Court, sua sponte, dismisses the
complaint for lack of subject matter jurisdiction with leave to
amend. Because the complaint has been dismissed for lack of subject
matter jurisdiction, the Defendant's motion to dismiss is denied as
moot. The Plaintiff will file an amended complaint within 21 days
of the date of this Order. The hearing date of Sept. 22, 2023, was
vacated.
A full-text copy of the Court's Order dated Sept. 14, 2023, is
available at https://tinyurl.com/yrvckj8u from PacerMonitor.com.
OXFORD INDUSTRIES: Hernandez Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Oxford Industries,
Inc. The case is styled as Marlelis Hernandez, individually, and on
behalf of all others similarly situated v. Oxford Industries, Inc.,
Case No. 1:23-cv-08362 (S.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Oxford Industries, Inc. -- https://www.oxfordinc.com/ -- is a
publicly traded clothing company in the United States that
specializes in high-end clothing and apparel.[BN]
The Plaintiff is represented by:
Ian Piasecki, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (347) 745-0445
Email: ipiasecki@mizrahikroub.com
PAUL BOND BOOT: Jones Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Paul Bond Boot
Company. The case is styled as Damon Jones, on behalf of himself
and all others similarly situated v. Paul Bond Boot Company, Case
No. 1:23-cv-08373 (S.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Paul Bond Boots -- https://paulbondboots.com/ -- has been
handcrafting fine, American made custom cowboy boots in Nogales,
Arizona since 1946,.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
PHARMACARE US: Continuance of Class Cert Hearing Sought
-------------------------------------------------------
In the class action lawsuit captioned as MONTIQUENO CORBETT and ROB
DOBBS, individually and on behalf of all others similarly situated,
v. PHARMACARE U.S., INC., Case No. 3:21-cv-00137-JES-AHG (S.D.
Cal.), the Parties file a joint motion for continuance of hearing
on Plaintiffs' motion for class Certification.
The Plaintiffs' counsel Trenton Kashima was slated to argue
Plaintiffs' Motion to the Court and the due date for his first
child was estimated for the following week.
Accordingly, the Plaintiffs seek a continuance of the hearing, from
October 4, 2023, until October 25, 2023 or November 8, 2023.
Pursuant to Local Rule 7.1(g), once our office heard Mr.
Kashima’s exciting news, Plaintiffs promptly reached out to
defense counsel to determine whether Defendant would agree to the
continuance.
PharmaCare is a Wellness and Fitness Services, Health & Nutrition
Products, and Nutricueticals company.
A copy of the Parties' motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3rzupfl at no extra
charge.[CC]
The Plaintiffs are represented by:
Russell Busch, Esq.
Rachel Soffin, Esq.
Trenton R. Kashima, Esq.
Alex Straus, Esq.
Nick Suciu III, Esq.
Martha A. Geer, Esq.
Erin Ruben, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
First Tennessee Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
E-mail: rbusch@milberg.com
rsoffin@milberg.com
tkashima@milberg.com
astraus@milberg.com
nsuciu@milberg.com
mgeer@milberg.com
eruben@milberg.com
The Defendant is represented by:
Giovanna A. Ferrari, Esq.
SEYFARTH SHAW LLP
560 Mission Street, Suite 3100
San Francisco, CA 94105
Telephone: (415) 544-1019
E-mail: gferrari@seyfarth.com
PHP OF NC: Johnson Seeks to Certify FLSA Collective Action
----------------------------------------------------------
In the class action lawsuit captioned as MICHAEL JOHNSON,
individually and on behalf of others similarly situated, v. PHP OF
NC, INC., and JUSTINE WIGGINS, Case No. 5:23-cv-00462-M-RJ
(E.D.N.C.), the Plaintiff asks the Court to enter an order
conditionally certifying FLSA collective action and to approving
notice.
PHP of NC is in the Mentally Handicapped Home business.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/45hKXpU at no extra
charge.[CC]
The Plaintiff is represented by:
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
- and -
Brian L. Kinsley, Esq.
CRUMLEY ROBERTS, LLP
2400 Freeman Mill Road, Suite 200
Greensboro, NC 27406
Telephone: (336) 333-9899
Facsimile: (336) 333-9894
E-mail: blkinsley@crumleyroberts.com
PHYSIO LOGIC MEDICINE: Martinez Files ADA Suit in E.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Physio Logic
Medicine, P.C. The case is styled as Silvia Martinez, on behalf of
herself and all others similarly situated v. Physio Logic Medicine,
P.C., Case No. 1:23-cv-07254 (E.D.N.Y., Sept. 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Physio Logic -- https://physiologicnyc.com/ -- is a fully
integrated medical and wellness center partnered with a
full-service Pilates and movement studio, offering an approach to
healthcare that emphasizes a comprehensive scope of treatment
options to target individual ailments and maximize overall
health.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
PINNACLE TOO: Charles Suit Seeks to Certify Class Action
--------------------------------------------------------
In the class action lawsuit captioned as DEXLON CHARLES, on behalf
of himself, FLSA Collective Plaintiffs and the Class, v. PINNACLE
TOO, LLC., d/b/a PINNACLE ELECTRIC, AGIR ELECTRICAL, LTD., d/b/a
PINNACLE ELECTRIC, FRANKCRUM 6, INC., d/b/a FRANKCRUM FRANK KRUM
JR. and ANTHONY GIRONTA, Case No. 1:22-cv-04232-JMF-JW (S.D.N.Y.),
the Plaintiff asks the Court to enter an order certifying class and
appointing class counsel.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3ZIvhLw at no extra
charge.[CC]
The Plaintiff is represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
PROCTER & GAMBLE: NPI Sues Over Ineffective Medications
-------------------------------------------------------
Newton's Pharmacy, Inc., individually and on behalf of those
similarly situated v. PROCTER & GAMBLE COMPANY; KENVUE, INC.;
MCNEIL CONSUMER HEALTHCARE; RECKITT & BENCKISER LLC; and
GLAXOSMITHKLINE, LLC, Case No. 1:23-cv-00613-MRB (S.D. Ohio, Sept.
28, 2023), is brought arising from the Plaintiff's and putative
class members' purchase of ineffective over-the-counter ("OTC")
medications drugs that were manufactured, promoted, marketed,
distributed and sold as providing nasal decongestant effects when
the active ingredient in those medications, phenylephrine ("PE")
has failed to demonstrate any pharmacological benefit to treat that
symptom beyond what would be offered by a placebo when administered
orally.
On September 11, 2023, the Nonprescription Drug Advisory Committee
("NDAC") to the Food and Drug Administration issued a report
concluding that oral OTC medications using PE as the active
ingredient to treat nasal congestion had no effect beyond placebo
in treating that condition. At the time the NDAC issued this report
the Plaintiff and thousands of other similarly situated retail
pharmacies across the country had hundreds of these OTC medications
stocked on its shelves that immediately lost value. The FDA is now
considering whether to pull these products from the market and
retail pharmacies are now stuck having to decide whether to pull
these products from its shelves, cancel wholesaling contracts, or
impose disclaimers that the manufacturers of these products have
failed to include on their own products.
The case involves some of the most well-known consumer facing
brands in the OTC medication market including Advil, Tylenol,
Dayquil, Nyquil, TheraFlu, Sudafed and many others. Throughout this
Complaint the Defendants' OTC products containing orally
administered PE as the active ingredient to provide nasal
decongestant relief shall be referred to as the "Ineffective
Decongestant Products."
The Plaintiff seeks damages and equitable relief, individually and
on behalf of other class members, for Defendants' improper
marketing sales tactics that have resulted in retail pharmacy loss
of sales and other pecuniary harm as a result of Defendant's unfair
and deceptive practices, says the complaint.
The Plaintiff is a licensed retail pharmacy and has been in the
business of providing both prescription and OTC medications along
with other personal and household goods to members of the general
public for over fifty years.
P&G has been engaged in the manufacturing, sale, and distribution
of OTC medications containing PE that have been falsely marketed as
providing nasal decongestant relief when in fact PE provides no
such relief.[BN]
The Plaintiff is represented by:
Alyson S. Beridon, Esq.
HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL, PLLC
600 Vine St., Suite 2720
Cincinnati, OH 45202
Phone: (513) 381-2224
Fax: (615) 994-8625
Email: alyson@hsglawgroup.com
- and -
Benjamin A. Gastel, Esq.
Joey Leniski, Esq.
HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL, PLLC
223 Rosa L. Parks Avenue, Suite 300
Nashville, TN 37203
Phone: (615) 800-6225
Fax: (615) 994-8625
Email: ben@hsglawgroup.com
joey@hsglawgroup.com
- and -
James A. Streett, Esq.
STREETT LAW FIRM, P.A.
107 West Main
Russellville, AR 72801
Phone: 479-968-2030
Fax: 479-968-6253
Email: james@streettlaw.com
PROGRESSIVE DIRECT: $2MM Settlement in Stedman Suit Has Prelim. OK
------------------------------------------------------------------
Judge Jamal N. Whitehead of the U.S. District Court for the Western
District of Washington, Seattle, grants the motion for preliminary
approval of the $2,150,000 class action settlement in the lawsuit
titled JOEL STEDMAN and KAREN JOYCE, Plaintiffs v. PROGRESSIVE
DIRECT INSURANCE COMPANY, Defendant, Case No. 2:18-cv-01254-JNW
(W.D. Wash.).
Plaintiffs and Class Representatives Joel Stedman and Karen Joyce,
on behalf of themselves and the Certified Class they represent, as
well as Progressive Direct Insurance Company, have submitted a
Stipulated Motion for Preliminary Approval of Class Action
Settlement.
The class action lawsuit was brought by Stedman and Joyce to
challenge the Defendant's alleged practice of limiting
Personal-Injury-Protection ("PIP") insurance benefits based on a
finding that the insured had reached or would soon reach "Maximum
Medical Improvement" ("MMI") in violation of Washington
Administrative Code (WAC) Section 284-30-395.
WAC 284-30-395(1) dictates that insurers can only deny, limit, or
terminate benefits if the insurer determines claimed medical
expenses are not reasonable, not necessary, not related to the
subject accident, or not incurred within three years of the date of
the loss.
Progressive is an automobile insurance carrier who does business in
King County, Washington. Stedman is a third-party beneficiary under
a contract between Progressive and Maria Eggers. Stedman was
injured in an automobile accident in March 2016. Joyce is insured
under a contract with Progressive. Joyce was injured in an
automobile accident in August 2014.
Both Plaintiffs Stedman and Joyce received PIP benefits following
their respective car accidents. While they were receiving their
benefits, Progressive requested that they undergo a medical
examination for determining, among other things, whether they had
reached, in the eyes of their insurer, maximum medical improvement
or MMI. Progressive then terminated their respective PIP benefits
contending that they had reached MMI and no "further treatment
would be deemed reasonable or necessary or otherwise recoverable
from Progressive's PIP coverage.
The Plaintiffs brought this lawsuit on behalf of all first-party
insureds and third-party beneficiaries, who made a claim for PIP
benefits and who had their benefits subsequently terminated,
limited, or denied based on Progressive's claim that the insured
had reached MMI. They allege that Progressive violated WAC
284-30-395 by limiting PIP benefits based on the finding that the
insured had reached or would soon reach MMI.
The Plaintiffs filed this action in the Superior Court of the State
of Washington on July 25, 2018. On Aug. 24, 2018, the Defendant
removed this case to the U.S. District Court for the Western
District of Washington. On Oct. 29, 2018, Progressive filed a
motion for judgment on the pleadings. On March 4, 2019, the Court
granted this motion in part, dismissing Joyce's claims that were
controlled by a three-year statute of limitations. The Court also
consolidated this case with Peoples v. United Servs. Auto. Ass'n,
which was another case alleging bad faith in relation to PIP
claims.
The Court certified two questions to the Washington State Supreme
Court pursuant to RCW Section 2.60.020. On Nov. 27, 2019, the
Washington Supreme Court issued its opinion in Peoples v. United
Servs. Auto. Ass'n, which answered both questions in the
Plaintiffs' favor. The case was remanded to this Court on Jan. 7,
2020.
The Plaintiffs moved for class certification on Oct. 27, 2020. On
July 19, 2021, the Court certified the class of "[a]ll insureds, as
defined within Progressive's Automobile Policy, and all third-party
beneficiaries of such coverage, under any Progressive insurance
policy effective in the state of Washington between July 24, 2012
and the present, for whom Progressive limited benefits, terminated
benefits, or denied coverage based, even in part, upon its
determination that its insured or beneficiary had reached 'maximum
medical improvement' or a 'fixed and stable' condition" ("Class").
In October 2021, the Court ruled that where the insurer had
incorporated the terms MMI or "fixed and stable" into its coverage
determination as justification, in whole or in part, for the
termination of benefits, a reasonable fact finder could conclude
that the insurer violated WAC 284-30-395. The Court also denied the
motion for summary judgment filed by Progressive.
Class Counsel prepared a comprehensive class list of all
individuals with claims facially satisfying the certified class
definition. The class list contained 442 individuals. After
receiving Court approval, certification notice was distributed to
all of the class members. One class member elected to opt-out.
On May 11, 2023, the Class moved for partial summary judgment. On
June 15, 2023, the Parties notified the Court that they had reached
a settlement in principle.
Class counsel made a settlement demand to Progressive in August
2022. Then, the Parties agreed to participate in mediation. On Jan.
10, 2023, the Parties mediated the case, but they did not reach an
agreement resolving the case. In March 2023, the Parties exchanged
offers again but were again unable to reach an agreement. After the
Class moved for partial summary judgment, the Parties reengaged in
settlement negotiations.
On June 8, 2023, the Parties reached an agreement in principle. On
Aug. 3, 2023, the Parties finalized execution of a comprehensive
settlement agreement ("Settlement").
The Settlement class is identical to the Class that the Court
certified. The Settlement class is currently comprised of 441
individual claimants.
Pursuant to the terms of the Settlement, Progressive will pay
$2,150,000 to create a common fund. Class members will release
Progressive, its employees, and affiliated entities from: any and
all claims that relate to Progressive's adjustment of their PIP
claim, including claims for declaratory relief, breach of contract,
common law bad faith or violation of the implied duty of good faith
and fair dealing, and violations of the Washington State Consumer
Protection Act (RCW 19.86) or Insurance Fair Conduct Act (RCW 48.30
and WAC Section284-30), and any claim to attorneys' fees and costs
arising from these claims, which were affirmatively asserted or
could have been asserted in the Lawsuit ("Released Claims").
The median net allocation is $1,600. Class representatives have
asked for a service award of $5,000 each to be paid out of the
common fund. Class counsel has represented that they will ask for
no more than 33.33% of the gross settlement fund and for
reimbursement of out-of-pocket litigation costs under $15,000.
Additionally, administration costs are expected to be under $10,000
and are to be paid out of the fund.
The Court preliminarily finds, among other things, that the class
representatives and class counsel adequately represented the class
for purposes of Rule 23(e)(2)(A) of the Federal Rules of Civil
Procedure.
For the reasons set forth in this Order, the Court rules that the
Parties' Conditional Settlement Agreement is preliminarily approved
as fair, reasonable, and adequate and within the range of
reasonableness for preliminary settlement approval.
A final approval hearing (the "Fairness Hearing") will be held
before the Court on Jan. 17, 2024, as set forth in the Notice to
the Class, to determine whether the Agreement is fair, reasonable,
and adequate and should be approved. Papers in support of final
approval of the Agreement, the incentive award to the Plaintiff,
and Class Counsel's application for an award of attorneys' fees,
costs, and expenses must be filed with the Court according to the
schedule set forth here.
Class Notice must be sent within sixty (60) days following entry of
this Order. Simpluris may serve as Administrator. The Administrator
will provide mail notice to persons in the Class by mail, and when
available, by e-mail as well, according to the program described in
the Settlement Agreement. Skip tracing must be performed by the
Administrator for all returned mail.
The Court confirms that it is appropriate for the Defendant to
provide the information necessary to provide the notice
contemplated here and to administer the settlement, including
names, addresses, and personal identifying information.
Persons in the Class will possess the right to opt out by sending a
written request to a designated address within thirty-five (35)
days after the Notice Mailing Date. All Class Members who do not
opt out in accordance with the terms set forth here will be bound
by all determinations and judgments in this action.
A full-text copy of the Court's Order dated Sept. 14, 2023, is
available at https://tinyurl.com/ymr2n8v6 from PacerMonitor.com.
PROGRESSIVE DIRECT: Grady Seeks Rule 23 Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as SHONACIE GRADY,
individually and on behalf of others similarly situated, v.
PROGRESSIVE DIRECT INSURANCE COMPANY, Case No.
0:22-cv-00866-NEB-DLM (D. Minn.), the Plaintiff asks the Court to
enter an order granting class certification pursuant to Federal
Rule of Civil Procedure 23(a) and (b)(3).
Progressive underwrites auto, fire, marine, and casualty insurance.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/46dXLPo at no extra
charge.[CC]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: lloginov@shamisgentile.com
ashamis@shamisgentile.com
- and -
Hank Bates, Esq.
Lee Lowther, Esq.
CARNEY BATES & PULLIAM, PLLC
519 W. 7th Street
Little Rock, AR 72201
Telephone: (501) 312-8500
Facsimile: (501) 312-8505
E-mail: hbates@cbplaw.com
llowther@cbplaw.com
- and -
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (786) 623-0915
E-mail: scott@edelsberglaw.com
chris@edelsberglaw.com
PUFF CORP: Miller Files ADA Suit in W.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Puff Corp. The case
is styled as Kimberly Miller, on behalf of herself and all other
persons similarly situated v. Puff Corp., Case No. 1:23-cv-01033
(W.D.N.Y., Sept. 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Puffco -- https://www.puffco.com/ -- is a vaporizing innovator
acclaimed for its award-winning vape designs and advanced cannabis
concentrate technology.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
- and -
Michael A. LaBollita, Esq.
GOTTFRIED & GOTTFRIED, LLP
122 East 42nd. St., Suite 620
New York, NY 10168
Phone: (212) 228-9795
Email: michael@gottlieb.legal
RB HEALTH: Striegel Sues Over False Marketing and Advertising
-------------------------------------------------------------
Annette Striegel, individually and on behalf of all others
similarly situated v. RB Health (US), LLC, Case No. 2:23-cv-20552
(D.N.J., Sept. 21, 2023), is brought because of Defendant's fraud,
false marketing, false advertising, breach of contract, breach of
warranty, and breaches of state law consumer protection statutes on
behalf of individuals purchased Defendant's tablet style
phenylephrine medicine, "Maximum Strength Sinus-Max Severe
Congestion & Pain" ("Medicine", or "Drugs"), that were
manufactured, marketed, labeled, distributed, and sold by
Defendant.
The Defendant is a multinational corporation producing dozens and
dozens of consumer medicines, as documented in its corporate
wordmark, and website branding, and content, "Maximum Strength for
day & night sinus multi-symptom relief. 3 maximum strength
medicines in one dose help clear nasal passages, relieve that
annoying headache and give mucus the boot." Unfortunately,
Defendant's provide and sell Drugs that do not work.
The Defendant is seeking out consumers who are vulnerable positions
given their need for medicine related to nasal and sinus issues.
Unfortunately, Defendant's "Mucinex Sinus Max" branded Drugs,
containing phenylephrine, are ineffective as decongestants. These
Drugs, specifically those containing phenylephrine, were brought to
market as alternatives for other types of medicines that were prone
to abuse by illicit drug producers, as to create methamphetamine.
In fact, these Drugs took the shelf space of older, truly effective
drugs, says the complaint.
The Plaintiff purchased the Drugs from a local Family Dollar
store.
The Defendant is an New Jersey based corporation.[BN]
The Plaintiff is represented by:
Philip Furia, Esq.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Phone: (845) 483-7100
Fax: (888) 749-7747
Email: furiap@thesultzerlawgroup.com
- and -
Roy T. Willey, IV, Esq.
Paul J. Doolittle, Esq.
Blake G. Abbott, Esq.
POULIN | WILLEY ANASTOPOULO, LLC
32 Ann Street
Charleston, SC 29403
Phone: (803) 222-2222
Email: roy.willey@poulinwilley.com
paul.doolittle@poulinwilley.com
blake.abbott@poulinwilley.com
cmad@poulinwilley.com
RECKITT BENCKISER: Prescott Wins Prelim. Nod of Class Settlement
----------------------------------------------------------------
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, issued a
revised order granting the Plaintiffs' motion for preliminary
approval of proposed class action settlement in the lawsuit
entitled STEVEN ROBERT PRESCOTT, DONOVAN MARSHALL, MARIA CHRISTINE
ANELLO, DARLENE KITTREDGE, TREAHANNA CLEMMONS, and SUSAN ELIZABETH
GRACIALE, individually and on behalf of all others similarly
situated, Plaintiffs v. RECKITT BENCKISER LLC, Defendant, Case No.
5:20-cv-02101-BLF (N.D. Cal.).
After considering Plaintiffs' Motion for Preliminary Approval and
to Direct Notice of Settlement, the Court concludes it is
appropriate to preliminarily approve the parties' proposed class
action settlement and to direct notice in a reasonable manner to
Class Members, who would be bound by the proposed settlement, since
the Court will likely be able to (i) approve the proposed
settlement under Rule 23(e)(2), and (ii) certify the class for
purposes of judgment on the proposed settlement.
Based on its review, the Court finds that it will likely be able to
approve the proposed settlement as fair, reasonable, and adequate
under Rule 23(e)(2) of the Federal Rules of Civil Procedure.
The Court further finds that it will likely be able to certify the
Classes for purposes of judgment on the proposal. The Court
preliminarily certifies the following Classes pursuant to Rule
23(b)(3):
(a) California Class: All residents of California who
purchased Woolite laundry detergent with a label bearing
the phrases "Color Renew" and/or "revives colors" from
Feb. 1, 2017, to May 1, 2023;
(b) New York Class: All residents of New York who purchased
Woolite laundry detergent with a label bearing the phrases
"Color Renew" and/or "revives colors" from Feb. 22, 2018,
to May 1, 2023; and
(c) Massachusetts Class: All residents of Massachusetts who
purchased Woolite laundry detergent with a label bearing
the phrases "Color Renew" and/or "revives colors" from
Feb. 22, 2017, to May 1, 2023.
Excluded from the Settlement Classes are: (a) Reckitt, any entity
in which Reckitt has a controlling interest, Reckitt's officers,
directors, legal representatives, successors, subsidiaries and
assigns; (b) any judge, justice or judicial officer presiding over
this action or settlement conferences and the members of their
immediate families and staff; (c) any person who timely and
properly excludes himself or herself from the Settlement Class.
The membership of the proposed settlement classes is identical to
the membership of the classes that were certified in the Court's
July 14, 2022 order granting class certification.
Pursuant to 23(g), the Court appoints Eric Kafka of Cohen Milstein
Sellers & Toll as Class Counsel for the Settlement Classes.
The Court directs Epiq Class Action & Claims Solutions, Inc.
("Epiq") to fulfill its notice duties and responsibilities
specified in this Order and the Settlement Agreement.
The Court finds that the provisions for notice to the Class set
forth in the Settlement Agreement satisfy the requirements of due
process and Federal Rule of Civil Procedure 23 and provide the best
notice practicable under the circumstances. Epiq is set to commence
disseminating notice to the Class on Oct. 5, 2023.
Class Members, who wish to opt-out and exclude themselves from the
Class, may do so by submitting such request in writing consistent
with the specifications listed in the Class Notice no later than
Dec. 19, 2023. Any Class member, who wishes to object to the
Settlement, must submit a written objection to the Court no later
than Dec. 19, 2023.
All Class members, who do not opt out and exclude themselves, will
be bound by the terms of the Settlement Agreement upon entry of the
Final Approval Order and Judgment.
The Court will hold a hearing on entry of final approval of the
settlement, an award of fees and expenses to Class Counsel, and
service awards to the Class Representatives at 9:00 a.m. on Feb. 1,
2024.
At the final approval hearing, the Court will consider: (a) whether
the settlement should be approved as fair, reasonable, and adequate
for the Class, and judgment entered on the terms stated in the
settlement; and (b) whether the Plaintiffs' application for an
award of attorney fees and expenses to Class Counsel and service
awards to Class Representatives ("Fee Application") should be
granted.
The Plaintiffs will move for final settlement approval and approval
of attorney's fees, litigation expense reimbursements, and class
representative service awards no later than Dec. 19, 2023. No later
than Jan. 9, 2024, the Plaintiffs may file reply papers or a brief
with any additional information in support of final approval and
the Plaintiffs' attorneys' fee application.
A full-text copy of the Court's Revised Order dated Sept. 14, 2023,
is available at https://tinyurl.com/4jnws82t from
PacerMonitor.com.
RESTORE FRANCHISING: Martinez Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Restore Franchising,
LLC. The case is styled as Silvia Martinez, on behalf of herself
and all others similarly situated v. Physio Logic Medicine, P.C.,
Case No. 1:23-cv-07224 (E.D.N.Y., Sept. 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Restore Hyper Wellness franchises -- https://franchise.restore.com/
-- offer pain management to help people manage chronic pain,
accelerate the healing of injuries, restore athleticism, and
improve their longevity.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
RIVERSIDE TRANSPORTATION: Phillips Sues Over Unpaid Wages
---------------------------------------------------------
Anton Phillips, individually and on behalf of all others similarly
situated v. RIVERSIDE TRANSPORTATION, INC., Case No. 2:23-cv-02440
(D. Kan., Sept. 28, 2023), is brought alleging that Riverside has
engaged in a pattern of conduct that violates state and federal law
concerning the payment of wages and the treatment of commercial
truck drivers in violation of the Fair Labor Standards Act
("FLSA"), and the Federal Motor Carrier Safety Administration's
("FMCSA") Truth-in-Leasing regulations ("TIL regulations").
The Defendant failed to pay Phillips and other individuals who have
worked for Riverside as "lease drivers" all the wages they were
entitled to receive in violation of the FLSA. In addition,
Riverside has violated the FLSA by failing to comply with the lease
agreement, escrow, and "chargeback" provisions of the Federal Motor
Carrier Safety Administration's ("FMCSA") Truth-in-Leasing
regulations ("TIL regulations"). In this action, Phillips seeks:
certification of an FLSA collective and a Rule 23 class of
individuals who have worked for Riverside providing commercial
truck driving services and whom Riverside has classified as
"independent contractors" during the relevant statutory periods; an
order enjoining Riverside from further violations of the FLSA and
TIL regulations; restitution for all unpaid wages, improper
deductions, and damages sustained as a result of Riverside's TIL
violations; liquidated damages; pre- and post-judgment interest;
attorneys' fees and costs; and any other relief that this Court
deems appropriate, says the complaint.
The Plaintiff performed commercial truck driving services as a
"lease driver" for Riverside Transportation, Inc.
Riverside is in the business of providing commercial freight
transportation services--i.e., transporting goods in interstate
commerce--for customers using motor carrier vehicles.[BN]
The Plaintiff is represented by:
Brendan J. Donelon, Esq.
DONELON, P.C.
4600 Madison, Ste. 810
Kansas City, MO 64112
Phone: 816-221-7100
Fax: 816-709-1044
Email: brendan@donelonpc.con
- and -
Hillary Schwab, Esq.
Brant Casavant, Esq.
Rachel Smit, Esq.
FAIR WORK P.C.
192 South Street, Suite 450
Boston, MA 02111
Phone: (617) 607-3260
Email: hillary@fairworklaw.com
brant@fairworklaw.com
rachel@fairworklaw.com
RLB USA: Fails to Pay Proper Overtime Wages, Garcia Suit Claims
---------------------------------------------------------------
JOSE GARCIA, on behalf of himself and all other persons similarly
situated, Plaintiff v. RLB USA SAFETY AND HARDWARE INC. and MOE
HASSAID, Defendants, Case No. 2:23-cv-07083 (S.D.N.Y., Sept. 22,
2023) alleges that the Defendants violated the Fair Labor Standards
Act, the New York Labor Law, and the supporting New York State
Department of Labor Regulations.
The Plaintiff was employed by the Defendants as a store clerk from
in or about May 2023 through the present. Throughout his
employment, Plaintiff's regular rate of pay was $600 per week
regardless of the number of hours he worked each week.
Plaintiff Garcia claims that the Defendants failed to pay him
premium overtime wages for all hours he worked in excess of 40
hours per week. Among other things, Plaintiff also alleges that the
Defendants failed to pay minimum wages for every hour he worked and
failed to provide spread of hours pay.
RLB USA Safety and Hardware Inc. is engaged in a retail business
selling hardware, tools, and other home improvement goods. [BN]
The Plaintiff is represented by:
Matthew J. Farnworth, Esq.
Peter A. Romero, Esq.
ROMERO LAW GROUP PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Telephone: (631) 257-5588
ROSE & REMINGTON: Mercedes Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Rose & Remington
North, Inc. The case is styled as Luis Mercedes, on behalf of
himself and all others similarly situated v. Rose & Remington
North, Inc., Case No. 1:23-cv-08556 (S.D.N.Y., Sept. 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Rose & Remington -- https://www.roseandremington.com/ -- is a
contemporary & affordable lifestyle brand serving locations
throughout OH, IN, KY, WV & TN and other surrounding states.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
SAMSARA INC: Rosen Law Firm Investigates Securities Claims
----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Sept. 24
announced an investigation of potential securities claims on behalf
of shareholders of Samsara Inc. (NYSE: IOT) resulting from
allegations that Samsara may have issued materially misleading
business information to the investing public.
SO WHAT: If you purchased Samsara securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law Firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=19245 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On September 21, 2023, before the market
opened, the investment firm Spruce Point Capital Management, LLC
released a report entitled "The Accounting for Things" (the
"Report"), which outlined why it believes the price of Samsara
stock will decline. Among other things, the Report alleged that
Samsara is overstating its gross and EBITDA margins, in addition to
other accounting issues.
On this news, Samsara stock fell $1.67 per share, or 6.62%, to
close at $23.55 on September 21, 2023.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
SHEKINAH LOGISTICS: Guzman Files Suit in Cal. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against Shekinah Logistics,
LLC. The case is styled as Cynthia Guzman, on behalf of herself and
all others similarly situated, and on behalf of the general public
v. Shekinah Logistics, LLC, Case No. STK-CV-UOE-2023-0010302 (Cal.
Super. Ct., San Joaquin Cty., Sept. 28, 2023).
The case type is stated as "Unlimited Civil Other Employment."
Shekinah Logistics is a proud partner of Amazon, Logistics.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
OTKUPMAN LAW FIRM, ALC
28632 Roadside Dr, Ste 203
Agoura Hills, CA 91301-6015
Phone: (818) 293-5623
Fax: (888) 850-1310
Email: roman@OLFLA.com
SIEMENS INDUSTRY: Enomoto Suit Transferred to C.D. California
-------------------------------------------------------------
The case styled as Chanielle Enomoto, Brandon Johnson, individually
and on behalf of all others similarly situated v. Siemens Industry,
Inc., Case No. 3:23-cv-03779 was transferred from the U.S. District
Court for the Northern District of California, to the U.S. District
Court for the Central District of California on Sept. 28, 2023.
The District Court Clerk assigned Case No. 8:23-cv-01827-JWH-ADS to
the proceeding.
The nature of suit is stated as Other Labor for Labor/Mgmnt.
Relations.
Siemens AG -- http://www.siemens.com/-- is a German multinational
technology conglomerate.[BN]
The Plaintiff is represented by:
Jonathan M. Lebe, Esq.
Ryan Ely, Esq.
Shigufa Kazi Saleheen, Esq.
LEBE LAW APLC
777 South Alameda Street, 2nd Floor
Los Angeles, CA 90021
Phone: (213) 444-1973
Fax: (213) 457-3092
Email: jon@lebelaw.com
Shigufa@lebelaw.com
The Defendant is represented by:
Armida Derzakarian, Esq.
September Rea, Esq.
POLSINELLI LLP
2049 Century Park East, Suite 2900
Los Angeles, CA 90067
Phone: (310) 556-1801
Fax: (310) 556-1802
Email: aderzakarian@polsinelli.com
srea@polsinelli.com
SMILE BRANDS: Durantas Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Smile Brands, Inc.
The case is styled as Hakan Durantas, on behalf of himself and all
others similarly situated v. Smile Brands, Inc., Case No.
1:23-cv-06984 (E.D.N.Y., Sept. 21, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Smile Brands -- https://smilebrands.com/ -- based in Irvine,
California, is one of the largest providers of dental support
services in the United States.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
STABILITY AI: Faces Copyright Infringement Class Action Suit
------------------------------------------------------------
Aamir Sheikh, writing for Cryptopolitan, reports that in a
groundbreaking legal development, a class action lawsuit titled
Andersen v. Stability AI has ignited a heated debate over the
intersection of artificial intelligence (AI) and copyright
infringement. Three artists have come together to challenge the
actions of AI products that generate images, accusing them of both
copying and pilfering copyrighted material.
This lawsuit brings to the forefront essential questions
surrounding intellectual property rights in the age of AI, and the
outcome could have far-reaching implications for the rapidly
evolving AI landscape. To shed light on this pivotal case, we turn
to Randy McCarthy, a seasoned intellectual property attorney with a
wealth of knowledge on AI's impact on copyrights, trademarks, and
patents.
Crucial questions in copyright
Randy McCarthy, a registered U.S. patent attorney and partner at
the esteemed national law firm Hall Estill, has been closely
monitoring the Andersen v. Stability AI case. McCarthy's expertise
in the field of intellectual property law prosecution, litigation,
and counseling uniquely positions him to offer valuable insights
into the unfolding legal battle.
McCarthy stresses the legal significance of the case, underlining
that the class action lawsuit introduces crucial questions that
require resolution concerning the rights of artists and other
content creators when confronted with AI systems. He emphasizes
that the ultimate judgment in this case has the potential to become
a groundbreaking legal precedent, exerting a lasting influence on
the AI industry's trajectory in the years ahead.
Delving into the case's intricacies, McCarthy highlights that the
complainants are asserting direct copyright infringement by the
Stability AI system. They contend that this infringement has
occurred from two distinct perspectives: one related to the
utilization of training data and the other concerning the internal
algorithm employed by the AI system.
Expanding on the core inquiries posed by the case, McCarthy
clarifies that they encompass several essential aspects. These
encompass the extent to which copyrighted material can be employed
as training data for AI systems without obtaining permission. Also,
the case delves into the question of whether it is permissible to
incorporate copyrighted material into the AI algorithm itself
without prior authorization, or if such integration constitutes a
legally acceptable transformation. Also, the case calls into
question the role of substantial similarity in assessing
AI-generated content for potential infringement.
According to McCarthy, it appears improbable that the case will be
summarily dismissed, as the Federal Judge is presently deliberating
a motion to dismiss submitted by the defendants. McCarthy
anticipates that the Judge will probably decline the defendants'
motion and instead demand additional pleadings from the plaintiffs.
Currently, the plaintiffs are asserting direct infringement of the
works, as opposed to emphasizing the substantial similarity of the
output AI product, which has historically been the conventional
route for establishing copyright infringement.
AI and copyright in the bigger picture
McCarthy draws attention to another ongoing case, Getty Images
(US), Inc. v. Stability AI, which was also filed earlier this year
in Delaware. McCarthy observes that the Getty Images (US), Inc. v.
Stability AI case primarily focuses on the substantial similarity
of the output images, encompassing concerns such as the
inappropriate inclusion of Getty Images watermarks. He points out
that these two cases, including Andersen v. Stability AI,
collectively address the majority of the pertinent issues, making
them both cases of significant interest and importance in the
ongoing copyright debate.
As the legal battle over AI-generated content and copyright
infringement unfolds, the AI industry, content creators, and legal
experts are closely monitoring these cases. The verdicts in
Andersen vs. Stability AI and Getty Images (US), Inc. vs. Stability
AI are poised to set critical precedents in defining the boundaries
of intellectual property rights in the ever-evolving realm of
artificial intelligence. The legal outcomes in these cases will
undoubtedly shape the future landscape of AI technology, leaving an
indelible mark on the interplay between creativity and automation.
[GN]
STATE FARM: Baldwin Seeks to Certify National Class
---------------------------------------------------
In the class action lawsuit captioned as PHILLIP S. BALDWIN,
Individually and as Special Administrator of the Estate of Phillip
D. Baldwin, and on behalf of all others similarly situated, v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STATE FARM CLASS
ACTION FIRE AND CASUALTY COMPANY, PATRICK CAMPBELL INSURANCE AGENCY
INC., and PATRICK CAMPBELL, a registered agent, and JOHN DOES
1-100, Case No. 4:23-cv-00008-BSM (E.D. Ark.), the Plaintiff asks
the Court to enter an order certifying a National Class defined
as:
"All citizens and residents of the United States having
insurance
agreements with State Farm Fire in the five years preceding the
filing of this action and until the National Class receives
notice
of certification under Rule 23(c) of the Federal Rules of Civil
Procedure and having each of the following required elements
within
the policy and its file:
a. Insurance coverage of a motorcycle;
b. Containing a rejection form(s) of either UM or UIM coverage;
c. Having a purported signature (electronic or otherwise) of the
National Class member on such rejection form(s);
d. Having filed a claim(s) for coverage under either UM or UIM;
and,
e. Having the claim(s) denied on the basis the insured had
rejected
UM or UIM coverage as demonstrated by the signed rejection
form(s).
Excluded from the National Class are the following:
1) Any member of the Class that timely opts out of the National
Class;
2) All Defendants, including their parents, subsidiaries,
controlling persons or entities, directors, officers,
employees,
and their agents, brokers, and independent contractors
selling
State Farm Fire insurance policies; and,
3) The presiding judge and his or her immediate family members.
On June 18, 2020, Phillip D. Baldwin was driving his motorcycle on
Highway 46 in Grant County, Arkansas, when Richard Brewer drove a
county vehicle across the centerline into Mr. Baldwin's lane and
struck him. Mr. Baldwin died of his injuries. Mr. Baldwin was a
State Farm insured under policy number 344 6493-C05-04.
On September 29, 2020, State Farm denied all coverage to Phillip D.
Baldwin, stating that the policy in question carried only liability
coverage for his motorcycle according to their letter dated the
same.
State Farm offers vehicle, auto, accident, homeowners, condo
owners, renters, life and annuities, fire and casualty, health,
disability, flood, business, and boat insurance products and
services.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/46A4uTw at no extra
charge.[CC]
The Plaintiff is represented by:
Scott Poynter, Esq.
POYNTER LAW GROUP, PLLC
407 President Clinton Ave., Suite 201
Little Rock, AR 72201
Telephone: (501) 812-3943
E-mail: scott@poynterlawgroup.com
- and -
Paul Byrd, Esq.
Patrick Kirby, Esq.
Jonathan Hutto, Esq.
PAUL BYRD LAW FIRM, PLLC
415 North McKinley, Suite 210
Little Rock, AR 72205
Telephone: (501) 420 3050
Facsimile: (501) 420 3128
E-mail: Paul@PaulByrdLawFirm.com
Patrick@PaulByrdLawFirm.com
Jonathan@PaulByrdLawFirm.com
TATA STEEL: About 2,000 IJmuiden Residents Join Health Hazard Suit
------------------------------------------------------------------
John Beer, writing for NL Times, reports that about 2,000 people
living in the vicinity of Tata Steel in IJmuiden have registered
with the Frissewind.nu foundation to join the class action against
the company. The first legal steps have thus been taken and those
affected are aware that it is not possible to negotiate with Tata
Steel outside the court, AD reports.
The class action lawsuit is the result of a long dispute with Tata
Steel and its part in the health hazards in the residential area.
However, according to the latest RIVM report, the outcome is clear:
there is a causal link between the substances released by Tata
Steel into the environment and the increased risk of cancer and
other diseases that have since become more common in the area
around the company.
In this regard, the report confirmed the suspicions that have long
prevailed among residents. Namely, that Tata Steel costs lives. In
the nearest village of Wijk aan Zee alone, four percent of
residents are affected by cancer and lose an average of 2.5 months
of their lives to the substances exposed by the steel company.
For John Beer, who is the personal injury lawyer and board member
of residents' group Frissewind.nu, the latest RIVM report is
supportive. Even if not much new information came out of it. But it
is important for the people in the region to have these events
documented, he says. "The realization that this company actually
took the life of a loved one. Over the years, for all kinds of
social reasons, it hasn't always been easy to admit that and to
allow that realization. That's why it's important that RIVM has now
come to these conclusions," he told AD.
The lawyer will sit down with Tata Steel during the fall and start
negotiations. Initially out of court. "Because that is what the law
says: you must first reach an agreement with the other party," Beer
explained. Even though he will soon be talking with Tata Steel, "we
are not naive in thinking that we will be able to achieve this
outside the court," he stressed.
The powerful steel company is said to have known about its harmful,
carcinogenic substances as early as the mid-1970s. For Tata Steel,
this is merely a historical fact, Beer said.
Nevertheless, the people joining the class action still have a long
way to go to obtain compensation. This is because the first step is
for Tata Steel to first admit its guilt, whether out of court or
not. After that, the extent of the damage must be assessed and
calculated for each individual, according to the newspaper.
"I don't know how many more people will join and what will happen
again tomorrow. But we will proceed step by step," Beer emphasized.
[GN]
TIRE DISCOUNTERS: Court Snobs Global Settlement in Lindsey Suit
---------------------------------------------------------------
Judge Michael H. Watson of the U.S. District Court for the Southern
District of Ohio, Eastern Division, denies without prejudice the
parties' joint motion for approval of a global settlement in the
lawsuit titled Justin Lindsey, Plaintiff v. Tire Discounters, Inc.,
Defendant, Case No. 2:15-cv-03065-MHW-KAJ (S.D. Ohio).
The Fair Labor Standards Act ("FLSA") case began with agreed
conditional certification, but Justin Lindsey is currently the only
remaining plaintiff. As the parties well know, the Court eventually
de-certified the case as a collective action resulting in 80 former
opt-ins joining as named plaintiffs in a new FLSA action, Kozusco
v. Tire Discounters, 2:18-cv-86. When the Court determined that
those named plaintiffs were improperly joined in the Kuzusko case,
some elected to file individual suits in different district courts,
and others re-filed separate lawsuits in the Court (Case Nos.
2:21-cv-4817; 2:21-cv-4813; 2:21-cv-4815; and 2:21-cv-4841).
The parties now move for approval of a global settlement for all 80
plaintiffs, who originally opted into the Lindsey lawsuit during
the period of conditional certification (and for Lindsey).
The Court has reviewed the Settlement Agreement and motion for
settlement approval. Applying the law applicable to FLSA
settlements, the Court finds the substance of the proposed
settlement to be a fair, reasonable, and adequate resolution of a
bona fide legal dispute and that the five traditionally considered
factors support approval.
Whether Lindsey and the other plaintiffs were properly categorized
as exempt employees in their capacities as Service Managers is
hotly debated between the parties, and there is, thus, clearly a
bona fide legal dispute, Judge Watson says. Further, the settlement
(which allocates an award for backpay to each plaintiff based upon
that plaintiff's specific employment records) represents
approximately 60% of the alleged overtime wages over a three-year
look-back period, despite the parties contesting whether a two- or
three-year statute of limitation would apply in these cases. As the
motion notes, a 60% recovery with a generous three-year statute of
limitations application is in line with other settlement amounts
that the Court has previously approved. The settlement, thus, seems
both fair and reasonable.
Turning to the five supporting factors, Judge Watson finds there is
first no indication of fraud or collusion-indeed, the parties'
litigious, lengthy history of litigation dispels any notion of
fraud. Second, the procedural posture of this case proves that
continued litigation would be complex, expensive, and (especially
given the number of plaintiffs involved), lengthy.
Third, the parties have exchanged extensive discovery that includes
the taking of multiple depositions, which shows that the settlement
was reached based upon a full gathering of factual information
pertinent to the cases. Fourth, the parties acknowledge that the
Plaintiffs' likelihood of success on the merits of the FLSA issue
(not to mention the certification issue) is precarious. Fifth, the
public interest favors settlement of claims.
In addition, the Court has scrutinized the attorney's fees to be
awarded in this case and finds them reasonable given the result
achieved for the Plaintiffs and the time and effort their counsel
has invested in these cases over the years.
Nonetheless, the Court denies the parties' joint motion without
prejudice and specifically denies authorization of the Notice of
Settlement and declines to approve the "back of check" release
language.
The parties seek recertification of a collective action for
settlement purposes only. They argue that "this settlement is no
different than any other post-certification collective action
settlement. All opt-ins have already consented to join the action
and have granted the Named Plaintiff the authority to resolve these
claims on their behalf.
To the contrary, at this stage, no individual plaintiff has granted
Lindsey authority to settle his or her claims, Judge Watson says.
The original eighty opt-ins are no longer parties to the Lindsey
matter; their claims were dismissed. Any authority they previously
granted Lindsey no longer exists.
Moreover, the Court made specific findings in its decertification
Order that the Plaintiffs are not similarly situated. The parties
cannot undo the Court's conclusions by agreement, and the Court
will not accept a fiction to facilitate settlement logistics.
At bottom, the parties ask the Court to approve a settlement that
will bind individually named plaintiffs, who are pursuing their own
individual cases--some in courts other than this one--to a
settlement reached by a different plaintiff in a different case,
and to which they will have no opportunity to opt out.
The Court will not do so. Judge Watson holds that each Plaintiff is
currently the decisionmaker in his or her individual case and, as
such, must specifically approve of any settlement before that case
is terminated.
Relatedly, the Court will not approve mere "back of the check"
release language.
Accordingly, should the parties desire Court approval of the
settlement, they must demonstrate that each Plaintiff whose case
will be terminated in the Court has been given a copy of the
Settlement Agreement and has affirmatively signed the same. Upon
obtaining those signatures, Judge Watson says the parties should
move for approval of the Settlement Agreement in each case pending
before this Court.
Alternatively, as the Court has concluded that the substance of the
settlement is fair, the Court will permit termination of the cases
currently assigned to Judge Watson without further Court approval,
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Thus,
the parties may file a stipulated dismissal in each case pending
before Judge Watson that is signed by both all Plaintiff(s) named
in that case and the Defendant. Such a filing will be
self-effectuating without further action from the Court.
In no event will the Court approve the settlement or dismissal of
claims currently pending in other courts.
A full-text copy of the Court's Opinion and Order dated Sept. 14,
2023, is available at https://tinyurl.com/tzewvdfx from
PacerMonitor.com.
TRADE FORCE NYC: Martinez Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Trade Force NYC, Inc.
The case is styled as Silvia Martinez, on behalf of herself and all
others similarly situated v. Trade Force NYC, Inc., Case No.
1:23-cv-07251 (E.D.N.Y., Sept. 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Trade Force provides an application for POP management and trade
marketing.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
UNITED AIRLINES: Faces Class Action Suit Over Lost Luggage
----------------------------------------------------------
Katie Balevic, writing for Business Insider, reports that a
traveler says United Airlines lost his luggage, and he's taking
them to court over it.
According to his attorneys, Jack Lipeles flew from Las Vegas,
Nevada, to Los Angeles, California, in November 2022 on a United
flight, and he paid the $35 fee to have one bag checked.
When Lipeles arrived in Los Angeles, "he went to pick up his
luggage, but was unable to find his bag. United informed Plaintiff
that his luggage was stolen and that he should speak to the police
to report the stolen luggage," the federal lawsuit, filed in
California in late August, said.
But when Lipeles went to the airport's police, he received
troubling news, according to the complaint.
Airport police told Lipeles he should file a claim with United
"because it is United's usual policy upon losing luggage to falsely
state the luggage has been stolen in order to avoid reimbursing for
the loss thereof," the lawsuit said, adding that Lipeles never
received any reimbursement from United for his lost luggage or the
$35 fee.
Lipeles and his attorneys, who did not immediately respond to
Insider's request for comment, are bringing the case as a
class-action suit targeting United's "unfair and unlawful business
practices."
Reached for comment, a spokesperson for United declined to comment
on the suit, calling it an "ongoing legal matter."
According to data from the Department of Transportation, United
Airlines and its partners handled some 5,793,084 bags in November
2022, and 31,374 of them were mishandled, which the DOT defines as
bags that are "lost, damaged, delayed, and pilfered, as reported by
or on behalf of the passenger."
"Airlines are required to compensate passengers for lost, damaged,
or delayed bags. For domestic flights, DOT allows airlines to limit
their liability for lost, damaged, or delayed bags to $3,800," the
DOT said in a comment to Insider. "Airlines may pay more than these
amounts but are not required to do so." [GN]
UNITED STATES: Court Grants in Part Bid to Dismiss Schelske v. DoD
------------------------------------------------------------------
Judge James Wesley Hendrix of the U.S. District Court for the
Northern District of Texas, San Angelo Division, grants in part and
denies in part the Defendants' motion to dismiss the lawsuit
entitled ROBERT SCHELSKE, et al., Plaintiffs v. LLOYD J. AUSTIN,
III, in his official capacity as United States Secretary of
Defense, et al., Defendants, Case No. 6:22-CV-00049-H (N.D. Tex.).
Less than one year ago, the Court ordered the Army to cease adverse
action against 10 service members, who declined to receive the
mandated COVID-19 vaccine due to their sincerely held religious
beliefs. The Court found that the Plaintiffs were likely to succeed
on their claims under the Religious Freedom Restoration Act (RFRA),
and suffer irreparable harm absent immediate relief. The question
now is one of mootness.
Despite the Army's consistent resistance throughout this litigation
to halting its challenged--and likely illegal--conduct, Judge
Hendrix says the Plaintiffs' claims are now substantially mooted by
two events beyond the Army's control. First, Congress required the
Army to rescind its vaccine mandate, which in turn rendered the
guidance implementing it ineffective. Second, in materially similar
circumstances, the Fifth Circuit held that an appeal was moot due
to the rescission of the challenged policies--a holding that
largely controls the outcome here.
Given these developments, the Court finds that no remediable injury
traceable to the Army's conduct remains against any non-separated
plaintiff. In contrast, Plaintiff Luke Chrisman--who remains
separated due to his refusal to vaccinate--has alleged an injury in
fact and, based on RFRA's plain language, need not exhaust
administrative remedies before seeking judicial relief. For these
reasons, the Court grants in part and denies in part the
Defendants' Motion to Dismiss.
In their initial complaint, the Plaintiffs asked the Court for the
following relief: (1) a declaration that the Army's mandatory
vaccine policy and its actions to enforce it were illegal and
unconstitutional; (2) class certification of other similarly
situated service members; (3) a preliminary injunction precluding
the Defendants from taking further enforcement action against the
Plaintiffs or those similarly situated to them; and (4) preliminary
and final injunctive relief (i) prohibiting the Defendants from
retaliating against those who sought a religious exemption or
taking further punitive action against those whose
religious-exemption requests were denied, (ii) directing the
Defendants to "discontinue their religious discrimination and
eradicate it root and branch," and (iii) requiring the Defendants
to reprocess the Plaintiffs' religious-exemption requests without
religious discrimination and to provide appropriate restorative
relief, including correction of the Plaintiffs' personal records
and backpay, if warranted.
The Defendants moved to dismiss this case in January 2023, and, in
response, the Plaintiffs filed an amended complaint. The amended
complaint adds a new plaintiff, Luke Chrisman, who was separated
from the Army in November 2022 due to his failure to comply with
the vaccine mandate after the denial of his religious-exemption
request.
Thus, in addition to the relief requested in their initial
complaint, the Plaintiffs ask the Court to, with respect to
Plaintiff Chrisman and others similarly situated to him, upgrade
their discharges to "honorable," remove adverse characterizations
and prohibitive re-enlistment codes from personnel files, and offer
reinstatement. Plaintiff Chrisman has not, however, sought
administrative review of his discharge.
In their amended complaint, the Plaintiffs ask the Court to order
the removal of any adverse actions or reports from personnel
records and "direct the institution of special promotion selection
boards" to consider promotions for those who were denied a
promotion or denied the ability to attend a course required for
promotion. Moreover, they ask the Court to enjoin and direct the
revision of the Army's current policy for evaluating
religious-exemption requests to immunization requirements,
specifically preventing the Defendants from using generalized
compelling interests to determine whether a Soldier is eligible for
an exemption and implementing a double standard for the processing
of medical or other administrative exemptions.
The Defendants then moved to dismiss the amended complaint. They
argue that because the Secretary of Defense, in response to a
congressional directive, rescinded the vaccine mandate, the
Plaintiffs' challenge to the mandate and the adverse actions
associated with it are moot.
Judge Hendrix notes that courts across the country dismiss related
challenges to the military's vaccine mandate as moot. Following the
Fifth Circuit's holding in U.S. Navy SEALs 1–26 v. Biden, 72
F.4th 666, 669–70 (5th Cir. 2023), six Plaintiffs voluntarily
dismiss their claims, but five Plaintiffs remain. In light of the
rapidly changing legal and factual landscape, the Court ordered the
parties to file a joint report to supplement their initial
filings.
In that notice, and following the Fifth Circuit's holding in Navy
SEALs, the parties jointly stipulated to the dismissal without
prejudice of the claims of Huntley Bakich, Samuel Conklin, Dominic
Mell, Collin Morrison, Nicholas Saballa, and Peter Testa because
they "received all the relief that they required." The remaining
Plaintiffs--Robert Schelske, Joshua Costroff, Samuel Galloway,
Zakai Bufkin, and Luke Chrisman--persist in their claims. The
remaining Plaintiffs allege specific, limited ongoing injuries
caused by the Defendants' past enforcement of the vaccine mandate.
Judge Hendrix finds that (a) the Defendants' rescission of the
vaccine mandate and its implementing guidance renders claims
concerning the lawfulness of the mandate and its application moot,
and no exception applies; (b) Plaintiffs Schelske, Costroff,
Galloway, and Bufkin (the Non-Separated Plaintiffs) lack standing
because they fail to demonstrate any continuing injury that the
Court can remedy; and (c) Plaintiff Chrisman has standing to seek
relief related to his discharge, and RFRA does not require
administrative exhaustion before proceeding here.
Judge Hendrix holds that the Plaintiffs may seek backpay in
connection with claims for reinstatement, but the Court lacks
jurisdiction to consider any claim for backpay connected to delayed
promotions.
For these reasons, the Court finds that the judicially created,
prudential doctrine of administrative exhaustion--though firmly
adhered to in other contexts--does not comport with the
congressional directive found in RFRA's statutory scheme. The Court
is, therefore, left with its "virtually unflagging" duty to "hear
and decide" cases within its jurisdiction under RFRA, including
Plaintiff Chrisman's claim here.
For these reasons, the Court grants in part and denies in part the
Defendants' Motion to Dismiss. The Defendants' rescission of the
vaccine mandate, as directed by Congress, and their reversal of
adverse actions against soldiers who sought a religious exemption
have largely mooted the Plaintiffs' claims. Therefore, the Court
dismisses the claims of the following Plaintiffs without prejudice
for lack of subject matter jurisdiction: Robert Schelske, Joshua
Costroff, Samuel Galloway, and Zakai Bufkin.
In addition, the Court approves the parties' joint Stipulation of
Dismissal of the claims of Huntley Bakich, Samuel Conklin, Dominic
Mell, Collin Morrison, Nicholas Saballa, and Peter Testa. Those
claims will also be dismissed without prejudice pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A)(ii).
Nonetheless, the addition of Plaintiff Chrisman, who seeks relief
related to his discharge, has breathed life into this otherwise
moot action, Judge Hendrix says. The Court finds that it retains
jurisdiction to determine his claim. Moreover, given the
outcome-determinative nature of the exhaustion issue and because
the Fifth Circuit has not squarely addressed it, the Court notes
that it would seriously consider a motion to certify this Order for
interlocutory appeal limited to the issue of whether Plaintiff
Chrisman must exhaust administrative remedies before seeking
judicial review of his discharge.
Finally, because the operative Motion to Dismiss superseded the
Defendants' original Motion to Dismiss, the Court denies the
Defendants' original Motion to Dismiss as moot. Given recent,
significant developments in the facts and law governing this case,
the Court also denies the Plaintiffs' Motion for Class
Certification, Motion for Class-Wide Preliminary Injunction, and
Request to Update Class Definition as moot without prejudice to
refiling. Any prospective motion for class certification or
class-wide preliminary injunction will be limited to the remaining
claims not dismissed by this Order.
A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 14, 2023, is available at https://tinyurl.com/azjaukc6 from
PacerMonitor.com.
UNITED STATES: DoD to Start Upgrading Discharge Statuses Amid Suit
------------------------------------------------------------------
Mary Shinn, writing for The Gazette, reports that the Department of
Defense announced it will start proactively upgrading the discharge
statuses of some veterans kicked out of the military for their
sexual orientation and denied benefits for serving — a good step
that does not go far enough some advocates say.
Deputy Secretary of Defense Kathleen Hicks said the new initiative
will start with those who received less-than-honorable discharges
under Don't Ask Don't Tell, a policy in place from the early 1990s
to 2011. The proactive review will help address the injustice of
the policy, she said.
"We know correcting these records cannot fully restore the dignity
taken from LGBTQ+ service members when they were expelled from the
military. It doesn't completely heal the unseen wounds that were
left," she said.
A class action lawsuit filed in August that asked the DOD to start
proactively reviewing and upgrading discharge records highlighted
some of the harm LGBTQ+ experienced under Don't Ask Don't Tell and
the total ban on non-heterosexual service members that preceded
it.
A named plaintiff, Navy veteran James Gonzales had demonstrated
strong leadership skills as a signalman before he was investigated
for his sexual orientation in the late 1980s. When he was found to
be gay, he was demoted and given an other-than-honorable discharge
status making him ineligible for health care through the Department
of Veterans Affairs. He lived with HIV and without health insurance
for about 30 years, according to the lawsuit filed by the Impact
Fund, a nonprofit that focuses on social justice, and two other
groups.
Upgrading a veterans discharge status can restore those benefits.
Since Don't Ask Don't Tell was rescinded 12 years ago, veterans
discharged for their orientation have been directed to a lengthy
review board process that asks veterans prove discrimination
occurred, even though the government has admitted the policy was
discriminatory, the lawsuit said.
For Jocelyn Larkin, executive director of the Impact Fund, the
announcement is a good step, but it will only help a portion of
those hurt by the military's policies.
"We are delighted that they are saying they are going to do this,"
she said, noting that at this point it is not legally binding.
Since 1980, DOD data released to the Impact Fund shows, 35,000
service members were discharged because of their sexual
orientation, Larkin told The Gazette. DOD data shows that about
6,400 veterans were discharged while Don't Ask Don't Tell was in
place with non-honorable statuses, such as under honorable, other
than honorable and uncharacterized.
Only 1,683 veterans have made it through process to change their
discharge status, or less than 5% of those impacted since 1980,
Larkin said. It's a process that can be opaque, take years and be
overwhelming for those who had a traumatizing experience before
they left the military, Larkin said.
In some cases, the discharge process may have included a
humiliating investigation after suspicions were raised about the
service member's orientation. Some also had their orientation
disclosed on their discharge paperwork.
"Just having this information on their discharge documents gives
people a great feeling of shame and deprives them of the strong
sense of pride and honor of American who have served," she said.
The Impact Fund expects to press on with the lawsuit that asks the
DOD to proactively review all discharges processed under Don't Ask
Don't Tell and the policies that preceded it and remove references
to the veterans' sexual orientation and upgrade veterans' discharge
statuses to honorable.
"A real serious historical injustice can be addressed," Larkin
said.
Hicks encouraged those who believe their discharge status was
caused by wrongful laws or policies to apply for a change. Even
though the DOD will be proactively reviewing records if the cause
of the discharge wasn't properly recorded, the review could miss
some veterans, she said.
A new outreach campaign to encourage veterans to apply started with
a website at defense.gov/Spotlights/Dont-Ask-Dont-Tell-Resources/.
[GN]
VENCHI US: Martin Files ADA Suit in E.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Venchi US, Inc. The
case is styled as Damian Martin, on behalf of himself and all
others similarly situated v. Venchi US, Inc., Case No.
1:23-cv-07236 (E.D.N.Y., Sept. 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Venchi US, Inc. -- https://eu.venchi.com/ -- offers premium
chocolates made in Italy since 1878.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
VERISK ANALYTICS: Faces Ahringer Securities Class Suit
------------------------------------------------------
Verisk Analytics, Inc. disclosed in its Form 10-Q for the quarterly
period ended June 30, 2023, filed with the Securities and Exchange
Commission on August 2, 2023, that on January 30, 2023, plaintiffs
Justin Ahringer and Michael Donner filed a putative class action
lawsuit in the United States District Court, Central District of
California, titled "Ahringer et al. v. LoanDepot, Inc. and Verisk
Analytics, Inc. d/b/a Jornaya," Case No.: 8:23-cv-00186.
Plaintiffs assert violations of California's Invasion of Privacy
Act, Unfair Competition Law, and a violation of class members'
privacy rights under the California Constitution. Plaintiffs allege
that the Defendants recorded visitors' electronic communications
without their consent. Plaintiffs seek to certify a nationwide
class of individuals who provided personal information on their
website's forms to receive a quote or apply for a loan. Plaintiffs
seek compensatory, statutory or punitive damages or restitution, as
well as reasonable attorney's fees and other costs. The company
filed a motion to dismiss plaintiffs' claims on April 13, 2023.
Verisk Analytics, Inc. is a strategic data analytics and technology
partner to the global insurance industry by empowering clients to
strengthen operating efficiency, improve underwriting and claims
outcomes, combat fraud and make informed decisions about global
risks, including climate change, extreme events, ESG
(environmental, social, and governance), and political issues
through advanced data analytics, software, scientific research, and
deep industry knowledge.
VIRTUAL DINING: Martinez Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Virtual Dining
Concepts, LLC. The case is styled as Silvia Martinez, on behalf of
herself and all others similarly situated v. Virtual Dining
Concepts, LLC, Case No. 1:23-cv-07228 (E.D.N.Y., Sept. 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Virtual Dining Concepts -- https://joinvdc.com/ -- is the leader in
celebrity restaurant brands.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
VIVENDI TICKETING: Loughead Files Suit in C.D. California
---------------------------------------------------------
A class action lawsuit has been filed against Vivendi Ticketing
U.S. LLC. The case is styled as Tom Loughead, individually and on
behalf of all others similarly situated v. Vivendi Ticketing U.S.
LLC, d/b/a See Tickets, Case No. 2:23-cv-08134 (C.D. Cal., Sept.
28, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
Vivendi Ticketing U.S. LLC doing business as See Tickets --
https://www.seetickets.com/ -- is the an international ticketing
services company based in Nottingham, England.[BN]
The Plaintiff is represented by:
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
280 South Beverly Drive
Beverly Hills, CA 92101
Phone: (858) 209-6941
Email: jnelson@milberg.com
WASHINGTON: Court Dismisses Demos Prisoner Suit Without Prejudice
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Judge Benjamin H. Settle of the U.S. District Court for the Western
District of Washington, Tacoma, dismisses without prejudice the
lawsuit styled JOHN ROBERT DEMOS, JR., Plaintiff v. JAY R. INSLEE,
Defendant, Case No. 2:23-cv-01171-BHS (W.D. Wash.).
The matter is before the Court on Magistrate Judge Michelle L.
Peterson's Report and Recommendation (R&R) recommending that the
Court deny pro se Plaintiff John Robert Demos' application to
proceed in forma pauperis, dismiss this case without prejudice, and
deny as moot his motion for appointment of counsel.
The R&R points out that Demos is subject to a Bar Order in this
District (and others), that he has already exceeded his annual
limit of three in forma pauperis applications, and that his
proposed class action complaint's general allegations and
grievances about uncomfortable conditions at the Washington State
Penitentiary in Walla Walla do not plausibly allege that he
personally faces imminent harm.
Judge Settle notes that a district judge must determine de novo any
part of the magistrate judge's disposition to which a party has
properly objected. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions. A proper
objection requires specific written objections to the findings and
recommendations in the R&R.
Mr. Demos' 38-page handwritten objections are not sufficient under
this standard, Judge Settle opines. He largely reiterates that
conditions are difficult in the prison, for all prisoners. Not only
is this not enough to overcome the Bar Order to sue on his own
behalf, but Demos cannot represent his fellow prisoners because he
is not an attorney, Judge Settle holds.
Representing another person or entity in court is the practice of
law, Judge Settle notes. To practice law, one must be an attorney.
There is a pro se exception to this general rule, under which a
person may appear and act in any court as his own attorney without
threat of sanction for unauthorized practice.
The pro se exception is, however, extremely limited and applies
only if the layperson is acting solely on his own behalf with
respect to his own legal rights and obligations, Judge Settle
explains. Although a non-attorney may appear in propria persona on
his own behalf, that privilege is personal to him. He has no
authority to appear as an attorney for anyone other than himself.
Accordingly, Judge Settle overrules Demos' objections. The R&R is
adopted. Demos' application to proceed in forma pauperis is denied,
and the case is dismissed without prejudice and without leave to
amend. The motion for appointment of counsel is denied as moot.
The Clerk will enter a judgment and close the case.
A full-text copy of the Court's Order dated Sept. 14, 2023, is
available at https://tinyurl.com/pjet2rf from PacerMonitor.com.
WASSERSTROM HOLDINGS: Court Consolidates Gruscinski & Coffey Suits
------------------------------------------------------------------
Judge Michael H. Watson of the U.S. District Court for the Southern
District of Ohio, Eastern Division consolidates the lawsuits
captioned Kevin Gruscinski, Plaintiff v. Wasserstrom Holdings,
Inc., Defendant, Case No. 2:23-cv-02070-MHW-EPD (S.D. Ohio), and
Gregory Coffey, Plaintiff v. Wasserstrom Holdings, Inc., Defendant,
Case No. 2:23-cv-2424 (S.D. Ohio).
Plaintiffs Kevin Gruscinski and Gregory Coffey move to consolidate
their cases and for appointment of interim co-lead counsel. Both
motions are unopposed.
The Plaintiffs' claims arise out of a data breach of Wasserstrom
Holdings, Inc.'s network. The Plaintiffs allege that the Defendant
used inadequate cybersecurity measures that left the Plaintiffs'
Personally Identifiable Information vulnerable to cyberattacks and
that the Defendant failed to inform the Plaintiffs promptly and
fully about the data breach.
The Plaintiffs bring claims on an individual and class-wide basis.
They now move to consolidate their cases and to appoint interim
co-lead counsel.
To promote judicial economy, Federal Rule of Civil Procedure 42
authorizes a court to consolidate two or more cases when each
involves a common question of law or fact.
Upon review, the Court finds that the cases should be consolidated.
Both cases involve common facts: the data breach. Both cases also
involve common questions of law: whether the Defendant had
unlawfully inadequate cybersecurity measures and whether the
Defendant properly notified the Plaintiffs of the data breach.
Judge Watson opines that consolidation will best serve the goals of
the Federal Rules of Civil Procedure by promoting judicial
efficiency, avoiding duplicative and potentially contradictory
rulings, and reducing the complexity of the cases, citing Magna
Electronics Inc. v. TRW Auto. Holdings Corp., Nos. 1:12-cv-654,
1:13-cv-324, 1:13-cv-687, 2013 WL 12086667, at *3 (W. D. Mich.
Sept. 25, 2013).
Prior to class certification, courts have the authority to appoint
interim lead counsel under Federal Rule of Civil Procedure
23(g)(3).
Here, the Plaintiffs ask for an order appointing Raina C. Borrelli
of Turke & Straus LLP, Dylan J. Gould of Markovits, Stock &
DeMarco, LLC, and Philip J. Krzeski of Chestnut Cambronne PA
("Counsel") as interim co-lead counsel.
Counsel have worked to identify and investigate potential claims,
have experience in handling class actions and other complex
litigation, have demonstrated at least some knowledge of applicable
laws, and have resources that counsel will commit to representing
the putative class. In addition, although not a formal factor,
Counsel's applications are unopposed. As a result, Counsel are
qualified to serve as interim co-lead counsel.
For these reasons, Judge Watson grants the Plaintiffs' motions. The
Court orders that Case Nos. 2:23-cv-2070 and 2:23-cv-2424 be
consolidated into Case No. 2:23-cv-2070; Case No. 2:23-cv-2070 will
be re-captioned as "In re Wasserstrom hloldings, Inc. Data Breach
Litigation. "
The Court appoints Raina C. Borrelli of Turke & Straus LLP, Dylan
J. Gould of Markovits, Stock & DeMarco, LLC, and Philip J. Krzeski
of Chestnut Cambronne PA interim co-lead counsel.
The Clerk will terminate all pending motions in Case Nos.
2:23-cv-2070 and 2:23-cv-2424.
A full-text copy of the Court's Opinion and Order dated Sept. 14,
2023, is available at https://tinyurl.com/225m8c5z from
PacerMonitor.com.
WEATHERFORD US LP: Approval of $325K Granillo Deal Held in Abeyance
-------------------------------------------------------------------
Magistrate Judge Christopher D. Baker of the U.S. District Court
for the Eastern District of California holds in abeyance the
Plaintiff's motion for approval of settlement in the lawsuit
captioned EDWARD GRANILLO, Plaintiff v. WEATHERFORD U.S., L.P., et
al., Defendants, Case No. 1:20-cv-01614-CDB (E.D. Cal.).
Before the Court is Plaintiff Edward Granillo's motion for approval
of settlement pursuant to the California Labor Code Private
Attorneys General Act of 2004 ("PAGA"). On May 30, 2023, the
parties consented to the jurisdiction of the United States
Magistrate Judge and the action reassigned to Judge Baker for all
purposes pursuant to 28 U.S.C. Section 636(c)(1).
Defendant Weatherford U.S., L.P., is a Louisiana limited
partnership authorized to and doing business in Kern County,
California. The Plaintiff was employed by Weatherford during the
PAGA Period as a non-exempt employee in Kern County. On Oct. 12,
2020, the Plaintiff submitted notice to the California Labor and
Workforce Development Agency ("LWDA") of his intent to seek civil
penalties under PAGA for violations of the California Labor Code
Sections 201, etc.
On Oct. 14, 2020, the Plaintiff filed a class action complaint in
the Superior Court of the State of California for the County of
Kern, Granillo v. Weatherford U.S., L.P., et al., No.
BCV-20-102386. Specifically, he alleged the Defendant: (1) failed
to pay minimum wages; (2) failed to pay overtime wages; (3) failed
to provide compliant rest periods and/or pay missed rest period
premiums; (4) failed to provide compliant meal periods and/or pay
meal period premiums; (5) failed to reimburse business expenses;
(6) failed to pay accrued vacation wages; (7) failed to provide
complete and accurate wage statements; (8) waiting time penalties;
(9) failure to pay timely wages; and (10) violations of the unfair
competition laws.
On Nov. 13, 2020, the Plaintiff's action was removed by the
Defendant to this Court. On Jan. 22, 2021, the Plaintiff filed a
first amended complaint to add one cause of action seeking
penalties pursuant to PAGA for the violations underlying
wage-and-hour claims of the original complaint and removed all
class claims based on an arbitration agreement with the Defendant.
Jonathan Melmed, Esq., the counsel for the Plaintiff, estimated the
Defendant's "total realistic exposure" for PAGA penalties is
$385,750. Thereafter, the parties agreed to participate in
mediation and exchanged discovery. Counsel for Plaintiff reviewed
the Defendant's policies and the Plaintiff's employment records,
analyzed, researched, and investigated potential issues related to
the case.
On Oct. 19, 2021, the parties engaged in mediation with the
assistance of mediator Steve Pearl, Esq. The parties, with the
assistance of the mediator, reached an agreement to resolve the
case in a PAGA settlement. On Nov. 17, 2021, the parties executed a
settlement term sheet memorializing the broad terms of the
agreement they reached during the mediation.
On Jan. 7, 2022, the parties filed a joint notice of settlement to
the Court. On March 21, 2022, the parties finalized the terms of
the Settlement Agreement and executed the long-form Settlement
Agreement subject to the Court's approval. On June 7, 2022, the
Plaintiff filed the instant motion to approve the parties' PAGA
settlement.
According to the parties' proposed PAGA Settlement Agreement, the
Defendant will pay a gross settlement payment of $325,000 to
resolve the Plaintiff's PAGA claims, as well as attorneys' fees and
costs related to the PAGA claim. Subject to court approval, the
gross settlement payment will include: (1) PAGA Counsel's
reasonable attorneys' fees of up to $108,333.33; (2) PAGA Counsel's
request for allowable costs of up to $20,000; (3) reasonable
settlement administration costs estimated to be $3,0002 ; and (4) a
representative award of $7,500. The Plaintiff proposes to use ILYM
Group, Inc., as the settlement administrator.
The remaining amount from the gross settlement payment will be
"designated as the 'General PAGA Penalty Fund,' which is estimated
to be $186,166.67." The general fund is to be divided 75% to the
Labor and Workforce Development Agency ("LWDA") and 25% to the
"Aggrieved Employees". The settlement defines the "Aggrieved
Employees" as all current and former non-exempt employees employed
in California by Weatherford between Oct. 12, 2019, through and
including Dec. 31, 2021. The settlement notes there are
approximately 191 "Aggrieved Employees."
The settlement administrator will distribute all payments due under
this settlement (except the amount allocated to settlement
administration costs) within 10 business days after the "Effective
Date," provided that such date has occurred.
The settlement provides, among other things, for notice and
delivery of the individual payments to the Aggrieved Employees, and
the tax treatment of the settlement amounts.
The Court finds that the settlement terms meet the statutory
requirements set forth by PAGA, and are fair, reasonable, and
adequate in light of the PAGA's policy goals.
Judge Baker points out that the total settlement sum of $325,000 is
reasonable, given the risks involved and given that the record
shows that the expected maximum potential penalty was $385,750. The
Court concludes that the parties' PAGA settlement is fundamentally
fair, reasonable, and adequate in view of PAGA's public policy
goals.
Regarding the attorney's fees provision of the settlement
agreement, Judge Baker notes that Counsel for Plaintiff asks for
$108,333.33 in attorney's fees. The typical range of acceptable
attorney's fees in the Ninth Circuit is 20% to 30% of the total
settlement value, with 25% considered the benchmark. Counsel for
Plaintiff seeks attorney's fees pursuant to the percentage of the
common fund method and requests the Court approve a fee award of
one-third of the settlement amount.
To evaluate whether the requested percentage is reasonable, Judge
Baker says the Ninth Circuit has favorably commended a district
court's consideration of five factors: (1) the results achieved,
(2) the risk of further litigation, (3) the skill required of
plaintiff's counsel and the quality of work performed, (4) the
contingent nature of this action, and (5) awards granted in similar
cases, citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50
(9th Cir. 2002).
Given the monetary relief obtained, Judge Baker finds that the
first factor favors an increase over the 25% benchmark. Judge Baker
also finds that the other four factors support an award equal to
the 25% benchmark.
The Court may also perform a lodestar cross-check to confirm that
requested attorneys' fees are reasonable. Here, Counsel for
Plaintiff has provided a chart of the hours his firm worked, 108.1
total.
Judge Baker notes that Counsel did not provide the Court with a
breakdown of total hours by category. Instead, Counsel only
proffered a total amount of hours expended and a general
description of the tasks. Hence, the Court is unable to determine
the reasonableness of the hours proffered to have been expended by
Counsel and his firm, particularly for purposes of a lodestar
check. It is unclear if the 108.1 hours proffered by Counsel
include unnecessary tasks, duplicative work, or clerical tasks.
Judge Baker also notes that it is Counsel's burden to establish
that the requested rates are commensurate with the market rate
within the Eastern District. Judge Baker finds that Counsel has
failed to carry his burden. Moreover, it appears the requested
rates are higher than those previously accepted by the Eastern
District as reasonable.
In summary, the Court will provide Counsel for Plaintiff the
opportunity to provide supplemental briefing to clarify why an
upward departure of the 25% benchmark is appropriate in this
action. Further, Counsel may provide supplemental briefing to allow
the Court to conduct a lodestar crosscheck.
Because the litigation costs requested are reasonable and do not
exceed the amount authorized, the Court grants the request for
litigation costs in the amount of $11,090.04. The Court appoints
ILYM Group, Inc., as settlement administrator and finds the
estimated administration costs are reasonable.
The Plaintiff requests an enhancement award in the amount of
$7,500. Considering the factors set forth here, including the
actions and financial risks undertaken by the Plaintiff, Judge
Baker says that a $7,500 enhancement award may be warranted.
However, without additional information regarding the time the
Plaintiff spent on this action, the Court is presently unable to
evaluate the reasonableness of the requested award.
In summary, the Court concludes that the parties' PAGA settlement
is fundamentally fair, reasonable, and adequate in view of PAGA's
public policy goals. The Court finds the Plaintiff's requests for
litigation costs and settlement administration costs also are
reasonable. The Court presently is unable to determine whether the
Plaintiff's request for attorney's fees and enhancement award were
reasonable.
Accordingly, Judge Baker orders that the Plaintiff's motion for
approval of settlement will be held in abeyance for 14 days pending
his filing of any supplemental briefing he may submit to address
the aforementioned deficiencies in his request for attorneys' fees
and enhancement award.
For the reasons set forth here, in the event the Plaintiff declines
to timely file supplemental briefing, the Court intends to approve
an award of attorney's fees in the amount of 25% and an enhancement
award in the amount of $5,000.
A full-text copy of the Court's Order dated Sept. 14, 2023, is
available at https://tinyurl.com/43j99jxm from PacerMonitor.com.
WESTFIELD, MA: Wage Theft Class Action Moved to Superior Court
--------------------------------------------------------------
Cliff Clark, writing for The Westfield News, reports that a class
action lawsuit filed by a Westfield police officer in district
court alleging the city of Westfield failed to pay weekly wages and
overtime to its officers was moved to superior court.
In June, Westfield Police Officer Jason Perron filed a lawsuit in
Westfield District Court alleging the city failed to pay its patrol
officers the full amount due for their regular and overtime
shifts.
He filed it on behalf of himself and at least 77 members of the
Westfield Police Officers Coalition, and requested it be designated
as a class action. [GN]
WHITEFISH, MT: Court Certifies Rule 23 Class in Beck Suit
---------------------------------------------------------
In the class action lawsuit captioned as JEFF BECK, individually;
AMY WEINBERG, individually; ZAC WEINBERG, individually; ALTA VIEWS,
LLC; and on behalf of a class of similarly situated persons and
entities, v. CITY OF WHITEFISH, a Montana municipality, and DOES
1-50, Case No. 9:22-cv-00044-KLD (D. Mont.), the Hon. Judge
Kathleen L. DeSoto entered an order granting the Plaintiffs' motion
for class certification and appointing Plaintiffs' counsel as class
counsel.
The class is defined as follows:
"All persons or entities who bore the cost of impact fees for
water
and wastewater services to the City of Whitefish from January 1,
2019 to the present.
The Court concludes that Plaintiffs have met their burden of
establishing that the requirements of Rule 23(a) and 23(b)(3) are
satisfied.
The class claims and issues are defined as follows: All claims
advanced in Plaintiffs' Complaint involving the City's allegedly
unlawful assessment of impact fees for water and wastewater
services from January 1, 2019 to the present.
The jury trial scheduled for January 22, 2024 is vacated and the
following schedule shall govern all further proceedings:
Motions Deadline (fully briefed): March 8, 2024
Motions in Limine Deadline (fully briefed): May 13, 2024
Attorney Conference to Prepare
Final Pretrial Order: Week of June 10,
2024
E-file Final Pretrial Order,
Proposed Jury Instructions,
Proposed Voir Dire Questions,
and Trial Briefs and e-mail to
kld_propord@mtd.uscourts.gov
(Trial Briefs are optional): June, 20 2024
Notice to Court Reporter of
Intent to Use Real-Time: June 20, 2024
Notice to I.T. Supervisor of
Intent to Use CD-ROM or
Videoconferencing: June 20, 2024
Final Pretrial Conference: June 27, 2024
Jury Trial (7-member jury): July 8, 2024
Impact fees are charges "imposed upon development by a governmental
entity as part of the development approval process to fund the
additional service capacity required by the development."
A copy of the Court's order dated Sept. 29, 2023 is available from
PacerMonitor.com at https://bit.ly/3PFzQkX at no extra charge.[CC]
YOUNG LIVING: O'Shaughnessy Suit Seeks to Certify Class Action
--------------------------------------------------------------
In the class action lawsuit captioned as JULIE O'SHAUGHNESSY,
individually, and on behalf of all others similarly situated, v.
YOUNG LIVING ESSENTIAL OILS, LC D/B/A YOUNG LIVING ESSENTIAL OILS,
Case No. 2:20-cv-00470-HCN-CMR (D. Utah), the Plaintiff asks the
Court to enter an order:
-- Certifying this action as a class action pursuant to Rule
23(a)
and (b)(3);
-- Appointing Plaintiff as Class Representative; and
-- Appointing Munck Wilson Mandala, LLP and Nix Patterson, LLP
as Class Counsel.
Ms. O'Shaughnessy seeks to certify class action on behalf of the
following Class:
"All non-excluded persons who purchased the Young Living
business
opportunity between April 12, 2014 and the date of judgment in
this
action.
A business opportunity purchaser is a United States resident who
signed a Young Living U.S. Member Agreement and paid Young
Living
the minimum amount required to qualify for commissions under
Young
Living's compensation plan in any single month during the Class
Period.
Excluded from the Class are: (i) Young Living; (ii) present or
former Young Living officers, managers, directors, or
affiliates;
(iii) the Court; and (iv) the Court's staff.
Young Living offers pure oils for your natural lifestyle.
A copy of the Plaintiff's motion dated Sept. 29, 2023 is available
from PacerMonitor.com at https://bit.ly/3PY3a7J at no extra
charge.[CC]
The Plaintiff is represented by:
Jeffrey J. Angelovich, Esq.
Michael B. Angelovich, Esq.
Cody L. Hill, Esq.
NIX PATTERSON, LLP
8701 Bee Cave Road
Building I, Suite 500
Austin, TX 78746
Telephone: (512) 328-5333
E-mail: jangelovich@nixlaw.com
mangelovich@nixlaw.com
codyhill@nixlaw.com
- and -
Robert E. Linkin, Esq.
J. David Rowe, Esq.
Ursula M. Smith, Esq.
MUNCK WILSON MANDALA, LLP
807 Las Cimas Pkwy, Building II, Suite 300
Austin, TX 78746
Telephone: (737) 201-1600
E-mail: rlinkin@munckwilson.com
drowe@munckwilson.com
usmith@munckwilson.com
- and -
Jason A. McNeill, Esq.
Christopher M. Von Maack, Esq.
MCNEILL | VON MAACK
175 South Main Street, Suite 1050
Salt Lake City, UT 84111
Telephone: (801) 823-6464
E-mail: mcneill@mvmlegal.com
vonmaack@mvmlegal.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
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