/raid1/www/Hosts/bankrupt/CAR_Public/231201.mbx
C L A S S A C T I O N R E P O R T E R
Friday, December 1, 2023, Vol. 25, No. 241
Headlines
AES GROUP: Parties Seek More Time for Class Cert Filing
ALDER HOLDINGS: Class Certification Scheduling Order Entered
ALLIED WASTE: Bid to Extend Expert Discovery Deadline Partly OK'd
AMERICAN HONDA: Bid for Class Certification Due August 2, 2024
ATLASSIAN CORP: Capistrano Suit Stayed Pending Existing Case Result
ATLASSIAN CORP: Faces Firemen's Fund Securities Suit in CA Court
BANK OF NEW YORK: Fraud Case Dismissal Ruling Reversed
BEYOND MEAT: Continues to Defend Union Class Suit
BIOVENTUS INC: Bid to Dismiss Ciarciello Suit Granted in Part
BITPAY INC: Wilhelm Biometrics Suit Removed to W.D. Ill.
BLOOM INSTITUTE: Court Tosses Fuller Bid to Remand
BRIGHT HEALTH: Continues to Defend Marquez Securities Class Suit
CANISIUS COLLEGE: McCudden Appeals Ruling in COVID Tuition Suit
CAROTHERS HOLDING: Court Sets Hearing on Bid to Certify Class
CINEMARK HOLDINGS: Faces Rodriguez Suit Over Credit Transaction
CONAGRA BRANDS: Vanbuskirk Sues Over Unpaid Overtime Wages
CONSOLIDATED WASTE: Conditional Class Cert Filing Due Dec. 8
COTTAGE HEALTH: K. S. Files Suit in C.D. California
CS DISCO: Faces Stockholder Class Suit in New York
D.R.E.A.M. CLOTHING: Luis Files ADA Suit in S.D. New York
DOORDASH INC: Floyd Suit Removed to W.D. Washington
ENVIVA INC: Continues to Defend Securities Suit in Maryland
EQUINOX HOLDINGS: Class Cert Bid Adjourned to Feb. 21, 2024
ESSILORLUXOTTICA SA: Udovich Sues Over Improper Monopoly Power
ET-A-LL LLC: Hernandez Files ADA Suit in S.D. New York
EVERBRIDGE INC: Continues to Defend Sylebra Class Suit
EXP WORLD: Faces Batton Class Suit in Illinois
FLEXPORT INC: Thorson Sues Over Failure to Provide Written Notice
FLO HEALTH: Bid for Class Certification in Frasco Due Feb. 22, 2024
GENWORTH FINANCIAL: Continues to Burkhart Class Suit in Delaware
GENWORTH FINANCIAL: Continues to Defend Burkhart Class Suit
GENWORTH FINANCIAL: Continues to Defend Savings Plan Class Suit
GENWORTH FINANCIAL: Continues to Defend TVPX Class Suit
GERBER PRODUCTS: Smith Sues Over Mislabeled Baby Snack Products
GOVERNMENT EMPLOYEES: Steve Ching Seeks Unpaid Renewal Commissions
GPB CAPITAL: Continues to Defend Material Misstatements Class Suit
GREEN DOT CORP: Faces Lyons Class Suit in M.D. Alabama
GREEN DOT: Faces Hester Class Suit in Texas
GREEN DOT: Faces Koffsmon Class Suit in California
GULF COAST POWER: Fails to Pay Overtime Wages, Espinosa Claims
HAIN CELESTIAL: Court Denies Bid to Reconsider in Anderberg Suit
HANESBRANDS INC: Continues to Defend Toussaint Class Suit in N.C.
HARPERCOLLINS PUBLISHERS: Continues to Defend Antitrust Class Suit
HAZA FOODS LLC: Townsend Files ADA Suit in N.D. New York
HEALTH CARE SERVICES: Sanchez Files Suit in N.D. Illinois
HEALTH CAREER: Roberson Files Suit in E.D. Pennsylvania
HENKEL CORPORATION: Ochoa-Cornman Suit Removed to E.D. Missouri
HERC RENTALS: Atkinson Suit Removed to W.D. Washington
IANTHUS CAPITAL: Bid for Initial OK of Settlement in Finch Pending
IANTHUS CAPITAL: Continues to Defend Blue Sky Class Suit in Ontario
IMMUNITYBIO INC: Continues to Defend Salzman Securities Class Suit
INTERNATIONAL BUSINESS: Wedeking Suit Transferred to D. Mass.
J CREW GROUP: Court Stays Babaeva Class Suit Pending Arbitration
JBROOKS OF FARMINGTON: Luis Files ADA Suit in S.D. New York
JOHNSON & JOHNSON: Chamberlain Files Suit in E.D. Pennsylvania
JORDAN & SKALA: Faces Ruf Suit Over Failure to Pay Overtime
KGC INC: Fails to Comply Tip Regulations, Gabriel & Yeasem Say
KROGER CO: Suit Filed in S.D. Ohio
LENSAR INC: Continues to Defend Schaper Class Suit in Delaware
LOUISIANA: Court Enters Permanent Injunctive Relief in Lewis Suit
LUCKY ELEPHANT: Luis Files ADA Suit in S.D. New York
LUXURBAN HOTELS: Fails to Pay Proper Wages, Hepburn Suit Alleges
MASTEC INC: Liptock Files Suit in D. South Carolina
MDL 2666: Three Suits Transferred to D. Minn.
MDL 2873: Grosch's Conditional Transfer Order Vacated
MDL 2873: Panel Denies Transfer of Maryland v. 3M Suit to D.S.C.
MDL 2924: Love v. GSK Consolidated in Zantac Liability Row
MDL 2924: Panel Denies Gallagher's Bid to Remand Case to S.D.N.Y.
MDL 3017: Bayer v. Auson Consolidated in Xarelto Patent Litigation
MDL 3074: Irvin Suit Consolidated in Cabela's Wiretapping Row
MDL 3083: 10 Suits Consolidated in MoveIt Data Breach Litigation
MDL 3085: 22 Suits Consolidated in Uber Sexual Assault Row
MDL 3085: Panel Denies Centralization of Moody's Suits to M.D. Pa.
ME&I CONSTRUCTION: Expert Reports Filing Extended to Dec. 19
MEDICAL PROPERTIES: Continues to Defend Securities Suit in Alabama
MEDICAL PROPERTIES: Continues to Defend Securities Suit in NY
MERRILL GARDENS: Escobedo Suit Removed to N.D. California
MIDLAND CREDIT: Burr Files FDCPA Suit in S.D. California
MIDLAND FINANCIAL: Strucke Suit Transferred to D. Massachusetts
MODIVCARE INC: To Settle Misclassification Suit in Missouri Court
MPOWER ENERGY: Silva Sues Over Deceptive Retail Energy Pricing
NATIONAL ACCOUNT: MacGillivray Files Suit in D. South Carolina
NCAA: Plaintiffs Must Submit Expert Report by August 2, 2024
NCAA: Smart et al., Must Submit Expert Report by August 2, 2024
NEW ENGLAND HEALTH: Beckwith Sues Over Telemarketing Calls
NEW YORK HEALTH: Court OK's Withdrawing Bid to Certify Class
NISSAN OF NORTH AMERICA: Bid to Dismiss Simpson Suit OK'd in Part
NISSAN OF NORTH AMERICA: Court Narrows Claims in Stockley Suit
NORTHWELL HEALTH: Heitzner Sues Over Inadequate Data Security
NORTHWOOD HOSPITALITY: Avila Suit Removed to C.D. California
OAK GROVE: Wisconsin Court Refuses to Dismiss Kluender FLSA Suit
OCUGEN INC: Continues to Defend Securities Class Suit in PA
ORGANOGENESIS HOLDINGS: Bid to Dismiss Somogyi Suit Pending
OS RESTAURANT: Guerra Suit Removed to N.D. California
OUTCOMES INC: Cifuentes Files FLSA Suit in W.D. Arkansas
OWENS-BROCKWAY: Hillis Suit Removed to E.D. California
P.L. ROHRER & BRO: Luis Files ADA Suit in S.D. New York
PACESETTER: Bid to Dismiss Duran Suit Denied w/o Prejudice
PANINI AMERICA: Huerta Sues Over Unlawful Discrimination at Work
PARKMOBILE LLC: Class Cert Bid Briefing Deadlines Entered in Baker
PAYCOM SOFTWARE: Ventrillo Sues Over Exchange Act Violation
PHILO INC: N.D. California Grants Bid to Dismiss May Class Suit
POLARIS INC: Lindstrom Files Suit in D. Alaska
POST UNIVERSITY: Bid for More Time to File Class Certification OK'd
POSTMEDS INC: Williams Sues to Remedy Harms Over Data Breach
PROG LEASING: Williams Files Suit in D. Utah
PROVIDENCE ST: Spencer Suit Removed to W.D. Washington
QUASI CORPORATION: Sinkfield Files Suit in M.D. Pennsylvania
RADIUS GLOBAL: Hudgins' Bid for Jurisdictional Discovery Denied
RICHARD MONTGOMERY: Thomas Files Suit in M.D. Tennessee
ROCK GATE: Thomas Sues Over Unpaid Minimum and Overtime Wages
SEAWORLD ENTERTAINMENT: Continues to Defend Burns Class Suit
SET ENTERPRISES: Wallace Sues Over Unpaid Wages, Illegal Kickbacks
STAKE CENTER: Kinsey Sues Over Company's Unfair Labor Practices
STAR RENOVATIONS: Brown Sues Over Unpaid Wages, Retaliation
STATE FARM: $65K Awarded to Class Representatives in Arnold Suit
STEEL PARTNERS: Reith Class Suit Trial Set for September 2024
STURM RUGER & CO: Faces Consolidated Suit Over Vendor Data Breach
TEACHERS INSURANCE: Lopez Suit Transferred to D. Massachusetts
TEACHERS INSURANCE: Marshall Suit Transferred to D. Massachusetts
TEACHERS INSURANCE: Newman Suit Transferred to D. Massachusetts
TEACHERS INSURANCE: Smuda Suit Transferred to D. Massachusetts
TELEPHONE & DATA SYSTEMS: Faces Shareholder Suit Over SEC Filing
TRADESMEN INTERNATIONAL: Hendrix Suit Removed to C.D. California
TRADITIONS HEALTH: Arnett Suit Removed to C.D. California
TRINITY MANAGEMENT: Hart Files Suit in Cal. Super. Ct.
TWIN CITIES COMICS: Hernandez Files ADA Suit in S.D. New York
UNIQUE FABRICATING: Eaton Files Suit in D. Delaware
UNITED STATES: Faces Tang Suit Over Unlawful Biometric Fee Charges
UNIVERSAL PROTECTION: Singh Files Suit in Cal. Super. Ct.
VERRICA PHARMACEUTICALS: Continues to Defend Gorlamari Class Suit
W6LS INC: Lizama Files RICO Suit in E.D. California
WALT DISNEY: Fails to Apply Anti-Slip Products in Pools, Suit Says
WASHINGTON FINE WINE: Atkinson Suit Removed to W.D. Washington
Asbestos Litigation
ASBESTOS UPDATE: Ampco-Pittsburgh Faces 3,388 Active PI Claims
ASBESTOS UPDATE: Argo Group Has $50.6MM A&E Net Loss Reserves
ASBESTOS UPDATE: Ashland Reports $427MM Asbestos Litigation Reserve
ASBESTOS UPDATE: Avon Products Has 317 Pending Cases as of Sept. 30
ASBESTOS UPDATE: BNS Sub Has 55 Pending Claims as of Sept. 30
ASBESTOS UPDATE: Emerson Electric Faces Product Liability Claims
ASBESTOS UPDATE: Enstar Group Has $741MM Net A&E Liabilities
ASBESTOS UPDATE: FG Group Has $0.3MM Loss Contingency Reserve
ASBESTOS UPDATE: Goodyear Tire Faces 700 New PI Claims
ASBESTOS UPDATE: Graham Corp. Defends Personal Injury Lawsuits
ASBESTOS UPDATE: Met-Pro Defends 132 New Exposure Cases
ASBESTOS UPDATE: Metropolitan Life Faces 1,924 New Exposure Claims
ASBESTOS UPDATE: MRC Global Defends 548 PI Lawsuits as of Sept. 30
ASBESTOS UPDATE: OfficeMax Estimates $15MM to $25MM A&E Losses
ASBESTOS UPDATE: Perrigo Co. Faces 101 Product Liability Lawsuits
ASBESTOS UPDATE: Pfizer Inc. Defends Numerous Personal Injury Cases
ASBESTOS UPDATE: Reading Int'l. Still Defends Exposure Claims
ASBESTOS UPDATE: Rexnord Industries Faces Multiple PI Lawsuits
ASBESTOS UPDATE: Rockwell Automation Has $20MM Asbestos Liabilities
ASBESTOS UPDATE: Transocean Faces 231 PI Claims as of Sept. 30
ASBESTOS UPDATE: Zurn Elkay Faces 7,500 PI Claims as of Sept. 30
*********
AES GROUP: Parties Seek More Time for Class Cert Filing
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In the class action lawsuit captioned as TARYN MOYNIHAN, on behalf
of herself and all others similarly situated, v. AES GROUP USA, LLC
d/b/a KEY AUTISM SERVICES, KEY AUTISM SERVICES OPR, LLC d/b/a KEY
AUTISM SERVICES, TRINITY KEY HOLDINGS, LLC, DON FOSTER, AVINOAM
SCHECTER, and YOSSI ZAKLIKOWSKI, Case No. 1:22-cv-11889-WGY (D.
Mass.), the Parties' asks the Court to enter an order granting a
short extension of the Plaintiff's deadline to file her motion to
certify a class pursuant to Rule 23, from November 15, 2023 to
December 6, 2023.
The Plaintiff filed a motion for conditional certification pursuant
to 29 U.S.C. section 216(b) with the Court on July 5, 2023.
The Defendants' deadline to respond to Plaintiff’s initial
written discovery requests was November 3, 2023.
The Defendants have not yet responded to Plaintiff’s written
discovery requests due to the scope of the requests, as well as the
recent change of firm by Defendants’ counsel.
The Defendants have indicated to Plaintiff that they will be able
to respond to the initial discovery requests by November 24, 2023.
The parties propose that the Court set a hearing on Plaintiff's
Rule 23 motion for the first week of January 2024.
A copy of the Parties' motion dated Nov. 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3GbxWEs at no extra charge.[CC]
The Plaintiff is represented by:
Rachel Smit, Esq.
Brook Lane, Esq.
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: (617) 607-3260
E-mail: rachel@fairworklaw.com
brook@fairworklaw.com
The Defendants are represented by:
Sarah Herlihy, Esq.
Jonathan Hatfield, Esq.
JACKSON LEWIS P.C.
75 Park Plaza
Boston, MA 02116
Telephone: (617) 367-0025
Facsimile: (617) 367-2155
E-mail: Sarah.Herily@JacksonLewis.com
Jonathan.Hatfield@JacksonLewis.com
ALDER HOLDINGS: Class Certification Scheduling Order Entered
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In the class action lawsuit captioned as JOSEPH NIPPER, on behalf
of himself, and all others similarly situated, v. ALDER HOLDINGS,
LLC, Case No. 1:23-cv-01239-ADA-CDB (E.D. Cal.), the Hon. Judge
Christopher D. Baker entered a class certification scheduling
order:
-- Discovery Deadlines
Fact Discovery Cut-off: Aug. 2, 2024
Mid-Discovery Status Conference: June 7, 2024
Expert Disclosures: Aug. 16, 2024
Rebuttal Disclosures: Aug. 30, 2024
Expert Discovery Cut-off: Sept. 30, 2024
-- Motion Deadlines:
Filing: Oct. 15, 2024
Opposition: Nov. 25, 2024
Reply: Dec. 9, 2024
Hearing: Jan. 3, 2025
Alder is a privately owned and operated company offering security,
home automation, and life safety services.
A copy of the Court's order dated Nov. 14, 2023 is available from
PacerMonitor.com at https://bit.ly/49KCQWu at no extra charge.[CC]
ALLIED WASTE: Bid to Extend Expert Discovery Deadline Partly OK'd
-----------------------------------------------------------------
In the class action lawsuit captioned as QIHAI CHEN and DUALTONE
AUTOMOTIVE, INC., on behalf of themselves and all others similarly
situated, v. ALLIED WASTE SYSTEMS, INC., et al., Case No.
3:22-cv-00099-JO-AHG (S.D. Cal.), the Hon. Judge Allison Goddard
entered an order:
(1) Granting in part joint motion to extend expert discovery
deadlines and pretrial motion filing deadline, and
(2) Issuing first amended scheduling order.
The Court appreciates that the parties have been working together
to complete discovery. Upon due consideration, and upon a review of
the docket, the Court finds good cause to grant in part the joint
motion.
Allied Waste offers collection and disposal of refuse systems.
A copy of the Court's order dated Nov. 14, 2023 is available from
PacerMonitor.com at https://bit.ly/47nbbcp at no extra charge.[CC]
AMERICAN HONDA: Bid for Class Certification Due August 2, 2024
--------------------------------------------------------------
In the class action lawsuit captioned as WINNIE CLARK, et al., v.
AMERICAN HONDA MOTOR CO., INC., Case No. 2:20-cv-03147-AB-MRW (C.D.
Cal.), the Hon. Judge Andre Birotte Jr. entered an order granting
joint stipulation to continue litigation deadlines as follows:
Close of fact discovery May 20, 2024
Motion for class certification, August 2, 2024
expert reports
Opposition to motion for class Nov. 8, 2024
certification, expert reports
Close of expert discovery Dec. 31, 2024
Reply re: motion for class Feb. 6, 2025
certification and rebuttal expert
reports
Hearing on class certification motion March 7, 2025
Final pre-trial conference TBD
American Honda develops and manufactures automobiles.
A copy of the Court's order dated Nov. 14, 2023 is available from
PacerMonitor.com at https://bit.ly/40WN8Ph at no extra charge.[CC]
ATLASSIAN CORP: Capistrano Suit Stayed Pending Existing Case Result
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Atlassian Corporation disclosed in its Form 10-Q report For the
quarterly period ended September 30, 2023, filed with the
Securities and Exchange Commission on November 3, 2023, that on
October 31, 2023, the court stayed a stockholder derivative lawsuit
filed in the U.S. District Court for the Northern District of
California on September 6, 2023 against the members of the
company's board of directors and certain of its officers pending
resolution of an existing class action.
Case is captioned "Capistrano v. Cannon-Brookes," Case No.
4:23-cv-04584 where the company is named as a nominal defendant.
The lawsuit is purportedly brought on behalf of purchasers of the
company's securities between August 5, 2022 and November 3, 2022
and alleges claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 based on allegedly false and misleading
statements about the company's business and prospects during the
class period and alleged insider trading.
The lawsuit purport to assert claims for, among other things,
breach of fiduciary duty, corporate waste, unjust enrichment, and
violations of Section 10(b) of the Exchange Act, and Rule 10b-5
promulgated thereunder. The complaints seek unspecified damages and
other relief purportedly on the company's behalf.
Atlassian Corporation, a Delaware corporation, designs, develops,
licenses, and maintains software and provisions software hosting
services to help teams organize, discuss, and complete their work.
The company's primary products include "Jira Software" and "Jira
Work Management" for planning and project management, "Confluence"
for content creation and sharing, and "Jira Service Management" for
team service, management and support applications.
ATLASSIAN CORP: Faces Firemen's Fund Securities Suit in CA Court
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Atlassian Corporation disclosed in its Form 10-Q report For the
quarterly period ended September 30, 2023, filed with the
Securities and Exchange Commission on November 3, 2023, that on
February 3, 2023, a putative securities class action was filed in
the U.S. District Court for the Northern District of California,
captioned "City of Hollywood Firefighters' Pension Fund v.
Atlassian Corporation," Case No. 3:23-cv-00519, naming the company
and certain of its officers as defendants.
The lawsuit is purportedly brought on behalf of purchasers of the
company's securities between August 5, 2022 and November 3, 2022
and alleges claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 based on allegedly false and misleading
statements about the company's business and prospects during the
class period.
The lawsuit seeks unspecified damages. The defendants filed a
motion to dismiss on September 8, 2023, and the plaintiffs filed
their opposition on October 23, 2023. The defendants' reply is
currently due November 22, 2023, and a hearing is currently
scheduled for January 10, 2024.
Atlassian Corporation, a Delaware corporation, designs, develops,
licenses, and maintains software and provisions software hosting
services to help teams organize, discuss, and complete their work.
The company's primary products include "Jira Software" and "Jira
Work Management" for planning and project management, "Confluence"
for content creation and sharing, and "Jira Service Management" for
team service, management and support applications.
BANK OF NEW YORK: Fraud Case Dismissal Ruling Reversed
------------------------------------------------------
The Bank of New York Mellon Corporation disclosed in its Form 10-Q
report for the quarterly period ended September 31, 2023, filed
with the Securities and Exchange Commission on November 3, 2023,
that on Dec. 15, 2022, an appeals court reversed the dismissal and
returned a putative class action against The Bank of New York
Mellon in New Jersey federal court to the trial court for further
proceedings.
In March 2019, a group of investors filed said action alleging
fraud and asserting contractual, statutory and common law claims in
connection with the sale of CDs. On Nov. 12, 2021, the court
dismissed the class action against The Bank of New York Mellon
where an appeal was filed.
The Bank of New York Mellon Corporation owns the "BNY Mellon"
brand, America's oldest bank and the first company listed on the
New York Stock Exchange. It powers capital markets around the world
through comprehensive solutions that help clients manage and
service their financial assets throughout the investment life
cycle.
BEYOND MEAT: Continues to Defend Union Class Suit
-------------------------------------------------
Beyond Meat Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Retail Wholesale
Department Store Union Local 338 Retirement Fund class suit in the
United States District Court for the Central District of
California.
On May 11, 2023, a class action complaint was filed against the
Company and certain current and former officers and directors in
the United States District Court for the Central District of
California, captioned Retail Wholesale Department Store Union Local
338 Retirement Fund v. Beyond Meat, Inc., et al., Case No.
2:23-cv-03602.
On July 26, 2023, the Court granted Saskatchewan Healthcare
Employees' Pension Plan's motion to be appointed lead plaintiff and
for its counsel to be appointed lead counsel.
On October 9, 2023, the plaintiffs filed an amended complaint to
which the defendants must respond to the amended complaint by
December 8, 2023.
The amended complaint asserts violations of Sections 10(b), 20(a),
and 20A of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against the Company and certain of its current and
former officers and directors on behalf of a putative class of
investors who purchased the Company's common stock between May 5,
2020 and October 13, 2022, inclusive.
The amended complaint alleges, among other things, that the Company
and certain current and former officers and directors made false
and misleading statements or omissions regarding the Company's
ability to manufacture its products at scale and to its partners'
specifications.
The complaint seeks an order certifying the class; awarding
compensatory damages, interest, costs, expenses, attorneys' and
expert fees; and granting other unspecified equitable or injunctive
relief.
The case is at a preliminary stage.
The Company intends to vigorously defend against these claims.
Beyond Meat, Inc. is a plant-based meat company offering a
portfolio of plant-based meats.
BIOVENTUS INC: Bid to Dismiss Ciarciello Suit Granted in Part
-------------------------------------------------------------
In the lawsuit entitled ROBERT CIARCIELLO, Individually and on
Behalf of All Others Similarly Situated, Plaintiff v. BIOVENTUS
INC., KENNETH M. REALI, MARK L. SINGLETON, GREGORY O. ANGLUM, and
SUSAN M. STALNECKER, Defendants, Case No. 1:23-cv-00032-CCE-JEP
(M.D.N.C.), Judge Catherine C. Eagles of the U.S. District Court
for the Middle District of North Carolina grants in part the
Defendants' motion to dismiss.
The Plaintiffs allege that the Defendants violated the Securities
and Exchange Act of 1934 and the Securities Act of 1933 by making
false and misleading statements in various Securities and Exchange
Commission filings and earnings phone calls. The Defendants seek to
dismiss the Plaintiffs' second amended complaint.
Judge Eagles says the Defendants' motion to dismiss the 1933
Securities Act claims will be granted because the Lead Plaintiff
has not alleged facts to plausibly show statutory standing to
assert these claims. The complaint otherwise alleges many factual
details sufficient to plausibly allege with particularity
misleading statements made with knowledge and causing loss, so the
Exchange Act claims may proceed.
The Defendant, Bioventus, Inc., is a medical device and
pharmaceutical company that sells drug therapies, including
hyaluronic acid injections. The revenue from these sales is
affected by contracts Bioventus has with third party payers, like
health insurance companies. These contracts require Bioventus to
pay rebates to the third-party payers when an insured patient gets
a Bioventus injection. Bioventus provides public certifications of
net revenue in SEC filings.
From early 2021 to late 2022, Bioventus stated that it deducts
expected rebates, calculated based on historical data, buying
trends, and other appropriate variables, from its recognized
revenue. In those filings and other public declarations, the
Defendants also said that they follow generally accepted accounting
principles and had designed a reasonable internal control system
for financial reporting.
After an unexpectedly large payout on a rebate claim in the summer
of 2021, Bioventus conducted an internal audit of the processes and
controls for estimating and managing rebates. The audit was highly
critical of the way Bioventus was calculating expected rebates and
identified at least 12 action items as "red," meaning that issue
was severe and required immediate attention and correction.
Defendants Kenneth Reali, Gregory Anglum, and Susan Stalnecker
received the report in late August or early September 2021. After
the audit, Bioventus failed to make needed changes in the rebate
estimation process, leading more than one employee, who worked on
the audit report to resign in early 2022. The Defendants continued
to discuss their processes and controls positively in SEC filings
and otherwise, and to report revenue based on the inadequate
estimation process.
The Defendant's revenue is also affected by reimbursement payments
made to Bioventus by the Centers for Medicare and Medicaid
Services. Historically, Bioventus received payment from CMS based
on its wholesale acquisition cost, which did not take into account
rebates and discounts; this allowed Bioventus to receive larger
reimbursements than if reimbursed based on average sales price.
In 2020, Congress passed legislation requiring healthcare
manufacturers seeking Medicare reimbursements to report average
sales price instead of wholesale acquisition cost starting on Jan.
1, 2022. This shift meant Bioventus would receive significantly
less in reimbursements from Medicare. The Defendants repeatedly
assured investors that Bioventus had planned for this change by,
among other things, securing agreements with private payers for
lower rebates. The Defendants also said Bioventus had run careful
calculations showing that the shift in price reporting would have a
"net-neutral" impact.
After the price reporting shift took effect, the Defendants
repeatedly said that everything went exactly as expected and that
the shift was consistent with the modeling. But in fact, Bioventus
had not carefully calculated the effect of the price shift, as it
lacked basic information needed to model the impact of the pricing
change. And Bioventus had not obtained agreements from private
payers for lower rebates.
In November 2022, Bioventus filed its third quarter Form 8-K,
reporting a lower than previously anticipated revenue. Bioventus
partially attributed this to a large rebate request from an
insurer, which it characterized as "unexpected," even though the
Defendants were aware of the likelihood of a large rebate request
like this one because of the large rebate request and the audit
report in 2021.
Bioventus also claimed that the legislatively required price
reporting shift contributed to the revenue shortfall. As a result
of the third quarter filing, stock prices significantly declined.
The Plaintiffs filed this action, alleging that the Defendants
violated Sections 10(b) and 20(a) of the Securities and Exchange
Act of 1934 (Exchange Act) and Sections 11 and 15 of the Securities
Act of 1933 (Securities Act). The Defendants responded with their
motion to dismiss for failure to state a claim.
The Defendants challenge the Plaintiffs' second amended complaint
on the grounds that the statements were not false or misleading,
the Plaintiffs did not allege facts showing that the Defendants
acted with the requisite scienter, and the Plaintiffs did not
suffer a loss attributable to the statements.
Judge Eagles opines that these challenges raise factual disputes
more appropriate for later in the proceedings, ignore the substance
of the complaint, and rely on conclusory assertions that are little
more than opinions of counsel.
To the extent that the Defendants say loss causation is not shown
because the Lead Plaintiff sold all its shares before the Nov. 19,
2022, and March 31, 2023 filings were made, the Court does not
understand the argument. The Court's review of the complaint does
not show any allegation that statements made in those filings were
misrepresentations; indeed, the complaint alleges that these
statements show the inaccuracy of the earlier revenue projections.
Judge Eagles says the complaint specifically identifies all
misrepresentations, and none assert that statements made in those
two filings were misrepresentations.
The Defendants contend that the Lead Plaintiff, Wayne County
Employees' Retirement System (WCERS), does not have standing to
bring a Section 11 Securities Act claim because it has not
adequately alleged that its stock is traceable to the registration
statement at issue. WCERS asserts that it is not required to do
more than generally allege that the stock it purchased can be
traced back to the registration statement.
Because the Lead Plaintiff has alleged only that it purchased stock
"traceable to the Registration Statement," but has not offered any
factual support for this general and conclusory allegation, Judge
Eagles holds that the Defendant's motion to dismiss the Section 11
Securities Act violations will be granted. The Section 15 claim,
which establishes controlling person liability for a Section 11
violation, will also be dismissed.
If the Plaintiffs have sufficient facts, they may promptly file a
motion to amend in compliance with the Local Rules, Judge Eagles
says.
In support of their motion to dismiss, the Defendants offer
discrete pages from their SEC filings, transcripts from earnings
calls and presentations, and a paper writing they say is the audit
report referenced by the Plaintiffs in the complaint. They ask the
Court to consider these documents in deciding the motion to
dismiss, contending the documents are incorporated into the
complaint and are subject to judicial notice.
The Plaintiffs move to strike the purported audit report. They
object to consideration of the other materials only to the extent
they are offered to prove the truth of the matters asserted. The
Plaintiffs dispute the authenticity of the document proffered by
the Defendant and do not concede that it is the audit report
discussed in the complaint. Its contents also do not match up to
the detailed factual allegations in the complaint.
The Court says it has not considered this exhibit in evaluating the
motion to dismiss. The Plaintiffs do not challenge the authenticity
of the other documents proffered by the Defendants. Rather, the
Plaintiffs state that the Court cannot consider these documents for
the truth of the matters asserted.
Judge Eagles finds that many of the Plaintiffs' allegations are
directly in conflict with statements made by the Defendants in
these exhibits. The Defendants have also made arguments about
adequacy of cautionary statements that are more appropriately
evaluated later in the litigation. The Court has considered the
documents to show that they were filed and that the statements were
made, but not for the truth of the statements made therein.
Accordingly, Judge Eagles rules that the Defendants' motion to
dismiss the second amended complaint is granted as to the
Plaintiffs' first and second causes of action, violation of Section
11 of the Securities Act, and violation of Section 15 of the
Securities Act, for inadequate allegations of statutory standing.
The Defendants' motion is, otherwise, denied, and the Plaintiffs
Exchange Act claims under Section 10(b) and Section 20(a) may
proceed.
The Defendants' motion for consideration is denied as to the
proffered audit report, and is otherwise granted for the limited
purposes stated herein.
The Plaintiff's motion to strike is denied as unnecessary. The
Court has not considered the proffered audit report and has
considered the other materials only to the limited extent stated
herein.
A full-text copy of the Court's Memorandum Opinion and Order dated
Nov. 6, 2023, is available at https://tinyurl.com/494ttnbb from
PacerMonitor.com.
BITPAY INC: Wilhelm Biometrics Suit Removed to W.D. Ill.
--------------------------------------------------------
The case CANDICE WILHELM, individually and on behalf of all others
similarly situated, Plaintiff, v. BITPAY, INC., Defendant, Case No.
2023-CH-08567, was removed from the Circuit Court of Cook County,
Illinois, to the United States District Court for the Northern
District of Illinois, Eastern Division on November 8, 2023.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:23-cv-15799 to the proceeding.
In the complaint, the Plaintiff alleges that BitPay violated the
Illinois Biometric Information Privacy Act by unlawfully
collecting, retaining, and disclosing the biometric information of
Plaintiff and the proposed Class members.
BitPay, Inc. is a bitcoin payment service provider.[BN]
The Defendant is represented by:
Stephen J. Siegel, Esq.
Robert J. Crawford, Esq.
ARMSTRONG TEASDALE LLP
100 N. Riverside Plaza
Chicago, IL 60606
Telephone: (312) 419-6900
E-mail: ssiegel@atllp.com
rcrawford@atllp.com
- and -
Edward A. Marshall, Esq.
Theresa Y. Kananen, Esq.
Morgan E. M. Harrison, Esq.
ARNALL GOLDEN GREGORY LLP
171 17th St. NW, Suite 2100
Atlanta, GA 30363
Telephone: (404) 873-8500
E-mail: edward.marshall@agg.com
theresa.kananen@agg.com
morgan.harrison@agg.com
BLOOM INSTITUTE: Court Tosses Fuller Bid to Remand
--------------------------------------------------
In the class action lawsuit captioned as JESSICA FULLER, et al., v.
BLOOM INSTITUTE OF TECHNOLOGY, et al., Case No. 3:23-cv-01440-AGT
(N.D. Cal.), the Hon. Judge Alex G. Tse entered an order denying
the Plaintiffs' motion to remand or in the alternative for leave to
conduct jurisdictional discovery.
The defendants have met their burden of proving that it is more
likely than not that the amount in controversy exceeds $5 million.
The Plaintiffs' motion to remand or, in the alternative, for leave
to conduct jurisdictional discovery is therefore denied.
The Plaintiffs agree that attorney's fees should be included in the
amount in controversy, and they do not dispute that defendants have
met their burden to include a 25% attorney's fee in the
calculation.
Bloom is an online coding bootcamp that trains people to become
software engineers, data scientists, or back end developers.
A copy of the Court's order dated Nov. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/49UCyfU at no extra charge.[CC]
BRIGHT HEALTH: Continues to Defend Marquez Securities Class Suit
----------------------------------------------------------------
Bright Health Group, Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend the Marquez securities class suit in
the Eastern District of New York.
On January 6, 2022, a putative securities class action lawsuit was
filed against the Company and certain of its officers and directors
in the Eastern District of New York.
The case is captioned Marquez v. Bright Health Group, Inc. et al.,
1:22-cv-00101 (E.D.N.Y.).
The lawsuit alleges, among other things, that it made materially
false and misleading statements regarding its business, operations,
and compliance policies, which in turn adversely affected its stock
price.
An amended complaint was filed on June 24, 2022, which expands on
the allegations in the original complaint and alleges a putative
class period of June 24, 2021 through March 1, 2022.
The amended complaint also adds as defendants the underwriters of
our initial public offering.
The Company has served a motion to dismiss the amended complaint,
which has not yet been ruled on by the court.
The Company is vigorously defending the Company in the above
actions, but there can be no assurance that it will be successful
in any defense.
Bright Health Group, Inc. and subsidiaries operates in care
delivery and care solutions segments.
CANISIUS COLLEGE: McCudden Appeals Ruling in COVID Tuition Suit
---------------------------------------------------------------
Plaintiffs Caleb McCudden, et al., filed an appeal from a court's
ruling entered in the lawsuit styled Caleb McCudden et al. vs.
Canisius College, Case No. 808928/2020, in the New York Supreme
Court, Appellate Division, Fourth Judicial Department.
The Plaintiff files this suit against the college for charging the
same tuition, despite moving its classes online. He, like many
other students, paid for in-person educational services and he
wants his money back since the school cannot provide those
services.
The lawsuit claims Canisius has not refunded any of the tuition or
mandatory fees it collected from students, even though it
implemented an online-only learning model in March 2020. The
student claims the university also stopped providing services that
the mandatory fees were intended to cover.
On May 11, 2023, though New York Supreme Court Justice John Licata
dismissed the claim as it relates to tuition, he allowed the former
student to pursue his claim over the college's mandatory fees.
"In the case of the mandatory fees, there exists clear, specific
language what services students will receive in exchange for each
of the four fees," Judge Licata said in his ruling. "Plaintiff's
complaint alleges that most of services specifically paid for by
the mandatory fees were not provided," added Judge Licata.
The Plaintiff filed this appeal seeking a review of the ruling. The
appellate case is captioned as Caleb McCudden et al. v. Canisius
College, Case No. CA 23-01865, in the New York Supreme Court,
Appellate Division, Fourth Judicial Department, filed on November
7, 2023.[BN]
CAROTHERS HOLDING: Court Sets Hearing on Bid to Certify Class
-------------------------------------------------------------
In the class action lawsuit captioned as Simpson v. Carothers
Holding Company, LLC, et al., Case No. (W.D.N.C., April 14, 2023),
the Court entered an order setting hearing on bid to certify class
and motion to dismiss.[CC]
CINEMARK HOLDINGS: Faces Rodriguez Suit Over Credit Transaction
----------------------------------------------------------------
Cinemark Holdings Inc. disclosed in its Form 10-Q report for the
quarterly period ended July 29, 2023, filed with the Securities and
Exchange Commission on August 31, 2023, that it is facing "Gerardo
Rodriguez, individually and on behalf of a class of all others
similarly situated v. Cinemark USA, Inc. and Cinemark Holdings,
Inc., et al."
This class action lawsuit was filed against the company on February
24, 2023 in the Cook County Circuit Court in Illinois alleging
violation of the Fair and Accurate Credit Transactions Act.
Cinemark Holdings, Inc. is a holding company. Its wholly-owned
subsidiary, Cinemark USA, Inc., operates in the motion picture
exhibition industry, with theatres in the United States, Brazil,
Argentina, Chile, Colombia, Peru, Honduras, El Salvador, Nicaragua,
Costa Rica, Panama, Guatemala, Bolivia and Paraguay.
CONAGRA BRANDS: Vanbuskirk Sues Over Unpaid Overtime Wages
----------------------------------------------------------
MICHAEL VANBUSKIRK and JESSICIA FICKERT, on behalf of themselves
and all others similarly situated, Plaintiffs v. CONAGRA BRANDS,
INC. and CONAGRA FOODS PACKAGED FOODS COMPANY, LLC, Defendants,
Case No. 4:23-cv-01856-MWB (M.D. Pa., Nov. 8, 2023) arises from the
Defendants' failure to pay proper overtime wages in violation of
the Fair Labor Standards Act and the Pennsylvania Minimum Wage
Act.
The Plaintiffs were jointly employed by Defendants as hourly
non-exempt employees at Defendants' food manufacturing facility in
Milton, Pennsylvania and in Troy, Ohio. Their job duties involved
the manufacturing, packaging, processing and/or handling of food.
They regularly worked 40 or more hours per workweek but were not
paid at a rate of one and one-half times their regular rate of pay
for all hours worked in excess of 40 hours, say the Plaintiffs.
Conagra Brands, Inc. is an American consumer packaged goods holding
company.[BN]
The Plaintiffs are represented by:
Robert E. DeRose, Esq.
BARKAN MEIZLISH DEROSE COX, LLP
4200 Regent Street, Suite 210
Columbus, OH 43219
Telephone: (614) 221-4221
Facsimile: (614) 744-2300
E-mail: bderose@barkanmeizlish.com
- and -
Hans A. Nilges, Esq.
NILGES DRAHER, LLC
7034 Braucher St NW, Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hnilges@ohlaborlaw.com
CONSOLIDATED WASTE: Conditional Class Cert Filing Due Dec. 8
------------------------------------------------------------
In the class action lawsuit captioned as Dudley v. Consolidated
Waste Services, LLC, et al., Case No. 1:23-cv-00592 (N.D.N.Y.,
Filed May 17, 2023), the Hon. Judge Frederick J Scullin, Jr.
entered an order that the motion for conditional class
certification shall be filed by Dec. 8, 2023.
-- No further extensions will be granted, the Court says.
The suit alleges violation of the Fair Labor Standards Act.
Consolidated provides waste management services.[CC]
COTTAGE HEALTH: K. S. Files Suit in C.D. California
---------------------------------------------------
A class action lawsuit has been filed against Cottage Health. The
case is styled as K. S., C. M., individually, and on behalf of all
others similarly situated v. Cottage Health, Case No. 2:23-cv-09528
(C.D. Cal., Nov. 10, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
Cottage Health -- https://www.cottagehealth.org/ -- is a
not-for-profit Health Care system operating, Hospitals, Urgent
Cares, Clinics, and Cottage Virtual Care telehealth services.[BN]
The Plaintiff is represented by:
Daniel Z. Srourian, Esq.
SROURIAN LAW FIRM
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Phone: (213) 474-3800
Email: daniel@slfla.com
CS DISCO: Faces Stockholder Class Suit in New York
--------------------------------------------------
CS Disco Inc. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company faces a
stockholder class suit in New York Supreme Court, County of New
York.
On November 3, 2023, a purported stockholder class action lawsuit
was filed against the Company and certain of its current and former
officers in New York Supreme Court, County of New York, alleging
violations under Sections 11 and 12(a)(2) of the Securities Act of
1933.
The complaint alleges that the Company made false or misleading
statements about the factors that were driving revenue growth
between July 21, 2021 and August 11, 2022.
The complaint seeks an unspecified amount of damages, interest,
attorneys' fees, expert fees, costs, rescission, equitable and
injunctive relief, and other relief as the court may deem just and
proper.
CS Disco provides cloud-based, artificial intelligence-powered
technologies to simplify electronic discovery, legal document
review, legal hold and case management for enterprises, law firms,
legal services providers, and governments.[BN]
D.R.E.A.M. CLOTHING: Luis Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against D.R.E.A.M. Clothing
LLC. The case is styled as Kevin Yan Luis, individually and on
behalf of all others similarly situated v. D.R.E.A.M. Clothing LLC,
Case No. 1:23-cv-09984-PAE (S.D.N.Y., Nov. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
DREAM Clothing is the leader in fashion & merch that supports a
greater cause by donating a portion of all sales to help raise
funding for Mental Health.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
DOORDASH INC: Floyd Suit Removed to W.D. Washington
---------------------------------------------------
The case captioned as Alexander Floyd, individually and on behalf
of himself and persons similarly situated v. DOORDASH, INC., a
foreign corporation; DOORDASH EXPRESS DELIVERY LLC, a Washington
limited liability company; DOORDASH ESSENTIALS, LLC, a foreign
limited liability company; DOORDASH G&C, LLC, a foreign limited
liability company; and DOES 1-20, Case No. 23-2-19559-1 SEA was
removed from the Superior Court of Washington for King County, to
the United States District Court for the Western District of
Washington on Nov. 13, 2023, and assigned Case No. 2:23-cv-01740.
On October 10, 2023, Plaintiff Alexander Floyd caused to be filed a
Class Action Complaint for Damages, Injunctive Relief, and
Declaratory Relief ("Complaint").[BN]
The Defendants are represented by:
Mathew A. Parker, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
The KeyBank Building
88 East Broad Street, Suite 2025
Columbus, OH 43215
Phone: (614) 494-0420
Facsimile: (614) 633-1455
Email: mathew.parker@ogletree.com
ENVIVA INC: Continues to Defend Securities Suit in Maryland
-----------------------------------------------------------
Enviva Inc. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company continues
to defend itself from the securities class suit in the federal
district court in the District of Maryland.
On November 3, 2022, a putative securities class action lawsuit was
filed in federal district court in the District of Maryland against
Enviva, John Keppler, and Shai Even.
On April 3, 2023, the lead plaintiff filed its amended complaint
adding Jason E. Paral, Michael A. Johnson, Jennifer Jenkins, Don
Calloway, and a number of underwriters of the Company's stock
offering made pursuant to the Company's registration statement and
prospectus dated January 19, 2022 as named defendants.
The lawsuit asserts claims under Sections 10(b) and 20(a) of the
Exchange Act and Rule 10b-5 thereunder as well as Sections 11 and
15 of the Securities Act based on allegations that the Company made
materially false and misleading statements regarding the Company's
business, operations, and compliance policies, particularly
relating to its ESG practices.
Specifically, the lawsuit alleges that the Company's statements
were misleading as to the environmental sustainability of the
Company's wood pellet production and procurement and the impact
such statements would have on the Company's financials and growth
potential.
The lawsuit seeks unspecified damages, equitable relief, interest
and costs, and attorneys' fees.
The parties completed briefing on Enviva's motion to dismiss the
amended complaint on August 1, 2023 and it is now before the court
for consideration.
Enviva has insurance coverage that, it believes, will cover some or
all of its liabilities related to the defense of this matter.
However, litigation is inherently uncertain and it cannot be
certain that our coverage will be adequate for liabilities actually
incurred.
Enviva believes the case is without merit and intends to vigorously
defend the matter.
Enviva Inc. supplies utility-grade wood pellets primarily to major
power generators under long-term, take-or-pay off-take contracts
procuring wood fiber and process it into utility-grade wood
pellets.
EQUINOX HOLDINGS: Class Cert Bid Adjourned to Feb. 21, 2024
-----------------------------------------------------------
In the class action lawsuit captioned as Katz & Skidanenko v.
Equinox Holdings, Inc., Case No. 1:20-cv-09856-DEH (S.D.N.Y.), the
Hon. Judge Dale E. Ho entered an order granting the parties'
request to file a joint letter regarding the ADR program.
The deadline for Plaintiffs to file a motion for class
certification and for Defendant to file a motion for
decertification of the collective is adjourned to February 21,
2024.
The parties shall file a joint letter by January 19, 2024,
regarding motion practice and, if applicable, the sequencing of
such motion with the certification/decertification motions. The
status letter shall also include a statement as to whether the
parties request a referral for mediation before Magistrate Judge
Lehrburger or through the District's Mediation Program.
Thus, Defendant deprived Plaintiffs and those similarly situated of
proper overtime pay. The Plaintiffs also allege that they worked
off-the-clock by, among other things, prospecting for clients,
commuting to meetings, and communicating with their managers
without pay, including overtime pay when it resulted in overtime
hours.
They additionally allege that they were entitled to be paid on a
weekly basis pursuant to the New York Labor Law section 191 but
were unlawfully paid on a bi-weekly basis.
Thes case is about Equinox trainer compensation in New York. That
compensation is lawful and is based on the following premises:
Trainers receive a commission for each session, which is intended
to compensate them for all activities related to the session.
The effective rate for such work is always well above minimum
wage:
-- Trainers are paid hourly at the minimum wage for certain
ancillary activities relating to continuing education and
training; and,
-- Trainers – fitness professionals all – are free to
otherwise make
use of Equinox's world class fitness facilities, to whatever
extent they choose, for personal purposes.
Equinox is an American luxury fitness company.
A copy of the Court's order dated Nov. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3sxEme1 at no extra charge.[CC]
The Plaintiffs are represented by:
Alexander M. White, Esq.
VALLI, KANE & VAGNINI
600 Old Country Road, Suite 519
Garden City, NY 11530
Telephone: (516) 203-7180
Facsimile: (516) 706-0248
E-mail: www.vkvlawyers.com
ESSILORLUXOTTICA SA: Udovich Sues Over Improper Monopoly Power
--------------------------------------------------------------
Nedenia Udovich, individually and on behalf of all others similarly
situated v. ESSILORLUXOTTICA S.A.; LUXOTTICA GROUP S.P.A.; ESSILOR
INTERNATIONAL SAS; ESSILORLUXOTTICA USA INC.; LUXOTTICA U.S.
HOLDINGS CORP.; ESSILOR OF AMERICA HOLDING COMPANY, INC.; LUXOTTICA
OF AMERICA, INC.; ESSILOR OF AMERICA INC.; EYEMED VISION CARE, LLC;
AND VISION SOURCE, LLC, Case No. 1:23-cv-15854 (N.D. Ill., Nov. 10,
2023), is brought concerning the exclusionary acts and practices of
EssilorLuxottica in the eyewear industry.
EssilorLuxottica has improperly maintained monopoly power in the
eyewear industry by engaging in exclusionary acts and practices,
including entering long-term, exclusive licensing contracts with
various fashion houses, imposing restrictive sales agreements on
competing eyewear manufacturers, and improperly steering customers
towards its own products via its wholly-owned vision insurance
company, EyeMed. Luxottica's conduct has led to higher prices,
lower output, reduced innovation, and diminished consumer choice.
The Plaintiff brings this antitrust class action lawsuit on behalf
of herself and a nationwide Class of all similarly situated persons
and entities who purchased eyewear directly from one or more
EssilorLuxottica--operated physical or online outlets between 2007
and the present. Because of Defendants' violations of Sections 1
and 2 of the Sherman Act, Plaintiff and members of the Class were
injured by paying significant overcharges on eyewear throughout the
United States.
If Defendants are permitted to continue their anticompetitive
scheme, Plaintiff and members of the Class will continue to pay
supracompetitive prices on eyewear. Plaintiff brings this action to
seek damages and permanently enjoin Defendants' misconduct, says
the complaint.
The Plaintiff is a New Jersey resident who purchased, for her own
personal or household consumption, eyewear, including Licensed
Eyewear.
EssilorLuxottica has emerged as the world's largest eyewear
company.[BN]
The Plaintiff is represented by:
Brian M. Hogan, Esq.
DICELLO LEVITT LLP
Ten North Dearborn Street, Sixth Floor
Chicago, IL 60602
Phone: (312) 214-7900
Email: bhogan@dicellolevitt.com
- and -
Gregory S. Asciolla, Esq.
Karin E. Garvey, Esq.
Jonathan S. Crevier, Esq.
DICELLO LEVITT LLP
485 Lexington Avenue, Suite 1001
New York, NY 10017
Phone: (646) 933-1000
Email: gasciolla@dicellolevitt.com
kgarvey@dicellolevitt.com
jcrevier@dicellolevitt.com
ET-A-LL LLC: Hernandez Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against ET-A-LL, LLC. The
case is styled as Janelys Hernandez, on behalf of herself and all
others similarly situated v. ET-A-LL, LLC, Case No. 1:23-cv-09987
(S.D.N.Y., Nov. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ET-A-LL, LLC doing business as HAH -- https://www.wearehah.com/ --
is an eco-friendly brand made by Women for Women offering
sustainable swimwear, lingerie, bras, panties, dresses, bodysuits,
pajamas & activewear.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
EVERBRIDGE INC: Continues to Defend Sylebra Class Suit
-------------------------------------------------------
Everbridge Inc. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company continues
to defend itself from the Sylebra class suit in the United States
District Court for the Central District of California.
In April 2022, a putative class action lawsuit was filed in the
United States District Court for the Central District of California
against the Company, Jaime Ellertson, Patrick Brickley, and David
Meredith (the Company's former Chief Executive Officer) by Sylebra
Capital Partners Master Fund Ltd, Sylebra Capital Parc Master Fund,
and Sylebra Capital Menlo Master Fund (collectively, "Sylebra").
In September 2022, Sylebra filed an amended and restated complaint
(the "First Amended Complaint").
The lawsuit alleges violations of the federal securities laws by
the Company and certain of its officers and directors arising out
of purported misrepresentations in the information the Company
provided to investors regarding the Company's organic and inorganic
revenue growth, and the status of integrating acquisitions, which
allegedly artificially inflated the price of the Company's stock
during the period from November 4, 2019 to February 24, 2022.
The Company is not able to estimate the amount of the loss
allegedly suffered by members of the putative class or the amount
of legal costs and internal efforts associated with defending the
Company and the Company's officers and directors.
The Company intends to defend the action vigorously.
In October 2022, the Company filed a motion to dismiss the lawsuit
on various grounds, including failure to plead any actionable
misstatement or omission, failure to establish scienter, and
failure to meet the pleading requirements of the Private Securities
Litigation Reform Act and other applicable law.
On May 9, 2023, the Court granted the Company's motion to dismiss
each of the claims, dismissing the First Amended Complaint in its
entirety, without prejudice. Sylebra filed a Second Amended
Complaint on June 30, 2023.
The Company has filed a motion to dismiss the Second Amended
Complaint and that motion is scheduled to be heard by the Court on
December 7, 2023.
Even if the Company were to prevail again, this litigation could
continue to be costly and time-consuming and divert the attention
of the Company's management and key personnel from the Company's
business operations. During the course of the litigation, the
Company anticipates announcements of the results of hearings and
motions, and other interim developments related to the litigation.
If securities analysts or investors regard these announcements as
negative, the market price of the Company's common stock may
decline. If the Company is unsuccessful in defending itself in this
litigation, this lawsuit could materially and adversely affect the
Company's business, financial condition, results of operations and
cash flows.
Everbridge, Inc., a Delaware corporation, is a global software
company with operations in the United States, United Kingdom,
Norway, China, Netherlands, Canada, New Zealand, France, India,
and
other countries.
EXP WORLD: Faces Batton Class Suit in Illinois
----------------------------------------------
Exp World Holdings Inc. disclosed in its Form 8-K Report for
November 2, 2023 filed with the Securities and Exchange Commission
on November 9, 2023, that the Company faces a class suit captioned
Batton et. al. v. Compass, Inc. et. al. in the United States
District Court for the Northern District of Illinois.
On November 2, 2023, a putative class action complaint under the
caption Batton et. al. v. Compass, Inc. et. al. (the "Class
Action") was filed in the United States District Court for the
Northern District of Illinois, Eastern Division, naming certain
unaffiliated real estate brokerages, including the Company, as
defendants.
The Class Action alleges that defendants participated in a system
that resulted in sellers of residential property paying inflated
buyer broker commissions in violation of federal antitrust law.
The plaintiffs seek a permanent injunction under federal antitrust
laws enjoining the defendants from requiring home sellers to pay
buyer-agent commissions without negotiations or from otherwise
restricting competition among brokers and an award of declaratory
relief and damages or restitution under the laws of various states
on behalf of certain home buyers in those states, as well as
attorneys' fees and costs of suit.
Plaintiffs allege joint and several liability and seek treble or
other multiple damages. The Company believes that additional
antitrust litigation may be possible.
The Company cannot provide any assurances that results of such
litigation will not have a material adverse effect on its business,
results of operations or financial condition.
eXp World Holdings is a holding company based in Washington State.
FLEXPORT INC: Thorson Sues Over Failure to Provide Written Notice
-----------------------------------------------------------------
Beth Thorson, individually and on behalf of all others similarly
situated v. Flexport, Inc., Case No. 1:23-cv-15866 (N.D. Ill., Nov.
10, 2023), is brought on behalf of former employees of the
Defendant who were terminated in mass layoffs for which Defendant
was required to provide 60 days advanced written notice under the
Worker Adjustment and Retraining Notification Act ("Warn Act").
On October 13, 2023, Defendant announced that it was laying off 20%
of its workforce and terminated Plaintiff and Class Members.
Flexport provided employees in Bellvue, Washington and San
Francisco, California the required Warn Act notice. However,
Flexport did not provide its remote employees who reported to its
San Francisco
and/or Bellvue offices with notice or renumeration under the Warn
Act. The Plaintiff and all similarly situated employees seek to
recover from Defendant 60 days wages and benefits, and reasonable
attorney's fees and the costs, pursuant to the Warn Act, says the
complaint.
The Plaintiff was employed by Defendant for five years until her
termination on October 13, 2023.
The Defendant is a California corporation, with its principal place
of business located in San Francisco, California.[BN]
The Plaintiff is represented by:
Ethan G. Zelizer, Esq.
HR LAW COUNSEL, LLC
29 South Webster Street, Suite 350-C
Naperville, IL 60540
Phone: 630.551.8374
Fax: 630.566.0705
Email: ethan@hrlawcounsel.com
FLO HEALTH: Bid for Class Certification in Frasco Due Feb. 22, 2024
-------------------------------------------------------------------
In the class action lawsuit captioned as Frasco v. Flo Health,
Inc., Case No. 3:21-cv-00757 (N.D. Cal., Filed Jan. 29, 2021), the
Hon. Judge James Donato entered an order that plaintiffs' motion
for class certification, and Defendant Google's motion to strike
and motion for summary judgment, will be heard on February 22,
2024.
The nature of suit states Torts -- Personal Injury -- Other
Personal Injury.
Flo provides women's health mobile application services.[CC]
GENWORTH FINANCIAL: Continues to Burkhart Class Suit in Delaware
----------------------------------------------------------------
Genworth Financial Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Burkhart class suit in
the Court of Chancery of the State of Delaware.
In September 2018, Genworth Financial, Genworth Holdings, Genworth
North America Corporation, Genworth Financial International
Holdings, LLC ("GFIH") and Genworth Life Insurance Company ("GLIC")
were named as defendants in a putative class action lawsuit pending
in the Court of Chancery of the State of Delaware captioned Richard
F. Burkhart, William E. Kelly, Richard S. Lavery, Thomas R. Pratt,
Gerald Green, individually and on behalf of all other persons
similarly situated v. Genworth et al.
Plaintiffs allege that GLIC paid dividends to its parent and
engaged in certain reinsurance transactions causing it to maintain
inadequate capital capable of meeting its obligations to GLIC
policyholders and agents.
The complaint alleges causes of action for intentional fraudulent
transfer and constructive fraudulent transfer, and seeks injunctive
relief.
The Company moved to dismiss this action in December 2018.
On January 29, 2019, plaintiffs exercised their right to amend
their complaint.
On March 12, 2019, it moved to dismiss plaintiffs’ amended
complaint.
On April 26, 2019, plaintiffs filed a memorandum in opposition to
its motion to dismiss, which it replied to on June 14, 2019.
On August 7, 2019, plaintiffs filed a motion seeking to prevent
proceeds that GFIH expected to receive from the then planned sale
of its shares in Genworth MI Canada Inc. ("Genworth Canada") from
being transferred out of GFIH.
On September 11, 2019, plaintiffs filed a renewed motion seeking
the same relief as their August 7, 2019 motion with an exception
that allowed GFIH to transfer $450 million of expected proceeds
from the sale of Genworth Canada through a dividend to Genworth
Holdings to allow the pay-off of a senior secured term loan
facility dated March 7, 2018 among Genworth Holdings as the
borrower, GFIH as the limited guarantor and the lending parties
thereto.
Oral arguments on our motion to dismiss and plaintiffs' motion
occurred on October 21, 2019, and plaintiffs’ motion was denied.
On January 31, 2020, the Court granted in part its motion to
dismiss, dismissing claims relating to $395 million in dividends
GLIC paid to its parent from 2012 to 2014 (out of the $410 million
in total dividends subject to plaintiffs' claims).
The Court denied the balance of the motion to dismiss leaving a
claim relating to $15 million in dividends and unquantified claims
relating to the 2016 termination of a reinsurance transaction.
On March 27, 2020, it filed its answer to plaintiffs' amended
complaint.
On May 26, 2021, the plaintiffs filed a second amended and
supplemental class action complaint adding additional factual
allegations and three new causes of action.
On July 26, 2021, it moved to dismiss the three new causes of
action and answered the balance of the second amended and
supplemental class action complaint.
Plaintiffs filed an opposition to its motion to dismiss on
September 30, 2021.
The Court heard oral arguments on the motion on December 7, 2021
and ordered each party to file supplemental submissions, which were
filed on January 28, 2022.
On May 10, 2022, the Court granted its motion to dismiss the three
new causes of action.
On January 27, 2022, plaintiffs filed a motion for a preliminary
injunction seeking to enjoin GFIH from transferring any assets to
any affiliate, including paying any dividends to Genworth Holdings
and to enjoin Genworth Holdings and Genworth Financial from
transferring or distributing any value to Genworth Financial’s
shareholders.
On June 2, 2022, plaintiffs withdrew their motion for a preliminary
injunction.
The Company intends to continue to vigorously defend this action.
In September 2018, Genworth Financial, Genworth Holdings, Genworth
North America Corporation, Genworth Financial International
Holdings, LLC ("GFIH") and Genworth Life Insurance Company ("GLIC")
were named as defendants in a putative class action lawsuit pending
in the Court of Chancery of the State of Delaware captioned Richard
F. Burkhart, William E. Kelly, Richard S. Lavery, Thomas R. Pratt,
Gerald Green, individually and on behalf of all other persons
similarly situated v. Genworth et al.
Plaintiffs allege that GLIC paid dividends to its parent and
engaged in certain reinsurance transactions causing it to maintain
inadequate capital capable of meeting its obligations to GLIC
policyholders and agents.
The complaint alleges causes of action for intentional fraudulent
transfer and constructive fraudulent transfer, and seeks injunctive
relief.
The Company moved to dismiss this action in December 2018.
On January 29, 2019, plaintiffs exercised their right to amend
their complaint.
On March 12, 2019, it moved to dismiss plaintiffs' amended
complaint.
On April 26, 2019, plaintiffs filed a memorandum in opposition to
its motion to dismiss, which it replied to on June 14, 2019.
On August 7, 2019, plaintiffs filed a motion seeking to prevent
proceeds that GFIH expected to receive from the then planned sale
of its shares in Genworth MI Canada Inc. ("Genworth Canada") from
being transferred out of GFIH.
On September 11, 2019, plaintiffs filed a renewed motion seeking
the same relief as their August 7, 2019 motion with an exception
that allowed GFIH to transfer $450 million of expected proceeds
from the sale of Genworth Canada through a dividend to Genworth
Holdings to allow the pay-off of a senior secured term loan
facility dated March 7, 2018 among Genworth Holdings as the
borrower, GFIH as the limited guarantor and the lending parties
thereto.
Oral arguments on our motion to dismiss and plaintiffs' motion
occurred on October 21, 2019, and plaintiffs' motion was denied.
On January 31, 2020, the Court granted in part its motion to
dismiss, dismissing claims relating to $395 million in dividends
GLIC paid to its parent from 2012 to 2014 (out of the $410 million
in total dividends subject to plaintiffs' claims).
The Court denied the balance of the motion to dismiss leaving a
claim relating to $15 million in dividends and unquantified claims
relating to the 2016 termination of a reinsurance transaction.
On March 27, 2020, it filed its answer to plaintiffs' amended
complaint.
On May 26, 2021, the plaintiffs filed a second amended and
supplemental class action complaint adding additional factual
allegations and three new causes of action.
On July 26, 2021, it moved to dismiss the three new causes of
action and answered the balance of the second amended and
supplemental class action complaint.
Plaintiffs filed an opposition to its motion to dismiss on
September 30, 2021.
The Court heard oral arguments on the motion on December 7, 2021
and ordered each party to file supplemental submissions, which were
filed on January 28, 2022.
On May 10, 2022, the Court granted its motion to dismiss the three
new causes of action.
On January 27, 2022, plaintiffs filed a motion for a preliminary
injunction seeking to enjoin GFIH from transferring any assets to
any affiliate, including paying any dividends to Genworth Holdings
and to enjoin Genworth Holdings and Genworth Financial from
transferring or distributing any value to Genworth Financial's
shareholders.
On June 2, 2022, plaintiffs withdrew their motion for a preliminary
injunction.
The Company intends to continue to vigorously defend this action.
Genworth provides life insurance, long-term care insurance,
mortgage insurance, and annuities.
GENWORTH FINANCIAL: Continues to Defend Burkhart Class Suit
-----------------------------------------------------------
Genworth Financial Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Burkhart class suit in
the Court of Chancery of the State of Delaware.
In September 2018, Genworth Financial, Genworth Holdings, Genworth
North America Corporation, Genworth Financial International
Holdings, LLC ("GFIH") and Genworth Life Insurance Company
(“GLIC”) were named as defendants in a putative class action
lawsuit pending in the Court of Chancery of the State of Delaware
captioned Richard F. Burkhart, William E. Kelly, Richard S. Lavery,
Thomas R. Pratt, Gerald Green, individually and on behalf of all
other persons similarly situated v. Genworth et al.
Plaintiffs allege that GLIC paid dividends to its parent and
engaged in certain reinsurance transactions causing it to maintain
inadequate capital capable of meeting its obligations to GLIC
policyholders and agents.
The complaint alleges causes of action for intentional fraudulent
transfer and constructive fraudulent transfer, and seeks injunctive
relief.
The Company moved to dismiss this action in December 2018.
On January 29, 2019, plaintiffs exercised their right to amend
their complaint.
On March 12, 2019, it moved to dismiss plaintiffs' amended
complaint.
On April 26, 2019, plaintiffs filed a memorandum in opposition to
its motion to dismiss, which it replied to on June 14, 2019.
On August 7, 2019, plaintiffs filed a motion seeking to prevent
proceeds that GFIH expected to receive from the then planned sale
of its shares in Genworth MI Canada Inc. ("Genworth Canada") from
being transferred out of GFIH.
On September 11, 2019, plaintiffs filed a renewed motion seeking
the same relief as their August 7, 2019 motion with an exception
that allowed GFIH to transfer $450 million of expected proceeds
from the sale of Genworth Canada through a dividend to Genworth
Holdings to allow the pay-off of a senior secured term loan
facility dated March 7, 2018 among Genworth Holdings as the
borrower, GFIH as the limited guarantor and the lending parties
thereto.
Oral arguments on its motion to dismiss and plaintiffs' motion
occurred on October 21, 2019, and plaintiffs' motion was denied.
On January 31, 2020, the Court granted in part its motion to
dismiss, dismissing claims relating to $395 million in dividends
GLIC paid to its parent from 2012 to 2014 (out of the $410 million
in total dividends subject to plaintiffs' claims).
The Court denied the balance of the motion to dismiss leaving a
claim relating to $15 million in dividends and unquantified claims
relating to the 2016 termination of a reinsurance transaction.
On March 27, 2020, it filed its answer to plaintiffs' amended
complaint.
On May 26, 2021, the plaintiffs filed a second amended and
supplemental class action complaint adding additional factual
allegations and three new causes of action.
On July 26, 2021, it moved to dismiss the three new causes of
action and answered the balance of the second amended and
supplemental class action complaint.
Plaintiffs filed an opposition to its motion to dismiss on
September 30, 2021.
The Court heard oral arguments on the motion on December 7, 2021
and ordered each party to file supplemental submissions, which were
filed on January 28, 2022.
On May 10, 2022, the Court granted its motion to dismiss the three
new causes of action.
On January 27, 2022, plaintiffs filed a motion for a preliminary
injunction seeking to enjoin GFIH from transferring any assets to
any affiliate, including paying any dividends to Genworth Holdings
and to enjoin Genworth Holdings and Genworth Financial from
transferring or distributing any value to Genworth Financial's
shareholders.
On June 2, 2022, plaintiffs withdrew their motion for a preliminary
injunction.
The Company intend to continue to vigorously defend this action.
Genworth provides life insurance, long-term care insurance,
mortgage insurance, and annuities.
GENWORTH FINANCIAL: Continues to Defend Savings Plan Class Suit
---------------------------------------------------------------
Genworth Financial Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Savings Plan suit in
Virginia.
On August 1, 2022, a putative class action was filed in the United
States District Court for the Eastern District of Virginia by two
former Genworth employees against Genworth Financial, its Board of
Directors and the Fiduciary and Investments Committee of Genworth
Financial's Retirement and Savings Plan ("Savings Plan").
Plaintiffs purport to act on behalf of the Savings Plan and all
similarly simulated participants and beneficiaries of the Savings
Plan.
The complaint asserts that the defendants breached their fiduciary
duties under the Employee Retirement Income Security Act of 1974 by
imprudently offering and inadequately monitoring a suite of
BlackRock Target Date Funds as a retirement investment option for
Genworth employees.
Plaintiffs seek declaratory and injunctive relief, monetary
damages, and attorney's fees.
By stipulation entered September 6, 2022, the complaint was
dismissed, without prejudice, against the Board of Directors and
the Fiduciary and Investments Committee of Genworth Financial's
Savings Plan.
On October 17, 2022, the Company moved to dismiss the complaint
against the sole remaining defendant, Genworth Financial.
Plaintiffs filed opposition papers on November 10, 2022, and it
filed its reply papers on November 16, 2022.
By order dated January 20, 2023, the Court granted plaintiffs'
motion to serve an amended complaint, rendering its initial motion
to dismiss moot.
On January 20, 2023, plaintiffs filed an amended complaint, and on
February 2, 2023, it filed a motion to dismiss the amended
complaint.
On March 16, 2023, the Court directed plaintiffs to file a second
amended complaint and denied as moot its motion to dismiss the
amended complaint.
Plaintiffs filed the second amended complaint on April 17, 2023.
On May 15, 2023, it answered and moved to dismiss the second
amended complaint.
On September 13, 2023, the Court granted in part and denied in part
its motion to dismiss the second amended complaint.
Discovery is now ongoing, and trial is scheduled for May 20, 2024.
The Company intends to continue to vigorously defend this action.
Genworth provides life insurance, long-term care insurance,
mortgage insurance, and annuities.
GENWORTH FINANCIAL: Continues to Defend TVPX Class Suit
-------------------------------------------------------
Genworth Financial Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the TVPX class suit in the
United States District Court for the Eastern District of Virginia.
In September 2018, Genworth Life and Annuity Insurance Company
("GLAIC"), our indirect wholly-owned subsidiary, was named as a
defendant in a putative class action lawsuit pending in the United
States District Court for the Eastern District of Virginia
captioned TVPX ARX INC., as Securities Intermediary for
Consolidated Wealth Management, LTD. on behalf of itself and all
others similarly situated v. Genworth Life and Annuity Insurance
Company.
Plaintiff alleges unlawful and excessive cost of insurance charges
were imposed on policyholders.
The complaint asserts claims for breach of contract, alleging that
Genworth improperly considered non-mortality factors when
calculating cost of insurance rates and failed to decrease cost of
insurance charges in light of improved expectations of future
mortality, and seeks unspecified compensatory damages, costs, and
equitable relief.
On October 29, 2018, it filed a motion to enjoin the case in the
Middle District of Georgia, and a motion to dismiss and motion to
stay in the Eastern District of Virginia.
It moved to enjoin the prosecution of the Eastern District of
Virginia action on the basis that it involves claims released in a
prior nationwide class action settlement (the "McBride settlement")
that was approved by the Middle District of Georgia.
Plaintiff filed an amended complaint on November 13, 2018.
On December 6, 2018, it moved the Middle District of Georgia for
leave to file our counterclaim, which alleges that plaintiff
breached the covenant not to sue contained in the prior settlement
agreement by filing its current action.
On March 15, 2019, the Middle District of Georgia granted its
motion to enjoin and denied its motion for leave to file its
counterclaim.
As such, plaintiff is enjoined from pursuing its class action in
the Eastern District of Virginia.
On March 29, 2019, plaintiff filed a notice of appeal in the Middle
District of Georgia, notifying the Court of its appeal to the
United States Court of Appeals for the Eleventh Circuit from the
order granting its motion to enjoin.
On March 29, 2019, the Company filed its notice of cross-appeal in
the Middle District of Georgia, notifying the Court of its
cross-appeal to the Eleventh Circuit from the portion of the order
denying its motion for leave to file its counterclaim.
On April 8, 2019, the Eastern District of Virginia dismissed the
case without prejudice, with leave for plaintiff to refile an
amended complaint only if a final appellate Court decision vacates
the injunction and reverses the Middle District of Georgia's
opinion.
On May 21, 2019, plaintiff filed its appeal and memorandum in
support in the Eleventh Circuit.
We filed our response to plaintiff's appeal memorandum on July 3,
2019. The Eleventh Circuit Court of Appeals heard oral argument on
plaintiff's appeal and our cross-appeal on April 21, 2020.
On May 26, 2020, the Eleventh Circuit Court of Appeals vacated the
Middle District of Georgia's order enjoining plaintiff's class
action and remanded the case back to the Middle District of Georgia
for further factual development as to whether Genworth has altered
how it calculates or charges cost of insurance since the McBride
settlement.
The Eleventh Circuit Court of Appeals did not reach a decision on
Genworth's counterclaim.
On June 30, 2021, it filed in the Middle District of Georgia its
renewed motion to enforce the class action settlement and release,
and renewed its motion for leave to file a counterclaim.
The briefing on both motions concluded in October 2021.
On March 24, 2022, the Court denied our motions.
On April 11, 2022, it filed an appeal of the Court's denial to the
United States Court of Appeals for the Eleventh Circuit.
On June 22, 2022, it filed its opening brief in support of the
appeal.
Plaintiff filed its respondent's brief on September 20, 2022, and
it filed its reply brief on November 10, 2022.
The appeal was orally argued on August 17, 2023, and it is awaiting
a decision from the Eleventh Circuit.
The Company intends to continue to vigorously defend this action.
Genworth provides life insurance, long-term care insurance,
mortgage insurance, and annuities.
GERBER PRODUCTS: Smith Sues Over Mislabeled Baby Snack Products
---------------------------------------------------------------
CARRIE SMITH and AMANDA JONES, individually and on behalf of all
others similarly situated, Plaintiffs v. GERBER PRODUCTS COMPANY
Defendant, Case No. 7:23-cv-09834 (S.D.N.Y., Nov. 7, 2023) is a
class action brought under the New York General Business Law on
behalf of the Plaintiffs and similarly situated purchasers of
Defendant's Gerber Yogurt Melts and Gerber Fruit & Veggies Melts
that claim to have "No Preservatives."
According to the complaint, the "No Preservatives" representation
is false and/or misleading because the products contain citric
acid, ascorbic acid and/or sodium ascorbate -- three well-known
preservatives commonly used in food products. The Defendant has
profited unjustly as a result of its deceptive conduct. Thus,
Plaintiffs therefore assert claims on behalf of themselves and
similarly situated purchasers for violation of the state law,
breach of express warranty, and unjust enrichment.
Gerber Products Company is an American purveyor of baby food and
baby products headquartered in Florham Park, New Jersey.[BN]
The Plaintiffs are represented by:
Alec Leslie, Esq.
Julian C. Diamond, Esq.
BURSOR & FISHER, P.A.
1330 Avenue of the Americas, 32nd Floor
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: aleslie@bursor.com
jdiamond@bursor.com
- and -
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
E-mail: nsuciu@milberg.com
- and -
Erin J. Ruben, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600-5000
E-mail: eruben@milberg.com
- and -
J. Hunter Bryson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
405 E 50th Street
New York, NY 10022
Telephone: (630) 796-0903
E-mail: hbryson@milberg.com
GOVERNMENT EMPLOYEES: Steve Ching Seeks Unpaid Renewal Commissions
------------------------------------------------------------------
STEVE CHING INSURANCE, INC. and KIM DAO AGENCY, LLC, individually
and on behalf of all others similarly situated, Plaintiffs v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY and GEICO INSURANCE AGENCY,
INC., Defendants, Case No. 8:23-cv-03033-AAQ (D. Md., Nov. 7, 2023)
arises out of Defendants' uniform pattern and practice of
wrongfully denying Plaintiffs and the other Class members
commissions to which they are legally entitled and wrongfully
appropriating Plaintiffs' and the other Class members' clients and
revenues.
The Plaintiffs bring their claims individually, and on behalf of a
Class of similarly situated present and former local insurance
agencies, seeking damages and other relief resulting from
Defendants' breaches of contract and other unfair, deceptive, and
illegal practices, which deprived Plaintiffs and the other Class
members of monetary and other benefits to which they are legally
entitled.
Specifically, the Class consists of both current and former local
insurance agencies that signed GEICO Field Representative
Agreements with Defendants and were damaged as a result of
Defendants' breaches of contract and other wrongdoing (the "Agency
Class"), including, but not limited to, the wrongful denial of
commissions for generating new business, and a subclass of former
local insurance agencies that suffered the same damages as the
Agency Class, but also suffered additional damages, including, but
not limited to, the denial of post-termination renewal commissions1
and the wrongful appropriation of clients and potential clients,
due to their contracts being arbitrarily terminated by Defendants
(the "Former Agency Class"), says the suit.
Government Employees Insurance Company is a private passenger auto
insurer in the United States.[BN]
The Plaintiffs are represented by:
Benjamin Crump, Esq.
Desiree Austin-Holliday, Esq.
BEN CRUMP LAW, PLLC
122 South Calhoun Street
Tallahassee, FL 32301
Telephone: (800) 691-7111
E-mail: ben@bencrump.com
desiree@bencrump.com
- and -
Adam J. Levitt, Esq.
Amy E. Keller, Esq.
Laura E. Reasons, Esq.
DICELLO LEVITT LLP
Ten North Dearborn Street, Sixth Floor
Chicago, IL 60602
Telephone: (312) 214-7900
E-mail: alevitt@dicellolevitt.com
akeller@dicellolevitt.com
lreasons@dicellolevitt.com
- and -
Diandra S. Debrosse Zimmermann, Esq.
Eli Hare, Esq.
DICELLO LEVITT LLP
505 Twentieth Street North, Suite 1500
Birmingham, AL 35203
Telephone: (205) 855-5700
E-mail: fu@dicellolevitt.com
ehare@dicellolevitt.com
- and -
Kenneth P. Abbarno, Esq.
Justin Hawal, Esq.
DICELLO LEVITT LLP
8160 Norton Parkway
Mentor, OH 44060
Telephone: (440) 953-8888
E-mail: kabbarno@dicellolevitt.com
jhawal@dicellolevitt.com
- and -
Eviealle Dawkins, Esq.
DICELLO LEVITT LLP
1101 Seventeenth Street, NW, Suite 1000
Washington, DC 20036
Telephone: (202) 975-2288
E-mail: edawkins@dicellolevitt.com
GPB CAPITAL: Continues to Defend Material Misstatements Class Suit
------------------------------------------------------------------
GPB Capital Holdings LLC disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from a consolidated material
misstatements and omissions class suits in the New York Supreme
Court, New York County.
In re: GPB Capital Holdings, LLC Litigation (formerly, Adam
Younker, Dennis and Cheryl Schneider, Elizabeth Plaza, and Plaza
Professional Center Inc. PFT Sharing v. GPB Capital Holdings, LLC,
et al. and Peter G. Golder, individually and on behalf of all
others similarly situated, v. GPB Capital Holdings, LLC, et al.
(New York Supreme Court, New York County, Case No. 157679/2019)
In May 2020, plaintiffs filed a consolidated class action complaint
in New York Supreme Court, New York County against GPB, GPB
Holdings, GPB Holdings II, GPB Holdings III, the Partnership, GPB
Cold Storage, GPB Waste Management, David Gentile, Jeffrey Lash,
Macrina Kgil, a/k/a Minchung Kgil, William Edward Jacoby, Scott
Naugle, Jeffry Schneider, AAS, Ascendant, and Axiom Capital
Management.
The Complaint alleges, among other things, that the offering
documents for certain GPB-managed funds, include material
misstatements and omissions.
The plaintiffs are seeking disgorgement, unspecified damages, and
other equitable relief.
Any potential losses associated with this matter cannot be
estimated at this time.
GPB Capital -- http://gpb-cap.com/-- is a New York-based
alternative asset management firm that seeks to acquire
income-producing private companies.[BN]
GREEN DOT CORP: Faces Lyons Class Suit in M.D. Alabama
------------------------------------------------------
Green Dot Corp. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company faces the
Lyons class suit in the U.S. District Court for the Middle District
of Alabama.
On October 20, 2023, an alleged class action captioned Lyons v.
Walmart Inc. et al., was filed in the U.S. District Court for the
Middle District of Alabama, alleging that Walmart, Green Dot
Corporation, and Green Dot Bank breached implied warranties of
merchantability and fitness for a particular purpose, and were
otherwise negligent in the packaging of gift cards at Walmart
stores, resulting in the unauthorized tampering with, and loss of
stored values, on four gift cards sold in advance of the 2022
Christmas holiday season but that were later used at another
location in January 2023.
The suit seeks to represent a nationwide class of persons who
purchased a Visa Prepaid card issued by us and subjected to
unauthorized use by a third party after purchase but prior to the
first authorized use, at a Walmart retail store located in a state
that has adopted Article 2 of the Uniform Commercial Code (thereby
excluding Louisiana).
On October 24, 2023 the court on its own initiative ordered
plaintiff to re-plead the action based on insufficient
jurisdictional allegations, and an amended complaint was filed
October 30, 2023.
Green Dot Corporation and its consolidated subsidiaries is a
financial technology and registered bank holding company providing
a broad set of financial services to consumers and businesses
including debit, checking, credit, prepaid, and payroll cards, as
well as robust money processing services, such as tax refunds,
cash
deposits and disbursements.
GREEN DOT: Faces Hester Class Suit in Texas
-------------------------------------------
Green Dot Corp. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company faces the
Hester class suit in the District Court for Travis County, Texas.
On October 27, 2023, an alleged class action, Hester v. Green Dot
Corporation, was filed in District Court for Travis County, Texas,
alleging he was unable to access funds in his account for an
extended period, and that the Company had similarly blocked access
for other customers.
The complaint purports to allege three causes of action for breach
of contract, breach of fiduciary duty, and deceptive trade
practices in violation of the Texas Deceptive Trade Practices Act.
Texas Bus. and Comm. Code, Ch. 17.
The proposed class is all Texas residents and GO2bank customers or
account holders who "had their accounts or funds blocked, closed,
or otherwise restricted" for more than 72 hours at any time during
the four years (or the length of the longest applicable statute of
limitations for any asserted claim) immediately preceding the
filing of this action continuing through the date of judgment.
Green Dot Corporation and its consolidated subsidiaries is a
financial technology and registered bank holding company providing
a broad set of financial services to consumers and businesses
including debit, checking, credit, prepaid, and payroll cards, as
well as robust money processing services, such as tax refunds,
cash
deposits and disbursements.
GREEN DOT: Faces Koffsmon Class Suit in California
--------------------------------------------------
Green Dot Corp. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company faces a
class suit captioned Koffsmon v. Green Dot Corp., et al., No.
19-cv-10701-DDP-E in the United States District Court for the
Central District District of California.
On December 18, 2019, the alleged class action was filed in the
United States District Court for the Central District of
California, against the Company and two of its former officers.
The suit asserts purported claims under Sections 10(b) and 20(a) of
the Exchange Act for allegedly misleading statements regarding our
business strategy.
Plaintiff alleges that defendants made statements that were
misleading because they allegedly failed to disclose details
regarding its customer acquisition strategy and its impact on its
financial performance.
The suit is purportedly brought on behalf of purchasers of our
securities between May 9, 2018 and November 7, 2019, and seeks
compensatory damages, fees and costs.
Green Dot Corporation and its consolidated subsidiaries is a
financial technology and registered bank holding company providing
a broad set of financial services to consumers and businesses
including debit, checking, credit, prepaid, and payroll cards, as
well as robust money processing services, such as tax refunds,
cash
deposits and disbursements.
GULF COAST POWER: Fails to Pay Overtime Wages, Espinosa Claims
--------------------------------------------------------------
Edelio R. Espinosa, and other similarly situated individuals,
Plaintiff(s) v. Gulf Coast Power And Light Co., Defendant, Case No.
2:23-cv-01044 (M.D. Fla., November 15, 2023) seeks to recover
monetary damages for unpaid overtime wages under the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendant as a non-exempt,
full-time, hourly employee from approximately July 17, 2023 to
October 6, 2023. He performed as an electrician helper and worked
more than 40 hours weekly; however, he never received overtime
compensation, as required by law. In addition, the Plaintiff's
working hours during his first four weeks of employment were
deducted by two and a half hours of lunchtime even though he was
not allowed to take bona fide lunchtime hours, says the suit.
Gulf Coast Power Co. is an electrical contractor specializing in
commercial and residential electrical installations, maintenance,
and repair services. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, PA
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
HAIN CELESTIAL: Court Denies Bid to Reconsider in Anderberg Suit
----------------------------------------------------------------
Judge Ruth Bermudez Montenegro of the U.S. District Court for the
Southern District of California denies the Defendant's motion for
reconsideration in the lawsuit titled HEIDI ANDERBERG, individually
and on behalf of others similarly situated, Plaintiff v. THE HAIN
CELESTIAL GROUP, INC., a Delaware Corporation, Defendant, Case No.
3:21-cv-01794-RBM-SBC (S.D. Cal.).
On March 2, 2022, Defendant The Hain Celestial Group, Inc., filed a
Motion to Dismiss Plaintiff Heidi Anderberg's First Amended Class
Action Complaint ("Motion to Dismiss"). The Plaintiff filed an
opposition to the Defendant's Motion to Dismiss on April 11, 2022,
and the Defendant filed its reply on April 18, 2022. On Jan. 26,
2023, the Court issued its Order Denying Defendant's Motion to
Dismiss Plaintiff's First Amended Class Action Complaint.
On June 30, 2023, the Defendant filed a Motion for Reconsideration.
The Plaintiff filed an opposition to the Motion for Reconsideration
and the Defendant filed a reply.
On Oct. 20, 2021, the Plaintiff filed this class action complaint
against the Defendant. The Plaintiff subsequently filed a First
Amended Class Action Complaint ("FAC") on Feb. 2, 2022. The FAC
asserts the following causes of action: (1) violations of
California's Unfair Competition Law ("UCL"), (2) violations of
California's Consumers Legal Remedies Act ("CLRA"), (3) violations
of California's False Advertising Law ("FAL"), (4) breach of
express warranty, and (5) breach of implied warranty.
In her FAC, the Plaintiff asserts that the Defendant markets and
sells chemical sunscreens with labeling and advertising that leads
consumers to believe that the sunscreens are Reef Friendly, when in
fact the chemical sunscreens contain active ingredients known to
damage coral reefs and the marine life that inhabit them. The FAC
discusses the dangers various chemicals pose to coral reefs and
states chemical sunscreens generally consist of a combination of
different chemical ingredients, primarily oxybenzone, octinoxate,
and avobenzone, but also include other chemicals, such as
octocrylene and homosalate each of which are known to cause harm to
coral reefs and marine life.
Thus, the Plaintiff argues that the Defendant labeling its
sunscreen products as "Reef Friendly" is misleading because the
products contain avobenzone, octocrylene, homosalate and octyl
salicylate.
The FAC includes the Plaintiff's individual allegations, as well as
class allegations. In regard to Plaintiff's individual allegations,
she explains that she has been purchasing Alba Botanica Hawaiian
Sunscreen Coconut Clear Spray 50 and Alba Botanica Hawaiian
Sunscreen Green Tea 45 (cream version) consistently for the past
two years for personal and household use.
The Plaintiff is "eco-conscious" and believed the products to have
clean chemicals and be reef friendly as advertised. Thus, she
alleges she paid an unlawful premium for the product advertised as
reef friendly when it in fact is not safe for coral reefs and
marine life and would not have purchased the products had the
product been truthfully advertised. Accordingly, the Plaintiff
claims she was harmed and suffered injury in fact and lost money as
a result of the Defendant's false, unfair and fraudulent
practices.
In regard to her class allegations, the Plaintiff lists a total of
14 of the Defendant's chemical sunscreens which bear labeling
stating "Reef Friendly," yet contain octocrylene and/or avobenzone.
She, thus, brings a class action on behalf of a nationwide class
and a California subclass of individuals who, within the applicable
limitations period, purchased any of the 14 products from the
Defendant.
On March 2, 2022, Defendant filed its Motion to Dismiss the
Plaintiff's FAC. In its Motion to Dismiss, the Defendant argued
that the term "Reef Friendly" is not deceptive because a
"reasonable consumer" would not be misled by the representation.
In the Court's Order on the Defendant's Motion to Dismiss, the
Court found that it could not conclude as a matter of law that a
reasonable consumer would not be deceived by the term "Reef
Friendly" and decided that this was not the "rare situation"
warranting dismissal of the Plaintiff's UCL, CLRA, and FAL claims.
On June 30, 2023, the Defendant filed the Motion for
Reconsideration at issue here. The Defendant argues that the
Ninth's Circuit's recent decision in McGinity v. Procter & Gamble
Co., 69 F.4th 1093 (9th Cir. 2023) is an intervening change in
controlling law that dictates a different result on its Motion to
Dismiss.
In its Motion for Reconsideration, the Defendant contends that
reconsideration is appropriate under Rule 60(b) when there is an
intervening change in the controlling law. In support of this
position, the Defendant cites two published Ninth Circuit cases, as
well as several unpublished opinions from this District.
The Defendant then argues that the Ninth Circuit's recent decision
in McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023)
is new controlling law warranting reconsideration of the
Defendant's Motion to Dismiss.
The Court finds the Defendant's argument unpersuasive.
The Court does not consider the Ninth Circuit's decision in
McGinity an intervening change in controlling law. Judge Montenegro
explains that McGinity merely reiterates prior Ninth Circuit's
decisions, including its decision in Moore v. Trader Joe's Co., 4
F.4th 874 (9th Cir. 2021) ("Trader Joe's"), decided two years
earlier.
Judge Montenegro opines that it is clear that the Ninth Circuit's
decision in McGinity merely applies its decision in Trader Joe's to
a new set of facts and cannot be considered an "intervening change"
in "controlling law."
The McGinity panel also relies on the Ninth Circuit's prior
decision in Moore v. Mars Petcare US, Inc., 966 F.3d 1007 (9th Cir.
2020) for the proposition that a back label ingredients list "can
ameliorate any tendency of a label to mislead," Judge Montenegro
says. The McGinity case is merely an application of the Ninth
Circuit's prior ruling in Mars Petcare. McGinity's new use of the
word "ambiguous" rather than "misleading" does not create an
"intervening change" in "controlling law," Judge Montenegro points
out.
Even assuming that McGinity constitutes an intervening change in
controlling law, McGinity is easily distinguishable from the
present case, Judge Montenegro holds. Reconsideration of the
Court's Order on the Defendant's Motion to Dismiss is not
warranted.
Based on the foregoing, Judge Montenegro holds that the Defendant's
Motion for Reconsideration is denied in its entirety.
A full-text copy of the Court's Order dated Nov. 6, 2023, is
available at https://tinyurl.com/mrx2m36k from PacerMonitor.com.
HANESBRANDS INC: Continues to Defend Toussaint Class Suit in N.C.
-----------------------------------------------------------------
HanesBrands Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Toussaint class suit in
the United States District Court for the Middle District of North
Carolina.
The Company is named in a putative class action in connection with
its previously disclosed ransomware incident, entitled Toussaint et
al. v. HanesBrands,[sic] Inc.
This lawsuit is pending in the United States District Court for the
Middle District of North Carolina, and follows the consolidation of
two previously pending lawsuits, entitled Roman v. Hanes
Brands,[sic] Inc., and Toussaint v. HanesBrands,[sic] Inc.
The lawsuit alleges, among other things, negligence, negligence per
se, breach of implied contract, invasion of privacy, unjust
enrichment, breach of implied covenant of good faith and fair
dealing and unfair business practices under the California Business
and Professions Code.
The pending lawsuit seeks, among other things, monetary and
injunctive relief.
The Company is vigorously defending the pending matter and believes
the case is without merit.
HANESBRANDS, INC. manufactures apparels and clothing products. The
Company produces underwear, t-shirts, sport shirts, socks, bras,
thermals, sweatshirts, sleepwear, and shoes for men, women, and
children. [BN]
HARPERCOLLINS PUBLISHERS: Continues to Defend Antitrust Class Suit
-------------------------------------------------------------------
HarperCollins disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company continues
to defend itself from antitrust class suit in the U.S. District
Court for the Southern District of New York.
Beginning in February 2021, a number of purported class action
complaints have been filed in the U.S. District Court for the
Southern District of New York (the "N.Y. District Court") against
Amazon.com, Inc. ("Amazon") and certain publishers, including the
Company's subsidiary, HarperCollins Publishers, L.L.C.
("HarperCollins" and together with the other publishers, the
"Publishers"), alleging violations of antitrust and competition
laws.
The complaints seek treble damages, injunctive relief and
attorneys' fees and costs.
In September 2022, the N.Y. District Court granted Amazon and the
Publishers' motions to dismiss the complaints but gave the
plaintiffs leave to amend.
The plaintiffs filed amended complaints in both cases in November
2022, and in January 2023, Amazon and the Publishers filed motions
to dismiss the amended complaints.
In August 2023, the N.Y. District Court dismissed the complaints in
one of the cases with prejudice.
While it is not possible at this time to predict with any degree of
certainty the ultimate outcome of these actions, HarperCollins
believes it has been compliant with applicable laws and intends to
defend itself vigorously.
Harpercollins Publishers LLC provides publishing services. The
Company publishes audio, business, children's, cooking, lifestyle,
mystery, romance, science, self improvement, spirituality,
christian, fiction, and non-fiction books. Harpercollins is based
in New York, New York.
HAZA FOODS LLC: Townsend Files ADA Suit in N.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Haza foods, LLC. The
case is styled as Sarah Townsend, individually and on behalf of all
others similarly situated v. Haza foods, LLC, Haza Foods of
Northeast, LLC, Haza Foods of Minnesota LLC, DOES 1 to 25, Case No.
5:23-cv-01419-DNH-ML (N.D.N.Y., Nov. 15, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
HAZA Foods -- https://hazagroup.com/haza-foods/ -- is a Franchise
of 245 Wendy's restaurants.[BN]
The Plaintiff is represented by:
Benjamin Sweet, Esq.
NYE, STIRLING, HALE, MILLER & SWEET LLP
1145 Bower Hill Road-Suite 104
Pittsburgh, PA 15243
Phone: (412) 857-5350
Email: ben@nshmlaw.com
HEALTH CARE SERVICES: Sanchez Files Suit in N.D. Illinois
---------------------------------------------------------
A class action lawsuit has been filed against Health Care Services
Corporation, et al. The case is styled as Christine Sanchez, both
individually and on behalf of all others similarly situated v.
Health Care Services Corporation, Blue Cross and Blue Shield of
Illinois, Blue Cross and Blue Shield of Texas, Blue Cross and Blue
Shield of New Mexico, Blue Cross and Blue Shield of Oklahoma, Blue
Cross and Blue Shield of Montana, TMG Health, Inc., Health Care
Services Corporation, Blue Cross and Blue Shield of Illinois, Blue
Cross and Blue Shield of Texas, Blue Cross and Blue Shield of New
Mexico Blue Cross and Blue Shield of Oklahoma, Blue Cross and Blue
Shield of Montana, Does 1-10, Case No. 1:23-cv-15857 (N.D. Ill.,
Nov. 10, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
Health Care Service Corporation -- https://www.hcsc.com/ -- is
deploying innovative solutions to reduce burden prior authorization
sometimes brings members and their health care providers.[BN]
The Plaintiff is represented by:
Jeffrey W. Golan, Esq.
BARRACK RODOS & BACINE
3300 Two Commerce Sq.
2001 Market St.
Philadelphia, PA 19103
Phone: (215) 963-0600
Email: jgolan@barrack.com
HEALTH CAREER: Roberson Files Suit in E.D. Pennsylvania
-------------------------------------------------------
A class action lawsuit has been filed against Health Career
Institute LLC. The case is styled as Brittany Roberson, Rebecca
Freeman, Bianca Vias, Tiffany King, Tresha Thompson, individually
and on behalf of others similarly situated v. Health Career
Institute LLC, (dba HCI College LLC and HCI Acquisition LLC),
Florian Education Investors LLC, STEVEN HART, Case No.
2:23-mc-00147 (E.D. Pa., Nov. 10, 2023).
The nature of suit is stated as Miscellaneous.
HCI College -- https://www.hci.edu/ -- is dedicated to providing
education and training to students for careers in various
healthcare and technical fields.[BN]
The Plaintiff is represented by:
David A. Nagdeman, Esq.
LANGER GROGAN & DIVER PC
1717 Arch St., Ste. 4020
Philadelphia, PA 19103
Phone: (215) 320-5660
Fax: (215) 320-5703
Email: dnagdeman@langergrogan.com
HENKEL CORPORATION: Ochoa-Cornman Suit Removed to E.D. Missouri
---------------------------------------------------------------
The case styled as Miquel Ochoa-Cornman, individually and on behalf
of all others similarly situated v. Henkel Corporation, Does 1
through 10, Case No. 23SL-CC04044 was removed from the St. Louis
County Circuit Court, to the U.S. District Court for the Eastern
District of Missouri on Nov. 10, 2023.
The District Court Clerk assigned Case No. 4:23-cv-01439 to the
proceeding.
The nature of suit is stated as Other Fraud.
Henkel -- https://www.henkel.com/ -- operates worldwide with
leading innovations, brands and technologies in two business areas:
Adhesive Technologies and Consumer Brands.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
C. David Goerisch, Esq.
Michael L. Jente, Esq.
LEWIS RICE LLC - St. Louis
600 Washington Avenue, Suite 2500
St. Louis, MO 63101
Phone: (314) 444-7600
Fax: (314) 241-6056
Email: dgoerisch@lewisrice.com
mjente@lewisrice.com
HERC RENTALS: Atkinson Suit Removed to W.D. Washington
------------------------------------------------------
The case captioned as Jacob Atkinson, individually and on behalf of
all others similarly situated v. HERC RENTALS, INC., a foreign
corporation; HERC RENTALS EMPLOYEE SERVICES LLC, a foreign limited
liability company; and DOES 1-20, Case No. 23-2-19533-7 SEA was
removed from the King County Superior Court for the State of
Washington, to the United States District Court for the Western
District of Washington on Nov. 13, 2023, and assigned Case No.
2:23-cv-01739.
On October 10, 2023, Plaintiff Jacob Atkinson caused to be filed a
Class Action Complaint for Damages, Injunctive Relief, and
Declaratory Relief ("Complaint").[BN]
The Defendants are represented by:
Adam T. Pankratz, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
1201 Third Avenue, Suite 5150
Seattle, WA 98101
Phone: (206) 693-7057
Facsimile: (206) 693-7058
Email: adam.pankratz@ogletree.com
- and -
Mathew A. Parker, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
The KeyBank Building
88 East Broad Street, Suite 2025
Columbus, OH 43215
Phone: (614) 494-0420
Facsimile: (614) 633-1455
Email: mathew.parker@ogletree.com
IANTHUS CAPITAL: Bid for Initial OK of Settlement in Finch Pending
------------------------------------------------------------------
Ianthus Capital Holdings Inc. disclosed in its Form 10-Q Report for
the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
bid for preliminary approval of the settlement in the Finch class
suit remains pending in court.
On April 20, 2020, Donald Finch, a shareholder of the Company,
filed a putative class action lawsuit with the SDNY against the
Company (the "Class Action Lawsuit") and is seeking damages for an
unspecified amount against the Company, its former Chief Executive
Officer, its current Chief Financial Officer and others for alleged
false and misleading statements regarding certain proceeds from the
issuance of long-term debt, that were held in escrow to make
interest payments in the event of default on such long-term debt.
On May 5, 2020, Peter Cedeno, another shareholder of the Company,
filed a putative class action against the same defendants alleging
substantially similar causes of action.
On June 16, 2020, four separate motions for consolidation,
appointment as lead plaintiff, and approval of lead counsel were
filed by Jose Antonio Silva, Robert and Sherri Newblatt, Robert
Dankner, and Melvin Fussell.
On July 9, 2020, the SDNY issued an order consolidating the Class
Action Lawsuit and the Hi-Med Complaint referenced above and
appointed Jose Antonio Silva as lead plaintiff ("Lead Plaintiff").
On July 23, 2020, the Lead Plaintiff and defendants filed a
stipulation and proposed scheduling and coordination order to
coordinate the pleadings for the consolidated actions.
On September 4, 2020, the Lead Plaintiff filed a consolidated
amended class action lawsuit against the Company (the "Amended
Complaint").
On November 20, 2020, the Company and its Chief Financial Officer
filed a Motion to Dismiss the Amended Complaint.
On January 8, 2021, the Lead Plaintiff filed an opposition to the
Motion to Dismiss the Amended Complaint.
The Company and its Chief Financial Officer's reply to the
opposition was filed on February 22, 2021.
In a memorandum of opinion dated August 30, 2021, the SDNY granted
the Company's and its Chief Financial Officer's Motion to Dismiss
the Amended Complaint.
The SDNY indicated that the Lead Plaintiff may move for leave to
file a proposed second amended complaint by September 30, 2021.
On October 1, 2021, the Lead Plaintiff filed a motion for leave to
amend the Amended Complaint.
The Lead Plaintiff’s Motion for Leave to File a second Amended
Complaint was included as part of the Stipulation identified above.
On November 3, 2021, the SDNY so-ordered the Stipulation and the
Lead Plaintiff's second Amended Complaint was deemed filed as of
this date.
On December 20, 2021, the Company and its Chief Financial Officer
filed a Motion to Dismiss the Lead Plaintiff's second Amended
Complaint.
The Lead Plaintiff's opposition to the Company’s and its Chief
Financial Officer's Motion to Dismiss was filed on February 3,
2022.
The Company's and its Chief Financial Officer's reply to the Lead
Plaintiff's opposition was filed on March 21, 2022.
On September 28, 2022, the SDNY issued an opinion granting in part
and denying in part the Motion to Dismiss the Lead Plaintiff's
second Amended Complaint.
On October12, 2022, the parties filed the Joint Stipulation and
Proposed Scheduling Order, which the SDNY so ordered on October 19,
2022, ordering that that the Defendants' answers are due on
November 21, 2022; that the parties shall submit a proposed
discovery plan by December 12, 2022; and that discovery in the
Class Action Lawsuit shall be coordinated with discovery in the
Hi-Med action referenced above, to the extent the two actions
involved overlapping issues.
The parties agreed to submit the matter, together with the Hi-Med
action referenced above, to mediation, which took place on January
17, 2023.
On January 31, 2023, the parties advised the SDNY that the
Defendants and Lead Plaintiff reached a settlement in principle and
anticipated filing a motion for preliminary approval of the
settlement by March 9, 2023.
Accordingly, the parties requested that the SDNY suspend all
further deadlines and proceedings in the Class Action Lawsuit
pending submission of the motion for preliminary approval.
On March 7, 2023, the parties advised the SDNY that the parties
required a short extension of the motion for preliminary approval
of the settlement and such motion would be filed by March 21, 2023.
On March 21, 2023, the parties executed a settlement agreement and
filed the motion for preliminary approval of the settlement with
the SDNY, which remains pending.
iAnthus Capital Holdings, Inc. together with its consolidated
subsidiaries, is a vertically-integrated multi-state owner and
operator of licensed cannabis cultivation, processing and
dispensary facilities in the United States. It was incorporated
under the laws of British Columbia, Canada, on November 15, 2013.
IANTHUS CAPITAL: Continues to Defend Blue Sky Class Suit in Ontario
-------------------------------------------------------------------
Ianthus Capital Holdings Inc. disclosed in its Form 10-Q Report for
the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Blue Sky class suit in
the Ontario Superior Court of Justice.
On July 23, 2020, Blue Sky Realty Corporation filed a putative
class action against the Company, the Company's former Chief
Executive Officer, and the Company's Chief Financial Officer in the
Ontario Superior Court of Justice ("OSCJ") in Toronto, Ontario. On
September 27, 2021, the OSCJ granted leave for the plaintiff to
amend its claim ("Amended Claim").
In the Amended Claim, the plaintiff seeks to certify the proposed
class action on behalf of two classes.
"Class A" consists of all persons, other than any executive level
employee of the Company and their immediate families ("Excluded
Persons"), who acquired the Company's common shares in the
secondary market on or after April 12, 2019, and who held some or
all of those securities until after the close of trading on April
5, 2020. "Class B" consists of all persons, other than Excluded
Persons, who acquired the Company's common shares prior to April
12, 2019, and who held some or all of those securities until after
the close of trading on April 5, 2020.
Among other things, the plaintiff alleges statutory and common law
misrepresentation, and seeks an unspecified amount of damages
together with interest and costs.
The plaintiff also alleges common law oppression for releasing
certain statements allegedly containing misrepresentations inducing
Class B members to hold the Company's securities beyond April 5,
2020.
No certification motion has been scheduled.
The Amended Claim also changed the named plaintiff from Blue Sky
Realty Corporation to Timothy Kwong.
The hearing date for the motion for leave to proceed with a
secondary market claim under the Securities Act (Ontario) has been
vacated.
The parties have reached a settlement in principle and are in the
process of finalizing a settlement agreement, which would fully
resolve the Amended Claim.
On August 19, 2021, Arvin Saloum ("Saloum"), a former consultant of
the Company, filed a Demand for Arbitration with the American
Arbitration Association (the "Arbitration Action") against The
Healing Center Wellness Center, Inc. ("THCWC") and iAnthus Arizona,
LLC ("iA AZ"), claiming a breach of a Consulting and Joint Venture
Agreement (the "JV Agreement") for unpaid consulting fees allegedly
owed to Saloum under the JV Agreement.
Saloum is claiming damages between $1.0 million and $10.0 million.
On September 7, 2021, THCWC and iA AZ filed Objections and
Answering Statement to Saloum's Demand for Arbitration.
On November 18, 2021, THCWC and iA AZ filed a Complaint for
Declaratory Judgment ("Declaratory Judgment Complaint") with the
Arizona Superior Court, Maricopa County ("Arizona Superior Court"),
seeking declarations that: (i) the JV Agreement is void, against
public policy and terminable at will; (ii) the JV Agreement is
unenforceable and not binding; and (iii) the JV Agreement only
applies to sales under the Arizona Medical Marijuana Act.
On January 21, 2022, Saloum filed an Answer with Counterclaims in
response to the Declaratory Judgment Complaint.
The Declaratory Judgment Complaint remains pending before the
Arizona Superior Court.
The Arbitration Action is stayed, pending resolution of the
Declaratory Judgment Complaint.
The parties are currently engaging in discovery.
On April 25, 2023, the parties attended a mediation, which was
unsuccessful.
On May 23, 2022, CGX Life Sciences, Inc. ("CGX"), a wholly-owned
subsidiary of the Company, filed a demand for arbitration (the "CGX
Arbitration") with the American Arbitration Association ("AAA")
against LMS Wellness, Benefit LLC ("LMS") and its 100% owner,
William Huber ("Huber" and together with LMS, the "Defendants") for
various breaches under the option agreements entered into between
CGX and LMS, on the one hand, and CGX and Huber on the other
(collectively, the "Option Agreements"). Specifically, CGX is
seeking: (i) an order finding the Defendants in breach of the
Option Agreements and directing specific performance by the
Defendants of their obligations under the Option Agreements to
complete the sale and transfer of LMS to CGX; (ii) an order either
tolling or extending the closing date under the Option Agreements;
(iii) an order requiring Huber to restore LMS' bank account of all
sums withdrawn for the payment of contracts entered into in breach
of the Option Agreements; and (iv) an order prohibiting Huber from
withdrawing any further funds from LMS' bank account.
On June 8, 2022, the Defendants filed an Answering Statement,
denying the allegations raised by CGX and sent a notice to CGX,
purporting to terminate the Option Agreements.
In addition, on June 8, 2022, LMS filed a demand for arbitration
(the "S8 Arbitration") with the AAA against S8 Management, LLC
("S8"), alleging that S8 breached the Amended and Restated
Management Services Agreement (the "MSA") entered into between LMS
and S8 on March 12, 2018.
On June 24, 2022, the Defendants filed Motion to Consolidate the
CGX Arbitration and S8 Arbitration.
On July 5, 2022, CGX filed an opposition to the Defendants’
Motion to Consolidate and a cross-Motion to Stay the S8 Arbitration
to allow the CGX Arbitration to proceed first.
On July 26, 2022, the parties attended a preliminary conference
with the arbitrator, at which conference the arbitrator
preliminarily granted the Defendants' Motion to Consolidate and
denied CGX’s cross-Motion to Stay the S8 Arbitration.
On October 7, 2022, CGX filed a dispositive motion for specific
performance of Defendants' obligations to complete the sale of LMS
to CGX (claims (i) and (ii), above), which Defendants opposed.
On October 31, 2022, the arbitrator granted CGX's dispositive
motion and ordered Defendants to complete the sale of LMS to CGX.
The remaining claims asserted in the CGX Arbitration (claims (iii)
and (iv), above) and the S8 Arbitration remain pending.
On November 30, 2022, Defendants filed a Petition to Vacate
Arbitration Award.
CGX filed its response on January 30, 2023, and subsequently the
Defendants filed a Request for Hearing on February 3, 2023.
Both the Petition to Vacate Arbitration Award and request for a
hearing remain pending before the Circuit Court for Baltimore
County.
CGX continues to prosecute its other two claims concerning
Defendants' use of LMS' funds, and S8 continues to deny and defend
against LMS' contentions that S8 breached the MSA.
On June 20, 2023, LMS filed a complaint in the United States
District Court for the District of Maryland against ICH and three
wholly-owned subsidiaries of ICH, alleging conversion, RICO
violations and unjust enrichment and seeking damages in excess of
$4.5M, plus treble damages (the "Federal Complaint").
The allegations in the Federal Complaint appear substantially
similar to, and appear to arise from substantially the same
operative facts as, those alleged by LMS in the CGX Arbitration,
the S8 Arbitration, and in support of the Defendants' Petition to
Vacate Arbitration Award.
ICH denies LMS's allegations alleging unlawful conduct and intends
to vigorously defend the Federal Complaint in due course.
iAnthus Capital Holdings, Inc. together with its consolidated
subsidiaries, is a vertically-integrated multi-state owner and
operator of licensed cannabis cultivation, processing and
dispensary facilities in the United States. It was incorporated
under the laws of British Columbia, Canada, on November 15, 2013.
IMMUNITYBIO INC: Continues to Defend Salzman Securities Class Suit
------------------------------------------------------------------
Immunitybio Inc. disclosed in its Form 10-Q Report for the
quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Salzman securities
class suit in the U.S. District Court for the Southern District of
California.
On June 30, 2023, a putative securities class action complaint,
captioned Salzman v. ImmunityBio, Inc. et al., No.
3:23-cv-01216-BEN-WVG, was filed in the U.S. District Court for the
Southern District of California against the company and three of
its officers and/or directors, asserting violations of Sections
10(b) and 20(a) of the Exchange Act.
Stemming from the company's disclosure on May 11, 2023 that it had
received an FDA CRL stating, among other things, that it could not
approve the company's BLA for its product candidate, Anktiva in
combination with BCG for the treatment of patients with
BCG-unresponsive NMIBC with CIS with or without Ta or T1 disease,
in its present form due to deficiencies related to its pre-license
inspection of the company's third-party CMOs, the complaint alleges
that the defendants had previously made materially false and
misleading statements and/or omitted material adverse facts
regarding its third-party clinical manufacturing organizations and
the prospects for regulatory approval of the BLA.
The district court appointed a lead plaintiff and approved lead
counsel on September 27, 2023.
Lead plaintiff must file or designate a consolidated complaint by
November 17, 2023.
Defendants must file their anticipated motion to dismiss the
consolidated complaint by January 8, 2024.
The company believes the lawsuit is without merit and intends to
defend the case vigorously.
ImmunityBio, Inc. is a clinical-stage biotechnology company
developing next-generation therapies and vaccines that complement,
harness, and amplify the immune system to defeat cancers and
infectious diseases. We strive to be a vertically-integrated
immunotherapy company designing and manufacturing our products so
they are more effective, accessible, more conveniently stored, and
more easily administered to patients.
INTERNATIONAL BUSINESS: Wedeking Suit Transferred to D. Mass.
-------------------------------------------------------------
The case styled as Jennifer Wedeking, on behalf of herself and all
others similarly situated v. International Business Machines
Corporation, Case No. 7:23-cv-07740 was transferred from the U.S.
District Court for the Southern District of New York, to the U.S.
District Court for the District of Massachusetts on Nov. 15, 2023.
The District Court Clerk assigned Case No. 1:23-cv-12786-ADB to the
proceeding.
The nature of suit is stated as Other Personal Property for
Property Damage.
The International Business Machines Corporation, nicknamed Big Blue
-- http://www.ibm.com/-- is an American multinational technology
corporation headquartered in Armonk, New York.[BN]
The Plaintiff is represented by:
Israel David, Esq.
ISRAEL DAVID LLC
17 State Street, Suite 4010
New York, NY 10004
Phone: (212) 739-0622
Email: israel@israeldavidllc.com
The Defendant is represented by:
Jasmeet Ahuja, Esq.
Hogan Lovells US LLP
1735 Market Street, 23rd Floor
Philadelphia, PA 19103
Phone: (267) 675-4667
Email: jasmeet.ahuja@hoganlovells.com
- and -
Peter William Bautz, Esq.
HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
Phone: (212) 918-3000
Email: peter.bautz@hoganlovells.com
J CREW GROUP: Court Stays Babaeva Class Suit Pending Arbitration
----------------------------------------------------------------
In the lawsuit styled EVGUENIA BABAEVA, Plaintiff v. J. CREW GROUP,
LLC, Defendant, Case No. 4:23-cv-01695-JSW (N.D. Cal.), Judge
Jeffrey S. White of the U.S. District Court for the Northern
District of California issued an order granting the Defendant's
motion to dismiss, compelling arbitration and staying the case.
The remaining Plaintiff, Evguenia Babaeva, alleges that when
shopping online at the Factory outlet, she was misled by the
posting of "Comparable Value" prices on the items she bought. The
Defendant moves to dismiss on the basis that her claims are barred
because she affirmatively agreed to an arbitration clause in the
Defendant's terms of use.
The Defendant alternatively moves to dismiss on the basis that the
Plaintiff fails to state a claim upon which relief can be granted.
The Defendant separately moves to dismiss and strike the class
action claims.
Because the Court finds the claims are subject to arbitration, the
Court denies the separate motion to strike as moot.
The Plaintiff brings this action concerning the Defendant's sale
and marketing of its "J. Crew Factory" branded products. The
Defendant contends that the Plaintiff agreed to arbitrate any
disputes with the Company by agreeing to the Defendant website's
terms of use and then again when agreeing to the terms of
conditions for its reward program.
In the context of online transactions, courts routinely enforce
contracts where (1) a consumer is expressly told that by clicking a
button to complete a purchase or register on a website, they are
agreeing to be bound by a set of terms of usage and (2) the website
contains a link to the terms conspicuously and in proximity to the
button that is clicked.
Here, Judge White notes, at the time of the Plaintiff's online
purchase, the checkout page conspicuously stated, "By placing your
order, you agree to our Terms of Use and Privacy Policy." The
underlined text provided a hyperlink to the full Terms of Use. In
order to place her online order, the Plaintiff had to proceed
through this page and had to proactively agree to the Terms in
order to place the order.
Also, as a member of the Defendant's reward program, the Plaintiff
agreed to bound by the terms of the program. Having received
emails, including one entitled "Important updates to our Terms &
Conditions," Judge White opines that the Plaintiff was bound by the
agreement to arbitrate claims related to her purchases under the
rewards program.
The applicable version of the website Terms' arbitration agreement
broadly covers any dispute that the Plaintiff may have against the
Defendant, including claims stemming from any prior purchases.
Judge White finds that this broad provision encompasses the claims
in this action. Similarly broad provisions are regularly enforced.
Similarly, the reward term's arbitration clause -- which reads "ANY
DISPUTE RELATING IN ANY WAY TO . . . THE PROGRAM" -- is broad
enough to cover the current dispute.
The Court does not find that the notices of the Company's regular
updated terms and conditions nor the repeated advisements sent by
email to its customers renders the arbitration provisions
inconspicuous. Further, the Court does not find (and the Plaintiff
does not contend) that the arbitration provisions in the terms of
use or the rewards program were procedurally or substantively
unconscionable.
Accordingly, the Court enforces the arbitration provision for the
Plaintiff's online purchases.
For these reasons, the Court grants the Defendant's motion to
dismiss. The Court finds that the claims are covered by a written
and enforceable arbitration agreement and stays this action pending
resolution by arbitration.
Judge White directs the parties to file joint status reports every
180 days apprising the Court of the status of the arbitration
proceedings, including when the stay may be lifted.
A full-text copy of the Court's Order dated Nov. 6, 2023, is
available at https://tinyurl.com/2p8rvp67 from PacerMonitor.com.
JBROOKS OF FARMINGTON: Luis Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against JBrooks of Farmington
Hills Inc. The case is styled as Kevin Yan Luis, individually and
on behalf of all others similarly situated v. JBrooks of Farmington
Hills Inc., Case No. 1:23-cv-09985 (S.D.N.Y., Nov. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
JBrooks of Farmington Hills Inc. -- https://jbrooksmenswear.com/ --
is a men's clothing store in Farmington Hills, Michigan.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
JOHNSON & JOHNSON: Chamberlain Files Suit in E.D. Pennsylvania
--------------------------------------------------------------
A class action lawsuit has been filed against Johnson & Johnson
Consumer Inc., et al. The case is styled as Tamula Chamberlain,
individually and on behalf of those similarly situated v. Johnson &
Johnson Consumer Inc., RB Health LLC, Glaxosmithkline Consumer
Healthcare Holdings (US), LLC, Case No. 2:23-cv-04435 (E.D. Pa.,
Nov. 10, 2023).
The nature of suit is stated as Other P.I.
Johnson & Johnson (J&J) -- https://www.jnj.com/ -- is an American
multinational corporation founded in 1886 that develops medical
devices, pharmaceuticals, and consumer packaged goods.[BN]
The Plaintiff is represented by:
Jeffrey W. Golan, Esq.
BARRACK RODOS & BACINE
3300 Two Commerce Sq.
2001 Market St.
Philadelphia, PA 19103
Phone: (215) 963-0600
Email: jgolan@barrack.com
JORDAN & SKALA: Faces Ruf Suit Over Failure to Pay Overtime
-----------------------------------------------------------
BRANDON RUF, individually and on behalf of all others similarly
situated, Plaintiff v. JORDAN & SKALA ENGINEERS INC., Defendant,
Case No. 4:23-cv-04196 (S.D. Tex., Nov. 7, 2023) is a collective
action pursuant to the Fair Labor Standards Act to recover overtime
wages and other applicable penalties from the Defendant.
Plaintiff Ruf worked for J&S as a plumbing designer from
approximately November 2021 through August 2023. He asserts that he
did not receive overtime compensation for all hours worked in
excess of 40 hours per workweek.
J&S is a leading mechanical, electrical, and plumbing engineering
firm with offices located throughout the United States.[BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy, Esq.
Alan Clifton Gordon, Esq.
Carter T. Hastings, Esq.
ANDERSON ALEXANDER, PLLC
101 N. Shoreline Blvd., Suite 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
lauren@a2xlaw.com
cgordon@a2xlaw.com
cgordon@a2xlaw.com
KGC INC: Fails to Comply Tip Regulations, Gabriel & Yeasem Say
--------------------------------------------------------------
MARIA A. GABRIEL and JASON YEASEMIS, on behalf of themselves and
others, Plaintiffs v. KGC Incorporated and Stilianos Avlonitis,
Defendants, Case No. 1:23-cv-01559 (E.D. Va., November 15, 2023)
seeks to recover unpaid tips, minimum wages, liquidated damages,
reasonable attorney's fees and costs and any other appropriate
relief, as provided under Section 216(e)(2) of the Federal Fair
Labor Standards Act of 1938 and the Virginia Wage Payment Act.
The Plaintiffs, at Defendants' direction, began working for
Defendants as a waiter and waitress. Plaintiff Gabriel worked from
September 16, 2021, through March 12, 2022. Plaintiff Yeasemis
worked from the end of January 2022 through May 31, 2022. In their
class action complaint, Plaintiffs Gabriel and Yeasemis allege
that, among other things, the Defendants did not Defendants fully
comply with the FLSA tip credit statutory requirements related to
their hourly compensation. They claim that the Defendants used the
tips left by customers toward the overhead of the restaurant and
not paid to the customarily tipped employees.
KGC Incorporated is a Virginia corporation which operates a
restaurant called Katerina's Greek Cuisine located at 9212 Center
St. Manassas, VA. [BN]
The Plaintiffs are represented by:
Matthew T. Sutter, Esq.,
SUTTER & TERPAK, PLLC
7540A Little River Turnpike
Annandale, VA 22003
Telephone: (703) 256-1800
Facsimile: (703) 991-6116
E-mail: matt@sutterandterpak.com
KROGER CO: Suit Filed in S.D. Ohio
----------------------------------
A class action lawsuit has been filed against The Kroger Co. The
case is styled as Jane Doe, individually and on behalf of all
others similarly situated v. The Kroger Co., Case No.
1:23-cv-00741-MWM (S.D. Ohio, Nov. 10, 2023).
The nature of suit is stated as Other Personal Property for
Property Damage.
The Kroger Company, or simply Kroger --
https://www.thekrogerco.com/ -- is an American retail company that
operates supermarkets and multi-department stores throughout the
United States.[BN]
The Plaintiff is represented by:
Dylan James Gould, Esq.
Spencer Davis Campbell, Esq.
Terence Richard Coates, Esq.
MARKOVITS STOCK & DEMARCO, LLC
119 E. Court Street, Suite 500
Cincinnati, OH 45002
Phone: (513) 651-3700
Email: dgould@msdlegal.com
scampbell@msdlegal.com
tcoates@msdlegal.com
LENSAR INC: Continues to Defend Schaper Class Suit in Delaware
--------------------------------------------------------------
Lensar Inc. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company continues
to defend itself from Schaper class suit in the District of
Delaware.
In addition, on August 14, 2023, stockholders Ryan Schaper and
Christopher P. Bolster filed a Verified Amended Class Action
Complaint against the Company and certain of its officers and
members of the board of directors ("Defendants") in the matter
captioned Schaper v. LENSAR, Inc., et al., Case No.
1:23-cv-00692-GBW (D. Del.).
On August 18, 2023, the parties filed a joint stipulation extending
Defendants' time to respond to the complaint until a lead plaintiff
is appointed and plaintiffs file a second amended complaint or
designate the Verified Amended Class Action Complaint as operative.
The Company vigorously denies that the definitive proxy statement
filed with the SEC on June 20, 2023 was deficient in any respect.
The Company believes the allegations and claims asserted in the
Schaper Action are without merit and that supplemental disclosures
were not required or necessary under applicable laws.
At this time, the Company cannot predict the outcome, or provide a
reasonable estimate or range of estimates of the possible outcome
or loss, if any, in this matter.
Lensar, Inc. -- http://www.lensar.com/-- is involved in next
generation femtosecond laser technology for refractive cataract
surgery. The LENSAR Laser System with Streamline II offers
cataract surgeons automation and customization of essential steps
of the refractive cataract surgery procedure with the highest
levels of precision, accuracy, and efficiency, while optimizing
overall visual outcomes.
LOUISIANA: Court Enters Permanent Injunctive Relief in Lewis Suit
-----------------------------------------------------------------
Chief District Judge Shelly D. Dick of the U.S. District Court for
the Middle District of Louisiana enters a permanent injunctive
relief in the lawsuit titled JOSEPH LEWIS, JR., ET AL. v. BURL
CAIN, ET AL., Case No. 3:15-cv-00318-SDD-RLB (M.D. La.).
In 1989, the United States Department of Justice opened an
investigation into the conditions of confinement at the Louisiana
State Penitentiary ("LSP") at Angola ("Angola"). The Justice
Department found that multiple conditions at Angola deprived
inmates of their constitutional rights, among them the failure to
provide adequate medical and psychiatric care.
In 1992, a class action lawsuit was filed, alleging that the
healthcare system in Angola was so deficient that it violated the
United States Constitution's Eighth Amendment prohibition against
cruel and unusual punishment. The United States Department of
Justice intervened in the lawsuit and joined in the allegations
against Angola.
In 2009, the Louisiana Department of Corrections engaged Wexford, a
third-party consultant, to assess the medical care at Angola and
report its findings to the Department. Wexford found multiple
medical care deficiencies, which Angola disputes. Whether Wexford's
findings were substantiated was not an issue in this case, but LSP
and the Department of Corrections were aware as early as 2009 that
Wexford had identified persistent health care deficiencies at
Angola.
All this to say that the healthcare of inmates at Angola has been
the subject of consternation and criticism since 1989.
In 2015, this Class Action suit was filed. The case alleges
unconstitutional medical care provided at Louisiana State
Penitentiary ("LSP"), as well as violations of the Americans with
Disabilities Act ("ADA") and the Rehabilitation Act ("RA") at the
prison. The Court bifurcated the case into separate liability and
remedial phases. Following a trial on liability, the Court found
that LSP violated the Eighth Amendment and found violations of the
ADA and RA.
After years of discovery, 21 days of trial, and two site visits to
Angola by the Court, Judge Dick holds that the Plaintiffs proved
that, rather than receiving medical "care," the inmates are instead
subjected to cruel and unusual punishment by medical mistreatment.
The human cost of these 26 years is unspeakable, Judge Dick says.
In this Opinion, the Court made detailed and extensive findings
about the callous and wanton disregard for the medical care of
inmates at Angola. The finding is that the "care" is not care at
all but abhorrent cruel and unusual punishment that violates the
United States Constitution.
The record reflects that the parties engaged in settlement
negotiations with the assistance of the Magistrate Judge. When
resolution appeared futile, in March 2021, the Court issued its
124-page Opinion finding constitutional and statutory violations.
The Court set the matter for a remedy trial. The Parties stipulated
and agreed that for the remedy phase of trial, Jan. 1, 2019, begins
the relevant and appropriate time period ("Relevant Period") for
the Court to assess whether the constitutional deficiencies listed
in the Court's March 31, 2021 opinion have since been remedied and
what (if any) injunctive relief is necessary in light of the
findings at trial.
The remedy trial was scheduled for June 2022, permitting LSP 15
months to address and rectify the constitutional and statutory
violations. The Court held a two-week remedy phase trial in this
matter and admitted evidence of current conditions to allow LSP to
demonstrate, through proof, steps taken to address and/or cure
these constitutional and statutory violations. While LSP made some
changes during the pendency of this litigation, LSP steadfastly
defends its healthcare system and denies that it was
constitutionally deficient at any time.
Following the remedy phase trial, the Court permitted the Parties
to submit Post Trial Findings of Fact and Conclusions of Law and a
Reply. Additionally, the Court encouraged the Parties to find
common ground and settle or stipulate on any issues possible, and
the Court provided the Parties significant time to reach an
agreement themselves, which proved fruitless. The Court has
considered the Parties' arguments, the record and trial evidence,
and the applicable law in reaching the conclusion that injunctive
relief is required in this case.
Based on testimony and a review of evidence, the Court finds that
the delivery of clinical care at LSP remains constitutionally
deficient. The Court finds the barriers to sight and sound between
patients and nurses, coupled with admitted staffing shortages and
the resulting improper use of inmate orderlies, demonstrates
unconstitutionally deficient infirmary care.
The Court also finds that the medical leadership and organization
at LSP has not been significantly remedied such that constitutional
deficiencies no longer exist. The lack of leadership, supervision,
and organization is the sin qua non to the unconstitutional care.
Judge Dick opines that the failure to maintain proper credentialing
records at LSP persists and contributes to the overall
constitutionally deficient medical leadership and organization at
LSP. The systemic leadership and management failures perpetuates
the deliberate indifference and callous disregard that permeates
the delivery of medical care at LSP.
The Court finds that numerous architectural barriers remain at LSP
that are not sufficiently ameliorated by orderlies. The Court finds
that the physical barriers to program access necessitate injunctive
relief to bring LSP's facilities into compliance with the ADA and
RA, where legally applicable.
The Court finds no pervasive pattern of orderly abuse and/or
neglect of disabled patients at LSP. The Court concludes that there
is no pervasive problem of orderly abuse of disabled patients at
LSP.
While there is insufficient evidence of orderly abuse/neglect, the
Court finds that there is a serious lack of supervision or
oversight of inmate orderlies by both medical staff and security
personnel. This lack of supervision necessarily contributes to
violations of the ADA and RA at LSP, Judge Dick points out.
Based on the Court's factual findings, Judge Dick holds that LSP's
methods of administration violate continue to violate the ADA and
RA by failing to provide adequate access and accommodations to its
disabled inmates due to neglect and/or failure to follow both Title
II's implementing regulations and some of LSP's own ADA
Directives.
With the exception of exclusionary policies in duty status/work
assignments, the Court finds, among other things, that all of the
ADA violations identified by the Court in the liability ruling
persist at LSP with no indication, except for the purported future
partnership with Accessology, that changes are planned or thought
to be necessary.
The attitudes of those in medical leadership at the DOC and LSP
easily demonstrate that injunctive relief is required in this case,
Judge Dick holds. Accordingly, the Court will enter Permanent
Injunctive relief by separate order.
For these reasons, The Court finds that the Plaintiffs have
established their entitlement to permanent injunctive relief by a
preponderance of the evidence. The Court will enter judgment in
favor of the Plaintiffs and against the Defendants.
A full-text copy of the Court's Opinion dated Nov. 6, 2023, is
available at https://tinyurl.com/3ubrex8t from PacerMonitor.com.
LUCKY ELEPHANT: Luis Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Lucky Elephant
Couture LLC. The case is styled as Kevin Yan Luis, individually and
on behalf of all others similarly situated v. Lucky Elephant
Couture LLC, Case No. 1:23-cv-09982 (S.D.N.Y., Nov. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lucky Elephant offers branded merchandise.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
LUXURBAN HOTELS: Fails to Pay Proper Wages, Hepburn Suit Alleges
----------------------------------------------------------------
CAITLIN HEPBURN, individually and on Behalf of all others similarly
situated, Plaintiff v. LUXURBAN HOTELS, INC., Defendant, Case No.
(S.D. Fla., November 15, 2023) seeks for overtime wages, minimum
wages, and other relief pursuant to the Fair Labor Standards Act
and the Florida Minimum Wage Act.
Defendant LuxUrban has employed Plaintiff Hepburn since May 2022,
and Hepburn has worked as a reservations specialist since August
2022. Allegedly, LuxUrban misclassified Plaintiff and the similarly
situated reservations specialists as independent contractors to
avoid paying employment taxes, benefits, minimum wages, and
overtime.
Headquartered in Miami, FL, LuxUrban owns and operates boutique
hotels in major U.S. cities. [BN]
The Plaintiff is represented by:
Gregg Shavitz, Esq.
Paolo Meireles, Esq.
Tamra Givens, Esq.
SHAVITZ LAW GROUP, P.A.
Yamato Road, Suite 285
Boca Raton, FL 33431
Telephone: (561) 447-8888
E-mail: gshavitz@shavitzlaw.com
pmeireles@shavitzlaw.com
tgivens@shavitzlaw.com
MASTEC INC: Liptock Files Suit in D. South Carolina
---------------------------------------------------
A class action lawsuit has been filed against MasTec Inc. The case
is styled as Joseph Liptock, Individually and on Behalf of All
Others Similarly Situated v. MasTec Inc., Case No.
2:23-cv-05753-MDL (D.S.C., Nov. 10, 2023).
The nature of suit is stated as Other Contract for Contract
Default.
MasTec -- https://www.mastec.com/ -- is one of the nation's top
power plant and renewable energy construction companies,
specializing in building and engineering of natural gas power
plants, alternative fuel power plants, wind farms and solar energy
facilities.[BN]
The Plaintiff is represented by:
Paul J. Doolittle, Esq.
Blake Garrett Abbott, Esq.
POULIN WILLEY ANASTOPOULO LLC
32 Ann Street
Charleston, SC 29403
Phone: (843) 834-4712
Email: pauld@akimlawfirm.com
blake@akimlawfirm.com
MDL 2666: Three Suits Transferred to D. Minn.
---------------------------------------------
In "In re: Bair Hugger Forced Air Warming Devices Products
Liability Litigation,"MDL No. 2666, Judge Karen K. Caldwell,
Chairperson of the U.S. Judicial Panel on Multidistrict Litigation,
transfers two cases from the U.S. District Court for the District
of Montana; and one from the Southern District of Texas to the U.S.
District Court for the District of Minnesota and, with the consent
of that court, assigned to Judge Joan N. Ericksen, for inclusion in
the coordinated or consolidated pretrial proceedings.
The panel found that the actions involve common questions of fact
with the actions transferred to MDL No. 2666, and that transfer
will serve the convenience of the parties and witnesses and promote
the just and efficient conduct of the litigation. Like the actions
in the MDL, the three actions involves allegations that plaintiffs
or their decedents suffered injuries caused by Bair Hugger warming
blankets used during their surgeries with allegations that
plaintiffs developed serious infections during their orthopedic
surgeries due to the introduction of contaminants into their open
wounds as a result of the use of a Bair Hugger Forced Air Warming
System after his surgery.
A full-text copy of the court's October 4, 2023 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2666-Transfer_Order-9-23.pdf
MDL 2873: Grosch's Conditional Transfer Order Vacated
-----------------------------------------------------
In the product liability litigation captioned "In Re: Aqueous
Film-Forming Foams Products Liability Litigation," MDL NO. 2873,
Chairperson Karen K. Caldwell of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order vacating conditional
transfer of "Grosch, et al. v. Tyco Fire Products LP, et al." (C.A.
No. 2:23−01259, D.N.J.) for inclusion in MDL No. 2873.
Plaintiff Grosch moved to vacate the panel's order arguing that
transfer will inconvenience the parties and witnesses to this
action.
On September 15, 2023, the assigned judge in the District of
Arizona granted plaintiffs' motion to remand the action to state
court. Although the court has stayed remand for 30 days (to allow
the removing party an opportunity to seek appellate review),
transfer at this time would only introduce procedural
inefficiencies with respect to this action. Accordingly, we grant
plaintiffs’ motion to vacate the conditional transfer order,
ruled the panel.
A full-text copy of the court's October 4, 2023 order to vacate is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2873-Order_Vacating_CTO-9-23.pdf
MDL 2873: Panel Denies Transfer of Maryland v. 3M Suit to D.S.C.
----------------------------------------------------------------
In the product liability litigation captioned "In Re: Aqueous
Film-Forming Foams Products Liability Litigation," MDL NO. 2873,
Chairperson Karen K. Caldwell of the U.S. Judicial Panel on
Multidistrict Litigation denied the move by defendant 3M Company to
transfer the case captioned "State of Maryland v. 3M Company, et
al. (C.A. No. 1:23−01836, D. Md.) to the District of South
Carolina for inclusion in MDL No. 2873.
MDL No. 2873 involves allegations that aqueous film-forming foams
(AFFFs) used at airports, military bases, or other locations to
extinguish liquid fuel fires caused the release of perfluorooctane
sulfonate (PFOS) and/or perfluorooctanoic acid (PFOA; collectively,
these and other per- or polyfluoroalkyl substances are referred to
as PFAS) into local groundwater and contaminated drinking water
supplies. These defendants allegedly discharged their industrial
wastewater to conventional wastewater treatment plants and dispose
of other waste products in area landfills. PFAS from these waste
products allegedly flows into the downstream waters.
The panel concluded that transfer could disrupt the progress of the
case. Any discovery or other overlap with the MDL can be minimized
through coordination between the parties and the involved courts.
The panel further clarified that discovery and pleading practice
could demonstrate that an ostensibly non-AFFF action is, in fact,
more properly treated as an AFFF case for which transfer to MDL No.
2873 is warranted.
A full-text copy of the court's October 4, 2023 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2873-Order_Denying_Transfer-9-23.pdf
MDL 2924: Love v. GSK Consolidated in Zantac Liability Row
----------------------------------------------------------
In IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, MDL
No. 2924, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial
Panel on Multidistrict Litigation, transfers the case captioned as
Love v. Glaxosmithkline Pharmaceutical Company, et al.," C.A. No.
1:23−00557 (W.D. Mich.) to the U.S. District Court for the
Southern District of Florida and, with the consent of that court,
assigned to Judge Robin L. Rosenberg for coordinated or
consolidated pretrial proceedings.
Plaintiff moved to vacate the panel's order that conditionally
transferred its action to the Southern District of Florida for
inclusion in MDL No. 2924. Defendant GlaxoSmithKline LLC opposed
the motion to vacate. Plaintiff argued that transfer would cause
him hardship, as he cannot file pleadings electronically and his
mail is subject to delays due to his incarceration. But the panel
held that transfer of a particular action often is necessary to
further the expeditious resolution of the litigation taken as a
whole and looks to the overall convenience of the parties and
witnesses, not just those of a single plaintiff or defendant in
isolation. Furthermore, there usually is no need for parties or
witnesses to travel to the transferee court for depositions or
court hearings.
According to the panel, the action involves common questions of
fact with the actions transferred to MDL No. 2924, sharing factual
questions arising from allegations that ranitidine, the active
molecule in Zantac and similar heartburn medications, can form the
carcinogen N-Nitrosodimethylamine (NDMA), either during storage or
when metabolized in the human body. Like the actions in the MDL,
Love alleges that he developed cancer caused by his ingestion of
Zantac.
A full-text copy of the court's October 4, 2023 Transfer Order is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2924-Transfer_Order-9-23.pdf
MDL 2924: Panel Denies Gallagher's Bid to Remand Case to S.D.N.Y.
-----------------------------------------------------------------
In IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, MDL
No. 2924, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial
Panel on Multidistrict Litigation denied the move by plaintiff
Anthony Gallagher to remand his action docketed as "Gallagher v.
Boehringer Ingelheim Pharmaceuticals, Inc., et al.," C.A. No.
3:23−23053 (S.D. Fla.) to the U.S. District Court for the
Southern District of New York.
Gallagher involves common questions of fact with the actions
transferred to MDL No. 2924; allegations that ranitidine, the
active molecule in "Zantac" and similar heartburn medications, can
form the carcinogen N-Nitrosodimethylamine (NDMA), either during
storage or when metabolized in the human body. The case was
previously transferred from the Southern District of New York to
MDL No. 2924 in the Southern District of Florida.
After considering plaintiff's arguments, the panel concluded that
remand is not appropriate at this time and deny plaintiff's motion.
"In considering the question of Section 1407 remand, we accord
great weight to the transferee judge's determination that remand of
a particular action at a particular time is appropriate because the
transferee judge supervises the day-to-day pretrial proceedings in
the MDL," it ruled.
Here, the transferee judge has not issued a suggestion of remand.
Without a suggestion of remand, a party advocating remand "bears a
strong burden of persuasion" and the plaintiff has not met that
burden here since his sole argument in support of remand is that he
is a prisoner and lacks internet access to review pretrial orders
and rulings necessary to prosecute his claims, the panel concluded.
A full-text copy of the court's October 4, 2023 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2924-Order_Denying_Remand-9-23.pdf
MDL 3017: Bayer v. Auson Consolidated in Xarelto Patent Litigation
------------------------------------------------------------------
In IN RE: XARELTO (RIVAROXABAN) ('310) PATENT LITIGATION, MDL No.
3017, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial
Panel on Multidistrict Litigation transfers the case captioned as
Bayer Intellectual Property GmbH, et al. v. Auson Pharmaceuticals,
Inc., et al., C.A. No. 2:23−03020 (D.N.J.) to the U.S. District
Court for the District of Delaware and, with the consent of that
court, assigned it to Judge Richard G. Andrews for coordinated or
consolidated pretrial proceedings.
Defendants Auson Pharmaceuticals Inc. and Shanghai Auson
Pharmaceuticals Co., Ltd. moved to vacate the panel's order
conditionally consolidating the case. Plaintiffs Bayer Pharma AG,
Bayer AG, Bayer Intellectual Property GmbH, and Janssen
Pharmaceuticals, Inc., opposed the motion and support the
transfer.
The actions in MDL No. 3017 involve common factual questions
concerning alleged infringement of U.S. Patent No. 10,828,310,
entitled "Reducing the Risk of Cardiovascular Events" (the '310
patent), as a result of various pharmaceutical company applications
to the FDA to manufacture and sell a drug product that allegedly is
a generic version of Xarelto - specifically, 2.5 mg rivaroxaban
tablets. Like the actions in the MDL, the Auson action involves
alleged infringement of the '310 patent in connection with a
company's application to manufacture and sell 2.5 mg rivaroxaban
tablets and thus is appropriate for transfer.
In opposition to transfer, defendants principally argued that Auson
lacks common factual questions because plaintiffs' claims
concerning said patent, in their view, likely will be dismissed,
there is an additional patent at issue in Auson that is not shared
with the other MDL actions and transfer would not be efficient
considering the advanced posture of the MDL and the recent inter
partes review by the Patent Trial and Appeal Board (PTAB), which
held all claims in the '310 patent invalid.
The panel ruled that since the Auson complaint on its face asserts
that its New Drug Application infringes said patent, its assertion
of no shared factual issues is premised on the success of its
anticipated motion to dismiss, which Auson states will argue that
all patented uses of said patent were specifically carved out of
its NDA, and hence there can be no infringement. But the panel has
long held that pending motions to dismiss does not usually weigh
against transfer.
Also, the involvement of an additional non-overlapping patent is no
obstacle to transfer. The shared factual questions presented by a
single overlapping patent may warrant transfer even where
additional case-specific patents are asserted, added the panel.
A full-text copy of the court's October 4, 2023 Transfer Order is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3017-Transfer_Order-9-23.pdf
MDL 3074: Irvin Suit Consolidated in Cabela's Wiretapping Row
-------------------------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, transfers the case captioned "Irvin V.
Cabela's LLC, et al.," C.A. No. 1:23-00530 (M.D. Pa.), to U.S.
District Court for the Eastern District of Pennsylvania and, with
the consent of that court, assigned to Judge Mark A. Kearney for
coordinated or consolidated pretrial proceedings in "In re: BPS
Direct, LLC and Cabela's, LLC, Wiretapping Litigation," MDL No.
3074.
BPS Direct and Cabela's, which are co-owned by Bass Pro, LLC, are
retailers that sell hunting, fishing, camping, and other outdoor
recreation merchandise, both in brick-and-mortar stores and online.
Irvin alleges that defendants improperly record website visitors'
activities and information through code embedded in their websites
and that such recording constitutes illegal wiretapping. Plaintiff
assert claims for violation of state wiretap statutes, the Federal
Wiretap Act, or both, as well as various claims under state
consumer protection or data privacy statutes and common-law claims
for invasion of privacy, intrusion upon seclusion, or unjust
enrichment.
"We find that this action involves common questions of fact with
the actions previously transferred to MDL No. 3074, and that
transfer under 28 U.S.C. Section 1407 will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of the litigation," rules the panel.
The actions will share questions of fact as to whether and how
defendants record the activities and data of website users, whether
that information is shared with the vendors that supplied the code,
the purposes for which the information is used and by whom, how
defendants' privacy policies are displayed, and where the alleged
recording or interception occurs. The cases are likely to involve
duplicative discovery and overlapping pretrial motions regarding
standing, class certification and the interpretation of the wiretap
statutes, the panel says.
Both parties oppose centralization, arguing that Irvin's case
differs from the MDL litigation in two ways. First, they assert
that the cases centralized involve the use of Microsoft Clarity,
whereas Irvin involves Meta's Pixel code. Although plaintiffs in
most of the cases originally centralized alleged that defendants
use Clarity, all alleged that defendants use multiple different
session replay codes, and one specifically alleged that defendants
use Quantum Metric code in addition to Clarity. Similarly, the
consolidated class action complaint filed in the MDL on August 14,
2023, alleges that defendants' websites are embedded with a variety
of session replay codes provided by multiple different third-party
vendors. Thus, while the claims in the MDL all arise from
defendants' use of session replay code, the MDL will involve
discovery as to multiple versions of that code, multiple
third-party providers of the code, and the extent to which
defendants have provided adequate notice that they are employing
these various codes. Moreover, plaintiff alleges that Pixel code
captures and transmits largely the same types of information as
session replay code, including visitors' identities and
interactions with the websites and all information entered there.
A full-text copy of the court's October 4, 2023 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3074-Transfer_Order-9-23.pdf
MDL 3083: 10 Suits Consolidated in MoveIt Data Breach Litigation
----------------------------------------------------------------
In the multi-district litigation captioned "In re: MoveIt Customer
Data Security Breach Litigation," MDL No. 3083, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation, transfers 5 cases from the U.S. District Court for the
District of Massachusetts; 2 from the Eastern District of
Louisiana; and one each from the Central District of California,
the Northern District of California, and the District of Minnesota,
all to the U.S. District Court for the District of Massachusetts
and, with the consent of that court, assigned to Judge Allison D.
Burroughs for coordinated or consolidated pretrial proceedings.
All actions can be expected to share factual questions arising from
allegations that a vulnerability in Progress Software Company's
"MOVEit Transfer" and "MOVEit Cloud" file transfer services was
exploited by a Russian cybergang in May 2023, which to date is
estimated to have compromised the personally identifying
information (PII) of over 55 million people. On May 31, 2023,
Progress posted a notice on its website stating it had discovered
an SQL injection vulnerability in its MOVEit file transfer services
and a related breach in its network and systems. Plaintiffs are
individuals whose PII was potentially compromised who bring largely
overlapping putative nationwide or statewide class actions on
behalf of persons impacted by the exploitation of the MOVEit
software vulnerability.
Moreover, these actions can be expected to share common and complex
factual questions as to how the MOVEit vulnerability occurred, the
circumstances of the unauthorized access and data exfiltration, and
Progress's response to it, as well as the response of various
downstream MOVEit users and customer-facing defendants with whom
plaintiffs did business.
Centralization offers substantial opportunities to streamline
pretrial proceedings; reduce duplicative discovery and conflicting
pretrial obligations; prevent inconsistent rulings on summary
judgment motions; and conserve the resources of the parties, their
counsel and the judiciary, rules the panel.
"We are persuaded that the District of Massachusetts is the
appropriate transferee district for these cases. More cases are
pending in this district than in any other district, and the owner
of the MOVEit file transfer software, Progress Software Corp., is
headquartered in Burlington, Massachusetts. Relevant employees
likely are based in this district, where potentially relevant
databases, documents, witnesses, and other evidence also may be
found," it adds.
A full-text copy of the court's October 4, 2023 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3083-Transfer_Order-9-23.pdf
MDL 3085: 22 Suits Consolidated in Uber Sexual Assault Row
----------------------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation transfers 22 cases consisting of 9 cases
from the U.S. District Court for the Northern District of
California; 3 from the Northern District of Illinois; 2 from the
District of Colorado; and one each from the District of
Massachusetts, Western District of Missouri, Eastern District of
North Carolina, Northern District of Texas, Southern District of
Texas, District of Arizona, Middle District of Georgia and the
Northern District of Georgia, all to the U.S. District Court for
the Northern District of California and, with the consent of that
court, assigned to Judge Charles R. Breyer for coordinated or
consolidated pretrial proceedings in In re: Uber Technologies,
Inc., Passenger Sexual Assault Litigation," MDL No. 3085.
These actions purportedly involve common questions of fact arising
from allegations that Uber failed to implement appropriate safety
precautions to protect passengers, and that the plaintiffs suffered
sexual assault or harassment as a result. Common factual questions
include Uber's knowledge about the prevalence of sexual assault by
Uber drivers, and whether Uber failed to conduct adequate
background checks of its drivers, train drivers regarding sexual
assault and harassment, implement adequate safety measures to
protect passengers from sexual assault, and adequately respond to
complaints about drivers.
The panel contends that centralization will eliminate duplicative
discovery, prevent inconsistent pretrial rulings, conserve the
resources of the parties, their counsel.
A full-text copy of the court's October 4, 2023 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3084-Transfer_Order-9-23.pdf
MDL 3085: Panel Denies Centralization of Moody's Suits to M.D. Pa.
------------------------------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation denied a motion to centralize cases "Moody
v. Harry, et al.," C.A. No. 2:23−00770 (E.D. Pa.) and "Moody v.
Wetzel, et al.," C.A. No. 3:18−00053 (M.D. Pa.) to the U.S.
District Court for the Middle District of Pennsylvania, in the
multi-district litigation captioned "In re: Pennsylvania Department
of Corrections Inmate Confinement Litigation," MDL No. 3085.
Common plaintiff Brandon Moody, who is proceeding pro se, opposed
centralization.
The panel concluded that centralization is not necessary for the
convenience of the parties and witnesses or to further the just and
efficient conduct of this litigation. Where a minimal number of
actions are involved, the moving party generally bears a heavier
burden of demonstrating the need for centralization. Movants have
not met that burden here, notes the panel. While the two actions
appear to present substantial factual overlap as to plaintiff's
alleged disabilities and the conditions of his confinement at
various Pennsylvania correctional facilities, the factual issues
seem straightforward and discovery is not likely to be particularly
time-consuming or complex; indeed, much of the necessary discovery
already has been completed in the earlier-filed M.D. Pennsylvania
action.
A full-text copy of the Court's October 4, 2023 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3085-Order_Denying_Transfer-9-23.pdf
ME&I CONSTRUCTION: Expert Reports Filing Extended to Dec. 19
------------------------------------------------------------
In the class action lawsuit captioned as STOCK v. ME&I CONSTRUCTION
SERVICES USA, INC., Case No. 2:23-cv-00064 (W.D. Pa., Filed Jan.
13, 2023), the Hon. Judge Mark R. Hornak entered an order extending
the deadlines initially set in the Initial Case Management Order as
follows:
-- The Defendants' expert reports as to Dec. 19, 2023
class certification shall be filed by:
-- Depositions of class certification Jan. 17, 2024
experts must be completed by:
The nature of suit states civil rights -- employment.
ME&I is a full-service maintenance and construction services
company headquartered in Houston, Texas.[CC]
MEDICAL PROPERTIES: Continues to Defend Securities Suit in Alabama
------------------------------------------------------------------
Medical Properties Trust Inc. disclosed in its Form 10-Q Report for
the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the federal securities
class suit in the United States District Court for the Northern
District of Alabama.
On April 13, 2023, the Company and certain of its executives were
named as defendants in a second putative federal securities class
action lawsuit, also alleging false and/or misleading statements
and/or omissions resulted in artificially inflated prices for its
common stock, filed by a purported stockholder in the United States
District Court for the Northern District of Alabama, Case No.
2:23-cv-00486.
The complaint seeks class certification on behalf of purchasers of
its common stock between July 15, 2019 and February 22, 2023 and
unspecified damages including interest and an award of reasonable
costs and expenses.
This class action complaint was amended on September 22, 2023 and
alleges that it made material misstatements or omissions relating
to the financial health of certain of its tenants.
The Company believes these claims are without merit and intends to
defend the remaining open cases vigorously.
Medical Properties Trust, Inc. engages in the business of
investing
in, owning, and leasing healthcare real estate through its
operating partnership subsidiary, MPT Operating Partnership, L.P.
MEDICAL PROPERTIES: Continues to Defend Securities Suit in NY
-------------------------------------------------------------
Medical Properties Trust Inc. disclosed in its Form 10-Q Report
for the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the federal securities
class suit in the United States District Court for the Southern
District of New York.
On September 29, 2023, we and certain of our executives were named
as defendants in a putative federal securities class action lawsuit
filed by a purported stockholder in the United States District
Court for the Southern District of New York, Case No.
1:23-cv-08597.
The complaint seeks class certification on behalf of purchasers of
our common stock between May 23, 2023 and August 17, 2023 and
alleges false and/or misleading statements and/or omissions.
The Company believes these claims are without merit and intends to
defend the remaining open cases vigorously.
The Company believes these claims are without merit and intends to
defend the remaining open cases vigorously.
Medical Properties Trust, Inc. engages in the business of
investing
in, owning, and leasing healthcare real estate through its
operating partnership subsidiary, MPT Operating Partnership, L.P.
MERRILL GARDENS: Escobedo Suit Removed to N.D. California
---------------------------------------------------------
The case captioned as Elias Escobedo, individually, and on behalf
of other members of the general public similarly situated v.
MERRILL GARDENS L.L.C., a Washington limited liability company; and
DOES 1 through 100, inclusive, Case No. C23-02414 was removed from
the Superior Court of the Superior Court of the State of California
for the County of Contra Costa, to the United States District Court
for the Northern District of California on Nov. 13, 2023, and
assigned Case No. 3:23-cv-05834-LB.
The Plaintiff's Complaint asserts the following nine causes of
action: Failure to Pay Overtime Wages; Failure to Provide Meal
Period ; Failure to Provide Rest Periods; Failure to Pay Minimum
Wages; Final Wages Not Timely Paid; Failure to Timely Pay Wages;
Failure to Provide Compliant Wage Statements; Failure to Keep
Payroll Records; Failure to Reimburse Business Expenses, and Unfair
Competition.[BN]
The Defendants are represented by:
Diane Marie O'Malley, Esq.
Samantha A Botros, 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
sbotros@hansonbridgett.com
MIDLAND CREDIT: Burr Files FDCPA Suit in S.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Midland Credit
Management, Inc. The case is styled as Daniel Burr, individually
and on behalf of all others similarly situated v. Midland Credit
Management, Inc., Case No. 3:23-cv-02081-DMS-AHG (S.D. Cal., Nov.
10, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Midland Credit Management, Inc. -- https://www.midlandcredit.com/
-- is a third-party debt collector with headquarters in San
Diego.[BN]
The Plaintiff is represented by:
Jonathan Aaron Stieglitz, Esq.
LAW OFFICES OF JONATHAN STIEGLITZ
11845 W. Olympic Blvd., Suite 800
Los Angeles, CA 90064
Phone: (323) 979-2063
Fax: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
MIDLAND FINANCIAL: Strucke Suit Transferred to D. Massachusetts
---------------------------------------------------------------
The case styled as Darryl Strucke, individually and on behalf of
all others similarly situated v. Midland Financial Co., Ipswitch
Inc., Progress Software Corporation, Case No. 5:23-cv-00782 was
transferred from the U.S. District Court for the Western District
of Oklahoma, to the U.S. District Court for the District of
Massachusetts on Nov. 15, 2023.
The District Court Clerk assigned Case No. 1:23-cv-12771-ADB to the
proceeding.
The nature of suit is stated as Other Personal Property for
Property Damage.
Midland Financial -- https://www.midlandfinancial.net/ -- is a
full-service independent financial planning and investment
management company based in Rogers, Arkansas.[BN]
The Plaintiffs are represented by:
Tyler J. Bean, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Ave.
Oklahoma City
Phone: (405) 235-1560
The Defendant is represented by:
Anthony J. Hendricks, Esq.
Timila S. Rother, Esq.
William H. Hoch, III, Esq.
CROWE & DUNLEVY-OKC
Braniff Building
324 N Robinson Ave., Suite 100
Oklahoma City, OK 73102
Phone: (405) 239-5411
Fax: (405) 272-5932
Email: Anthony.Hendricks@crowedunlevy.com
timila.rother@crowedunlevy.com
will.hoch@crowedunlevy.com
- and -
Amy Sherry Fischer, Esq.
Larry D Ottaway, Esq.
FOLIART HUFF OTTAWAY & BOTTOM
201 Robert S. Kerr Ave., 12th Fl.
Oklahoma City, OK 73102
Phone: (405) 232-4633
Fax: (405) 232-3462
Email: amyfischer@oklahomacounsel.com
larryottaway@oklahomacounsel.com
MODIVCARE INC: To Settle Misclassification Suit in Missouri Court
-----------------------------------------------------------------
ModivCare Inc. disclosed in its Form 10-Q report for the quarterly
period ended September 30, 2023, filed with the Securities and
Exchange Commission on November 3, 2023, that as of September 30,
2023, the parties in a putative class action lawsuit filed against
the company's subsidiary, ModivCare Solutions, LLC by Mohamed
Farah, the owner of transportation provider Dalmar Transportation,
in the Western District of Missouri have agreed on a settlement and
are awaiting the arbitrator's approval.
Case, filed on August 6, 2020, sought to represent all non-employee
transportation providers contracted with ModivCare Solutions.
The lawsuit alleges claims under the Fair Labor Standards Act of
1938, as amended, and the Missouri Minimum Wage Act, and asserts
that all transportation providers to ModivCare Solutions in the
putative class should be considered ModivCare Solutions' employees
rather than independent contractors. On June 6, 2021, the court
conditionally certified as the putative class all current and
former In Network Transportation Providers who, individually or
through their companies, were issued 1099 payments from ModivCare
Solutions for providing non-emergency medical transportation
services for ModivCare Solutions for the previous three years.
Notice of the proposed collective class was issued on October 5,
2021, and potential members of the class had until January 3, 2022
to opt-in. Plaintiff moved for class certification on August 15,
2022, and ModivCare Solutions filed an opposition to class
certification on September 6, 2022.
On January 13, 2023, the matter was transferred with the consent of
the parties and the court to binding arbitration.
ModivCare Inc. is a technology-enabled healthcare services company
that provides a suite of integrated supportive care solutions for
public and private payors and their members.
MPOWER ENERGY: Silva Sues Over Deceptive Retail Energy Pricing
--------------------------------------------------------------
MAGDA SILVA and KIRK BURKEHAMILTON, on behalf of themselves and all
others similarly situated, Plaintiffs v. MPOWER ENERGY, LLC and
MPOWER ENERGY NJ LLC, Defendants, Case No. 1:23-cv-09849-JGLC
(S.D.N.Y., Nov. 7, 2023) is a class action against the Defendants
for breach of contract, unjust enrichment and violation of the New
York General Business Law and materially identical consumer
protection statutes of New York, New Jersey, Pennsylvania, Ohio,
Maryland, Washington, D.C., and Illinois.
This action seeks to redress Mpower's deceptive and bad faith
pricing practices that have caused tens of thousands of customers,
including Plaintiffs, across the United States to pay considerably
more for their electricity and natural gas than they should
otherwise have paid. According to the complaint, Mpower's
representations about its variable rate are false and deceptive,
and designed to take advantage of customers' good faith and lack of
knowledge about, and access to, accurate wholesale and retail
energy pricing and cost information. In reality, Mpower did not
provide its customers with prices based upon market pricing and the
factors and costs included in its contract, but rather used a
pricing methodology that focused on maximizing profits, says the
suit.
Mpower Energy LLC is an independent energy service company that
sells electricity and natural gas in deregulated energy markets
across the United States.[BN]
The Plaintiffs are represented by:
J. Burkett McInturff, Esq.
Jessica L. Hunter, Esq.
Nathan A. Rice, Esq.
WITTELS MCINTURFF PALIKOVIC
305 Broadway, 7th Floor
New York, NY 10007
Telephone: (914) 775-8862
E-mail: jbm@wittelslaw.com
jlh@wittelslaw.com
nar@wittelslaw.com
- and -
D. Greg Blankinship, Esq.
FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP
One North Broadway, Suite 900
White Plains, NY 10601
Telephone: (914) 298-3281
E-mail: gblankinship@fbfglaw.com
- and -
Andrey Belenky, Esq.
KHEYFITS BELENKY LLP
80 Broad Street, 5th Floor
New York, NY 10004
Telephone: (212) 203-5399
E-mail: abelenky@kblit.com
NATIONAL ACCOUNT: MacGillivray Files Suit in D. South Carolina
--------------------------------------------------------------
A class action lawsuit has been filed against National Account
Service Company, LLC. The case is styled as Lisa MacGillivray,
Daniel MacGillivray, individually and on behalf of all others
similarly situated v. National Account Service Company, LLC, Blue
Cross and Blue Shield of Massachusetts, Inc., Progress Software
Corporation, Case No. 1:23-cv-12720 (D.S.C., Nov. 10, 2023).
The nature of suit is stated as Other Contract for Contract
Default.
National Account Service Co. LLC -- http://www.nasco.com/--
provides information technology products and services.[BN]
The Plaintiff is represented by:
David Pastor, Esq.
PASTOR LAW OFFICE, LLP
63 Atlantic Avenue, 3rd Floor
Boston, MA 02110
Phone: (617) 742-9700
Fax: (617) 742-9701
Email: dpastor@pastorlawoffice.com
NCAA: Plaintiffs Must Submit Expert Report by August 2, 2024
-------------------------------------------------------------
In the class action lawsuit captioned as JOSEPH COLON, et al., v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (NCAA), Case No.
1:23-cv-00425-WBS-KJN (E.D. Cal.), the Hon. Judge Kendall J. Newman
entered an order that:
1. The parties' agreed upon procedures for discovery is
adopted.
2. The Defendant's request to limit the topics of a Rule
30(b)(6)
deposition is denied.
3. No limits on the number of depositions allowed plaintiffs are
ordered aside from those outlined in Fed. R. Civ. P. 30.
4. The Plaintiff's timeline for the deadline to submit expert
reports related to their class certification motion is
adopted.
The Plaintiffs shall submit their expert report alongside their
class certification motion, currently due by August 2, 2024. The
Defendant's rebuttal expert report is due alongside its opposition
to the class certification motion.
The Plaintiff's motion to compel is denied in full. The Defendant
shall produce the information in its possession. Plaintiffs may
subpoena the member schools for additional information as needed,
and the parties are counseled to continue working toward a just,
speedy, and inexpensive resolution to these cases.
National Collegiate is a nonprofit organization that regulates
student athletics among about 1100 schools in the United States,
and Canada.
A copy of the Court's order dated Nov. 9, 2023 is available from
PacerMonitor.com at https://bit.ly/49CCEZl at no extra
charge.[CC]
NCAA: Smart et al., Must Submit Expert Report by August 2, 2024
----------------------------------------------------------------
In the class action lawsuit captioned as TAYLOR SMART, et al., v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Case No.
2:22-cv-02125-WBS-KJN (E.D. Cal.), the Hon. Judge Kendall J. Newman
entered an order that:
1. The parties' agreed upon procedures for discovery is
adopted.
2. The Defendant's request to limit the topics of a Rule
30(b)(6)
deposition is denied.
3. No limits on the number of depositions allowed plaintiffs are
ordered aside from those outlined in Fed. R. Civ. P. 30.
4. The Plaintiff's timeline for the deadline to submit expert
reports related to their class certification motion is
adopted.
The Plaintiffs shall submit their expert report alongside their
class certification motion, currently due by August 2, 2024. The
Defendant's rebuttal expert report is due alongside its opposition
to the class certification motion.
The Plaintiff's motion to compel is denied in full. The Defendant
shall produce the information in its possession. Plaintiffs may
subpoena the member schools for additional information as needed,
and the parties are counseled to continue working toward a just,
speedy, and inexpensive resolution to these cases.
National Collegiate is a nonprofit organization that regulates
student athletics among about 1100 schools in the United States,
and Canada.
A copy of the Court's order dated Nov. 9, 2023 is available from
PacerMonitor.com at https://bit.ly/47hp0sS at no extra charge.[CC]
NEW ENGLAND HEALTH: Beckwith Sues Over Telemarketing Calls
----------------------------------------------------------
KRISTY BECKWITH, individually and on behalf of a class of all
persons and entities similarly situated, Plaintiff v. NEW ENGLAND
HEALTH GROUP, INC., Defendant, Case No. 1:23-cv-12689-DJC (D.
Mass., Nov. 8, 2023) arises from the Defendant's alleged violation
of the Telephone Consumer Protection Act.
According to the complaint, the Defendant made telemarketing calls
to residential numbers listed on the National Do Not Call Registry,
like Plaintiff Beckwith's telephone number, which is prohibited by
the TCPA. The Plaintiff never consented to receive the calls, which
were placed to her for telemarketing purposes. Because
telemarketing campaigns generally place calls to hundreds of
thousands or even millions of potential customers en masse,
Plaintiff brings this action on behalf of a proposed nationwide
class of other persons who received illegal telemarketing calls
from or on behalf of Defendant.
New England Health Group is a home renovation and remodel
company.[BN]
The Plaintiff is represented by:
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Telephone: (617) 485-0018
E-mail: anthony@paronichlaw.com
NEW YORK HEALTH: Court OK's Withdrawing Bid to Certify Class
------------------------------------------------------------
In the class action lawsuit captioned as Franck v. New York Health
Care Inc., Case No. 1:21-cv-04955 (S.D.N.Y., Filed June 4, 2021),
the Hon. Judge Gregory H. Woods entered an order withdrawing motion
to certify class.
The suit alleges violation of the Fair Labor Standards Act.
New York Health Care provides home care services to the Greater New
York area since 1983.[CC]
NISSAN OF NORTH AMERICA: Bid to Dismiss Simpson Suit OK'd in Part
-----------------------------------------------------------------
Judge Aleta A. Trauger of the U.S. District Court for the Middle
District of Tennessee, Nashville Division, grants in part and
denies in part the Defendant's motion to dismiss the lawsuit
captioned ARIEL SIMPSON, DOMINIQUE BROGDEN, TARA MARTINS, GREGORY
SWANN, DANIELLE ROMANOFF, PERRY ROYSTER, and NINA FEZZA,
individually and on behalf of all others similarly situated,
Plaintiffs v. NISSAN OF NORTH AMERICA, INC., and NISSAN MOTOR CO.,
LTD., Defendants, Case No. 3:22-cv-00747 (M.D. Tenn.).
Defendant Nissan North America, Inc. ("Nissan" or "NNA") has filed
a Motion to Dismiss, to which the Plaintiffs have filed a Response,
and Nissan has filed a Reply.
On Sept. 23, 2022, the Plaintiffs filed a putative Class Action
Complaint against Nissan and Nissan Motor Co., Ltd. pursuant to the
laws of several states and the Magnuson-Moss Warranty Act ("MMWA").
On Jan. 31, 2023, Nissan filed a Motion to Compel Arbitration and
Stay Litigation directed at the claims of two of the Plaintiffs:
Dominique Brogden, who has asserted claims under Virginia law, and
Perry Royster, who has asserted claims under North Carolina law.
While that motion was pending, Nissan filed a Motion to Dismiss
directed at all of the pending claims except two warranty-based
claims brought by Tara Martins.
On Aug. 9, 2023, the Court granted the Motion to Compel
Arbitration, with the caveat that the Court was not making any
ruling that the claims at issue were, themselves, subject to
compulsory arbitration. Rather, the Court held that Nissan was
entitled to have an arbitrator make the initial determination of
the arbitrability of Brogden's and Royster's claims. The Court
stayed its consideration of those claims, but did not otherwise
stay litigation.
The portions of the Motion to Dismiss involving claims by the
Plaintiffs other than Brogden and Royster, therefore, remained
pending.
The Plaintiffs hope to represent a nationwide class consisting of
all persons or entities, who purchased or leased any 2019-2023
Nissan Altima vehicle in the United States, as well several
state-based subclasses consisting of the Plaintiffs in
Massachusetts, Maryland, Virginia, New Hampshire, and North
Carolina.
The Plaintiffs state 15 causes of action, variously under the
Magnuson-Moss Warranty Act and the laws of those respective states
involving consumer protection, express and implied warranties,
unjust enrichment, and/or fraud. The claims under Virginia law are
asserted by no named plaintiff other than Brogden, so the Court
will treat those claims--which are encompassed by the Ninth and
Tenth Causes of Action--as stayed.
Plaintiff Royster asserts claims under North Carolina law, but one
of those claims--the Eleventh Cause of Action, for unfair and
deceptive trade practices--is also being asserted by Fezza, so the
Court can still consider that North Carolina claim. The Twelfth
Cause of Action, for breach of implied warranties under North
Carolina law, however, is asserted only by Royster, so the Court's
consideration of that theory is stayed.
Each of the Plaintiffs purchased a 2019 or 2020 Nissan Altima. Each
of those vehicles was equipped with a type of transmission known as
a "continuously variable transmission," or "CVT," which is the
focus of this case.
A set number of gears, however, means a set number of ratios that
the transmission must, in effect, hop between, without the option
to precisely target the particular, exact transmission rate ideal
for a given situation. A CVT attempts to avoid that limitation by
replacing this conventional system of gears with an alternative
structure that allows a wheel to be driven at a continuous range of
different rotational speeds--that is, the equivalent of "an
infinite number of gear ratios.
The Nissan CVT in the Plaintiffs' vehicles accomplishes this task
by relying on a segmented steel belt between pulleys that can be
adjusted to change the reduction ratio in the transmission. The
Plaintiffs, however, say that the Nissan CVT was defective. They
are not alone in having reached that conclusion; there have been a
number of lawsuits filed regarding the Nissan CVT, including
multiple cases in this Court.
The lawsuits, however, have been marked by some degree of
uncertainty regarding what, exactly, is supposedly wrong with the
Nissan CVT--other than the general allegation that the system, as a
whole, is prone to malfunction, Judge Trauger notes. These
Plaintiffs define the "CVT Defect" simply to be one or more design
and/or manufacturing defects that can cause the CVT to malfunction
in the manners that they describe in their Amended Complaint.
Outside of that fundamentally circular definition, however, the
Plaintiffs do not offer a definitive account of the physical,
mechanical details of how or why those malfunctions are occurring,
although they do acknowledge some specific problems related to the
buildup of metal debris in the CVT.
Judge Trauger says that what the Plaintiffs lack in specificity,
they seek to make up for with a wealth of anecdotal evidence of the
transmission's problems, whatever their root cause.
As the Plaintiffs point out, numerous 2019–2023 Altima owners
have reported a significant delay in their vehicle's response while
attempting to accelerate both from a stop and while in motion.
Drivers have also reported "stalling, jerking, lurching, juddering,
and/or shaking" during ordinary operation. The fact that many
Nissan drivers have voiced such complaints is, by now, a matter of
public record, confirmed by the National Highway Traffic Safety
Administration ("NHTSA").
The Plaintiffs allege that Nissan was aware of the Altima's CVT
issues but actively concealed the true nature and extent of the
problem. The CVT found in the relevant Altima models was the same
or a substantially similar transmission as was included in prior
model year Nissan vehicles equipped with a CVT. Nissan's
experiences with those vehicles—as well as its later experiences
with the Altima models at issue in this case—would have
unavoidably alerted the company to the system's problems in a
number of ways, the Plaintiffs assert.
The Plaintiffs also allege that Nissan Technical Service Bulletins,
or "TSBs," issued by Nissan to its dealers demonstrate an awareness
of problems with the CVT system. Several examples of these TSBs
have been appended to the Amended Complaint.
According to the Plaintiffs, Nissan would have been aware of these
complaints because automobile manufacturers monitor the NHTSA
database for consumer complaints regarding their automobiles as
part of their ongoing obligation to identify potential defects in
their vehicles, including safety-related defects. Each of the
Plaintiffs claims to have experienced similar problems with his or
her Altima. Their responses to the malfunctions, however, were not
identical.
Two of the Plaintiffs--Tara Martins and Gregory Swann--say that
they brought their malfunctioning vehicles to a dealership. The
other Plaintiffs, however, do not claim to have sought repairs from
a dealership during their warranty periods. They do all state,
however, that if they had known about the Altima's CVT issues, they
would not have purchased one.
The pending Motion to Dismiss raises six general arguments. First,
Nissan argues that the Plaintiffs' fraudulent omission and consumer
protection claims should be dismissed because the Plaintiffs have
not satisfied their burden to plead facts identifying the purported
defect or showing that NNA was aware of any defect when their
vehicles were sold. Second, Nissan argues that various of the
claims fail because they run afoul of state-specific doctrines,
particularly those involving restrictions on recovery for purely
economic losses. Third, Nissan argues that all of the claims
premised on implied warranties are deficient because the Plaintiffs
allege no facts showing that their vehicles were either
unmerchantable or inconsistent with their labeling.
Fourth, Nissan argues that Swann's claim based on Nissan's express
warranties should be dismissed because Swann did not grant Nissan a
sufficient opportunity to repair his vehicle. Fifth, Nissan argues
that, with only one exception--that is, Martins' claim--the
Plaintiffs' claims under the MMWA fail because the MMWA claim is
derivative of the underlying state law express and implied warranty
claims and all but one express warranty claim fails under state
law. Finally, Nissan argues that the Court should dismiss all of
the Plaintiffs' claims for unjust enrichment on the ground that
unjust enrichment is not available as a cause of action where the
underlying transaction is already governed by an express contract,
and each of the relevant vehicles was covered by a written
warranty.
Judge Trauger opines that Nissan is correct that courts considering
automobile defect cases typically require at least some level of
meaningful detail regarding what the defect that the Plaintiffs
have alleged actually is--as opposed to simply the symptoms that it
has caused. Browning v. Am. Honda Motor Co., 549 F. Supp. 3d 996
(N.D. Cal. 2021), and similar decisions are persuasive authority,
and the Court does not doubt the general proposition that a
plaintiff alleging an automobile defect must identify the defect
with some degree of specificity, particularly when some of the
claims he is pursuing sound in fraud and are, therefore, subject to
Rule 9(b) of the Federal Rules of Civil Procedure.
In Nissan's briefing, however, Judge Trauger says, it goes beyond
treating such cases as the persuasive examples they are and treats
them as, in effect, creating special pleading requirements for
automobile defect cases that every plaintiff must satisfy. It is
not clear to the Court, however, why that should—or could—be
the case. The pleading requirements for these causes of action, as
with any cause of action, arise out of the application of the
appropriate pleading standard to the substantive elements of the
claims asserted—nothing more and nothing less, Judge Trauger
points out.
Nissan, however, has not identified any basis for the special
pleading requirement stating that a plaintiff, who alleges that his
transmission was defective absolutely must identify some faulty
sub-component smaller than the transmission itself, Judge Trauger
notes. What matters, Judge Trauger explains, is whether a product
was defective and known to be so, not whether the Plaintiffs, the
Defendants, or anyone else can provide a mechanical explanation for
why it was defective.
Even if the Court accepted Nissan's arguments regarding the
standard for pleading a defect, those arguments would, at most,
justify narrowing the Plaintiffs' claims to those associated with
the more detailed technical defect that they have identified. There
would be no basis for outright dismissal, Judge Trauger points out.
The Court, accordingly, will not dismiss any claims based on the
Plaintiffs' allegedly inadequate pleading of knowledge.
Judge Trauger holds that the Court will not dismiss any of the
Plaintiffs' breach of implied warranty claim based solely on their
failure to plead unmerchantability under the Uniform Commercial
Code's ("UCC"). The Court finds Plaintiff Swann has plausibly
pleaded that the dealership, as Nissan's agent, affirmatively
failed to honor the warranty.
Because the Court is not dismissing any warranty-based state-law
claims--only one of Fezza's statutory claims--it will not dismiss
any claims under the Magnuson–Moss Warranty Act.
The Plaintiffs have specifically alleged that Nissan sold each of
the vehicles at issue in this case with a powertrain warranty that
covered the CVT. There is, accordingly, no plausible reading of the
allegations of the Complaint, or any subset of those allegations,
that would support a conclusion that the subject matter of this
case was not covered by the warranties themselves, Judge Trauger
opines. There is, therefore, no basis for permitting the unjust
enrichment claims to proceed as an alternative theory of liability,
and the Court will dismiss all such claims.
For these reasons, Judge Trauger rules that Nissan's Motion to
Dismiss will be granted in part and denied in part. The Court will
dismiss the claims for unjust enrichment asserted by all Plaintiffs
other than Brogden and Royster.
The Court's denial of the motion will be without prejudice to any
matter related to the claims of Brogden and Royster.
A full-text copy of the Court's Memorandum dated Nov. 6, 2023, is
available at https://tinyurl.com/37emad6d from PacerMonitor.com.
NISSAN OF NORTH AMERICA: Court Narrows Claims in Stockley Suit
--------------------------------------------------------------
Judge Aleta A. Trauger of the U.S. District Court for the Middle
District of Tennessee, Nashville Division, grants in part and
denies in part the Defendant's motion to dismiss the lawsuit styled
JEAN STOCKLEY, BRIANNA WILLIAMS, ELIZABETH BURNS, LORETTA MUNFORD,
DOROTHY ARDS, LEE SEVIGNY, JENNA HAINES, MAUREEN LOVE, SEAN
CHAMBERS, and TAYLOR SIMMS, individually and on behalf of all
others similarly situated, Plaintiffs v. NISSAN OF NORTH AMERICA,
INC., Defendant, Case No. 3:22-cv-00709 (M.D. Tenn.).
Each of the ten plaintiffs owns a Nissan Rogue or Nissan Rogue
Sport with a model year from 2017 to 2020. Those vehicles were
equipped with a type of transmission known as a "continuously
variable transmission," or "CVT," which is the focus of this case.
A transmission is a system that, to somewhat simplify matters,
transmits the power from the vehicle's engine to the wheels.
Ordinary driving requires the wheels of the vehicle to receive
different levels of power in different situations, depending on the
need for acceleration, speed, or struggle against an incline. A
transmission, therefore, must be capable of transmitting power at
those different levels.
Judge Trauger notes that all factual allegations are from the
Plaintiffs' Second Amended Class Action Complaint and are accepted
as true for the purposes of the Motion to Dismiss.
A set number of gears, however, means a set number of ratios that
the transmission must, in effect, hop between, without the option
to precisely target the particular, exact transmission rate ideal
for a given situation. A CVT attempts to avoid that limitation by
replacing this conventional system of gears with an alternative
structure that allows a wheel to be driven at a continuous range of
different rotational speeds—that is, the equivalent of an
infinite number of gear ratios.
The Nissan CVT in the Plaintiffs' vehicles accomplishes this task
by relying on a segmented steel belt between pulleys that can be
adjusted to change the reduction ratio in the transmission.
The Plaintiffs, however, say that the Nissan CVT was defective.
They are not alone in having reached that conclusion; there have
been a number of lawsuits filed regarding the Nissan CVT, including
multiple cases in this Court. The lawsuits, however, have been
marked by some degree of uncertainty regarding what, exactly, is
supposedly wrong with the Nissan CVT--other than the general
allegation that the system, as a whole, is prone to malfunction.
The Plaintiffs allege that Nissan was aware of the Rogue's CVT
issues but "actively concealed the true nature and extent" of the
problem. The CVT found in the relevant Rogue models was, the
Plaintiffs point out, the same or a substantially similar
transmission as was included in earlier model Nissan vehicles
equipped with a CVT, including the 2014-2018 Nissan Rogue. Nissan's
experiences with those vehicles, as well as its later experiences
with the Rogue models at issue in this case, would have unavoidably
alerted the Company to the system's problems in a number of ways,
the Plaintiffs allege.
First, the Plaintiffs assert that the CVT's poor functioning and
tendency to fail should have been apparent from pre-production
testing, pre-production design failure mode and analysis data, and
production design failure mode and analysis data. Then, once
vehicles using the CVT were on the road, Nissan would have received
early consumer complaints made exclusively to Nissan's network of
dealers and directly to Nissan.
The Plaintiffs also allege, among other things, that Nissan
Technical Service Bulletins, or "TSBs," issued by Nissan to its
dealers demonstrate an awareness of problems with the CVT system.
Several of these TSBs have been appended to the Amended Complaint.
On Sept. 13, 2022, the Plaintiffs filed a putative Class Action
Complaint against Nissan and Nissan Motor Co., Ltd. pursuant to the
Magnuson-Moss Warranty Act ("MMWA"), and the laws of their
respective states. They hope to represent a nationwide class
consisting of all persons or entities who purchased or leased any
MY2019-2022 Nissan Rogue or MY2017-2022 Nissan Rogue Sport vehicle
in the United States, as well several state-based subclasses
consisting of plaintiffs in Florida, Georgia, Illinois, Maryland,
Massachusetts, New York, North Carolina, Ohio, Tennessee, and
Texas.
The Plaintiffs state 27 causes of action, variously under the
Magnuson-Moss Warranty Act and the laws of those respective states
involving consumer protection, express and implied warranties,
unjust enrichment, negligence, and/or fraud.
On May 8, 2023, Nissan filed a Motion to Dismiss directed at all
claims.
Judge Trauger notes that the pending Motion to Dismiss raises six
general arguments. First, Nissan argues that the Plaintiffs'
fraudulent omission and consumer protection claims should be
dismissed because they do not meet their burden to plead facts
identifying the purported defect or showing that Nissan was aware
of the existence of that defect in their vehicles when they were
sold. Second, Nissan argues that various of the claims fail because
they run afoul of state-specific doctrines, particularly those
involving timeliness, notice, and restrictions on recovery for
purely economic losses. Third, Nissan argues that all of the claims
premised on implied warranties are deficient because the Plaintiffs
allege no facts showing that their vehicles were either
unmerchantable or inconsistent with their labeling.
Fourth, Nissan argues that the Plaintiffs' express warranty claims
should be dismissed because they have failed to plausibly plead
facts showing that Nissan was unable to or refused to repair a
defect in materials or workmanship covered by the warranty. Fifth,
Nissan argues that the Plaintiffs' MMWA claims must be dismissed if
the predicate state law breach of warranty claim is dismissed.
Finally, Nissan argues that the Court should dismiss all of the
Plaintiffs' claims for unjust enrichment on the ground that unjust
enrichment is not available as a cause of action where the
underlying transaction is already governed by an express contract,
and each of the relevant vehicles was covered by a written
warranty.
Judge Trauger says Nissan is correct that courts considering
automobile defect cases typically require at least some level of
meaningful detail regarding what the defect that the Plaintiffs
have alleged actually is--as opposed to simply the symptoms that it
has caused.
The Court, however, will not limit the Plaintiffs' claims to those
involving obstruction of transmission fluid cooler, because the
pleading standard that Nissan asserts simply does not exist. No
source of law--either substantive or procedural--required the
Plaintiffs to plead that the defect at issue in this case can be
attributed to a specific subcomponent of the CVT or a specific
mechanical process, Judge Trauger points out.
The Plaintiffs were, rather, required to state allegations
sufficient to put Nissan on notice regarding the defect at issue,
as well as particularized facts sufficient to support their
allegations of fraud. Judge Trauger finds that the Plaintiffs have
complied with those standards, as applied to identification of the
defect.
In any event, even if a particularly heightened pleading standard
applied to the Plaintiffs' assertions of knowledge, they would have
met that standard, Judge Trauger holds. The Plaintiffs' allegations
regarding Nissan's history with the CVT, including its history with
substantially the same CVT system in earlier vehicles, plainly
supports an inference of knowledge, and that inference is supported
by both TSBs and consumer complaints.
The supposed defects in those assertions that Nissan has identified
are, at most, arguments about the sufficiency of the evidence of
knowledge. Those supposed shortcomings, however, do nothing to
negate the sufficiency of the pleading under Rule 8 and Rule 9(b)
of the Federal Rules of Civil Procedure, Judge Trauger opines. The
Court, accordingly, will not dismiss any claims based on the
Plaintiffs' allegedly inadequate pleading of knowledge.
Judge Trauger finds that Nissan's discussion of privity in the
context of other arguments confirms that it accepts the general
proposition that the Plaintiffs' Nissan warranties do not establish
privity. The Court, therefore, will treat this issue as conceded by
Nissan for the purposes of the motion to dismiss.
Judge Trauger also finds that the Plaintiffs have failed to
identify an exception to Illinois' rule that privity is required to
support a claim for breach of implied warranty, and that claim--the
Seventeenth Cause of Action--will be dismissed.
The mere fact that a vehicle covered by a warranty has
malfunctioned does not, alone, support recovery for breach of
express warranty, Judge Trauger says. The Court, accordingly, will
not dismiss the breach of express warranty claims based on an
insufficient opportunity to repair.
Nissan argues that unjust enrichment is unavailable in this case,
because each vehicle was subject to an express warranty covering
the relevant subject matter. The Plaintiffs have specifically
alleged that Nissan sold each of the vehicles at issue in this case
with a powertrain warranty that covered the CVT. There is,
accordingly, no plausible reading of the allegations of the
Complaint, or any subset of those allegations, that would support a
conclusion that the subject matter of this case was not covered by
the warranties themselves, Judge Trauger opines.
There is, therefore, no basis for permitting the unjust enrichment
claims to proceed as an alternative theory of liability, and the
Court will dismiss all such claims.
For these reasons, Judge Trauger rules that Nissan's Motion to
Dismiss will be granted in part and denied in part. The First,
Tenth, Seventeenth, Twenty-First, Twenty-Third, and Twenty-Sixth
Causes of Action will be dismissed, and the Twenty-Fifth Cause of
Action will be dismissed, in part, as to the breach of implied
warranty-based MMWA claims of Plaintiffs Williams, Love, Ards, and
Chamber.
A full-text copy of the Court's Memorandum dated Nov. 6, 2023, is
available at https://tinyurl.com/4kexp4rj from PacerMonitor.com.
NORTHWELL HEALTH: Heitzner Sues Over Inadequate Data Security
-------------------------------------------------------------
ILISE HEITZNER, individually and on behalf of all others similarly
situated, Plaintiff v. NORTHWELL HEALTH, INC. and PERRY JOHNSON &
ASSOCIATES, INC., Defendants, Case No. 161199/2023 (N.Y. Sup., New
York Cty., November 15, 2023) arises from the Defendants' failure
to properly secure and safeguard its former and current patients'
personally identifiable and financial information and protected
health information, which was accessed by unauthorized parties
during the data breach that occurred on or around March 27, 2023 to
May 2, 2023 on PJ&A's systems and on or around April 7, 2023 to
April 19, 2023 on Northwell's systems.
The Defendants did not notify Plaintiff and the Class members of
the Data Breach Incidents until November 3, 2023. Accordingly,
Plaintiff brings this action on behalf of all persons whose PII and
PHI was compromised because of Defendants' failure to: (i)
adequately protect their PII and PHI; (ii) warn of Defendants'
inadequate information security practices; and (iii) effectively
secure equipment and the database containing protected PII and PHI
using reasonable and effective security procedures free of
vulnerabilities and incidents, says the suit.
Northwell Health is a nonprofit integrated healthcare network that
is New York State’s largest healthcare provider. [BN]
The Plaintiff is represented by:
Jeffrey M. Norton, Esq.
Benjamin D. Baker, Esq
NEWMAN FERRARA LLP
1250 Broadway, 27th Floor
New York, NY 10001
Telephone: (212) 619-5400
E-mail: jnorton@nfllp.com
bbaker@nfllp.com
NORTHWOOD HOSPITALITY: Avila Suit Removed to C.D. California
------------------------------------------------------------
The case captioned as Hector A. Avila, on behalf of himself and
others similarly situated v. NORTHWOOD HOSPITALITY LLC; and DOES 1
to 100, inclusive, Case No. 23STCV22593 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 Nov. 13, 2023, and assigned Case No.
2:23-cv-09598.
On September 18, 2023, Plaintiff filed an unverified Class Action
Complaint against Defendant which sets forth the following seven
causes of action: Failure to Pay Minimum Wages; Failure to Pay
Overtime Wages; Failure to Provide Meal Periods; Failure to Provide
Rest Periods; Failure to Provide Accurate Wage Statements; Failure
to Pay Wages at Time of Separation; and Unfair Business
Practices.[BN]
The Defendants are represented by:
Eric J. Gitig, Esq.
Payam Malakouti, Esq.
JACKSON LEWIS P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Phone: (213) 689-0404
Facsimile: (213) 689-0430
Email: Eric.Gitig@jacksonlewis.com
Payam.Malakouti@jacksonlewis.com
OAK GROVE: Wisconsin Court Refuses to Dismiss Kluender FLSA Suit
----------------------------------------------------------------
Judge James D. Peterson of the U.S. District Court for the Western
District of Wisconsin denies the Defendant's motion to dismiss the
lawsuit styled MICHELLE KLUENDER, on behalf of herself and all
others similarly situated, Plaintiff v. OAK GROVE ASSISTED CARE,
LLC, Defendant, Case No. 3:23-cv-00473-jdp (W.D. Wis.).
Plaintiff Michelle Kluender brings this proposed class and
collective action against Defendant Oak Grove Assisted Care, LLC,
where she formerly worked as a Resident Care Aide. She contends
that Oak Grove violated the Fair Labor Standards Act (FLSA) and
Wisconsin wage law by shaving time (via electronic timeclock
rounding) from hourly-paid, nonexempt employees' weekly timesheets
for pre-shift and post-shift hours worked and/or work performed.
Oak Grove moves to dismiss the complaint for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The Plaintiff originally filed this action in the U.S. District
Court for the Eastern District of Wisconsin. The Defendant filed a
motion to dismiss for both improper venue and for failure to state
a claim. The court found that the venue was improper in the Eastern
District and transferred the case, without deciding the Rule
12(b)(6) motion.
The Defendant argues that the complaint must be dismissed because
the Plaintiff hasn't alleged enough facts to establish that her
position was "nonexempt" under the FLSA, that she and the other
class members had the same job duties, or the specific amount she
and the other class members were allegedly underpaid.
The Plaintiff alleges that she was employed by the Defendant as a
Resident Care Aide, an hourly-paid, nonexempt position. The
Defendant argues that this is not enough to state an overtime claim
under the FLSA because the allegation that the Plaintiff is
"nonexempt" is merely a legal label, unsupported by any allegations
of fact.
But it is the employer's burden to establish that an employee is
exempt, and complaints need not anticipate, and attempt to plead
around, potential affirmative defenses, Judge Peterson opines,
citing Sanchez v. Haltz Const., Inc., No. 09 C 7531, 2012 WL 13514,
at *4 (N.D. Ill. Jan. 4, 2012). Further, as the employer, Judge
Peterson says the Defendant would know the duties of a Resident
Care Aide and whether that position is exempt from the FLSA's
overtime provisions.
The Defendant also argues that the Plaintiff has not adequately
pled a collective FLSA claim because it is unclear from the
complaint whether the other proposed class members have the same
job duties as the Plaintiff.
Judge Peterson notes that the complaint does not provide a detailed
description of the Plaintiff's job duties, but it does provide that
(1) all the purported collective members had the same or
similarly-titled positions, and substantially similar job
requirements and pay provisions, (2) the members all performed
primarily nonexempt job duties and were paid hourly, (3) they all
used the Defendant's allegedly unlawful electronic timekeeping
system, and (4) they were all denied overtime pay for hours worked
over 40 hours a week.
Judge Peterson opines that the complaint contains enough details to
give the Defendant fair notice of what the claim is, the grounds
upon which it rests, and the putative class, so it survives
dismissal. Judge Peterson points out that the Defendant can
challenge the appropriateness of proceeding collectively when the
Plaintiff moves for conditional certification and issuance of class
notification.
The Plaintiff asserts two claims under Wisconsin's Wage Payment and
Collection Laws: (1) unpaid overtime pay; and (2) unpaid regular
wages. The Defendant's challenges to the overtime claim mirror its
objections to the FLSA claim. The Court rejects those challenges
for the reasons just discussed.
As for the claim for unpaid regular wages, the Defendant argues
that the Plaintiff fails to state either an individual or class
claim because she hasn't alleged the specific amount that the
Defendant agreed to pay her, when her regular pay day was, the
amount she allegedly was not paid on her regular pay day, and
whether she ever demanded such payment, much less whether the other
class members are similarly situated with respect to these missing
details.
Judge Peterson holds that the Plaintiff's allegation that the
Defendant maintained an electronic timekeeping system that deprived
her and the other class members of their full rate of pay by
shaving time from their timesheets is sufficient to state a claim
for unpaid regular wages under state law. The amount of the
resulting underpayment to the Plaintiff and the other class members
is an issue more appropriately addressed at the damages phase.
Hence, Judge Peterson denies the Defendant's motion to dismiss the
complaint for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
A full-text copy of the Court's Opinion and Order dated Nov. 6,
2023, is available at https://tinyurl.com/2eudbswx from
PacerMonitor.com.
OCUGEN INC: Continues to Defend Securities Class Suit in PA
-----------------------------------------------------------
Ocugen Inc. disclosed in its Form 10-Q Report for the quarterly
period ending September 30, 2023 filed with the Securities and
Exchange Commission on November 9, 2023, that the Company continues
to defend itself from securities class suit in the U.S. District
Court for the Eastern District of Pennsylvania.
In June 2021, a securities class action lawsuit was filed against
the Company and certain of its agents in the U.S. District Court
for the Eastern District of Pennsylvania ("Court") (Case No.
2:21-cv-02725) that purported to state a claim for alleged
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated
thereunder, based on statements made by the Company concerning the
announcement of the Company's decision to pursue the submission of
a BLA for COVAXIN for adults ages 18 years and older rather than
pursuing an EUA.
In July 2021, a second securities class action lawsuit was filed
against the Company and certain of its agents in the Court (Case
No. 2:21-cv-03182) that also purported to state a claim for alleged
violations of Sections 10(b) and 20(a) of the Exchange Act and Rule
10b-5 promulgated thereunder, based on the same statements as the
first complaint.
The complaints seek unspecified damages, interest, attorneys' fees,
and other costs.
In March 2022, the Court consolidated these two related securities
class action lawsuits and appointed Andre Galan Bernd Benayon to
serve as lead plaintiff.
The lead plaintiff's amended complaint was filed in June 2022.
In March 2023, the Court granted the Company's motion to dismiss
with prejudice.
The lead plaintiff has appealed to the United States Court of
Appeals for the Third Circuit regarding the order that was entered
in March 2023, which dismissed the action with prejudice.
The lead plaintiff's appellant's brief and joint appendix were
filed in July 2023.
The Company's appellees' brief was filed in August 2023, and the
lead plaintiff's reply brief was filed in September 2023.
The Company believes that the lawsuits are without merit and
intends to vigorously defend against them.
Ocugen, Inc. operates as a clinical stage biopharmaceutical
company. The Company offers products for improving the body's
ability to regenerate healthy cartilage, joint function, and
prevention of degenerative diseases. Ocugen serves patients and
orthopedist throughout the United States.[BN]
ORGANOGENESIS HOLDINGS: Bid to Dismiss Somogyi Suit Pending
-----------------------------------------------------------
Organogenesis Holdings Inc. disclosed in its Form 10-Q Report for
the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
motion to dismiss the Somogyi class suit is pending in court.
On December 10, 2021, a class action complaint captioned Somogyi v.
Organogenesis Holdings Inc., et al. was filed on behalf of a
putative class of all purchasers of the Company's securities
against the firm and its Chief Executive Officer and Chief
Financial Officer in the United States District Court for the
Eastern District of New York.
The court appointed Donald Martin as lead plaintiff. Mr. Martin
filed an amended complaint on October 24, 2022 that brings claims
on behalf of a purported class of all purchasers of its securities
from August 10, 2020 through August 9, 2022 and alleges violations
of federal securities law in connection with alleged false and
misleading statements with respect to, among other matters,
revenue, sales growth and ability to compete in connection with its
Affinity and PuraPly XT products.
The amended complaint alleges violations of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks
unquantified damages as well as attorneys' fees, expert fees and
other costs.
The action is in the early stages of litigation.
The Company believes the claims are without merit and intend to
vigorously contest them.
On March 13, 2023, it filed its motion to dismiss the litigation
for failure to state a claim upon which relief can be granted.
Briefing was completed on May 30, 2023 and the motion to dismiss is
currently pending with the Court.
Organogenesis Holdings Inc. is a regenerative medicine company
focused on the development, manufacture, and commercialization of
solutions for the advanced wound care and surgical & sports
medicine markets.
OS RESTAURANT: Guerra Suit Removed to N.D. California
-----------------------------------------------------
The case captioned as Sonia Castaneda Guerra, on behalf of the
putative class v. OS RESTAURANT SERVICES LLC dba FLEMING'S, Case
No. C23-01702 was removed from the Superior Court of the State of
California for the County of Contra Costa, to the United States
District Court for the Northern District of California on Nov. 13,
2023, and assigned Case No. 4:23-cv-05845.
The Complaint alleges claims for: Failure to Provide Required Meal
Periods; Failure to Provide Required Rest Periods; Failure to Pay
Overtime Wages; Failure to Pay Minimum Wages; Failure to Pay All
Wages Due to Discharged and Quitting Employees; Failure to Furnish
Accurate Itemized Wage Statements; Failure to Maintain Required
Records; Failure to Indemnify Employees for Necessary Expenditures
Incurred in Discharge of Duties; Unfair and Unlawful Business
Practices; and Penalties under the Labor Code Private Attorneys
General Act.[BN]
The Defendants are represented by:
Gregory C. Cheng, Esq.
Shannon Clawson, Esq.
Carolyn B. Hall, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
One Embarcadero Center, Suite 900
San Francisco, CA 94111
Phone: 415-442-4810
Facsimile: 415-442-4870
Email: gregory.cheng@ogletree.com
shannon.clawson@ogletree.com
carolyn.hall@ogletree.com
OUTCOMES INC: Cifuentes Files FLSA Suit in W.D. Arkansas
--------------------------------------------------------
A class action lawsuit has been filed against Outcomes, Inc., et
al. The case is styled as Kaylee Cifuentes, Amber Carl,
Individually and on behalf of others similarly situated v.
Outcomes, Inc., Tony Posey, Case No. 5:23-cv-05197-PKH (W.D. Ark.,
Nov. 8, 2023).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Outcomes -- https://www.outcomesnm.org/ -- is a leading consulting
services and research firm providing unique and integrated
offerings focusing on Technology and Healthcare.[BN]
The Plaintiff is represented by:
Timothy A. Steadman
HOLLEMAN & ASSOCIATES, P.A.
1008 W. 2nd Street
Little Rock, AR 72201
Phone: (501) 975-5040
Fax: (501) 975-5043
Email: tim@johnholleman.net
OWENS-BROCKWAY: Hillis Suit Removed to E.D. California
------------------------------------------------------
The case captioned as Cory Hillis, individually, and on behalf of
others similarly situated v. OWENS-BROCKWAY GLASS CONTAINER, INC.,
a Delaware corporation; and DOES 1 through 50, inclusive, Case No.
STK-CV-UOE-2023-3206 was removed from the Superior Court of
California, County of San Joaquin, to the United States District
Court for the Eastern District of California on Nov. 13, 2023, and
assigned Case No. 2:23-at-01160.
The Complaint purports to allege ten claims for relief, including:
failure to provide required meal periods; failure to provide rest
periods; failure to pay overtime wages; failure to pay minimum
wages; failure to pay all wages due to discharged and quitting
employees; failure to maintain required records; failure to furnish
accurate itemized wage statements; failure to indemnify employees
for necessary expenditures incurred in discharge of duties; unfair
and unlawful business practices; and seeking penalties under the
California Labor Code Private Attorneys General Act.[BN]
The Defendants are represented by:
Candace Bertoldi, Esq.
SEYFARTH SHAW LLP
601 South Figueroa Street, Suite 3300
Los Angeles, CA 90017-5793
Phone: (213) 270-9600
Facsimile: (213) 270-9601
Email: cbertoldi@seyfarth.com
- and –
Robin E. Devaux, Esq.
SEYFARTH SHAW LLP
560 Mission Street, 31st Floor
San Francisco, CA 94105
Phone: (415) 397-2823
Facsimile: (415) 397-8549
Email: rdevaux@seyfarth.com
P.L. ROHRER & BRO: Luis Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against P.L. Rohrer & Bro.,
Inc. The case is styled as Kevin Yan Luis, individually and on
behalf of all others similarly situated v. P.L. Rohrer & Bro.,
Inc., Case No. 1:23-cv-09981 (S.D.N.Y., Nov. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Rohrer Seeds -- https://rohrerseeds.com/ -- is a 4th generation
family business located in the heart of Lancaster County,
Pennsylvania.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
PACESETTER: Bid to Dismiss Duran Suit Denied w/o Prejudice
----------------------------------------------------------
In the class action lawsuit captioned as REYNALDO DURAN, an
individual, on behalf of themselves and all others similarly
situated, v. KENNETH JOEKEL, an individual, MARC PLOTKIN, an
individual, PACESETTER PERSONNEL SERVICE, INC., A Texas profit
corporation, PACESETTER PERSONNEL SERVICE OF FLORIDA, INC., A
Florida profit corporation, FLORIDA STAFFING SERVICE, INC., A
Florida profit corporation, and TAMPA SERVICE COMPANY, INC., A
Florida profit corporation, Case No. 2:23-cv-00558-JES-NPM (M.D.
Fla.), the Hon. Judge John E. Steele entered an order that:
1. Corporate Defendants' motion to dismiss the Plaintiffs'
complaint is denied without prejudice.
2. Individual Defendants' motion to dismiss the Plaintiffs'
complaint is denied without prejudice.
3. The Complaint is dismissed without prejudice to plaintiff
filing
an amended complaint within 21 days of the date of this
Opinion
and Order.
4. Discovery and disclosures relating to this case will be
stayed pending further order of the Court.
The Plaintiffs' Response in Opposition was filed on September 21,
2023. Also before the Court is Individual Defendants' Motion to
Dismiss Plaintiffs' Complaint, filed on August 2, 2023.
Pacesetter provides employment services.
A copy of the Court's opinion and order dated Nov. 13, 2023 is
available from PacerMonitor.com at https://bit.ly/3MMUnn9 at no
extra charge.[CC]
PANINI AMERICA: Huerta Sues Over Unlawful Discrimination at Work
----------------------------------------------------------------
Dulce Huerta, Plaintiff v. PANINI AMERICA, INC., Defendant, Case
No. 3:23-cv-02529-K (N.D. Tex., November 15, 2023) is a class
action brought by the Plaintiff asserting claims against the
Defendant for unlawful discrimination and retaliation in violation
of 42 United States Code Section 1981.
Plaintiff Huerta, on behalf of herself and all similarly situated,
seeks to hold Panini accountable for the racially discriminatory
hostile work environment it has created and nurtured and
furthermore rectify the racially charged environment that she and
her colleagues endured.
Plaintiff Huerta is Mexican-American and worked at Panini from 2017
to 2020. during her tenure, was subjected to derogatory comments,
especially from Caucasian colleagues, including a manager named
David. These comments often took the form of "jokes" racial and
ethnic tropes targeting Mexicans and their attire. Beyond the
derogatory comments, she experienced the company's preference for
pushing employees to resign rather than addressing their
grievances, says the Plaintiff.
Panini is an operating subsidiary of Panini S.P.A., an entity which
holds itself out as an international brand leader within the world
of sticker and trading card collectibles. [BN]
The Plaintiff is represented by:
R. Lane Addison, Esq.
THE WILHITE LAW FIRM
2911 Turtle Creek Blvd., Ste. 300
Dallas, TX 75219-6247
Telephone: (469) 870-0870
E-mail: laddison@wilhitelawfirm.com
- and -
Omid Zareh, Esq.
WEINBERG ZAREH MALKIN PRICE LLP
45 Rockefeller Plaza, 20th Floor
New York, NY 10111
Telephone: (212) 899-5470
(212) 899-5472
E-mail: ozareh@wzmplaw.com
PARKMOBILE LLC: Class Cert Bid Briefing Deadlines Entered in Baker
-------------------------------------------------------------------
In the class action lawsuit captioned as TYLER BAKER, MIRIAM
GEORGE, EMMA JACKSON, SAIT KURMANGALIYEV, GREGORY MANSON, HERIBERTO
TRAVIESTO and JACK WEAVER, on behalf of themselves and all others
similarly situated, v. PARKMOBILE, LLC, Case No. 1:21-cv-02182-SCJ
(N.D. Ga.), the Hon. Judge Steve C. Jones entered a corrected
scheduling order as follows:
The Court sua sponte corrects the scheduling order, as amended to
provide clarification as to the class certification motion briefing
dates as follows:
Plaintiffs' file any Motion Class Six weeks after Rule
16.3
Certification Motion along with Class Conference
Certification Expert Declarations in
Support
Defendant files any Opposition to Eight Weeks after
service
Plaintiffs' Class Certification Motion of Plaintiffs' motion
along with any Expert Declarations in
Support
Plaintiffs file any Reply in Support of Eight Weeks after
service
Motion for Class Certification [along of Defendants'
opposition
with any Rebuttal Expert Declarations
in Support]
Parkmobile provides mobile parking solutions.
A copy of the Court's order dated Nov. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3MRFIH4 at no extra charge.[CC]
PAYCOM SOFTWARE: Ventrillo Sues Over Exchange Act Violation
-----------------------------------------------------------
Angelo Ventrillo Jr., Individually and on behalf of all others
similarly situated v. PAYCOM SOFTWARE, INC., CHAD RICHISON, and
CRAIG BOELTE, Case No. 5:23-cv-01019-F (W.D. Okla., Nov. 10, 2023),
is brought on behalf of persons or entities who purchased or
otherwise acquired publicly traded Paycom securities between May 3,
2023 and November 1, 2023, inclusive (the "Class Period") and to
recover compensable damages caused by Defendants' violations of the
federal securities laws under the Securities Exchange Act of 1934
(the "Exchange Act").
On July 6, 2021, Paycom released a press release entitled "Paycom
Launches Beti, an Industry-First Employee-Driven Payroll Solution."
(the "Beti Announcement"). Paycom characterized Beti (which stands
for "Better Employee Transaction Interface") as the "industry's
first self-service payroll technology allowing employees to do
their own payroll, improving data accuracy, oversight and the user
experience for businesses and their employees on each payroll
cycle." In the Beti Announcement, Defendant Richison stated "with
Beti, employees do their own payroll. It should have always been
this way, but the tech didn't exist. Today it does, and employers
and employees will win with it."
The Class Period starts on May 3, 2023. On May 2, 2023, after
market hours, the Company held its Earnings Call for the period
ended March 31, 2023 ("the 1Q23 Earnings Call"). On the 1Q23
Earnings Call, Defendant Boelte stated "for fiscal 2023, we are
raising our outlook and now expect revenue in the range of $1.713
billion to $1.715 billion or approximately 25% year-over-year
growth at the midpoint of the range." The statement was materially
false and misleading because the expected revenue range presented
by Defendant Boelte was unlikely due to Beti, which is
cannibalizing a portion of the Company's products and revenues.
The statements the Defendants made were materially false and/or
misleading because they misrepresented and failed to disclose the
following adverse facts pertaining to the Company's business,
operations and prospects, which were known to Defendants or
recklessly disregarded by them. Specifically, Defendants made false
and/or misleading statements and/or failed to disclose that:
Paycom's Beti product led to cannibalization of the Company's
services and revenues; Paycom knew but failed to disclose that Beti
was leading to cannibalization of the Company's services and
revenues, and failed to warn of cannibalization as a general risk;
As a result of cannibalization of revenue, Paycom missed its
expected 3Q23 revenue and would have to revise its expected 2023
Revenues; the cannibalization issue resulted in projected 2024
year-over-year revenue growth to between 10% and 12%, well below
expectations; and as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
The price of Paycom stock plunged $94.28 per share, or 38.38%, to
close at $150.69 per share on November 1, 2023, on unusually heavy
trading volume, damaging investors. As a result of Defendants'
wrongful acts and omissions, and the precipitous decline in the
market value of the Company's common shares, Plaintiff and other
Class members have suffered significant losses and damages, says
the complaint.
The Plaintiff purchased Paycom securities during the Class Period
and was economically damaged thereby.
Paycom purports to be a "leading provider of a comprehensive, cloud
based human capital management ("HCM") solution delivered as
"Software-as-a-Service" ("Saas").[BN]
The Plaintiff is represented by:
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Phone: (405) 235-1560
Facsimile: (405) 239-2112
Email: wbf@federmanlaw.com
- and -
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Phone: (212) 686-1060
Fax: (212) 202-3827
Email: pkim@rosenlegal.com
lrosen@rosenlegal.com
PHILO INC: N.D. California Grants Bid to Dismiss May Class Suit
---------------------------------------------------------------
Judge Maxine M. Chesney of the U.S. District Court for the Northern
District of California grants the Defendant's motion to dismiss the
lawsuit styled TOMIKA MAY and MATTHEW KIRSCHENBAUM, Plaintiffs v.
PHILO, INC., Defendant, Case No. 3:23-cv-01394-MMC (N.D. Cal.).
Before the Court is Defendant Philo, Inc.'s Motion, filed May 17,
2023, "to Dismiss the Class Action Complaint." Plaintiffs Tomika
May and Matthew Kirschenbaum have filed opposition, to which Philo
has replied.
By order filed July 7, 2023, the Court, after considering the
parties' respective written submissions, deferred ruling on the
motion, finding the Plaintiffs were entitled to conduct discovery
relevant to whether May has standing, an issue raised in the motion
to dismiss, and afforded the Plaintiffs leave to file supplemental
opposition following the completion of such discovery.
Thereafter, by letter filed Oct. 17, 2023, the Plaintiffs advised
the Court that the discovery had been completed and that they did
not intend to file supplemental opposition. Accordingly, the Court,
having again read and considered the parties' respective written
submissions, deems the matter appropriate for determination on the
parties' respective written submissions, vacates the hearing
scheduled for Dec. 1, 2023.
In their Complaint, the Plaintiffs allege that Philo operates a
digital subscription service where subscribers may view television
shows and movies, that Philo has "installed" on its website "the
Facebook Pixel," and that Philo disclosed to Facebook, through the
Facebook Pixel, the FID of the subscribers and the specific video
the subscribers requested or obtained.
The Plaintiffs further allege that May has been a "Philo
subscriber" since October 2021 and is a "Facebook user," that
Kirschenbaum was a "Philo subscriber from 2019 through August 2021"
and is also a "Facebook user," and that Philo disclosed to Facebook
each Plaintiff's FID and the "title of the videos" each Plaintiff
"requested or obtained."
Based on these allegations, the Plaintiffs assert, on their own
behalf and on behalf of a putative class, a claim against Philo
under the Video Privacy Protection Act ("VPPA").
Philo, in seeking dismissal of the Plaintiffs' VPPA claim, argues
May lacks standing and that Kirschenbaum's claim is barred by Rule
41(a)(1)(B) of the Federal Rules of Civil Procedure.
In its July 7 Order, the Court found Philo's showing, if
unrebutted, sufficient to establish May's lack of standing to
assert a claim under the VPPA. As the Plaintiffs have had an
opportunity to, and did conduct, jurisdictional discovery, and
there being no evidence offered by the Plaintiffs to rebut Philo's
showing, the Court, for the reasons stated in the July 7 Order,
finds May lacks standing.
Accordingly, to the extent Philo seeks dismissal of May's claim,
Judge Chesney holds that the motion to dismiss will be granted.
Judge Chesney notes that there is no dispute that Kirschenbaum was
a named plaintiff in two prior actions in which the plaintiffs
therein, including Kirschenbaum, asserted a VPPA claim based on the
same allegations made in the instant action. It is also undisputed
that, in both of those two prior actions, Kirschenbaum, along with
the other plaintiffs named in the amended complaints filed in those
actions, voluntarily dismissed the action.
Philo argues that, in light of the two prior voluntary dismissals,
Kirschenbaum's third action asserting a VPPA claim, i.e., the
instant action, is barred by Rule 41(a)(1)(B).
The Plaintiffs do not dispute that, given the two prior dismissals,
application of Rule 41(a)(1)(B) would preclude Kirschenbaum from
proceeding with the instant action. The Plaintiffs argue, however,
that Philo should be judicially estopped from relying on Rule
41(a)(1)(B), because, they contend, Philo, in the two prior
actions, took the position that Kirschenbaum was not a party to the
amended complaints, whereas Philo, in the instant action, is taking
the position that, in essence, Kirschenbaum was a party to those
actions.
According to the Plaintiffs, those two positions are obviously
contradictory, and, consequently, Philo is barred, under the
doctrine of judicial estoppel, from relying on Rule 41(a)(1)(B).
In each of the subject prior actions, Philo filed a motion to
dismiss the amended complaint in which Kirschenbaum had been added
as a plaintiff (see In re Philo Privacy Litigation, Case No.
22-cv-04296 HSG, Doc. No. 60; Bryant v. Philo, Inc., Case No.
23-cv-00135, Doc. No. 27 HSG), arguing that the plaintiffs in the
initial complaint lacked standing and that, as a result, those
plaintiffs could not amend to add new plaintiffs, such as
Kirschenbaum.
Although it is not clear Philo's earlier argument is contrary to
the position it takes in the instant action, Judge Chesney points
out that such earlier argument, even if contrary to its instant
position, does not give rise to an estoppel, as the district court
to whom each of the prior actions was assigned did not decide
either motion to dismiss; rather, the plaintiffs in each prior
action voluntarily dismissed their claims before the district court
ruled on said motions.
Under such circumstances, Judge Chesney explains, the doctrine of
judicial estoppel is inapplicable, the Ninth Circuit having
restricted the application of judicial estoppel to cases where the
court relies on, or accepted, the party's previous inconsistent
position.
Accordingly, to the extent Philo seeks dismissal of Kirschenbaum's
claim, Judge Chesney holds that the motion to dismiss will be
granted.
The Clerk of Court is directed to close the file.
A full-text copy of the Court's Order dated Nov. 6, 2023, is
available at https://tinyurl.com/mr56ub8s from PacerMonitor.com.
POLARIS INC: Lindstrom Files Suit in D. Alaska
----------------------------------------------
A class action lawsuit has been filed against Polaris, Inc., et al.
The case is styled as John H. Lindstrom, individually and on behalf
of a nationwide class and Montana subclass of similarly situated
individuals v. Polaris, Inc., Polaris Industries Inc., Polaris
Sales Inc., Case No. 1:23-cv-00137-SPW-TJC (D. Alaska, Nov. 15,
2023).
The nature of suit is stated as Other Contract for Motor Vehicle
Product Liability.
Polaris Inc. -- https://www.polaris.com/en-us/ -- is an American
automotive manufacturer headquartered in Medina, Minnesota.[BN]
The Plaintiff is represented by:
Robert Farris-Olsen, Esq.
David K.W. Wilson , Jr., Esq.
MORRISON, SHERWOOD, WILSON & DEOLA, PLLP
401 N Last Chance Gulch
PO Box 557
Helena, MT 59624
Phone: (406) 442-3261
Fax: (406) 443-7294
Email: rfolsen@mswdlaw.com
kwilson@mswdlaw.com
- and -
John C. Heenan, Esq.
HEENAN & COOK
1631 Zimmerman Trail
Billings, MT 59102
Phone: (406) 839-9091
Fax: (406) 839-9092
Email: john@lawmontana.com
POST UNIVERSITY: Bid for More Time to File Class Certification OK'd
-------------------------------------------------------------------
In the class action lawsuit captioned as ALLISON DOUGLAS,
individually and on behalf of all others similarly situated, V.
POST UNIVERSITY, INC., Case No. 1:23-cv-04234-LMM (N.D. Ga.), the
Hon. Judge Leigh Martin May entered an order granting the
plaintiff's unopposed motion for extension of deadline to move for
class certification:
The Plaintiff shall file his Motion for Class Certification on or
before a date to be approved by the Court pursuant to the parties'
jointly proposed schedule.
Post University grants baccalaureate and graduate degrees.
A copy of the Court's order dated Nov. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3ujTImJ at no extra charge.[CC]
POSTMEDS INC: Williams Sues to Remedy Harms Over Data Breach
------------------------------------------------------------
Christopher Williams, individually and on behalf of all others
similarly situated and the general public v. POSTMEDS, INC. d/b/a
TRUEPILL, Case No. 3:23-cv-05813 (N.D. Cal., Nov. 10, 2023), is
brought seeking to remedy these harms on behalf of himself and all
similarly situated individuals whose highly sensitive and
confidential Personally Identifiable Information ("PII") and
electronically stored Protected Health Information ("e-PHI") was
stolen in the data breach.
On August 31, 2023, Postmeds identified a cybersecurity incident
that compromised files containing patients' Personally Identifiable
Information ("PII") and electronically stored Protected Health
Information ("e-PHI"). The information that was breached included
patient name, prescription information, medication type,
prescribing physician and demographic information. On October 30,
2023, Postmeds filed a notice of data breach with the California
Attorney General, and began notifying patients of the incident (the
"Data Breach Notice Letter").
The Data Breach Notice Letter downplayed the severity of the
intrusion stating "Importantly, your social security number was not
involved as Postmeds does not receive this information." The letter
does not offer free access to credit or identify monitoring
services and instead encourages the data breach victims to
"regularly review their information for accuracy, as a best
practice, including information they receive from their healthcare
providers." Further, the Data Breach Notice Letter did not contain
any information about what demographic information was compromised,
the details of the root cause of the data breach, the
vulnerabilities exploited, and the remedial measures undertaken to
ensure such a breach does not occur again.
Given the highly sensitive and confidential nature of the e-PHI
compromised in this incident, Plaintiff and Class members will be
required to expend significant time and effort to mitigate the
effects of this failure by Defendant to safeguard sensitive
information, such as monitoring their credit reports and accounts
for fraud.
Postmeds' failure to comply with HIPAA and other laws and/or
guidelines as alleged herein by, among other things, failing to
take reasonable steps to safeguard patients' highly sensitive and
confidential e-PHI, has directly resulted in injury to Plaintiff
and the Class. Given the secret nature of, among other things:
Postmeds' policies, procedures, systems, and controls; the result
of the "investigation" into the incident disclosed in the Data
Breach Notice Letter; and communications among Postmeds and/or the
cybersecurity professionals who conducted the investigation
concerning the data breach referenced in the Data Breach Notice
Letter, Plaintiff believes that further evidentiary support for
their claims will be unearthed after a reasonable opportunity for
discovery.
The Plaintiff and Class members bring claims for invasion of their
privacy interests, as established through California's privacy laws
and California's Constitution. In addition, Postmeds' actions
constitute negligence, breach of implied contract, unjust
enrichment, as well as violations of several state consumer
protection and privacy laws, says the complaint.
The Plaintiff was required to provide his private e-PHI to
Defendant as a condition to obtaining services at Postmeds.
Postmeds which operates under the name TruePill, is a
business-to-business vendor that fulfills prescription orders for a
nationwide network of digital pharmacies.[BN]
The Plaintiff is represented by:
Ronald A. Marron, Esq.
Alexis M. Wood, Esq.
Kas L. Gallucci, Esq.
LAW OFFICES OF RONALD A. MARRON
651 Arroyo Drive
San Diego, CA 92103
Phone: (619) 696-9006
Facsimile: (619) 564-6665
Email: ron@consumersadvocates.com
alexis@consumersadvocates.com
kas@consumersadvocates.com
PROG LEASING: Williams Files Suit in D. Utah
--------------------------------------------
A class action lawsuit has been filed against Prog Leasing LLC. The
case is styled as Melanie Williams, Joey Diaz, Laura Robinson, on
behalf of themselves and all others similarly situated v. Prog
Leasing LLC doing business as: Progressive Leasing, Case No.
2:23-cv-00837-DAK (D. Utah, Nov. 15, 2023).
The nature of suit is stated as Other Contract.
Prog Leasing LLC doing business as Progressive Leasing --
https://progleasing.com/ -- provides a rental-or lease- purchase
agreement or in certain states, a rent-to-own agreement, a consumer
rental-purchase agreement, or a lease agreement with an option to
purchase.[BN]
The Plaintiffs are represented by:
Mason A. Barney, Esq.
Tyler J. Bean, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Ave., Ste. 500
New York, NY 10151
Phone: (212) 532-1091
Email: mbarney@sirillp.com
- and -
Jason R. Hull, Esq.
MARSHALL OLSON & HULL PC
10 EXCHANGE PL STE 350
SALT LAKE CITY, UT 84111
Phone: (801) 456-7655
Email: jhull@mohtrial.com
PROVIDENCE ST: Spencer Suit Removed to W.D. Washington
------------------------------------------------------
The case captioned as Shannon Spencer, individually and on behalf
of all others similarly situated v. PROVIDENCE ST. JOSEPH HEALTH
FOUNDATION, a Washington nonprofit corporation doing business as
PROVIDENCE, and DOES 1-20, Case No. MDL 2873 was removed from the
Superior Court of the State of Washington in and for the County
of King, to the United States District Court for the Western
District of Washington on Nov. 10, 2023, and assigned Case No.
2:23-cv-01723.
The Complaint asserts 3 causes of action against Defendant on
behalf of Plaintiff and the putative class, including: violation of
RCW 49.58.110; injunctive relief; and declaratory relief.[BN]
The Defendants are represented by:
Todd L. Nunn, Esq.
Patrick M. Madden, Esq.
K&L GATES LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-1158
Phone: +1 206 623 7580
Fax: +1 206 623 7022
Email: todd.nunn@klgates.com
patrick.madden@klgates.com
QUASI CORPORATION: Sinkfield Files Suit in M.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against The Quasi Corporation
of America, Etc. The case is styled as Deon Sinkfield, Jr.,
Individually and on behalf of all others similarly situated v. The
Quasi Corporation of America, Etc, Case No. 1:23-cv-01883-KM (M.D.
Pa., Nov. 13, 2023).
The nature of suit is stated as Other Civil Rights for Civil Rights
Act.
A quasi-corporation is an entity that exercises some of the
functions of a corporation, but has not been granted separate legal
personality by statute.[BN]
The Plaintiff appears pro se.
RADIUS GLOBAL: Hudgins' Bid for Jurisdictional Discovery Denied
---------------------------------------------------------------
Magistrate Judge Tony N. Leung of the U.S. District Court for the
District of Minnesota denies the Plaintiff's motion for limited
jurisdictional discovery in the lawsuit captioned Bobbie Hudgins,
individually, and on behalf of all others similarly situated,
Plaintiff v. Radius Global Solutions, LLC, Defendant, Case No.
0:23-cv-03025-ECT-TNL (D. Minn.).
The matter comes before the Court on Plaintiff Bobbie Hudgins's
Motion for Limited Jurisdictional Discovery and to Extend the
Deadline to Amend Her Complaint, and her Amended Class Action
Complaint. Defendant Radius Global Solutions, LLC ("Radius Global")
has not yet appeared in this action. Further, as no hearing date
was obtained or hearing requested, the Court has determined this
matter on the papers.
The Plaintiff filed this putative class action, asserting
jurisdiction under 28 U.S.C. Section 1332(d)(2)(A), which provides
that a federal court will have original jurisdiction over a class
action in which the matter in controversy exceeds the sum or value
of $5 million, and any member of a class of plaintiffs is a citizen
of a state different from any defendant.
The Plaintiff is a citizen of Florida. As initially alleged,
Radius Global is a limited liability corporation, whose principal
place of business is in Minnesota.
The magistrate judge previously assigned to this matter issued an
order directing the Plaintiff to file an Amended Complaint. The
Order noted that the initial Class Action Complaint lacked
information about the citizenship of the members of Radius Global
to confirm that at least one class member is a citizen of a state
different than Radius Global. The Plaintiff was ordered to file an
Amended Complaint curing the jurisdictional deficiency by
adequately pleading the jurisdictional facts with respect to Radius
Global's citizenship. The matter was subsequently transferred to
Judge Leung as related to other matters brought against Radius
Global.
The Plaintiff subsequently filed the instant motion, seeking
limited discovery for purposes of determining (1) the citizenship
of the members and any sub-members of Radius Global; and (2) the
states to which Radius Global sent notices to individuals of the
subject data breach. The Plaintiff's motion detailed her
investigation to date into Radius Global's members and their
citizenship. The Plaintiff also sought additional time to file her
amended complaint.
A few days later, the Plaintiff filed the Amended Class Action
Complaint. In the Amended Class Action Complaint, the Plaintiff
alleges, among other things, that Defendant Radius Global
Solutions, LLC, is a Minnesota limited liability company organized
under the laws of the State of Minnesota, with a principal place of
business in Minneapolis, Minnesota, and that Defendant Radius
Global, LLC, is a wholly owned subsidiary of NGI Acquisitions, LLC,
which is a wholly owned subsidiary of NGI Investments, LLC. NGI
Investments, LLC, has reported in court filings that it has 475
members, and at least some have citizenship in Massachusetts, New
York, Georgia, Florida, and Minnesota. As a result, the Defendant
is a citizen of the state of Minnesota.
Judge Leung holds that the Plaintiff's motion is denied without
prejudice as to the request for early jurisdictional discovery and
denied as moot with respect to the request for additional time to
file an amended complaint. At this stage of the proceedings, the
Court is satisfied that the Amended Class Action Complaint has
adequately addressed the jurisdictional deficiency identified in
the prior Order for purposes of alleging the minimal diversity
required under Section 1332(d)(2)(A).
Accordingly, the Court concludes that there is no good cause for
expedited discovery at this time.
Based on the foregoing, and all the files, records, and proceedings
herein, Judge Leung denies the Plaintiff's Motion for Limited
Jurisdictional Discovery and to Extend the Deadline to Amend Her
Complaint. Such denial is without prejudice as to the request for
early jurisdictional discovery and as moot with respect to the
request for additional time to file an amended complaint.
A full-text copy of the Court's Order dated Nov. 6, 2023, is
available at https://tinyurl.com/6vrvd9md from PacerMonitor.com.
RICHARD MONTGOMERY: Thomas Files Suit in M.D. Tennessee
-------------------------------------------------------
A class action lawsuit has been filed against Richard Montgomery,
et al. The case is styled as Carvin Thomas, Terrell Lawrence, on
behalf of themselves and others similarly situated v. Richard
Montgomery, as Chairman of the Tennessee Board of Parole; Zane
Duncan, as a Member of the Tennessee Board of Parole; Gary Faulcon,
as a Member of the Tennessee Board of Parole; Tim Gobble, as a
Member of the Tennessee Parole Board; Mae Beavers, as a Member of
the Tennessee Board of Parole; Roberta Kustoff, as a Member of the
Tennessee Parole Board; Barrett Rich, as a Member of the Tennessee
Board of Parole; Case No. 3:23-cv-01204 (D. Alaska, Nov. 15,
2023).
The nature of suit is stated as Prisoner Civil Rights.
Richard Montgomery --
https://www.tn.gov/bop/about-us/information/abtus-info-board-members.html
-- is the Chairman of the Tennessee Board of Parole.[BN]
The Plaintiffs are represented by:
Drew Justice, Esq.
THE JUSTICE LAW OFFICE
1902 Cypress Drive
Murfreesboro, TN 37130
Phone: (615) 419-4994
Fax: (877) 768-8271
Email: drew@justicelawoffice.com
ROCK GATE: Thomas Sues Over Unpaid Minimum and Overtime Wages
-------------------------------------------------------------
Vito Thomas, individually and on behalf of all others similarly
situated v. Rock Gate Capital, LLC, an Illinois Corporation, Case
No. 1:23-cv-15879 (N.D. Ill., Nov. 11, 2023), is brought arising
under the Fair Labor Standards Act ("FLSA"), Illinois Minimum Wage
Law ("IMWL"), Illinois Wage Payment and Collection Act ("IWPCA"),
for Defendant's failure to pay Plaintiff and other
similarly-situated employees all earned minimum and overtime
wages.
The Plaintiff, the Collective Members and the IMWL Class Members
regularly worked in excess forty hours in a given workweek.
However, Rock Gate failed to pay Plaintiff, the Collective Members
and the IMWL Class Members any overtime whatsoever for their work
which was in excess of forty hours in any given workweek. The
Plaintiff worked no less than 86.67 hours. However, Plaintiff was
not paid any overtime whatsoever for the hours which he worked that
were in excess of forty hours in either week that pay period.
The IMWL Class Members and the Collective Members were likewise
paid a base wage with the opportunity to earn non-discretionary
commissions and bonuses. The IMWL Class Members and the Collective
Members likewise worked in excess of 40 hours in a given workweek
during the three-years prior to the filing of this lawsuit. The
IMWL Class Members and the Collective Members likewise were not
paid any overtime whatsoever for their work which was in excess of
forty hours in any given workweek, says the complaint.
The Plaintiff was employed by Rock Gate as a sales representative
from February, 2020 through October, 2023.
Rock Gate owns and operates 160 Driving Academy, a school that
provides truck driver training classes at dozens of locations
nationwide.[BN]
The Plaintiff is represented by:
Michael L. Fradin, Esq.
8401 Crawford Ave. Ste. 104
Skokie, IL 60076
Phone: 847-986-5889
Facsimile: 847-673-1228
Email: mike@fradinlaw.com
- and -
James L. Simon, Esq.
SIMON LAW CO.
11 1/2 N. Franklin Street
Chagrin Falls, OH 44022
Phone: (216) 816-8696
Email: james@simonsayspay.com
SEAWORLD ENTERTAINMENT: Continues to Defend Burns Class Suit
------------------------------------------------------------
Seaworld Entertainment Inc. disclosed in its Form 10-Q Report for
the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Burns class suit in the
United States District Court for the Eastern District of
Pennsylvania.
On July 27, 2022, a purported class action was filed in the United
States District Court for the Eastern District of Pennsylvania
against the Company captioned Quinton Burns individually and Next
Friend of K.B., a minor v. SeaWorld Parks & Entertainment, Inc. and
SeaWorld Parks & Entertainment LLC, Civil Case No. 2:22-cv-09941.
The complaint states the putative class consists of Quinton Burns
and K.B. Burns and similarly situated Black people.
Plaintiffs then filed an amended complaint adding an additional
seven adult and seven minor class representative plaintiffs in
which they allege the class consists of themselves and similarly
situated minority persons and also disclosed an additional 89
families and 125 children represented by Plaintiffs' counsel who
are allegedly members of the purported class (the "First Amended
Complaint").
The First Amended Complaint alleges the Company engaged in
disparate treatment of class members based on their race and in so
doing violated the Civil Rights Act of 1866 and Pennsylvania common
law.
The First Amended Complaint seeks compensatory and punitive damages
and attorneys’ fees and costs as well declarative and injunctive
relief.
The Company filed a motion to dismiss all counts and a motion to
strike certification of the class.
The Court granted the motion to dismiss with prejudice as to the
negligent training and hiring claims, without prejudice as to the
negligent supervising claim, and denied the motion as to the 42 USC
1981 and negligence per se claims.
Regarding the motion to strike class certification, the Court
denied the motion on the grounds it is premature.
The Company intends to refile the motion to strike class
certification if and when the Plaintiffs file a motion to certify
the class.
The Company believes that the lawsuit is without merit and intends
to defend it vigorously.
SeaWorld Entertainment, Inc., through its wholly-owned subsidiary,
SeaWorld Parks & Entertainment, Inc., owns and operates twelve
theme parks within the United States.
SET ENTERPRISES: Wallace Sues Over Unpaid Wages, Illegal Kickbacks
------------------------------------------------------------------
JAZZMYN WALLACE AND ALISHIA TALIAFERRO, individually and on behalf
of all similarly situated entertainers, Plaintiffs v. THE SET
ENTERPRISES, INC. DBA THE CHEETAH HALLANDALE, JULIE RODRIGUEZ, AND
JOSE RODRIGUEZ, Defendants, Case No. 1:23-cv-24261 (S.D. Fla., Nov.
7, 2023) seeks to recover the applicable minimum wage under Florida
law, including unlawful "kick-backs," liquidated damages and
reasonable attorneys' fees and costs under the Fair Labor Standards
Act and the Florida Minimum Wage Act.
Plaintiffs Wallace and Taliafero were employed by the Defendants as
exotic dancers to work at adult entertainment club The Cheetah
Hallandale from 2018 to 2022.
The Set Enterprises, Inc. owns and operates the adult entertainment
club based in Florida.[BN]
The Plaintiffs are represented by:
Carlos V. Leach, Esq.
THE LEACH FIRM, P.A.
1560 N. Orange Ave., Suite 600
Winter Park, FL 32789
Telephone: (407) 574-4999
Facsimile: (833) 813-7513
E-mail: cleach@theleachfirm.com
STAKE CENTER: Kinsey Sues Over Company's Unfair Labor Practices
---------------------------------------------------------------
JAQUAN KINSEY, individually and for all others similarly situated,
Plaintiff v. STAKE CENTER LOCATING, INC., Defendant, Case No.
161185/2023 (N.Y. Sup., New York Cty., November 15, 2023) seeks to
recover unpaid wages and other damages from Stake Center Locating,
Inc.
Plaintiff Kinsey worked for SCL as a Utility Locator (also referred
to as a "Field Technician") in and around New York, NY from
approximately August 2019 until August 2022. Throughout his
employment, SCL subjected Kinsey to its uniform practice of
requiring him to clock out for 30 minutes a day for so-called "meal
breaks." But throughout his employment, SCL required Kinsey to
perform compensable work during his "off the clock" meal breaks
without pay. In addition, SCL subjected Kinsey to its uniform
"on-call" shift practice, forcing him to be "on-call" 24/7 and
respond to unscheduled tickets without the required 72-hours'
advance written notice. The Plaintiff further asserts that he also
received a taxable automobile allowance as compensation that SCL
intentionally excluded when calculating his regular rate of pay for
overtime purposes.
Headquartered in Greensboro, NC, SCL provides utility locating
services in 48 states. [BN]
The Plaintiff is represented by:
Dana M. Cimera, Esq.
Joseph A. Fitapelli, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
STAR RENOVATIONS: Brown Sues Over Unpaid Wages, Retaliation
-----------------------------------------------------------
ENOCH BROWN, on behalf of himself, FLSA Collective Plaintiffs and
the Class, Plaintiff v. STAR RENOVATIONS NY LTD. d/b/a STAR
RENOVATIONS NY, and ELI ZIKRY, Defendants, Case No. 1:23-cv-08319
(E.D.N.Y., Nov. 8, 2023) arises from the Defendants' violations of
the Fair Labor Standards Act, the New York Labor Law, and the New
York State Earned Safe and Sick Time Act.
The Plaintiff seeks to recover from Defendants: (1) unpaid wages,
including overtime, due to fixed salary, (2) unpaid wages,
including overtime, due to Defendants' time-shaving policy, (3)
unpaid "spread of hours" premium, (4) compensation for late payment
of wages, (5) statutory penalties for failing to provide wage and
hour notices upon hiring and as legally required thereafter, (6)
statutory penalties for failing to provide proper wage statements
for each payment period, (7) liquidated damages, and (8) attorneys'
fees and costs.
The Plaintiff further alleges, on an individual basis, that
Defendants violated the New York State Earned Safe and Sick Time
Act when they refused to allow Plaintiff to seek medical attention
when he had an accident on the job. When Plaintiff complained and
asserted his rights under the ESSTA, Defendants fired him, says the
Plaintiff.
The Plaintiff was hired by Defendants in April 2023 to work as a
construction driver. He was employed by Defendants until on or
about July 2023, when his employment with Defendants ended.
Star Renovations NY Ltd. is a home improvement contractor based in
New York.[BN]
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
STATE FARM: $65K Awarded to Class Representatives in Arnold Suit
----------------------------------------------------------------
Judge Terry F. Moorer of the U.S. District Court for the Southern
District of Alabama, Northern Division, grants service awards to
the named plaintiff and class representatives in the lawsuit
entitled ANNIE ARNOLD, individually and on behalf of all others
similarly situated, Plaintiffs v. STATE FARM FIRE AND CASUALTY
COMPANY, Defendants, Case No. 2:17-cv-00148-TFM-C (S.D. Ala.).
Pending before the Court is Plaintiffs' Unopposed Renewed Motion
for Service Awards to the Class Representatives, filed May 2, 2023,
accompanied by the brief in support. The Defendant also files its
separate statement, in which it takes no position as to the
motion.
On Oct. 4, 2022, the Court approved the class action settlement and
granted the motion for attorneys' fees and litigation costs, but
denied without prejudice the request for service awards. The Court
held in abeyance its determination on the request for service
awards for the Named Plaintiff and Additional Class Representatives
based upon some developing law within the Eleventh Circuit.
The Court notes some contradictory legal authority based on the
recent holdings in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244
(11th Cir. 2020). Specifically, Johnson held that awards that
compensate a class representative for his time are prohibited.
However, Johnson was in the context of federal claims brought under
the Telephone Consumer Protection Act.
Following Johnson, a number of district courts in the Eleventh
Circuit have found class representative service awards are still
permitted under certain circumstances. The Court agrees with its
several sister courts in this Circuit that Johnson v. NPAS
Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), is inapplicable in
diversity jurisdiction cases where the underlying claims arise
under state law.
Here, the Court is sitting in diversity jurisdiction and the
Plaintiffs' claims arise under Alabama law. Thus, under the Erie
doctrine, state law determines whether service awards for class
representatives are permitted (see Erie R.R. Co. v. Tompkins, 304
U.S. 64, 58 S. Ct. 817. 82 L. Ed. 1188 (1938)).
Thus, because the underlying claims in this action arise out of
state law, the Court finds that class representative service awards
are permitted here.
Having determined that class representative service awards are
permissible, the Court now turns to the specific amounts requested
and the appropriateness of the request as a whole. Class Counsel
requests service awards in the amount of $20,000 Annie Arnold
(Named Plaintiff and Class Representative) and the $15,000 to each
of the Additional Class Representatives Bobby Abney, Tina Daniel,
and Kenneth Scruggs.
As noted in its prior order approving the settlement, only after
the negotiated settlement did the Parties negotiate potential
attorneys' fees, costs, and service awards. State Farm's payments
to Class Members will not be reduced by the separate amounts paid
for class service awards. Instead, the attorneys' fees, costs, and
expenses will be paid "over and above" the amounts paid to class
members. Therefore, Judge Moorer says, the service awards will not
reduce the recovery by any class member.
The representative service awards to be paid by State Farm,
likewise are fair and reasonable under the circumstances, Judge
Moorer holds. The Court finds that this case went through several
years of litigation prior to the approval of the settlement to
include heavily contested motions, an extensive discovery process,
and a contested class action certification. Judge Moorer points out
that the amounts sought are reasonable under the circumstances
presented in this case.
Accordingly, the Court grants the Plaintiffs' Unopposed Renewed
Motion for Service for Service Awards to the Class Representatives.
Therefore, the Court awards Annie Arnold (Named Plaintiff and Class
Representative) $20,000 and awards Bobby Abney (Additional Class
Representative), Tina Daniel (Additional Class Representative), and
Kenneth Scruggs (Additional Class Representative) $15,000 each. The
Court directs that State Farm will pay such amounts pursuant to the
terms of the Agreement.
The Court previously entered a Partial Judgment pursuant to Fed. R.
Civ. P. 54(b) as to the remaining matters presented in this case.
The resolution of the class representative awards resolves the
final outstanding matter in this case. Therefore, the Court will
separately enter final judgment in this matter pursuant to Fed. R.
Civ. P. 58.
A full-text copy of the Court's Memorandum Opinion and Order dated
Nov. 6, 2023, is available at https://tinyurl.com/4vwnexyf from
PacerMonitor.com.
STEEL PARTNERS: Reith Class Suit Trial Set for September 2024
-------------------------------------------------------------
Steel Partners Holdings LP disclosed in its Form 10-Q Report for
the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
court set trial schedule for Reith class suit in September 2024.
Reith v. Lichtenstein, et al. On April 13, 2018, a purported
shareholder of STCN, Donald Reith, filed a verified complaint,
Reith v. Lichtenstein, et al., 2018-0277 (Del. Ch.) (the "Reith
litigation") in the Chancery Court.
The plaintiff sought to assert class action and derivative claims
against the Company and several of its affiliated companies,
together with certain of members STCN's board of directors, as well
as other named defendants (collectively, the "defendants") in
connection with the acquisition of $35,000 of STCN's Series C
Preferred Stock by an affiliate of the Company and equity grants
made to three individual defendants.
The complaint includes claims for breach of fiduciary duty against
all the individual defendants as STCN directors; claims for aiding
and abetting breach of fiduciary duty against the Company; a claim
for breach of fiduciary duty as controlling stockholder against the
Company; and a derivative claim for unjust enrichment against the
Company and the three individuals who received equity grants.
The complaint demands damages in an unspecified amount for STCN and
its stockholders, together with rescission, disgorgement and other
equitable relief.
The defendants moved to dismiss the complaint for failure to plead
demand futility and failure to state a claim.
On June 28, 2019, the Chancery Court denied most of defendants' the
motion to dismiss, allowing the matter to proceed.
The defendants and plaintiff (the "parties") subsequently
participated in document discovery.
On August 13, 2021, the parties, entered into a memorandum of
understanding (the "MOU") in connection with the settlement of the
Reith litigation.
Pursuant to the MOU, the defendants agreed (subject to court
approval) to cause their directors' and officers' liability
insurance carriers to pay to STCN $2,750 in cash.
The Company's insurance carrier agreed to pay $1,100 of the
settlement and STCN's insurance carrier agreed to pay the remaining
$1,650. Following the parties' entry into a Stipulation and
Agreement of Compromise, Settlement, and Release (the "Proposed
Settlement Agreement") on February 18, 2022, on March 17, 2022, the
Chancery Court granted, with modifications, a scheduling order (the
"Scheduling Order") in connection with the Proposed Settlement
Agreement.
Pursuant to the Scheduling Order, during April 2022 the insurers
completed the wiring of the settlement payments into an account
jointly controlled by counsel for plaintiff and STCN, where the
funds are to remain until final court approval of the settlement.
In addition, pursuant to the terms of the MOU, certain of the
individual defendants who are also current and former employees of
the Company—Warren Lichtenstein (Executive Chairman), Jack Howard
(President), and William Fejes (former Chief Operating
Officer)—entered into separate letter agreements (the "Surrender
Agreements") with STCN whereby they each agreed to surrender to
STCN an aggregate 3,300,000 shares which they had initially
received in December 2017 in consideration for services to STCN.
Pursuant to the MOU and the Surrender Agreements, on August 17,
2021, Mr. Lichtenstein surrendered 2,133,333 Steel Connect shares
(1,833,333 vested shares and 300,000 unvested shares), and Mr.
Howard surrendered 1,066,667 Steel Connect shares (916,667 vested
shares and 150,000 unvested shares). Also pursuant to the MOU and
the Surrender Agreements, Mr. Fejes surrendered 100,000 vested
shares in December 2021.
After the parties filed papers in support of court approval of the
settlement, and an objector filed papers in opposition to approval
of the settlement, and after hearings held on August 12 and August
18, 2022, and after the parties and insurers agreed to modify the
proposed settlement to increase by $250 the cash to be paid by the
insurers, the court ruled on September 23, 2022 that it was denying
approval of the settlement.
The funds previously paid into escrow were returned to the
insurance carriers. In connection with rejection of the settlement,
it was no longer probable the Company had a liability for the
proposed settlement liability nor receivable for the related
insurance coverage and therefore both amounts were no longer
accrued.
On September 12, 2023, the court approved a stipulated pretrial and
trial schedule culminating in a trial scheduled for September 2024.
The possible liability, if any, with respect to this dispute cannot
be determined as of this date.
STURM RUGER & CO: Faces Consolidated Suit Over Vendor Data Breach
-----------------------------------------------------------------
Sturm, Ruger & Company, Inc. disclosed in its Form 10-Q report for
the fiscal year ended September 30, 2023, filed with the Securities
and Exchange Commission on November 1, 2023, that the company was
named in a purported class action lawsuit arising out of a data
breach at Freestyle Solutions, Inc., the vendor who hosted the
company's ShopRuger.com website at the time of the breach.
Case captioned "Copeland v. Sturm, Ruger & Company, et al." was
filed in the U.S. District Court for New Jersey on October 27,
2022. Copeland also named Freestyle Solutions, Inc. as a defendant.
By agreement of the parties, Copeland was dismissed, without
prejudice, and consolidated with another case pending in
Connecticut. On January 20, 2023, five plaintiffs filed an Amended
Complaint naming the company and Freestyle Software, Inc. as
defendants.
The complaint alleges causes of action for negligence, breach of
implied warranties, and unjust enrichment. The company filed a
Motion to Dismiss on a variety of grounds. The matter has been
briefed fully, and a decision is pending.
Sturm, Ruger & Company, Inc. is principally engaged in the design,
manufacture, and sale of firearms to domestic customers and
manufactures investment castings made from steel alloys and metal
injection molding parts for internal use in its firearms and for
sale to unaffiliated, third-party customers.
TEACHERS INSURANCE: Lopez Suit Transferred to D. Massachusetts
--------------------------------------------------------------
The case styled as Andre Lopez, on behalf of himself and all others
similarly situated v. Teachers Insurance and Annuity Association of
America, Case No. 1:23-cv-06956 was transferred from the U.S.
District Court for the Southern District of New York, to the U.S.
District Court for the District of Massachusetts on Nov. 15, 2023.
The District Court Clerk assigned Case No. 1:23-cv-12772-ADB to the
proceeding.
The nature of suit is stated as Other Personal Property for
Property Damage.
The Teachers Insurance and Annuity Association of America-College
Retirement Equities Fund -- https://www.tiaa.org/public/ -- is an
American financial services organization that is a private provider
of financial retirement services in the academic, research,
medical, cultural and governmental fields.[BN]
The Plaintiff is represented by:
Blake Hunter Yagman, Esq.
Israel David, Esq.
ISRAEL DAVID LLC
17 State Street, Suite 4010
New York, NY 10004
Phone: (212) 739-0622
Email: blake.yagman@davidllc.com
israel@israeldavidllc.com
The Defendants are represented by:
Aravind Swaminathan, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
401 Union Street, Suite 3300
Seattle, WA 98101
Phone: (206) 839-4300
Email: aswaminathan@orrick.com
- and -
Marc Shapiro, Esq.
ORRICK, HERRINGTON, & SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
Phone: (212) 506-3521
Email: mrshapiro@orrick.com
- and -
Rebecca Harlow, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
Phone: (415) 773-5700
Email: rharlow@orrick.com
TEACHERS INSURANCE: Marshall Suit Transferred to D. Massachusetts
-----------------------------------------------------------------
The case styled as Patricia Marshall, individually and on behalf of
all others similarly situated v. Teachers Insurance and Annuity
Association of America, Case No. 1:23-cv-08087 was transferred from
the U.S. District Court for the Southern District of New York, to
the U.S. District Court for the District of Massachusetts on Nov.
15, 2023.
The District Court Clerk assigned Case No. 1:23-cv-12787-ADB to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The Teachers Insurance and Annuity Association of America-College
Retirement Equities Fund -- https://www.tiaa.org/public/ -- is an
American financial services organization that is a private provider
of financial retirement services in the academic, research,
medical, cultural and governmental fields.[BN]
The Plaintiff is represented by:
David S. Almeida, Esq.
BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP
333 W. Wacker Dr., Suite 1900
Chicago, IL 60606
Phone: (312) 212-4954
The Defendants are represented by:
Marc Shapiro, Esq.
ORRICK, HERRINGTON, & SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
Phone: (212) 506-3521
Email: mrshapiro@orrick.com
TEACHERS INSURANCE: Newman Suit Transferred to D. Massachusetts
---------------------------------------------------------------
The case styled as Joyce Newman, on behalf of herself and all
others similarly situated v. Teachers Insurance and Annuity
Association of America, Case No. 1:23-cv-08641 was transferred from
the U.S. District Court for the Southern District of New York, to
the U.S. District Court for the District of Massachusetts on Nov.
15, 2023.
The District Court Clerk assigned Case No. 1:23-cv-12788-ADB to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The Teachers Insurance and Annuity Association of America-College
Retirement Equities Fund -- https://www.tiaa.org/public/ -- is an
American financial services organization that is a private provider
of financial retirement services in the academic, research,
medical, cultural and governmental fields.[BN]
The Plaintiff is represented by:
Kevin Sylvan Landau, Esq.
TAUS, CEBULASH & LANDAU, LLP
123 William Street, Suite 1900a
New York, NY 10038
Phone: (646) 873-7654
Email: klandau@tcllaw.com
The Defendants are represented by:
Marc Shapiro, Esq.
ORRICK, HERRINGTON, & SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
Phone: (212) 506-3521
Email: mrshapiro@orrick.com
TEACHERS INSURANCE: Smuda Suit Transferred to D. Massachusetts
--------------------------------------------------------------
The case styled as Gwendolyn Smuda, Steven Checchia, on behalf of
themselves and all others similarly situated v. Teachers Insurance
and Annuity Association of America, Case No. 1:23-cv-07020 was
transferred from the U.S. District Court for the Southern District
of New York, to the U.S. District Court for the District of
Massachusetts on Nov. 15, 2023.
The District Court Clerk assigned Case No. 1:23-cv-12773-ADB to the
proceeding.
The nature of suit is stated as Other Contract.
The Teachers Insurance and Annuity Association of America-College
Retirement Equities Fund -- https://www.tiaa.org/public/ -- is an
American financial services organization that is a private provider
of financial retirement services in the academic, research,
medical, cultural and governmental fields.[BN]
The Plaintiffs are represented by:
Andrew Shamis
SHAMIS & GENTILE P.A.
14 N.E. 1st Ave., Ste. 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
The Defendants are represented by:
Aravind Swaminathan, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
401 Union Street, Suite 3300
Seattle, WA 98101
Phone: (206) 839-4300
Email: aswaminathan@orrick.com
- and -
Marc Shapiro, Esq.
ORRICK, HERRINGTON, & SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
Phone: (212) 506-3521
Email: mrshapiro@orrick.com
- and -
Rebecca Harlow, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
Phone: (415) 773-5700
Email: rharlow@orrick.com
TELEPHONE & DATA SYSTEMS: Faces Shareholder Suit Over SEC Filing
----------------------------------------------------------------
Telephone and Data Systems, Inc. (TDS) disclosed in its Form 10-Q
for the quarterly period ended September 30, 2023, filed with the
Securities and Exchange Commission on November 3, 2023, that on May
2, 2023, a putative stockholder class action was filed against TDS
and UScellular and certain current and former officers and
directors in the United States District Court for the Northern
District of Illinois.
An amended complaint was filed on September 1, 2023, which names
TDS, UScellular, and certain current UScellular officers and
directors as defendants, and alleges that certain public statements
made between May 6, 2022 and November 3, 2022 regarding, among
other things, UScellular's business strategies to address
subscriber demand, violated Section 10(b) and 20(a) of the
Securities Exchange Act of 1934. The plaintiff seeks to represent a
class of stockholders who purchased TDS equity securities during
the potential class period and demands unspecified monetary
damages.
TDS is a diversified telecommunications company that provides
communications and wireless services through its 83%-owned
subsidiary, United States Cellular Corporation (UScellular). TDS
also provides broadband, video and voice services through its
wholly-owned subsidiary, TDS Telecommunications LLC (TDS Telecom).
TDS operates entirely in the United States. UScellular and TDS
Telecom are reporting segments of TDS.
TRADESMEN INTERNATIONAL: Hendrix Suit Removed to C.D. California
----------------------------------------------------------------
The case captioned as Jonathan D. Hendrix, on behalf of himself and
all others similarly situated v. TRADESMEN INTERNATIONAL, LLC, a
Delaware limited liability company; W.G. YATES & SONS CONSTRUCTION
COMPANY, a Mississippi corporation; and DOES 1 through 100,
Inclusive, Case No. 23STCV22804 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 Nov. 13, 2023, and assigned Case No. 2:23-cv-09600.
In the Complaint, Plaintiff alleges six causes of action against
Defendant: Failure to Pay Overtime Wages; Failure To Provide Meal
Periods; Failure To Provide Rest Periods; Failure To Pay All Wages
Upon Termination; Failure To Provide Accurate Wage Statements; and
Unfair Competition.[BN]
The Defendants are represented by:
Robert R. Roginson, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Phone: 213-239-9800
Facsimile: 213-239-9045
Email: robert.roginson@ogletree.com
- and -
Michael J. Nader, Esq.
Paul M. Smith, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
500 Capitol Mall, Suite 2500
Sacramento, CA 95814
Phone: 916.840-3150
Facsimile: 916-840-3159
Email: michael.nader@ogletree.com
paul.smith@ogletree.com
TRADITIONS HEALTH: Arnett Suit Removed to C.D. California
---------------------------------------------------------
The case captioned as Rebecca Arnett, an individual and on behalf
of all others similarly situated v. TRADITIONS HEALTH LLC, a
Delaware limited liability company; MARY BRACKETT, an individual;
and DOES 1 through 100, inclusive, Case No. CVRI2305219 was removed
from the Superior Court of the State of California for the County
of Riverside, to the United States District Court for the Central
District of California on Nov. 13, 2023, and assigned Case No.
5:23-cv-02324.
In this action, Plaintiff's Complaint asserts ten causes of action
for: "Failure To Pay Overtime Wages"; "Failure To Pay Minimum
Wages"; "Failure To Provide Meal Periods"; "Failure To Provide Rest
Periods"; "Waiting Time Penalties"; "Wage Statement Violations";
"Failure To Timely Pay Wages"; "Failure To Indemnify"; and "Unfair
Competition".[BN]
The Defendants are represented by:
Jonathan L. Brophy, Esq.
Michael Afar, Esq.
Romtin Parvaresh, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Phone: (310) 277-7200
Facsimile: (310) 201-5219
Email: jbrophy@seyfarth.com
mafar@seyfarth.com
rparvaresh@seyfarth.com
TRINITY MANAGEMENT: Hart Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against Trinity Management
LLC, et al. The case is styled as Angela Hart, on behalf of herself
and all others similarly situated v. Trinity Management LLC, Does
1-50, Inclusive, Case No. CGC23610421 (Cal. Super. Ct., San
Francisco Cty., Nov. 13, 2023).
The case type is stated as "Other Non-Exempt Complaints."
Trinity Management LLC -- https://trinitymanagementllc.net/ --
specialize in managing properties in urban communities.[BN]
The Plaintiff is represented by:
Mehrdad Bokhour, Esq.
BOKHOUR LAW GROUP, PC
1901 Avenue Of The Stars, Ste. 450
Los Angeles, CA 90067-6006
Phone: 310-975-1493
Fax: 310-675-0861
Email: mehrdad@bokhourlaw.com
- and -
Joshua Samson Falakassa, Esq.
FALAKASSA LAW PC
1901 Avenue of the Stars Suite No 450
Los Angeles, CA 90067
Phone: (818) 456-6168
Fax: (888) 505-0868
Email: josh@falakassalaw.com
TWIN CITIES COMICS: Hernandez Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Twin Cities Comics,
LLC. The case is styled as Emily Hernandez, individually and on
behalf of all others similarly situated v. Twin Cities Comics, LLC,
Case No. 1:23-cv-09986 (S.D.N.Y., Nov. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Twin Cities Comics -- https://twincitiescomics.com/ -- is a
collectibles company specializing in celebrity signed memorabilia &
CGC graded comics.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
UNIQUE FABRICATING: Eaton Files Suit in D. Delaware
---------------------------------------------------
A class action lawsuit has been filed against Unique Fabricating,
Inc., et al. The case is styled as Timothy Eaton, on behalf of the
Plaintiff and all those similarly-situated v. Unique Fabricating,
Inc., Unique Fabricating Inc., Case No. 23-50760-KBO (D. Del., Nov.
12, 2023).
The nature of suit is stated as Other (e.g. other actions that
would have been brought in state court if unrelated to
bankruptcy).
Unique Fabricating Inc. -- https://www.uniquefab.com/ -- is engaged
in the engineering and manufacture of multi-material foam, rubber,
and plastic components utilized in noise, vibration and harshness,
acoustical management, water and air sealing, decorative and other
functional applications.[BN]
The Plaintiff is represented by:
Jonathan Miller, Esq.
LANKENAU & MILLER
100 Church Street, 8th Floor
New York, NY 10007
- and -
James E. Huggett
MARGOLIS EDELSTEIN
300 Delaware Ave., Suite 800
Wilmington, DE 19801 U.S.A
Phone: (302) 888-1112
Fax: (302) 888-1119
Email: jhuggett@margolisedelstein.com
The Defendants appear pro se.
UNITED STATES: Faces Tang Suit Over Unlawful Biometric Fee Charges
------------------------------------------------------------------
TONY TANG and GILBERTO TORRES GOMEZ, on behalf of themselves and
all others similarly situated, Plaintiffs v. UNITED STATES OF
AMERICA, Defendant, Case No. 1:23-cv-09885 (S.D.N.Y., Nov. 8, 2023)
is a class action lawsuit under the Tucker Act to recover biometric
fees that United States Citizenship and Immigration Services
unlawfully charges millions of immigrants, including Plaintiffs, in
many instances more than once, in contravention of its statutory
and regulatory mandates.
According to the complaint, the fees violate the authorizing
statute, which requires USCIS to set fees at the level needed to
recover the costs of its correlated services, because USCIS itself
admits that these fees are set much higher than that maximum level.
And the fees violate USCIS' own implementing regulation because for
millions of applicants, USCIS does not provide the services that
the regulation requires it to provide to collect these fees.
Immigration applicants who are required to pay the biometric fee
end up paying this $85 fee -- often more than once -- on top of the
hundreds of dollars of other fees charged by USCIS. Despite USCIS'
repeated public statements that filing fees are not intended to
generate general revenue, these inflated and unauthorized biometric
fees generate millions of dollars in surplus revenue for the agency
each year, says the suit.
Plaintiff Tang is a naturalized U.S. citizen who immigrated from
Canada and currently owns a marketing agency in New York City.
Plaintiff Gomez is a naturalized U.S. citizen who immigrated from
Mexico and currently works as a project administrator for a
construction consulting company in New York City.
The U.S. Citizenship and Immigration Services is an agency of the
United States Department of Homeland Security that administers the
country's naturalization and immigration system.[BN]
The Plaintiffs are represented by:
Geng Chen, Esq.
Beatrice C. Franklin, Esq.
Dinis Cheian, Esq.
SUSMAN GODFREY L.L.P.
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019
Telephone: (212) 336-8330
Facsimile: (212) 336-8340
E-mail: GChen@susmangodfrey.com
BFranklin@susmangodfrey.com
DCheian@susmangodfrey.com
UNIVERSAL PROTECTION: Singh Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Universal Protection
Service, LP, et al. The case is styled as Amarjeet Singh, on behalf
of himself and a class of similarly situated individuals v.
Universal Protection Service, LP, Case No. 23CV011738 (Cal. Super.
Ct., Sacramento Cty., Nov. 15, 2023).
Universal Protection Service was a private security company in the
United States.[BN]
VERRICA PHARMACEUTICALS: Continues to Defend Gorlamari Class Suit
-----------------------------------------------------------------
Verrica Pharmaceuticals Inc. disclosed in its Form 10-Q Report for
the quarterly period ending September 30, 2023 filed with the
Securities and Exchange Commission on November 9, 2023, that the
Company continues to defend itself from the Gorlamari class suit in
the U.S. District Court for the Eastern District of Pennsylvania.
On June 6, 2022, plaintiff Kranthi Gorlamari, or Gorlamari, filed a
putative class action complaint captioned Gorlamari v. Verrica
Pharmaceuticals Inc., et al., in the U.S. District Court for the
Eastern District of Pennsylvania against the Company and certain of
its current and former officers and directors ("Defendants").
Gorlamari filed an amended complaint on January 12, 2023.
The amended complaint alleges that Defendants violated federal
securities laws by, among other things, failing to disclose certain
manufacturing deficiencies at the facility where its contract
manufacturer produced bulk solution for the VP-102 drug device and
that such deficiencies posed a risk to the prospects for regulatory
approval of VP-102 for the treatment of molluscum.
The amended complaint seeks unspecified compensatory damages and
other relief on behalf of Gorlamari and all other persons and
entities which purchased or otherwise acquired its securities
between May 19, 2021 and May 24, 2022.
Briefing on Defendants' motion to dismiss the amended complaint was
completed on May 23, 2023.
The litigation is still in the early stages, and it intends to
vigorously defend itself against these allegations.
Verrica Pharmaceuticals Inc. is a dermatology therapeutics company
developing medications for skin diseases requiring medical
intervention.
W6LS INC: Lizama Files RICO Suit in E.D. California
---------------------------------------------------
A class action lawsuit has been filed against W6LS, Inc. The case
is styled as Jonathan Lizama, Christine Correia, Individually and
On Behalf of all others similarly situated v. W6LS, Inc. d/b/a
WITHU Loans, Caliber Financial Services, Inc., Clarity Services,
Inc., Case No. 2:23-at-01171 (E.D. Cal., Nov. 15, 2023).
The nature of suit is stated as Racketeer/Corrupt Organization for
Racketeering (RICO) Act.
W6LS, Inc. doing business as WithU Loans --
https://www.withuloans.com/ -- offers personal loans up to
$2,500.[BN]
The Plaintiffs are represented by:
Seyed Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP APC
245 Fischer Avenue Suite D1
Costa Mesa, CA 92626
Phone: (800) 400-6808
Fax: (800) 520-5523
Email: ak@kazlg.com
WALT DISNEY: Fails to Apply Anti-Slip Products in Pools, Suit Says
------------------------------------------------------------------
SCOTT THOMPSON, individually and as parent and guardian of his
Minor Child A.T., and DANIELLE THOMPSON, individually and on behalf
of all others similarly situated, Plaintiffs v. THE WALT DISNEY
COMPANY, Defendants, Case No. 2:23-cv-09441 (C.D. Cal., Nov. 8,
2023) is a class action against the Defendants for negligence and
violation of California's Unfair Competition Law and California's
Consumer Legal Remedies Act.
According to the complaint, since at least 2013, Disney has known
or should have known that it's pool area surface is slippery and
that it should apply anti-slip products and/or technology on the
ground to prevent slipping of visitors to Disney Aulani and that it
should provide adequate warnings prior to and at the time of their
arrival that it's grounds are particularly slippery and that it has
failed to apply anti-slip products and/or technology on the ground
to decrease the likelihood of slips and falls. The Defendant has
advertisements and marketing that create a false impression that
their facilities are safe and are for families of all ages and that
they were designed with families in mind, says the suit.
Because Disney does not have, and has never had, an adequate
corporate policy that is reasonably calculated to prevent slipping
on its pool grounds, Plaintiffs seek a permanent injunction against
Disney requiring that Disney, the suit contends.
As a result of Disney's alleged misrepresentations and/or
omissions, Plaintiff Thompson, natural father and guardian of A.T.
(a minor), booked a stay at Aulani, A Disney Resort and Spa, for
her family. On the date of arrival, A.T. slipped on the floor of
the pool deck near the slides.
The Walt Disney Co. is engaged in the sale and marketing of family
vacations, family hotel and resort stays, and family friendly
entertainment, including stays at Aulani, A Disney Resort and
Spa.[BN]
The Plaintiff is represented by:
Francis J. "Casey" Flynn, Jr., Esq.
OFFICE OF FRANCIS J. FLYNN, JR.
6057 Metropolitan Plz.
Los Angeles, CA 90036
Telephone: (314) 662-2836
E-mail: casey@lawofficeflynn.com
WASHINGTON FINE WINE: Atkinson Suit Removed to W.D. Washington
--------------------------------------------------------------
The case captioned as Jacob Atkinson, individually and on behalf of
all others similarly situated v. WASHINGTON FINE WINE & SPIRITS,
LLC, a Washington limited liability company doing business as TOTAL
WINE & MORE; and DOES 1–20, Case No. 23-3-19212-5 SEA was removed
from the Superior Court of the State of Washington for King County,
to the United States District Court for the Western District of
Washington on Nov. 13, 2023, and assigned Case No. 2:23-cv-01737.
The Plaintiff alleges that WFW&S violated the Revised Code of
Washington by failing to post the wage scale or salary range for a
Seattle-based "Sales Associate" job. The law became effective
January 1, 2023.[BN]
The Plaintiff is represented by:
Timothy W. Emery, Esq.
Patrick B. Reddy, Esq.
Paul Cipriani, Esq.
EMERY REDDY, PLLC
600 Stewart Street, Suite 1100
Seattle, WA 98101
Phone: (206) 207-9281
Email: emeryt@emeryreddy.com
reddyp@emeryreddy.com
paul@emeryreddy.com
The Defendants are represented by:
Adam T. Pankratz, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
1201 Third Avenue, Suite 5150
Seattle, WA 98101
Phone: (206) 693-7057
Facsimile: (206) 693-7058
Email: adam.pankratz@ogletree.com
- and -
Mathew A. Parker, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
The KeyBank Building
88 East Broad Street, Suite 2025
Columbus, OH 43215
Phone: (614) 494-0420
Facsimile: (614) 633-1455
Email: mathew.parker@ogletree.com
Asbestos Litigation
ASBESTOS UPDATE: Ampco-Pittsburgh Faces 3,388 Active PI Claims
--------------------------------------------------------------
Ampco-Pittsburgh Corporation, and its business segment, Air &
Liquid Processing, has recorded 3,388 total active claims, for the
nine months ended June 30, 2023, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission.
Claims have been asserted alleging personal injury from exposure to
asbestos-containing components historically used in some products
manufactured by predecessors of Air & Liquid (the "Asbestos
Liability"). Air & Liquid, and in some cases the Corporation, are
defendants (among a number of defendants, often in excess of 50
defendants) in claims filed in various state and federal courts.
The Corporation and Air & Liquid are parties to a series of
settlement agreements ("Settlement Agreement"') with insurers
having coverage obligations for the Asbestos Liability (the
"Settling Insurers"). Under the Settlement Agreements, the Settling
Insurers accept financial responsibility, subject to the terms and
conditions of the respective agreements, including overall coverage
limits, for pending and future claims for the Asbestos Liability.
The Settlement Agreements encompass the majority of insurance
policies providing coverage for claims for the Asbestos Liability.
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/5sxdnr88
ASBESTOS UPDATE: Argo Group Has $50.6MM A&E Net Loss Reserves
-------------------------------------------------------------
Argo Group International Holdings, Ltd. has reported $50.6 million
net loss reserves for the asbestos and environmental exposures in
its run-off lines, for the nine months ended September 30, 2023,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "Run-off Lines include liabilities associated
with other liability policies that were issued in the 1960s, 1970s
and into the 1980s, as well as the former risk-management business
and other business no longer underwritten. Through our subsidiary
Argonaut Insurance Company ("Argonaut"), we are exposed to asbestos
liability at the primary level through claims filed against our
direct insureds, as well as through its position as a reinsurer of
other primary carriers. Argonaut has direct liability arising
primarily from policies issued from the 1960s to the early 1980s,
which pre-dated policy contract wording that excluded asbestos
exposure. The majority of the direct policies were issued on behalf
of small contractors or construction companies. We believe that the
frequency and severity of asbestos claims for such insureds is
typically less than that experienced for large, industrial
manufacturing and distribution concerns."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/5n7emssw
ASBESTOS UPDATE: Ashland Reports $427MM Asbestos Litigation Reserve
-------------------------------------------------------------------
Ashland Inc., in its news release dated November 8, 2023, has
reported $427 million in asbestos litigation reserve, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission.
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/5n948mbx
ASBESTOS UPDATE: Avon Products Has 317 Pending Cases as of Sept. 30
-------------------------------------------------------------------
Natura &Co Holding S.A.'s subsidiary, Avon Products, Inc., as of
September 30, 2023, has reported 317 individual cases pending
(during the nine-month period ended September 30, 2023, 163 new
cases were started and 74 were dismissed, settled or otherwise
resolved), according to the Company's Form 6-K filing with the U.S.
Securities and Exchange Commission.
Many of these actions involve several co-defendants, including
manufacturers of cosmetics and manufacturers of other products
that, unlike the subsidiary Avon's Products, were designed to
contain asbestos.
A full-text copy of the Form 6-K is available at
https://tinyurl.com/ydpt4myf
ASBESTOS UPDATE: BNS Sub Has 55 Pending Claims as of Sept. 30
-------------------------------------------------------------
Steel Partners Holdings L.P.'s majority owned subsidiary, BNS Sub,
has been named as a defendant in multiple alleged asbestos-related
toxic-tort claims filed over a period beginning in 1994 through
September 30, 2023, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
The Company states, "In many cases these claims involved more than
100 defendants. There remained approximately 55 pending asbestos
claims as of September 30, 2023. BNS Sub believes it has
significant defenses to any liability for toxic-tort claims on the
merits. None of these toxic-tort claims has gone to trial and,
therefore, there can be no assurance that these defenses will
prevail. BNS Sub has insurance policies covering asbestos-related
claims for years beginning 1974 through 1988. BNS Sub annually
receives retroactive billings or credits from its insurance
carriers for any increase or decrease in claims accruals as claims
are filed, settled or dismissed, or as estimates of the ultimate
settlement costs for the then-existing claims are revised. As of
both September 30, 2023 and December 31, 2022, BNS Sub has accrued
$1,389 and $1,418 respectively, relating to the open and active
claims against BNS Sub. This accrual includes the amount of unpaid
retroactive billings submitted to the Company by the insurance
carriers and also the Company's best estimate of the likely costs
for BNS Sub to settle these claims outside the amounts funded by
insurance. There can be no assurance that the number of future
claims and the related costs of defense, settlements or judgments
will be consistent with the experience to-date of existing claims
and that BNS Sub will not need to significantly increase its
estimated liability for the costs to settle these claims to an
amount that could have a material effect on the consolidated
financial statements."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/yckfm448
ASBESTOS UPDATE: Emerson Electric Faces Product Liability Claims
----------------------------------------------------------------
Emerson Electric Co. is a party to a number of pending legal
proceedings and claims, including those involving general and
product liability (including asbestos) and other matters, several
of which claim substantial amounts of damages, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission.
The Company accrues for such liabilities when it is probable that
future costs (including legal fees and expenses) will be incurred
and such costs can be reasonably estimated. Accruals are based on
developments to date; management's estimates of the outcomes of
these matters; and the Company's experience in contesting,
litigating and settling similar matters. The Company engages an
outside expert to develop an actuarial estimate of its expected
costs to resolve all pending and future asbestos claims, including
defense costs, as well as its related insurance receivables. The
reserve for asbestos litigation, which is recorded on an
undiscounted basis, is based on projected claims through 2065.
Although it is not possible to predict the ultimate outcome of
these matters, the Company historically has been largely successful
in defending itself against claims and suits that have been brought
against it, and will continue to defend itself vigorously in all
such matters. While the Company believes a material adverse impact
is unlikely, given the inherent uncertainty of litigation, a remote
possibility exists that a future development could have a material
adverse impact on the Company. The Company enters into certain
indemnification agreements in the ordinary course of business in
which the indemnified party is held harmless and is reimbursed for
losses incurred from claims by third parties, usually up to a
prespecified limit. In connection with divestitures of certain
assets or businesses, the Company often provides indemnities to the
buyer with respect to certain matters including, for example,
environmental or unidentified tax liabilities related to periods
prior to the disposition. Because of the uncertain nature of the
indemnities, the maximum liability cannot be quantified. As such,
contingent liabilities are recorded when they are both probable and
reasonably estimable. Historically, payments under indemnity
arrangements have been inconsequential.
A full-text copy of the Form 10-K is available at
https://tinyurl.com/4fxs8t6s
ASBESTOS UPDATE: Enstar Group Has $741MM Net A&E Liabilities
------------------------------------------------------------
Enstar Group Limited has recorded net liabilities relating to
defendant A&E exposures of $741 million, as of September 30, 2023,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/amaecy3t
ASBESTOS UPDATE: FG Group Has $0.3MM Loss Contingency Reserve
-------------------------------------------------------------
FG Group Holdings, Inc., as of September 30, 2023, has a loss
contingency reserve of approximately $0.3 million, which represents
the Company's estimate of its potential losses related to the
settlement of open cases, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission.
The Company states, "In the ordinary course of our business
operations, we are involved, from time to time, in certain legal
disputes. We and certain of our subsidiaries are named as
defendants in personal injury lawsuits based on alleged exposure to
asbestos-containing materials. A majority of the cases involve
product liability claims based principally on allegations of past
distribution of commercial lighting products containing wiring that
may have contained asbestos. Each case names dozens of corporate
defendants in addition to us. In our experience, a large percentage
of these types of claims have never been substantiated and have
been dismissed by the courts. We have not suffered any adverse
verdict in a trial court proceeding related to asbestos claims and
intend to continue to defend these lawsuits. During 2022 and the
first nine months of 2023, we settled three cases, which resulted
in payments totaling $53 thousand. When appropriate, we may settle
additional claims in the future."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/ycb2twt9
ASBESTOS UPDATE: Goodyear Tire Faces 700 New PI Claims
------------------------------------------------------
The Goodyear Tire & Rubber Company is a defendant in numerous
lawsuits alleging various asbestos-related personal injuries
purported to result from alleged exposure to asbestos in certain
products manufactured by the Company or present in certain of its
facilities, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission.
The Company states, "During the first nine months of 2023,
approximately 700 claims were filed against us and approximately
1,500 were settled or dismissed. The amounts expended on asbestos
defense and claim resolution by us and our insurers during the
first nine months of 2023 was $12 million. At September 30, 2023,
there were approximately 36,400 asbestos claims pending against us.
The plaintiffs are seeking unspecified actual and punitive damages
and other relief."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/3j5kr2ut
ASBESTOS UPDATE: Graham Corp. Defends Personal Injury Lawsuits
--------------------------------------------------------------
Graham Corporation has been named as a defendant in lawsuits
alleging personal injury from exposure to asbestos allegedly
contained in, or accompanying, products made by us, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission.
The Company is a co-defendant with numerous other defendants in
these lawsuits and intends to vigorously defend itself against
these claims. The claims in the Company’s current lawsuits are
similar to those made in previous asbestos-related suits that named
the Company as a defendant, which either were dismissed when it was
shown that the Company had not supplied products to the
plaintiffs’ places of work or were settled for immaterial
amounts. The Company cannot provide any assurances that any pending
or future matters will be resolved in the same manner as previous
lawsuits.
As of September 30, 2023, the Company was subject to the claims
noted above, as well as other potential claims that have arisen in
the ordinary course of business.
Although the outcome of the lawsuits, legal proceedings or
potential claims to which the Company is, or may become, a party to
cannot be determined and an estimate of the reasonably possible
loss or range of loss cannot be made for the majority of the
claims, management does not believe that the outcomes, either
individually or in the aggregate, will have a material adverse
effect on the Company's results of operations, financial position
or cash flows.
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/mrrscu78
ASBESTOS UPDATE: Met-Pro Defends 132 New Exposure Cases
-------------------------------------------------------
CECO Environmental Corp.'s subsidiary, Met-Pro Technologies LLC,
beginning in 2002, has been named in asbestos-related lawsuits
filed against a large number of industrial companies including, in
particular, those in the pump and fluid handling industries,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
Based upon the most recent information available to the Company
regarding such claims, there were a total of 301 cases pending
against the Company as of September 30, 2023 with Illinois, New
York, Pennsylvania and West Virginia having the largest number of
cases, as compared with 247 cases that were pending as of December
31, 2022. During the nine months ended September 30, 2023, 132 new
cases were filed against the Company, and the Company was dismissed
from 54 cases and settled 24 cases. Most of the pending cases have
not advanced beyond the early stages of discovery, although a
number of cases are on schedules leading to or scheduled for trial.
The Company believes that its insurance coverage is adequate for
the cases currently pending against the Company and for the
foreseeable future, assuming a continuation of the current volume,
nature of cases and settlement amounts. However, the Company has no
control over the number and nature of cases that are filed against
it, nor as to the financial health of its insurers or their
position as to coverage.
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/3fxu2t86
ASBESTOS UPDATE: Metropolitan Life Faces 1,924 New Exposure Claims
------------------------------------------------------------------
Metropolitan Life Insurance Company, for the nine months ended
September 30, 2023 and 2022, has received approximately 1,924 and
1,962 new asbestos-related claims, respectively, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
Metropolitan Life Insurance Company is and has been a defendant in
a large number of asbestos-related suits filed primarily in state
courts. These suits principally allege that the plaintiff or
plaintiffs suffered personal injury resulting from exposure to
asbestos and seek both actual and punitive damages. Metropolitan
Life Insurance Company has never engaged in the business of
manufacturing or selling asbestos-containing products, nor has
Metropolitan Life Insurance Company issued liability or workers'
compensation insurance to companies in the business of
manufacturing or selling asbestos-containing products. The lawsuits
principally have focused on allegations with respect to certain
research, publication and other activities of one or more of
Metropolitan Life Insurance Company's employees during the period
from the 1920s through approximately the 1950s and allege that
Metropolitan Life Insurance Company learned or should have learned
of certain health risks posed by asbestos and, among other things,
improperly publicized or failed to disclose those health risks.
Metropolitan Life Insurance Company believes that it should not
have legal liability in these cases. The outcome of most asbestos
litigation matters, however, is uncertain and can be impacted by
numerous variables, including differences in legal rulings in
various jurisdictions, the nature of the alleged injury and factors
unrelated to the ultimate legal merit of the claims asserted
against Metropolitan Life Insurance Company.
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/ykh3uuth
ASBESTOS UPDATE: MRC Global Defends 548 PI Lawsuits as of Sept. 30
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MRC Global Inc., as of September 30, 2023, is a named a defendant
in approximately 548 lawsuits involving approximately 1,113 claims,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "We are one of many defendants in lawsuits that
plaintiffs have brought seeking damages for personal injuries that
exposure to asbestos allegedly caused. Plaintiffs and their family
members have brought these lawsuits against a large volume of
defendant entities as a result of the defendants' manufacture,
distribution, supply or other involvement with asbestos, asbestos
containing-products or equipment or activities that allegedly
caused plaintiffs to be exposed to asbestos. These plaintiffs
typically assert exposure to asbestos as a consequence of
third-party manufactured products that our MRC Global (US) Inc.
subsidiary purportedly distributed. No asbestos lawsuit has
resulted in a judgment against us to date, with a majority being
settled, dismissed or otherwise resolved. Applicable third-party
insurance has substantially covered these claims, and insurance
should continue to cover a substantial majority of existing and
anticipated future claims. Accordingly, we have recorded a
liability for our estimate of the most likely settlement of
asserted claims and a related receivable from insurers for our
estimated recovery, to the extent we believe that the amounts of
recovery are probable. It is not possible to predict the outcome of
these claims and proceedings. However, in our opinion, the
likelihood that the ultimate disposition of any of these claims and
legal proceedings will have a material adverse effect on our
condensed consolidated financial statements is remote."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/fyj2w93p
ASBESTOS UPDATE: OfficeMax Estimates $15MM to $25MM A&E Losses
--------------------------------------------------------------
The ODP Corporation's subsidiary OfficeMax, is named as a defendant
in a number of lawsuits, claims, and proceedings arising out of the
operation of certain paper and forest products assets prior to
those assets being sold in 2004, for which OfficeMax agreed to
retain responsibility, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
The Company states, "As part of that sale, OfficeMax agreed to
retain responsibility for all pending, threatened and future
proceedings alleging asbestos-related injuries arising out of the
operation of the paper and forest products assets prior to the
closing of the sale. The Company has made provision for losses with
respect to the pending proceedings. Additionally, as of September
30, 2023, the Company has made provision for environmental
liabilities with respect to certain sites where hazardous
substances or other contaminants are or may be located. For these
combined liabilities, the Company's estimated range of reasonably
possible losses was approximately $15 million to $25 million. The
Company regularly monitors its estimated exposure to these
liabilities. As additional information becomes known, these
estimates may change, however, the Company does not believe any of
these OfficeMax retained proceedings are material to the Company's
financial position, results of operations, or cash flows."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/zm9a7kuw
ASBESTOS UPDATE: Perrigo Co. Faces 101 Product Liability Lawsuits
-----------------------------------------------------------------
Perrigo Company plc has been named, together with other
manufacturers, in product liability lawsuits in a variety of state
courts alleging that the use of body powder products containing
talcum powder causes mesothelioma and lung cancer due to the
presence of asbestos, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
As of October 13, 2023, the Company is currently named in 101
individual lawsuits seeking compensatory and punitive damages. The
Company has several defenses and intends to aggressively defend
these lawsuits. Trials for these lawsuits are currently scheduled
throughout 2023, 2024 and 2025, with the earliest trial date
commencing in November 2023.
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/2p8r3t66
ASBESTOS UPDATE: Pfizer Inc. Defends Numerous Personal Injury Cases
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Pfizer Inc. is a defendant in numerous cases, related to its
pharmaceutical and other products wherein plaintiffs in these cases
seek damages and other relief on various grounds for alleged
personal injury and economic loss, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission.
The Company states, "Between 1967 and 1982, Warner-Lambert owned
American Optical Corporation (American Optical), which manufactured
and sold respiratory protective devices and asbestos safety
clothing. In connection with the sale of American Optical in 1982,
Warner-Lambert agreed to indemnify the purchaser for certain
liabilities, including certain asbestos-related and other claims.
Warner-Lambert was acquired by Pfizer in 2000 and is a wholly owned
subsidiary of Pfizer. Warner-Lambert is actively engaged in the
defense of, and will continue to explore various means of
resolving, these claims.
"Numerous lawsuits against American Optical, Pfizer and certain of
its previously owned subsidiaries are pending in various federal
and state courts seeking damages for alleged personal injury from
exposure to products allegedly containing asbestos and other
allegedly hazardous materials sold by Pfizer and certain of its
previously owned subsidiaries.
"There also are a small number of lawsuits pending in various
federal and state courts seeking damages for alleged exposure to
asbestos in facilities owned or formerly owned by Pfizer or its
subsidiaries."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/mpxc7j2u
ASBESTOS UPDATE: Reading Int'l. Still Defends Exposure Claims
-------------------------------------------------------------
Reading International, Inc., from time to time, receives claims
brought against them relating to the exposure of former employees
to asbestos and/or coal dust, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission.
The Company states, "These are generally covered by an insurance
settlement reached in September 1990 with our insurance
providers1555. However, this insurance settlement does not cover
litigation by people who were not employees of our historic
railroad operations and who may claim direct or second-hand
exposure to asbestos, coal dust and/or other chemicals or elements
now recognized as potentially causing cancer in humans. Our known
exposure to these types of claims, asserted or probable of being
asserted, is not material."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/bdffbayn
ASBESTOS UPDATE: Rexnord Industries Faces Multiple PI Lawsuits
--------------------------------------------------------------
Regal Rexnord Corporation's subsidiary, Rexnord Industries, is a
defendant in multiple lawsuits pending in state or federal court in
numerous jurisdictions relating to alleged personal injuries due to
the alleged presence of asbestos in certain clutches and drives
previously manufactured by The Falk Corporation, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
The Company states, "Multiple lawsuits (with approximately 372
claimants) are pending in state or federal court in numerous
jurisdictions relating to alleged personal injuries due to the
alleged presence of asbestos in certain brakes and clutches
previously manufactured by the Rexnord PMC business' Stearns brand
of brakes and clutches and/or its predecessor owners."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/2fhwyf6b
ASBESTOS UPDATE: Rockwell Automation Has $20MM Asbestos Liabilities
-------------------------------------------------------------------
Rockwell Automation, Inc., has reported asbestos liabilities, net
of related insurance coverage, of $20.0 million and $14.3 million
as of September 30, 2023 and 2022, respectively, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission.
The Company states, "We (including our subsidiaries) have been
named as a defendant in lawsuits alleging personal injury as a
result of exposure to asbestos that was used in certain components
of our products many years ago, including products from divested
businesses for which we have agreed to defend and indemnify claims.
Currently there are lawsuits that name us as defendants, together
with hundreds of other companies. But in all cases, for those
claimants who do show that they worked with our products or
products of divested businesses for which we are responsible, we
nevertheless believe we have meritorious defenses, in substantial
part due to the integrity of the products, the encapsulated nature
of any asbestos-containing components, and the lack of any
impairing medical condition caused by our products. We defend those
cases vigorously. Historically, we have been dismissed from the
vast majority of these claims with no payment to claimants.
"Additionally, we have maintained insurance coverage that includes
indemnity and defense costs, over and above self-insured
retentions, for many of these claims. We believe these arrangements
will provide substantial coverage for future defense and indemnity
costs for these asbestos claims for many years into the future. The
uncertainties of asbestos claim litigation make it difficult to
predict accurately the ultimate outcome of asbestos claims. That
uncertainty is increased by the possibility of adverse rulings or
new legislation affecting asbestos claim litigation or the
settlement process. Subject to these uncertainties and based on our
experience defending asbestos claims, we do not believe these
lawsuits will have a material effect on our business, financial
condition, or results of operations."
A full-text copy of the Form 10-K is available at
https://tinyurl.com/yp3je8ba
ASBESTOS UPDATE: Transocean Faces 231 PI Claims as of Sept. 30
--------------------------------------------------------------
Transocean Ltd.'s subsidiary, as of September 30, 2023, was a
defendant in approximately 231 lawsuits arising out of the
subsidiary's manufacture and sale of heat exchangers, and
involvement in the construction and refurbishment of major
industrial complexes alleging bodily injury or personal injury as a
result of exposure to asbestos, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission.
The Company states, "As of September 30, 2023, seven plaintiffs
have claims pending in Louisiana and 15 plaintiffs in the aggregate
have claims pending in either Illinois or Missouri, in which we
have or may have an interest. We intend to defend these lawsuits
vigorously, although we can provide no assurance as to the outcome.
We historically have maintained broad liability insurance,
although we can provide no assurance as to whether insurance will
cover the liabilities, if any, arising out of these claims. Based
on our evaluation of the exposure to date, we do not expect the
liability, if any, resulting from these claims to have a material
adverse effect on our condensed consolidated statement of financial
position, results of operations or cash flows.
"For many of these lawsuits, we have not been provided sufficient
information from the plaintiffs to determine whether all or some of
the plaintiffs have claims against the subsidiary, the basis of any
such claims, or the nature of their alleged injuries. The
operating assets of the subsidiary were sold in 1989. In December
2021, the subsidiary and certain insurers agreed to a settlement of
outstanding disputes that provide the subsidiary with cash. An
earlier settlement, achieved in September 2018, provided the
subsidiary with cash and an annuity that begins making payments in
2024. Together with a coverage in place agreement with certain
insurers and additional coverage issued by other insurers, we
believe the subsidiary has sufficient resources to respond to both
the current lawsuits as well as future lawsuits of a similar
nature."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/4yx3knfz
ASBESTOS UPDATE: Zurn Elkay Faces 7,500 PI Claims as of Sept. 30
----------------------------------------------------------------
Zurn Elkay Water Solutions Corp. and numerous other unrelated
companies, as of September 30, 2023, were defendants in
approximately 6,000 asbestos related lawsuits representing
approximately 7,500 claims, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission.
The Company states, "Plaintiffs' claims allege personal injuries
caused by exposure to asbestos used primarily in industrial boilers
formerly manufactured by a segment of Zurn. Zurn did not
manufacture asbestos or asbestos components. Instead, Zurn
purchased them from suppliers. These claims are being handled
pursuant to a defense strategy funded by insurers.
"As of September 30, 2023, the Company estimates the potential
liability for the asbestos-related claims described above, as well
as the claims expected to be filed in the next ten years, to be
approximately $79.0 million, of which Zurn expects approximately
$58.0 million to be paid in the next ten years on such claims, with
the balance of the estimated liability being paid in subsequent
years. The $79.0 million was developed based on actuarial studies
and represents the projected indemnity payout for current and
future claims. There are inherent uncertainties involved in
estimating the number of future asbestos claims, future settlement
costs, and the effectiveness of defense strategies and settlement
initiatives. As a result, actual liability could differ from the
estimate described herein and could be substantial. The liability
for the asbestos-related claims is recorded in reserve for asbestos
claims within the condensed consolidated balance sheets.
"Management estimates that the available insurance to cover this
ten year estimated potential asbestos liability as of September 30,
2023 is $72.1 million."
A full-text copy of the Form 10-Q is available at
https://tinyurl.com/2vewysvv
*********
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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