Recent Filings – November Digest

View Amanda Pickens Nitto’s Complete Bio at robinsonbradshaw.comNot every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of November’s filings:

Fox, et al. v. SCANA Corporation, et al.; No. 3:17-cv-03063 (D.S.C. November 10, 2017) (previously reported similar action brought by customers of SCANA: this putative class action is brought under federal securities laws by holders of securities of SCANA who allege defendant released false and misleading documents and statements regarding a nuclear construction project in Fairfield County thereby causing them financial harm.)

Ridgeway, et al. v. Planet Pizza 2016, Inc., et al.; No. 3:17-cv-03064 (D.S.C. November 10, 2017) (putative collective and class action brought by employees of Planet Pizza 2016 under federal and state wage and hours laws alleging defendant took improper tip credits, failed to pay wages promised, failed to pay overtime compensation and generally violated these and other rights under wage and hour laws.)

Williamson, et al. v. South Shor, Inc. d/b/a The Peddler Steakhouse, et al., No. 4:17-cv-03026 (D.S.C. November 7, 2017) (putative collective and class action brought under federal and state wage and hour laws brought by servers at The Peddler Steakhouse, alleging defendant improperly applied a “tip credit” to servers’ wages, has required servers to give a percentage of their tips back to the restaurant, and generally has maintained a policy and practice of underpaying servers.)

Knothe v. Toyota Motor Sales, U.S.A., Inc., No. 2:17-cv-02987 (D.S.C. November 3, 2017) (putative class action brought by owners of automobiles with alleged defective dashboards who state Toyota was dismissed from previous related federal litigation in South Carolina based on a promise of voluntary and comprehensive warranty coverage, but Toyota did not commence the program with adequate parts and additionally permitted such service at only authorized dealers thereby leaving owners without relief.)

Miriyala, et al. v. Novan, Inc., et al., No. 1:17-cv-00999 (M.D.N.C. November 3, 2017) (putative class action brought under federal securities laws by purchasers of stock of Novan, a clinical-stage drug development company, alleging defendant made materially false and misleading statements in offering documents regarding various trials during the fall of 2016 and winter of 2017 thereby causing shareholders to have significant damages.)

Allman, et al. v. Taishan Gypsum Co., Ltd. f/k/a Shandong Taihe Dongxin Co., Ltd., et al., No. 2:17-cv-00051 (E.D.N.C. November 2, 2017) (putative class action brought by purchasers of drywall manufactured and distributed by defendants, alleging sulfur compounds exited the drywall and caused damage to personal property such as blackening and break down of air conditioning, faucets, wiring and other metal surfaces.)

Koepplinger, et al. v. Seterus, Inc., No. 1:17-cv-00995 (M.D.N.C. November 2, 2017) (putative class action brought under federal and state consumer protection laws by mortgage borrowers against Seterus, a debt collection agency, alleging Seterus sent form letters claiming borrowers were in default on their mortgages and failure to pay all arrearages would result in immediate acceleration of their loan.)

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Court Denies Attempt to Recast ERISA Class Action as a Derivative Claim

View David Wright's Complete Bio at robinsonbradshaw.comAccording to the Company website, “Piggly Wiggly has been bringing home the bacon for millions of American families for over 100 years.” But a putative class of former employees of Piggly Wiggly filed a class action complaint in the District of South Carolina, asserting various claims under ERISA pertaining to the Company’s employee stock ownership plan. The claims include allegations pertaining to excessive compensation, “gross mismanagement,” concealing of financial losses from participants, and various “insider dealings.” Spires v. Schools, No. 2:16-616 (D.S.C. 2016). The scheme culminated, according to Plaintiffs, in the sale of substantially all assets to C&W Wholesale Grocers, Inc. The case was filed under Rule 23 as a class action, not under Rule 23.1 as a derivative action.

Eighteen months into the case, and after the district court had trimmed the complaint, Plaintiffs attempted to switch gears, moving to proceed without class certification and instead as a derivative action under ERISA Section 502(a). But Judge Gergel would have none of it in a decision rendered on November 17. After first observing that a benefit plan may not have standing under ERISA to assert claims for a breach of fiduciary duty, the Court held that “allowing a class action to proceed as a derivative action would unfairly shift to Defendants the burden of proving or disproving the adequacy of the named Plaintiffs as representatives” of the class. The Court observed that the “complaint has nearly one hundred references to ‘class,’ ‘class members’ and the ‘class period.’” According to the Court, plaintiffs did not “even attempt to show cause why, having chosen to file a class action, they nonetheless should be excused from ‘jump[ing] through the procedural hoops’ of prosecuting a class action.”

The case serves as a good reminder of the “stickiness” of filing under Rule 23. After you do that, it isn’t so easy to extricate yourself.

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Recent Filings – October Digest

View Amanda Pickens Nitto’s Complete Bio at robinsonbradshaw.comNot every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of October’s filings:

Laverty, et al. v. Niagara Bottling, LLC; No. 5:17-cv-00196 (W.D.N.C. October 31, 2017) (collective action brought under FLSA against Niagara Bottling LLC, a national water and/or beverage bottling company, by “preventative maintenance technicians” who allege they were not paid overtime compensation for required tasks performed, and also under FMLA by the lead plaintiff for alleged violation of his rights regarding the death of a family member.)

Jackson, et al. v. Ettain Group, Inc.; No. 3:17-cv-00622 (W.D.N.C. October 25, 2017) (action brought under federal and state wage and hour laws by plaintiffs who are “temporary workers” of defendant, which provides temporary contract employee across the country, alleging they were not compensated for work in excess of 40 hours per week and, additionally, were not paid wages due to them on regular paydays.)

Morton, et al. v. The Chemours Company FC, LLC, et al.; No. 7:17-cv-00197 (E.D.N.C. October 20, 2017) (previously reported as included below, this is a putative class action brought by landowners in the Wilmington, North Carolina area alleging defendants are responsible for trespass, nuisance and negligence by releasing toxic chemicals from their Fayetteville, North Carolina site to the property and water supply of those living in the Wilmington area causing damage and contamination to property, previous case is: Nix, et al. v. The Chemours Company FC, LLC, et al.; No. 7:17-cv-00189 (E.D.N.C. October 3, 2017).)

Anderson, et al. v. Equifax Inc., et al.; No. 2:17-cv-02825 (D.S.C. October 18, 2017) (one of several previously reported class actions brought under the Fair Credit Reporting Act by alleged victims of Equifax’s now well publicized data breach claiming they were harmed by unauthorized parties gaining access to personal and/or private information and Equifax’s delayed communication after learning of the breach.)

Clayton, et al. v. CenturyLink, Inc., et al.; No. 1:17-cv-00921 (M.D.N.C. October 13, 2017) (action brought under NC Unfair and Deceptive Trade Practices Act by consumers against defendants, which are global communications and IT services companies, alleging they were charged false and unauthorized charges for services including telephone, internet and/or television accounts, resulting in charges for services they did not order and overcharges for services they did receive.)

Rando, et al. v. CB&I, LLC; No. 0:17-cv-02790 (D.S.C. October 13, 2017) (purported class action brought under federal and state wage and hour laws by alleged non-exempt employees claiming they did not receive overtime compensation and were required to work more time than was included in their compensable time.)

Rhodes, et al. v. Shipman Family Home Care, Inc.; No. 1:17-cv-00950 (M.D.N.C. October 13, 2017) (purported collective and class action brought under federal and state wage and hour laws by employees of defendant who were “home health aides” and also performed related activities for defendant in Kingston, North Carolina who allege they were not paid correct overtime premium rate compensation.)

Brown, et al. v. South Carolina Public Service Authority, et al.; No. 3:17-cv-02764 (D.S.C. October 12, 2017) (previously reported similar action brought by holders of securities in SCANA; this putative class action is brought by customers of SCANA, who have no option but to use SCANA for electrical service, and allegedly have been charged for the costs of the building of various nuclear plants, which have been abandoned with no services rendered.)

Erekson, et al. v. Advanced Call Center Technologies, LLC; No. 3:17-cv-02766 (D.S.C. October 12, 2017) (putative collective and class action brought under FDCPA alleging defendants issued threatening collection letters with misleading and confusing information regarding the identities of creditors and debtors.)

Sharpenter, et al. v. Premara Financial, Inc., et al.; No. 3:17-cv-00607 (W.D.N.C. October 12, 2017) (class action brought under federal securities laws alleging defendants issued a false and misleading registration statement with the SEC regarding a proposed merger with Select Bank & Trust Company, which allegedly denies shareholders information needed to make sound future decisions.)

Sellers, et al. v. Keller Unlimited LLC, et al.; No. 2:17-cv-02758 (D.S.C. October 11, 2017) (putative collective and class action brought under federal and state wage and hour laws alleging defendants, which are restaurants and sports bars, violated FLSA by requiring bartenders to perform non-tipped unrelated duties and not paying federal minimum wage for time spent working in the restaurants.)

Anderson, et al. v. Laboratory Corporation of America Holdings; No. 1:17-cv-00911-TDS (M.D.N.C. October 10, 2017) (putative collective and class action brought under UDTPA and the equivalent under various state laws by plaintiffs alleging they were charged fees for services by LabCorp that were in excess of the negotiated or mandated fair market value rates established between LabCorp and the private or public health insurers.)

Laurence, et al. v. Harris Teeter, LLC; No. 3:17-cv-00602 (W.D.N.C. October 6, 2017) (putative collective and class action brought under federal and state wage and hour laws by “hourly-paid Keyholders and Assistant Grocery Managers” of defendant who allege they received inadequate compensation for the required hours they worked “off the clock” and were not paid overtime wages for work performed.)

Evans, et al. v. SCANA Corporation, et al.; No. 3:17-cv-02683 (D.S.C. October 5, 2017) (putative class action brought under federal securities laws by purchasers of publicly traded securities of SCANA during a period from February 2016 to September 2017 alleging defendant filed/released false and misleading analyst reports and advisories regarding the building of two nuclear plants thereby inflating the price of the securities and harming plaintiffs in their purchase of same.)

Nix, et al. v. The Chemours Company FC, LLC, et al.; No. 7:17-cv-00189 (E.D.N.C. October 3, 2017) (putative class action brought by landowners in the Wilmington, North Carolina, area alleging defendants are responsible for trespass, nuisance, and negligence by releasing toxic chemicals from their Fayetteville, North Carolina, site to the property and water supply of those living in the Wilmington area causing damage and contamination to property.)

Grubbs, et al. v. Advance Stores Company, Inc., et al.; No. 4:17-cv-02647 (D.S.C. October 2, 2017) (putative collective and class action brought under federal and state wage and hour laws by plaintiffs who were part-time delivery drivers of defendant for a period from the fall of 2016 through spring of 2017 and who allege defendant failed to pay overtime compensation for hours worked.)

Mason v. Equifax Inc.; No. 4:17-cv-02644 (D.S.C. October 2, 2017) (one of several putative class actions previously reported brought under the Fair Credit Reporting Act by alleged victims of Equifax’s now well-publicized data breach claiming they were harmed by unauthorized parties gaining access to personal and/or private information and Equifax’s delayed communication after learning of the breach.)

Wright, et al. v. Waste Pro USA, Inc., et al,; No. 2:17-cv-02654 (D.S.C. October 2, 2017) (putative collective and class action brought under federal and state wage and hour laws by employees of defendants alleging miscalculation of hourly rates by defendants, receiving only “half-time” for all hours worked over forty (40) hours in any given work week, in addition to being required to perform pre-shift and post-shift work without pay.)

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Recent Filings – September Digest

View Amanda Pickens Nitto’s Complete Bio at robinsonbradshaw.comNot every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of September’s filings:

Carlin, et al. v. Hudson Seafood Corp., d/b/a Hudson’s Seafood House on the Docks, et al., No. 9:17-cv-02638 (D.S.C. September 29, 2017) (putative collective and class action brought under federal and state wage and hour employment laws by alleged nonexempt employees of defendants in Beaufort County who were allegedly paid less than minimum wage and also had a portion of their earned tips placed in a “tip pool”.)

Delmater, et al. v. SCANA Corporation, et al., No. 3:17-cv-02563 (D.S.C. September 22, 2017) (putative class action brought by residents of South Carolina who are within the service area of defendant SCANA, a company that supplies electricity to residential, commercial and government customers, alleging that the defendant has violated the Racketeer Influenced and Corrupt Organizations Act as well as other federal and state laws, and has overcharged fees to customers relating to their construction of two nuclear reactors at a facility in Fairfield County.)

Humble, et al. v. Harrah’s NC Casino Company, LLC, et al., No. 1:17-cv-00262 (W.D.N.C. September 18, 2017) (one of two purported collective and class actions brought under federal and state wage and hour laws by “gaming floor employees” alleging defendants violated these laws by failing to pay regular wage and overtime compensation by requiring them to perform work during their meal breaks. The other previously reported case is Clark, et al. v. Harrah’s NC Casino Company, LLC, et al., No. 1:17-cv-00240 (W.D.N.C. August 31, 2017).)

Tate, et al. v. Equifax, Inc., No. 3:17-cv-00555 (W. D.N.C. September 18, 2017) (one of two putative class actions brought under the Fair Credit Reporting Act by alleged victims of Equifax’s now well publicized data breach claiming they were harmed by unauthorized parties gaining access to personal and/or private information and Equifax’s delayed communication after learning of the breach. The other related case is Weaver, et al. v. Equifax, Inc., No. 1:17-cv-00268 (W.D.N.C. September 27, 2017).)

Berg, et al. v. MaxPoint Interactive, et al., No. 5:17-cv-00469 (E.D.N.C. September 14, 2017) (putative class action brought by shareholders against MaxPoint Interactive, Inc. and its directors under federal securities laws alleging defendants filed a solicitation statement that was false and misleading regarding a proposed transaction in which MaxPoint will be acquired by Valassis Communications, Inc. and its affiliates.)

McNeil, et al. v. Low Country Laundry & Dry Cleaning LLC, et al., No. 2:17-cv-02429 (D.S.C. September 10, 2017) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendants, who own and operate 3 full service dry cleaner and laundry service locations in Charleston, failed to pay plaintiffs for hours worked in excess of forty (40) hours per week, failed to compensate for time and a half of hourly wages, engaged in “time shaving,” and violated employment agreements in various other ways.)

Stanford, et al. v. Aldous & Associates, PLLC, et al.; No. 5:17-cv-00444 (E.D.N.C. September 1, 2017)(purported class action brought under FDCPA by North Carolina residents who allege the defendant collection agency violated the Act by sending threatening delinquent balance letters in an attempt to collect debts owed to “Gold’s Gym” in Fayetteville and threatening collection fees if no payment came within a certain time period.)

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Recent Filings – August Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.comNot every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of August’s filings:

Clark, et al. v. Harrah’s NC Casino Company, LLC, et al.; No. 1:17-cv-00240 (W.D.N.C. August 31, 2017) (purported collective and class action brought under federal and state wage and hour laws by “gaming floor employees” alleging defendants violated these laws by failing to pay regular wage and overtime compensation by requiring them to perform work during their meal breaks.)

Dibble, et al. v. Williams & Fudge, Inc., et al.; No. 0:17-cv-02351 (D.S.C. August 31, 2017 ) (purported class action brought under the FDCPA by consumers in the state of Wyoming who allege the defendant collection agency company sent collection letters attempting to charge a fee for debit/credit card payments made to a community college.)

Payne, et al. v. Amazon.com, Inc.; No. 2:17-cv-02313 (D.S.C. August 29, 2017) (purported class action brought under federal and state unfair trade practice, consumer protection, and products liability laws alleging the “Eclipse Glasses” sold by Amazon were defective and dangerous and the recall issued by Amazon was “too little” as well as “too late”.)

Butler, et al. v. Fluor Corporation, et al.; No. 0:17-cv-02201 (D.S.C. August 18, 2017) (one of two putative class lawsuits brought under the federal Worker Adjustment and Retraining Notification Act by former employees of defendants alleging they were terminated on July 31, 2017 without cause and without 60 days’ advance written notice as required by the Act. The other previously reported case is: Pennington, et al. v. Fluor Corporation, et al.; No. 0:17-cv-02094 (D.S.C. August 8, 2017).)

Roskopf, et al. v. Park Sterling Corporation, et al.; No. 3:17-cv-00483 (W.D.N.C. August 14, 2017) (purported class action brought by shareholders of Park Sterling Bank against the bank and its directors alleging a false and misleading registration statement was filed with the SEC regarding its proposed merger with South State Bank.)

Moseman, et al. v. U.S. Bank N.A.; No. 3:17-cv-00481 (W.D.N.C. August 14, 2017 ) (purported collective and class action brought under federal and state wage and hour laws by plaintiffs, who were preliminary investigators researching accounts highlighted for suspicious activity, alleging defendants failed to pay overtime compensation for work in excess of 40 hours a week.)

Fokes, et al. v. AARGON Collection Agency, et al.; No. 2:17-cv-2121 (D.S.C. August 10, 2017) (purported class action brought under the Fair Debt Collections Practices Act by South Carolina residents alleging defendants used false and misleading representations in collection letters in order to collect a higher debt than was actually owed.)

Pennington, et al. v. Fluor Corporation, et al.; No. 0:17-cv-02094 (D.S.C. August 8, 2017) (purported class action brought under the federal Worker Adjustment and Retraining Notification Act by former employees of defendants alleging they were terminated on July 31, 2017 without cause and without 60 days’ advance written notice as required by the Act.)

Bright, et al. v. Taishan Gypsum Co., Ltd., et al.; No. 2:17-cv-00035 (E.D.N.C. August 1, 2017) (one of two purported class actions brought under various state consumer products acts by real property owners who allege the various defendants designed, manufactured, or generally sold and marketed defective Chinese manufactured drywall that contained compounds which caused damage to the plaintiffs and their property. The second case is: DeOliveira, et al. v. Taishan Gypsum Co., Ltd.; No. 4:17-cv-02019 (D.S.C. August 1, 2017).)

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