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180,541 | 2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is an Entertainment Venue and Casino that operates FINGER LAKES Casino as well as the FINGER LAKES website, offering features which should allow all consumers to access the goods and services which Defendant offers in connection with their physical locations. 22. Defendant operates FINGER LAKES (its “Casino”) in New York, at 5857 NY-96, Farmington, NY 14425. 23. Its Casinos constitute places of public accommodation. Defendant’s Casinos provide to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services including Casino locations and hours, access to its Player Login online portal, information pertaining to its raceway and casino, including information on the various slot machines and gaming platforms it offers at its physical locations, and related goods and services. 25. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s Casinos. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Casinos and the numerous goods and services and benefits offered to the public through the Website. 26. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 29. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 30. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Casinos on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 32. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 33. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 34. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. Because Defendant’s Website have never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.0 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 41. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 44. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 45. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 47. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 49. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 51. Defendant’s Casinos are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s Casinos. The Website is a service that is integrated with these locations. 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 56. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 58. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 60. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 62. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 65. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 68. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 71. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 72. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 73. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 75. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 77. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 78. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 79. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 81. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 82. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 83. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 84. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 87. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 88. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 89. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 91. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 92. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 93. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 95. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 98. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 99. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL | win |
446,957 | 23.Defendants operate TT locations throughout the United States, specifically in Georgia, North Carolina, South Carolina and Texas. 24.Defendant, TT provides lawn care, tree and shrub maintenance and pest control services to its residential and commercial clients. 25.Plaintiff was employed by Defendants as a non-exempt hourly-paid "service technician", servicing Defendant's clients. 26.Plaintiff worked in this capacity from approximately April 2009 through May 2011. 27.As a non-exempt "service technician," Plaintiff was paid "day rates" in exchange for work performed for Defendants. 28.However, Defendants'o called "day rates" failed to comply with the FLSA, because Defendants only paid Plaintiff his "day rate" if he worked more than four (4) hours in a work day. 30.Defendants employed hundreds, if not thousands, of employees who were paid under this illegal "day rate" methodology as well. 31.Plaintiff and those similarly situated to him, routinely worked in excess of forty (40) hours per week as part of their regular job duties. 32.Despite working more than forty (40) hours per week, Defendants'ailed to pay Plaintiff, and those similarly situated to him, overtime compensation at a rate of time and a half their regular rate of pay for hours worked over forty in a workweek. 33.Similarly, Defendants'ailed to pay Plaintiff, and those similarly situated to him, at least the minimum wage for all hours of work. 34.Defendants'ailure to pay Plaintiff, and those similarly situated to him, minimum wage and/or overtime premiums, resulted from a nationwide pay policy, whereby all of Defendants'ranches require employees to work forty (40) hours per week as part of their regular job duties. 35.Defendants were/are aware of the unpaid overtime hours performed by Plaintiff and the class members. 37.Defendants were unjustly enriched by accepting the benefit and value of the work performed by its "service technicians," but not compensating Plaintiff, and those similarly situated to him, for such hours of work. 39.Plaintiff and the class members were all salary paid "service technicians" and performed the same or similar job duties as one another such as spraying pesticides to kill weeds, fertilizing and customer service on behalf of Defendants to their customers. 40.Further, Plaintiff and the class members were subjected to the same pay provisions in that they were all salary paid, but were not compensated at time-and-one-half for all hours worked in excess of 40 hours in a workweek and/or were not paid anything whatsoever, for at least some hours of work each week. 41.Similarly, Plaintiff and the class members were not compensated at a rate of at least minimum wage for at least some hours of work. 42.Thus, the class members are owed minimum and overtime wages for the same reasons as Plaintiff. 43.Defendants'ailure to compensate employees for some hours worked in a workweek as required by the FLSA results from a policy or practice of failure to assure that "service technicians" are/were paid for all hours worked. 45.Defendants knowingly, willfully, or with reckless disregard carried out its illegal pattern or practice of failing to pay overtime compensation with respect to Plaintiff and the class members. 46.Defendants did not act in good faith or reliance upon any of the following in formulating its pay practices: (a) case law; (b) the FLSA, 29 U.S.C. g 201, et seq.; or (c) Department of Labor Wage 8c Hour Opinion Letters or (d) the Code of Federal Regulations. 48.Defendants have acted willfully in failing to pay Plaintiff and the class members in accordance with the law. 49.Defendants have failed to maintain accurate records of Plaintiff and the class members'ork hours in accordance with the law. 50.Plaintiff sues on his own behalf and on behalf of a class of persons under Rules 23(a), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure. 51.Plaintiff brings his unjust enrichment claim on behalf of all employees who were employed by Defendants, at any time since June 2008 to the entry ofjudgment in this case (the "Class Period" ), who were "non-exempt day rate paid service technicians" who have not been paid for all hours actually worked. 52.To the extent such hours worked but not paid constitute so-called "gap-time" this count is brought to seek recovery of all such gap time hours. Thus it is neither duplicative of nor reliant upon the FLSA. 54.The claims of Plaintiff are typical of the claims of the Class, and a class action is superior to other available methods of fair and efficient adjudication of the controversy — — particularly in the context of wage and hour litigation where an individual plaintiff lacks the financial resources to vigorously prosecute a lawsuit in federal court against corporate defendants. 55.The Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 57.Plaintiff is committed to pursuing this action and has retained competent counsel experienced in employment law and class action litigation. 58.Plaintiff has the same interests in this matter as all other members of the class and Plaintiff's claims are typical of the Class. 59.There are questions of law and fact common to the Class which predominate over any questions solely affecting the individual members of the Class, including but not limited to: a. Whether the Defendants failed to keep true and accurate time records for all hours worked by Plaintiff and members of the Class; b. What proof of hours worked is sufficient where employers fail in their duty to maintain time records; c. Whether Defendants failed and/or refused to pay the members of the Class for all hours worked as alleged; d. Whether the Defendants are liable for all damages claimed hereunder, including but not limited to, costs, disbursements and attorney's fees. 60.Plaintiff re-alleges and re-avers paragraphs 1 through 59 of the Complaint as if fully set forth herein. 61.From at least 2009, and continuing through 2011, Plaintiff worked in excess of the forty (40) hours per week for which Plaintiff was not compensated at the statutory rate of one and one-half times Plaintiff's regular rate of pay. 62.Plaintiff was, and is entitled to be paid at the statutory rate of one and one-half times Plaintiff's regular rate of pay for those hours worked in excess of forty (40) hours. 63.At all times material hereto, Defendants failed, and continue to fail, to maintain proper/accurate time records as mandated by the FLSA. 64.To date, Defendants continue to fail to pay their non-exempt service technician employees their FLSA mandated overtime pay, despite their recognition that their position is non-exempt and entitled to same. 66.Defendants have failed to properly disclose or apprise Plaintiff of Plaintiff's rights under the FLSA. 67.Due to the intentional, willful, and unlawful acts of Defendants, Plaintiff suffered and continues to suffer damages and lost compensation for time worked over forty (40) hours per week, plus liquidated damages. 68.Plaintiff is entitled to an award of reasonable attorney's fees and costs pursuant to 29 U.S.C. )216(b). 69.Plaintiff reincorporates and readopts all allegations contained within Paragraphs 1 through 68 above. 70.Plaintiff was/is entitled to be paid minimum wage for each hour he worked during his employment with Defendants. 71.Plaintiff has demanded proper compensation for one or more weeks of work with Defendants, but Defendants have refused and/or failed to compensate him for the same. 73.Defendants willfully failed to pay Plaintiff minimum wage for one or more weeks of work contrary to 29 U.S.C. $ 206. 74.As a direct and proximate result of Defendants'eliberate underpayment of wages, Plaintiff has been damaged in the loss of minimum wages for one or more weeks of work with Defendants. 75.Plaintiff reasserts and reincorporates by reference all allegations contained within paragraphs 1 through 74 above. 76.This Court has supplemental jurisdiction over Plaintiff's unjust enrichment claim pursuant to 28 U.S.C.( 1367(a) because Plaintiff's unjust enrichment claim forms a part of the same case or controversy and arises out of the common nucleus of operative facts as his minimum wage and overtime claims. 77.Plaintiff and all others similarly situated to him worked for Defendants as referenced above. 79.Defendants knowingly accepted the service technicians'vertime work, but Defendants did not compensate Plaintiff for this work. 80.Defendants have been unjustly enriched as a result of their accepting the work of Plaintiff and other similarly situated employees without proper compensation. It would be unjust to allow Defendants to enjoy the fruits of the collective class'abor without proper compensation. 81.Plaintiff's unjust enrichment claim seeks unpaid straight time compensation for the service technicians'vertime work where Plaintiff made at least the minimum wage for all hours worked. RECOVERY OF MINIMUM WAGES UNJUST ENRICHMENT | win |
58,796 | 14. GoPro claims that it is “maker of the world’s most versatile and durable cameras” and that the Hero3 “makes it possible to capture and share your life like never before.” 15. Notwithstanding such claims, the Hero3 does not work properly or as advertised, and it is not suitable for the ordinary purposes for which it is used. 16. Among other problems, the Hero3 does not have a properly functioning “looping mode.” a. In advertised specifications for the Hero3, as posted on the GoPro website and elsewhere, the “advanced features” of the Hero3 include “Looping Record (Video).” b. The user manuals for the Hero3 state, “Looping Video mode allows you to record a continuously looping video that overwrites itself[.]” c. After it is placed into looping mode and the memory card is full, the Hero3 does not reliably continue recording. Instead of overwriting the oldest video data on its memory card, the Hero3 indicates “Not Enough SD Card Space” and ceases recording. Case3:14-cv-02320 Document1 Filed05/19/14 Page4 of 20 52. Plaintiff re-alleges and incorporates by reference the allegations set forth in this Class Action Complaint. 53. GoPro is a “person” within the meaning of CAL. BUS. & PROF. CODE § 17506. 54. By representing to the general public, including Plaintiff and the putative Class Members, that the Hero3 has fully functioning power button, looping mode, date retention, uninterrupted recording, and battery charging features, Defendant engaged in false and misleading practices prohibited by the California False Advertising Law (CFAL). Case3:14-cv-02320 Document1 Filed05/19/14 Page11 of 20 61. Plaintiff re-alleges and incorporates by reference the allegations set forth in this Class Action Complaint. 62. Plaintiff purchased a Hero3 in reliance on GoPro’s false and misleading advertisements and representations about the product. Plaintiff would not have purchased GoPro’s products had he known that the Hero3 was unreliable and did not possess the features that GoPro’s advertisements claimed it has. Case3:14-cv-02320 Document1 Filed05/19/14 Page12 of 20 72. Plaintiff re-alleges and incorporates by reference the allegations set forth in this Class Action Complaint. 73. GoPro made material representations and omissions to the general public, including Plaintiff and the putative Class Members, about the Hero3 that were false and misleading. 74. GoPro knew that its representations about the Hero3 were untrue, or it did not have sufficient knowledge to warrant belief that the representations were true. GoPro made these false representations with intent to induce Plaintiff and the putative Class Members to act in reliance thereon. 75. GoPro willfully deceived Plaintiff and the putative Class Members by concealing the true facts concerning the Hero3. GoPro knew in advance of Plaintiff and the Class Members’ intended use of the Hero3 and of unreliability of the power button, looping mode, date retention, uninterrupted recording, and battery charging features. 76. Plaintiff and the putative Class Members reasonably believed that GoPro’s representations about the Hero3 were true, and in reliance on those representations, Plaintiff and the putative Class Members purchased Hero3s from Defendant. Case3:14-cv-02320 Document1 Filed05/19/14 Page14 of 20 79. Plaintiff incorporates by reference the factual allegations set forth above. 80. GoPro expressly warranted that the Hero3 had specific functional characteristics, including fully functioning power button, looping mode, date retention, uninterrupted recording, and battery charging features. Through these warranties, GoPro intended to induce consumers to purchase the Hero3. When consumers purchased the Hero3, these warranties became part of the basis for the bargain. 81. GoPro expressly warranted that it would repair or replace manufacturing defects in the Hero3. This warranty encompasses the functionality of the Hero3, including the power button, looping mode, date retention, uninterrupted recording, and battery charging features. 82. GoPro communicated these warranties to ultimate consumers including Plaintiff and Class members. 83. GoPro breached these warranties because, among other defects, the Hero3 does not properly operate in power button, looping mode, does not reliably mark the date and time of video recordings, further unpredictably turns off during recording, and does not reliably charge its batteries when attached to a BacPac. 84. GoPro is unwilling or unable to repair or replace the Hero3 such that it reliably records video without defect or interruption. As a result, to the extent GoPro limits its Case3:14-cv-02320 Document1 Filed05/19/14 Page15 of 20 88. Plaintiff re-alleges and incorporates by reference the allegations set forth in this Class Action Complaint. 89. GoPro developed, designed, tested, manufactured, inspected, labeled, distributed, marketed, promoted, sold, and otherwise released into the stream of commerce the Hero3 and, in the course of same conduct, directly advertised or marketed the Hero3 to consumers. 90. GoPro impliedly warranted that its Hero3s were of merchantable quality and fit for the ordinary, common, and intended uses for which the product was sold. Specifically, GoPro falsely impliedly warranted that the Hero3s had fully functioning power button, looping mode, date retention, uninterrupted recording, and battery charging features. 91. GoPro knew, or had reason to know that consumers, including Plaintiff and the putative Class Members, purchased the Hero3s for purposes described above. 92. GoPro knew, or had reason to know, that consumers, including Plaintiff and the putative Class Members, were relying on its skill and judgment to select or furnish a product that was suitable for the particular purposes. Case3:14-cv-02320 Document1 Filed05/19/14 Page16 of 20 95. Plaintiff re-alleges and incorporates by reference the allegations set forth in this Class Action Complaint. 96. Defendant made misrepresentations to Plaintiff and the putative Class Members, including without limitation, the misrepresentation that Hero3s had fully functioning power button, looping mode, date retention, uninterrupted recording, and battery charging features. 97. Defendant made the foregoing representations without reasonable grounds for believing them to be true. These representations were made directly by GoPro and its authorized agents on the Hero3 packaging and in publications and other written materials directed to the public with the intention of inducing reliance and the purchase and use of the Hero3. 98. The representations by Defendant were in fact false and made with the intention of inducing reliance resulting in the purchase and use of the Hero3s. 99. In reliance on the above misrepresentations by Defendant, Plaintiff and the putative Class Members were induced to purchase and to use the Hero3s. If Plaintiff and the Class Members had known of the true facts and the facts concealed by GoPro, Plaintiff would not have purchased or used the Hero3s. 100. Plaintiff and the putative Class Members’ reliance on the misrepresentations by GoPro was justified and reasonable in that such misrepresentations were made by individuals Case3:14-cv-02320 Document1 Filed05/19/14 Page17 of 20 A. General Allegations Breach of Implied Warranty of Merchantability and Fitness for a Particular Purpose Breach of Express Warranty California False Advertising Law (CAL. BUS. & PROF. CODE §§ 17500 et seq.) Deceit by Concealment CAL. CIV. CODE §§ 1709, 1710 Negligent Misrepresentation Unjust Enrichment 102. Plaintiff re-alleges and incorporates by reference the allegations set forth in this Class Action Complaint. 103. As a result of its unlawful conduct described above, GoPro was unjustly enriched. 104. GoPro has benefited from its unlawful acts and it would be inequitable for GoPro to be permitted to retain any of the ill-gotten gains resulting from payments made by Plaintiff and the putative Class Members in reliance on its false, misleading, and unlawful representations about the Hero3s’ features. 105. Plaintiff and the putative Class Members’ are entitled to the amount of GoPro’s ill-gotten gains resulting from its unlawful, unjust, and inequitable conduct. 106. Plaintiff and Class Members may have no adequate other remedy at law. Violation of California Unfair Competition Law CAL. BUS. & PROF. CODE § 17200, et seq. (“unfair” and “fraudulent” elements) | lose |
163,693 | 18. Sometime before January 8, 2018, Plaintiff incurred certain financial obligations to Defendant. 19. These alleged obligations were money, property, or their equivalent, which were due or owing, or alleged to be due or owing, from a natural person to another person and are therefore a “debt” as that term is defined by California Civil Code §1788.2(d), and a “consumer debt” as that term is defined by California Civil Code §1788.2(f). 20. Sometime thereafter, but before January 8, 2018, Plaintiff fell behind in the payments owed on the debt. Beginning on or around January 8, 2018, Defendant started calling Plaintiff’s cell phone number ending in 8750. 21. On January 8, 2018, January 15, 2018, and January 17, 2018, a representative of Defendant called Plaintiff and left voicemail messages stating, “Hi Esperanza, this is Yolanda, if you can return my call as soon as possible, my phone number is (858) 576-7444” or some derivative thereof. 39. Plaintiff repeats, re-alleges, and incorporates by reference, all other paragraphs. 40. The foregoing acts and omissions constitute numerous and multiple violations of Rosenthal, including but not limited to each and every one of the above-cited provisions of the Rosenthal Act, Cal. Civ. Code §§ 1788- 1788.32 ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT (ROSENTHAL ACT) CAL. CIV. CODE §§ 1788-1788.32 | win |
242,778 | 15. In October, 2012, Ms. Osterholt began taking classes at CorePower’s studio located at 3232 North Lincoln Ave., Chicago, IL 60657. Through her practice at CorePower, a CorePower employee recruited her to become an instructor and enroll in Corepower’s 200-Hour Teacher Training Program. 16. Ms. Osterholt paid CorePower’s 200-Hour Teacher Training fee on December 14, 2014 and attended her first associated training class on or around February 17, 2015. She completed CorePower’s 200-Hour Teacher Training Program on or around April 19, 2015 and received her general yoga teaching certificate that same day. 17. Despite being a certified instructor, to teach at CorePower Ms. Osterholt was required to complete CorePower’s Extension program at an additional cost of $500.00. Ms. Osterholt made her $500.00 payment to CorePower in April 2015 and attended her first CorePower Extensions training class on April 28, 2015. She completed CorePower’s Extension program on or around May 30, 2015. 18. After completing CorePower’s 200-Hour Teacher Training Program, obtaining a teaching certification, and completing additional training through CorePower’s Extension program, Ms. Osterholt was still required to audition to become a CorePower intern. Ms. Osterholt’s audition took place on or around June 15, 2015, and she received notice that she had been admitted to CorePower’s internship program that same day. 19. Through CorePower’s internship program, Ms. Osterholt was required to teach 30 classes before becoming a CorePower instructor. Ms. Osterholt taught her first class as an intern in June 2015 and completed CorePower’s internship program, teaching her 30th class, on August 9, 2015. 20. For each of the 30 classes Ms. Osterholt taught as an intern, she was paid minimum wage for studio instruction time (generally 60 minutes), as well as 30 minutes of front desk time before and after every class. As such, for each of the 30 classes Ms. Osterholt taught as as intern, she was paid minimum wage for 2 hours of work. 21. As an intern, Ms. Osterholt was often required to stay at the studio for more than 2 hours without any additional compensation. Moreover, in addition to the 60 minutes of studio instruction time and 30 minutes of front desk time before and after every class, Ms. Osterholt spent a significant amount of time preparing for each class, including developing and practicing sequences, compiling music playlists, communicating with customers outside the studio, and reading and writing work related emails. She was not compensated for any of these responsibilities. 22. After teaching her 30th class as an intern, Ms. Osterholt was finally considered a CorePower instructor. Ms. Osterholt taught her first yoga class as an instructor on or around August 10, 2015. She taught her last yoga class as a CorePower yoga instructor on or around February 4, 2016. Through her employment as a CorePower instructor, Ms. Osterholt frequently taught classes at CorePower yoga studios across the Chicagoland area. 23. For each “class,” Ms. Osterholt was paid $30.00 before taxes. CorePower’s compensation policy defines “class” as instruction time in the studio (typically 60 minutes) and 30 minutes of front desk time before and after each class. 24. Similar to her employment as an intern, as a CorePower instructor, Ms. Osterholt was often required to stay at the studio for more than 2 hours without any additional compensation. Moreover, Ms. Osterholt was required to develop and practice sequences, compile music playlists, communicate with customers outside the studio, and read and write work related emails. Ms. Osterholt was not compensated for any of this work. 25. Preparing to teach classes, as both an intern and instructor, by developing and practicing sequences, compiling music playlists, communicating with customers outside the studio, and reading and writing work related emails, was essential and integral to Ms. Osterholt’s employment with CorePower. 26. CorePower requires its interns and instructors to prepare for teaching classes by, among other things, developing and practicing yoga sequences, compiling music playlists, communicating with customers outside the studio, and reading and writing work related emails. 27. CorePower does not compensate its interns and instructors for the time spent performing these additional tasks which are required as CorePower employees. 28. CorePower does not compensate its interns and instructors when they are required to work at the studio for more than the allotted instruction and front desk time. 29. CorePower is aware that its interns and instructors, including Ms. Osterholt, spend significant time on necessary tasks that are separate and distinct from the time spent teaching classes and attending to their front desk duties, yet CorePower does not compensate its interns and instructors for performing those tasks. 30. CorePower is aware that its interns and instructors, including Ms. Osterholt, are often required to work at their studios for more than the allotted instruction and front desk time, yet CorePower does not compensate its interns and instructors for this additional time. 64. Plaintiff hereby re-alleges and incorporate paragraphs 1 through 49 of this Complaint as though they were fully set forth herein. 65. This cause of action is brought by Plaintiff on behalf of a class pursuant to Federal Rule Civil Procedure Rule 23. 66. During the Illinois Class Period, CorePower was an “employer” as defined in the IMWL, and Plaintiff, the Illinois Class, and Illinois Subclass were “employee(s)” within the meaning of that Act. 67. The IMWL requires covered employers, such as CorePower, to pay all non-exempt employees the prevailing minimum wage for all hours worked. 68. Plaintiff, the Illinois Class, and Illinois Subclass were not exempt from the requirement that Defendants pay them the prevailing minimum wage for all hours worked under the IMWL. 69. During the Illinois Class Period, Defendant did not pay Plaintiff, the Illinois Class, or Illinois Subclass the prevailing minimum wage for all hours worked for CorPower; since for certain hours, Plaintiff, the Illinois Class, and Illinois Subclass were not paid any wages. 70. Defendant knew, or should have known, that Plaintiff, the Illinois Class, and Illinois Subclass were performing principal, integral, and essential activities without being paid for performing those activities. 71. As a result of CorePower’s failure to pay Plaintiff, the Illinois Class, and the Illinois Subclass the prevailing minimum wage for all hours worked, CorePower violated the IMWL. 72. The foregoing conduct of CorePower constitute violations of the IMWL which significantly damaged the Plaintiff, the Illinois Class, and the Illinois Subclass. WHEREFORE, Plaintiff, on behalf of herself, the Illinois Class, and the Illinois Subclass pray for judgment against Defendant as follows: A. Judgment in the amount of all back wages due as provided by the IMWL; B. Prejudgment interest on the back wages in accordance with 815 ILCS 205/2 and punitive damages pursuant to the formula set forth in 820 ILCS 105/12(a); C. Reasonable attorneys’ fee and costs of this action as provided by the 73. Plaintiff hereby re-alleges and incorporates paragraphs 1 through 49 of this Complaint as though they were fully set forth herein. 74. This cause of action is brought by Plaintiff on behalf of a class pursuant to Federal Rule Civil Procedure Rule 23. 75. During the Illinois Class Period, CorePower was an “employer” as defined in the IWPCA, and Plaintiff, the Illinois Class, and the Illinois Subclass were “employee(s)” within the meaning of that Act. 76. CorePower was and is obligated to pay Plaintiff, the Illinois Class, and Illinois Subclass for all wages earned. 77. Instead, CorePower instituted practices that resulted in Plaintiff, the Illinois Class, and the Illinois Subclass working certain time without compensation, in violation of the IWPCA. 78. Defendant knew, or should have known, that Plaintiff, the Illinois Class, and the Illinois Subclass were performing principal, integral, and essential activities without being paid for performing those activities. 79. The foregoing conduct of CorePower constitutes violations of the IWPCA which significantly damaged the Plaintiff, the Illinois Class, and the Illinois Subclass. WHEREFORE, Plaintiff, on behalf of herself, the Illinois Class, and the Illinois Subclass pray for judgment against Defendant as follows: A. Judgment in the amount of all back wages due as provided by the Illinois Wage Payment and Collection Act; B. Prejudgment interest on the back wages in accordance with 815 ILCS 205/2 and punitive damages pursuant to the formula set forth in 820 ILCS 115/14(a); C. Reasonable attorneys’ fee and costs of this action as provided by the 80. Plaintiff hereby re-alleges and incorporate paragraphs 1 through 31 and 51 though 63 of this Complaint as though they were fully set forth herein. 81. This Count arises from Defendant’s violations of the Fair Labor Standards Act, 29 U.S.C. §201, et seq., for its failure to pay minimum wages to Plaintiff and other similarly situated employees. This claim is brought as a collective action under the FLSA. Plaintiff’s consent to act in a representative capacity is attached hereto as Exhibit A. 82. At all relevant times, CorePower has been and continues to be an “employer” engaged in interstate “commerce” within the meaning of the FLSA, 29 U.S.C. §203. At all relevant times, CorePower has employed and continues to employ “employee(s),” including the Plaintiff and each of the FLSA Collective Members. 83. Defendant CorePower operates, and at all times during the liability period, has operated studios in numerous states. 84. Plaintiff consents to sue in this action pursuant to section 16(b) of the FLSA, 29 U.S.C. §216(b). Additional potential FLSA Collective Members may execute and file forms consenting to “opt-in” and join as Plaintiffs in this collective action. 85. Plaintiff and the FLSA Collective Members are not exempt from the right to receive minimum wages for all hours actually worked. 86. At all relevant times, CorePower had a policy and practice of failing and refusing to pay minimum wages for all hours actually worked to its interns and instructors. 87. As a result of CorePower’s failure to compensate its interns and instructors, including Plaintiff and the FLSA Collective Members, with minimum wages for all hours actually worked, CorePower violated, and continues to violate, the Violation of the Fair Labor Standard Act – Minimum Wages (Nationwide FLSA Collective Action) Violation of the Illinois Minimum Wage law (Illinois Class Action) Violation of the Illinois Wage Payment and Collection Act (Illinois Class Action) | win |
431,799 | 19. Defendants operate a restaurant and catering business in Tyler, Texas. The restaurant is called Traditions. 20. In the year 2015, Traditions had annual gross receipts in excess of $500,000 (exclusive of excise taxes). 21. In the year 2016, Traditions had annual gross receipts in excess of $500,000 (exclusive of excise taxes). 22. In the year 2017, Traditions had annual gross receipts in excess of $500,000 (exclusive of excise taxes). 23. In the four (4) quarters prior to the filing of this Complaint, Traditions had cumulative gross receipts in excess of $500,000 (exclusive of excise taxes). 24. Defendants employed Goss to work as a server for Traditions within the three-year period preceding the filing of this lawsuit. 25. Defendant Owens possesses the power to hire and fire employees such as Goss and other restaurant employees including Class Members. Owens also implements the general policies of the restaurant, oversees the general policies and operations of the restaurant, approves and signs employee paychecks, and determines the pay structure and other employment policies affecting Goss and Class Members’ employment. 26. Defendant Owens has exerted significant operational control over the restaurant, its employees, and pay policies during the three (3) years preceding this filing. 8 27. Defendants employ employees such as Goss and Class Members on an hourly basis. Goss and Class Members also earn tips as part of their compensation. 28. Specifically, Defendants paid Goss and Class Members an hourly rate that was as little as $2.13 per hour, plus a portion of the tips that Goss and Class Members earned. 29. Defendants paid Goss and Class Members various hourly rates, with the majority of those hours, Goss and Class Members were working for an hourly wage that was less than $7.25. 30. For example, Defendants paid Goss and Class Members $2.13 per hour while waiting tables, $3.75 per hour for waiting tables as shift lead, $4.25 per hour for training. In each instance where Defendants paid Goss and Class Members a sub- minimum wage, Defendants purported to apply a portion of the tips Goss and Class Members earned towards Defendants’ minimum wage obligation. 31. At other times during their employment, Defendants paid Goss and Class Members an hourly wage ranging from $7.25 up to $9.00 per hour plus a portion of the tips that Goss and Class Members earned. 32. Defendants violated Section 203(m) of the FLSA by: (1) failing to distribute to Goss and Class Members the entire amount of their tips; (2) requiring Goss and Class Members to share tips with employees who may not lawfully participate in a tip pool – including employees working in the kitchen; (3) making illegal deductions from the wages of Goss and Class Members – minimum wage employees – for items such as uniforms and meals; and (4) failing to inform Goss and 9 Class Members of the FLSA’s Section 203(m) tip-credit provisions. 33. First, Defendants regularly retained a portion of Goss and Class Members’ tips. As one example, Goss and Class Members regularly work catering events where Defendants pay as little as $2.13 per hour plus tips. As part of these catering events, customers will leave a tip for the service provided by Goss and Class Members. However, Defendants not distribute the entire amount of these earned tips to Goss and Class Members. Instead, Defendants deducted as much as one-half (1/2) of the total tip before distributing the remaining one-half (1/2) to Goss and Class Members. 34. Second, Defendants distribute a portion of Goss and Class Members’ tips to back-of-the-house employees working in the kitchen including the cooks. However, an employer violates the FLSA when it distributes employees’ tips to back-of-the- house employees, such as cooks. Here, Defendants’ practice of distributing a portion of Goss and Class Members’ tips to back-of-the-house employees is a violation of 29 U.S.C. § 203(m). 35. Third, Defendants charged Goss and Class Members for their uniforms. The cost of these uniforms was passed along to Goss and Class Members, thereby, violating condition two of 29 U.S.C. § 203(m). See also, Reich v. Priba Corp., 890 F. Supp. 586, 596-97 (N.D. Tex. 1995) (if employer requires employee to wear a uniform, employer cannot count uniform expense as wages to satisfy minimum wage requirement) (citing 29 C.F.R. 531.3(d)(1), (2) & 29 C.F.R. 531.32(c)). 36. Defendants also charged Goss and Class Members more than the cost of 10 the meals that Goss and Class Members consumed during their shifts. See Dole v. Bishop, 740 F. Supp. 221, 1227 (S.D. Miss. 1990) (for employer-provided, on-the-job meals, employer can only charge employee for reasonable cost of meal to the employer) (citing 29 U.S.C. § 203(m)). Charging Goss and Class Members more than Defendants’ cost of the meals consumed during working hours is also a violation of Section 203(m). 37. Because Defendants failed to allow Goss and Class Members to retain all tips earned, Defendants violated 29 U.S.C. § 203(m) of the FLSA. As such, Defendants are liable to Goss and Class Members for the full amount of the minimum wage for every hour worked where Goss and Class Members were paid a direct cash wage of less than minimum wage. In addition, regardless of the direct hourly wage that Defendants paid Goss and Class Members, Defendants are liable to Goss and Class Members for all of the misappropriated tips.1 38. In addition to illegally retaining Goss and Class Members tips, Defendants did not inform Goss and Class Members of the provisions of the tip credit, violating condition one of 29 U.S.C. § 203(m). See 29 C.F.R. § 531.59(b). a. Defendants did not inform Goss and Class Members of the amount of the tips to be credited toward the minimum wage. See Id. b. Defendants did not inform Goss and Class Members that all tips received by the employee must be retained by the employee. See Id. 1 In March of 2018, the FLSA was amended to clarify that Section 203(m) prohibits employers from requiring employees from retaining tips or sharing tips with non-tipped employees regardless of whether the employer pays less than $7.25 per hour. See 29 U.S.C. § 203(m)(2(B). 11 c. Defendants did not inform Goss and Class Members that the tip credit shall not apply to any employee who has not been informed by the employer of the provisions for a tip credit. See Id. d. Defendants did not inform Goss and Class Members that the tip credit may only be taken as to the amount of the tips actually received by the employee and that the employer may not retain any of the employee’s tips. See Id. 39. Next, Defendants willfully violated and are violating the provisions of sections 7 and 15(a)(2) of the FLSA, 29 U.S.C. §§ 207 and 215(a)(2), by failing to pay Goss and Class Members, for their employment in an enterprise engaged in commerce or the production of goods for commerce, at rates not less than one-and-one-half times the regular rate for all hours worked over forty (40) in a single workweek. 40. Defendants violated the overtime provisions set out in section 7 of the FLSA, 29 U.S.C. § 207, by incorrectly paying Goss and Class Members one-and-one- half times the subminimum wage for hours worked over forty (40) in a single workweek and failing to include all compensation, bonuses, and other remuneration in the regular rate for purposes of calculating overtime pay. The overtime rate for employees paid a subminimum wage (e.g. Goss and Class Members) is calculated by subtracting the amount of the tip credit from the full overtime rate. See DOL Field Operations Handbook 32j18. (An employer may not take a higher tip credit against its minimum wage obligation during overtime hours than is taken during non- overtime hours.). Moreover, Goss and Class Members’ overtime rate did not include 12 all compensation, bonuses, and other remuneration in the calculation of the regular rate for purposes of calculating overtime pay. 41. Defendants’ method of paying Goss and Class Members in violation of the FLSA was not based on good-faith and a reasonable belief that its conduct complied with the FLSA. Therefore, an award of liquidated damages is mandatory. 42. Defendants’ method of paying Goss and Class Members in violation of the FLSA was willful and was not based on good-faith and reasonable belief that its conduct complied with the FLSA. A three-year statute of limitations applies due to the willful nature of the violations. 29 U.S.C. § 255(a). 43. During the three-year period preceding the filing of this lawsuit, Defendants have employed individuals who performed similar job duties under a similar payment scheme as used to compensate Goss. VI. 44. The foregoing paragraphs are fully incorporated herein. 45. Goss brings this FLSA claim, as an “opt-in” collective action pursuant to 29 U.S.C. § 216(b) (the “Collective Action”). Goss brings this action as a representative of all similarly-situated former and current servers of Defendants. The proposed collective of similarly situated employees (“Class Members”) sought to be certified pursuant to 29 U.S.C. § 216(b), is defined as: All individuals who worked as servers for Defendants in the three (3) years preceding the filing of this Complaint. 46. FLSA claims may be pursued by those who opt-in to this case, pursuant 13 to 29 U.S.C. § 216(b). 47. Other employees have been victimized by Defendants’ common pattern, practice, and scheme of paying employees in violation of the FLSA. Named Plaintiff is aware of other employees at Defendants restaurant who were paid in the same unlawful manner as Named Plaintiff. Named Plaintiff is aware that the illegal practices or policies of Defendants have been uniformly imposed on the Class Members. 48. Named Plaintiff and the Class Members have the same pay structure, have the same job duties, compensation, and are subjected to the same compensation policies. Named Plaintiff has personal knowledge that Class Members are all victims of Defendants’ unlawful compensation practices as set forth in this Complaint. 49. Named Plaintiff and the Class Members are all non-exempt for purposes of minimum wage payments under the FLSA. 50. Named Plaintiff and the Class Members are all non-exempt for purposes of overtime under the FLSA. 51. Defendants’ failure to pay wages in accordance with the FLSA is a result of Defendants’ generally applicable policies or practices and does not depend on the personal circumstances of the Class Members. Named Plaintiff’s experience in regard to pay is typical of the experiences of the Class Members. 52. Although the exact amount of damages may vary among Class Members, the damages for the Class Members can be easily calculated by a simple formula. The Class Members’ claims arise from a common nucleus of facts. 14 Specifically, Defendants’ systematic course of wrongful conduct in violation of the FLSA’s minimum wage requirements caused harm to Named Plaintiff and Class Members. 53. The foregoing paragraphs are fully incorporated herein. 54. During the relevant period, Defendants have violated and are violating Section 6 of the FLSA, 29 U.S.C. § 206, and 215(a)(2), by employing Named Plaintiff and Class Members in an enterprise engaged in commerce or in the production of commerce within the meaning of the FLSA, as aforesaid, by failing to pay such employees at the minimum wage rate. 55. Defendants pay Named Plaintiff and Class Members less than the federally mandated minimum wage of $7.25 per hour. None of the exemptions or defenses provided by the FLSA regulating the duty of employers to pay employees for all hours worked at the required minimum wage rate are applicable to Defendants, Named Plaintiff, or Class Members. 56. Defendants failure to pay Named Plaintiff and Class Members at the minimum wage rate is a violation of the FLSA’s minimum wage requirement. See 26 60. The foregoing paragraphs are fully incorporated herein. 61. During the relevant period, Defendants have violated and are violating Section 7 of the FLSA, 29 U.S.C. § 207, 215(a)(2), by employing Goss and Class Members in an enterprise engaged in commerce or in the production of commerce within the meaning of the FLSA, as aforesaid, by failing to pay such employees at a rate of not less than one-and-one-half times the regular rate. 62. In addition, Goss and Class Members’ regular rate must include all compensation, bonuses, and other remuneration paid by Defendants for purposes of calculating the overtime rate. See 29 C.F.R. 778.208. Defendants have failed to 16 include all compensation, bonuses, and other renumeration into Named Plaintiff and Class Members’ regular rate for purposes of calculating the overtime premium rate. 63. None of the exemptions or defenses provided by the FLSA regulating the duty of employers to pay employees for all hours worked at the required overtime rate are applicable to Defendants, Named Plaintiff, or Class Members. IX. 64. By requiring Named Plaintiff and Class Members to share their tips with Defendants, Defendants obtained money which in equity and good conscience belongs to Named Plaintiff and the Class Members. See H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 507 (Tex. App.—Fort Worth 2012, no pet.) (citing Staats v. Miller, 150 Tex. 581, 584, 243 S.W.2d 686, 687 (1951)) (“Money had and received is an equitable action that may be maintained to prevent unjust enrichment when one person obtains money which in equity and good conscience belongs to another.”). 65. Defendants obtained Named Plaintiff and Class Members’ tips maliciously. X. FAIR LABOR STANDARDS ACT FAIR LABOR STANDARDS ACT THE COMMON LAW OF TEXAS | lose |
115,440 | 44. Defendant Tilchin advertises its firm as being legal experts in all aspects of condominium and association law including a speciality in real estate: Right Legal Advice for Your Condominium and HOA Issues When you need legal advice and counseling for your condominium, HOA or Co-op trust that the legal experts of Tilchin & Hall, P.C. are here to help. We have an extensive background in these practice areas and can handle properties of any size. 2:17-cv-11086-SFC-MKM Doc # 1 Filed 04/06/17 Pg 14 of 30 Pg ID 14 Tilchin & Hall, P.C. has you covered on virtually all aspects of association law. We're proud to be one of the leading experts on FHA certification and re-certification with our fingers on the pulse of new and upcoming changes Experienced Attorneys Tilchin & Hall, P.C., established in 1978, can handle multiple civil matters, including a specialty in real estate (including association law), business and estate planning. Steven Hall, Adam Randall and Catherine Mills, our attorneys are involved in the day-to- day work of the legal practice. 45. At the pre-publication stage, Tilchin sends out a computer template letter to Michigan homeowners in an initial communication letter outlining their intent to collect upon the debt while also providing a Notice of Lien Foreclosure Sale of the Plaintiff class’s home showing the date of foreclosure. Please see Exhibit 1 as an example of the letter sent and foreclosure notice to the homeowners generally and Plaintiffs specifically that was sent for viewing by the public at the Macomb County Clerk and Register of Deeds office and public website. 46. The notice at Exhibit 1 provides Plaintiff information that Tilchin is a debt collector, attempting to collect on a debt. The letter was accompanied by a Condominium Lien Pursuant to MCLA 559.208 that stated that Defendant was collecting a default condo debt even though the Statute does not require that notification be made to the public. 47. Defendant Tilchin sent dunning letters at Exhibit 1 as a debt collector as defined by 15 U.S.C. § 1692a (6). The Letter at Exhibit 1 was sent to Plaintiff in connection with the collection of a “debt” as defined by 15 U.S.C. § 1692a (5). 2:17-cv-11086-SFC-MKM Doc # 1 Filed 04/06/17 Pg 15 of 30 Pg ID 15 48. The next part of the foreclosure process after Tilchin sends out the initial dunning letters is the publication stage where Tilchin advertises the Notice of Lien Foreclosure Sale at Exhibit 2. This communication and Notice is placed in local newspapers, the internet, county buildings and the Detroit Legal News and made after the initial communication at Exhibit 1 under Section 1692e (11) of the 'FDCPA. 49. The public is informed that the Elliott family, owes a debt to a debt collector, the amount is publicized, the address of the home is publicized and the fact that the Plaintiffs have “defaulted on the payments of certain assessments” as evidenced by a lien on the property is publicized in violation of the FDCPA and beyond any requirements of the Michigan Foreclosure Statute. The Notice was placed in local newspapers, county buildings and the Detroit Legal News for publication from March 31, 2017 to April 28, 2017. See Notices at Exhibit 1 and 2 that a Sheriff Sale of the Condo was to occur on May 5, 2017. 50. Further and in violation of Plaintiff and the Class Members right to privacy and rights under the FDCPA and RCPA, the Notice of Mortgage Foreclosure Sale and Plaintiffs’ private debt information was placed in newspapers across the county of Macomb, in the Detroit Legal News, the internet and county buildings. Please see Exhibit 1 and 2. 51. In the Lien Foreclosure Notice publicized in the press, county buildings and the Detroit Legal News, the Defendants publicize in large letters that, “THIS FRIM IS A DEBT 76. Plaintiff realleges the above pleadings. The FDCPA Class consists of all persons that have received collection letters and Public Foreclosure Notices at Exhibit 1 and 2 without meaningful attorney involvement and Public Notices with their name and address, Condo debt and the amount of the Condo debt in default owed and published inside a Lien Foreclosure Notice of Sale (Examples being Exhibit 2) and published in newspapers, county buildings and the internet in violation of 15 U.S.C. §§ 1692e, 15 U.S.C. §§ 1692c(b), 15 USC 1692e (6), 15 U.S.C. §§ 1692e(2)(A), (B) and 15 U.S.C. §§ 1692d (4) within a one year period prior to the filing of this lawsuit. 2:17-cv-11086-SFC-MKM Doc # 1 Filed 04/06/17 Pg 22 of 30 Pg ID 22 77. With the FDCPA Class, there are questions of law and fact common to each class, which common issues predominate over any issues involving only individual class members. The principal and common issue is whether Defendant’s conduct in connection with the Publicizing that a homeowner owes a Condo, the amount, their address and that a debt collector is involved in a Lien Foreclosure Sale violates the FDCPA. 78. A FDCPA sub class would be all homeowners with a Michigan address that have paid a condo lien debt to Defendant Tilchin for excessive and increased collection attorney fees and costs BEFORE a Court has determined that “the association of co-owners, if successful, may recover the costs of the proceeding, other charges, and such reasonable attorney fees as maybe determined by the court to the extent authorized by the terms and provisions of the Condominium Documents.” 79. There are no individual questions here. All Michigan homeowners with defaulted debt are having their Condo Lien default placed out in the open for the world to see in violation of the 95. Defendants have violated the RCPA. Defendant’s violations of the RCPA include, but are not necessarily limited to, the following: a. Defendants violated MCLA 445.252(a) by communicating with Plaintiff and class members in a deceptive manner using the stationery of an attorney to without meaningful attorney involvement to Plaintiff and class members with (Exhibit 1 and 2) as mentioned above; and b. Defendants violated MCLA 445.252(n) by using a harassing, oppressive, or abusive method to collect a debt, using (Exhibit 1 and 2) as mentioned above; and 2:17-cv-11086-SFC-MKM Doc # 1 Filed 04/06/17 Pg 27 of 30 Pg ID 27 c. Defendants violated MCLA 445.252(e) Making an inaccurate, misleading, untrue, or deceptive statement or claim in a communication to collect a debt or concealing or not revealing the purpose of a communication when it is made in connection with collecting a debt at ((Exhibit 2); and d. Defendant has violated MCLA 445.252(f) Misrepresenting in a communication with a debtor 1 or more of the following: (i) The legal status of a legal action being taken or threatened. (ii) The legal rights of the creditor or debtor; and e. Defendants violated MCLA 445.252(d) by using forms that may otherwise induce the belief that they have judicial or official sanction is involved such as (Exhibit 2);.and f. Defendant violated MCLA 445.252(a) by communicating with a debtor in a misleading and deceptive manner with forms such as (Exhibit 1 and 2); and g. Defendants violated MCLA 445.252(m) by bringing the private debt information of Michigan Residents into the public view through newspapers, county building and internet publication with Exhibit 2; and h. Defendants violated MCLA 445.252(q) by failing to implement a procedure designed to prevent a violation by an employee with forms and practices involving (Exhibit 1and 2). Wherefore, Plaintiff seeks judgment and INJUNCTIVE RELIEF against Defendants for: a. Actual damages based on the illegal interests and costs Defendants charged of each Plaintiff, pursuant to M.C.L. 445.257 ((1). Triple Actual damages if the Court finds Defendants’ scheme and plan alleged above as willful non-compliance. M.C.L. 445.257(2); and 2:17-cv-11086-SFC-MKM Doc # 1 Filed 04/06/17 Pg 28 of 30 Pg ID 28 b. Equitable, declaratory and injunctive relief pursuant to M.C.L. 445.257(1) to stop the plan and scheme of defendants as alleged above using (Exhibit 1 and 2); and c. Reasonable attorney’s fees and court cost pursuant to M.C.L.445.257(2) with judicial sanction and Injunctive Relief. | lose |
104,733 | 51. On January 27, 2017, Defendant Trump signed the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” A copy of this Executive Order is attached to this Complaint as Exhibit A. 52. The Executive Order cites the threat of domestic terrorism committed by foreign nationals and purports to direct a variety of changes to the manner and extent to which non- citizens may seek and obtain admission to the United States. 53. Section 3(c) of the Order suspends immigrant and nonimmigrant entry into the country for 90 days for all people from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. § 1187(a)(12), with narrow exceptions not relevant here. The Executive Order applies only to nationals of Syria, Sudan, Iraq, Iran, Libya, Somalia, and Yemen.1 A. President Trump’s January 27, 2017 Executive Order ADMINISTRATIVE PROCEDURE ACT—SUBSTANTIVE VIOLATION (Against all Defendants except Defendant Trump, Asserted by all Plaintiffs) 142. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein 143. The Administrative Procedure Act, 5 U. S. C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, or contrary to statute. 144. In implementing Sections 3 and 5 of the Executive Order, Defendants federal agencies and Defendant secretaries and/or directors of those agencies have taken unconstitutional and unlawful action, as alleged in this Complaint, in violation of the Administrative Procedures Act. 145. In implementing Sections 3 and 5 of the Executive Order, Defendants federal agencies and Defendant secretaries and/or directors of those agencies have applied provisions of the Executive Order arbitrarily, in violation of the Administrative Procedures Act. 146. Defendants’ actions as set forth above were (A) arbitrary, capricious, discriminatory, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and (D) without observance of procedure required by law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D). FIFTH AMENDMENT – PROCEDURAL DUE PROCESS (Against All Defendants, Asserted by All Plaintiffs) 129. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 130. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of liberty or property interests protected under the Due Process Clause of the Fifth Amendment. 131. Defendants’ actions, as described above, have deprived Plaintiffs of their liberty and/or property interests without notice or opportunity to be heard. FIRST AMENDMENT – ESTABLISHMENT, FREE EXERCISE, SPEECH AND ASSEMBLY CLAUSES (Against All Defendants, Asserted by All Plaintiffs) 116. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 117. The First Amendment prohibits the establishment of a religion or the prohibition of the free exercise of religion. 118. The Executive Order constitutes an unlawful attempt to discriminate against Muslims and to establish a preference for one religion over another. References in the Executive Order to the seven Designated Countries are transparently a pretext to establish this preference. Singling out Muslims for disfavored treatment and granting special preferences to non-Muslims is neither justified by, nor closely fitted to, any compelling governmental interest. 119. The Executive Order also violates the rights of Plaintiff the Episcopal Diocese to receive information and speech from, and to associate freely with, refugees. | win |
271,569 | 58. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 60. Defendants employ Exotic Dancers and Drink Serving Dancers at their aforementioned locations. 61. “Exotic Dancers” refers to individuals who worked for Defendants as exotic dancers, were treated as independent contractors by Defendants, and whose compensation was through tips from Defendants’ customers. 62. “Drink Serving Dancers” refers to individuals who worked for Defendants as cocktail waitresses, were classified as employees when they worked as Cocktail Waitresses but were reclassified as independent contractors for the remainder of their shift when they worked as Exotic Dancers in a given shift–even if they returned to working as Cocktail Servers during the same shift. 63. Plaintiff Coll worked on a regular basis as an Exotic Dancer for Defendants’ adult entertainment club located in Tucson, Arizona. 64. Plaintiff Coll was compensated exclusively through tips from Defendants’ customers. That is, Defendants did not pay Plaintiff Selena Coll whatsoever for any hours worked at their establishment. 65. Plaintiff Nixon worked on a regular basis as a Cocktail Waitress Dancer for Defendants’ adult entertainment club located in Tucson, Arizona. 67. Furthermore, Defendants charged Plaintiffs Coll and Nixon a “house fee” per shift worked. Defendants also required Plaintiffs Coll and Nixon to share their tips with other non-service employees who do not customarily receive tips, including the employers, managers, disc jockeys, bouncers, and the house. 69. Furthermore, Defendants are in violation of Arizona’s tipped employee compensation provision, ARS ¶ 23-363(C), which provides that “the employer may pay a wage up to $3.00 per hour less than the minimum if the employer can establish…that for each week, when adding tips received to wages paid, the employee received not less than the minimum wage for all hours worked.” Defendants failed to compensate Plaintiffs Coll and Nixon with wages for hours worked in violation of the Arizona Minimum Wage Act. 70. Defendants illegally classified the Exotic Dancers and Drink Serving Dancers as independent contractors. However, at all times, the Putative Collective and Class Members were employees of Defendants. 71. In addition, Defendants instructed the Exotic Dancers and Drink Serving Dancers about when, where, and how they were to perform their work. 73. Defendants misclassified Plaintiffs Coll and Nixon and the Exotic Dancers and Drink Serving Dancers as independent contractors to avoid Defendants’ obligation to pay them pursuant to the FLSA and the AMWA. 74. Plaintiffs Coll and Nixon are not exempt from the overtime and minimum wage requirements of the FLSA and AMWA. 94. Defendants’ practice of failing to pay Plaintiffs Coll and Nixon and the Putative Collective and Class Members at the required minimum wage rate violates the 96. Plaintiffs Coll and Nixon incorporate by reference all allegations in all preceding paragraphs. 97. Defendants’ practice of failing to pay Plaintiffs Coll and Nixon and the Putative Collective and Class Members time-and-a-half rate for hours worked in excess of forty (40) per workweek violates the FLSA, 29 U.S.C. § 207. 98. None of the exemptions provided by the FLSA regulating the duty of employers to pay all employees for all hours worked at the required minimum wage rate are applicable to the Defendants or Plaintiffs Coll, Nixon, or the Putative Collective and Class Members. VIOLATION OF THE FAIR LABOR STANDARDS ACT FAILURE TO PAY MINIMUM WAGE (COLLECTIVE ACTION) VIOLATION OF THE ARIZONA MINIMUM WAGE ACT FAILURE TO PAY MINIMUM WAGE (CLASS ACTION) 107. Plaintiffs Coll and Nixon incorporate by reference all allegations in all preceding paragraphs. 108. Defendants’ practice of willfully failing to pay Plaintiffs Coll and Nixon and the Putative Collective and Class Members wages at the rate of the Arizona Minimum Wage violates the AMWA, ARS § 23-363. VIOLATION OF THE FAIR LABOR STANDARDS ACT FAILURE TO PAY OVERTIME (COLLECTIVE ACTION) | lose |
319,520 | 16. MKC has conducted manufacturing operations at the Facility for many decades, dating back at least until 1967. 17. Various hazardous substances, including tetrachloroethylene (“PCE”) and trichloroethylene (“TCE”), known human carcinogens, were used at the Facility during MKC’s ownership and operation of the Facility. Upon their disposal by MKC, PCE and TCE became hazardous wastes within the meaning of RCRA and regulations adopted thereunder. MKC used PCE and TCE at the Facility over the course of several decades, including throughout most of the 1980’s. 24. Plaintiffs repeat, reallege and incorporate by reference paragraphs 1 through 23 of this Complaint as paragraph 24 of this Count I, as though fully set forth herein. 32. Plaintiffs repeat, reallege and incorporate by reference paragraphs 1 through 31 of this Complaint as paragraph 32 of this Count II, as though fully set forth herein. 37. Plaintiffs repeat, reallege and incorporate by reference paragraphs 1 through 36 of this Complaint as paragraph 37 of this Count III, as though fully set forth herein. 42. Plaintiffs repeat, reallege and incorporate by reference paragraphs 1 through 41 of this Complaint as paragraph 42 of this Count IV, as though fully set forth herein. 43. MKC continues to cause and permit contaminants to enter Plaintiffs’ properties. This entry is unlawful and without the consent of Plaintiffs. 44. In addition, contaminants that originate from the Facility are known, or should be known, by MKC to be present at, on and/or inside Plaintiffs’ properties. In spite of this knowledge, MKC has failed to remove or otherwise sufficiently remediate these hazardous waste contaminants from Plaintiffs’ properties. 47. Plaintiffs repeat, reallege and incorporate by reference paragraphs 1 through 46 of this Complaint as paragraph 47 of this Count V, as though fully set forth herein. 48. MKC has acted in a willful and wanton manner and in reckless indifference to Plaintiffs’ health and property, and to the safety of the general public. 49. MKC knew that Plaintiffs are exposed to and otherwise threatened by this contamination, yet has intentionally failed to promptly and adequately investigate and mitigate the threat to Plaintiffs. 50. MKC has failed to properly dispose of, contain and abate the hazardous wastes at, and released from, the Facility. MKC has failed to adequately remediate the Facility and thereby has continued to contaminate Plaintiffs’ properties. MKC also has failed to sufficiently remediate Plaintiffs’ homes, exposing Plaintiffs to hazardous chemicals. NEGLIGENCE PRIVATE NUISANCE RCRA § 6972(a)(1)(B) TRESPASS WILLFUL AND WANTON MISCONDUCT | win |
63,854 | 11. Plaintiffs bring this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 12. The Class consists of: a. all individuals with addresses in the State of Texas; b. to whom Defendant Capital sent a collection letter attempting to collect a consumer debt; c. that uses the term “satisfy in full;” d. for a discounted settlement offer; e. which letter was sent on or after a date one (1) year prior to the filing of this action and on or before a date twenty-one (2l) days after the filing of this action. 13. The identities of all class members are readily ascertainable from the records of Defendants and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. 14. Excluded from the Plaintiff Classes are the Defendants and all officer, members, partners, managers, directors and employees of the Defendants and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. 15. There are questions of law and fact common to the Plaintiff Classes, which common issues predominate over any issues involving only individual class members. The principal issue is whether the Defendant's collection actions such as the referenced letters attached as Exhibit A violate 15 U.S.C. § l692e. 16. The Plaintiffs' claims are typical of the class members, as all are based upon the same facts and legal theories. The Plaintiffs will fairly and adequately protect the interests of the Plaintiff Classes defined in this complaint. The Plaintiffs have retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiffs nor their attorneys have any interests, which might cause them not to vigorously pursue this action. 17. This action has been brought, and may properly be maintained, as a class action pursuant to the provisions of Rule 23 of the Federal Rules of Civil Procedure because there is a well-defined community interest in the litigation: a. Numerosity: The Plaintiffs are informed and believe, and on that basis allege, that the Plaintiff Classes defined above are so numerous that joinder of all members would be impractical. b. Common Questions Predominate: Common questions of law and fact exist as to all members of the Plaintiff Classes and those questions predominance over any questions or issues involving only individual class members. The principal issue is whether the Defendant’s communications to consumers, in the forms attached as Exhibit A violate 15 U.S.C. §l692e. c. Typicality: The Plaintiff’s claims are typical of the claims of the class members. The Plaintiffs and all members of the Plaintiff Classes have claims arising out of the Defendants' common uniform course of conduct complained of herein. d. Adequacy: The Plaintiffs will fairly and adequately protect the interests of the class members insofar as Plaintiffs have no interests that are adverse to the absent class members. The Plaintiffs are committed to vigorously litigating this matter. Plaintiffs have also retained counsel experienced in handling consumer lawsuits, complex legal issues, and class actions. Neither the Plaintiffs nor their counsel have any interests which might cause them not to vigorously pursue the instant class action lawsuit. e. Superiority: A class action is superior to the other available means for the fair and efficient adjudication of this controversy because individual joinder of all members would be impracticable. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum efficiently and without unnecessary duplication of effort and expense that individual actions would engender. 18. Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that the questions of law and fact common to members of the Plaintiff Classes predominate over any questions affecting an individual member, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 19. Depending on the outcome of further investigation and discovery, Plaintiffs may, at the time of class certification motion, seek to certify a class(es) only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). 20. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. 21. On a date better known to the original creditor Fitness In Training (formerly world gym), the Plaintiff incurred an obligation. 22. The Fitness In Training (formerly world gym). obligation arose out of transactions in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. 23. The Fitness In Training (formerly world gym) obligation is a "debt" as defined by 15 U.S.C. §1692a (5). 24. Fitness In Training (formerly world gym) is a "creditor" as defined by 15 U.S.C.§ 1692a(4). 25. Fitness In Training (formerly world gym) contracted the Defendant Capital to collect the alleged debt. 26. Defendants collect and attempt to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. Violation I –June 3, 2019 Collection Letter 27. On or around June 3, 2019 Defendant Capital sent the Plaintiff a collection letter (the “Letter”) regarding the alleged debt owed to Fitness In Training (formerly world gym). A true and correct copy of the Letter is attached hereto as Exhibit A. 28. The letter states: “We are pleased to offer the above-listed satisfy-in-full offer on behalf of our client, Fitness In Training (formerly world gym). This offer is good for 10 days from the date of this letter. We are not obligated to renew this offer. By clearing up this delinquent obligation, we will request that the 3 national credit bureaus update the tradeline associated with your account to reflect this payment activity.” 29. By describing the effect of a discounted payment as “satisfy in full,” the letter falsely and deceptively states two contradictory terms, one of which is false. Either (1) the account is paid in full, or (2) the account was settled for a discount at less than full. 30. By using both the term “satisfy,” which means payment less than full and the term “in full,” which means paid in full, the letter is contradictory and materially misleading to the consumer who would be unable to ascertain the true effects of making the payment requested in the letter. 31. These contradictory terms are also deceptive and confusing to the Plaintiff as to what exactly will be reported on the Plaintiff’s credit report. 32. It is unclear if the balance will reflect zero, and further if it will state it was “paid in full”, or “settled for less than full balance.” 33. Under the FDCPA, a collection letter is materially misleading if it is open to more than one interpretation, one of which is false. 34. Plaintiff sustained an informational injury as she was unable to ascertain whether acceptance of the settlement amount would actually satisfy his account. 35. As a result of Defendant's deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged. 36. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully state herein with the same force and effect as if the same were set forth at length herein. 37. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e. 38. Pursuant to 15 U.S.C. § 1692e, a debt collector may not use any false, deceptive or misleading representation or means in connection with the collection of any debt. 39. Defendant violated said section a. by omitting material information creating a false and misleading representation of the status of the debt in violation of §1692e(10); and b. by falsely representing the character, amount or legal status of the debt in violation of §1692e(2)(A); 40. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant’s conduct violated Section 1692e et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692e et seq. | win |
186,376 | 14. In 1988, members of the United States Senate warned that records of consumers’ purchases and rentals of audiovisual and publication materials offer “a window into our loves, likes, and dislikes,” and that “the trail of information generated by every transaction that is now recorded and stored in sophisticated record-keeping systems is a new, more subtle and pervasive form of surveillance.” S. Rep. No. 100-599 at 7–8 (1988) (statements of Sens. Simon and Leahy, respectively). 16. Subsection 2 of the PPPA states: [A] person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials . . . shall not disclose to any person, other than the customer, a record or information concerning the purchase . . . of those materials by a customer that indicates the identity of the customer. PPPA § 2 (emphasis added). 17. Michigan’s protection of reading information reflects the “gut feeling that people ought to be able to read books and watch films without the whole world knowing,” and recognizes that “[b]ooks and films are the intellectual vitamins that fuel the growth of individual thought. The whole process of intellectual growth is one of privacy—of quiet, and reflection. This intimate process should be protected from the disruptive intrusion of a roving eye.” S. Rep. No. 100–599, at 6 (Statement of Rep. McCandless). 19. Senator Leahy also explained why choices in movies and reading materials are so private: “These activities . . . reveal our likes and dislikes, our interests and our whims. They say a great deal about our dreams and ambitions, our fears and our hopes. They reflect our individuality, and they describe us as people.” Id. 20. Michigan’s passage of the PPPA also established as a matter of law “that a person’s choice in reading, music, and video entertainment is a private matter, and not a fit subject for consideration by gossipy publications, employers, clubs, or anyone else for that matter.” Privacy: Sales, Rentals of Videos, etc., House Legislative Analysis Section, H.B. No. 5331, Jan. 20, 1989 (attached hereto as Exhibit B). 21. Despite the fact that thousands of Michigan residents subscribe to PMP’s publications, PMP disregarded its legal responsibility by systematically violating the PPPA. The Private Information Market: Consumers’ Private Information Has Real Value 23. More than a decade later, Commissioner Swindle’s comments ring truer than ever, as consumer data feeds an information marketplace that supports a $26 billion dollar per year online advertising industry in the United States.4 24. The FTC has also recognized that consumer data possesses inherent monetary value within the new information marketplace and publicly stated that: Most consumers cannot begin to comprehend the types and amount of information collected by businesses, or why their information may be commercially valuable. Data is currency. The larger the data set, the greater potential for analysis—and profit.5 26. The scope of data aggregators’ knowledge about consumers is immense: “If you are an American adult, the odds are that [they] know[] things like your age, race, sex, weight, height, marital status, education level, politics, buying habits, household health worries, vacation dreams—and on and on.”7 27. Further, “[a]s use of the Internet has grown, the data broker industry has already evolved to take advantage of the increasingly specific pieces of information about consumers that are now available.”8 28. Recognizing the serious threat the data mining industry poses to consumers’ privacy, on July 25, 2012, the co-Chairmen of the Congressional Bi- Partisan Privacy Caucus sent a letter to nine major data brokerage companies 6 See Exhibit F, Martha C. White, Big Data Knows What You’re Doing Right Now, TIME.com (July 31, 2012), http://moneyland.time.com/2012/07/31/big-data- knows-what-youre-doing-right-now/ (last visited July 30, 2021). 7 Exhibit G, Natasha Singer, You for Sale: Mapping, and Sharing, the Consumer Genome, 49. Plaintiff seeks to represent a class defined as all Michigan residents who, at any point during the relevant pre-July 30, 2016 time period, had their Private Reading Information disclosed to third parties by PMP without consent (the “Class”). Excluded from the Class is any entity in which Defendant has a controlling interest, and officers or directors of Defendant. 51. Common questions of law and fact exist as to all Class members and predominate over questions affecting only individual Class members. Common legal and factual questions include, but are not limited to: (a) whether PMP is a “retailer or distributor” of publications (i.e., magazines); (b) whether PMP obtained consent before disclosing to third parties Plaintiff’s and the Class’s Private Reading Information; and (c) whether PMP’s disclosure of Plaintiff’s and the Class’s Private Reading Information violated the PPPA. 52. The claims of the named Plaintiff are typical of the claims of the Class in that the named Plaintiff and the Class suffered invasions of their statutorily protected right to privacy (as afforded by the PPPA) as a result of Defendant’s uniform wrongful conduct, based upon Defendant’s disclosure of Plaintiff’s and the Class’s Private Reading Information. 53. Plaintiff is an adequate representative of the Class because his interests do not conflict with the interests of the Class members he seeks to represent, he has retained competent counsel experienced in prosecuting class actions, and he intends to prosecute this action vigorously. The interests of Class members will be fairly and adequately protected by Plaintiff and his counsel. 55. Plaintiff repeats the allegations contained in the foregoing paragraphs as if fully set forth herein. 56. Plaintiff brings this claim individually and on behalf of members of the Class against Defendant PMP. 57. As a magazine publisher that sells subscriptions to consumers, PMP is engaged in the business of selling written materials at retail. See PPPA § 2. 59. Because Plaintiff purchased written materials directly from PMP, he is a “customer” within the meaning of the PPPA. See PPPA § 1. 60. At various times during the pre-July 30, 2016 time period, PMP disclosed Plaintiff’s Private Reading Information, which identified him as a PGA customer, in at least three ways. 61. First, PMP disclosed mailing lists containing Plaintiff’s Private Reading Information to data aggregators and data appenders, who then supplemented the mailing lists with additional sensitive information from their own databases, before sending the mailing lists back to PMP. 62. Second, PMP disclosed mailing lists containing Plaintiff’s Private Reading Information to data cooperatives, who in turn gave PMP access to their own mailing list databases. 63. Third, PMP rented and/or exchanged its mailing lists containing Plaintiff’s Private Reading Information—enhanced with additional information from data aggregators and appenders—to third parties, including other consumer- facing companies, direct-mail advertisers, and organizations soliciting monetary contributions, volunteer work, and votes. 65. By renting, exchanging, or otherwise disclosing its customer lists, during the relevant pre-July 30, 2016 time period, PMP disclosed to persons other than Plaintiff records or information concerning his purchase of written materials from PMP. See PPPA § 2. 66. The information PMP disclosed indicates Plaintiff’s name and address, as well as the fact that he subscribed to PGA. Accordingly, the records or information disclosed by PMP indicated Plaintiff’s identity. See PPPA § 2. 67. Plaintiff and the members of the Class never consented to PMP disclosing their Private Reading Information to anyone. 68. Worse yet, Plaintiff and the members of the Class did not receive notice before PMP disclosed their Private Reading Information to third parties. 69. PMP’s disclosures of Plaintiff’s and the Class’s Private Reading Information during the relevant pre-July 30, 2016 time period were not made pursuant to a court order, search warrant, or grand jury subpoena. 70. PMP’s disclosures of Plaintiff’s and the Class’s Private Reading Information during the relevant pre-July 30, 2016 time period were not made to collect payment for their subscriptions. 72. By disclosing Plaintiff’s and the Class’s Private Reading Information during the relevant pre-July 30, 2016 time period, PMP violated Plaintiff’s and the Class’s statutorily protected right to privacy in their reading habits. See PPPA § 2. 73. As a result of PMP’s unlawful disclosure of their Private Reading Information, Plaintiff and the members of the Class have suffered invasions of their statutorily protected right to privacy (afforded by the PPPA). On behalf of himself and the Class, Plaintiff seeks: (1) an injunction requiring Defendant PMP to obtain consent from Michigan customers prior to the disclosure of their Private Reading Information as required by the PPPA; (2) $5,000.00 per Class member pursuant to PPPA § 5(a); and (3) costs and reasonable attorneys’ fees pursuant to PPPA § 5(b). Michigan’s Preservation of Personal Privacy Act Violation of Michigan’s Preservation of Personal Privacy Act (PPPA § 2) | lose |
48,766 | 2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Website, with contact information for users to report accessibility-related problems and require that any third party vendors who participate on its Website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria. 24. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and are heavily integrated with Defendant’s retail locations. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s retail locations and the numerous goods, services, and benefits offered to the public through the Website. 25. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 28. Due to the inaccessibility of Defendant’s Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendants offer to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 29. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical retail locations, and enjoying them equal to sighted individuals because: Plaintiff was unable to find: the location and hours of operation of Defendant’s physical retail location on its Website, information about retail locations and hours, sales, coupons, discounts, new releases, editorials, events, customer support, policies, and other important information preventing Plaintiff from visiting the locations. Plaintiff intends to visit Defendant's retail locations in the near future if he could access their website. 30. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 32. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendants have engaged in acts of intentional discrimination, including, but not limited to, the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 33. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 34. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 36. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired people could independently view service items, locate Defendant’s retail locations and hours of operation, shop for and otherwise research related products and services available via the Website and ordering tickets to live music events. 38. Defendants have, upon information and belief, invested substantial sums in developing and maintaining its Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making its Website equally accessible to visually impaired customers. 39. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 40. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 41. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 43. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 44. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendants have violated the ADA, NYSHRL or NYCHRL by failing to update or remove access barriers on its Website so it can be independently accessible to the Class. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 47. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 48. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 53. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendants are subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendants are a person within the meaning of N.Y. Exec. Law § 292(1). 60. Defendants are violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 61. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 62. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 64. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendants have: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 65. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 68. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 71. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 72. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 75. Defendant’s New York State physical locations are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Defendant’s Website is a service, privilege or advantage of Defendant and its Website is a service that is heavily integrated with these establishments and is a gateway thereto. 76. Defendants are subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendants are a person within the meaning of N.Y. Civil Law § 40-c(2). 77. Defendants are violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 78. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 80. Defendants have failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 81. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 82. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 83. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. Defendant’s locations are sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is heavily integrated with its establishments and is a gateway thereto. 86. Defendants are subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 87. Defendants are violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 89. Defendant’s actions constitute willful intentional discrimination against the City Sub-Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendants has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 90. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 91. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed Class and City Subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the City Subclass will continue to suffer irreparable harm. 92. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 95. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 96. Plaintiff, on behalf of himself and the Class and New York State and City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 97. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Defendant owns, operates and controls and fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 98. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL | win |
261,195 | 14. The instant action arises out of Defendants’ attempts to collect upon an outstanding obligation (“subject debt”) Plaintiff is said to owe to Cumberland. 15. The subject debt arose in connection with purchases made at Cumberland. 16. Upon information and belief, after Plaintiff’s purported default on the subject debt, Cumberland placed the subject debt with Checkredi for collection purposes. 18. On unanswered calls, Plaintiff was left a voicemail message from Checkredi, wherein Checkredi would state that it was a debt collector attempting to collect upon a debt. 19. Upon speaking with Plaintiff, Checkredi advised that it was attempting to collect upon the subject debt, which totaled approximately $11. 20. After speaking with Plaintiff, Checkredi, without any sort of authorization on the part of Plaintiff, subsequently withdrew $11, as well as an additional $25, from Plaintiff’s checking account. 21. Plaintiff was shocked and confused to find that Checkredi made these unauthorized withdrawals. 22. Plaintiff was additionally confused as to why Checkredi withdrew an extra $25 from his checking account, as this additional fee was never mentioned by Checkredi’s representative during the conversation between the parties. 23. Upon information and belief, Checkredi withdrew the money from Plaintiff’s account at the direction of Cumberland, and both Defendants unlawfully retaining the funds from Checkredi’s unauthorized withdrawal. 24. All of Defendants’ collection actions at issue occurred within the one year preceding the date of the filing of this Complaint. 25. Plaintiff suffered actual and concrete damages stemming from Defendants’ conduct, including the pecuniary loss associated with the unauthorized withdrawal, as well as the emotional distress stemming from having funds taken from his bank account without authorization 26. Defendants’ conduct harmed Plaintiff’s statutorily protected interest to be free from deceptive, misleading, harassing, and unfair collection conduct. 27. Plaintiff brings this action on his own behalf and as a class action against Defendants on behalf of the following class: All persons residing in the state of Florida from whom Checkredi withdrew sums of money, from such persons’ bank account or other financial account, absent such persons’ authorization for such withdrawal, in connection with Checkredi’s efforts to collect upon any obligation said to be owed to Cumberland, during the one year preceding the filing of this action through the date of class certification. 28. This action is properly maintainable as a class action under Federal Rule of Civil Procedure 23(a). 29. Upon information and belief, the Class consists of hundreds or more persons throughout the state of Florida, such that joinder of all Class members is impracticable. 30. There are questions of law and fact that are common to the Class members that relate to Checkredi’s violations of the FDCPA and Defendants’ violations of the FCCPA, particularly because they are based on a common course of conduct by Defendants. 31. The claims of Plaintiff are typical of the claims of the proposed Class because they are based on the same legal theories, and Plaintiff has no interest that are antagonistic to the interests of the Class members. 32. Plaintiff is an adequate representative of the Class and has retained competent legal counsel experienced in class actions and complex litigation. 34. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, as the pursuit of hundreds of individual lawsuits would cause a strain on judicial resources and could result in inconsistent or varying adjudications, yet each Class member would be required to prove an identical set of facts in order to recover damages 35. Plaintiff repeats and realleges paragraphs 1 through 34 as though fully set forth herein. 36. Plaintiff is a “consumer” as defined by 15 U.S.C. §1692a(3) of the FDCPA. 37. Checkredi is a debt collector, as defined by 15 U.S.C. § 1692a, because it is a person who use any instrumentality of interstate commerce or the mails in a business the principal purpose of which is the collection of debts, and because they regularly use the mails and/or telephones to collect, or attempt to collect, directly or indirectly consumer delinquent debts owed or due or asserted to be owed or due another. Checkredi further identifies itself as a debt collector 39. The FDCPA, pursuant to 15 U.S.C. §1692d, prohibits a debt collector from engaging “in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 40. Checkredi violated §1692d when it harassingly and abusively withdrew funds from Plaintiff’s bank account without authorization. Withdrawing funds from a consumer’s bank account absent authorization is inherently conduct with the natural consequence of harassing, oppressing, and abusing such consumer. b. Violations of FDCPA § 1692e et seq. 41. The FDCPA, pursuant to 15 U.S.C. §1692e, prohibits a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 42. In addition, this section enumerates specific violations, such as: “The representation or implication that nonpayment of any debt will result in . . . the seizure . . . of any property . . . of any person unless such action is lawful . . . .” 15 U.S.C. § 1692e(4). “The threat to take any action that cannot legally be taken . . . .” 15 U.S.C. § 1692e(5) “The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. §1692e(10). 44. Checkredi further violated §§ 1692e and e(10) through its confusing and misleading representations as to the amount Defendants were attempting to collect in connection with the subject debt. Although Checkredi informed Plaintiff that the subject debt totaled $11, it nevertheless withdrew (without authorization) a total of $36 from Plaintiff’s account, leaving Plaintiff confused and concerned as to what purported charges made up the $25 additional to the balance of the subject debt as represented by Checkredi. c. Violations of FDCPA § 1692f 45. The FDCPA, pursuant to 15 U.S.C. §1692f, prohibits a debt collector from using “unfair or unconscionable means to collect or attempt to collect any debt.” § 1692f(1) further prohibits, “[t]he collection of any amount . . . unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 46. Checkredi violated §§1692f and f(1) when it unfairly and unconscionably withdrew funds from Plaintiff’s bank account without authorization. It was unlawful for Checkredi to make such withdrawal’s completely absent authorization. WHEREFORE, Plaintiff, PATRICK J. FAY, respectfully requests that this Honorable Court grant the following: a. Declaring that the practices complained of herein are unlawful and violate the aforementioned bodies of law; b. Certification of the Class requested above and appointment of the Plaintiff as Class Representative and of his counsel as Class Counsel; c. Statutory damages under 15 U.S.C. § 1692k(a); d. Awarding Plaintiff costs and reasonable attorney fees as provided under 15 U.S.C. §1692k(a)(3); and e. Awarding any other relief as this Honorable Court deems just and appropriate. 55. Plaintiff restates and realleges paragraphs 1 through 34 as though fully set forth herein. 56. Under Florida law, the elements for a cause of action for unjust enrichment are: (1) the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. Hillman v. Const. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. 4th DCA 1994). PLAINTIFF INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST CHECKREDI PLAINTIFF INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST DEFENDANTS | lose |
341,481 | 2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 22. Defendant is a Hotelier that operates the PENINSULA HOTEL as well as the PENINSULA HOTEL website, offering features which should allow all consumers to access the goods and services which Defendant offers in connection with its Hotel. 23. Defendant operates PENINSULA HOTEL (its “Hotel”) in New York City, at 700 5th Avenue, New York, NY 10019. 24. Its Hotel constitutes a place of public accommodation. Defendant’s Hotel provides to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services including Hotel locations, information pertaining to room availability and room rates, information about hotel amenities, including hours of operation, and related goods and services. 26. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s Hotels. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Hotels and the numerous goods and services and benefits offered to the public through the Website. 27. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 30. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 31. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Hotels on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 32. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 34. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 38. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently view service items, locate Defendant’s physical locations and hours of operation, shop for and otherwise research related goods and services available via the Website. 40. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 41. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 43. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 44. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 46. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 47. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 49. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 50. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 51. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 52. Defendant’s Hotels are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s Hotels. The Website is a service that is integrated with these locations. 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 55. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 56. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 58. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 59. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 60. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 61. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 62. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, services that Defendant makes available to the non-disabled public. 64. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 65. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 67. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 68. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 69. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 70. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 71. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 73. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 74. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 75. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 76. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 78. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 79. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 80. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 81. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 83. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 84. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 85. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 86. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 87. Defendant’s locations are sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishments. 89. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 90. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 91. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 93. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 94. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 95. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 96. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 97. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 98. Plaintiff, on behalf of herself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. | win |
8,912 | 25. Defendant embarked upon an intrusive telemarketing campaign to promote its car insurance services. 26. Specifically, on numerous dates, including May 14, 2018, Defendant placed, or caused to be placed, an automated text message to Plaintiff’s cellular telephone number ending in 1818 (“1818 Number”): 28. Defendant’s text messages constitute telemarketing/advertising because they promoted Defendant’s business, goods, and services. 29. The text messages originated from telephone number 629-772-7961, a number which, on information and belief, is owned and operated by Defendant. 31. Long codes work as follows: Private companies known as SMS gateway providers have contractual arrangements with mobile carriers to transmit two-way SMS traffic. These SMS gateway providers send and receive SMS traffic to and from the mobile phone networks' SMS centers, which are responsible for relaying those messages to the intended mobile phone. This allows for the transmission of a large number of SMS messages to and from a long code. 32. Plaintiff received the subject texts within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused similar texts to be placed to individuals residing within this judicial district. 33. At no point in time did Plaintiff provide Defendant with her express consent to be contacted by telephone using an ATDS. 34. Plaintiff is the subscriber and sole user of the 1818 Number. 35. The impersonal and generic nature of Defendant’s text messages establishes that Defendant utilized an ATDS to transmit the messages. 36. Specifically, the text messages are impersonal as they never state the name of their intended recipient or provide any other specific information which would establish that the text messages were drafted with a specific intended recipient in mind. 37. Additionally, the text message state “cancel to cancel.” The inclusion of opt-out instructions in the text messages is another sign that Defendant used an ATDS to transmit the messages. 39. Defendant’s unsolicited text caused Plaintiff actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text message also inconvenienced Plaintiff and caused disruption to her daily life. 40. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. 41. Plaintiff brings this case on behalf of the below defined Class: All persons within the United States who, within the four years prior to the filing of this Complaint; were sent a text message; from Defendant or anyone on Defendant’s behalf; to said person’s cellular telephone number; using the same equipment, or type of equipment, used to text Plaintiff’s cellular telephone; without the recipient’s prior express consent. 42. Defendant and their employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class but believes the Class members number in the several thousands, if not more. 45. There are numerous questions of law and fact common to the Class which predominate over any questions affecting only individual members of the Class. Among the questions of law and fact common to the Class are: (1) Whether Defendant made non-emergency text messages to Plaintiff and Class members’ cellular telephones using an ATDS; (2) Whether Defendant can meet their burden of showing that they obtained prior express written consent to make such text messages; (3) Whether Defendant’s conduct was knowing and willful; (4) Whether Defendant are liable for damages, and the amount of such damages; and (5) Whether Defendant should be enjoined from such conduct in the future. 46. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant places automated and/or prerecorded telephone numbers assigned to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 51. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 52. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 54. Defendant – or third parties directed by Defendant – used equipment having the capacity to store telephone numbers, using a random or sequential generator, and to dial such numbers and/or to dial numbers from a list automatically, without human intervention, to make non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class. 55. These text messages were sent without regard to whether Defendant had first obtained express permission from the text messaged party to make such text messages. In fact, Defendant did not have prior express consent to text message the cell phones of Plaintiff and the other members of the putative Class when its text messages were made. 56. Defendant violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to send non-emergency telephone text messages to the cell phones of Plaintiff and the other members of the putative Class without their prior express consent. 57. All Defendant are directly, jointly, or vicariously liable for each such violation of the PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) | win |
251,411 | 2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Website, with contact information for users to report accessibility-related problems and require that any third party vendors who participate on its Website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria. 21. Defendant offers the commercial website, WWW.PEETS.COM, to the public. The website offers features which should allow all consumers to access the goods and services which Defendant offers in connection with their physical locations. The goods and services offered by Defendant include, but are not limited to the following, which allow consumers to: find information about coffee shop locations and hours of operation and information about the coffee and tea in its retail gourmet coffee shops for purchase, gift cards, reward program, special promotions and employment opportunities. 22. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and are heavily integrated with Defendant’s gourmet coffee shops. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s gourmet coffee shops and the numerous goods, services, and benefits offered to the public through the Website. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 26. Due to the inaccessibility of Defendant’s Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 27. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical gourmet coffee shops locations, and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical gourmet coffee shops on its Website as well as other important information, preventing Plaintiff from visiting the locations to purchase items and to view the items. Plaintiff intends to visit Defendant's gourmet coffee shops in the near future if he could access their website. 29. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 30. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including, but not limited to, the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 31. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 33. Because Defendant’s Website has never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.0 guidelines for Defendant’s Website. The Website must be accessible for individuals with disabilities who use computers, laptops, tablets and smart phones. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 35. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 36. Defendants have, upon information and belief, invested substantial sums in developing and maintaining their Website and have generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 37. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 38. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 40. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 41. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 43. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 44. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 45. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 46. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 48. Defendant’s gourmet coffee shops are a public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s gourmet coffee shops. The Website is a service that is heavily integrated with these locations and is a gateway thereto. 49. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 50. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 52. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 53. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 54. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 55. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 57. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 58. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 59. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 61. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 62. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 65. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 70. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 72. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 73. Defendant’s New York physical locations are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Defendant’s Website is a service, privilege or advantage of Defendant and its Website is a service that is heavily integrated with these establishments and is a gateway thereto. 74. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 75. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 77. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside . . .” 78. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 79. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 80. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 81. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 83. Defendant’s New York City locations are sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is heavily integrated with its establishments and is a gateway thereto. 84. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 85. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 87. Defendant’s actions constitute willful intentional discrimination against the City Sub-Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 88. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 89. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 90. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 92. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 93. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 94. Plaintiff, on behalf of himself and the Class and New York State and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 95. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Defendant owns, operates and controls and fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 96. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE NYCHRL | lose |
175,418 | 12. Plaintiffs bring this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 14. The identities of all class members are readily ascertainable from the records of Defendants and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. 15. Excluded from the Plaintiff Classes are the Defendants and all officer, members, partners, managers, directors and employees of the Defendants and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. 16. There are questions of law and fact common to the Plaintiff Classes, which common issues predominate over any issues involving only individual class members. The principal issue is whether the Defendants' written communications to consumers, in the forms attached as Exhibit A, violates 15 U.S.C. §§ l692e and 1692g. 17. The Plaintiffs' claims are typical of the class members, as all are based upon the same facts and legal theories. The Plaintiffs will fairly and adequately protect the interests of the Plaintiff Classes defined in this complaint. The Plaintiffs have retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiffs nor their attorneys have any interests, which might cause them not to vigorously pursue this action. 19. Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that the questions of law and fact common to members of the Plaintiff Classes predominate over any questions affecting an individual member, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 20. Depending on the outcome of further investigation and discovery, Plaintiffs may, at the time of class certification motion, seek to certify a class(es) only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). 21. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. 22. Some time prior to January 10, 2018, an obligation was allegedly incurred to Chase Bank U.S.A., N.A. (“Chase”). 23. The Chase obligation arose out of a transaction in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. 24. The alleged Chase Bank U.S.A., N.A. obligation is a "debt" as defined by 15 U.S.C. § 1692a(5). 25. Chase is a "creditor" as defined by 15 U.S.C. §1692a(4). 27. Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Service, telephone and internet. Violation I – January 10, 2018 Collection Letter 28. On or about January 10, 2018, Defendant sent the Plaintiff a collection letter (the “Letter”) regarding the alleged debt owed to Chase Bank U.S.A., N.A., with an outstanding balance due in the amount of $2,231.28. See Exhibit A. 29. Defendant’s January 10, 2018 Collection Letter contained language that implies that the consumer may enhance its likelihood of future approval for credit products by paying the alleged debt in full, rather than accept a reduced settlement amount. 30. Specifically, the third paragraph of Defendant’s letter contained an offer to settle the $2,231.28 balance for a reduced amount of $669.39. 31. However, the fourth paragraph continues : “If we settle this debt with you for less that the full outstanding balance, Chase may offer you less favorable terms in the future for some Chase products or services or may deny your application.” 32. This language implies that if the Plaintiff settles the stated balance for a reduced amount, as opposed to paying the stated balance in full, Plaintiff may reduce her likelihood of receiving future credit products from Chase Bank or reduce her overall creditworthiness. 34. Further this language is deceptive and overshadowing as it does not truly afford the consumer of its proper rights and ability to dispute the debt, as it encourages only payment in full of the stated amount of the debt rather than disputing and only paying part of it. 35. As a result of Defendant's deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged. 36. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. 37. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e. 38. Pursuant to 15 U.S.C. §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. 39. Defendant violated said section by: a. Making a false and misleading representation in violation of §1692e(10). b. Specifically, by falsely implying that payment in-full (rather than settlement) of the claimed debt would have enhanced her likelihood of receiving future credit products or enhanced her overall creditworthiness. 41. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. 42. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. 43. Pursuant to 15 USC §1692g, a debt collector: 45. The FDCPA further provides that if the consumer notifies the debt collector in writing within the thirty day period . . . that the debt, or any portion thereof, is disputed . . . the debt collector shall cease collection . . . until the debt collector obtains verification of the debt . . . and a copy of such verification is mailed to the consumer by the debt collector. 15 U.S.C. § 1692g(b). 46. Although a collection letter may track the statutory language, ''the collector nonetheless violates the Act if it conveys that information in a confusing or contradictory fashion so as to cloud the required message with uncertainty.'' Russell, 74 F.3d at 35 (''It is not enough for a debt collection agency simply to include the proper debt validation notice in a mailing to a consumer-- Congress intended that such notice be clearly conveyed.''). Put differently, a notice containing ''language that 'overshadows or contradicts' other language informing a consumer of her rights ... violates the Act.'' Russell, 74 F.3d at 34. 47. Although this letter contained the required language it also contained language that implies that the consumer may enhance its likelihood of future approval for credit products by paying the alleged debt in full, rather than accept a reduced settlement amount. 48. The Defendant violated §1692g as the letter contains language that overshadows the Plaintiff’s validation rights and notice of ability to dispute the debt. 50. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq. | lose |
116,953 | 1. Whether Defendant’s employees and agents such as managers, bell staff, doormen, concierges, transportation providers, security personnel, front desk and other staff are trained to assist blind and vision-impaired guests with basic needs such as: completing the hotel registration; learning about and completing service requests like laundry, dry cleaning, valet, shipping, room service, etc.; reviewing the hotel bill and charges; counting and identifying currency; using a signature guide or template in conjunction with their credit card; using a passcard-type of key; luggage rooms, business center, gym or health club, lounge facilities, rest rooms; orienting guests to hotel and guest room layouts; location of fire alarms, emergency exits and equipment; heating and air conditioning controls; TV remote controls; message retrieval system; automated wake- up systems; and safe deposit box. 2. Whether Defendant accepts guide dogs and, if so, if there are any charges associated with the guide dogs, their policies with respect to guide dogs and if there are any rest areas for guide dogs. 26. Defendant owns and operates a hotel in the City of New York as well as in the rest of the United States. Many of these locations also offer dining and entertainment options, including on-site restaurants, room service and lobby lounges. 27. Defendant’s Website offers features to the public that should allow all consumers to access the facilities and services that it offers about their hotels. The Website is heavily integrated with their hotels, serving as their gateway. 28. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, using Defendant’s Website access to information through their reservation system relating to the availability of ADA compliant rooms and handicap accessible features of the hotel, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s hotels. Due to Defendant’s failure and refusal to add information through their reservation system relating to its accessibility for visually-impaired persons on their Website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s hotels and the numerous goods, services, and benefits offered to the public at Defendant’s hotels. 3. Whether the hotels provide a braille and/or large print menu for restaurants and/or room service and, in the alternative, if they have trained staff to read the menu to blind or vision-impaired guests. 30. During Plaintiff’s visits to the Website, last occurring in March, 2019, Plaintiff was not able to determine from the reservation system on the Website what ADA compliant features, if any, the hotels offer and whether the guest rooms have handicap accessible facilities or communications equipment in the guest rooms suitable to blind or visually-impaired persons. As a result, Plaintiff has been denied full and equal access to the facilities, goods and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the facilities, goods, and services of Defendant’s physical locations in New York City and New York State by being unable to learn any information about the accessibility features of the hotels or its guest rooms. Defendant Must Include Information Relating to ADA Compliant Rooms and Handicap Accessibility Features Through Its Website Reservation System 32. These access barriers on Defendant’s Website reservation system have deterred Plaintiff from visiting Defendant’s physical locations, and enjoying them equal to sighted individuals because: Plaintiff was unable to find information on the Website reservation system relating to the accessibility of the hotels and guest rooms for blind and visually-impaired people and other important information, preventing Plaintiff from reserving a room at the hotels, staying at the hotel and using the facilities of the hotel including restaurants and attending events. 33. If the hotels and the Website reservation system were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 34. Through visiting the Website, Plaintiff has actual knowledge of the lack of information on accessibility features available on the reservation system on the Website that result in making the services and facilities of the hotel inaccessible and independently unusable by blind and visually-impaired people. 35. Because simple compliance with the provisions of the ADA relating to providing information about accessibility features of the hotels and the guest rooms on its Website reservation system would provide Plaintiff and other visually-impaired consumers with equal access to the services and facilities at Defendant’s hotels, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including, but not limited to, the failure to provide information on its Website reservation system sufficient to advise that the hotels are fully ADA compliant, and for each accessible guest room, to specify the room type, the type of accessible facility in the room, and the communications features in the room. 37. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 4. Whether or not emergency exit signs are compliant with ADAAG1 requirements and emergency evacuation plans and information are provided in braille and large print. 40. Although Defendant may currently have centralized policies regarding maintaining and operating its Website and the inclusion of information on the Website, Defendant lacks a plan and policy reasonably calculated to include the ADA-required information on the Website reservation system to make such information fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 41. Defendant has, upon information and belief, invested substantial sums in developing and maintaining the Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of including the information required under the ADA regulations on the Website reservation system in order to make its facilities and guest rooms equally accessible to visually impaired customers. 42. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website reservation system to obtain information relating to ADA accessibility of the hotels and their guest rooms, violating their rights. 43. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website to obtain the ADA-required accessibility information and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 45. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website to obtain the ADA- required information and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 46. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website reservation system contains the information on accessibility required under the ADA regulations; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 48. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 49. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of their litigation. 5. Whether or not all accessible signage complies with the requirements of the ADAAG. 50. Judicial economy will be served by maintaining their lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 51. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 53. Defendant’s hotels are places of public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7)(A). Defendant’s Website is a service, privilege, or advantage of Defendant’s hotels. The Website is a service that is integrated with the Defendant’s hotels and is a gateway thereto. 54. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 55. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 56. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 58. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 59. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 60. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 62. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. The Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 63. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to include the ADA-required information on the Website reservation system, causing the Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 64. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden." 65. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 67. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that does not contain the ADA- required information on its reservation system making their hotels inaccessible to blind class members with knowledge of the discrimination; and/or b. failed to take actions to correct the lack of the ADA-required information in the face of substantial harm and discrimination to blind class members. 68. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 69. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and their physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 7. Whether or not the hotels have removed or protected protruding objects which protrude more than 4” into walkways and hallways such as drinking fountains, fire extinguishers, and planters and if they provide cane detectable warnings for the underside of stairways. 70. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 72. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 73. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 74. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 75. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 76. Defendant’s hotels are places of public accommodation within the definition of N.Y.C. Admin. Code § 8-102(9), and the Website is a service that is integrated with their establishments. 77. Defendant is subject to NYCHRL because it owns and operates physical locations in the City of New York and the Website, making the Defendant a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 79. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 8. Whether or not the guest rooms contain tactile and large print thermostat controls and talking/large print clocks. 80. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that does not contain the ADA- required information on its reservation system making their hotels inaccessible to blind class members with knowledge of the discrimination; and/or b. failed to take actions to correct the lack of the ADA-required information in the face of substantial harm and discrimination to blind class members. 81. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 83. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 84. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 85. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 86. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 87. Plaintiff, on behalf of himself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 88. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that the Website does not contain the ADA-required information on its reservation system denying blind customers the full and equal access to the goods, services and facilities of the Website and by extension their physical locations, which Defendant owns, operates and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 9. Whether or not signage in the hotel can be easily located by blind and vision-impaired persons with 2” minimum height raised letters and braille characters centered at 60” above the finished floor to indicate floor numbers, rest rooms, lobby, vending and ice machines and all other hotel facilities and amenities. b. Regularly check the accessibility of the Website and its reservation system under the WCAG 2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website and the reservation system complies under the WCAG 2.0 guidelines; and d. Regularly check the hotels and the guest rooms to ensure that the accessibility features that they describe on its website reservation system are in fact available and properly maintained. DECLARATORY RELIEF Defendant’s Website and Compliance with Requirement to Describe Accessibility Features VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL | lose |
146,007 | 1. Meet and Greet 10. If Massage Envy did not intend to mislead consumers about the actual length of the massage, it would simply tell them the truth about it, clearly and conspicuously, beginning with its offer of a one-hour massage session on the home page of its website and continuing throughout its communications with consumers. Massage Envy used to do that, with a clear disclosure about the 50-minute length of a massage at the very top of its home page. But no longer. 11. Now Massage Envy misrepresents the length of a “1-hour” massage and conceals the fact that at least 10 minutes out of the hour are spent in other activities. It does so repeatedly: In its offers of an introductory 1-hour massage session; on what it calls a “Disclaimer” page; in a video that it displays for new customers entitled, “My First Massage EVER: What You Should Expect”; in a “Step-by-Step” guide to massages that it displays on its website; in a web page entitled, “Customize your Massage Session”; in a page of “FAQs” on its website; on its web pages for individual facilities, such as its O’Fallon, Illinois facility; on its electronic gift cards; and on display materials in its massage facilities. 13. By comparison, one of Massage Envy’s competitors, MassageLuxe, states clearly on the front page of its own website that the actual massage in a one-hour massage session that it offers lasts only 50 minutes. Massage Envy undoubtedly is aware of what MassageLuxe states on its website. But it does not emulate MassageLuxe’s responsible practice. 14. The facts delineated below demonstrate the basis of the above allegations. Massage Envy’s Offer of a 1-Hour Massage Session 15. Massage Envy offers an “Introductory 1-Hour Massage Session.” The following screen shot shows that offer on its website’s home page: http://www.massageenvy.com/ (accessed 9/27/2016). 17. Clicking on the asterisk does not take the viewer to a footnote, in the fashion of, for example, footnotes on Wikipedia. Instead, if the consumer clicks on the asterisk, he or she is taken to a different web page entirely: http://www.massageenvy.com/membership.aspx (accessed 9/24/2016). That page is entitled, “Imagine more ME time” and describes “Membership Benefits.” This page has no explanation of what is meant by “Introductory 1-Hour Massage Session.” It is therefore misleading to link this page to the offer of an “Introductory 1- Hour Massage Session.” Massage Envy’s “Disclaimer Page” and Its Links 18. If, instead of clicking on the asterisk after the words “Introductory 1-Hour Massage Session” on the Massage Envy home page, the consumer scrolls down past various links and a menu chart, he or she will come across a footnote in small type that states: “*View pricing and promotional details.” The following screenshot shows how that footnote appears on the webpage: http://www.massageenvy.com/ (accessed 9/27/2016). 2. Starting Your Session 20. As can be seen, in small type underneath the heading, “Session,” the Disclaimer Page states: “*Session includes massage or facial and time for consultation and dressing.” That page does not state whether the time for consultation and dressing is deducted from the one hour. Nor does it indicate how long the actual massage will be or how much time is allotted for consultation and dressing (and doesn't mention undressing or waiting time). 21. As can also be seen from the above screenshot, the Disclaimer Page contains a light gray box entitled, “New to Massage Envy?” That box contains three links. 23. The second link, “Your first visit,” takes the consumer to a page entitled “Your First Massage Session.” http://www.massageenvy.com/your-first-visit.aspx (accessed 9/27/2016). That page contains both a video and text. The video, titled, “My First Massage EVER: What You Can Expect” lasts about three-and-a-half minutes, is interspersed with titles, and never mentions that the consumer should expect that “My First Massage EVER” will last only 50-minutes or less. (This web page can also be accessed by clicking on “Your First Visit” in a menu bar on Massage Envy’s home page, http://www.massageenvy.com/, as well as other Massage Envy web pages.) Plaintiff discusses this page further below. 24. The third link in the “New to Massage Envy?” box is entitled, “Massage Envy” and takes the consumer to a page entitled, “The New Day Spa.” http://www.massageenvy.com/ massage-envy.aspx (accessed 9/27/2016). That page contains the same video mentioned above, entitled, “My First Massage EVER: What You Can Expect,” as well as the same blue box described earlier with the offer of a “$50 Introductory 1-Hour Massage Session,” an asterisk after the word “Session” and a footnote at the bottom of the page stating “*View pricing and promotional details” with a link back to the Disclaimer Page. Massage Envy’s Video: “My First Massage EVER: What You Should Expect” 26. As can be seen from the script, the video never mentions how long the massage will last. However, it deceptively indicates that the entire session is devoted to the massage, and activities such as the interview, undressing and dressing are not part of the massage “session.” The narrator states: “You’ll be draped with the sheet during your entire massage session.” Because the consumer is not draped with a sheet during the interview or while undressing or dressing, those activities are not part of the massage session, at least according to this script. 28. Among the preliminaries are filling out a Wellness Chart and then reviewing it with the massage therapist, as shown in the following screenshots: 3. During Your Massage 30. Massage Envy’s web page entitled, “Your First Massage Session,” also contains a four-part discussion entitled, “The Step-by-Step Guide.” http://www.massageenvy.com/your- first-visit.aspx (accessed 9/24/2016). This web page deceptively reinforces the message that the session consists of the actual massage and that other activities, such as the pre-interview and dressing, are extraneous to it. 31. The Step-by-Step Guide has four parts, or “Steps”: 32. By referring to this as a “Step-by-Step” Guide, Massage Envy tells its customers that this is a chronological description of what to expect. 36. Step 4. Here is a screenshot of Step 4 of “The Step by Step Guide”: http://www.massageenvy.com/your-first-visit.aspx (accessed 9/24/2016). In Step 4 of “The Step-by-Guide,” entitled, “Ensuring Your Wellness,” Massage Envy states: “Once your massage therapy session is complete, your therapist will leave the room so you may re-dress.” Thus, Massage Envy is deceptively telling consumers that the time spent getting dressed after the massage (or “re-dressed” as Massage Envy states) is not part of the massage session because it occurs after the “massage therapy session is complete.” 38. If it was Massage Envy’s intent to tell consumers in Step 4 of “The Step-by- Guide” that five minutes for a “pre-interview” and five minutes to get dressed at the end were part of the one-hour massage session, such disclosure would be unethical for several reasons: (1) by burying it near the end of a long web page and not repeating it elsewhere, Massage Envy rendered it not likely to be noticed; (2) it was not likely to be noticed by consumers interested in the length of a massage session or even what occurs in a massage session because it was placed in a section with the title, “Ensuring Your Wellness,” rather than a title relating to the massage session; (3) it was not placed in the sections entitled, “Starting Your Session” or “During Your Massage,” where a consumer would be more likely to look for information on the length of a massage; and, (4) it is a disclaimer contradicting the overall impression of Massage Envy’s offer of a one-hour massage session, namely that it consists of the actual massage and not extraneous activities such as the interview and getting dressed. Massage Envy’s Web Page, “Customize your Massage Session” 4. Ensuring Your Wellness 40. The box for 1-hour on the Massage Envy web page, “Customize your Massage Session,” http://www.massageenvy.com/massage.aspx (accessed 9/24/2016), does not state that the hour includes anything other than a massage. In fact, it indicates the opposite. It states that the session “[i]ncludes time for combination full body massage or focused relief of tension areas” without indicating that it includes anything else, such as undressing, dressing, “consultation” or waiting. 42. Massage Envy’s website also has a page of FAQs that deceptively refers to a “1- hour massage,” not a “1-hour massage session” and does not state that it is actually less than an hour. In fact, it indicates the opposite. In response to the question, “How long should a massage last?” the page states, “Some people view a one-hour massage [not “massage session”] as enough for relaxation and relief of mild stress or tension areas.” http://www.massageenvy.com/faqs.aspx (accessed 9/27/2016). 43. Here is a screenshot of that question and answer as it appears on Massage Envy’s FAQ page: http://www.massageenvy.com/faqs.aspx (accessed 9/27/2016). Massage Envy’s Web Pages for Individual Facilities 45. As can be seen from the above screenshot, a list of services on the right side of the screen includes a “1-Hour Massage” (not massage session) for $50. 49. As can be seen from the above screenshot, the least expensive E-Gift card is $75. Massage Envy’s offer of this gift card states that it is “[t]ypically good for 1-hour introductory massage, including gratuity.” It refers to a “1-hour introductory massage,” not “1-hour massage session,” and does not state that the 1-hour introductory massage is not a full hour, but rather no longer than 50 minutes. 50. The E-Gift Card page contains four asterisks. Three are shown in the screenshot above. The fourth accompanies a footnote at the bottom of the page that, as is the case on other Massage Envy web pages, states, “View pricing and promotional details” and has a link to the Disclaimer Page. 51. There is nothing about the first three asterisks on the E-Gift Card page that would lead a consumer to that footnote. They accompany the titles of boxes that the consumer must fill out (Name of Recipient, Quantity, and Confirm Email) and suggest that these are simply items that must be completed. Massage Envy’s Display Materials 52. Massage Envy reinforces the message that one-hour massages last one hour in posters for retail products that it sells in its facilities. Such products include muscle relief sets, body gels, spa creams, triggerpoint pillows, and other products. 54. Telling consumers that “this feeling should last longer than one hour” is telling consumers that the massage lasts an hour because there is no reason to reproduce any feeling that a consumer obtains when he or she receives a massage at Massage Envy other than the feeling from the actual massage. A consumer has no reason to desire the “feeling” from an interview, waiting time, getting undressed, or getting dressed to last beyond the experience at Massage Envy. The One Statement on Its Website Where Massage Envy Reveals the Actual Length of a One-Hour Massage is Virtually Impossible to Find 55. On its entire website, Massage Envy states on only one page that a 1-hour massage is actually only 50 minutes. That is on an almost impossible-to-find web page, entitled, “Types of Massage” (hereafter “Types of Massage” Page). http://www.massageenvy.com/types- of-massage.aspx (accessed 9/24/2016). On that page, Massage Envy states: “A 1-hour massage therapy session at Massage Envy clinics nationwide consists of the therapist consultation, 50 minutes of hands-on massage, and 5 minutes of dressing.” 58. As can be seen, on this page various types of massages are listed, including “Trigger Point Therapy,” “Swedish Massage” and others. Clicking on either the name of one of those types or on the words, “Learn More,” takes one to a page devoted to that technique. See, e.g, http://www.massageenvy.com/types-of-massage/trigger-point-therapy.aspx and http://www.massageenvy.com/types-of-massage/swedish.aspx (both accessed 9/24/2016). 60. This page (and others like it devoted to specific types of massage, such as Swedish Massage) have the only direct links to the lone web page that says a one-hour massage lasts only 50 minutes. And even that link is difficult to find. The link is the title of the list of different types of massage on the left side of the page. As can be seen from the screenshot, there is no visual clue to indicate that this is a link. That is in contradistinction to the massage types under the title, all of which are preceded by arrows, indicating that they are links. 61. However, placing one’s cursor over the words, “Types of Massage,” reveals that it is a link, and clicking on it brings up the “Types of Massage” Page. 62. On information and belief, this complicated path is the only way to access this page from any other page on the Massage Envy website. 63. Moreover, even once one has found this page, it is difficult to find the reference stating that a one-hour massage lasts only 50 minutes. First, there is nothing to alert the reader that the length of a massage is discussed on this page. To the contrary, the page contains a brief description of different massage types, followed by a discussion of “Signature Services” and “Who is Massage Therapy good for?” 65. That difficult-to-find statement on an almost impossible-to-find web page is the only place on Massage Envy’s entire website telling the reader that a 1-hour massage therapy session includes only a 50-minute massage. 67. One does not need to access this web page to obtain a massage at Massage Envy. Massage Envy’s Pricing Card Includes a Statement About the Actual Length of a Massage that is Difficult to Find and Read 68. At its facilities, Massage Envy has cards available for its customers that provide a menu of services, with their prices. One does not need to see this to obtain a massage. An example, which Plaintiff obtained after her second massage at the Massage Envy facility in O’Fallon, Illinois, is attached as Ex. A. This card is 3.5 inches by 8.5 inches and has two sides, one devoted to massage services, the other to skin care services. 69. The massage side of the pricing card lists a “60-Min. Massage Session” with an “Intro price” of $50 and a Non-Member price of $90. 70. At the bottom of this page, in tiny, 5-pt type, is a seven-line, difficult-to-read block of print that states, in part, “Session time includes massage or facial and a total of 10 minutes for consultation and dressing, which occurs both pre and post service.” 71. Nowhere else on this card is the consumer told about non-massage time, such as time for consultation and dressing. Nor does this card state explicitly that the 10 minutes for consultation and dressing is deducted from the massage time, leaving only 50 minutes for the massage. 72. This page contains the following copyright notice: “© Massage Envy Franchising, LLC.” 74. Massage Envy did not always attempt to conceal the actual length of the massage included in a one-hour massage session. Until April 2007, it clearly and unmistakably disclosed at the top of its home page that a one-hour session included only 50 minutes of massage time. The Internet Wayback Machine, https://archive.org/web/ (accessed 9/26/2016), contains an archive of outdated Massage Envy web pages. The following screenshot shows Massage Envy’s home page as of April 19, 2007: http://web.archive.org/web/20070506115807/http://www.massageenvy.com/ (accessed 9/26/2016). 76. By the next month, however, Massage Envy had taken that statement off its home page. See this screenshot from the Massage Envy home page captured by the Internet Wayback Machine on May 28, 2007: https://web.archive.org/web/20070528115943/http://www.massageenvy.com/ (accessed 9/26/2016). Gone from the home page was the disclosure that a one-hour massage lasts only 50 minutes. 80. By October 2015, even that direct link on Massage Envy’s home page to the “Types of Massage” page was gone. That can be seen from the following screenshot, captured by the Internet Wayback Machine on October 21, 2015: http://web.archive.org/web/20151021043008/http://www.massageenvy.com/ (accessed 9/26/2016). To prove that there was no longer a link to the “Types of Massage” page on the Massage Envy home page, note the search bar at the top right. The word, “Types” is not found on the page. By this time, the “Types of Massage” page could only be found by following the complicated pathway outlined above. Massage Envy’s days of full disclosure were long gone. Massage Envy Tells Its Members that a One-Hour Massage Lasts Only 50 Minutes 82. The following screenshot shows this statement in the Terms & Conditions for Massage Envy membership: These terms and conditions are not publicly available on the internet. 83. There is no reason why Massage Envy cannot make a similar clear and easy-to- find disclosure to consumers who are not its members. Accordingly, Massage Envy is seeking to deceive unknowing consumers into thinking that a one-hour massage or massage session contains a one-hour massage. Massage Envy’s Competitor MassageLuxe Freely Discloses that a One-Hour Session Provides a 50-Minute Massage 84. MassageLuxe is a chain of massage facilities that compete with Massage Envy, including one in Edwardsville, Illinois, and one in Fairview Heights, Illinois. 87. There is no reason why Massage Envy could not make similarly prominent disclosures. 88. In or about February 2016, Plaintiff Haywood’s daughter Amber purchased a $75 electronic gift card for her from Massage Envy’s website. According to Massage Envy’s offer, that gift card would provide a “1-hour introductory massage.” Amber told her that it would provide her with a one-hour massage. 89. Ms. Haywood was notified of the gift by email on February 13, 2016. (See copy of email, Ex. B.) The email told her that she had received a gift card in the amount of $75.00. It advised her to download her card and present it at the time of purchase. It did not mention the length of the massage she would be able to obtain with the card. 90. A line buried in fine print at the bottom of the email stated, “Session includes massage or facial and time for consultation and dressing.” However, the email did not indicate how much time was spent on the massage. If Massage Envy had intended not to deceive the recipient, it would have stated clearly in large type near the top of the email, right after the price of $75.00, “good for a one-hour massage session consisting of 50-minute massage, interview and time for undressing and dressing.” It did not. 91. Ms. Haywood downloaded her gift card. (It is attached hereto as Ex. C.) The gift card contains a set of terms and conditions. None of those terms and conditions relates to the length of the massage to which the gift card would entitle her. In fact, nowhere on the card or the web page where the card is located is there a reference to the length of the massage that she could obtain. 93. Ms. Haywood then called the O’Fallon facility and made an appointment for May 11, 2016. On that date, she went to Massage Envy’s O’Fallon, Illinois location for her massage. She checked in with the front desk but didn’t sign anything or receive any information regarding the length of the appointment. No sign or other displayed notice indicated that the massage time would be less than one hour. 94. Ms. Haywood was called for her appointment around the time it was scheduled. She talked to the massage therapist briefly and was given time to undress. After a waiting period, the therapist came back in and the massage lasted no more than 50 minutes. 95. At the end of the session, she requested documentation of her session and was given the attached “Massage Wellness Plan.” Ex. D 96. In September 2016, to verify that Massage Envy provided only 50 minutes’ massage time for a one-hour massage, Ms. Haywood telephoned Massage Envy’s O’Fallon, IL, location and made a reservation over the phone for a 3:00 p.m. appointment on September 8, 2016, for a one-hour massage costing $90. 97. On September 8, 2016, Ms. Haywood arrived at Massage Envy’s O’Fallon facility at approximately 2:55 p.m., checked in at the desk, and was not asked to sign anything. No sign or other displayed notice indicated that the massage time would be less than one hour. Her actual massage was no longer than 50 minutes. 99. At the end of her September 2016 session, Ms. Haywood requested documentation of her session and was given the attached “Massage Wellness Plan.” Ex. E. She also received the attached receipt, which reflects the balance that she paid in addition to the credit remaining from the gift card provided by her daughter. Ex. F. JURY DEMAND .......................................................................................................................... 46 COUNT I: AFFIRMATIVE DECEPTION IN VIOLATION OF THE ICFA ............................ 46 COUNT II: OMISSIONS OF MATERIAL FACT IN VIOLATION OF THE ICFA ................ 47 THE ILLEGALITY OF MASSAGE ENVY’S PRACTICES UNDER THE ICFA .................... 39 Massage Envy’s Acts and Practices Violate the ICFA’s Prohibitions of Deception ........ 39 Massage Envy’s Acts and Practices Violate the ICFA’s Prohibitions of Omissions of Material Facts.................................................................................................................... 40 Massage Envy’s Acts and Practices Are Unethical in Violation of the ICFA’s Prohibitions of Unfairness ................................................................................................ 40 | lose |
178,662 | 15. On April 10, 2015, Party City filed its eighth amendment to the Registration Statement on Form S-1/A with the SEC, which was signed by Defendants Correale and Harrison. 16. On April 15, 2015, the SEC declared Party City’s Registration Statement effective. 17. On April 17, 2015, Party City filed the Prospectus with the SEC. 18. In the IPO, 21,875,000 shares of Party City were sold at $17.00 per share. Total proceeds from the IPO were $371,875,000. 19. The Offering Documents contained misstatements of material fact and/or omissions. Namely, the Defendants were aware, and failed to disclose certain risks in the Offering Documents, including the impact on the Company due to: (1) soft consumer traffic trends; (2) the extraordinary performance of the Disney Frozen franchise from the prior year; and (3) the store reset initiative. 28. Plaintiff brings this action as a class action on behalf of himself and on behalf of all purchasers of Party City securities pursuant to and/or traceable to the Company’s false and misleading Registration Statement and Prospectus issued in connection with its IPO and who were damaged thereby (the “Class”), pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) on behalf of a Class. Excluded from the Class are Defendants herein, members of the immediate family of each of the Defendants, any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest or which is related to or affiliated with any of the Defendants, and the legal representatives, agents, affiliates, heirs, successors-in-interest or assigns of any such excluded party. 29. The members of the Class are so numerous that joinder of all members is impracticable. 21,875,000 shares were sold in the IPO which were then actively traded on the NYSE. The precise number of the Class members is unknown to Plaintiff at this time but it is believed to be in the thousands. Members of the Class may be identified from records maintained by Party City or its transfer agent or the underwriters to the IPO. Notice can be provided to such record owners by a combination of published notice and first-class mail, using techniques and a form of notice similar to those customarily used in securities class actions. 31. Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel competent and experienced in class action and securities litigation. 32. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudication with respect to individual members of the Class that would establish incompatible standards of conduct for the party opposing the Class. 33. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. Since the damages suffered by individual Class members may be relatively small, the expense and burden of individual litigation make it virtually impossible for the Class members to seek redress for the wrongful conduct alleged. Plaintiff knows of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action. 34. Common questions of law and fact exist as to all members of the Class and predominate over any questions affecting solely individual members of the Class. Among the questions of law and fact common to the Class are: (a) whether the federal securities laws were violated by Defendants’ acts as alleged herein; (b) whether the Prospectus and Registration Statement issued by Defendants to the investing public in connection with the IPO negligently omitted and/or misrepresented material facts concerning Party City and its business; and (c) the extent of injuries sustained by members of the Class and the appropriate measure of damages. 35. Plaintiff repeats and realleges each and every allegation contained above. 36. The Registration Statement for the IPO was inaccurate and misleading, contained untrue statements of material facts, omitted to state other facts necessary to make the statements made not misleading, and omitted to state material facts required to be stated therein. 37. Party City is the registrant for the IPO. The Individual Defendants are responsible for the contents of the Registration Statement based upon their status as directors of the Company or because they signed or authorized the signing of the Registration Statement on their behalf pursuant to Sections 11(a)(1)-(3) of the Securities Act. 38. As issuer of the shares, Party City is strictly liable to Plaintiff and the Class for the misstatements and omissions. 39. Party City is strictly liable for the contents of the Registration Statement. The Individual Defendants failed to make a reasonable investigation or possess reasonable grounds for the belief that the statements contained in the Registration Statement were true and without omissions of any material facts and were not misleading. 40. By reasons of the conduct herein alleged, each Defendant named in this Count violated Section 11 of the Securities Act. 41. Plaintiff acquired Party City shares pursuant to the Registration Statement. 42. Plaintiff and the Class have sustained damages. The value of Party City shares has declined substantially subsequent to and due to Defendants’ violations. 44. Plaintiff repeats and realleges each and every allegation contained above. 45. This claim is asserted against the Individual Defendants, each of whom was a control person of Party City during the relevant time period. 46. For the reasons set forth above in the First Claim, above, Party City is liable to the Plaintiff and the members of the Class who purchased Party City shares in the IPO based on the untrue statements and omissions of material fact contained in the Registration Statement and Prospectus, pursuant to Section 11 of the Securities Act, and were damaged thereby. 47. The Individual Defendants were control persons of Party City by virtue of, among other things, their positions as senior officers of the Company, and they were in positions to control and did control, the false and misleading statements and omissions contained in the Registration Statement and Prospectus. 49. This claim was brought within one year after the discovery of the untrue statements and omissions in the Registration Statement and Prospectus and within three years after Party City shares was sold to the Class in connection with the IPO. 50. By reason of the misconduct alleged herein, for which Party City is primarily liable, as set forth above, the Individual Defendants are jointly and severally liable with and to the same extent as Party City pursuant to Section 15 of the Securities Act. Violations of Section 15 of the Securities Act Against Individual Defendants | lose |
147,310 | 26. Consumers have become increasingly concerned about the effects of synthetics and chemical ingredients in cosmetic products. As a result, consumers are willing to pay, and have paid, a premium for products labeled “natural” over ordinary products that contain synthetic ingredients. 38. Plaintiff Meyers seeks to represent a class defined as all persons in the United States who purchased the Products during the class period (the “Class”). Excluded from the Class are Defendant, its affiliates, employees, officers and directors, persons or entities that purchased the Products for resale, and the Judge(s) assigned to this case. 39. Plaintiff Meyers also seek to represent a Subclass of all persons in California who purchased the Products during the class period (the “California Subclass”). Excluded from the California Subclass are Defendant, its affiliates, employees, officers and directors, persons or entities that purchased the Products for resale, and the Judge(s) assigned to this case. 46. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 47. Plaintiff Meyers brings this claim individually and on behalf of the members of the proposed California Subclass against Defendant. 48. This cause of action is brought pursuant to California’s Consumers Legal Remedies Act, Cal. Civ. Code §§ I750-I785 (the “CLRA”). 49. Plaintiff Meyers and the other members of the California Subclass are “consumers,” as the term is defined by California Civil Code § 1761(d), because they bought the Products for personal, family, or household purposes. 50. Plaintiff Meyers, the other members of the California Subclass, and Defendant have engaged in “transactions,” as that term is defined by California Civil Code § 1761(e). 51. The conduct alleged in this Complaint constitutes unfair methods of competition and unfair and deceptive acts and practices for the purpose of the CLRA, and the conduct was undertaken by Defendant in transactions intended to result in, and which did result in, the sale of goods to consumers. 52. As alleged more fully above, Defendant has violated the CLRA by falsely representing to Plaintiff Meyers and the other members of the California Subclass that the Products are “natural” when in fact they are made with synthetic ingredients. 53. As a result of engaging in such conduct, Defendant has violated California Civil Code § 1770(a)(5), (a)(7) and (a)(9). 56. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 57. Plaintiff Meyers brings this claim individually and on behalf of the members of the proposed California Subclass against Defendant. 58. Defendant is subject to California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. The UCL provides, in pertinent part: “Unfair competition shall mean and include unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or misleading advertising ….” 59. Defendant violated the “unlawful” prong of the UCL by violating the CLRA and the FAL, as alleged herein. 60. Defendant’s misrepresentations and other conduct, described herein, violated the “unfair” prong of the UCL in that their conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the conduct outweighs any alleged benefits. 61. Defendant violated the “fraudulent” prong of the UCL by misrepresenting that the Products are “natural” when, in fact, they are made with synthetic ingredients. 63. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 64. Plaintiff Meyers brings this claim individually and on behalf of the members of the proposed California Subclass against Defendant. 65. California’s False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq., makes it “unlawful for any person to make or disseminate or cause to be made or disseminated before the public in this state, ... in any advertising device ... or in any other manner or means whatever, including over the Internet, any statement, concerning ... personal property or services, professional or otherwise, or performance or disposition thereof, which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” 66. Defendant committed acts of false advertising, as defined by §§17500, et seq., by misrepresenting that the Products are “natural” when they are not. 67. Defendant knew or should have known through the exercise of reasonable care that their representations about the Products were untrue and misleading. 69. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 70. Plaintiff brings this claim individually and on behalf of the proposed Class, California Subclass against Defendant. 71. Defendant, as the designer, manufacturer, marketer, distributor, and/or seller, expressly warranted that the Products are “natural.” 72. Defendant’s express warranties, and its affirmations of fact and promises made to Plaintiff and the Class regarding the Products, became part of the basis of the bargain between Defendant and Plaintiff and the Class, thereby creating an express warranty that the Products would conform to those affirmations of fact, representations, promises, and descriptions. 73. The Products do not conform to the express warranty because they contain ingredients that are unnatural and synthetic. 74. As a direct and proximate cause of Defendant’s breach of express warranty, Plaintiff and Class members have been injured and harmed because: (a) they would not have purchased the Products on the same terms if they knew the truth about the Products’ unnatural ingredients; (b) they paid a substantial price premium based on Defendant’s express warranties; and (c) the Products do not have the characteristics, uses, or benefits as promised. 75. On May 30, 2017, Plaintiff Meyers mailed a notice letter to Defendant consistent with Cal. Com. Code § 2607(3)(a) and U.C.C. 2-607(3)(A), and Defendant received the letter on June 16, 2017. The letter was sent on behalf of Meyers and all other persons similarly situated. 76. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 81. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 82. Plaintiff brings this claim individually and on behalf of the proposed Class, California Subclass against Defendant. 83. As discussed above, Defendant provided Plaintiff and Class members with false or misleading material information about the Products by representing that they are “natural.” Defendant made that misrepresentation knowing it was false. 84. Defendant’s misrepresentations, upon which Plaintiff and class members reasonably and justifiably relied, were intended to induce and actually induced Plaintiff and class members to purchase the Products. 85. Defendant’s fraudulent actions harmed Plaintiff and class members, who are entitled to damages and other legal and equitable relief as a result. Breach of Express Warranty Fraud Unjust Enrichment Violation Of California’s Consumers Legal Remedies Act (“CLRA”), California Civil Code §§ 1750, et seq. Violation Of California’s Unfair Competition Law (“UCL”), California Business & Professions Code §§ 17200, et seq. Violation Of California’s False Advertising Law (“FAL”), California Business & Professions Code §§ 17500, et seq. | win |
208,576 | 56. This Action is brought on behalf of Plaintiffs and the class members under the FDCPA, MOC and RCPA with the class made up of the following class consumers: All persons against whom Defendants filed a STATE COLLECTION COMPLAINT and/or obtained a settlement, default or default judgment or judgment related to the collection of an NCSLT type education debt without sufficient, admissible evidence or based on collection cases that lacked assignments or proof showing that the NCSLT type Plaintiffs had standing or the right to sue Michigan class members through these STATE COLLECTION COMPLAINTS with Defendant law firms signing off on material misrepresentations of debt ownership on behalf of Defendant TSI for NCSLT. 57. While the exact number of Class members can only be determined through appropriate discovery, Plaintiff believes that there are thousands of members of the Class through Michigan in the last six years. 58. 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 20 of 40 Pg ID 20 8 Plaintiff’s claims are typical of the claims of the other members of the Michigan Classes, as all members of the Class are similarly affected by Defendants’ wrongful conduct, as complained of herein. 59. There are common questions of law and fact affecting members of the Class, which common questions predominate over questions that might affect individual members. These questions include, but are not necessarily limited to, the following: a. Whether Defendants sued Michigan class members without standing or proof of ownership or assignment of ownership of the SPECIFIC debt each Michigan consumer is being sued upon. In short: Defendants held no chain of title showing the SPECIFIC debt is owned by the NCSLT Plaintiff suing the Michigan Consumer.; b. Whether Defendants had sufficient evidence of the existence of the alleged NCSLT type education debts when they negotiated settlements or obtained default judgments against Michigan consumers; c. Whether the alleged debtors and Michigan consumer were furnished with chain of title evidence showing NCSLT had the right to sue the SPECIFIC Michigan debtor on the Specific NCSLT debt the State Lawsuits were based upon; d. Whether Defendants filed materially false and deceptive lawsuits where NCSLT had no standing to sue Michigan consumers on debts NCSLT had not proof it owned the debt of the person or consumer it is suing; e. Whether Defendants are filing NCSLT type lawsuits knowing that they lack the necessary paperwork and proof to complete or try the case and are filing the lawsuits for a default or settlement of the claim. f. Whether Plaintiff and the other members of the Class are entitled to damages, including punitive damages, costs, and/or attorneys’ fees, for Defendants’ acts and conduct as alleged herein, and the proper measure thereof. 60. Plaintiff will fairly and adequately represent the Class members. Plaintiff has no interests that conflict with the interests of other Class members. Plaintiff has retained 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 21 of 40 Pg ID 21 8 counsel competent and experienced in the prosecution of class action litigation. 61. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. Furthermore, as the damages suffered by individual Class members might be relatively small, the expense and burden of individual litigation make it impossible for members of the Class to redress individually the wrongs done to them. There will be no difficulty in the management of this action as a class action. 62. Members of the Class can be identified from records maintained by Defendants and each class member is a Defendant in a State Court Action by NCSLT/TSI collecting an NCSLT type debt, and can be notified of the pendency of this action by United States mail using a form of notice customarily used in similar class actions. 63. At Exhibit 3 and in violation of the FDCPA, RCPA and MOC, Defendant TSI as Servicer for the NSCLT trusts at Exhibit 1 is collecting on defaulted student loans through collection lawsuits filed by Defendant Shermeta at the direction of Defendant TSI even though there is no proof or chain of title from the Original Lender of the student loans to the NCSLT Plaintiffs TSI operates through in suing Michigan Class Members. 64. As detailed in the State Complaints against Plaintiffs in Exhibit 3 specifically and against Michigan consumers generally, Defendant TSI is suing Class members through NCSLT Plaintiffs on educational loans allegedly owed to TSI and NCSLT from 2004 through 2007. 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 22 of 40 Pg ID 22 8 65. The lawsuits are brought by an Attorney Network of which Defendant Shermeta is a member at the instruction and request by Defendant TSI even though the Defendants have no assigned proof of ownership of the SPECIFIC DEBT claimed to be owed by the class members to the State NCSLT Plaintiff in these state actions. Please see examples at Exhibit 3. 66. In violation of the FDCPA, MOC and RCPA, at the time that the NCSLT type State and local lawsuits are filed by the Defendant law firms for the NCSLT Servicer, Defendant TSI, there exists no chain of title from the Original Lender of the student loans to the SPECIFIC NCSLT Plaintiff in the state lawsuits and the lawsuits are filed and served with no or proof of ownership of the debt NCSLT Plaintiff. 67. As shown by Exhibit 3, the NCSLT type State and Local lawsuits that TSI directs its Michigan collection law firms to file in the State of Michigan all say the NCSLT Plaintiff has been assigned the debt while offering no proof of the specific chain of title of assignment of the debt of the debtor being “assigned” to NSCLST. 68. While fully aware that it cannot actually demonstrate the existence of any assignment of the SPECIFIC debts it is suing Michigan debtors for in State and local courts, TSI and their Defendant attorneys file “computer template” collection lawsuits alleging to be the owners of debts they are suing upon without any specific proof of debt to the SPECIFIC Michigan consumer alleged to owe the debt. Please see Exhibit 3. 69. TSI’s sole intention is to obtain default judgments or settlements of the state or local 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 23 of 40 Pg ID 23 8 lawsuits without ever having had admissible prima facie evidence to substantiate its claims through the NCSLT Plaintiffs. During the Class Period Defendants have filed thousands of debt- collection lawsuits state-wide all similar in shape and format to Exhibit 3. 70. Upon information and belief, at large percentage of the lawsuits that Defendants file against consumers result in default judgments. This is because the vast majority of the legal actions that Defendant law firms file for NCSLT go uncontested, allowing TSI to collect on alleged debts that either are invalid or no proof of ownership. 71. Defendants take advantage of the fact that, under most states’ civil procedure law, the public employees who oversee the default-judgment process engage in a largely ministerial function, relying upon the representations and certifications of the attorneys who practice before the court. Given that tens of thousands of such lawsuits are filed every year, judicial system personnel would be overwhelmed if they had to investigate the validity of each and every default judgment application. 72. Here and as is perpetrated throughout the State of Michigan, Defendants file collection claims using form or template “Pool Supplements” to create a false belief in consumers and courts that they have the assigned right to collect on Specific debts they are suing upon. Please see Exhibit 6. Defendant Attorneys sign off on the lawsuits knowing the Plaintiff NCSLT entity or TSI lack the require assignment and chain of title paperwork necessary to prove they have a right to sue the state or local court Defendant or class members. Please see Exhibit 3. 73. An entity that itself meets the definition of debt collector is liable for the unlawful 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 24 of 40 Pg ID 24 8 collection activities carried out by another debt collector on its behalf. See, e.g., Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 404 (3rd Cir. 2000). Courts apply vicarious liability to debt collectors like TSI and Defendant law firms even when the debt collector they hire is an attorney. See, e.g., Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir.1994) (holding a debt collector vicariously liable for an attorney's violation of the FDCPA venue provision). 74. Further, the debts are being assigned to Defendant TSI to use Defendant law firms to prosecute Michigan collection lawsuits for NCSLT trusts and entities, and in the alternative, Defendants don’t have standing to bring the lawsuits as licensees (MCL 339.904(2)) and a collection agency under MCL 339.901(b). 75. Further, when a debtor or State defendant fights back against the lawsuit, Defendants TSI and their attorney networks create Affidavits to show proof of ownership of the debt even though the Affidavits show no assignments of the debt and the Affiants sign the Affidavits without personal knowledge or of they are swearing under oath to. 76. By way of example, in Ms. Gurny’s case against her in the 35th District court (Exhibit 3), Defendants seek to overcome her defense under Michigan’s Statute of Limitations statute at M.C.L. § 600.5807(8), by creating a Loan Payment History purporting to show her last payment made was $29.14 on 9/24/2012. The Loan Payment History Report at Plaintiff’s Exhibit 7 states that the last payment was made on 2012-09-24: 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 25 of 40 Pg ID 25 8 77. Yet, in the Affidavit created by TSI for the State Action against Ms. Gurny, the Affiant swears under oath in Paragraph 10 that the last payment made was on 12/11/2013: Please see Exhibit 8. 78. Ms. Gurny has no recollection of making any payments to NCSLT within the six years prior to the date of the state lawsuits filed against her. Please see Exhibit 2. 79. The TSI Affiant person swearing under oath should already know the dates, times and events that resulted in the true assignment of the SPECIFIC debt of Ms. Gurny. However, the Affidavit created by TSI at Exhibit 8 to use in a Summary Motion against Ms. Gurny in the State Action relies ambiguous and uncertain language to say something passed but isn’t sure if it went to some “intermediary” first at Paragraph 11 of the Affidavit created by TSI: 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 26 of 40 Pg ID 26 8 Please see Exhibit 8. 80. The Affidavit at Exhibit 8 cites no personal knowledge of the Affiant beyond examining computer records or documents created by TSI to show previous holdings of other Lenders and cannot commit to the Assignment of the debt to its own Plaintiff NCSLT. 81. On Monday, September 18, 2017, The Consumer Financial Protection Bureau (CFPB) took action against the National Collegiate Student Loan Trusts and Defendant TSI for illegal student loan debt collection lawsuits. The CFPB found that, since November 1, 2014, law firms like Defendant Shermeta that were hired by Defendant TSI filed hundreds of debt collection lawsuits with the documentation necessary to prove Trust ownership of the loans. Please see Exhibit 5. 82. The CFPB’s Consent Order that TSI stipulated to at Exhibit 5 goes specifically to the same facts as in this case and hundreds throughout Michigan with the use by Defendants TSI and Shermeta of false Affidavits and invisible debt assignments to prove ownership of these debts that Shermeta’s lawsuits are based upon when it states on Paragraph 49: 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 27 of 40 Pg ID 27 8 83. The Consent Order that Defendant TSI stipulated to cites the fact that, “Affiants lacked personal knowledge of the business records, including the electronic data, show that Consumers owed Debts to the Trusts. Affiants were instructed to review 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 28 of 40 Pg ID 28 8 certain data on a computer screen as part of an effort to verify some information the Affidavits about the Debts. Affiants, however, did not always know the source of the data on that screen, how the data was obtained or maintained, whether it was accurate, or whether that data meant that the Debt was in fact owed to the Trusts.” Paragraph 19 of the Consent Order at Exhibit 5. 84. Further in the Consent Order, TSI stipulated that: “Each Affiant also swore that he/she had “personal knowledge of the record management practices and procedures of the Plaintiff [the Trust] and the practices and procedures Plaintiff requires of its loan servicers and other agents.” In fact, certain Affiants lacked personal knowledge of the record management practices and procedures of the Trusts and the practices and procedures the Trusts required of its loan servicers and other agents.” Please see Paragraph 20 of the Consent Order at Exhibit 5. 85. The Defendant law firms like Shermeta that TSI picks out of its Attorney Network are considered collection agencies under MCL 339.901(b) as they are “a person directly or indirectly engaged in soliciting a claim for collection or collecting or attempting to collect a claim owed or due or asserted to be owed or due another, or repossessing or attempting to repossess a thing of value owed or due or asserted to be owed or due another arising out of an expressed or implied agreement.” 86. M.C.L. § 339.915a(f); MSA 18.425(915a) (f) provides that a licensee under the MCPA is prohibited from “soliciting, purchasing, or receiving an assignment of a claim for the sole purpose of instituting an action on the claim in a court.” TSI is claims to be the Servicer for 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 29 of 40 Pg ID 29 8 NCSLT (Exhibit 1) and in the state complaints at Exhibit 3, has Defendant law firms file collection law suits for NCSLT Plaintiffs and state for example: • in Paragraph 4 of the lawsuit against Ms. Gurny in the 35th District Court, the pleadings state “the contract was duly assigned, in the normal course of business, to Plaintiff,” at Exhibit 3; and • in Paragraph 4 of the lawsuit against Ms. Gurny in Wayne County Circuit Court the pleadings state “the contract was duly assigned, in the normal course of business, to Plaintiff,” at Exhibit 3. 87. The loan contracts are assigned to Defendant Shermeta by TSI to file Breach of Contract collection actions. MCL 339.901(e) states that, “Creditor or principal shall not include a person who receives an assignment or transfer of a debt solely for the purpose of facilitating collection of the debt for the assignor or transferor. As NCLST, TSI and the Defendant law firms are each “an entity that receives a debt in default for the purpose of collecting the debt is not a creditor and is therefore a debt collector/collection agency subject to the act.” 88. If as Defendants claim that they were suing Michigan class members with the original lender on the education loans assigning them the debt, then Defendant TSI (Exhibit 1) and Defendant law firms were assigned the Default student loan debts to file legal collection claims against Michigan debtors in collection lawsuits for the purpose of “facilitating collection of the debt for the assignor or transferor” for NCSLT entities. Please see Exhibit 3. 89. 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 30 of 40 Pg ID 30 8 Defendants did not have standing to bring these collection lawsuits under the following provisions of the Michigan collection practices act M.C.L. § 339.901 et seq.; MSA 18.425(901) et seq. that prohibit the following actions by a licensed collection agency: (b) Furnishing legal advice, or otherwise engaging in the practice of law, or representing that the person is competent to do so, or to institute a judicial proceeding on behalf of another. (d) Employing or retaining an attorney to collect a claim. A licensee may exercise authority on behalf of a creditor to employ the service of an attorney if the creditor has specifically authorized the collection agency in writing to do so and the licensee's course of conduct is at all times consistent with a true relationship of attorney and client between the attorney and the creditor. After referral to an attorney, the creditor shall be the client of the attorney, and the licensee shall not represent the client in court. The licensee may act as an agent of the creditor in dealing with the attorney only if the creditor has specifically authorized the licensee to do so in writing. (f) Soliciting, purchasing, or receiving an assignment of a claim for the sole purpose of instituting an action on the claim in a court. [MCL 339.915a(b), (d), and (f). 90. Additionally, the letters used by Defendant Shermeta at Exhibit 9 show they are violating the following Michigan Statute created to prevent the combination of attorneys and collection agencies being housed in the same office: 339.915a Licensee; additional prohibited acts. Sec. 915a. A licensee shall not commit any of the following acts: (a) Listing the name of an attorney in a written or oral communication, collection letter, or publication. (b) Furnishing legal advice, or otherwise engaging in the practice of law, or representing that the person is competent to do so, or to institute a judicial proceeding on behalf of another. (c) Sharing quarters or office space, or having a common waiting room with a practicing attorney or a lender. (d) Employing or retaining an attorney to collect a claim. 91. 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 31 of 40 Pg ID 31 8 Defendants are violating 339.915a (a), (b), (c), (d) and (f) as demonstrated by the lawsuits at Exhibit 3 and the Defendant law firm collection letters attached at Exhibit 7. 92. Plaintiff tentatively defines two classes including all persons in the State of Michigan who, during the one year (FDCPA) and six years (RCPA/MOC prior to the filing of this complaint were the victims of “NCSLT/TSI Collection Lawsuits” created by Defendants in violation of Federal and State law. 93. The FDCPA Class consists of all persons with a Michigan address that are subject to the Defendants’ collection lawsuits in violation of § 1692e, § 1692e (10), § 1692e (5), § 1692e (2)(A), § 1692f and § 1692d. 94. The RCPA/MOC Class consists of all persons with a Michigan address that have received Defendant collection lawsuits in violation of MCLA 445.252(n), MCLA 445.252(e), MCLA 445.252(a), MCLA 445.252(f) and MCLA 445.252(q). 95. There are questions of law and fact common to each class, which common issues predominate over any issues involving only individual class members. The principal and common issue is whether Defendants’ conduct in connection with the collection of a debt violates the FDCPA and RCPA/MOC. 96. There are no individual questions here. All Michigan class members receive the same or 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 32 of 40 Pg ID 32 8 similar computer template “NCSLT Collection Lawsuits” with lacking assignment, proper documentation and chain of title ownership and the proper standing to sue the Michigan violation of the FDCPA and RCPA/MOC. 97. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff is committed to vigorously litigating this matter. He is greatly annoyed at being the victim of Defendants’ illegal practices and wishes to see that the wrong is remedied. To that end, he has retained counsel experienced in litigating consumer advocacy and class claims. Neither Plaintiff nor their counsel has any interests which might cause them to not vigorously pursue this claim. 98. Plaintiff claims are typical of the claims of the classes, which all arise from the same operative facts and are based on the same legal theories out of Exhibits 1, 3 and 6. Please see Exhibit 8 which is the Plaintiffs showing they are sued on debts they dispute and NCSLT has no proof of debt ownership. 99. A class action is a superior method for the fair and efficient adjudication of this controversy. Most of the consumers who are subject to this practice and policy of Defendant undoubtedly have no knowledge that their rights are being violated by illegal collection practices. The interest of class members in individually controlling the prosecution of separate claims against Defendants is small because the maximum damages in an individual action are $1,000. Management of this class claim is likely to present significantly fewer difficulties than those presented in many class claims, e.g, for securities fraud. 100. Certification of each class under Rule 23(a) and (b)(3) of the Federal Rules of Civil 2:17-cv-13298-LJM-RSW Doc # 1 Filed 10/09/17 Pg 33 of 40 Pg ID 33 8 Procedure is appropriate because: (a) The questions of law and fact common to the members of each class predominate over any questions affecting an individual member: and (b) A class action is superior to other available methods for the fair and efficient adjudication of the controversy. 101. There are questions of law and fact common to the class members, which common questions predominate over any questions that affect only individual class members. The predominant questions are: a. Whether defendants had a practice of using filing NCSLT collection lawsuits without standing, proper paperwork or ownership/chain of title of the debts Defendants are suing upon against Michigan class members and consumers in violation of the FDCPA and RCPA/MOC 102. Certification of each class under Rule 23(b)(2) of the Federal Rules of Civil Procedure also is appropriate because Defendants have acted on grounds generally applicable to each class, thereby making declaratory and injunctive relief appropriate with respect to each class as a whole. 103. Plaintiff requests certification of a hybrid class action, combining the elements of FRCP 23(b)(3) for monetary damages and FRCP 23(b)(2) for equitable relief. | lose |
226,298 | 21. Defendant is a ticket retailer that markets and sells tickets for entertainment venues and events, and owns and operates the website, www.entertainment-link.com, offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 22. Defendant’s Website offers products and services for online sale and general delivery to the public. The Website offers features which ought to allow users to browse for items, access navigation bar descriptions and prices, and avail consumers of the ability to peruse the numerous items offered for sale. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS and NVDA screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using a screen-reader. 25. Defendant’s Website, www.entertainment-link.com, lacks prompting information necessary to allow Plaintiff to locate and narrow down a specific field of desired products and price range. This omission was exacerbated by the lack of alt. text, which is the code embedded beneath a graphical image on a website. Such lack of alt text prevented Plaintiff from being able to find an event of interest, due to failure of his screen reader to inform him on event dates, ticket availability, and locations. 26. The Website also contains a host of broken links, which prevented Plaintiff from effectively browsing the Website for available tickets and rates. 27. In addition, the Website requires the use of a mouse to effectively browse and make a purchase. Yet Plaintiff cannot use a mouse because manipulating the mouse is a visual activity of moving the mouse pointer from one visual spot to another. 28. Finally, Plaintiff was not able to determine whether a Live Chat was available or whether a phone number was posted, and if so, whether it was a 24/7 help line, as Plaintiff conducts much of his online shopping during the late evening hours. 29. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 31. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from visiting the Website, presently and in the future. 32. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 33. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 37. Because Defendant’s Website has never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.1 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.1 guidelines; b. Regularly check the accessibility of the Website under the WCAG 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 41. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 43. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 44. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 45. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 47. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 49. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 56. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 58. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant’s Website and its’ sale of goods to the general public, constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. 60. Defendant is subject to New York Human Rights Law because it owns and operates its Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 62. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 64. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 68. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 69. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 72. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 73. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 75. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 77. Defendant is subject to New York Civil Rights Law because it owns and operates their Website, and Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 78. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 79. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 80. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 81. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 83. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 84. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 86. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 87. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 89. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 90. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 91. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 93. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 95. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 97. Plaintiff, on behalf of himself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 99. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW | lose |
106,617 | 16. Definition of Class. J.R. proposes the following class: All individuals who: (a) have been, are, or will be participants or beneficiaries under Catholic Health Initiatives Medical Plan in effect or renewed on or after August 10, 2012 and/or the relevant limitations period; and (b) have received, require, or are expected to require ABA therapy for the treatment of ASD. 17. Size of Class. The class of persons who have received, require or are expected to require ABA for the treatment of ASD, and who have been, are or will be beneficiaries under the Plan, is expected to number in the hundreds and is so large that joinder of all members is impracticable. 25. During certain time periods on and after August 10, 2012, J.R. and members of the class have been, are or will be participants or beneficiaries of the Plan, which is subject to ERISA pursuant to 29 U.S.C. § 1003. 26. During the class period, and continuing to the present, J.R. and other members of the class have been diagnosed with ASD. 27. During the class period and continuing to the present, Plaintiff J.R. and other members of the class have required, currently require or will require ABA services to treat their ASD. As defined by the Plan, BCBSIL’s medical policy and relevant state and federal law, their ABA services are “mental health services” which may be medically necessary. 28. As a standard practice and policy, Defendants have excluded all coverage of such treatment through the application of exclusions and limitations. 29. Specifically, Plaintiff J.R. was diagnosed with ASD by Kelly A. Johnson, Ph.D. of the University of Washington’s Autism Center on or about December 2, 2016. 45. J.R. re-alleges all paragraphs above. 46. Defendant CHI is a plan fiduciary under ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), because it is the Plan Administrator and Plan Sponsor. Defendant CHI exercises discretionary authority or discretionary control with respect to the denial and appeal of denied claims under the Plan. 47. ERISA imposes strict fiduciary duties upon plan fiduciaries. ERISA § 404(a)(1)(C), 29 U.S.C. § 1104(a)(1)(C), states, in relevant part, that a plan fiduciary must discharge its duties with respect to a plan “solely in the interest of the participants and beneficiaries and … in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this title and Title IV.” 48. The terms of an ERISA plan include provisions of substantive federal law, such as the requirements in the Federal Parity Act. Defendants have failed to comply with the terms of the Plan as modified by the requirements of the Federal Mental Health Parity Act, and its implementing regulations. 49. Defendants violated their obligations under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), by failing to act in accordance with the documents and instruments governing the Plan and breached their fiduciary duties to J.R. and all class members. 51. J.R. re-alleges all the paragraphs above. 52. ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), provides that a participant or beneficiary may bring an action to “recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 53. J.R. and the class are entitled to recover benefits due them under the terms of the Plan. They are also entitled to a declaration of present and future rights to coverage of ABA services to treat ASD, a mental health condition. 54. J.R. re-alleges all the paragraphs above. BREACH OF FIDUCIARY DUTIES ERISA §§ 404(a)(1), 502(a)(2); 29 U.S.C. §§ 1104(a), 1132 (a)(2) CLAIM TO ENJOIN ACTS AND PRACTICES IN VIOLATION OF THE TERMS OF THE PLANS, TO OBTAIN OTHER EQUITABLE RELIEF AND TO ENFORCE THE TERMS OF THE PLANS ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3) CLAIM FOR RECOVERY OF BENEFITS, CLARIFICATION OF RIGHTS UNDER TERMS OF THE PLANS AND CLARIFICATION OF RIGHT TO FUTURE BENEFITS UNDER THE PLAN ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) | win |
256,560 | 40. Plaintiffs incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein. 44. Plaintiffs incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein. 45. Sirius’ made repeated telephone calls to Plaintiffs’ cellular telephones without being in any business relationship or contract. Furthermore, after Sirius was explicitly told to not call Plaintiffs, Sirius agents continued to call Plaintiffs’ cellular telephones. 46. Sirius’ actions constitute numerous and multiple knowing and/or willful violations of the TCPA, including, but not limited to, each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq. 47. As a result of Sirius’ knowing and/or willful violations of 47 U.S.C. § 227 et seq., Plaintiffs and each of the Class members are entitled to treble damages, as provided by statute, up to $1,500.00, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). 48. Plaintiffs and the Class members are also entitled to and seek injunctive relief prohibiting such conduct in the future. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. OF THE TCPA, 47 U.S.C. § 227 ET SEQ. • As a result of Sirius’ willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiffs seek for themselves and each Class member treble damages, as provided by statute, up to $1,500.00 for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). • Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. THE TCPA, 47 U.S.C. § 227 ET SEQ. • As a result of Sirius’ and Sirius’ agents’ negligent violations of 47 U.S.C. § 227(b)(1), Plaintiffs seek for themselves and each Class member $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). • Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiffs seek injunctive relief prohibiting such conduct in the future. • Any other relief the Court may deem just and proper. | win |
440,453 | 10. Furthermore, as explained by the Federal Communications Commission (“FCC”) in its 2012 order, the TCPA requires “prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG No. 02-278, FCC 12-21, 27 FCC Rcd. 1830 ¶ 2 (Feb. 15, 2012). 11. Yet, in violation of this rule, Defendant fails to obtain any prior express written consent to send solicitation text messages to consumers’ cellular telephone numbers. 12. At all times material to this Complaint, Defendant was and is fully aware that unsolicited telemarketing text messages are being sent to consumers’ cellular telephones. 14. On October 25, 2017 at 2:37 p.m., Defendant, using an automated text-messaging platform, caused the following text message to be transmitted to Plaintiff’s cellular telephone number ending in 6444 (the “6444 Number”): 15. The text message constitutes telemarketing because it promoted Defendant’s fitness facility and services. 17. Plaintiff received the subject text message within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other text messages to be sent to individuals residing within this judicial district. 18. At no point in time did Plaintiff provide Defendant with his express written consent to be contacted by text using an ATDS. 19. Plaintiff is the subscriber and sole user of the 6444 Number, and is financially responsible for phone service to the 6444 Number. 20. The impersonal and generic nature of the text messages, as well as the use of a short-code, demonstrates that Defendant utilized an ATDS in transmitting the messages. See Jenkins v. LL Atlanta, LLC, No. 1:14-cv-2791-WSD, 2016 U.S. Dist. LEXIS 30051, at *11 (N.D. Ga. Mar. 9, 2016)(“These assertions, combined with the generic, impersonal nature of the text message advertisements and the use of a short code, support an inference that the text messages were sent using an ATDS.”) (citing Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1354 (S.D. Fla. 2014) (plaintiff alleged facts sufficient to infer text messages were sent using ATDS; use of a short code and volume of mass messaging alleged would be impractical without use of an ATDS); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010) (finding it “plausible” that defendants used an ATDS where messages were advertisements written in an impersonal manner and sent from short code); Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125, 1130 (COURT YEAR) (PARANTHETICAL); & Robbins v. Coca-Cola Co., No. 13-CV-132-IEG NLS, 2013 U.S. Dist. LEXIS 72725, 2013 WL 2252646, at *3 (S.D. Cal. May 22, 2013) (observing that mass messaging would be impracticable without use of an ATDS)). 22. Defendant’s unsolicited text message caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text messages also inconvenienced Plaintiff and caused disruption to his daily life. See Patriotic Veterans, Inc. v. Zoeller, No. 16-2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of the phone owner’s time and mental energy, both of which are precious.”). 23. Plaintiff bring this action pursuant to Federal Rule of Civil Procedure 23(b)(2) and Rule 23(b)(3) on behalf of himself and all others similarly situated and seek certification of the following Class: All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a text message made through the use of any automatic telephone dialing system or an artificial or prerecorded voice, from Defendants or anyone on Defendants’ behalf, to said person’s cellular telephone number, without emergency purpose and without the recipient’s prior express consent. 25. Numerosity: The exact size of the Class is unknown and not available to Plaintiff at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendant sent text messages to thousands of consumers who fall into the definition of the Class. Members of the Class can be easily identified through Defendant’s records. 26. Commonality and Predominance: There are many questions of law and fact common to the claims of Plaintiff and the Class, and those questions predominate over any questions that may affect individual members of the Class. Common questions for the Class include, but are not necessarily limited to the following: (a) whether Defendant’s conduct constitutes a violation of the TCPA; (b) whether Defendant utilized an automatic telephone dialing system to send text messages to members of the Classes on their cellular telephones; and (c) whether Defendant obtained prior express written consent to contact any class members. 27. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the Classes, and has retained counsel competent and experienced in class actions. Plaintiff has no interest antagonistic to those of the Classes, and Defendant has no defenses unique to Plaintiff. Plaintiff and his counsel are committed to vigorously prosecuting this action on behalf of the members of the Classes, and have the financial resources to do so. Neither Plaintiff nor his counsel has any interest adverse to the Classes. 29. Plaintiff repeats and re-allege the foregoing paragraphs of this Complaint and incorporates them herein by reference. 30. Defendant sent marketing text messages to cellular telephone numbers belonging to Plaintiff and other members of the Class without first obtaining prior express written consent to receive such autodialed text messages. 32. By sending the unsolicited text messages to Plaintiff and the cellular telephones of members of the Class without their prior express written consent, and by utilizing an automatic telephone dialing system to make those calls, Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii). 33. As a result of Defendant’s conduct, Plaintiff and the other members of the Text Message No Consent Class are each entitled to, under 47 U.S.C. § 227(b)(3)(B), a minimum of $500.00 in damages for each violation of such act. 34. In the event that the Court determines that Defendant’s conduct was willful and knowing, it may, under 47 U.S.C. § 227(b)(3)(C), treble the amount of statutory damages recoverable by Plaintiff and the other members of the Text Message No Consent Class. 8. In recent years, companies such as Defendant have turned to unsolicited telemarketing as a way to increase its customer base. 9. Text messages, like the ones sent in the instant action, are considered calls under the TCPA. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd. 14014, 14115, ¶ 165 (July 3, 2003); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009) (noting that text messaging is a form of communication used primarily between telephones and is therefore consistent with the definition of a “call”). Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) | win |
263,110 | 1. Warren is a resident of the State of Indiana, and is domiciled in Plymouth, Marshall County, Indiana. 10. Warren is specifically alleging that Oasis has taken illegal deductions in violation of the Indiana Wage Assignment Statute, I.C. 22-2-6-2, and in so doing, Oasis has failed and refused to pay Warren and every other similarly situated PPE-wearing employee his/her wages in full in each and every week Oasis took one of these pay roll deductions for PPE. 11. Warren is also alleging that Oasis has and had no legal authority to dock his wages and the wages of its employees to cover Oasis’ own business expenses (and legal obligation to pay and provide PPE under OSHA and other law), nor did Oasis have signed, USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 6 of 18 7 written authority from its employees, including Warren, which complies with I.C. 22-2-6-2 and would allow Oasis to dock its employees’ wages to cover PPE costs (as described above). 12. Any wage deductions Oasis took from Warren’s wages and the wages of his coworkers without wage assignments that fully complied with the requirements of I.C. 22-2-6- 2(a) are illegal and created violations of the Indiana Wage Payment Statute, regardless of whether or not the deduction was taken for a reason which would have been permitted under I.C. 22-2-6-2(b). That said, the deductions Oasis took for PPE costs are not authorized under I.C. 22- 2-6-2(b). Moreover, as described above, the deductions Oasis took and takes for PPE costs directly violates the prohibition listed in I.C. 22-2-6-2(e). 13. All wage deductions Oasis took from Warren and any other PPE-wearing employee’s wages during weeks in which the Plaintiff also worked overtime constitutes and FLSA overtime violation for failure to pay all overtime free and clear and not subject to any kickback. This would include all deductions taken from Warren or any worker’s wages for any PPE costs. 14. While discovery will be necessary to determine precise figures, based upon information and belief, Warren estimates that Oasis has illegally deducted and taken from its employees well over $100,000.00 in wages over the last two years’ time. With liquidated damages under I.C. 22-2-5-2, Oasis will likely owe damages of $300,000.00 or more for its unlawful deductions for PPE costs. B. Description of Unpaid Wage and Overtime Claims Based Upon Oasis’ Failure to Pay Wages From Each Employee’s First Principal Activity to Each Employee’s Last Principal Activity 15. Oasis utilizes a time clock for its hourly paid employees. However, Oasis’ time USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 7 of 18 8 clock records for Warren and all similarly situated PPE-wearing employees will not accurately record all work Warren and his coworkers performed each work day. Specifically, as described in more detail in the paragraphs below, Oasis was not keeping accurate time records which recorded compensable work activity employees performed at the start of each work shift, nor was Oasis recording compensable work activity which employees performed after punching out on the Oasis time clock at the end of each work shift. 16. Unpaid Work At the Beginning of Each Work Shift. Warren and all PPE- wearing coworkers are required to spend significant time at the beginning of each work shift donning required PPE to protect themselves from harmful fiberglass, resins, paint and other harmful materials. Workers don PPE outside of their assigned Oasis work areas, many in the Oasis locker room, but some don the gear in the parking lot or entry way (the PPE is worn over clothes and shoes). The PPE must be donned, however, before employees are allowed to walk in any manufacturing area or, more importantly, walk to their assigned work stations. For that reason, this PPE donning of 1) disposable paper shirts, 2) disposable paper pants, 3) disposable paper shoe coverings (booties), 4) disposable paper face masks, 5) safety eye glasses, 6) disposable head coverings, and 7) disposable gloves, takes many significant minutes of work. None of this donning time is paid, nor is it recorded on the Oasis time clock. After donning required PPE, employees punch in on the Oasis time clock and then take the minutes necessary to walk to an assigned Oasis work area. Oasis requires each employee to be fully dressed in PPE and at his/her assigned work station, ready to work, at the employee’s scheduled work start time. For example, Warren typically worked the second shift and he was required to be in his full PPE and present at his work area at his scheduled 3:00 p.m. shift start time. Oasis set its time clocks so that employees could only punch in for a shift on the time clock at a time that was ten minutes USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 8 of 18 9 prior to the scheduled shift start time. This fact did not matter to employee wages, however, because Oasis would disregard actual time clock punches “in,” and would instead begin paying employees only at the official scheduled shift time (in Warren’s case, this was 3:00 p.m.). This means, and Warren expressly asserts and alleges, Oasis was not paying Warren and all similarly situated PPE-wearing coworkers for their compensable work minutes and hours spent in required PPE donning and time walking to work areas after donning PPE and clocking in at the beginning of a shift. Similarly, Warren and his coworkers would also have to spend significant, compensable work time obtaining PPE from Oasis PPE store/window on most work shifts (this includes obtaining PPE that Oasis would charge to employees through the wage deductions described above). Warren and his similarly-situated PPE-wearing coworkers were losing ten or more minutes of compensable work time at the beginning of each work shift every day – at least five shifts per week. Warren estimates that he would arrive to work twenty minutes before his scheduled shift start in order to have time to 1) obtain his PPE, 2) don his PPE, 3) clock in, and 4) walk to his work station to arrive before his scheduled start time. 17. Unpaid Work At the End of Each Work Shift. At the end of each work shift, Warren and all similarly situated PPE-wearing coworkers would leave work stations and walk back to the time clock to punch out. During this end of shift walk, employees would still have to be dressed in required PPE. Oasis would treat an employee’s time punch out as the end of the employee’s paid work day. However, after punching out, employees would have to spend significant minutes in clean up and doffing all of the required PPE, including all of the disposable paper PPE which would be caked with fiberglass material, resin, paint, etc…. This doffing and cleaning process would take at least five or more minutes after each employee clocked out. Oasis did not pay wages for these additional minutes. USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 9 of 18 10 18. Oasis violated the FLSA’s recording keeping obligations, 29 USC 211(c), by failing to accurately record all compensable time worked by Warren and all similarly situated PPE-wearing coworkers from a first principal work activity through a last principal work activity each work shift. As a result of this recordkeeping violation, the Court and the parties will need to rely upon the best available evidence of this off the clock work time that Oasis failed to pay. This is true for unpaid wages and unpaid overtime compensation. Warren conservatively estimates that Oasis failed to pay him and his similarly situated PPE-wearing coworkers by fifteen or more minutes each work shift and by well over one hour each work week. Further, Warren specifically asserts and alleges that he is owed wages for at least one hour of work/overtime work in every full work week (5 or more shifts) he worked for Oasis. 19. Based upon its long-standing practice of failing to treat substantial shift beginning and shift ending work (donning and doffing of required PPE and walking time) as compensable work time, Oasis has been systematically underpaying its employees significant sums of wages and overtime on a daily, weekly and annual basis. 2. Oasis operates its manufacturing facility in Plymouth, Marshall County, Indiana. Oasis manufactures home bath products, such as shower stalls and bases and combination tubs and showers. The products Oasis manufactures have high resin and fiberglass content and production workers work with raw resin and fiberglass materials. 20. As described above, all of the time employees spend donning required PPE is work time. All time spent walking to a work station after donning required PPE is work time. All of this PPE-donning and walking work time must be compensated under the FLSA and the Indiana Wage Payment Statute. Oasis does not and has not paid Warren and all similarly situated employees for any of this work time from the time of each employee’s first principal activity (donning PPE) until the time employees doff the PPE, as is required by law. 21. All of Oasis’ time keeping, time card rounding/shaving and wage payment schemes were performed to Oasis’ advantage and to the detriment and harm of Oasis’ employees. USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 10 of 18 11 22. Oasis intentionally and knowingly violated its employees’ rights to earned wages and overtime through Oasis’ conscious and deliberate decision not to pay employees for all work time related to the donning and doffing of PPE and all related work activities which occurred before the official shift scheduled start time and after punching out on the time clock at the end of a shift. 23. During his last months of employment, in 2018, Warren believes he was paid wages at the rate of $12.00 per hour. His overtime rate of pay was $18.00 per hour. During each work week in 2018, Oasis underpaid Warren his wages and overtime (for each week the unpaid hours of work would put Warren’s work hours in excess of 40) by one or more hour. This means Oasis underpaid Warren’s wages by $12.00 or more per week for each week in 2018. Under the Indiana Wage Payment Statute, with liquidated damages under I.C. 22-2-5-2, Oasis owes Warren damages of $36.00 or more per week he worked. Under the FLSA, for the weeks Warren worked overtime hours, Oasis owes $36.00 per week ($18.00/overtime hour doubled to $36.00 under the FLSA’s liquidated damages provision). 24. Warren’s wage loss is representative and typical of the wages lost by his fellow PPE-wearing coworkers. In this class and FLSA collective action, Oasis will owe hundreds of thousands of dollars in damages to its employees who were not paid for significant donning and doffing time related to PPE they were required to wear by Oasis and by law. 25. Oasis has intentionally, knowingly, with reckless disregard and systematically violated its employees’ rights to earned wages through Oasis’ illegal wage deduction practices and its illegal treatment of required, work time (donning/doffing of PPE, walking to work stations) as unpaid time. Oasis intentionally, knowingly, with reckless disregard and systematically violated Warren and all similarly situated employees’ rights to be paid earned USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 11 of 18 12 wages and to be paid earned overtime compensation. Oasis deliberately and intentionally implemented illegal wage deductions and illegal wage policies in order to pay less in wages and overtime to its employees than it owed. 26. Warren incorporates herein by reference paragraphs 1 - 25 above. 27. Warren is pursuing claims individually, but this Complaint is brought also as a collective action and as a class action on behalf of other current and former Oasis PPE-wearing employees who were similarly denied payment of wages and overtime compensation under Oasis’ compensation scheme that involved unlawful wage deductions and the failure to pay for all work time from the first principal activity each day through the last principal activity. 28. This action is filed as a collective action pursuant to Section 16(b) of the Fair Labor Standards Act, 29 USC § 216(b), on behalf of Warren and all Oasis PPE-wearing current and former employees who were damaged by Oasis’ compensation system which required and resulted in uncompensated work by Oasis’ employees. By virtue of the “collective action,” Warren represents the identical and/or similar interests of former and current coworkers denied wages and overtime compensation under the same circumstances. Warren anticipates that other Oasis employees and former employees will opt in to the action. 29. With respect to FRCP 23(b)(3) class action claims under the Indiana Wage Payment Statute, Warren will serve as class representative over a proposed class. The class will be as follows: Warren will serve as class representative for the class-wide claims brought under the Indiana Wage Payment Statute. This Court has supplemental jurisdiction over Warren’s Indiana statutory wage claims. This action is filed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of Warren and on behalf of all eligible PPE-wearing Oasis current and former employees (who voluntarily resigned) who work USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 12 of 18 13 or worked for the company and were damaged by Oasis’ compensation system which required and resulted in unlawful wage deductions and in uncompensated work performed by hourly-paid employees. By virtue of the class action, Warren represents the identical and/or similar interests of former and current coworkers denied wages under the same circumstances. 3. Warren is a former Oasis employee. He was hired in approximately October 2017 to work as an hourly-paid production employee. Warren voluntarily resigned from employment in approximately February or March 2018. 30. Based upon information and belief (particularly in light of employee turnover rates), the number of potential class members is believed to be several hundred or more individuals, however, the actual number of Oasis’ current and former PPE-wearing employees who will be members of this collective action/class action is so great (numerosity) that joinder of all members is impractical. Instead, Warren will pursue discovery to obtain the names of the other current and former PPE-wearing Oasis employees, to provide notice of the collective action, and to offer the opt in opportunity, and to provide notice of the class action and to offer the opt out opportunity. 31. Particularly with the types of wage claims and practices at issue in this case, there are questions of law and fact that are common to the entire collective group/class. 32. Warren’s claims are typical of the claims of the whole collective group of current and former PPE-wearing, hourly-paid employees harmed by Oasis’ illegal wage practices. Warren’s claims are typical of the claims of the whole class of current and former PPE-wearing hourly-paid employees harmed by Oasis’ illegal wage practices. 33. Warren will act to fairly and adequately protect the interests of the entire collective group of current and former Oasis PPE-wearing employees. Warren will act to fairly and adequately protect the interests of the entire Rule 23 class of current and former PPE- wearing Oasis employees. USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 13 of 18 14 34. A “combined”1 collective action/class action is superior to other available means for the fair and efficient prosecution of these wage claims against Oasis. For example, to prove Oasis’ illegal wage practices, Warren and other members of this collective group/class would seek in discovery records about all similarly situated current and former PPE-wearing Oasis employees who were similarly denied earned wages and overtime compensation under Oasis’ compensation system which required unlawful wage deductions and also resulted in uncompensated work through illegal wage practices which failed to pay for PPE donning and doffing work time, all of which harmed hourly-paid employees. Individual lawsuits by the members of the collective group/class could lead to 1) inconsistent or varying outcomes in the cases, 2) duplicitous discovery, or 3) competition for limited funds. Further, as a practical matter, the first litigant to trial may achieve a result which would have bearing on all of the other individuals in the group. 35. A determination regarding the “similarness” of those able to participate in the collective action/class action would also allow litigation of claims that may not otherwise be cost effective, depending upon the amount of each individual group member’s damages. Particularly with the type of FLSA and Indiana statutory and contractual wage violations at issue in this litigation, some, if not most, of the individual group members may not be aware of their rights to their wages under the FLSA and Indiana law, or may not, because of financial means or experience, be in a position to seek the assistance of counsel to commence individual litigation. 36. A combined collective action/class action will result in an orderly and expeditious administration of the group members’ claims, and economies of time, court resources, effort and expense, and uniformity of decisions will be assured. 1See Ervin v. OS Restaurant Services, Inc., 632 F.3d 971, 973-974 (7th Cir. 2011) USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 14 of 18 15 37. Because Oasis’ compensation system which required and resulted in illegal wage deductions and uncompensated work by hourly-paid employees results in wage violations that trigger issues of both federal and state law, this cause of action presents the ideal factual scenario supporting the Court’s exercise over the supplemental state law claims, as common state and federal law issues predominate. 4. Oasis pays or paid Warren and his fellow PPE-wearing employees on an hourly- paid basis. Warren and his fellow PPE-wearing production manufacturing employees are non- exempt for FLSA overtime purposes. During his employment, Oasis paid Warren at hourly rates of pay in the $11.00 to $12.00 per hour range. Warren and his fellow PPE-wearing production employees routinely work some overtime hours (hours in excess of forty) during some workweeks through the year. USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 3 of 18 4 A. Description of Illegal Wage Deduction Claims 5. During his employment, Warren worked for Oasis as a “roller.” As a roller, Warren had to work with and around significant harmful substances, including sprayed fiberglass, sprayed resins and paint. Other Oasis job positions that required significant work around fiberglass, resins, paints and other substances included the jobs of “chopper,” “painter,” and “parts pullers.” Warren and all similarly situated Oasis coworkers who worked in areas around the fiberglass, resins, paints and other harmful substances were required by law – particularly OSHA and IOSHA laws – to wear substantial PPE while at work or in the manufacturing area. Warren estimates that Oasis employs 240 or so employees at any given time and Warren estimates that, at least, one half of those employees (at least 120 employees) are required to wear substantial PPE at work to protect from harmful fiberglass, resins, paints and other substances. The types of PPE that law (e.g., OSHA laws and regulations) and Oasis required Warren and his PPE-wearing coworkers to don at work included, but are not limited to, 1) disposable paper shirts, 2) disposable paper pants, 3) disposable paper shoe coverings (booties), 4) disposable paper face masks, 5) safety eye glasses, 6) disposable head coverings, and 7) disposable gloves. 6. By law, particularly OSHA laws and regulations, Oasis is and was required to provide Warren and all of his fellow PPE-wearing employees with all of the required PPE, including all paper, disposable PPE, described in the paragraph above, at Oasis’ expense. Oasis cannot pass any of the expense of this legally required PPE to its employees. Indeed, even the Indiana Wage Assignment Statute itself, at I.C. 22-2-6-2(e), contains this express prohibition on charging employees through wage assignments for PPE, stating “Except as provided under 29 CFR Parts 1910, 1915, 1917, 1918, and 1926, an employee shall not be charged or subject to a USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 4 of 18 5 wage assignment under subsection (b)(14) or (b)(15) for protective equipment including personal protective equipment identified under 29 CFR Parts 1910, 1915, 1917, 1918, and 1926.” All of the PPE described by Warren in Paragraph 5 hereinabove - 1) disposable paper shirts, 2) disposable paper pants, 3) disposable paper shoe coverings (booties), 4) disposable paper face masks, 5) safety eye glasses, 6) disposable head coverings, and 7) disposable gloves – are the same types of PPE which an employer must provide and which it cannot charge (or subject employees to a wage assignment) to employees under I.C. 22-2-6-2(e). Under the law, Oasis could not take wage deductions for costs of any of this PPE from Warren’s wages or any other PPE-wearing employee for any reason. 7. Despite its legal obligation to provide and pay for all PPE Oasis employees were required to wear, Oasis developed a scheme whereby it told employees it would only provide and pay for two sets of the disposable PPE - 1) disposable paper shirts, 2) disposable paper pants, 3) disposable paper shoe coverings (booties), 4) disposable paper face masks, 5) disposable head coverings, and 6) disposable gloves – per work week, and told Warren and fellow employees that the employees would have to purchase, through a wage deduction, all other sets of disposable paper PPE needed to finish the work week. Oasis went so far as to create an area of its manufacturing facility (a store) where employees would have to purchase additional sets of disposable paper PPE for the week. Warren and his fellow PPE-wearing coworkers were generally working five shifts per week. More important, because of the caked layers of fiberglass and resin which built up on the disposable paper PPE each work day, Warren and all similar coworkers would need at least one set of disposable paper PPE for each work shift. Oasis’ scheme caused Warren and fellow coworkers to purchase multiple sets of additional disposable paper PPE each and every work week through wage deductions. For Warren, he was USDC IN/ND case 3:20-cv-00048-PPS-MGG document 1 filed 01/14/20 page 5 of 18 6 purchasing three sets of disposable paper PPE from Oasis every work week and paying for the PPE himself via wage deductions. 8. The additional sets of disposable paper PPE Oasis charged to Warren and all similarly situated PPE-wearing employees were cumulatively expensive. Oasis charged employees for each individual item of disposable paper PPE (e.g, $2.00 for a shirt, $2.00 for a pair of pants). A full set of disposable paper PPE could cost $5.00 or more. Warren and all similarly situated PPE-wearing employees regularly had $15.00 or more deducted from wages each and every work week. Warren is expressly and specifically alleging that Oasis illegally deducted substantial sums from each of his pay checks in each of his work weeks in calendar year 2018. 9. Based upon information and belief, all illegal PPE wage deductions Oasis took from Warren and his coworkers’ wages will be shown as deductions on pay stubs issued by Oasis. Pay stubs will show the amount deducted each pay period and should show year to date (“YTD”) amounts deducted for the pay year. Pay stubs will show the total amounts deducted from Warren and from all similarly situated employees for PPE for each pay period and each year. | win |
41,237 | (Declaratory Relief) 24 111. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 110 of this Complaint as though set forth at length herein. 112. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that Barkbox.com contains access barriers denying blind customers the full and equal access to the goods, services and facilities of Barkbox.com, which Barkbox owns, operates and/or controls, fails to comply with applicable laws including, but not limited to, Title III of the American with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Administrative Code § 8-107, et seq. prohibiting discrimination against the blind. 113. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. (Violation of New York State Civil Rights Law, NY CLS Civ R, Article 4 (CLS Civ R § 40 et seq.)) (Violation of 42 U.S.C. §§ 12181 et seq. – Title III of the Americans with Disabilities Act) (Violation of New York City Human Rights Law, N.Y.C. Administrative Code § 8-102, et seq.) 12 17 (Violation of New York State Human Rights Law, N.Y. Exec. Law Article 15 (Executive Law § 292 et seq.)) 26. Defendant, Barkbox, Inc., controls and operates Barkbox.com. in New York State and throughout the United States and the world. 27. Barkbox.com is a commercial website that offers products and services for online sale. The online store allows the user to browse dog goodie box subscription options, make purchases, and perform a variety of other functions. 28. Among the features offered by Barkbox.com are the following: (a) Consumers may use the website to connect with Barkbox on social media, using such sites as Facebook, Twitter, Instagram, and Pinterest; (b) an online store, allowing customers to purchase monthly boxes of dog goodies; and 8 (c) learning about career opportunities, promotions, themes, and about the company. 29. This case arises out of Barkbox’s policy and practice of denying the blind access to the goods and services offered by Barkbox.com. Due to Barkbox’s failure and refusal to remove access barriers to Barkbox.com, blind individuals have been and are being denied equal access to Barkbox, as well as to the numerous goods, services and benefits offered to the public through Barkbox.com. 30. Barkbox denies the blind access to goods, services and information made available through Barkbox.com by preventing them from freely navigating Barkbox.com. 31. Barkbox.com contains access barriers that prevent free and full use by Plaintiff and blind persons using keyboards and screen-reading software. These barriers are pervasive and include, but are not limited to: lack of alt-text on graphics, inaccessible drop-down menus, the lack of navigation links, the lack of adequate prompting and labeling, the denial of keyboard access, empty links that contain no text, redundant links where adjacent links go to the same URL address, and the requirement that transactions be performed solely with a mouse. 32. Alternative text (“Alt-text”) is invisible code embedded beneath a graphical image on a website. Web accessibility requires that alt-text be coded with each picture so that a screen-reader can speak the alternative text while sighted users see the picture. Alt-text does not change the visual presentation except that it appears as a text pop-up when the mouse moves over the picture. There are many important pictures on Barkbox.com that lack a text equivalent. The lack of alt-text on these graphics prevents screen readers from accurately vocalizing a description of the graphics (screen-readers detect and vocalize alt-text to provide a description of the image to a blind computer user). As a result, Plaintiff and blind Barkbox.com customers are unable to determine what is on the website, browse the website or investigate and/or make purchases. 9 33. Barkbox.com also lacks prompting information and accommodations necessary to allow blind shoppers who use screen-readers to locate and accurately fill-out online forms. On a shopping site such as Barkbox.com, these forms include search fields to select dog size and select monthly plans, and fields used to fill-out personal information, including address and credit card information. Due to lack of adequate labeling, Plaintiff and blind customers cannot make a selection or inquiries as to Defendant’s merchandise, nor can they enter their personal identification and financial information with confidence and security. In fact, when Plaintiff attempted to click on one of the dog size options, her screen-reader could not recognize the button. Consequently, she was unable to proceed to selecting a monthly plan and unable to complete a transaction. 34. Furthermore, Barkbox.com lacks accessible image maps. An image map is a function that combines multiple words and links into one single image. Visual details on this single image highlight different “hot spots” which, when clicked on, allow the user to jump to many different destinations within the website. For an image map to be accessible, it must contain alt-text for the various “hot spots.” The image maps on Barkbox.com’s menu page do not contain adequate alt-text and are therefore inaccessible to Plaintiff and the other blind individuals attempting to make a purchase. When Plaintiff tried to access the menu link in order to make a purchase, she was unable to access it completely. 35. Moreover, the lack of navigation links on Defendant’s website makes attempting to navigate through Barkbox.com even more time consuming and confusing for Plaintiff and blind consumers. 36. Barkbox.com requires the use of a mouse to complete a transaction. Yet, it is a fundamental tenet of web accessibility that for a web page to be accessible to Plaintiff and blind people, it must be possible for the user to interact with the page using only the keyboard. 10 Indeed, Plaintiff and blind users cannot use a mouse because manipulating the mouse is a visual activity of moving the mouse pointer from one visual spot on the page to another. Thus, Barkbox.com’s inaccessible design, which requires the use of a mouse to complete a transaction, denies Plaintiff and blind customers the ability to independently navigate and/or make purchases on Barkbox.com. 37. Due to Barkbox.com’s inaccessibility, Plaintiff and blind customers must in turn spend time, energy, and/or money to make their purchases at traditional brick-and-mortar retailers. Some blind customers may require a driver to get to the stores or require assistance in navigating the stores. By contrast, if Barkbox.com was accessible, a blind person could independently investigate products and make purchases via the Internet as sighted individuals can and do. According to WCAG 2.0 Guideline 2.4.1, a mechanism is necessary to bypass blocks of content that are repeated on multiple webpages because requiring users to extensively tab before reaching the main content is an unacceptable barrier to accessing the website. Plaintiff must tab through every navigation bar option and footer on Defendant’s website in an attempt to reach the desired service. Thus, Barkbox.com’s inaccessible design, which requires the use of a mouse to complete a transaction, denies Plaintiff and blind customers the ability to independently make purchases on Barkbox.com. 38. Barkbox.com thus contains access barriers which deny the full and equal access to Plaintiff, who would otherwise use Barkbox.com and who would otherwise be able to fully and equally enjoy the benefits and services of Barkbox.com in New York State and throughout the United States. 39. Plaintiff, Marion Kiler, has made numerous attempts to complete a purchase on Barkbox.com, most recently in July 2018, but was unable to do so independently because of the many access barriers on Defendant’s website. These access barriers have caused 11 Barkbox.com to be inaccessible to, and not independently usable by, blind and visually-impaired persons. Amongst other access barriers experienced, Plaintiff was unable to purchase a monthly box of dog goodies. 40. As described above, Plaintiff has actual knowledge of the fact that Defendant’s website, Barkbox.com, contains access barriers causing the website to be inaccessible, and not independently usable by, blind and visually-impaired persons. 41. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits and services of Barkbox.com. 42. Defendant engaged in acts of intentional discrimination, including but not limited to the following policies or practices: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 43. Defendant utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 44. Because of Defendant’s denial of full and equal access to, and enjoyment of, the goods, benefits and services of Barkbox.com, Plaintiff and the class have suffered an injury- in-fact which is concrete and particularized and actual and is a direct result of defendant’s conduct. 45. Plaintiff, on behalf of herself and all others similarly situated, seeks certification of the following nationwide class pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: “all legally blind individuals in the United States who have attempted to access Barkbox.com and as a result have been denied access to the enjoyment of goods and services offered by Barkbox.com, during the relevant statutory period.” 46. Plaintiff seeks certification of the following New York subclass pursuant to Fed.R.Civ.P. 23(a), 23(b)(2), and, alternatively, 23(b)(3): “all legally blind individuals in New York State who have attempted to access Barkbox.com and as a result have been denied access to the enjoyment of goods and services offered by Barkbox.com, during the relevant statutory period.” 47. There are hundreds of thousands of visually-impaired persons in New York State. There are approximately 8.1 million people in the United States who are visually- impaired. Id. Thus, the persons in the class are so numerous that joinder of all such persons is impractical and the disposition of their claims in a class action is a benefit to the parties and to the Court. 48. This case arises out of Defendant’s policy and practice of maintaining an inaccessible website denying blind persons access to the goods and services of Barkbox.com. Due to Defendant’s policy and practice of failing to remove access barriers, blind persons have been and are being denied full and equal access to independently browse, select and shop on Barkbox.com. 49. There are common questions of law and fact common to the class, including without limitation, the following: (a) Whether Barkbox.com is a “public accommodation” under the ADA; 13 (b) Whether Barkbox.com is a “place or provider of public accommodation” under the laws of New York; (c) Whether Defendant, through its website, Barkbox.com, denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities in violation of the ADA; and (d) Whether Defendant, through its website, Barkbox.com, denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities in violation of the law of New York. 50. The claims of the named Plaintiff are typical of those of the class. The class, similar to the Plaintiff, is severely visually-impaired or otherwise blind, and claims Barkbox has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on their website, Barkbox.com, so it can be independently accessible to the class of people who are legally blind. 51. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the members of the class. Class certification of the claims is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 52. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to Class members clearly predominate over questions affecting only individual class members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 14 53. Judicial economy will be served by maintenance of this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 54. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the class, unless otherwise indicated. 55. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 54 of this Complaint as though set forth at length herein. 56. Title III of the American with Disabilities Act of 1990, 42 U.S.C. § 12182(a) provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Title III also prohibits an entity from “[u]tilizing standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.” 42 U.S.C. § 12181(b)(2)(D)(I). 57. Barkbox.com is a sales establishment and public accommodation within the definition of 42 U.S.C. §§ 12181(7). 58. Defendant is subject to Title III of the ADA because it owns and operates Barkbox.com. 59. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I), it is unlawful 15 discrimination to deny individuals with disabilities or a class of individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 60. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 61. Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II), unlawful discrimination includes, among other things, “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations.” 62. In addition, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(III), unlawful discrimination also includes, among other things, “a failure to take such steps as may be necessary to ensure that no individual with disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 63. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their websites accessible, including but not limited 16 to ensuring adequate prompting and accessible alt-text. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 64. The acts alleged herein constitute violations of Title III of the ADA, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereunder. Patrons of Barkbox who are blind have been denied full and equal access to Barkbox.com, have not been provided services that are provided to other patrons who are not disabled, and/or have been provided services that are inferior to the services provided to non-disabled patrons. 65. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 66. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Barkbox.com in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. and/or its implementing regulations. 67. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the proposed class and subclass will continue to suffer irreparable harm. 68. The actions of Defendant were and are in violation of the ADA, and therefore Plaintiff invokes his statutory right to injunctive relief to remedy the discrimination. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 71. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 70 of this Complaint as though set forth at length herein. 72. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.”. 73. Barkbox.com is a sales establishment and public accommodation within the definition of N.Y. Exec. Law § 292(9). 74. Defendant is subject to the New York Human Rights Law because it owns and operates Barkbox.com. Defendant is a person within the meaning of N.Y. Exec. Law. § 292(1). 75. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to Barkbox.com, causing Barkbox.com to be completely inaccessible to the blind. This inaccessibility denies blind patrons the full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 76. Specifically, under N.Y. Exec. Law § unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 18 77. In addition, under N.Y. Exec. Law § 296(2)(c)(II), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 78. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed by using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 79. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296(2) in that Defendant has: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 80. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 19 81. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Barkbox.com under N.Y. Exec. Law § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 82. The actions of Defendant were and are in violation of the New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 83. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 84. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 85. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 86. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 85 of this Complaint as though set forth at length herein. 87. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 88. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of any places of public accommodations, resort or amusement, subject only to the 20 conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 89. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 90. Barkbox.com is a sales establishment and public accommodation within the definition of N.Y. Civil Rights Law § 40-c(2). 91. Defendant is subject to New York Civil Rights Law because it owns and operates Barkbox.com. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 92. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to Barkbox.com, causing Barkbox.com to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 93. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed by using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 21 94. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 95. Specifically, under N.Y. Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside . . .” 96. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 97. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class on the basis of disability are being directly indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 98. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines pursuant to N.Y. Civil Rights Law § 40 et seq. for each and every offense. 99. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 98 of this Complaint as though set forth at length herein. 22 100. N.Y.C. Administrative Code § 8-107(4)(a) provides that “it shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 101. Barkbox.com is a sales establishment and public accommodation within the definition of N.Y.C. Administrative Code § 8-102(9). 102. Defendant is subject to City Law because it owns and operates Barkbox.com. Defendant is a person within the meaning of N.Y.C. Administrative Code § 8-102(1). 103. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Barkbox.com, causing Barkbox.com to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. Specifically, Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Administrative Code § 8- 107(15)(a). 104. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or 23 (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 105. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 106. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Barkbox.com under N.Y.C. Administrative Code § 8- 107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 107. The actions of Defendant were and are in violation of City law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 108. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense. 109. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 110. Pursuant to N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. | win |
109,000 | 13. Many federal and state consumer protection and labeling laws prohibit deceptive packaging and labeling of products and commodities. In California, the Fair Packaging and Labeling Act (“CFPLA”) “is designed to protect purchasers of any commodity within its provisions against deception or misrepresentation. Packages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons.” (California Business & Professions Code § 12601.) 29. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and the following class (collectively, the “Class” or “Classes”), defined as: All California residents who made retail purchases of Nature’s Path Organic cereal products in with non-functional slack-fill, as defined by California Business & Professions Code § 12606.2, during the applicable limitations period up to and including final judgment in this action. 30. The proposed Class excludes current and former officers and directors of Defendant, Members of the immediate families of the officers and directors of Defendant, Defendant’s legal representatives, heirs, successors, assigns, and any entity in which it has or has had a controlling interest, and the judicial officer to whom this lawsuit is assigned. 31. Plaintiff reserves the right to revise the Class definition based on facts learned in the course of litigating this matter. 32. The Nature’s Path Organic cereal products sold by Defendant suffer from virtually the same misleading product bottling, labeling and nonfunctional slack-fill. 43. Plaintiff realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 44. Plaintiff brings this claim individually and on behalf of the Class for Defendant’s violations of California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq. 45. Plaintiff and the Class Members are consumers who purchased the Nature’s Path Organic cereal products for personal, family or household purposes. Plaintiff and the Class Members are “consumers” as that term is defined by the CLRA in Cal. Civ. Code § 1761(d). Plaintiff and the Class Members are not sophisticated experts with independent knowledge of corporate branding, labeling and packaging practices. 46. The Nature’s Path Organic cereal products that Plaintiff and other Class Members purchased from Defendant were “goods” within the meaning of Cal. Civ. Code § 1761(a). 56. Plaintiff realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 57. Plaintiff brings this claim individually and on behalf of the Class for Defendant’s violations of California’s Unfair Competition Law (“CLRA”), Cal. Bus. & Prof. Code §§ 17200, et seq. 58. The UCL provides, in pertinent part: “Unfair competition shall mean and include unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or misleading advertising…” California Law Prohibits Non-functional Slack-Fill VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, Cal. Bus. & Prof. Code §§ 17200, et seq. VIOLATION OF CALIFORNIA’S CONSUMER LEGAL REMEDIES ACT, Cal. Civ. Code §§ 1750, et seq. | win |
305,938 | 18. Pursuant to 29 U.S.C. §§ 206, 207 & 2 l 6(b), plaintiff brings her first and second causes of action as a collective action under the FLSA on behalf of herself and the following collective: All persons employed by defendants at any time since June 1, 2015 and through the entry of judgment in this case (the “collective action period”) who worked as non-management employees for LDM and/or CSM in New York City (the “collective action members”). 19. A collective action is appropriate in this circumstance because plaintiff and the collective action members are similarly situated, in that they were all subjected to defendants’ illegal policies of failing to pay minimum wage for all hours worked and failing to pay overtime premiums for work performed in excess of forty (40) hours each week. As a result of these policies, plaintiff and the collective action members did not receive the legally required minimum wage or overtime premium payments. 20. Plaintiff and the collective action members have or had substantially similar job duties and were paid pursuant to a similar, if not the same, payment structure. 22. The class members are readily ascertainable. The number and identity of the class members are determinable from the records of defendants. For purposes of notice and other purposes related to this action, their names and addresses are readily available from defendants. Notice can be provided by means permissible under Fed. R. Civ. P. 23. 23. Class members are so numerous that joinder of all members is impracticable. 24. Upon information and belief, there are an excess of forty (40) class members. 26. Plaintiff’s claims are typical of the class members’ claims. Plaintiff, like all class members, was a non-managerial and non-exempt employee of defendants who worked for defendants pursuant to their corporate policies and pay practices. Plaintiff, like all class members, was, inter alia, paid less than the statutory minimum wage for all hours worked, was not paid overtime premium pay for hours worked over forty (40) hours in a given workweek, did not receive proper wage notices. If defendants are liable to plaintiff for the claims enumerated in this complaint, they are also liable to all class members. 27. Plaintiff and her counsel will fairly and adequately represent the class. There are no conflicts between plaintiff and the class members, and plaintiff brings this lawsuit out of a desire to help all class members, not merely out of a desire to recover her own damages. 28. Plaintiff’s counsels are experienced class action litigators who are well prepared to represent the interests of the class members. 30. Defendants are sophisticated parties with substantial resources. The individual plaintiffs lack the financial resources to vigorously prosecute a lawsuit in federal court against corporate defendants. 31. The individual members of the Class have no interest or capacity to bring separate actions; plaintiff is unaware of any other current litigation concerning this controversy; it is desirable to concentrate the litigation in one case; and there are no likely difficulties that will arise in managing the class action. 32. On or about May 1, 2015 plaintiff was hired by defendants to work as an “intern” at defendants’ New York City offices. 33. Plaintiff worked as an intern from May 1, 2015 to mid-July 2015. During such period, plaintiff worked approximately 40 hours per week, but was not required to record for her working hours. During this period, plaintiff was paid a fixed salary of $500.00 per month. 34. From mid-July 2015 to January 2017 plaintiff worked for defendants in their New York City offices as an Account Coordinator. 35. Plaintiff’s work as an Account Coordinator did not involve any managerial, professional, supervisory services or independent judgment and was “non-exempt” as provided in the FLSA and NYLL. 37. During such period, plaintiff was paid a fixed annual salary of $38,000 from mid-July 2015 to January 2016, and a fixed annual salary of $41,000 from January 2016 to January 2017. 38. During the period from January 2016 to June 30, 2017 plaintiff worked for defendants in its New York City offices as a Senior Account Coordinator. 39. From from January 2016 to June 30, 2017 plaintiff worked for defendants in their New York City offices as a Senior Account Coordinator 40. During such period, plaintiff was paid a fixed annual salary of $46,000 from January 2017 to June 30, 2017. 41. During plaintiff’s entire employment with defendants, she was never provided with a wage notice as required by the NYLL. 42. During plaintiff’s entire employment with defendants she was never paid any overtime compensation for the hours she worked in excess of forty (40) in any workweek. 43. Plaintiff, on behalf of herself and the collective action members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 44. By failing to pay minimum wage for all hours worked, defendants have violated and continue to violate the FLSA, 29 U.S.C. §§ 201 et seq., including 29 U.S.C. §§ 206 and 215(a)(2). 46. Defendants’ failure to pay minimum wages for all hours worked caused plaintiff and the collective action members to suffer loss of wages and interest thereon. Therefore, plaintiff and the collective action members are entitled to recover from defendants their full unpaid minimum wages, damages for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys’ fees, and costs and disbursements of the action pursuant to 29 U.S.C. § 216(b). 47. Plaintiff, on behalf of herself and the collective action members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth therein. 48. By failing to pay overtime at a rate not less than one and one-half (1.5) times the regular rate of pay for work performed in excess of 40 hours per week, defendants have violated and continue to violate the FLSA, 29 U.S.C. §§ 201 et seq., including 29 U.S.C. §§ 207(a)(1) and 215(a)(2). 49. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a). 51. Plaintiff, on behalf of herself and the class members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 52. Defendants willfully violated plaintiff s and class members’ rights by failing to pay minimum wage for all hours worked, in violation of the NYLL and regulations promulgated thereunder. 53. Defendants’ failure to pay minimum wage for all hours worked caused plaintiff and the class members to suffer loss of wages and interest thereon. Plaintiff and the class members are entitled to recover from defendants their unpaid minimum wages, damages for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys’ fees, and costs and disbursements of the action pursuant to NYLL §§ 663(1) et seq. 54. Plaintiff, on behalf of herself and the class members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 56. Defendants’ failure to pay overtime premium compensation caused plaintiff and the class members to suffer loss of wages and interest thereon. Plaintiff and the class members are entitled to recover from defendants their unpaid overtime compensation, damages for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys’ fees, and costs and disbursements of the action pursuant to NYLL §§ 663(1) et seq. 57. Plaintiff, on behalf of herself and the class members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 58. Defendants have willfully failed to supply plaintiff and the class members’ notice as required by Article 6, § 195, in English or in the language identified by plaintiff as her primary language, containing plaintiff s and the class members’ rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; hourly rate or rates of pay and overtime rate or rates of pay, if applicable; the regular pay day designated by the employer in accordance with the NYLL, Article 6, § 191; the name of the employer; or any “doing business as” names used by the employer; the physical address of the employer’s main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the commissioner deems material and necessary. FAIR LABOR STANDARDS ACT – UNPAID MINIMUM WAGE (Brought on Behalf of plaintiff and the Collective Action Members) FAIR LABOR STANDARDS ACT – UNPAID OVERTIME (Brought on Behalf of plaintiff and the Collective Action Members) NEW YORK LABOR LAW – UNPAID MINIMUM WAGE (Brought on Behalf of plaintiff and the Collective Action Members) NEW YORK LABOR LAW – FAILURE TO PROVIDE WAGE NOTICES (Brought on Behalf of plaintiff and the Collective Action Members) NEW YORK LABOR LAW – UNPAID OVERTIME (Brought on Behalf of plaintiff and the Collective Action Members) | lose |
198,344 | 23. Defendant owns, operates and/or controls its retail stores, sells store gift cards to the public, and uses them as a form of communication. One or more of its retail stores is located in New York City. Defendant’s retail stores constitute places of public accommodation. Defendant’s retail stores provide important goods and services to the public. 24. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s store gift cards, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s retail stores. Due to Defendant’s failure and refusal to remove access barriers to its store gift cards, Plaintiff and visually-impaired persons have been and -8- are still being denied equal access to Defendant’s retail stores and the numerous goods, services, and benefits offered to the public through the Defendant’s store gift cards. Defendant Must Remove Barriers On Its Store Gift Cards 25. Due to the inaccessibility of Defendant’s store gift cards, blind and visually- impaired customers such as Plaintiff, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public at its retail stores. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from purchasing, accessing, and utilizing the store gift cards and, as a result, Defendant’s retail stores. 26. These access barriers on Defendant’s store gift cards have deterred Plaintiff from visiting Defendant’s physical locations, and enjoying them equal to sighted individuals because: Plaintiff was unable to purchase a Braille store gift card related to Defendant’s physical retail store locations, preventing Plaintiff from visiting the locations. Plaintiff intends to immediately purchase a store gift card issued by the Defendant as soon as they become available in Braille. 27. If the store gift cards were equally accessible to all, Plaintiff could independently purchase the store gift cards and complete a desired transaction utilizing gift cards as sighted individuals do. 28. Through his knowledge about the lack of Braille store gift cards, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 29. Because simple changes to store gift cards would provide Plaintiff and other visually-impaired consumers with equal access to store gift cards and therefore -9- Defendant’s locations, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Developing marketing and selling store gift cards that are inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to sell store gift cards that are not sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 30. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 31. Title III of the ADA requires that public accommodations provide “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c); see also 42 U.S.C. § 12182(b)(2)(A)(iii). 32. Defendant discriminates on the basis of disability because they fail to afford individuals who are visually impaired with the same ability to independently access the goods and services provided to others, thus failing to ensure effective communication with its visually impaired customers during transactions for its goods and services. 33. The regulation sets forth numerous examples of “auxiliary aids and services”, including, without limitation, “Brailled materials and displays..." 28 C.F.R. § 34. In addition to this general nondiscrimination mandate, Title III prohibits public accommodations from engaging in specific types of discrimination, including the failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, services, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); see also 28 C.F.R. § 36.303(a). 35. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, (emphasis added) . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2) Nothing in this section shall require a person with disability to engage in a futile gesture if such person has actual notice that a person or organization … does not intend to comply with its provisions. 42 U.S.C. § 12188(a)(1) 36.303(b)(2). -10- 36.303 (b)(2). “[I]n order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way to protect the privacy and independence of the individual with a disability. 28 CFR 36.303 (c)(ii).6 36. Because Defendant’s store gift cards have never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its store gift cards to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to design, implement, distribute and sell store gift cards integrated with the Defendant’s retail stores that are embossed with Braille writing that identify the name of the merchant and the denomination of the gift card (if the gift card has a specified denomination) with Braille writing on the packaging of the store gift cards and additionally convey other pertinent information contained on all of the -11- other of Defendant’s store gift cards such as terms of use, privacy policies, ability to ascertain gift card balance, restrictions, etc. in Braille either on the card, affixed to the card or inserted in the packaging. 37. If the store gift cards were accessible, Plaintiff and similarly situated blind and visually-impaired people could independently utilize them. 38. Although Defendant may currently have centralized policies regarding its store gift cards, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in marketing and selling its store gift cards and has generated significant revenue from the store gift cards. These amounts are far greater than the associated cost of making its store gift cards equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the store gift cards, violating their rights. 41. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who would like independent access to Defendant’s store gift cards and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind -12- individuals in the State of New York who would like independent access to Defendant’s store gift cards and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 43. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who would like independent access to Defendant’s store gift cards and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 44. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s store gift cards are a “public accommodation” under the ADA; b. Whether Defendant’s store gift cards are a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s store gift cards deny the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s store gift cards deny the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 45. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSHRL or NYCHRL by failing to update or remove access barriers on its store gift cards so they can be independently accessible to the Class. -13- 46. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 47. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of their litigation. 48. Judicial economy will be served by maintaining their lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 49. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). -14- 51. Defendant’s retail stores are places of public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s store gift cards are a service, privilege, or advantage of Defendant’s retail stores. The store gift cards are a service that is integrated with these locations. 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals or a class of individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals or a class of individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services (emphasis added), unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). -15- “Auxiliary aids and services” includes Brailled materials and displays. 28 CFR 55. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the store gift cards, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 56. Under 42 U.S.C. § 12188(a) and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 58. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant’s physical locations are located in the State of New York and constitute retail stores and places of public accommodation within the definition of N.Y. Exec. Law § 292(9). Defendant’s store gift cards are a service, privilege or advantage of Defendant. Defendant’s store gift cards are a service that is by and integrated with these physical locations. 60. Defendant is subject to New York Human Rights Law because it owns, operates and/or controls its physical locations and sells its store gift cards. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 61. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its store gift cards, causing its store gift cards and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 62. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, -17- practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden." 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 64. Readily available manufacturing and/or printing capabilities exist for making store gift cards accessible to the blind and visually impaired. The addition to store gift cards of Braille on the gift card and packaging thereof and other related marketing materials would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 65. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant is: a. Developing, marketing and selling store gift cards that are inaccessible to blind class members with knowledge of the discrimination; and/or b. Failing to sell store gift cards that are not sufficiently intuitive and/or obvious and that are inaccessible to blind class members; and/or -18- c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s store gift cards and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 68. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 69. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 71. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 72. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. -19- 73. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 74. Defendant’s locations are retail stores and places of public accommodation within the definition of N.Y.C. Admin. Code § 8-102(9), and its store gift cards are a service that is integrated with its establishments. 75. Defendant is subject to NYCHRL because it owns, operates and/or controls its physical locations in the City of New York and its store gift cards, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 76. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to its store gift cards, causing its store gift cards and the services integrated with its physical locations to be completely inaccessible to the blind. The inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 77. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). -20- 78. Defendant’s actions constitute willful intentional discrimination against the Sub-Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8- 107(4)(a) and § 8-107(15)(a) in that Defendant is: a. developing, marketing and selling store gift cards that are inaccessible to blind class members with knowledge of the discrimination; and/or b. failing to sell store gift cards that are sufficiently intuitive and/or obvious and that is inaccessible to blind class members; and/or c. failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 79. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 80. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its store gift cards and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 81. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 82. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. -21- 83. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 84. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 85. Plaintiff, on behalf of himself and the Class and New York State and City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 86. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, Defendant’s store gift cards contain access barriers denying blind customers the full and equal access to the goods, services and facilities of its store gift cards and by extension its physical locations, which Defendant owns, operates and controls, and fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 87. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers On Its Store Gift Cards VIOLATIONS OF THE NYSHRL 6 See, New v. Lucky Brand Dungarees Stores, Inc., 14-cv-02054, SDFL, Statement of Interest of the United States of America at pg. 7. “Indeed, there are many instances where the Department has found physical and communication barriers not specifically identified in its regulations or the ADA Standards to be covered under title III.” See also, “[t]he inventory exception does not limit a public accommodation’s obligation, however, to provide auxiliary aids and services under 28 C.F.R. § 36.303. A bookstore, for example, would not have to stock Brailled versions of books under § 36.307, but if the bookstore were hosting an author lecture on its website, it would have to provide auxiliary aids and services to participants who are deaf, such as closed captioning.” Nat’l Ass’n of the Deaf v. Harvard Univ., 3:15-cv-30023-MGM, at pg. 21, (Dkt. 33) (D. Mass.2019), Statement of Interest of the United States of America. -16- VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL | lose |
241,976 | 73. Plaintiff brings this action as a class action pursuant to Federal Rule of Procedure 23(b)(2) and 23(b)(3) on behalf of the following “class:” All persons in the United States since May 4, 2008 who purchased Eskimo Pie Dark Chocolate with labels that state “No Sugar Added.” 74. The following persons are expressly excluded from the class: (1) Defendant and its subsidiaries and affiliates; (2) all persons who make a timely election to be excluded from the proposed class; (3) governmental entities; and (4) the Court to which this case is assigned and its staff. 75. This action can be maintained as a class action because there is a well-defined community of interest in the litigation and the proposed class is easily ascertainable. 76. Numerosity: Based upon Defendant’s publicly available sales data with respect to the misbranded products at issue, it is estimated that the class numbers in the thousands and that joinder of all class members is impracticable. 77. Common Questions Predominate: This action involves common questions of law and fact applicable to each class member that predominate over questions that affect only individual class members. Thus, proof of a common set of facts will establish the right of each class member to recover. Questions of law and fact common to each class member include, just for example: a. Whether the Eskimo Pie is misbranded under the Sherman Law; b. Whether Defendants violated the Sherman Law; c. Whether Defendant made unlawful and/or misleading claims with respect to its Eskimo Pie sold to consumers; Case5:14-cv-00283-PSG Document1 Filed01/17/14 Page14 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84. Plaintiff incorporates by reference each allegation set forth above. Case5:14-cv-00283-PSG Document1 Filed01/17/14 Page16 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 95. Plaintiff incorporates by reference each allegation set forth above. 96. Defendant’s conduct as set forth herein constitutes unfair business acts and practices. 97. Defendant sold Eskimo Pie in California and the United States during the Class Period. 98. Plaintiff and members of the class suffered a substantial injury by virtue of buying Defendant’s Eskimo Pie that she would not have purchased absent Defendant’s illegal conduct. 99. Defendant’s deceptive marketing, advertising, packaging and labeling of its Eskimo Pie and its sale of unsalable misbranded products that were illegal to possess was of no benefit to consumers, and the harm to consumers and competition is substantial. 100. Defendant sold Plaintiff and the Eskimo Pie that were not capable of being legally sold or held and that were legally worthless. 101. Plaintiff and the class who purchased Defendant’s Eskimo Pie had no way of reasonably knowing that the products were misbranded and were not properly marketed, advertised, packaged and labeled, and thus could not have reasonably avoided the injury each of them suffered. 102. The consequences of Defendant’s conduct as set forth herein outweigh any justification, motive or reason therefore. Defendant’s conduct is and continues to be immoral, unethical, unscrupulous, contrary to public policy, and is substantially injurious to Plaintiff and the class. Plaintiff and the class paid a premium price for Eskimo Pie. 103. As a result of Defendant’s conduct, Plaintiff and the class, pursuant to Business and Professions Code § 17203, are entitled to an order enjoining such future conduct by Defendant, and such other orders and judgments which may be necessary to disgorge Defendant’s ill-gotten gains and restore any money paid for Defendant’s Eskimo Pie by Plaintiff and the class. Case5:14-cv-00283-PSG Document1 Filed01/17/14 Page18 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Business and Professions Code § 17200 et seq. - Fraudulent Business Acts and Practices 104. Plaintiff incorporates by reference each allegation set forth above. 105. Defendant’s conduct as set forth herein constitutes fraudulent business practices under California Business and Professions Code sections § 17200 et seq. 106. Defendant sold Eskimo Pie in California and the United States during the Class Period. 107. Defendant’s misleading marketing, advertising, packaging and labeling of Eskimo Pie and misrepresentation that the products were salable, capable of possession and not misbranded were likely to deceive reasonable consumers, and in fact, Plaintiff and members of the class were deceived. Defendant has engaged in fraudulent business acts and practices. 108. Defendant’s fraud and deception caused Plaintiff and the class to purchase Defendant’s Eskimo Pie that she would otherwise not have purchased had she known the true nature of those products. 109. Defendant sold Plaintiff and the class Eskimo Pie that were not capable of being sold or held legally and that were legally worthless. Plaintiff and the class paid a premium price for the Eskimo Pie. 110. As a result of Defendant’s conduct as set forth herein, Plaintiff and the class, pursuant to Business and Professions Code § 17203, are entitled to an order enjoining such future conduct by Defendant, and such other orders and judgments which may be necessary to disgorge Defendant’s ill-gotten gains and restore any money paid for Defendant’s Eskimo Pie by Plaintiff and the class. Business and Professions Code § 17500 et seq. - Untrue Advertising 119. Plaintiff incorporates by reference each allegation set forth above. 120. Plaintiff asserts this cause of action against Defendant for violations of California Business and Professions Code § 17500 et seq., regarding untrue advertising. 121. Defendant sold Eskimo Pie in California and the United States during the Class Period. 122. Defendant engaged in a scheme of offering Defendant’s Eskimo Pie for sale to Plaintiff and the class by way of product packaging and labeling, and other promotional materials. These materials misrepresented and/or omitted the true contents and nature of Defendant’s Eskimo Pie. Defendant’s advertisements and inducements were made in California and come within the definition of advertising as contained in Business and Professions Code §17500 et seq. in that the product packaging and labeling, and promotional materials were intended as inducements to purchase Defendant’s Eskimo Pie, and are statements disseminated by Defendant to Plaintiff and the class. Defendant knew, or in the exercise of reasonable care should have known, that these statements were untrue. 123. In furtherance of its plan and scheme, Defendant prepared and distributed in California and nationwide via product packaging and labeling, and other promotional materials, statements that falsely advertise the composition of Defendant’s Eskimo Pie, and falsely misrepresented the nature of those products. Plaintiff and the class were the intended targets of such representations and would reasonably be deceived by Defendant’s materials. 124. Defendant’s conduct in disseminating untrue advertising throughout California deceived Plaintiff and members of the class by obfuscating the contents, nature and quality of Defendant’s Eskimo Pie in violation of the “untrue prong” of California Business and Professions Code § 17500. Case5:14-cv-00283-PSG Document1 Filed01/17/14 Page21 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Business and Professions Code § 17500 et seq. - Misleading and Deceptive Advertising 111. Plaintiff incorporates by reference each allegation set forth above. 112. Plaintiff asserts this cause of action for violations of California Business and Professions Code § 17500 et seq. for misleading and deceptive advertising against Defendant. Case5:14-cv-00283-PSG Document1 Filed01/17/14 Page19 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Business and Professions Code § 17200 et seq. - Unlawful Business Acts and Practices Business and Professions Code § 17200 et seq. - Unfair Business Acts and Practices Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. 127. Plaintiff incorporates by reference each allegation set forth above. 128. This cause of action is brought pursuant to the CLRA. Defendant’s violations of the CLRA were and are willful, oppressive and fraudulent, thus supporting an award of punitive damages. 129. Plaintiff and the class are entitled to actual and punitive damages against Defendant for its violations of the CLRA. In addition, pursuant to Cal. Civ. Code § 1782(a)(2), Plaintiff and the class are entitled to an order enjoining the above-described acts and practices, providing restitution to Plaintiff and the class, ordering payment of costs and attorney’s fees, and any other relief deemed appropriate and proper by the Court pursuant to Cal. Civ. Code § 1780. 130. Defendant’s actions, representations and conduct have violated, and continue to violate the CLRA, because she extend to transactions that are intended to result, or which have resulted, in the sale of goods or services to consumers. 131. Defendant sold Eskimo Pie in California and in the United States during the Class Period. 132. Plaintiff and members of the class are “consumers” as that term is defined by the CLRA in Cal. Civ. Code §1761(d). 133. Defendant’s Eskimo Pie were and are “goods” within the meaning of Cal. Civ. Case5:14-cv-00283-PSG Document1 Filed01/17/14 Page22 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | lose |
350,148 | 34. Plaintiffs Hutto and Melnyk completed Defendants’ standard electronic documents relating to their anticipated employment, including an electronic authorization to conduct a background check. 35. Defendants’ online authorization causes a background check to be procured by a third-party company. 36. Defendants’ background check authorization contains liability release language stating: . . . . I release all parties and persons, including the Company, from any and all liability for any damages for seeking or providing this information, consistent with local, state, and federal law. 37. The inclusion of the release provisions in connection with the background disclosure violates the FCRA. 38. At the bottom of the page, an applicant must agree to the background check authorization. 40. Defendants’ online documentation and authorization fails to include a clear and conspicuous disclosure, in a document consisting solely of the disclosure, that Defendants would cause a consumer report to be procured. 41. By including a release with the disclosure, Defendants willfully disregarded this regulatory guidance and violated 15 U.S.C. § 1681b(b)(2)(A)(i). 42. As such, Plaintiffs Hutto and Melnyk were misled as to the nature and purpose of their consent and their rights. 43. Despite their failure to provide applicants, including Plaintiffs Hutto and Melynk, with the required stand-alone disclosures, Defendants subsequently procured a consumer report, or caused a consumer report to be procured on Plaintiffs Hutto and Melynk. 44. Pursuant to the FCRA, applicants have a right to both obtain a copy of their consumer reports and to have errors in their reports corrected. See 15 U.S.C. §§ 1681g, 1681i. In order for applicants to exercise those rights, it is essential that consumers are aware that a report is going to be procured so that, if they choose, they can request a copy of the report to proactively ensure that it does not contain any errors. 45. Not aware of their ability to do so, Plaintiffs Hutto and Melnyk did not request a copy of the consumer report that was procured by Defendants. 46. Plaintiffs Hutto and Melnyk did not understand and/or were confused by Defendants’ online disclosure forms because they were not limited to the information required by the stand-alone disclosure requirement. 48. For example, the disclosure contains several additional paragraphs of information regarding various state laws and use of public records pending an investigation of suspicion of wrongdoing. 49. Additionally, Defendants’ disclosure includes a “Certification and Release Statement” section which includes a release of liability waiver. The applicant’s certification of agreement with the Certification and Release Statement section appears on the same page as the background disclosure section. 50. Despite their failure to provide applicants, including Plaintiffs Hutto and Melnyk, with the required stand-alone disclosure, Defendants subsequently procured a consumer report, or caused a consumer report to be procured on Plaintiffs and the Class. 51. Thus, Defendants willfully violated 15 U.S.C. § 1681b(b)(2)(A)(i) by procuring a consumer report, or causing a consumer report to be procured on Plaintiffs, including Plaintiffs Hutto and Melnyk, for employment purposes without first providing a clear and conspicuous written disclosure, in a document consisting solely of the disclosure, that a consumer report may be obtained for employment purposes. 52. Plaintiffs suffered a concrete informational injury because Defendants failed to provide Plaintiffs with information to which they were entitled by statute—a stand-alone FCRA disclosure form. 54. Similar to Plaintiffs Hutto and Melnyk, Defendants, through the services of a third party, conducts background checks on other job applicants as part of its standard screening process. 55. Defendants rely on consumer reporting agencies to obtain this information and report it. These reports constitute “consumer reports” for purposes of the FCRA. 56. The online documentation completed by applicants does not contain a clear and conspicuous written disclosure to the consumer, in a document that consists solely of the disclosure, that a consumer report may be obtained by Defendants for employment purposes, but Defendants routinely request and procure reports from a third party about applicants and employees in spite of this fact. 57. For example, the documentation includes a liability waiver in the disclosure form. 58. The language of the FCRA with respect to the stand-alone disclosure requirement is clear. See 15 U.S.C. § 1681b(b)(2)(A)(i). 59. The Federal Trade Commission (“FTC”) confirms that “[t]he inclusion of such a [liability] waiver in a disclosure form will violate [the FCRA], which requires that a disclosure consist ‘solely’ of the disclosure that a consumer report may be obtained for employment purposes.” See Exhibit A. 61. By systematically inserting a liability release, Defendants’ willfully violated 15 U.S.C. § 1681b(b)(2)(A). 62. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”). 63. The class is defined as follows: all of Albertsons’ current, former, and prospective applicants for employment in the United States who were the subject of a consumer report that was procured or caused to be procured by Albertsons without proper disclosure, during the period beginning five years prior to the filing of this action and ending on the date that final judgment is entered in this action. 64. Plaintiff reserves the right to amend or modify the class definitions with greater specificity, by further division into subclasses and/or by limitation to particular issues. 65. The class action is maintainable under subsections (1), (2), (3) and (4) of Rule 23(a). 67. Common issues of law and fact exist as to all members of the Classes. The Plaintiffs and the Class members were all individuals who applied to work for Defendants and a background check was procured by a third party at the request of Defendants. The common issues of law and fact also include the following: • Whether Defendants obtained or caused to be procured background checks on employees and job applicants; • Whether Defendants violated the FCRA by causing consumer reports to be procured without providing the proper disclosure; • Whether Defendants’ violations of the FCRA were willful; • The proper measure of statutory and punitive damages; and • The proper form of declaratory relief. 68. These common questions of law and fact also predominate over any questions affecting only individual members. 69. Plaintiffs’ claims are typical of the claims of other members of the Class because the FCRA violations suffered by Plaintiffs Hutto and Melnyk are typical of that suffered by other Class members, and Defendants treated Plaintiffs Hutto and Melnyk consistent with other Class members in accordance with their standard policies and procedures. 70. Plaintiffs Hutto and Melnyk are able to fairly and adequately represent the interests of the Class and have no interest antagonistic to the Class. 72. Class Counsel is well experienced in both employment and class action cases. 73. This class action is also maintainable under subsection (3) of Rule 23(b) because questions of law or fact common to Class members (see supra ¶ 67) predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating this controversy 74. Alternatively, the questions of law and fact common to the class may be certified for class action treatment separately from any questions affecting only individual members under Rule 23(c)(4) because resolution of those common questions will significantly advance the litigation. Defendants Failure To Make A Proper Disclosure In Violation Of The FCRA | win |
331,304 | 1.5 times the regular hourly rate for all hours worked over 40 in a week. 13. As healthcare information technology firm, Defendant provides training and support to healthcare facilities in connection with the implementation of new electronic recordkeeping systems. 14. Defendant employs consultants, such as Dyse, who perform such training and support services throughout the United States. 15. Defendant’s financial results are significantly driven by the number of consultants performing training and support services for Defendant’s customers, and the fees that Defendant charges the customers for these services. 16. Between July 2018 and March 2019, Dyse was assigned by HAC to provide educational and support services to healthcare staff at Huntsville Hospital in Huntsville, Alabama. 18. Work performed by Plaintiff and Collective Action Members is an integral part of Defendant’s business. Defendant is in the business of providing information technology educational services to the healthcare industry. Plaintiff and Collective Action Members provide support and training to Defendant’s clients in connection with the implementation of electronic recordkeeping systems. 19. Plaintiff’s and Collective Action Members’ duties do not involve managerial work. They follow the training provided to them by Defendant in performing their work, which is basic training and support in using electronic recordkeeping systems. 20. Plaintiff and Collective Action Members do not make any significant relative investments in relation to their work with Defendant. Defendant provides the training and equipment required to perform the functions of their work. 21. Plaintiff and the Collective Action Members have little or no opportunity to experience a profit or loss related to their employment. Defendant pays Plaintiff and the Collective Action Members at a fixed hourly rate. Plaintiff and the Collective Action Members do not share in Defendant’s monetary success; their income from their work is limited to their hourly rate. 22. Plaintiff’s and Collective Action Members’ work does not require special skills, judgment or initiative. Defendant provides training to Plaintiff and Collective Action Members, which they use to provide training and support to Defendant’s clients. 24. Plaintiff and Collective Action Members are not customarily engaged in an independently established trade, occupation, profession or business. 25. Plaintiff and Collective Action Members typically enter into successive projects for Defendant. 26. Plaintiff and Collective Action Members have little or no authority to refuse or negotiate Defendant’s rules and policies; they must comply or risk discipline and/or termination. 27. Defendant instructs Plaintiff and Collective Action Members concerning how to do their work and Defendant dictates the details of the performance of their jobs. For example: a. Defendant, not Plaintiff or Collective Action Members, conduct all of the billing and invoicing to Defendant’s clients for the work. Defendant bills the third-party customers directly; b. Plaintiff and Collective Action Members have no control over what prices to charge, or the scheduling of shifts. All negotiations over the cost of the work are done directly between Defendant and the third-party client; c. Defendant requires Plaintiff and Collective Action Members to work the entire project from inception to conclusion; d. Defendant provides all training needed for Plaintiff and Collective Action Members to perform their work; and e. Defendant requires Plaintiff and Collective Action Members to perform in accordance with Defendant’s policies, manuals, standard operating procedures and the third-party client’s requirements. 29. Plaintiff and Collective Action Members have to request Defendant’s approval for time off. Defendant have the discretion to grant or deny such requests. Plaintiff and Collective Action Members are not Exempt as “Computer Employees” under the FLSA 30. Plaintiff and Collective Action Members provide support and training to hospital staff in connection with electronic recordkeeping systems. Plaintiff has no specialized training or certification in computer programming, software documentation and analysis, or testing of computer systems or programs. Plaintiff and Collective Action Members were not working as, nor were they similarly skilled as, computer systems analysts, computer programmers, or software engineers, as defined in 29 C.F.R. § 541.400(a). 31. Plaintiff’s and Collective Action Members’ primary duties consisted of training and aiding healthcare staff with using the new recordkeeping software, whether one on one or in a classroom setting. Plaintiff’s and Collective Action Members’ primary duties did not include the higher skills of the “application of systems analysis techniques and procedures,” pursuant to 29 C.F.R. § 541.400(b)(1). Plaintiff and Collective Action Members did not analyze, consult or determine hardware, software programs or any system functional specifications for Defendant’s clients. See id. 32. Plaintiff and Collective Action Members did not consult with Defendant’s customers to determine or recommend hardware specifications. Plaintiff and Collective Action Members did not design, develop, document, analyze, create, test or modify a computer system or program, as defined in 29 C.F.R. § 541.400(b)(2). 34. Plaintiff and Collective Action Members frequently worked in excess of forty (40) hours per workweek, but were not paid overtime compensation as required by the FLSA. 35. Plaintiff and Collective Action Members were paid only a straight hourly rate. 36. Plaintiff and Collective Action Members were not provided with overtime compensation at the rate of one and one-half (1 ½) times their regular pay rate, when they worked more than forty (40) hours per week, as required by the FLSA. 37. Plaintiff and Collective Action Members were not paid on a salary basis. Defendant Willfully Violated the FLSA 39. Based upon the foregoing, Defendant was cognizant that, or recklessly disregarded whether, its conduct violated the FLSA. 40. Plaintiff brings this lawsuit pursuant to 29 U.S.C. § 216(b) as a collective action on behalf of the FLSA Collective defined above. 41. Plaintiff desires to pursue her FLSA claims on behalf of all individuals who opt-in to this action pursuant to 29 U.S.C. § 216(b). 42. Plaintiff and the FLSA Collective Members are “similarly situated” as that term is used in 29 U.S.C. § 216(b) because, inter alia, all such individuals have been subject to Defendant’s common business and compensation practices as described herein, and, as a result of such practices, have not been paid the legally mandated overtime compensation for hours worked over forty (40) during the workweek. Resolution of this action requires inquiry into common facts, including, inter alia, Defendant’s common misclassification, compensation and payroll practices. 43. The FLSA requires non-exempt hourly employees to be compensated at a rate of 44. Defendant misclassified Plaintiff and FLSA Collective Members as independent contractors, and, as a result, failed to provide them overtime compensation for hours worked in excess of 40 a week. 46. Defendant employs many FLSA Collective Members throughout the United States. These similarly situated employees may be readily notified of this action through U.S. Mail and/or other means, and allowed to opt in to this action pursuant to 29 U.S.C. § 216(b), for the purpose of collectively adjudicating their claims for overtime compensation, liquidated damages (or, alternatively, interest) and attorneys’ fees and costs under the FLSA. 47. All previous paragraphs are incorporated as though fully set forth herein. 48. The FLSA defines “employer” broadly to include “any person acting directly or indirectly in the interest of an employer in relation to an employee...” 29 U.S.C. § 203(d). 49. Defendant is subject to the wage requirements of the FLSA because Defendants is an “employer” under 29 U.S.C. § 203(d). 50. At all relevant times, Defendant has been an “employer” engaged in interstate commerce and/or in the production of goods for commerce, within the meaning of the FLSA, 29 FLSA – Overtime Wages (On Behalf of Plaintiff and the FLSA Collective) | win |
203,961 | 12. Defendant Hertz, through its subsidiaries, engages in the car and equipment rental businesses worldwide. As of November 2012, Hertz was the second-largest U.S. car rental company by sales. The Company operates in two segments, Car Rental and Equipment Rental. Hertz also offers claims administration services, such as investigating, evaluating, negotiating, and disposing of various claims, including third-party, first-party, bodily injury, property damage, general liability, and product liability. 14. The Equipment Rental segment rents earthmoving equipment, material handling equipment, aerial and electrical equipment, air compressors, generators, pumps, small tools, compaction equipment, and construction-related trucks. This segment also sells new equipment, and consumables, such as gloves and hardhats. 15. In the Car Rental Segment, Hertz, which primarily appeals to a corporate clientele amenable to paying higher prices, has increasingly relied upon increased sales in the “opaque” market following its December 2012 divestiture of the U.S. operations of Advantage Rent A Car (“Advantage”), the division that had appealed more to lower-budget leisure travelers. An opaque rental is a reservation that permits online customers to bid the price they want to pay for a specific travel- related product or service and location without knowing the brand. The brand is revealed after the customer makes the online purchase. While such opaque sales through travel discounting websites permit airlines, hotels and car rental firms to increase their market share and, importantly, their utilization, they do so at the expense of pricing, margins and profits. Although the number of discount travel websites offering opaque car rental bookings has mushroomed, the most popular opaque travel websites have traditionally been Priceline.com and Hotwire.com. 67. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of a class consisting of all those who purchased the common stock of Hertz during the Class Period and who were damaged thereby (the “Class”). Excluded from the Class are Defendants, the officers and directors of the Company, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which Defendants have or had a controlling interest. 69. Plaintiff’s claims are typical of the claims of the members of the Class as all members of the Class are similarly affected by Defendants’ wrongful conduct in violation of federal law that is complained of herein. 70. Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel competent and experienced in class and securities litigation. 71. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are: (a) whether the federal securities laws were violated by Defendants’ acts as alleged herein; (b) whether statements made by Defendants to the investing public during the Class Period misrepresented material facts about the business, operations and management of Hertz; and (c) to what extent the members of the Class have sustained damages and the proper measure of damages. 73. Plaintiff incorporates ¶¶1-72 by reference. 74. During the Class Period, Defendants disseminated or approved the false statements specified above, which they knew or deliberately disregarded were misleading in that they contained misrepresentations and failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. 76. Plaintiff and the Class have suffered damages in that, in reliance on the integrity of the market, they paid artificially inflated prices for Hertz common stock. Plaintiff and the Class would not have purchased Hertz common stock at the prices they paid, or at all, if they had been aware that the market prices had been artificially and falsely inflated by Defendants’ misleading statements. 77. As a direct and proximate result of these Defendants’ wrongful conduct, Plaintiff and the other members of the Class suffered damages in connection with their purchases of Hertz common stock during the Class Period. 78. Plaintiff incorporates ¶¶1-77 by reference. Violation of Section 10(b) of the Exchange Act and Rule 10b-5 Promulgated Thereunder Against All Defendants Violation of Section 20(a) of the Exchange Act Against All Defendants | lose |
254,108 | (Violation of New York State Civil Rights Law, NY CLS Civ R, Article 4 (CLS Civ R § 40 et seq.) (on behalf of Plaintiff and New York Subclass) (Violation of New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law § 292 et seq.) (on behalf of Plaintiff and New York Subclass) (Violation of 42 U.S.C. § 12181, et seq.—Title III of the Americans with Disabilities Act) (on behalf of Plaintiff and the Class) (Violation of New York City Human Rights Law, N.Y.C. Administrative Code § 8-102, et seq.) (on behalf of Plaintiff and New York Subclass) 25. Plaintiff, on behalf of himself and all others similarly situated, seeks certification of the following nationwide Class pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: “all legally metabolically-disabled individuals in the United States who have attempted to access the Public Facility and as a result have been denied access to the enjoyment of goods and services offered in the Public Facility during the relevant statutory period.” 26. Plaintiff seeks certification of the following New York Subclass pursuant to Fed. R. Civ. P. 23(a), 23(b)(2), and, alternatively, 23(b)(3): “all metabolically-disabled individuals in New York State who have attempted to access the Public Facility and as a result have been denied access to the enjoyment of goods and services offered by Defendant during the relevant statutory period.” 27. Millions of people have a physical disability that is partly treatable by diet in the United States, including in New York. Thus, the persons in the Class are so numerous that joinder of all such persons is impractical and the disposition of their claims in a class action is a benefit to the parties and to the Court. 28. This case arises out of Defendant’s policy and practice of maintaining an inaccessible Public Facility, denying metabolically-disabled persons access to the events, goods, and services of the Public Facility and Defendant. Due to Defendant’s policy and practice of imposing access barriers, metabolically-disabled persons have been and are being denied full and equal access to the Public Facility. 30. The claims of the named Plaintiff are typical of those of the Class. The Class, similarly to Plaintiff, have metabolic disorders that render them metabolically-disabled, and claim that Defendant has violated the ADA, and/or the laws of New York by imposing access barriers on the Public Facility, such that it is not accessible to the Class of people who are legally disabled due to eating constraints. 31. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the members of the Class. Class certification of the claims is appropriate pursuant to Fed. R. Civ P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 33. Judicial economy will be served by maintenance of this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with metabolic disabilities throughout the United States. 34. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the Class, unless otherwise indicated. 35. Defendant operates the Public Facility located at 30 Lincoln Center Plaza, New York, NY 10023 . 36. The Public Facility is a service and benefit offered by Defendant in New York. The Public Facility is owned, controlled, and/or operated by Defendant. Defendant sells tickets to events at the Public Facility and on their Website, including in New York State. 37. The Public Facility, which is marketed to consumers located in New York State, is a commercial Public Facility that hosts events and sells goods and services. 39. Defendant denies the metabolically-disabled access to goods, services, and information made available through the Public Facility by preventing them from freely entering the Public Facility with the food they need to treat their disability. 40. Allowing disabled people to bring medical supplies into the Public Facility presents no significant obstacles or difficulties for Defendant. Other public facilities allow diabetic individuals to bring insulin supplies onto their premises. However, simply bringing insulin supplies is insufficient because: 1) diabetic individuals need readily available food in case their blood sugar drops, 2) many diabetic individuals (including Plaintiff) need to bring pre-measured food to match their insulin to the quantity of food consumed, and 3) Defendant’s policy ignores metabolically-disabled individuals with other disabilities that are treated by food. 41. The Public Facility states clearly on the Website that it does not allow outside food, which constitutes an access barrier that prevents free and full use by Plaintiff and metabolically- disabled persons. See Exhibit A. 42. The Public Facility thus contains access barriers which deny full and equal access to Plaintiff, who would otherwise use the Public Facility and who would otherwise be able to fully and equally enjoy the benefits and services of Defendant. 44. As described above, Plaintiff has actual knowledge of the fact that Defendant’s Public Facility contains access barriers causing the Public Facility to be inaccessible to—and not independently usable by—metabolically-disabled individuals. 45. These barriers have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits, and services of the Public Facility and Defendant. Plaintiff did not attempt to attend an event at the Public Facility because he understood Defendant’s discriminatory policy and knew that such an attempt would be futile. The ADA explicitly does not require “a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization . . . does not intend to comply [with Title III of the ADA].” 42 U.S.C. § 12188(a)(2)). This is particularly true for Plaintiff, for whom going out in public without available snacks would be a health risk. Disabled Ams. for Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 65 n.7 (1st Cir. 2005). 47. Defendant utilizes standards, criteria, or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 48. Plaintiff and the Class are disabled for purposes of the ADA. 42 U.S.C.S. § 12102 reads in pertinent part: (1) Disability. The term “disability” means, with respect to an individual— ▪ (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; . . . . (2) Major life activities. ▪ (A) In general. For purposes of paragraph (1), major life activities include, but are not limited to . . . eating . . . . 49. Accordingly, courts have interpreted diseases such as food disorders and diabetes as disabilities because those diseases interfere with eating. 51. Even episodic disabilities less severe than Plaintiff’s disease would qualify for protection under Title III. Service v. Union Pacific R.R. Co., 153 F. Supp. 2d 1187, 1192 (E.D. Cal. 2001) (“Plaintiff need not be in a constant state of distress or suffer an asthmatic attack to qualify as disabled under the ADA.”). Plaintiff’s disease is severe enough to decisively limit his major life activity of eating. 52. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 54. The Public Facility, located in New York, is a public accommodation within the definition of 42 U.S.C. § 12181(7)(C) because it is “a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment.” (emphasis added). 55. Defendant is subject to Title III of the ADA because it owns and operates the Public Facility. 56. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 57. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 59. In addition, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(III), unlawful discrimination also includes, among other things, “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 60. Many public facilities allow outside food into their venues (as required under the ADA). The policy of allowing outside food does not unduly burden those venues. Plaintiff and the Class merely seek to bring into the Public Facility the food they need for medical reasons. This would not disrupt the Public Facility’s operations. 61. The acts alleged herein constitute violations of Title III of the ADA, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereunder. Patrons of Defendant who are metabolically-disabled have been denied full and equal access to the Public Facility, have not been provided services that are provided to other patrons who are not disabled, and/or have been provided services that are inferior to the services provided to non-disabled patrons. 62. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 64. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the proposed Class and Subclass will continue to suffer irreparable harm. 65. The actions of Defendant were and are in violation of the ADA and therefore Plaintiff invokes his statutory right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 67. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 68. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 69. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 70. The Public Facility, located in New York State, is a sales establishment and public accommodation within the definition of N.Y. Exec. Law § 292(9). The Public Facility is a service, privilege, or advantage of Defendant. Food at the Public Facility is sold by, and integrated with, the Public Facility. 72. Defendant is violating N.Y. Exec. Law § 296(2)(a) in imposing access barriers to the Public Facility, causing the Public Facility and the services integrated with the Public Facility to be completely inaccessible to the metabolically-disabled. This inaccessibility denies metabolically-disabled patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 73. Specifically, under N.Y. Exec. Law § 296(2)(c)(I), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 74. In addition, under N.Y. Exec. Law § 296(2)(c)(II), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 75. To make the Public Facility accessible to the metabolically-disabled, Defendant need only cease its existing policy. Making the Public Facility accessible by allowing people to bring in food would not alter the nature of Defendant’s business nor result in an undue burden to Defendant. 77. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 78. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed Subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations, and/or opportunities of the Public Facility and Defendant under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the Subclass will continue to suffer irreparable harm. 79. The actions of Defendant were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 81. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 82. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 83. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 84. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 85. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . . .” 86. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 88. Defendant is subject to New York Civil Rights Law because it owns and operates the Public Facility. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 89. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in imposing access barriers to the Public Facility, causing the Public Facility and the services integrated with the Public Facility to be completely inaccessible to the metabolically-disabled. This inaccessibility denies metabolically-disabled patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 90. To make the Public Facility accessible to the metabolically-disabled, Defendant need only cease its existing policy. Making the Public Facility accessible by allowing people to bring in food to would not fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 91. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . . .” 93. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 94. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed Subclass on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 95. Plaintiff and Subclass members are entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines pursuant to N.Y. Civil Law § 40 et seq. for each and every offense. 96. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 98. The Public Facility and the Website, targeting New York citizens in New York State, are sales establishments and public accommodations within the definition of N.Y.C. Administrative Code § 8-102(9). The Public Facility and the Website are services, privileges, and/or advantages of Defendant. Food at the Public Facility is sold by, and integrated with, the Public Facility. Events at the Public Facility are integrated with ticket sales and information on the Public Facility website. | lose |
143,925 | 25. On or about August 11, 2018, Defendant caused the following automated text message to be transmitted to Plaintiff’s cellular telephone number ending in 9808 (“9808 Number”): 27. The Website provides marketing information such as the “benefits of cannabidiol” and contains a “RUSH MY ORDER NOW” and “GET MY BOTTLE” button to purchase Defendants products. 30. The Check-Out Page also includes the following contact information for the seller of the products: 5 31. Upon information and belief, Defendant owns and/or operates the 646-649-2655 telephone number (“2655 Number”) provided on the Check-Out Page. 32. Defendant’s principle executive office is located at 404 E 76th Street, PH-C, New York, NY 10021, which is the contact address provided on the Check-Out Page. 33. Upon information and belief, Defendant also owns and/or operates the website www.naturamiraclesinc.com (“Natura Miracles Website”). 35. Upon information and belief, Defendant caused similar text messages to be sent to individuals residing within this judicial district. 36. At no point in time did Plaintiff provide Defendant with her express consent to be contacted with telemarketing text messages using an ATDS. 37. Plaintiff is the subscriber and sole user of the 9808 Number. 39. The number (410-200-503) that transmitted the text messages is operated by or on behalf of Defendant. 40. The number used by Defendant (410-200-503) is known as a “long code” a standard 9- digit code that enables Defendant to send SMS text messages en masse. 41. Long codes work as follows: Private companies known as SMS gateway providers have contractual arrangements with mobile carriers to transmit two-way SMS traffic. These SMS gateway providers send and receive SMS traffic to and from the mobile phone networks' SMS centers, which are responsible for relaying those messages to the intended mobile phone. This allows for the transmission of a large number of SMS messages to and from a long code. 42. To send the text messages, Defendant used a messaging platform that permitted Defendant to transmit thousands of automated text messages without any human involvement. 43. The platform utilized by Defendant has the current capacity or present ability to generate or store random or sequential numbers or to dial sequentially or randomly at the time the call is made, and to dial such numbers, en masse, in an automated fashion without human intervention. 45. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. 46. Plaintiff brings this case on behalf of the below defined Class: All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a text message using the same type of equipment, from Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone number, advertising Defendant’s services, without the recipients’ prior express written consent. 47. Defendant and their employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class but believes the Class members number in the several thousands, if not more. 51. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant routinely transmits text messages to telephone numbers assigned to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 56. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 57. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 58. Defendant – or third parties directed by Defendant – used equipment having the capacity to dial numbers without human intervention to make non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class defined below. 60. Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to make non-emergency telephone calls to the cell phones of Plaintiff and the other members of the putative Class without their prior express written consent. 61. Defendant knew that it did not have prior express consent to make these calls and knew or should have known that it was using equipment that at constituted an automatic telephone dialing system. The violations were therefore willful or knowing. 62. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff and the other members of the putative Class were harmed and are each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an injunction against future calls. Id. PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) | win |
348,301 | 10. Defendants’ account transfer and lead distribution policies and practices disproportionately steer lucrative business opportunities to FSRs who are not African American. Likewise, “orphaned” accounts are routinely steered disproportionately to non-African American FSRs. 11. Further, Defendants allow certain FSRs to be designated as “Delivering the Promise” specialists. Under this designation, FSRs are granted exclusive access to individual and family beneficiaries of insurance policies served by MetLife. These “Delivering the Promise” specialists are given additional training to assist insurance beneficiaries in their time of need, and the specialists then gain exclusive access to promote MetLife financial advisory services and retain the beneficiaries as clients. The “Delivering the Promise” specialist and referral program harms and has a disparate impact on African Americans by excluding them from opportunities to gain access to lucrative client accounts. 13. The practices described above are ongoing and constitute a continuing violation of the civil rights laws. 14. The racially discriminatory policies and practices at MetLife are uniform and national in scope. Class members are relying on Plaintiff and this lawsuit to protect their rights. Plaintiff Was Subjected To And Harmed By Defendants’ Unlawful Conduct 15. Plaintiff worked as a MetLife FSR from 2001 until he was unlawfully terminated in the fall of 2014. During much of his tenure at the Firm, Plaintiff was the only African American FSR in his region, which encompassed seven states: Illinois, Iowa, Arkansas, Missouri, Kansas, Nebraska, and parts of Oklahoma. 16. Plaintiff, like other African American FSRs, was subjected to race discrimination and retaliation while employed as a MetLife FSR. Consistent with Defendants’ discriminatory policies and practices, Plaintiff was denied valuable client leads, referrals, account transfers and distributions. Similarly, Plaintiff was also denied membership in and the benefits of favorable team relationships and specialist designations (including the “PlanSmart” or “Delivering the Promise” specialist certification) due to his race. 18. Plaintiff sought to form pools and teams with other FSRs to assist with the large amount of business he had brought to the Firm. Defendants, however, refused to allow Plaintiff to team or pool with other FSRs and failed to otherwise support Plaintiff in developing this business. Indeed, Defendants refused to allow Plaintiff to service his client’s employees or to share in the revenues generated from his client’s business. Defendants instead directed the more lucrative investment portion of his client’s business to white FSRs and denied Plaintiff the benefit of the business he brought to the Firm. Defendants also refused to provide Plaintiff with the PlanSmart training and certification it promised if he successfully acquired the client’s business. However, under nearly identical circumstances, the Firm provided a white FSR with PlanSmart training and certification after the white FSR acquired a sizeable client and allowed the white FSR to benefit financially from the investment business he brought to the Firm. 19. Plaintiff’s complaints about his differential treatment and appeals to management were flatly rejected. In retaliation for his complaints, Plaintiff was threatened with termination. Faced with an imminent and unwarranted termination and an unbearably hostile work environment, Creighton had no choice but to submit his resignation from MetLife in October of 2014 in order to salvage his career from a reported termination on his Financial Industry Regulatory Authority (“FINRA”) Form U5 Uniform Termination Notice. 21. As a result of Defendants’ unlawful conduct, Plaintiff lost wages and other benefits, and suffered irreparable harm to his career, emotional distress, and other nonpecuniary losses. Defendants’ actions have caused and continue to cause Plaintiff substantial losses in earnings, management opportunities, and other employment benefits, in an amount to be determined by a jury. 22. Plaintiff files this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of a class of African Americans who worked for Defendants as FSRs and who were subjected to discrimination by Defendants due to their race. All requirements of class certification are met by the proposed class. 23. The class of African American employees and former employees is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). 24. There are questions of law and fact common to the class, and those questions can and should be resolved in a single proceeding that furthers this litigation. Fed. R. Civ. P. 23(a)(2). 26. Plaintiff will fairly and adequately represent and protect the interests of the class. Fed. R. Civ. P. 23(a)(4). 27. The proposed class meets the requirements for certification under Rule 23(b)(2) and/or Rule 23(b)(3). The questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b)(3). 28. Alternatively, the issues of determining liability and equitable relief are appropriate for issue certification under Rule 23(c)(4), as are other common issues. 29. Plaintiff, individually and on behalf of all others similarly situated, realleges the above paragraphs and incorporates them by reference as though fully stated herein as part of Count I of this Complaint. 30. Section 1977 of the Revised Statutes, 42 U.S.C. § 1981, as amended, guarantees persons of all races the same right to make and enforce contracts, regardless of race. The term “make and enforce” contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 32. Plaintiff and all those similarly situated were subjected to and harmed by Defendants’ systemic and individual discrimination. 33. Plaintiff realleges the above paragraphs and incorporates them by reference as though fully stated herein as part of Count II of this Complaint. 34. Plaintiff engaged in protected activity and suffered retaliation by Defendants in violation of 42 U.S.C. § 1981. 35. Plaintiff suffered harm as a result of Defendants’ unlawful retaliation. 6. Defendants maintain a racially biased corporate culture and stereotypical views about the skills, abilities, and potential of African Americans that infect personnel decisions and form the basis of the policies and practices challenged by this lawsuit. 7. Defendants maintain centralized control over their wealth management business, and a nearly all-white team of senior executives issues mandatory company policies that apply to the FSR workforce. These include uniform, Firm-wide policies and practices that govern FSR training; FSR compensation; FSR team formation and pool relationships; the transfer and distribution of leads and accounts to FSRs, including “orphaned” client accounts (accounts previously serviced by FSRs who have left the Firm but that have not been reassigned to a new FSR); and the referral of business opportunities via programs such as “PlanSmart” and “Delivering the Promise.” 8. Defendants maintain uniform, company-wide teaming, account transfer and distribution, and referral policies and practices that result in a segregated workforce and significant racial disparities in compensation and attrition. These policies and practices also have a disparate impact on African Americans. RACE DISCRIMINATION IN VIOLATION OF 42 U.S.C. § 1981 RETALIATION IN VIOLATION OF 42 U.S.C. § 1981 | win |
59,851 | (FLSA Violations Prior To January Of 2018) (Plaintiff John Kreischer’s Employment With Defendants) 120. Wastebuilt Defendants employed Kreischer as a Piece Rate Employee from December of 2013 through December 31, 2017. 121. Kreischer left his employment with Wastebuilt Defendants in or around May or June of 2016, but returned to working for Wastebuilt Defendants in or around November of 2016. 122. Kreischer was employed by New Galfab Defendants from January 1, 2018 through April of 2018. 123. The terms, conditions and circumstances of Kreischer’s employment remained the same when his employment switched from Wastebuilt Defendants’ control to New Galfab Defendants’ control. 124. Kreischer was not required to fill out any new employment forms or tax documents when he switched from being employed by Wastebuilt Defendants to New Galfab Defendants. 125. Kreischer was never laid-off or unemployed during the switch from Wastebuilt Defendants to New Galfab Defendants. 126. Kreischer performed the same job duties he had performed while employed by New Galfab Defendants as he had while employed by Wastebuilt Defendants. 18 127. At all times referenced herein, Kreischer was not exempt from the overtime requirements of the FLSA. 128. At all times referenced herein, Kreischer was paid a piece rate for all time he spent manufacturing Defendants’ products, and an hourly rate for time he was not producing products but nonetheless required to work. 129. At all times referenced herein, Kreischer regularly worked in excess of (40) hours per workweek, but never received one and one-half times his regular rate of pay for any hours worked over (40) in a workweek the entire time he was employed by Wastebuilt Defendants. 130. Kreischer continued to work in excess of 40 hours per week after becoming employed by New Galfab Defendants. 131. New Galfab Defendants did not pay the correct overtime to Kreischer and did not pay Kreischer for all overtime worked. (Plaintiff Henry Epps’ Employment With Defendants) 132. Wastebuilt Defendants employed Epps as a Piece Rate Employee from approximately May 8, 2017 through December 31, 2017. 133. Beginning on or around January 1, 2018, Epps became employed by New Galfab Defendants. 134. The terms, conditions and circumstances of Epps employment remained the same when his employment switched from Wastebuilt Defendants’ control to New Galfab Defendants’ control. 135. Epps did not have to apply for employment with New Galfab Defendants. 136. Epps was not required to fill out any new employment forms or tax documents when he switched from being employed by Wastebuilt Defendants to New Galfab Defendants. 19 137. Epps was never laid-off or unemployed during the switch from Wastebuilt Defendants to New Galfab Defendants. 138. Epps performs the same job duties for New Galfab Defendants as he did while employed by Wastebuilt Defendants. 139. Epps had the same manager after his employment transitioned from Wastebuilt Defendants to New Galfab Defendants. 140. At all times referenced herein, Epps was not exempt from the overtime requirements of the 221. Plaintiffs restate each and every prior paragraph of this Complaint, as if it were fully restated herein. 28 222. During all times material to this Complaint, Plaintiffs and the FLSA Class Members were not exempt from receiving minimum wage or overtime under the FLSA because, inter alia, they were not “executive,” “computer,” “administrative,” or “professional” employees, as those terms are defined under the FLSA. See 29 C.F.R. §§ 541.0, et seq. 223. During all times material to this Complaint, Defendants violated the FLSA with respect to the Plaintiffs and the FLSA Class Members by, inter alia, failing to compensate them at time- and-one-half their regular rates of pay for any hours worked in excess of forty (40) hours per workweek. 224. During all times material to this complaint, Defendants knew that Plaintiffs and the FLSA Class Members are not exempt from the minimum wage and overtime obligations imposed by the FLSA. Defendants also knew that they were required to pay Plaintiffs and the FLSA Class Members at least the applicable minimum wage, plus overtime compensation at a rate of one and one-half their respective regular rates for hours worked in excess of forty (40) hours per workweek. Despite such knowledge, Defendants willfully withheld and failed to pay the minimum wage and overtime compensation to which Plaintiffs and the FLSA Class Members are entitled. 225. In violating the FLSA, Defendants acted willfully, without a good faith basis and in reckless disregard of clearly applicable FLSA provisions. 226. As a direct and proximate cause of Defendants’ conduct, pursuant to 29 U.S.C. § 216(b), Defendants are liable to Plaintiffs and those similarly-situated for the full amount of the required minimum wage rate, an additional equal amount as liquidated damages as well as costs and reasonable attorney fees. 55. At all times referenced herein, Wastebuilt Defendants were in the business of manufacturing and selling products commonly used in the waste and recycling industry, such as dumpsters, hoist, compactors, and containers. 56. Between January of 2013 and approximately September of 2017, Wastebuilt Defendants employed hundreds of laborers paid on a piece rate at Galfab’s Indiana Plant and Phoenix Plant to build the products sold by Wastebuilt Defendants (“Piece Rate Employees”). 10 57. Plaintiffs and those similarly-situated are and/or were Piece Rate Employees during the applicable statute of limitations period, through the present. 58. Piece Rate Employees generally worked a nine-and-a-half-hour day, with half an hour automatically deducted for lunch, five days a week. 59. Thus, Piece Rate Employees regularly worked a scheduled 45-hour workweek (“Scheduled Hours”). 60. At times during the applicable statute of limitations period, Piece Rate Employees would be called upon to work beyond their Scheduled Hours when necessary, to include working late, coming in early, and working on Saturdays. 61. Piece Rate Employees reported their time via a time punch. 62. At all times referenced herein, Piece Rate Employees were paid a piece rate for the products they built. 63. At times, Piece Rate Employees would run out of parts or supplies, the shop would be slow, or need cleaning; Piece Rate Employees would be paid an hourly rate for this work when it needed to be performed (“Non-Production Work”). 64. Piece Rate Employees were also paid hourly when they attended mandatory safety meetings or other meetings. 65. Piece Rate Employees submitted “time slips” for each product they built; for example, if a Piece Rate Employee spent six-hours building a dumpster, two of which were spent waiting on parts, the Piece Rate Employee would report four hours of production time and two hours of Non-Production Time on the time slip they submitted. 11 66. At all times relevant to the Complaint, Wastebuilt Defendants would balk if a Piece Rate Employee reported too much Non-Production Time and would threaten these employees with discipline if they did not alter their time slips to reduce said Non-Production Time. 67. Wastebuilt Defendants pressured Piece Rate Employees to reduce the Non-Production Time reported in order to reduce labor costs. 68. At all times referenced herein prior to January of 2018, Wastebuilt Defendants did not pay Piece Rate Employees overtime – at all – for time worked over 40 hours in a workweek. 69. Rather than paying Piece Rate Employees overtime, Wastebuilt Defendants simply paid these employees their applicable piece rate or hourly Non-Production Work rate for time worked over 40 hours in a week. 70. Samples of Plaintiffs’ paystubs illustrating these practices are attached hereto as Exhibits H, I, and J. 71. For example, during the week of August 12, 2017, Plaintiff John Kreischer worked nearly 60 hours; however, Kreischer was only paid $12.50 per hour for “hourly work” and $1,431.00 for piece rate work (Exhibit H). 72. Kreischer was not paid overtime despite the fact that he worked more than 40 hours during the week of August 12, 2017. 73. During the time period between November 5, 2017 and November 18, 2017, Plaintiff Henry Epps worked more than 80 hours; however, Epps was only paid his piece rate ($1,275.20) and $12.50 per hour for a total of 4.5 hours (Exhibit I). 74. Epps was not paid overtime despite the fact that he worked more than 40 hours per week during both weeks of the November 5, 2017 - November 18, 2017 time period. 12 75. During the time period between December 3, 2017 and December 16, 2017, Plaintiff Curley Conley worked more than 80 hours; however, Conley was only paid his piece rate ($1,118.14) and $12.50 per hour for a total of 20 hours (Exhibit J). 76. Conley was not paid overtime despite the fact that he worked more than 40 hours per week during both weeks of the December 3, 2017 - December 16, 2017 time period. 77. Plaintiffs regularly complained to management for Wastebuilt Defendants about not being paid overtime. 78. For example, in or around fall of 2014, Kreischer complained to Scheiner about not being paid overtime; Scheiner responded by scolding Kreischer, telling Kreischer that Kreischer was not “an expert” on the legal requirements for overtime, and by telling Kreischer that if he was not satisfied with how he was being paid, he could “walk out the door.” 79. In or around June of 2016, Kreischer left his employment with Wastebuilt Defendants. 80. Kreischer became employed by Wastebuilt Defendants again in or around November of 2016. 81. Upon returning to Galfab, Kreischer again asked Scheiner if Wastebuilt Defendants planned to start paying overtime; Scheiner responded by telling Kreischer it was none of his business. 82. In early 2017, Kreischer was discussing OSHA and time sheets with his direct supervisor, Curt Mustard, when Kreischer mentioned that OSHA regulations could be found online by using the popular Google search engine. 83. During Kreischer’s conversation with Mustard, the subject of the FLSA and overtime came up, and Kreischer pointed out that Piece Rate Employees are entitled to overtime. 84. Kreischer backed up his claim that Piece Rate Employees are entitled to overtime by showing Mustard a legal blog he found using Google concerning the subject. 85. Subsequently, Mustard called Scheiner over to discuss what Kreischer had found on Google. 13 86. In response to being confronted with Kreischer’s Google research, Scheiner angrily told Kreischer that Kreischer was not a lawyer and did not know what he was talking about. 87. Yenna complained to his direct supervisor, Brian Thomas and Wastebuilt Defendants’ human resources department about not being paid overtime, but nothing was done. 88. On one or more occasions, Epps questioned his pay to members of Wastebuilt Defendants’ management, specifically complaining about the lack of overtime pay. 89. Wastebuilt Defendants management’ responded to Epps’ complaints by assuring him that he was, in fact, being paid overtime, and that he just did not see it in his checks because of the method in which Wastebuilt Defendants were allegedly calculating Epps’ overtime pay. 90. A true and accurate copy of Epps’ paystubs from May of 2017 through December of 2017 pay stubs are attached hereto as Exhibit K. 91. A review of Epps 2017 paystubs demonstrates that Wastebuilt Defendants misled Epps and that Epps was never actually paid overtime in 2017. 92. Wastebuilt Defendants intentionally misled Epps in order to avoid paying overtime. 93. Throughout 2015, 2016, and 2017, Wastebuilt Defendants occasionally held “piece rate meetings” with its Piece Rate Employees. 94. Scheiner would typically attend the piece rate meetings. 95. During several piece rate meetings that occurred in 2016 and 2017, several Piece Rate Employees questioned why they were not paid overtime. 96. During a safety meeting that occurred in or around October of 2017, a member of Wastebuilt Defendants’ management (name unknown) responded to the ongoing overtime complaints of Piece Work Employees by stating that Wastebuilt Defendants were not going to pay “piece 14 rate and a half,” it was never going to happen, that is the way it is and that Piece Work Employees should just accept it. 97. Wastebuilt Defendants’ unlawful pay practices, as described in paragraphs 53 - 94 above, continued until January of 2018. 98. Despite their knowledge of their obligations under the FLSA to pay employees the proper wage for all hours worked, to include overtime, Wastebuilt Defendants and Scheiner willfully and recklessly refused to pay Plaintiffs and those similarly-situated overtime. 99. Wastebuilt Defendants and Scheiner’s violations of the FLSA were knowingly and willfully committed with the intended purpose of reducing Wastebuilt Defendants’ labor cost as much as possible. 100. Wastebuilt Defendants and Scheiner lack a good faith or reasonable justification for having failed to pay Plaintiffs or those similarly-situated overtime for all time worked in excess of forty hours per week. (Ongoing FLSA Violations Since January of 2018). 101. During a meeting with Piece Rate Employees that occurred In or around January of 2018, Scheiner acknowledged that Piece Rate Employees were entitled to overtime, and that going forward, New Galfab Defendants would pay overtime. 102. When a Piece Rate Employee asked if Scheiner’s announcement meant that Piece Rate Employees would receive unpaid overtime as “back wages,” Scheiner stated that Galfab would not pay “back wages.” 103. Subsequently, New Galfab Defendants began paying Piece Rate Employees and those similarly-situated “overtime” for hours worked over 40 a week. 15 104. Despite now purporting to pay overtime wages, New Galfab Defendants continued to violate the FLSA by failing to properly calculate or pay overtime to Piece Rate Employees. 105. Since January of 2018, New Galfab Defendants have improperly calculated the overtime rate paid to Piece Rate Employees solely on the hourly rate Plaintiffs and those similarly- situated are paid to perform Non-Production Work, rather than on the actual regular rate of pay. See, e.g., 29 C.F.R. §§ 778.109, 778.111. 106. Since January of 2018, New Galfab Defendants have improperly included only the time spent performing piece rate work, rather than all hours worked, when calculating the number of hours of overtime to which Piece Rate Employees are entitled. 107. Thus, New Galfab Defendants’ current process for paying overtime is to exclude time spent performing Non-Production Work from the calculation of hours worked, while arbitrarily using the Non-Production Work hourly rate as the regular rate for the purposes of calculating the overtime rate. 108. At the time New Galfab Defendants implemented the overtime policies described in Paragraphs 99 - 105 above, they were aware of their overtime obligations and prior complaints by Piece Rate Employees regarding overtime pay. 109. New Galfab Defendants and Scheiner willfully and recklessly violated the FLSA and continue to violate the FLSA despite the many complaints the have received from Piece Rate Employees and despite clearly applicable FLSA regulations. 110. The FLSA violations of New Galfab Defendants and Scheiner were committed without good faith and/or were unreasonable. 16 GALFAB DEFENDANTS 111. Upon information and belief, several members of Wastebuilt Defendants’ management, including Scheiner, were involved in and/or participated in the organization and formation of New Galfab Defendants. 112. Scheiner and several other members of the former Wastebuilt Defendants’ management were aware of the overtime complaints of Piece Rate Employees, to include those of Plaintiffs Kreischer, Yenna, and Epps, at the time involved in and/or participated in the organization and formation of New Galfab Defendants. 113. At the time they were organized and formed, New Galfab Defendants were aware of Wastebuilt Defendants’ obligations under the FLSA to Plaintiffs and those similarly-situated; they were also aware that Wastebuilt Defendants had violated the FLSA. 114. There has been a substantial continuation of Galfab’s business under the New Galfab Defendants. 115. New Galfab Defendants retained the management of Wastebuilt Defendants, including Scheiner. 116. New Galfab Defendants retained and use the same equipment Wastebuilt Defendants used to manufacture the same products Wastebuilt Defendants manufactured under the same name, “Galfab.” 117. New Galfab Defendants manufacture the same products Wastebuilt Defendants manufactured at the same Winamac and Phoenix plants Wastebuilt Defendants used to manufacture these products. 17 118. New Galfab Defendants retained all of the Piece Rate Employees who were employed by Wastebuilt Defendants as of the date of the transition, who continued to perform the same job duties for New Galfab Defendants as they did for Wastebuilt Defendants. 119. Upon information and belief, Galfab Acquisitions, LLC is no longer in existence and is unable to provide adequate relief to Plaintiffs and those similarly-situated. | win |
370,486 | 1. JADWIGA NOWAK ("Plaintiff') is a natural person, over 18-years-of-age, who at all times relevant resided at 2617 North Monitor Avenue, Chicago, Illinois 60639. 2. Plaintiff is a "consumer" as defined by 15 U.S.C. § 1692a(3). 2021CH03714 JADWIGA NOWAK, individually, and on behalf of all others similarly situated, Plaintiff, V. CALIBER HOME LOANS, INC. and 3. CALIBER HOME LOANS, INC., ("Caliber Home Loans") is a corporation organized and existing under the laws of the state of Delaware. 32. Once it became the servicer of the Loan, Caliber engaged Caneel to assist it in collection of the Loan. 6 1 111111 11111 11111 11111 11111 11111 11111 11 1 11 1111 11 11 4. Caliber Home Loans uses instrumentalities of interstate commerce and the mail in its business — the principal purpose of which is the collection of debt owed or due or asserted to be 2 61. Nowak restates and incorporates by reference paragraphs 1 through 60. 62. Nowak brings this action pursuant to 735 ILCS 5/2-801, individually, and on behalf of all others similarly situated ("Caliber Putative Class"). 10 1 11111 11111 11111 11111 liii 1111101 Ill 1111 1111 87. Nowak restates and incorporates by reference paragraphs 1 through 60. 88. Nowak brings this action pursuant to 735 ILCS 5/2-801, individually, and on behalf of all others similarly situated ("Caneel Putative Class"). 89. Caneel violated the FDCPA when it communicated with Nowak and members of the putative class to collect a consumer debt and failed to provide notice as required by §1692g of the FDCPA. 14 95. A subclass of the Caneel Putative Class ("Caneel Subclass One") is defined as follows: (a) all individuals (b) who were alleged to be obligated for a consumer debt (c) with whom Caneel communicated without disclosing that it was a debt collector and without making disclosures required by 15 U.S.C. §1692g within one year of the filing of this action. 96. A subclass of the Caneel Putative Class ("Caneel Subclass Two") is defined as follows: (a) all individuals (b) who were alleged to be obligated for a consumer debt (c) with whom Caneel communicated and represented that it could take actions on behalf of the consumer that constituted the unauthorized practice of law. within one year of the filing of this action. 97. The following individuals are excluded from the Caneel Putative Class: (1) any Judge presiding over this action and members of their families; (2) Caneel or Caliber or the s 15 1 11111111111111111111111111111111 11111111 1111 Court date EMAIL: [email protected] Gen. Info: (312) 603-5710 DOMESTIC RELATIONS/CHILD SUPPORT Court date EMAIL: [email protected] Gen. Info: (312) 603-5710 DOMESTIC RELATIONS/CHILD SUPPORT ILLINOIS IRIS Y. MARTINEZ COUNTY DEPARTMENT — CHANCERY DIVISION CIRCUIT CLERK MS SV-79 DOCUMENT PROCESSING 1800 Tapo Canyon Simi Valley, CA 93063-6712 Prepared By: Name all Parties Jadwiga Nowak Plaintiff(s) Caliber Home Loans, Inc. and Caneel Group, LLC Defendant(s) Caliber Home Loans, Inc. do C T Corporation System, Registered Agent, 208 S. LaSalle St., Ste. 814, Chicago, IL 60604 Case No. PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. LEGAID 30365873 NIB 02/11/03 4 TAX NUMBER: LEGAL DESCRIPTION: LOT 14 IN BLOCK 8 IN TITLEY'S SUBDIVISION OF LOT 1 IN THE CIRCUIT COURT [Fair Debt Collection Practices Act-15 U.S.C. § 1692 et seq] [Fair Debt Collection Practices Act-15 U.S.C. § 1692 et seq] of COOK [Type of Recording Jurisdiction] [Name of Recording Jurisdiction] | win |
123,034 | 65. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein. 66. Defendant is a “person” and “consumer reporting agency” as defined by sections 1681a(b) and (f) of the FCRA. 67. Plaintiff is a “consumer” as defined by section 1681a(c) of the FCRA. 68. The above-mentioned reports are “consumer reports” as defined by section 1681a(d). 69. Pursuant to sections 1681n and 1681o, Defendant is liable for willfully and negligently violating the FCRA by failing to follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom a consumer report relates, in violation of section 1681e(b). ) SERVICES CORP., ) ) Defendant. ) Jury Trial Demanded ) | lose |
69,971 | 14. Defendant’s labeling and advertising scheme is deliberately intended to give consumers the false impression that the Products are composed only of natural flavors and “no artificial colors or flavors.” 58. Plaintiff brings this action on behalf of herself and all others similarly situated (the “Class”) pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(2), and 23(b)(3). 59. The nationwide Class is defined as follows: All U.S. citizens who purchased the Products in their respective state of citizenship on or after January 1, 2012 and until the Class is certified, for personal use and not for resale, excluding Defendant and Defendant’s officers, directors, employees, agents and affiliates, and the Court and its staff. 60. The California Class is defined as follows: All California citizens who made retail purchases of the Products in California on or after January 1, 2012 and until the Class is certified, for personal use and not for resale, excluding Defendant and Defendant’s officers, directors, employees, agents and affiliates, and the Court and its staff. 61. During the Class Period, the Products unlawfully contained the undisclosed artificial flavors d-malic acid or d-l malic acid and were otherwise improperly labeled. Defendant failed to label the Products as required by California law. 62. During the Class Period, Class members purchased the misbranded Products, paying a price premium for those Products compared to similar products lawfully labeled. 63. The proposed Class meets all criteria for a class action, including numerosity, commonality, typicality, predominance, superiority, and adequacy of representation. 78. Plaintiff re-alleges and incorporates by reference the allegations made elsewhere in the Complaint as if set forth in full herein. 79. Plaintiff brings this claim for fraud by omission pursuant to California Civil Code §§ 1709-1710, et seq. and the common law of all states. The elements of fraud are substantially similar from state to state, thus making nationwide class certification appropriate. 80. Defendant actively concealed material facts, in whole or in part, with the intent to induce Plaintiff and members of the Class to purchase the Products. Specifically, Defendant actively concealed the truth about the Products by not disclosing the existence of artificial flavoring ingredients on the front label of the Products as is required by California and federal law. 81. Plaintiff and the Class were unaware of these omitted material facts and would not have purchased the Products, or would have paid less for the Products, if they had known of the concealed facts. 84. Plaintiff re-alleges and incorporates by reference the allegations made elsewhere in the Complaint as if set forth in full herein. 85. Plaintiff brings this claim for negligent misrepresentation pursuant to California Civil Code §§ 1709-1710, et seq. and the common law of all states. The elements of negligent misrepresentation are substantially similar from state to state, thus making nationwide class certification appropriate. 86. Defendant had a duty to disclose to Plaintiff and the Class members the existence of artificial flavoring ingredients on the front labels of the Products pursuant to California and federal law. Defendant was in a superior position than Plaintiff and the Class members such that reliance by Plaintiff and the Class members was justified. Defendant possessed the skills and expertise to know the type of information that would influence a consumer’s purchasing decision. 87. During the applicable Class period, Defendant negligently or carelessly misrepresented, omitted, and concealed from consumers material facts regarding the products, including the existence of artificial flavoring ingredients. 88. Defendant was careless in ascertaining the truth of their representations in that it knew or should have known that Plaintiff and the Class members would not have realized the true existence of artificial flavoring ingredients in the Products. 91. Plaintiff re-alleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further allege as follows: 92. The California Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (“CLRA”) prohibits any unfair, deceptive and unlawful practices, and unconscionable commercial practices in connection with the sale of any goods or services to consumers. 93. Plaintiff and the Class are “consumers” as defined by Cal. Civ. Code § 1761(d). The Products are a “good” as defined by Cal. Civ. Code § 1761. 94. Defendant’s failure to label the Products in compliance with federal and state labeling regulations, was an unfair, deceptive, unlawful, and unconscionable commercial practice. 95. Defendant’s conduct violates the CLRA, including but not limited to, the following provisions: § 1770(a)(5): representing that goods have characteristics, uses, or benefits which they do not have. § 1770(a)(7): representing that goods are of a particular standard, quality, or grade if they are of another. § 1770(a)(9): advertising goods with intent not to sell them as advertised. § 1770(a)(16): representing the subject of a transaction has been supplied in accordance with a previous representation when it has not. Defendant Does Not Disclose That The Products Are Artificially Flavored. FRAUD BY OMISSION, Cal. Civ. Code §§ 1709-1710 and the common law of all states (on behalf of the Nationwide Class and the California Class) NEGLIGENT MISREPRESENTATION, Cal. Civ. Code §§ 1709-1710 and the common law of all states (on behalf of the Nationwide Class and the California Class) VIOLATION OF CALIFORNIA’S CONSUMERS LEGAL REMEDIES ACT, CAL. CIV. CODE §§ 1750, et seq. (on behalf of the California Class) VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, (UNLAWFUL PRONG) CAL. BUS. & PROF. CODE §§ 17200, et seq. (on behalf of the California Class) | lose |
40,136 | 1. The amount of the debt; 1. where the letter: a. states that there are multiple creditors; b. without stating the amount owed to each individual creditor; 11. Plaintiff brings this claim on behalf of the following class, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 12. The Class consists of all individuals: a. with addresses in the State of New Jersey; b. to whom Defendant RMP sent an initial letter; c. attempting to collect a consumer debt; d. in two sub-classes: 13. The identities of all class members are readily ascertainable from the records of Defendant and those companies and entities on whose behalf it attempts to collect and/or has purchased debts. 14. Excluded from the Plaintiff Class are the Defendant and all officers, members, partners, managers, directors and employees of the Defendant and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. 15. There are questions of law and fact common to the Plaintiff Class, which common issues predominate over any issues involving only individual class members. The principal issue is whether the Defendant’s written communications to consumers, in the form attached as Exhibit A, violate 15 U.S.C. §§ 1692e, 1692f, and 1692g. 16. The Plaintiff’s claims are typical of the class members, as all are based upon the same facts and legal theories. The Plaintiff will fairly and adequately protect the interests of the Plaintiff Class defined in this complaint. The Plaintiff has retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiff nor his attorneys have any interests, which might cause them not to vigorously pursue this action. 19. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify a class(es) only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). 2. The name of the creditor to whom the debt is owed; ... 20. Plaintiff repeats the above allegations as if set forth here. 21. Some time prior to February 14, 2020, an obligation was allegedly incurred to two separate non-parties: U of M Physicians, and M Health Clinic and Surgery. 22. These alleged debts were incurred as financial obligations that were primarily for personal, family or household purposes and are therefore each a “debt” as that term is defined by 15 U.S.C. § 1692a (5), specifically for personal medical services. 23. U of M Physicians and M Health Clinic and Surgery are each a "creditor" as defined by 15 U.S.C.§ 1692a (4). 24. According to the letter received by Plaintiff, U of M Physicians and M Health Clinic and Surgery placed the accounts with the Defendant to collect the alleged debt. 25. Defendant RMP collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of itself or other creditors using the United States Postal Services, telephone and internet. Violation - February 14, 2020 Collection Letter 26. On or about February 14, 2020, Defendant RMP sent Plaintiff a collection letter. A true and accurate copy of this letter is attached as Exhibit A. 28. The letter further states “[y]our delinquent balances totaling $2,461.57 have been placed with us for collections.” (emphasis added). 29. The letter fails to identify the amount owed to each of the two creditors. 30. The consumer is confused as to how much debt is owed on each individual debt and cannot properly decide how to address them. 31. For example, one of the debts may be significantly less than the other. If so, the consumer would perhaps choose to pay down the smaller balance first. The letter however, fails to properly inform the consumer of the amount of the debt, instead lumping multiple debts together to coerce payment. 32. The letter further offers monthly payment plans “interest free”. 33. However, Defendant is not actually charging any further interest. 34. The implied claim that interest is accruing is therefore deceptive and false. 35. Implying that the balance may increase is merely a deceptive collection tactic. 36. The consumer is therefore unable to evaluate how much is truly being alleged as the correct balance, is being misled at to the total owed, and cannot properly evaluate the offers of settlement. 38. As a result of Defendant's deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged. 39. Plaintiff repeats the above allegations as if set forth here. 40. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e. 41. Pursuant to 15 U.S.C. §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. 42. Defendant violated said section by: a. implying interest is accruing on the debt although no interest is actually being collected or intended to be collected in violation of §§ 1692e (5); b. falsely representing the character, amount or legal status of the debt in violation of §1692e (2); c. Failing to state the balance owed to each creditor in violation of § 1692e (10). 43. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692e et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. 44. Plaintiff repeats the above allegations as if set forth here. 46. Pursuant to 15 U.S.C. §1692f, a debt collector may not use any unfair or unconscionable means in connection with the collection of any debt. 47. Defendant violated this section by a. implying interest is accruing on the debt although no interest is actually being collected or intended to be collected; b. unfairly representing the character, amount or legal status of the debt; c. failing to state the balance owed to each creditor. 48. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692f et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. 49. Plaintiff repeats the above allegations as if set forth here. 50. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. 51. Pursuant to 15 U.S.C. §1692g: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing – 53. In addition, the implied statement that that interest is accruing overshadows the § 1692g notice and time language and coerces the consumer not to exert his rights under the FDCPA. 54. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692f et seq. | win |
181,587 | 11. On December 1, 2010, sections 17600-17606 of the Cal. Bus. & Prof. Code came into effect. The Legislature’s stated intent for this Article was to end the practice of ongoing charges to consumers’ Payment Methods without consumers’ explicit consent for ongoing shipments of a product or ongoing deliveries of service. See Cal. Bus. & Prof. Code § 17600. 23. Plaintiff brings this action, on behalf of herself and all others similarly situated, as a class action pursuant to Rule 23(a) of the Federal Rules of Civil Procedure. The proposed Class (the “Class”) that Plaintiff seeks to represent is composed of and defined as: “All persons within California that, within the applicable statute of limitations period, purchased any product or service in response to an offer constituting an “Automatic Renewal” as defined by § 17601(a) from Drugstore.com, Inc., its predecessors, or its affiliates.” 24. This action is brought and may be properly maintained as a class action pursuant to the provisions of Federal Rule of Civil Procedure 23(a)(1)-(4) and 23(b)(1)- (3). This action satisfies the numerosity, typicality, adequacy, predominance and superiority requirements of those provisions. 33. The foregoing paragraphs are alleged herein and are incorporated herein by reference. 34. Cal. Bus. Prof. Code§ 17602(a)(1) provides: (a) It shall be unlawful for any business making an automatic renewal or continuous service offer to a consumer in this state to do any of the following: (l) Fail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the subscription or purchasing agreement is fulfilled and in visual proximity, or in the case of an offer conveyed by voice, in temporal proximity, to the request for consent to the offer. 38. The foregoing paragraphs are alleged herein and are incorporated herein by reference. 39. Cal. Bus. & Prof. Code § 17602(a)(2) provides: (a) It shall be unlawful for any business making an automatic renewal or continuous service offer to a consumer in this state to do any of the following: (2) Charge the consumer’s credit or debit card or the consumer’s account with a third party for an automatic renewal or continuous service without first obtaining the consumer, s affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms. 40. Defendant charged, and continues to charge Plaintiff’s and Class Members’ Payment Method for an automatic renewal or continuous service without first obtaining Plaintiff’s and Class Members affirmative consent to language containing the automatic renewal offer terms or continuous service offer terms. 43. The foregoing paragraphs are alleged herein and are incorporated herein by reference. 44. Cal. Bus. & Prof. Code § 17200, et seq. (the “UCL”) prohibits unfair competition in the form of any unlawful or unfair business act or practice. Cal. Bus. & Prof. Code § 17204 allows “a person who has suffered injury in fact and has lost money or property” to prosecute a civil action for violation of the UCL. Such a person may bring such an action on behalf of himself or herself and others similarly situated who are affected by the unlawful and/or unfair business practice or act. 45. Since December l, 2010, and continuing to the present, Defendant has committed unlawful and/or unfair business acts or practices as defined by the UCL, by violating Cal. Bus. & Prof. Code § 17602(a)(3). The public policy which is a predicate to a UCL action under the unfair prong of the UCL is tethered to a specific statutory provision. See Cal. Bus. & Prof. Code §§ 17600, 17602. 46. As a direct and proximate result of Defendant’s unlawful, and/or unfair acts and practices described herein, Defendant has received, and continues to hold, unlawfully obtained property and money belonging to Plaintiff and Class Members in the form of payments made for subscription agreements by Plaintiff and Class Members. Defendant has profited from its unlawful and/or unfair acts and practices in the amount of those business expenses and interest accrued thereon. California Business Professions Code §§ 17600-17606 FAILURE TO OBTAIN CONSUMER’S AFFIRMATIVE CONSENT BEFORE THE SUBSCRIPTION IS FULFILLED (CAL BUS. & PROF. CODE §§ 17602(a)(2) and 17603) (By Plaintiff, on her own behalf and on behalf of the Class, against All Defendants) FAILURE TO PRESENT AUTOMATIC RENEWAL OFFER TERMS OR CONTINUOUS SERVICE OFFER TERMS CLEARLY AND CONSPICUOUSLY AND IN VISUAL, PROXIMITY TO THE REQUEST FOR CONSENT OFFER (CAL. BUS. & PROF. CODE§ 17602(a)(l)) (By Plaintiff, on her own behalf and on behalf of the Class, against All Defendants) VIOLATION OF THE UNFAIR COMPETITION LAW (CAL. BUS. & PROF. CODE§ 17200 et. seq.) (By Plaintiff, on her own behalf and on behalf of the Class, against All Defendants) | lose |
447,013 | 10. Defendant alleges Plaintiff owes a debt (“the Debt”). 11. The Debt was primarily for personal, family or household purposes and is therefore a “debt” as defined by 15 U.S.C. § 1692a(5). 12. Sometime after the incurrence of the Debt, Plaintiff fell behind on payments owed. 13. Thereafter, at an exact time known only to Defendant, the Debt was assigned or otherwise transferred to Defendant for collection. 14. In its efforts to collect the debt, Defendant contacted Plaintiff by letter (“the Letter”) dated June 13, 2017. (“Exhibit 1.”) 15. The Letter is a “communication” as defined by 15 U.S.C. § 1692a(2). 16. 15 U.S.C. § 1692e prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of any debt. 17. While § 1692e specifically prohibits certain practices, the list is non-exhaustive, and does not preclude a claim of falsity or deception based on any non-enumerated practice. 18. The question of whether a collection letter is deceptive is determined from the perspective of the “least sophisticated consumer.” 19. A collection letter is deceptive under 15 U.S.C. § 1692e if it can reasonably be read by the least sophisticated consumer to have two or more meanings, one of which is inaccurate. 20. A collection letter is also deceptive under 15 U.S.C. § 1692e if it is reasonably 3 48. Plaintiff brings this action individually and as a class action on behalf of all persons similarly situated in the State of New York from whom Defendant attempted to collect a consumer debt using a collection letter that fails to identify any entity as “creditor,” “original creditor,” “current creditor,” “account owner,” or “creditor to whom the debt is owed,” but only includes “Re: [name of entity],” from one year before the date of this Complaint to the present. 49. This action seeks a finding that Defendant’s conduct violates the FDCPA, and asks that the Court award damages as authorized by 15 U.S.C. § 1692k. 50. Defendant regularly engages in debt collection. 51. The Class consists of more than 35 persons from whom Defendant attempted to collect delinquent consumer debts using a collection letter that fails to identify any entity as “creditor,” “original creditor,” “current creditor,” “account owner,” or “creditor to whom the debt is owed,” but only includes “Re: [name of entity],”. 52. Plaintiff’s claims are typical of the claims of the Class. Common questions of law 5 | win |
182,358 | 51. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarly situated. 62. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 63. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 64. Defendant – or third parties directed by Defendant – used equipment having the capacity to dial numbers without human intervention to make non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class defined below. 65. These calls were made without regard to whether or not Defendant had first obtained express permission from the called party to make such calls. In fact, Defendant did not have prior express consent to call the cell phones of Plaintiff and the other members of the putative Class when its calls were made. 66. Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to make non-emergency telephone calls to the cell phones of Plaintiff and the other members of the putative Class without their prior express written consent. 69. Plaintiff re-allege and incorporate paragraphs 1-61 as if fully set forth herein. 70. At all times relevant, Defendant knew or should have known that its conduct as alleged herein violated the TCPA. 71. Defendant knew that it did not have prior express consent to make these calls, and knew or should have known that its conduct was a violation of the TCPA. 72. Because Defendant knew or should have known that Plaintiff and Class Members had not given prior express consent to receive its autodialed calls, the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 73. As a result of Defendant’s violations, Plaintiff and the Class Members are entitled to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) PROPOSED CLASS Violation of the TCPA, 47 U.S.C. § 227 (On Behalf of Plaintiff and the Do Not Call Registry Class) Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) | lose |
443,248 | 29. Plaintiff brings this action on behalf of itself and as a class action under the provisions of Rule 23(a), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure on behalf of the members of the following Class: All persons who purchased Containerboard Products directly from any of the Defendants or their subsidiaries or affiliates for use or delivery in the United States from at least as early as August 2005 until the Present. Specifically excluded from this Class are the Defendants; the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded from this Class are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action. 30. Class Identity: The Class is readily identifiable and is one for which records should exist. 31. Numerosity: Due to the nature of the trade and commerce involved, Plaintiff believes that there are thousands of Class members as above described, the exact number and their identities being known to Defendants and their Co-conspirators. 8 32. Typicality: Plaintiff's claims are typical of the claims of the members of the Class because Plaintiff purchased Containerboard Products directly from one or more of the Defendants or their co-conspirators, and therefore Plaintiff’s claims arise from the same common course of conduct giving rise to the claims of the members of the Class and the relief sought is common to the Class. 33. Common Questions Predominate: There are questions of law and fact common to the Class, including, but not limited to: a. Whether Defendants and their Co-conspirators engaged in an agreement, combination, or conspiracy to fix, raise, elevate, maintain, or stabilize prices of Containerboard Products sold in interstate commerce in the United States; b. The identity of the participants of the alleged conspiracy; c. The duration of the conspiracy alleged herein and the acts performed by Defendants and their Co-conspirators in furtherance of the conspiracy d. Whether the alleged conspiracy violated Section 1 of the Sherman Act, 15 U.S.C. §1; e. Whether the conduct of Defendants and their Co-conspirators, as alleged in this Complaint, caused injury to the business or property of the Plaintiff and the other members of the Class; f. The effect of Defendants’ alleged conspiracy on the prices of Containerboard Products sold in the United States during the Class Period; and g. The appropriate class-wide measure of damages. 34. These and other questions of law or fact which are common to the members of the Class predominate over any questions affecting only individual members of the Class. 35. Adequacy: Plaintiff will fairly and adequately protect the interests of the Class in that Plaintiff’s interests are aligned with, and not antagonistic to, those of the other members of the Class and Plaintiff has retained counsel competent and experienced in the prosecution of class actions and antitrust litigation to represent itself and the Class. 9 36. Superiority: A class action is superior to other available methods for the fair and efficient adjudication of this controversy since individual joinder of all damaged Class members is impractical. Prosecution as a class action will eliminate the possibility of repetitious litigation. The damages suffered by individual Class members are relatively small, given the expense and burden of individual prosecution of the claims asserted in this litigation. Absent a class action, it would not be feasible for Class members to seek redress for the violations of law herein alleged. Further, individual litigation presents the potential for inconsistent or contradictory judgments and would greatly magnify the delay and expense to all parties and to the court system. Therefore, a class action presents far fewer case management difficulties and will provide the benefits of unitary adjudication, economy of scale and comprehensive supervision by a single court. | win |
49,162 | 90. Plaintiff incorporates by reference and realleges each and every allegation set forth above, as though fully set forth herein. 91. The Individual Defendants owed and owe Alibaba fiduciary obligations. By reason of their fiduciary relationships, the Individual Defendants owed and owe Alibaba the highest obligation of good faith, fair dealing, loyalty, due care, reasonable inquiry, oversight and supervision. 92. The Individual Defendants violated and breached their fiduciary duties of good faith, fair dealing, loyalty, and due care. 96. Plaintiff incorporates by reference and realleges each and every allegation contained above, as though fully set forth herein. 97. The wrongful conduct alleged regarding the issuance of false and misleading statements was continuous, connected, and on-going throughout the applicable time period. It resulted in continuous, connected, and on-going harm to the Company. 98. As a result of the misconduct described above, the Individual Defendants have caused Alibaba to incur substantial legal liability as the Company will incur significant legal costs defending itself as a result of the Individual Defendants’ misconduct and unlawful actions. 99. As a result of the waste of corporate assets, the Individual Defendants are liable to the Company. 100. Plaintiff, on behalf of Alibaba, has no adequate remedy at law. Breach of Fiduciary Duty Against All Individual Defendants Derivative Claim Against Defendants for Violation of Section 14(a) of the Exchange Act. Waste of Corporate Assets Against All Individual Defendants | lose |
252,758 | 10. Advantage employs CDMs, including the Plaintiff, to be responsible for inventory and advertising display within as many as 45 assigned retail stores within a designated geographic region. 11. The CDMs are organized into teams that are singularly focused on a manufacturer and/or class of trade, such as grocery, mass, drug, home improvement, convenience, club, military, and natural. Plaintiff is one of a group of CDMs in the North American Nutrition team who are focused on Gatorade and Quaker products (the “Gatorade CDMs”). 12. The principal job duties of Gatorade CDMs are to make sure that their assigned products are properly stocked, priced and displayed within the shelf space at each of the CDMs’ assigned stores. 32. Pursuant to 29 U.S.C. § 216, Plaintiff seeks to prosecute their FLSA claims as a collective action on behalf of all persons who are or were formerly employed by Advantage as Gatorade CDMs in the United States at any time since December 2016 (the “Collective Action Period”) who were not paid for hours actually worked as well as for overtime compensation at rates not less than one and one-half times their regular rate of pay for hours worked in excess of forty hours per workweek (the “Collective Action Members”). 33. There are numerous similarly situated current and former Gatorade CDMs throughout the country who would benefit from the issuance of a Court-supervised notice of the instant lawsuit and the opportunity to join the instant lawsuit. Those similarly situated employees are known to Defendant and are readily identifiable through Defendant’s records. 34. Plaintiff and other Gatorade CDMs are similarly situated because they all had similar duties; performed similar tasks; were subjected to the same requirements under the FLSA to be paid overtime wages unless specifically and properly exempted thereunder; were not so exempted; were subjected to similar pay plans; were required, suffered, or permitted to work, and did work, in excess of forty hours per week; and were not paid at a rate of one and one-half times their respective correct regular rates of pay for all such overtime hours worked. 35. Plaintiff Foster (“Plaintiff”) seeks to proceed as a class action with regard to Plaintiff’s California law claims, pursuant to Federal Rule of Civil Procedure 23 on behalf of the following class of persons: All persons employed by Advantage within the State of California as a Customer Development Manager in the North American Nutrition team at any time since December 2016. 42. Plaintiff, on behalf of herself and all Collective Action Members, re-alleges and incorporates by reference the allegations contained in the paragraphs above as if fully set forth herein. 43. During the Collective Action Period, Advantage has been, and continues to be, an employer engaged in interstate commerce within the meaning of the FLSA. 44. During the Collective Action Period, Advantage employed, and/or continues to employ, Plaintiff and each of the Collective Action Members within the meaning of the FLSA. 45. During the Collective Action Period, Advantage has had annual gross revenues in excess of $500,000. 46. During the Collective Action Period, Advantage had a policy and practice of misclassifying the Gatorade CDMs, including Plaintiff and the Collective Action Members, as exempt under the FLSA. 52. Plaintiff, on behalf of herself and all California class action members, re-alleges and incorporates by reference the allegations contained in the paragraphs above as if fully set forth herein. 53. Since at least December 2016, Advantage required Plaintiff and California class members to work in excess of eight (8) hours per workday and forty (40) hours per workweek. However, Advantage failed to fully pay the overtime wages that Plaintiff and California class members earned. 54. California Labor Code § 510 and the applicable Wage Order require that an employer compensate all work performed by an employee in excess of eight (8) hours per workday and forty (40) hours per workweek, at one and one-half times the employee’s regular rate of pay. 58. Plaintiff, on behalf of herself and all California class action members, re-alleges and incorporates by reference the allegations contained in the paragraphs above as if fully set forth herein. 59. California Labor Code § 512(a) states in pertinent part: “[A]n employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes . . . .” 60. Wage Order Nos. 4 and 7 each state, in relevant part, “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes.” If no meal period is provided, the Wage Orders require the employer to “pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.” 65. Plaintiff, on behalf of herself and all California class action members, re-alleges and incorporates by reference the allegations contained in the paragraphs above as if fully set forth herein. 66. The applicable Wage Order states in pertinent part, “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. . . . If any employer fails to provide and employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee on (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.” Labor Code § 226.7(a) states that “no employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” 67. Since at least December 2016, Advantage failed to provide Plaintiff and California class members rest periods as required by Labor Code §§ 226.7 and 512 and Wage Order No. 7-2001. 70. Plaintiff, on behalf of herself and all California class action members, re-alleges and incorporates by reference the allegations contained in the paragraphs above as if fully set forth herein. 71. California Labor Code § 226 provides, in relevant part, that every employer must furnish each employee with an itemized wage statement that shows the total number of hours worked each pay period, gross wages, net wages, all deductions, all applicable hourly rates of pay, the name and address of the legal entity that is the employer, and other information. 72. During the period starting around December 2016 to the present, Advantage willfully failed to furnish Plaintiff and California class members, upon each payment of compensation, itemized wage statements accurately showing, at a minimum: gross wages earned, total hours worked, net wages earned, and all applicable hourly rates in effect during pay period and the corresponding number of hours worked at each hourly rate by the employee. 73. During all relevant times, Plaintiff and California class members were injured by these failures because, among other things, they were confused about whether they were paid properly and/or they were misinformed about how many total hours they worked in each pay period. 74. California Labor Code § 226(e) provides that an employee suffering injury as a result of not being provided with an accurate itemized wage statement is entitled to recover the greater of all actual damages suffered or fifty ($50) dollars for the initial violation and one-hundred ($100) dollars for each subsequent violation, up to $4,000. Pursuant to Labor Code § 226(g), Plaintiff and California class members are entitled to injunctive relief to ensure Advantage’s compliance with Labor Code § 226. 75. Plaintiff and California class members are entitled to an award of costs and reasonable attorneys’ fees under Labor Code § 226(h). 77. Plaintiff, on behalf of herself and all California class action members, re-alleges and incorporates by reference the allegations contained in the paragraphs above as if fully set forth herein. 78. California Labor Code § 201 provides that any discharged employee is entitled to all wages due at the time of discharge. 79. Where an employer willfully fails to pay discharged or quitting employees all wages due as required under the California Labor Code, the employer is liable to such employees under California Labor Code § 203 for waiting time penalties in the amount of one (1) day’s compensation at the employees’ regular rate of pay for each day the wages are withheld, up to thirty (30) days. 80. During all relevant times, Advantage knowingly and willful violated California Labor Code §§ 201 and 202 by failing to pay Plaintiff and California class members who are no longer employed by Advantage all wages owed as alleged herein. Advantage is therefore liable to Plaintiff and California class members who are no longer employed by Advantage for waiting time penalties as required by California Labor Code § 203. 81. Plaintiff, on behalf of herself and similarly situated California members, also requests further relief as described below. 82. Plaintiff, on behalf of herself and all California class action members, re-alleges and incorporates by reference the allegations contained in the paragraphs above as if fully set forth herein. 83. California Business & Professions Code § 17200 et seq. prohibits unfair competition in the form of any unlawful, unfair, deceptive, or fraudulent business practices. 84. Plaintiff brings this cause of action individually and as representatives of all others subject to Advantage’s unlawful acts and practices. 9. Among its various services, Advantage operates a retail delivery and management service through which it delivers the consumer products of its clients to retail stores. Failure to Provide Mandated Meal Periods [Cal. Labor Code §§ 226.7, 512, and 1194, and Cal. Code Regs. tit. 8 §§ 11040, 11070] Failure to Pay All Wages Upon Termination [Cal. Labor Code §§ 201, 202, 203, and 256, and Wage Order No. 7-2001] Failure to Furnish Accurate Itemized Wage Statements [Cal. Labor Code §§ 226 and 226.3, and Wage Order No. 7-2001] Failure to Provide Mandated Rest Periods [Cal. Labor Code § 226.7, and Wage Order No. 7-2001] Unfair Competition Law Violations [Cal. Business & Professions Code § 17200 et seq.] [Cal. Labor Code §§ 510, 558, and 11984 et seq. and Wage Order No. 7-2001] [Fair Labor Standards Act] | win |
96,174 | 37. The Subaru Impreza is a compact family car that was first manufactured in 1992 and is now in its fifth generation of manufacturing. 38. Subaru also manufactures a “WRX” (short for world rally) version of the Impreza which features increased performance over the standard Impreza. 39. Subaru has and continues to market the WRX models as high- performance vehicles. For example, Subaru currently states “There’s never a dull moment behind the wheel of the WRX and WRX STI. Forged in rally competition, tempered on the racetrack, they’re built to inspire with control, and excite—any day, any season, any road.” 6 40. The 2013-2014 Subaru Impreza WRX and WRX Sti models at issue in this litigation were manufactured with Subaru’s EJ “short block” engine. The EJ is a four-stroke combustion engine manufactured by Subaru. The EJ is a dual overhead camshaft 16-valve turbo engine. 46. The defect inherent in the Class Vehicles causes an insufficient supply of engine oil to coat the bearing surfaces, compromising the integrity of the oil barrier between the bearings and the corresponding metal parts they are designed to protect. When the Rotating Assembly Defect manifests, it results in excessive and frequent contact between the connecting rods and connecting rod bearings. This contact causes accelerated wear on the connecting rod bearing surfaces in the Class Vehicles, ultimately causing them to disintegrate and fracture. 48. Additionally, as the connecting rod bearings continue to fracture, the acceptable tolerances between the connecting rod bearings, the connecting rods, and the crankshaft begin to rapidly deteriorate. Eventually, the Class Vehicles begin producing a “knocking” or “rattling” sound originating from the engine as a result of the deteriorating connecting rod bearings. Additionally, the defective connecting rod bearings may eventually cause the piston to break through the engine block due to such deterioration. This space is referred to in the automobile industry as “play.” 49. The defective engines can fail during operation, so that vehicles suddenly stall and shut down even when traveling at high speeds, risking the lives of drivers, their passengers, and others on the road. 50. Defendants knew or should have known about the defect and its consequences since at least 2009, four years before the Class Vehicles were manufactured. 52. Subaru also receives data about how its vehicles are performing in the days, weeks, and months after they are sold. Subaru collects information from both drivers and dealerships, including through complaints, warranty claims, repair and replacement parts data, and other aggregated data sources. Subaru has exclusive access to this information too. 54. Defendants’ National Warranty Department similarly reviews and analyzes warranty data submitted by its dealerships and authorized technicians in order to identify defect trends in its vehicles. Defendants dictate that when a repair is made under warranty (or warranty coverage is requested), service centers must provide Defendants with detailed documentation of the problem and the fix that describes the complaint, cause, and correction, and also save the broken part in case Defendants later determine to audit the dealership or otherwise verify the warranty repair. For their part, service centers are meticulous about providing this detailed information about in-warranty repairs to Defendants because they will not pay the service centers for the repair if the complaint, cause, and correction are not sufficiently described. 56. In addition, since November of 1994, Subaru’s internal quality management system has been in place to “to impress customers through the establishment of quality policy in line with our customer first policy and a high level of integration of safety, enjoyment and environmental performance.”8 57. Specifically, Subaru’s Product Quality Management System identifies four key metrics that Subaru has instituted: • Establish Quality Management System (QMS) based on the Quality Policy and ISO 9001 Standard and put it into practice for orderly and effective operations. • Clarify the quality targets acceptable to customers at the planning stage. • Realize the quality targets through quality assurance activities at each stage from development to sales and service. • Attend to complaints and requests from the market quickly and appropriately to live up to the trust of customers. 59. Subaru’s quality management cycle consists of three stages. In the design and development stage, consideration is “given to preventing variability and standardization of tasks from the blueprint creation stage through to production processes.” 60. The production stage entails “establishment of process management aimed at preventing quality defects and variability as well as implementation of strict quality inspection and testing.” 61. The distribution and sales stage begins after vehicles are shipped and collects after-sales information and quality improvements that can be made. Subaru explicitly collects and analyzes “information on quality defects and requests sent to dealerships and SUBARU Customer Center.” 62. Subaru then takes the quality defect data and “prompt[ly” implements in successive design and development stages. 64. Subaru monitors drivers’ safety-related reports to the National Highway Transportation Safety Administration (“NHTSA”), which can be viewed on NHTSA’s website. Dating back to at least April of 2009, drivers of Subaru vehicles with EJ model engines began contacting the NHTSA to complain about their vehicles experiencing similar engine defects relating to the connecting rod bearings. 65. Subaru’s Customer Relations departments routinely monitor the internet for customer complaints and have retained the services of third-parties to do the same. Further, the Customer Relations division regularly receives and responds to driver calls concerning vehicle problems. 72. Plaintiff brings this action on his own behalf, and on behalf of the nationwide class pursuant to Fed. R. Civ. P. 23(a), 23(b)(2), and/or 23(b)(3). Nationwide Class: All persons or entities in the United States who bought or leased a Class Vehicle (the “Nationwide Class”). 74. Excluded from the Nationwide Class and California Class are Defendants, their affiliates, employees, officers and directors, persons or entities that purchased the Class Vehicles for resale, and the Judge(s) assigned to this case. Plaintiff reserves the right to modify, change, or expand the Nationwide Class or the California Class definitions based on discovery and further investigation. 75. Numerosity: Upon information and belief, both of the Classes are so numerous that joinder of all members is impracticable. While the exact number and identities of individual members of the Classes are unknown at this time, such information being in the sole possession of Defendants and obtainable by Plaintiff only through the discovery process, Plaintiff believes, and on that basis alleges, that hundreds of thousands of Class Vehicles have been sold and leased both nationwide and in California. 78. Adequacy: Plaintiff is an adequate representative because his interests do not conflict with the interests of the Classes that he seeks to represent, he has retained counsel competent and highly experienced in complex class action litigation, and he intends to prosecute this action vigorously. The interests of the Classes will be fairly and adequately protected by Plaintiff and his counsel. 80. Defendants have acted, and refused to act, on grounds generally applicable to the Classes, thereby making appropriate final equitable relief with respect to the Classes as a whole. 81. Plaintiff incorporates by reference each preceding and succeeding paragraph as though fully set forth and length herein. 82. The New Jersey Consumer Fraud Act, N.J. Stat. Ann. §§ 56:8-1, et seq. (“NJCFA”) protects consumers against “any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise…” N.J.S.A. 56:8-2. 83. Plaintiff and Class members are consumers who purchased and leased Class Vehicles. 85. Defendants have engaged in unfair and deceptive trade practices, including representing that the Class Vehicles have characteristics, uses, benefits, and qualities which they do not have; representing that the Class Vehicles are of a particular standard and quality when they are not; advertising Class Vehicles with the intent to not sell them as advertised; and otherwise engaging in conduct likely to deceive. Further, Subaru’s acts and practices described herein offend established public policy because of the harm they cause to consumers, motorists, and pedestrians outweighs any benefit associated with such practices, and because Subaru fraudulently concealed the defective nature of the Class Vehicles from consumers. 86. Subaru’s actions as set forth above occurred in the conduct of trade or commerce. 88. Plaintiff’s and other class members’ damages are the direct and foreseeable result of Defendants’ unlawful conduct. Had the Rotating Assembly Defect in the Class vehicles been disclosed, consumers would not have purchased or would have paid less for the Class Vehicles and would have been spared the subsequent expenses. 89. Pursuant to N.J. Stat. Ann. § 56:8-20, Plaintiff will serve the New Jersey Attorney General with a copy of this Complaint. 90. Plaintiff incorporates by reference each preceding and succeeding paragraph as though fully set forth and length herein. 92. Both of these warranties became part of the basis of the bargain. Accordingly, Defendants’ warranties are express warranties under state law. 93. The parts affected by the defect, including the connecting rod bearings and engines, were manufactured and distributed by Defendants in the Class Vehicles and are covered by the warranties Defendants provided all purchasers and lessors of Class Vehicles. 94. Defendants breached these warranties by selling and leasing Class Vehicles with the defect, requiring repair or replacement within the applicable warranty periods, and refusing to honor the warranties by providing free repairs or replacements during the applicable warranty periods. 95. Plaintiff notified Defendants of the breach within a reasonable time, and/or was not required to do so because affording Defendants a reasonable opportunity to cure its breach of written warranty would have been futile. Defendants also knew of the defect and yet chose to conceal it and to fail to comply with their warranty obligations. 97. Defendants’ attempt to disclaim or limit these express warranties vis- à-vis consumers is unconscionable and unenforceable under the circumstances here. Specifically, Defendants’ warranty limitation is unenforceable because they knowingly sold a defective product without informing consumers about the defect. 98. The time limits contained in Defendants’ warranty period were also unconscionable and inadequate to protect Plaintiff and members of the Class. Among other things, Plaintiff and Class members had no meaningful choice in determining these time limitations the terms of which unreasonably favored Defendants. A gross disparity in bargaining power existed between Subaru and the Class members, and Subaru knew or should have known that the Class Vehicles were defective at the time of sale and would fail well before their useful lives. A. The Rotating Assembly Defect within the Class Vehicles. BREACH OF EXPRESS WARRANTY (On Behalf of the Nationwide Class or, Alternatively, the California Class) ENGINE, TO WHICH I HAVE TO DISAGREE WITH. I PURCHASED THIS CAR NEW WITH NO RE-MANUFACTURED ON IT FROM THE FACTORY. SO WHY CAN A CAR MAKER PLACE RE-MANUFACTURED PARTS IN A EXTENDED WARRANTY. SUBARU NORTH AMERICA IS TRYING TO AVOID FIXING UNDER WARRANTY (AGAIN, IT SEEMS A NOT UNCOMMON PROBLEM). SUBARU CLAIMS OIL LEAKED OUT, BUT OIL MILES. STARTER FAILURE AT 9600 MILES (2/2011). REPORTED TO SOA. *TR Date Complaint Filed: 09/01/2011 Date of Incident: 08/05/2010 Component(s): ENGINE AND ENGINE COOLING NHTSA ID Number: 10423716 Consumer Location: CLIFTON PARK, NY MONTHS OF PRODUCTION ARE EXPERIENCING. SUBARU OF AMERICA HAS OFFERED NO EXPLANATION ABOUT WHY THIS HAPPENED OR WHY IT IS HAPPENING TO MANY OTHERS WHO OWN THIS CAR. MY WARRANTY IS SHOT FOR ANY FUTURE ENGINE WORK, THE DEALERSHIP ITSELF TOLD ME. I REFUSED TO SIGN ANY OF THEIR PAPERS, AND WILL BE AGGRESSIVELY PURSUING LITIGATION IF I DO OCCUR WITHOUT WARNING ON A CAR THAT IS LESS THAN 6 YEARS OLD WITH LESS THAN 100K MILES IS VERY CONCERNING TO ME. IF THE OTHER DRIVERS ON THE INTERSTATE HAD NOT BEEN PAYING AS OTHER 09 WRX THAT EXHIBIT THIS SAME DEFECT IN THE US. SIMILARLY I HAVE BEEN MADE AWARE OF 09 WRX EXHIBITING THIS SAME DEFECT IN BOTH CANADA AND AUSTRALIA, SOME LEGACY ROTATING ASSEMBLYFAILURE" WHICH CAUSED CATASTROPHIC ENGINE DAMAGE. SUBARU OF AMERICA DENIED THE REPAIR DUE TO THE ECM BEING MODIFIED, STATING "OUR ENGINEERS REVIEWED VIOLATIONS OF THE NEW JERSEY CONSUMER FRAUD ACT (N.J. STAT. ANN. § 56:8-1, et seq.) (On Behalf of the Nationwide Class) | win |
253,688 | (Alleging FLSA Violations) 11. Defendant is a “T-Mobile Premium Retailer” that according to the Employee Handbook it provided to Plaintiff, “is guided by a relentless focus to build a company that will be the leader in the wireless industry for T-Mobile products.” 12. According to its website, Defendant operates over 100 T-Mobile retail stores across the country. 13. Defendant typically staffs each of its retail stores with one Store Manager (“SM”) and one Assistant Store Manager (“ASM”). 14. Regardless of store location, Defendant’s SMs and ASMs are paid a salary. 15. Regardless of store location, Defendant has classified its SMs and ASMs as exempt from receiving overtime pay. 16. Regardless of store location, Defendant’s SMs and ASMs work over 40 hours per week. 17. Regardless of store location, Defendant does not pay its SMs and ASMs any 3 compensation for hours worked over 40 per week. 18. In addition to SMs and ASMs, Defendant also assigns sales employees to each store who it has classified as “non-exempt” from the FLSA. 19. Typically, Defendant assigns two (2) to three (3) non-exempt sales employees to each store. 20. All of Defendant’s store employees, including SMs and ASMs, are required to record their hours worked in Defendant’s internal timekeeping system. 21. Because there are not at least two full-time non-exempt employees per each SM and ASM at Defendant’s stores, SMs and ASMs do not customarily and regularly direct the work of the equivalent of two or more full-time employees as required by U.S. Department of Labor regulations. See 29 C.F.R. §541.100; id. at §541.104. Thus, Defendant’s SMs and ASMs cannot satisfy the “executive” exemption to the FLSA. See 29 U.S.C. §213(a). 22. From approximately March 2016 to June 2016, Plaintiff was employed by Defendant as a SM and was assigned to Defendant’s Cherry Hill, New Jersey store. 23. Defendant paid Plaintiff a salary as a SM and classified him as “exempt” from the FLSA’s overtime pay requirement. 24. Plaintiff often worked over 40 hours per week as a SM. In particular, Plaintiff estimates that he regularly was required to work approximately 55 hours during a typical week and sometimes more. 25. Defendant did not pay Plaintiff any compensation for hours worked over 40 per week while he was employed as a SM. 26. From approximately March 2016 until June 2016, Defendant’s Cherry Hill store 4 was staffed with a SM (Plaintiff), an ASM, and two (2) non-exempt sales employees. 27. Because Defendant assigned only two non-exempt employees to the Cherry Hill store, neither Plaintiff nor the ASM were able to customarily and regularly direct the work of two or more other employees to satisfy the executive exemption. See 29 C.F.R. §541.100; id. at §541.104. 28. Plaintiff brings his FLSA claim as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b), on behalf of: All SMs and ASMs employed by Defendant in the United States in the past three years. Plaintiff’s consent form to act as a representative party- Plaintiff in this FLSA overtime lawsuit is attached herein as Exhibit A. 29. Plaintiff’s FLSA claim should proceed as a collective action because Plaintiff and other potential members of the collective, having worked pursuant to the common policies described herein, are “similarly situated” as that term is defined in 29 U.S.C. § 216(b) and the associated decisional law. 30. All previous paragraphs are incorporated as though fully set forth herein. 31. Plaintiff and the collective are employees entitled to the FLSA’s protections. 32. Defendant is an employer covered by the FLSA. 33. The FLSA entitles employees to overtime compensation “not less than one and one-half times” their regular pay rate for all hours worked over 40 per week. See 29 U.S.C. § 207(a)(1). 34. Defendant violated the FLSA by failing to pay Plaintiff and the collective any compensation, including overtime premium compensation, for hours worked over 40 per week. 5 35. In violating the FLSA, Defendant acted willfully and with reckless disregard of clearly applicable FLSA provisions and, thus, has committed a willful violation of the FLSA. COMMON BUSINESS PRACTICES | win |
130,121 | 23. Pursuant to 29 U.S.C. § 207, Plaintiff seeks to prosecute her FLSA claim as a collective action on behalf of herself and others who currently work or formerly worked as Home Health Aides for VNSNY (the “Collective Action Members”) who worked a 24-hour shift at any time during the 3-year period immediately preceding the filing of the original complaint (the “FLSA Statutory Period”). 24. Plaintiff regularly worked 24-hour shifts for Defendant in which she was unable to sleep for at least 5 uninterrupted hours, for which she should have been paid in full, yet Defendant deducted 8 hours from her wages representing sleep time, in violation of the FLSA. 25. As a result, Defendant failed to compensate Plaintiff at the overtime premium rate for all hours worked in excess of 40 in a work week. 26. Defendant subjected Plaintiff and Collective Action Members to the same pay provision(s) in that Defendant failed to properly compensate either Plaintiff or the Collective Action Members for their hours worked. 27. The Collective Action Members are thus owed unpaid overtime wages under the FLSA for the same reasons as Plaintiff. 29. While the exact number of Class Members is presently unknown, it is estimated that there are at least 50 Class Members. 30. The group of potential Class Members is so numerous as to make it impracticable to bring them all before the Court, for which reason Plaintiff initiates this litigation for all persons similarly situated pursuant to Rule 23. 31. Despite the numerical size of the Class, the identities of Class Members can be ascertained through Defendant’s payroll records. 32. Plaintiff and her counsel do not anticipate any difficulties in the management of this action as a class action. 33. Plaintiff is committed to vigorous prosecution of this action, will adequately represent the purported Class Members in this action, and has retained competent counsel experienced in class action litigation. 34. Plaintiff is a Class Member and has no interest antagonistic to or in conflict with other Class Members. 35. This action raises numerous questions of law and fact which are of common and general interest to the Class Members, including: a. whether Defendants employed Class Members within the meaning of the 42. In or around September 2004, VNSNY hired Ms. Brown as a Home Health Aide working in VNSNY’s Partners in Care division, earning $6.70 per hour. 43. During her employment at VNSNY, Ms. Brown received raises as follows: a. October 2004: $7.20 per hour; b. June 2005: $7.50 per hour; c. June 2007: $7.75 per hour; d. July 2007: $8.00 per hour; e. September 2008: $8.50 per hour; f. January 2010: $9.00 per hour; g. October 2010: $9.25 per hour; h. February 2012: $9.50 per hour; and i. November 2013: $10.75 per hour. 44. As a Home Health Aide, Ms. Brown provided private home care for VNSNY’s clients on an on-call basis. 45. As an on-call Home Health Aide, Ms. Brown’s hours varied considerably from week to week, depending on VNSNY’s scheduling needs. 47. Ms. Brown was eligible for overtime pay throughout her employment at VNSNY. I. Wage-and-Hour Claims 48. Under the FLSA, when an employee is scheduled for a shift of 24 hours or more, an employer may exclude up to 8 hours that the employee spends sleeping at the worksite from the time for which the employee must be paid. 49. In order to legitimately exclude time spent sleeping from an employee’s wages, the employer must: a. pay the employee for any interruptions to sleep time by a call to duty; b. ensure that the employee can usually enjoy an uninterrupted night’s sleep of at least 5 consecutive hours; c. compensate the employee in full for the entire night if the employee is interrupted such that he or she cannot get reasonable periods of sleep totaling at least 5 hours; d. provide adequate sleeping facilities for the employee; e. have an express or implied agreement with the employee to exclude sleep time; and f. exclude no more than 8 hours in a fixed period as sleep time in each 24-hour shift. 50. From the beginning of her employment with VNSNY, Ms. Brown regularly worked 24-hour shifts for VNSNY. 52. Ms. Brown and VNSNY had an agreement according to which Ms. Brown would work for 16 of the scheduled 24 hours and sleep for the remaining 8 hours. 53. VNSNY would then deduct these 8 hours, representing Ms. Brown’s time spent sleeping, from Ms. Brown’s wages. 54. However, throughout Ms. Brown’s employment, VNSNY did not allow Ms. Brown to get uninterrupted sleep during the scheduled sleeping period. 55. VNSNY required Ms. Brown to call VNSNY every hour, on the hour, during 24- hour shifts—including during her designated sleeping period—to confirm that she was awake. 56. As a result, Ms. Brown was never able to sleep for even the FLSA–mandated minimum of 5 uninterrupted hours, much less the 8 hours which were deducted from her pay. 57. Under the FLSA, Ms. Brown should have been paid in full for the entire night, as VNSNY explicitly prevented her from sleeping for the mandatory minimum of 5 hours during her 24-hour shifts. 58. Yet VNSNY continued to deduct 8 hours representing sleep time from Ms. Brown’s wages, failing to compensate Ms. Brown whatsoever for these hours worked. 59. As a result, during weeks in which Ms. Brown worked overnight shifts and also worked over 40 hours in a work week, VNSNY failed to pay her at the overtime premium rate for all hours worked in excess of 40 per week. 60. Additionally, as a result of VNSNY’s failure to compensate Ms. Brown for these hours, Ms. Brown’s effective hourly rate during multiple weeks of her employment was less than the applicable New York State minimum wage. 62. Ms. Brown worked at least 72 hours per work week in each week of her employment from August 2014 through October 2014. 63. Throughout that time period, Ms. Brown’s regular pay rate was $10.75 per hour. 64. From December 31, 2013, through December 31, 2014, the New York State minimum wage was $8.00 per hour. 65. As a result of VNSNY’s failure to compensate Ms. Brown for all hours worked, her effective hourly rate during this time period fell below the New York State minimum wage. II. Sexual Harassment and Retaliation Claims 66. On or about October 14, 2015, Ms. Brown was working at the Bailey House, a client of Partners in Care located at 180 Christopher Street, New York, New York 10014. 67. Ms. Brown was doing laundry in the basement with another Home Health Aide, Maurice Poole, who was assigned to the same job. 68. After Mr. Poole left the basement, Ms. Brown finished the laundry and exited the basement, as well. 69. As Ms. Brown entered the corridor to the stairwell leading out of the basement, she found Mr. Poole waiting for her, exposing himself to her and openly masturbating. 70. Shocked and disturbed, Ms. Brown screamed and rushed upstairs. 71. Ms. Brown informed Raymond Young, a Bailey House Security Guard; a male Bailey House receptionist; and a female coordinator at the Bailey House front desk, known to Ms. Brown only as “Jeanette,” of what had transpired and complained about Mr. Poole’s conduct. 73. Ms. Brown gave the police officer VNSNY’s phone number to contact VNSNY. 74. Ms. Brown returned to Bailey House to finish her shift. 75. Ms. Brown did not see Mr. Poole at Bailey House. 76. Ms. Brown later learned that, due to Mr. Poole’s conduct, Bailey House had banned Mr. Poole from working at Bailey House. 77. However, since Mr. Poole was a VNSNY employee, not a Bailey House employee, Bailey House was unable to terminate or otherwise discipline Mr. Poole. 78. Upon information and belief, both Bailey House and the police contacted VNSNY to inform the company about the incident. 79. After Ms. Brown’s complaint of sexual harassment, VNSNY began to retaliate against her. 80. On or about October 19, 2015, Ms. Brown went to VNSNY’s offices located at 1250 Broadway, 9th Floor, New York, New York 10001. 81. After being buzzed in by the receptionist, Ms. Brown signed in and told the VNSNY receptionist that she wanted to make a complaint about a VNSNY employee. 82. The receptionist directed Ms. Brown to go to the payroll department window. 83. Ms. Brown went to the payroll department window, where she reiterated that she wanted to make a complaint about a VNSNY employee. 84. The payroll coordinator invited Ms. Brown to speak with her in the payroll department. 86. After explaining the incident, Ms. Brown asked what VNSNY was doing to correct the situation. 87. Rather than answer Ms. Brown’s question, however, VNSNY’s payroll coordinator reprimanded Ms. Brown for inquiring about Mr. Poole, claiming that it somehow constituted “harassment” on Ms. Brown’s part “to even be asking all these questions about him.” 88. The payroll coordinator also instructed Ms. Brown not to contact VNSNY’s Human Resources Department regarding Mr. Poole, telling Ms. Brown that VNSNY would consider such conduct “harassment” and that, if Ms. Brown ignored this prohibition, she could be “fired or further.” 89. Following this conversation, VNSNY stopped scheduling Ms. Brown for work. 90. In and around November 2015, Ms. Brown received a warning letter from VNSNY, stating that, as she had “not reported for work,” she was at risk of being terminated. 91. This was entirely untrue; Ms. Brown had not failed to report for work on any occasion throughout her employment at VNSNY. 92. In reality, VNSNY had not scheduled Ms. Brown for work since she reported the incident with Mr. Poole. 93. Far from failing to report for work, Ms. Brown had been repeatedly calling VNSNY to request job assignments—including contacting Cynthia Nita, her union representative, and Jason Connelly, VNSNY’s Executive President—to no avail. 94. Mr. Connelly simply told Ms. Brown, without explanation, that she should “look for another job.” 96. Yet Ms. Brown knew that VNSNY had continued to hire and schedule new Home Health Aides—including Ms. Brown’s own sister—during the time period in which Ms. Brown had not been scheduled for work. 97. Ms. Brown responded to VNSNY’s November 2015 letter, informing VNSNY that the letter’s contents were entirely false and again requesting that she be scheduled for work. 98. However, VNSNY continued to ignore Ms. Brown’s attempts to contact VNSNY for two months. 99. In and around January 2016, VNSNY sent Ms. Brown a termination letter, stating that she was being terminated because she had not called in for work and had taken a “leave of absence.” 100. VNSNY sent Ms. Brown another termination letter in February 10, 2016, giving the same reasons for her termination. 101. Ms. Brown, confused by VNSNY’s two letters, attempted to call VNSNY for clarification, but VNSNY ignored all of her communications. 102. In reality, VNSNY terminated Ms. Brown’s employment in retaliation for her complaints of sexual harassment. Unpaid Minimum Wage in Violation of the NYLL 115. Plaintiff, on behalf of herself and those similarly situated, hereby realleges and incorporates each and every allegation contained in paragraphs 1 through 114 with the same force as though separately alleged herein. 116. At all times relevant to this action, Plaintiff was employed by Defendant within the meaning of the NYLL. 117. The NYLL mandates that employers pay each of their employees for each hour worked at an hourly rate not less than the New York State minimum wage. 118. Defendant’s wages to Plaintiff resulted in an hourly rate below the applicable mandated New York State minimum wage. 119. Defendant violated Plaintiff’s rights under the NYLL by failing to pay her the minimum wage for hours worked. 120. Due to Defendant’s NYLL violations, Plaintiff is entitled to recover from Defendant her unpaid compensation, liquidated damages, interest and reasonable attorneys’ fees, costs, and interest related to the action. | lose |
149,619 | 12. Plaintiff brings claims for relief as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b), on behalf of all non-exempt employees (including cooks, line-cooks, food preparers, dishwashers, cleaning persons, waiters, busboys, runners, bartenders, barbacks and hostesses) employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (“FLSA Collective Plaintiffs”). 13. At all relevant times, Plaintiff and the other FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants’ decisions, policies, plans, programs, practices, procedures, protocols, routines, and rules, all culminating in a willful failure and refusal to pay them (i) compensation for all hours worked due to a policy of time-shaving and (ii) all overtime premium owed due to a policy of time-shaving. The claims of Plaintiff stated herein are essentially the same as those of the other FLSA Collective Plaintiffs. 14. The claims for relief are properly brought under and maintained as an opt-in collective action pursuant to §16(b) of the FLSA, 29 U.S.C. 216(b). The FLSA Collective Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this action, their names and addresses are readily available from the Defendants. Notice can be provided to the FLSA Collective Plaintiffs via first class mail to the last address known to Defendants. 28. Defendants unlawfully failed to pay Plaintiff, FLSA Collective Plaintiffs and Class members for all hours worked due to a policy of time-shaving. 29. Defendants unlawfully failed to pay Plaintiff, FLSA Collective Plaintiffs and Class members either the FLSA overtime rate (of time and one-half) or the New York State overtime rate (of time and one-half) for all hours they worked over 40 in a workweek, due to time-shaving. 30. Defendants unlawfully failed to pay Plaintiff and Class members the spread of hours premium for each workday that exceeded ten (10) hours, in violation of NYLL. 44. Plaintiff realleges and reavers Paragraphs 1 through 43 of this class and collective action Complaint as if fully set forth herein. 46. Defendants willfully violated Plaintiff’s and Class members’ rights by failing to pay them for all hours worked due to a policy of time-shaving. 47. Defendants willfully violated Plaintiff’s and Class members’ rights by failing to pay them overtime compensation at the rate of not less than one and one-half times the regular rate of pay for each hour worked in excess of forty hours in a workweek, due to time-shaving. 48. Defendants willfully violated Plaintiff’s and Class members’ rights by failing to pay them the spread of hours premium for each workday that exceeded ten (10) hours. 49. Defendants failed to properly notify employees of their hourly pay rate and overtime rate, in direct violation of the New York Labor Law. 50. Defendants failed to provide a proper wage and hour notice, at the date of hiring and annually, to all non-exempt employees per requirements of the New York Labor Law. 51. Defendants failed to provide proper wage statements with every payment as required by New York Lab. Law § 195(3). 52. Due to the Defendants’ New York Labor Law violations, Plaintiff and Class members are entitled to recover from Defendants their unpaid wages due to time-shaving, unpaid overtime, unpaid spread of hours premium, reasonable attorneys’ fees, liquidated damages, statutory penalties and costs and disbursements of the action, pursuant to New York Labor Law. VIOLATION OF THE FAIR LABOR STANDARDS ACT ON BEHALF OF PLAINTIFF AND FLSA COLLECTIVE PLAINTIFFS 33. Plaintiff realleges and reavers Paragraphs 1 through 32 of this class and collective action Complaint as if fully set forth herein. 34. At all relevant times, Defendants were and continue to be employers engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207 (a). Further, Plaintiff and FLSA Collective Plaintiffs are covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207 (a). 35. At all relevant times, Defendants employed Plaintiff and FLSA Collective Plaintiffs within the meaning of the FLSA. 36. At all relevant times, each of the Corporate Defendants had gross annual revenues in excess of $500,000.00. 37. At all relevant times, Defendants engaged in a policy and practice of refusing to pay Plaintiff and FLSA Collective Plaintiffs for all hours worked due to time-shaving. VIOLATION OF THE NEW YORK LABOR LAW ON BEHALF OF PLAINTIFF AND CLASS MEMBERS | win |
392,658 | 12. Defendant PLANNERNET acts as a temporary staffing agency that provides its clients with attendee personnel for seminars, conferences, symposia, trade shows, corporate meetings, and dinners at various events throughout the United States and in California (hereinafter “Client Events.”). PLANNERNET Client Events range from “small format” meetings, such as private corporate dinners, to “Large Format” meetings such as at Oracle’s “OpenWorld,” which draws thousands of attendees over the course of a week. 30. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 31. During the Class Period, the Plaintiff Class worked, on many occasions, in excess of 8 hours in a workday and/or 40 hours in a workweek. The precise number of overtime hours will be proven at trial. 32. During the Class Period, Defendant refused to compensate the Plaintiff Class for all of the overtime wages earned, in violation of the applicable IWC Wage Order and provisions of the California Labor Code. 33. Moreover, during said time period, Plaintiff and many of the putative Class Members were employed by and thereafter terminated or resigned from their positions with Defendant, yet were not paid all overtime wages due upon said termination or within 72 hours of said resignation of employment therefrom. Said non-payment of all wages due was the direct and proximate result of a willful refusal to do so by the Defendant. 34. At all relevant times, Defendant was aware of, and under a duty to comply with, the overtime provisions of the California Labor Code including, but not limited to, California Labor Code §§ 510, 1194, and 1198. 37. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 38. Plaintiff and putative Class Members are entitled to meal periods in which they were relieved of all job duties. Instead, Plaintiff believes, and thereupon alleges, that Defendant did not schedule meal periods and required Plaintiff and putative Class Members to work through their meal periods and to remain on-duty throughout their shift. Plaintiff is informed, believes, and thereupon alleges that Defendant also interfered with putative Class Members’ ability to take timely, off-duty meal periods by refusing to allow them the freedom to leave the premises of their assigned event, or otherwise completely relieve themselves of all duties while at an event. Moreover, no “on duty” written meal period agreement and/or waiver, valid or otherwise, affected Plaintiff’s and the putative Class Members’ entitlement to meal periods. Furthermore, neither Plaintiff nor any putative Class Member ever meets any known test for exemption from the entitlement to meal and rest periods. Thus, Defendant violated California Labor Code §§ 226.7 and 512 and applicable Wage Orders. 39. Plaintiff is informed and believes, and thereupon alleges, that Defendant required Plaintiff and putative Class Members to work without receiving timely rest breaks to which they were entitled. 42. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 43. Wages are defined in California Labor Code section 200 and include all amounts for labor performed. 44. Hours worked pursuant to IWC Order No. 5-2001 includes “…time during which an employee is subject to the control of an employer and includes all the time the employee is suffered or permitted to work whether or not required to do so.” 45. Plaintiff and Class Members were paid a flat rate per job, calculated by multiplying a set number of hours by a non-negotiable hourly rate. Plaintiff and Class Members did not receive any additional pay for any additional time they were engaged, suffered, or permitted to work by Defendant. For example, before “large format” events, Defendant would send Plaintiff event materials that she had to review, prepare, and bring to the event. After the event, Plaintiff would have to mail the materials. This time was unpaid by Defendant. 46. As an actual and proximate result of Defendant’s unlawful acts, Plaintiff and Class Members have been deprived of compensation in an amount according to proof at the time of trial, and are entitled to recovery of such amounts, plus interest thereon, attorneys’ fees, and costs pursuant to Labor Code sections 218.5 and 218.6. 48. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 49. California Labor Code section 201.3 requires payment of wages to “temporary services workers” “no less frequently than weekly, regardless of when the assignment ends,” or daily, if the worker’s duties meet the criteria under section 201.3(b)(1)(B)(2). California Labor Code section 204 requires payment wages for all other workers no less than twice during each calendar month. 50. Defendant paid Class Members on a “Net-60” basis or no sooner than 60 days following the completion of their temporary assignments. 51. As a direct and proximate result of Defendant’s willful conduct in failing to timely pay the Plaintiff Class for all hours worked, these affected putative Class Members are entitled to recover penalties pursuant to California Labor Code §§ 210, 558, and 2698 et seq. in an amount to be established at trial, together with interest thereon, and attorneys’ fees and costs. Wherefore, the Plaintiff prays for judgment as set forth below. 52. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 56. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 57. California Labor Code section 2802 provides that “an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . . .” 58. In the direct discharge of their duties as employees of Defendant, Plaintiff and putative Class Members performed tasks and took actions for which they expended their personal funds, including but not limited to payment of a mandatory $50 “application fee” in order to be hired by PLANNERNET, parking fees, and use of personal cell phones for business related communications at events. For example, on April 3-5 2016, Plaintiff incurred parking fees of up to $20 per day, and was told to use her cell phone to text PLANNERNET employees with any issues that came up at the event. Those steps and actions were performed in the course and scope of her employment with Defendant. 61. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 62. Defendant has failed to provide timely, accurate itemized wage statements to the Plaintiff and putative Class Members in accordance with California Labor Code §§ 226 and 1174. Plaintiff is informed and believes and, on that basis, alleges that the statements provided by Defendant do not accurately reflect the actual gross wages earned, net wages earned, or the appropriate deductions of such putative Class Members. 63. Plaintiff and putative Class Members suffered injury because Defendant failed to provide accurate itemized wage statements that gave Class Members insufficient information to accurately monitor the number of hours worked and challenge any payments received. Consequently, Defendant is liable to Plaintiff and the putative Class Members s for penalties provided by California Labor Code §226(e) in amounts to be determined at trial. 64. Plaintiff seeks to recover actual damages, costs, and attorneys’ fees under these provisions on behalf of herself and on behalf of the Plaintiff Class. Wherefore, Plaintiff prays for judgment as set forth below. 65. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 72. Plaintiff incorporates in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 73. Plaintiff, as an aggrieved employee, brings this claim pursuant to California Labor Code §§ 2698-2699 on behalf of herself and all other current or former similarly aggrieved Plannernet employees in California at any time for which recovery is authorized under Labor Code §§ 2698-2699, et seq. Pursuant to California Labor Code § 2699.3, On October 21, 2016, Plaintiff Champagne, by and through her counsel, filed online and sent notice by certified mail to the Labor and Workforce Development Agency (LWDA) and Defendants of the specific provisions of the Labor Code that have been violated (“PAGA Notice”), including the facts and theories to support the violations. The LWDA has not responded to Plaintiff’s PAGA Notice as of the date of this Complaint. Plaintiff thus has complied with the PAGA notice requirement. 74. As alleged above, Defendant has violated the provisions of the California Labor Code, specifically the failure to pay overtime, provide meal and rest periods, reimburse business expenses, timely pay owed wages for all hours worked, and provide accurate itemized wage statements. Plaintiff seeks recovery of unpaid wages and penalties resulting from said violations on behalf of herself and all other similarly aggrieved Plannernet employees in California at any time for which recovery is authorized under California Labor Code §§ 2698-2699. 75. Pursuant to California Labor Code § 2699, Plaintiff is entitled to recover civil penalties for Defendant’s violations of Labor Code sections 201, 201.3, 204, 210, 226, 226.3, 226.7, 402, 510, 512, 558, 1174, 1174.5, 1194, 1198, and 2802. FAILURE TO PAY OVERTIME (Violation of California Wage Orders and Labor Code §§ 510, 1194, 1198) FAILURE TO PAY WAGES (California Labor Code §§ 200, 201.3, 218.6, 1194, 1194.2, 1197) FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS (California Labor Code §§ 226, 1174) FAILURE TO TIMELY PAY ALL WAGES DUE (California Labor Code §§ 201.3, 204) FAILURE TO PROVIDE MEAL AND REST PERIODS OR PAY MEAL AND REST PERIOD PREMIUMS (California Labor Code §§ 226.7, 512) FAILURE TO PAY WAGES UPON RESIGNATION AND TERMINATION (California Labor Code § 203) FAILURE TO REIMBURSE BUSINESS EXPENSES (California Labor Code § 2802) RECOVERY UNDER PRIVATE ATTORNEYS GENERAL ACT (PAGA) (California Labor Code § 2698, et seq.) UNFAIR BUSINESS PRACTICES UNDER THE UNFAIR COMPETITION LAW (California Business & Professions Code §§ 17200-17208) | win |
206,483 | 17. At all times relevant, Plaintiff is and was an individual residing in the County of San Diego, within the State of California. 18. Upon information and belief, at all times relevant, Defendant conducted business in the State of California. 19. Sometime prior to April of 2017, Plaintiff allegedly incurred a debt to an original creditor, BorrowersFirst, Inc. (“BorrowersFirst”). Afterwards, the alleged debt was assigned, placed, or otherwise transferred to Defendant for collection. 42. Plaintiff brings this action on behalf of himself and all others similarly situated, as a member of the following proposed classes (the “Classes”). 43. Plaintiff represents, and is a member of Class A, consisting of: All persons within the United States who received an initial correspondence from Defendant or its agent/s and or employee/s, that is identical or substantially similar to the October 2, 2017 correspondence Plaintiff received from Defendant, within the one year prior to the filing of this Complaint. 54. Plaintiff repeats, re-alleges, and incorporates by reference, all other paragraphs of this Complaint as though fully stated herein. 55. The foregoing acts and omissions constitute numerous and multiple violations of the FDCPA, 15 U.S.C. §§ 1692, et seq., including but not limited to each and every one of the above-cited provisions of the FDCPA. FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §§ 1692, ET SEQ. (FDCPA) | lose |
157,079 | 10. Which is why Hardee Jr. teaches his agents what he calls the “Mojo system,” named after the Mojo Dialer, a web-based based autodialer that provides “Automated multi-line power dialing up to 300 calls per hour.”3 13. By placing the unsolicited telephone calls at issue in this Complaint, Defendant caused Plaintiff and the other members of the Classes actual harm and cognizable legal injury. 14. This includes the aggravation and nuisance and invasions of privacy that result from the unsolicited autodialed telephone calls that are being made to cellular phones, and a loss of the use and enjoyment of their phones, including wear and tear to the related data, memory, software, hardware, and battery components, among other harms. 15. In response to Defendant’s unlawful conduct, Plaintiff files this action seeking an injunction requiring Defendant to cease all unwanted autodialed call activities and an award of statutory damages to the members of the Classes under the TCPA. 16. Plaintiff Huzar registered his cellular number on the National Do Not Call Registry on June 4, 2005 in order to avoid receiving unsolicited telemarketing calls. 17. Despite having his cell phone number registered on the DNC at the time, Plaintiff received no fewer than 3 unsolicited autodialed call from Century 21 Hardee-Team Realty, on March 14, 2018 at 8:04 AM from phone number 330-329-1012, on March 14, 2018 at 8:18 AM from phone number 281-627-8517, and on March 15, 2018 at 8:21 AM from phone number 832- 691-8600. 18. A number of the calls began with dead air before the agent on the line spoke, which is indicative of the use of an autodialer. 20. Despite his request for the calls to stop, Plaintiff received another unsolicited, autodialed call the next day, during which the Hardee agent refused to identify how she obtained Plaintiff’s cell phone number. 21. Notably, until March 13, 2018, Plaintiff’s uncle’s property was listed for sale by Stromatt and Associates, Inc.21 The listing contained the contact information for the agent that was representing the property, Dave Stromatt, but did not contain Plaintiff’s uncle’s phone number, much less Plaintiff’s phone number: 22. Plaintiff has never provided his phone number to Defendant or any other party from which Defendant’s agents may have purchased leads for real estate listings. Simply put, Huzar has never provided his prior express written consent to Defendant to place solicitation telephone calls to him. 24. Seeking redress for these injuries, Plaintiff, on behalf of himself and Classes of similarly situated individuals, brings suit under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., which prohibits unsolicited autodialed voice calls to cellular telephones and unsolicited calls to telephone numbers registered on the DNC. 26. The following individuals are excluded from the Classes: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, its subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest and their current or former employees, officers and directors; (3) Plaintiff’s attorneys; (4) persons who properly execute and file a timely request for exclusion from the Classes; (5) the legal representatives, successors or assigns of any such excluded persons; and (6) persons whose claims against Defendant have been fully and finally adjudicated and/or released. Plaintiff anticipates the need to amend the Class definitions following appropriate discovery. 27. Numerosity: On information and belief, there are hundreds, if not thousands of members of the Classes such that joinder of all members is impracticable. 29. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the Classes, and has retained counsel competent and experienced in class actions. Plaintiff has no interests antagonistic to those of the Classes, and Defendant has no defenses unique to Plaintiff. Plaintiff and his counsel are committed to vigorously prosecuting this action on behalf of the members of the Classes, and have the financial resources to do so. Neither Plaintiff nor his counsel has any interest adverse to the Classes. 31. Plaintiff repeats and realleges paragraphs 1 through 30 of this Complaint and incorporates them by reference herein. 32. Defendant and/or its agents agent transmitted unwanted solicitation telephone calls to cellular telephone numbers belonging to Plaintiff and the other members of the Autodialed No Consent Class using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and/or receive and store lists of phone numbers, and to dial such numbers, en masse, without human intervention. 33. At no time did Defendant obtain prior consent from the Plaintiff orally or in writing to receive solicitation telephone calls. Also, at no time did Defendant obtain prior express written consent that contained a disclosure informing Plaintiff or any other consumer that agreeing to receive solicitation telephone calls was not a condition of the purchase of any property or service. 34. Defendant has, therefore, violated 47 U.S.C. § 227(b)(1)(A)(iii). As a result of Defendant’s conduct, Plaintiff and the other members of the Autodialed No Consent Class are each entitled to, under 47 U.S.C. § 227(b)(3)(B), a minimum of $500.00 in damages for each violation of such act. 36. Plaintiff repeats and realleges paragraphs 1 through 30 of this Complaint and incorporates them by reference herein. 37. Defendant placed unsolicited and unwanted autodialed phone calls to Plaintiff and the other members of the Autodialed Stop Class on their cellular telephones after they had informed Defendant to stop calling them. 38. Defendant placed the unwanted phone calls using equipment that had the capacity to store or produce telephone numbers to be called and/or texted using a random or sequential number generator, and/or receive and store lists of phone numbers, and to dial such numbers, en masse. 39. By unwanted autodialed phone calls to Plaintiff and other members of the Autodialed Stop Class’s cellular telephones using an automated telephone dialing system after they requested to no longer receive such calls, Defendant violated 47 U.S.C. § 227(b)(1)(B) by doing so without prior express written consent. 40. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the Autodialed Stop Class suffered actual damages in the form of monies paid to receive the unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA. 42. Plaintiff repeats and realleges paragraphs 1 through 30 of this Complaint and incorporates them by reference herein. 43. 47 U.S.C. § 227(c) provides that any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may” bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. 44. The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.” 46. 47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity. The procedures instituted must meet the following minimum standards: 47. Defendant violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated, telephone solicitations to wireless telephone subscribers such as Plaintiff and the Do Not Call Registry Class members who registered their respective telephone numbers on the National Do Not Call Registry, a listing of persons who do not wish to receive telephone solicitations that is maintained by the federal government. These consumers requested to not receive calls from Defendant, as set forth in 47 C.F.R. § 64.1200(d)(3). 48. Defendant also violated 47 C.F.R. § 64.1200(d) by failing to have a written policy of dealing with do not call requests, by failing to inform or train its personnel engaged in telemarketing regarding the existence and/or use of any do not call list, and by failing to internally record and honor do not call requests. 49. Defendant made more than one unsolicited telephone call to Plaintiff and other members of the Do Not Call Registry Class within a 12-month period without their prior express consent to receive such calls. Plaintiff and other members of the Do Not Call Registry Class never provided any form of consent to receive telephone calls from Defendant and do not have a current record of consent to place telemarketing calls to his registered phone numbers. 51. Defendant violated 47 U.S.C. § 227(c)(5) Plaintiff and the Do Not Call Registry Class received more than one telephone call in a 12-month period made by or on behalf of Defendant in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47 U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R. § 64.1200. 52. To the extent Defendant’s misconduct is determined to be willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by the members of the Do Not Call Registry Class. 9. Hardee’s marketing plan directs agents to market its realty services through unsolicited, autodialed calls to cellular phone numbers and other telephone numbers registered on the DNC, with the call recipients’ consent. This is because Chris Hardee Jr., owner of Defendant Hardee, believes that “agents who cold call give the best service, [and] sell the most homes.”2 At Hardee’s Direction, Hardee Agents Repeatedly Called Plaintiff’s Cell Phone Number Without Plaintiff’s Consent, Despite it Being Listed on the DNC, and Despite Plaintiff’s Demand that the Calls Stop Class Treatment Is Appropriate for Plaintiff’s TCPA Claims Arising From Calls Made by Hardee Agents at Hardee’s Direction Hardee Directs Agents to Market Its Services by Obtaining Lists of Leads and Repeatedly Autodialing Them Without Consent Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Autodialed Stop Class) Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff Huzar and the Do Not Call Registry Class) Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Autodialed No Consent Class) | win |
381,677 | CREF SOCIAL CHOICE ACCOUNT; TIAA GLOBAL PUBLIC INVESTMENTS, MBS LLC; TIAA-CREF DURATION CORPORATE BOND PORTFOLIO; PIMCO FUNDS: PRIVATE ACCOUNT PORTFOLIO SERIES DUTY OF INDEPENDENCE (In The Right Of The Trustee And On Behalf Of The Trusts Against HSBC) ............................................................................ 152 FOURTH CAUSE OF ACTION BREACH OF FIDUCIARY DUTY – DUTY OF CARE (In The Right Of The Trustee And On Behalf Of The Trusts Against HSBC) ............................................................................................................... 154 FIFTH CAUSE OF ACTION NEGLIGENCE – DUTY OF CARE (In The Right Of The Trustee And On Behalf of the Trusts Against HSBC) ....................................... 156 OF POST-DEFAULT DUTY OF INDEPENDENCE (In The Right Of The Trustee And On Behalf Of The Trusts Against HSBC) .......................................... 158 XIX. CLASS ACTION ALLEGATIONS ............................................................................... 160 XX. PORTFOLIO SERIES EMERGING MARKETS PORTFOLIO; PIMCO FUNDS: PRIVATE ACCOUNT PORTFOLIO SERIES SHORT-TERM PORTFOLIO; PIMCO GLOBAL CREDIT OPPORTUNITY MASTER FUND LDC; Trustee And On Behalf Of The Trusts Against HSBC) ................................................. 142 SECOND CAUSE OF ACTION VIOLATION OF THE TRUST INDENTURE ACT OF 1939, 53 STAT. 1171 (In The Right Of The Trustee And On Behalf Of The Trusts Against HSBC) ............................................................................ 149 VII. BACKGROUND - THE TRUSTEE’S ROLE AS GATEKEEPER IN THE SECURITIZATION PROCESS ....................................................................................... 34 | lose |
362,676 | 11. In addition, RPI alleges HSBC discovered and knew of numerous loan servicer events of default (“Events of Default”) committed by the loan Servicers or Master Servicers (collectively “Servicers”) under the Governing Agreements, but failed to give notice and cure those Events of Default. HSBC also willfully failed to discharge its fiduciary duty to protect the interests of the certificateholders following the Events of Default, once again, electing to place its conflicted financial self-interest ahead of the interests of certificateholders. 12. The Complaint expressly and repeatedly alleges that HSBC acted negligently and engaged in willful misconduct. See ¶¶148, 150, 152, 154, 156, 174, 176. 13. For example, the Complaint describes lawsuits regarding specific loans in the specific Covered Trusts that informed HSBC that there were numerous defective mortgage loans in the Covered Trusts that breached the Warrantors’ representations and warranties. ¶95. Moreover, HSBC had granular visibility into the breaches of representations and warranties, such as misstated income or debt ratios, learned through the bankruptcies of the mortgage loan borrowers and through the due diligence of its own affiliates. ¶¶98-104. 15. In defending itself against the Litigation, HSBC has and continues to spend an enormous amount on legal expenses, which has been paid from the assets of the Covered Trusts – the investors’ money. As of the filing of this complaint, it has filed an unsuccessful motion to dismiss the Litigation Complaint, opposed two class certification motions, engaged in a “scorched earth” defense strategy, and engaged in unmeritorious discovery practice. It has undertaken wholly irrelevant and wasteful discovery, including harassing plaintiff with 176 individual requests for admission, serving approximately 25 non-party subpoenas, and taking irrelevant or duplicative fact and expert depositions, again using the investors’ money. 17. Despite the excessive legal expenses racked up in the Litigation, HSBC has not paid or advanced its own legal costs and attorney fees, nor has it sought to control its litigation expenses. As a result, the Covered Trusts, and by way of the beneficial ownership structure of the RMBS in the Covered Trusts, RPI and the class, have been improperly and illegally paying for HSBC’s defense in the Litigation, even though HSBC’s negligence, willful conduct and bad faith as alleged (and being proven through discovery) in failing to perform its mandated duties for investors is the cause of the Litigation. Perversely, the investors were damaged by HSBC’s wrongdoing in the Litigation and now HSBC is defending such wrongdoing with the funds of the investors it wronged. 18. Because the certificateholders are the sole beneficiaries of the Covered Trusts, HSBC’s improper use of the Covered Trusts’ funds reduces the amount of money that the certificateholders are entitled to receive as part of their beneficial ownership of the certificates. Certificateholders have a beneficial interest in the interest and principal payments derived from the mortgage loans that serve as the corpus for each Covered Trust. However, before the certificateholders receive their monthly remittances, the trustee (and certain other deal parties) to the Governing Agreements may withdraw funds from the Covered Trusts’ assets to pay for their costs administering the trust or servicing the loans. 20. The obligations, duties and rights of HSBC as trustee for the Covered Trusts are expressly delineated in the Covered Trusts’ Governing Agreements, known as “Pooling and Servicing Agreements” (or “PSAs”) and documents related thereto. All of the Governing Agreements for the other Covered Trusts are substantially similar to and are incorporated herein by reference. The three Governing Agreements are attached hereto as Exhibits A, B, and C. 21. Each PSA is governed by New York state law. See Ex. A, DBALT 2006-AR5 PSA §12.4.; Ex. B, FHLT 2006-C PSA §10.03; Ex. C, WFHET 2006-2 PSA §11.04. 22. The purpose of having trustees, such as HSBC, for the Covered Trusts is to ensure that there is at least one independent party to the Governing Agreements that – unlike plaintiff and the class – does not face collective action, informational, or other limitations, thereby allowing and requiring the trustee to protect the interests of plaintiff and the class, and administer the Covered Trusts for their benefit. 24. While the PSAs contain a number of provisions governing the indemnification of legal fees and costs related to the discharge of HSBC’s mandated duties under the Governing Agreements, there are some significant restrictions of HSBC’s ability to use Covered Trust funds. Absent from these provisions is any unequivocal language explicitly indemnifying lawsuits between indemnitor and indemnitee, parties to the Governing Agreements or beneficiaries themselves to be enforced under New York contract law, as required to be applied by the PSAs. For purposes of the Litigation, the certificateholders suing the trustee operate functionally similar to a first-party lawsuit as it pertains to indemnification provisions. Accordingly, in the Litigation, the purported indemnitor is suing the indemnitee and indemnification is prohibited by New York law. 25. Most relevant to the Litigation and this action is §8.05 of the FHLT 2006-C PSA, which prohibits trustee HSBC from using funds from the Covered Trusts whenever HSBC’s conduct is “incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder.” Ex. B, FHLT 2006-C PSA §8.05(a); see also Ex. A, DBALT 2006-AR5 PSA §9.5 (prohibiting indemnification for “any loss, liability or expense incurred by reason of willful misfeasance, bad faith or gross negligence by the Trustee”); Ex. C. WFHET 2006-2 PSA §8.05 (prohibiting indemnification for “any such expense, disbursement or advance as may arise from [Trustee’s] gross negligence or bad faith”). 27. In the Litigation, RPI alleged that “HSBC’s failures to act, and its breaches and violations alleged herein, were grossly negligent and willful misconduct.” ¶148; see also ¶¶150, 152, 154, 156, 174, 176. Indeed, the Governing Agreements provide that “[n]o provision of this Agreement shall be construed to relieve the Trustee . . . from liability for its own negligent action, its own negligent failure to act or its own misconduct.” See, e.g., Ex. C, WFHET 2006-2 PSA §8.01. 28. In addition, under New York law, it is well settled that parties are responsible for their own legal fees and expenses. Therefore, where, as in the Litigation, the dispute is between or among parties to an agreement, indemnification for legal fees and expenses is prohibited unless expressly stated in the contract. The Governing Agreements do not authorize indemnification for legal expenses or costs in internecine disputes between the parties to the Governing Agreements, including the Litigation. 29. Moreover, the Governing Agreements do not contain provisions providing for an advancement of HSBC’s legal fees and costs. HSBC may only receive indemnification and subsequent reimbursement of those fees and costs which are permitted, and only if it can establish that the fees and costs are expressly permitted – which here, they are not. See Ex. C, WFHET 2006- 34. The members of the class are so numerous that joinder of all members is impracticable. While the exact number of class members is unknown to plaintiff at this time and can only be ascertained though appropriate discovery, plaintiff believes that there are at least hundreds of members of the proposed class. Record owners and other members of the class may be identified from records maintained by HSBC, Depository Trust Company or others and may be notified of the pendency of this action by mail, using the form of notice similar to that customarily used in securities class actions. 35. Plaintiff’s claims are typical of the claims of the members of the class, as they all acquired RMBS certificates in the Covered Trusts and held the RMBS certificates during the time when HSBC began impermissibly billing the Covered Trusts for its Litigation fees and costs; all the claims are based upon the Governing Agreements for the three Covered Trusts at issue; HSBC’s alleged misconduct was substantially the same with respect to all class members; and all class members suffered similar harm as a result. Thus, all members of the class are similarly affected by HSBC’s contractual breaches and common law violations that are alleged herein. 36. Plaintiff will fairly and adequately protect the interests of the members of the class and has retained counsel competent and experienced in class action and RMBS litigation. 38. Common questions of law and fact exist as to all members of the class and predominate over any questions solely affecting individual members of the class. Among the questions of law and fact common to the class are: (a) whether HSBC is contractually permitted under the Governing Agreements to receive indemnification of any of its legal fees and costs from the Covered Trusts incurred in relation to the Litigation; (b) whether HSBC must seek indemnification from the Warrantors and/or Servicers for legal fees and costs incurred in relation to the Litigation; (c) whether HSBC is permitted to obtain indemnification of legal fees and costs incurred in relation to the Litigation because of willful misconduct, bad faith or negligence in the performance of any of its duties; (d) whether HSBC’s legal fees and costs incurred in relation to the Litigation were unreasonable; (e) whether HSBC, as trustee, was permitted to bill the Covered Trusts for the Litigation expenses as a principle of trust law; (f) whether HSBC’s conduct in obtaining its legal fees and costs out of the Covered Trusts’ assets is tortious or inequitable; and (g) whether HSBC is entitled to the advancement of its legal fees and costs incurred in relation to the Litigation. 40. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 41. As set forth in detail above, the Governing Agreements are contracts setting forth the duties HSBC owed to plaintiff, the class and the Covered Trusts, along with the conditions and limitations governing its rights to indemnification or use of Covered Trust funds. HSBC took actions not permitted by the Governing Agreements or by New York law, including, without limitation: (a) using Covered Trust funds for legal fees and costs HSBC incurred in defending the Litigation because the Governing Agreements and New York law do not permit indemnification of first-party claims or those between indemnitor and indemnitee; (b) using the Covered Trust funds for legal fees and costs incurred in defending against allegations of negligence, bad faith and willful misconduct in the Litigation because the Governing Agreements and New York law prohibit the use of Covered Trust funds for such purposes; (c) using the Covered Trust funds for unreasonable legal fees and costs incurred in defending itself in the Litigation; and (d) obtaining advancement of its legal fees and costs from the Covered Trusts incurred in relation to the Litigation. 43. Plaintiff and the class did not receive the benefit of their bargain under the Governing Agreements when HSBC took actions that resulted in the payment of legal fees and costs from the Covered Trusts incurred in defending against allegations of bad faith and willful or negligent misconduct. 44. Furthermore, plaintiff and the class did not receive the benefit of their bargain under the Governing Agreements when HSBC took actions that resulted in it receiving an advancement of legal fees and costs from the Covered Trusts incurred in relation to the Litigation. 45. Finally, plaintiff and the class did not receive the benefit of their bargain under the Governing Agreements when HSBC billed unreasonable legal fees and costs to the Covered Trusts. 46. As a result of HSBC’s multiple breaches of the Governing Agreements alleged herein, HSBC is liable to plaintiff, the class and the Covered Trusts for the damages they suffered as a direct result of HSBC’s actions alleged herein in contravention of the Governing Agreements. 48. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 49. HSBC has received a specific benefit from its use of the Covered Trust funds for legal fees and costs at the expense of plaintiff and the class. 50. As trustee, HSBC had a fiduciary relationship to plaintiff, the class and the Covered Trusts, and HSBC was aware of that relationship. 51. In light of the egregious use of Covered Trust funds to finance the defense of the Litigation, restitution is necessary because equity and good conscience cannot permit HSBC to retain the legal fees and costs. 52. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 53. As described above, HSBC’s administration of the Covered Trusts and the funds therein must only be for the benefit of the certificateholders unless provided for by the Governing Agreements. 54. By using Covered Trust funds for unlawful and unreasonable legal fees and costs, HSBC has wrongfully converted Covered Trust funds belonging to plaintiff and the class. 56. At no point did plaintiff or class members consent to HSBC’s use of Covered Trust funds for defending itself in the Litigation. 57. HSBC’s conduct was gross, willful and wanton, and at the least was undertaken with reckless disregard of plaintiff’s rights, and therefore warrants the imposition of punitive damages. 58. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 59. Under the common law, HSBC had a duty to plaintiff and the class to only seek indemnification of permitted legal fees and costs incurred for the benefit of the Covered Trusts. 60. As a result of HSBC’s actions in relation to allegations in the Litigation, HSBC is not entitled to indemnity. 61. HSBC breached its duty of trust owed to plaintiff and the class by advancing its own interests at the expense of plaintiff and the class, because it is being sued in the Litigation in its capacity as trustee for failing to protect the interests of plaintiff and the class but billing the Covered Trusts for its defense. Accordingly, the legal fees and expenses incurred in defending itself in the Litigation are for the exclusive benefit of HSBC and not for the benefit of the Covered Trusts. 62. In addition, HSBC breached its duty of trust owed to plaintiff and the class by seeking unreasonable legal fees and expenses from the Covered Trusts assets. 64. As a result of HSBC’s breach of its duty of trust, unpermitted legal fees and costs were billed to and paid from the Covered Trusts assets, causing the plaintiff and class damages. 65. HSBC’s conduct was gross, willful and wanton, and at the least was undertaken with reckless disregard of plaintiff’s rights, and therefore warrants the imposition of punitive damages. 66. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 67. As an RMBS trustee, HSBC had, and continues to have, a fiduciary relationship with and duty to certificateholders regarding the assets of the Covered Trusts in which certificateholders have a beneficial interest. 68. The funds held in the Covered Trusts are entrusted to HSBC’s administration and oversight. 69. HSBC’s fiduciary duty and control of entrusted funds impose a burden of accounting. 70. Plaintiff and the class require an accounting of the legal fees and costs paid for using Covered Trust assets to determine the amount improperly taken. 71. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 73. Plaintiff seeks a declaration that HSBC is not permitted indemnification from the Covered Trusts for any loss, liability or expense associated with the Litigation, and that HSBC is not entitled to draw against the Covered Trusts for the purpose of advancing its attorneys’ fees and expenses associated with the Litigation. The requested declaratory judgment will serve a useful purpose in clarifying and settling the legal issue regarding whether HSBC is entitled to indemnity from the Covered Trusts against any loss, liability or expense associated with the Litigation. 9. RPI is the plaintiff in the Litigation currently proceeding against HSBC. In that case, RPI alleges that HSBC failed to fulfill its duties as trustee of the Covered Trusts and thereby damaged RPI and the class of RMBS certificateholders. The operative complaint in the Litigation (the “Complaint”) is found at Dkt. No. 1 of the Litigation and incorporated by reference herein.1 Breach of Contract Breach of Trust Conversion Declaratory Judgment Regarding HSBC’s Right to Indemnification for Legal Fees and Costs Incurred in Defending the Litigation from the Covered Trusts Equitable Accounting Unjust Enrichment | lose |
41,397 | (Breach of Contract) 208. Plaintiffs repeat and reallege each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 209. Plaintiffs and members of the Class entered into employment contracts with Defendants. 210. Plaintiffs and members of the Class fully performed all their obligations under the employment contracts. 211. Defendants breached the employment contracts by failing to pay wages required to be paid by the contracts to the Plaintiffs and members of the Class. 212. Defendants’ breach has caused Plaintiffs and members of the Class to suffer damages. 213. As a result of Defendants’ breach of the employment agreements Plaintiffs and members of the Class have been damaged in an amount to be determined at trial. 17. Pursuant to 29 U.S.C. §207, Plaintiffs seek to prosecute their FLSA claims as a collective action on behalf of all persons who are or were formerly employed by Defendant at any time since April 13, 2011 (time tolled by failure to post notice) to the entry of judgment in this case (the “Collective Action Period”), who were non-exempt employees within the meaning of the FLSA and who were not paid minimum wages and/or overtime compensation at rates not less than one and one-half times the regular rate of pay for hours worked in excess of forty hours per workweek (the “Collective Action Members”). 18. Upon information and belief, Defendants did not post a notice indicating that the warehouse employees had a right to minimum wages and/or overtime wages. 20. Plaintiffs will fairly and adequately protect the interests of the Collective Action Members and have retained counsel that is experienced and competent in the fields of employment law and class action litigation. Plaintiffs have no interests that are contrary to or in conflict with those members of this collective action. 21. A collective action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all members is impracticable. Furthermore, inasmuch as the damages suffered by individual Collective Action Members may be relatively small, the expense and burden of individual litigation make it virtually impossible for the members of the collective action to individually seek redress for the wrongs done to them. There will be no difficulty in the management of this action as a collective action. 23. Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a collective action. 24. Plaintiffs sue on their own behalf and on behalf of a class of persons under Rules 23(a), (b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure. 25. Plaintiffs bring their New York Labor Law claim on behalf of all persons who were employed by Defendant at any time since April 11, 2011 to the entry of judgment in this case (the “Class Period”), who were not paid all their straight time wages, minimum wages, and/or overtime wages and/or were not provided proper notices required by the Wage Theft Prevention Act (the “Class”) and/or were not paid the tips that they earned. 27. The claims of Plaintiffs are typical of the claims of the Class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy— particularly in the context of wage and hour litigation where individual plaintiffs lack the financial resources to vigorously prosecute a lawsuit in federal court against corporate defendants. 28. The Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 29. Plaintiffs are committed to pursuing his action and have retained competent counsel experienced in employment law and class action litigation. 30. Plaintiffs have the same interests in this matter as all other members of the class and Plaintiffs’ claims are typical of the Class. 32. Napolean Tewolde (“NAPOLEAN”) was employed by Flavor Boutique 796 Inc., Flavor Boutique 522 Inc., and Michael Friedlander (together “Defendant”) as a counter person who prepared and sold ice cream products and hand delivered ice cream products (“Counter Worker”) from about May 4, 2015 to January 29, 2017 (the “Napolean time period”). 33. Defendant operated and operates a fast food ice cream store named “Holey Cream” located at 796 Ninth Avenue, New York, N.Y. 10019 (the “Ice Cream Store”). 34. During the Napolean time period, Defendant employed at any given time at least 5 Counter Workers and ran a business selling fast food ice cream products. 35. During the Napolean time period, Napolean worked with at least 40 similar Counter Worker employees as turnover was very high. 36. During the time Napolean period, Napolean worked for Defendant as a Counter Worker at the Ice Cream Store and prepared and sold ice cream products and hand delivered ice cream products. 38. During the Napolean time period, in certain weeks, Napolean worked more than 40 hours per week (“overtime’) and generally was not paid time and one half his regular wage rate for his hours worked over forty in a workweek. 39. During the Napolean time period, Napolean first signed in and out of his job using a sign-in/sign-out sheet at the Ice Cream Store and then after about a year he signed in and out of his job by typing his identification number into a time record application on an Ipad located at the Ice Cream Store. 40. During the Napolean time period, Napolean exclusively worked for Defendant. 41. During the Napolean time period, the customers were provided the opportunity to tip Napolean and the other Counter Workers by putting tips in a plastic cup labeled tips which was on the counter and most customers did leave a tip in the plastic cup. The customers also tipped the Counter Workers by paying tips on their credit card payments and also by paying tips through services, such as Grubhub, through which they ordered products for delivery. 42. During the Napolean time period, Napolean and the other similar Counter Worker employees were not paid by Defendants for all the tips that they earned and at times were not paid in a timely manner for some of the tips that they earned. 43. During the Napolean time period, Michael Friedlander was the operations manager and owner of Defendant. 44. Michael Friedlander hired Napolean as a Counter Worker for Defendant and agreed to pay Napolean $13.00 per hour plus tips. 46. Napolean repeatedly complained to Michael Friedlander about not being paid for his tips and not being paid for his overtime at time and one half his regular hourly rate and not being paid for all his hours worked, including his time working and on call during the alleged breaks that he and the other Counter Workers never received. 47. Michael Friedlander repeatedly said that he would investigate Napolean’s complaints and talk with his accountants, but never got back to Napolean and never paid Napolean the wages and tips that Napolean and the other Counter Worker employees were owed. 48. During the Napolean time period, Napolean was generally not paid (a) for all his hours worked; (b) time and one half his regular hourly rate for hours worked over forty in a workweek (“overtime”); (c) an extra hour of pay for days on which I worked a spread of ten or more hours, and (d) all the tips that were paid for his services. 49. During the Napolean time period, Defendant did not pay Napolean for a 1/2 hour alleged meal break per shift even though Defendant knew that Napolean was on call during break periods and often required Napolean to work during break periods, if the store was busy. 50. During the Napolean time period, Napolean was generally required to work through scheduled breaks. Nevertheless, Defendant deducted one half hour per shift from Napolean’s hours worked for an alleged break and never paid Napolean any wages for this one half hour during which Napolean was working and/or on call. 51. On certain days, Napolean worked a spread of more than ten hours. 53. During the Napolean time period, Napolean was not paid minimum wages and overtime wages and was not paid an extra hour of pay for work performed at least ten hours apart in a day. 54. During the Napolean time period, Napolean’s job responsibilities did not require any independent judgment, and Napolean did not have the power to hire or fire employees. 55. During the Napolean time period, there were at least 40 other Counter Worker employees who did similar work as Napolean and also had no power to hire or fire employees. 56. During the Napolean time period, Napolean and these similar Counter Worker employees of Defendant during certain weeks worked more than 40 hours a week for Defendant, but were not paid time and one half for their hours worked over forty in a week. 57. During the Napolean time period, Napolean and these other similar Counter Worker employees were not paid wages for all their hours worked, were not paid minimum wages for all their hours worked, were not paid for their time on call or working during alleged meal breaks, were not paid for all their hours worked, and were not paid for all their tips earned. 58. During the Napolean time period, Napolean and these other similar Counter Worker employees worked more than 40 hours a week, but were not paid time and one half for their wages over forty in a workweek and were not paid spread of hours pay for hours worked at least ten hours apart and were not paid the tips that customers paid Defendants for their services. 59. Throughout the Napolean time period, Defendant has likewise employed other individuals, like Napolean, in positions as Counter Workers. 61. Throughout the Napolean time period, such individuals have not been paid minimum wages for all hours worked, have worked in excess of 40 hours per week and not been paid overtime premium wages of one and one half times their regular hourly rate, and have worked a spread of ten hours and have not been paid an extra hour of pay for days on which they worked a spread of at least ten hours and have not been paid for all the tips that they earned. NAPOLEAN TEWOLDE | win |
193,890 | 66. Martinez, individually and on behalf of the Collective Class Members, incorporates the preceding paragraphs herein as though set forth at length. 67. Under the FLSA, an employer is “any person acting directly or indirectly in the interest of an employer in relation to an employee […] or anyone acting in the capacity of officer or agent” for the organization. 29 U.S.C.A. § 203. 68. At all relevant points, Defendants had gross annual revenue in excess of $500,000. 69. At all relevant points, Defendants have been and continue to be an employer engaging in interstate commerce within the meaning of the FLSA in the Commonwealth of Pennsylvania. 70. At all relevant times, Defendants have employed or continue to employ Martinez and the collective Class Members within the meaning of the FLSA. 71. Under federal and Pennsylvania law, employers must compensate employees at a minimum wage of $7.25 per hour worked. 72. Employers facilitating a tip-based structure “must ensure that their tipped employees are paid the Pennsylvania minimum wage.” Sicklesmith v. Hershey Ent. & Resorts Co., 440 F. Supp. 3d 391, 396–97 (M.D. Pa. 2020); 29 U.S.C. § 203(m). 73. In doing so, under both federal and Pennsylvania law, employers may utilize a “tip credit” to reflect “the difference between the Pennsylvania minimum wage of $7.25 per hour and the Pennsylvania hourly tipped minimum wage of $2.83 per hour.” Id. 75. Here, Defendants fail to compensate Martinez and the Collective Class Members at any hourly rate. Rather, Defendants require that employees pay a “house fee” and to share their earned tips with non-tip workers. 76. Defendants utilize a compensation policy that improperly classified Martinez and other employees as independent contractors in an effort by Defendants to avoid paying their employees in compliance with the federally mandated minimum wage. 77. Defendants further engaged in a regular practice of improperly deducting from employees’ tips. 78. Defendants further failed to pay time-and-a-half overtime to Collective Class Members, as required by the FLSA. 79. The foregoing violations of the FLSA were done willfully by Defendants. 80. Due to Defendants’ aforementioned FLSA violations, Martinez, individually and on behalf of the Collective Class Members, is entitled to recover compensation for unpaid wages, unpaid overtime, improperly withheld tips, liquidated damages, attorneys’ fees, and costs of this action pursuant. 81. Martinez, individually and on behalf of the Pennsylvania Class Members, incorporates the preceding paragraphs herein as though set forth at length. 83. At all relevant points, Defendants had gross annual revenue in excess of $500,000. 84. At all relevant points, Defendants have been and continue to be an employer engaging in interstate commerce within the meaning of the PMWA in the Commonwealth of Pennsylvania. 85. At all relevant times, Defendants have employed or continue to employ Martinez and the Pennsylvania Class Members within the meaning of the PMWA. 86. Under federal and Pennsylvania law, employers must compensate employees at a minimum wage of $7.25 per hour worked. 42 P.S. § 333.102 et seq. 87. Employers facilitating a tip-based structure “must ensure that their tipped employees are paid the Pennsylvania minimum wage.” Sicklesmith v. Hershey Ent. & Resorts Co., 440 F. Supp. 3d 391, 396–97 (M.D. Pa. 2020); 29 U.S.C. § 203(m). 88. In doing so, under both federal and Pennsylvania law, employers may utilize a “tip credit” to reflect “the difference between the Pennsylvania minimum wage of $7.25 per hour and the Pennsylvania hourly tipped minimum wage of $2.83 per hour.” Id. 89. As such, employers may compensate tipped employees at a rate of $2.83 per hour so long as the employees’ hourly tips average at $4.42 per hour. Id. Where an employee receives insufficient tips to meet the minimum threshold, “the employer is required to pay the difference.” 91. Defendants utilize a compensation policy that improperly classifies Martinez and other employees as independent contractors in an effort by Defendants to avoid paying their employees in compliance with the mandated minimum wage. 92. Defendants further failed to pay overtime pay to the Pennsylvania Class Members as required by the PMWA. 93. Defendants further improperly withheld tip amounts from the Pennsylvania Class Members in violation of the PMWA. 94. The foregoing conduct by Defendants, as alleged, constitutes willful violations of the PMWA. 95. Due to Defendants’ aforementioned PMWA violations, Martinez, individually and on behalf of the Pennsylvania Class Members, is entitled to recover compensation for unpaid wages, unpaid overtime, improperly withheld tips, liquidated damages, attorneys’ fees, and costs of this action. Violations of the Pennsylvania Minimum Wage Act of 1968 (Brought by Plaintiff Individually and on Behalf of the Pennsylvania Class) | lose |
214,340 | 55. Plaintiff brings this action on behalf of himself and all similarly situated current and former drivers, namely, all other individuals who have performed courier and/or delivery services for the Defendants and/or their parent organizations, successors and assigns within Massachusetts, and who were not paid proper wages and had improper deductions made from their wages. Plaintiff’s proposed class meets all of the requirements of Rule 23 of the Federal Rules of Civil Procedure. 56. Plaintiff brings his First, Second, and Third Causes of Action, or in the alternative, and assuming but not conceding same, his Fourth, Fifth and Sixth Causes of Action, on his own behalf and as a class action, pursuant to Fed. R. Civ. P. 23 (a), on behalf of the following class of persons: All delivery drivers who are currently or have been employed by Defendants as independent contractors in Massachusetts at any time during the 3 years prior to the filing of this Complaint to the entry of the judgment in the case (hereinafter referred to as the “Massachusetts Class” and the “Massachusetts Class Period,” respectively.) 57. The persons in the Massachusetts Class are so numerous that joinder of all members is impracticable. Although, the precise number of such persons is unknown, and facts 8 on which the calculation of that number can be based on presently within the sole control of Defendants. 58. Upon information and belief, the size of the Massachusetts Class is at least 60 individuals. 59. The First, Second, Third Causes of Action, or in the alternative, and assuming but not conceding same, his Fourth, Fifth, and Sixth Causes of Action, are properly maintainable as a class action under Fed. R. Civ. Pro. 23(b)(3). There are questions of law and fact common to the Massachusetts Class that predominate over any questions solely affecting individual members of the Massachusetts Class, including but not limited to: a. whether the Massachusetts Class Representative and the Massachusetts Class were Defendants’ employees under M.G.L. c. 149, § 148B, or alternatively, but not conceding same, pursuant to N.Y. Lab. Law § 862-b; b. whether Defendants made unlawful deductions from the Massachusetts Class Representative and the Massachusetts Class pay; and c. the nature and extent of Massachusetts Class-wide injury and the appropriate measure of damages sustained by the Massachusetts Class Representative and the Massachusetts Class for unlawful deductions. 60. The Massachusetts Class Representative fairly and adequately protects the interests of the Massachusetts Class and has no interests antagonistic to the class. The named Plaintiff is represented by attorneys who are experienced and competent in both class litigation and employment litigation. 61. A class action is superior to other available methods for the fair and efficient adjudication of this litigation – particularly in the context of wage litigation like the present action, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant. The members of the Massachusetts Class have been damaged and are entitled to recovery as a result of Defendants’ common and uniform policies, 9 practices, and procedures. Although the relative damages suffered by individual members of the Massachusetts Class are not de minimis, such damages are small compared to the expense and burden of individual prosecution of this litigation. In addition, class treatment is superior because it will obviate the need for unduly duplicative litigation that might result in inconsistent judgments about Defendants’ practices. 62. The Massachusetts Class Representative and the Massachusetts Class have been equally affected by the Defendants’ failure to pay proper wages. Moreover, members of the Massachusetts Class still employed by Defendants may be reluctant to raise individual claims for fear of retaliation. 63. Defendants have acted or refused to act on grounds generally applicable to the Massachusetts Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class was a whole. 64. Plaintiff’s claims are typical of those of the Massachusetts Class. Plaintiff and the other Massachusetts Class members were subjected to the Defendants’ policies, practices, programs, procedures, protocols and plans alleged herein concerning the failure to pay proper wages. Plaintiff’s job duties are typical of those of the class members. 65. Plaintiff and similarly situated drivers (“Class Members”) have been victims of Defendants’ unlawful policy of making deductions from Plaintiff’s and Class Members’ pay. 66. Defendants failed to furnish Plaintiff and Class Members with an accurate statement of, inter alia, wages, hours worked, rates paid as required by the NYLL. 67. As part of its regular business practice, Defendants intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or policy that violates the Massachusetts statutory 10 and common law, alternatively, and assuming but not conceding same, violates the NYLL. Defendants’ policy and pattern or practice includes but is not limited to: a. willfully making improper deductions from Plaintiff’s and Class Members’ pay; and b. willfully failing to keep payroll records as required by the NYLL. 68. Defendants’ failure to properly pay Plaintiff and Class Members their proper wages was willful, intentional and in bad faith. 69. Defendants’ unlawful conduct has been widespread, repeated, and consistent. 70. Krishna Mansingh was employed by Defendants from in or about September 2013 through in or about March 2015. 71. Krishna Mansingh was an employee of Defendants, working under their direct supervision. 72. Although Krishna Mansingh was classified by the Defendants as an independent contractor, he was the Defendants’ employee under G.L. c. 149, § 148B, and in the alternative, and assuming but not conceding same, under N.Y. Lab. Law §§ 190(2) and 862-b. 73. Defendants made unlawful wage deductions from Krishna Mansingh’s wages for reasons that include, but are not limited to: workers’ compensation insurance, liability insurance, other job related insurance, damage or problems with any delivery, uniforms, and truck lease payments. 74. Defendants unlawfully received kick-backs from Krishna Mansingh’s previously agreed upon wage. 11 75. Defendants made a statement, representation or understanding to Krishna Mansingh that failure to provide a kick-back will result in Krishna Mansingh’s termination. 76. Defendants failed to furnish Krishna Mansingh with a wage notice containing his rate of pay and basis thereof, hourly rates of pay and overtime rates of pay, the designated pay day, the name of the employer, the employer’s address and telephone number, and any other material and necessary information. 77. Defendants failed to furnish Krishna Mansingh with an accurate statement of wages listing hours worked, rates paid, gross wages, allowances, and deductions taken, and net wages paid. 78. Upon information and belief, Defendants did not keep accurate records of hours worked by Krishna Mansingh. 79. Although Plaintiff and the similarly situated drivers were classified as independent contractors of Eletto and IWA, both Eletto and Macy’s retained the right to control and did control nearly every aspect of the delivery drivers’ work. Such control includes, but is not limited to, the following: a. Eletto required Plaintiff and similarly situated drivers to use helpers whom Defendants must approve to assist them in making deliveries. Eletto has required Plaintiff and similarly situated drivers terminate certain helpers; b. Plaintiff and similarly situated drivers were required to report to the Dedham warehouse by 5:00 a.m. each work day, at which time, Defendants provided Plaintiff and other similarly situated drivers with manifests listing the deliveries to be made that day; c. Defendants issued manifests to Plaintiff and similarly situated drivers to determine what goods were delivered, where the deliveries were to be made, and the timeframes within which deliveries were to be made. Plaintiff and similarly situated drivers have no control with respect to the number of deliveries made, 12 the order in which deliveries are made, or the time frames within which deliveries must be made; d. Plaintiff and similarly situated drivers then loaded their trucks with the merchandise to be delivered that day. They were required to leave the Dedham warehouse by a certain time each day. If they did not, they could be subjected to “fines” or otherwise disciplined by Defendants; e. Plaintiff and similarly situated drivers did not negotiate with retail customers regarding the rates charged for their services, and they did not contract with the customers independent of Defendants; f. Macy’s trained Plaintiff and similarly situated drivers how to make deliveries and interact with retail customers. Before leaving the Dedham warehouse, Plaintiff and other similarly situated drivers were required to meet with a Macy’s general manager to obtain gate passes to allow them to leave the premises. During these meetings, Macy’s typically required Plaintiff and similarly situated drivers to “role-play” deliveries; g. Plaintiff and similarly situated drivers must comply with Macy’s grooming standards. Macy’s evaluated Plaintiff and similarly situated drivers’ appearances and required they alter their appearances if deemed unsatisfactory; h. Plaintiff and similarly situated drivers were required to wear uniforms with the Macy’s logo and specific colored shoes during deliveries. If deliveries were being made for Bloomingdale’s merchandise, a uniform bearing the Bloomingdale’s logo had to be worn; i. Plaintiff and similarly situated drivers deliveries were monitored by Macy’s and Eletto. Plaintiff and similarly situated drivers were required to be in contact with Eletto dispatchers regarding the status of deliveries throughout the day and carry Macy’s issued tablets with apps that were used to keep Macy’s and Eletto informed of their progress. For each delivery stop, Plaintiff and similarly situated drivers were required to advise Eletto when they arrived and left a delivery. If drivers encountered any problems with a delivery, they were required to communicate with Eletto for instructions. The tablet also included a GPS system, which Eletto and Macy’s used to track Plaintiff and similarly situated drivers; j. Plaintiff and similarly situated drivers were required to get signatures from customers when deliveries were made; and k. Defendants evaluated Plaintiff’s and similarly situated drivers’ performance and graded them accordingly, using performance matrices. 80. Plaintiff and similarly situated drivers were paid a per stop rate for deliveries. 13 81. Plaintiff and similarly situated drivers were required to pay for their own workers’ compensation insurance, liability insurance and other job related insurance. These amounts were deducted from Plaintiff’s weekly settlement statements by Eletto. In addition, Eletto required all drivers, including Plaintiff, to place monies into an escrow account purportedly to cover damage claims made by third parties. 82. Defendants deducted costs of any damage from Plaintiff’s and similarly situated drivers’ compensation if Defendants determine that a delivery was unsatisfactory (e.g. damaged goods, damage to customer property). 83. Macy’s and Eletto advertise on their websites that the delivery of merchandise as a major business component. Macy’s specifically touts its “white glove treatment” delivery services. 84. Plaintiff provided transportation of commercial goods for Defendants. 85. Plaintiff and similarly situated drivers performed services that are not outside the usual course of Defendants’ business and are integral to Defendants’ business. 86. Plaintiff and similarly situated drivers are not customarily engaged in an independently established trade, occupation, profession or business. Plaintiff and similarly situated drivers could not engage in an independent business given the full-time nature of their work for Defendants and Defendants’ logos on their trucks. Plaintiff and similarly situated drivers are dependent upon Defendants for their work and are unable to offer delivery services to other companies. 88. Plaintiff realleges and incorporates by reference herein all allegations in all preceding paragraphs. 89. Pursuant to M.G.L. c. 149, § 148B, Defendants were the joint employers of Plaintiff and the Massachusetts Class. 90. Defendants violated M.G.L. c. 149, § 148 by requiring that Plaintiff and the Massachusetts Class be subject to deductions from their compensation checks for any alleged damage or problem with any delivery, as well as to deductions for insurance, uniforms, and truck lease payments. 91. Plaintiff asserts these claims under M.G.L. c. 149, § 150. 92. Plaintiff realleges and incorporates by reference herein all allegations in all preceding paragraphs. 93. Defendants unjustly enriched themselves to the detriment of Plaintiff and the Massachusetts Class members by taking unlawful deductions from the wages of Plaintiff and the Massachusetts Class, in violation of the common law of Massachusetts, or, in the alternative, in violation of the common law of New York. 15 94. Plaintiff realleges and incorporates by reference herein all allegations in all preceding paragraphs. 95. Plaintiff and the Massachusetts Class members have been deprived by Defendants of the fair value of their services, as described above, and are, therefore, entitled to recover in quantum meruit, the value of their services pursuant to the common law of Massachusetts, or, in the alternative, pursuant to the common law of New York. 96. Plaintiff realleges and incorporates by reference herein all allegations in all preceding paragraphs. 97. Alternatively to the First Cause of Action, assuming but not conceding that the ICA’s New York choice of law provision is enforceable, Plaintiff and similarly situated drivers were employees of Defendants pursuant to N.Y. Lab. Law §§ 190(2) and 862-b. 98. Assuming but not conceding that the ICA’s New York choice of law provision is enforceable, Defendants knowingly, willfully, and intentionally violated N.Y. Lab. Law § 193 by requiring that Plaintiff and the Massachusetts Class be subject to deductions from their compensation checks for any alleged damage or problem with any delivery, as well as to deductions for insurance, uniforms, and truck lease payments. 16 99. Plaintiff realleges and incorporates by reference herein all allegations in all preceding paragraphs. 100. Assuming but not conceding that the ICA’s New York choice of law provision is enforceable, Plaintiff and similarly situated drivers were employees of Defendants, pursuant to N.Y. Lab. Law § 190(2) and 862-b. 101. Assuming but not conceding that the ICA’s New York choice of law provision is enforceable, Defendants violated N.Y. Lab. Law § 198-b by requiring that Plaintiff and the Massachusetts Class be subject to deductions from their compensation checks for any alleged damage or problem with any delivery, as well as to deductions for insurance, uniforms, and truck lease payments. In the Alternative, NYLL – Unlawful Wage Deductions (Brought on behalf of Plaintiff and the Massachusetts Class) In the Alternative, NYLL – Illegal Kick-Back of Wages (Brought on behalf of Plaintiff and the Massachusetts Class) In the Alternative, NYLL – Notice and Record-Keeping Requirement Violation (Brought on behalf of Plaintiff and the Massachusetts Class) 102. Plaintiff realleges and incorporates by reference herein all allegations in all preceding paragraphs. 103. Assuming but not conceding that the ICA’s New York choice of law provision is enforceable, Defendants failed to supply Plaintiff and similarly situated drivers with a notice as required by N.Y. Lab. Law § 195, in English or in the language identified by Plaintiff as his primary language, containing Plaintiff’s rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; hourly rate or rates of pay and overtime rate or rates of pay if applicable; the regular pay day designated by the employer in accordance with N.Y. Lab. Law § 191; the name of the employer; any “doing business as” names 17 used by the employer; the physical address of the employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the commissioner deems material and necessary. 104. Assuming but not conceding that the ICA’s New York choice of law provision is enforceable, Defendants failed to supply Plaintiff and similarly situated drivers with an accurate statement of wages as required by N.Y. Lab. Law § 195, containing the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; hourly rate or rates of pay and overtime rate or rates of pay if applicable; the number of hours worked, including overtime hours worked if applicable; deductions; and net wages. 105. Assuming but not conceding that the ICA’s New York choice of law provision is enforceable, due to Defendants’ violations of N.Y. Lab. Law § 195, Plaintiff and similarly situated drivers are entitled to damages of $50 for each workweek that Defendants failed to provide a wage notice, or a total of $2,500 per class member, and damages of $100 for each workweek that Defendants failed to provide accurate wage statements, or a total of $2,500 per class member, as provided for by N.Y. Lab. Law § 198, reasonable attorneys’ fees, costs, and injunctive and declaratory relief. 18 Massachusetts Common Law – Quantum Meruit (Brought on behalf of Plaintiff and the Massachusetts Class) Massachusetts Common Law – Unjust Enrichment (Brought on behalf of Plaintiff and the Massachusetts Class) Massachusetts General Law – Unlawful Wage Deductions (Brought on behalf of Plaintiff and the Massachusetts Class) | win |
107,638 | (CAL. CIV. CODE § 1750, ET SEQ.) ................................................................................... 23 THIRD CAUSE OF ACTION VIOLATIONS OF THE FALSE ADVERTSING LAW (CAL. BUS. & PROF CODE §§ 17500, ET SEQ.) .................................................................................... 26 16. Since the first Apple iPhone was released in 2007, Apple has achieved unparalleled success in creating a product with a strong global following. With each subsequent generation of iPhone, consumers have been impressed by yet another technological breakthrough that revolutionizes the market for mobile devices. As a result, consumers rely on Apple’s representations on how its devices will operate and what to do if there is flaw in the product. 48. Under Rule 23 of the Federal Rules of Civil Procedure, Plaintiff Palmer seeks certification of a Class defined as follows: All AT&T wireless subscribers who purchased the Apple Devices during the four years prior to the filing of the complaint which ran on any version of iOS 6 or 7, or iOS 8.0. 49. Excluded from the Class are Defendant; the officers, directors or employees of Defendant; any entity in which Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of Defendant. Also, excluded from the Class are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action. 50. Plaintiff Palmer does not know the exact number of Class members at the present time. However, due to the nature of the trade and commerce involved, there appear to be hundreds of thousands of Class members such that joinder of all Class members is impracticable. 51. The Class is easily determined by objective criteria permitting self-identification in response to notice, and notice can be provided through techniques similar to those customarily used in other consumer fraud cases and complex class actions, and through Apple’s business records. 52. There are questions of both law and fact common to the Class. Defendant’s unlawful omissions similarly impact Class members, all of who purchased one or more Apple Devices. 59. Plaintiff realleges and incorporates by reference all paragraphs alleged herein. 60. Plaintiff Palmer brings this claim on behalf of himself and all Class members. 61. Cal. Bus. & Prof. Code § 17200 prohibits any “unlawful, unfair, or fraudulent business act or practice.” Defendant has engaged in unlawful, and unfair, and fraudulent business acts and practices in violation of the UCL. 62. Defendant has violated the unlawful prong by virtue of their violations of the CLRA and FAL as described below. 76. Plaintiff realleges and incorporates by reference all paragraphs alleged herein. 77. Plaintiff Palmer brings this claim on behalf of herself and all Class members. 78. Defendants are “persons” under Cal. Civ. Code § 1761(c). 79. Plaintiff Palmer and Class members are “consumers,” as defined by Cal. Civ. Code § 1761(d), who purchased Apple Devices, which are “goods or services” under Cal. Civ. Code § 1770(a). 80. Cal. Civ. Code § 1770(a)(2) prohibits “[m]isrepresenting the source, sponsorship, approval, or certification of goods or services.” 81. Cal. Civ. Code § 1770(a)(5) prohibits “[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have….” 82. Cal. Civ. Code § 1770(a)(7) prohibits “[r]epresenting that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.” 83. Apple violated these CLRA provisions by misrepresenting the sponsorship, approval, certification, characteristics, benefits, standards, and quality of its Apple Devices and omitting disclosure of material aspects thereof in its advertising. 96. Plaintiff realleges and incorporates by reference all paragraphs alleged herein. 97. Plaintiff Palmer brings this claim on behalf of himself and all Class members. 98. California Business & Professions Code §§ 17500, et seq. (the “FAL”) broadly proscribes deceptive advertising in this State. Section 17500 makes it unlawful for any corporation intending to sell products or perform services to make any statement in advertising those products or services concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or not to sell those products or services as advertised at the price stated therein, or as so advertised. A. Apple Releases the iPhone 5 and the iOS 6 Operating System. A. Apple Releases the iPhone 5 and the iOS 6 Operating System. .................................. 5 B. Apple Releases the iPhone 5 in the Midst of Fierce Competition from Samsung. ..... 7 C. Partially In Response to Products Like the iPhone, AT&T Ends Unlimited Data Plans and Moves Subscribers to Tiered Data Plans .............................................................. 8 D. Users Report Explosions in their Data Usage. .......................................................... 10 E. While Failing to Disclose the Defect’s Existence, Apple Repairs the Defect for Verizon Subscribers ................................................................................................... 12 F. Despite Indications of a Repair, the Problem Persists for AT&T Subscribers Through the Release of iOS 7 and iPhone 5s ........................................................................... 16 IV. V. CAUSES OF ACTION .......................................................................................................... 20 FIRST CAUSE OF ACTION VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT (CAL. CIV. CODE § 1750, et seq.) VIOLATIONS OF THE FALSE ADVERTSING LAW (CAL. BUS. & PROF CODE §§ 17500, et seq.) VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW (CAL. BUS. & PROF. CODE § 17200, et seq.) | lose |
156,234 | (Conversion – On behalf of Plaintiffs and the Subclasses) (For Violations of CUTPA (Conn. Gen. Stat. §§ 42-110a, et seq.) – On behalf of Plaintiff Vasquez and the CUTPA Class)7 (For Violations of the Electronic Funds Transfer Act – On Behalf of Plaintiffs and the Subclasses) (Money Had and Received – On behalf of Plaintiffs and the Subclasses) (Unjust Enrichment – On Behalf of the Subclasses) 24. Prior to obtaining Rovinelli’s consent to the free trials, Defendants failed to clearly and conspicuously disclose the material terms, including but not limited to: the amounts that would be charged to Rovinelli’s credit card, the dates of those future charges, the membership and subscription auto-renewal features, the cancellation policies, the refund policies, and that the magazine subscription was with, and would be charged by, Trans World’s marketing partner, Synapse. 25. Rovinelli accepted the “free” offers but was not informed that the offers were actually free-to-pay conversions for which his credit card would be automatically billed and the paid subscriptions/membership would auto-renew until he affirmatively and separately cancelled each subscription/membership. Trans World’s VIP Backstage Pass membership and Synapse’s magazine subscriptions were unwanted, worthless and not authorized by Rovinelli or the Subclasses’ members. 26. If Defendants had adequately disclosed the material terms of the magazine subscriptions and VIP Backstage Pass membership, Rovinelli would not have accepted the “free” offers. 27. On or about February 25, 2018, Rovinelli’s credit card was charged a total of $42.00 for an “online, mail or telephone transaction” for magazines by Synapse without Rovinelli’s authorization, knowledge or consent. 29. Sometime between November 2017 and February 25, 2017, Trans World transmitted Rovinelli’s personal and confidential financial information to its marketing partner, Synapse, without Rovinelli’s knowledge, authorization or consent. 30. Trans World derived a financial gain from its marketing partner, Synapse, charging Rovinelli for unwanted magazine subscriptions, but Rovinelli derived no benefit from the subscriptions. 31. In or around March 2018, Rovinelli contacted FYE to complain about the unauthorized membership and magazine charges. Trans World later refunded Rovinelli $11.99 for one month of VIP Backstage Pass membership fees, but Defendants failed to refund Rovinelli interest or issue any refund for any of the unauthorized magazine charges. II. 51. Trans World’s in-store solicitation of “free” and “loyalty” memberships and magazine subscriptions and unauthorized enrollment of unsuspecting consumers into worthless memberships and subscriptions was unfair, deceptive and failed to provide Plaintiffs and the Subclasses with all material terms of the “Free-To-Pay” conversions. The only “loyalty” aspect of the membership was Trans World’s “loyalty” to maximize profits in a declining retail market. 52. Defendants failed to disclose to Plaintiffs and the Subclasses all the material terms of the free-to-pay conversions in an effort to induce consumers to accept the “free trials.” Despite failing to disclose the material terms, Trans World and its marketing partner, Synapse, charged consumers’ credit cards, debit cards and/or bank accounts for bogus memberships and unwanted magazines without consumers’ express consent, and continued to do so until consumers affirmatively, and separately, cancelled each membership subscription. These practices resulted in millions of dollars of profit for Defendants through their direct billing and lucrative revenue sharing agreement. 55. Defendants’ failure to disclose the material terms, or intentional concealment of material terms, prevented consumers, including Plaintiffs and the Subclasses’ members, from acquiring material information. 56. Defendants failed to clearly and conspicuously disclose to Plaintiffs and the Subclasses’ members all material terms before obtaining their billing information. For example, even if all of the material terms were disclosed and they were disclosed in a clear and conspicuous manner, Defendants disclosed those terms only after obtaining their billing information. 58. Plaintiffs bring this action on behalf of themselves and all other similarly situated members of the Subclasses pursuant to Rule 23 of the Federal Rules of Civil Procedure. This class action satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of Rule 23 and the provisions therein. 60. Plaintiffs reserve the right to modify the Subclasses’ definitions before moving for class certification, including a reservation of the right to seek certification of additional subclasses, if discovery reveals that modifying the definitions and/or seeking additional subclasses would be appropriate. 61. The Class Period is limited to the applicable statute of limitations for claims at issue and runs until the date of entry of final judgment in this action. 64. Plaintiff Vasquez’s bank account was debited on a recurring basis by Trans World, and Plaintiffs Rovinelli’s and Carlos’ accounts were debited on a recurring basis by Synapse without Defendants obtaining signed written authorization, or similar authentication, for preauthorized electronic fund transfers. As such, Plaintiffs are asserting claims that are typical of the Subclasses. Moreover, Plaintiffs asserted claims are typical of the claims of the other members of the Subclasses in that all members have been harmed in substantially the same way by Defendants’ acts and omissions. 65. Plaintiffs will fairly and adequately represent and protect the interest of the Subclasses. Plaintiffs have no interests antagonistic or adverse to other members of the Subclasses. Plaintiffs have retained counsel who are competent and experienced in class action litigation. 67. Plaintiffs and the Subclasses have suffered injury and damages as a result of Defendants’ wrongful conduct as alleged herein. Absent a class action, the Subclasses will continue to suffer injury, thereby allowing these alleged violations of law to proceed without remedy, and allowing Defendants to retain the proceeds of their ill-gotten gains. 68. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The prosecution of separate actions by individual members of the Subclasses would create the risk of inconsistent or varying adjudications with respect to individual members of the Subclasses. Moreover, litigation on an individual basis could be dispositive of the interests of absent members of the Subclasses and substantially impair or impede their ability to protect their interests. 69. In view of the complexity of the issues presented and the expense that an individual plaintiff would incur if he or she attempted to obtain relief from Defendants, the individual claims of the Subclasses’ members are monetarily insufficient to support separate actions. Because of the size of the individual Subclasses’ members’ claims, few, if any, members of the Subclasses could afford to seek legal redress for the wrongs complained of in this Complaint. 70. Plaintiffs do not anticipate any difficulty in managing this action as a class action. The identities of the Subclasses’ members are known by Defendants, and the measure of monetary damages can be calculated from Defendants’ records. This action poses no unusual difficulties that would impede its management by the Court as a class action. 72. Pursuant to 15 U.S.C. § 1693e(a), (Section 907(a) of the EFTA), a “preauthorized electronic transfer from a customer’s account may be authorized by the consumer only in writing, and a copy of such authorization shall be provided to the consumer when made.” 73. “Preauthorized electronic fund transfer” is defined as “an electronic fund transfer authorized in advance to recur at substantially regular intervals.” 15 U.S.C. § 1693a(10), Section 903(10) of the EFTA. 74. Pursuant to 12 C.F.R. § 205.10(b), Section 205.10(b) of Regulation E, “[p]reauthorized electronic fund transfers from a customer’s account may be authorized only by a writing signed, or similarly authenticated, by the customer. The person that obtains the authorization shall provide a copy to the consumer.” 75. “The authorization process should evidence the consumer’s identity and assent to the authorization” and “[a]n authorization is valid if it is readily identifiable as such and the terms of the preauthorized transfer are clear and readily understandable.” Section 205.10(b), Supp I.of the Federal Reserve Board’s Official Staff Commentary to Regulation E, 12 C.F.R. § 205.10(b), Comments 5 and 6 (emphasis added). 77. Thus, Defendants failed to comply with 15 U.S.C. § 1693e(a) (EFTA) and 12 C.F.R. § 205.10(b) (Regulation E) when they debited Plaintiffs’ and Subclasses’ members’ credit cards, debit cards and/or bank accounts on a recurring basis but failed to provide a copy of a written authorization signed, or similarly authenticated, by Plaintiffs or the Subclasses’ members for preauthorized electronic fund transfers. 78. Based upon Defendants’ EFTA and Regulation E violations, Defendants are liable to Plaintiffs and the Subclasses for actual damages, statutory damages pursuant to 15 U.S.C. § 1693m, and reasonable attorneys’ fees and costs. 79. Plaintiff Vasquez realleges and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 80. Plaintiff Vasquez and members of the proposed CUTPA Class are consumers within the meaning of the CUTPA, and Defendants’ memberships and subscriptions are goods within the meaning of the CUTPA. Defendants, through their conduct, are engaged in trade or commerce within the meaning of the CUTPA, and the “free-to-pay” membership/subscriptions offered by Defendants to Plaintiff Vasquez and Class members constitutes consumer transactions within the meaning of the CUTPA. 82. Defendants knew or should have known that these acts and omissions violated the CUTPA and public policy, and were unfair, unethical, oppressive, unscrupulous and caused substantial injury to consumers, including Plaintiff Vasquez and other members of the CUTPA Class. 83. Defendants’ actions, misrepresentations and omissions were done in willful or knowing violation of the CUTPA. 84. As a result of Defendants’ unfair and deceptive conduct, Plaintiff Vasquez and members of the CUTPA Class have suffered ascertainable losses under Conn. Gen. Stat. § 42- 110g(a) in the form money or property. Those ascertainable losses include the loss of monies taken from Plaintiff Vasquez and the CUTPA Class members’ bank accounts or charged to their credit cards or debit cards for the memberships/subscriptions. Plaintiff and members of the CUTPA Class have also otherwise been damaged by Defendants’ unfair and deceptive conduct. 85. Plaintiff Vasquez and members of the proposed Connecticut Class are entitled to compensatory damages from Defendants for the economic and non-economic damages identified herein, together with equitable and declaratory relief and other appropriate damages, including punitive damages, attorneys’ fees, and costs of suit. 87. As a result of Defendants’ fraudulent, deceptive and wrongful conduct, Plaintiffs and members of the Subclasses have conferred benefits upon Defendants in the form of payment for Defendants’ memberships and subscriptions. Defendants received and accepted from Plaintiffs, and members of the Subclasses, benefits in the form of unauthorized fees and charges for VIP Backstage Pass memberships and magazine subscriptions, which were not authorized or consented to by Plaintiffs and the Subclasses’ members, and have little, if any, value. 88. Defendants were at all times aware that the benefits conferred upon them by Plaintiffs and members of the Subclasses were the result of Defendants’ fraudulent, deceptive and wrongful conduct. Defendants voluntarily accepted and retained the benefits conferred upon them. 89. Plaintiffs and the Subclasses’ members sustained damages when Defendants assessed unauthorized fees and charges for VIP Backstage Pass and magazine subscriptions. 90. Allowing Defendants to retain these unjust profits and other benefits would offend traditional notice of justice and fair play. Under these circumstances, it would be inequitable for Defendants to retain the benefits and allowing them to do so would induce companies to fraudulently conceal, mislead, and/or misrepresent key characteristics and obligations of their products to increase sales and profits. 91. Plaintiffs on behalf of themselves and all others similarly situated, seek restitution from Defendants and an order of this Court proportionally disgorging all profits, benefits, and other compensation obtained by Defendants from their wrongful conduct. 93. Defendants received monies from consumers to which they were not legally entitled. 94. Consumers have a claim for the monies Defendants collected in credit card, debit card and/or bank account charges via the VIP Backstage Pass membership and/or magazine subscriptions. 95. Equity and good conscience requires that Defendants pay back those monies. 96. Defendants’ practices caused Plaintiffs and the Subclasses’ members to suffer injury. They are entitled to reimbursement, restitution, and disgorgement in the amount necessary to restore them to the position they would have been in if Defendants had not improperly collected and retained the abovementioned monies. 97. Plaintiffs reassert and incorporate herein each and every allegation in the preceding paragraphs of this Complaint (excluding ¶¶ 79-85) as if set forth fully herein. 98. Consumers have a right to retain the money Defendants took from consumers’ credit card, debit card and/or bank accounts. I. ROVINELLI | lose |
329,523 | 25. On or about July 12, 2018, Defendant called Plaintiff’s cellular telephone number ending in 6305 (“6305 Number”) with a pre-recorded message. 26. Upon Plaintiff answering the phone, a pre-recorded message asked Plaintiff to press 1 if he was interested in purchasing insurance. 27. After Plaintiff pressed 1, he was connected to a live representative who notified Plaintiff that he was an employee of Defendant and that he wanted to sell Plaintiff insurance. 28. Once the call was concluded, Defendant caused the following text message to be transmitted to the 6305 Number: 29. The text message includes a hyperlink to a website which is owned and/or operated by Defendant. 30. Upon Plaintiff clicking the hyperlink, Plaintiff was directed to an application for healthcare which was filled out with Plaintiff’s information. 32. Plaintiff did not sign the agreement. 33. Consequently, Defendant sent Plaintiff the following cancellation email on August 8, 2018 from its [email protected] email address: 34. Plaintiff is the subscriber and sole user of the 6305 Number. 35. Defendant called Plaintiff from 941-735-6253, a number which upon information and belief, Defendant owned and/or operated. 37. Plaintiff received the subject calls within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. 38. Upon information and belief, Defendant caused similar calls to be sent to individuals residing within this judicial district. 39. At no point in time did Plaintiff provide Defendant with his express consent to be contacted using a pre-recorded message. 40. Defendant’s unsolicited calls caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s calls also inconvenienced Plaintiff and caused disruption to his daily life. 41. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarly situated. 42. Plaintiff brings this case on behalf of the below defined Class: All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a pre-recorded call, from Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone number, without their prior express written consent. 43. Defendant and their employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class but believes the Class members number in the several thousands, if not more. 46. There are numerous questions of law and fact common to the Class which predominate over any questions affecting only individual members of the Class. Among the questions of law and fact common to the Class are: (1) Whether Defendant made non-emergency calls to Plaintiff and Class members’ cellular telephones using pre-recorded messages; (2) Whether Defendant can meet their burden of showing that they obtained prior express written consent to make such calls; (3) Whether Defendant’s conduct was knowing and willful; (4) Whether Defendant is liable for damages, and the amount of such damages; and (5) Whether Defendant should be enjoined from such conduct in the future. 52. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 53. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or prerecorded or artificial voice… to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 54. Defendant – or third parties directed by Defendant – used pre-recorded calls to make non-emergency marketing telephone calls to the cellular telephones of Plaintiff and other members of the Class. 55. These calls were made without regard to whether Defendant had first obtained express written consent from the called party to make such calls. In fact, Defendant did not have prior express written consent to call the cell phones of Plaintiff and the other members of the putative Class when its calls were made. 56. Defendant violated § 227(b)(1)(A)(iii) of the TCPA by using a pre-recorded message to make non-emergency telephone calls to the cell phones of Plaintiff and the other members of the putative Class without their prior express consent. PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) | win |
282,933 | 16. Plaintiff brings claims for relief as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b), on behalf of all non-exempt tipped employees, including bartenders, barbacks, waiters, runners, bussers and delivery persons, employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (“FLSA Collective Plaintiffs”). 17. At all relevant times, Plaintiff and FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants’ decisions, policies, plans, programs, practices, procedures, protocols, routines, and rules, all culminating in a willful failure and refusal to pay them the prevailing minimum wage. Defendants were not entitled to take any tip credits because they failed to meet statutory requirements under the FLSA. Furthermore, a subclass of FLSA Collective Plaintiffs who worked as delivery persons (“Delivery Subclass”) also suffered from Defendants’ failure and refusal to compensate/reimburse them for costs of tools of the trade, which cut into their minimum wage. The claims of Plaintiff stated herein are essentially the same as those of FLSA Collective Plaintiffs. 19. Plaintiff brings claims for relief pursuant to the Federal Rules of Civil Procedure (“F.R.C.P.”) Rule 23, on behalf of all non-exempt tipped employees, including bartenders, barbacks, waiters, runners, bussers and delivery persons, employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (the “Class Period”). 20. All said persons, including Plaintiff, are referred to herein as the “Class.” The Class members are readily ascertainable. The number and identity of the Class members are determinable from the records of Defendants. The hours assigned and worked, the position held, and rates of pay for each Class member are also determinable from Defendants’ records. For purposes of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under F.R.C.P. 23. 21. The proposed Class is so numerous that a joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parties and the Court. Although the precise number of such persons is unknown, the facts on which the calculation of that number are presently within the sole control of Defendants, there is no doubt that there are more than forty (40) members of the Class. 23. Plaintiff is able to fairly and adequately protect the interests of the Class and has no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and competent in both class action litigation and employment litigation and have previously represented plaintiffs in wage and hour cases. 25. Defendants and other employers throughout the state violate the New York Labor Law. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing claims because doing so can harm their employment, future employment, and future efforts to secure employment. Class actions provide class members who are not named in the Complaint a degree of anonymity, which allows for the vindication of their rights while eliminating or reducing these risks. 27. From in or about May 2013 until in or about May 2016, Plaintiff MARTIN ALVAREZ was employed by Defendants to work as a delivery person for Defendants’ “Schnipper’s 8th Ave & 41st” restaurant located at 620 8th Avenue, New York, NY 10018. 28. During his employment with Defendants, Plaintiff MARTIN ALVAREZ was regularly required to work at Defendants’ other three Schnipper’s Restaurants, including “Schnipper’s 23rd Street & Madison” located at 23 East 23rd Street, New York, NY 10010, “Schnipper’s 570 Lexington at 51st” located at 570 Lexington Avenue, New York, NY 10022, and “Schnipper’s One NY Plaza” located at One New York Plaza, New York, NY 10004. 30. From the beginning of his employment with Defendants until in or about December 2013, Plaintiff MARTIN ALVAREZ was paid at a regular rate of $5.65 per hour. From in or about January 2014 until in or about December 2014, Plaintiff MARTIN ALVAREZ was paid at a regular rate of $5.65 per hour and an overtime rate of $9.65 per hour. From in or about January 2015 until in or about December 2015, Plaintiff MARTIN ALVAREZ was paid at a regular rate of $5.65 per hour and an overtime rate of $10.03 per hour. From in or about January 2016 until the end of his employment with Defendants, Plaintiff MARTIN ALVAREZ was paid at a regular rate of $7.50 per hour and an overtime rate of $12.00 per hour. Based on Plaintiff MARTIN ALVAREZ’s direct observations and conversations with other employees at Schnipper’s Restaurants, all FLSA Collective Plaintiffs and Class members were paid similarly. 31. Throughout his employment with Defendants, MARTIN ALVAREZ was required to use his own bicycle for deliveries and was not compensated or reimbursed for the costs of purchasing and maintaining the bicycle, including repair costs. Based on Plaintiff MARTIN ALVAREZ’s direct observations and conversations, all delivery persons employed at Schnipper’s Restaurants were required to use their own bicycles for delivery and was not compensated or reimbursed for the costs of purchasing and maintaining the bicycle. 32. At all relevant times, Defendants paid Plaintiff, FLSA Collective Plaintiffs and Class members at hourly rates below the prevailing minimum wage in violation of the FLSA and 41. Plaintiff realleges and reavers Paragraphs 1 through 40 of this class and collective action Complaint as if fully set forth herein. 42. At all relevant times, Defendants were and continue to be employers engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiff and FLSA Collective Plaintiffs are covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 43. At all relevant times, Defendants employed Plaintiff and FLSA Collective Plaintiffs within the meaning of the FLSA. 44. At all relevant times, Corporate Defendants had gross annual revenues in excess of $500,000. 46. At all relevant times, Defendants had a policy and practice of refusing to compensate Plaintiff and the Delivery Subclass of costs of tools of the trade in that they never reimbursed the Delivery Subclass for using their own bicycles for deliveries and paying for the maintenance, which cut into their minimum wage. 47. Defendants knew of and/or showed a willful disregard for the provisions of the FLSA as evidenced by their failure to compensate Plaintiff and FLSA Collective Plaintiffs at the prevailing minimum wage or reimburse costs of tools of the trade when Defendants knew or should have known such was due. 48. Defendants failed to properly disclose or apprise Plaintiff and FLSA Collective Plaintiffs of their rights under the FLSA. 49. As a direct and proximate result of Defendants’ willful disregard of the FLSA, Plaintiff and FLSA Collective Plaintiffs are entitled to liquidated damages pursuant to the FLSA. 50. Due to the intentional, willful and unlawful acts of Defendants, Plaintiff and FLSA Collective Plaintiffs suffered damages in an amount not presently ascertainable of unpaid minimum wage and unpaid costs of tools of the trade, plus an equal amount as liquidated damages. 51. Records, if any, concerning the number of hours worked by Plaintiff and FLSA Collective Plaintiffs and the actual compensation paid to Plaintiff and FLSA Collective Plaintiffs are in the possession and custody of Defendants. Plaintiff intends to obtain these records by appropriate discovery proceedings to be taken promptly in this case and, if necessary, will then seek leave of Court to amend this Complaint to set forth the precise amount due. 53. Plaintiff realleges and reavers Paragraphs 1 through 52 of this class and collective action Complaint as if fully set forth herein. 54. At all relevant times, Plaintiff and Class members were employed by Defendants within the meaning of the New York Labor Law §§ 2 and 651. 55. Defendants knowingly and willfully violated the rights of Plaintiff and Class members by failing to pay them minimum wages in the lawful amount for hours worked. Defendants were not entitled to take any tip credits because they failed to meet the statutory requirements under the NYLL. 56. Defendants knowingly and willfully violated rights of Plaintiff and and the Delivery Subclass of costs of tools of the trade in that they never reimbursed the Delivery Subclass for using their own bicycles for deliveries and paying for the maintenance, which cut into their minimum wage. 57. Defendants knowingly and willfully failed to provide proper wage and hour notices to Plaintiff and Class members, as required by New York Labor Law § 195(1). 58. Defendants knowingly and willfully failed to provide proper wage statements to Plaintiff and Class members with every wage payment, as required by New York Labor Law § 195(3). VIOLATION OF THE FAIR LABOR STANDARDS ACT VIOLATION OF THE NEW YORK LABOR LAW | win |
73,663 | Violation of the Availability Requirement of the Medicaid Act 200. Plaintiffs repeat and re-allege Paragraphs 1-199 as if set forth fully herein. 201. As set forth above, Defendants have failed to provide Plaintiffs with the available assistance that is medically necessary and that they have requested. Defendants’ failure to provide the requested assistance in sufficient amount, duration and scope to reasonably achieve the purpose of the Medicaid Act violates the Act’s “availability” requirement. 42 U.S.C. § 1396a(a)(10)(A). Plaintiffs and the class may enforce the Act’s availability requirement under 42 Violation of Article I and the Due Process Clause of the U.S. Constitution 194. Plaintiffs repeat and re-allege Paragraphs 1-193 as if set forth fully herein. 195. The United States Constitution bars Congress from delegating to private parties the power to regulate the conduct of other parties. 196. The Healthfirst MLTC plans are “not a department, agency, or instrumentality of the United States Government,” but rather private entities. They are ultimately owned, operated and managed by for-profit entities, including HF Management Services, LLC, and HF Administrative Services, Inc. 197. The Healthfirst MLTC plans and the Healthfirst Enterprise benefit financially whenever the plans deny or refuse to accept a request for increased home care hours or reduce the authorized hours of home care service. 198. The Medicaid Act vests state agencies responsible for its administration at the state level (DOH, in this case) with legislative and rule-making authority to determine Medicaid recipients’ levels of coverage for home care services and to carry out the provision of Medicaid benefits. DOH, however, has unconstitutionally delegated this legislative and rule-making authority to the Defendants in the Healthfirst Enterprise, as set forth above, including but not limited to the following ways: (a) permitting or even encouraging the Healthfirst MLTC plans and the Healthfirst Enterprise to violate the provisions of the Medicaid Act, the ADA and Section 504 (and their accompanying regulations) and the Due Process clause of the U.S. 44 Constitution; (b) failing to supervise and monitor the Healthfirst MLTC plans and the Healthfirst Enterprise to ensure that they are abiding by the provisions of the Medicaid Act, the ADA and Section 504 (and their accompanying regulations) and the Due Process clause of the U.S. Constitution; (c) permitting or even encouraging the Healthfirst MLTC plans and the Healthfirst Enterprise to engage in their own rule-making in carrying out the provisions of the Medicaid Act, and specifically permitting or encouraging them to promulgate rules favoring the financial interests of the Healthfirst Enterprise, to the detriment of the class members, all of whom are Medicaid recipients; and (d) failing to enforce the provisions of the Medicaid Act, the ADA and Section 504 (and their accompanying regulations) and the Due Process clause of the U.S. Constitution against the Healthfirst MLTC plans and the Healthfirst Enterprise, despite having delegated its authority to administer a portion of New York’s Medicaid program to those entities. 199. Plaintiffs have no adequate remedy at law for DOH’s unconstitutional delegation of legislative and rule-making authority. Violation of the Reasonable Promptness Requirement of the Medicaid Act 203. Plaintiffs repeat and re-allege Paragraphs 1-202 as if set forth fully herein. 204. As set forth above, it is medically necessary that Plaintiffs receive more home care services than Defendants are currently providing to them, and they are entitled to receive those additional services under the Medicaid Act. Defendants have failed to provide Plaintiffs, in a reasonably prompt manner, with the assistance to which they are entitled. Defendants’ failure to timely provide medically necessary home care services to Plaintiffs violates the reasonable promptness provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(8). Plaintiffs may enforce the Act’s reasonable promptness requirement under 42 U.S.C. § 1983. 205. Plaintiffs have no adequate remedy at law for these violations of the Medicaid Act. FOURTH CLAIM FOR RELIEF: Against All Defendants Violation of the Americans with Disabilities Act 206. Plaintiffs repeat and re-allege Paragraphs 1-205 as if set forth fully herein. 207. Plaintiffs are “qualified individual[s] with a disability” within the meaning of 42 | win |
385,822 | 11. On or about March 10, 2010, Defendants transmitted by telephone facsimile machine an unsolicited fax to Plaintiff. A copy of the facsimile is attached hereto as Exhibit A. 12. Defendants created or made Exhibit A which Defendants knew or should have known is a good or product which Defendants intended to and did in fact distribute to Plaintiff and the other members of the class. 13. Exhibit A is part of Defendants’ work or operations to market Defendants’ goods or services which were performed by Defendants and on behalf of Defendants. Therefore, Exhibit A constitutes material furnished in connection with Defendants’ work or operations. 15. On information and belief, Defendants faxed the same and similar unsolicited facsimiles to Plaintiff and more than 40 other recipients without first receiving the recipients’ express permission or invitation. 16. There is no reasonable means for Plaintiff (or any other class member) to avoid receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent communications their owners desire to receive. 17. Defendants’ facsimiles did not display a proper opt-out notice as required by 47 18. In accordance with F. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this class action pursuant to the JFPA, on behalf of the following class of persons: All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendants, (3) from whom Defendants did not obtain prior express permission or invitation to send those faxes, (4) with whom Defendants did not have an established business relationship, and (5) did not display a proper opt-out notice. Excluded from the Class are the Defendants, their employees, agents and members of the Judiciary. Plaintiff reserves the right to amend the class definition upon completion of class certification discovery. 2. a statement that the sender must honor a recipient’s opt-out request within 30 days and the sender’s failure to do so is unlawful – thereby encouraging recipients to opt-out, if they did not want future faxes, by advising them that their opt-out requests will have legal “teeth”; 21. Typicality (F. R. Civ. P. 23 (a) (3)): The Plaintiff's claims are typical of the claims of all class members. The Plaintiff received faxes sent by or on behalf of the Defendants advertising goods and services of the Defendants during the Class Period. The Plaintiff is making the same claims and seeking the same relief for itself and all class members based upon the same federal statute. The Defendants have acted the same or in a similar manner with respect to the Plaintiff and all the class members. 22. Fair and Adequate Representation (F. R. Civ. P. 23 (a) (4)): The Plaintiff will fairly and adequately represent and protect the interests of the class. It is interested in this matter, has no conflicts and has retained experienced class counsel to represent the class. 23. Need for Consistent Standards and Practical Effect of Adjudication (F. R. Civ. P. 23 (b) (1)): Class certification is appropriate because the prosecution of individual actions by class members would: (a) create the risk of inconsistent adjudications that could establish incompatible standards of conduct for the Defendants, and/or (b) as a practical matter, adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are not parties. 24. Common Conduct (F. R. Civ. P. 23 (b) (2)): Class certification is also appropriate because the Defendants have acted and refused to act in the same or similar manner with respect to all class members thereby making injunctive and declaratory relief appropriate. The Plaintiff demands such relief as authorized by 47 U.S.C. §227. 26. Plaintiff and the Plaintiff Class reassert and incorporate herein by reference the averments set for in paragraphs 1-25 above. 27. The JFPA makes unlawful for any person to "use any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement …" 47 U.S.C. § 227(b)(1)(C). 28. The JFPA defines "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." 47 U.S.C. § 227 (a) (5). 29. Opt-Out Notice Requirements. The JFPA strengthened the prohibitions against the sending of unsolicited advertisements by requiring, in §(b)(1)(C)(iii) of the Act, that senders of faxed advertisements place a clear and conspicuous notice on the first page of the transmission that contains the following among other things (hereinafter collectively the “Opt-Out Notice Requirements”): 3. a statement advising the recipient that he or she may opt-out with respect to all of his or her facsimile telephone numbers and not just the ones that receive a faxed advertisement from the sender – thereby instructing a recipient on how to make a valid opt-out request for all of his or her fax machines; The requirement of (1) above is incorporated from § (b)(D)(ii) of the Act. The requirement of (2) above is incorporated from § (b)(D)(ii) of the Act and the rules and regulations of the Federal Communications Commission (the “FCC”) in ¶31 of its 2006 Report and Order (In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act, Junk Prevention Act of 2005, 21 F.C.C.R. 3787, 2006 WL 901720, which rules and regulations took effect on August 1, 2006). The requirements of (3) above are contained in § (b)(2)(E) of the Act and incorporated into the Opt-Out Notice Requirements via § (b)(2)(D)(ii). Compliance with the Opt-Out Notice Requirements is neither difficult nor costly. The Opt-Out Notice Requirements are important consumer protections bestowed by Congress upon the owners of fax machines giving them the right, and means, to stop unwanted faxed advertisements. 31. The Fax. Defendant sent the March 10, 2010 Fax via facsimile transmission from telephone facsimile machines, computers, or other devices to the telephone facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax constituted advertisements under the Act. Defendants failed to comply with the Opt-Out Requirements in connection with the Fax, which contained no Opt-Out notice whatsoever. The Faxes were transmitted to persons or entities without their prior express permission or invitation and/or Defendants are precluded from asserting any prior express permission or invitation because of the failure to comply with the Opt-Out Notice Requirements. By virtue thereof, Defendants violated the JFPA and the regulations promulgated thereunder by sending the Faxes via facsimile transmission to Plaintiff and members of the Class. 33. The TCPA/JFPA provides a private right of action to bring this action on behalf of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is appropriate. Id. 34. The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff and the other class members even if their actions were only negligent. 35. The Defendants knew or should have known that (a) the Plaintiff and the other class members had not given express invitation or permission for the Defendants or anybody else to fax advertisements about the Defendants’ goods or services; (b) the Plaintiff and the other class members did not have an established business relationship; (c) Defendants transmitted an advertisement; and (d) the Fax did not contain the required Opt-Out Notice. Claim for Relief for Violation of the JFPA, 47 U.S.C. § 227 et seq. | lose |
211,951 | 17. Plaintiffs bring this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of the following defined class: Each and every person who has worked for Defendants in the United States as an outside salesperson at any time within three (3) years prior to the filing of this complaint (the “Class Period”) who has had one or more accounts obtained by the salesperson, taken from them by the Defendants. 18. Numerosity: The Class represents over 350 persons and is so numerous that the joinder of each member of the Class is impracticable 27. Plaintiffs refer to paragraphs 1 through 26 and incorporate the same by reference as though fully set forth herein 33. Plaintiffs refer to paragraphs 1 through 32 and incorporate the same by reference as though fully set forth herein 34. Plaintiffs brings this action on behalf of themselves and other similarly situated employees. The employees similarly situated are as follows: Each and every person who has worked for Defendants in the United States as an outside salesperson at any time within three (3) years prior to the filing of this complaint and the trial of this action (the “Class Period”) who has had accounts obtained by the salesperson, taken from them by the Company. 39. Plaintiffs incorporate by reference and re-allege each and every one of the allegations contained in the preceding and foregoing paragraphs of this Complaint as if fully set forth herein. 40. California law requires payment of wages owed when earned. Plaintiffs bring this action on behalf of themselves and other similarly situated employees. The employees similarly situated in this subclass are as follows: Each and every person who has worked for Defendants in California as an outside salesperson at any time within three (3) years prior to the filing of this complaint (the “Class Period”) who has had one or more accounts obtained by the salesperson, taken from them by the Defendants. 41. Plaintiffs and the subclass regularly sold products for which they were not compensated commissions and for which they were not paid. 42. Plaintiffs and the subclass of California outside representatives seek such wages owed to them for the three-year period measured backward from the date of the filing of the initial Complaint in this matter pursuant to California law. 43. The exact amount of these wages owed will not be fully ascertained until discovery is completed. Until Defendants produce the necessary documents for an accounting, Plaintiffs are unable to determine the exact amount of wages owed. 46. Plaintiffs incorporate by reference and re-allege each and every one of the allegations contained in the preceding and foregoing paragraphs of this Complaint as if fully set forth herein. 47. The Defendants have unjustly obtained a benefit at the expense of the plaintiffs and the putative class such that restitution is warranted. 48. Plaintiffs and the putative class seek restitution of these amounts. Breach of Contract (Action Brought by Plaintiffs on Behalf of Themselves And the Class Against All Defendants) Failure to Pay Wages Pursuant to California Law (Action Brought by Plaintiffs on Behalf of Themselves And the Class Against All Defendants) Unjust Enrichment (Action Brought by Plaintiffs on Behalf of Themselves And the Class Against All Defendants) Violation of the Duty of Good Faith and Fair Dealing (Action Brought by Plaintiffs on Behalf of Themselves And the Class Against All Defendants) | win |
301,598 | UNJUST ENRICHMENT (Pled in the Alternative) (Brought on behalf of Plaintiff) 26. The claims in this Complaint arising out of the FLSA are brought by Plaintiff on behalf of himself and other similarly asbestos removers who are current and former employees of NSC since the date three years prior to the filing of this Complaint who elect to opt- in to this action (the “FLSA Collective”). 27. The FLSA Collective Plaintiffs consist of approximately sixteen (16) similarly situated current and former asbestos removers of NSC who have been victims of Defendants’ common policy and practices that have violated their rights under the FLSA by, inter alia, willfully denying them overtime wages. 28. Defendants are liable under the FLSA for, inter alia, failing to properly compensate Plaintiff and the FLSA Collective. 29. Consistent with Defendants’ policy and pattern or practice, Plaintiff and the FLSA Collective Plaintiffs were not paid the appropriate premium overtime compensation for all hours worked beyond 40 hours per workweek. 30. All the work that Plaintiff and the FLSA Collective Plaintiffs have performed are assigned by Defendants, and/or Defendants have been aware of all work that Plaintiff and the FLSA Collective Plaintiffs have performed. 32. Defendants’ unlawful conduct, as described in this Complaint, is pursuant to a company policy or practice of minimizing labor costs by failing to adequately compensate Plaintiff and the FLSA Collective Plaintiff for the overtime hours worked. 33. Defendants are aware or should have been aware that federal law required them to pay Plaintiff and the FLSA Collective Plaintiff overtime premiums for hours worked in excess of 40 per workweek. 34. Plaintiff and the FLSA Collective Plaintiffs perform or performed the same primary duties and were subject to the same policies and practices by Defendants. 35. Defendants’ unlawful conduct is widespread, repeated and consistent. 36. There are many similarly situated current and former non-exempt workers who have been denied overtime wages in violation of the FLSA who would benefit from the issuance of a court-supervised notice of this lawsuit and the opportunity to join it. This notice should be sent to the FLSA Collective Plaintiffs pursuant to 29 U.S.C. § 216(b). 37. Those similarly situated employees are known to Defendants, are readily identifiable and can be located through Defendants’ records. 39. NSC specializes in asbestos abatement and environmental remediation in New York City, Long Island, Westchester and Hudson Valley. NSC states on its website that its services include residential and commercial services such as asbestos abatement, encapsulation, and enclosure on all type of asbestos materials, lead abatement, encapsulation and enclosure on all types materials found throughout homes and public buildings, insulation on piping and boiler surfaces, interior and exterior demolition, HVAC duct cleaning and sanitizing in private homes and public buildings and regulated waste hauling. 40. Upon information and belief, Defendants have entered into certain contracts, as either a subcontractor or prime contractor, with government or public agencies, to provide services for certain public work projects within the State of New York including, but not limited to, New York City, to engage in asbestos removal. 41. Upon information and belief, the public works contracts required that Defendants pay and ensure payment of the prevailing rates of wages and supplements to all workers furnishing labor on the sites of the public work projects, pursuant to the NYLL § 220 et seq., including their direct employees and all other persons furnishing labor on the sites of the public work projects. 43. As required by law, a schedule containing the prevailing rates of wages and supplemental benefits to be paid to Plaintiff should have been annexed to and form a part of the public works contracts. If not annexed to the public works contracts, these schedules were expressly or impliedly incorporated into the contracts as a matter of law and/or public policy. 44. The promise to pay and ensure payment of the prevailing wage and supplemental benefit rated in the public works contracts was made for the benefit of all workers furnishing labor on the sites of public works projects are the beneficiaries of that promise and the contracts entered into between Defendants and government agencies. 45. Upon information and belief, in furtherance of the public works contracts entered into by Defendants, Plaintiff worked on various asbestos projects within the State of New York including, but not limited to Yorkers, Liberty, Kingston, Queens, and New York City, on behalf of government or public agency. 46. Throughout the relevant time period, Defendants obtained contracts within the town of Liberty, the city of Kingston, and various public Catholic schools, churches and hospitals in New York City and within the State of New York, whereby they were required to pay their laborers and supervisors prevailing wages. Throughout the time period, Plaintiff typically did not receive the statutorily required prevailing wage plus supplemental benefits, as required by state and federal law, for all hours worked on prevailing wage jobs. 48. Defendants, employed Fabian as an asbestos remover without interruption, approximately from June 2014 until June 29, 2017. Fabian worked on behalf of Defendants within the State of New York, including but not limited to New York City, Queens, Yorkers, Liberty, and Kingstone on Public Work Projects on behalf of government or public agency. 49. Throughout the majority of his employment with Defendants, Fabian consistently worked more than 40 hours a week. 50. Throughout the majority of his employment with Defendants, Plaintiff was not paid the prevailing rate of wages and supplements for all his work performed on the public works project. 51. Throughout his employment with Defendants, even though Fabian was not exempt, Plaintiff was not paid time and one-half for all overtime work performed. 53. Plaintiff, on behalf of himself and the FLSA Collective Plaintiffs, re-alleges and incorporates by reference all allegations in all preceding paragraphs. 54. The overtime wage provisions set forth in the FLSA, 29 U.S.C. §§ 201 et seq., and the supporting federal regulations, apply to Defendants and protect Plaintiff and the FLSA Collective Plaintiffs. 55. Plaintiff and the FLSA Collective Plaintiffs worked in excess of forty hours during some workweeks in the relevant period. 56. Defendants willfully failed to pay Plaintiff and the FLSA Collective Plaintiffs the appropriate overtime premiums for all hours worked in excess of 40 hours per workweek, as required by the FLSA, 29 U.S.C. §§ 201 et seq., and the supporting federal regulations. 57. Defendants’ unlawful conduct, as described in this Complaint, has been willful and intentional. Defendants are aware or should have been aware that the practices described in this Complaint were unlawful. Defendants have not made a good faith effort to comply with the FLSA with respect to the compensation of Plaintiff and the FLSA Collective Plaintiffs. 58. Because Defendants’ violations of the FLSA have been willful, a three-year statute of limitations applies, pursuant to 29 U.S.C. §§ 201 et seq. 60. Plaintiff re-alleges and incorporates by reference all allegations in all preceding paragraphs. 61. Defendants failed to pay Plaintiff the proper overtime wages to which he is entitled under the NYLL and the supporting New York State Department of Labor Regulations. 62. Defendants failed to pay Plaintiff one and one-half times the full minimum wage for all work in excess of forty hours per workweek. 63. Through their knowing or intentional failure to pay Plaintiff overtime wages for hours works worked in excess of forty hours per workweek, Defendants have willfully violated the NYLL, Article 19, §§ 650 et seq., and the supporting New York State Department of Labor Regulations. 64. Due to Defendants’ willful violations of the NYLL, Plaintiff is entitled to recover from Defendants his unpaid overtime wages, liquidated damages as provided for by the NYLL, reasonable attorneys’ fees, costs and pre-judgment and post-judgment interest. 65. Plaintiff re-alleges and incorporates by reference all allegations in all preceding paragraphs. 67. Through their knowing or intentional failure to provide Plaintiff with the wage notices required by the NYLL, Defendants have willfully violated NYLL, Article 6, §§ 190 et seq., and the supporting New York State Department of Labor Relations. 68. Due to Defendants’ willful violations of NYLL, Article 6, § 195(1), Plaintiff is entitled to statutory penalties of fifty dollars for each workweek before December 29, 2014 and fifty dollars for each workday after December 29, 2014 that Defendants failed to provide Plaintiff and the FLSA Collective with a wage notice, or a total of five thousand dollars, reasonable attorneys’ fees, costs and injunctive and declaratory relief, as provided for by the NYLL, Article 6, § 198(1-b). 69. Plaintiff re-alleges and incorporates by reference all allegations in all preceding paragraphs. 71. Through their knowing or intentional failure to provide Plaintiff with the wage statements required by the NYLL, Defendants have willfully violated NYLL, Article 6, §§ 190 et seq., and the supporting New York State Department of Labor Regulations. 72. Due to Defendants’ willful violations of NYLL, Article 6, § 195(3), Plaintiff is entitled to statutory penalties of one hundred dollars for each workweek before December 29, 2014 and two hundred fifty dollars for each workday after December 29, 2014 that Defendants failed to provide Plaintiff and the FLSA Collective with accurate wage statements, or a total of five thousand dollars, reasonable attorneys’ fees, costs and injunctive and declaratory relief, as provided for by NYLL, Article 6, § 198(1-d). 73. Plaintiff re-alleges and incorporates by reference all allegations in all preceding paragraphs. 74. Upon information and belief, the public works contracts entered into by Defendants contained schedules of the prevailing rates of wages and supplemental benefits to be paid to Plaintiff. 76. Defendants breach the public works contracts by failing to pay Plaintiff prevailing rates of wages and supplemental benefits to be paid to Plaintiff. 77. Those prevailing rates of wages and supplemental benefits were made part of the public work contracts for the benefit of Plaintiff. 78. Defendants breached the public work contracts by failing to pay Plaintiff the prevailing rates of wages, overtime, shift-differential and holiday premiums and supplemental benefits for all labor performed on the public work projects. 79. As a result of the public work contracts, Defendants are liable to Plaintiff in an amount to be determined at trial. 80. Plaintiff repeats, realleges and incorporates by reference the foregoing allegations as if set forth full and again herein. 81. Defendants willfully violated the rights of Plaintiff by making improper deductions from their earned wages, in violation of § 193 of the New York Labor Law and the regulations promulgated thereunder. 83. Plaintiff re-alleges and incorporates by reference all allegations in all preceding paragraphs. 84. Plaintiff has performed a significant amount of work for which he has not been paid correctly. 85. Upon information and belief, when Defendants entered into the public works contracts, they agreed to pay the required prevailing wages, overtime, shift-differential and holiday premiums, and supplemental benefit rates of pay to Plaintiff. 86. As a result of this failure to pay said wages, Defendants were unjustly enriched for work and services performed by Plaintiff. BREACH OF CONTRACT (Brought on behalf of Plaintiff) Fair Labor Standards Act-Overtime Wages (Brought on behalf of Plaintiff and the FLSA Collective Plaintiffs) NEW YORK LABOR LAW-UNLAWFUL WAGE DEDUCTIONS (Brought on behalf of Plaintiff) NSC ABATEMENT SERVICES, INC. New York Labor Law-Unpaid Overtime (Brought on behalf of Plaintiff) New York Labor Law – Failure to Provide Annual Wage Notices (Brought on behalf of Plaintiff) New York Labor Law-Failure to Provide Wage Statements (Brought on behalf of Plaintiff) | win |
224,489 | CIVIL DIVISION GINA SIGNOR, individually and on behalf of all those similarly situated, Plaintiff, CIVIL DIVISION GINA SIGNOR, individually and on behalf of all those similarly situated, Plaintiff, I,, SHIPPED TO DEALER VEHICLE MANUFACTURED AND | lose |
445,604 | 19. On or about December 24, 2015, Defendant sent a written communication to Plaintiff in connection with the collection of the Debt. A true and correct copy of the relevant page of the December 24, 2015 communication is attached hereto as Exhibit A. 20. The December 24, 2015 communication was the first communication Plaintiff received from Defendant concerning the Debt. 21. Plaintiff did not receive any additional communications from Defendant within five days of the December 24, 2015 communication. 22. The December 24, 2015 communication to Plaintiff stated, “Your Sam’s Club MasterCard Account, which was issued by and owed to Synchrony Bank, has been referred to us by our client for collection.” See Ex. A. 25. Further, Defendant’s December 24, 2015 communications also violated 15 U.S.C. § 1692g(a)(5) by failing to inform Plaintiff that Defendant need only provide him the name and address of the original creditor, if different from the current creditor, if he notified Defendant of such request, in writing. 27. Defendant’s misstatement of the rights afforded by the FDCPA would cause the least-sophisticated consumer to understand, incorrectly, that validation of the debt, or a request for the name and address of the original creditor, could be obtained through an oral request, or by means other than in writing. Such a misunderstanding could lead the least-sophisticated consumer to waive or otherwise not properly vindicate her rights under the FDCPA. 28. Indeed, failing to dispute the debt in writing, or failing to request the name and address of the original creditor, in writing, would cause a consumer to waive the important protections afforded by 15 U.S.C. § 1692g(b)—namely, that a debt collector cease contacting the consumer until the debt collector provides the consumer with verification of the alleged debt and/or the original creditor’s name and address, as requested. 30. Plaintiff bring this action as a class action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) on behalf of a class consisting of: (a) All persons with a Florida address, (b) to whom GC Services Limited Partnership mailed an initial debt collection communication that stated: (1) “if you do dispute all or any portion of this debt within 30 days of receiving this letter, we will obtain verification of the debt from our client and send it to you,” and/or (2) “if within 30 days of receiving this letter you request the name and address of the original creditor, we will provide it to you in the event it differs from our client,” (c) in the one year preceding the date of this complaint, (d) in connection with the collection of a consumer debt. Excluded from the class is Defendant, its officers and directors, members of their immediate families and their legal representatives, heirs, successors, or assigns, and any entity in which Defendant has or had controlling interests. 31. The proposed class satisfies Fed. R. Civ. P. 23(a)(1) because, upon information and belief, it is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to Plaintiff at this time and can only be ascertained through appropriate discovery. The proposed class is ascertainable in that, upon information and belief, the names and addresses of all members of the proposed class can be identified in business records maintained by Defendant. 32. The proposed class satisfies Fed. R. Civ. P. 23(a)(2) and (3) because Plaintiff’s claims are typical of the claims of the members of the class. To be sure, the claims of Plaintiff and all of the members of the class originate from the same conduct, practice and procedure on the part of Defendant, and Plaintiff possesses the same interests and has suffered the same injuries as each member of the proposed class. 34. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy, since joinder of all members is impracticable. 35. Furthermore, as the damages suffered by individual members of the class may be relatively small, the expense and burden of individual litigation make it impracticable for the members of the class to individually redress the wrongs done to them. There will be no difficulty in the management of this action as a class action. 36. Issues of law and fact common to the members of the class predominate over any questions that may affect only individual members, in that Defendant has acted on grounds generally applicable to the class. Among the issues of law and fact common to the class are: a. Defendant’s violations of the FDCPA as alleged herein; b. Defendant’s failure to properly provide in its initial debt collection letter the disclosures required by 15 U.S.C. § 1692g; c. Whether Defendant is a debt collector as defined by the FDCPA; d. the existence of Defendant’s identical conduct particular to the matters at issue; e. the availability of statutory penalties; and f. the availability of attorneys’ fees and costs. 37. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through 36. 39. Defendant’s December 24, 2015 communication did not contain the proper disclosures required by 15 U.S.C. § 1692g(a)(4), and Defendant did not provide such disclosures within five days thereafter. 40. Specifically, the December 24, 2015 communication violated 15 U.S.C. § 1692g(a)(4) by failing to inform Plaintiff that Defendant need only mail verification of the Debt to him, and a copy of any judgment, if he notified Defendant that he disputed the Debt, or any portion thereof, in writing. 41. As a result, Defendant violated 15 U.S.C. § 1692g(a)(4). 42. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through 36. 44. Defendant’s December 24, 2015 communication did not contain the proper disclosures required by 15 U.S.C. § 1692g(a)(5), and Defendant did not provide such disclosures within five days thereafter. 45. Specifically, the December 24, 2015 communication violated 15 U.S.C. § 1692g(a)(5) by failing to inform Plaintiff that Defendant need only provide him the name and address of the original creditor, if different from the current creditor, if he notified Defendant of his request for that information in writing. 46. As a result, Defendant violated 15 U.S.C. § 1692g(a)(5). 47. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through 36. 48. The FDCPA at 15 U.S.C. § 1692e provides, in pertinent part, that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 49. Defendant’s December 24, 2015 communication did not contain the proper disclosures required by 15 U.S.C. § 1692g(a)(4) and 15 U.S.C. § 1692g(a)(5), and Defendant did not provide such disclosures within five days thereafter. PRACTICES ACT, 15 U.S.C. § 1692e PRACTICES ACT, 15 U.S.C. § 1692g(a)(4) PRACTICES ACT, 15 U.S.C. § 1692g(a)(5) | win |
168,876 | 29. Plaintiff brings suit on behalf of herself and on behalf of all other participants and beneficiaries similarly situated under the provisions of Rule 23 of the Federal Rules of Civil Procedure with respect to violations alleged herein. 30. The proposed Class is defined as follows: All persons who participated in the Allmerica Cash Balance Pension Plan who vested or will vest in an accrued benefit under the Plan’s cash balance formula between January 1, 1995 and December 31, 2004; and the beneficiaries and estates of such persons. 31. The requirements for maintaining this action as a class action under Fed. R. Civ. P. 23(a)(1) are satisfied in that there are too many Class members for joinder of all of 8 them to be practicable. There are thousands of members of the proposed Class dispersed among many states. 32. The claims of the Class members raise numerous common questions of fact and law, thereby satisfying the requirements of Fed. R. Civ. P. 23(a)(2). All issues concerning liability are common to all Class members because such issues concern their entitlement to benefits calculated in a manner other than that calculated thus far and their entitlement to relief from harm caused by the violations of law, rather than any action taken by Plaintiffs or any Class member. In addition, all issues concerning relief are also common to the Class. 33. The computation of a participant’s lump sum distribution and the amount of lump sum distributions is standardized in that the amount of the lump sum distribution for each member of the Class was calculated in the same manner as described above. Thus, there exist common questions of fact as to each member of the Class. Each Class member’s rights will be determined by resort to the same Plan documents and the same provisions of ERISA. Thus, there exist common questions of law as to each Class member, i.e., whether the method of calculating of lump sum distributions violated the law. 34. Plaintiff’s claims are typical of the claims of Class members, and therefore satisfy the requirements of Fed. R. Civ. P. 23(a)(3). She does not assert any claims relating to the Plan in addition to or different than those of the Class. Plaintiff’s claims are typical of the claims of the Class members in that her lump sum distribution was calculated in the same fashion as the rest of the Class, and her rights as well as those of the Class as a whole, are similarly provided for under the plan document and applicable provisions of ERISA. 9 35. Plaintiff is an adequate representative of the proposed Class, and therefore satisfies the requirements of Fed. R. Civ. P. 23(a)(4). Plaintiff’s interests are identical to those of the proposed Class. The Plan has no unique defenses against him that would interfere with their representation of the class. Plaintiff has engaged counsel with extensive ERISA class action litigation experience and expertise. 36. Additionally, all of the requirements of Fed. R. Civ. P. 23(b)(1) are satisfied in that the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications establishing incompatible standards of conduct for defendants and individual adjudications present a risk of adjudications which, as a practical matter, would be dispositive of the interests of other members who are not parties. 37. All of the requirements of Fed. R. Civ. P. 23(b)(2) also are satisfied in that the Plan’s actions affected all Class members in the same manner making appropriate final declaratory and injunctive relief with respect to the Class as a whole. | win |
428,765 | 19. Mr. and Ms. Lewis moved into the Complex in March 2007. It was the first home that they had purchased together. 20. They chose to purchase in the Complex because it appeared to be a nice place to raise children, it was close to their immediate family, and Mrs. Lewis was expecting their first child. Shortly after they moved in, their son, E.L., was born. 22. The common areas of the Complex—including the quads and swimming pool— are designed and designated for use by all residents in the CC&Rs. There is no restriction against children, and no restriction against outdoor play in the common areas. In fact, the basic configuration of the Complex, with individual condominium homes each facing into an open, common quad area, naturally invite community interaction, including play among resident children. 23. There are no parks or playgrounds in the immediate area around the Complex; the nearest park is the Warm Springs Park about half a mile away, which requires crossing a street with high traffic volume to reach. It is a dangerous street for children to cross, especially young children, even when accompanied by an adult. It is also an inconveniently long walk for young children. 24. Mr. and Mrs. Lewis were unaware at the time they purchased and moved into the Complex that the Association had a long history of discrimination against children and families with children; in particular, a history of rules that forbid children to play in the common areas of the Complex, including the quad areas. The History of Discrimination Against Families with Children at Silvertree Mohave 25. The Association publishes a monthly newsletter for the residents and homeowners called the “Silvertree Mohave Newsletter” (the “Newsletter”). Among other things, the Newsletter purports to provide “legal notice” to all members of the Association. Resolutions passed by the Board are published in the Newsletter. 26. The Newsletter is published by Management Solutions and sent to all Association members by Management Solutions. The Board requires nonresident homeowners to provide the information in the Newsletter to their tenant residents in the Complex. 28. For example, on information and belief, as of at least August 30, 2000, the Association has enforced rules prohibiting children under the age of 14 from playing in all common areas of the Complex, including swimming in the pool without adult supervision, and playing outside with or without adult supervision. 29. For example, in response to occurrences of children playing in the common areas in September 2003, the Board passed a resolution prohibiting “all sports play within the quad areas.” The 2003 Resolution, as passed, reads: 97. The Lewis Plaintiffs who, as of the date of filing this complaint, reside at the Complex, seek to bring this case on behalf of themselves and on behalf of a class of similarly situated individuals pursuant to Federal Rule of Civil Procedure 23. Background Violation of the California Fair Employment and Housing Act on the basis of familial status All Plaintiffs vs. All Defendants 119. Plaintiffs re-allege and incorporate herein by reference each and every allegation contained in all paragraphs above. 120. Defendants have injured Plaintiffs in violation of the California Fair Employment and Housing Act by: a. Discriminating against or harassing Plaintiffs because of family status in violation of Cal. Gov’t Code §§ 12955(a), 12955(d), 12955(k); and b. Making statements of discrimination, limitation, or preference based on family status, in violation of Cal. Gov’t Code § 12955(c); c. Aiding, abetting, or inciting in the discrimination of residents because of family status in violation of Cal. Gov’t. Code § 12955(g). 121. As a proximate cause of Defendants’ conduct, Plaintiffs have been damaged and continue to suffer damages, as set forth above. 122. Wherefore, Plaintiffs pray for relief and judgment as set forth below. | win |
451,975 | 20. Plaintiff brings this action as a class action on behalf of himself and the other public stockholders of U.S. Geothermal (the “Class”). Excluded from the Class are defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any defendant. 21. This action is properly maintainable as a class action. 22. The Class is so numerous that joinder of all members is impracticable. As of December 31, 2017, there were approximately 19,449,984 shares of U.S. Geothermal common stock outstanding, held by hundreds, if not thousands, of individuals and entities scattered throughout the country. 23. Questions of law and fact are common to the Class, including, among others, whether defendants will irreparably harm plaintiff and the other members of the Class if defendants’ conduct complained of herein continues. 24. Plaintiff is committed to prosecuting this action and has retained competent counsel experienced in litigation of this nature. Plaintiff’s claims are typical of the claims of the other members of the Class and plaintiff has the same interests as the other members of the Class. Accordingly, plaintiff is an adequate representative of the Class and will fairly and adequately protect the interests of the Class. 27. U.S. Geothermal is a leading and profitable renewable energy company focused on the development, production, and sale of electricity from geothermal energy. 28. The Company is currently operating geothermal power projects at Neal Hot Springs, Oregon, San Emidio, Nevada, and Raft River, Idaho for a total power generation of approximately 45 MWs. 29. The Company is also developing an additional estimated 115 MWs of projects at: the Geysers, California; a second phase project at San Emidio, Nevada; at Crescent Valley, Nevada; and the El Ceibillo project located near Guatemala City, Guatemala. 30. According to its website, U.S. Geothermal’s growth goal is to reach over 200 MWs of generation by 2021 through a combination of internal development and strategic acquisitions. 31. On January 24, 2018, the Individual Defendants caused the Company to enter into the Merger Agreement with Ormat. 32. Pursuant to the terms of the Merger Agreement, shareholders of U.S. Geothermal will receive $5.45 in cash for each share of U.S. Geothermal common stock owned. 50. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein. 51. The Individual Defendants disseminated the false and misleading Proxy Statement, which contained statements that, in violation of Section 14(a) of the 1934 Act and Rule 14a-9, in light of the circumstances under which they were made, omitted to state material facts necessary to make the statements therein not materially false or misleading. U.S. Geothermal is liable as the issuer of these statements. 52. The Proxy Statement was prepared, reviewed, and/or disseminated by the Individual Defendants. By virtue of their positions within the Company, the Individual Defendants were aware of this information and their duty to disclose this information in the Proxy Statement. 53. The Individual Defendants were at least negligent in filing the Proxy Statement with these materially false and misleading statements. 58. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein. 59. The Individual Defendants acted as controlling persons of U.S. Geothermal within the meaning of Section 20(a) of the 1934 Act as alleged herein. By virtue of their positions as officers and/or directors of U.S. Geothermal and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the false statements contained in the Proxy Statement, they had the power to influence and control and did influence and control, directly or indirectly, the decision making of the Company, including the content and dissemination of the various statements that plaintiff contends are false and misleading. Background of the Company and the Proposed Transaction Claim for Violation of Section 14(a) of the 1934 Act and Rule 14a-9 Promulgated Thereunder Against the Individual Defendants and U.S. Geothermal Claim for Violation of Section 20(a) of the 1934 Act Against the Individual Defendants | lose |
8,359 | 15. Defendant, DAVID MANDELL, actively participates in the day-to-day operation of KEY FOOD. For instance, he is responsible for the facilities management of at least five (5) of Key Food supermarket locations. As such, he supervises and directs the work of the employees, including individual store managers, to ensure high standards; instructs employees how to perform their jobs; and corrects employees for errors made. 16. Defendant, DAVID MANDELL, creates and approves all crucial business policies at each store location. This includes decisions concerning the hiring and firing of employees, the number of hours the employees work, the amount of pay that the employees are entitled to receive, and the manner and method by which the employees are paid. 17. Defendant, DAVID MANDELL, is also responsible for achieving KEY FOOD'S sales goals, developing and expanding business, monitoring profits and losses, developing annual budgets, and executing business plans. 18. Defendant, DAVID MANDELL, is further responsible for ensuring each Key Food supermarket location operates on a cost efficient basis within an established framework of the company's business policies, which includes monitoring and limiting business overhead and expenses. 4 19. On or about February I 0, 2018, Defendants hired Plaintiff to work as a non-exempt stock person at the Oakland Gardens Store Location. 20. Neither at the time of his hire nor anytime thereafter did Defendants provide Plaintiff with a written wage notice setting forth his regular hourly rate of pay and his corresponding overtime rate of pay. 21. Plaintiff worked for Defendants m that capacity until on or about September 19, 2018. 22. Plaintiff worked over forty (40) hours per week. 23. Throughout the entirety of his employment, Plaintiff worked six (6) days per week, and his work shift consisted of ten (10) hours on Monday from 11 :00 a.m. until 9:00 p.m.; nine (9) hours per day on Tuesday, Friday, and Saturday from 7:00 a.m. until 4:00 p.m.; nine (9) hours on Wednesday from 12:00 p.m. until 9:00 p.m.; and eleven (11) hours on Thursday from 10:00 a.m. until 9:00 p.m. Plaintiff normally received a one (1) hour lunch break each day. 24. Plaintiff was required to punch a time clock or other time-recording device at the start and end of his work shift. 25. Throughout the entirety of his employment, Plaintiff was paid, in cash, at the rate of $13 per hour straight time for all hours worked, and worked fifty-one (51) hours per week. Work performed above forty ( 40) hours per week was not paid at the statutory rate of time and one-half as required by state and federal law. 26. Upon paying Plaintiff his cash wages each week, Defendants failed to provide Plaintiff with a written wage statement setting forth his gross wages, deductions, and net wages. 5 27. Defendants knowingly and willfully operated their business with a policy of not paying Plaintiff and other similarly situated employees either the FLSA overtime rate ( of time and one-halt), or the New York State overtime rate ( of time and one-halt), in direct violation of the FLSA and New York Labor Law and the supporting federal and New York State Department of Labor Regulations. 28. At all relevant times, upon information and belief, and during the course of Plaintiffs employment, Defendants failed to maintain accurate and sufficient time records. 29. Plaintiff brings this action individually and as class representative on behalf of himself and all other current and former non-exempt, non-managerial employees who have been or were employed by the Defendants since October 15, 2015 until the close of the opt-in period (the "Collective Action Period"), and who were compensated at rates less than time and one-half for all hours worked in excess of forty ( 40) hours per workweek (the "Collective Action Members"). 3 7. Plaintiff sues on his own behalf and on behalf of a class of persons under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure. 8 30. The collective action class is so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, and the facts upon which the calculation of that number are presently within the sole control of the Defendants, upon infon.nation and belief, there are more than forty ( 40) Collective Action Members who worked for Defendants during the Collective Action Period, most of whom would not be likely to file individual suits because they lack adequate financial resources, access to attorneys, or knowledge of their claims. Therefore, Plaintiff submits 6 that this matter should be certified as a collective action under the FLSA, 29 U.S.C. § 216(b). 31. Plaintiff will fairly and adequately protect the interests of the Collective Action Members and has retained counsel that is experienced and competent in the fields of employment law and class action litigation. Plaintiff has no interests that are contrary to or in conflict with those members of this collective action. 32. This action should be certified as a collective action because the prosecution of separate actions by individual members of the class would create a risk of either inconsistent or varying adjudications with respect to individual members of the class, or adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudication, or substantially impair or impede their ability to protect their interests. 33. A collective action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all members is impracticable. Furthermore, inasmuch as the damages suffered by individual Collective Action Members may be relatively small, the expense and burden of individual litigation make it virtually impossible for the members of the collective action to individually seek redress for the wrongs done to them. There will be no difficulty in the management of this action as a collective action. 34. Questions Qf law and fact common to the members of the collective action predominate over questions that may affect only individual members because Defendants have acted on grounds generally applicable to all members. Among the common questions of law and fact common to Plaintiff and other Collective Action Members are: 7 a. Whether Defendants employed Plaintiff and the Collective Action Members within the meaning of the FLSA; b. Whether Defendants failed to keep true and accurate wage and hour records for all hours worked by Plaintiff and the Collective Action Members; c. What proof of hours worked is sufficient where the employer fails in its duty to maintain wage and hour records; d. Whether Defendants failed to pay Plaintiff and the Collective Action Members overtime compensation for all hours worked in excess of forty ( 40) hours per workweek, in violation of the FLSA and the regulations promulgated thereunder; e. Whe1her Defendants' violations of the FLSA are willful as that terms is used within the context of the FLSA; and, f. Whether Defendants are liable for all damages claimed hereunder, including but not limited to compensatory, liquidated and statutory damages, interest, costs and disbursements, and attorneys' fees. 35. Plaintiff knows of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a collective action. 36. Plaintiff and others similarly situated have been substantially damaged by Defendants' wrongful conduct. 38. Plaintiff brings his New York Labor Law claims on behalf of all persons who were employed by Defendants at any time since October 16, 2012 until the entry of judgment in this case (the "Class Period") who were non-exempt employees within the meaning of the New York Labor Law and have not been paid overtime compensation in violation of the New York Labor Law (the "Class"). 39. Upon information and belief, the persons in the Class identified herein are so numerous that joinder of all members is impracticable. Although the identity and precise number of such persons is unknown, and the facts upon which the calculation of that number may be ascertained are presently within the sole control of Defendants, the Class consists of all non-managerial current and former employees and, therefore, is so numerous that joinder is impracticable and most of whom would not be likely to file individual suits because they lack financial resources, access to attorneys, or knowledge of their claims. 40. The claims of Plaintiff are typical of the claims of the Class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy, particularly in the context of wage and hour litigation, where individuals lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant. 41. Defendant:) have acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 42. Plaintiff has committed himself to pursuing this action and has retained counsel experienced in employment law and class action litigation . ... 9 43. Plaintiff will fairly and adequately protect the interests of the NY Class members. Plaintiff understands that, as class representative, he assumes a fiduciary responsibility to the Class and Collective Action Members to represent their interests fairly and adequately, and that he must consider the interests of the Class and Collective Action Members just as h~ would represent and consider his own interests, and that he may not favor his own interests over those of the Class or Collective Action Members. 44. Plaintiff recognizes that any resolution of a class action lawsuit, including any settlement or dismissal thereof, must be in the best interests of the Class and Collective Action Members. Plaintiff understands that in order to provide adequate representation, he must remain informed of litigation developments and he understands that he may be called upon to testify in depositions and at trial. 45. Plaintiff has the same interests in this matter as all other members of the Class and Plaintiffs claims are typical of the Class. 46. There are questions of law and fact common to the Class which predominate over any questions solely affecting the individual members of the Class, including but not limited to: a. Whether Defendants employed Plaintiff and Class members within the meaning of the New York Labor Law; b. Whether Defendants failed to keep true and accurate wage and hour records for all hours worked by Plaintiff and the Class; c. What proof of hours worked is sufficient where the employer fails in its duty to maintain time records; 10 d. Whether Defendants failed to pay Plaintiff and members of the Class overtime compensation for all hours worked in excess of forty (40) hours per workweek, in violation of the New York Labor Law and the regulations promulgated thereunder; and, e. Whether Defendants are liable for all damages claimed hereunder, including but not limited to compensatory, liquidated and statutory damages, interest, costs and disbursements and attorneys' fees. 48. At all relevant times, upon information and belief, Defendants were and continue to be an employer engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiff and the Collective Action Members are covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 49. At all relevant times, Defendants employed Plaintiff and the Collective Action Members within the meaning of the FLSA. 50. Upon information and belief, at least within each of the three (3) most recent years from the date of this Complaint, KEY FOOD had gross revenues in excess of $500,000. 11 51. Plaintiff an~ .the Collective Action Members were entitled to be paid at the statutory rate of time and one-half for all hours worked in excess of the maximum hours provided for in the FLSA. 52. Defendants failed to pay Plaintiff and the Collective Action Members overtime compensation in the lawful amount for all hours worked in excess of the maximum hours provided for in the FLSA. 53. At all relevant times, Defendants had, and continues to have a policy and practice of refusing to pay overtime compensation at the statutory rate of time and one- half to Plaintiff and the Collective Action Members for all hours worked in excess of forty ( 40) hours per work week, which violated and continues to violate the FLSA, 29 U.S.C. §§ 201 et seq., including 29 U.S.C. §§ 207(a)(l) and 215(a). 54. Defendants knowingly and willfully disregarded the prov1s10ns of the FLSA as evidenced by their failure to compensate Plaintiff and the Collective Action Members at the statutory overtime rate of time and one-half for all hours worked in excess of forty ( 40) hours per week, when they knew or should have known such was due and that non-payment of overtime compensation would financially injure Plaintiff and the Collective Action Members. 55. As a result of Defendants' failure to properly record, report, credit and/or compensate its employees, including Plaintiff and the Collective Action Members, Defendants have failed to make, keep and preserve records with respect to each of its employees sufficient to determine the wages, hours and other conditions and practices of employment in violation of the FLSA, 29 U.S.A. §§ 201 et seq., including 29 U.S .C. §§ 21 l(c) and 215(a). 12 56. Defendants failed to properly disclose or appnse Plaintiff and the Collective Action Members of their rights under the FLSA. 57. As a direct and proximate result of Defendants' violation of the FLSA, Plaintiff and the Collective Action Members are entitled to liquidated damages pursuant to the FLSA. 58. Due to the intentional, willful and unlawful acts of Defendants, Plaintiff and the Collective Action Members suffered damages in an amount not presently ascertainable of unpaid overtime compensation, an equal amount as liquidated damages, and prejudgment interest thereon. 59. Plaintiff and the Collective Action Members are entitled to an award of their reasonable attorneys' fees, costs and expenses, pursuant to 29 U.S.C. § 216(b). 60. Plaintiff re-alleges and re-avers each and every allegation and statement contained in paragraphs "I" through "59" of this Complaint as if fully set forth herein. 61. At all times relevant hereto, Defendants employed Plaintiff and members of the Class within the me_aning of New York Labor Law§§ 2 and 651. 62. Plaintiff and Class members were entitled to be paid at the statutory rate of time and one-half for all hours worked in excess of forty (40) per workweek. 63. Defendants failed to pay Plaintiff and Class members overtime compensation in the lawful amount for all hours worked in excess of forty ( 40) per week in direct contravention of the New York Labor Law. 64. Defendants had, and continue to have a policy and practice of refusing to pay overtime compensation at the statutory rate of time and one-half to Plaintiff and 13 Class members for all hours worked in excess of forty ( 40) hours per work week, which violated and continues to violate the New York Labor Law. 65. Defendants failed to furnish Plaintiff and members of the Class with a statement with every payment of wages listing gross wages, deductions and net wages, in contravention of New York Labor Law § 195(3) and New York State Department of Labor Regulations§ 142-2.7. 66. Defendants failed to keep true and accurate records of hours worked by each employee covered by an hourly minimum wage rate, the wages paid to all employees, and other similar information in contravention of New York Labor Law § 661. 67. Defendants failed to establish, maintain, and preserve for not less than six ( 6) years payroll records showing the hours worked, gross wages, deductions, and net wages for each employee,. in contravention of the New York Labor Law § 194( 4 ), and New York State Department of Labor Regulations§ 142-2.6. 68. Neither at the time of his hiring, nor anytime thereafter, did Defendants notify Plaintiff in writing of his regular and overtime rates of pay and their regularly designated payday, in contravention of New York Labor Law§ 195(1). 69. Due to Defendants' New York Labor Law violations, Plaintiff and Class members are entitled to recover from Defendants their unpaid overtime compensation, reasonable attorneys' fees, and costs and disbursements of this action, pursuant to New York Labor Law§ 663(1) el al. and§ 198. 14 70. Plaintiff and Class members are also entitled to liquidated damages pursuant to New York Labor Law § 663(1), as well as civil penalties and/or liquidated damages pursuant to the New York State Wage Theft Prevention Act. [Violation of the New York Labor Law] [Violation of the Fair Labor Standards Act] 4 7. Plaintiff re-alleges and re-avers each and every allegation and statement contained in paragraphs "1" through "46" of this Complaint as if fully set forth herein. | win |
66,349 | 26. USO is a commodity pool and ETF designed to allow investors to gain exposure to fluctuations in the price of oil. Because most retail investors are not equipped to buy and sell barrels of oil or authorized to trade oil futures contracts, they utilize ETFs such as USO to make investments based on the price of oil and to gain investment exposure to fluctuations in spot oil prices. 27. The Fund’s investment objective is for the daily changes in percentage terms of its per share NAV to reflect the daily changes in percentage terms of the spot price of WTI light, sweet crude oil delivered to Cushing, Oklahoma. The Fund measures changes in the spot price of oil by reference to the daily changes in the price of specified short-term oil futures contracts— called the “Benchmark Oil Futures Contract”—plus interest earned on USO’s collateral holdings, less USO’s expenses. 74. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of all persons who purchased USO shares pursuant to or otherwise traceable to the Registration Statement (the “Class”). Excluded from the Class are Defendants, the officers and directors of the defendant companies, at all relevant times, members of the immediate families of each of the Defendants, any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest or which is related to or affiliated with any of the Defendants, and the legal representatives, agents, heirs, successors or assigns and any such excluded party. 79. Plaintiff repeats and realleges each and every allegation contained above. 80. This Count is brought pursuant to § 11 of the 1933 Act, 15 U.S.C. § 77k, on behalf of the Class, against all Defendants. 81. This Count does not sound in fraud. Plaintiff does not allege that Defendants had scienter or fraudulent intent, which are not elements of a § 11 claim. 82. The Registration Statement was inaccurate and misleading, contained untrue statements of material fact, omitted to state other facts necessary to make the statements made not misleading, and omitted to state material facts required to be stated therein. 83. Defendants named herein were responsible for the contents and dissemination of the Registration Statement. 84. USO is the registrant for the Fund shares sold pursuant to or traceable to the Registration Statement. As the issuer of the shares, USO is strictly liable to Plaintiff and the Class for the misstatements and omissions. 85. Each of the Individual Defendants signed the Registration Statement and, for some Individual Defendants, were also named in the Registration Statement as being directors or persons performing similar functions. 86. Each of the Underwriter Defendants qualifies as an “underwriter” under § 11 of the 1933 Act. 87. None of the Defendants named herein made a reasonable investigation or possessed reasonable grounds for the belief that the statements contained in the Registration Statement were true and without omissions of any material facts and were not misleading. 92. Plaintiff repeats and realleges each and every allegation contained above. 93. This Count is brought pursuant to § 15 of the 1933 Act against USO, the Sponsor, and the Individual Defendants. 94. This Count does not sound in fraud. Plaintiff does not allege that Defendants had scienter or fraudulent intent. 95. The Individual Defendants were each control persons of USO by virtue of their positions as directors, senior officers, and/or principals of the USO or the Sponsor. The Individual Defendants each had a series of direct and/or indirect business and/or personal relationships with other directors and/or officers and/or principals of the USO and the Sponsor. The Individual Defendants signed the Registration Statement and were responsible for its contents. The Sponsor controlled USO as its commodity pool operator and fund manager. USO and the Sponsor also controlled the Individual Defendants and all of their employees. Background to the Fund For Violation of § 15 of the 1933 Act Against USO, the Sponsor, and the Individual Defendants For Violation of § 11 of the 1933 Act Against All Defendants | lose |
8,095 | 10. Upon information and belief, Exhibit A is a form letter, generated by computer, and with the information specific to Plaintiff inserted by computer. 11. Exhibit A contains the following text: Exhibit A. 12. Exhibit A falsely states that the settlement payment “must be received on or before 08/29/13.” 14. Statements such as a settlement offer is a “limited time offer,” or that the offer expires on a specific date, or that payments must be received before that date, are false and misleading because the same offer is, upon information and belief, available at any time. 15. Such false statements are material false statements, as they impart in the unsophisticated consumer, a false belief that he or she must hurry to take advantage of a limited- time opportunity, when in reality, there is no such time limit. 16. The Seventh Circuit has established “safe harbor” language regarding settlement offers in collection letters: As in previous cases in which we have created safe-harbor language for use in cases under the Fair Debt Collection Practices Act, we think the present concern can be adequately addressed yet the unsophisticated consumer still be protected against receiving a false impression of his options by the debt collector's including with the offer the following language: "We are not obligated to renew this offer." The word "obligated" is strong and even the unsophisticated consumer will realize that there is a renewal possibility but that it is not assured. Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 775-76 (7th Cir. 2007). 17. Defendant did not use the safe harbor language in Exhibit A. 18. Upon information and belief, the thirty day deadline to respond to the settlement offer is a sham. There is no actual deadline. The sole purpose of the purported deadline is to impart in the consumer a false sense of urgency. 19. Plaintiff incorporates by reference as if fully set forth herein the allegations contained in the preceding paragraphs of this Complaint. 21. Upon information and belief, the creditor and/or DRS would settle Plaintiff’s and class members’ debts at the offered discount and likely for less at any time, regardless of the supposed deadline. 22. 15 U.S.C. § 1692e(10) specifically prohibits the “use of any false representation or deceptive means to collect or attempt to collect any debt.” 23. 15 U.S.C. § 1692f generally prohibits “unfair or unconscionable means to collect or attempt to collect any debt.” 24. DRS violated 15 U.S.C. §§ 1692e, 1692e(10) and 1692f. 25. Plaintiff brings this action on behalf of a Class, consisting of (a) all natural persons in the State of Wisconsin (b) who were sent a collection letter in the form represented by Exhibit A, (c) seeking to collect a debt for personal, family or household purposes, (d) on or after September 27, 2012, (e) that was not returned by the postal service. 26. The Class is so numerous that joinder is impracticable. On information and belief, there are more than 50 members of the Class. 27. There are questions of law and fact common to the members of the class, which common questions predominate over any questions that affect only individual class members. The predominant common question is whether the Defendant complied with 15 U.S.C. §§ 1692e and 1692f. 28. Plaintiff’s claims are typical of the claims of the Class members. All are based on the same factual and legal theories. 30. A class action is superior to other alternative methods of adjudicating this dispute. Individual cases are not economically feasible. 8. On or around August 13, 2013, DRS mailed a debt collection letter to Plaintiff regarding an alleged debt, allegedly owed to “US CELLULAR”. A copy of this letter is attached to this complaint as Exhibit A. 9. The alleged debt identified in Exhibit A was an alleged cellular telephone service account, allegedly owed to US Cellular and used only for personal, family or household purposes. | lose |
44,302 | 29. Plaintiff brings this action individually and as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of all public holders of Interactive common stock who are being and will be harmed by defendants’ actions described below (the “Class”). Excluded from the Class are defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any defendants. 30. This action is properly maintainable as a class action under Federal Rule of Civil Procedure 23. 31. The Class is so numerous that joinder of all members is impracticable. According to Interactive’s SEC filings, as of August 26, 2016, there were more than 22 million shares of Interactive common stock outstanding. - 6 - 32. There are questions of law and fact that are common to the Class and that predominate over questions affecting any individual Class member. The common questions include, inter alia, the following: (a) whether defendants have breached their fiduciary duties of undivided loyalty, independence, or due care with respect to plaintiff and the other members of the Class in connection with the Acquisition, and/or are aiding and abetting therein; (b) whether defendants are engaging in self-dealing in connection with the Acquisition, and/or are aiding and abetting therein; (c) whether defendants are unjustly enriching themselves and other insiders or affiliates of Interactive and/or Genesys, and/or are aiding and abetting therein; (d) whether defendants have willfully or recklessly breached any of their fiduciary duties to plaintiff and the other members of the Class in connection with the Acquisition, including the duties of good faith, diligence, candor and fair dealing, and/or are aiding and abetting therein; (e) whether defendants, in bad faith and for improper motives, have impeded or erected barriers to discourage other offers for the Company or its assets, and/or have aided and abetted therein; (f) whether the Acquisition compensation payable to plaintiff and the Class is unfair and inadequate; (g) whether defendants have violated §§14(a) and 20(a) of the 1934 Act and SEC Rule 14a-9 promulgated thereunder by disseminating a materially false and misleading proxy statement to Interactive shareholders; and (h) whether plaintiff and the other members of the Class would be irreparably harmed were the transactions complained of herein consummated. 33. Plaintiff’s claims are typical of the claims of the other members of the Class and plaintiff does not have any interests adverse to the Class. - 7 - 34. Plaintiff is an adequate representative of the Class, has retained competent counsel experienced in litigation of this nature, and will fairly and adequately protect the interests of the Class. 35. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class which would establish incompatible standards of conduct for the party opposing the Class. 36. Plaintiff anticipates that there will be no difficulty in the management of this litigation. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 37. Defendants have acted on grounds generally applicable to the Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole. 60. Plaintiff repeats and realleges each allegation set forth herein. 61. The Individual Defendants, aided and abetted by Interactive, Parent, Merger Sub, Lux 3, Holdings I and Holdings II, have willfully or recklessly and in bad faith breached their fiduciary duties of care, loyalty, candor, good faith, and independence owed to the public shareholders of Interactive and have acted to put their personal interests ahead of the interests of Interactive’s shareholders. 62. By the acts, transactions and courses of conduct alleged herein, defendants, individually and acting as a part of a common plan, willfully or recklessly and in bad faith are attempting to unfairly deprive plaintiff and the other members of the Class of the true value of their investment in Interactive. 63. The Individual Defendants have willfully or recklessly and in bad faith breached their fiduciary duties by entering into the Acquisition without regard to the fairness of the transaction to Interactive’s shareholders. Interactive, Parent, Merger Sub, Lux 3, Holdings I and Holdings II aided and abetted the Individual Defendants’ breaches of fiduciary duties owed to plaintiff and the other holders of Interactive stock. 64. As demonstrated by the allegations above, the Individual Defendants willfully or recklessly and in bad faith failed to exercise the care required, and breached their duties of loyalty, good faith, candor and independence owed to the shareholders of Interactive because, among other reasons, they failed to ensure a fair process and maximization of shareholder value. - 20 - 65. Because the Individual Defendants dominate and control the business and corporate affairs of Interactive, and are in possession of private corporate information concerning Interactive’s assets, business and future prospects, there exists an imbalance and disparity of knowledge and economic power between them and the public shareholders of Interactive which makes it inherently unfair for them to pursue any proposed transaction wherein they will reap disproportionate benefits to the exclusion of maximizing stockholder value. 66. By reason of the foregoing acts, practices and course of conduct, the Individual Defendants have willfully or recklessly and in bad faith failed to exercise ordinary care and diligence in the exercise of their fiduciary obligations toward plaintiff and the other members of the Class. 67. As a result of the actions of defendants, plaintiff and the Class will be irreparably harmed. 68. Plaintiff repeats and realleges each allegation set forth herein. 69. The Individual Defendants and Interactive disseminated the false and misleading Proxy specified above, which failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. 70. The Proxy was prepared, reviewed and/or disseminated by the Individual Defendants and Interactive. It misrepresented and/or omitted material facts, including material information about the unfair sales process for the Company, the unfair consideration offered in the Acquisition, and the actual intrinsic value of the Company’s assets. 71. In so doing, the Individual Defendants and Interactive made untrue statements of material facts and omitted to state material facts necessary to make the statements that were made not misleading in violation of §14(a) of the 1934 Act and SEC Rule 14a-9 promulgated thereunder. By virtue of their positions within the Company, the Individual Defendants and - 21 - Interactive were aware of this information and of their duty to disclose this information in the Proxy. 72. The Individual Defendants and Interactive were at least negligent in filing the Proxy with these materially false and misleading statements. 73. The omissions and false and misleading statements in the Proxy are material in that a reasonable shareholder would consider them important in deciding how to vote on the Acquisition. In addition, a reasonable investor would view a full and accurate disclosure as significantly altering the “total mix” of information made available in the Proxy and in other information reasonably available to shareholders. 74. By reason of the foregoing, the Individual Defendants and Interactive have violated §14(a) of the 1934 Act and SEC Rule 14a-9 promulgated thereunder. Because of the false and misleading statements in the Proxy, plaintiff and the members of the Class have been damaged. 75. Plaintiff repeats and realleges each allegation set forth herein. 76. The Individual Defendants acted as controlling persons of Interactive within the meaning of §20(a) of the 1934 Act as alleged herein. By virtue of their positions as officers and/or directors of Interactive and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the false statements contained in the Proxy filed with the SEC, they had the power to influence and control and did influence and control, directly or indirectly, the decision-making of the Company, including the content and dissemination of the various statements which plaintiff contends are false and misleading. 77. Each of the Individual Defendants, Parent, Merger Sub, Lux 3, Holdings I and Holdings II was provided with or had unlimited access to copies of the Proxy and other statements alleged by plaintiff to be misleading prior to and/or shortly after these statements - 22 - were issued and had the ability to prevent the issuance of the statements or cause the statements to be corrected. 78. In particular, each of the Individual Defendants had direct and supervisory involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had the power to control or influence the particular transactions giving rise to the securities violations as alleged herein, and exercised the same. The Proxy at issue contains the unanimous recommendation of each of the Individual Defendants to approve the Acquisition. They were thus directly involved in the making of this document. 79. Parent, Merger Sub, Lux 3, Holdings I and Holdings II also had direct supervisory control over composition of the Proxy and the information disclosed therein, as well as the information that was omitted and/or misrepresented in the Proxy. 80. In addition, as the Proxy sets forth at length, and as described herein, the Individual Defendants, Parent, Merger Sub, Lux 3, Holdings I and Holdings II were each involved in negotiating, reviewing and approving the Acquisition. The Proxy purports to describe the various issues and information that they reviewed and considered, descriptions which had input from both the Board and Genesys. 81. By virtue of the foregoing, the Individual Defendants, Parent, Merger Sub, Lux 3, Holdings I and Holdings II have violated §20(a) of the 1934 Act. 82. As set forth above, the Individual Defendants, Parent, Merger Sub, Lux 3, Holdings I and Holdings II had the ability to exercise control over and did control a person or persons who have each violated §14(a) and SEC Rule 14a-9 by their acts and omissions as alleged herein. By virtue of their positions as controlling persons, these defendants are liable pursuant to §20(a) of the 1934 Act. As a direct and proximate result of defendants’ conduct, Interactive’s shareholders have been damaged. Against the Individual Defendants, Parent, Merger Sub, Lux 3, Holdings I and Holdings II for Violation of §20(a) of the 1934 Act Against the Individual Defendants and Interactive for Violations of §14(a) of the 1934 Act and Rule 14a-9 Promulgated Thereunder Claim for Breach of Fiduciary Duties and Aiding and Abetting Against All Defendants | lose |
29,958 | Defendant. ======================================= CLASS ACTION COMPLAINT Introduction 1) Plaintiff Tova Hartman files this Complaint seeking redress for the illegal practices of Defendant First Step Group, LLC who, inter alia, used false, deceptive, and misleading practices, and other illegal practices, in connection with its attempts to collect an alleged debt from the Plaintiff and others, in violation of the Fair Debt Collection Practices Act, ("FDCPA"), 15 U.S.C. § 1692, et seq. (“FDCPA”). 2) The Plaintiff alleges that Defendant's collection practices violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). Such collection practices include, inter alia: (a) Leaving messages for consumers, which fail to provide meaningful disclosure of Defendant's identity; -2- (b) Leaving messages for consumers, which fail to disclose that the call is from a debt collector; and (c) Leaving messages for consumers, which fail to disclose the purpose or nature of the communication (i.e. an attempt to collect a debt). 3) The FDCPA regulates the behavior of collection agencies attempting to collect a debt on behalf of another. The United States Congress has found abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors, and has determined that abusive debt collection practices contribute to a number of personal bankruptcies, marital instability, loss of jobs, and invasions of individual privacy. Congress enacted the FDCPA to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote uniform State action to protect consumers against debt collection abuses. 15 U.S.C. § 1692(a) - (e). 4) The FDCPA is a strict liability statute, which provides for actual or statutory damages upon the showing of one violation. The Second Circuit has held that whether a debt collector's conduct violates the FDCPA should be judged from the standpoint of the "least sophisticated consumer."1 5) To prohibit harassment and abuses by debt collectors, the FDCPA, at 15 U.S.C. § 1692d, provides that a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt and names a non-exhaustive list of certain per se violations 1 Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993). -3- of harassing and abusive collection conduct. 15 U.S.C. § 1692d(l)-(6). Among the per se violations prohibited by that section are: the placement of telephone calls without meaningful disclosure of the caller's identity. 15 U.S.C. § 1692d(6). 6) To prohibit deceptive practices, the FDCPA, at 15 U.S.C. § 1692e, outlaws the use of false, deceptive, and misleading collection practices and names a non-exhaustive list of certain per se violations of false and deceptive collection conduct. 15 U.S.C. § 1692e(1)-(16). Among the per se violations prohibited by that section are: using any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer, 15 U.S.C. § 1692e(10); the failure by debt collectors to disclose in initial oral communications that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, 15 U.S.C. § 1692e(11); and the failure by debt collectors to disclose in subsequent oral communications that the communication is from a debt collector, 15 U.S.C. § 1692e(11).2 Parties 7) At all times relevant to this lawsuit, Plaintiff is a citizen of the State of New York who resides within this District. 8) Plaintiff is a consumer as that term is defined by Section 1692(a)(3) of the | lose |
440,894 | 10. The Big 3 consumer reporting agencies—Experian, Equifax, and Trans Union— regularly receive information from various sources around the country including banks, credit unions, automobile dealers, student loan providers, public information vendors, the Social Security Administration, and other furnishers. 11. Experian, Equifax, and Trans Union collect their credit information from thousands of sources and distribute that information to their customers/subscribers, such as Defendant. 12. Although many of their customers are creditors, Experian, Equifax, and Trans Union generate significant revenue by selling credit information to “resellers” of consumer reports, like Defendant. 13. After receiving the credit information (usually at a lower cost because of their volume) from the credit bureaus, resellers then assemble and merge the credit information obtained into a 3-bureau credit report, also known as a “tri-merge” or “merged infile” credit report, and sell them to various mortgage lenders throughout the country. 14. Tri-merge credit reports are unique to the mortgage industry because applying for a mortgage loan is different in many ways from applying for other types of loans, such as a credit card, where a creditor often obtains credit information from just one credit bureau. 15 U.S.C. § 1681e(b) Class Claim 16. After receiving the raw credit data from the credit bureaus for a particular consumer, Defendant assembles, merges, and normalizes the credit information, exactly as received from Equifax, Experian, and Trans Union, into a Merged Infile credit report. 17. Accordingly, Defendant is a “reseller” as defined at 15 U.S.C. § 1681a(u), which is a “consumer reporting agency that—(1) assembles and merges information contained in the database of another consumer reporting agency or multiple consumer reporting agencies concerning any consumer for purposes of furnishing such information to any third party, to the extent of such activities; and (2) does not maintain a database of the assemble or merged information from which new consumer reports are produced.” B. Plaintiff’s experience and Defendant’s lack of procedures. 18. Plaintiff is an active-duty servicemember in the United States Navy. 19. On or around July 17, 2019, Plaintiff applied for a mortgage loan with Southern Trust Mortgage in Virginia Beach. 20. As part of this process, Southern Trust requested a copy of Plaintiff’s credit report from Defendant. 21. Defendant furnished a tri-merge credit report to Southern Trust Mortgage dated July 17, 2019, which contained credit information about Defendant. 22. The credit report erroneously indicated that Plaintiff was deceased. 23. The credit report that Defendant furnished to Southern Trust Mortgage caused Plaintiff to be denied for a mortgage based on Defendant’s reporting that Plaintiff was deceased. 25. The Defendant’s erroneous reporting of Plaintiff as deceased was based on the erroneous information it received from Equifax only. Thus, the “deceased” status was contradicted within Defendants’ own report by the information it obtained from Trans Union and Experian. 26. Defendant’s placement of the inaccurate information in Plaintiff’s consumer report was caused by Defendant’s failure to implement and follow reasonable procedures to assure that the information it was publishing regarding consumers was as accurate as possible. 27. If Defendant had reasonable procedures (or any procedures whatsoever) it could have easily determined that the information it published regarding Plaintiff was inaccurate and she was alive. 28. Most notably, this would include the most basic procedure of resolving conflicting information within its own report. Here, the deceased information that Defendant reported originated from Equifax, while information from Experian and Trans Union demonstrated that Plaintiff was alive and active. In other words, Defendant knew that it was publishing inaccurate information regarding Plaintiff because Plaintiff could not be both active and deceased. Defendant should have had a procedure in place to resolve this conflict rather than knowingly publishing false information. 29. Upon information and belief, Defendant routinely sells credit reports for living consumers with active credit histories, which include a notation indicating that the living consumer is “deceased” and does not have a credit score. 31. Upon information and belief, Defendant does not employ any procedures at all to assure that a consumer with a “deceased” notation on his/her Merged Infile credit report is, in fact, actually deceased before including the “deceased” notation on that consumer’s report and selling that report for profit. 32. Even in instances where other data on the face of the consumer’s Merged Infile report indicates that he/she is not deceased, such as current and active credit history, Defendant employs no procedures to assure that a consumer with a “deceased” notation on his/her report is, in fact, actually deceased before including the “deceased” notation in that consumer’s file. 33. In sum, Defendant also has no procedures to ensure that a consumer with a “deceased” mark on his/her report is actually deceased before including the “deceased” notation on that consumer’s report. 34. As a result of Defendant’s misconduct, Plaintiff suffered actual damages, including but not limited to: denial of her mortgage application, emotional distress, and damage to her reputation. C. Defendant’s violations of the FCRA are willful. 35. The Supreme Court has held that willfulness under the FCRA encompasses not only a knowing violation but also a violation committed in reckless disregard of statutory obligations. Safeco Insurance Company of America v. Burr, 551 U.S. 47 (2007). 36. Recklessness is measured by an objective standard: conduct that creates an “unjustifiably high risk of harm that is either known or so obvious that it should be known.” Id. at 38. As the Federal Trade Commission has explained, reasonable procedures to assure maximum possibly accuracy include “establish[ing] procedures to avoid reporting information from its furnishers that appears implausible or inconsistent.” FTC, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Report with Summary of Interpretations 67 (July 2011), available at https://www.ftc.gov/sites/default/files/documents/reports/40-years-experience-fair- credit-reporting-act-ftc-staff-report-summary-interpretations/110720fcrareport.pdf. 39. A credit reporting agency “must maintain procedures to avoid reporting information with obvious logical inconsistencies, such as a credit account opened when the consumer was known to be a minor” or, as here, where a consumer is reported as deceased even though she is alive. See id. at 68. 40. If Defendant had reasonable procedures in place that were consistent with the FTC’s guidelines and the plain language of the FCRA, Defendant would not have reported the inaccurate, derogatory information concerning Plaintiff. 42. Upon information and belief, Defendant has been further notified of the inadequacy of its procedures through disputes submitted by consumers and complaints from mortgage companies. 43. Despite these complaints and lawsuits, Defendant has continued to rely on its inadequate procedures to the detriment of Plaintiff and class members. 44. Plaintiff restates each of the allegations in the preceding paragraphs as if set forth at length herein. 45. Pursuant to Fed. R. Civ. P. 23, Plaintiff brings this action individually and on behalf of a class initially defined as follows: All natural persons who were the subject: (1) of a consumer report furnished by the Defendant to a third party within the five years preceding the filing date of this Complaint; (2) where the Defendant’s consumer report contained a notation that the consumer was deceased in at least one scoring model; and (3) where one or more other scoring models did not also contain a deceased notation. Plaintiff is a member of this class. 46. Numerosity. Upon information and belief, Plaintiff alleges that the class is so numerous that joinder of the claims of all class members is impractical. The class members’ names and addresses are identifiable through the Defendant’s documents and records, and the class members may be notified of the pendency of this action by publication or mailed notice. 48. Typicality. Plaintiff’s claims are typical of the claims of each putative class member and all claims are based on the same facts and legal theories. Plaintiff, as every putative class member, alleges a violation of the same FCRA provision, 15 U.S.C. §1681e(b). This claim challenges the Defendant’s consumer reporting procedures and does not depend on any individualized facts. For purposes of class certification, Plaintiff seeks only statutory and punitive damages. Such damages are appropriate in circumstances like this one where injuries are particularized and concrete, but difficult to quantify, rendering the recovery of class statutory damages ideal and appropriate. In addition, Plaintiff is entitled to the relief under the same causes of action as the other class members. 49. Adequacy. Plaintiff will fairly and adequately protect the class’s interests. Plaintiff has retained counsel experienced in handling actions involving unlawful practices against consumers and class actions. Neither Plaintiff nor her counsel have any interests that might cause them not to vigorously pursue this action. Plaintiff is aware of her responsibilities to the putative class and has accepted such responsibilities. 52. Defendant’s violation of 15 U.S.C. § 1681e(b) was willful, rendering the Defendant liable pursuant to 15 U.S.C. § 1681n. In the alternative, the Defendant was negligent, entitling the Plaintiff to recover under 15 U.S.C. § 1681o.1 53. In addition, the Plaintiff and each class member suffered an actual injury because of the Defendant’s violation, as alleged herein. 54. Plaintiff and the putative class members are entitled to recover statutory damages, punitive damages, costs, and attorney’s fees from the Defendant in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n. WHEREFORE, Plaintiff moves for class certification and for judgment against the Defendant for statutory damages, punitive damages, and attorneys’ fees and costs, as well as any other relief that the Court finds just and appropriate. 68. A. Defendant is a reseller of consumer reports. | lose |
292,123 | 11. Plaintiff brings this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 12. The Class consists of: a. all individuals with addresses in the State of Ohio; b. to whom Defendant sent a collection letter attempting to collect a consumer debt; c. regarding collection of a debt; d. that imposed an additional service fee for credit card payments; e. which letter was sent on or after a date one (1) year prior to the filing of this action and on or before a date twenty-one (2l) days after the filing of this action. 13. The identities of all class members are readily ascertainable from the records of Defendants and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. 14. Excluded from the Plaintiff Class are the Defendants and all officer, members, partners, managers, directors and employees of the Defendants and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. 15. There are questions of law and fact common to the Plaintiff Class, which common issues predominate over any issues involving only individual class members. The principal issue is whether the Defendants' written communications to consumers, in the forms attached as Exhibit A, violate 15 U.S.C. §§ l692e and 1692f. 16. The Plaintiff’s claims are typical of the class members, as all are based upon the same facts and legal theories. The Plaintiff will fairly and adequately protect the interests of the Plaintiff Class defined in this complaint. The Plaintiff has retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiff nor her attorneys have any interests, which might cause them not to vigorously pursue this action. 17. This action has been brought, and may properly be maintained, as a class action pursuant to the provisions of Rule 23 of the Federal Rules of Civil Procedure because there is a well-defined community interest in the litigation: a. Numerosity: The Plaintiff is informed and believes, and on that basis alleges, that the Plaintiff Class defined above is so numerous that joinder of all members would be impractical. b. Common Questions Predominate: Common questions of law and fact exist as to all members of the Plaintiff Class and those questions predominance over any questions or issues involving only individual class members. The principal issue is whether the Defendants' written communications to consumers, in the forms attached as Exhibit A violate 15 § l692e and §1692f. c. Typicality: The Plaintiff’s claims are typical of the claims of the class members. The Plaintiff and all members of the Plaintiff Class have claims arising out of the Defendants' common uniform course of conduct complained of herein. d. Adequacy: The Plaintiff will fairly and adequately protect the interests of the class members insofar as Plaintiff has no interests that are adverse to the absent class members. The Plaintiff is committed to vigorously litigating this matter. Plaintiff has also retained counsel experienced in handling consumer lawsuits, complex legal issues, and class actions. Neither the Plaintiff nor her counsel have any interests which might cause them not to vigorously pursue the instant class action lawsuit. e. Superiority: A class action is superior to the other available means for the fair and efficient adjudication of this controversy because individual joinder of all members would be impracticable. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum efficiently and without unnecessary duplication of effort and expense that individual actions would engender. 18. Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that the questions of law and fact common to members of the Plaintiff Class predominate over any questions affecting an individual member, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 19. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify a class(es) only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). 20. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. 21. Some time prior to February 21, 2020, obligations were allegedly incurred to University Hospitals Geauga Regional and Cleveland Clinic. 22. The University Hospitals Geauga Regional and Cleveland Clinic obligations arose out of transactions involving a involving a medical debt incurred by Plaintiff with University Hospitals Geauga Regional and Cleveland Clinic in which money, property, insurance or services, which are the subject of the transaction, were incurred for medical services. 23. The alleged University Hospitals Geauga Regional and Cleveland Clinic obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5). 24. University Hospitals Geauga Regional and Cleveland Clinic is a "creditor"(s) as defined by 15 U.S.C.§ 1692a(4). 25. University Hospitals Geauga Regional and Cleveland Clinic or a subsequent owner of the University Hospitals Geauga Regional and Cleveland Clinic debt contracted with the Defendant to collect the alleged debt. 26. Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. Violation – February 21, 2020 Collection Letter 27. On or about February 21, 2020, Defendant sent the Plaintiff a collection letter (the “Letter”) regarding the alleged debt owed to University Hospitals Geauga Regional and Cleveland Clinic. See Collection Letter – Attached hereto as Exhibit A. 28. The collection letter indicated that Defendant charges a $3.50 service fee for payment via credit card. 29. Plaintiff did not agree to such a collection charge. 30. The addition of this collection fee by Defendant which was not authorized by the agreement creating the debt or permitted by law, was an attempt to collect an amount not owed by Plaintiff. 31. Defendant misled and deceived Plaintiff into the belief that she falsely owed an additional $3.50 when this charge is a violation of the FDCPA. 32. As a result of Defendant’s deceptive misleading and false debt collection practices, Plaintiff has been damaged. 33. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. 34. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e. 35. Pursuant to 15 U.S.C. §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. 36. Defendant violated said section by: a. Making a false and misleading representation in violation of §1692e(10). 37. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692e et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. 38. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. 39. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692f. 40. Pursuant to 15 U.S.C. §1692f, a debt collector may not use any unfair or unconscionable means in connection with the collection of any debt. 41. Defendant violated this section by a. unfairly advising Plaintiff that she owed Defendant more money than the amount of her debt; and b. attempting to collect an amount not expressly authorized by the underlying agreement creating the debt or permitted by law in violation of § 1692f(1). 42. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692f et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692f et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. | win |
85,778 | 14. Beginning on or about September 15, 2017, Plaintiff began receiving text messages from Defendant on his cellular telephone number ending in -7558. 26. Plaintiff brings this action on behalf of himself and on behalf of and all others similarly situated (“the Class”). 27. Plaintiff represents, and is a member of, the Class, consisting of the following: all persons within the United States who received any unsolicited text messages from Defendant which text message was not made for emergency purposes or with the recipient’s prior express consent within the four years prior to the filing of this Complaint. 38. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 39. The foregoing acts and omissions of Defendant constitutes numerous and multiple negligent violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq. 40. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq, Plaintiff and The Class are entitled to an award of $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 41. Plaintiff and the Class are also entitled to and seek injunctive relief prohibiting such conduct in the future. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. ON BEHALF OF PLAINTIFF AND THE CLASS AGAINST DEFENDANT THE TCPA, 47 U.S.C. § 227 ET SEQ. As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. Any other relief the Court may deem just and proper. | win |
207,942 | 25. Defendant operates multiple kiosks throughout the United States, including its kiosk located at 8401 Park Meadows Center Dr. Littleton, CO 80124. 26. Defendant offers its Website in connection with its physical locations. The goods and services offered by Defendant through its Website include but are not limited to the following: kiosk locations and hours, contact information, the ability to make an online purchase, and related goods and services available both online and in kiosks. 27. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually impaired users, access to Defendant’s Website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s kiosks. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually impaired persons have been and are still being denied equal access to Defendant’s kiosks and the numerous goods, services and benefits offered to the public through its Website. 28. Plaintiff is a visually impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen- reader user and uses it to access the Internet. 30. Due to Defendant’s failure to build its Website in a manner that is compatible with screen reader programs, Plaintiff is and was unable to understand, and thus is denied the benefit of, much of the content and services he wishes to access or use. For example: a. Many features on the Website lacks alt. text, which is the invisible code embedded beneath a graphical image. As a result, Plaintiff was unable to differentiate what products were on the screen due to the failure of the Website to adequately describe its content. b. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. c. The Website also contains a host of broken links, which is a hyperlink to a non-existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. 33. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s kiosks on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 34. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. In fact, Plaintiff intends to return to the Website when it is equally accessible for visually-impaired consumers in order to complete his intended transaction, as it is more convenient for Plaintiff to access the Website to make a purchase than to travel to a physical location to make the same purchase. However, as long as the Access Barriers continue to exist on the Website, Plaintiff is prevented from making such a purchase. 35. These barriers, and others, deny Plaintiff full and equal access to all of the services the Website offers, and now deter him from attempting to use the Website and/or visit Defendant physical kiosks. Still, Plaintiff would like to, and intends to, attempt to access Defendant’s Website in the future to research the services the Website offers, or to test the Website for compliance with the ADA. 37. If the Website were accessible, i.e. if Defendant removed the access barriers described above, Plaintiff could independently research the Website’s offerings, including kiosk locations and hours and promotions available at the its physical locations. 38. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually impaired people. 39. Though Defendant may have centralized policies regarding the maintenance and operation of its Website, upon and information and belief, Defendant has never had a plan or policy that is reasonably calculated to make its Website fully accessible to, and independently usable by, individuals with vision related disabilities. As a result, the complained of access barriers are permanent in nature and likely to persist. 40. The law requires that Defendant reasonably accommodate Plaintiff’s disabilities by removing these existing access barriers. Removal of the barriers identified above is readily achievable and may be carried out without much difficulty or expense. 41. Plaintiff’s above request for injunctive relief is consistent with the work performed by the United States Department of Justice, Department of Transportation, and U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”), all of whom have relied upon or mandated that the public-facing pages of website complies with an international compliance standard known as Web Content Accessibility Guidelines version 42. Plaintiff and the Class have been, and in the absence of an injunction will continue to be, injured by Defendant’s failure to provide its online content and services in a manner that is compatible with screen reader technology. 43. Defendant has long known that screen reader technology is necessary for individuals with visual disabilities to access its online content and services, and that it is legally responsible for providing the same in a manner that is compatible with these auxiliary aids. 44. Indeed, the Disability Rights Section of the DOJ reaffirmed in a 2015 Statement of Interest before the United States District Court for the District of Massachusetts that it has been a “longstanding position” of the Department of Justice “that the ADA applies to website of public accommodations.” See National Association of the Deaf v. Massachusetts Institute of Technology, No. 3:15-cv-300024-MGM, DOJ Statement of Interest in Opp. To Motion to Dismiss or Stay, Doc. 34, p. 4 (D. Mass. Jun. 25, 2015) (“MIT Statement of Interest”); see also National Association of the Deaf. v. Harvard University, No. 3:15-cv-30023- MGM, DOJ Statement of Interest of the United States of America, Doc. 33, p.4 (D. Mass. Jun. 25, 2015) (“Harvard Statement of Interest”). 45. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 47. While DOJ has rulemaking authority and can bring enforcement actions in court, Congress has not authorized it to provide an adjudicative administrative process to provide Plaintiff with relief. 48. Plaintiff alleges violations of existing and longstanding statutory and regulatory requirements to provide auxiliary aids or services necessary to ensure effective communication, and courts routinely decide these types of matters. 49. Resolution of Plaintiff’s claims does not require the Court to unravel intricate, technical facts, but rather involves consideration of facts within the conventional competence of the courts, e.g. (a) whether Defendant offers content and services on its Website, and (b) whether Plaintiff can access the content and services. 50. Without injunctive relief, Plaintiff and other visually impaired consumers will continue to be unable to independently use the Website, thereby violating their rights. 51. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 53. Plaintiff’s claims are typical of the Class. The Class, like Plaintiff, are visually impaired or otherwise blind, and claim that Defendant has violated the ADA by failing to remove access barriers on its Website so it can be independently accessible to the Class. 54. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. 55. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to the Class as a whole. 56. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 57. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits throughout the United States. 58. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 60. Defendant’s physical locations are a public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 61. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 62. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 63. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 65. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 66. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 67. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq. prohibiting discrimination against the blind. 68. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. | win |
105,760 | 11. Hall was a Trican employed as an Equipment Operator and was paid on an hourly basis. 12. Trican is an independent oilfield services contractor that provides various specialized products, equipment, services and technology for use in the drilling, completion, stimulation and reworking of oil and gas wells in Canada, the United States, and other countries around the world. 13. Trican’s services for the oil industry include acidizing and production enhancement, cementing, coil tubing, fracturing, and coal bed methane fracturing, among others. 14. Trican’s services in the oil industry have national and international impact on the energy market in that oil and gas produced with its services are transported, refined, and otherwise utilized in the lifecycle of oil and natural gas. 15. In each of the past three (3) years, Trican’s gross annual revenues have well exceeded $500,000.00. 16. Trican employed Plaintiff as an employee in one of Trican’s oil servicing crews in Odessa, Texas. 17. In performing his duties, Plaintiff was an employee engaged in commerce and/or in the production of goods for commerce, namely oil and natural gas used throughout the United States, and/or who handled goods or materials used in the production thereof that had been moved in or produced for commerce, such as pumps, mixers and other various equipment, within the meaning of the FLSA. 18. Plaintiff typically spent his workweeks operating, fixing, and monitoring equipment that assisted in the well servicing operations of Defendant. Plaintiff was also responsible for maintaining the equipment in operational condition during all stages of production. 20. Trican did not pay Plaintiff at one-and-one-half times his “regular rate” for all of the hours he worked in excess of forty (40) in a workweek. 21. Plaintiff routinely worked in excess of forty (40) hours in a work week for Defendant. 22. Defendant was well aware of the fact that Plaintiff routinely worked in excess of forty (40) hours in a work week. 23. Trican incorrectly calculated Plaitniff’s “regular rate” by failing to include the additional per diem compensation in the “regular rate” calculation. 24. All of Trican’s Equipment Operators, including Plaintiff, receive an hourly wage without proper overtime compensation. 25. Plaintiff is a typical member of the Class Members and worked for Trican within the same statutory time period. 26. At all times during the commission of the alleged events and because of the nature of the production discussed above, Defendant has been an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1)(A) of the FLSA, 29 U.S.C. § 203(s)(1)(A), in that it has employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce, by any person and in that it has an annual gross volume of sales made or business done of not less than $500,000.00. 27. Plaintiff re-allege paragraphs 1-26 as if set out here in their entirety. 28. In addition to Plaintiff, Trican has employed many other Class Members as Equipment Operators over the last three (3) years. 30. Trican paid Class Members an hourly wage, and “per diem” compensation. 31. Trican did not pay Class Members at one-and-one-half times his “regular rate” for all of the hours he worked in excess of forty (40) in a workweek. 32. Class Members routinely worked in excess of forty (40) hours in a work week for Defendant. 33. Defendant was well aware of the fact that Class Members routinely worked in excess of forty (40) hours in a work week. 34. Trican incorrectly calculated Class Members “regular rate” by failing to include the additional “per diem” compensation in the “regular rate” calculation. 35. Like Plaintiff above, in performing their duties as Equipment Operators, Class Members are/were employees engaged in commerce, namely oil and natural gas used throughout the United States, and/or who handled goods or materials used in the production thereof that had been moved in or produced for commerce within the meaning of the FLSA. 36. Trican paid Class Members in the same manner as Plaintiff, namely, an hourly wage and additional “per diem” compensation. 37. Like Plaintiff, Trican did not pay Class Members overtime compensation for hours worked in excess of forty (40) hours. 38. Class members are similarly situated to Plaintiff in that they all performed similar manual labor and were victims of the same violations of the FLSA. 40. The experience of Plaintiff and Class Members, with respect to their employment and pay, is typical of an Equipment Operator across Defendant’s business. 41. The specific job titles or precise job responsibilities of each Class Member does not foreclose collective treatment. 42. The claims of all Class Members arise from a common nucleus of facts. Liability is based on a systematic course of wrongful conduct by Defendant that caused harm to all Class Members. 43. The names and addresses of the Class Members are available from Defendant’s records. To the extent required by law, notice will be provided to these individuals by first class mail, the use of techniques and a form of notice similar to those customarily used in representative actions, or other means conducive to the execution of effective notice. 44. Trican’s other Equipment Operators should be notified of this action and given the chance to join pursuant to 29 U.S.C. § 216(b). Therefore, the class is properly defined as: All current and former Equipment Operators employed by Defendant between February 4, 2013 and the date notice is issued. 45. Plaintiff re-alleges paragraphs 1-44 as if set out here in their entirety. 46. The FLSA requires employers to pay non-exempt employees one-and-one-half times their regular rates for hours those employees work in excess of forty (40) hours in a work week. 48. Defendant is an employer within the meaning of the FLSA. 49. Plaintiff and Class Members are or were Equipment Operators engaged in commerce and/or in the production of goods for commerce and/or handled goods or materials that have been moved in or produced for commerce within the meaning of the FLSA. 50. Defendant is an enterprise engaged in commerce within the meaning of the FLSA. 51. By failing to pay Plaintiff and Class Members overtime compensation at one-and-one- half times their regular rates, Defendant violated the FLSA’s overtime provisions. 52. Because Trican knew its pay practices violated the FLSA, or showed reckless disregard for whether its pay practices violated the FLSA, Trican owes these wages for at least the past three (3) years. 53. Trican is liable to Plaintiff and its other Class Members for an amount equal to all unpaid and/or underpaid overtime wages. 54. Trican is further liable to Plaintiff and its other Class Members for liquidated damages in an additional amount equal to all unpaid and/or underpaid overtime wages. 55. Plaintiff and Class Members are entitled to recover all reasonable attorneys’ fees and costs incurred in this action. VIOLATION OF THE FAIR LABOR STANDARDS ACT FAILURE TO PAY OVERTIME (COLLECTIVE ACTION) | lose |
404,950 | 34. To provide an incentive for foreign investment to benefit the American economy by creating or preserving U.S. jobs, Congress created the EB-5 Immigrant Investor Visa Program (the “EB-5 Program”) in 1990 with the enactment of the Immigration Act of 1990. Pub. L. 101- 649, 104 Stat. 4978. The EB-5 Program enabled immigrant investors to become permanent residents of the United States by investing at least $500,000 in a U.S. business that will use the funds in a manner that creates or maintains at least 10 full-time American jobs. See, e.g., 8 U.S.C. § 1153(b)(5). 35. At the outset of the application process, which normally takes two or more years before it is complete, the EB-5 Investor submits a Form I-526 Immigration Petition by Alien Entrepreneur (“I-526 Petition”), which, if approved, permits the EB-5 Investor to reside and travel within the U.S. while his or her application is pending. If the I-526 Petition is approved, the EB-5 Investor may then seek permanent U.S. residency status (and obtain a green card) by submitting a Form I-829 Petition by Entrepreneur to Remove Conditions (“I-829 Petition”). If the I-829 Petition is granted, the EB-5 Investor and his or her immediate family members are granted permanent immigrant visas (i.e., green cards). 37. Although EB-5 was created in the 1990s, it was not commonly used to fund real estate projects until after the Great Recession in 2008, when funding became more difficult to obtain and EB-5 represented an alternative source of capital. 79. Mastroianni and Yellen are the sole Principals of the Harbourside Group. Mastroianni and Yellen used this status to dominate and control the entities within the Harbourside Group, which includes, inter alia, the Funding Partnership, the General Partner, the Developer, and the Regional Center to such an extent that these entities’ independent existence was in fact non-existent and Mastroianni and Yellen were in fact their alter egos. Mastroianni and Yellen used these entities’ limited liability status for fraudulent and other improper purposes, which caused injury to the Limited Partners, the Funding Partnership and the Developer. 80. Indeed, as the former Chief Financial Officer for the Developer and the Regional Center has stated, “Mastroianni, along with those in his employ, routinely conducted side deals, and funneled money in and out of various accounts without conferring with the CFO and . . . in non-compliance with the EB-5 requirements, something that would cause serious problems should there ever be a USCIS or SEC audit.” Finkelstein v. Allied Capital and Devel. of So. Fla., LLC, No. 2014CA006733 (Palm Beach Cty. Cir. Ct.). ¶ 32. 81. Plaintiffs bring this action derivatively on behalf of the Funding Partnership, pursuant to Fed. R. Civ. P. 23.1 and F.S.A. § 620.2002(2), to enforce the claims for relief set forth below against each Defendant. 83. If Plaintiff s are successful in this action, the recovery will be of substantial benefit to the Funding Partnership and its Limited Partners, each of whom was a member of the Funding Partnership when it was converted to the New LLC. 86. The Class is defined as follows: All persons who invested in the Funding Partnership (i.e., all Limited Partners). Excluded from this Class are Defendants, their affiliates, subsidiaries, agents, board members, directors, officers, and/or employees; the Court and its staff; and any Limited Partner who has entered into an enforceable agreement with Defendants to settle or otherwise resolve their claims against Defendants. 87. Plaintiffs reserve the right to modify or amend the definitions of the proposed Class before the Court determines whether class certification is appropriate. 88. The Class satisfies the requirements of Rule 23(a), as well as 23(b)(3). 89. NUMEROSITY. The Class consists of approximately 199 geographically dispersed individual Limited Partners. Joinder of the Class members is not practicable. The disposition of the claims of the Class members in a single action will provide substantial benefits to all parties and to the Court. 90. ASCERTAINABILITY. The individual Class members are ascertainable, as the names and addresses of all Class members can be identified in the business records maintained by the Developer and the General Partner. Notice of this action can thus be provided to all members of the proposed Class. 91. TYPICALITY. Plaintiffs were investors in the Harbourside Project at the time of the wrongdoing alleged herein. Plaintiffs’ claims are typical of the claims of all Class members as all Class members are similarly affected by Defendants’ wrongful conduct as complained of herein. 93. COMMONALITY AND PREDOMINANCE. Common questions of law and fact exist as to all members of the proposed Class and predominate over any questions solely affecting individual members of the proposed Class. The questions of law and fact common to the Class include, but are not limited to, the following: a. Whether Defendants breached their fiduciary duties to the proposed Class; b. Whether Defendants engaged in civil theft in violation of F.S.A. § 812.014; and c. Whether Defendants engaged in a civil conspiracy. 94. The Class may be certified under Rule 23(b)(3). Questions of law or fact common to Class members predominate over any questions affecting only individual members. Class treatment of such common questions of law and fact is a superior method to piecemeal litigation because class treatment will conserve the resources of the courts and will promote efficiency of adjudication. Class treatment will also avoid the substantial risk of inconsistent factual and legal determinations on the many issues in this lawsuit. There will be no unusual difficulty in the management of this action as a Class action. 95. Plaintiffs reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 97. Among the unfair, fraudulent, and unlawful conduct Plaintiffs have alleged in this Complaint are (a) Defendants’ ostensible exercise of the conversion provisions of the EB-5 Loan Agreement despite the existence of multiple Events of Default, which were neither cured nor waived at the time the conversion provisions were invoked and (b) Defendants’ failure to obtain the Limited Partners’ approval of the plan of conversion, which transformed their investment in the Funding Partnership into a materially investment that was not mentioned in the Offering Documents. As a result of Defendants’ conduct, the exercise of the conversion provisions of the EB-5 Loan Agreement, and the conversion of the Developer from a Florida LLC to a Delaware LLC, are invalid and void as a matter of law. 98. Plaintiffs are informed and believe that Defendants will dispute these allegations. Therefore, an actual controversy has arisen and now exists between Plaintiffs and Defendants. Accordingly, Plaintiffs hereby request a judicial declaration of the rights and duties of the parties with respect to each of the foregoing issues in controversy. BREACH OF FIDUCIARY DUTIES DECLARATORY RELIEF Against All Defendants THE EB-5 PROGRAM | lose |
22,823 | 1. The amount of the debt; 10. Plaintiff brings this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 12. The identities of all class members are readily ascertainable from the records of Defendants and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. 13. Excluded from the Plaintiff Class are the Defendants and all officer, members, partners, managers, directors and employees of the Defendants and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. 14. There are questions of law and fact common to the Plaintiff Class, which common issues predominate over any issues involving only individual class members. The principal issue is whether the Defendants' written communications to consumers, in the forms attached as Exhibit A, violate 15 U.S.C. §§ l692e and 1692g. 18. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify a class(es) only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). 19. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. 2. The name of the creditor to whom the debt is owed; 20. Some time prior to November 23, 2020, an obligation was allegedly incurred to Swedish Hospital First Hill by Plaintiff. 21. The Swedish Hospital First Hill obligation arose out of transactions in which money, property, insurance or services which are the subject of the transactions were primarily for personal, family or household purposes, specifically medical services. 22. The alleged Swedish Hospital First Hill obligation is a “debt” as defined by 15 U.S.C. §1692a(5). 23. Swedish Hospital First Hill is a “creditor” as defined by 15 U.S.C. §1692a(4). 25. Defendants collect and attempt to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. Violation I – November 23, 2020 Collection Letter 26. On or about November 23, 2020, Defendant OOI sent Plaintiff an initial collection letter (the “Letter”) regarding the alleged debt currently owed. See Exhibit A. 28. The letter states: “Unless you notify OOI within thirty (30) days after receiving this notice that you dispute the validity of this debt, or any portion thereof, this office will assume this debt is valid. If you notify OOI in writing within thirty (30) days from receiving this notice that you dispute the validity of this debt, or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. OOI shall provide you with the name and address of the original creditor, if different from the current creditor, upon your request in writing to this office within thirty (30) days after receiving this notice.” 29. Under 15 U.S.C. § 1692g(a)(5) the debt collector must provide a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 3. A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt-collector; 31. Defendant’s letter states that they will provide the name and address of the original creditor if Plaintiff requests in writing, but continues that the information regarding the creditor will be provided by Defendant within 30 days after receiving the notice. 32. The statement does not say that Defendant will provide the information if Plaintiff’s written request is within 30 days of receipt of the notice as the law requires, rather it states that upon written request (without specifying a time period), the information will be provided within 30 days after receiving this notice by Defendant. 33. The 30-day time period is the time allowed for Plaintiff to make a written request and not the amount of time in which Defendant is to provide the information. 34. This statement is false and deceptive because Defendant has no obligation to provide the information requested within thirty days of receiving the notice, rather the Plaintiff has thirty days to make the written request. 36. A collection notice is deceptive when it can reasonably read to have two or more different meanings one of which is inaccurate. 37. The Defendants have failed to provide the consumer with a statutorily compliant initial communication letter. 38. Plaintiff has suffered an informational injury as she was not provided with the information statutorily required to be included in the initial communication letter from Defendant. 39. As a result, Plaintiff could not make an informed decision regarding her rights and options involving the alleged debt. 4. A statement that the consumer notifies the debt collector in writing within thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and 40. As a result of Defendant's deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged. 41. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. 43. Pursuant to 15 U.S.C. §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. 44. Defendant violated said section by: a. Making a false and misleading representation in violation of §1692e(10). 45. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692e et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. 46. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. 47. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. 49. The Defendant violated 15 U.S.C. §1692g, by not providing the proper statutory discourses under §1692g. 50. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq. | win |
321,663 | (Collective Action Claim for Violations of the FLSA) (Individual Claims for Violation of the FLSA) (Individual Claims for Violation of the AMWA) 31. Plaintiffs repeat and re-allege all the preceding paragraphs of this Original Complaint as if fully set forth in this section. 32. At all times relevant hereto, Plaintiffs worked for Defendants as hourly- paid employees who clean Defendants' customer locations, referred to herein for brevity as "site workers." 33. Defendants classified Plaintiffs as hourly employees nonexempt from the overtime requirements of the FLSA and the AMW A. 34. As site workers, Plaintiffs Guinn and Witt were responsible for performing various general janitorial tasks. 36. Defendants required site workers, including Plaintiffs, to take two (2) fifteen-minute breaks throughout their shifts. 37. Defendants did not compensate site workers, including Plaintiffs, for each of these breaks throughout their shifts. 38. Plaintiffs and other site workers were and are entitled to overtime compensation in the amount of one and one-half (1.5) times their regular rate of pay for all hours worked in excess of forty (40) in a week. 39. Defendants did not pay overtime wages to site workers, including Plaintiffs, for all of their hours worked in excess of forty (40) hours per week, even though Defendants were aware of those additional hours worked 40. Defendants knew, or showed reckless disregard for whether the way they paid Plaintiffs and other site workers violated the FLSA and AMW A. V. 42. Plaintiffs bring their claims for relief for violation of the FLSA as a collective action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b ). 44. In conformity with the requirements of FLSA Section 16(b ), Plaintiffs have or will file shortly Consents to Join this lawsuit. 45. The relevant time period dates back three years from the date on which Plaintiffs' Original Complaint-Collective Action was filed herein and continues forward through the date of judgment pursuant to 29 U.S.C. § 255(a). 46. The members of the proposed FLSA Collective are similarly situated in that they share these traits: A. They were paid hourly; B. They performed the same or similar job duties; C. They were classified by Defendants as non-exempt from the overtime requirements of the FLSA; and D. They were subject to Defendants' common policy of denying overtime pay for all hours worked over forty (40) per work week. 4 7. Plaintiffs are unable to state the exact number of potential members of the FLSA Collective but believe that the group exceeds twenty (20) persons. 48. In the modern era, most working-class Americans have become increasingly reliant on email and text messages, and generally use them just as often, if not more so, than traditional U.S. Mail. 50. Plaintiffs repeat and re-allege all previous paragraphs of this Original Complaint as though fully set forth herein. 51. 29 U.S.C. § 207 requires employers to pay employees one and one-half (1.5) times the employee's regular rate for all hours that the employee works in excess of forty (40) per week. 29 U.S.C. § 20(a)(1 ). 52. Defendants have failed and refused to comply with the FLSA's wage requirements by failing to pay Plaintiffs one and one half (1.5) times their regular rates for all hours worked in excess of forty (40) hours per week during Plaintiffs' employment as described in this Complaint. 53. Many work weeks, if not all work weeks, Plaintiffs worked more than forty (40) hours per week and were not paid overtime for their mandatory fifteen-minute breaks each day. 54. Defendants' conduct and practices, as described above, were willful, intentional, unreasonable, arbitrary, and in bad faith. 56. Defendants have not acted in good faith nor with reasonable grounds to believe their actions and omissions were not a violation of the FLSA, and, as a result thereof, Plaintiffs are entitled to recover an award of liquidated damages in an amount equal to the amount of unpaid overtime premium pay described above pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b). 57. Alternatively, should the Court find that Defendants acted in good faith in failing to pay Plaintiffs as provided by the FLSA, Plaintiffs are entitled to an award of prejudgment interest at the applicable legal rate. 58. Plaintiffs repeat and re-allege all previous paragraphs of this Original Complaint as though fully set forth herein. 59. Plaintiffs assert this claim on behalf of all site workers employed by Defendants to recover monetary damages owed by Defendants to Plaintiffs and members of the putative collective for unpaid overtime compensation for all the hours she and they worked in excess of forty (40) each week. 61. 29 U.S.C. § 207 requires employers to pay employees one and one-half (1.5) times the employee's regular rate for all hours that the employee works in excess of forty (40) per week. 29 U.S.C. § 20(a)(1 ). 62. Defendants have failed and refused to comply with the FLSA's wage requirements by failing to pay Plaintiffs and those similarly situated one and one half (1.5) times their regular rates for all hours worked in excess of forty (40) hours per week during their employment with Defendants as described in this Complaint. 63. Many work weeks, if not all work weeks, Plaintiffs and those similarly situated worked more than forty (40) hours per week and were not paid overtime for their mandatory fifteen-minute breaks each day. 64. Because these employees are similarly situated to Plaintiffs, and are owed overtime for the same reasons, the proposed collective is properly defined as follows: All hourly-paid employees of Defendants within the past three years who clean Defendants' customer site locations. 65. Defendants' conduct and practices, as described above, were willful, intentional, unreasonable, arbitrary, and in bad faith. 66. By reason of the unlawful acts alleged herein, Defendants are liable to Plaintiffs and those similarly situated for, and Plaintiffs and those similarly situated seek, monetary damages, liquidated damages, and costs, including reasonable attorneys' fees as provided by the FLSA for all violations which occurred beginning at least three (3) years preceding the filing of Plaintiffs' Original Complaint. 68. Alternatively, should the Court find that Defendants acted in good faith in failing to pay Plaintiffs and those similarly situated as provided by the FLSA, Plaintiffs and those similarly situated are entitled to an award of prejudgment interest at the applicable legal rate. 69. Plaintiffs repeat and re-allege all previous paragraphs of this Original Complaint as though fully set forth herein. 70. Plaintiff asserts this claim for damages and declaratory relief pursuant to the AMWA, Arkansas Code Annotated§§ 11-4-201, et seq. 71. At all relevant times, Defendants were or have been Plaintiffs' "employers" within the meaning of the AMWA, Ark. Code Ann. § 11-4-203( 4 ). 72. Arkansas Code Annotated § 11-4-211 requires employers to pay all employees one and one-half (1.5) times regular wages for all hours worked over forty (40) hours in a week, unless an employee meets the exemption requirements of 29 U.S.C. § 213 and accompanying Department of Labor regulations. 75. By reason of the unlawful acts alleged herein, Defendants are liable to Plaintiff for monetary damages, liquidated damages, costs, and a reasonable attorney's fee provided by the AMWA for all violations which occurred within the three (3) years prior to the filing of this Complaint, plus periods of equitable tolling. 76. Alternatively, should the Court find that Defendants acted in good faith in failing to pay Plaintiff as provided by the AMWA, Plaintiff is entitled to an award of prejudgment interest at the applicable legal rate. IX. FLSA § 216(b) Collective 41 . Plaintiffs repeat and re-allege all previous paragraphs of this Complaint as though fully incorporated in this section. | win |
158,338 | XIII. CAUSES OF ACTION ................................................................................................................... 18 First Cause of Action ...................................................................................................................... 18 Second Cause of Action .................................................................................................................. 20 Third Cause of Action ..................................................................................................................... 21 Fourth Cause of Action ................................................................................................................... 22 | lose |
389,244 | 26. Defendant owns and operates a telecommunication company that specializes in selling minutes for overseas phone calls. 28. Plaintiff himself was sent at least two marketing text messages without his express written consent. 29. Below is a depiction of an actual text message received by Plaintiff from Defendant: 30. Defendant’s text messages constitute telemarketing because they encourage the future purchase of Defendant’s products by consumers. 31. Plaintiff received the subject text messages within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other text messages to be sent to individuals residing within this judicial district. 32. At no point in time did Plaintiff provide Defendant with his express written consent to be contacted by text for marketing purposes. 33. Plaintiff is the subscriber and sole user of the ***-***-5833 phone number. 34. Some, if not all of the messages originated from “305-520-7863.” 36. Specifically, upon information and belief, Defendant, through their direction, utilized a combination of hardware and software systems to send the text messages at issue in this case. The systems utilized by Defendant have the current capacity or present ability to generate or store random or sequential numbers or to dial sequentially or randomly at the time the call is made, and to dial such numbers, en masse, in an automated fashion without human intervention. 37. Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text messages also inconvenienced Plaintiff and caused disruption to his daily life. See Patriotic Veterans, Inc. v. Zoeller, No. 16-2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of the phone owner’s time and mental energy, both of which are precious.”). Plaintiff received the subject text message while he was at work, causing him to stop his work activities to check his phone. 38. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarly situated. 40. Defendant and their employees or agents, Plaintiff’s attorneys and their employees, the Judge to whom this action is assigned and any member of the Judge’s staff and immediate family, and claims for personal injury, wrongful death, and/or emotional distress are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes the Class members number in the several thousands, if not more. 44. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant routinely transmits text messages to telephone numbers assigned to cellular telephone services is accurate, Plaintiffs and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 49. Plaintiff re-alleges and incorporates paragraphs 1-48 as if fully set forth herein. 50. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 51. “Automatic telephone dialing system” refers to any equipment that has the “capacity to dial numbers without human intervention.” See, e.g., Hicks v. Client Servs., Inc., No. 07-61822, 2009 WL 2365637, at *4 (S.D. Fla. June 9, 2009) (citing FCC, In re: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991: Request of ACA International for Clarification and Declaratory Ruling, 07–232, ¶ 12, n.23 (2007)). 52. Defendant – or third parties directed by Defendant– used equipment having the capacity to dial numbers without human intervention to make marketing telephone calls to the cellular telephones of Plaintiff and the other members of the Class defined above. 54. Defendant therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to make marketing telephone calls to the cell phones of Plaintiff and Class Members without their prior express written consent. 55. All possible Defendants are directly, jointly, or vicariously liable for each such violation of the TCPA. 56. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff and the other members of the putative Class were harmed and are each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an injunction against future calls. 57. Plaintiff re-alleges and incorporates paragraphs 1-48 as if fully set forth herein. 58. At all times relevant, Defendant knew or should have known that their conduct as alleged herein violated the TCPA. 59. Defendant knew that they did not have prior express written consent to send these text messages. 60. Because Defendant knew or should have known that Plaintiff and Class Members had not given prior express consent to receive its autodialed calls to their cellular telephones, the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 62. As a result of Defendant violations, Plaintiff and the Class Members are entitled to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). WHEREFORE, Plaintiff, MARIO GUERRA, on behalf of herself and the other members of the Class, prays for the following relief: a. A declaration that Defendant practices described herein violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. A declaration that Defendant violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, were willful and knowing; c. An injunction prohibiting Defendant from using an automatic telephone dialing system to call and text message telephone numbers assigned to cellular telephones without the prior express consent of the called party; d. An award of actual, statutory damages, and/or trebled statutory damages; and e. Such further and other relief the Court deems reasonable and just. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) PROPOSED CLASS Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) | win |
143,642 | 14. Plaintiff brings this action as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure (hereinafter “FRCP”), on behalf of himself and all consumers and their successors in interest (the “Class”), who were sent debt collection letters and/or notices from the Defendants which are in violation of the FDCPA, as described in this Complaint 15. This Action is properly maintained as a statewide class action. The Class consists of: All New York City consumers who were sent letters and/or notices from SIMM concerning a debtor owned by JH CAPITAL GROUP and/or JH Portfolio Debt Equities, LLC., which was beyond the applicable statute of limitation, and did not inform the consumer that the legal time for suing the consumer to collect the debt had expired, and/or Offer to settle the debt for less than the outstanding balance in one than one payment and did not inform the consumer that if he/she made a payment, that JH CAPITAL GROUP and/or JH Portfolio Debt Equities, LLC's, right to sue to make him/her pay the entire debt may start again. - 3 - The Class period begins one year to the filing of this Action. 16. The Class satisfies all the requirements of Rule 23 of the FRCP for maintaining a class action: Upon information and belief, the Class is so numerous that joinder of all members is impracticable because there are hundreds and/or thousands of persons who have received debt collection letters and/or notices from the Defendant that violate specific provisions of the FDCPA. Plaintiff is complaining of a standard form letter and/or notice that are sent to hundreds of persons (See Exhibit A, except that the undersigned attorney has, in accordance with Fed. R. Civ. P. 5.2 partially redacted the financial account numbers in an effort to protect Plaintiff’s privacy); - 4 - There are questions of law and fact which are common to the Class and which predominate over questions affecting any individual Class member. These common questions of law and fact include, without limitation: a. Whether Defendants violated various provisions of the FDCPA; b. Whether Plaintiff and the Class have been injured by Defendant's conduct; c. Whether Plaintiff and the Class have sustained damages and are entitled to restitution as a result of Defendants' wrongdoing and if so, what is the proper measure and appropriate statutory formula to be applied in determining such damages and restitution; and d. Whether Plaintiff and the Class are entitled to declaratory and/or injunctive relief. Plaintiff’s claims are typical of the Class, which all arise from the same operative facts and are based on the same legal theories. Plaintiff has no interest adverse or antagonistic to the interest of the other members of the Class. Plaintiff will fairly and adequately protect the interest of the Class and has retained experienced and competent attorneys to represent the Class. A Class Action is superior to other methods for the fair and efficient adjudication of the claims herein asserted. Plaintiff anticipates that no unusual difficulties are likely to be encountered in the management of this class action. A Class Action will permit large numbers of similarly situated persons to prosecute their common claims in a single forum simultaneously and without the duplication of effort and expense that numerous individual actions would engender. Class treatment will also permit the adjudication of relatively small claims by many Class members who could not otherwise afford to seek legal redress for the wrongs complained of herein. Absent a Class Action, class members will continue to suffer losses of statutory protected rights as well as monetary damages. If Defendants' conduct is allowed to proceed without remedy, they will continue to reap and retain the proceeds of their ill-gotten gains. Defendants have acted on grounds generally applicable to the entire Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. - 5 - 17. Plaintiff is at all times to this lawsuit, a "consumer" as that term is defined by 16 U.S.C. §1692a(3). 18. SIMM collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and Internet. 19. SIMM is a “debt collector” as defined by 15 U.S.C. §1692a(6). 20. SIMM is considered a debt collector pursuant to the regulations of the New York City Department of consumer affairs. 21. JH collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and Internet. 22. JH is a “debt collector” as defined by 15 U.S.C. §1692a(6). 23. JH is considered a debt collector pursuant to the regulations of the New York City Department of consumer affairs. 24. Sometime prior to September 30, 2010, Plaintiff allegedly incurred a financial obligation to CHASE BANK USA, N.A. ("CHASE"). 25. Sometime prior to September 30, 2010, the CHASE obligation became past due. 26. CHASE is a "creditor" as defined by 15. U.S.C. §1692a(4). 27. At sometime prior to January 23, 2016, CHASE, either directly or through intermediate transactions sold the CHASE obligation to JH. 28. At some prior to January 23, 2016, JH purchased the CHASE obligation. - 6 - 29. At the time the CHASE obligation was sold to JH, such obligation was past due. 30. At the time the CHASE obligation was sold to JH, such obligation was beyond the applicable statute of limitations. 31. On or about December 1, 2014, JH placed the CHASE obligation with SIMM for the purpose of collection. 32. At the time the CHASE obligation was placed with SIMM, such obligation was past due. 33. At the time the CHASE obligation was place with SIMM, such obligation was beyond the applicable statute of limitations. 34. At the time the CHASE obligation was place with SIMM, SIMM knew or should have known that such obligation was beyond the applicable statute of limitations. 35. On or about January 23, 2015, Defendants caused to be delivered to Plaintiff a letter in an attempt to collect the CHASE obligation. A copy of said letter is annexed hereto as Exhibit A except that the undersigned attorney has, in accordance with Fed. R. Civ. P. 5.2 partially redacted the financial account numbers in an effort to protect Plaintiff’s privacy. 36. The January 23, 2015 letter was sent or caused to be sent by persons employed by Defendants as a “debt collector” as defined by 15 U.S.C. §1692a(6). 37. The January 23, 2015 letter is a “communication” as defined by 15 U.S.C. §1692a(2). 38. Upon receipt of the January 23, 2015, Plaintiff read said letter. 39. Defendants contend that the alleged CHASE obligation is in default. - 7 - 40. The CHASE obligation arose out of a transaction in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. 41. The January 23, 2015 letter contained the following statements: 47. Plaintiff repeats the allegations contained in paragraphs 1 through 46 as if the same were set forth at length. 48. Collection letters and/or notices such as those sent by Defendants, are to be evaluated by the objective standard of the hypothetical “least sophisticated consumer.” 49. Because the January 23, 2015, letter failed to contain the required information relating to the consumer's rights as to the statute of limitations, as required by Chapter 2 of title 20 of the administrative code of the City of New York, DCA 20-493.2(b) Defendants violated 15 U.S.C. §1692e(10) by using false deceptive and misleading means in connection with the collection of a debt. 50. Defendants violated 15 U.S.C. §1692e(10) by not informing to Plaintiff, in the January 23, 2015 letter that the applicable statute of limitations had expired on the CHASE obligation. 51. Defendants further violated 15 U.S.C. §1692e(10) by not informing to Plaintiff that if he made the first payment pursuant to "Option 3" in the January 23, 2015 letter, that the statue of limitation may start and JH right to sue him to pay the entire debt may start again. - 9 - 52. The least sophisticated consumer upon reading the January 23, 2015 letter would be mislead and deceived into making the first payment of "Option 3" that would restart the statue of limitation without knowing such an event would happen. 53. The least sophisticated consumer after making the first payment of "Option 3" would be in a worse position than not making a payment at all. 54. Defendant violated 15 U.S.C. §1692e(2)(A) by falsely representing the character and legal status of the debt. 55. The least sophisticated consumer upon reading the January 23, 2015 letter, would believe that the debt was still enforceable in a court of law. 56. Plaintiff repeats the allegations contained in paragraphs 1 through 55 as if the same were set forth at length. 57. Section 1692f et seq. of the FDCPA prohibits a debt collector from using unfair or unconscionable means to collect or attempt to collect any debt. 58. Because the January 23, 2015, letter failed to contain the required information relating to the consumer's rights as to the statute of limitations, as required by Chapter 2 of title 20 of the administrative code of the City of New York, DCA 20-493.2(b) Defendants violated 15 U.S.C.§1692f by engaging in unfair means to collect a consumer debt. 59. Defendants violated 15 U.S.C. §1692f by not informing to Plaintiff, in the January 23, 2015 letter that the applicable statute of limitations had expired on the CHASE obligation. 60. Defendants violated 15 U.S.C. §1692f by not informing to Plaintiff that if he made the first payment pursuant to "Option 3" in the January 23, 2015 letter, that the statue of limitation may start and JH right to sue him to pay the entire debt may start again. - 10 - WHEREFORE, Plaintiffs demand judgment against the Defendant on each count as follows: (a) Declaring that this action is properly maintainable as a Class Action and certifying Plaintiff as Class representative and the attorney, Joseph K. Jones, Esq. and Benjamin J. Wolf, Esq., as Class Counsel; (b) Awarding Plaintiff and the Class statutory damages; (c) Awarding Plaintiff and the Class actual damages; (d) Pre-judgment interest; (e) Post judgment interest; (f) Awarding Plaintiff costs of this Action, including reasonable attorneys' fees and expenses; and (g) Awarding Plaintiff and the Class such other and further relief as the Court may deem just and proper. Dated: New York, New York May 1, 2015 /s/ Joseph K. Jones Joseph K. Jones (JJ-5509) Law Offices of Joseph K. Jones, LLC 555 Fifth Avenue, Suite 1700 New York, NY 10017 (646) 459-7971 telephone (646) 459-7973 facsimile [email protected] /s/ Benjamin J. Wolf Benjamin J. Wolf (BW-3338) Law Offices of Joseph K. Jones, LLC 555 Fifth Avenue, Suite 1700 New York, NY 10017 (646) 459-7971 telephone (646) 459-7973 facsimile [email protected] - 11 - Attorneys for Plaintiff - 12 - FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692 VIOLATION OF 15 U.S.C. §1692f et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692e et seq. | win |
31,207 | 24. Defendants employ exotic dancers and have employed hundreds of dancers over the years at The Club. 25. Plaintiff Smith was previously employed as an exotic dancer at Defendants’ adult entertainment club during the statutory time period. 26. Plaintiff Smith worked on a regular basis for Defendants’ establishment located in Waterbury, Connecticut. 27. Plaintiff Smith worked at the Club from January 2017 until March 2019. 28. Plaintiff Smith worked between 7-8 hours per shift during her employment. 29. Plaintiff Smith never received any wages during her employment with The Club. 30. During at least one workweek between January 2017 and March 2019, Defendants did not pay Plaintiff Smith the federally mandated minimum wage. As an illustrative example, starting in the first week of January 2017 that she worked for Defendants as a dancer, and continuing until the end of her employment with The Club, Plaintiff Smith was not paid a minimum wage. 31. Plaintiff Baker was previously employed as an exotic dancer at Defendants’ adult entertainment club during the statutory time period. 32. Plaintiff Baker worked on a regular basis for Defendants’ establishment located in Waterbury, Connecticut. 33. Plaintiff Baker worked at the Club from February 2017 until 2019. 34. Plaintiff Baker worked between 7-8 hours per shift during her employment. 35. Plaintiff Baker never received any wages during her employment with The Club. 37. Similarly, Opt-In Plaintiffs and Connecticut Class Members did not work a single hour at the club where they were paid the federally mandated minimum wage of $7.25 an hour or the state mandated minimum wage of $10.10 under Connecticut Public Act No. 14-1 effective January 1, 2017. The previous minimum wage in Connecticut in 2016 was $9.60, and the minimum wage after October 1, 2019 became $11.00 per hour. 38. Plaintiffs, FLSA Class Members, and Connecticut Class Members were compensated exclusively through tips from Defendants’ customers. That is, Defendants did not pay them whatsoever for any hours worked at its establishment. 39. Furthermore, Defendants charged Plaintiffs, FLSA Class Members a house fee per shift worked. In other words, they had to pay to work at The Club and sometimes completed a full shift only to owe The Club money. 40. Defendants also required Plaintiffs, FLSA Class Members, and Connecticut Class Members to share their tips with other non-service employees who do not customarily receive tips such as security. 41. Plaintiffs, FLSA Class Members, and Connecticut Class Members received tips and/or dance fees from Defendants’ customers but no other form of payment from their employer. 42. The money received by the club after a shift of dance performances was not included in Defendants’ gross sales receipts and was not disbursed in any way as wages to any workers. 44. Defendants hired/fired, issued pay, supervised, directed, disciplined, and performed all other duties generally associated with that of an employer with regard to the dancers. 46. Defendants misclassified Plaintiffs, FLSA Class Members, and Connecticut Class Members as independent contractors to avoid Defendants’ obligation to pay them pursuant to the FLSA and State law. 47. Plaintiffs, FLSA Class Members, and Connecticut Class Members constituted the workforce without which Defendants could not perform their services. 48. Plaintiffs, FLSA Class Members, and Connecticut Class members are not exempt from the minimum wage and overtime requirements under the FLSA and Connecticut state labor laws. 49. Defendants’ method of paying Plaintiffs and Class Members in violation of the FLSA is willful and is not based on a good faith and reasonable belief that its conduct complied with the FLSA or State Labor Laws. 51. Plaintiffs incorporate all allegations contained in the foregoing paragraphs. 52. Defendants’ willful practice of failing to pay Plaintiffs and FLSA Class Members at the required minimum wage rate violates the FLSA and was not based in good faith. 29 U.S.C. § 206. 53. The FLSA required that Defendants allow Plaintiffs and other similarly situated exotic dancers to keep all tips and gratuities received from customers. As set forth above, Defendants failed to pay Plaintiffs and other similarly situated exotic dancers at hourly rates in compliance with the FLSA Federal Minimum Wage requirements. Without legal excuse or justification, Defendants kept and/or assigned to management tips and gratuities received by Plaintiffs and other exotic dancers and belonging to Plaintiffs and other exotic dancers. 54. As also alleged above, Defendants’ practice of collecting house fees from the dancers also violates the law. 55. None of the exemptions provided by the FLSA regulating the duty of employers to pay employees for all hours worked at the required minimum wage rate or the required overtime rate are applicable to the Defendants or the Plaintiffs. 56. Plaintiffs, on behalf of themselves and the members of the Connecticut Class incorporate by reference the paragraphs above. 58. Pursuant to Connecticut General Statues Section 31-58(i), Connecticut’s minimum wage was $10.10 during the period from January 1, 2017 to October 1, 2019. Prior to this period, the minimum wage was $9.60, and the minimum wage became $11.00 after this period. 59. At relevant times in the period encompassed by this Complaint, Defendants have a willful policy and practice of improperly classifying Plaintiffs and dancers as independent contractors and, consequently, failing to pay these individuals the applicable Connecticut Minimum Wage for each hour worked. 60. Pursuant to Defendants’ compensation policies, Defendants improperly classified Dancers as independent contractors rather than pay Plaintiffs and dancers the Connecticut minimum wage. 61. As a result of Defendants’ willful practices, Defendants were not entitled to pay Plaintiffs and the members of the Connecticut Class less than the Connecticut minimum wage for all hours worked. 62. Defendants have violated and continue to violate the CMWA and Conn. Gen. Stat. §§ 31-60 et seq. 63. Due to the Defendants’ violations, Plaintiffs, on behalf of themselves and the members of the Connecticut Class, are entitled to recover from Defendants the amount of unpaid minimum wages, attorney’s fees, and costs. 65. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs. 66. This count arises from Defendants’ violation of the FLSA for its failure to pay Plaintiffs and FLSA Class Members overtime based on the FLSA’s time and a half formula. 67. For each hour worked in excess of 40 each week, Plaintiffs and FLSA Class Members were entitled to be paid one and one-half times their regular rates of pay. 29 U.S.C. § 207. 68. By failing to pay overtime based on that formula, Defendants have violated and continue to violate the FLSA. 69. No exemption contained in the FLSA, its implementing regulations, or recognized by any court of the United States permits an employer in Defendants’ position to skirt its obligation to pay overtime to an employee situated in the position of the Plaintiffs and FLSA Class Members. 70. Defendants’ failure to pay overtime to Plaintiffs and FLSA Class Members, in violation of the FLSA was willful and not based on a good faith belief that their conduct did not violate the FLSA. 71. As such, the foregoing conduct, as alleged, constitutes a willful violation within the meaning of the FLSA. 29 U.S.C. § 255(a). 73. It would be inequitable and unjust for Defendants to continue to retain the benefit, as Plaintiffs conferred a benefit on Defendants which Defendants kept for themselves. 74. Plaintiffs bring this action as an FLSA collective action pursuant to 29 U.S.C. § 216(b) on behalf of all persons who were or are employed by Defendants as exotic dancers at any time during the three years prior to the commencement of this action to present. 75. Plaintiffs have actual knowledge that FLSA Class Members have also been denied pay at the federally mandated minimum wage rate. That is, Plaintiffs worked with other dancers who worked at The Club. As such, Plaintiffs have first-hand personal knowledge of the same pay violations at The Club for other dancers. Furthermore, other exotic dancers at Defendants’ establishment have shared with Plaintiffs similar pay violation experiences including wage and tip confiscations, as those described in this complaint. 76. Other employees similarly situated to the Plaintiffs work or have worked for Defendants’ gentlemen’s club business but were not paid overtime at the rate of one and one-half their regular rate when those hours exceeded 40 hours per workweek. Furthermore, these same employees were denied pay at the federally mandated minimum wage rate. 77. FLSA Class Members perform or have performed the same or similar work as Plaintiffs. 79. As such, FLSA Class Members are similar to Plaintiffs in terms of job duties, pay structure, misclassification as independent contractors and/or the denial of minimum wage. 80. Defendants’ failure to pay for hours worked at the minimum wage rate required by the FLSA results from generally applicable policies or practices and does not depend on the personal circumstances of the FLSA Class Members. 81. The experiences of Plaintiffs, with respect to their pay, are typical of the experiences of the FLSA Class Members. 82. The specific job titles or precise job responsibilities of each FLSA Class Member does not prevent collective treatment. 83. All FLSA Class Members, irrespective of their particular job requirements, are entitled to compensation for hours worked at the federally mandated minimum wage rate. 84. Although the exact amount of damages may vary among FLSA Class Members, the damages for the FLSA Class Members can be easily calculated by a simple formula. The claims of all FLSA Class Members arise from a common nucleus of facts. Liability is based on a systematic course of wrongful conduct by the Defendants that caused harm to all FLSA Class Members. 85. As such, Plaintiffs bring their FLSA minimum wage claims as a collective action on behalf of the following class: The FLSA Class Members are all of Defendants’ current and former exotic dancers who worked for Defendants at any time starting three years before this lawsuit was filed up to the present. B. Connecticut Rule 23 Class Action 87. Defendants willfully violated Connecticut General Statute § 31-58 and refused to pay dancers minimum wages and other owed wages (such as wages confiscated via forced tip outs and house fees.) 88. Plaintiffs brings their Connecticut wage claims as a Rule 23 class action on behalf of the following class: All of Defendants’ current and former exotic dancers who worked for Defendants at any time starting two years before this lawsuit was filed up to the present. 89. Numerosity. The number of members in the Connecticut Class is believed to be well over 40. This volume makes bringing the claims of each individual member of the class before this Court impracticable. Likewise, joining each individual member of the Connecticut Class as a plaintiff in this action is impracticable. Furthermore, the identity of the members of the Connecticut Class may be determined from Defendants’ employment files, as will the compensation paid to each of them. As such, a class action is a reasonable and practical means of resolving these claims. To require individual actions would prejudice the Connecticut Class and Defendants. 91. Adequacy. Plaintiffs are a representative party who will fairly and adequately protect the interests of the Connecticut Class because it is in their interest to effectively prosecute the claims herein alleged in order to obtain the unpaid wages and penalties required under Connecticut law. Plaintiffs have retained attorneys who are competent in both class actions and wage and hour litigation. Plaintiffs do not have any interest which may be contrary to or in conflict with the claims of the Connecticut Class they seek to represent. 92. Commonality. Common issues of fact and law predominate over any individual questions in this matter. The common issues of fact include, but are not limited to: A. Whether Defendants failed to pay Plaintiffs and Connecticut Class the minimum wage for all hours worked; B. Whether Defendants failed to pay Plaintiffs and Connecticut Class an overtime rate for all hours worked; C. Whether Defendants took wages and tips from dancers to run their business in violation of Connecticut Wage Laws. 94. Superiority. A class action is superior to other available means for the fair and efficient adjudication of this lawsuit. Even in the event any member of the Connecticut Class could afford to pursue individual litigation against a company the size of Defendants, doing so would unduly burden the court system. Individual litigation would magnify the delay and expense to all parties and flood the court system with duplicative lawsuits. Prosecution of separate actions by individual members of the Connecticut Class would create the risk of inconsistent or varying judicial results and establish incompatible standards of conduct for Defendants. 95. A class action, by contrast, presents far fewer management difficulties and affords the benefits of uniform adjudication of the claims, financial economy for the parties, and comprehensive supervision by a single court. By concentrating this litigation in one forum, judicial economy and parity among the claims of individual Connecticut Class Members are promoted. Additionally, class treatment in this matter will provide for judicial consistency. The identity of members of the Connecticut Class is readily identifiable from Defendants’ records. 96. This type of case is well-suited for class action treatment because: (1) Defendants’ practices, policies, and/or procedures were uniform; (2) the burden is on the Defendants to prove it properly compensated its employees; and (3) the burden is on the Defendants to accurately record hours worked by employees. 97. Ultimately, a class action is a superior forum to resolve the Connecticut claims detailed herein because of the common nucleus of operative facts centered on the continued failure of Defendants to pay Plaintiffs and the Connecticut Class according to applicable Connecticut laws. A. FLSA Class Members TIP SHARING – COLLECTIVE ACTION) TO PAY MINIMUM WAGE AND OVERTIME (CLASS ACTION) | lose |
346,489 | 10. Plaintiff then received a letter dated October 5, 2015 from RTR, attached as Exhibit A, attempting to collect $237.00 allegedly due based on the Citation (the “October 5 Letter”). 11. The October 5 Letter stated, in pertinent part: Dear ALIZA D LEVI: 3 Please be advised that the Nassau County Traffic and Parking Violations Agency has placed the above-referenced fine with this office. We ask that you forward payment in the amount set forth above. Please detach and return the lower portion of this letter with your payment. Should you wish to pay by credit card you must contact our office. Note that a processing fee will be added to the amount of your payment. Please direct all future telephone calls and letters to our office, at the telephone number and address set forth above. If you do not contact our office within 15 days of the date of this letter, this fine will be reported to the credit bureaus. In addition, failure to pay may result in the suspension of your driver’s license, motor vehicle registration, and/or a judgment being entered against you. 12. The October 5 Letter is a form letter used by Defendant, generated by a computer, with the information specific to Plaintiff inserted by computer. 13. Following its mailing of the October 5 Letter, Defendant failed to send to Plaintiff any further information generally relating to the debt allegedly owed, and specifically her right to seek verification of the debt. 14. The alleged debt that is the subject matter of the October 5 Letter is a consumer debt. 15. RTR’s actions violated the FDCPA several times over, as specifically described in 16. The FDCPA generally prohibits “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. 17. The FDCPA specifically prohibits “the false representation of the character, amount, or legal status” of an alleged debt. 15 U.S.C. § 1692e(2). 4 18. The FDCPA specifically prohibits threatening “to take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). 19. The FDCPA specifically prohibits the “use of any false representation or deceptive means to collect or attempt to collect any debt.” 15 U.S.C. § 1692e(10). 20. The FDCPA requires a debt collector “to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose[.]”15 U.S.C. § 1692e(11). 21. The FDCPA prohibits the use of any “unfair or unconscionable means to collect or attempt to collect any debt” including “the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1). 22. The FDCPA also requires that a debt collector, “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, . . . send the consumer a written notice containing-- . . . (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; [and] (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector[.]” 15 U.S.C. § 1692g(a). 23. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all natural persons who were sent a collection letter by RTR on or 5 after November 2, 2014 that stated (a) that a processing fee would be added to the amount of any payment for a debt; (b) that failure to pay could result in the suspension of a driver license or motor vehicle registration; (c) failed to identify itself as a debt collector and to notify the consumer that any information obtained will be used for the purpose of collecting a debt; (d) failed to notify the consumer that the consumer had 30 days to dispute the debt, otherwise RTR would assume the debt to be valid; or (e) failed to notify the consumer that if the consumer notified RTR within 30 days that the alleged debt or any part thereof was disputed, RTR would obtain verification of the debt (the “Class”). 24. The Class is so numerous that joinder is impracticable. On information and belief, there are more than 50, if not thousands, of members of the Class. (a) There are questions of law and fact common to members of the Class that predominate over any questions affecting only individual class members. Specifically, the question of whether the October 5 Letter violates the FDCPA predominates over all others. 25. Plaintiff’s claims are typical of those of the Class because all are based on the same factual basis and legal theories. 26. Plaintiff will adequately protect the interests of the Class and has retained counsel who are experienced in class action consumer litigation. Plaintiff has no interests which conflict with those of the Class. 27. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 28. Plaintiff incorporates by reference each and every preceding paragraph as though fully set forth herein. 6 29. RTR’s statement in the October 5 Letter that a processing fee will be added to payments made by credit card violates the FDCPA. 15 U.S.C. § 1692f(1). The processing fee is incidental to the alleged debt and is not authorized by contract or law. Further, such statement is a false representation that RTR is entitled to receive compensation in violation of the FDCPA. 15 U.S.C. § 1692e(2). 30. RTR’s statement in the October 5 Letter that failure to pay the alleged debt could result in suspension of Plaintiff’s license or motor vehicle registration violates the FDCPA. 15 U.S.C. § 1692e(5) and (10). There was no debt owed to begin with.1 In addition, had Plaintiff owed a debt, RTR did not have any authority or power to suspend anyone’s license or motor vehicle registration regardless of whether the payment was made to RTR.2 31. In the October 5 Letter, RTR failed to identify itself as a debt collector and to notify the consumer that any information obtained will be used for the purpose of collecting a debt. Such failure by Defendant violated the FDCPA. 15 U.S.C. § 1692e(11). 32. In the October 5 Letter and within five days of its sending, RTR failed to notify the consumer that the consumer had 30 days to dispute the debt, otherwise RTR would assume the debt to be valid. Such failure by Defendant violated the FDCPA. 15 U.S.C. § 1692g(3). 33. In the October 5 Letter and within five days of its sending, RTR failed to notify the consumer that if the consumer notified RTR within 30 days that the alleged debt or any part thereof 1 New York Vehicle and Traffic Law § 227(4)(b) provides that “[n]o . . . civil action shall be commenced nor shall [any] final order [to collect an unpaid traffic fine] be filed until at least thirty days after the department has posted by ordinary mail to the person at the address of such person on file with the department or at the current address provided by the United States postal service notice of the amount of such fine or fines and that such fine or fines are due and owing.” Moreover, any determination of a traffic hearing officer is subject to appeal if filed within thirty days after notice of the determination is served. Id. § 228(4). 2 See id. §510(1) (“Who may suspend or revoke. Any magistrate, justice or judge, in a city, in a town, or in a village, any supreme court justice, any county judge, any judge of a district court, the superintendent of state police and the commissioner of motor vehicles or any person deputized by him, shall have power to revoke or suspend the license to drive a motor vehicle or motorcycle . . . .”) 7 was disputed, RTR would obtain verification of the debt. Such failure by Defendant violated the FDCPA. 15 U.S.C. § 1692g(4). 8. On May 28, 2015, Plaintiff received a traffic citation in Nassau County, ticket number BE603713-5 (the “Citation”). Plaintiff pled not guilty to the infraction alleged in the Citation. 9. On September 16, 2015, the Citation was dismissed. Background The FDCPA Violation of the FDCPA | lose |
195,199 | 27. Plaintiff, for himself and on behalf of others similarly situated, seeks class action certification pursuant to the Federal Rules of Civil Procedure Rule 23(a) and 23 (b)(2) of all deaf and hard of hearing individuals in the United States who have been denied equal access to goods and services of the Defendant’s Website. 28. Plaintiff, on behalf of himself and on behalf of all others similarly situated, seeks to certify a New York State subclass under Federal Rules of Civil Procedure Rule 23(a) and 23 (b)(2) of all deaf and hard of hearing individuals in the State of New York who have been denied equal access to goods and services of the Defendant’s Website. 29. Plaintiff, on behalf of himself and on behalf of all others similarly situated, seeks to certify a New York City subclass under Federal Rules of Civil Procedure Rule 23(a) and 23(b)(2) of all deaf and hard of hearing individuals in the City of New York who have been denied equal access to goods and services of the Defendant’s Website. 30. The Class is so numerous, being composed of millions of deaf and hard of hearing individuals, that joinder of all members is impracticable. Additionally, there are questions of law and/or fact common to the Class and the claims of the Plaintiff are typical of the Class claims. 31. Common questions of law and fact exist amongst the Class including: a. Whether the Website is a "public accommodations" under the ADA and New York laws; b. Whether there was a violation under the ADA due to the barriers that exist on the Defendant’s Website and whether the Plaintiff and the Class were denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations; and c. Whether there was a violation under New York law due to the barriers that exist on the Defendant’s Website and whether the Plaintiff and the Class were denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations. 32. The Plaintiff’s claims are typical of those of the Class as they both claim that the Defendant violated the ADA, and/or the laws of New York by failing to have its Website accessible. 33. Plaintiff will fairly and adequately represent and protect the interests of the Class members as the Plaintiff and the Class are both deaf or hard of hearing individuals having the same claims. 34. Class certification under Fed. R. Civ. P. 23(b)(2) is proper because Defendant has acted or refused to act on grounds applicable to the Class as a whole, making declaratory and injunctive relief appropriate. 35. Questions of law or fact which affected Class members predominate questions which affected individual Class members and a class action will fairly and efficiently determine this litigation. 36. Counsel for the Plaintiff is experienced representing both Plaintiffs and Defendant in class actions. As such the Class will be properly represented. 37. Judicial economy requires this action be certified as a class action as it will prevent a voluminous amount of individual lawsuits filed by deaf or hard of hearing individuals throughout the United States. 38. Defendant owns, operates, controls and maintains the Website, which provides information and video content on the history of Regal Boats, its brand purpose, boat details and overviews and other video content, all of which is content on the Website. The Defendant is a manufacturer of marine products such as Boats, Sterndrive Bowrider, Outboard Bowrider, Surf, SAV, Express Cruiser and Yachts. The Defendant also owns and leases numerous physical places of public accommodations and offices which operates in conjunction with its Website. 39. The Website can be viewed by individuals located in New York State in addition to individuals from all states throughout the United States and can be reached from computers, tablets and cellphones which can access the internet. 40. In order for the deaf and hard of hearing to access video content, a website, including the Defendant’s Website, must have the ability to turn voice content into readable content. Closed captioning is the process by which this is done. Without the use of closed captioning, a deaf or hard of hearing individual would have to have someone present while they are watching a video to interpret and explain the audio content for them. 41. Various recommendations and guidelines exist in order to make websites, including the Defendant’s Website, compliant with the ADA. Web Content Accessibility Guidelines (“WCAG”) is one of those guidelines. WCAG 2.1 Section 1.2.2 states that “Captions are provided for all prerecorded audio content in synchronized media, except when the media is a media alternative for text and is clearly labeled as such”. Additionally, Section 508, an amendment to the United States Workforce Rehabilitation Act of 1973, requires all electronic and information technology be accessible to individuals with disabilities and requires closed captioning for video content. 42. The Website’s numerous videos, which cannot be accessed by deaf and hard of hearing individuals, are in violation of the ADA and New York laws. Videos include most of the Websites videos in addition to the videos the Plaintiff tried to access mentioned herein. 43. The Plaintiff in this matter was on the Defendant’s Website in order to watch videos on the day of July 14, 2020 in addition to subsequent days. The Plaintiff attempted to watch various videos to learn about the history of the Regal Boats, its brand purpose, boat details and overviews and other video content on www.regalboats.com including but not limited to “A Family Company Starting in 1969/Regal Marine Industries”, “Our Brand Purpose/Bonded By Water – Regal Boats”, “Providing Support for your Adventures/Regal Boats”, “29 OBX-Regal Boats Overview” and the “Overview of the 42 FXO” but was unable to do so due to their lack of closed captioning. Plaintiff and Class members cannot watch videos on the Website and have been prevented from accessing the Website although they would like to and intend to visit the Website in the future and enjoy video content as non-deaf individuals can and do. Currently they cannot. The Website is non- accessible. There is no closed captioning on the videos. There are additional videos on the Defendant’s Website which have no closed captioning. The Defendant’s access barriers prevent the Plaintiff from enjoying the goods, services and benefits offered by the Website in conjunction with their physical locations and as such denied the Plaintiff equal access. 44. This lack of closed captioning by the Defendant on its Website prevent not only the Plaintiff but also the deaf and hard of hearing located in New York State and nationally from having equal access as non-deaf and non-hard of hearing individuals have, preventing deaf and hard of hearing individuals from enjoying the goods, services and benefits offered by the Website. 45. Defendant has intentionally failed and refused to remove the Website’s barriers of access by failing to use closed captioning thereby denying equal access to the Plaintiff and the Class and discriminates against the Plaintiff and the Class in violation of the ADA and New York laws. 46. The Plaintiff realleges and incorporates the allegations contained in paragraphs “1” to “45” as if fully set forth herein. 47. The Plaintiff is deaf and requires closed captioning to have full and equal access to audio and audiovisual content and has an impairment that substantially limits one or more of his major life activities and is therefore an individual with a disability as defined under the 62. The Plaintiff realleges and incorporates the allegations contained in paragraphs “1” to “61” as if fully set forth herein. 63. At all times relevant to this action, the New York Human Rights Law (“NYHRL”), Article 15 of the N.Y. Executive Law §§ 290 et. seq. covers the actions of the Defendant. 64. Defendant qualifies as a person within the meaning of Article 15 of the N.Y. Executive Law § 292(1). 65. The Plaintiff, at all times relevant to this action, has a substantial impairment to a major life activity of hearing and is an individual with a disability under Article 15 of the N.Y. Executive Law § 292(21). The Defendant, at all relevant times to this action, owns and operates a place of accommodation, the Website, within the meaning of Article 15 of the N.Y. Executive Law § 292(9) along with its physical locations which include offices, dealerships, dealer network, boat shows, service facilities and live events. 66. Pursuant to Article 15 N.Y. Executive Law § 296(2)(a) “it shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation ... because of the ... disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof." 67. Discrimination includes the refusal to adopt and implement reasonable modifications in policies, practices or procedures when they are necessary to afford, facilities, privileges, advantages or accommodations to individuals with disabilities. Article 15 of the N.Y. Executive Law§ 296(2)(a), § 296(2)(c)(i). 68. Defendant’s actions violate Article 15 of the N.Y. Exec. Law § 296(2)(a) by discriminating against the Plaintiff and the Class, including the Subclass by (i) owning and operating the Website that is inaccessible to deaf and hard of hearing persons; and (ii) by not removing access barriers to its Website in order to make its videos accessible to the deaf and hard of hearing when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities. This inaccessibility denies the deaf and hard-of-hearing full and equal access to the facilities, goods and services that the Defendant makes available to individuals who are not deaf or hard of hearing. Article 15 of the N.Y. Exec. Law§ 296(2)(c). 69. The Defendant’s discriminatory practice also include "a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” Article 15 of the N.Y. Exec. Law § 296(2)(c)(ii). 70. Well established guidelines exist for making a website accessible to the deaf and hard of hearing and are easily obtainable. The guidelines have been used and followed by government and businesses in making their websites accessible to the deaf and hard of hearing, including but not limited to the use of closed captioning. Incorporating this component by Defendant in its Website would not fundamentally alter the Defendant’s Website or business and would not result in an undue burden. 71. Defendant has intentionally and willfully discriminated against the Plaintiff, the Class and Subclass in violation of the New York State Human Rights Law, Article 15 of the N.Y. Exec. Law § 296(2) and this discrimination continues to date. 72. Absent relief, Defendant’s discrimination will continue against the Plaintiff, the Class and Subclass causing irreparable harm. 73. Plaintiff is therefore entitled to compensatory damages, civil penalties and fines for each and every discriminatory act in addition to reasonable attorney fees and the costs and disbursements of this action. Article 15 of the N.Y. Exe. Law §§ 297(9), 297(4)(c) et seq. 74. The Plaintiff realleges and incorporates the allegations contained in paragraphs “1” to “73” as if fully set forth herein. 75. Plaintiff served notice of this lawsuit upon the attorney general as required by N.Y. Civil Rights Law § 41. 76. Persons within N.Y.S. are entitled to full and equal accommodations, advantages, facilities and privileges of places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner of a place of public accommodation, shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof. N.Y. Civ. Rights Law § 40. 77. No person because of disability, as defined in § 292 (21) of the Executive Law, shall be subjected to any discrimination in his or her civil rights by person or by any firm, corporation or institution, or by the state or any agency or subdivision. N.Y. Civ. Rights Law (“CVR”) § 40-c. 78. § 292 of Article 15 of the N.Y. Executive Law deems a disability a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function. As such the Plaintiff is disabled under the N.Y. Civil Rights Law. 79. Defendant discriminates against the Plaintiff and Subclass under CVR § 40 as Defendant’s Website is a public accommodation that does not provide full and equal accommodations, advantages, facilities and privileges to all persons and discriminates against the deaf and hard of hearing due to its lack of closed captioning for the death and hard of hearing. 80. Defendant intentionally and willfully failed to remove the barriers on its Website discriminating against the Plaintiff and Sub-Class preventing access in violation of CVR §40. 81. Defendant has failed to take any steps to halt and correct its discriminatory conduct and discriminates against and will continue to discriminate against the Plaintiff and the Sub-Class members. 82. Under N.Y. Civil Rights Law § 41 a corporation which violates any of the provisions of §§ 40, 40-a, 40-b or 42 shall be liable for a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby… in any court of competent jurisdiction in the county in which the plaintiff or defendant shall reside. 83. Plaintiff hereby demands compensatory damages of five hundred dollars for the Defendant’s acts of discrimination including civil penalties and fines pursuant to N.Y. Civil Law § 40 et seq. 84. The Plaintiff realleges and incorporates the allegations contained in paragraphs “1” to “83” as if fully set forth herein. 85. At all times, the New York City Human Rights Law (“NYCHRL”), New York City Administrative Code §§ 8-101 et seq. applied to the conduct of the Defendant as the Defendant owns and operates the Website and are persons under the law. 86. At all times concerning this action the Plaintiff has had a substantial impairment to a major life activity of hearing and is an individual with a disability under N.Y.C. Administrative Code § 8-102(16). 87. At all times concerning this action the Defendant’s Website is a place of public accommodation as defined in N.Y.C. Administrative Code § 8-102(9). 88. “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of the actual or perceived ……. disability …. of any person to withhold from or deny to such person any of the accommodations required to make reasonable accommodations to a disabled individual and may not “refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” N.Y.C. Admin. Code § 8-107(4)(a). 89. The willful and intentional non-removal of the Website’s barriers of access for the Plaintiff, the Class and the Subclass by the Defendant discriminates against the deaf and hard of hearing by denying them full and equal access to the facilities, goods, and services that Defendant makes available to non-deaf and hard of hearing individuals. 90. It is discriminatory for the Defendant “not to provide a reasonable accommodation to enable a person with a disability to …. enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity." N.Y.C. Administrative Code § 8-107(15)(a). 91. Defendant’s actions will continue to prevent the Plaintiff, the Class and Subclass from accessing the Website as the remaining public can and the Plaintiff requests injunctive relief. 92. Plaintiff is also entitled to compensatory damages for the injuries and loss sustained as a result of the Defendant’s discriminatory conduct in addition to punitive damages and civil penalties and fines for each offense, attorney fees, costs and disbursements of this action. N.Y.C. Administrative Code § 8-120(8), § 8-126(a) and § 8-502(a). 93. The Plaintiff realleges and incorporates the allegations contained in paragraphs “1” to “92” as if fully set forth herein. 94. The Plaintiff claims that the Website contains barriers denying deaf and hard-of-hearing individuals full and equal access to the goods and services of the Website. 95. Defendant’s Website fails to comply with applicable laws and the Defendant discriminates against the Plaintiff and Sub-Class under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq., N.Y. Exec. Law§ 296, et seq., and N.Y.C. Administrative Code § 8-107, et seq. 96. The Defendant denies these claims. 97. The Plaintiff seeks a declaratory judgment such that the parties understand and know their respective rights and obligations. CLASS AND SUB-CLASS FOR DECLARATORY RELIEF THE PLAINTIFF AND THE SUBCLASS Violation of New York State Civil Rights Law THE PLAINTIFF AND THE SUBCLASS Violation of New York City Human Rights Law THE PLAINTIFF, THE CLASS AND THE SUBCLASS Violation of Title III of the Americans with Disabilities Act THE PLAINTIFF AND THE SUBCLASS Violation of New York State Human Rights Law | win |
277,424 | (Invasion of Privacy and Wrongful Intrusion upon the Seclusion and Solitude of the Plaintiff) (Negligent Violations of the Telephone Consumer Protection Act 47 U.S.C. § 227 et seq.) (Violations of the Fair Debt Collection Practices Act 15 U.S.C. § 1692 et seq.) (Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. § 227 et seq.) 23. Plaintiff, William Lamey (“Mr. Lamey” or “Plaintiff”), is a natural person residing in Los Angeles County in the state of California, and is a “consumer” as defined by the FDCPA, 15 U.S.C. §1692a(3). 25. Navient acted through its agents, employees, officers, members, directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, representatives, and insurers in connection with the facts pleaded in this Complaint. 26. Navient has violated the above federal consumer protection laws (the FDCPA and the TCPA) as relates to Plaintiff, and the Class Members, as follows: repeated unlawful debt-collection telephone calls to telephone numbers that were never provided to Navient, nor in which Navient was authorized by the borrowers to contact them at said telephone numbers (in the case of Plaintiff, Mr. Lamey, more than 80 unauthorized and unlawful collection-calls were made to multiple cellular telephones of Mr. Lamey’s that were never provided to Navient at the time of these more than 80 unlawful collection-calls); other unauthorized and unlawful collection activities and communications from Navient to Plaintiff and Class Members in violation of the requirements of the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. Factual Allegations - TCPA 27. Beginning on or about May/June 2015, Navient contacted Plaintiff on his cellular telephone number ending in -4199, in an effort to collect an alleged debt owed from Plaintiff. 29. Then, also beginning in early July 2015, Navient began to contact Plaintiff on his other new cellular telephone number(s) ending in -8033, and -2475, respectively, in an effort to collect an alleged debt owed from Plaintiff. The purpose for the Plaintiff obtaining new cellular telephone numbers was, in large part, to avoid telephonic automated-dialing- system harassment on the part of Navient, the servicer/collector of Mr. Lamey’s private student loans. 30. In its efforts to collect the alleged debt owed from Plaintiff, Defendant used an “automatic telephone dialing system”, as defined by 47 U.S.C. § 227(a)(1) to place its daily calls to Plaintiff seeking to collect an alleged debt owed. 31. Defendant’s calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A). 32. Defendant’s calls were placed to telephone number assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 33. During all relevant times, Defendant did not possess Plaintiff’s “prior express consent” to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on his cellular telephone pursuant to 47 U.S.C. § 227(b)(1)(A). Furthermore, Plaintiff orally revoked any and all consent to be contacted using an automated telephone dialing system, to the extent any ever existed. 35. Without waiving any attorney-client privilege, Plaintiff did not discover the Fair Debt Collection Practice Act violations pleaded in this Complaint until he learned of them, from (current) counsel, on May on or about May 5, 2017. Thus, the FDCPA claims pleaded in this Complaint are not time-barred under the applicable statute of limitations until May 5, 2018. 36. In addition to the facts pleaded above, at various times prior to the filing of the instant Complaint, Defendant, Navient, contacted Plaintiff in an attempt to collect an alleged outstanding debt. 37. Prior to receiving the harassing and unlawful telephone calls to multiple cellular telephones owned by Plaintiff that serve as the basis for this TCPA and FDCPA lawsuit, Plaintiff had disputed his alleged debt with Navient and had requested Navient’s assistance in getting these private student loans on the best possible repayment plan(s) to avoid the telephonic collection-harassment, and destruction of his credit history, that ultimately occurred. Instead of informing Mr. Lamey about available income-based- repayment (IBR) repayment plans, Navient instead engaged in “Rambo” style collection, and telephonic harassment, activities. 39. These calls continued well into 2015, and, upon information and belief, well into year 2016. Navient’s own records are expected to prove these details. 40. On several of these occasions, Mr. Lamey told Navient to stop calling him (and his mother; and his stepfather at his place of employment; and especially, to stop calling Mr. Lamey’s ex-girlfriend – all whose telephone numbers Navient never should have possessed in the first place). 41. Each of the calls referenced, above, is a violation of the FDCPA. Contacting parents, stepparents at their place of employment, and contacting ex-girlfriends from when the Plaintiff was in college constitute egregious violations of the FDCPA (and the TCPA). 43. As a result of the above violations of the FDCPA, Plaintiff suffered and continues to suffer injury to his feelings, personal humiliation, embarrassment, mental anguish and emotional distress, and Navient is liable to Mr. Lamey, and the classes he seeks to represent under the TCPA and the FDCPA, for all actual damages, statutory damages, and costs and attorney’s fees. 44. Plaintiff brings this lawsuit as a class action on behalf of himself, individually, and all others similarly situated as members of the proposed Classes pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). This action satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those provisions. 46. Excluded from the Classes and Sub-Classes are: (1) Defendant, any entity or division in which Defendant has a controlling interest, and their legal representatives, officers, directors, assigns, and successors; (2) the Judge to whom this case is assigned and the Judge’s staff; and (3) those persons who have suffered personal injuries as a result of the facts alleged herein. Plaintiff reserves the right to amend the Class and Sub-Class definitions if discovery and further investigation reveal that the Class and Sub-Class should be expanded or otherwise modified. 48. Typicality: Plaintiff’s claims are typical of the claims of the Class in that Plaintiff, like all Class Members, has suffered the telephonic and collection abuses that nearly identical to claims of the Class Members. The claims of the members of the proposed classes in this lawsuit are each typical of one another due to the fact that they are common, and similar, losses that have occurred as a result Defendants’ various, and consistent, patterns of misconduct. 49. Commonality: There are numerous questions of law and fact common to Plaintiff and the Class that predominate over any question affecting only individual Class Members. These common legal and factual issues have been pleaded, above, in this Complaint. 50. Adequate Representation: Plaintiff will fairly and adequately protect the interests of the Class Members of each of the proposed Classes in this Complaint. Plaintiff has retained attorney(s) experienced in the prosecution of class actions, including consumer class actions, and Plaintiff, and his counsel, intend to prosecute this action vigorously, and through trial and appeal(s), if necessary. 52. Plaintiff incorporates by reference the facts pleaded in the preceding paragraphs of this Complaint. 53. The above-referenced acts and omissions of Defendant constitute numerous and multiple negligent violations of the TCPA, including but not limited to each and every one of the above cited provisions of 47 U.S.C. § 227 et seq. 54. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq., Plaintiff and the Class Members are entitled an award of $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 55. Plaintiff and the TCPA Class members are also entitled to and seek injunctive relief prohibiting such conduct in the future. 57. The above-referenced acts and omissions of Defendant constitute numerous and multiple knowing and/or willful violations of the TCPA, including but not limited to each and every one of the above cited provisions of 47 U.S.C. § 227 et seq. 58. As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. § 227 et seq., Plaintiff and the Class members are entitled an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). 59. Plaintiff and the TCPA Class members are also entitled to and seek injunctive relief prohibiting such conduct in the future. 60. Plaintiff incorporates, by reference, all of the facts pleaded in the preceding Paragraphs of this Complaint. 61. For all relevant periods to this Complaint, Navient was covered as a “debt collector” under the FDCPA. 62. Likewise, Plaintiff, and FDCPA Class Members, for all relevant periods to this Complaint, were covered under the FDCPA “persons” protected by the FDCPA. 63. For all relevant periods to this Complaint, Navient was engaged in collection activities for third-party debts. 65. The Defendant, Navient is liable to Plaintiff, and the FDCPA Class Members for all: statutory damages under the FDCPA, punitive (treble) damages, economic damages, hedonic damages, attorney’s fees, and all costs of litigation. 66. Plaintiff incorporates, by reference, all of the facts pleaded in the preceding Paragraphs of this Complaint, and, in particular, Paragraph 42. 67. The unreasonable and malicious telephonic harassment of the Plaintiff, his family, and even his ex-girlfriend, over debts allegedly owed to the federal government and/or private investors, but serviced by Navient, as detailed in this Complaint, constitutes the tort of invasion of privacy (and wrongful intrusion upon the protected interest of seclusion and solitude of the Plaintiff) under Mississippi law. This Court has pendant subject-matter jurisdiction over this state intentional tort claim. 68. As a direct and proximate result of the Navient’s repeated and knowing violations of the Plaintiff’s protected interest of privacy (and not to have allegations of non- payment broadcast to his family, stepfather, and ex-girlfriend, etc.), the Plaintiff, Mr. Lamey, has suffered damages, emotional distress, humiliation, undue annoyance, and other injuries to be determined by the finder-of-fact at trial. Navient’s (Repeated and Knowing) Violations of the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. | lose |
254,176 | 2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 20. Defendant is a beauty and cosmetics retailer that operates INGLOT stores (its “Stores”) as well as the INGLOT website, offering features which should allow all consumers to access the goods and services which Defendant offers in connection with their physical locations. 21. Defendant operates INGLOT stores across the United States, including its retail location in New York located at 151 West 34th Street, New York, NY 10001. 22. These Stores constitute places of public accommodation. Defendant’s stores provide to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services including store locations and hours, the ability to browse beauty products, find information on promotions and coupons, and related goods and services available both in Stores and online. 24. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s Stores. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Stores and the numerous goods and services and benefits offered to the public through the Website. 25. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 26. During Plaintiff’s visits to the Website, the last occurring in August 2018, Plaintiff encountered multiple access barriers that denied Plaintiff full and equal access to the facilities, goods and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the facilities, goods and services of the Website, as well as to the facilities, goods and services of Defendant’s physical locations in New York by being unable to learn more information about Store locations and hours, the ability to browse the beauty products, find information on promotions and coupons, and related goods and services available both in Stores and online. 28. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from visiting the Website. 29. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s Stores on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 30. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 31. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 33. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 34. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 36. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently view service items, locate Defendant’s physical locations and hours of operation, shop for and otherwise research related goods and services available via the Website. 37. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 38. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 39. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 40. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 41. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 44. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 45. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 50. Defendant’s Stores are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s Stores. The Website is a service that is integrated with these locations. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 58. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 59. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 60. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, services that Defendant makes available to the non-disabled public. 62. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 63. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 65. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 66. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 67. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 68. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 72. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 73. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 74. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 75. Defendant’s New York State physical locations are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Defendant’s Website is a service, privilege or advantage of Defendant and its Website is a service that is by and integrated with these establishments. 77. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 78. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 79. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 80. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 82. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 83. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 84. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 85. Defendant’s locations are sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishments. 86. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 88. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 89. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 90. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 92. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 93. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 94. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 95. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 96. Plaintiff, on behalf of himself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 98. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW | win |
254,756 | 10. CCA-Leavenworth’s phone and videoconference services are provided by Securus. Securus charges families and others a fee for speaking to a detainee. It shares those proceeds with CCA-Leavenworth, which creates profit for both entities. 11. Plaintiffs were detained through a Pretrial Order of Detention issued by a United States Magistrate Judge, and remanded to the custody of the United States Marshal Service to be held pending resolution of their criminal cases. 12. Plaintiff Huff was remanded to the custody of United States Marshal Service through a Pretrial Detention Order entered in United States v. Gregory Rapp, et al., Case No. 14-cv-20067- DJW, and was detained at CCA-Leavenworth on or about October 6, 2015. During the course of representation, Plaintiff Huff had numerous conversations with her attorney, both telephonically and in-person. 14. Detainees, including Plaintiffs Huff and Rapp, routinely contact their attorneys by phone and/or in person to discuss confidential matters. They do so with the understanding that their conversations are private. Similarly, detainees understand that in-person and remote conversations with their attorneys are confidential and not recorded. 15. Plaintiffs Huff and Rapp routinely communicate with their attorneys both in person and also from locations in Kansas City, Missouri. 16. Plaintiffs Huff and Rapp made calls to their attorneys’ cellular phone. Plaintiff Huff and Rapp would use a prepaid phone card to call their attorneys. Upon information and belief, some or all of the calls to or from Plaintiffs occurred in the States of Kansas and Missouri. 17. Upon information and belief, Defendants recorded communications between detainees at CCA-Leavenworth and the outside world. The equipment they used to intercept, record, and/or share detainees’ calls neither facilitates those telephone calls and in-person meetings, nor were the recordings a necessary incident of the calls and meetings. 18. Upon information and belief, during in-person meetings between attorneys and their client/detainees, CCA and/or Securus also routinely recorded those meetings, without either the consent of either attorneys or their client/detainees. Video cameras were placed in attorney/client visitation rooms and those video cameras recorded communications between the attorneys and their client/detainees. 19. Courts in the District of Kansas have issued orders noting the extent to which CCA and Securus were involved in the systematic accessing and recording of attorney-client conversations at CCA-Leavenworth. See exhibits A and B attached hereto. 21. CCA and/or Securus were aware that they were operating a system that captured and recorded confidential attorney-client communications. 22. Plaintiffs were, and current detainees are, at substantial risk of having their attorney calls and meetings monitored, recorded and used against them to prejudice their cases. 23. The unlawful practices and procedures of Defendants described above affected all detainees at CCA-Leavenworth. 24. Unless otherwise specifically stated herein, and pursuant to Fed. R. Civ. P. 23(b)(3), this action is instituted by Plaintiffs on behalf of themselves and All detainees at CCA-Leavenworth, from June 1, 2012 to the present whose confidential communications with their attorneys were intercepted, disclosed or used by Defendants. 25. Upon information and belief, the class referenced above includes hundreds of putative class members residing in Missouri and Kansas and therefore, the class is so numerous that joinder of all members of the class would be impractical. 27. The claims of the Plaintiffs are typical of the claims of the putative class in that: a. Plaintiffs and the putative class members were all detained at CCA-Leavenworth; b. Plaintiffs and the putative class members were all subjected to the same unlawful wiretapping policies and procedures of Defendants, and c. The facts common to Plaintiffs and the putative class members give rise to the same claims asserted in this Complaint. 28. Plaintiffs, as representatives for the putative class, will fairly and adequately protect the interests of the putative class because: a. Plaintiffs have knowledge regarding the facts and circumstances that give rise to their claims and the claims of the putative class members; b. Plaintiffs are strongly interested and highly motivated to assert and protect their own rights and the rights of the putative class in a vigorous fashion; and c. Plaintiffs have retained class counsel with substantial experience and expertise in class actions, commercial litigation and business litigation and which have the necessary and requisite resources. These law firms will vigorously assert and protect the interests of the putative class members. 30. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint. 31. The Missouri wiretap statute broadly prohibits the interception, disclosure or use of any wire, oral or electronic communication. 32. Defendants have violated (and may continue to violate) detainees’ rights under the Missouri Wiretap statute. The individual Plaintiffs, and all class members, are directly affected. 33. CCA and Securus have acted (and continue to act) unlawfully to intercept communications between Class members, like Plaintiffs, and their attorneys, and disclose those confidential communications to third parties, including law enforcement, in violation of the Act. 34. CCA and Securus violate the Missouri Wiretap Act when they intercept, disclose, use, or procure other persons to intercept, disclose or uses communications between class members, like Plaintiffs, and their attorneys. See R.S.Mo. § 542.418. 35. Plaintiffs are entitled to the rights, protections, and benefits provided under the Missouri Wiretap Act, codified at R.S.Mo. §§ 542.400 et seq. 36. Defendants are Persons within the meaning of the Missouri Wiretap statute. 37. Plaintiffs and the putative class are “aggrieved persons” within the meaning of the Missouri Wiretap statute. 38. As set forth herein, Defendants unlawfully recorded confidential communications between Plaintiffs, the putative class and their attorneys. 40. Pursuant to the Missouri Wiretap Act, Plaintiffs and the Class Members are each entitled to damages not less than one hundred dollars a day for each day of violation or ten thousand dollars, whichever is greater. 41. Plaintiffs and the Class Members are entitled to punitive damages. Defendants’ conduct has at all times been willful or intentional within the meaning of the Missouri Wiretap statute. Defendant is also liable pursuant to R.S.Mo. § 542.418 for Plaintiffs’ attorneys’ fees and costs/expenses incurred in this action. 42. The Plaintiffs and the Class Members are all similarly situated in that they were all subject to Defendants’ policy and practice of recording confidential attorney-client communications without consent of either party, in violation of the Missouri Wiretap statute. 43. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint. 44. The Kansas wiretap statute broadly prohibits the interception, disclosure or use of any wire, oral or electronic communication. 45. Defendants have violated (and may continue to violate) detainees’ rights under the Kansas Wiretap statute. The individual Plaintiffs, and all class members, are directly affected. 46. CCA and Securus have acted (and continue to act) unlawfully to intercept communications between Class members, like Plaintiffs, and their attorneys, and disclose those confidential communications to third parties, including law enforcement, in violation of the Act. 48. Plaintiffs are entitled to the rights, protections, and benefits provided under the Kansas Wiretap Act, codified at K.S.A. §22-2502, et seq. 49. Defendants are Persons within the meaning of the Kansas Wiretap statute. 50. Plaintiffs and the putative class are “aggrieved persons” within the meaning of the Kansas Wiretap statute. 51. As set forth herein, Defendants unlawfully recorded confidential communications between Plaintiffs, the putative class and their attorneys. 52. Upon information and belief, in some cases the Defendants disclosed class members’ confidential communications to third parties, such as law enforcement, in further violation of the Kansas Wiretap statute. 53. Pursuant to the Kansas Wiretap Act, Plaintiffs and the Class Members are entitled to damages, but not less than liquidated damages computed of one hundred dollars a day for each day of violation or ten thousand dollars, whichever is greater. 54. Plaintiffs and the Class Members are further entitled to punitive damages. 55. Defendants are liable pursuant to K.S.A. 22-2518 for Plaintiffs’ attorneys’ fees and costs/expenses incurred in this action. 56. The Plaintiffs and the Class Members are all similarly situated in that they were all subject to Defendants’ policy and practice of recording confidential attorney-client communications without consent of either party, in violation of the Kansas Wiretap statute. 57. The Federal Wiretap Act broadly prohibits intercepting, disclosing, or using the contents of any wire, oral, or electronic communication. 59. CCA and/or Securus have acted unlawfully to intercept communications between Class members, like Plaintiffs, and their attorneys, and possibly disclosed those confidential communications to third parties, including prosecutors, in violation of the Act. 60. Defendants violate the Federal Wiretap Act when they: Intentionally intercept, disclose, use, or procure other persons to intercept, disclose or use wire oral or electronic communications (including, but not limited to phone calls and in-person meetings) between Plaintiffs and the putative class and their attorneys. Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of 18 U.S.C. § 2511. 9. Defendant CCA is a private, for-profit corporation that manages detention facilities, including CCA-Leavenworth. The United States Marshal’s Service uses detention facilities operated and managed by CCA, including CCA-Leavenworth, to house federal inmates charged in the Western District of Missouri. Violation of the Federal Wiretap Statute (18 U.S.C. § 2510, et. seq.) Violation of the Kansas Wiretap Statutes Violations of the Missouri Wiretap Statutes | win |
268,645 | 2.1 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.1 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is a children’s toy company that owns and operates www.hape.com (its “Website”), offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 22. Defendant’s Website offers products and services for online sale and general delivery to the public. The Website offers features which ought to allow users to browse for items, access navigation bar descriptions, inquire about pricing, and avail consumers of the ability to peruse the numerous items offered for sale. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using a screen-reader. 24. On multiple occasions, the last occurring in March of 2020, Plaintiff visited Defendant’s website, www.hape.com, to make a purchase. Despite her efforts, however, Plaintiff was denied a shopping experience similar to that of a sighted individual due to the website’s lack of a variety of features and accommodations, which effectively barred Plaintiff from being able to determine what specific products were offered for sale. 26. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. As a result, Plaintiff and similarly situated visually impaired users of Defendant’s Website are unable to enjoy the privileges and benefits of the Website equally to sighted users. 27. Many pages on the Website also contain the same title elements. This is a problem for the visually impaired because the screen reader fails to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 28. The Website also contained a host of broken links, which is a hyperlink to a non- existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. For example, upon coming across a link of interest, Plaintiff was redirected to an error page. However, the screen-reader failed to communicate that the link was broken. As a result, Plaintiff could not get back to her original search. 29. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 31. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from equal access to the Website. 32. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 33. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 43. Common questions of law and fact exist amongst the Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYCHRL. 44. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 47. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 48. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 53. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 58. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 59. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 61. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 62. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 65. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of herself and the Class and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 71. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. | lose |
228,584 | 15. On or about January 16, 2014 at 12:44 pm, Defendant or its agent/s began contacting Plaintiff Martinez on Plaintiff Martinez’s cellular telephone number ending in 5779 via an automatic telephone dialing system (“ATDS”) as defined by 47 U.S.C. § 227(a)(1) using an “artificial or prerecorded voice” as prohibited by 47 U.S.C. § 227(b)(1)(A) in order to collect an alleged debt. 16. This ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. 17. Defendant placed calls to Plaintiff Martinez using the telephone number (480) 719-2570. 18. This January 16, 2014 call used a pre-recorded voice. 20. Plaintiff Martinez obtained his current cell phone number after the alleged debt was incurred; therefore he did not provide any consent to the alleged original creditor. 21. The telephone number Defendant or its agent/s called was assigned to a cellular telephone service for which Plaintiff Martinez incurs a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 22. These telephone calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A)(i). 23. Plaintiff Martinez did not provide Defendant prior express consent to receive calls to his cellular telephone utilizing an ATDS, pursuant to 47 U.S.C. § 227 (b)(1)(A). 24. This telephone call by Defendants or its agent(s), violated 47 U.S.C. § 227(b) (1). 25. On or about June 12, 2014 at 7:04 pm, Defendant or its agent/s began contacting Plaintiff Ortiz on Plaintiff Ortiz’s cellular telephone number ending in 7846 via an automatic telephone dialing system (“ATDS”) as defined by 47 U.S.C. § 227(a)(1) using an “artificial or prerecorded voice” as prohibited by 47 U.S.C. § 227(b)(1)(A) in order to collect an alleged debt of a third party. 26. This ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. 27. Defendant placed calls to Plaintiff Ortiz using the telephone number (480) 719-2568. 29. This June 30, 2014 call used a pre-recorded voice. 30. At no time did Plaintiff Ortiz provide her cellular phone number to Defendant through any medium. 31. The telephone number Defendant or its agent/s called was assigned to a cellular telephone service for which Plaintiff Ortiz incurs a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 32. These telephone calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A)(i). 33. Plaintiff Ortiz did not provide Defendant prior express consent to receive calls to his cellular telephone utilizing an ATDS, pursuant to 47 U.S.C. § 227 (b)(1) 35. Plaintiff brings this action on behalf of himself and on behalf of all others similarly situated (“the Class”). 36. Plaintiff represents, and is a member of the Class, consisting of all persons within the United States who received any telephone call from Defendant or their agent/s and/or employee/s to said person’s cellular telephone made through the use of any automatic telephone dialing system or with an artificial or prerecorded voice, which call was not made for emergency purposes within the four years prior to the filing of this Complaint. 38. Plaintiff and members of the Class were harmed by the acts of Defendant in at least the following ways: Defendants, either directly or through its agents, illegally contacted Plaintiff and the Class members via their cellular telephones by using an ATDS, thereby causing Plaintiff and the Class members to incur certain cellular telephone charges or reduce cellular telephone time for which Plaintiff and the Class members previously paid, and invading the privacy of said Plaintiff and the Class members. Plaintiff and the Class members were damaged thereby. 39. This suit seeks only damages and injunctive relief for recovery of economic injury on behalf of the Class, and it expressly is not intended to request any recovery for personal injury and claims related thereto. Plaintiff reserves the right to expand the Class definition to seek recovery on behalf of additional persons as warranted as facts are learned in further investigation and discovery. 40. The joinder of the Class members is impractical and the disposition of their claims in the Class action will provide substantial benefits both to the parties and to the court. The Class can be identified through Defendants’ records or Defendants’ agents’ records. 42. As a person that received at least one telephonic communication from Defendant’s ATDS without Plaintiff’s prior express consent, Plaintiff is asserting claims that are typical of the Class. Plaintiff will fairly and adequately represent and protect the interests of the Class in that Plaintiff has no interests antagonistic to any member of the Class. 43. Plaintiff and the members of the Class have all suffered irreparable harm as a result of the Defendants’ unlawful and wrongful conduct. Absent a class action, the Class will continue to face the potential for irreparable harm. In addition, these violations of law will be allowed to proceed without remedy and Defendants will likely continue such illegal conduct. Because of the size of the individual Class member’s claims, few, if any, Class members could afford to seek legal redress for the wrongs complained of herein. 44. Plaintiff has retained counsel experienced in handling class action claims and claims involving violations of the Telephone Consumer Protection Act. 46. Defendant has acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the Class as a whole. 47. Plaintiffs repeat, re-allege, and incorporate by reference, all other paragraphs. 48. The foregoing acts and omissions constitute numerous and multiple violations of the TCPA, including but not limited to each and every one of the above- cited provisions of the TCPA, 47 U.S.C. 227 et. seq. 49. As a result of Defendant's negligent violations of 47 U.S.C. § 227 et seq, Plaintiffs are entitled to an award of $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 50. Plaintiffs and the Class are also entitled to and seek injunctive relief prohibiting such conduct in the future. 51. Plaintiffs repeat, re-allege, and incorporate by reference, all other paragraphs. 52. The foregoing acts and omissions of Defendant constitute numerous and multiple knowing and/or willful violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq. 54. Plaintiffs and the Class are also entitled to and seek injunctive relief prohibiting such conduct in the future. KNOWING AND/OR WILLFUL OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) 47 U.S.C. 227 NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) 47 U.S.C. 227 | win |
14,452 | 33. Defendants are in the business of home elevation, foundation repair, and general construction for commercial and residential projects in Louisiana. Defendants’ services include home elevation, general construction, carpentry, bricklaying, sheet rocking, and installing doors, windows, and flooring. 34. Defendants employed more than 40 workers at the Piety Street project. Defendant Orleans Shoring also employs workers at various job sites all over Southern Louisiana simultaneously. 35. Defendant Santicima paid Plaintiffs by check. 36. Plaintiffs normally worked more than (40) hours a week for Defendants. Defendants often required Plaintiffs to work six days per week. 38. Defendants willfully violated Plaintiff’s rights under the FLSA because Defendants knew or showed reckless disregard for the fact that their compensation practices violated the FLSA. Defendants were and are aware of the custom and practice of overtime pay from their experience and expertise in the industry in which they work. 39. Defendants paid the named Plaintiffs, and other similarly situated employees at an hourly rate for work performed. 40. Defendants treated the named Plaintiffs, and other similarly situated employees as exempt from the FLSA’s overtime requirements. 41. When the named Plaintiffs and other similarly situated employees worked for Defendants, they were not exempt from the FLSA’s overtime requirement. 42. Plaintiffs incorporate by reference each of the preceding allegations as though fully set forth herein. 43. Plaintiffs bring the claims set forth in Count I, alleging violations of the FLSA, as a putative collection action on behalf of themselves and an “FLSA Overtime Class,” consisting of all current and former employees of the Defendants who are or have been employed by Defendants during the three years immediately preceding the filing of this suit as hourly or non- exempt employees and who, during that period, worked in excess of forty hours in any work week and failed to receive premium pay, at the rate of one-and-a-half times their regular rate of pay, for all hours worked in excess of forty in a workweek. 45. As a consequence of Defendants’ FLSA violations, Plaintiffs and other similarly situated employees are entitled to recover their unpaid overtime wages, plus an additional amount in liquidated damages, pursuant to 29 U.S.C. § 216(b). Fair Labor Standards Act – FLSA Overtime Class | win |
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