Celadon Being Held to the Ruling in Favor of Drivers by the Eighth Circuit Court

In recent news, the Eighth Circuit was asked to reconsider their decision favoring a class of workers suing Celadon Trucking Services, but they refused to budge on the layoff notice ruling. In refusing to reconsider their ruling, the Eighth Circuit repeated their prior conclusions that the commercial trucking company should have provided drivers with notice prior to laying them off.

The Eighth Circuit’s brief order stated its intent to stand firm behind the July rejection of Celadon’s argument that it did not have a legal duty to provide a 60 day Worker Adjustment and Retraining Notification Act notice in connection to the termination of over 400 Continental Express Inc. truck drivers. The mass layoff occurred after the company purchased Continental at the end of 2008 for $24.1 million.

The appeals court denied Celadon’s petition that took issue with the panel’s conclusion that the district court found the situation to be more than just a sale of assets. This conclusion effectively transferred the responsibility for providing workers with notice from Continental to Celadon. Celadon’s petition argued that the ruling was in conflict with both the Eighth Circuit and the U.S Supreme Court precedent. They pointed to questions of exceptional importance that they indicated the full appellate court should hear. They also included a challenge to the panel for endorsing a legally flawed basis for determining damages and liability for damages for the employees in connection to the rejection of claims that the lower court’s decision was founded on inadmissible evidence.

The class argued against Celadon’s attempt to have the case reconsidered in circuit court stating that the commercial trucking company had no new arguments to be considered and did not specify which evidence was objectionable. They argued that Celadon’s request for reconsideration was not valid because the district court and Eight Circuit panel did not commit any clear errors.

The suit was filed by drivers in January 2009 seeking damages under the WARN Act. The drivers obtained class certification for 449 employees (including full-time workers of Continental’s operations in Little Rock, Arkansas employed on Dec. 4, 2008, and suffering a employment loss as defined by WARN Act, but not in receipt of the mandatory 60 days notice of a plant closing/mass layoff.

The case was referred to a magistrate judge in order to establish whether the workers had sown that all 449 individuals qualified as class members. According to documents of the court, three individuals were excluded from the class before the workers were awarded $2.1 million in statutory damages.

Additionally, the Eighth Circuit panel defended the district court’s actions in denying Celadon’s motion to decertify the class of workers and in rejecting many of the findings of the magistrate judge. They found that the district court did not abuse its discretion.

If you have questions or concerns regarding class certification, mass layoffs or mandatory notice of plant closure or mass layoffs, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

California Lawsuit: Did Starbucks Add Ice to Defraud Customers?

In a California lawsuit, accusations were flying that Starbucks was defrauding customers. What did they do? Allegedly? Claims were made that they were defrauding customers by adding ice to cold beverages. In recent action, Judge Percy Anderson tossed the proposed class-action lawsuit.

The federal judge who stopped the California Starbucks lawsuit in its tracks stated that any reasonable customer would know that ordering iced coffee or iced tea would include ice. He also stated reasoned that customers would be able to see the ice through the plastic cups that the Starbucks iced beverages are served in. He further reasoned that, in fact, even a child would be able to see it and “get it.”

His line of reasoning for opposing the class action status of the California lawsuit continued as he explained that young children learn that they are able to increase the amount of beverage they receive by ordering it with “no ice.” In the ruling Anderson issued in U.S District Court, Anderson supported his action by explaining that if kids have figured out that having ice in a code beverage decreases the amount of liquid they will receive in the cup, the court can only conclude that a reasonable consumer would not be deceived by the presence of ice.

The California lawsuit against Starbucks Corp. was filed in May by Alexander Forouzesh. He claimed fraud, breach of warranty, false advertising, etc. Forouzesh, a Los Angeles resident, insisted that the popular coffee chain was regularly cheating customers out of iced coffee and tea by filing the cups the beverages are served in with ice – “as much as halfway.” After the ruling, Forouzesh stated that he planned to file an appeal and that he was insulted by the judge’s remarks on the matter.

Starbucks, on the other hand, was pleased with both the judge’s decision and his remarks on the matter.

If you have questions about this or other California lawsuits or obtaining class action status for your California suit, please get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Yahoo Confirms 500 Million Accounts Stolen

In recent news, Yahoo confirmed that 500 million user accounts were stolen in late 2014. This one instance of data loss is said to constitute the largest cyber security breach in history. Yahoo has publicly stated that they believe that someone who was acting on behalf of the government was actually responsible for the data breach. They have gone so far as to describe the individual as being “state-sponsored.”

Quick Facts On the Yahoo Data Breach: Largest Cyber Security Breach in History

Data Involved in the Breach: Information accessed during the data breach include: names, email addresses, phone numbers, birthdates, partial passwords (referring to passwords presented while hashed and with bcrypt), as well as some security Q&As.

Data Believed NOT to be Involved in the Breach: Bank account numbers and credit card data are believed NOT to be included in the stolen information.

Yahoo Recommended User Response: Yahoo encouraged users to alter their passwords and security questions as well as review their accounts for any suspicious activity.

Yahoo advised the public that they would continue to work with law enforcement to address the data breach. Rumors of the large-scale data breach started circulating in August when a hacker (“Peace”) claimed to be selling data pulled from 200 million online Yahoo users. Previously Peace claimed to sell account information stolen from LinkedIn and MySpace. When rumors began to circulate, Yahoo claimed they were aware of the situation and were conducting an investigation. It turns out the situation was even worse than rumors indicated.

The hack is being described by experts as “massive” and is expected to have a ripple effect online for years. In response to this and other, similar, situations, U.S. Senator Richard Blumenthal is calling for tougher legislation to require companies to provide prompt notification to consumers in the event customer data is compromised.

For more information on customer database breaches and appropriate notification of breaches as required by law, please contact the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

Golden State Phone and Wireless Faces Wage Allegations and Class Action

Israel Padron, a San Luis Obispo local, recently filed a class-action wage and hour suit against Golden State Phone and Wireless, his former employer. He alleges that he was not provided with appropriate overtime compensation. The complaint was filed July 20, 2016 on behalf of other employees in similar situations in the U.S. District Court for the Northern District of California. Israel Padron claims that Golden State Phone & Wireless’s practices were in violation of the Fair Labor Standards Act (FLSA).

The plaintiff’s complaint included allegations that he worked over 40 hours per workweek between October 2012 and September 2015 and did not receive overtime pay as deemed appropriate by law. He claims that the company miscalculated the overtime rate of pay as they failed to include the value assigned for bonuses and/or commissions applicable to his position with the company.

Employers that either require or allow employees to work overtime are required to provide pay as dictated by the Fair Labor Standards Act (FLSA). Employees covered by the FLSA must receive overtime pay anytime they work in excess of 40 hours in one workweek. The overtime pay is required to be at least one and one-half times the employee’s regular rate of pay. The FLSA (with some specific exceptions) requires employers to include bonus payments as a part of the employee’s regular rate of pay when they are calculating their overtime pay in accordance with minimum rates of overtime pay set down by FLSA.

Padron requests that he receive a trial by jury in order to resolve the lawsuit and seeks compensatory, consequential, general and special damages, liquidated damages, restitution, interest on due and/or unpaid wages, legal fees, and other relief that the court may deem justified.

If you have questions about overtime pay or if you have been denied overtime pay by your employer, please contact one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Minor League Strikes Out on Wage Claims: Judge Decertifies Collective and Class Actions

Former minor league players who filed a lawsuit claiming Major League Baseball engaged in minimum wage and overtime violations under the Fair Labor Standards Act may feel as if they struck out at the end of a very big game as a federal Magistrate judge in San Francisco sided with the MLB recently when players attempted to have their lawsuits certified as a collective action and class action, respectively.

Previously the judge conditionally certified the proposed collection action under the FLSA (as of October 2015). Yet in the latest ruling, the judge granted the MLB’s motion to decertify. The judge also denied the players (Plaintiffs) request to certify their state law wage and hour claims as a class action. Most see the decertification and denial as a major win for the MLB.

What Are Collective Actions and Class Actions? They both involve groups of plaintiffs joining together in a lawsuit, but they aren’t exactly the same. The most important difference between the two is that plaintiffs who want to be involved in a collective action may simply opt in to the group. Comparatively, those who would not like to be included in a class action must “opt out” or find themselves bound by the resulting judgment on the case.

Plaintiffs in this case allege that the MLB and its clubs were in violation of the FLSA and other, similar, state wage and hour laws. They claim they were paid a total of $3,000-$7,000 over the course of a season lasting five months even though they were working anywhere from 50-70 hours each week throughout the season. The former players also claim that they were paid less than minimum wage, they were denied overtime pay, and they were required to “train” during the off season without compensation.

The July 21, 2016 Order from the Magistrate Judge denied the plaintiffs’ motion that state wage and hour claims be certified as a class action. He stated that the plaintiffs’ failed to meet specified legal requirements. He stated that there would be no simple method of identifying who would be a member of the class in various states. He stated that the plaintiffs failed to demonstrate that the “typicality” requirement was met as the court was unable to determine if representatives for different states presented claims collectively that were typical of the class as a whole. He also stated that the common questions raised by law were not predominant in the face of individual concerns. Conclusively, even though the Judge found the “numerosity” requirement to be met, and the “commonality” requirement to be met, and that the class representatives could protect the interests of the class, he refused to certify.

If you have questions or concerns regarding class certification or if you need to discuss your eligibility to act as representative in a proposed class action, please get in touch with an experienced employment law attorney at Blumenthal, Nordrehaug & Bhowmik.

Blumenthal, Nordrehaug & Bhowmik Investigates Ralph’s/Kroger and Stanford University Data Breach

Blumenthal, Nordrehaug & Bhowmik are currently investigating recent reports of data breaches involving Ralph’s/Kroger and Stanford University. The breach occurred at the big-three credit bureau Equifax, Inc. (NYSE:EFX) and affects both current and former employees of grocery retailer The Kroger Co. (NYSE:KR) and Stanford University.

Kroger Co. is a grocery retailer that does business through a chain of popular grocery stores including QFC, Fred Meyer and Ralphs. Kroger Co. notified employees about the data breach in a letter sent out May 5, 2016 that advised them of the situation. It noted that there was an apparent data breach perpetrated by unknown individuals. These unknown individuals apparently accessed the company’s [Equifax’s] W-2 Express website through the use of default log-in information that was based on a combination of Social Security numbers (SSN) and birth dates.

The W-2Express service is a service provided by Equifax to larger employers like Kroger Co. in order to provide electronic access to employee W-2 forms through the Equifax website. The site database currently has more than 431,000 current and former Kroger employees registered. Data accessed on the site included W2 forms (listing SSNs, addressed, and salaries).

As pointed out by Dailey, the spokesman for Kroger, the popular grocery store chain conglomerate is not the only company to rely on Equifax for electronic access to employee W2 information; nor are they the only company to rely on a combination of SSN and birth date to access the data. Dailey even surmised that it could be the standard setup Equifax relies on for the system.

One month previous to the Kroger/Equifax data breach, Stanford University notified 3,500 of their current and former employees of a similar problem when their data was accessed for purposes of identity theft through the W-2Express database run by Equifax. Northwestern University had a similar issue with 300 employees’ salary and tax data files being accessed through Equifax’s W-2Express portal as well. W-2 data is particularly valuable to thieves interested in identity theft because it contains a large portion of the information they need to request fraudulent tax refunds.

If you have concerns regarding a potential breach of your personal information and you need to discuss your rights with an experienced attorney, please contact us at Blumenthal, Nordrehaug & Bhowmik. We are a leader in our field, experienced and knowledgeable in the representation of employees and consumers who have become victims of data breaches and other labor code violations. Visit our site or contact us directly for more information about how we obtained over $1.3 billion in awards through the course of our long and successful track record in the industry.

Dick’s Sporting Goods Facing Class Action for Texting Program

A proposed class action against Dick’s Sporting Goods, Inc. has been filed in California federal court. Accusations that the sporting goods retailer violated the Telephone Consumer Protection Act (TCPA) allege that the company sent text messages to consumers after they had opted out of the subscription based alert advertising program. Plaintiff, Phillip Ngiehm, states that he originally agreed to participate in the marketing program, but that he opted out in December 2015 by texting the word “stop” as instructed. According to the terms of the program, this would result in a halt of messages from the program to the subscriber – effectively removing him from the subscriber list.

Dick’s acknowledged that they received the termination of his consent to receive automated text ads, but the advertising messages continued. In fact, Ngiehm received an immediate response when he texted “stop” in order to halt his involvement in the program:

“You have been unsubscribed and will no longer receive messages from us. Reply ‘help’ for help.”

After receiving this acknowledgement, he received eight text messages. This led to the filing of the lawsuit that Dick’s Sporting Goods is currently facing. Plaintiff’s attorney states that all the SMS texts that were received by the plaintiff after he opted out as instructed, were sent without his consent and were thus unauthorized. This leaves the messages in violation of the TCPA. He seeks certification of a national class of people who were in receipt of messages from Dick’s Sporting Goods that were unauthorized. He estimates that the number of eligible class members could be in the thousands. The suit will seek statutory and treble damages as well as an injunction to prohibit Dick’s Sporting Goods from distributing unwanted advertisements by text. The suit will also seek attorneys’ fees and associated costs.

If you have questions regarding class action status and what it means to be eligible for class action membership status, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. We can assist you in determining how California labor law applies to your situation.