/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/200924.mbx C L A S S A C T I O N R E P O R T E R Thursday, September 24, 2020, Vol. 22, No. 192 Headlines 10UP INC: Daniele Files Class Suit in California Superior Court 3M: Faces Securities Class Action Following Stock Price Drop 70 SHERMAN DRY: Polanco Sues Over Unpaid Minimum & Overtime Wages ACTION COLLECTION: Derloshon Files FDCPA Suit in S.D. Indiana AMANDA LINDROTH: Holland Seeks Overtime Pay for Warehouse Workers ANHEUSER-BUSCH LLC: Cooper Sues Over False Marketing of Drinks APPLE INC: Class Action Suit Alleges MacBook Fraud ARS NATIONAL: Lebovits Sues in S.D. New York Over FDCPA Violation ASSURED IMAGING: Travis Files Class Suit in District of Arizona AUSTIN, TX: Sexual Assault Survivors Appeal Class Suit Dismissal BABYVISION INC: Web Site Inaccessible to Blind, Paguada Claims BARBERTON TREE: Fails to Properly Pay Overtime Wages, Hall Claims BITFINEX: Seeks Dismissal of Bitcoin Market Manipulation Lawsuit BMW: Oil Consumption Class Action Dismissal Upheld BNSF RAILWAY: Court Narrows Flooding-Linked Claims in Macias Suit BOB PALERMO INC: Faces Coddington Suit in New York Supreme Court BRISTOL-MYERS: Skadden Arps Attys. Discuss Aftermath of S.C. Ruling BROWNELL INC: Faces Graciano ADA Class Suit in S.D. New York BSA LIMITED: To Vigorously Defend Misclassification Class Action CINCINNATI INSURANCE: Distillery, Restos Slam Denied Coverage CLEVELANDER OCEAN: Dalton Sues in Florida Over Violation of FLSA COMCAST CABLE: Misclassifies Human Resource Workers, Bertot Says COMMONWEALTH BANK: Piper Alderman Files New Class Action COMMONWEALTH FINANCIAL: Faces Suit Over Insurance Policy Advice CONVERSE INC: Appeals Ruling in Madeira Labor Suit to 9th Circuit CVS PHARMACY: Seeking Justice for Pain Files Opioid Class Action DELOITTE CONSULTING: Karns Sues Over Data Breach DNATA US: Moore Sues Over Failure to Pay Minimum & Overtime Wages DUNHAM'S ATHLEISURE: Graciano Files ADA Suit in S.D. New York EDWARD MALINA: Sarkisyan Sues Over Unpaid Minimum and OT Wages ERIE INSURANCE: Balogh Enterprises Seeks Payment for COVID Losses ETHAN ALLEN: Cota Sues in S.D. California Alleging ADA Violation EVERBRAND LLC: Olsen Sues in E.D. New York Over Violation of ADA FINANCIAL BUSINESS: Faces Garrett FDCPA Class Suit in Colorado FIRST FAMILY INSURANCE: Flood Seeks Unpaid Overtime Pay FIRST PENN-PACIFIC: Motion to Compel Filed in Iwanski Class Suit FIRSTENERGY CORP: Bragar Eagel Reminds of Sept. 28 Deadline FRESH MARKET: Fails to Put Nutrition Labels on Foods, Myhand Says FTG AEROSPACE: Blumenthal Nordrehaug Files Securities Class Action FULL SOURCE: Graciano Sues in S.D. New York Over Violation of ADA GALLS LLC: Graciano Sues in S.D. New York Alleging ADA Violation GENERAL MOTORS: Faces Class Action Over Chevrolet Camaro Starter GLIK COMPANY: Faces Jaquez Suit Over Blind-Inaccessible Web Site GOOGLE INC: Faces Class Action Over Crypto Ad Ban GS VICTOR: Web Site Not Accessible to Blind Users, Katt Claims GUAM: DOJ Wants H-2B Visa Class Action Dismissed HDFC BANK: Pomerantz Law Files Securities Class Action HEARST MAGAZINE: S.D. California Dismisses Arnold Consumer Suit HONEYWELL INT'L: Schall Law Alerts of Class Action Filing HOTELS.COM LP: San Antonio Files Cert. Petition to Supreme Court IMPERIAL INDUSTRIAL: Monegro Claims Website Not Blind-Friendly INTACT INSURANCE: Hair Salon Sues Over Denied Insurance Coverage IRA L. GROSSMAN: Underpays Veterinary Technicians, Cordy Claims ITO EN NORTH AMERICA: Faces Nelson Class Suit in S.D. New York JOHN C. HEATH: Boyd Sues in D. Utah Alleging Violation of TCPA KENZO PARIS: Cota Sues in S.D. California Alleging ADA Violation KITCHEN KAPERS: Fuchs Sues Over Blind-inaccessible Website KM INDUSTRIAL: Ninth Circuit Appeal Filed in Harris Labor Suit KRAFT HEINZ: Faces Suit Over Maxwell House Coffee's Deceptive Ad KRAPILS: Faces Hankes FLSA Suit Over Improper Overtime Wages LAB TEC COSMETICS: Diaz Sues Over Unpaid Overtime Pay Under FLSA LLOYD'S LONDON: Tripwire Files Class Suit in M.D. Pennsylvania LVNV FUNDING: Court Narrows Claims in DeAngelo FDCPA Class Suit LVNV FUNDING: Shaughnessy Consumer Suit Moved to S.D. California MAGICJACK VOCALTEC: 11th Cir. Affirms Dismissal of Freedman Suit MEI PHARMA: Bragar Eagel Reminds of Oct. 9 Motion Deadline MERCER UNIVERSITY: Faces Williams Class Suit in M.D. Georgia MEYER CORP: Web Site Inaccessible to Blind Users, Jaquez Alleges MOUNTAIN STATE: Davis Sues Over Failure to Pay Overtime Wages MUSICIAN'S FRIEND: Graciano Files ADA Class Suit in S.D. New York NATIONAL OCEANIC: Charter Boat Captains Sue Over 'Intrusive' Rule NELNET INC: Isner-Monticello Files FDCPA Suit in M.D. Florida NEW YORK, NY: Lady Gaga's Father Joins Restaurant Owners' Suit NEW YORK: Staten Island Boutique Fitness Studio Owners to File Suit ON DECK CAPITAL: Morrison Balks at Proposed $90MM Sale to Enova OTTAWA: Agrees to Certify 2 Class Action Lawsuits PAUL HESSE: Former Client Mulls Immigration Class Action PHOENIX FINANCIAL: Fowler Sues in Florida Over Violation of FDCPA POW! ENTERTAINMENT: Lee's Cybersquatting Suit Tossed; Fined $1MM PRIME HEALTHCARE: Breaches Plan Fiduciary Duties, Campbell Claims RENTGROW INC: McIntyre Suit Moved From Massachusetts to Colorado ROZLIN FINANCIAL: Perry Sues in D. Nevada Over Violation of FDCPA SAN DIEGO UNIFIED: $6.6MM Settlement Reached in Rental Car Fee Suit SCIPLAY CORP: Rosen Law Investigates Securities Claims SPRAGUE OPERATING: Agudelo Files Suit in District of Rhode Island ST. BASIL'S: Facing Class Action Over COVID Outbreak STAR SNACKS: Andrews Files Suit in Northern District of Alabama STONELEIGH RECOVERY: Heyward Files FDCPA Suit in South Carolina TOYOTA MOTOR: Ruiz Files Product Liability Suit in D. New Jersey TRUSTCO BANK: Livingston Sues Over Collection of Overdraft Fees UNITED STATES: Bidon Sues in Federal Claims Court Over OT Claims UNITED STATES: Suit v. DETR Still Moving, But Judge Gives Warning URBAN OUTFITTERS: Andrade Labor Suit Seeks to Recoup Proper Wages US BANK: Greenberg Traurig Attorneys Discuss Court Ruling in Thole VICTORIA: Anti-mask Lawyers Seeking $200,000 for Class Suit WELLS FARGO: Settles Lawsuit Over Lending Policies for Immigrants YAYYO INC: Rung Suit Removed From Super. Court to C.D. California [*] Greenberg Traurig Discusses Class Action Updates [*] Jackson Lewis Attorneys Discuss COVID-19 Litigation Risks [*] Parents File Nation-Wide Class Action Due to School Closures [*] Pierce Atwood Attorneys Discuss PPP MDL Court Rulings ********* 10UP INC: Daniele Files Class Suit in California Superior Court --------------------------------------------------------------- A class action lawsuit has been filed against 10UP, INC., et al. The case is styled as Richard Daniele, Richard Goss, Steve Landi, individually and on behalf of a class similarly situated v. 10UP, INC., A CALIFORNIA CORPORATION; DOES 1 TO 50 INCLUSIVE; Case No. CGC20586506 (Cal. Super., San Francisco Cty., Sept. 11, 2020). The case type is stated as "OTHER NON EXEMPT COMPLAINTS." 10up is a leading web development and strategy agency that emphasizes great user experiences and simple content management.[BN] The Plaintiff is represented by Gretchen Nelson, Esq., and Matthew Righetti, Esq. 3M: Faces Securities Class Action Following Stock Price Drop ------------------------------------------------------------ Kalyani, writing for Scientect, reports that 3M, one of the world's leading industrial - chemical conglomerate that deals in electroactive polymers, with five lines of business is facing lawsuit. The class action is on behalf of all individuals and entities other than Defendants who bought or acquired publicly traded 3M securities from February 9, 2017 to May 28, 2019. Earlier, business analyst of a leading financial services company declared the 3M business model to be defeated. Due to this, 3M stock price dropped to 18% below recent level only to be rated as underweight. Further, according to the analyst, 3M's woes are beyond simple cyclical fluctuations related to slowing automotive and electronic end users. Instead the problems are structural and puts forth the question if billions spent by the company on recent restructuring will produce material benefits in the forthcoming years. However, realignment announced by the company a couple of months ago will boost impression among consumers for its multiple line of businesses. The new structure will comprise four business segments: Transportation & Electronics, Consumer, Healthcare, and Safety & Industrial. Top companies operating in the global electroactive polymers market include 3M, Konarka Technologies Inc., Panasonic Corporation, Artificial Muscle Inc., and Earnex Corporation. [GN] 70 SHERMAN DRY: Polanco Sues Over Unpaid Minimum & Overtime Wages ----------------------------------------------------------------- WAN POLANCO, on behalf himself and others similarly situated v. 70 SHERMAN DRY CLEANERS INC. d/b/a FIVE STAR CLEANERS, and CHOON S. KIM, Case No. 1:20-cv-07453 (S.D.N.Y., Sept. 11, 2020), arises from the Defendants' violation of the Fair Labor Standards Act and the New York Labor Law. The complaint alleges that the Defendants operate their business with a policy of not paying the Plaintiff his lawfully earned minimum wages, overtime compensation, and "spread of hours" premium in direct contravention of the federal and state laws. The Plaintiff was employed by the Defendants as non-exempt garment presser, handyman, porter, and delivery worker for the Defendants' Dry Cleaner Establishment, where his job responsibilities included ironing garments, cleaning the premises, performing any necessary maintenance or upkeep to the store, and delivering garments to customers. 70 Sherman Dry Cleaners Inc. owns and operates a dry cleaner establishment, doing business as "Five Star Cleaners," located in New York City.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 10 Grand Central 155 East 44th Street, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 ACTION COLLECTION: Derloshon Files FDCPA Suit in S.D. Indiana ------------------------------------------------------------- A class action lawsuit has been filed against ACTION COLLECTION SERVICE, INC. The case is styled as Ashley Derloshon, on behalf of themselves and all others similarly situated v. ACTION COLLECTION SERVICE, INC., Case No. 1:20-cv-02381-JPH-DLP (S.D. Ind., Sept. 14, 2020). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Action Collection Service, Inc. (ACS) is an Idaho-based, multi-state collections agency specializing in collection, recovery, and monitoring of delinquent balances.[BN] The Plaintiff is represented by: Richard John Shea, Jr., Esq. SAWIN & SHEA, LLC 6100 North Keystone Ave., Suite 620 Indianapolis, IN 46220 Phone: (317) 255-2600 Fax: (317) 255-2905 Email: rshea@sawinlaw.com AMANDA LINDROTH: Holland Seeks Overtime Pay for Warehouse Workers ----------------------------------------------------------------- CHARLES HOLLAND and NATALIE RESTREPO v. AMANDA LINDROTH CORP., a Florida corporation, Case No. 9:20-cv-81601-XXXX (S.D. Fla., Sept. 10, 2020), is brought on behalf of the Plaintiffs and other similarly situated current and former employees of the Defendant over alleged violation of the Fair Labor Standards Act. The Plaintiffs were hired by the Defendant to work as warehouse workers. According to the complaint, the Plaintiffs worked in excess of 40 hours per week without being compensated at the statutory rate of time and one-half as mandated by the FLSA. Instead, they were only paid by the Defendant at their regular hourly rate for all the hours they worked in excess of 40 per week. Amanda Lindroth Corp. manufactures interior design products.[BN] The Plaintiffs are represented by: Arthur Schofield, Esq. ARTHUR T. SCHOFIELD, P.A. Via Jardin Building 330 Clematis St., Suite 207 West Palm Beach, FL 33401 Tel: (561) 655-4211 Fax: (561) 655-5447 Email: aschofield@flalabor.com ANHEUSER-BUSCH LLC: Cooper Sues Over False Marketing of Drinks -------------------------------------------------------------- TANYA COOPER and JOSEPH ROSE, on behalf of themselves and all others similarly situated v. ANHEUSER-BUSCH, LLC, Case No. 7:20-cv-07451 (S.D.N.Y., Sept. 11, 2020), is a consumer protection class action arising from the Defendant's false and misleading advertising of its Ritas Margarita, Mojito, Rose, and Sangria beverages sold in enclosed packages. The complaint alleges that the Plaintiffs and other consumers of "SPARKLING MARGARITA" have been misled by the Defendant's packaging into believing the product contains tequila. Similarly, consumers of "ROSE" or "SANGRIA" have been deceived by the Defendant's packaging into believing the products contain wine, while those who have bought the Defendant's "MOJITO" and "SPARKLING CLASSIC COCKTAILS" have also come to mistakenly believe the beverages contain rum based on their label representations. However, unbeknownst to the Plaintiffs and other consumers, the products do not contain tequila, wine, or rum, respectively. As a result of the Defendant's false and deceptive packaging, the Plaintiffs say they and other members of the proposed Class have purchased the products they otherwise would not have purchased or have paid more for the products than they otherwise would have paid. Anheuser-Busch, LLC, is an American brewing company that owns brands, such as Budweiser, Stella Artois, and Michelob Ultra.[BN] The Plaintiffs are represented by: Innessa M. Huot, Esq. FARUQI & FARUQI LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: ihuot@faruqilaw.com - and - Timothy J. Peter, Esq. FARUQI & FARUQI LLP 1617 John F. Kennedy Boulevard, Suite 1550 Philadelphia, PA 19103 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 E-mail: tpeter@faruqilaw.com APPLE INC: Class Action Suit Alleges MacBook Fraud -------------------------------------------------- lawstreetmedia.com reports that Plaintiff Justin Ocampo filed a putative class action suit in the Northern District of California, alleging that Apple Inc. misled consumers about the quality of its MacBook Pro Laptops starting with its 2016 model. The 10-count complaint asserts breach of warranty, false advertising, and consumer fraud claims under both state and federal law against California-based Apple, "seeking to redress the pervasive pattern of deceptive, false, misleading, and otherwise improper advertising, sales, and marketing practices" leveled at consumers. The complaint targets the MacBook Pro display screen, which features "a light-up touch-based panel that replaces certain function keys on the keyboard." These computers, first introduced in late 2016, did not live up to expectations due to display backlighting issues, the complaint argues. This is because the machines' flex cables, which connect the laptops' display screen to the base of the computer, are defective, the filing explained. In turn, MacBook Pro Laptops either malfunction when the screen is angled wider than a certain degree, or because the display screen is inoperable altogether. Despite Apple's 2019 acknowledgment of the defect and offer to repair one model's display backlight issues, consumer grievances were largely unresolved, the complaint contends. The filing points to representations made by Apple, like "'[t]he new display in the MacBook Pro is the best ever in a Mac notebook,' and that it 'ensures truer-to-life pictures with realistically vivid details.'" These statements, the plaintiff argues, amount to misrepresentations that reasonable consumers relied on while making Apple MacBook purchases. Had Apple notified consumers of these flaws and had they known of Apple's allegedly false and misleading advertising, "consumers would not otherwise [have] purchased a purportedly high-end laptop costing approximately $1,499.00 to $2,399.00," the complaint contends. In turn, the plaintiff seeks to certify a nationwide class of individual consumers who purchased MacBook Pro Laptops with a model year of 2016 or later within the last four years, and a California subclass consisting of California residents who did the same. The plaintiff also seeks monetary damages and injunctive relief preventing Apple from further "defrauding the public," and ordering it to provide a comprehensive repair program for models that experience backlight display issues. The plaintiff is represented by Marlin & Saltzman, LLP.[GN] ARS NATIONAL: Lebovits Sues in S.D. New York Over FDCPA Violation ----------------------------------------------------------------- A class action lawsuit has been filed against ARS National Services, Inc., et al. The case is styled as Chaim Lebovits, individually and on behalf of all others similarly situated v. ARS National Services, Inc. and John Does 1-25, Case No. 7:20-cv-07444 (S.D.N.Y., Sept. 11, 2020). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Ars National Services, Inc., provides accounts receivable management services. The Company provides collection and adjustment services on claims and other insurance related issues.[BN] The Plaintiff is represented by: Raphael Deutsch, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (347) 668-9326 Email: rdeutsch@steinsakslegal.com ASSURED IMAGING: Travis Files Class Suit in District of Arizona --------------------------------------------------------------- A class action lawsuit has been filed against Assured Imaging LLC. The case is styled as Angela T. Travis, Kerri G. Peters, Geraldine Pineda, individually and on behalf of others similarly situated v. Assured Imaging LLC, an Arizona limited liability company, Case No. 4:20-cv-00390-SHR (D. Ariz., Sept. 11, 2020). The nature of suit is stated as Other Fraud. Assured Imaging provides a variety of services in addition to the sale of mammography equipment, custom mobile coaches, portable solutions and in-house solutions for providers.[BN] The Plaintiffs are represented by: Hart Lawrence Robinovitch ZIMMERMAN REED PLLP 14646 N Kierland Blvd., Ste. 145 Scottsdale, AZ 85254-2762 Phone: (480) 348-6400 Fax: (480) 348-6415 Email: AZDocketing@zimmreed.com AUSTIN, TX: Sexual Assault Survivors Appeal Class Suit Dismissal ---------------------------------------------------------------- Nadia Hamdan, writing for KUT90.5, reports that attorneys representing eight sexual assault survivors are appealing a federal court's decision to dismiss a class-action lawsuit alleging Austin and Travis County officials mishandled the survivors' cases. Federal Judge Lee Yeakel of the U.S. District Court for the Western District threw out the case in February -- nearly two years after the lawsuit was first filed in June 2018. Plaintiffs had argued the city and county defendants -- including Austin Police Chief Brian Manley and outgoing Travis County District Attorney Margaret Moore -- mishandled sexual assault cases because of gender discrimination. But Yeakel ruled there was not enough evidence to prove there was a conspiracy. Attorneys for the survivors argue the judge never gave their clients an opportunity to address what he ruled was wrong with the complaint. "I think the [plaintiffs] expected to have another opportunity, based on how federal courts work generally," said Jennifer Ecklund, a lawyer at Thompson Coburn LLP, the law firm representing the plaintiffs. "The City will respond to the recently filed brief next month," a city spokesperson said in a statement. "In the meantime, the City continues to move forward with its commitment to improve the criminal justice process for cases involving allegations of sexual assault." The Travis County District Attorney's Office said it could not comment on pending litigation. Typically in a motion to dismiss, courts will allow plaintiffs to file a new complaint to address deficiencies laid out in the original case. Instead, Ecklund says, the judge declined to hear the majority of the claims laid out in the lawsuit, citing an abstention doctrine. This is when a court refuses to hear a case because the court believes it could be in conflict with another court. Yeakel argued federal involvement could hinder the state's interest, pointing to new Texas laws and municipal initiatives around the crime of sexual assault. State lawmakers added more than $75 million to their budget in 2019 toward these initiatives, including nearly $60 million to build a new crime lab to address the backlog in testing rape evidence kits. The Austin City Council is also moving forward with an independent review of how Austin police investigate hundreds of sexual assault cases. "The passage of the new laws indicates a strong statewide interest in changing the current manner in which municipalities, law enforcement, and prosecutors address sexual assaults in Texas," Yeakel said in his ruling. Ecklund has asked the Fifth Circuit Court of Appeals to reverse the ruling. She argues the state's initiatives do not interfere with her clients' fight for their constitutional rights. "In any number of other kinds of cases, a state policy interest may be involved, while at the same time constitutional rights are still heard by the courts," she said. "Whether it's in the abortion sphere or the school desegregation sphere, it's frequent that these interests come into play with one another." Ecklund and her team don't believe moving forward with the federal lawsuit would hinder any state initiatives. "We're arguing that the system needs to account for any discrimination that may be inherent in their processes, and, presumably, the state interest is in protecting victims and ensuring law enforcement does result in justice," she said. "From where we sit, those two things are in harmony -- not in conflict." [GN] BABYVISION INC: Web Site Inaccessible to Blind, Paguada Claims -------------------------------------------------------------- JOSUE PAGUADA, on behalf of himself and all others similarly situated v. BABYVISION, INC., Case No. 1:20-cv-07401-JPO (S.D.N.Y., Sept. 10, 2020), alleges that the Defendant's Web site is not equally accessible to blind and visually-impaired consumers, in violation of the Americans with Disabilities Act. The Plaintiff is a blind and a visually-impaired handicapped, who cannot use a computer without the assistance of screen-reading software, and a person and a member of a protected class of individuals under the ADA. The Plaintiff alleges that the Defendant's Web site, http://www.babymallonline.com/,is not equally accessible to blind and visually-impaired consumers like him due to the website's multiple barriers, which he experienced when he visited the website in September 2020 to browse and potentially make a purchase. The Defendant's website allegedly lack of a variety of features and accommodations which effectively barred the Plaintiff from being able to enjoy the privileges and benefits of the Defendant's public accommodation. Babyvision, Inc. is a baby products company that owns and operates the Web site.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. MARS KHAIMOV LAW, PLLC 10826 64th Avenue, Second Floor Forest Hills, NY 11375 Tel: (929) 324-0717 Email: marskhaimovlaw@gmail.com BARBERTON TREE: Fails to Properly Pay Overtime Wages, Hall Claims ----------------------------------------------------------------- JASON HALL, on behalf of himself and all other similarly situated persons v. BARBERTON TREE SERVICE, INC., and KEITH N. LUCK, Case No. 5:20-cv-02036-SL (N.D. Ohio, Sept. 10, 2020), alleges violations of the Fair Labor Standards Act, the Ohio Prompt Pay Act, the Ohio Minimum Fair Wage Standards Act, and the Ohio Constitution. According to the complaint, the Plaintiff and other similarly situated employees regularly worked more than 40 hours in a workweek, including pre-shift work and Saturdays. However, the Defendants failed to compensate them for pre-shift work and failed to count Saturday work towards weekly hours, thereby, denying them of lawfully earned overtime compensation at a rate of at least one and one-half times their regular rates for hours worked in excess of 40 in a workweek. The Plaintiff was employed by the Defendants as an hourly, non-exempt employee from July 2019 to July 27, 2020. Barberton Tree Service, Inc., provides tree trimming and removal services. Keith N. Luck is the founder, owner, president, and operator of the Defendant Barberton Tree.[BN] The Plaintiff is represented by: Robi J. Baishnab, Esq. NILGES DRAHER LLC 34 N. High St., Ste. 502 Columbus, OH 43215 Tel: (614) 824-5770 Fax: (330) 754-1430 Email: rbaishnab@ohlaborlaw.com - and – Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage St., N.W., Suite D Massillon, OH 44646 Tel: (330) 470-4428 Fax: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com BITFINEX: Seeks Dismissal of Bitcoin Market Manipulation Lawsuit ---------------------------------------------------------------- Himadri Saha, writing for Crypto Potato, reports that stablecoin printing firm Tether and cryptocurrency exchange Bitfinex have rejected the Bitcoin market manipulation lawsuit against them as baseless. In a motion filed on Sept. 3, they have called for it's outright dismissal. Bitfinex and sister firm Tether moved to dismiss a Bitcoin manipulation lawsuit filed against them in October last year. The crypto companies said that the allegations are baseless. Bitfinex and Tether Call For Dismissal of 'Preposterous' Lawsuit In October 2019, a group of bitcoin and cryptocurrency traders David Leibowitz, Benjamin Leibowitz, Jason Leibowitz, Aaron Leibowitz, and Pinchas Goldshtein filed a class-action lawsuit against Bitfinex and Tether claiming that the crypto exchange and the USDT printing firm manipulated markets resulting in damages to the tune of $1.4 trillion. On Sept. 3, Tether and Bitfinex parent firm iFinex filed a motion for dismissal of the lawsuit. Earlier in June this year, Bitfinex General Counsel Stuart Hoegner, had labeled the lawsuit as an "unproven conspiracy theory" in a company announcement. But the two cryptocurrency companies decided to strengthen their stance in a supporting memorandum. Extracts from the statement read: Plaintiffs attempt to patch this gaping hole in the CAC with unsupported conclusions and rank speculation, rather than allegations of fact. The Racketeer Influenced and Corrupt Organizations Act ("RICO") claims fail because Plaintiffs do not plead facts demonstrating a RICO conspiracy, or that they suffered an injury proximately caused by such a conspiracy. All of the claims should be dismissed. Accounts Used For Crypto Market Manipulation Not Owned by Bitfinex The plaintiffs claimed that from 2015 to 2018, a Bitfinex 'account' owner wired around $3 billion USDT to 'accounts'. These accounts exist on Bittrex and Poloniex (also the defendants in the case). As per the allegation, USDT transfers stopped temporarily during a ten-day period in January 2018. Bitfinex slammed these accusations in the memorandum. It stated that the plaintiff's case entirely depends on the 'assumption' that these 'accounts' belong to the exchange. In its defense, Bitfinex added: Plaintiffs do not allege any fact -- i.e., no document, no witness, no email, no other communication -- suggesting that the Accounts are owned or controlled by Bitfinex. Instead, Plaintiffs ask the Court to infer that the accounts are owned or controlled by Bitfinex based on innocuous facts that do not demonstrate such ownership or control. The iFinex owned cryptocurrency exchange went on to say that it has 'thousands of customers all over the world'. Therefore, transfers from Bitfinex to the mentioned 'accounts' don't imply anything about the ownership of these accounts. Even if the transfers are as large as $3 billion, it doesn't mean that a single person or entity owns the accounts. Lawsuit Fails To Prove That The Plaintiffs 'Actually' Suffered Damages Bitfinex and Tether have negated the possibility of the complainants incurring serious losses. The crypto companies said that it is 'rare' that the plaintiff 'traded directly with a defendant'. According to the statement: she will have to plead enough facts to make plausible the inference that the prices of her trades with a third party have been substantially influenced by a defendant's trades with a third (or fourth or fifth . . .) The accuser as per Bitfinex and Tether has not brought to light even a single transaction that can prove that its financial impact on the complainant was harmful. The allegations don't add up on any grounds, and hence, should be outrightly dismissed, Bitfinex said. [GN] BMW: Oil Consumption Class Action Dismissal Upheld -------------------------------------------------- Car Complaints reports that a BMW oil consumption class action lawsuit may finally be over after a California 550i owner filed a suit which alleges he must constantly add oil to keep the vehicle running. California plaintiff Robert Smothers says he noticed excessive oil consumption problems in 2012, but multiple dealer visits allegedly did nothing to help his 2012 BMW 550i. According to the oil consumption class action, the plaintiff paid about $9,000 for repairs and eventually asked BMW to repurchase the vehicle. The automaker denied that request and the plaintiff responded by filing the lawsuit. In a motion to dismiss the class action, BMW argued the plaintiff failed to file the lawsuit within the statutes of limitations which meant the class action should immediately be dismissed. The district court judge agreed and granted BMW's motion to dismiss. However, the plaintiff appealed to the U.S. Court of Appeals for the Ninth Circuit. Smothers testified he knew of the alleged oil consumption problem as early as May 2012 and argued BMW technicians had not fixed the problem after multiple visits to the BMW dealership by December 2013. The appeals court ruled that even if Smothers did not know the precise nature of the problem, he could have explicitly talked to technicians about the oil consumption which would have "shed light on the inquiry." Based on the statutes of limitations, Smothers' claims were untimely as of December 2017, but he filed his lawsuit in May 2018. The BMW oil consumption class action lawsuit was filed in the U.S. District Court for the Southern District of California, and appealed to the U.S. Court of Appeals for the Ninth Circuit: Smothers, et al., v. BMW of North America, LLC. [GN] BNSF RAILWAY: Court Narrows Flooding-Linked Claims in Macias Suit ----------------------------------------------------------------- The U.S. District Court for the District of Kansas issued a Memorandum and Order granting in part and denying in Defendants' Motions to Dismiss in the case captioned Leticia Macias, Juan Garcia, Elizabeth Magana Zamora, San Juanita Schneider, Ashley Negrete, N.N., a minor by and through her next friend Ashley Negrete, Timothy Curry, and Juan Carlos Vasquez, on behalf of themselves and all others similarly situated v. BNSF Railway Company; Miles Leasing, LLC; Unified Government of Wyandotte County and Kansas City, Kansas; Terminal Consolidation Co.; Nickell Properties, LLC; Amino Bros. Co., LLC; and Jane/John Doe Construction Companies, Case No. 19-cv-2305-JWL (D. Kan.). Defendant Terminal Consolidation Company's motion to dismiss is granted in its entirety and this defendant is dismissed from this action; Defendant Nickell Properties, LLC's motion to dismiss is granted in its entirety and this defendant is dismissed from this action; Defendant Unified Government's motion to dismiss is granted in part and denied in part; and Defendant BNSF's motion to dismiss is granted in part and denied in part. The Court grants in part and denies in part the motion to dismiss filed by BNSF--the Plaintiffs' claims for intentional trespass, public nuisance, intentional private nuisance and inverse condemnation are dismissed against BNSF, but the Plaintiffs' claims for negligent trespass, private nuisance based on negligence, and negligence survive the motion to dismiss. The Court grants in part and denies in part the motion to dismiss filed by the Unified Government--the Plaintiffs' claims for intentional trespass, public nuisance, and intentional private nuisance are dismissed against the Unified Government, but the Plaintiffs' claims for negligent trespass, private nuisance based on negligence, negligence and inverse condemnation survive the motion to dismiss. The Plaintiffs' motion for leave to file to file an amended complaint is granted, but that amended complaint must comply with the Court's resolution of the motions to dismiss and the Plaintiffs are prohibited from including new allegations in that amended complaint. Background The Plaintiffs filed this lawsuit against the Defendants asserting state law claims of trespass, nuisance, negligence and inverse condemnation stemming from the flooding of the Plaintiffs' properties, located in the Argentine neighborhood of Kansas City, Kansas, between June 2017 and August 2017. During the summer of 2017, significant flooding occurred on the Plaintiffs' properties in the Argentine neighborhood of Kansas City, Kansas. Defendant BNSF operates a rail yard north of plaintiffs' properties. Defendant Miles Leasing LLC owns a vacant lot west of plaintiffs' properties. Defendants Terminal Consolidation Company and Nickell Properties, LLC own and operate a terminal that lies north of plaintiffs' properties but south of BNSF's rail yard. The Plaintiffs allege that the flooding of their properties occurred in part because of a clogged drainage creek located west of their properties. According to the Plaintiffs, Miles Leasing hired defendant Amino Bros. to remove trees from its vacant lot. Amino Bros. removed these trees and also removed trees from BNSF's property. The Plaintiffs allege that a permit was required for this work but was not obtained from the Unified Government, although the Unified Government authorized the work in any event. The Plaintiffs allege that the removal of the trees removed a substantial ecological barrier with respect to water draining from the rail yard. The Plaintiffs further assert that either Miles Leasing or Amino Bros. disposed of the trees and other debris into the drainage creek. According to the proposed amended complaint, other factors contributed to the flooding of the Plaintiffs' properties. Specifically, the Plaintiffs allege that the Unified Government and BNSF "work in tandem" to "determine drainage and/or manage runoff from the Kansas River and/or rain fall in order to protect the rail yard and BNSF operations." Toward that end, it is alleged that the Unified Government maintains and operates flood gates to the Kansas River and that BNSF owns and operates drainage gates on its property. The Plaintiffs allege that the Unified Government and BNSF did not properly control these gates and/or did not open these gates at the appropriate times which caused flooding on the Plaintiffs' properties. With respect to the Unified Government, the Plaintiffs further allege that the Unified Government's pump stations within the storm water drainage system were not working properly and that the Unified Government failed to remedy the poor condition of the storm water drainage system in the Argentine neighborhood where the Plaintiffs reside, all of which contributed to significant flooding of the area during the summer of 2017. A full-text copy of the District Court's June 25, 2020 Memorandum and Order is available at https://tinyurl.com/ybnnbs6q from Leagle.com. BOB PALERMO INC: Faces Coddington Suit in New York Supreme Court ---------------------------------------------------------------- A class action lawsuit has been filed against ROBERT PALERMO. The case is styled as Carolyn Coddington, Individually and on behalf of herself as a shareholder of Bob Palermo, Inc., and on behalf of all other shareholders of said corporation similarly situated v. ROBERT PALERMO, PATRICIA CRAFT AND BOB PALERMO, INC., Case No. 608265/2020 (N.Y. Sup., Nassau Cty., Sept. 11, 2020). The case type is stated as "COMMERCIAL DIVISION." Bob Palermo, Inc., is a licensed and bonded freight shipping and trucking company running freight hauling business from Locust Valley, New York.[BN] The Plaintiff is represented by: BARNES & BARNES, PC 445 Broadhollow Rd., Ste. 229 Melville, NY 11747 Phone: (516) 673-0674 - and - Daniel Oliveri, Esq. LAW OFFICE OF DANIEL R. OLIVIERI, P.C. 100 Jericho Quadrangle, Ste. 233 Jericho, NY 11753 Phone: (516) 470-0704 BRISTOL-MYERS: Skadden Arps Attys. Discuss Aftermath of S.C. Ruling ------------------------------------------------------------------- Anthony Balzano, Esq., John Beisner, Esq., Kent Hiebel, Esq., Jessica Miller, Esq., Jordan Schwartz, Esq., and Geoffrey Wyatt, Esq., of Skadden, Arps, Slate, Meagher & Flom LLP, in an article for JDSupra, report that in 2017, the Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court of California (BMS), holding that a California state court could not exercise personal jurisdiction over a defendant as to the claims being asserted by nonresident plaintiffs in a sprawling mass tort proceeding. 582 U.S. –––, 137 S. Ct. 1773 (2017). As Justice Sonia Sotomayor's dissent in that case noted, the Supreme Court expressly left open whether the ruling would apply to claims being asserted by members of putative nationwide classes in federal court. In the immediate aftermath of the decision, district courts split somewhat evenly on this question. By one court's count, as of the one-year anniversary of BMS, approximately nine cases had ruled that BMS does apply to nationwide class actions, while another nine or so cases had "gone the other way." As the courts in the former camp explained, the general principle outlined in BMS applies just as much to absent class members as to the mass action plaintiffs in BMS for several reasons. For starters, federalism burdens persist notwithstanding the federal forum and status of the litigation as a putative class action. This is so because the forum has no legitimate interest in a dispute between nonforum class members and a nonforum defendant any more than it would in a dispute between out-of-state plaintiffs and defendants. In addition, these courts recognized that the Rules Enabling Act -- under which substantive rights cannot be abridged by procedural rules -- also compels the application of BMS to putative class actions pending in federal court both as to the claims of named and unnamed class members. The first two federal appeals courts to weigh in on this recurring and nettlesome question issued their opinions in March 2020. The U.S. Court of Appeals for the Seventh Circuit held that BMS does not apply to putative nationwide class actions, while the U.S. Court of Appeals for the District of Columbia Circuit punted on the issue and deemed the question premature prior to class certification. Although the cases reached slightly different conclusions, they both found that nonresident putative class members are not "parties" before the court. This reasoning has since been followed by district courts elsewhere in the United States, signaling that the U.S. Supreme Court itself might have to intervene and clarify once and for all whether the dictates of BMS apply with equal force to nationwide class actions. In Mussat v. IQVIA, Inc., the plaintiffs brought a putative class action, alleging that the defendant violated the Telephone Consumer Protection Act (TCPA) by mailing unsolicited "junk faxes" to the putative class members. The district court granted the defendant's motion to strike the class definition, finding that under BMS, the court did not have personal jurisdiction over the out-of-state members of the proposed class. On appeal, the Seventh Circuit reversed, holding that BMS did not extend to class actions because nonresident putative class members are not parties to the action for purposes of personal jurisdiction. The Mussat court distinguished BMS on the basis that consolidation of individual cases into a mass action is different from a federal class action because all plaintiffs in a mass action are parties to the action, whereas in class actions, "[n]onnamed class members . . . may be parties for some purposes and not for others." According to the Mussat court, in some contexts -- like diversity of citizenship analysis or determination of proper venue -- courts do not consider unnamed class members, and the same should obtain with the question of personal jurisdiction. In Molock v. Whole Foods Market Group, Inc., a putative class of current and former Whole Foods employees sued the company for lost wages, alleging that the company unfairly manipulated its bonus program.5 Relying on BMS, Whole Foods moved to dismiss the claims of the nonresident potential class members, arguing that the court lacked personal jurisdiction over it with respect to those specific claims. The district court denied the motion and Whole Foods appealed. On appeal, the D.C. Circuit affirmed, but on alternative grounds. Unlike the district court, the D.C. Circuit did not reach the merits of the motion; instead, the court concluded that the motion should have been denied as premature, holding that the unnamed putative class members were not parties before the court during the period prior to class certification. The court explained that "[i]t is class certification that brings unnamed class members into the action and triggers due process limitations on a court's exercise of personal jurisdiction over their claims." On that basis, the court concluded that "[b]ecause the class in this case has yet to be certified, Whole Foods' motion to dismiss the putative class members is premature." In the wake of these appellate decisions, district courts across the country have been tasked with deciding whether to follow Mussat and Molock or chart their own course. The early returns indicate that many district courts have been persuaded by Mussat, expressly relying on that case in declining to apply the requirements of BMS to nationwide class actions. For example, in Lacy v. Comcast Cable Communications, LLC, the U.S. District Court for the Western District of Washington applied Mussat in denying a motion to dismiss the claims of nonresident putative class members in a TCPA action. Like the Seventh Circuit, the Lacy court found BMS inapplicable because "a plaintiff in a mass tort action is named as a plaintiff, making each 'a real party in interest[;]' [i]n contrast, only the proposed class representative is actually named on the complaint in a class action." In addition to that rationale, the Lacy court also found BMS distinguishable because "Federal Rule of Civil Procedure 23 imposes additional due process safeguards on class actions that do not exist in the mass tort context." In sum, the Lacy court held that "[t]his [c]ourt will not upend the traditional approach to personal jurisdiction in class actions absent an express ruling from the Supreme Court." Unlike the largely positive reception of Mussat by the lower courts, the Molock decision has garnered a more mixed reaction. For example, one judge in the U.S. District Court for the Southern District of Ohio explicitly declined to follow Molock in another case brought under the TCPA. In Progressive Health & Rehab Corp. v. Medcare Staffing, Inc., the court reasoned that addressing the question left open by BMS is not "premature" before class certification because "the issue . . . is not whether this court retains personal jurisdiction over absent class members, but whether th[e] court has personal jurisdiction over [d]efendant for claims relating to a nationwide class." In rejecting the key premise from Molock, the court explained that "[t]he distinction is important because jurisdiction over parties is a threshold issue and because district courts have the power to adjudicate a named plaintiff's ability to represent a class of individuals pursuant to [Rule 23]." Nonetheless, the court followed the Seventh Circuit's reasoning in Mussat and denied the motion to dismiss the claims of the absent class members on the ground that BMS simply does not apply to "Rule 23 class actions." However, the Molock decision has not been completely rejected or ignored, with at least one district court following it and the majority of district courts that relied on Mussat also citing Molock for additional support or as an alternative ground for denying a motion to dismiss on personal jurisdiction grounds. Moreover, the U.S. Court of Appeals for the Fifth Circuit recently indicated an inclination to follow Molock as well. In Cruson v. Jackson National Life Insurance Co., the court considered whether the defendant had waived its personal jurisdiction challenge against nonresident putative class members by failing to timely raise it at the outset of the case. As the Fifth Circuit put it, the answer to that question was "no" because those nonresident putative class members "were not yet before the court when Jackson filed its Rule 12 motions"; "[w]hat brings putative class members before the court is certification." Although the Fifth Circuit did not cite Molock, it employed precisely the reasoning underlying the D.C. Circuit's decision. As these recent examples illustrate, courts construing Molock and Mussat have rejected personal jurisdiction challenges to claims being asserted on behalf of absent class members, either kicking the can down the road to class certification or rejecting the application of BMS outright. But either approach essentially relies on the same rationale -- that unnamed class members are not "parties" for purposes of personal jurisdiction. There is sound basis, however, to question that rationale, and it is articulated by D.C. Circuit Judge Laurence H. Silberman's succinct dissenting opinion in Molock. First and foremost, the notion that a personal jurisdiction challenge with respect to absent class members is not ripe until class certification is based on the "flawed premise" that such a challenge seeks the dismissal of putative class members themselves. As Judge Silberman explained, "Whole Foods did not move to dismiss nonresident putative class members; it moved to dismiss the named plaintiffs' claims to represent those putative class members." Under the approach endorsed by the majority in Molock and effectively countenanced by the Fifth Circuit in Cruson, "a hypothetical named plaintiff would be entitled to extensive class discovery even after an on-point decision by the Supreme Court" compelling the dismissal of claims at the outset of a case.14 As noted above, this reasoning from Judge Silberman has gained traction with at least one district court, which explicitly adopted it and declined to defer consideration of BMS' application until class certification (though it ultimately endorsed Mussat's approach to the merits of the question and rejected the application of BMS to absent class members). Judge Silberman also addressed and rejected the key arguments that led the Seventh Circuit and more recent courts to deny personal jurisdiction challenges in the class action context on the merits. One such argument is that class actions are different from mass actions (such as BMS, which had more than 600 plaintiffs) in that the plaintiffs in the latter category of proceedings are actual "parties," whereas absent class members in the former category are not. Specifically, as mentioned above, the Seventh Circuit reasoned in Mussat that because the Supreme Court has not treated absent class members as "parties" for purposes of subject matter jurisdiction or venue, it must follow that they should not count as parties for purposes of assessing personal jurisdiction. But subject matter jurisdiction and venue do not generally raise due process concerns, which are implicated by the exercise of personal jurisdiction over a defendant. Regardless of how absent class members are treated when assessing subject matter jurisdiction or venue, they should be deemed parties for the purpose of analyzing personal jurisdiction because (assuming they do not opt out) they would be "bound" by any final judgment and therefore could enforce that judgment against the defendant in the forum where the suit was brought. As Judge Silberman put it, "the goal of a nationwide class action is 'a binding judgment over the defendant as to the claims of the entire nationwide class -- and the deprivation of the defendant's property accordingly.'" While it is true that many certified class actions settled, and a defendant could waive personal jurisdiction issues in order to facilitate a settlement, a court facing the question of certification prior to any proposed settlement must assume that a certified class would be tried and have a plan for binding the defendant as to all class members following any adverse verdict. As such, the question of whether the court could exercise personal jurisdiction over the defendant with respect to out-of-state class members must necessarily be answered before any class can be certified. Some district courts following Molock and Mussat, such as in the Lacy case described above, have gone even further and justified an exception for class actions on the ground that "at its core, '[p]ersonal jurisdiction is rooted in fairness to the defendant, and Rule 23 provides significant safeguards to that end.'"17 However, those procedural safeguards cannot elevate the class action device above due process requirements of the Constitution. To conclude otherwise would arguably manufacture personal jurisdiction by dint of the lawsuit's putative classwide status and exceed the scope of the Rules Enabling Act by using a procedural rule to "abridge, enlarge or modify [a] substantive right." Finally, Judge Silberman also dismissed the "parade of horribles" that plaintiffs' lawyers have frequently suggested would result from applying BMS to nationwide class actions. Specifically, the plaintiffs in Molock contended that such an application would render nationwide class actions moribund. Some district courts have agreed. For example, one court recently stated that "fusing the Bristol-Myers rule into class actions would divest federal courts of specific jurisdiction over nationwide class actions -- even where Rule 23 requirements are met -- simply because the federal court may not maintain specific jurisdiction over a nonresident defendant as to every single class member['s] claim as though each class member had brought an individual suit." It is important to remember, however, that specific jurisdiction is not the only way to establish personal jurisdiction over a defendant. As Judge Silberman recognized in Molock, general jurisdiction could have been exercised over Whole Foods in its home state of Delaware "without any personal jurisdiction difficulties." Nor would a straightforward application of BMS to class actions preclude defendants from waiving personal jurisdiction objections if they chose to do so, such as where parties on both sides sought to resolve a nationwide dispute by way of settlement.21 Moreover, plaintiffs can bring purely statewide class actions in their own home states. In short, the policy claims being advanced in opposition to BMS in the class action context could well be overstated. It remains to be seen whether Mussat and Molock will continue to hold sway among other lower courts. But it is clear that they have influenced subsequent district court decisions despite the countervailing arguments outlined by Judge Silberman and prior district court decisions that BMS should apply to putative nationwide class actions. Ultimately, the Supreme Court itself will likely have to weigh in on whether the limits on the exercise of personal jurisdiction over out-of-state defendants apply to putative nationwide class actions. Recent Class Action Decisions of Note Courts Continue To Split on Whether Consumers Have Standing To Sue on Behalf of Consumers Who Purchased a Different, but Substantially Similar, Product Richey v. Axon Enterprises, Inc., 437 F. Supp. 3d 835 (D. Nev. 2020) Chief Judge Miranda M. Du of the U.S. District Court for the District of Nevada held that a plaintiff had standing to bring claims on behalf of purchasers of three models of allegedly defective Tasers even though the plaintiff only purchased and used one of those particular models. In that case, the plaintiff alleged that his model of Taser -- called the Pulse -- discharged while in the "safe" position and that the Taser could fire even if the safety mechanism was moved only part of the way from the "safe" to the "armed" position. Based on this claim, the plaintiff sought to represent a class comprising not only purchasers of the Pulse but also purchasers of two other models of Tasers sold by the defendant. The defendant moved to dismiss the claims involving the other models, arguing that the plaintiff did not have standing to bring such claims because he never purchased those models. The court disagreed, holding that the plaintiff had standing to bring claims on behalf of purchasers of all three models because the models were substantially similar. Although courts are split on whether plaintiffs can bring claims on behalf of consumers who purchased similar, but not identical, products, the court reasoned that most find standing "so long as the products and alleged misrepresentations are substantially similar." To determine whether products are substantially similar, Judge Du explained that courts ask whether "the resolution of the asserted claims will be identical between the purchased and unpurchased products" and look to factors such as similarity in products, claims and injuries. Applying that standard, the court found that the three Taser models at issue were substantially similar. In particular, the court focused on three similarities. First, the models had the "same traditional hand gun design"; second, an investigation by the Canadian government found that all three models had the same design flaw; and, third, the defendant failed to disclose the defects in all three models. In light of those similarities, the court determined that the plaintiff had standing to assert claims on behalf of consumers who purchased all three Taser models. Snyder v. Green Roads of Florida LLC, 430 F. Supp. 3d 1297 (S.D. Fla. 2020) Judge Ursula Ungaro of the U.S. District Court for the Southern District of Florida held that consumers did not have standing to bring certain class claims against a company that sold cannabidiol (CBD) products because the consumers did not purchase some of the products at issue. In that case, the plaintiffs alleged that the defendant misrepresented the amount of CBD in its products, some of which the named plaintiffs did not purchase themselves. The court held that the plaintiffs could not bring class claims with respect to the CBD products they did not purchase. The court reasoned that, while some courts allow consumers to bring class claims involving nonpurchased products that are substantially similar to the purchased products, courts in the U.S. Court of Appeals for the Eleventh Circuit do not. The court explained that, because at least one named plaintiff must have standing with respect to each claim under Article III, standing did not exist with respect to a particular product unless one of the named plaintiffs purchased that product. As a result, the court determined that the classes were overbroad in including claims related to CBD products that the named plaintiffs did not purchase and dismissed them for lack of standing. Ninth Circuit Vacates Order Allowing Counsel To Use Discovery To Identify a Lead Plaintiff In re Williams-Sonoma, Inc., 947 F.3d 535 (9th Cir. 2020) Judge Ferdinand F. Fernandez, writing for a panel of the U.S. Court of Appeals for the Ninth Circuit, granted a writ of mandamus vacating a pre-class-certification order for discovery that would have allowed the plaintiff's counsel to find a lead plaintiff to pursue class claims. In that case, the plaintiff brought suit in Kentucky, alleging that the defendant misrepresented the thread count of its bedding. After the trial court held that the plaintiff could not bring a class action under Kentucky law, the court ordered the defendant, on the plaintiff's request, to produce a list of California customers so the plaintiff's counsel could find a plaintiff to bring the class action. In granting the writ vacating that order, the Ninth Circuit relied on U.S. Supreme Court precedent holding that potential class members' names and addresses were not relevant under Federal Rule 26 and thus were not discoverable. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-53 (1978). The court also disagreed with the plaintiff's argument that the list of Californian purchasers was relevant to commonality, typicality, ascertainability and reliance, reasoning that "using discovery to find a client to be the named plaintiff before a class action is certified is not within the scope of Rule 26(b)(1)." Accordingly, the court vacated the discovery order. [GN] BROWNELL INC: Faces Graciano ADA Class Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Brownell, Inc. The case is styled as Sandy Graciano, on behalf of himself and all other persons similarly situated v. Brownell, Inc., Case No. 1:20-cv-07540 (S.D.N.Y., Sept. 14, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Brownell, Incorporated, supplies firearm accessories, gun parts, and gunsmithing tools. The Company offers rifle, shotgun, and handgun parts, as well as provides magazines, bullets, primers, shell holders, measuring tools, loading blocks, reloading dies, gun powders, bullet casting equipment, and shot shell components.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com BSA LIMITED: To Vigorously Defend Misclassification Class Action ---------------------------------------------------------------- ITNews reports that BSA Limited, a supplier of technical services to the likes of NBN Co and Optus, said it will "vigorously defend" a class action lawsuit filed over the way it allegedly assembled its technician workforce. The ASX-listed service provider is accused of "wrongly categorising" technicians as subcontractors instead of as employees, leading them to miss out on pay and entitlements. Shine Lawyers' class actions practice leader Vicky Antzoulatos said the case, lodged in the Federal Court of Australia, "will argue the technicians are covered by the Fair Work Act (2009) and Telecommunications Services Award." "We allege this publicly-listed company has misrepresented the nature of its engagement with its technicians," Antzoulatos said in a statement. "The technicians believed they were subcontractors when we say in all respects they were employees and are entitled to minimum wage, overtime, sick leave, annual leave, and superannuation. "We believe the technicians ended up with considerably less money in their pocket as a result of sham-contracting and this type of system of work needs to be called out, especially during these tough economic times when people are hurting." The case has been brewing since late last year. BSA confirmed in a filing to the ASX that it had been served with legal proceedings "in relation to its contracting arrangements, specifically to independent contractors and whether they are properly characterised as such." It criticised news of the case appearing in the media "before our counsel had received the claim and had an opportunity to review" it, and said that was suggestive of "a level of opportunism on the part of the plaintiff lawyers and litigation funders." "We will vigorously defend the action and our position on the validity of our contracting arrangements," the company said. "BSA takes its obligations in this area very seriously and has over many years regularly tested its contracting arrangements against legal requirements. "As a result, we are confident our contracting arrangements are sound." The legal action is being funded by Australian litigation funder, Litigation Lending Services Ltd. Shine Lawyers said it was encouraging "all telecommunication technicians engaged by BSA, either directly or via an intermediary (sub-prime), from 2003 to date to register their interest in the class action." [GN] CINCINNATI INSURANCE: Distillery, Restos Slam Denied Coverage ------------------------------------------------------------- Jacob Rieger & Company LLC, Heim Master Tenant LLC, Heim Building LLC, Tiger Notions Inc., Linear Notions Inc., Racing Notions Inc., Vienna Group LLC and Musical Theatre Heritage, Inc., individually and on behalf of all others similarly situated, Plaintiffs, v. The Cincinnati Insurance Company, Inc., Defendant, Case No. 20-cv-00681 (W.D. Mo., August 24, 2020), seeks injunctive relief, prejudgment and post-judgment interest at the maximum rate, attorney's fees and costs and such other relief from breach of contract. Jacob Rieger & Company and the Heim companies operate a distillery in Kansas City while Tiger Notions, Linear Notions, Racing Notions, Vienna Group and Musical Theatre Heritage operate restaurants in Kansas and Missouri. They purchased an all-risk commercial property insurance policies from Cincinnati Insurance for protection in the event of property loss and business interruption. But during the COVID-19 pandemic, they were denied coverage despite that fact that the policies do not contain an exclusion for pandemic and/or virus-related losses. [BN] Plaintiff is represented by: Patrick J. Stueve, Esq. Bradley T. Wilders, Esq. Curtis Shank, Esq. Abby E. McClellan, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 Email: stueve@stuevesiegel.com wilders@stuevesiegel.com shank@stuevesiegel.com mcclellan@stuevesiegel.com - and - John J. Schirger, Esq. Matthew W. Lytle, Esq. Joseph M. Feierabend, Esq. MILLER SCHIRGER LLC 4520 Main Street, Suite 1570 Kansas City, MO 64111 Telephone: (816) 561-6500 Facsimile: (816) 561-6501 Email: jschirger@millerschirger.com mlytle@millerschirger.com jfeierabend@millerschirger.com - and - J. Kent Emison, Esq. LANGDON & EMISON LLC 911 Main Street PO Box 220 Lexington, MO 64067 Telephone: (660) 259-6175 Facsimile: (660) 259-4571 Email: kent@lelaw.com - and - Richard F. Lombardo, Esq. SHAFFER LOMBARDO SHURIN, P.C. 2001 Wyandotte Street Kansas City, MO 64108 Telephone: (816) 931-0500 Facsimile: (816) 931-5775 Email: rlombardo@sls-law.com CLEVELANDER OCEAN: Dalton Sues in Florida Over Violation of FLSA ---------------------------------------------------------------- A class action lawsuit has been filed against CLEVELANDER OCEAN, LP. The case is styled as Shannon Dalton, for herself and on behalf of those similarly situated v. CLEVELANDER OCEAN, LP, a Foreign Limited Partnership, itself, and as successor-in-interest to 2K Clevelander, LLC, a Foreign Limited Liability Company, Case No. 1:20-cv-23804-DPG (S.D. Fla., Sept. 14, 2020). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. CLEVELANDER OCEAN, LP, operates a hotel in Miami Beach.[BN] The Plaintiff is represented by: Angeli Murthy, Esq. Paul M. Botros, Esq. MORGAN & MORGAN, P.A. 8151 Peters Road, Suite 4000 Plantation, FL 33324 Phone: (954) 318-0268 Fax: (954) 327-3017 Email: amurthy@forthepeople.com pbotros@forthepeople.com COMCAST CABLE: Misclassifies Human Resource Workers, Bertot Says ---------------------------------------------------------------- LUIS BERTOT v. COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, a Foreign Limited Liability Company, MARK FLEMING, an individual, jointly, Case No. 1:20-cv-23766-XXXX (S.D. Fla., Sept. 10, 2020), is brought on behalf of the Plaintiff and all others similarly situated against the Defendants for their alleged unlawful pattern and practice of depriving non-exempt Human Resources employees overtime compensation in violation of the Fair Labor Standards Act. The Plaintiff was hired by the Defendants as a Human Resource Manager. The Plaintiff alleges that during his employment with the Defendants, he performed primarily non-exempt work although the Defendant classified him as an exempt employee. However, he was not paid one and one-half times his regular rate of pay for all the hours he worked in excess of 40 during a workweek. Moreover, the Defendants failed to keep accurate time records for all hours he and other similarly situated employees worked, the Plaintiff adds. Comcast Cable Communications Management, LLC is a telecommunications company. Mark Fleming was a Senior Director and then Vice President of Human Resource of Comcast.[BN] The Plaintiff is represented by: Jason D. Berkowitz, Esq. Anisley Tarragona, Esq. BT LAW GROUP, PLLC 3050 Biscayne Blvd., Suite 205 Miami, FL 33137 Tel: (305) 507-8506 Email: jason@battorneys.com anisley@battorneys.com COMMONWEALTH BANK: Piper Alderman Files New Class Action -------------------------------------------------------- Mortgage Business reports that Commonwealth Bank has been hit with a new class action relating to commissions paid to its subsidiary. Law firm Piper Alderman has filed a class action in the Federal Court against the Commonwealth Bank of Australia (CBA). The class action has been launched on behalf of individuals who have obtained financial products and/or life insurance on the advice of financial planners operating under the licence of former CBA subsidiary Count Financial Ltd. The law firm has alleged that Count Financial and its authorised representatives received conflicted remuneration from product issuers and/or customers themselves over the period between 21 August 2014 to 21 August 2020. Specifically, the claim alleged that Count Financial contravened its obligations under the Corporations Act 2001 (Cth) to: -- ensure that their financial advisers do not contravene their legal obligations to their customers; -- ensure that adviser remuneration was free from conflict; -- act in their customer's best interests when giving personal financial advice; and -- to provide services where fees were charged. CBA has acknowledged the class action lawsuit in a statement to shareholders. The bank noted that it has since sold Count Financial to CountPlus, with management of the firm handed over in October 2019. "[CBA] will continue to support and manage customer remediation matters arising from past issues at Count Financial and has provided an indemnity to CountPlus Ltd of $300 million," CBA stated. This comes just weeks after litigation firm Shine Lawyers launched a separate class action against CBA. Shine Lawyers has laid charges on behalf of customers who obtained CommInsure life insurance products recommended by financial advisers operating under CBA subsidiaries Commonwealth Financial Planning Ltd, Financial Wisdom Ltd and BW Financial Advice. [GN] COMMONWEALTH FINANCIAL: Faces Suit Over Insurance Policy Advice --------------------------------------------------------------- Nikhil Kurian Nainan at Insurance Journal reports that Commonwealth Bank of Australia (CBA) said a class action lawsuit was filed over advice given on life insurance policies issued and recommended by three former subsidiaries. The lawsuit was filed by Shine Lawyers against financial advisors Commonwealth Financial Planning Ltd (CFPL) and Financial Wisdom Ltd., and The Colonial Mutual Life Assurance Society, a life insurer sold by CBA to AIA Group this year. The lawsuit relates to advice given by CFPL and Financial Wisdom on policies issued by Colonial Mutual. In January, the same law firm brought another class action lawsuit against CBA's pension arm for not acting in customers interest by encouraging them to pick policies provided by CommInsure. CBA stopped providing licensee services through Financial Wisdom and CFPL this year as part of the bank's move away from wealth management. Australia's biggest bank did not say when the alleged wrongdoing took place and a Shine spokeswoman declined to comment other than to confirm that a lawsuit had been filed. [GN] CONVERSE INC: Appeals Ruling in Madeira Labor Suit to 9th Circuit ----------------------------------------------------------------- Defendant Converse, Inc., filed an appeal from a court ruling issued in the lawsuit entitled Bryan Madeira v. Converse, Inc., Case No. 5:19-cv-00154-CJC-SP, in the U.S. District Court for the Central District of California, Riverside. As previously reported in the Class Action Reporter, the Hon. Judge Cormac J. Carney entered an order: 1. denying Plaintiff's motion for class certification; and 2. remanding the action to San Bernardino Superior Court. In November 2018, the Plaintiff Bryan filed this putative wage and hour class action against Defendant Converse, Inc., et al., in San Bernardino Superior Court, asserting claims on behalf of current and former hourly Converse employees in California. On January 25, 2019, Converse removed the lawsuit to the District Court pursuant to the Class Action Fairness Act. The Plaintiff worked as an Equipment Operator at the Converse Distribution Center from December 7, 2015, through July 18, 2018. The appellate case is captioned as Bryan Madeira v. Converse, Inc., Case No. 20-55958, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Converse, Inc.'s opening brief is due on September 24, 2020; and -- Appellee Bryan Madeira's answering brief is due on September 24, 2020.[BN] Plaintiff-Appellee BRYAN MADEIRA, an individual, and on behalf of others similarly situated, is represented by: Matthew J. Matern, Esq. Mikael H. Stahle, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 E-mail: mmatern@maternlawgroup.com MStahle@maternlawgroup.com Defendant-Appellant CONVERSE, INC., a Delaware corporation, is represented by: Jon D. Meer, Esq. Michael Afar, Esq. SEYFARTH SHAW, LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 E-mail: jmeer@seyfarth.com mafar@seyfarth.com CVS PHARMACY: Seeking Justice for Pain Files Opioid Class Action ---------------------------------------------------------------- Seeking Justice for Pain Patients on Aug. 10 disclosed that national class action lawsuits have been filed against the largest pharmacy chains in the country for discrimination in refusing to fill legitimate prescriptions for opioid medication. Edith Fuog, a 48 yr. old Hispanic divorced mother, from Riverview, Fla., filed a nationwide class action lawsuit in the United States District Court for the District of Rhode Island located in Providence, R.I. against CVS on behalf of the millions of other legitimate users of legally prescribed opioid medication, seeking legal relief that will allow them to get their legitimate opioid prescriptions filled, as written, without additional limitations or restrictions, and without the constant fear that their prescriptions will be denied. Susan Smith, a 43 yr. old married mother from Castro Valley, Ca., has filed a similar national class action against Walgreens and Costco in the United States District Court for the Northern District of California located in San Francisco, Ca. Edith Fuog suffers from chronic pain brought on by numerous medical conditions, including stage-1 breast cancer, MRSA, VRSA, Guillainn-Barre Syndrome, Parsonage Turner Syndrome, Trigeminal Facial Nerve Neuropathy, Hashimotos Thyroid disease, Lupus and arthritis. As alleged in her lawsuit, since at least 2017, numerous different CVS pharmacies have refused to fill her legitimate prescriptions for opioid medication in violation of the American with Disabilities Act, the Rehabilitation Act of 1973 and the anti-discrimination provisions of the Affordable Care Act. She filed complaints with CVS' corporate headquarters, but despite promises that the matter would be investigated, has never heard back from CVS. Susan Smith suffers from Mesial Temporal Lobe Sclerosis of the brain, which is an extreme form of scar tissue in her brain that leaves her with constant migraine headaches that are so severe, that at times she cannot walk, will lose vision in her eyes, and experiences extreme bouts of nausea and vomiting. The only medications she can take to provide her with any sort of relief from the extreme pain are opioids. As alleged in her lawsuit, numerous Walgreens and Costco pharmacies have refused to fill her legitimate prescriptions for opioid medication in violation of the American with Disabilities Act, the Rehabilitation Act of 1973 and the anti-discrimination provisions of the Affordable Care Act. She complained to Walgreens corporate, but they were dismissive of her plight. Efforts to combat the national crisis of abuse of opioids, while originally well-intentioned, have led to discrimination against millions of Americans who legitimately need opioid medication to combat the terrible pain they live with every day. As alleged in the lawsuits, CVS, Walgreens and Costco have implemented nationwide policies that that have resulted in their pharmacies treating patients who presents a valid prescription for opioid medication as if they are a drug abuser, interfering with the customer's relationship with his or her treating doctor and improperly refusing to fill legitimate prescriptions for opioid pain medication or imposing medically unnecessary limitations or other requirements before agreeing to fill the prescriptions. As noted in the suits, in a June 16, 2020 letter to the CDC, the American Medical Association stated that "The nation no longer has a prescription opioid-driven epidemic" and "We can no longer afford to view increasing drug-related mortality through a prescription drug-myopic lens." The AMA noted that guidelines issued by the CDC in 2016 "included multiple arbitrary dosage and quantity limitation recommendations that have been consistently misapplied by State legislatures, national pharmacy chains, pharmacy benefit management companies, health insurance companies and federal agencies." The AMA letter cited CVS and Walgreens policies as "inappropriate" policies that misapply "the CDC guidelines in different ways and have resulted in specific harm to patients." The AMA further noted that: "These policies, moreover, have not withstood any meaningful evaluation or data analysis as to whether they have improved pain care or reduced opioid-related harms." As Scott Hirsch, one of the lead attorneys handling the cases, explained: "Many Americans are unaware of the difficulties chronic pain patients have getting pharmacies to fill their lawfully-obtained opioid prescriptions. It is not only a crisis for Edith and Susan, but for millions of Americans due to the backlash caused in part by the national publicity concerning opioid abuse. These lawsuits seek to allow the millions of chronic pain patients to obtain their legitimate opioid prescriptions without being discriminated against, harassed, denied, or embarrassed. It will hopefully improve their quality of life and save many lives in the process." The filed Class Actions are: Smith v. Walgreens Boots Alliance, Inc., et al., Case No.: 20-cv-05451 and Fuog v. CVS Pharmacy, Inc., et al., Case No.: 20-cv-00337 For a copy of the Complaints and more information about the allegations, visit https://seekingjusticeforpainpatients.com. [GN] DELOITTE CONSULTING: Karns Sues Over Data Breach ------------------------------------------------ Krystal Karns, individually and on behalf of all others similarly situated, Plaintiff, v. Deloitte Consulting LLP, Defendant, Case No. 20-cv-04952 (N.D. Ill., August 24, 2020), seeks monetary, actual and punitive damages, declaratory and injunctive relief, prejudgment interest, costs, fees and attorneys' fees, expenses and costs of prosecuting this action and such other and further relief resulting from breach of implied and express contract, negligence, invasion of privacy and for violation of the Fair Credit Reporting Act. Deloitte contracts with state agencies—including the Ohio Department of Job and Family Services, the Illinois Department of Employment Security, the Colorado Department of Labor and Employment and the Arkansas Division of Workforce Services to create and maintain web-portals by which applicants may apply for benefits and communicate with the state agencies. Karns applied for unemployment benefits through the Ohio Department of Job and Family Services online portal on May 13, 2020. On May 20, 2020, Deloitte had discovered that the web-portal it created and maintained exposed applicants' Personal Information to the public. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Phone: (877) 619-8966 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com - and - Abbas Kazerounian, Esq. Mona Amini, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ak@kazlg.com3 mona@kazlg.com - and - David B. Levin, Esq. Steven G. Perry, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 333 Skokie Blvd., Suite 103 Northbrook, IL 60062 Phone: (224) 218-0882, (224) 218-0875 Fax: (866) 633-0228 Email: dlevin@toddflaw.com steven.perry@toddflaw.com DNATA US: Moore Sues Over Failure to Pay Minimum & Overtime Wages ----------------------------------------------------------------- CHRISTIAN L. MOORE, on behalf of himself and all others similarly situated v. DNATA US INFLIGHT CATERING LLC, a New York limited liability company; 121 INFLIGHT CATERING LLC, a New York limited liability company; KEVIN KLOIBER, an individual; and DOES 1 through 100, inclusive, Case No. CGC-20-586512 (Cal. Super., San Francisco Cty., Sept. 11, 2020), arises from the Defendants' alleged violations of the California Labor Code. The Plaintiff asserts that the Defendants implemented policies and/or practices that have resulted in the violation of the Labor Code due to the Defendants' failure to pay overtime wages, failure to pay minimum wages, failure to provide meal periods and rest periods, failure to pay all wages due upon termination, and failure to provide accurate wages statements. The Plaintiff further alleges that the Defendants unlawful conduct constitutes unfair competition within the meaning of Business and Professions Code. The Plaintiff was employed by the Defendants from August 2019 through February 2020 as a non-exempt employee whose duties include preparing and serving food. Dnata US Inflight Catering LLC and 121 Inflight Catering LLC are New York-based companies that provide catering services to commercial airlines and private jets. The Companies are doing business in the State of California.[BN] The Plaintiff is represented by: David D. Bibiyan, Esq. Diego Aviles, Esq. Sara Ehsani-Nia, Esq. BIBIYAN LAW GROUP, P.C. 8484 Wilshire Boulevard, Suite 500 Beverly Hills, CA 90211 Telephone: (310) 438-5555 Facsimile: (310) 300-1705 E-mail: david@tomorrowlaw.com diego@tomorrowlaw.com sara@tomorrowlaw.com DUNHAM'S ATHLEISURE: Graciano Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Dunham's Athleisure Corporation. The case is styled as Sandy Graciano, on behalf of himself and all other persons similarly situated v. Dunham's Athleisure Corporation, Case No. 1:20-cv-07480 (S.D.N.Y., Sept. 11, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dunham's Athleisure corporation operates a sporting good chain. The Company offers sporting goods, athletic equipment, active sports gear, and leisure apparel.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com EDWARD MALINA: Sarkisyan Sues Over Unpaid Minimum and OT Wages -------------------------------------------------------------- ELINA SARKIS YAN, on behalf of herself and others similarly situated v. EDWARD MALINA INC. d/b/a DELACQUA SALON & MEDI SPA, ALEXANDER BEDEROFF a/k/a "ALEXANDER DELACQUA," and ALEXANDER BEDEROV a/k/a "ALEXANDER DELACQUA," Case No. 1:20-cv-04249 (E.D.N.Y., Sept. 11, 2020), seeks to recover damages arising from the Defendants' failure to pay minimum wages, overtime compensation, and the "spread of hours" premium, in direct violation of the Fair Labor Standards Act and New York Labor Law. The Plaintiff worked for the Defendants as a non-exempt administrative assistant at the Delacqua Salon & Medi Spa from May 2018 until November 7, 2019. Edward Malina Inc. owns and operates a hair salon and spa doing business as "Delacqua Salon & Medi Spa," located in Brooklyn, New York.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 10 Grand Central 155 East 44th Street, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 ERIE INSURANCE: Balogh Enterprises Seeks Payment for COVID Losses ----------------------------------------------------------------- BALOGH ENTERPRISES, LLC D/B/A HONEY BAKED HAM & CAFE v. ERIE INSURANCE EXCHANGE, Case No. 1:20-cv-00259-CB (W.D. Pa., Sept. 2, 2020), is brought on behalf of the Plaintiff and all others similarly situated arising from the Defendant's denial of coverage for losses caused by the COVID-19 pandemic. The Plaintiff is a small business that purchased the Defendant's insurance policy and made premium payments for a policy that, in the event of a catastrophe requiring a shutdown of business operations, would require the Defendant to honor its contractual obligation to provide coverage. In March 2020, such a catastrophe took place when the Plaintiff was forced to close its restaurant businesses due to the COVID-19 pandemic. As a result, many insureds, including the Plaintiff, filed claims for Income Protection coverage, Contingent Business Interruption coverage, Extra Expense coverage, and coverage for losses due to the actions of a Civil Authority. In response to the business interruption claims filed by the Plaintiff and thousands of other class members, the Defendant has systematically denied and continues to deny and refuses to provide payment for insurance claims for coverage for similar losses and expenses by insureds holding policies that are, in all material respects, identical, according to the complaint. The Defendant's decision to not provide coverage and/or its decision to refuse to pay claims under the common policy forms issued to the Plaintiff and the putative class members constitutes a breach of contract and provides them with the right to seek a declaratory judgment, establishing that they are entitled to receive the benefit of the insurance coverage it purchased and for indemnification of the businesses losses it has sustained. The Plaintiff operates a cafe in Erie, Pennsylvania. Erie Insurance Exchange is a Pennsylvania-based insurance company engaged in the business of selling insurance contracts to commercial entities.[BN] The Plaintiff is represented by: Adam M. Moskowitz, Esq. Adam A. Schwartzbaum, Esq. Howard M. Bushman, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com adams@moskowitz-law.com howard@moskowitz-law.com - and - William F. Merlin, Jr., Esq. Michael Howard Moore, Esq. Daniel W. Ballard, Esq. MERLIN LAW GROUP 777 S. Harbour Island Blvd., Suite 950 Tampa, FL 33602 Telephone: (813) 229-1000 Facsimile: (813) 229-3692 E-mail: cmerlin@MerlinLawGroup.com mmoore@merlinlawgroup.com DBallard@MerlinLawGroup.com ETHAN ALLEN: Cota Sues in S.D. California Alleging ADA Violation ---------------------------------------------------------------- A class action lawsuit has been filed against Ethan Allen Retail, Inc., et al. The case is styled as Julissa Cota, individually and on behalf of herself and all others similarly situated v. Ethan Allen Retail, Inc., a Delaware corporation; DOES 1 to 10, inclusive, Case No. 3:20-cv-01811-BEN-KSC (S.D. Cal., Sept. 14, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ethan Allen Retail, Inc. retails home and office furniture. The Company offers sofas, chairs, tables, cabinets, desks, fabrics, and storage and display furniture.[BN] The Plaintiff is represented by: Thiago M. Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard, 12th Floor Los Angeles, CA 90010 Phone: (213) 381-9988 Fax: (213) 381-9989 Email: thiago@wilshirelawfirm.com EVERBRAND LLC: Olsen Sues in E.D. New York Over Violation of ADA ---------------------------------------------------------------- A class action lawsuit has been filed against Everbrand LLC. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated v. Everbrand LLC, Case No. 1:20-cv-04268 (E.D.N.Y., Sept. 11, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. EverBrand is a brand development, marketing strategy and digital marketing solutions company.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170 Phone: (212) 764-7171 Email: chris@lipskylowe.com FINANCIAL BUSINESS: Faces Garrett FDCPA Class Suit in Colorado -------------------------------------------------------------- A class action lawsuit has been filed against Financial Business and Consumer Solutions, Inc., et al. The case is styled as Tavorris Garrett, individually and on behalf of all others similarly situated v. Financial Business and Consumer Solutions, Inc. and John Does 1-25, Case No. 1:20-cv-02754-MEH (D. Colo., Sept. 11, 2020). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Financial Business Consumer Solutions is a debt collection agency.[BN] The Plaintiff is represented by: Raphael Y. Deutsch, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: rdeutsch@steinsakslegal.com FIRST FAMILY INSURANCE: Flood Seeks Unpaid Overtime Pay ------------------------------------------------------- Stephen Flood, individually and on behalf of all others similarly situated who consent to their inclusion in a collective action, Plaintiff, v. First Family Insurance, Inc. and Jason Marra, Defendant Case 20-cv-00623 (M.D. Fla., August 19, 2020) seeks overtime wages, compensatory, exemplary and punitive damages, declaratory and injunctive relief including costs and attorneys' fees under the federal Fair Labor Standards Act. Flood worked for First Family as an inside sales representative. He was paid a base hourly rate plus he was entitled to receive monthly paid commission on health insurance policies sold. First Family allegedly failed to include commissions in the regular rate of pay leading to an underpayment of overtime premiums. Flood also claims to be misclassified as non-exempt, thus denied overtime wages. [BN] Plaintiffs are represented by: Mitchell L. Feldman, Esq. FELDMAN LEGAL GROUP 6940 W. Linebaugh Ave, #101 Tampa, FL 33625 Tel: (813) 639-9366 Fax: (813) 639-9376 Email: mlf@feldmanlegal.us lschindler@feldmanlegal.us FIRST PENN-PACIFIC: Motion to Compel Filed in Iwanski Class Suit ---------------------------------------------------------------- Thomas Iwanski and TVPX ARS Inc. filed a sealed motion to compel in the case captioned as THOMAS IWANSKI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED; AND TVPX ARS INC. AS SECURITIES INTERMEDIARY FOR CONSOLIDATED WEALTH MANAGEMENT, LTD., ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY v. FIRST PENN-PACIFIC LIFE INSURANCE COMPANY AND LINCOLN NATIONAL LIFE INSURANCE COMPANY, Case No. 2:20-mc-00093-RBS (E.D. Pa.). First Penn-Pacific Life Insurance Company offers term life insurance and linked benefits policies. Lincoln National Life Insurance Company is an Indiana-based insurance services provider.[BN] The Plaintiffs are represented by: Bryan Caforio, Esq. Catriona M. Lavery, Esq. Glenn C. Bridgman, Esq. Michael B. Adamson, Esq. Richard L. Jolly, Esq. Steven G. Sklaver, Esq. SUSMAN GODFREY LLP 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: (310) 789-3192 E-mail: bcaforio@susmangodfrey.com clavery@susmangodfrey.com gbridgman@susmangodfrey.com madamson@susmangodfrey.com rjolly@susmangodfrey.com ssklaver@susmangodfrey.com - and - Douglas E. Roberts, Esq. Gaetan Alfano, Esq. PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI 1818 Market St., Suite 3402 Philadelphia, PA 19103 Telephone: (215) 988-1431 E-mail: der@pietragallo.com gja@pietragallo.com - and - Ryan C. Kirkpatrick, Esq. Seth Ard, Esq. SUSAN GODFREY LLP 1301 Avenue of the Americas, 32nd Floor New York, NY 10019 Telephone: (212) 336-8330 E-mail: rkirkpatrick@susmangodfrey.com sard@susmangodfrey.com The Defendants are represented by: Alan B. Vickery, Esq. Evelyn N. Fruchter, Esq. Motty Shulman, Esq. BOIES SCHILLER FLEXNER LLP 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8200 E-mail: avickery@bsfllp.com efruchter@bsfllp.com mshulman@bsfllp.com - and - Andrew Villacastin, Esq. John F. Lasalle, III, Esq. BOIES SCHILLER FLEXNER LLP 55 Hudson Yards New York, NY 10001 Telephone: (212) 446-2300 E-mail: avillacastin@bsfllp.com jlasalle@bsfllp.com - and - Brian H. Callaway, Esq. Robin P. Sumner, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 Telephone: (215) 981-4428 E-mail: brian.callaway@troutman.com robin.sumner@troutman.com FIRSTENERGY CORP: Bragar Eagel Reminds of Sept. 28 Deadline ----------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of FirstEnergy Corp. Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. FirstEnergy Corporation (NYSE: FE) Class Period: February 21, 2017 to July 21, 2020 Lead Plaintiff Deadline: September 28, 2020 On July 21, 2020, federal agents announced the arrest of Ohio Speaker Larry Householder and four other persons, including a prominent FirstEnergy lobbyist, in connection with a $60 million racketeering and bribery scheme. On this news, the Company's share price fell by $7.01, or 17%, to close at $34.25 per share on July 21, 2020. On July 22, 2020, Cleveland.com published an article entitled "FirstEnergy was relentless in quest to have Ohio legislature bail out the utility's nuclear plants," which provided further details regarding FirstEnergy's illicit activities. On this news, the Company's share price fell by $7.16, or 21%, to close at $27.09 per share on July 22, 2020. The complaint, filed on July 28, 2020, alleges that throughout the Class Period defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, defendants failed to disclose to investors: (1) that FirstEnergy and its representatives and affiliates had orchestrated a $60 million campaign to corrupt the political process in order to secure the passage of legislation favoring the Company and its affiliates; (2) that FirstEnergy and its representatives and affiliates had secretly funneled tens of millions of dollars to Ohio politicians to bribe those politicians in order to secure votes in favor of Ohio House Bill 6 ("HB6"), a $1.3 billion ratepayer bailout for FirstEnergy's unprofitable nuclear facilities; (3) that FirstEnergy and its representatives and affiliates had conducted a massive, misleading advertising campaign in support of HB6 and in opposition to a ballot initiative to repeal HB6 by passing millions of dollars through an intricate web of "dark money" entities and front companies in order to conceal the Company's involvement; (4) that FirstEnergy and its representatives and affiliates had subverted a citizens' ballot initiative to repeal HB6 by, among other unscrupulous tactics, hiring more than 15 signature gathering firms (and thus conflicting them out of supporting the initiative) and bribing ballot initiative insiders and signature collectors; (5) that, as a result of the foregoing, defendants' Class Period statements regarding FirstEnergy's regulatory and legislative efforts were materially false and misleading; and (6) that, as a result of the foregoing, FirstEnergy was subject to an extreme, undisclosed risk of reputational, legal and financial harm. About Bragar Eagel Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York and California. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] FRESH MARKET: Fails to Put Nutrition Labels on Foods, Myhand Says ----------------------------------------------------------------- JOE MYHAND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. THE FRESH MARKET, INC. a DELAWARE CORPORATION, Case No. 2:20-cv-01358-AKK (N.D. Ala., Sept. 11, 2020), arises from the Defendant's failure to affix nutrition labels of its bakery goods prior to sale in violation of the food marketing regulations set by the Food & Drug Administration. According to the complaint, on May 25, 2020, the Plaintiff visited the Defendant's location in Birmingham, Jefferson County, Alabama, and purchased several items including the prepackaged containers of bakery goods from the Defendant's bakery department. The Plaintiff expected that the Defendant's bakery goods were being baked, packaged and sold in conformity with legal requirements but the Plaintiff learned, after the purchase, that such was in violation of the FDA's clear requirements to place nutrition labels on its food products. The FDA states that the Defendant's failure to place nutrition labels to its bakery products has misled consumers by marketing misbranded food, the Plaintiff contends. Fresh Market, Inc. is an American chain of gourmet supermarkets based in Greensboro, North Carolina, but incorporated under the laws of the State of Delaware. The Company operates at last report 176 stores in 24 states, located in the Southeast, Midwest, Mid-Atlantic and Northeast.[BN] The Plaintiff is represented by: Charles M. Thompson, Esq. 2539 John Hawkins Pkwy., Suite 101-149 Hoover, AL 35244 Telephone: (205) 995-0068 Facsimile: (866) 610-1650 E-mail: cmtlaw@aol.com FTG AEROSPACE: Blumenthal Nordrehaug Files Securities Class Action ------------------------------------------------------------------ The Los Angeles employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action complaint alleging that FTG Aerospace Inc., failed to provide their California employees with meal and rest periods as required by California law. The FTG Aerospace Inc. class action lawsuit, Case No. 20STCV28767, is currently pending in the Los Angeles Superior Court of the State of California. A copy of the Complaint can be read here. According to the lawsuit filed in the Los Angeles Superior Court, FTG Aerospace Inc. allegedly (a) failed to pay minimum wages, (b) failed to pay overtime wages, (c) failed to properly record and provide legally required meal and rest periods, (d) failed to provide PLAINTIFF accurate itemized wage statements, and (e) failure to provide wages when due, all in violation of the applicable Labor Code sections listed in Labor Code Sections Sec 201, 202, 203, 226, 226.7, 510, 512, 1194, 1197, 1197.1, 2802, and the applicable Wage Order(s), and thereby gives rise to civil penalties as a result of such alleged conduct. The complaint further alleges FTG Aerospace Inc. committed acts of unfair competition in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code Sec 17200, et seq. (the "UCL"), by engaging in a company-wide policy and procedure which failed to accurately calculate and record the correct overtime rate for the overtime worked by PLAINTIFF and other CALIFORNIA CLASS Members. As a result of DEFENDANT's intentional disregard of the obligation to meet this burden, DEFENDANT allegedly failed to properly calculate and/or pay all required compensation for work performed by the members of the CALIFORNIA CLASS and violated the California Labor Code. If you would like to know more about the FTG Aerospace Inc. lawsuit, please contact Attorney Nicholas J. De Blouw by calling (800) 568-8020. Blumenthal Nordrehaug Bhowmik De Blouw LLP is an employment law firm with offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside and Chicago that dedicates its practice to helping employees, investors and consumers fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. If you need help in collecting unpaid overtime wages, unpaid commissions, being wrongfully terminated from work, and other employment law claims, contact one of their attorneys. [GN] FULL SOURCE: Graciano Sues in S.D. New York Over Violation of ADA ----------------------------------------------------------------- A class action lawsuit has been filed against Full Source, LLC. The case is styled as Sandy Graciano, on behalf of himself and all other persons similarly situated v. Full Source, LLC, Case No. 1:20-cv-07481 (S.D.N.Y., Sept. 11, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Full Source is a privately-held company headquartered in Jacksonville, Florida. Full Source sells affordable safety gear, casual and work wear apparel.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com GALLS LLC: Graciano Sues in S.D. New York Alleging ADA Violation ---------------------------------------------------------------- A class action lawsuit has been filed against Galls, LLC. The case is styled as Sandy Graciano, on behalf of himself and all other persons similarly situated v. Galls, LLC, Case No. 1:20-cv-07543 (S.D.N.Y., Sept. 14, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Galls, LLC, distributes public safety equipment and apparels. The Company offers apparels including shirts, pants, shorts, jackets, gloves, workouts, undergarments, jumpsuits, and accessories, as well as body armors, handcuffs, and restraints.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com GENERAL MOTORS: Faces Class Action Over Chevrolet Camaro Starter ---------------------------------------------------------------- Sam Mceachern, writing for GM Authority, reports that a new class-action lawsuit has been filed over alleged recurring problems with the starter motor in the 2010-present Chevrolet Camaro. The suit, which was filed in U.S. District Court in the state of Delaware, alleges General Motors "knowingly sold Chevy Camaro models without disclosing that the vehicles are plagued by a starter and/or heat shield defect." The suit claims the 2010-present Chevrolet Camaro has inadequate heat shields that fail to protect the starter motor from engine bay heat. The additional heat allegedly puts resistance on the electrical conductors inside the motor, which forces it to use more power than usual to start the engine. This, in turn, can allegedly wear out the motor prematurely. It also says the starter motor issues will typically manifest in hot weather or directly after being driven and that the heating issues can damage the vehicle's wiring and battery as well. The 40-page suit also says GM has consistently refused to fix the starter motors under warranty, instead forcing customers to pay hundreds or thousands of dollars out-of-pocket for the repairs. "GM's failure to disclose the starter defect at the time of purchase is material because no reasonable consumer expects to spend hundreds, if not thousands, of dollars to repair or replace damaged vehicle components that the manufacturer knows will fail well before the expected useful life of the component and damage other components of the vehicle as well," the 40-page complaint reads. "Had GM disclosed the starter defect, the plaintiff and class members would not have purchased the class vehicles or would have paid less for them." A number of similar owner complaints can be easily located on Chevrolet Camaro enthusiast forums around the web. One Camaro6.com forum user, JReagle56, previously authored a post describing their experiences with their personal Camaro's starter. "Had the issue pop up 3 times so far since brand new," the post reads. "Once right after I got the car. It was a hot August day driving around breaking in the engine, tranny, rear axle and brakes. Returned home and parked the car in garage; had to go right back out a few minutes later; slow turnover, pause and it started. Then again this year. A 2 hr drive to the beach, really hot day, waiting in line to park, stalled car, restart and the starter just barely turned over, started on the 2nd rotation, if a 3rd was needed I don't think it would have done it. Seems like when the starter is heat soaked something goes wrong." This class action is open to any 2010-present Chevrolet Camaro owners or lessees who have experienced these same issues with the vehicle's starter motor and battery. [GN] GLIK COMPANY: Faces Jaquez Suit Over Blind-Inaccessible Web Site ---------------------------------------------------------------- RAMON JAQUEZ, on behalf of himself and all others similarly situated v. THE GLIK COMPANY, Case No. 1:20-cv-07400-KPF (S.D.N.Y., Sept. 10, 2020), arises from the Defendant's alleged violation of the Americans with Disabilities Act and the New York City Human Rights Law. The Plaintiff is a blind, visually-impaired handicapped person, and a member of a protected class of individuals under the ADA. The Plaintiff asserts that when he visited the Defendant's website, http://www.gliks.com,in July 2020 with the intent of browsing and potentially making a purchase, he encountered multiple barriers that denied him access similar to that of a sighted individual despite using a popular screen reading software called NonVisual Desktop Access. The Defendant's website allegedly lack of a variety of features and accommodations which effectively barred him from being able to enjoy the privileges and benefits of the Defendant's public accommodation. As a result of the Defendant's failure to maintain a website that is accessible to legally blind and visually-impaired people, the Defendant allegedly engaged in acts of intentional discrimination. The Glik Company is a clothing company that owns and operates the website.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 701 Cookman Ave., Suite 300 Asbury Park, NJ 07712 Tel: (732) 695-3282 Fax: (732) 298-6256 Email: Yzelman@MarcusZelman.com GOOGLE INC: Faces Class Action Over Crypto Ad Ban ------------------------------------------------- Samuel Haig, writing for Coin Telegraph, reports that Andrew Hamilton, a lawyer with a background in computer science, is spearheading a class-action lawsuit accusing the social media and search giants Google, Facebook, Twitter, and YouTube for cartel-like behavior intended to kill off the burgeoning cryptocurrency sector. The suit, which has already amassed more than $600 million in claims, accuses the firms of acting as a cartel in launching a coordinated attack designed to crush competition emerging from the nascent virtual currency sector in 2018 -- when the social platforms enacted sweeping bans against the promotion of crypto assets and initial coin offerings. After two-and-a-half years of preparation, Hamilton told Cointelegraph that he is ready to file proceedings within the 48 hours, highlighting that signups from claimants are set to close on Aug. 21. Hamilton believes that the total value of claims against the firms could grow to as much as $300 billion. Hamilton is the CEO of JPB Liberty -- the legal firm that plans to bring the no-win-no-fee suit to court in Hamilton's home country of Australia. Speaking to Cointelegraph, Hamilton recounted immediately recognizing the crypto ad ban as anti-competitive when it was enacted, drawing from his background in competition law. After conducting extensive research into Australian competition law, Hamilton determined that the social media giants were acting as a cartel and it would be "pretty easy to prove it." Hamilton wrote to the Australian Competition and Consumer Commission and decided to start his own litigation funding company to back the case after the watchdog did not respond to his concerns. In addition to Hamilton volunteering his labor, the suit has seen "a major law firm" contribute "hundreds of hours off the clock" -- with Hamilton emphasizing that "lawyers don't work for free very much unless they really believe in something." Hamilton asserts that the wide-reaching crypto ad ban "completely killed off the [initial coin offering] ICO market." The lawyer described ICOs as offering "a new way for startup companies in the tech space to raise money" that bypasses the cumbersome regulated fundraising processes associated with the tech industry. "This is a very big threat to Facebook and Google strategically, because, instead of having startups that have to fundraise all the way through and end up getting bought by Facebook or Google or someone before they become a competitive threat, [. . .] ICOs front-loaded the investment," he said. "Basically, people could raise all the money they were ever going to need to bring their product to fruition. [. . .] It actually meant that people could focus on development and improving technology, [. . .] rather than spending all their time fundraising," Hamilton added. Hamilton asserts that the impacts of the crypto ad ban were far-reaching, recounting that numerous claimants were left unable to secure investment after losing their ability to advertise on the internet's largest platforms. 'Absolute hypocrisy' In light of Facebook's Libra stablecoin project, Hamilton describes the firm's strategy of "banning all of its competitors" from advertising on its platform "while secretly working on its own cryptocurrency" as "absolute hypocrisy" in clear violation of competition law. Similarly, Hamilton highlights Twitter's move to ban advertising from crypto firms while allowing Jack Dorsey's financial firm Square to promote its crypto-friendly Cash App on the platform. "This was an appalling attack on competitors. [. . .] At the same time as Twitter was banning crypto ads, Jack Dorsey's Square's Cash App was launching into crypto and became the number one app. They crushed their competitors and then provided little exceptions to the ad ban for their mates." Further, search engine optimization and online marketing professionals targeting the crypto niche found their accounts suspended -- with Hamilton sharing the story of one SEO specialist whose Google Adwords account is still subject to a lifetime ban due to his work promoting crypto-focused clients at the time. "Anyone who was in the Web 3.0 space and competing with Facebook and Google were crushed by this," added Hamilton. JPB Liberty is currently seeking funding from institutional litigation funders. If successful claimants will receive 70% of any future settlement, while 30% will go to the suit's funders. [GN] GS VICTOR: Web Site Not Accessible to Blind Users, Katt Claims -------------------------------------------------------------- DAVID KATT, on behalf of himself and all others similarly situated v. GS VICTOR, LP, Case No. 1:20-cv-02668-NRN (D. Colo., Sept. 1, 2020), arises from the Defendant's alleged violation of the Americans with Disabilities Act by failing to make its Web site available in a manner compatible with computer screen reader programs used by blind and visually impaired users. The complaint alleges that the Plaintiff and other visually impaired persons have been and are still being denied equal access to the Defendant's Residential Complex and Leasing Office and the numerous services and benefits offered to the public through its Web site, http://www.victordenver.com/,due to the Defendant's failure and refusal to remove access barriers to its Web site. GS Victor, LP operates the GS VICTOR, LP Residential Complex and Leasing Office, as well as its Web site, and offers it to the public. The Web site offers features that should allow all consumers to access the facilities and services that the Company offers in its physical locations. The facilities and services offered by the Company through its Web site include: available residences, learn about apartment designs, contact information, and related services.[BN] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS & ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: Ari@MarcusZelman.com GUAM: DOJ Wants H-2B Visa Class Action Dismissed ------------------------------------------------ The Guam Daily Post reports that the U.S. Department of Justice has moved to dismiss the Guam Contractors Association's class action amended complaint over H-2B visa petitions arguing the plaintiffs can no longer present the court with any reasonable claims. Attorneys for the DOJ Office of Immigration Litigation filed the dismissal motion in the District Court of Guam and contend none of the plaintiffs can establish standing to continue with the litigation. In 2016, the Guam Contractors Association and nearly a dozen businesses sued the federal government for denying nearly all petitions to hire H-2B workers for the island, when H-2B petitions under the same set of facts were approved in the past. Employers were able to get approvals for their H-2B petitions again in 2018. According to the DOJ, a number of the concerns of denials are now a moot issue after Congress enacted and reauthorized provisions of the National Defense Authorization Act that specifically exempted H-2B petitions filed by military contractors and sub-contractors from having to demonstrate the "temporary need" requirement. The U.S. government attorneys said none of the plaintiffs are "presently suffering any injury" and that U.S. Citizenship and Immigration Services did approve H-2B petitions in April and May. [GN] HDFC BANK: Pomerantz Law Files Securities Class Action ------------------------------------------------------ Pomerantz LLP announces that a class action lawsuit has been filed against HDFC Bank Limited ("HDFC or the "Company") (NASDAQ: HDFC) and certain of its officers. The class action, filed in United States District Court for the Eastern District of New York, and docketed under 20-cv-04140, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise, acquired HDFC Bank securities between July 31, 2019, and July 10, 2020, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Bank and certain of its top officials. If you are a shareholder who purchased HDFC securities during the class period, you have until November 2, 2020, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. HDFC Bank was founded in 1994 and is based in Mumbai, India. The Bank provides various banking and financial services to individuals and businesses in India, Bahrain, Hong Kong, and Dubai. HDFC Bank operates in Treasury, Retail Banking, Wholesale Banking, Other Banking Business, and Unallocated segments, offering, among other services, various types of loans to millions of its retail borrowers, including personal and vehicle financing loans. Revenues generated from HDFC Bank's auto and commercial vehicle loans are reported as part of the Bank's Retail Banking segment. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Bank's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) HDFC Bank had inadequate disclosure controls and procedures and internal control over financial reporting; (ii) as a result, the Bank maintained improper lending practices in its vehicle-financing operations; (iii) accordingly, earnings generated from the Bank's vehicle-financing operations were unsustainable; (iv) all the foregoing, once revealed, was foreseeably likely to have a material negative impact on the Bank's financial condition and reputation; and (v) as a result, the Bank's public statements were materially false and misleading at all relevant times. On July 13, 2020, during pre-market hours, The Economic Times published an article titled "HDFC Bank probes lending practices at vehicle unit." That article reported that HDFC Bank had "conducted a probe into allegations of improper lending practices and conflicts of interests in its vehicle-financing operations involving the unit's former head." On this news, HDFC Bank's American Depositary Share ("ADS") price fell $1.37 per share, or 2.83%, to close at $47.02 per share on July 13, 2020. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. Robert S. Willoughby Pomerantz LLP E-mail: rswilloughby@pomlaw.com [GN] HEARST MAGAZINE: S.D. California Dismisses Arnold Consumer Suit --------------------------------------------------------------- The U.S. District Court for the Southern District of California issued an order granting the Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint in the case captioned FENELLA ARNOLD, KELLY NAKAI, and MICHELE RUPPERT, individually and on behalf of all others similarly situated v. HEARST MAGAZINE MEDIA, INC., a Delaware corporation; CDS GLOBAL, INC., an Iowa corporation; and DOES 1-50, inclusive, Case No. 19-cv-1969-WQH-MDD (S.D. Cal.). On September 10, 2019, Plaintiffs Fenella Arnold and Kelly Nakai filed a Class Action Complaint in the Superior Court for the State of California, County of San Diego, against Defendants Hearst Magazine Media, Inc. ("Hearst"), CDS Global, Inc. ("CDS"), and Does 1 through 50, inclusive. (ECF No. 1-2). On October 10, 2019, the Defendants removed the action to this Court. On December 9, 2019, Plaintiffs Fenella Arnold, Kelly Nakai, and Michele Ruppert filed the First Amended Complaint ("FAC"). In the FAC, the Plaintiffs allege that Defendant Hearst is "one of the largest magazine publishers in the world." The Plaintiffs allege that Hearst publishes approximately two dozen magazines in the United States, including Food Network Magazine, Cosmopolitan, Good Housekeeping, Woman's Day, Country Living, HGTV Magazine, and Car & Driver. The Plaintiffs allege that Defendant CDS is "the largest magazine fulfillment house in the United States." The Plaintiffs allege that CDS is a wholly-owned subsidiary of Hearst that provides services to Hearst, including "assisting with subscriptions, billing, collection, and/or other account services." In granting the Motion, District Judge William Q. Hayes opines that Plaintiff Nakai fails to state facts that support a reasonable inference that the Defendants violated Section 1716 of the California Civil Code and are uncontroverted by the exhibits attached to the FAC. The Court has concluded that the Plaintiffs fail to state claims for violations of the False Advertising Law, California's Consumer Legal Remedies Act, and Section 1716. A full-text copy of the District Court's June 25, 2020 Order is available at https://tinyurl.com/y9xlpt2a from Leagle.com. HONEYWELL INT'L: Schall Law Alerts of Class Action Filing --------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class-action lawsuit against Honeywell International Inc. (NYSE:HON) for violations of 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between February 9, 2018 and October 19, 2018 inclusive (the ''Class Period'') are encouraged to contact the firm before September 4, 2020. If you are a shareholder who suffered a loss, click here to participate. We also encourage you to contact Brian Schall of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Honeywell faced a greater level of Bendix asbestos-related liability than it initially disclosed. The Company also engaged in improper accounting practices related to the Bendix liability. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Honeywell, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. [GN] HOTELS.COM LP: San Antonio Files Cert. Petition to Supreme Court ---------------------------------------------------------------- Plaintiff City of San Antonio, Texas, filed with the United States Supreme Court a petition for a writ of certiorari in the matter styled CITY OF SAN ANTONIO, TEXAS, ON BEHALF OF ITSELF AND ALL OTHER SIMILARLY SITUATED TEXAS MUNICIPALITIES, PETITIONER v. HOTELS.COM, L.P., ET AL., RESPONDENT, Case No. 20-334. Response is due on October 14, 2020. Petitioner City of San Antonio, Texas petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in the case captioned CITY OF SAN ANTONIO, TEXAS, On Behalf Of Itself And All Other Similarly Situated Texas Municipalities, Plaintiff-Appellant v. HOTELS.COM, L.P.; HOTWIRE, INCORPORATED; TRIP NETWORK, INCORPORATED, doing business as Cheaptickets.com; EXPEDIA, INCORPORATED; INTERNETWORK PUBLISHING CORPORATION, doing business as Lodging.Com; ORBITZ, L.L.C.; PRICELINE.COM, INCORPORATED; SITE59.COM, L.L.C.; TRAVELOCITY.COM, L.P.; TRAVELWEB, L.L.C.; TRAVELNOW.COM, INCORPORATED, Defendants-Appellees, Case No. 19-50701. The question presented is: Whether, as the Fifth Circuit alone has held, district courts "lack[] discretion to deny or reduce" appellate costs deemed "taxable" in district court under Fed. R. App. P. 39(e). As previously reported in the Class Action Reporter on Sept. 8, 2020, the United States Court of Appeals, Fifth Circuit, issued an Opinion affirming the District Court's judgment Entering Bill of Costs against the Plaintiffs in the case. This appeal represents the latest installment in a long-running legal dispute pitting a class of 173 Texas municipalities against various online travel companies (OTCs) such as Hotels.com, Hotwire, Orbitz, and Travelocity. The dispute began in 2006 when the City of San Antonio filed a putative class action lawsuit alleging the service fees charged by OTCs for facilitating hotel reservations are part of the "cost of occupancy," and, therefore, subject to the municipalities' hotel tax ordinances. The municipalities sought money damages for unpaid and underpaid hotel occupancy taxes, as well as a declaratory judgment that OTCs must collect and remit hotel occupancy taxes based on the amount collected for the room rate and service fee combined, i.e., the "retail rate." Following entry of final judgment, the OTCs filed a bill of costs in the district court seeking $2,353,294.58. In addition to the $905.60 sought in the Second Circuit and various other court fees and copying costs, the bill of costs included $2,008,359.00 for post-judgment interest and premiums paid for the supersedeas bonds required to secure a stay of execution and preserve rights pending appeal. San Antonio objected, urging the district court to refuse to tax, or at least substantially reduce, the appeal bond premiums sought by the OTCs. The district court noted that San Antonio made some persuasive arguments but, relying on In re Sioux Ltd., Sec. Litig., No. 87-6167, 1991 WL 182578 (5th Cir. Mar. 4, 1991), the court concluded that it lacked discretion to reduce taxation of the bond premiums. The district court entered a bill of costs taxing $2,226,724.37 against San Antonio. The City timely appealed the district court bill of costs taxing $2,226,724.37 against it. The Federal Rules of Appellate Procedure provide a framework for allocating appellate litigation costs between parties. For example, if the judgment below is reversed, the costs of printing appellate briefs are, by default, taxed against the appellees. The rules also provide that certain other appeal costs, including premiums paid for bonds used to stay a money judgment and secure the right to appeal, are taxable in the district court. San Antonio asserts that even if the district court was authorized to grant the OTCs' request for Rule 39(e) appeal costs, the award should nevertheless be vacated because the district court applied the wrong legal standard, thinking it lacked discretion to deny or reduce the award when in reality it could have done so. As San Antonio points out, most other circuits to have considered this issue have held or at least implied that a district court retains discretion to deny or reduce a Rule 39(e) award, regardless of whether the district court's authority to grant the award arises from one of the default rules in 39(a)(1)-(3) or from an appellate court's mandate in a 39(a)(4) case.[BN] Plaintiff-Petitioner City of San Antonio, Texas, On Behalf of Itself and All Other Similarly Situated Texas Municipalities, is represented by: Daniel L. Geyser, Esq. ALEXANDER DUBOSE & JEFFERSON LLP Walnut Glen Tower 8144 Walnut Hill Lane, Ste. 1000 Dallas, TX 75231 Telephone: (214) 369-2358 E-mail: dgeyser@adjtlaw.com IMPERIAL INDUSTRIAL: Monegro Claims Website Not Blind-Friendly -------------------------------------------------------------- Frankie Monegro, individually and on behalf of all other similarly situated visually-impaired individuals, Plaintiff, v. Imperial Industrial Supply Co., Defendant, Case No. 20-cv-05920 (S.D. N.Y., July 15, 2020), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act, New York State Human Rights Law and New York City Human Rights Law. Defendant is a tool and equipment retailer that owns and operates www.maxtool.com. It offers products and services for online sale and general delivery to the public. Monegro is legally blind and claims that said website cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: David Paul Force, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Ext. 107 Fax: (201) 282-6501 Email: dforce@steinsakslegal.com INTACT INSURANCE: Hair Salon Sues Over Denied Insurance Coverage ---------------------------------------------------------------- Keith Fraser, writing for Vancouver Sun, reports that a hair salon that has eight outlets in B.C. has filed a class-action lawsuit alleging that insurance companies are wrongly denying business interruption insurance coverage for closures and restrictions resulting from the COVID-19 pandemic. Great Clips is the representative plaintiff in a class-action lawsuit filed in B.C. Supreme Court against Canada's major insurance companies. The plaintiffs claim that 100,000 businesses across the country, including more than 10,000 in B.C., have been adversely impacted by the position being taken by the insurance companies. The hair salon says it signed a contract with the Intact Insurance Company for a business interruption insurance policy that featured coverage for lost business income over a prescribed period of time. It says that after B.C.'s state of emergency was declared in March and restrictions were imposed by health authorities, it was forced to interrupt its regular business operations for weeks. The hair salon contacted the insurance firm and submitted a claim for its business losses, but in May received word that the claim had been denied on the grounds that the requisite losses or damages to insured property had not been proven, according to the lawsuit. The thousands of class members have suffered "significant loss" as a result of the interruptions brought about by the pandemic, it says. "When they began making claims on the defendants for support under their business interruption insurance policies, they were surprised and dismayed to see their claims uniformly denied." The insurance companies collected millions of dollars in insurance premiums from class members over a period of years or decades "only to deny them coverage when they needed it most," adds the lawsuit. The typical business interruption policy covers all perils or risks unless the perils are specifically excluded and the exclusions typically do not prevent coverage for pandemics, says the class-action. "None of them specially exclude contamination or risk of contamination by pandemics. None of the class members' policy language specifically excludes circumstances such as COVID-19 or its resulting orders, notices, advisories, directives and guidelines." The suit is seeking a certification of a class-action and a declaration that the defendants breached the terms of their contracts and acted in "bad faith". Punitive and aggravated damages of $100 million are being sought, but Tony Merchant, a lawyer for the plaintiffs, said on Aug. 10 that the figure for total damages could run into the billions of dollars. "These claims that we're advancing in Canada and similar claims that are being advanced in the United States and Europe could be absolutely huge," said Merchant. An Intact spokeswoman sent an email response to questions from Postmedia: "We are aware of the application for authorization for a class-action lawsuit filed against a number of insurers, including Intact. As this is potentially in litigation, we cannot provide further details at this time. We continue to provide support and relief to our customers wherever we can." Aaron Sutherland, a vice-president of the Insurance Bureau of Canada, said that he couldn't comment on the specifics in the lawsuit. But he said that insurance coverage for pandemics is typically excluded in most business policies unless it's specifically sought and that business interruption policies typically require physical damage to be proven for a claim to be made out. There has been no physical damage to businesses under COVID-19, he said. The class action lawsuit was brought by Keith Chalmers, who owns eight Great Clips hair salons in B.C., not Great Clips itself. [GN] IRA L. GROSSMAN: Underpays Veterinary Technicians, Cordy Claims --------------------------------------------------------------- TAYLOR CORDY, individually and on behalf of herself and others similarly situated v. IRA L. GROSSMAN DDVM, PLC d/b/a PALMS WEST VETERINARY HOSP., a Florida Limited Liability Company, IRA GROSSMAN, individually, and GLEN GROSSMAN, individually, Case No. 9:20-cv-81580-WPD (S.D. Fla., Sept. 10, 2020), is brought against the Defendants for violation of the Fair Labor Standards Act, including improper payment of wages. The Plaintiff worked for the Defendants as a non-exempt veterinary technician in February 2016 until August 2020. The Plaintiff alleges that despite working in excess of 40 hours per week, the Defendants failed to compensate him at a rate of one and one-half times his regular rate of pay for all hours worked in excess of 40 hours in a single workweek at various times throughout the duration of his employment with the Defendants. Additionally, the Defendants failed to pay the Plaintiff at least minimum wage in one or more workweeks, and failed to maintain proper time records as mandated by the FLSA. Ira L. Grossman DDVM, PLC, operates a 24 hour emergency veterinary hospital. Ira Grossman owns and operates Palms West. Glen Grossman exercised significant operational control over Palms West, controlled the finances, and regularly directed the work of the employees of Palms West.[BN] The Plaintiff is represented by: Chanelle J. Ventura, Esq. MORGAN & MORGAN, P.A. 8151 Peters Road, Suite 4000 Plantation, FL 33324 Tel: (954) 318-0268 Fax: (954) 333-3515 Email: CVentura@forthepeople.com ITO EN NORTH AMERICA: Faces Nelson Class Suit in S.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against ITO EN (North America) Inc. The case is styled as Devynn Nelson, individually and on behalf of all others similarly situated v. ITO EN (North America) Inc., Case No. 7:20-cv-07496 (S.D.N.Y., Sept. 12, 2020). The nature of suit is stated as Other Fraud. ITO EN (North America) INC., a subsidiary of ITO EN LTD., does business in the beverage industry.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Boulevard, Suite 311 Great Neck, NY 11024 Phone: (516) 303-0552 Fax: (516) 234-7800 Email: Spencer@spencersheehan.com JOHN C. HEATH: Boyd Sues in D. Utah Alleging Violation of TCPA -------------------------------------------------------------- A class action lawsuit has been filed against John C. Heath Attorney at Law. The case is styled as Daniel Boyd, on behalf of himself and others similarly situated v. John C. Heath Attorney at Law doing business as: Lexington Law Firm, Case No. 2:20-cv-00636-CMR (D. Utah, Sept. 11, 2020). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act. Lexington Law provides credit repair services to consumers.[BN] The Plaintiff is represented by: Curtis R. Hussey, Esq. HUSSEY LAW FIRM LLC 82 Plantation Pointe Drive, #288 Fairhope, AL 36532 Phone: (251) 401-4882 Email: gulfcoastadr@gmail.com KENZO PARIS: Cota Sues in S.D. California Alleging ADA Violation ---------------------------------------------------------------- A class action lawsuit has been filed against Kenzo Paris USA LLC, et al. The case is styled as Julissa Cota, individually and on behalf of herself and all others similarly situated v. Kenzo Paris USA LLC, a Delaware corporation; Does 1-10, inclusive; Case No. 3:20-cv-01796-BEN-LL (S.D. Cal., Sept. 11, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kenzo (stylized as KENZO) is a French luxury fashion house founded in 1970 by Japanese designer Kenzo Takada and owned by parent company LVMH.[BN] The Plaintiff is represented by: Thiago M. Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard, 12th Floor Los Angeles, CA 90010 Phone: (213) 381-9988 Fax: (213) 381-9989 Email: thiago@wilshirelawfirm.com KITCHEN KAPERS: Fuchs Sues Over Blind-inaccessible Website ---------------------------------------------------------- Michelle Tenzer-Fuchs, individually and on behalf of all other similarly situated visually-impaired individuals, Plaintiff, v. Kitchen Kapers, Inc., Defendant, Case No. 20-cv-03917 (E.D. N.Y., August 17, 2020), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act, New York State Human Rights Law and New York City Human Rights Law. Kitchen Kapers owns and operates www.kitchenkapers.com, an online retailer specializing in developing, producing and selling kitchen products including gourmet cookware, bakeware, kitchen knives, as well as new kitchen gadgets, small appliances and cookbooks. Fuchs is legally blind and claims that said website cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC 105-13 Metropolitan Avenue Forest Hills, NY 11375 Tel: (718) 971-9474 Email: Jonathan@ShalomLawNY.com KM INDUSTRIAL: Ninth Circuit Appeal Filed in Harris Labor Suit -------------------------------------------------------------- Defendant KM Industrial, Inc., filed an appeal from a court ruling entered in the lawsuit entitled Levone Harris v. KM Industrial, Inc., Case No. 3:19-cv-07801-WHO, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter on July 17, 2020, Judge William H. Orrick of the U.S. District Court for the Northern District of California granted Harris motion to remand the case to the Superior Court of California, County of Alameda. Harris was employed by KMI as a non-exempt, hourly employee from January 2017 until July 2019. He alleges violations of the Fair Credit Reporting Act ("FCRA"), California Labor Code, and California unfair competition law. The appellate case is captioned as Levone Harris v. KM Industrial, Inc., Case No. 20-16767, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant KM Industrial, Inc.'s opening brief is due on September 24, 2020; and -- Appellee Levone Harris' answering brief is due on September 24, 2020.[BN] Plaintiff-Appellee LEVONE HARRIS, on behalf of himself and all others similarly situated, is represented by: William Matthew Pao, Esq. Chaim Shaun Setareh, Esq. SETAREH LAW GROUP 315 S. Beverly Drive, Suite 315 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Email: william@setarehlaw.com shaun@setarehlaw.com Defendant-Appellant KM INDUSTRIAL, INC., a Delaware corporation, is represented by: Megan Marie Cooney, Esq. GIBSON, DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, CA 92612 Telephone: (949) 451-3800 Facsimile: (949) 451-4220 E-mail: mcooney@gibsondunn.com - and - Carlos Jimenez, Esq. LITTLER MENDELSON 633 West 5th Street, 63rd Floor Los Angeles, CA 90071 Telephone: (213) 443-4300 E-mail: cajimenez@littler.com - and - Jordan Mikhail Rex, Esq. Katherine V.A. Smith, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7122 E-mail: jrex@gibsondunn.com ksmith@gibsondunn.com KRAFT HEINZ: Faces Suit Over Maxwell House Coffee's Deceptive Ad ----------------------------------------------------------------- Keller and Heckman LLP, in an article for The National Law Review, reports that on July 31, 2020, Plaintiff, on behalf of a proposed class of consumers, filed a class-action lawsuit against Defendant Kraft Heinz Company alleging that Defendant had falsely and deceptively advertised its Maxwell House ground coffee products by "grossly" exaggerating the number of cups of coffee that could be made from them. The representations at issue covered 38 varieties of coffee products and were made in each case on the front packaging of the products. Based on the products' instructions to use one tablespoon of ground coffee to make one 6 fluid-ounce cup of coffee, and the fact that one tablespoon of ground coffee weighed five grams, Plaintiff calculated that Defendant's products could only produce between 66% and 73% of the represented number of cups of coffee based on the net quantity of contents of the product. The example provided in the complaint was that the product claimed to make 90 cups of coffee from a 10.5 ounce (297 gram) tin but at 5 grams per tablespoon the contents would only yield around 59 cups of coffee. Plaintiff alleged that these misrepresentations allowed Defendant to charge more for the coffee products and induced consumers to purchase them, and that it would be unreasonable to expect a consumer to calculate how many cups of the coffee the products could make. Plaintiff's complaint is similar to a class-action lawsuit filed in May 2020 which alleged that Folgers Coffee Company had inflated the number of cups of coffee that could be produced from its products. Keller and Heckman will continue to monitor developments in this case and trends in food class-action litigation. [GN] KRAPILS: Faces Hankes FLSA Suit Over Improper Overtime Wages ------------------------------------------------------------ SCOTT HANKES and EVAN THOMPSON, individually and as Class Representatives v. KRAPILS, THE GREAT STEAK, INC., RON MUERSCH, SR., individually, RON MUERSCH, JR., individually, and TED MUERSCH, individually, Case No. 1:20-cv-05328 (N.D. Ill., Sept. 10, 2020), is brought against the Defendants for their alleged failure to properly pay overtime wages in violation of the Fair Labor Standards Act and the Illinois Minimum Wage Law. The Plaintiffs, who were Defendants' kitchen employees during the time period from August 1, 2017, through the present, allege that the Defendants created schemes to defraud the kitchen employees of overtime pay, by manipulating the recorded work hours of the kitchen employees, not reflecting the hours they worked on the paystub, and delaying their overtime pay as unacknowledged "comp time." Krapils, The Great Steak, Inc. operates a restaurant. Ted Muersch is the President of Krapils. Ron Muersch, Sr. is the manager. Ron Muersch, Jr. is the general manager.[BN] The Plaintiffs are represented by: Jac A. cotiguala, Esq. LAW OFFICES OF JAC A. COTIGUALA 431 South Dearbon St., Suite 606 Chicago, IL 60605 Tel: (312) 939-2100 Email: jac@wageandhour.com - and – Ryan F. Stephan, Esq. James B. Zouras, Esq. Anna M. Ceragioli, Esq. STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, IL 60606 Tel: (312) 233-1550 Email: rstephan@stephanzouras.com jzouras@steohanzouras.com aceragioli@stephanzouras.com LAB TEC COSMETICS: Diaz Sues Over Unpaid Overtime Pay Under FLSA ---------------------------------------------------------------- GREGORIO DIAZ, individually and on behalf of all others similarly situated, and MARIA SALGADO v. LAB TEC COSMETICS BY MARZENA, INC. and MARZENA SAVAS, individually, Case No. 1:20-cv-05326 (N.D. Ill., Sept. 10, 2020), arises from the Defendants' alleged unlawful pay practice, including failure to pay overtime wages, in violation of the Fair Labor Standards Act and the Illinois Minimum Wage Law. The Plaintiffs allege that throughout their employment with the Defendants, they were denied overtime pay at one and one-half times their regular rate of pay for all hours they worked in excess of 40 hours per week. Instead, they were only paid regular hourly rate for the 60 hours they worked per week. The lawsuit also asserts claims under the Biometric Information Privacy Act for the Defendants' alleged illegal collection of biometric data. The Plaintiffs allege that the Defendants failed to maintain or publicize information about its biometric practices or policies; failed to provide Plaintiffs with written notice and obtain prior written consent from Plaintiffs regarding their biometric information collection; and failed to inform Plaintiffs of any biometric retention policy developed by the Defendants. Lab Tec Cosmetics by Marzena, Inc. is a personal care contract manufacturer ad private label company. Marzena Savas is the President and CEO of Lab Tec Cosmetics. [BN] The Plaintiffs are represented by: Alejandro Caffarelli, Esq. Madeline K. Engel, Esq. CAFFARELLI & ASSOCIATES LTD. 224 N. Michigan Ave., Ste. 300 Chicago, IL 60604 Tel: (312) 763-6880 Email: acaffarelli@cafarelli.com mengel@caffarelli.com LLOYD'S LONDON: Tripwire Files Class Suit in M.D. Pennsylvania -------------------------------------------------------------- A class action lawsuit has been filed against Certain Underwriters at LLoyd's, London Trading as Syndicates WRB 1967 and KLN 0510. The case is styled as Tripwire Operations Group, LLC, on behalf of itself and all others similarly situated v. Certain Underwriters at LLoyd's, London Trading as Syndicates WRB 1967 and KLN 0510, Case No. 1:20-cv-01672-YK (M.D. Pa., Sept. 14, 2020). The nature of suit is stated as Insurance. Lloyd's of London, generally known simply as Lloyd's, is an insurance and reinsurance market located in London, United Kingdom.[BN] The Plaintiff is represented by: Gary F. Lynch, Esq. Kelly K. Iverson, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Phone: (412) 322-9243 Fax: (412) 231-0246 Email: glynch@carlsonlynch.com kiverson@carlsonlynch.com LVNV FUNDING: Court Narrows Claims in DeAngelo FDCPA Class Suit --------------------------------------------------------------- The U.S. District Court for the District of New Jersey issued an Opinion granting in part and denying in part the Defendants' Motion to Dismiss in the case captioned JOSEPH DEANGELO v. LVNV FUNDING LLC, RESURGENT CAPITAL SERVICES L.P., SHERMAN FINANCIAL GROUP LLC, SHERMAN CAPITAL MARKETS LLC, SHERMAN ORIGINATOR III LLC, SHERMAN ACQUIITION L.P., SHERMAN ACQUISITION OO LP, SHERMAN ACQUISITION II GENERAL PARTNERSHIP LLC, SHERMAN CAPITAL, LLC, ALEGIS GROUP LLC, BENJAMIN W. NAVARRO, LESLIE G. GUTIERREZ, SCOTT E. SILVER, KEVIN P. BRANIGAN, ROBERT A. RODERICK and KENNETT KENDALL, Case No. 1:18-cv-15689-NLH-KMW (D.N.J.). The Plaintiff filed a class action complaint and demand for a jury trial in New Jersey Superior Court, Law Division, in Gloucester County on September 28, 2018. On November 5, 2018, the Defendants removed this case to the District of New Jersey. On September 23, 2019, the Plaintiff filed an Amended Complaint. The Defendants moved to dismiss this Complaint on November 8, 2019. The Plaintiff's complaint includes a number of other entities created under Delaware law, referred to as the "Sherman Organization Defendants." The Plaintiff contends that these entities are vicariously liable for the actions of LVNV Funding and Resurgent, collectively referred to as "LVNV." The Plaintiff has also included a number of individuals residing in South Carolina, known as the "Sherman Executive Defendants," and alleges they are also vicariously liable for LVNV's actions. The Plaintiff's Debt and Default Judgment In 1999, the Plaintiff purchased a car for his nephew. To do so, he incurred debt held by CitiFinancial, Inc. ("Citi"). In 2003, the Plaintiff restructured this debt to lower his payments. At some point, the Plaintiff defaulted on this loan. The Plaintiff alleges that his last payment on this loan was in 2004, at the latest. The car was repossessed in 2004. In July 2009, Resurgent brought an action against the Plaintiff in LVNV Funding's name in the Superior Court of Gloucester County, Law Division. This action was brought long after the four-year statute of limitations for contract actions had expired. In that proceeding, the Defendants alleged that Plaintiff owed a debt of $28,382.10. The Defendants further alleged that the Plaintiff had made two payments by money order in November 2008. The Defendants argued that these payments had the legal effect of restoring a cause of action for breach of contract. In this action, the Plaintiff alleges these payments were never made and, in essence, were a fabrication to create a false but colorable claim that the expired debt had been revived by voluntary payments by the Plaintiff after the expiration of the statute of limitations. A default judgment was entered in the Defendants' favor in the underlying action on February 8, 2010. According to the Plaintiff, he did not become aware of the state court action against him and the default judgment until October 5, 2017, when he received a Notice of Wage Application. On October 25, 2017, LVNV filed a Writ of Execution against Wages with the Superior Court of New Jersey. On February 5, 2018, the Plaintiff filed a motion to vacate this judgment, asserting that the debt was time-barred and that the suit was brought in violation of the Fair Debt Collection Practices Act. On May 10, 2018, LVNV sent DeAngelo a Notice of Application for Wage Execution. Together the 2017 Notice, the 2017 Writ, and this 2018 Notice are referred to as "the Garnishment Pleadings." On August 23, 2019, the Superior Court of New Jersey issued an opinion granting the Plaintiff's motion to vacate and sua sponte granting summary judgment in favor of the Plaintiff. The state court found both that the Plaintiff had not made the alleged payments by money order in November 2008 and, even if he had, the Defendants lacked a good faith basis to conclude their cause the action was still viable. The Current Matter The Plaintiff has since filed a class action complaint against the Defendants for their debt collection practices, which he refers to as "zombie" debt collection. According to the Plaintiff's Amended Complaint, the Defendants are engaged in part of a nationwide "epidemic haunting hundreds of thousands of individual consumers all across the country." The Plaintiff alleges that the Defendants routinely "attempt to collect on debts that have been settled, paid off, discharged in bankruptcy, or rendered uncollectible due to the statute of limitations." The Plaintiff has identified two classes of similarly situated persons in this case: (1) the legal action class and (2) the false representations class. The Plaintiff's complaint includes three counts: the First Cause of Action alleges violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Section 1692f(1) (against Defendants Resurgent and LVNV Funding) on behalf of the legal action class; the Second Cause of Action alleges violations of the FDCPA, 15 U.S.C SectionSection 1692e(2)(A), 1692e(5), and 1692f(1) (against Defendants Resurgent and LVNV Funding) on behalf of the false representations class; and the Third Cause of Action, which does not allege a separate statutory theory but rather alleges vicarious liability for the first two counts against all Sherman Executive Defendants and all Sherman Organization Defendants except Resurgent and LVNV Funding on behalf of both classes. Defendants Resurgent and LVNV Funding moved to dismiss this complaint on November 8, 2019. The Defendants allege, somewhat ironically, that the Plaintiff's claims are time-barred and that he has failed to state a claim under the FDCPA. Ruling The Court finds that the Plaintiff has failed to state a separate plausible claim under Section 1692e(5) in the Second Cause of Action. In sum, the Court will partially deny and partially grant the motion to dismiss as it relates to the Second Cause of Action. The Plaintiff's claims under Section 1692e(2)(A) will not be dismissed. The Plaintiff's claims under Section 1692e(5) and Section 1692f(1) will be dismissed. The Defendants argue that the Plaintiff's claims against the Sherman Organization Defendants and the Sherman Executive Defendants must be dismissed because the claims against LNVN, as the alleged agent, are time-barred and fail to make a claim. District Judge Noel L. Hillman notes that both parties have stated that the fate of this claim rests with the fate of the previous two. If the Plaintiff has failed to state a claim on either Causes of Action, it follows that no one can be held vicariously liable for that claim. Having denied in part the Defendants' motion to dismiss the First and Second Causes of Action, the Court will allow Count III to proceed in a manner consistent with this Opinion and accompanying Order. A full-text copy of the District Court's June 25, 2020 Opinion is available at https://tinyurl.com/y749kcrh from Leagle.com. LAURA ROSSI -- rossil@whiteandwilliams.com -- MICAHEL O. KASSAK -- kassakm@whiteandwilliams.com -- WHITE AND WILLIAMS LLP, in PHILADELPHIA, PENNSYLAVANIA, Attorneys for the Plaintiff. THOMAS MICHAEL BRODOS , MICHAEL RAY DARBEE -- mdarbee@blankrome.com -- STEPHEN M. ORLOFSKY -- orlofsky@blankrome.com -- BLANK ROME LLP, in PRINCETON, New Jersey, Attorneys for the Defendants. LVNV FUNDING: Shaughnessy Consumer Suit Moved to S.D. California ---------------------------------------------------------------- The case captioned as Grady Shaughnessy, individually and on behalf of all others similarly situated v. LVNV Funding, LLC, Resurgent Capital Services, LP, Case No. 37-02020-00028067-CU-MC-CTL, was removed from the Superior Court of the State of California for the County of San Diego to the U.S. District Court for the Southern District of California on Sept. 14, 2020. The District Court Clerk assigned Case No. 3:20-cv-01809-BEN-WVG to the proceeding. The nature of suit is stated as Consumer Credit. LVNV Funding LLC purchases portfolios of both domestic and international consumer debt.[BN] The Plaintiff is represented by: Jared M. Hartman, Esq. SEMNAR & HARTMAN LLP 41707 Winchester Road, Suite 201 Temecula, CA 92590 Phone: (619) 500-4187 Fax: (888) 819-8230 Email: jared@sandiegoconsumerattorneys.com The Defendants are represented by: Sean P. Flynn, Esq. GORDON REES SCULLT MANSUKHANI, LLP 5 Park Plaza, Suite 1100 Irvine, CA 92614 Phone: (949) 255-6950 Fax: (949) 474-2060 Email: sflynn@grsm.com MAGICJACK VOCALTEC: 11th Cir. Affirms Dismissal of Freedman Suit ---------------------------------------------------------------- The United States Court of Appeals for the Eleventh Circuit issued an Opinion affirming the District Court's Order granting Defendants' Motion to Dismiss in the case captioned ROBERT FREEDMAN, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. MAGICJACK VOCALTEC LTD., an Israeli corporation; DON C. BELL III, GERALD VENTO, DONALD A. BURNS, RICHARD HARRIS, YUEN WAH SING, ALAN HOWE, IZHAK GROSS, TALI YARON-ELDAR, Defendants-Appellees, Case No. 18-15303 (11th Cir.). The Honorable R. David Proctor affirmed the decision of the District Court. Judge Proctor, United States District Judge for the Northern District of Alabama, is sitting by designation. Plaintiff-Appellant Robert Freedman ("Freedman") is a shareholder of one of the Appellees, magicJack Vocaltec Ltd. ("magicJack"). Freedman filed a putative class action complaint against magicJack and eight individuals who were magicJack current or former directors. In his class allegations, Freedman claimed that magicJack issued two proxy statements that contained material misrepresentations. The District Court gave Freedman multiple chances to amend his pleadings to state a claim. Ultimately, the District Court dismissed his lawsuit because his claims were derivative in nature and he failed to plead that he made a demand on magicJack or that doing so would have been futile. In this appeal, Mr. Freedman argues that (1) the operative complaint, which here is his Second Amended Complaint, is direct in nature, and the district court erred in concluding otherwise, and (2) he properly pleaded violations of Section 14(a) of the Securities and Exchange Act of 1934 ("the Act") and Section 20(a) of the Act. After careful review, and with the benefit of oral argument, the Court of Appeals agrees with the well-reasoned analysis of the District Court, which concluded the claim at issue was derivative rather than direct in nature. Judge Proctor opines, among other things, that the conclusion that Mr. Freedman's claim is derivative is reinforced by his failure to plead that he personally suffered a special injury, distinct from that experienced by magicJack or its other shareholders. Judge Proctor states that the District Court did not err in granting magicJack's Motion to Dismiss. A full-text copy of the Court of Appeals' June 25, 2020 Opinion is available at https://tinyurl.com/yd3r9ffe from Leagle.com. LAURA ROSSI -- rossil@whiteandwilliams.com -- MICAHEL O. KASSAK -- kassakm@whiteandwilliams.com -- WHITE AND WILLIAMS LLP, in PHILADELPHIA, PENNSYLVANIA, Attorneys for the Plaintiff. THOMAS MICHAEL BRODOS , MICHAEL RAY DARBEE -- mdarbee@blankrome.com -- STEPHEN M. ORLOFSKY -- orlofsky@blankrome.com -- BLANK ROME LLP, in PRINCETON, NJ, Attorneys for the Defendants. MEI PHARMA: Bragar Eagel Reminds of Oct. 9 Motion Deadline ---------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of MEI Pharma, Inc. Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. MEI Pharma, Inc. (NASDAQ: MEIP) Class Period: August 2, 2017 and July 1, 2020 Lead Plaintiff Deadline: October 9, 2020 MEI Pharma is a late-stage pharmaceutical company that focuses on the development of various therapies for the treatment of cancer. MEI Pharma's clinical drug candidates include, among others, Pracinostat, an oral histone deacetylase ("HDAC") inhibitor. MEI Pharma and Helsinn Healthcare SA, a Swiss pharmaceutical corporation ("Helsinn"), with which MEI Pharma had an exclusive worldwide license, development, manufacturing and commercialization agreement for Pracinostat in acute myeloid leukemia ("AML"), myelodysplastic syndrome, and other potential indications (the "Helsinn License Agreement"), were evaluating Pracinostat in, among other studies, a pivotal Phase 3 global registration clinical trial for the treatment of adults with newly diagnosed AML who are unfit to receive intensive chemotherapy (the "Phase 3 Pracinostat Trial"). The Phase 3 Pracinostat Trial, which was initiated in June 2017, was a randomized, double-blind, placebo-controlled study that would enroll worldwide approximately 500 adults with newly diagnosed AML who are unfit to receive intensive chemotherapy. Patients were randomized 1:1 to receive Pracinostat or placebo with azacitidine as background therapy. The primary endpoint of the trial was overall survival. On July 2, 2020, MEI Pharma issued a press release announcing that it was discontinuing the Phase 3 Pracinostat Trial. Specifically, the Company advised that an interim futility analysis of the Phase 3 Pracinostat Trial, undertaken by the study's Independent Data Monitoring Committee ("IDMC"), "has demonstrated it was unlikely to meet the primary endpoint of overall survival compared to the control group," and that "[b]ased on the outcome of the interim analysis, the decision was made to discontinue the recruitment of patients and end the study," which "was based on a lack of efficacy and not on safety concerns." Following the announcement, the Company's stock price fell $0.78 per share, or 18.27%, to close at $3.49 per share on July 2, 2020. The complaint, filed on August 10, 2020, alleges that throughout the Class Period defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, defendants made false and/or misleading statements and/or failed to disclose that: (i) MEI Pharma had overstated Pracinostat's potential efficacy as an AML treatment for the target population; (ii) consequently, the Phase 3 Pracinostat Trial was unlikely to meet its primary endpoint of overall survival; (iii) all the foregoing, once revealed, was foreseeably likely to have a material negative impact on the Company's financial condition and prospects for Pracinostat; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. About Bragar Eagel Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York and California. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] MERCER UNIVERSITY: Faces Williams Class Suit in M.D. Georgia ------------------------------------------------------------ A class action lawsuit has been filed against MERCER UNIVERSITY. The case is styled as Olivier Williams, on behalf of herself and all others similarly situated v. MERCER UNIVERSITY, Case No. 5:20-cv-00361-TES (M.D. Ga., Sept. 14, 2020). The nature of suit is stated as Other Contract. Mercer University is a private research university with its main campus located in Macon, Georgia.[BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW PC One Old Country Road, Suite 347 Carle Place, NY 11514 Phone: (516) 873-9550 Email: bcohen@leedsbrownlaw.com jbrown@leedsbrownlaw.com mtompkins@leedsbrownlaw.com - and - Jason P. Sultzer, Esq. Jeremy Francis, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Ave., Suite 1800 New York, NY 10016 Phone: (212) 969-7810 Email: sultzerj@thesultzerlawgroup.com francisj@thesultzerlawgroup.com - and - Justin M. Scott, Esq. 160 Clairemont Ave., Ste. 610 Decatur, GA 30030 Phone: (678) 780-4880 Email: jscott@scottemploymentlaw.com MEYER CORP: Web Site Inaccessible to Blind Users, Jaquez Alleges ---------------------------------------------------------------- RAMON JAQUEZ, on behalf of himself and all others similarly situated v. MEYER CORPORATION, U.S., Case No. 1:20-cv-07373 (S.D.N.Y., Sept. 10, 2020), is brought against the Defendant for its alleged violation of the Americans with Disabilities Act. The Plaintiff, who is a visually impaired or blind person, alleges that he was denied access similar to that of a sighted individual when he visited the Defendant's website, http://www.hestanculinary.com/,in July 2020 with the intent of browsing and potentially making a purchase. According to the complaint, the website effectively barred the Plaintiff from being able to enjoy the privileges and benefits of Defendant's public accommodation due to its multiple barriers or lack of a variety of features and accommodations, which makes it impossible for the Plaintiff and any other visually impaired or blind person from being able to access the website's content despite using a popular screen reading software called NonVisual Desktop Access. Moreover, the Defendant has engaged in acts of intentional discrimination because of its failure and refusal to remove access barriers to its website. Meyer Corporation, U.S., is a cookware company that owns and operates the website.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 701 Cookman Ave., Suite 300 Asbury Park, NJ 07712 Tel: (732) 695-3282 Fax: (732) 298-6256 Email: Yzelman@MarcusZelman.com MOUNTAIN STATE: Davis Sues Over Failure to Pay Overtime Wages ------------------------------------------------------------- ROGER DAVIS, individually and on behalf of all others similarly situated v. MOUNTAIN STATE PRESSURE SERVICES, INC., Case No. 2:20-cv-01363-WSS (W.D. Penn., Sept. 10, 2020), is a brought against the Defendant for its alleged illegal pay practices in violations of the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, the Ohio Prompt Pay Act, and the Pennsylvania Minimum Wage Act. The Plaintiff was employed by the Defendant as a rig and snubbing supervisor from approximately mid-2016 through 2019. According to the complaint, the Plaintiff and all others similarly situated employees performed non-exempt job duties. But, because the Defendant improperly classified the Plaintiff and other similarly situated employees as exempt from overtime pay, they were denied lawful overtime compensation for all hours worked in excess of 40 in a single workweek. Instead, they were paid base salary plus a daily rate for each day worked in the field under the guise of reimbursements. Mountain State Pressure Services, Inc. is a natural gas well completion company operating throughout the U.S., including in Pennsylvania, Ohio and West Virginia.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: 713-352-1100 Fax: 713-352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com - and – Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: 713-877-8788 Fax: 713-877-8065 Email: rburch@brucknerburch.com - and – Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Tel: (412) 766-1455 Fax: (412) 766-0300 Email: josh@goodrichandgeist.com MUSICIAN'S FRIEND: Graciano Files ADA Class Suit in S.D. New York ----------------------------------------------------------------- A class action lawsuit has been filed against Musician's Friend, Inc. The case is styled as Sandy Graciano, on behalf of himself and all other persons similarly situated v. Musician's Friend, Inc., Case No. 1:20-cv-07541 (S.D.N.Y., Sept. 14, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Musician's Friend, Inc. markets music gear products. The Company offers guitars, amps and effects, basses, keyboards, drums and percussion, live sound equipment, recording software, studio gear, DJ equipment and lighting, accessories, music instruction videos, and music books.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com NATIONAL OCEANIC: Charter Boat Captains Sue Over 'Intrusive' Rule ----------------------------------------------------------------- nbc-2.com reports that in July the National Oceanic and Atmospheric Administration announced a rule that won't take effect until January. It will require charter boat captains to buy and maintain a GPS tracking system on their boat. "We spend a lot of time and effort out there trying to find our spots to be consistent every single day," A&B Charters captain Bobby Nagaj said. "It takes a lot of time and effort so once big brother government has those, they're there for everyone." They also need to log everything they catch. "Logging every client that comes on the boat, every fish that's caught and released, it's definitely going to take a lot of time and effort out of our day and maybe not let us give the quality of trip we're used to giving," Nagaj said. The goal is to monitor the fish stocks in the Gulf of Mexico. On Aug. 19, a class-action lawsuit was filed to stop the rule before taking effect in 2021.[GN] NELNET INC: Isner-Monticello Files FDCPA Suit in M.D. Florida ------------------------------------------------------------- A class action lawsuit has been filed against Nelnet, Inc., et al. The case is styled as Kimberly Isner-Monticello, and all others similarly situated v. Nelnet, Inc., a Nebraska corporation; Nelnet Diversified Solutions, LLC, a Nebraska limited liability company; Nelnet Servicing, LLC, a Nebraska limited liability company; Case No. 8:20-cv-02135-MSS-TGW (M.D. Fla., Sept. 11, 2020). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Nelnet, Inc., is a United States-based conglomerate that deals in the administration and repayment of student loans and education financial services.[BN] The Plaintiff is represented by: Bryant Dunivan, Jr., Esq. OWEN & DUNIVAN, PLLC 615 E. De Leon St. Tampa, FL 33606 Phone: (813) 502-6768 Fax: (813) 330-7924 Email: bdunivan@owendunivan.com NEW YORK, NY: Lady Gaga's Father Joins Restaurant Owners' Suit -------------------------------------------------------------- Lauren Fruen, writing for Dailymail.com and Wires, reports that Lady Gaga's father has joined more than 450 New York City restaurant owners suing Governor Andrew Cuomo and Mayor Bill de Blasio for $2 billion in damages over a continued ban on indoor dining amid the COVID-19 pandemic. The outdoor dining scheme ends on October 31 and so far, there are no solid plans to allow people back inside restaurants. Indoor dining is allowed in New York state with the exception of New York City, where, as of Sept. 3, 456 restaurateurs had filed the class-action lawsuit against the state and city, according to reports. Joe Germanotta, who owns the Joanne Trattoria restaurant in Manhattan and is pop superstar Lady Gaga's dad, is one of them, and says outdoor dining is not a long-term solution anyway. He told Pix11: "When it rains we gotta close. Once it starts getting cold, the place will be empty." He later told Fox News: "Once the weather gets cold we are pretty much out of business." New York has seen by far the most deaths from COVID-19 of any U.S. state, more than 32,000, but its rate of new infections has dropped to among the lowest in the country. Germanotta says he has the backing to survive but added: "It's so sad, because I'm watching some of my dear friends that own places, shut down. "Something has to be done. They're not listening, they're not hearing, they're just not being realistic. They gotta put themselves in our shoes, they're still getting a paycheck, these people are suffering. "Without the indoor dining I am just about breaking even, which is fine, it's a family run business but it is going to be tight, especially when winter hits. "The whole situation affects the entire supply chain. It will affect the governor and the city and the tax base. We have taken the precautions. I was ready on July 6.' In March Germanotta was slammed for creating a GoFundMe page to pay staff at the restaurant he co-owns with the pop star, as COVID-19 forced layoffs. The A Star is Born actress (born Stefani Germanotta) reportedly had "no idea" her father Joe Germanotta made the public plea for $50,000, according to a source who spoke with PageSix. He eventually removed the page. Gov. Andrew Cuomo says he won't let New York City reopen its restaurants for indoor dining until the city comes up with a plan to make sure they are following regulations to reduce the spread of the coronavirus. Restaurants and bars were finally able to offer outdoor dining again on June 22 after nearly three months of closures. Those who were able to opened their doors again but were met with strict rules; all diners must be 6ft apart, wear masks when not at their tables and order food with every drink served. The governor said that he thinks restaurants should open in New York City but that the state doesn't have enough personnel to monitor the city's 27,000-plus eateries. "These institutions are under dire economic circumstances," Cuomo said in a phone call with reporters on Sept. 3. 'And we know that compliance has to happen.' "We open restaurants, that's going to complicate by the hundreds if not thousands the number of establishments that need to be monitored," he said. Cuomo is facing pressure from the restaurant industry, which has seen business plummet amid the pandemic and hundreds of workers seeking unemployment assistance. The lawsuit was filed the same day New Jersey announced plans to allow indoor dining at 25 per cent capacity starting Sept. 4. Connecticut began allowing indoor dining at half capacity in June. The rest of the state outside New York City has allowed indoor dining at half capacity since June. New York City Mayor Bill de Blasio had hoped the city was on track to allow indoor dining in late June when it entered the third phase of Cuomo's gradual reopening plan. But Cuomo announced he wouldn't allow indoor dining in New York City over concerns about dining indoors fueling the spread of the coronavirus. The city has since pushed to expand outdoor dining, though Cuomo increased restrictions on bars following reports of crowds violating social distancing rules. The restaurants, in their lawsuit over the ban on New York City indoor dining, claim the restriction lacks scientific basis and question why it is allowed so close to New York City. But public health experts have warned that dining is risky in enclosed spaces with groups of people talking loudly, sharing food and drinking alcohol. States including Louisiana and Maryland have linked new cases to bars and restaurants. New York is now reporting a sharp decline in hospitalizations and fatalities since a peak of over 18,000 COVID-19 patients and well over 700 deaths a day in mid-April. Cuomo has praised New Yorkers for keeping infection rates down, contrary to expectations after the state began reopening in mid-May. New York City recorded about 9,000 positive COVID-19 tests in August, down from over 11,700 in June, according to state Department of Health data. Still, the virus is not vanquished. Over 9,000 COVID-19 tests were positive across New York in the last two weeks of August as some upstate communities weather upticks at colleges and elsewhere. And New York City has continued to represent about half of the state's positive cases. Mayor Bill de Blasio said Sept. 3 that the city will provide guidance to restaurants this month and that he is in "constant dialogue" with the state. Cuomo suggested New York City could deploy police officers to ensure compliance with safety guidelines such as mask-wearing and capacity limits. The mayor offered a note of caution: "The NYPD has a lot on its hands and they're dealing with so many challenges and fighting back the challenges we face." [GN] NEW YORK: Staten Island Boutique Fitness Studio Owners to File Suit ------------------------------------------------------------------- Tracey Porpora, writing for silive.com, reports that the owners of the Max Challenge -- which has three locations on Staten Island -- are the lead plaintiffs in a class action lawsuit being filed on Sept. 2 against Mayor Bill de Blasio and New York City to allow boutique fitness studios to open amid the coronavirus (COVID-19) pandemic, said the lawyer for the case. The lawsuit, which was set to be filed Sept. 3 in Richmond County Supreme Court, St. George., is being led by Roseann and Anthony Camarda, who own three popular fitness studios -- in Grasmere, Woodrow and Great Kills -- under the Max Challenge franchise on Staten Island, said James G. Mermigis, an attorney with the Syosset, N.Y.-based Mermigis Law Group, who will be filing the case. "There is absolutely no reason that big box gyms can be open and we can't," said Roseann Camarda, who said her membership has been reduced from 1,500 to 700 people during the pandemic. "We can follow all the New York state guidelines of putting everyone 6-feet apart. .. We have followed every guideline for reopening indoors and have invested a lot of money to put protocols in place, and it's more than six months of us being closed. He [de Blasio] is shutting down our businesses and our livelihoods." While Cuomo said gyms across the state could reopen Aug, 24, he said that local elected officials -- in New York City's case that's de Blasio -- may choose to delay the reopening of gyms and fitness centers until Sept. 2. This delay was to allow time for required local health department inspections. In addition, Cuomo said local officials could choose to delay the reopening of indoor fitness classes until a date beyond Sept. 2. De Blasio chose to do both. While many gyms were able to open Sept. 2, de Blasio won't allow fitness classes to resume indoors, which has left boutique fitness studios, like the Max Challenge, yoga centers, CrossFit and Pilates studios, which rely on classes as the main draw to their businesses, unable to reopen. Mermigis -- who had filed a class action lawsuit on behalf of 1,500 New York gym owners against the state last month -- said this suit against de Blasio and the city will demand boutique fitness centers be allowed to reopen immediately. "Im going to be filing another action against de Blasio and the city of New York for not allowing fitness classes to proceed," said Mermigis, who also is representing Staten Island restaurant owners in a lawsuit expected to be filed Sept. 8 to allow indoor dining in New York City. "We are going to demand that de Blasio allow all these fitness boutique studios to open. . . . These classes are now being held across the state except for the five boroughs. It's unequal treatment," he added. A city Law Department spokesman said, "We'll review and respond to the lawsuit once we're served." NO TIMEFRAME And there is no timeframe for when fitness classes can resume. This leaves many boutique fitness studio owners on Staten Island with reduced or no means of income -- indefinitely. "This city and state have been draining the pockets of small business owners for years through high taxes," said Joseph Cannizzo, owner of Staten Island Judo Jujitsu Dojo in Annadale, who is also part of the lawsuit. "Now they've forced us to be closed for seven months and provided us with zero assistance. We are broke, stacking up tremendous debt and hanging on by a thread." Said Camarda: "There's no difference between a boutique fitness studio and a Big Box gym. We are willing to wear masks. All of our members know that masks are mandatory." She noted that she has been conducting outdoor classes for her members at Staten Island Little League in Travis. "I am so thankful for the Little League," she said. In addition, Camarda said she is thankful for the support of the New York Fitness Coalition (NYFC), a not-for-profit organization that was formed to advocate for the safe reopening of gyms. "Mayor de Blasio has exceeded his authority in keeping indoor fitness classes closed past Sept. 2," said Charlie Cassara, president and founder of NYFC, which now represents more than 2,000 fitness studios in New York state. "We have been proven to be able to open safely. ...With our standards of operating and contact tracing we are safer than most of the businesses fully opened." Said Amanda Freeman, founderCEO of SLT and Boutique Fitness Alliance: "Distinguishing between a gym and group fitness facility is arbitrary and non-sensical. We can be just as controlled, safe and clean as gyms, if not more so. We believe there is unintentional gender bias in the decision in allowing more male-dominated workouts to reopen and denying more female-dominated workouts. We [Boutique Fitness Alliance] are joining the lawsuit against the city of a New York in an attempt to give businesses like ourselves the chance to survive in this impossible climate and to give our staff and clients the opportunity to return to what they love." STATE LAWSUIT STILL ACTIVE On behalf of 1,500 fitness facility owners across the state, Mermigis, earlier this month, filed a class action lawsuit in Jefferson County, N.Y., against Cuomo, New York state and the state attorney general. "We are also proceeding to see if these executive orders were constitutional or not," he said. "We are still going to proceed against the state for just compensation." [GN] ON DECK CAPITAL: Morrison Balks at Proposed $90MM Sale to Enova --------------------------------------------------------------- IAN MORRISON, on behalf of himself and those similarly situated v. ON DECK CAPITAL, INC., NOAH BRESLOW, DANIEL S. HENSON, BRUCE P. NOLOP, NEIL WOLFSON, JANE J. THOMPSON, RON VERNI, CHANDRA DHANDAPANI, MANOLO SANCHEZ, ENOVA INTERNATIONAL, INC., and ENERGY MERGER SUB, INC., Case No. 654179/2020 (N.Y. Sup., New York Cty., Sept. 1, 2020), is a stockholder class action against OnDeck and its Board of Directors for breaches of fiduciary duty as a result of their efforts to sell the Company to Enova International, Inc., and Energy Merger Sub through an unfair transaction valued at approximately $90 million. The terms of the proposed transaction were memorialized in a July 28, 2020 filing with the Securities and Exchange Commission on Form 8-K attaching the definitive agreement and plan of merger. Under the terms of the agreement, Enova will acquire all of the outstanding shares of common stock of the Company. OnDeck public stockholders, however, will receive only $0.12 cents per share in cash and 0.092 shares of Enova common stock for each share of OnDeck held, or approximately $1.38 per share of OnDeck, based upon Enova's closing price on July 27, 2020. Significantly, upon completion of the transaction, OnDeck shareholders will own only approximately 16.7% of the combined entity, with Enova shareholders owning approximately 83.3%. On August 25, 2020, Enova filed a Registration Statement on Form S-4 with the SEC in support of the proposed transaction. The Plaintiff contends that the Registration Statement omits and/or misrepresents material information concerning, among other things: (a) the sales process and in particular certain conflicts of interest for management; (b) the financial projections for OnDeck and Enova, provided by OnDeck and Enova to the Company's financial advisor Evercore Group LLC for use in its financial analyses; and (c) the data and inputs underlying the financial valuation analyses that purport to support the fairness opinions provided by the Company's financial advisor, Evercore. OnDeck Capital Inc. operates an online platform for small business leading in the United States, Canada, and Australia. Enova International, Inc. provides online financial services to non-prime consumers and small businesses, providing access to credit powered by its advanced analytics, innovative technology, and world-class online platform and services.[BN] The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 240 Mineola Boulevard Mineola, NY 11501 Telephone: (516) 741-4977 Facsimile: (561) 741-0626 E-mail: esmith@brodskysmith.com OTTAWA: Agrees to Certify 2 Class Action Lawsuits ------------------------------------------------- Olivia Stefanovich at CBC News reports that the Canadian federal government has consented to the certification of two class action lawsuits over funding for First Nation child welfare services and the state of health services for children on-reserve and in the Yukon. The certification of the class actions sets the stage for what could be an umbrella settlement that could cover the two cases and a separate First Nations child welfare compensation order issued by the Canadian Human Rights Tribunal, which is facing a judicial review before the Federal Court. The two class action lawsuits received certification. One was filed by the Assembly of First Nations on behalf of former First Nation foster children, while the other was filed by three law firms on behalf of a former foster child from a Quebec and Nova Scotia First Nation member who suffers from cerebral palsy. The lawsuits are proceeding together in Federal Court. "Consenting to certification marks a step forward in negotiating a settlement to compensate those harmed by under-funding of child and family services on reserve," says a media statement issued by Indigenous Services Minister Marc Miller and Justice Minister David Lametti. Ottawa is entering into mediation to settle the lawsuits, which are seeking billions of dollars in compensation for First Nation children affected by the on-reserve child welfare system and for those who were denied services Ottawa was expected to provide under what's known as Jordan's Principle. Jordan's Principle states that First Nation children on reserves must not be kept waiting for vital social services because governments can't agree on who should pay for them. In a media statement, Assembly of First Nations Chief Perry Bellegarde welcomed Ottawa's certification. "Canada's decision to work with the AFN and its allies in addressing this tragedy is an important step," he said. "It is crucial that Canada act in good faith in these upcoming negotiations, provide fair compensation to all those who suffered harm, and implement real change. Only then can we bring closure to this sad chapter in our history." Ottawa trying to settle 3 cases The AFN lawsuit, filed on Jan. 28, is seeking $10 billion in damages. The AFN lawsuit claims that by shortchanging services for Indigenous children, the federal government created an incentive to remove them from their homes and place them in foster care as the "first - not the last - resort." The second lawsuit, which is seeking $6 billion in damages, was filed in March 2019 on behalf of former foster child Xavier Moushoom of La Nation Anishnabe du Lac Simon, Que., and Jeremy Meawasige of Pictou Landing First Nation in Nova Scotia. Meawasige was born with cerebral palsy, spinal curvature and autism. In November, Lametti and Miller issued a joint statement saying the federal government intended to settle the Moushoom and Meawasige lawsuit. At the time, the ministers indicated the negotiations would also seek resolution to matters now before the Canadian Human Rights Tribunal involving similar facts and issues. "We will be sitting down with parties and seeing where there is a meeting of minds and move forward on a compensation package, a compensation model that is fair and equitable," Miller said last December. Last fall, the Canadian Human Rights Tribunal ordered the federal government to pay $40,000 - the maximum allowed under the Canadian Human Rights Act - to each child taken from their homes and communities through the on-reserve child welfare system from Jan. 1, 2006, to a date to be determined by the tribunal. Some estimates place the number of children that could be affected at about 50,000, with the largest number in the Prairie provinces and British Columbia. The ruling, like the AFN class action, also covers First Nation children in Yukon. The Trudeau government asked the Federal Court for a judicial review of the tribunal order, saying that because it came down in the middle of an election, there was not enough time to "have conversations with communities, with leaders, to make sure we're getting that compensation right." That matter is still before the Federal Court. [GN] PAUL HESSE: Former Client Mulls Immigration Class Action -------------------------------------------------------- CBC News reports that a former client of disgraced immigration lawyer Paul Hesse is seeking to form a class-action lawsuit, alleging he defrauded an unknown number of people hoping to immigrate to Canada by telling them to invest in companies controlled by either him or his then-romantic partner. In a statement of claim filed in Manitoba's Court of Queen's Bench on Aug. 7, Haokuang Tian says he lost hundreds of thousands of dollars after he hired Hesse to handle his immigration application. Tian claims Hesse directed him to make investments in Canadian companies in order to qualify under the provincial nominee program. Tian agreed to invest $350,000 in a numbered company. Unknown to him, the company had been incorporated only one month earlier, and Hesse represented both the company and its sole director. Soon after the money was deposited into a trust account, the claim says Hesse transferred the funds to a company known as Vidahlia Corp., of which Hesse's partner, Patrick Maxwell, was a director. "The scheme was: invest money in businesses that were controlled by either Hesse and or his partner, and you will become a permanent resident of Canada," said Kenneth Zaifman, a lawyer representing Tian. "None of these businesses have assets or operations. So they were, in effect, shell companies, established solely for the purpose of obtaining money from these individuals," Zaifman said. CBC News has reached out to Hesse for comment. None of the allegations have been tested in court. A statement of defence has not yet been filed. The lawsuit also names Hesse's former law firm, Pitblado LLP, as a defendant. It alleges Pitblado knew, or should have known, that the money was being transferred out of the trust account for a suspicious purpose. The lawsuit would include anyone who was a client of Hesse or Pitblado, who paid for investment in a Canadian company for the purpose of immigration and who suffered a loss as a result. Pitblado managing partner Benjamin Hecht said his firm has been served notice of the claim, but couldn't comment on a case that is before the courts. Hesse was dismissed as a partner at Pitblado in June 2019 and suspended by the Law Society of Manitoba a month later. Hesse, a former president of the Manitoba Liberal Party, joined the law firm in August 2011 and became a partner in January 2014. Zaifman says Hesse didn't tell Tian anything about the company that he was investing in. Zaifman doesn't know how many people may be potential class members, if the court grants certification, but the amount of money invested through the scheme is potentially in the millions, he said. The lawsuit is seeking to recoup all money lost, as well as any assets purchased by Hesse using the proceeds of the scheme. A court date has not yet been set. [GN] PHOENIX FINANCIAL: Fowler Sues in Florida Over Violation of FDCPA ----------------------------------------------------------------- A class action lawsuit has been filed against Phoenix Financial Services LLC, et al. The case is styled as Charles Fowler, individually and on behalf of all others similarly situated v. Phoenix Financial Services LLC, John Does 1-25, Case No. 8:20-cv-02147 (M.D. Fla., Sept. 12, 2020). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Phoenix Financial is a revenue cycle management firm powered by data driven analytics and backed by regulatory compliance, quality assurance, data security and customer care.[BN] The Plaintiff is represented by: Justin E. Zeig, Esq. ZEIG LAW FIRM, LLC 3475 Sheridan Street, Suite 310 Hollywood, FL 33024 Phone and Fax: (754) 217-3084 Email: justin@zeiglawfirm.com POW! ENTERTAINMENT: Lee's Cybersquatting Suit Tossed; Fined $1MM ---------------------------------------------------------------- The U.S. District Court for the Central District of California issued an order granting the Defendant's Motion to Dismiss in the case captioned JOAN CELIA LEE v. POW! ENTERTAINMENT, INC., and DOES 1 through 10, Case No. 2:19-cv-08353-ODW(FFMx) (C.D. Cal.). The Court GRANTS POW's (i) Motion to Dismiss WITH PREJUDICE, and (ii) Motion for Sanctions. The Court SANCTIONS JC Lee in the amount of $1,000,000 and holds her attorneys JOINTLY AND SEVERALLY liable for 25% of the amount, or $250,000. The sanctions shall be paid to the Central District of California as a penalty. The Court also permits counsel for POW to file a motion for attorney's fees. On March 4, 2020, Defendant POW! Entertainment, Inc., ("POW") filed a motion to dismiss the amended complaint filed by Plaintiff Joan Celia Lee ("JC Lee"). POW argues that JC Lee's amended complaint is barred by the doctrines of res judicata, collateral estoppel, and statute of limitations. On these grounds, POW also filed a motion for sanctions against JC Lee. Background JC Lee is the daughter and trustee for the estate of comic book author Stan Lee. Stan Lee is responsible for co-creating comic book characters such as Spider-Man, the X-Men, Iron Man, and many others. POW, a Delaware corporation, claims that Stan Lee assigned to it the rights to his intellectual property. On February 14, 2020, JC Lee filed her first amended complaint against POW. JC Lee seeks to enforce the terms of an agreement made in 1998 (the "1998 Agreement") between Stan Lee and Stan Lee Entertainment, Inc. ("SLEI"). Specifically, JC Lee contends that, under the terms of the 1998 Agreement, Stan Lee assigned full and complete title to his name, likeness, and creator rights to SLEI in perpetuity. As such, JC Lee seeks declaratory and injunctive relief that SLEI, owns the rights to Stan Lee's intellectual property, name, and likeness, and asserts a cause of action against POW for cybersquatting in violation of 15 U.S.C. Section 1125(d). POW, in response, seeks sanctions against JC Lee on the grounds that her complaint is both frivolous and brought for an improper purpose. Consequently, POW served JC Lee with notice of the instant Motion using e-mail and first-class certified mail on April 7, 2020. On May 11, 2020, 34 days later, POW filed the Motion with the Court. After departing from Marvel in August 1998, Stan Lee formed SLEI, to which he allegedly "conveyed clear title to his name, likeness and all creator rights" on October 15, 1998. In January 2001, Stan Lee accused Stan Lee Media, Inc. ("SLMI"), successor-in-interest to SLEI, of being "in complete breach of the salary and benefit provisions, inter alia, of the 1998 [A]greement so that he was justified in terminating the agreement" (quoting Abadin v. Marvel Entm't, Inc., No. CV 09-0715-PAC, 2010 WL 1257519, at *6 (S.D.N.Y. Mar. 31, 2010).) Subsequently, due to a lack of operating capital caused by a series of unfortunate events, SLMI filed for Chapter 11 bankruptcy. Following the bankruptcy filing, in 2001, Stan Lee and others formed POW. JC Lee alleges that the other founders of POW manipulated Stan Lee into transferring ownership of his creator rights and rights to his name and likeness "three years after he divested himself of any further legal interest in those rights" to SLMI per the 1998 Agreement. When Stan Lee died in November 2018, JC Lee, as his only heir and trustee of his estate, became the successor-in-interest of Stan Lee's alleged obligations relating to the 1998 Agreement. She files suit "to ensure the Lee Trust is able to perform the duties it assumed under Stan Lee's [1998 Agreement] and act in accord with the obligations under the Assignment by obtaining a Declaratory Judgment to the effect all rights, title and interest to Stan Lee's Name and likeness and Brand, along with copyrights and trademarks now reside with [SLEI] in association with the Lee Trust." Motion to Dismiss Despite the numerous failed attempts to enforce the 1998 Agreement, SLMI allegedly filed suit against Stan Lee's estate and reached a settlement that was adopted by a court, although JC Lee fails to provide further details. JC Lee now files this suit to satisfy the estate's obligation under the terms of that settlement to "correct the breach of the agreement" and "remedy the results of the various invalid assignments made by Stan Lee." The Court infers that SLMI has entered into a settlement prompting JC Lee to file this suit for declaratory relief, though neither the substance of the settlement nor the judgment have been provided to the Court. As POW has established all three factors, the Court finds that all claims in this matter are barred by res judicata. Accordingly, the Court GRANTS the motion to dismiss. The Court DISMISSES WITH PREJUDICE all claims in the FAC. Motion for Sanctions District Judge Otis D. Wright, II, says that even if a matter is factually and legally baseless, the movant must establish that the matter was filed without a reasonable and competent inquiry to justify Rule 11 sanctions, citing Townsend, 929 F.2d at 1362. JC Lee asserts that a reasonable inquiry was undertaken prior to filing this action. JC Lee's attorney declares that he and his firm spent "substantial time" reviewing the facts of the case, the pleadings, the applicable law, and the application of Rule 11 sanctions and believes that the case has "strong merit." The Court does not find this one-page declaration persuasive. Regardless, the Court considers the reasonableness of the conduct, not the subjective intent of the pleader or movant. The Court finds it completely unreasonable to file a suit premised on an issue debated and analyzed in more than five federal district courts over the last decade. See Abadin, 2010 WL 1257519, at *4 ("Given the pleading history here in this District, the Colorado State Court proceedings, the three companion actions in the Central District of California, the class action suit and settlement, and a 5 year bankruptcy case, it is now time to call a halt."); SLMI I, 2012 WL 4048871, at *7 ("The Court therefore concludes that there is a compelling public interest in bringing this matter to a close.") Filing such a claim could only have been accomplished without a competent and reasonable inquiry. As the matter is factually and legally baseless and filed without a reasonable and competent inquiry, the Court GRANTS the Motion for Sanctions on the ground that the filing is frivolous. As JC Lee stated at the hearing, wealth is relative. The Court considers JC Lee's financial resources in determining a sanction amount that will adequately deter her from repetition in the same case, citing ClearValue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291, 1305 (Fed. Cir. 2009) ("monetary sanctions must be tailored to a party's ability to pay") (collecting cases from the Second, Fifth, Seventh, and Eleventh Circuits). POW asserts that she inherited $50 to $70 million from Stan Lee's estate and JC Lee did not refute this assertion, either in her opposition or at oral argument. Nor does she contest the five million dollar sanction amount in her opposition. Indeed, her counsel did not argue that such an amount would be excessive during the hearing despite the oral argument by Mr. Knopfle that POW meaningfully chose the five million dollar amount to deter future filings. Considering the factors outlined in the advisory committee notes, the requested sanction amount by POW, JC Lee's prior engagement in this matter and her financial resources, the Court, intending to deter both JC Lee and her attorneys, SANCTIONS JC Lee in the amount of $1,000,000 and holds her attorneys JOINTLY AND SEVERALLY liable for 25% of the amount, or $250,000. The sanctions shall be paid to the Central District of California as a penalty. The Court finds this amount consistent with the Rule 11 considerations and commensurate with the egregiousness of the conduct, as well as the burden this suit has imposed. The Court further permits counsel for POW to file a motion for attorney's fees. Failure to file the motion for attorney's fees by the deadline may be deemed as a waiver of POW's right to obtain attorney's fees and costs with respect to its Rule 11 motion. Stan Lee, a superhero in his own right, served to inspire the everyday hero. The Court urges parties to treat his legacy with respect and cease engaging in meritless litigation, District Judge Otis D. Wright, II, states. A full-text copy of the District Court's June 25, 2020 Order is available at https://tinyurl.com/ycl3yjbt from Leagle.com. PRIME HEALTHCARE: Breaches Plan Fiduciary Duties, Campbell Claims ----------------------------------------------------------------- Chantell Campbell, Marie Nellist, Brian Horton and Paulina Cervantes, individually and on behalf of all others similarly situated v. PRIME HEALTHCARE SERVICES, INC.; THE CHIEF EXECUTIVE OFFICER OF PRIME HEALTHCARE SERVICES, INC.; THE ADMINISTRATIVE COMMITTEE OF PRIME HEALTHCARE SERVICES, INC.; and DOES 1-20, Case No. 5:20-cv-01887 (C.D. Cal., Sept. 11, 2020), is brought under the Employee Retirement Income Security Act of 1974 for breaches of fiduciary duties. The Prime Healthcare Services, Inc. 401(k) Plan was "formed on January 1, 2006." The Plan is a "defined contribution" or "individual account" plan within the meaning of ERISA, in that the Plan provides for individual accounts for each participant and for benefits based solely upon the amount contributed to those accounts, and any income, expense, gains and losses, and any forfeitures of accounts of the participants which may be allocated to such participant's account. To safeguard Plan participants and beneficiaries, ERISA imposes strict fiduciary duties of loyalty and prudence upon employers and other plan fiduciaries. Fiduciaries must act "solely in the interest of the participants and beneficiaries," with the "care, skill, prudence, and diligence" that would be expected in managing a plan of similar scope. These twin fiduciary duties are "the highest known to the law." The Plaintiffs allege that during the putative Class Period, the Defendants, as "fiduciaries" of the Plan, as that term is defined under ERISA, breached the duties they owed to the Plan, to the Plaintiffs, and to the other participants of the Plan by, inter alia, (1) failing to objectively and adequately review the Plan's investment portfolio with due care to ensure that each investment option was prudent, in terms of cost; and (2) maintaining certain funds in the Plan despite the availability of identical or similar investment options with lower costs and/or better performance histories. In many instances, the Defendants failed to utilize the lowest cost share class for many of the mutual funds within the Plan, and failed to consider certain collective trusts available during the Class Period as alternatives to the mutual funds in the Plan, despite their lower fees and materially similar investment objectives, according to the complaint. It appears that in 2019, nearly five years into the Class Period, the Plan switched to the collective trust versions of the Fidelity target date funds. But this was too little too late as the damages suffered by Plan participants to that point had already been baked in. In accordance with sound fiduciary practices, the Plan should have switched to the Fidelity Freedom CIT target date funds at their earliest opportunity. The majority of the collective trust versions of the Fidelity Freedom target date funds were available as early as 2007. The Defendants' mismanagement of the Plan, to the detriment of participants and beneficiaries, constitutes a breach of the fiduciary duties of prudence and loyalty, in violation of the ERISA, says the complaint. The Plaintiffs participated in the Plan, investing in the options offered by the Plan. Prime Healthcare Services, Inc. is the Plan sponsor and is in the business of buying hospitals throughout the United States, which are experiencing financial distress.[BN] The Plaintiffs are represented by: Daniel L. Germain, Esq. ROSMAN & GERMAIN LLP 16311 Ventura Blvd., Suite 1200 Encino, CA 91436-2152 Phone: (818) 788-0877 Facsimile: (818) 788-0885 Email: germain@lalawyer.com - and - Donald R. Reavey, Esq. CAPOZZI ADLER, P.C. 2933 North Front Street Harrisburg, PA 17110 Phone: (717) 233-4101 Fax (717) 233-4103 Email: donr@capozziadler.com - and - Mark K. Gyandoh, Esq. CAPOZZI ADLER, P.C. 312 Old Lancaster Road Merion Station, PA 19066 Phone: (610) 890-0200 Fax (717) 233-4103 Email: markg@capozziadler.com RENTGROW INC: McIntyre Suit Moved From Massachusetts to Colorado ---------------------------------------------------------------- The case styled as Patricia McIntyre, on behalf of herself and all others similarly situated v. Rentgrow, Inc. doing business as: Yardi Resident Screening, Defendant; Transunion Rental Screening Solutions, Inc., Interested Party, Case No. 18-cv-12141-ADB, was transferred from the U.S. District Court for the District of Massachusetts to the U.S. District Court for the District of Colorado on Sept. 14, 2020. The District of Colorado Court Clerk assigned Case No. 1:20-mc-00158-RBJ to the proceeding. The nature of suit is stated as Civil Miscellaneous Case. RentGrow is a provider of online resident screening services for property management firms across the country.[BN] ROZLIN FINANCIAL: Perry Sues in D. Nevada Over Violation of FDCPA ----------------------------------------------------------------- A class action lawsuit has been filed against Rozlin Financial Group, Inc., et al. The case is styled as Kai Perry, individually and on behalf of all others similarly situated v. Rozlin Financial Group, Inc., Debt Resolution Services, LLC, Case No. 2:20-cv-01695-RFB-NJK (D. Nev., Sept. 14, 2019). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Rozlin Financial Group, Inc. (RFGI) is a nationwide debt collection agency located in Sycamore, Illinois.[BN] The Plaintiff is represented by: Robert M. Tzall, Esq. LAW OFFICE OF ROBERT M. TZALL 1481 Warm Springs Rd., Suite 135 Henderson, NV 89014 Phone: (702) 666-0233 Email: office@tzalllegal.com SAN DIEGO UNIFIED: $6.6MM Settlement Reached in Rental Car Fee Suit ------------------------------------------------------------------- Times of San Diego reports that a $6.6 million settlement has been reached in a class-action lawsuit filed by a New Mexico man against the San Diego Unified Port District over what he alleged were illegal fees charged when he rented cars at San Diego International Airport. The suit filed by Jeffrey Garvin alleges a $3.50 fee charged to rental car customers was actually a tax designed to collect fees to fund a parking garage to be built adjacent to the proposed Chula Vista Bayfront Convention Center. Garvin alleged it was illegal, as any special tax must be approved by two-thirds of voters, per Propositions 13 and 218. The issue has led to numerous lawsuits filed in state and federal court between Garvin, the port district and the various rental car companies that collected the fees. According to a settlement notice issued by the court, the settlement includes anyone who rented vehicles from any rental car company originating at San Diego International Airport, the adjacent Rental Car Center or other locations on Port tidelands between May 10, 2018 and July 24, 2020, and were charged the $3.50 fee. The notice says potential class members have until Oct. 20 to indicate whether they want to be part of the proposed settlement, which still requires approval from a judge. A final approval hearing is slated for Nov. 13 in San Diego Superior Court. [GN] SCIPLAY CORP: Rosen Law Investigates Securities Claims ------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, continues investigating potential securities claims on behalf of shareholders of SciPlay Corporation (NASDAQ: SCPL) resulting from allegations that SciPlay may have issued materially misleading business information to the investing public. On May 3, 2019, SciPlay Corporation conducted its initial public offering, selling 22 million shares for $16 per share and raising $352 million. Since then, the Company's common stock has consistently traded down because of softer-than-expected company growth and poor performance relative to its peers. Rosen Law Firm is preparing a class action lawsuit to recover losses suffered by SciPlay investors. If you purchased shares of SciPlay please visit the firm's website at http://www.rosenlegal.com/cases-register-1706.htmlto join the class action. You may also contact Phillip Kim of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] SPRAGUE OPERATING: Agudelo Files Suit in District of Rhode Island ----------------------------------------------------------------- A class action lawsuit has been filed against Sprague Operating Resources, LLC. The case is styled as Ms. Eva Amanda Agudelo, on behalf of herself and all others similarly situated v. Sprague Operating Resources, LLC, Case No. 1:20-cv-00407 (D.R.I., Sept. 14, 2020). The nature of suit is stated as Torts to Land. Sprague Operating Resources LLC retails petroleum products. The Company offers home heating oil, diesel and residual fuels, kerosene, low-sulfur diesel, bio fuels, bunker fuels, and gasoline products. Sprague Operating Resources provides energy market updates and fuel management services throughout the United States.[BN] The Plaintiff is represented by: Stephen E. Breggia, Esq. THE BREGGIA LAW FIRM 395 Smith St. Providence, RI 02908 Phone: 831-9100 Fax: 831-0129 Email: sbreggia@alphalaw.us ST. BASIL'S: Facing Class Action Over COVID Outbreak ---------------------------------------------------- The Weekly source reports that just days after it reported on the class action against Heritage Care over its Epping Gardens outbreak, the same law firm has filed a writ on St Basil's Home for the Aged in Fawkner, for alleged breaches of duty of care. The writ lists Effie Fotiadis as the lead plaintiff in the case against the home, after her 79-year-old father and resident, Dimitrios, died from COVID-19. It alleges St Basil's failed to act in Dimitrios' best interests, as he was not properly isolated or given Personal Protective Equipment (PPE), and was made to live "an unhygienic personal care condition and unhygienic residential environment." The home is also accused of alleged breaches including inadequate use of PPE, inadequately trained staff and allowing workers to enter the home from other facilities without self-isolating. Carbone Lawyers, who will be representing the St Basil's families, also alleges the home misrepresented information, and failed to comply with legislations, regulations and professional standards. The Fawkner home has seen one of the largest outbreaks in aged care across Victoria, with 193 cases of COVID-19 and 31 resident deaths. [GN] STAR SNACKS: Andrews Files Suit in Northern District of Alabama --------------------------------------------------------------- A class action lawsuit has been filed against Star Snacks Company LLC. The case is styled as Mary Katherine Andrews, Individually and on behalf of a class of similarly situated persons v. Star Snacks Company LLC, Case No. 2:20-cv-01357-AMM (N.D. Ala., Sept. 11, 2020). The nature of suit is stated as Other Contract. Star Snacks is a manufacturer and distributor of nuts, trail mixes & dried fruits.[BN] The Plaintiff is represented by: Charles M. Thompson, Esq. CHARLES M. THOMPSON PC 2539 John Hawkins Pkwy., Suite 101-149 Hoover, AL 35244 Phone: (205) 995-0068 Fax: (866) 610-1650 Email: CMTLAW@aol.com STONELEIGH RECOVERY: Heyward Files FDCPA Suit in South Carolina --------------------------------------------------------------- A class action lawsuit has been filed against Stoneleigh Recovery Associates LLC, et al. The case is styled as Sharod Heyward, individually and on behalf of all others similarly situated v. Stoneleigh Recovery Associates LLC, Cascade Capital LLC Series C, John Does 1-25, Case No. 6:20-cv-03251-DCC (D.S.C., Sept. 11, 2020). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Stoneleigh Recovery Associates, LLC (SRA) provides state licensing standards and laws. The Company offers debt recovery, security, and corporate management services.[BN] The Plaintiff is represented by: Kenneth Edward Norsworthy, Jr., Esq. NORSWORTHY LAW LTD CO 218 Trade Street, Suite D Greer, SC 29651 Phone: (864) 804-0581 Fax: (864) 670-5009 Email: kenorsworthy@me.com TOYOTA MOTOR: Ruiz Files Product Liability Suit in D. New Jersey ---------------------------------------------------------------- A class action lawsuit has been filed against Toyota Motor Corporation, et al. The case is styled as Jose Ruiz, Charles Sineri, individually and on behalf of all others similarly situated v. Toyota Motor Corporation, Toyota Motor North America, Inc., Toyota Motor Sales, U.S.A., Inc., TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH AMERICA, INC., Case No. 2:20-cv-12600 (D.N.J., Sept. 11, 2020). The nature of suit is stated as Motor Vehicle Product Liability. Toyota Motor Corporation is a Japanese multinational automotive manufacturer headquartered in Toyota, Aichi, Japan.[BN] The Plaintiffs are represented by: Christopher A. Seeger, Esq. SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Phone: (973) 639-9100 Fax: (973) 639-9393 Email: cseeger@seegerweiss.com TRUSTCO BANK: Livingston Sues Over Collection of Overdraft Fees --------------------------------------------------------------- DEBORAH J. LIVINGSTON, individually, and on behalf of others similarly situated v. TRUSTCO BANK, A FEDERAL SAVINGS BANK, and DOES 1 through 100, Case No. 1:20-cv-01030-GTS-DJS (N.D.N.Y., Sept. 2, 2020), arises from the Defendants' wrongful charging of overdraft fees to the Plaintiff's and the Class Members' Trustco checking accounts. According to the complaint, the Defendants charged overdraft fees even when sufficient funds exist to cover transactions that are "initiated and authorized" into a positive balance. The charging for such fees not only breaches the Defendants' contracts with its members but also violates federal law as the Defendants failed to follow basic prerequisites in its overdraft fee system as required by the Electronic Fund Transfer Act. Trustco Bank is a federal savings bank headquartered in Glenville, New York. Trustco Bank has assets of more than $5.2 billion, and 148 branch locations in five states in the U.S.[BN] The Plaintiff is represented by: John C. Cherundolo, Esq. J. Patrick Lannon, Esq. CHERUNDOLO LAW FIRM, PLLC AXA Tower I, 17th Floor 100 Madison Street Syracuse, NY 13202 Telephone: (315) 449-9500 Facsimile: (315) 449-9804 E-mail: jcherundolo@cherundololawfirm.com plannon@cherundololawfirm.com - and - Taras Kick, Esq. Jeffrey C. Bils, Esq. THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 E-mail: taras@kicklawfirm.com jeff@kicklawfirm.com - and - Kevin P. Roddy, Esq. WILENTZ, GOLDMAN & SPITZER, P.A. 90 Woodbridge Center Drive, Suite 900 Woodbridge, NJ 07095 Telephone: (732) 636-8000 Facsimile: (732) 726-6686 E-mail: kroddy@wilentz.com UNITED STATES: Bidon Sues in Federal Claims Court Over OT Claims ---------------------------------------------------------------- A class action lawsuit has been filed against the United States of America. The case is styled as NEIL BIDON, R.N., on behalf of themselves and all others similarly situated v. USA, Case No. 1:20-cv-01197-MHS (Fed. Cl., Sept. 14, 2020). The nature of suit is stated as Civilian Pay--Overtime Compensation. The U.S. is a country of 50 states covering a vast swath of North America, with Alaska in the northwest and Hawaii extending the nation's presence into the Pacific Ocean.[BN] The Plaintiffs are represented by: Jacob Yaakov Statman, Esq. SNIDER & ASSOCIATES, LLC 600 Reisterstown Road, 7th Floor Baltimore, MD 21208 Phone: (410) 653-9060 Fax: (410) 653-9061 Email: jstatman@sniderlaw.com UNITED STATES: Suit v. DETR Still Moving, But Judge Gives Warning ----------------------------------------------------------------- news3lv.com reports that the Reno attorney heading-up a class action lawsuit against Department of Employment, Training and Rehabilitation (DETR), on behalf of Pandemic Unemployment Assistance(PUA) claimants, says his case is moving forward in the Second Judicial District as well as at the Nevada State Supreme Court. "I know it doesn't look like it, but we actually gained some ground," said Mark Thierman about the hearing before Judge Barry Breslow. "The contempt is going forward, which is probably the best vehicle to get from the District Court's position to get things shaped up." The contempt issue arose over the plaintiff's claim that DETR hasn't obeyed Judge Breslow's previous mandates to begin paying PUA claimants. "It's not lost on the court that the plaintiff has filed a renewed motion, or a second motion, seeking an order of this Court holding the state in contempt for not fully following the writ of mandate," said Judge Breslow at the hearing. "This hearing, in part, was to inform each side about what the efforts were of the state to comply, and what efforts were made on the issues that had not yet been ordered as part of the court's writ." At times, the hearing became contentious. "DETR's not a person. Okay? It doesn't bleed like a person. It doesn't have children it has to feed like the plaintiffs. It doesn't have to make a car payment," Thierman said. Attorneys for DETR countered, saying DETR may not be a person, but it is staffed with many people dedicated to doing everything possible to get payments to claimants as quickly and efficiently as possible. Judge Breslow ultimately gave DETR a few more weeks to show progress but gave them a warning. "At some point in time, if this Court is concerned that those payments have not resumed in full for those groups of people, then there's going to be a reckoning," Breslow said. "That reckoning will be after a hearing where the state will be able to come in and convince the court that it has complied with the court's order." Thierman says relief could come from the Nevada Supreme Court, where he has filed an appeal. When asked how the state's high court might respond, Thierman said he hopes it will rule in two ways. "Anyone who got a letter that says you're approved, they [DETR] have to start paying. They have about 20,000 of those," said Thierman. "Anyone who got a letter saying you're not approved because you're approved in this other program, start paying on the other program, and that's 50,000. So, that's 70,000 people who would get benefits immediately." It is not known when the Nevada Supreme Court might rule on the appeal, but Judge Breslow has set a September 10 date to continue hearing the case in 2nd District Court.[GN] URBAN OUTFITTERS: Andrade Labor Suit Seeks to Recoup Proper Wages ----------------------------------------------------------------- ALISON ANDRADE, on behalf of all others similarly situated v. URBAN OUTFITTERS, INC., A CALIFORNIA CORPORATION; URBAN OUTFITTERS; ANTHROPOLOGIE; FREE PEOPLE; BHLDN, AND DOES 1-20, INCLUSIVE, Case No. 20STCV33377 (Cal. Super., Los Angeles Cty., Sept. 1, 2020), seeks to recover penalties under the Private Attorneys General Act, California Labor Code, arising from the Defendants' unlawful employment practices. According to the complaint, the Defendants violated various provisions of the Labor Code by implementing policies and practices, which led to unpaid wages resulting from their: (a) failure to accurately pay overtime wages, (b) failure to pay minimum wages (c) failure to provide meal periods and failure to pay an additional hour's of pay in lieu of providing a meal period; (d) failure to authorize and permit rest breaks for every four hours or major fraction thereof worked and failure to pay an additional hour's of pay in lieu of providing a rest period; (e) failing to pay all wages earned; (f) failing to pay all wages earned and owed upon separation from the Defendants' employ; (g) failing to provide accurate itemized wage statements; and (h) knowingly and intentionally failing to maintain accurate and complete records. The Plaintiff was employed by the Defendants for approximately eight months as a non-exempt employee working as a back house specialist/receiver specialist earning $14.50 per hour until her separation from the Defendants' employ in May 2020. Urban Outfitters, Inc., is a multinational lifestyle retail corporation. The Company operates retail outlets, such as Urban Outfitters, Anthropologie, Free People, and BHLDN, throughout California and Los Angeles County.[BN] The Plaintiff is represented by: Ronald W. Makarem, Esq. Cameron A. Stewart, Esq. MAKAREM & ASSOCIATES APLC 11601 Wilshire Boulevard, Suite 2440 Los Angeles, CA 90025-1760 Telephone: (310) 312-0299 Facsimile: (310) 312-0296 E-mail: makarem@law-rm.com Stewart@law-rm.com US BANK: Greenberg Traurig Attorneys Discuss Court Ruling in Thole ------------------------------------------------------------------ Robert J. Herrington, Esq., Stephen L. Saxl, Esq,. John K. Crisham, Esq., Phillip H. Hutchinson, Esq., Lisa M. Simonetti, Esq., and David G. Thomas, Esq., of Greenberg Traurig, LLP, in an article for The National Law Review, report that in the case styled Thole et al. v. U.S. Bank N.A. et al., 140 S. Ct. 1615 (2020), the Supreme Court affirms Eight Circuit decision on Article III standing, highlighting how a plaintiff must establish a concrete injury to file suit and that an "equitable or property interest" is insufficient. This putative class action under the Employee Retirement Income Security Act of 1974 (ERISA) was pursued by plaintiffs James Thole and Sherry Smith, retired participants in U.S. Bank's defined-benefit retirement plan (the Plan). The Plan guaranteed plaintiffs a fixed payment each month regardless of (1) the Plan's value at any one moment and (2) the investment decisions that had been undertaken by the Plan's fiduciaries. Nevertheless, plaintiffs alleged that defendants, including U.S. Bank, "violated ERISA's duties of loyalty and prudence by poorly investing the [P]lan's assets," and requested repayment of $750 million to the Plan. The U.S. District Court for the District of Minnesota dismissed the case and the Eighth Circuit affirmed, finding that plaintiffs lacked standing. In its decision, the Supreme Court affirmed the Eighth Circuit's decision on the ground that plaintiffs lacked Article III standing. At the heart of this decision was the fact that the Plan was a defined-benefit, and not a defined-contribution, plan; the latter is typically tied to the value of an account and benefits can turn on the plan fiduciaries' investment decisions, whereas the former is not. As such, plaintiffs were not missing any vested pension benefits. The Court explained, "Thole and Smith have received all of their monthly benefit payments so far, and the outcome of this suit would not affect their future benefit payments. If Thole and Smith were to lose this lawsuit, they would still receive the exact same monthly benefits that they are already entitled to receive, not a penny less. If Thole and Smith were to win this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny more. The plaintiffs therefore have no concrete stake in this lawsuit." The absence of a "concrete stake in the lawsuit" means that plaintiffs could not satisfy the first element of Article III standing, that is, a concrete, particularized, and actual or imminent injury. In so holding, the Court rejected plaintiffs' various attempts to establish standing, including their analogies to trust law and a contention that they had "an equitable or property interest in" the Plan (and thus necessarily any injury to the Plan is an injury to them as Plan participants). The Court highlighted that plaintiffs could have established standing by sufficiently alleging that the mismanagement of the Plan was "so egregious that it substantially increased the risk that the [P]lan and the employer would fail and be unable to pay the participants' future pension benefits." But plaintiffs had not done so, providing only a "bare allegation of plan underfunding." Barr v. Am. Ass'n of Political Consultants, Inc. et al., — S. Ct. —, 2020 U.S. LEXIS 3544, 2020 WL 3633780 (2020) Supreme Court finds 2015 government-debt exception to the Telephone Consumer Protection Act of 1991 (the TCPA) unconstitutional, but preserves general robocall restriction. This decision involved the scope of the TCPA, often the focus of class action lawsuits. In this case, plaintiffs (the American Association of Political Consultants and three other political system organizations) filed a declaratory judgment action asserting that their First Amendment rights were violated by the TCPA's prohibition on making robocalls to cell phones, which they believed would bolster their political outreach efforts. The District Court for the Eastern District of North Carolina determined that the robocall restriction with the government-debt exception implemented in 2015 required strict scrutiny, but that the law survived strict scrutiny because of the government's compelling interest in collecting debt. The Fourth Circuit vacated that judgment, agreeing that the robocall restriction, with its 2015 amendment, required strict scrutiny but disagreeing that the law survived such scrutiny. The Supreme Court agreed with the Fourth Circuit that (1) the robocall restriction was a content-based restriction, which required strict scrutiny, and (2) that the 2015 exception for debt collection could not satisfy such scrutiny, making it unconstitutional. But the Court found that the government-debt exception could be severed, leaving the general robocall restrictions in the TCPA. [GN] VICTORIA: Anti-mask Lawyers Seeking $200,000 for Class Suit ----------------------------------------------------------- news.com.au reports that lawyers who urged Melburnians to reject the chief health officer's mandatory mask directive are asking for $200,000 worth of donations to take Daniel Andrews, Brett Sutton and Jenny Mikakos to court. G&B lawyers, based in Sydney, created a crowd-funding page to raise money for a class action against the Victorian Government on which has so far received almost $10,000. They claim they are under "instructions" to file the action in the Supreme Court of Victoria on behalf of Victorians who have suffered directly because of "actions going well and truly beyond their powers". The fundraising page names ex-UFC fighter Viktor Grujic - who claimed he would "never bow to a dictatorship" and never wear a mask - and fishing and tackle shop owner Paul Lay as lead plaintiffs. [GN] WELLS FARGO: Settles Lawsuit Over Lending Policies for Immigrants ----------------------------------------------------------------- Courthouse News reports that under a class action settlement approved by a federal judge, Wells Fargo will change its lending policies to extend student loans and other lines of credit to DACA recipients on the same terms and conditions as U.S. citizens. It will also pay $18.7 million to compensate DACA recipients who were turned down for student loans, credit cards, mortgages and other loans because they did not meet Wells Fargo's citizen or immigration status requirements. The award will be divided into payments of $4,750,000 to $13,100,000, depending on the number of people who file claims, and the settlement says at least 50,000 DACA recipients are eligible for payments. Lead plaintiff Mitzie Perez is one of some 800,000 young people who was granted protection from deportation through Deferred Action for Childhood Arrivals. The program created through executive order by President Barack Obama in 2012 protects qualified applicants from deportation if they were brought here as children and have clean records. They may apply for and be granted work permits good for two years, which can be renewed. Perez sued Wells Fargo in 2017 while she was a junior at the University of California, Riverside, after she was denied a student loan through its website. Perez says the denial happened after she answered a question about her citizenship status, a violation of equal rights to enforce contracts under 42 U.S. Code § 1981. Wells Fargo said through a spokesman that it was pleased that U.S. District Judge Maxine Chesney approved the agreement, pointing to its announcement in March about plans to expand DACA recipients' access to credit. Chesney also approved on a $1.185 million settlement between Wells Fargo and a class of DACA recipients excluded from receiving auto loans. The agreement estimates that roughly 400 people could receive payments between $280,000 and $630,000, depending on the number who file. [GN] YAYYO INC: Rung Suit Removed From Super. Court to C.D. California ----------------------------------------------------------------- The case styled IVAN RUNG, on behalf of all others similarly situated v. YAYYO, INC, RAMY EL-BATRAWI, JONATHAN ROSEN, KEVIN F. PICKARD, HARBANT S. SIDHU, JEFFREY J. GUZY, CHRISTOPHER MIGLINO, PAUL RICHTER, AEGIS CAPITAL CORP., WESTPARK CAPITAL, INC. and DOES 1-25 inclusive, Case No. 20STCV27876, was removed from the Superior Court of California for the County of Los Angeles to the U.S. District Court for the Central District of California on September 2, 2020. The Clerk of Court for the Central District of California assigned Case No. 2:20-cv-08017-PA-AGR to the proceeding. The lawsuit is brought over alleged violation of the Class Action Fairness Act of 2005. YayYo, Inc., develops and delivers a rideshare booking and cost comparison application. The Company offers a metasearch application for smartphones that provides price comparison and booking of available ride sharing, as well as taxi and public transportation services. Aegis Capital Corp. provides a variety of investment banking services including equity financing, debt financing and private equity banking. WestPark Capital, Inc. is a full service investment banking and securities brokerage firm, which serves the needs of both private and public companies worldwide, as well as individual and institutional investors.[BN] The Defendants are represented by: Julie E. Kamps, Esq. WESTPARK CAPITAL FINANCIAL SERVICES, LLC 1900 Avenue of the Stars, Suite 310 Los Angeles, CA 90067 Telephone: (310) 203-2942 Facsimile: (310) 843-9389 E-mail: jkamps@wpcfs.com [*] Greenberg Traurig Discusses Class Action Updates ---------------------------------------------------- Robert J. Herrington, Esq. -- herringtonr@gtlaw.com -- Stephen L. Saxl, Esq. -- saxls@gtlaw.com -- John K. Crisham, Esq., Phillip H. Hutchinson, Esq., Lisa M. Simonetti, Esq., David G. Thomas, Esq., of Greenberg Traurig, LLP, in an article for The National Law Review, report that in the case styled Johnson v. Enhanced Recovery Co., 961 F.3d 975 (7th Cir. 2020), the Seventh Circuit reiterates the Fair Debt Collection Practices Act "unsophisticated consumer" standard. Plaintiff filed a putative class action alleging that defendant debt collector violated the Fair Debt Collection Practices Act (FDCPA) by sending misleading letters to consumers. On appeal, plaintiff argued that, by including the date of May 26, 2016 with the first listed settlement offer, and stating that the delinquent account "may be reported" to credit bureaus, followed by the assurance that "[p]ayment of the offered settlement amount will stop collection activity on this matter," the letter gave the impression that credit reporting could be avoided by accepting the first listed settlement offer and paying by May 26, 2016. The Seventh Circuit first ruled that the district court had properly denied defendant's motion to dismiss because it was plausible that a debtor would be misled by such language. The panel then addressed the district court's decision to grant defendant's motion for summary judgment because plaintiff failed to present any evidence beyond her own opinion that the letter was misleading. Plaintiff argued that no further extrinsic evidence was necessary upon a showing of ambiguity in the language of the letter, as the ambiguity itself should be enough to show confusion. The Seventh Circuit noted that it had rejected the "least sophisticated consumer" standard used by other circuits in favor of its own "unsophisticated consumer" standard, under which a letter must be confusing to "a significant fraction of the population." The panel further explained that, when the debt collection language is not deceptive or misleading on its face but could be construed so by the unsophisticated consumer, plaintiff cannot prevail without producing evidence showing that unsophisticated consumers are in fact confused or misled. The Seventh Circuit reasoned that, although plaintiff explained how the letter could be read, plaintiff failed to present evidence on how the letter is actually read by consumers and thus failed to meet her burden. Rios v. Bayer Corp., 2020 IL 125020 (Ill. 2020) Illinois Supreme Court ruled that Illinois courts lack personal jurisdiction over nonresident defendants when there is no meaningful link between defendants' conduct in Illinois and the nonresident plaintiff's claims. This appeal addressed a jurisdictional dispute between a nationwide group of 95 plaintiffs and defendant manufacturers of a contraceptive device. Plaintiffs argued that "Illinois courts had specific personal jurisdiction over" defendants because defendants marketed the product in Illinois while also "us[ing] Illinois to develop, label, or work on the regulatory approval for" the product. The Court disagreed, highlighting the need to "assess whether the nonresident defendants' contacts with Illinois suffice to satisfy both federal and Illinois due process." Relying on Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), the Illinois Supreme Court found that plaintiffs' theory of specific personal jurisdiction failed. The Court held that, despite defendants' activity in Illinois, where they conducted clinical trials and developed marketing strategies, these activities did not have any meaningful relation to plaintiffs' claims and thus failed to provide a basis for specific personal jurisdiction. Lewis v. Lead Indus. Ass'n, 2020 IL 124107 (Ill. 2020) Illinois Supreme Court rules that plaintiffs cannot maintain a claim that rests solely upon economic injury without having suffered an economic loss. This case involved a class action under Illinois' Family Expense Act and Public Aid Code. After having their children undergo blood lead screening in accordance with the Illinois Lead Poisoning Prevention Act, plaintiff parents asserted a variety of allegations against defendants to recover costs for the blood tests. While plaintiffs conceded that the testing had been paid for by Medicaid and third-party insurers, they argued that, under the collateral-source rule that these payments did not negate their economic injury. The circuit court disagreed and granted defendants' motion for summary judgement, dismissing all claims. The court determined that plaintiffs had no liability nor obligation to pay for the blood testing under state or federal law and held that plaintiffs had suffered no injury. The Illinois Supreme Court held that plaintiffs' claim was invalid due to the absence of an economic injury. The Court determined that arguments based on the collateral source rule "put the cart before the horse, as the relevant threshold question was whether plaintiffs could establish an injury at all." In assessing both the Family Expense Act and Public Aid Code, the Court determined that neither act created any obligation or liability for plaintiffs. Based upon this finding, the Court determined that plaintiffs had failed to establish an economic injury, a required element of their intentional misrepresentation claim. Eighth Circuit Class Action Update Summer 2020 Vogt v. State Farm Life Ins. Co., __ F.3d __, 2020 WL 3477011 (8th Cir. June 26, 2020) Eighth Circuit affirms $34 million jury verdict in favor of a class. This case involved allegations that the defendant life insurer had impermissibly included non-enumerated factors when it calculated the Cost of Insurance (COI) fees assessed on plaintiffs' life insurance policies. Defendant allegedly had "deducted from the monthly premium payments more than what [their policies] stated would be included in the COI fees" thus violating the terms of the policies. The district court certified the class and eventually a jury returned a $34 million verdict in the class's favor. On appeal, defendant argued that some class members received a credit during the period in which the alleged overcharges occurred and that the credit "created a set-off that left the class members without any damages." Because of this, defendant argued that the class members did not suffer an injury, did not have standing, and their inclusion in the class caused class certification to be inappropriate. The panel rejected this argument, reiterating the holding in Stuart v. State Farm Fire and Casualty Company, 910 F.3d 371 (8th Cir. 2018). Specifically, the Vogt panel concluded that this argument went to the merits of the plaintiff's claims – not standing – because "a party to a breached contract has a judicially cognizable interest for standing purposes." Because of this, and because the district court amended "the class definition following the jury trial to exclude those class members who suffered no damages," the panel affirmed the district court's grant of class certification. Tenth Circuit Class Action Update Summer 2020 Amy G. v. United Healthcare, No. 17-cv-413, 2020 WL 3065414 (D. Utah June 9, 2020) District of Utah denies motion for class certification because proposed class lacked commonality. In a case involving health insurers' denial of insurance coverage for wilderness therapy programs, plaintiffs sought to certify a class of "any member of a health benefit plan governed by ERISA in the time frame from May 17, 2013, to the present whose health benefit plan was administered by Defendants, who paid for a wilderness therapy program, and for whom Defendants refused to authorize or pay the wilderness therapy program claim based on an exclusion that the wilderness therapy was experimental, investigational, or unproven." Their efforts failed, though, because the District of Utah held, among other things, that the proposed class lacked commonality. Before plaintiffs' class certification motion, the parties had engaged in discovery showing that some individual's claims for wilderness therapy had been paid in full or in part by defendants. According to the court, the existence of those individuals "undercut[] the premise that defendants [had] a uniform policy of exclusion based on wilderness therapy being experimental, investigational, or unproven." The court also explained that there were "[d]ifferences in the proposed class members' medical conditions, the type of wilderness therapy and programs for which coverage was sought, and the terms of the proposed class members' benefits plans." As such, the court held that there were no "common question of law or fact . . . capable of classwide resolution" and denied the motion for certification. [GN] [*] Jackson Lewis Attorneys Discuss COVID-19 Litigation Risks ------------------------------------------------------------- Stephanie L. Adler-Paindiris, Esq., David R. Golder, Esq., and Eric R. Magnus, Esq., of Jackson Lewis P.C., in an article for The National Law Review, report that employers continue to grapple with an ongoing, unprecedented public health crisis caused by the COVID-19 pandemic and its after-effects, which have profoundly disrupted the nation's economy and U.S. workplaces. With little advance warning, employers were forced to close worksites, transition employees to home offices, furlough or lay off large segments of the workforce, and protect "essential workers" from the hazards of a global pandemic. U.S. businesses also had to quickly interpret and comply with official directives from state, local, and federal governments, an especially challenging endeavor for multistate employers navigating varying and complex mandates at several locations. With the U.S. economy ramping up again and businesses cautiously reopening, employers must determine who, and how many, to recall; return homebound staff to the office; and implement new safety practices and protocols, often in the face of employee resistance. Employers must reimagine the workplace in order to manage litigation risk in this post-COVID-19 "new normal." They must revisit and update existing employment policies and practices as the evolving nature of the global pandemic unfolds. As employers strive to operate a business and manage a workforce amid a volatile economic climate and evolving pandemic, they simultaneously must consider what is sure to be a surge in COVID-19 related class litigation in the coming months. In this issue of the Class Action Trends Report, attorneys in the Jackson Lewis Class Actions and Complex Litigation Practice Group discuss the most pressing workplace class action litigation risks arising from the COVID-19 pandemic, and how best to minimize them. Disability and leave-related challenges As employers turn their attention to reopening, they must contend with new laws and rules at the federal, state, and local levels. As a result, novel disability accommodation and employee leave issues are arising that, if not handled properly, could open the door to class litigation. Disability accommodation and employee leave cases typically arise as individual employee actions. However, with the pandemic comes a heightened risk of multi-plaintiff cases, threatening potential classwide liability if employment policies and practices are not up to par. The nature of COVID-19 means there is a real possibility that groups of workers may fall ill, or take (and return from) leave to care for themselves or others. Legislation has been rushed through Congress with little time for employers to prepare. Indeed, employers already are defending claims alleging they failed to provide required leave under newly enacted federal law. Is COVID-19 a disability? The law is unclear whether COVID-19 is itself a disability under the Americans with Disabilities Act (ADA). However, employers must avoid regarding employees who are diagnosed with COVID-19, or have recovered from the virus, as being disabled or having a record of a disability, and taking adverse actions against them based on those perceptions. In fact, officials in the New York district office of the Equal Employment Opportunity Commission (EEOC) noted that the agency had received an increasing number of charges relating to the COVID-19 pandemic, all of which alleged violations of the reasonable accommodation mandate of the ADA. The New York State Division of Human Rights, and its New York City counterpart, also indicated a growing number of such complaints, many of which were brought by workers with disabilities who contend their employer refused to recall them due to health and exposure concerns. "Regarded as" disabled. Because there is no clear guidance on whether COVID-19 is a disability under the ADA, it's also unclear whether regarding someone as having COVID-19 would be a violation of the law. Employers can expect litigation surrounding these issues. We expect to see regarded-as-disabled claims by employees who are perceived to have pre-existing conditions, are immunocompromised, or have COVID-19. To avoid the potential for classwide "regarded as" or "record of" claims, managers should be trained not to automatically assume that employees who return after recovering from COVID-19 are unable to perform their duties fully. Handle each employee's situation individually. Allow vulnerable employees to self-identify if they fall within a "high-risk" category. Requests not to return to work. As states and municipalities loosen their stay-at-home rules and employers begin to reopen, employers are fielding employee requests not to return to the workplace, for reasons varying from a disabling medical condition to generalized fear. While these requests may be unique to the COVID-19 crisis, the rules around reasonable accommodation have not changed, and they apply in this setting. Employers may request that the employee provide a reason(s) for the request not to return to the workplace so that it can determine if the apprehension is due to a valid physical or mental medical condition. Begin the interactive process if the employee's stated reason for refusing to return to work is due to: (1) the individual's status as part of a vulnerable population; (2) being a caretaker or residing with someone who is part of a vulnerable population; or (3) having been advised by a medical care provider to isolate due to a medical condition. Even if there is not a documented medical reason for an employee's reluctance to return, the employer should nonetheless treat the matter with sensitivity and consider temporarily allowing telecommuting or unpaid leave, if feasible. What if an employee refuses to return? Request the employee provide reason(s), in writing. Consider the reason(s). Determine whether any state/local or federal leave laws would apply. If protected leave is not applicable, should you consider a disability accommodation analysis? If so, engage in the interactive process. Consider an unpaid leave of absence or eligibility for benefits. If the employee has safety concerns, advise the employee of all the safety protocols and policies the company has put in place. Requests not to use personal protective equipment (PPE). Can an employee refuse to wear a mask, or other PPE, if company policy requires this safety measure? Mask-wearing has become a politically charged topic, and some individuals are adamant about not wearing one. An employer need not honor philosophical objections, particularly given the risk posed to other employees. Employers already face suits alleging that emergency FMLA or paid sick leave should have been granted under the new law but they were denied -- or worse, were discharged in retaliation for seeking leave. However, some requests to be excused from a mask requirement may be based on legitimate medical reasons. An employer should treat such requests as it would any other accommodation request. Follow the same steps, including documentation. Even if there is a disability at issue, allowing the employee to come to work without a mask or other PPE may pose an undue hardship if it puts other employees at risk. In this instance, working from home or unpaid leave may be an option. Reasonable accommodations. Is telecommuting a reasonable accommodation for a disability? Has the employer operated successfully with administrative staff working remotely due to shelter-in-place orders? If so, the employer may want to reconsider restrictive blanket policies against telecommuting and be mindful when relying on the undue burden defense as a reason to deny an employee's request to continue telecommuting as an accommodation. Other possible accommodations in addition to telecommuting include paid or unpaid leave, and implementation of additional safety precautions at the employee's worksite that will allow the employee to safely perform the essential job functions. Also, keep in mind that the duty to accommodate does not cease just because employees are working from home. How long must an accommodation be in place? Determining the duration of an accommodation presents another challenge, particularly given the unpredictability of COVID-19 itself. Like all accommodation analyses, the duration of this accommodation must be evaluated based on the particular workplace and the individual employee's needs, not a companywide policy. FFCRA presents novel leave issues. With the swift passage of the Families First Coronavirus Response Act (FFCRA), employees have expanded rights to seek protected leave or reasonable accommodations. Employers covered under the FFCRA are required to make Emergency Family and Medical Leave and Emergency Paid Sick Leave available to employees. Employers already face suits alleging that emergency FMLA or paid sick leave should have been granted under the new law but they were denied -- or worse, were discharged in retaliation for seeking leave. There is also litigation addressing the threshold question whether an employer is covered under the federal statute. Scrutiny of whether an employer was subject to the requirements of the FFCRA will be ongoing. The statute's 500-employee rule, which limits statutory coverage to employers with fewer than 500 employees, has been applied differently by different companies. Some have grouped subsidiary or parent companies together to meet the numerical threshold, for example; this will likely result in a legal challenge. An employee may not be entitled to leave under the FFCRA while on furlough; however, recalling employees can trigger leave entitlements. An employer cannot simply place a recalled employee on furlough if the employee indicates they are unable to return due to an FFCRA-covered reason, such as to take care of a vulnerable family member or a child who is unable to attend school or daycare due to the pandemic. In these instances, the employer can request information from the employee, including the identifying characteristics of the child and their school, and require the employee to certify that there is no other suitable person available to care for child. Discrimination claims As employers reorganize their workplace, they are forced to make difficult decisions, about layoffs, furloughs, and which employees will be brought back once operations resume. These decisions, which necessarily treat some employees more favorably than others, are always subject to legal challenge; the sheer number of furlough and layoff decisions necessitated by COVID-19 increases the risk of class actions by magnitudes. Layoffs and furloughs. Employers may face disparate impact discrimination claims if layoff and furlough decisions disproportionately affect certain groups of employees based on a protected characteristic. Claims arising out of mass layoffs typically allege discrimination based on age, gender, and disability. The risk of a claim is greater when employers are forced to lay off or furlough a small segment of a larger workforce; the risk tends to drop when such decisions affect whole departments or the entire company. Recalling employees. With reopening, employers must consider which positions must be restored to work, and adopt neutral, nondiscriminatory selection criteria -- such as seniority, performance, or job classification -- in deciding which employees to return to fill those positions. Make sure that return-to-work policies and selection criteria do not have a disparate impact on a protected category of individuals. Do not assume that certain employees cannot or should not return based on childcare needs or caregiving responsibilities, for example; these assumptions may lead to discrimination claims. Employers also may not keep from recalling individuals they perceive to be at heightened risk of contracting COVID-19 or suffering severe complications from the virus, due to their age, disability or preexisting health condition, or pregnancy. Those considered particularly vulnerable to COVID-19 include people over 65 years of age; people who are immunocompromised; and those with a serious heart condition, severe obesity, diabetes, or liver disease. An employer may not ask an employee if they have one of these conditions; however, if the employee requests a COVID-19-related accommodation, the employer may inquire into whether the employee has a condition that makes them vulnerable. This can get tricky, particularly given the unusual amount of discussion at present about employees' medical conditions and current symptoms, which provides more opportunity for missteps. Moreover, it may seem intuitive to want to protect vulnerable employees. However, the instinct to do so exposes the employer to disparate impact claims (as well as individual disparate treatment actions). Consult legal counsel for guidance in addressing safety concerns about high-risk employees and about the proper handling of accommodation requests. Exposed employers Either due to the types of claims that are amenable to class treatment or the essential nature of the employer's operations, certain industries are most acutely affected by the pandemic, and the litigation surge: Healthcare Retail employers Restaurants and hospitality Casinos, movie theaters, and entertainment Airlines, cruise lines, and other travel businesses Gyms and other membership organizations Colleges and universities Wage and hour pitfalls Without warning, COVID-19 forced employers to quickly cut payroll costs, leaving them with hard choices. For some, widescale layoffs were inescapable; others were able to implement full or partial furloughs, curtail overtime, or cut wages. Employers also were faced with the equally critical need to ensure that employees who remained on the payroll were kept safe from the dangerous virus to the fullest extent possible. The difficult choices made, both to control costs and protect employees, bring potential wage and hour liability. Class wage and hour claims are always fertile ground for plaintiffs' lawyers; however, employers can anticipate a surge in the number and variety of wage claims arising from the pandemic and the strategies pursued by employers in response. Exempt employee errors. The biggest wage and hour risk with respect to exempt employees is that a COVID-related change to duties or salary will result in those employees losing their overtime-exempt status. Committing these errors in an effort to control payroll expenses in the short term can wind up costing a significant amount in the long term if employees are inadvertently converted to nonexempt (and overtime-eligible) status: Slashing salary. Employers have cut exempt employees' pay in order to contain costs in the short-term. But if the reduction drops their pay below the Fair Labor Standards Act (FLSA) salary threshold of $35,568, they are no longer exempt. Botching the salary-basis test. For the FLSA overtime exemption to apply, an employee must be paid on a "salary basis." Employers that adopt partial-week furloughs, and link a reduction in pay to a corresponding reduction in work hours, will fail the salary basis test. Exempt employees must get paid for the entire week, even if they are moved to a four-day workweek during the pandemic. Performing too much nonexempt work. Exempt managers have been taking on more nonexempt duties to cover staff who were laid off or had their hours cut, stocking store shelves, performing administrative tasks, and other functions. When nonmanagerial activities take up too great a share of an exempt employee's time, then the manager's primary duty may no longer be management, and they are no longer exempt. In a July 20 guidance, the U.S. Department of Labor (DOL) indicated that "during the period of a public health emergency declared by a Federal, State, or local authority with respect to COVID-19, otherwise-exempt employees may temporarily perform nonexempt duties that are required by the emergency without losing the exemption." Unclear, however, are which duties will be deemed "required by the emergency," how long this temporary reprieve will last, and what criteria will be used to mark its expiration. "Outside salespersons" who are not travelling. Due to stay-at-home orders, other travel restrictions, and closures of customer facilities, outside salespersons may no longer be spending the requisite amount of time away from their employer's place of business engaged in sales activities. Restrictions on travel and on visiting actual and prospective customers may therefore cause these salespersons to fall outside of the "outside salesperson" exemptions available under the FLSA and various state laws. Off-the-clock concerns. Nonexempt hourly workers are taking on additional productive work, and preventive work, in light of the pandemic, for which they may require extra compensation. Consider these workplace scenarios currently unfolding: Donning, doffing, temperature checking. Getting ready to work takes longer due to COVID-19. In one class complaint already filed, for example, county correctional officers claimed they weren't being paid for the 20-30 minutes they spent each shift, at the beginning and end of their shifts, sanitizing themselves, their uniforms, and their PPE, tasks made essential by the pandemic. Consider the extra time employees will spend donning masks, gloves, or other protective gear pre-shift, or sanitizing their workspace post-shift. Many employers will require employees to undergo temperature checks before entering the jobsite. Is this time compensable, or will it be so brief as to be "de minimis"? It will depend in part on the facts: How quickly can you move employees through the temperature screening? How long must they wait in line before getting their foreheads swiped? It will also depend on the law, including which state's "de minimis" principle applies to waiting-time claims. Tracking telework. Administrative employees working from home maximize their safety and the safety of on-site staff. However, when nonexempt employees telecommute, productive time may intrude on off-the-clock time. Are employees answering emails well into the night? Are they attending Zoom meetings through lunch? Insist that they carefully document their time, and prohibit them from working overtime without prior approval. Make it clear that failure to document work time or working extra hours without supervisor approval will be grounds for disciplinary action. (If an employer knows or has reason to know about employees' extra work time, it likely will be compensable.) Post-pandemic training. How has the work, and the workplace, changed because of COVID-19? Will employees require training on new "contactless payment" devices and procedures, or additional safety measures now required of them? Employees must be compensated for the time spent in training. State-law provisions. Compliance with state-law mandates is a particular challenge for employers that operate in numerous states, especially when those states include California, New York, or other jurisdictions with significantly more employee-protective wage and hour laws. Here, too, COVID-19 adds to the complexities. Meal and rest breaks. With social distancing restrictions, lunch and break time will be markedly different. Break rooms may be off-limits to deter employees from gathering in close proximity. Lunch periods may be staggered to eliminate crowded cafeterias. Some employees will be wary of going out to a restaurant for lunch; some employers are carefully restricting what comes into the workplace, including takeout food. And some employees will simply find it's not worth the bother to don and doff PPE to take their lunch hour. The end result is many employees will work through lunch, taking lunch at their desks and being interrupted by coworkers who don't know they're on their lunch hour. The situation is ripe for meal and rest-period claims. Expense reimbursements. Many states have statutes that govern employer reimbursement for the costs of telecommuting, such as internet, laptops, and cell phones. Employees working on-site may have to be reimbursed for mandatory PPE. While employers are hard-pressed to take on added operational costs right now, the failure to reimburse these incidental expenses can be even more costly, particularly when computed on a classwide basis. Payment upon termination. State laws govern when employees must be paid, including when they must be given their final wages, and unused, accrued time off. Such compensation is typically required within a certain time after termination of employment. But compliance is not straightforward, particularly when employers are grappling with whether furloughed employees will be called back or finally be terminated. When a furlough becomes a layoff, final payment due (of any accrued vacation pay, and the like) may be deemed untimely. Nonpayment of wages. Abrupt business shutdowns caused by COVID-19 have left a historic number of employees without work. Regrettably, many former employees have been left without paychecks for hours already worked. (Indeed, the DOL has reported a sharp uptick in such claims.) Nonpayment of wages is a fairly clear-cut violation of the law, and can typically be addressed through state and federal labor agencies. However, some state laws provide a private right of action for employees who were denied their final paychecks, allowing additional relief above backpay. New and novel claims. In one recent minimum wage and overtime complaint, a class of tipped servers and bartenders sued their employer, which operates a chain of restaurants in Ohio. The employees are usually paid at the tip-credit rate (a sharply reduced minimum-wage rate for employees who earn a portion of their earnings through customer tips) and retain the tips they receive from customers. However, they allege that since May, the employer has been paying them a set weekly rate, rather than the reduced tip-credit rate, and keeping 100 percent of the tips paid to them by credit card. In addition, they now must share their cash tips with nontipped employees (a violation of the FLSA's tip-credit provisions). The employees claim that the employer altered the compensation scheme so as to maximize its COVID-19 loan forgiveness under the federal Paycheck Protection Program (PPP). By compensating tipped employees in set wages (and cutting the portion of pay they earn in tips), the employer is looking to compensate these employees using solely forgivable PPP money -- while shorting them on pay, they contend. In addition, the FFCRA contains a wage and hour trap for the unwary. The statute provides that violations of its paid-sick leave provisions constitutes a failure to pay minimum wages, creating yet another potential cause of action for employers to heed. It is vital that employers stay abreast of these and other unique, COVID-19-specific potential claims. Amenable to class treatment? The wage claims that arise in the context of the COVID-19 shutdown are particularly susceptible to class and collective actions because they tend to be based on sweeping, companywide decisions, affecting large numbers of employees on a common basis. Therefore, for wage and hour violations, the stakes are quite high. As employers reopen, it is essential they pay close attention to ensuring their wage and hour practices are fully compliant. WARN Act suits COVID-19 has forced many employers to abruptly shutter their operations or lay off large numbers of workers, making a steady rise in Worker Adjustment and Retraining Notification (WARN) Act class actions likely. WARN Act claims already have been filed by workers alleging they were terminated during the pandemic without receiving advance notice, as required under the WARN Act, and there will be more coming in the next six-to-12 months. For example, employees of a restaurant chain sued, on behalf of a putative class of nearly 700 employees, after restaurant closures prompted their layoff without notice. A rental car franchise faces a class action by employees who were initially furloughed, then terminated, without proper WARN Act notice. Such lawsuits are not surprising in this sudden, drastic economic downturn. Even if phase one of the pandemic seemingly arrived out of nowhere, whether a second wave can be considered "unforeseen" under the WARN Act at this point will perhaps be a thornier question for employers to contend with. As employers continue to adjust the size of their workforce during this uncertain business climate, understanding the WARN Act's notice obligations and implementing layoff decisions with an eye to warding off potential WARN Act liability is critical. The WARN Act requires employers with at least 100 employees to give 60 days' notice before closing a plant, on a temporary or permanent basis, or before conducting a mass layoff lasting for more than six months. There are a multitude of legal issues in dispute in WARN Act cases, including whether the employer's action was a "plant closing" or "mass layoff" (i.e., affecting 33% of the workforce or at least 500 employees, excluding part-time workers) that triggers the notice requirement, and whether the given actions amounted to an "employment loss" (under the statute: job loss exceeding six months, or a reduction in hours of more than 50% in each month). Unforeseen business circumstances? The question that looms largest is whether the COVID-19 pandemic is an "unforeseen business circumstance," to which an exception to the WARN Act notice requirement applies. Under WARN Act regulations, an "unforeseen business circumstance" is not reasonably foreseeable; the "circumstance is caused by some sudden, dramatic, and unexpected action or condition outside the employer's control." The WARN Act regulations do not clearly state what does, or does not, constitute an unforeseen business circumstance. The regulations provide examples of unforeseeable business circumstances, however, such as "an unanticipated and dramatic major economic downturn." At first glance, this example would suggest the pandemic, stay-at-home orders, and economic downturn would easily provide an unforeseen business circumstances defense against a WARN Act claim. While the pandemic arguably would qualify, the question will be litigated, and employers should not assume a court will automatically accept this defense. Whether the exception applies is decided on a case-by-case basis, depending on an employer's unique business circumstances. Importantly, the unforeseen business circumstances exemption does not relieve employers from providing WARN Act notice altogether; rather, it allows employers to provide less than 60 days' notice. The employer must give layoff notice as soon as practicable. Whether timely or "as soon as practicable," employers should document when they give the requisite notice to employees. What of the widely anticipated "second wave" of the COVID-19 pandemic? Even if phase one of the pandemic seemingly arrived out of nowhere, whether a second wave can be considered "unforeseen" under the WARN Act at this point will perhaps be a thornier question for employers to contend with. Telecommuters and multiple worksites. Even before the COVID-19 pandemic, a growing number of employees performed work outside of their employer's physical location. According to the Bureau of Labor Statistics, more than 26 million people worked from home, at least some of the time, in 2018. The COVID-19 pandemic, of course, has added exponentially to the ranks of telecommuters. However, for WARN Act notice requirements to apply, a mass layoff or plant closing must have occurred at a "single site of employment." This raises the question of where telecommuters fit into the "single site" analysis. WARN Act regulations state that for workers who are out-stationed, or whose primary duties involve work outside any of the employer's regular worksites, the single site of employment is: the location to which workers are assigned as their home base; the location from which workers are assigned duties; or the location to which they report. On its face, it may appear that a potential class of telecommuters could establish a single site of employment. However, federal courts disagree on whether the WARN Act applies to teleworkers at all. For example, the Fourth Circuit has held that the single site of employment regulation only applies to "mobile workers" who lack a regular, fixed place of work, not a telecommuter who works at home. The answer thus may vary by jurisdiction. Employers should confer with counsel to determine whether WARN Act protection extends to telecommuters in their jurisdiction. Rolling layoffs. The WARN Act's 90-day aggregation rule requires employers to prepare for subsequent rounds of layoffs. Under this "look back" provision, if a subsequent round of layoffs related to the first round passes the numerical threshold for WARN Act coverage, an employer may be liable for failure to provide notice during the first round. Many employers understandably have chosen to furlough employees given the uncertainty, but as those furloughs approach six months, the WARN Act will come into play and likely be the subject of litigation. When "furloughs" become layoffs, the duty to provide notice may arise. Given the present economic uncertainty and the impending second wave, employers should prepare for the possibility of additional layoffs in the coming months that may implicate the aggregation rule, and continue to evaluate their potential WARN obligations in a rolling fashion until the employer's normal operations are fully restored. Practice pointers. Consider these measures to protect the organization from WARN Act liability: Documentation. Carefully document and maintain all information relied on in making furlough and layoff decisions, include the decision-making timeline. Provide notice as soon as practicable. The WARN Act exemptions and defenses do not relieve an employer from the law's notice requirements; they simply allow employers to provide less than 60 days' notice. Even with the unpredictable nature of the COVID-19 pandemic, employers should provide notice of closings or layoffs as soon as practicable. Conditional notice. Employers can provide conditional notice when it is unclear whether layoffs will occur. The notice must specify the event that would trigger layoffs. Given the uncertainty of the COVID-19 pandemic, employers, especially those that have remained open or have recently reopened, should discuss the possibility of providing conditional notice to employees. Follow "mini-WARN" laws. Many states have their own WARN statutes which have unique notice periods for plant closings and mass layoffs, or a different threshold of employment losses before notice requirements are triggered. Determine whether your organization is subject to any "mini-WARN" mandates and ensure compliance with any state-law requirements that are more stringent than the federal WARN Act. (Some states have suspended temporarily their WARN law's notice requirements in light of the public health crisis.) A global pandemic of this magnitude is unlike anything in modern history; consequently, there is little guidance or precedent upon which employers (or courts) can rely in deciding complex WARN Act issues. However, one reliable constant is that these cases turn on factual inquiries. In analyzing COVID-19-related layoffs under the WARN Act -- and in particular, whether the public health crisis excused compliance with notice requirements -- courts will consider the company's own fiscal health, as well as the state of the economy, directives from local, state, and federal government officials, and the state of the pandemic itself. COBRA notice actions Even before the onset of the COVID-19 pandemic, employers were contending with an explosion of class litigation under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA notice claims have emerged as the latest "gotcha" causes of action (much like the Fair Crediting Report Act wave that preceded it) alleging purely technical violations of a complex statute resulting in little harm to the plaintiffs. In fact, COBRA notice class actions have been growing more rapidly than almost any other type of ERISA litigation. Many employers have responded to the economic turmoil brought on by COVID-19 by furloughing employees and keeping them on their company's benefits plan (and paying the premiums). Still, class actions can be expected over whether notices should have been provided when employees were furloughed and whether employees are covered by their employer's insurance policies. Many other employers have had no choice but to eliminate staff, spurring a wave of COBRA-qualifying events (including classwide qualifying events) and, with it, a new wave of claims. At present, new class action COBRA suits are being filed every week. Privacy and data security breach litigation also was rising sharply pre-COVID-19 and, with the current crisis, the upward trajectory will be steeper. Employees can lose employer-provided health benefits when they are laid off or terminated; they also can lose employee benefits when their work hours are cut from full-to part-time. COBRA entitles these individuals to continue coverage for a temporary period (although they must pay the employer's share of premium contributions toward coverage). Employers must notify covered employees of that entitlement in timely fashion following the qualifying event. COBRA and its implementing regulations require employers to provide specific forms of notice to covered individuals. The DOL has a model COBRA notice that employers can use in its entirety and be confident they have satisfied their statutory notice obligations. Commonly, though, employers tailor the model notice for clarity, or to strike provisions that seemingly don't apply. Herein lies the risk. Although there is no case precedent holding that an employer's notice must be identical to the model notice in order to comply with the COBRA regulations, class action suits have charged that these deviations from the model render the employer's notice "deficient." According to these complaints, the employer's notice did not include a termination date, did not clearly identify the plan administrator, or were otherwise allegedly insufficient. For plaintiffs' counsel, the appeal in bringing such claims are the statutory penalties: $110 per day, per person, for violations. These can rapidly amount to millions of dollars in damages. COBRA complainants also seek equitable relief and medical expenses incurred after expiration of their coverage. However, employers have strong defenses to these claims on the merits, on standing (particularly, no showing of harm or prejudice to plaintiffs), and as to the propriety of class certification. Many COBRA cases have survived motions to dismiss, however, which means employers must continue to incur the considerable costs of defending such claims. Consequently, it's essential that employers take steps to mitigate exposure: Know what notice is required under COBRA and its regulations, and stay abreast of regular changes to these requirements. Look carefully at the DOL's model notice to ensure that any deviations in form or substance nonetheless conform to the essential notice requirements reflected therein. Work closely with your third-party COBRA vendor to ensure compliance. Finally, don't lose sight of the employee benefits implications of the workplace strategies you undertake as you steer the organization through the current crisis. Privacy and data security threats Privacy and data security breach litigation also was rising sharply pre-COVID-19 and, with the current crisis, the upward trajectory will be steeper. Pre-COVID-19, there were many factors driving such claims, including new statutory protections, which have ushered in new causes of action; expanded uses of technology; and new forms of cyber-criminal activity, leaving employees' and consumers' private information more vulnerable to hacking. With COVID-19 and the economic downturn, several other factors have come into play, including the sudden, rapid growth in telework; the reliance on video conferencing for work, church, and social activities; and the collection and dissemination of protected health information to control the spread of the virus. Government stay-at-home orders have forced millions of U.S. workers to work remotely. However, the emergency transition gave employers little lead time to institute protection protocols, implement written data security policies, train employees in remote cybersecurity best practices, and prepare for the spike in IT demand. This presents a ripe opportunity for data hackers, especially given that the typical home office will have far fewer cybersecurity protections than the on-site work environment. No organization is immune from cyberattacks. Every employer, large and small, has sensitive data of interest to hackers: employee Social Security numbers, direct deposit account information, and other valuable information. Moreover, every employer is subject to the double jeopardy of a data breach class action on top of the cyberattack. More about these risks, and how to avoid them, can be found in the Summer 2019 issue of the Class Action Trends Report. Video meetings. Video conferencing has allowed individuals to conduct work and personal business, to meet virtually with friends, to attend remote church services and graduation ceremonies. The technology also has allowed for legal depositions, Congressional hearings, and nightly cable punditry. However, the security of videoconferencing has been called into question. Recently, a class action lawsuit was filed in California under the California Consumer Privacy Act (CCPA) alleging a videoconferencing company failed to properly safeguard the personal information of its users. The proposed class included "all persons and businesses in the U.S." whose personal information was collected or disclosed to a third party "upon installation or opening" the app. This is just the beginning of these kinds of claims. Employers should review their videoconferencing procedures and platforms and other technologies used to support work-from-home arrangements. Read the fine print in those vendor agreements. Employers not only want to avoid class action lawsuits, but also to protect their company's proprietary information and the personal identifying information of their employees and customers. Contact tracing. Contact tracing can play a crucial role in helping ensure a safe and healthy workplace. The practice entails using tools and processes to determine who in the workforce has had close contact with an employee known or suspected to have COVID-19. However, before implementing such technology, employers must study the privacy considerations and legal risks. Employee health information should generally be treated as confidential, attendant with the requirements of a host of employment laws, such as the ADA and Genetic Information Nondiscrimination Act (GINA), among others. Assessing contact tracing devices Consider the following when evaluating whether to adopt contact tracing applications or devices: What information is being collected and is all the information necessary for this purpose? If an app is installed on an employee's personal device, will the app collect information beyond that needed to determine close COVID-19 contacts, e.g., cookies or other personal information? If an app or device collects data on an employee's location outside of work, will it give employers information they do not need or want? Where is the data stored, how long is it stored, and can the collection be limited to the minimum amount of data necessary? Do current employment policies and procedures address contact tracing, or affect the implementation of contact tracing? Will the employer notify affected employees directly, or will affected employees receive automatic notice through the app? To guard against employee medical privacy claims, carefully consider who will be permitted to access and view the personal health information collected through contact tracing. Organizations still need to be mindful of the ADA's confidentiality requirements, potential for discrimination, and state laws that prohibit employers from making adverse decisions based on employees' lawful off-duty conduct (which may be exposed during the COVID-19 monitoring process). A confidentiality agreement addressing privacy and security obligations is one way of alleviating these concerns. . . . the coronavirus pandemic has spawned novel classwide theories of liability for alleged safety breaches. Workplace safety violations Employee health and safety, of course, has been employers' dominant concern throughout the pandemic crisis, as evidenced by their actions to ensure the well-being of their workforce, including temporarily ceasing operations. Certainly, there will be employees who fear the employer is not doing enough to protect them; of course, there will be employees who contract COVID-19 on the job or elsewhere. Claims arising from workplace safety concerns are typically not the purview of class action defense counsel; these matters are routinely addressed through the Occupational Safety and Health Administration (OSHA) or state-agency equivalents. In addition, workers who suffer actual on-the-job injuries find recourse in state workers' compensation systems. However, the coronavirus pandemic has spawned novel classwide theories of liability for alleged safety breaches. One recently filed litigation against a public employer, involving 10,000 corrections officers, asserts a cause of action under the state constitution. The officers contend that, as a result of COVID-19, they were forced to work additional overtime with insufficient rest between shifts. They also claim that their employer failed to mandate that coworkers who have contracted COVID-19 test negative for the virus before returning to work. Consequently, they allege, they suffered a constitutional threat to their bodily integrity. Numerous class action suits have been filed by fast-food employees who contend that their franchise employers have not adequately protected them from COVID-19. In an effort to evade the preemptive reach of workers' compensation laws, the employees brought their claims under a "public nuisance" theory. They hope to force employers to beef up safety precautions and provide compensatory damages to employees who have fallen ill. These cases have had some traction: in one case, a judge denied the employer's motion to dismiss and granted a preliminary injunction ordering it to enforce mask wearing and social distancing requirements. The ruling came just days after a California judge entered a TRO in a public nuisance case alleging the franchise employees were told to wear coffee filters as masks. It is the hope that these lawsuits are anomalies, spirited more by public sentiment over the pandemic than traditional legal principles; courts generally find that compliance with OSHA standards and guidance from other enforcement agencies demonstrates good faith by employers sufficient to defend against liability. Other COVID-19 claims Businesses are facing both class and individual litigation over myriad COVID-19-related issues, including: Negligence actions by families of deceased employees who allegedly contracted COVID-19 on the job Class action suits brought by furloughed and laid-off employees alleging their employer misused CARES Act funds on expenditures other than payroll costs Class reimbursement claims against gyms and other membership-based businesses whose members are seeking return of fees assessed while the facilities were shut down Whistleblower and retaliation suits alleging an employer disciplined or terminated an employee for raising concerns about an unsafe workplace Independent contractor "gig" workers seeking "employee" status so they may be eligible for certain paid leave protections and reimbursement for masks, hand sanitizers, and other COVID-19 necessities Suits against assisted living facilities under Title III of the ADA and its precursor, Section 504 of the Rehabilitation Act, contending a failure to safeguard residents' health and safety "Price-gouging" class actions against online and brick-and-mortar retailers that allegedly hiked prices on hand sanitizers, disinfecting wipes, and other high-demand products Breach of contract actions against suppliers that, due to COVID-19-related supply chain difficulties, failed to satisfy delivery obligations Commercial and residential landlord-tenant lease disputes over pleas for rent forgiveness in light of the COVID-19-related economic downturn Class actions against universities by students seeking reimbursement for the costs of room and board for the period after residence halls were closed down. In the litigation life cycle, the COVID-19 pandemic is still fairly young. Expect to see a variety of novel cases, which stand to impose significant liability, as the pandemic crisis continues to unfold. These are the class litigation trends we anticipate as the pandemic persists and the economy responds in earnest. However, these are uncharted waters. The current state of affairs is ever-changing, and many of the legal issues in play are as yet unsettled. Employers must continue to stay abreast of the state of the pandemic and of new COVID-19-related laws and litigation. Best practices are the best defense "There will likely come a day when every employer will need to defend one or more decisions made during this pandemic," said Adler-Paindiris. "In order to do so, employers must ensure they maintain clear and contemporaneous documentation to support every decision, provide sound reasons for the decisions made, and are able to competently back up the reasons why the employer took the actions it took." Higher education at risk More than 200 class actions have been filed thus far by students against colleges and universities challenging their institutions' responses to the COVID-19 crisis. The students argue they are entitled to refunds because the institution failed to provide them with all the benefits of an on-campus education for which they paid. They are challenging their institutions' responses to the COVID-19 crisis in putative class-action lawsuits seeking reimbursement for tuition, room and board, and more following campus closures due to COVID-19. These putative class action lawsuits generally allege: (1) the students paid for amenities such as room and board, dining plans, and access to facilities, which they cannot receive because they are not on campus; (2) the quality of their education has been lessened by the forced, online curricula because studies show that students learn better in classrooms than online and because they are unable to gain the benefit of personal connections with faculty and classmates; (3) their degree will be less valuable to them in the marketplace because a degree from an online program is not as valuable as a degree from an in-person program. [GN] [*] Parents File Nation-Wide Class Action Due to School Closures ---------------------------------------------------------------- Bond Schoeneck & King PLLC, in an article for jdsupra.com, reports that more than 100 parents of students with disabilities commenced a class action lawsuit in the U.S. District Court for the Southern District of New York against "every school district in the United States" and each state's department of education. The lawsuit essentially alleges school districts improperly denied special education to students with disabilities when defendants closed schools, or caused schools to be closed, due to the COVID-19 pandemic. The plaintiffs allege that defendants violated the Equal Protection and Due Process clauses of the U.S. Constitution, the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and state constitutions requiring the education of all students. The plaintiffs also allege that the defendants changed students' placements and did not comply with individualized education programs (IEPs) during periods when remote instruction was provided. The lawsuit seeks an order requiring all schools to (a) immediately reopen or issue "pendency vouchers" with which parents can obtain alternative services; (b) conduct independent evaluations of students; (c) establish and provide compensatory education plans based on independent evaluations due to regression resulting from the closures; (d) pay compensatory damages to parents for out-of-pocket expenses related to their failure to educate students per IEPs currently in place; and (e) pay punitive damages. The Southern District of New York's clerk of the court has only issued summonses to the New York City Department of Education, New York State Education Department, Mayor Bill de Blasio and the Chancellor of the New York City Department of Education, and only those parties have been served. Absent the issuance of summonses naming each individual school district in the United States, the plaintiffs cannot serve additional districts with process or subject them to the court's jurisdiction. Any decisions made by the court in the absence of the school districts, other than perhaps dismissal on the merits, will not be binding on districts other than the New York City Department of Education. Bond will continue to monitor this lawsuit and advise its school district clients if the procedural status of this matter changes. At this time, school districts, other than the New York City Department of Education, do not need to take any action. While summonses have not yet been issued naming additional school districts, that may change, and plaintiffs may eventually be able to serve every school district in the United States. If and when you are served, you should contact your insurer and your counsel to determine your next steps.[GN] [*] Pierce Atwood Attorneys Discuss PPP MDL Court Rulings --------------------------------------------------------- Melanie A. Conroy, Esq. -- mconroy@pierceatwood.com -- Donald R. Frederico, Esq. -- dfrederico@pierceatwood.com -- Cameron Goodwin, Esq., Lucus A. Ritchie, Esq., of Pierce Atwood LLP, in an article for The National Law Review, report that in four separate decisions issued on August 5, 2020, the U.S. Judicial Panel on Multidistrict Litigation declined to consolidate for pretrial purposes dozens of actions against national banks arising from their roles as participating lenders in the Paycheck Protection Program (PPP) that provides relief for small businesses affected by the COVID-19 pandemic. For background on this recent category of class action litigation, please see our earlier alerts Developments in Class Action Litigation Surrounding the Paycheck Protection Program and COVID-19 Payment Protection Program: Lender Guidelines Subject to Litigation Risks. Certain plaintiffs sought to consolidate two separate categories of PPP-related class action suits against national banks: first, suits claiming that lenders allegedly failed to administer PPP loans on a "first-come, first-served" basis, and second, suits asserting that lenders allegedly failed to pay fees owed to "agents" of borrowers under the PPP. Concerning the first-come, first-served suits, the Panel ruled on three separate petitions that there would be no benefit to streamlining any of the cases because the facts of the underlying lawsuits in each proposed group were distinct. In one petition, all plaintiffs supported centralization, and the defendant opposed. In the other two petitions, plaintiffs were divided on whether the cases should be centralized and the defendant opposed centralization. As a basis for the denial, the Panel reasoned: "We conclude that centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of the litigation." See MDL No. 2954, MDL No. 2952, MDL No. 2944. The Panel also observed "that individualized factual issues concerning the circumstances of each loan application will significantly diminish the potential efficiencies from centralization," and that the small number of actions involved created "a heavier burden to demonstrate that centralization is appropriate." Having found that the petitioners failed to meet that bar, the cases will proceed as individual actions in the courts where they were filed. As for the agent fee petition, the Panel declined to consolidate the 12 actions pending in 10 districts identified in the petition, noting the additional 50 related actions pending in an additional 16 districts. Of the more than 100 lender defendants, all but two opposed centralization as sought by the moving plaintiff. As a basis for its denial, the Panel observed: "the actions involve dozens of different lenders, and there is no common or predominant defendant across all actions." See MDL No. 2950. Although the actions "undoubtedly allege similar policies and practices by the defendant banks, . . . the policies and practices for paying agent fees are unique to each lender which differ significantly across the actions." The Panel was also persuaded by the fact that the vast majority of defendants were named in only one action. The Panel also refused to consolidate actions on a lender-by-lender basis, noting that each lawsuit named multiple lenders as defendants and recognizing the inefficiencies that would occur from dividing the claims from each lawsuit into multiple actions. Pointing to alternatives to centralization that could "minimize duplicative pretrial proceedings," including intra-district consolidation and inter-district coordination, the Panel directed the individual actions to proceed in the districts in which they were filed. For both categories of PPP class actions, the individual cases will proceed before the courts in which each of the complaints were filed. However, even though the Panel denied consolidation on a nationwide basis, cases may be formally consolidated if they were filed within the same federal district and they may be informally coordinated among the parties and the involved judges. There are many options to increase efficiency available that may minimize the potential for duplicative discovery and inconsistent pretrial rulings. It is likely that, as a next step in many of these cases, the parties may propose such measures or the assigned judges may urge the parties to propose efficient procedures. These class actions are in their early stages, and Pierce Atwood will continue to provide updates on class actions related to the PPP and the COVID-19 pandemic. A comprehensive list of these actions is available on our Filed and Anticipated Cases tracker. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2020. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***