/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/201015.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 15, 2020, Vol. 22, No. 207 Headlines ABILENE CHRISTIAN: Faces Hedges ADA Class Suit in S.D. New York ACCUTRACE INC: Settlement in Lucas Suit Gets Final Approval AINSWORTH PET: Parks Appeals Dismissal of Suit to 11th Circuit AIR METHODS CORP: Kiser, McClain Slam Emergency Airlift Charges ALABAMA: Order to Monitor Prisoners' Mental Health Care Issued ALIGN TECHNOLOGY: Court Narrows Claims in SEB Securities Suit ALLIANCE COLLECTION: Class Cert. Proceedings Stayed in Slomanski ALLIANCEONE RECEIVABLES: Robertson Appeals Decision to 9th Cir. AMPHENOL CORP: Loses Bid to Bifurcate Discovery in Denney Suit ANNIE'S INC: Klausner Commences Class Suit in S.D. New York AQUION INC: Court Denies AWP's Bid to Quash Subpoena in Stella Suit ARTEX RISK: Ninth Cir. Affirms Arbitration Ruling in Shivkov Suit ASPEN AMERICAN: Jagow Slams Denied Insurance Coverage ASPEN SKIING CO: Katt Claims Website Not Blind-Friendly AT&T MOBILITY: Class of Non-Managerial Female Staff Sought ATHENE ANNUITY: Gardner Slams Excessive Policy Surrender Charges AUTO TRANSPORT: Ewing Sues Over Unsolicited Telemarketing Calls BADGER BROTHERS: Certification of Settlement Class Sought BANK OF AMERICA: Approval of Settlement with Accountholders Upheld BENJAMIN FORD: Court Denies Maldonado Class Certification Bid BIG FISH: Jan. 7 Final Approval Hearing in Thimmegowda Suit Set BRYAN UNIVERSITY: Hedges Sues in S.D. New York Over ADA Violation BUKHARA GRILL: De Jesus Seeks to Recover Unpaid Minimum, OT Wages CALIFORNIA TEACHERS: Ninth Circuit Appeal Filed in Mendez Suit CAMELBAK PRODUCTS: Court Dismisses Keller Suit With Prejudice CGI FEDERAL: $350K Tollini FLSA Suit Settlement Gets Final Approval CHRISO FOOD: Busboys Sue for Denied OT Wages, Missing Pay Stubs CHURCHILL CAPITAL: Hutchings Hits Polaris Merger Deal CHURCHILL DOWNS: Jan. 7 Final Approval Hearing in Kater Suit Set CLAFLIN UNIVERSITY: Faces Hedges ADA Class Suit in S.D. New York COLUMBIA GAS: Court Consolidates Moles with Parsons COMMUNITYAMERICA: Court Certifies Three Classes COMODO GROUP: Seeks 3rd Circuit Review of Ruling in Johnson Suit CRAIG EHRLICH: Court Denies as Moot Bid for Class Certification CREDIT BUREAU: Vazquez Files Placeholder Class Certification Bid CREDIT CONTROL: Fails to Have Counsel Fees Approved in Watson Suit DIGNITY HEALTH: Van Bebber Seeks to Certify Classes & Subclasses EQUIFAX INFORMATION: Rivera Seeks to Certify Case as Class Action ESURANCE INSURANCE: Morrison Appeals Decision to Ninth Circuit FAIR ISAAC: Garner Suit Asserts Sherman Act Breach FANSIDED INC: Carusillo Seeks to Certify Class of Site Experts FIRST FEDERAL: Court Narrows Claims in Kadow Class Suit FIRST PREMIER: Loses Bid for Partial Summary Judgment in Moss Suit FIRST SOLAR: Bid for Add'l. Atty.'s Fees in Smilovits Suit Denied FLAGSHIP CREDIT: Ward Appeals E.D. Pennsylvania Order to 3rd Cir. GENERAL MOTORS: Golson Not Barred by Berman Ruling to Pursue Case GENERAL MOTORS: Wins Dismissal of Harris Suit Over Engine Defect GOLDEN PEANUT: Class Status Sought in Farmers Antitrust Action GULFPORT ENTERGY: Joint Bid for Conditional Class Status Granted HANKOOK TIRE: Dionysius Suit Seeks FLSA Collective Status HAWAII: Final Judgment in Kalima Class Suit Partly Affirmed HNN ASSOCIATES: Court Grants Class Cert. Bid in Jammeh HNN ASSOCIATES: Court Grants Motion for Class Certification HUUUGE INC: Jan. 7 Final Approval Hearing in Wilson Class Suit Set ICHIRO SUSHI: Ji Li Appeals S.D.N.Y. Judgment to Second Circuit INTER-STATE OIL: App. Court Upholds Arbitration Ruling in Garner INTERCEPT PHARMACEUTICALS: Bid to Amend Judgment in Liu Suit Denied IOWA: Rowe et al. Seek to Certify Class of Registered Nurses J.C. CHRISTENSEN: Final Approval of Class Settlement Sought JELLY BELLY: Court Stays Hoffman TCPA Suit Pending Ruling in AAPC JONES LANG: North Seeks Unpaid Overtime Wages, Reimbursements JPMORGAN CHASE: Prukala Class Suit Dismissed with Prejudice KEITH GORSUCH: Court Denies Motion to Certify Class Action KOCH INDUSTRIES: 401(k) Plan Members Slam Fund Mismanagement LEXISNEXIS RISK: Court Certifies Class & Subclass in Gaston Suit LIDDLE & LIDDLE: Perchlak Suit Seeks to Certify FDCPA Class LIDL US LLC: Duffy Slams Mislabeling on Vanilla-Flavored Ice Cream LILITH GAMES: Court Authorizes Email Service in Coy Class Suit LVNV FUNDING LLC: Shaughnessy Disputes False Credit Report MAGNA LEGAL: Guynn-Neupane Seeks to Certify Class & Subclass MARION COUNTY, FL: Court Denies Motion to Certify Class MAYO CLINIC: Kuhr Suit Seeks to Certify Settlement Classes MDL 2179: Summary Judgment Bid in Oil Spill Suit Partly Granted MDL 2862: Filing of Second Amended Consolidated Antitrust Suit OK'd MICHAEL DEMAYO: Court Denies Bid to Strike Class Claims in Hatch MICHIGAN: Wash. Dist. Court Dismisses Young Prisoner Suit MONTGOMERY, AL: McCullough et al. Seek to Certify Three Classes MONTGOMERY, AL: Singleton Seeks Class Certification MRS BPO: Can't Compel Arbitration in Ioane TCPA/FDCPA Suit MUTUAL FUND: Emerson Suit Settlement Gets Final Court Approval NATIONAL FREIGHT: Class of Delivery Drivers in Portillo Certified NCAA: Freeman Sues Over Effects of Concussion-related Injuries NCAA: Gill Sues Over Effects of Concussion-related Injuries NCAA: James Sues Over Effects of Concussion-related Injuries NESTLE PURINA: Jacquin MMPA Class Suit Remanded to State Court NEW YORK: H.A. Suit Seeks to Certify Rule 23 Class Action NORTHROP GRUMMAN: Bafford Appeals C.D. Calif. Ruling to 9th Cir. NUCO2 LLC: Court Denies Renewed Class Cert. Bid in Townhouse Suit NUCO2 LLC: Court Denies Renewed Motion for Class Certification OHIO: $151,000 Legal Fees Awarded in Community Refugee Suit ORGAIN LLC: Jones Files Suit in Southern District of New York PVH CORP: Court Dismisses DiCicco Class Suit Without Prejudice RADIUS GLOBAL: Reyes Appeals S.D. Florida Ruling to 11th Circuit RBC CAPITAL MARKETS: Coulter Suit to Recover Unpaid Overtime Wages RELIASTAR LIFE: Advance Trust May File Second Amended Class suit RON DESANTEZ: Harrison Seeks to Certify Class of Inmates ROSANN LANDSCAPE: Contreras Suit Moved From New York to Vermont ROSENBERG & ASSOCIATES: Weisheit D. Maryland Ruling to 4th Cir. RP ON-SITE: Miller Suit Seeks to Certify Three Classes SAGINAW COUNTY, MI: Fox Seeks Class Certification SALDUTTI LLC: Rankin Appeals E.D. Pa. Decision to Third Circuit SEAWORLD PARKS: Wins Dismissal of Kouball Class Suit SGS NORTH AMERICA: Tamimi Suit Seeks to Certify Class Action SIMPSON STRONG-TIE: $85,203 Sanction Awarded in Nguyen Suit SIMPSON STRONG-TIE: 3 References Struck from Amended Nguyen Suit SLEEPY'S LLC: Denial of Class Certification in Hargrove Reversed SOUTHERN SYNERGY: Cornelison Suit to Recover Unpaid Overtime STITCH FIX: Staff Sues for Denied Breaks, OT Pay, Tips, Refunds SUNCOKE ENERGY: Wins Dismissal of Consolidated Securities Suit SUNY ALBANY: Duguid Discrimination Suit Seeks to Certify Class TAKEDA PHARMACEUTICAL: Appeals Decision in American Sales Suit TECHSERV CONSULTING: Hartman Seeks Proper Pay Under FLSA TOWERS WATSON: Dismissal of Fort Myers Class Suit Reversed TTEC HEALTHCARE: Arbitration in Beattie FLSA Suit Partly Compelled TULARE COUNTY, CA: Criswell's TRO Bid in Prisoners Suit Partly OK'd TVI INC: Melead Labor Suit Remanded to Orange County Superior Court UNITED STATES AUTOMOBILE: Bid to Certify Interlocutory Appeal Nixed UNITED STATES: Court Narrows Claims in Onosamba-Ohindo Suit UNITED STATES: Muhammad-Ali Suit v. 9 S.C. Justices Dismissed UNITED STATES: Seeks Ninth Circuit Review in Scholl Prisoner Suit VALENTINE & KEBARTAS: Cardenas Seeks to Certify FDCPA Class VERIZON CONNECT: Collective Status Sought in Garnick et al. Suit VIVINT INC: App. Court Flips Dismissal of Linehan-Clodfelter Suit WAL-MART STORES: Appeals Decision in Hamilton Suit to 9th Circuit WESTSIDE 309: Dismissal of Claims of 74 Plaintiffs in Chang Denied ZARA USA: Gillett Seeks Conditional Collective Status ********* ABILENE CHRISTIAN: Faces Hedges ADA Class Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Abilene Christian University. The case is styled as Donna Hedges, on behalf of herself and all other persons similarly situated v. Abilene Christian University, Case No. 1:20-cv-08439 (S.D.N.Y., Oct. 9, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Abilene Christian University is a private Christian university in Abilene, Texas. It was founded in 1906 as Childers Classical Institute.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal ACCUTRACE INC: Settlement in Lucas Suit Gets Final Approval ----------------------------------------------------------- In the case, SATIMA LUCAS, on behalf of herself and others similarly situated, Plaintiff, v. ACCUTRACE, INC., Defendant, Civil Action No. 7:18-cv-09059 (JCM) (S.D. N.Y.), Magistrate Judge Judith C. McCarthy of the U.S. District Court for the Southern District of New York granted final approval of the proposed class settlement. Magistrate Judge McCarthy finds that for purposes of settlement, the action satisfies the applicable prerequisites for class action treatment under Fed. R. Civ. P. 23(a) and (b)(2). Also, the Settlement is fair, reasonable and adequate to the members of the Classes in light of the complexity, expense, and duration of litigation and the risks involved in establishing liability and damages, and in maintaining the class action through trial and appeal. The Court finally certified the action as a class action for settlement purposes only against Defendant Accutrace, Inc. on behalf of the Classes defined as follows: a. A nationwide class of all consumers residing in the United States (including all Territories and other political subdivisions of the United States) who, beginning five years prior to the filing of the action and continuing through the resolution of the action, (i) were the subject of any consumer report prepared by Accutrace which included any non-conviction criminal record information which antedated the report by more than seven years; (ii) as to whom Defendant reported a public record or criminal record that had been expunged, vacated, sealed or dismissed prior to the date of the report in connection with an application for a residential lease or tenancy, employment or credit; (iii) as to whom Defendant reported a public record or criminal record of a juvenile offense in connection with an application for a residential lease or tenancy, employment or credit; and (iv) who, within five years prior to the filing of the action and extending through the resolution of the case, were the subject of a background report that was used by the Defendant to take an adverse employment action regarding such applicant for employment, and for whom the Defendant failed to provide the applicant a copy of his or her consumer report or a copy of the FCRA summary of rights at least five business days before it took such adverse action. b. A New York class of all consumers residing in the State of New York who, beginning two years prior to the filing of the action and continuing through the resolution of the action, were the subject of any consumer report prepared by Accutrace which included any record of conviction of a crime which antedated the report by more than seven years. The action is dismissed on the merits, with prejudice and without costs. Upon consideration of the Class Counsel's application for fees and expenses, the Judge awarded the Class Counsel the sum of $240,000 as reasonable fees and expenses incurred in representing the Class. The Defendant will pay that sum to the Class Counsel in accordance with the terms of the Settlement Agreement. Upon consideration of the application for an individual settlement and service award, Class Representative Satima Lucas is awarded the sum of $10,000 in consideration for her individual claims against the Defendant and for the valuable service she has performed for and on behalf of the Class. The Defendant will pay that sum to the Class Representative in accordance with the terms of the Settlement Agreement. A full-text copy of the District Court's June 26, 2020 Order is available at https://bit.ly/3nPzsSf from Leagle.com. AINSWORTH PET: Parks Appeals Dismissal of Suit to 11th Circuit -------------------------------------------------------------- Plaintiff Markeith Parks filed an appeal from the District Court's Memorandum and Order dated Feb. 20, 2020, and judgment dated Feb. 21, 2020, entered in the lawsuit styled Parks v. Ainsworth Pet Nutrition, LLC, Case No. 18-cv-6936, in the U.S. District Court for the Southern District of New York (New York City). On Feb. 21, 2020 District Judge Ruby J. Krajick entered an order granting the Defendant's motion to dismiss the amended complaint. The appellate case is captioned as Markeith Parks, on behalf of himself and others similarly situated, Plaintiff-Appellant v. Ainsworth Pet Nutrition, LLC, DBA Rachael Ray Nutrish; and J.M. Smucker Company, Defendants-Appellees, Case No. 20-1042, in the United States Court of Appeals for the Second Circuit. On April 18, 2019, the District Court granted Defendant Ainsworth Pet Nutrition, LLC's motion to dismiss Plaintiff Markeith Parks' complaint, with leave to amend. Parks then filed the Amended Complaint, on behalf of himself and all others similarly situated, reasserting claims of deceptive business practices in violation of New York General Business Law, false advertising in violation of NYGBL section 350, and breach of express warranty. Ainsworth Pet produces pet nutritional products. The Company offers meat, fruits, vegetables, and other food products for pets.[BN] Plaintiff-Appellant Markeith Parks, on behalf of himself and others similarly situated, is represented by: Kim E. Richman, Esq. RICHMAN LAW GROUP 81 Prospect Street Brooklyn, NY 11201 Telephone: 212 687-8291 Defendants-Appellees Ainsworth Pet Nutrition, LLC, DBA Rachael Ray Nutrish; and J.M. Smucker Company, are represented by: Ronald Y. Rothstein, Esq. WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 Telephone: 312 558-7464 AIR METHODS CORP: Kiser, McClain Slam Emergency Airlift Charges --------------------------------------------------------------- Charles Kiser and Christian McClain, individually and on behalf of all others similarly-situated, Plaintiff, v. Air Methods Corporation and Rocky Mountain Holdings, LLC, Defendant, Case No. 20-cv-00801 (D. N.M., August 11, 2020), seeks to impose a constructive trust, where appropriate, on amounts wrongfully collected from Plaintiff pending resolution of their claims herein, issuance of appropriate declaratory and injunctive relief, as requested to declare whether the parties have an enforceable contract for the payment of Defendants' services not preempted by the Air Line Deregulation Act of 1978, together with any contract rights and obligations existing between the parties, reimbursement of all costs and disbursements, including attorneys' fees, experts' fees, and other class action related expenses, pre-judgment and post-judgment interest and granting such further relief under the Airline Deregulation Act of 1976. McClain experienced a blackout related to medication and was transported to a hospital in Silver City, New Mexico via helicopter transport. He does not recall signing any forms in which he consented to pay any sum for any services provided by Air Methods. McClain's insurance paid $26,744.73 for the service and left him with a balance bill of $38,254.27 Air Methods transported Charles Kiser from Carlsbad Medical Center in Carlsbad, New Mexico to University Medical Center in Lubbock, Texas where Kiser was billed $69,999 which included a "base" charge of $31,668.53 and an additional $38,330.47 for mileage. His insurance paid $8,518.88, leaving him with a balance bill of $61,480.12. Both claim to be charged for air-lift without any voluntary contractual relationship formed prior to transport and without knowledge of the charge. [BN] The Plaintiff is represented by: David C. Kramer, Esq. LAW OFFICE OF DAVID C. KRAMER, LLC P.O. Box 4662 Albuquerque, NM 87196 Telephone: (505) 545-8105 Facsimile: (505) 715-4884 Email: David.c.kramer@swcp.com - and - Edward L. White, Esq. Kerry D. Green, Esq. EDWARD L. WHITE, PC 829 East 33rd Street Edmond OK 73013 Tel: (405) 810-8188 Facsimile: (405) 608-0971 Email: ed@edwhitelaw.com kerry@edwhitelaw.com ALABAMA: Order to Monitor Prisoners' Mental Health Care Issued -------------------------------------------------------------- In the case, DWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants, Civil Action No. 2:14cv601-MHT (M.D. Ala.), Judge Myron H. Thompson of the U.S. District Court for the Middle District of Alabama, Northern Division, adopted the Defendants' plan to monitor compliance with the Court's orders to remedy their Eighth Amendment violation over inadequate mental-health care in its prisons. Previously, the Court found that the State of Alabama provides inadequate mental-health care in its prisons in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The issue now before the Court is the development of a plan to monitor compliance with the Court's orders to remedy that constitutional violation. The Plaintiffs in the class-action lawsuit are Alabama Department of Corrections ("ADOC") inmates who have mental illness and the Alabama Disabilities Advocacy Program, which represents mentally ill inmates in Alabama. The Defendants are the ADOC Commissioner and the ADOC Associate Commissioner of Health Services, who are both sued in only their official capacities. In a liability opinion, the Court found that ADOC's mental-health care was, simply put, horrendously inadequate. It laid out seven factors contributing to the Eighth Amendment violation, in addition to the "overarching" problems of understaffing and overcrowding. After two months of mediation to develop a comprehensive remedial plan, it became apparent that the remedy was too large and complex to be addressed all at once. The Court therefore severed the remedy into the various contributing factors. Judge Thompson has now issued remedial opinions and orders regarding, among other things, understaffing, and inpatient treatment. He has also issued several remedial orders temporarily adopting the parties' stipulations regarding other contributing factors. In March 2020, based on the parties' agreement that their stipulations temporarily satisfy the Prison Litigation Reform Act ("PLRA"), the Court issued an interim injunction extending these orders until, at the latest, Dec. 30, 2020. The issue of whether the stipulations satisfy the requirements of the PLRA beyond that date is set for a hearing in September, and the Court will defer judgment as to whether the measures are warranted until that hearing has occurred. Throughout the process of resolving each remedial issue, the question of monitoring compliance with the Court's orders has repeatedly arisen. The issue of monitoring raises important questions regarding, on the one hand, the duty of courts to avoid overly intruding into the executive matter of prison administration, and on the other hand, the duty of courts to ensure that the constitutional violations they find are effectively remedied in a timely fashion. In pursuit of the proper balance of these important interests, the Judge opted to resolve the issue of monitoring separately from all substantive remedial orders and on a global scale, rather than as to each individual order. Judge Thompson's Opinion fully resolves the remedial monitoring issue. Though the remedies for all seven factors contributing to the constitutional violation have not yet been reduced to final orders with PLRA findings, and though there remain some additional remedial issues for resolution (for example, segregation and inpatient treatment), the Judge need not wait to issue those orders prior to resolving the monitoring issue. It is because his Order is not specific to any particular remedial measures in that it does not set up the means of measuring compliance; rather, his Order establishes an overarching monitoring structure and scheme, the details of which the Court leaves to be filled in by the experts, as both sides agree is appropriate. The parties agree that the monitoring scheme has two fundamental goals: (1) to oversee compliance with the Court's remedial orders and (2) to build ADOC's capacity to exercise sustainable internal oversight of mental-health care -- that is, to identify and correct problems. They also agree on the overarching structure of the monitoring. Specifically, they agree that the scheme should: (1) include the EMT; (2) consist of three phases, with the EMT teaching—and then ultimately handing the reins over to—the IMT; (3) empower the EMT to determine many of the details of how to carry out monitoring, including fashioning performance measures and audit tools; and (4) consist of a number of essential components of monitoring, including document review, observation, feedback, consultation, and handoff to ADOC to monitor itself going forward. Judge Thompson agrees with the Defendants that it is critical for ADOC to "buy in" to the process of attaining compliance with the Court's remedial orders. However, it does not require that the Defendants be given unfettered discretion to drive the monitoring process—buy-in can be achieved by implementing much of their plan as proposed, involving ADOC staff in monitoring efforts from the beginning, and appointing monitors in which all parties have faith. These priorities are reflected in the monitoring plan. In examining why each part of the Court's order satisfies the PLRA's need-narrowness-intrusiveness requirement, the Judge in his analysis largely focuses on a single inquiry: whether the monitoring provision is necessary to correct the constitutional violation found. As he has discussed in prior opinions, the single inquiry is distilled from the three requirements of the PLRA -- that the relief is (1) "narrowly drawn," (2) "extends no further than necessary," and (3) "is the least intrusive means necessary to correct the violation" -- and allows for a more streamlined analysis. It the ordered relief is necessary to correct the violation, then -- by definition -- no other form of relief would be sufficient to correct it. And if no other form of relief is sufficient to correct the violation, then the ordered relief is -- by definition -- 'narrowly drawn' and the 'least intrusive means necessary' to correct it; any narrower or less intrusive relief would not be sufficient. Similarly, if the ordered relief is necessary, then it extends no further than necessary, because any part of the relief extending further than what is necessary would render it unnecessary. In finding that each of the monitoring provisions satisfies the need-narrowness-intrusiveness requirement -- both individually and in concert -- Judge Thompson gave substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. He finds that there is no such adverse impact and that, in fact, the court-ordered monitoring provisions, by helping to improve mental-health care for inmates, will serve only to enhance public safety and the operation of a criminal justice system. It is clear that the Court and the parties share the same goal for monitoring in the case: that ADOC acquire the tools, resources, and capacity to provide constitutionally adequate mental-health care to those in its custody without court supervision. As Judge Thompson has previously stated, the real success would be that it will no longer be needed for the Court or any federal court to interject itself in Alabama's prison system, he looks forward to the day when not only he's not necessary, but no federal court is necessary. With the Defendants' own proposal and the parties' agreements forming the basis of the monitoring scheme, the Order is an important step in that direction. Based on the foregoing, Judge Thompsoon adopted the monitoring scheme as the Order of the Court. He adopted in large part the Defendants' plan -- substantial portions to which the Plaintiffs have agreed -- with some alterations. Most significantly, he adopted the Defendants' overarching proposal that, in light of their own admission that they lack the capacity to self-monitor, outside experts will initially monitor compliance and will draw on their expertise to develop many of the details of the monitoring plan. Those outside experts will train and eventually hand control over to an internal monitoring team, building the capacity of the ADOC to regulate itself. The Judge hopes that the monitoring scheme will help the ADOC attain timely, meaningful, and sustainable compliance with the Court's remedial orders on mental-health care and bring the litigation to an end as soon as is reasonably possible. The Court will, over time, issue a series of orders to enforce the monitoring scheme, beginning with an order for the selection and appointment of members of the external monitoring team. A full-text copy of the Court's Sept. 2, 2020 Opinion & Order is available at https://tinyurl.com/y66l2cn2 from Leagle.com. ALIGN TECHNOLOGY: Court Narrows Claims in SEB Securities Suit ------------------------------------------------------------- In the case, SEB INVESTMENT MANAGEMENT AB, et al., Plaintiffs, v. ALIGN TECHNOLOGY, INC., et al., Defendants, Case No. 18-CV-06720-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, granted in part and denied in part the Defendants' motion to dismiss the Plaintiff's Amended Consolidated Class Action Complaint. The case is a putative securities class action against Align; its President and CEO, Joseph M. Hogan; and its CFO, John F. Morici. Lead Plaintiff SEB Investment Management AB brings the suit individually and on behalf of all other persons and entities who purchased or otherwise acquired the common stock of Align between May 23, 2018 and Oct. 24, 2018, both dates inclusive. Align, is a global medical device company engaged in the design, manufacture, and marketing of Invisalign® clear aligners and iTero® intraoral scanners and services for orthodontics, restorative, and aesthetic dentistry. Owing to a number of patents, Align maintained "dominance" in the industry as a result of patents it held on its technology and manufacturing processes, many of which related to the computer-aided design and manufacturing technology that allowed the Company to develop and manufacture high-quality clear aligners in large quantities. However, as Align began to lose its patent protections, analysts began to acknowledge that Align's virtual monopoly could come to an end. The Plaintiff's claims center around those competitive pressures and the representations that the Defendants made to investors regarding how competition would impact Align's business. Specifically, in May 2018, at the Annual Meeting of the American Association of Orthodontists, Align's competitors announced products at price-points under Align's, both in the low end of the market as well as in the "comprehensive case market" for complex treatments. As a result, the Plaintiff alleges that, on July 1, 2018, Align secretly implemented a $200-per-unit discount ("3Q18 Discounting Promotion") to its comprehensive cases with hopes of recapturing its lost market share in the comprehensive case market. The discount applied on top of Align's existing volume-based loyalty discount, the Invisalign Advantage Program, which Align had recently modified to be a tiered discounting system based on the number of Invisalign cases each doctor sold. The Plaintiff alleges that the Defendants were aware of, but failed to disclose, the impact that the 3Q18 Discounting Promotion would have on the company's average sales prices ("ASP"), a key metric for investors to which Defendants had access throughout the class period. They further alleges that, between May 23, 2018 and Sept. 5, 2018, the Defendants made six affirmative representations to investors that were false or misleading because they misrepresented the truth about Align's susceptibility to competitors in the comprehensive case market, and Align's efforts to curb competition by slashing prices through the 3Q18 Discounting Promotion. On Oct. 24, 2018, the Defendants finally revealed the relevant truth about the aggressive discounts they had put in place to stem competition in the comprehensive market, and disclosed that the ASP for comprehensive products had dropped a full $100 over the prior quarter, from $1,410 to $1,310. Align's stock price declined nearly $59 a share by the following day, and the suit followed. On Nov. 5, 2018, an Align shareholder filed the instant case captioned Lu v. Align Technology, Inc., et al., N.D. Cal. Case No. 5:18-CV-06720-LHK. Another shareholder filed suit on Dec. 12, 2018, in a case captioned Infuso v. Align Technology, Inc., et al., N.D. Cal. Case No. 5:18-CV-07469. On Jan. 2, 2019, the Court granted an administrative motion to relate the two cases. On March 22, 2019, the Court consolidated the two cases. In the same Order, the Court appointed Plaintiff SEB Investment Management AB as the Lead Plaintiff and appointed Kessler Topaz as the lead counsel. On May 10, 2019, the Plaintiff filed a Consolidated Amended Class Action Complaint, which it later corrected. On June 24, 2019, the Defendants filed a motion to dismiss the Consolidated Amended Class Action Complaint. On Oct. 29, 2019, the Court granted the Defendants' motion to dismiss with leave to amend. On Nov. 29, 2019, the Plaintiff filed an Amended Consolidated Class Action Complaint that eliminated two individual Defendants (Ralph Pascaud and Emory Wright), shortened the Class Period by about a month, and narrowed the theory of the case to focus specifically on six statements made by the Defendants with respect to competition in the comprehensive case market and the 3Q18 Discounting Promotion. On Jan. 17, 2020, the Defendants filed a motion to dismiss. In support of their motion to dismiss, the Defendants filed a request for judicial notice and notice of incorporation by reference. The Plaintiff largely does not object to incorporation by reference or judicial notice, except as to the Defendants' Exhibit 11. However, because the Court largely does not rely on any of the Defendants' exhibits, it denied the Defendants' request for judicial notice, except where otherwise noted. The Plaintiff alleges three claims for relief: (1) violation of Section 10(b) of the Exchange Act and Rule 10b-5 against all the Defendants (Count One); (2) violation of Section 20(a) of the Exchange Act against Hogan and Morici (Count Two); and (3) violation of Section 10(b) and 20A of the Exchange Act and Rule 10b-5 for insider trading against Hogan (Count Three). As to Count One, Judge Koh finds that in the amended complaint, the Plaintiff substantially narrows their theory of liability and identifies six specific statements made by Defendants between May 23, 2018 and Sept. 5, 2018 that the Plaintiff alleges to have been false or misleading when made. She considers each statement to determine whether the Plaintiff has stated a claim for violation of Section 10(b) and Rule 10b-5. Although she finds that Statement 3 is not actionable under the PSLRA Safe Harbor, and Statements 1, 2, 4, and 6 fail to adequately allege falsity, she finds that Statement 5 adequately states a claim. As to Count Two, Judge Koh finds that the Defendants' motion to dismiss fails to argue that the Court should dismiss the Plaintiff's Section 20(a) claim. Instead, they raise the issue for the first time on reply in passing in a footnote, which argues that the Section 20(a) claim fails for failure to plead a predicate claim. The Judge need not address arguments raised for the first time in a reply brief because arguments raised for the first time in reply briefs are waived. Accordingly, to the extent that the Defendants moved for dismissal of the Plaintiff's Section 20(a) controller liability claim, that motion is denied. Finally, as to Count Three, Judge Koh holds that the Plaintiff has again failed to demonstrate that any of its stock purchases were contemporaneous with Hogan's purported insider sales on Aug. 14, 2018. Accordingly, she granted the Defendants' motion to dismiss the Plaintiff's Section 20A claim. Moreover, the Court previously dismissed the Plaintiff's Section 20A claim because it had failed to allege contemporaneity. Because the Court already identified the deficiency in its October 29, 2019 Dismissal Order and instructed the Plaintiff that failure to cure would result in dismissal with prejudice, the Jduge finds that leave to amend as to the statement would be futile. Accordingly, the dismissal of the Plaintiff's Section 20A claim is with prejudice. For the foregoing reasons, Judge Koh granted with prejudice the Defendants' motion to dismiss the Plaintiff's first claim for violation of Section 10(b) of the Exchange Act and Rule 10b-5 against all the Defendants, as to Statements 1, 2, 3, 4, and 6; and denied as to Statement 5. She denied the Defendants' motion to dismiss the Plaintiff's second claim against Hogan and Morici. Finally, she granted with prejudice the Defendants' motion to dismiss the Plaintiff's third claim against Hogan. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/yaoanuzl from Leagle.com. ALLIANCE COLLECTION: Class Cert. Proceedings Stayed in Slomanski ---------------------------------------------------------------- In the class action lawsuit styled as JOHN SLOMANSKI, ET AL. v. ALLIANCE COLLECTION AGENCIES, INC., Case No. 2:20-cv-00956-WED (E.D. Wis.), the Hon. Judge William E. Duffin granted the Plaintiff's request to stay further proceedings on the motion for class certification. On June 25, 2020, the Plaintiff filed a class action complaint. At the same time, the Plaintiff filed what the court commonly refers to as a "protective" motion for class certification. The Plaintiff has moved to certify the class described in the complaint but also moved the court to stay further proceedings on that motion. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for class certification. However, this motion will be regarded as pending to serve its protective purpose under Damasco. Alliance was founded in 1990. The Company's line of business includes collection and adjustment services on claims and other insurance related issues.[CC] ALLIANCEONE RECEIVABLES: Robertson Appeals Decision to 9th Cir. --------------------------------------------------------------- Plaintiff Shelly Robertson filed an appeal from a court ruling entered in the lawsuit styled Shelly Robertson v. AllianceOne Receivables Management, Inc., Case No. 1:19-cv-00749-DAD-SKO (Filed May 29, 2019), in the U.S. District Court for the Eastern District of California (Fresno). The nature of suit is stated as consumer credit. As previously reported in the Class Action Reporter, the docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. The appellate case is captioned as SHELLY ROBERTSON, individually and on behalf of all others similarly situated v. ALLIANCEONE RECEIVABLES MANAGEMENT, INC., Case No. 20-15336, in the United States Court of Appeals for the Ninth Circuit. AllianceOne provides debt collection services and contact center solutions.[BN] The Plaintiff-Appellant is represented by: George Thomas Martin, III, Esq. MARTIN & BONTRAGER, APC 6464 W. Sunset Blvd., Suite 960 Los Angeles, CA 90028 Telephone: (323) 940-1700 Facsimile: (323) 238-8095 Email: tom@mblawapc.com The Defendant-Appellee is represented by: Craig J. Mariam, Esq. GORDON & REES LLP 633 West Fifth Street Los Angeles, CA 90071 Telephone: 213 576-5000 AMPHENOL CORP: Loses Bid to Bifurcate Discovery in Denney Suit -------------------------------------------------------------- In the case, FRANCES DENNEY, ARTHUR TERHUNE, Plaintiffs, v. AMPHENOL CORP., BORGWARNER, INC., BORGWARNER PDS (PERU), INC., 400 FORSYTHE, LLC, Defendants, Case No. 1:19-cv-04757-JRS-DLP (S.D. Ind.), Magistrate Judge Doris L. Pryor of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, denied the Defendants' Joint Motion to Bifurcate Discovery. The Plaintiffs initiated the putative class action case against the Defendants on Dec. 3, 2019. Specifically, the Plaintiffs claim damages as a result of the Defendants' wrongful emission, release, discharge, handling, storage, transportation, processing, disposal, and failure to remediate toxic and hazardous waste that was generated at two facilities owned or operated by the Defendants in Franklin, Indiana. Due to service issues, the counsel for the Defendants did not appear until April 2020 and the initial pre-trial conference did not take place until June 12, 2020. The parties submitted a proposed case management plan that elucidated their conflicting positions on how discovery should proceed. During the June 12, 2020 initial pre-trial conference, the Court heard the parties' arguments concerning the course of discovery and ultimately permitted the Defendants to file the present motion to bifurcate discovery and established a briefing schedule. The Plaintiffs filed a response on July 8, 2020, and the Defendants filed their reply on July 13, 2020. The parties presented further argument during the Aug. 20, 2020 telephonic status conference. The Defendants collectively filed the present Motion to Bifurcate Discovery in order to prioritize class certification discovery before moving to merits discovery. In their motion, they maintain that discovery bifurcation would be expedient and economical, and that class certification discovery is severable from merits discovery. The Plaintiffs strongly disagree, arguing that bifurcation would be neither economical nor expedient, and that bifurcation would only serve to delay the certification process and prejudice their ability to support their case. Based on the information before the Court at this time and the two sides' proposals, Magistrate Judge Pryor finds that bifurcation of discovery would not assist the Court in resolving class certification any more quickly than proceeding through the normal course of discovery. Thus, the expediency factor weighs in favor of denying the Defendants' motion. Next, the parties' disagreement over the scope of each section of discovery led to 53 pages of contentious briefing. Magistrate Judge Pryor is not convinced that the parties will be any more successful in navigating the boundaries between class and merits discovery moving forward, even if she orders the parties to undertake such a task, leading to additional judicial resources wasted on determining which discovery relates to the class or to the merits. Thus, she finds that the economy factor weighs in favor of denying the Defendants' motion. Finally, with the information before the Court at this time, the Defendants have not adequately demonstrated that class and merits discovery are not closely enmeshed. Additionally, because the severability factor involves and informs the economy factor, Magistrate Judge Pryor concludes that it weighs in favor of denying the Defendants' motion. Magistrate Judge Pryor recognizes that the case may involve many class members with claims that span a time period of almost 60 years -- with that breadth, the case has the potential to become unwieldy in short order. She intends to actively ensure that the discovery process runs smoothly and remains efficient; if at any point, however, she believes that bifurcation may resolve any deficiencies or be the more appropriate manner of proceeding, especially in light of the parties' significant disagreements about the schedule of the case, she will revisit the issue. Until that time, the parties should proceed with a normal discovery process, while still prioritizing that discovery necessary to timely and efficiently resolve class certification consistent with Federal Rule 23. For these reasons, Magistrate Judge Pryor denied the Defendants' Joint Motion to Bifurcate Discovery. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/y6nj8jys from Leagle.com. ANNIE'S INC: Klausner Commences Class Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Annie's, Inc. The case is styled as Jessica Klausner, individually and on behalf of all others similarly situated v. Annie's, Inc., Case No. 7:20-cv-08467 (S.D.N.Y., Oct. 9, 2020). The nature of suit is stated as Other Fraud. Annie's, Inc., operates as a natural and organic food company. The Company offers products that include macaroni and cheese, snack crackers, fruit snacks and graham crackers.[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 AQUION INC: Court Denies AWP's Bid to Quash Subpoena in Stella Suit ------------------------------------------------------------------- In the case, JENNIFER LA STELLA, Plaintiff, v. AQUION, INC., d/b/a RAINSOFT, and HOME DEPOT USA, INC., Defendants, Civil Action No. 19-10082 (FLW) (ZNQ) (D. N.J.), Magistrate Judge Zahid N. Quraishi of the U.S. District Court for the District of New Jersey denied non-party Atlantic Water Products Delaware Division, Inc.'s ("AWP") Motion to Quash the Subpoena. The Plaintiff commenced the proposed class action against Defendants Aquion and Home Depot to redress unjust, unfair, and/or deceptive practices of marketing and selling water treatment systems to individuals on a municipal or private water system by in-home water evaluations done by a salesman. According to the Plaintiff, the Defendants colluded and induced consumers to purchase expensive Aquion water treatment systems using water tests designed to detect harmless minerals. The putative class consists of: All New Jersey persons who purchased an Aquion RainSoft branded water conditioning system, drinking water system, or water filtration system from Aquion, Home Depot, or any of Aquion's authorized dealers of RainSoft branded products doing business in New Jersey, for the purpose of household use, following an in-home water precipitation test from March 8, 2013 to the date of class certification. The Defendants removed the Plaintiff's action to the New Jersey District Court. Thereafter, the Plaintiff moved to remand the action to state court. The District Court denied that motion, explaining the information the Defendants provided at that juncture gives rise to an over-inclusive damages figure, and, thus, the Defendants have not proven, by a preponderance of the evidence, that the amount in controversy exceeds $5 million, although they may still be able to do so. It ordered limited jurisdictional discovery and that the Plaintiff could renew her Motion to Remand. During discovery, AWP's owner, Charles Wunder, produced a sworn declaration stating AWP sold at least one Rainsoft(R)-brand product to at least 1,200 customers in the State of New Jersey, and, based on his knowledge of his team's sales practices, at least half of those sales presentations included a precipitation test prior to their purchase. Pursuant to Federal Rule of Civil Procedure 30(b)(6), the Plaintiff now seeks to depose AWP. To that end, Plaintiff subpoenaed AWP to appear for the deposition and to produce all documents concerning or supporting Wunder's statement that AWP sold at least one Rainsoft product 1200 customers in New Jersey. AWP now moves to quash the subpoena and for its attorneys' fees incurred in connection with filing the Motion as sanctions for the Plaintiff's improper discovery. AWP argues the Plaintiff's requested deposition is disproportionate to the needs of the case. Citing a litany of cases, AWP asserts the Court routinely accepts corporate representative's declarations to establish jurisdiction under the Class Action Fairness Act, and that Wunder's testimony in his declaration clearly establishes that the $5 million minimum threshold is easily satisfied. The Plaintiff responds that the information she seeks is targeted to minimize the burden on AWP and Wunder, and was noticed to take place via remote conferencing technology to protect against the transmission of COVID-19. Plaintiff contends Wunder voluntarily involved himself in these proceedings, and she should be allowed to test the reliability and competency of Wunder's statements, which are central to the jurisdictional dispute. Plaintiff asserts that, while perhaps burdensome, the discovery is not unduly burdensome, unreasonable, or oppressive. Jude Quraishi finds the discovery sought is not disproportionate to the needs of the case. AWP's declaration may be dispositive of the jurisdictional issue and, consequently, the Judge finds it reasonable that the Plaintiff would seek more specific information to verify AWP's owner's statements and documentation supporting his claims. While the Court commonly accepts declarations as evidence in deciding jurisdictional disputes, nothing prohibits a party from seeking more or contradictory information beyond that declaration. In scheduling limited jurisdictional discovery, the Judge contemplated the need for depositions. Furthermore, the Plaintiff's requested discovery is not duplicative or unduly cumulative, because she seeks information to substantiate or contradict Wunder's estimations. The Judge agrees with the Plaintiff that the burden on AWP is not undue. The Plaintiff has agreed to depose AWP remotely, negating the risk of spreading severe acute respiratory syndrome coronavirus 2, and the discovery sought is limited to the jurisdictional issue. Wunder voluntarily involved AWP in this jurisdictional dispute by providing what may be the deciding piece of evidence. Under the circumstances, the Court agrees with the Plaintiff should have the opportunity to depose AWP. For the reasons stated, Jude Quraishi denied AWP's Motion. A full-text copy of the Court's June 26, 2020 Memorandum Opinion & Order is available at https://bit.ly/2Ivc2kZ from Leagle.com. ARTEX RISK: Ninth Cir. Affirms Arbitration Ruling in Shivkov Suit ----------------------------------------------------------------- In the putative class action suit alleging that the captive insurance companies formed and managed by Artex and Tribeca were illegal and abusive tax shelters, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order granting the Defendants' motion to compel arbitration and dismissing the operative complaint without prejudice. The case is DIMITRI SHIVKOV, individually and as a trustee of the Phoenix 2010 Revocable Trust; VASSIL ZHIVKOV; KRISTINA TSONEV; SPECTRA INC.; DVS HOLDINGS LLC; ROBERT C. MILLER; BRENDA MAE MILLER; BRUCE G. ROBINSON; SARA VAN ALSTYNE ROBINSON; SYMPHONY HOMES LLC; SYMPHONY DEVELOPMENT CORPORATION; KEITH BUTLER; REBECCA M. BUTLER; ERIC K. WILKE; JULIE T. WILKE; JOHN LINDER; NINA LINDER; AFFILION OF COBRE VALLEY LLC; AFFILION OF HUNTSVILLE PLLC; AFFILION OF TEXAS PLLC; TAYLOR-WILKE HOLDINGS LLC; TRADITIONS EMERGENCY MEDICINE PA; TREADSTONE EQUITY GROUP LLC; UTA INVESTMENTS LLC; BOOMERANG WB LLC; AZ STORAGE 1 LLC; AZ STORAGE 2 LLC; BOOMERANG SONORAN LLC; RV STORAGE LLC; STONE HAVEN LODGE LLC; UTA HOLDINGS LLC; WILKE MEDICAL DIRECTION PLLC; 5T CAPITAL FUND II LLC; 5T CAPITAL HOLDINGS LLC; 5T CAPITAL LLC; INGENUITY AUTO LEASING LLC; INGENUITY AVIATION LLC; INGENUITY EQUITY GROUP II LLC; INGENUITY EQUITY GROUP LLC; INGENUITY EQUITY GROUP LLC; INGENUITY LEASING COMPANY II LLC; INGENUITY LEASING COMPANY LLC; INGENUITY MATRIX, INC.; INGENUITY PROFESSIONAL SERVICES PLLC; BOURNE TEMPE LAND LLC, on behalf of themselves and all others similarly situated; paul m. McHALE; CYNTHIA McHALE; KEITH E. PEREIRA, Individually and as a trustee of The Blaser Family Revocable Trust Dated March 10, 2006; KIMBERLY BLASER, Individually and as a trustee of The Blaser Family Revocable Trust Dated March 10, 2006; BRIAN R. TIFFANY; RYAN P. FRANK; KATHERINE S. FRANK; CATION LLC; FLORIDA CITRUS HOLDINGS LLC; McHALE CAPITAL MANAGEMENT LLC; PS BAILEY LLC; BLASER MANAGEMENT LLC; BLUE HORIZON HOLDINGS LLC; BUTLER MEDICAL GROUP, INC.; DEVOTION HOMES LLC; GLASS HOUSE LLC; MAUI LUXURY RENTALS LLC; SILVER MEADOW INVESTING LLC; T&G INVESTMENTS LLC; TREADSTONE CORE3 LLC; TW MANAGEMENT LLC; KAMAOLE LUXURY RENTALS LLC; KANNAPALI BEACH HOLDINGS LLC; OUR RETIREMENT LLC; RESILIANT LLC; NADIM B. BIKHAZI; KAREN A. KOSTLUK-BIKHAZI; BRADLEY S. BULLARD; CATHLEEN M. BULLARD; BLAKE G. WELLING; STEPHANIE G. WELLING; BLAKE WELLING MD PC; BRIAN TIFFANY MD PC; UTAH SPINE CARE LLC; WESTERN STATES MEDICAL LLC; OGDEN CLINIC PROFESSIONAL CORPORATION; BORSIGHT, INC., Plaintiffs-Appellants, v. ARTEX RISK SOLUTIONS, INC.; HOLDINGS LLC, FKA Tribeca Strategic Advisors LLC; TBS LLC, DBA PRS Insurance; KARL HUISH; JEREMY HUISH; JIM TEHERO; ARTHUR J. GALLAGHER & COMPANY; DEBBIE INMAN; EPSILON ACTUARIAL SOLUTIONS LLC; JULIE A. EKDOM; AMERISK CONSULTING LLC; PROVINCIAL INSURANCE PCC; TRIBECA STRATEGIC ACCOUNTANTS LLC; TRIBECA STRATEGIC ACCOUNTANTS PLC, Defendants-Appellees, Case No. 19-16746 (9th Cir.). The Plaintiffs, some 81 individuals and related business entities, variously entered into agreements with Defendants Artex and Tribeca. Pursuant to these Agreements, Artex and Tribeca formed and managed captive insurance companies that the Plaintiffs owned, and to which the Plaintiffs paid insurance premiums. As is relevant in the case, the Agreements contain an Arbitration Clause. Several Agreements also contain a Termination and Withdrawal section, which includes a clause concerning the survival of the terms of that section following termination of the Agreement. The Plaintiffs claimed the payments as tax-deductible business expenses without recognizing them as taxable income. Although the arrangement offered the prospect of tax benefits, that prospect proved fleeting. The IRS audited the Plaintiffs, issued delinquency notices, and sought to impose penalties. After settling with the IRS, the Plaintiffs brought the putative class action suit against the Defendants. They allege that the captives were illegal and abusive tax shelters, about which the Defendants failed to inform or advise the Plaintiffs. The Plaintiffs' pursuit of the suit, however, faced a roadblock: The Agreements contain an arbitration clause. The district court granted the Defendants' motion to compel arbitration and dismissed the operative First Amened Complaint without prejudice. The Plaintiffs appeal. They aver that Artex and Tribeca had a fiduciary duty to point out and explain the Arbitration Clause, which they failed to do. Thus, they claim, Artex and Tribeca effectively suppressed its existence in the less than 10-page Agreements that the Plaintiffs received and signed, and thereby committed the legal equivalent of fraud. They next argue that the Arbitration Clause in only some of their Agreements is unenforceable because it did not survive termination of the Agreements. First, the Panel holds that the Agreements are not unenforceable on the grounds the Plaintiffs raise. Although the Plaintiffs assert that Artex and Tribeca breached a fiduciary duty to point out and fully explain an arbitration clause, they identify no state law authority recognizing such a duty. Addressing an issue of first impression in the circuit concerning the survival of arbitration obligations following contract termination, the Panel hold that the Agreements do not expressly negate the presumption in favor of post-termination arbitration or clearly imply that the parties did not intend for their arbitration obligations to survive termination. Second, the Panel holds that the Arbitration Clause encompasses all the Plaintiffs' claims. Third, it joins seven of the Court's sister circuits in holding that the availability of class arbitration is a gateway issue that a court must presumptively decide. The Agreements do not clearly and unmistakably delegate that issue to the arbitrator. Because the Agreements are silent on class arbitration, they do not permit class arbitration. Finally, the Panel holds that all non-signatory the Defendants may compel arbitration pursuant to the Agreements. Based on the foregoing, Judge Milan D. Smith, Jr., writing for the Panel, concludes that the district court correctly granted the Defendants' motion to compel and ordered arbitration of the Plaintiffs' claims on an individual basis. He accordingly, affirmed. A full-text copy of the Court's Sept. 9, 2020 Opinion is available at https://tinyurl.com/ybv85daq from Leagle.com. W. Ralph Canada Jr. (argued), David R. Deary , Jim L. Flegle -- jimf@lfdlaw.com -- Wilson E. Wray, John McKenzie, Donna Lee, and Tyler M. Simpson, Loewinsohn Flegle Deary Simon LLP, Dallas, Texas; Garrett W. Woktyns -- gwotkyns@schneiderwallace.com -- and James A. Bloom, Schneider Wallace Cottrell Konecky Wotkyns, LLP, Scottsdale, Arizona; for Plaintiffs-Appellants. Stephen V. D'Amore (argued), Scott P. Glauberman, Michael A. Skokna, and Reid F. Smith, Winston & Strawn LLP, Chicago, Illinois; Barbara J. Dawson -- bdawson@swlaw.com -- Joseph G. Adams -- jgadams@swlaw.com -- and Taryn J. Gallup, Snell & Wilmer LLP, Phoenix, Arizona; for Defendants-Appellees Artex Risk Solutions Inc., Arthur J. Gallagher & Company, and Debbie Inman. Karl M. Tilleman (argued) -- karl.tilleman@dentons.com -- and Erin E. Bradham, Dentons, Phoenix, Arizona; for Defendants-Appellees TSA Holdings LLC, TBS LLC, Karl Huish, Jeremy Huish, Jim Tehero, Provincial Insurance PCC, and Tribeca Strategic Accountants LLC. J. Steven Sparks -- steve.sparks@sandersparks.com -- and Vincent Miner, Sanders & Parks, Phoenix, Arizona, for Defendants-Appellees Epsilon Actuarial Solutions LLC and Julie A. Ekdom. J. Michael Low and Paul Gerding, Jr. -- paul.gerding.jr@kutakrock.com -- Kutak Rock, Scottsdale, Arizona, for Defendant-Appellee AmeRisk Consulting LLC. Michael J. Plati and Michael S. Rubin, Dickinson Wright PLLC, Phoenix, Arizona, for Defendant-Appellee Tribeca Strategic Accountants PLC. ASPEN AMERICAN: Jagow Slams Denied Insurance Coverage ----------------------------------------------------- Kathryn L. Jagow, DDS, individually and on behalf of all others similarly situated, Plaintiffs, v. Aspen American Insurance Company, Defendants, Case No. 20-cv-01205 (W.D. Wash., August 10, 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. Jagow owns and operates a dental practice located in Mountlake Terrace, Washington that purchased an all-risk commercial property insurance policy from Aspen for protection in the event of property loss and business interruption. But during the COVID-19 pandemic, it was denied coverage despite the fact that the policy does not contain an exclusion for pandemic and/or virus-related losses. [BN] Plaintiff is represented by: Amy Williams-Derry, Esq. Lynn L. Sarko, Esq. Ian S. Birk, Esq. Gretchen Freeman Cappio, Esq. Irene M. Hecht, Esq. Maureen Falecki, Esq. Nathan L. Nanfelt, Esq. KELLER ROHRBACK LLP 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Fax: (206) 623-3384 Email: awilliams-derry@kellerrohrback.com lsarko@kellerrohrback.com ibirk@kellerrohrback.com gcappio@kellerrohrback.com ihecht@kellerrohrback.com mfalecki@kellerrohrback.com nnanfelt@kellerrohrback.com - and - Alison Chase, Esq. KELLER ROHRBACK LLP 801 Garden Street, Suite 301 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Fax: (805) 456-1497 Email: achase@kellerrohrback.com ASPEN SKIING CO: Katt Claims Website Not Blind-Friendly ------------------------------------------------------- David Katt, an individual person on behalf of himself and all others similarly situated, Plaintiff, v. Aspen Skiing Company, LLC, Defendants, Case No. 20-cv-02366, (D. Colo., August 10, 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. Defendant is a winter resort complex that owns and operates places of lodging as well as its website, www.aspensnowmass.com, offering features which should allow all consumers to access the goods and services offered in connection with its physical locations. Its resort is located in Snowmass Village, CO. Katt is legally blind and claims that Defendant's website cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Ari Marcus, Esq. MARCUS & ZELMAN, LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Tel: (732) 695-3282 Fax: (732) 298-6256 Email: Ari@MarcusZelman.com AT&T MOBILITY: Class of Non-Managerial Female Staff Sought ---------------------------------------------------------- In the class action lawsuit captioned as CYNTHIA ALLEN and KRISTINE WEBB, v. AT&T MOBILITY SERVICES LLC a/k/a AT&T MOBILITY LLC, Case No. 1:18-cv-03730-WMR (N.D. Ga.), the Plaintiffs ask the Court for an order: 1. certifying a class for all issues under Fed. R. Civ. P. 23(b)(3) or, in the alternative, 23(c)(4), defined as: "all non-exempt, non-managerial female employees in AT&T Mobility corporate owned retail stores nationwide who were pregnant at any time from April 26, 2017 to the first day of trial"; 2. appointing the Plaintiffs Cynthia Allen and Kristine Webb as Class Representatives; 3. appoint their counsel to serve as counsel for the class; and 4. authorizing notice to the class of the action and of their right to opt-out. AT&T Mobility LLC provides wireless voice and data communications services. A copy of the Plaintiffs' motion for class certification is available from PacerMonitor.com at https://bit.ly/33LvAs7 at no extra charge.[CC] The Plaintiffs are represented by: Joseph M. Sellers, Esq. Kalpana Kotagal, Esq. Harini Srinivasan, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. East Tower, Suite 500 Washington, D.C. 20005 Telephone: (202) 408-4600 E-mail: jsellers@cohenmilstein.com kkotagal@cohenmilstein.com hsrinivasan@cohenmilstein.com - and - Gillian L. Thomas, Esq. Sean J. Young, Esq. AMERICAN CIVIL LIBERTIES UNION Women's Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 E-mail: gthomas@aclu.org syoung@acluga.org Counsel for AT&T Mobility Services LLC are: Alex J. Maturi, Esq. Paul Hastings LLP 71 S. Wacker Drive, Suite 4500 Chicago, IL 60606 Telephone: (312) 499-6000 E-mail: alexmaturi@paulhastings.com - and - Kenneth W. Gage, Esq. Brian M. Hayes, Esq. Paul Hastings LLP 200 Park Avenue, 30th Floor New York, NY 10166 Telephone: (212) 318-6000 E-mail: kennethgage@paulhastings.com brianhayes@paulhastings.com - and - Christine Cedar, Esq. Paul Hastings LLP 2050 M Street NW, 11th Floor Washington, DC 20036 Telephone: (202) 551-1700 E-mail: christinecedar@paulhastings.com - and - Sheldon W. Snipe, Esq. AVP SENIOR LEGAL COUNSEL AT&T Services, Inc. 675 West Peachtree Street, NW, Suite 4300 Atlanta, GA 30308 Telephone: (404) 893-7953 E-mail: ss5526@att.com ATHENE ANNUITY: Gardner Slams Excessive Policy Surrender Charges ---------------------------------------------------------------- Joseph V. Gardner, an individual, on behalf of himself and others similarly situated, Plaintiff, v. Athene Annuity and Life Company and Does 1 through 50, inclusive, Defendants, Case No. 20-cv-07115, (C.D. Cal., August 7, 2020), seeks restitutionary and injunctive relief, rescission and damages for violations of the California Business and Professions Code and the California Welfare & Institutions Code. Athene issued annuity policy No. 702704 to Gardner on April 5, 2012. Mr. Gardner was 67 years of age at that time. On April 22, 2020, Gardner surrendered his policy in full. Athene imposed a surrender charge in the form of a "Withdrawal Charge" against the principal and interest amounts under said policy, thereby reducing the amount that Gardner received. [BN] Plaintiff is represented by: Ingrid M. Evans, Esq. EVANS LAW FIRM, INC. 3053 Fillmore Street, #236 San Francisco, CA 94123 Telephone: (415) 441-8669 Facsimile: (888) 891-4906 E-mail: ingrid@evanslaw.com - and - Andrew S. Friedman, Esq. Francis J. Balint, Jr., Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT, PC 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 Email: afriedman@bffb.com fbalint@bffb.com AUTO TRANSPORT: Ewing Sues Over Unsolicited Telemarketing Calls --------------------------------------------------------------- ANTON EWING v. AUTO TRANSPORT GROUPE, INC. and LUIS MOLINA, Case No. 3:20-cv-01964-WQH-AGS (S.D. Cal., Oct. 5, 2020), is brought by the Plaintiff against the Defendants for violations of the Telephone Consumer Protection Act and California's Invasion of Privacy Act. The Plaintiff alleges that the Defendants contacted his cellular telephone and landline home phones using an automatic telephone dialing system in an attempt to sell automobile transportation services without obtaining prior express consent. Further, the Defendants violated CIPA by illegally recording the telemarketing calls they made to the Plaintiff without disclosing that such calls were being recorded. Defendant Auto Transport Groupe faced a class action suit filed by Joey Rafaeli, individually and on behalf of all others similarly situated v. AMERICAN AUTO TRANSPORT, LLC, a Florida Limited Liability Company, Case No. 18-cv-61748, in the U.S. District Court for the Southern District of Florida for alleged violation of TCPA. Auto Transport Groupe, Inc., provides automobile transportation services based in Davie, Florida. Plaintiff Anton Ewing appears in pro per.[BN] BADGER BROTHERS: Certification of Settlement Class Sought --------------------------------------------------------- In the class action lawsuit captioned as CONNOR NEECK and ISAIAH WEST, individually and on behalf of all others similarly situated, v. BADGER BROTHERS MOVING LLC, Case No. 3:19-cv-00834-wmc (W.D. Wisc.), the Parties ask the Court for an order certifying a class for settlement purposes only consisting of: "all persons who have been or are currently employed by Badger Brothers Moving LLC as laborers and/or crew leads in the state of Wisconsin between October 9, 2017 and May 4, 2020." Badger Brothers provides house moving service. A copy of the parties' joint stipulation for class certification is available from PacerMonitor.com at https://bit.ly/35JoIhA at no extra charge.[CC] The Plaintiffs are represented by: David C. Zoeller, Esq. Caitlin M. Madden, Esq. Vanessa A. Kuettel, Esq. HAWKS QUINDEL, S.C. Post Office Box 2155 Madison, WI 53701-2155 Telephone: (608) 257-0040 Facsimile: (608) 256-0236 E-mail: dzoeller@hq-law.com cmadden@hq-law.com vkuettel@hq-law.com The Defendant is represented by: Michael J. Modl, Esq. Troy D. Thompson, Esq. AXLEY BRYNELSON, LLP 2 East Mifflin Street, Suite 200 Madison, WI 53703 Telephone: (608) 257-5661 E-mail: mmodl@axley.com tthompson@axley.com BANK OF AMERICA: Approval of Settlement with Accountholders Upheld ------------------------------------------------------------------ In the cases, JOANNE FARRELL; et al., Plaintiffs-Appellees, ESTAFANIA OSORIO SANCHEZ, Objector-Appellant, v. BANK OF AMERICA CORPORATION, N.A., Defendant-Appellee. JOANNE FARRELL; et al., Plaintiffs-Appellees, AMY COLLINS, Objector-Appellant, v. BANK OF AMERICA CORPORATION, N.A., Defendant-Appellee. JOANNE FARRELL; et al., Plaintiffs-Appellees, v. RACHEL THREATT, Objector-Appellant, v. BANK OF AMERICA, N.A., Defendant-Appellee, Case Nos. 18-56272, 18-56273, 18-56371 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's: (1) approval of a class action settlement between Defendant-Appellee Bank of America and Plaintiffs-Appellees, Bank of America accountholders; and (2) $14.5 million fee award to the class counsel. The Ninth Circuit finds that district court did not err in approving the settlement over objections to the failure to create subclasses. Nor did the district court abuse its discretion in using the percentage-of-recovery method to calculate fees and refusing to conduct a lodestar crosscheck. The district court considered the most pertinent factors influencing reasonableness, and it did not err in finding the fee award reasonable under Federal Rule of Civil Procedure 23(h). Most significantly, the district court concluded that the class counsel demonstrated "tenacity and great skill," achieving a "remarkable" result in a "hard fought battle" despite an "adverse legal landscape" and the "substantial risk of non-payment." The Ninth Circuit agrees with the dissent that the individual cash distributions were small, but it takes a different view of the value of the injunctive relief. While it can be difficult to value nonmonetary relief, the Court has no trouble finding that the value exceeds the $29.1 million assigned to it by the parties. Even more valuable than the debt forgiveness is the Defendant-Appellee's agreement to refrain from assessing the fees challenged in the lawsuit -- over the five-year moratorium imposed under the settlement agreement, the Defendant-Appellee will forgo assessing $1.2 billion in fees. It does not struggle to conclude, as the district court did, that the counsel "generated benefits" far "beyond the cash settlement fund." Applying the abuse of discretion standard, the Court finds that the district court reasonably determined that the relevant factors justified a fee award equivalent to 21.1% of the common fund. It was reasonable not to perform a crosscheck of the lodestar in the case, given the difficulty of measuring the value of the injunctive relief. What is more, the award fell under the 25% benchmark that the Court has encouraged district courts to use as a yardstick. Even if it were inclined to question the district court's motive in approving the settlement and awarding fees, the Court notes that the district court's prior order denying the Defendant-Appellee's motion to dismiss is inconsistent with the dissent's suggestion that the district court streamlined its docket at the expense of faithful adherence to the law. In short, neither the settlement nor the fee award raises an eyebrow, rules the Ninth Circuit. The Court has settled the issue of whether a lodestar crosscheck is required, and it would not unsettle its precedent, even if it had the authority to do so, it added. A full-text copy of the Court's Sept. 2, 2020 Memorandum is available at https://tinyurl.com/yxhpw3bg from Leagle.com. BENJAMIN FORD: Court Denies Maldonado Class Certification Bid ------------------------------------------------------------- In the class action lawsuit captioned as PABLO F. MALDONADO, v. BENJAMIN FORD, et al., Case No. 5:19-cv-00421-MTT-CHW (M.D. Ga.), the Hon. Judge Marc T. Treadwell entered an order: 1. denying the Plaintiff's motion for appointment of counsel; and 2. denying the Plaintiff's motion for class certification. United States Magistrate Judge Charles H. Weigle recommends denying Plaintiff Pablo Maldonado's motion for appointment of counsel and motion for class certification. "The Plaintiff did not file an objection, so pursuant to 28 U.S.C. section 636(b)(1), the Court reviews that portion of the Recommendation for clear error. After review, the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge. That portion of the Recommendation is adopted and made the Order of the Court," Judge Treadwell says. A copy of the Court's Order is available from PacerMonitor.com at https://bit.ly/3hP43Lz at no extra charge.[CC] BIG FISH: Jan. 7 Final Approval Hearing in Thimmegowda Suit Set --------------------------------------------------------------- In the case, MANASA THIMMEGOWDA, individually and on behalf of all others similarly situated, Plaintiff, v. BIG FISH GAMES, INC., et al., Defendants, Case No. C19-0199RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, will hold a Final Approval Hearing on Jan. 7, 2021, at 1:30 p.m., either in person at Courtroom 15106, United States Courthouse 700 Stewart Street, Seattle, WA 98101, or by telephone or videoconference. The Judge may adjourn the Final Approval Hearing and may approve the proposed Settlement in the case with such modifications as the Parties may agree to, if appropriate, without further notice to the Settlement Class. He may decide to hold the Final Approval Hearing by telephone or video conference without further mailed notice to the Settlement Class. If he orders that the Final Approval Hearing be conducted telephonically or by video conference, that decision will be posted on the settlement website www.bigfishgamessettlement.com. Any Settlement Class Member who wishes to appear at the Final Approval Hearing should consult the Court's docket and/or the settlement website for any change in date, time, or format of the hearing. Any Settlement Class Member who or which does not request exclusion from the Settlement Class may appear at and participate in the Final Approval Hearing by (a) submitting written objections to the Settlement Agreement, the proposed plan of allocation, and/or counsel's fee petition as set forth in the Agreement and (b) filing a notice of appearance with the Clerk of Court no later than Dec. 10, 2020, or as the Court may otherwise direct. Any Settlement Class Member who does not enter an appearance in the matter will be represented at the Final Approval Hearing by the Class Counsel. The Class Counsel will file and serve the opening papers in support of the proposed Settlement, class certification, the proposed plan of allocation, and the Class Counsel's motion for attorney's fees and expenses no later than Nov. 9, 2020. Reply papers, if any, will be filed and served no later than seven calendar days prior to the Settlement Hearing. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/y6tyqdys from Leagle.com. BRYAN UNIVERSITY: Hedges Sues in S.D. New York Over ADA Violation ----------------------------------------------------------------- A class action lawsuit has been filed against Bryan University, LLC. The case is styled as Donna Hedges, on behalf of herself and all other persons similarly situated v. Bryan University, LLC, Case No. 1:20-cv-08441 (S.D.N.Y., Oct. 9, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bryan University (BU) is a private for-profit university based in Tempe, Arizona. It offers programs in the fields of healthcare, exercise science, and legal.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal BUKHARA GRILL: De Jesus Seeks to Recover Unpaid Minimum, OT Wages ----------------------------------------------------------------- Rufino De Jesus, individually and on behalf of others similarly situated, Plaintiff, v. Bukhara Grill II, Inc., Vijay Rao, Raja Jhanhee and Vicke Verma, Defendants, Case No. 20-cv-06147 (S.D. N.Y., August 6, 2020), seeks to recover unpaid minimum and overtime wages and redress for failure to provide itemized wage statements pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control an Indian Restaurant, located in New York, NY under the name "Bukhara Grill" where De Jesus was employed as a dishwasher. He claims to have worked in excess of 40 hours per week, without appropriate minimum wage, overtime and spread of hours compensation for the hours that they worked. Bukhara Grill also failed to maintain accurate recordkeeping of the hours worked and failed to pay him appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium, says the complaint. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Facsimile: (212) 317-1620 Email: michael@faillacelaw.com CALIFORNIA TEACHERS: Ninth Circuit Appeal Filed in Mendez Suit -------------------------------------------------------------- Plaintiffs Bethany Mendez, et al., filed an appeal from a court ruling entered in their lawsuit entitled Bethany Mendez, Linda Leigh-Dick, Audrey Stewart, Scott Carpenter and Angela Williams, on behalf of themselves and all others similarly situated v. California Teachers Association, a California corporation, National Education Association, a nonprofit corporation, Fremont Unified District Teachers Association, Inc., a nonprofit corporation, Valley Center-Pauma Teachers Association, Hayward Education ASSOCIATION-CTA-NEA, a California corporation, Tustin Educators Association, a nonprofit corporation, Associated Chino Teachers, Kim Wallace, in her official capacity as Fremont Unified School District Superintendent, Ron Mccowan, in his official capacity as Valley Center-Pauma Unified School District, Matt Wayne, in his official capacity as Hayward Unified School District Superintendent, Gregory Franklin, in his official capacity as Tustin Unified School District Superintendent, Norm Enfield, in his official capacity as Chino Valley Unified School District Superintendent and Xavier Becerra in his official capacity as Attorney General of California, Case No. 4:19-cv-01290-YGR, in the U.S. District Court for the Northern District of California (Oakland). As previously reported in the Class Action Reporter, the Plaintiffs seek compensatory, declaratory and injunctive relief for violations of the First Amendment rights of freedom of speech and freedom of association and a refund of all deductions taken pursuant to California's unjust enrichment law. Class members claim to have been deducted union dues without their clear and affirmative consent. They allege that the Unions promote political positions and fund activities which they no longer wish to support or never supported. The Plaintiffs are member of various teachers' unions in California. The appellate case is captioned as BETHANY MENDEZ, LINDA LEIGH-DICK, AUDREY STEWART, SCOTT CARPENTER, and ANGELA WILLIAMS, an individual, on behalf of themselves and all others similarly situated v. CALIFORNIA TEACHERS ASSOCIATION; NATIONAL EDUCATION ASSOCIATION; FREMONT UNIFIED DISTRICT TEACHERS ASSOCIATION; VALLEY CENTER-PAUMA TEACHERS ASSOCIATION; HAYWARD EDUCATION ASSOCIATION-CTA-NEA; TUSTIN EDUCATORS ASSOCIATION; ASSOCIATED CHINO TEACHERS; KIM WALLACE, in her official capacity as Fremont Unified School District Superintendent; RON MCCOWAN, in his official capacity as Valley Center-Pauma Unified School District; GREGORY FRANKLIN, in his official capacity as Tustin Unified School District Superintendent; NORM ENFIELD, in his official capacity as Chino Valley Unified School District Superintendent; and XAVIER BECERRA, in his official capacity as Attorney General of California, Case No. 20-15394, in the United States Court of Appeals for the Ninth Circuit.[BN] The Plaintiffs-Appellants are represented by: Karin Sweigart, Esq. FREEDOM FOUNDATION P.O. Box 552 Olympia, WA 98507 Telephone: 360 956-3482 Defendant-Appellees California Teachers Association; National Education Association; Fremont Unified District Teachers Association; Valley Center-Pauma Teachers Association; Hayward Education Association-CTA-NEA; Tustin Educators Association; Associated Chino Teachers are represented by: Scott A. Kronland, Esq. Matthew John Murray, Esq. ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Personal: 415-421-7151 Defendant-Appellee Kim Wallace, in her official capacity as Fremont Unified School District Superintendent, is represented by: Seth Gordon, Esq. LEONE & ALBERTS 2175 N. California Boulevard, Suite 900 Walnut Creek, CA 94596 - and - Louis Leone, Esq. STUBBS & LEONE 2175 N. California Blvd. Walnut Creek, CA 94596 Defendant-Appellee Ron McCowan, in his official capacity as Valley Center-Pauma Unified School District, is represented by: Daniel R. Shinoff, Esq. Jack M. Sleeth, Jr., Esq. STUTZ ARTIANO SHINOFF & HOLTZ 2488 Historic Decatur Rd. San Diego, CA 92106 Defendants-Appellees Gregory Franklin, in his official capacity as Tustin Unified School District Superintendent; and Norm Enfield, in his official capacity as Chino Valley Unified School District Superintendent, are represented by: Mark Robert Bresee, Esq. ATKINSON ANDELSON LOYA RUUD ROMO 4275 Executive Square, Suite 700 La Jolla, CA 92037 Telephone: 858 485-9526 Defendant-Appellee Xavier Becerra, in his official capacity as Attorney General of California, is represented by: R. Matthew Wise, Esq. AGCA-OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 1300 I Street, Suite 125 Sacramento, CA 95814 CAMELBAK PRODUCTS: Court Dismisses Keller Suit With Prejudice ------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California dismissed with prejudice the case, JOHN D. KELLER, Plaintiff, v. CAMELBAK PRODUCTS, LLC, ET AL., Defendants, Case No. 4:20-cv-00232-YGR (N.D. Cal.). The Court issued an order granting the Defendants' motion to dismiss the Plaintiff's first amended class action complaint. In the order, the Court stated that the it did not believe that amendment to the complaint is possible, but that, in light of Keller's request, leave to amend is granted as long as such amendment can be made consistent with Rule 11. The Court provided that to the extent Keller decides to file a second amended complaint, the same will be filed no later than June 19, 2020. A failure to do so will result in a sua sponte dismissal with prejudice effective June 22, 2020. The Plaintiff did not file a second amended complaint with the Court in the action. Accordingly, and in light of the Court's prior order granting the Defendants' motion to dismiss, Judge Rogers dismissed with prejudice the matter. A full-text copy of the District Court's June 26, 2020 Order is available at https://bit.ly/3k1uWh7 from Leagle.com. CGI FEDERAL: $350K Tollini FLSA Suit Settlement Gets Final Approval ------------------------------------------------------------------- In the case, FRED TOLLINI, on behalf of himself and others similarly situated, Plaintiffs, v. CGI FEDERAL INC., a Delaware Corporation; CGI TECHNOLOGIES AND SOLUTIONS INC., a Delaware Corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 18-cv-03275-MMC (N.D. Cal.), Judge Maxime M. Chesney of the U.S. District Court for the Northern District of California, San Francisco Division, granted the Plaintiff's (i) Unopposed Motion for Attorneys' Fees and Costs and Class Representative Enhancement at Final Approval of Class Action Settlement, and (ii) Unopposed Motion for Final Approval Class and Collective Action Settlement as set forth in the Stipulation of Settlement of Class Action and Release and Addendum to Settlement Agreement and Release of Claims. On Sept. 4, 2020, the Court heard the Plaintiff's Fees and Costs Motion, and the Settlement. In accordance with the Order Granting Plaintiff's Unopposed Motion for Preliminary Approval of Class and Collective Settlement, Approval of Class Notice and Setting Final Approval Hearing, the Class Members have been given notice of the terms of the Settlement and an opportunity to object to the Settlement, comment on it and exclude themselves from it. Having considered the Settlement and the papers submitted by the Parties in support of final approval of the Settlement, Judge Chesney finds that class certification of the following Class and Collective, for settlement purposes only, is appropriate under Rule 23(b)(3) of the Federal Rules of Civil Procedure and 29 U.S.C. Section 216(b): all current and former non-exempt individuals employed by defendant within the State of California at any time during the period from April 30, 2014 through May 27, 2019. Plaintiff Tollini is appointed as the class representative, and the appointment of Class Counsel, David Yeremian and Roman Shkodnik of David Yeremian & Associates, Inc, as the Class Counsel, is confirmed. According to Judge Chesney, the terms of the Settlement are fair, reasonable and adequate, and the standards and applicable requirements for final approval of the class action settlement are satisfied. Pursuant to the terms of the Settlement, in exchange for the Settlement Class Members agreeing to release the Released Claims, the Gross Fund Value the Defendant will be required to pay under the Settlement is $350,000, which is inclusive of the Class Counsel's Attorneys' Fees, Litigation Expenses, Claims Administration Costs, the PAGA Penalty Payment, Settlement Payments to Settlement Class Members, and the Service Enhancement Payment to the Class Representative. Accordingly, the Judge finds the Settlement deserves final approval and ordered the Parties to consummate the Settlement in accordance with the terms thereof. The action is dismissed on the merits with prejudice, with each party bearing his/her/its own costs, except as provided in the Settlement. By the Final Approval Order, each of the Settlement Class Members who did not opt out of the Settlement will be deemed to have fully, and forever released, relinquished, and discharged all claims released by Sections 18 and 19 of the Settlement, as set forth in the Settlement and incorporated by reference herein. The Class Members who requested to opt out are: Cynthia Colvin, Jimmy Padaoan, and Talia Christine Yage. Judge Chesney approved ILYM Group, Inc. to administer the settlement and will be paid claims administration expenses in the amount of $7,500 from the Gross Fund Value for its services rendered in administering the settlement, in accordance with the Settlement. The PAGA Payment arising under the California Private Attorneys General Act of $5,000 is approved, with the California Labor and Workforce Development Agency receiving $3,750 and the remaining $1,250 being redistributed to the Settlement Class members who did not opt out. Payment of that amount will be paid from the Gross Fund Value in accordance with the Settlement Agreement, and there will be no further recourse for the civil penalties released under the terms of the Settlement. Based upon application by the Class Counsel and the Plaintiff, and his valuable contribution to the litigation, the Court approved the payment of a Class Representative Enhancement and Service Award in the amount of $5,000 to the Plaintiff (in addition to any recovery he may receive as a member of the Settlement Class) in exchange for all Releases and in recognition of his efforts and the risks he undertook in prosecuting the Action. Based upon application by the Class Counsel, the Court also approved the payment of attorneys' fees to the Class Counsel in the amount of $87,500, which is 25% of the Gross Fund Value of $350,000 to be paid in the manner set forth in the Settlement Agreement. The Plaintiff's request for an award of reasonable litigation costs is also approved. Out of the $16,000 allocated to costs, the Class Counsel has incurred $12,815.72 in costs through final approval. The Class Counsel is awarded the amount, and the difference between that number and the allocated amount will be added back into the Net Fund Value to be distributed to the Settlement Class Members in accordance with the Settlement Agreement. Within 10 days of the Effective date, the Defendant will provide deposit the full Gross Fund Value into an account established by the Settlement Administrator. Within 20 days after the Defendant provides the total amount to be funded, the Claims Administrator will pay to each Settlement Class Member his or her Individual Settlement Amount from the Net Fund Value, and make all other payments as set forth above, in accordance with the Settlement. No later than 200 days after the mailing of the settlement payment checks, the settlement administrator will prepare and sign a declaration attaching as an exhibit all the settlement payment checks that have been cashed by the Settlement Class Members. The Class Counsel will file the declaration and exhibit with the Court within two weeks of receipt as the current record of all consents by Settlement Class Members to opt into the action and release Fair Labor Standards Act claims. After settlement administration and distribution of funds have been completed, the Parties will file a report with the Court certifying compliance with the terms of the Settlement and the Order. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/y5ghvemv from Leagle.com. DAVID YEREMIAN & ASSOCIATES, INC., David Yeremian -- david@yeremianlaw.com -- Glendale, California, UNITED EMPLOYEES LAW GROUP, PC, Walter Haines --whaines@uelglaw.com -- Huntington Beach, CA, Attorneys for Plaintiff Fred Tollini, on behalf of himself and all others similarly situated. CHRISO FOOD: Busboys Sue for Denied OT Wages, Missing Pay Stubs --------------------------------------------------------------- Emilio Castro and Santos Vasquez, on behalf of themselves and others similarly situated, Plaintiff, v. Chriso Food Services Inc. and Dennis Pavlatos, Defendants, Case No. 20-cv-03550 (E.D. N.Y., August 6, 2020), seeks to recover unpaid minimum wage, unpaid overtime compensation, withheld tips, liquidated damages, prejudgment interest and attorneys' fees under the Fair Labor Standards Act and unpaid spread of hours premium and statutory damages for failure to provide required wage and hour law notices pursuant to New York Labor Laws and the New York State Wage Theft Prevention Act. Defendants run a diner at 3360 Merrick Road Seaford, New York where Plaintiffs worked as busboys. They claim to have worked through their meal breaks, denied wage statements, were required to work 5-15 minutes before their scheduled shifts, and regularly worked in excess of 40 hours per week. [BN] Plaintiffs are represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 3rd Avenue, Suite 1810 New York, NY Tel: (718) 669-0714 Email: mgangat@gangatllc.com CHURCHILL CAPITAL: Hutchings Hits Polaris Merger Deal ----------------------------------------------------- Gina Hutchings, individually and on behalf of all others similarly situated, Plaintiff, v. Churchill Capital Corp. III, Michael Klein, Jeremy Paul Abson, Glenn August, Mike Eck, Bonnie Jonas, Mark Klein, Malcolm S. Mcdermid and Karen Mills,, Defendants, Case No. 20-cv-06318 (S.D. N.Y., August 11, 2020), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the merger of Churchill Capital with Music Merger Sub I, Inc., Music Merger Sub II LLC, Polaris Parent Corp. and Polaris Investment Holdings, L.P., rescinding it and setting it aside or awarding rescissory damages in the event defendants consummate the merger, costs of this action, including reasonable allowance for attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Under the terms of the merger agreement, Churchill will cease to exist, forming one publicly traded entity combined with the investors in Polaris, significantly diluting Churchill investor's share of Churchill common stock they own. Polaris Investment and Polaris Parent will receive up to $3.7 billion of new equity or equity-linked capital that will reduce the firm's debt. The transaction includes $1.3 billion worth of fully committed common stock at $10 a share from Churchill's stockholders and $1.3 billion in convertible debt, convertible at $13 per share, structured as a reverse merger where existing shareholders will own the majority of the go-forward company. Hutchings claims that the transaction undervalues Churchill and is the result of a flawed sales process saying that the Board failed to create a disinterested committee of independent directors to maximize public stockholder value. Churchill is a special purpose acquisition company, an entity that is formed strictly to raise capital through an initial public offering for the purpose of acquiring an existing company, and merging with it to take that entity public. Polaris is a private company that uses technology-enabled provider network, negotiation, claim pricing and payment accuracy services as building blocks for medical and dental payers to customize the healthcare cost management programs. [BN] Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 240 Mineola Blvd. Mineola, NY 11501 Phone: (516) 741-4977 Facsimile: (516) 741-0626 Email: esmith@brodskysmith.com CHURCHILL DOWNS: Jan. 7 Final Approval Hearing in Kater Suit Set ---------------------------------------------------------------- In the case, CHERYL KATER and SUSIE KELLY, individually and on behalf of all others similarly situated, Plaintiffs, v. CHURCHILL DOWNS INCORPORATED and BIG FISH GAMES, INC., Defendants, Case No. C15-0612RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, will convene a Final Approval Hearing on Jan. 7, 2021, at 1:30 p.m., either in person at Courtroom 15106, United States Courthouse 700 Stewart Street, Seattle, WA 98101, or by telephone or videoconference. Judge Lasnik may adjourn the Final Approval Hearing and may approve the proposed Settlement in the case with such modifications as the Parties may agree to, if appropriate, without further notice to the Settlement Class. He may decide to hold the Final Approval Hearing by telephone or video conference without further mailed notice to the Settlement Class. If he orders that the Final Approval Hearing be conducted telephonically or by video conference, that decision will be posted on the settlement website www.bigfishgamessettlement.com. Any Settlement Class Member who wishes to appear at the Final Approval Hearing should consult the Court's docket and/or the settlement website for any change in date, time, or format of the hearing. Any Settlement Class Member who or which does not request exclusion from the Settlement Class may appear at and participate in the Final Approval Hearing by (a) submitting written objections to the Settlement Agreement, the proposed plan of allocation, and/or counsel's fee petition as set forth in the Agreement and (b) filing a notice of appearance with the Clerk of Court no later than Dec. 10, 2020, or as the Court may otherwise direct. Any Settlement Class Member who does not enter an appearance in the matter will be represented at the Final Approval Hearing by the Class Counsel. The Class Counsel will file and serve the opening papers in support of the proposed Settlement, class certification, the proposed plan of allocation, and the Class Counsel's motion for attorney's fees and expenses no later than Nov. 9, 2020. Reply papers, if any, will be filed and served no later than seven calendar days prior to the Settlement Hearing. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/y69dokdj from Leagle.com. CLAFLIN UNIVERSITY: Faces Hedges ADA Class Suit in S.D. New York ---------------------------------------------------------------- A class action lawsuit has been filed against Claflin University. The case is styled as Donna Hedges, on behalf of herself and all other persons similarly situated v. Claflin University, Case No. 1:20-cv-08443 (S.D.N.Y., Oct. 9, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Claflin University is a private historically black university in Orangeburg, South Carolina. Founded in 1869 after the American Civil War by northern missionaries for the education of freedmen and their children, it offers bachelor's and master's degrees.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal COLUMBIA GAS: Court Consolidates Moles with Parsons --------------------------------------------------- In the case, GARY MOLES and VICTORIA G. MOLES, individually, and on behalf of all others similarly situated in West Virginia, Plaintiffs, v. COLUMBIA GAS TRANSMISSION, LLC and COMUMBIA PIPELINE GROUP SERVICES COMPANY, Defendants, Civil Action No. 2:20-cv-00279 (S.D. W. Va.), Judge Irene C. Berger of the U.S. District Court for the Southern District of West Virginia, Charleston Division, granted the Plaintiffs' Motion to Consolidate with Related Pending Civil Action. The Plaintiffs filed their Class Action Complaint on April 21, 2020. The active pleading is a Second Amended Class Action Complaint filed on July 23, 2020. The Plaintiffs are surface and/or mineral owners of property in or around Elkview, Kanawha County, West Virginia. The Defendants are involved in the transmission, transportation, and storage of natural gas. Columbia operates 12 underground gas storage fields in West Virginia. The named Plaintiffs own either surface or mineral rights to property within the Hunt Storage Field. The Plaintiffs allege that Columbia did not legally acquire the right to store or remove gas from their property. Columbia and its predecessors obtained a FERC (Federal Energy Regulatory Commission) certificate for the Hunt Storage Field in around 1950 and have been storing gas there since approximately 1951. After obtaining a FERC certificate, companies are required to negotiate use with property owners. Instead, according to the Plaintiffs, Columbia operates the storage fields without negotiating just compensation, or even consistently notifying property owners. The boundaries of the storage fields are not public, so property owners may not be aware of the usage of their property. The Plaintiffs further allege that Columbia has been storing natural gas in its other 11 storage fields in West Virginia continuously and without interruption since receiving FERC Certificates for those fields. The unauthorized storage and removal of natural gas has been ongoing in the twelve storage fields in West Virginia since the early 1950s. The Plaintiffs bring the claim on behalf of a purported class, defined as: All persons or entities who own the surface of real property in West Virginia or who hold oil and/or gas mineral rights (fee or leasehold) to real property in West Virginia that is located within the certificated boundaries of a Columbia gas storage field in West Virginia, but as to whom Columbia has not reached agreement regarding compensation for gas storage, has not acquired gas storage rights by contract, and as to which Columbia has not exercised the right of eminent domain. They allege claims for trespass, conversion, unjust enrichment for use of property for storage, unjust enrichment for obtaining Plaintiffs' native gas without compensation, inverse condemnation, declaratory judgment, and a permanent injunction. The same Plaintiffs' counsel represent another purported class in a similar suit against the same Defendants, Parsons et. al. v. Columbia Gas Transmission, LLC, et. al., Civil Action No. 2:19-cv-649. That case, now pending in front of the Hon Dwane L. Tinsley, U.S. Magistrate Judge, was initiated on Sept. 10, 2019. The active pleading is the Amended Class Action Complaint filed on May 19, 2020. The named Plaintiffs therein own property within the Columbia's Ripley Storage Field. The factual claims are nearly identical to those in Moles. The purported Parsons class, identical to the purported Moles class, is defined as: All persons or entities who own the surface of real property in West Virginia or who hold oil and/or gas mineral rights (fee or leasehold) to real property in West Virginia that is located within the certificated boundaries of a Columbia gas storage field in West Virginia, but as to whom Columbia has not reached agreement regarding compensation for gas storage, has not acquired gas storage rights by contract, and as to which Columbia has not exercised the right of eminent domain. The Parsons complaint alleges the same causes of action and contains the same requests for relief. The current scheduling order in Parsons, entered on July 1, 2020, establishes a deadline of Sept. 30, 2020, for the completion of fact discovery, Nov. 30, 2020, for the final exchange of expert reports, and March 15, 2021, for the completion of briefing of a motion for class certification. The scheduling order in Moles establishes a deposition deadline of May 12, 2021, a final expert report deadline of April 14, 2021, and a deadline of June 9, 2021, for filing a motion for class certification, with briefing to be completed within the standard deadlines thereafter. The Plaintiffs urge the Court to consolidate the Moles case with the Parsons case. They note that the proposed classes are identical, and should class certification be granted, they would be members of the Parsons class. They argue that the claims, facts, and law are identical in both cases. They contend that there is no risk of confusion or prejudice if the cases are consolidated, and a failure to consolidate could result in inconsistent judgments. The Plaintiffs further assert that consolidation would reduce the burden on the parties, witnesses, and the Court, permitting more efficient and less expensive resolution of both cases. They argue that similar class actions are particularly well suited for consolidation. The Defendants oppose consolidation. They argue that individual issues predominate because the claims involve different parcels of real estate, which relate to different gas storage facilities, in different counties, operating under different Federal Energy Regulatory Commission (FERC) Certificates, which have been in operation for differing amounts of time. They cite differences in each parcel of real estate, differences in each Plaintiff's ownership rights, as well as Columbia's rights with respect to each parcel, and emphasize that determination of damages would require an individualized assessment. The Defendants further argue that their defenses, including statute of limitations, laches, and adverse possession, will be individualized to each Plaintiff. They argue that consolidation would be confusing and prejudicial, and note that discovery is more advanced in Parsons, creating some risk of delay. In reply, the Plaintiffs contend that the Defendants overstate the individualized issues. They further note that many of the distinctions cited by the Defendants exist between the named Plaintiffs already consolidated in Moles and Parsons. They argue that class actions cases, in particular, can be certified for liability and then Courts have significant flexibility to address differences through the use of sub-classes, special masters, and other measures. Judge Berger finds that Parsons and Moles present essentially identical claims, with identical proposed classes asserting identical causes of action against the same Defendants. The sole difference between the two cases is location: the named Plaintiffs in Parsons own property impacted by the Ripley Storage Field, and the named Plaintiffs in Moles own property impacted by the Hunt Storage Field in or near Elkview. Both seek to present claims on behalf of a class of plaintiffs with property in all 12 storage fields in West Virginia. Given the identity of the issues and the proposed classes, the Judge finds little risk of confusion or prejudice. Parsons is somewhat more advanced, and consolidation may slightly delay its progress. However, because discovery is likely to overlap significantly, particularly as to class issues, it is likely that any delay would be minimal. Final resolution of both cases is likely to be expedited by consolidation. The Defendants note that although the claims are the same in both cases, the legal analysis for each claim will be entirely different for each Plaintiff. As the Plaintiffs note, however, both cases already have multiple named Plaintiffs for whom the legal implications of any individual differences will need to be determined. Should a class be certified, consolidation will permit far more efficient and consistent resolution. Many of the distinctions between individual Plaintiffs noted by the Defendants overlap between the two cases. Making determinations in two separate cases would create the potential for inconsistent rulings. In addition, the two cases present common issues regarding liability and Columbia's actions. It would place a significant unnecessary burden on witnesses, the parties, and the Court to continue with dual discovery, motions practice, and, potentially, trials and class management procedures. In short, litigating these actions as two separate purported class action cases would be extraordinarily burdensome and expensive. Therefore, Judge Berger finds that consolidation is appropriate. Wherefore, after thorough review and careful consideration, Judger Berger granted the Plaintiffs' Motion to Consolidate with Related Pending Civil Action. She consolidated Moles with Parsons. Civil Action No. 2:19-cv-649 is designated as the lead case and Moles will proceed under that case style. Finally, the Judge transferred Moles to Magistrate Judge Tinsley. The Clerk is directed to send a certified copy of the Order to Magistrate Judge Tinsley, to counsel of record, and to any unrepresented party. A full-text copy of the Court's Sept. 4, 2020 Memoranum Opinion & Order is available at https://tinyurl.com/y3z6ux5a from Leagle.com. COMMUNITYAMERICA: Court Certifies Three Classes ----------------------------------------------- In the class action lawsuit captioned as LISA HOLT, on behalf of herself and All others similarly situated, v. COMMUNITYAMERICA CREDIT UNION, Case No. 4:19-cv-00629-FJG (W.D. Mo.), the Hon. Judge Fernando J. Gaitan, Jr. entered an order: 1. denying the motion to dismiss for failure to state a claim; 2. granting the Motion for Preliminary Approval of Class Action Settlement, Certification of the Classes, Appointment of Class Counsel, Direction of Notice and Setting of Date for Final Approval Hearing. The Court said, "the test is not whether any individual issues exist, but is simply whether one or more of the central issues in the case is common to the class." Here, the core issue of contractual interpretation is a "common, aggregation-enabling issue" to Class Members who were assessed an overdraft fee, non-sufficient funds fee, or "Unspecified Transfer" fee by Defendant. Furthermore, a class action is the superior method of adjudicating the present claims for all parties as the Defendant's members need not bring individual actions to obtain relief and the Defendant can resolve all members' claims through the Settlement. For these reasons, the predominance and superiority requirements are met. The Court therefore finds that the requirements for preliminary approval have been met and conditionally certifies the Classes for purposes of issuing notice of the Settlement. The Classes that the Court certified are: a. The "Authorize Positive Purportedly Settle Negative" Fee Class: consisting of those members of the Defendant who were assessed fees that Defendant charged and did not refund on signature Point of Sale debit card transactions from December 19, 2014 to July 1, 2019 where there was a sufficient available balance at the time the transaction was authorized, but an insufficient available balance at the time the transaction was presented to Defendant for payment and posted to a member's account; b. The Multiple Non-Sufficient Funds Fee Class "consisting of those members of Defendant who were assessed nonsufficient funds fees that were assessed and not refunded from August 6, 2015 to July 1, 2019 for and check transactions that were later re-submitted by a merchant after being rejected for insufficient funds"; and c. The Unspecified Transfer Fee Class: "consisting of those members of Defendant who paid overdraft fees described as an "Unspecified Transfer Fee" on a member's periodic monthly statement that were assessed and not refunded from October 23, 2014 through June 30, 2019." CommunityAmerica is a credit union headquartered in Lenexa, Kansas, regulated under the authority of the Missouri Division of Credit Unions and the National Credit Union Administration of the U.S. federal government. A copy of the Court's Order certifying classes is available from PacerMonitor.com at https://bit.ly/2ZJIyp4 at no extra charge.[CC] COMODO GROUP: Seeks 3rd Circuit Review of Ruling in Johnson Suit ---------------------------------------------------------------- Comodo Group Inc. filed an appeal from a court ruling entered in the lawsuit styled Michael Johnson v. Comodo Group Inc., et al., Case No. 2-16-cv-04469 (Filed July 22, 2016), in the U.S. District Court for the District of New Jersey. As previously reported in the Class Action Reporter, Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey (i) denied in part Comodo's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, (ii) denied its Motion to Exclude Plaintiff's Expert, and (iii) granted Johnson's Motion for Class Certification pursuant to Rule 23. Between 2012 and 2016, the Defendant made cold sales calls for its then affiliate, Comodo CA Ltd., which was in the business of issuing/selling Secure Sockets Layer ("SSL") Certificates to website owners. SSL Certificates are encryption keys that enable website owners to securely transfer data to and from their customers. Each Certificate contains expiration date information and often contains the user's (i.e., website operator's) name and telephone number. The Defendant used an automated computer program to crawl the internet to compile a database of SSL Certificates, their expiration dates, and their users' names and telephone numbers. When contact information was not immediately available on a Certificate, the Defendant supplemented the information by scanning the target website or manually searching the WHOIS Registry, an online database. Using this process, it formulated sales leads containing phone numbers for soon-to-expire Certificates. The Defendant's sales department would then load the leads into a dialing platform called "VICIdial." The appellate case is captioned as MICHAEL JOHNSON, on behalf of himself and all others similarly situated, Plaintiff-Respondent, v. COMODO GROUP INC., Defendant-Petitioner; COMODO CA INC., Defendant-Respondent, and UNITED STATES OF AMERICA, Intervenor-Respondent, Case No. 20-8021, in the United States Court of Appeals for the Third Circuit. Comodo is a cybersecurity company headquartered in Clifton, New Jersey.[BN] The Plaintiff-Respondent is represented by: Sofia Balile, Esq. LEMBERG LAW 43 Danbury Road, 3rd Floor Wilton, CT 06897 Telephone: 917-981-6237 Defendant-Petitioner Comodo Group Inc. is represented by: Jeffrey S. Jacobson, Esq. FAEGRE DRINKER BIDDLE & REATH 1177 Avenue of the Americas, 41st Floor New York, NY 10036 Telephone: 212 248-3191 - and - Lauri A. Mazzuchetti, Esq. Paul A. Rosenthal, Esq. KELLEY DRYE & WARREN One Jefferson Road, 2nd Floor Parsippany, NJ 07054 Telephone: 973-503-5943 Defendant-Respondent Comodo CA Inc. is represented by: Charles J. Falletta, Esq. Jeffrey J. Greenbaum, Esq. SILLS CUMMIS & GROSS One Riverfront Plaza, 11th Floor Newark, NJ 07102 Telephone: 973 643-7000 Intervenor-Respondent United States of America is represented by: Jonathan Kossak, Esq. UNITED STATES DEPARTMENT OF JUSTICE 1100 L Street North West, Room 12302 Washington, DC 20005 Telephone: 202 305-0612 CRAIG EHRLICH: Court Denies as Moot Bid for Class Certification --------------------------------------------------------------- In the class action lawsuit captioned as BHUPENDRA GHANDI and A&Y FAMILY GROUP INC., v. CRAIG J. EHRLICH, et al., Case No. 1:19-cv-03511-SDG (N.D. Ga.), the Hon. Judge Steven D. Grimberg entered an order: 1. granting the Defendants' motion to dismiss, motion for sanctions, and motion to strike; 2. denying as moot the Defendants' motion to disqualify the Plaintiffs' counsel; 3. denying the Plaintiffs' motions to amend the complaint; and 4. denying as moot the the Plaintiffs' motion for class certification of: "all past and current business and property owners who have been accused of violations of the Americans with Disabilities Act (ADA) by Defendants." The Court said, "The Plaintiffs' motion for class certification is premature. Under the local rules, a plaintiff normally must move for class certification within 90 days after the Complaint is filed. However, if a defendant files a motion to dismiss, "the plaintiff shall move for a determination under Fed. R. Civ. P. 23(c)(1) within 30 days after all the defendants have filed an answer to the complaint.” The Defendants have not yet answered but the Plaintiffs' counsel thought it appropriate to move for class certification anyway." The Plaintiffs contend that the Defendants formed a criminal enterprise by using the ADA to initiate numerous federal cases based on false allegations of disability, injury, and standing to collect quick settlements from Georgia property owners. The Plaintiffs allege that, as of the filing of this action, Ehrlich and E&S had filed 558 cases in this district, plus additional cases in other districts. The Plaintiffs assert that the majority of the property owners in the Defendants' underlying ADA litigations are small business owners who are immigrants and cannot afford legal representation. The Plaintiffs allege that these business owners were pressured by Ehrlich and Schapiro to settle the cases. Defendant Craig Ehrlich is a Georgia attorney who owns and operates Defendant The Law Office of Craig J. Ehrlich, LLC (The Law Office). Defendant Douglas Schapiro is a Florida attorney who practices with Ehrlich at Defendant Ehrlich & Schapiro, LLC (E&S). Schapiro also owns and operates Defendant ADA Consultants of America, LLC (ADACOA), Florida limited liability company that consults on ADA issues around the country. A copy of the Court's Order and Opinion is available from PacerMonitor.com at https://bit.ly/330gEYd at no extra charge.[CC] CREDIT BUREAU: Vazquez Files Placeholder Class Certification Bid ---------------------------------------------------------------- In the class action lawsuit styled as Christina Vazquez, Individually and on Behalf of All Others Similarly Situated, v. CREDIT BUREAU COLLECTION SERVICES, INC., d/b/a CBCS, Case No. 2:20-cv-01438-NJ (E.D. Wisc.), the Plaintiff filed a "placeholder" motion for class certification in order to prevent against a "buy-off" attempt, a tactic class-action defendants sometimes use to attempt to prevent a case from proceeding to a decision on class certification by attempting to "moot" the named plaintiff's claims by tendering the plaintiff individual (but not classwide) relief. The Plaintiff asks the Court for an order certifying a class, appoint herself as the class representative, and appoint her attorneys as class counsel. In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the Supreme Court held "an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case," and "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted." The Sixth Circuit applied Campbell-Ewald in an unreported opinion in Family Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508, 2016 WL 384823, at (6th Cir. Feb. 2, 2016). In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth Circuit held that, even where "[the parties [did] not dispute that all eleven named plaintiffs' individual claims became moot before the district court certified the class," the "picking-off" exception applied and allowed the named plaintiffs with moot individual claims to pursue class certification, which would "relate back" to the filing of the complaint, applying Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth Circuit held this ruling was consistent with Campbell-Ewald, 136 S. Ct. at 672, which refused to put defendants "in the driver's seat" on class certification.[CC] A copy of the Plaintiff's Placeholder motion to certify class is available from PacerMonitor.com at https://bit.ly/2ZQhnJt at no extra charge.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CREDIT CONTROL: Fails to Have Counsel Fees Approved in Watson Suit ------------------------------------------------------------------ In the case, SHANEQUA WATSON, Plaintiff, v. CREDIT CONTROL, LLC, Defendant, Case No. 4:19CV137 HEA (E.D. Mo.), Judge Henry Edward Autrey of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied the Defendant's Motion for Attorney's Fees and Costs. The Plaintiff filed the putative class action pursuant to the Fair Debt Collection Practices Act ("FDCPA"). The Plaintiff alleged that she incurred a financial obligation to World Financial Network National. The Defendant began attempting to collect on the debt allegedly owed by the Plaintiff. The Plaintiff asserted that the Defendants violated the FDCPA by sending her a collection letter on Feb. 14, 2018 that was misleading, confusing, deceptive, and unfair as it misrepresented the nature, character, and/or legal status of the alleged debt. In relevant part, the collection letter indicated that the Plaintiff owed an outstanding balance and listed various options to pay off the debt. The collection letter also stated that the law limits how long she can be sued on the debt. Because of the age of her debt which was originated by World Financial Network National Bank, LVNV Funding, LLC will not sue you for it, and LVNV will not report it to any credit reporting agency. The Defendant sought to take the Plaintiff's deposition in the district. The Plaintiff is a resident of Michigan. The counsel for the Plaintiff sought to have the deposition taken in Michigan either in person or remotely because the Plaintiff had childcare issues. The Defendant would not agree. The Plaintiff sought to appear remotely at the ADR conference remotely. The Defendant would not agree. The Plaintiff sought to transfer the case to Michigan. The Missouri Court denied the motion to transfer. The Plaintiff sought reconsideration of the Order denying transfer or for a protective order allowing her to attend the mediation by video conference. Prior to the Plaintiff's Motions, the Defendant had filed a Motion to Dismiss. The Motion was granted on March 6, 2020. The Defendant now moves attorney's fees pursuant to Section 1692k(a)(3), and the Court's inherent authority to grant sanctions. The Defendant asserts that the Plaintiff never intended on being present for trial, and queries why a New Jersey attorney would file a suit for a Michigan resident in the district if not in bad faith or for harassment. Judge Autrey is satisfied that neither the Plaintiff nor her attorney have misrepresented anything to the Court. Likewise, nothing demonstrates bad faith or harassment by the Plaintiff or the counsel. The Judge is completely satisfied that the Plaintiff intended to pursue her case in the district but was faced with complications that precluded her from attending the deposition and mediation in person. At best, the Defendant could have filed a motion to dismiss for failure to prosecute because of the Plaintiff's non-attendance. The Defendant was able to achieve a better result with the motion to dismiss. While the Court recognizes the frustration the Defendant and its counsel may have experienced throughout the course of the proceeding, there is no evidence that either the Plaintiff or her attorney did anything untoward. On the record before it, Judge Autrey concludes that an award of attorney's fees and costs is not justified. Although ultimately the Plaintiff's case was dismissed, there is no evidence that her claim was filed in bad faith for the purpose of harassing the Defendant. The Defendants do not offer any direct evidence of bad faith or purpose to harass by the Plaintiff. Accordingly, Judge Autrey denied the Defendant's Motion for Attorney's Fees and Costs. A full-text copy of the District Court's June 26, 2020 Opinion, Memorandum & Order is available at https://bit.ly/2GPuc0p from Leagle.com. DIGNITY HEALTH: Van Bebber Seeks to Certify Classes & Subclasses ---------------------------------------------------------------- In the class action lawsuit captioned as ROBERT VAN BEBBER, on behalf of himself and all others similarly situated and the general public, v. DIGNITY HEALTH, a California Corporation, dba MERCY MEDICAL CENTER-MERCED, and DOES 1 to 100, inclusive, Case No. e 1:19-cv-00264-DAD-EPG (E.D. Cal.), the Plaintiff will move Court on January 29, 2021 for an order: 1. certifying the following classes and subclassses: Regular Rate/Overtime Class: "all non-exempt hourly employees of the Defendant who worked at the Mercy Medical Center Merced facility at least one day of more than eight hours in a day or more than 40 hours in a week from July 13, 2013 through the date of class certification order and who worked overtime and earned additional pay during the overtime week, and were not paid premium overtime and/or double time at the employee's regular rate of pay"; Rounding Class: "all non-exempt hourly employees of the Defendant who worked at least one day at the Mercy Medical Center Merced facility from July 13, 2013 to the date of the class certification order and who were paid pursuant to the Defendant's rounding policy and practice"; Rounding Clinical Sub-Class: "all non-exempt hourly clinical employees of the Defendant who worked at least one day at the Mercy Medical Center Merced facility from July 13, 2013 to the date of the class certification order and who were paid pursuant to the Defendant's rounding policy and practice"; On Call/Standby Class: "all non-exempt hourly patient care employees of the Defendant who worked at least one day at the Mercy Medical Center Merced facility and worked at least one standby shift from January 14, 2015 to the date of the class certification order"; Second Meal Break Class: all non-exempt hourly employees of the Defendant who worked at least one day at the Mercy Medical Center Merced facility from July 13, 2013 through the date of class certification order who were not provided legally- compliant second meal period breaks when working more than 10 hour shift"; Meal Period Waiver Sub-class: "all hourly non-exempt employees of the Defendant who worked at Mercy Medical Center Merced facility at least one day from July 13, 2013 through date of class certification order, who signed a written meal period waiver"; Meal Break Sub-Class: "all non-exempt hourly clinical employees of the Defendant who worked at least one day at the Mercy Medical Center Merced facility from July 13, 2013 through the date of class certification order who were not provided legally-compliant second meal period breaks"; Meal Period Regular Rate Sub- Class "all California employees who worked for the Defendant from July 13, 2013 through the date of class certification order who were paid a missed meal period payment in a week that the employee also received a non-discretionary bonus or other type of pay along with their regular wages"; Pay Stub Class "all non-exempt hourly employees of the Defendant who worked at least one day at the Mercy Medical Center Merced facility from July 13, 2016 through the date of class certification order who were provided a paystub (a.k.a. wage statement) from Defendant". Rest Break Class: all non-exempt hourly clinical employees of the Defendant who worked at least one day at Mercy Medical Center Merced facility at any time from January 14, 2015 through the date of class certification, who were not provided with 10-minute rest periods for every 4 hours of work or major fraction thereof" Rest Period Regular Rate Sub-Class "all California employees who worked for the Defendant from July 13, 2013 through the date of class certification order who were paid a missed rest period payment in a week that the employee also received a non-discretionary bonus or other type of pay along with their regular wages"; Waiting Time Penalty Class "all California based non-exempt hourly employees of the Defendant who worked for 23 at any time from January 14, 2016 through the date of class certification, who are no longer employed by the Defendant and were not paid all their earned wages"; 2. appointing Robert Van Bebber, Martha Ochoa, and Rachel Clover as class representative; and 3. appointing Joseph Antonelli and Janelle Carney of Law Office of Joseph Antonelli; Robert L. Starr, Manny Starr and Adam M. Rose, of Frontier Law Center as class counsel. Dignity Health is a California-based not-for-profit public-benefit corporation that operates hospitals and ancillary care facilities in three states. A copy of the Notice of Plaintiffs' Motion for Class Certification is available from PacerMonitor.com at https://bit.ly/2RuqoDx at no extra charge.[CC] Attorneys for the Plaintiffs and all others similarly situated and the general public, are: Joseph Antonelli, Esq. Janelle Carney, Esq. LAW OFFICE OF JOSEPH ANTONELLI 14758 Pipeline Ave., Suite E, 2nd Floor Chino Hills, CA 91709 Telephone: (909) 393-0223 Facsimile: (909) 393-0471 E-mail: JAntonelli@antonellilaw.com JCarney@antonellilaw.com - and - Robert L. Starr, Esq. Adam M. Rose, Esq. Theodore R. Tang, Esq. FRONTIER LAW CENTER 23901 Calabasas Rd., No. 2074 Calabasas, CA 91302 Telephone: (818) 914-3433 Facsimile: (818) 914-3433 E-mail: Robert@frontierlawcenter.com adam@frontierlawcenter.com theodore@frontierlawcenter.com EQUIFAX INFORMATION: Rivera Seeks to Certify Case as Class Action ----------------------------------------------------------------- In class action lawsuit captioned as FRANCISCO JOEL RIVERA, on behalf of himself and all others similarly situated, v. EQUIFAX INFORMATION SERVICES LLC, Case No. 1:18-cv-04639-AT-CCB (N.D. Ga.), the Plaintiff asks the Court for an order certifying this action as a class action. Equifax provides data solutions. The Company offers financial, consumer and commercial data, and analytical solutions. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/35H5PM7 at no extra charge.[CC] The Plaintiff is represented by: James A. Francis, Esq. John Soumilas, Esq. Jordan M. Sartell, Esq. FRANCIS MAILMAN SOUMILAS , P.C. 1600 Market Street, Suite 2510 Philadelphia, PA 19103 Telephone: 215-735-8600 E-mail: jfrancis@consumerlawfirm.com jsoumilas@consumerlawfirm.com jsartell@consumerlawfirm.com - and - James M. Feagle, Esq. SKAAR & FEAGLE, LLP 2374 Main Street, Suite B Tucker, GA 30084 Telephone: 404-373-1970 E-mail: jimfeagle@skaarandfeagle.com - and - Robert S. Sola, Esq. ROBERT S. SOLA, P.C. 1500 SW First Avenue, Suite 800 Portland, OR 97201 Telephone: 503-295-6880 E-mail: rssola@msn.com - and - Micah S. Adkins, Esq. THE ADKINS FIRM, P.C. Mooreland Manor 7100 Execute Center Dr., Suite 110 Brentwood, TN 37027 Telephone: 615-370-9659 E-mail: micahadkins@itsyourcreditreport.com ESURANCE INSURANCE: Morrison Appeals Decision to Ninth Circuit -------------------------------------------------------------- Plaintiff Mikeshia Morrison filed an appeal from a court ruling entered in the lawsuit styled Mikeshia Morrison, on behalf of herself and all others similarly situated v. Esurance Insurance Company, a foreign automobile insurance company, Case No. 2:18-cv-01316-TSZ, in the U.S. District Court for the Western District of Washington, Seattle. The appellate case is captioned as Mikeshia Morrison v. Esurance Insurance Company, Case No. 20-80038, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the lawsuit alleges violations over the parties' insurance policy agreement. Esurance is an American insurance company. It sells auto, home, motorcycle, and renters insurance direct to consumers online and by phone. Its primary competitors are other direct personal insurance writers, mainly GEICO and Progressive.[BN] Plaintiff-Petitioner Mikeshia Morrison, on behalf of herself and all others similarly situated, is represented by: Duncan Calvert Turner, Esq. BADGLEY MULLINS TURNER PLLC 19929 Ballinger Way NE, Ste. 200 Seattle, WA 98155 Telephone: (206) 621 6566 E-mail: dturner@badgleymullins.com - and - Randall C Johnson, Jr., Esq. MYERS & COMPANY 1530 Eastlake Avenue East Seattle, WA 98102 Telephone: (206) 890 0616 E-mail: rcjj.law@gmail.com - and - Ryan C. Nute, Esq. LAW OFFICE OF RYAN C. NUTE 19929 Ballinger Way NE, Ste. 200 Shoreline, WA 98155 Telephone: (206) 330 0482 Facsimile: (206) 774 6036 E-mail: ryan@rcnutelaw.com The Defendant-Respondent, Esurance Insurance Company, is represented by: Gavin W. Skok, Esq. FOX ROTHSCHILD LLP 1001 Fourth Avenue, Suite 4500 Seattle, WA 98154 Telephone: 206 624-3600 FAIR ISAAC: Garner Suit Asserts Sherman Act Breach -------------------------------------------------- Garner Properties & Management, on behalf of itself and all others similarly situated, Plaintiff, v. Fair Isaac Corporation, Defendant, Case No. 20-cv-04575, (N.D. Ill., August 4, 2020), actual, treble, and exemplary damages, an award of reasonable attorney's fees and costs and such other and further relief resulting from unjust enrichment, fraud and breach of contract and for violation of the Sherman Act. Garner Properties & Management, Inc. is a real estate brokerage and property management company. It indirectly purchases Fair Isaac's FICO scores through contracts with a third-party credit reporting company which, in turn, purchases credit screening services. According to the complaint, Garner Properties regularly purchases credit reports from credit reporting agencies that collect, standardize and distribute information concerning consumer credit activity. They sell credit reports and credit scores, including Fair Isaac's FICO Scores. The latter has a 90% market share in B2B Credit Score Market by suppressing competition, obstructing innovation and limiting access to credit, asserts the complaint. Fair Isaac's agents broker sales of FICO scores between businesses using distribution agreements with the Credit Bureaus to place restrictions on their ability to develop or distribute their own competitive Credit Scores, prohibit Credit Bureaus from individually negotiating royalty prices for FICO Score access and charge discriminatory royalty prices for FICO Scores, adds the complaint.[BN] Plaintiff is represented by: Charles R. Watkins, Esq. GUIN, STOKES & EVANS, LLC 321 South Plymouth Court, Suite 1250 Chicago, IL 60604 Tel: (312) 878-8391 Fax: (205) 226-2357 Email: charlesw@gseattorneys.com - and - Garrett D. Blanchfield, Esq. Brant D. Penney, Esq. REINHARDT WENDORF & BLANCHFIELD 332 Minnesota Street, Suite W-1050 St. Paul, MN 55101 Tel: (651) 287-2100 Fax: (651) 287-2103 Email: g.blanchfield@rwblawfirm.com b.penney@rwblawfirm.com - and - William G. Caldes, Esq. Jeffrey L. Corrigan, Esq. Jeffery L. Spector, Esq. SPECTOR ROSEMAN & KODROFF, P.C. 2001 Market Street, Suite 3420 Philadelphia, PA 19103 Tel: (215) 496-0300 Fax: (215) 496-6611 Email: BCaldes@srkattorneys.com JCorriganf@srkattorneys.com JSpector@srkattorneys.com - and - Brian Murray, Esq. Lee Albert, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Avenue, Suite 530 New York, NY 10169 Tel: (212) 682-5340 Fax: (212) 884-0988 Email: bmurray@glancylaw.com FANSIDED INC: Carusillo Seeks to Certify Class of Site Experts -------------------------------------------------------------- In class action lawsuit captioned as BRANDON CARUSILLO, individually and on behalf of all persons similarly situated, v. FANSIDED, INC., d/b/a FANSIDED, Case No. 1:20-cv-04766-JPO (S.D.N.Y.), the Plaintiff asks the Court for an order: 1. conditionally certifying a class of: "all persons who are working or have performed work in the United States for FanSided as a Site Expert at any time within the past three years and who were classified as independent contractors (collectively "Site Experts" or the "Fair Labor Standards Act Class"); 2. directing the Defendant to produce to the Plaintiff's counsel the names, last known addresses, telephone numbers, and email addresses of all potential members of the FLSA Class within 10 days of the date of Order; 3. permitting the Plaintiff to issue notice to all potential members of the FLSA Class by first-class mail and electronic mail, informing them of their right to opt in to this case, and that this right is unaffected by post- lawsuit arbitration contracts presented to some members of the FLSA Class; 4. declaring that any post-Complaint arbitration agreements entered into between Defendant or Sportority, Inc. on the one hand, and any potential member of the FLSA Class on the other hand, are invalid as to the claims of any potential member of the FLSA Class against Defendant and any future co-defendant which may be joined; 5. scheduling an opt-in period of 90 days, beginning from the date of Plaintiff's first issuance of notice; 6. allowing him to send reminder notices by first-class mail and electronic mail to all potential members of the FLSA Class who have not yet responded to notice within 45 days of the first issuance of notice; and 7. approving the Plaintiff's proposed form of notice, and Plaintiff's proposed Opt-In Consent Form, to be included in the issuance of notice. FanSided is a network of fandom-focused sports, entertainment and lifestyle sites on the Internet. A copy of the Plaintiff's motion for conditional certification is available from PacerMonitor.com at https://bit.ly/2ZI7fCj at no extra charge.[CC] The Plaintiff is represented by: James E. Goodley, Esq. Marc. L. Gelman, Esq. Ryan P. McCarthy, Esq. JENNINGS SIGMOND, P.C. 1835 Market Street, Suite 2800 Philadelphia, PA 19103 Telephone: (215) 351-0613 E-mail: jgoodley@jslex.com mgelman@jslex.com rmccarthy@jslex.com FIRST FEDERAL: Court Narrows Claims in Kadow Class Suit ------------------------------------------------------- In the case, BENJAMIN KADOW, et al., Plaintiffs, v. FIRST FEDERAL BANK, Successor in Interest to CBC NATIONAL BANK, Defendant, Case No. 8:19-cv-00566-PWG (D. Md.), Judge Paul W. Grimm of the U.S. District Court for the District of Maryland, Southern Division, granted in part and denied in part the Defendant's Motion to Dismiss. The case is a purported class action case brought by Plaintiffs Kadow and Mary and Walsh Jones on behalf of themselves and others similarly situated against the Defendant. The Plaintiffs allege that the Defendant and third-party All Star Title, Inc. engaged in an illegal kickback, price fixing, and refusal to deal scheme that resulted in the Plaintiffs being overcharged on real estate title and settlement service fees. On May 31, 2019, the Plaintiffs filed an Amended Complaint, alleging that CBC National Bank, predecessor to First Federal Bank, engaged in various unlawful schemes with All Star, a title and settlement services company. The alleged scheme has four key components: kickbacks, price fixing agreements, refusals to deal, and use of interstate wires. The basic allegations are that the Participating Lenders and All Star entered into agreements, under which the lender refers title and settlement services to All Star and agrees with All Star on the price of those services. In exchange, All Star pays for marketing materials and postage for the Participating Lender to use. And on loans generated by the All Star marketing payments, the participating lenders refer the customers exclusively to All Star for title and settlement services. The Plaintiffs allegedly accomplished all of them, and lured customers into the scheme, through the use of interstate mail and wires. As to the conduct of CBC National specifically, the Plaintiffs allege that CBC National was a Participating Lender in the schemes described since at least 2011. The schemes were allegedly carried out at CBC National branches in Towson, Maryland; Parkville, Maryland; Alpharetta, Georgia; Cumming, Georgia; Blacklick, Ohio; and Elmhurst, Illinois. Notably, the Plaintiffs also allege that during this period CBC National maintained an "in house" title and settlement services company that was a direct competitor with All Star for title and settlement services on residential mortgage loans brokered or originated by CBC. Based on the foregoing, the Plaintiffs allege three counts: (1) violation of the Real Estate Settlement Procedures Act ("RESPA"); (2) violation of the Sherman Act; and (3) violations of Racketeer Influenced & Corrupt Organizations Act ("RICO"). Pending is the Defendant's motion to dismiss all of the claims against it. Judge Grimm notes that the allegations in the case are familiar ones, as the Plaintiffs' lawyers are counsel to other plaintiffs who have filed suit in the Court against other alleged Participating Lenders based on the same underlying scheme. These cases are in various pretrial stages and in some of these cases the judges of the Court have issued memorandum opinions addressing similar arguments as those raised in the instant case. In Count I of the Amended Complaint, the Plaintiffs allege Defendant violated Section 8(a) of the RESPA. The Defendant moves to dismiss on the basis that the Plaintiffs do not sufficiently allege that (a) the Defendant was not in RESPA's safe harbor provisions; (b) the RESPA claims are time-barred; and (c) the Plaintiffs lack standing for their RESPA claim because they fail to sufficiently allege actual injury. Judge Grimm finds that (i) the Plaintiffs have sufficiently alleged facts that would establish Plaintiffs are outside of RESPA's safe harbor; (ii) the Plaintiffs have adequately alleged equitable tolling based on fraudulent concealment; and (iii) the Plaintiffs adequately alleged injury-in-fact based on the alleged supracompetitive rates they paid for title and settlement services. In Count II of the Amended Complaint, the Plaintiffs allege that Defendant violated the Sherman Act by (1) conspiring and executing an agreement to fix the price of titles and settlement services; and (2) conspiring and executing an agreement to refuse to deal with competitors. The Defendant moves to dismiss for failure to state a Sherman Act claim. Judge Grimm finds that (i) taking the allegations in the complaint as true and granting inferences to the nonmoving party, the Plaintiffs' allegations of price sharing and fixing between direct competitors for title and settlement services is sufficient to survive the motion to dismiss; and (ii) the Amended Complaint is devoid of allegations that CBC National and All Star, as title and settlement service companies, had an agreement to boycott a third party mortgage lender and cut them out of the market. In Count III, the Plaintiffs allege violations of the RICO. The Plaintiffs allege that the Defendant engaged in mail and wire fraud, based on the Defendant's use of interstate mail and wires to further the alleged kickback, price fixing, and refusal to deal schemes. Judge Grimm opines that the allegations fail to state a RICO claim. While the Plaintiffs allege that multiple "Participating Lenders" were involved in the alleged scheme with All Star, there are no allegations that indicate any of the participating lenders were in agreement together. If all of the Participating Lenders are involved, the RICO claim fails as a rimless hub and spoke conspiracy. And if just CBC National and All Star are involved, the RICO claim fails as an ordinary business contract or fraud dispute. Finally, the Defendant argues that the Court lacks general personal jurisdiction over the Defendant, and lacks specific personal jurisdiction over the Defendant as to the claims asserted by the Joneses and by out of state class members pursuant to Bristol-Myers Squibb Co. v. Super. Ct. of Cal. Given that the Plaintiffs' Sherman Act price fixing claims survive, the Judge holds that the Court has personal jurisdiction over the Defendant pursuant to 15 U.S.C. Section 22, which provides that any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business. It is sufficient to confer personal jurisdiction over the Defendant on the Plaintiffs' RESPA claims as well given they arise from a common nucleus of operative fact. Issues regarding class certification are properly deferred until such time as the Court determines whether a class will be certified and what the nature of that class will be. Based on the foregoing, Judge Grimm granted in part and denied in part the Defendant's motion to dismiss. The Defendant's motion to Dismiss the RESPA and Sherman Act price fixing claims is denied, but its motion to dismiss the Sherman Act refusal to deal and RICO claims is granted. A separate Order will be issued. A full-text copy of the Court's Sept. 2, 2020 Memorandum Opinion is available at https://tinyurl.com/y22ut7nb from Leagle.com. FIRST PREMIER: Loses Bid for Partial Summary Judgment in Moss Suit ------------------------------------------------------------------ In the case, DEBORAH MOSS, individually and on behalf all others similarly situated, Plaintiff, v. FIRST PREMIER BANK, Defendant, Case No. 2:13-cv-05438 (ERK) (AYS) (E.D. N.Y.), Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York (i) denied the Defendant's motion for partial summary judgment, and (ii) vacated the stay of discovery. Moss obtained a $350 payday loan from SFS, Inc., an online payday lender, in June 2010. The loan agreement disclosed an annual interest rate of 995.45% and a finance charge of $105. When a payday lender such as SFS agrees to loan a customer money, it relies on banks to serve as middlemen to debit the customer's account. These banks are known as Originating Depository Financial Institutions ("ODFIs"). First Premier Bank served as an ODFI for one of Moss's payday loans with SFS. Defendant First Premier Bank did not loan money to the Plaintiff directly, but instead received payment for its part in the transaction. The Plaintiff claims that by so doing, the Defendant unlawfully facilitated high-interest payday loans that have been outlawed in several states. In her loan application with SFS, the Plaintiff agreed to arbitrate any disputes relating to the loan and, separately, not to bring any claims against SFS or its agents or servicers as a class action. In September 2013, the Plaintiff filed a complaint against the Defendant and two other banks, asserting RICO and state-law claims based on their alleged facilitation of unlawful payday loans. After the Plaintiff amended her complaint, Judge Bianco compelled arbitration. Judge Bianco held that the Plaintiff's claims were sufficiently intertwined with the loan agreement to allow the banks to enforce the agreement's arbitration clause, because it was foreseeable that the banks would act as the lender's 'servicers' or 'agents' as set out in that agreement. Once the parties determined that the contract's designated arbitrator no longer conducted consumer arbitrations, Judge Bianco vacated his order compelling arbitration. He next dismissed the Plaintiff's RICO claims and her claim under New York's General Business Law, but held that she stated a claim for unjust enrichment. Judge Bianco then granted leave to file the operative Third Amended Complaint, in which the Plaintiff asserts a single RICO conspiracy claim against First Premier alleging that it facilitated the collection of unlawful debts. The Defendant now seeks partial summary judgment to prevent her from proceeding on a class-wide basis. The Court granted the Defendant's motion to stay class discovery while the motion was pending. Judge Bianco previously concluded that the Defendant is a "servicer" or "agent" of the lender such that it could enforce the loan agreement's arbitration clause under principles of equitable estoppel, because the Defendant facilitated the transfer of funds from the lender to the Plaintiff. Judge Korman finds that the Plaintiff has not provided a convincing reason to depart from that analysis for purpose of enforcing the class waiver. He argues that SFS' agreement with a third party that neither would be an agent of the other is probative of the relationship between SFS and the Defendant, because that third party acted as an intermediary between the two. That argument lacks merit. Even putting aside the Plaintiff's reliance on a contract between nonparties to shed light on whether the Defendant was an agent of SFS, a contractual clause stating that a person or entity is or is not an agent is, of course, not dispositive of the issue. The Plaintiff's principal argument is that the class action waiver is invalid because it is a provision of an unlawfully usurious contract. The Plaintiff is correct that when a contract violates New York's civil usury statute, that contract is "void ab initio." Thus, under New York law, the class action waiver is invalid along with the rest of the contract. The Defendant's cases are distinguishable, because they do not involve the rare instance in which public policy invalidates the entire contract and supporting document. Finally, Judge Korman disagrees with the Defendant that the class waiver contained in the loan application is enforceable merely because the application did not repeat the interest rate. The First Department has explained that when a loan is void as usurious, the entire loan transaction and the associated note, loan agreement, and collateral agreement are all void and unenforceable. Moreover, the application and note were executed on the same date, both were executed between the same parties, and the Note was attached to the Loan Agreement. In that context, the "two documents represent a single, integrated transaction and must be taken together." After all, the Plaintiff was not in the market for a loan application; she sought the loan itself. Therefore, the usurious interest rate contained in the loan note is inextricable from the application and renders its class action waiver unenforceable, too. In sum, the Plaintiff has persuasively explained why, under New York law, the class action waivers contained in the loan application and note are unenforceable. Judge Korman concludes that the Plaintiff has not yet demonstrated that she is entitled to class certification. He holds only that the Defendant has not shown that it would be proper to dismiss the class allegations based on the contract the Plaintiff signed. Accordingly, he denied the Defendant's motion for partial summary judgment, and vacated the stay of discovery. A full-text copy of the Court's Sept. 2, 2020 Memorandum & Order is available at https://tinyurl.com/yyquro8k from Leagle.com. FIRST SOLAR: Bid for Add'l. Atty.'s Fees in Smilovits Suit Denied ----------------------------------------------------------------- In the case, Mark Smilovits, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn and David Eaglesham, Defendants, Case No. CV-12-00555-PHX DGC (D. Ariz.), Judge David G. Campbell of the U.S. District Court for the District of Arizona denied the Class Counsel's application for additional attorneys' fees. Class Counsel Robbins Geller Rudman & Dowd LLP moves for an award of $1.9 million in attorneys' fees from the $19 million settlement obtained by opt-out Plaintiffs Maverick Fund, L.D.C., Maverick Fund USA, Ltd., Maverick Fund II, Ltd., Maverick Neutral Fund, Ltd., Maverick Neutral Levered Fund, Ltd., Maverick Long Fund, Ltd., and Maverick Long Enhanced Fund, Ltd. The Class Action settled for $350 million, and the Court awarded the Class Counsel $65,905,000 in attorneys' fees (18.83% of the settlement amount) and $5,263,516.69 in expenses, with interest. It found these amounts fair, reasonable, and appropriate. The Court learned from the Class Counsel's fee application, and noted in its order awarding fees, that the precise amount of the recovery -- 18.83% of the settlement -- is dictated by the fee agreement negotiated at the beginning of the case between the Lead Counsel and the Lead Plaintiffs, which are sophisticated entities. The Class Counsel received the maximum amount they were allowed under the fee agreement they negotiated. Judge Campbell concludes that the fees and expenses already paid to the Class Counsel constitute a reasonable percentage of the amount of any damages and prejudgment interest actually paid to the class. The Class Counsel themselves established the reasonableness of the percentage in their agreement with the Lead Plaintiffs. Because the PSLRA provides that total attorneys' fees and expenses awarded by the court to counsel for the plaintiff class will not exceed a reasonable percentage, and the Class Counsel themselves established the reasonableness of their percentage, the Judge, in his discretion, will not award more. The Class Counsel have been well and fully paid for the work they did in the litigation, including any work that may have benefitted Maverick. Accordingly, Judge Campbell denied the Class Counsel's application for additional attorneys' fees. The Money in the "First Solar Securities Class Action Fee and Expense Account" will be remitted pro rata to the opt-out Plaintiffs from whose settlements it was withheld. The motion to seal is granted. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/yxvvjhfn from Leagle.com. FLAGSHIP CREDIT: Ward Appeals E.D. Pennsylvania Order to 3rd Cir. ----------------------------------------------------------------- Plaintiff Robert Ward filed an appeal from a court ruling entered in the lawsuit styled as Robert Ward, on behalf of himself and all others similarly situated v. Flagship Credit Acceptance LLC, Case No. 2-17-cv-02069 (Filed May 5, 2017), in the U.S. District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter, the Plaintiff alleges that the Defendant negligently, knowingly, and/or willfully placed automated and prerecorded calls to his cellular phone in violation of the Telephone Consumer Protection Act. Flagship is an automobile loan financer which specializes in the acquisition, issuance and servicing of prime to subprime automotive retail installment contracts. As part of its acquisition and servicing of automotive retail installment contracts, it uses robo-dialing systems to bombard unsuspecting consumers who have no relationship with it with robocalls and prerecorded messages. The Plaintiff is not a Flagship customer yet has been bombarded with autodialed and pre-corded calls made without his consent and over his objection. The Plaintiff seeks relief for himself and all others similarly situated for Flagship's unlawful behavior. The appellate case is captioned as ROBERT WARD, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. FLAGSHIP CREDIT ACCEPTANCE LLC, Case No. 20-8019, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Petitioner Robert Ward, on behalf of himself and all others similarly situated, is represented by: Sergei Lemberg, Esq. Stephen F. Taylor, Esq. LEMBERG LAW 43 Danbury Road, 3rd Floor Wilton, CT 06897 Telephone: 203 653-2250 Defendant-Respondent Flagship Credit Acceptance LLC is represented by: Gerald E. Arth, Esq. Steven J. Daroci, II, Esq. FOX ROTHSCHILD 2000 Market Street, 20th Floor Philadelphia, PA 19103 Telephone: 215 299-2720 GENERAL MOTORS: Golson Not Barred by Berman Ruling to Pursue Case ----------------------------------------------------------------- Katherine Golson, individually and on behalf of all others similarly-situated Plaintiff, v. General Motors LLC, Defendant, Case No. 20-cv-00632, (W.D. Mo., August 7, 2020), seeks declaratory relief and a determination that she is neither precluded nor otherwise barred from pursuing claims against General Motors LLC stemming from oil consumption issues concerning certain 2013 model year Chevrolet Equinox and GMC Terrain vehicles as a result of the settlement agreement and judgment of a previous class action lawsuit in accordance with the Federal Rules of Civil Procedure. Golson was an absent class member of a previous class action lawsuit (Case No. 2-18-CV-14371, Berman et al v. General Motors LLC) arising out of oil consumption issues affecting certain GM vehicles filed in the United States District Court for the Southern District of Florida. This case arrived at a proposed settlement with General Motors and was submitted to the Florida Court for preliminary approval. However, the parties of the Berman class action failed to send out notices to Golson at the time required by the Florida court's preliminary approval order and due process. Golson contends that the failure to provide procedurally adequate notice means that Plaintiff and the proposed class members is not bound by the settlement agreement or judgment of the Berman class action and that she is free to litigate her claims in subsequent litigation. [BN] Plaintiff is represented by: Thomas J. Golson, Esq. Anthony K. Knipp, Esq. AMK LAW LLC 700 West 74th Street, Suite 200 Kansas City, MO 64112 Tel: (816) 932-5532 Email: aknipp@amk-law.com tgolson@amk-law.com GENERAL MOTORS: Wins Dismissal of Harris Suit Over Engine Defect ---------------------------------------------------------------- In the case, KELLY HARRIS, individually and on behalf of all others similarly situated, Plaintiff, v. GENERAL MOTORS LLC, a Delaware limited liability company, Defendant, Case No. C20-257 TSZ (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, granted GM's Motion to Dismiss Class Action Complaint. Plaintiff Harris owned a used 2012 Chevrolet Silverado, which he received in 2012 from his former employer as part of a separation agreement. Harris' vehicle was equipped with a Generation IV 5.3 liter V8 Vortec 5300 LC9 engine. The vehicle soon began to experience engine problems like fouled spark plugs which caused engine misfiring, and as a result, in 2014, the vehicle needed a spark plug replacement. In 2015, Harris became aware that oil consumption issues were the cause of the spark plug problems with his vehicle. On an unspecified date, he took his vehicle into a Chevrolet dealership to fix the issues with his vehicle's spark plug. He was informed that the vehicle was low on oil, had fouled spark plugs, and that the cause of the fouled spark plugs was excessive oil consumption due to an issue with the piston rings. The dealership also told Harris that he would need to have his engine replaced. Harris alleges that the primary cause of the alleged excessive oil consumption is that the piston rings in the defective engines do not maintain sufficient tension to prevent oil from being consumed in the combustion chamber, which then fouls spark plugs and creates harmful carbon buildup in the pistons and cylinders. He further alleges that GM has been aware of the Oil Consumption Defect but failed to publicly disclose it. In support of that allegation, Harris cites GM's subsequent redesign of the defective engine, public consumer complaints regarding oil consumption problems in the defective engines, and technical service bulletins addressing the oil consumption problem Harris alleges that the Oil Consumption Defect presents an unreasonable safety risk to the driver, other passengers of the Class Vehicles, and the public because the Defect could cause the engine to catch fire and because it could cause an accident or leave drivers and passengers stranded in a variety of unsafe situations. He alleges that he would not have purchased his vehicle or would have paid less for it had the alleged oil consumption defect been disclosed. On behalf of a nationwide class, Harris brings claims for violation of the Magnuson-Moss Warranty Act ("Count 1"). On behalf of a Washington class, Harris brings claims for violations of the Washington Consumer Protection Act ("CPA") ("Count 2"), breach of express warranty ("Count 3"), fraudulent omission ("Count 4"), and unjust enrichment ("Count 5"). Harris seeks injunctive relief, as well as costs, restitution, pre and post-judgment interest, and damages, including punitive damages. Before the Court is GM Motion to Dismiss. For his Express Warranty claim (Count 3), Harris pleads a design defect inherent in the defective engines. He alleges that GM breached its express warranty that it would cover repairs to correct any vehicle defect related to materials or workmanship during the warranty period. Judge Zilly concludes that GM's limited warranty does not cover the alleged design defect. Harris also does not allege that his issues with the defective engine occurred during the limited warranty period. He fails to respond to this deficiency in his Opposition, and therefore appears to have waived it. His express warranty claim is therefore dismissed with prejudice. Harris bases his MMWA claim on the same theory as his express warranty claim. Because Harris does not plead a viable express warranty claim, his MMWA claim also fails, rules Judge Zilly. Harris' Magnuson-Moss Warranty Act claim is therefore dismissed with prejudice. GM contends that Harris' fraudulent concealment claim is preempted by the WPLA. In response, Harris contends that his fraudulent concealment claim is not preempted by the WPLA because it is based on a fraud theory and because he alleges economic damages based on contract. Judge Zilly dismissed Harris' fraudulent concealment claim without prejudice to replead as a WPLA claim. He finds that Harris' claim is essentially that GM knew about the Oil Consumption Defect, concealed that information from Harris and other putative class members, and that they suffered damages as a result. WPLA provides the exclusive remedy for such a claim. To assert a CPA claim, Harris must allege deceptive advertising, causation, and injury with specificity. He alleges that he will suffer future injury because GM never disclosed the Oil Consumption Defect and continues to actively conceal it. Harris is aware of the Oil Consumption Defect and its primary cause. Any future concealment of the Defect by GM cannot cause further injury to Harris. Harris therefore has not alleged a future injury. His CPA claim is dismissed without prejudice. According to Judge Zilly, a party seeking to recover under a theory of unjust enrichment must show that the plaintiff conferred a benefit upon the defendant. Harris does not dispute that he neither purchased nor leased his vehicle, and he does not otherwise allege that he conferred a benefit upon GM. Instead, he responds by stating that courts in Washington have no such requirement. Harris is mistaken. Washington law requires a showing of a benefit conferred upon the defendant by the plaintiff. Harris' Unjust Enrichment Claim is dismissed with prejudice. Finally, having dismissed Harris' underlying claims, GM's Motion to Strike Class Allegations is therefore stricken as moot, rules the Court. For the foregoing reasons, Judge Zilly granted the Defendant's Motion to Dismiss as follows: Count 1 (Magnuson-Moss Warranty Act claim), Count 2 (injunctive relief portion of CPA claim only), Count 3 (breach of express warranty claim), and Count 5 (unjust enrichment claim) are dismissed with prejudice. Count 2 (CPA claim, except the injunctive relief portion) and Count 4 (fraudulent omission claim) are dismissed without prejudice. The Plaintiff will file any amended complaint within 90 days from the date of the Order. The Clerk is directed to send a copy of the Order to all the counsel of record. A full-text copy of the Court's Sept. 2, 2020 Order is available at https://tinyurl.com/y53kwj7z from Leagle.com. GOLDEN PEANUT: Class Status Sought in Farmers Antitrust Action -------------------------------------------------------------- In the lawsuit RE PEANUT FARMERS ANTITRUST LITIGATION, Case No. 2:19-cv-00463-RAJ-LRL (E.D. Va.), the Plaintiffs D&M Farms, Mark Hasty, Dustin Land, Lonnie Gilbert, Daniel Howell and Rocky Creek Farms move the Court for an order: 1. certifying a class of: "all persons or entities in the United States who sold raw, harvested runner peanuts to any of the Defendants, 1 their subsidiaries or joint-ventures, from January 1, 2014 through December 31, 2019." Specifically excluded from this Class are the Defendants; the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded from this Class are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, any juror assigned to this action, and any co-conspirator identified in this action.; 2. appointing themselves as representatives of the Class; and 3. appointing Brian D. Clark of Lockridge Grindal Nauen PLLP and Kimberly A. Justice of Freed Kanner London & Millen LLC as Co-Lead Counsel for the Class and Wyatt B. Durrette, Jr. Of Durrette, Arkema, Gerson & Gill PC as Liaison Counsel for the Class. On Sept. 5, 2019, the antitrust team at Lockridge Grindal Nauen filed an antitrust lawsuit on behalf of peanut farmers against Golden Peanut and Birdsong. The complaint alleges that Birdsong and Golden Peanut coordinated with one another in violation of antitrust laws to underpay farmers for runner peanuts, the primary type of commercial peanut raised. As a result, peanut farmers have suffered low payments for their crops. A copy of the Plaintiffs' motion for class certification is available from PacerMonitor.com at https://bit.ly/32xu7Gs at no extra charge.[CC] The Plaintiffs are represented by: Wyatt B. Durrette, Jr., Esq. Kevin J. Funk, Esq. DURRETTE, ARKEMA, GERSON & GILL PC 1111 East Main Street, 16th Floor Richmond, VA 23219 Telephone: (804) 775-6900 Facsimile: (804) 775-6911 E-maiL: wdurrette@dagglaw.com kfunk@dagglaw.com - and - W. Joseph Bruckner, Esq. Brian D. Clark, Esq. Simeon A. Morbey, Esq. Stephanie A. Chen, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: wjbruckner@locklaw.com bdclark@locklaw.com samorbey@locklaw.com sachen@locklaw.com - and - Kimberly A. Justice, Esq. Jonathan M. Jagher, Esq. FREED KANNER LONDON & MILLEN, LLC 923 Fayette Street Conshohocken, PA 19428 Telephone: (610) 234-6487 Facsimile: (224) 632-4521 E-mail: kjustice@fklmlaw.com jjagher@fklmlaw.com - and - Douglas A. Millen, Esq. Michael E. Moskovitz, Esq. Robert J. Wozniak, Esq. Brian M. Hogan, Esq. FREED KANNER LONDON & MILLEN, LLC 2201 Waukegan Road, No. 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Facsimile: (224) 632-4521 E-mail: dmillen@fklmlaw.com mmoskovitz@fklmlaw.com rwozniak@fklmlaw.com bhogan@fklmlaw.com - and - Jeffrey J. Corrigan, Esq. SPECTOR ROSEMAN & KODROFF, P.C. Two Commerce Square 2001 Market Street, Suite 3420 Philadelphia, PA 19103 Telephone: (215) 496-0300 Facsimile: (215) 496-6611 E-mail: jcorrigan@srkattorneys.com GULFPORT ENTERGY: Joint Bid for Conditional Class Status Granted ---------------------------------------------------------------- In the class action lawsuit captioned as BRYON LEFORT, individually and on behalf of all other members of the general public similarly situated, v. GULFPORT ENTERGY CORP., Case No. 2:20-cv-01792-SDM-KAJ (S.D. Ohio), the Hon. Judge Sarah D. Morrison entered an order: 1. granting the Parties' Joint Motion for Conditional Class Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs; 2. mooting the Plaintiffs' Motion for Conditional Certification; and 3. approving the Notice of Collective Action Lawsuit and Consent to Join. Gulfport is an independent oil natural gas exploration and production company. The company focuses on the exploration, exploitation, acquisition and production of natural gas, natural gas liquids, and crude oil in the United States.[CC] HANKOOK TIRE: Dionysius Suit Seeks FLSA Collective Status --------------------------------------------------------- In class action lawsuit captioned as MATTHEW DIONYSIUS, Individually, on behalf of himself and on behalf of others similarly situated, v. HANKOOK TIRE MANUFACTURING TENNESSEE, LP, a Tennessee Corporation, Case No. 3:20-cv-00091 (M.D. Tenn.), the Plaintiff asks the Court for an order: 1. authorizing his claims to proceed as a collective action for overtime compensation violations under the Fair Labor Standards Act; 2. directing the Defendant to immediately provide the Plaintiff's counsel a computer-readable file containing the names (last names first), last known physical addresses, last known email addresses, social security numbers, dates of employment and last known telephone numbers of all putative class members during the last three years; 3. providing that Court-approved notice be posted at the Defendant's Clarksville, Tennessee facility, enclosed with all of Defendant's currently employed putative class members' next regularly-scheduled paycheck/stub, and be mailed to putative class members so that they can assert their claims on a timely basis; 4. tolling the statute of limitations for the putative class as of the date this Motion is fully briefed; 5. authorizing a reminder postcard be issued mid-way through the requested 90-day notice period; and 6. requiring that the opt-in Plaintiff's Consent to Join Forms be deemed "filed" on the date they are postmarked. The Defendant is a tire manufacturer. A copy of the Plaintiff's motion for conditional certification is available from PacerMonitor.com at https://bit.ly/2FqB8QZ at no extra charge.[CC] The Plaintiff is represented by: Robert E. Turner, IV, Esq. Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Nathaniel A. Bishop, Esq. JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com nbishop@jsyc.com - and - Nina Parsley, Esq. PONCE LAW 400 Professional Park Drive Goodlettsville, TN 37072 E-mail: nina@poncelaw.com HAWAII: Final Judgment in Kalima Class Suit Partly Affirmed ----------------------------------------------------------- In the case, LEONA KALIMA; DIANE BONER; RAYNETTE NALANI AH CHONG, special administrator of the estate of JOSEPH CHING, deceased; CAROLINE BRIGHT; DONNA KUEHU; IRENE CORDEIRO-VIERRA; and JAMES AKIONA, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. STATE OF HAWAII; STATE OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS; STATE OF HAWAI'I HAWAIIAN HOME LANDS TRUST INDIVIDUAL CLAIMS REVIEW PANEL; DAVID Y. IGE, in his official capacity as Governor of the State of Hawai'i, Defendants-Appellants-Cross-Appellees, Case No. SCAP-18-0000068 (Haw.), the Supreme Court of Hawaii affirmed in part and vacated in part the circuit court's Jan. 9, 2018 final judgment, and remanded for further proceedings consistent with its Opinion. In 1990, Senator Michael Crozier observed that "both the length of the list and the length of the wait make the vast majority of Native Hawaiian people despair of ever receiving an award of land." In the 30 years since Senator Crozier's statement, the State of Hawaii has done little to address the ever-lengthening waitlist for lease awards of Hawaiian home lands. In light of the Circuit Court of the First Circuit's 2009 ruling that the State breached its duties as trustee of the Hawaiian Home Lands Trust, the Supreme Court of Hawaii is now tasked with reviewing the circuit court's decision granting and apportioning monetary damages to those Native Hawaiian beneficiaries who, as a result of the State's mismanagement of the Trust, have languished on the waitlist -- some for decades. Constrained by the provisions of Hawaii Revised Statutes ("HRS") Chapter 674 (Supp. 1991), entitled "Individual Claims Resolution Under the Hawaiian Home Lands Trust," the circuit court adopted a Fair Market Rental Value model ("FMRV model") by which it can estimate the actual loss each individual beneficiary incurred. The interests of justice and the extent of the State's wrongful conduct support a liberal interpretation of HRS Chapter 674 and a generous construal of the circuit court's damages model. The Supreme Court of Hawaii hold that the FMRV model is an adequate method for approximating actual damages. The Plaintiffs-Appellees Cross-Appellants are a group of Native Hawaiian Trust beneficiaries who claim that they incurred damages while on the waitlist to receive homestead land as a result of breaches of trust duties by Defendants-Appellants Cross-Appellees the State of Hawaii, the State of Hawaii Department of Hawaiian Home Lands ("DHHL"), the State of Hawaii Home Lands Trust Individual Claims Review Panel, and Gov. David Y. Ige. Both the Plaintiffs and the State appealed the circuit court's Jan. 9, 2018 final judgment. On Jan. 9, 2018, the circuit court entered an HRCP Rule 54(b) final judgment as to the waitlist subclass's claims. It ordered (i) that all claims of the Waiting List Subclass have been decided by the Court in favor of the Waiting List Subclass Plaintiffs; and (ii) that all claims in the Supplemental Complaint For Waiting List Damages, Filed Dec. 19, 2013, regarding the amount of damages, if any, each Waiting List Subclass Plaintiff representative or member is entitled to recover under the orders establishing the model, rules, and claims administration process previously entered for that purpose, have been decided by the Court. In accordance with HRCP Rules 54(b) and 58, the circuit court expressly found that there is no just reason for delay and expressly directed entry of judgment in favor of the Waiting List Damages Subclass. All claims of the Waiting List Damages Subclass have been resolved and only ministerial functions are necessary to administer those claims. The State filed a notice of appeal on Feb. 6, 2018. The Plaintiffs filed a notice of cross-appeal on Feb. 19, 2018. The Plaintiffs filed an application for transfer to the Supreme Court of Hawaii on Dec. 31, 2018, to which the State filed a response of no opposition. The Supreme Court granted the Plaintiffs' application for transfer on Feb. 5, 2019. In resolving the case, the Supreme Court bear foremost in mind its admonition in Kalima I that HRS Chapter 674, a remedial statute, should be liberally construed to suppress the perceived evil and advance the enacted remedy and should not be narrowly interpreted to impede rather than advance the remedies provided by the statute. That is to say -- it is in the interests of justice to construe HRS Chapter 674 in a manner that permits the advancement of the case to the final stages of its resolution and to thereby afford a fair remedy to the beneficiaries who have for decades been deprived of the opportunity to lease their native land from the State. The central issue in the case is whether the circuit court's FMRV damages model calculates individual damages in a method permitted by HRS Chapter 674. The Plaintiffs, who proposed a similar FMRV model in their initial damages model proposal, assert that the FMRV model does not contravene Chapter 674 because, they argue, "out-of-pocket loss," as contemplated by HRS Section 674-2, means the value of the lost benefit, i.e., the value of a homestead. The State maintains that the FMRV model contravenes Chapter 674's "actual damages" requirement, which, the State argues, limits damages to the amount that subclass members actually spent to rent alternative land during the breach-caused delay period. The Hawaii Supreme Court holds that while the FMRV model may not measure actual damages with exactitude, exactitude is not required under the circumstances. The circuit court as factfinder found that the FMRV model was a reasonable method to determine actual damages as defined under HRS Section 674-2, and the Hawaii Supreme Court finds no basis to interfere with that determination. The Hawaii Supreme Court therefore finds no error with the general method adopted by the circuit court. The Hawaii Supreme Court holds that the circuit court erred with respect to specific findings within the Order Re FMRV Damages Model. The Hawaii Supreme Court therefore affirms in part the circuit court's Order Re FMRV Damages Model. Next, the Hawaii Supreme Court finds that the court's definition of prejudgment interest, viewed together with the United States Supreme Court's observation about the relatedness of inflation and prejudgment interests, indicate that the adjustment of the Plaintiffs' damages to account for inflation in the case would impermissibly constitute prejudgment interest. Moreover, prejudgment interest does not constitute actual damages and is therefore precluded by HRS Chapter 674. Plainly, awarding beneficiaries more than what they actually paid toward alternative lands would result in awards that exceed beneficiaries' actual damages. Therefore, adjusting beneficiaries' damages for inflation would also run afoul of HRS Chapter 674. The Hawaii Supreme Court holds that the circuit court correctly ruled that damages may not be adjusted to present value, as doing so would constitute the award of prejudgment interest in violation of HRS Section 661-8 and would contravene the express actual damages limitation of HRS Chapter 674. The circuit court adopted the six-year rule based on Henderson's "mere speculation or guess." In addition, the homestead development process timeline appears to be unrelated to the timing of when claimants filed their applications. In light of the foregoing, the circuit court erred in adopting the six-year rule. The Hawaii Supreme Court vacates the Order Re FMRV Model to the extent that it adopted the six-year rule. Under the basic principles of trust law, a successor trustee is liable to a beneficiary for breach of trust if the trustee (a) knows or should know of a situation constituting a breach of trust committed by the trustee's predecessor and improperly permits it to continue; (b) neglects to take proper steps to compel the predecessor to deliver the trust property to the trustee; or (c) neglects to take proper steps to redress a breach of trust committed by the predecessor. Restatement (Second) of Trusts Section 223. The State knew of the federal government's misuse of trust lands and improperly permitted it to continue. In addition, the State neglected to take proper steps to redress the breach committed by the federal government as original trustee. The State is clearly, then, liable to the beneficiaries for breach of trust. As a result, the circuit court correctly found that the State breached its trust duties by failing to take action to restore recovered land to the Trust upon Statehood in 1959. Finally, the Hawaii Supreme Court holds that the circuit court did not err in establishing the subclass list. The class has been certified, and the class list is established. Each class member's individual entitlement to damages will be determined, and no subclass member who is "categorically not entitled to relief" will obtain damages or a favorable judgment. The Hawaii Supreme Court resolved the foregoing issues as follows. The Hawaii Supreme Court (1) affirmed the Feb. 14, 2013 Order Re FMRV Damages Model in accordance with the preceding analysis; (2) affirmed the Oct. 7, 2014 Trial Order adopting the best fit curve and denying increases for CPI or present value adjustments; (3) affirm the Sept. 22, 2016 order selecting the Ma'ili lot as the sample residential lot to be used statewide; (4) vacate the Jan. 24, 2012 order establishing the "six-year rule;" (5) affirmed the Nov. 3, 2009 liability order finding that the State breached its trust duties by failing to correct ongoing dispossession of trust lands; and (6) affirmed the June 6, 2007 order certifying the waitlist subclass. The Hawaii Supreme Court further held that the State bears the burden of proving that a beneficiary failed to mitigate damages. A full-text copy of the Supreme Court of Hawaii's June 30, 2020 Opinion is available at https://bit.ly/3745gwD from Leagle.com. Clyde J. Wadsworth, Kimberly T. Guidry, Robert T. Nakatsuji, and Kaliko`onalani D. Fernandes, for Defendants-Appellants/Cross-Appellees. Carl M. Varady and Thomas R. Grande for Plaintiffs-Appellees/Cross-Appellants. HNN ASSOCIATES: Court Grants Class Cert. Bid in Jammeh ------------------------------------------------------ In the case, ADAMA JAMMEH, et al., Plaintiffs, v. HNN ASSOCIATES, LLC, et al., Defendants, Case No. C19-0620JLR (W.D. Wash.), Judge James L. Robart of the U.S. District Court for the Western District of Washington, Seattle, granted Plaintiffs Jammeh and Oumie Sallah's motion for class certification under Federal Rule of Civil Procedure 23, based on the modified class definitions. HNN is the property manager for a low-income housing complex owned by Defendant Gateway, LLC. It currently manages just over 6,000 apartment homes in 28 apartment communities. Twenty-four of those apartment communities accept only tenants qualified for the Low-Income Housing Tax Credit program. HNN stores information pertaining to the complexes it manages and the tenants who live in those complexes in a web-based system called Yardi, a primary technology tool for HNN and integral to its business operations. HNN has a single Community Operations Manual that is available electronically to all employees, containing HNN's policies on subjects such as move-in and move-out. All new tenants are required to pay a security deposit of either $400 or $700 based on predetermined criteria. The Plaintiffs signed a standard form lease that HNN used throughout its communities until February 2019. In February 2019, HNN hired a different company to do tenant screening and changed its lease forms. The "Move-In/Move-Out Inspection Form" that HNN completed for the Plaintiffs' apartment unit is a form HNN used at its apartment communities until at least February 2019. HNN attached a blank copy of the form to the Plaintiffs' lease. In February 2019, HNN replaced the form with a four-page checklist that calls for the input of more detail concerning the condition of the unit at both move-in and move-out. The Manual contains a policy requiring completion of a Move-In/Move-Out Inspection Form when a tenant moves in. CDR is a debt collection company with primary collection portfolios consisting of property management debt. From February 2017 to February 2019, HNN contracted exclusively with CDR for collections. The Plaintiffs are sisters who emigrated from Gambia. They applied for an apartment at the Gateway Apartments. On Sept. 6, 2017, they signed tax credit documentation acknowledging that HNN could evict them for good cause, including for violations of the lease. Ms. Jammeh did not acknowledge a spouse anywhere on her paperwork. HNN accepted the Plaintiffs' application, and the Plaintiffs signed a lease and paid a $700 deposit. They moved into their Gateway apartment on Sept. 28, 2017. On Jan. 22, 2018, Ms. Jammeh sent an email to the Gateway Apartments office asking an HNN employee to print a letter to Gambian authorities regarding her request for a divorce from Sarjo Sonko. In 2005, she was married to Mr. Sonko in absentia under sharia law in Gambia. Mr. Sonko claims at least one other wife. Numerous people informed Ms. Jammeh that her proxy marriage under sharia law to Mr. Sonko was not legal in the United States. On Jan. 24, 2018, Katie Long, an HNN employee and the Gateway Community Manager, issued the Plaintiffs a "3-Day Notice to Quit" the premises. The notice states that the Plaintiffs must surrender possession of the apartment within three days because Ms. Jammeh failed to disclose that she had a spouse in paperwork she filled out when she applied to rent a Gateway apartment. The notice also states that if the Plaintiffs failed to surrender the premises, HNN would institute judicial proceedings to obtain their eviction. On the day she was served with the notice, Ms. Jammeh went to the Gateway Apartments office to explain to Ms. Long that she was not legally married in the United States. On Jan. 29, 2018, Snohomish County Legal Services sent Ms. Long a letter explaining the same thing. HNN did not rescind the notice. On Feb. 5 and 6, 2018, HNN conducted an inspection of the Plaintiffs' apartment and noted damage on Move-In/Move-Out Inspection Form, along with photographs. HNN maintains that it mailed the Plaintiffs a letter, dated Feb. 27, 2018, stating that they owed $14,919.11 to HNN. It sent the letter to them 22 days, rather than the required 21 days, after the Plaintiffs' moved out because Ms. Long suffered a broken arm and could not work for two weeks. On March 9, 2018, HNN sent a revised statement demanding payment of $3,286.58. On March 22, 2018, CDR sent the Plaintiffs a collection letter demanding $3,286.58 in principal and an additional $48.62 in interest. It attempted to collect these amounts by making numerous calls to the Plaintiffs. Ultimately, the Plaintiffs paid CDR $2,629.26. CDR maintains that the amount the Plaintiffs paid did not represent a charge for any interest. The Plaintiffs seek class certification for their first, second, third, and fourth causes of action. Theur first cause of action is against CDR for allegedly attempting to collect interest not legally due in violation of the Washington Collection Agency Act ("CAA"), which is a per se violation of the Washington Consumer Protection Act ("CPA"). Their second cause of action is against CDR and CDR's President William Wojdak for collecting or attempting to collect interest not legally due in violation of the Fair Debt Collection Practices Act ("FDCPA"). The third cause of action is against HNN for their allegedly unfair acts under the CPA. In their fourth cause of action, the Plaintiffs allege two violations of Washington's Residential Landlord Tenant Act ("RLTA"), against HNN, for which the Plaintiffs seek class certification. First, the Plaintiffs allege that HNN violated the RLTA by collecting security deposits without providing a written checklist or statement specifically describing the condition and cleanliness of or existing damages to the premises and furnishings, including, but not limited to, walls, floors, countertops, carpets, drapes, furniture, and appliances. They allege that because HNN collected their $700 deposit without providing an adequate checklist, HNN is liable to them for the deposit. Second, they allege that HNN violated the RLTA by failing to send out move out statements explaining the basis for retaining their security deposit within 21 days after they moved out. In their second amended complaint, the Plaintiffs sought to certify the following classes: a. HNN Class: All former tenants of an HNN managed property in Washington against whom HNN (1) collected a deposit or security without providing a move-in checklist that complies with the requirements of RCW 59.18.260; and/or (2) retained all or part of a security deposit without providing a statement of its basis for retaining the deposit in the time and manner required by RCW 59.18.280; and/or (3) assessed additional fees based on a Move-Out inspection without allowing the tenant the opportunity to be present at the inspection or to dispute HNN's inspection findings. b. CDR Class: All members of the HNN Class from whom CDR collected, or attempted to collect the move-out charges referred by HNN and/or charged interest on claimed amounts that were calculated from a time before the amounts had become liquidated. However, in their motion for class certification, the Plaintiffs modify their requests for class certification as follows: a. HNN Classes: Former tenants of an HNN managed property in Washington who moved in before Feb. 1, 2019 and: (1) who moved out on or after March 7, 2017, and from whom HNN collected a deposit or security without providing a move-in checklist that stated the condition of the walls, floors, countertops, carpets, and appliances in the unit (the Move-In Form Class); or (2) who moved out on or after March 7, 2017, and to whom HNN mailed a statement of HNN's basis for retaining a deposit more than 21-days after the tenant moved out of an HNN-managed unit (the Late Statement Class); or (3) who moved into an HNN managed property after July 31, 2016, and whose deposit was forfeited by HNN (the Forfeiture Class). b. CDR Class: All former tenants of an HNN managed property in Washington whose accounts were placed with CDR between Feb. 13, 2017 and Jan. 31, 2019, and to whom CDR sent at least one written collection demand. Judge Robart concludes that the Plaintiffs have demonstrated all the elements required under Rule 23(a) and Rule 23(b)(3) for class certification of the HNN Classes and the CDR Class, as modified. Accordingly, he granted the Plaintiffs' motion for class certification subject to the class description modifications. The certified classes are: a. HNN Classes: Former tenants of an HNN managed property in Washington who moved in before Feb. 1, 2019 and: (1) who moved out on or after July 12, 2017, and from whom HNN collected a deposit or security without providing a move-in checklist that stated the condition of the walls, floors, countertops, carpets, and appliances in the unit (the Move-In Form Class); or (2) who moved out on or after July 12, 2017, and to whom HNN mailed a statement of HNN's basis for retaining a deposit more than 21-days after the tenant moved out of an HNN-managed unit (the Late Statement Class); or (3) who moved in to an HNN managed property after July 31, 2016, and whose deposit was forfeited by HNN (the Forfeiture Class). b. CDR Class: All former tenants of an HNN managed property in Washington whose accounts HNN placed with CDR between Feb. 13, 2017 and Jan. 31, 2019, and to whom CDR sent at least one written collection demand. The certified claims are the First, Second, Third, and Fourth claims for relief set forth in the Plaintiffs' Second Amended Complaint. Judge Robart appointed (i) Plaintiffs Jammeh and Sallah as the representatives of the Classes, and (ii) Terrell Marshall Law Group, The Law Office of Paul Arons, and Leonard Law as the class counsel. He ordered the parties to provide briefing on the merits of creating an FDCPA subclass, how such a subclass should be described, whether the subclass independently meets the requirements of Rule 23, whether Plaintiffs must designate an additional named Plaintiff for such a subclass, and any other issues that the parties believe merit the Court's attention concerning such a subclass. Judge Robart ordered the Plaintiffs to file an opening memorandum concerning a possible FDCPA subclass no later than Sept. 23, 2020, and to limit the opening memorandum to no more than 15 pages. The Defendants were also ordered file a responsive memorandum no later than Oct. 7, 2020, and will limit the responsive memorandum to no more than 15 pages. The Plaintiffs were ordered file a reply memorandum, if any, no later than Oct. 14, 2020, and to limit it to no more than seven pages. Judge Robart ordered the parties to confer regarding the form of class notice and the Plaintiffs to submit their proposed notice plan to the Court within 20 days of its determination concerning an FDCPA subclass and to inform the Court whether the Defendants agree to the Plaintiffs' proposed plan. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/yab5qobh from Leagle.com. HNN ASSOCIATES: Court Grants Motion for Class Certification ----------------------------------------------------------- In the class action lawsuit captioned as ADAMA JAMMEH, et al., v. HNN ASSOCIATES, LLC, et al., Case No. 2:19-cv-00620-JLR (W.D. Wash.), the Hon. Judge James L. Robart entered an order: 1. certifying the following classes: HNN CLASSES: "former tenants of an HNN managed property in Washington who moved in before February 1, 2019 and: (a) who moved out on or after July 12, 2017, and from whom HNN collected a deposit or security without providing a move-in checklist that stated the condition of the walls, floors, countertops, carpets, and appliances in the unit (the "Move-In Form" Class); or (b) who moved out on or after July 12, 2017, and to whom HNN mailed a statement of HNN's basis for retaining a deposit more than 21-days after the tenant moved out of an HNN-managed unit (the "Late Statement" Class); or (c) who moved in to an HNN managed property after July 31, 2016, and whose deposit was forfeited by HNN (the "Forfeiture Class")." CDR CLASS: "all former tenants of an HNN managed property in Washington whose accounts HNN placed with CDR between February 13, 2017, and January 31, 2019, and to whom CDR sent at least one written collection demand". 2. appointing the Plaintiffs Adama Jammeh and Oumie Sallah as representatives of the Classes; 3. appointing the Terrell Marshall Law Group, The Law Office of Paul Arons, and Leonard Law as class counsel; 4. directing the parties to provide briefing on the merits of creating an FDCPA subclass, how such a subclass should be described, whether the subclass independently meets the requirements of Rule 23, whether Plaintiffs must designate an additional named plaintiff for such a subclass, and any other issues that the parties believe merit the court's attention concerning such a subclass. 5. directing the Plaintiffs to file an opening memorandum concerning a possible FDCPA subclass no later than September 23, 2020, and shall limit the opening memorandum to no more than 15 pages; 6. directing the Defendants to file a responsive memorandum no later than October 7, 2020, and shall limit the responsive memorandum to no more than 15 pages; 7. directing the Plaintiffs to file a reply memorandum, if any, no later than October 14, 2020, and shall limit it to no more than 7 pages; 8. directing the parties to confer regarding the form of class notice and Plaintiffs shall submit their proposed notice plan to the court within 20 days of the court's determination concerning an FDCPA subclass and shall inform the court whether Defendants agree to the Plaintiffs' proposed plan. The Court said, "HNN does not dispute that the proposed HNN Classes satisfy the Rule 23(a)(1) numerosity requirement, the Rule 23(a)(2) commonality requirement, or the Rule 23(a)(4) adequacy requirement concerning class counsel. The court has examined the Plaintiffs' proffer concerning these prerequisites and agrees that the Plaintiffs meet their burden of demonstrating these Rule 23(a) prerequisites for the HNN Classes. CDR does not dispute that the Plaintiffs satisfy the Rule 23(a)(1) numerosity requirement; nor does CDR dispute the Rule 23(a)(4) adequacy of Plaintiffs' counsel. The court has examined Plaintiffs' proffer concerning these prerequisites and agrees that they have met their burden concerning these prerequisites for purposes of certifying the CDR class." The Plaintiffs allege that HNN violated the RLTA by collecting security deposits without providing "a written checklist or statement specifically describing the condition and cleanliness of or existing damages to the premises and furnishings, including walls, floors, countertops, carpets, drapes, furniture, and appliances." The Plaintiffs allege that because HNN collected Plaintiffs' $700.00 deposit without providing an adequate checklist, HNN is liable to Plaintiffs for the deposit. The Plaintiffs also asserts claims against CDR for allegedly attempting to collect interest not legally due in violation of the Washington Collection Agency Act, which is a per se violation of the Washington Consumer Protection Act. HNN is the property manager for a low-income housing complex owned by Defendant Gateway, LLC. HNN currently manages "just over 6,000 apartment homes" in 28 apartment communities. CDR is a debt collection company with primary collection portfolios consisting of property management debt. A copy of the Court's Order granting the Plaintiffs' motion for class certification is available from PacerMonitor.com at https://bit.ly/3kk4Tl9 at no extra charge.[CC] HUUUGE INC: Jan. 7 Final Approval Hearing in Wilson Class Suit Set ------------------------------------------------------------------ In the case, SEAN WILSON, individually and on behalf of all others similarly situated, Plaintiff, v. HUUUGE, INC., Defendant, Case No. C18-5276RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, will hold a Final Approval Hearing on Jan. 7, 2021, at 1:30 p.m., either in person at Courtroom 15106, United States Courthouse 700 Stewart Street, Seattle, WA 98101, or by telephone or videoconference. Judge Lasnik may adjourn the Final Approval Hearing and may approve the proposed Settlement in the case with such modifications as the Parties may agree to, if appropriate, without further notice to the Settlement Class. He may decide to hold the Final Approval Hearing by telephone or video conference without further mailed notice to the Settlement Class. If he orders that the Final Approval Hearing be conducted telephonically or by video conference, that decision will be posted on the settlement website www.bigfishgamessettlement.com. Any Settlement Class Member who wishes to appear at the Final Approval Hearing should consult the Court's docket and/or the settlement website for any change in date, time, or format of the hearing. Any Settlement Class Member who or which does not request exclusion from the Settlement Class may appear at and participate in the Final Approval Hearing by (a) submitting written objections to the Settlement Agreement, the proposed plan of allocation, and/or counsel's fee petition as set forth in the Agreement and (b) filing a notice of appearance with the Clerk of Court no later than Dec. 10, 2020, or as the Court may otherwise direct. Any Settlement Class Member who does not enter an appearance in the matter will be represented at the Final Approval Hearing by the Class Counsel. The Class Counsel will file and serve the opening papers in support of the proposed Settlement, class certification, the proposed plan of allocation, and the Class Counsel's motion for attorney's fees and expenses no later than Nov. 9, 2020. Reply papers, if any, will be filed and served no later than seven calendar days prior to the Settlement Hearing. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/y6jece7w from Leagle.com. ICHIRO SUSHI: Ji Li Appeals S.D.N.Y. Judgment to Second Circuit --------------------------------------------------------------- Plaintiffs and Counter-Defendants Ji Li, et al., filed an appeal from the District Court's Judgment, dated May 4, 2020, entered in the lawsuit styled Ji Li v. Ichiro Sushi, Inc., Case No. 14-cv-10242, in the U.S. District Court for the Southern District of New York. The appellate case is captioned as Ji Li, Bin Zhang, De Ping Zhao, Jianhui Wu, and Kai Zhao, on behalf of themselves and others similarly situated, v. Ichiro Asian Fusion, Inc., DBA Ichiro Fusion; Jian Ping Chen; New Ichiro Sushi Inc., DBA Ichiro Sushi Restaurant; Hui Chen; Juhang Wang, AKA James Wang; Ichiro Sushi, Inc., DBA Ichiro Sushi Restaurant; Hiu Chen; Vincent Chan; Winson Chan; Joe Chow; Jame Wang; John Doe; Jane Doe; Ichiro Restaurant, Inc; Jin Li; and Roberto Hidalgo, Case No. 20-1783, in the United States Court of Appeals for the Second Circuit. The lawsuit alleges violation of the Fair Labor Standard Act. Ichiro Asian Fusion, Inc., operates a family restaurant business.[BN] Plaintiffs-Counter-Defendants-Appellants Ji Li, Bin Zhang, De Ping Zhao, Jianhui Wu, and Kai Zhao, on behalf of themselves and others similarly situated, are represented by: Aaron B. Schweitzer, Esq. TROY LAW PLLC 41-25 Kissena Boulevard Flushing, NY 11355 Telephone: 718 762-1324 Defendants-Counter-Claimants-Appellees Ichiro Asian Fusion, and Jian Ping Chen are represented by: Benjamin B. Xue, Esq. XUE & ASSOCIATES, P.C. 1 School Street, Glen Cove, NY 11542 Telephone: 212 219-2275 - and - David Yan, Esq. LAW OFFICES OF DAVID YAN 136-20 38th Avenue Flushing, NY 11354 Telephone: 718-888-7788 Defendants-Appellees New Ichiro Sushi Inc. Juhang Wang, and Hui Chen are represented by: David Yan, Esq. LAW OFFICES OF DAVID YAN 136-20 38th Avenue Flushing, NY 11354 Telephone: 718-888-7788 Appellee Roberto Hidalgo is represented by: Peter Hans Cooper, Esq. CILENTI & COOPER, PLLC 708 3rd Avenue New York, NY 10017 Telephone: 212 209-3933 INTER-STATE OIL: App. Court Upholds Arbitration Ruling in Garner ---------------------------------------------------------------- In the case, CHRIS GARNER, Plaintiff and Appellant, v. INTER-STATE OIL COMPANY, Defendant and Respondent, Case No. C088374 (Cal. App.), the Court of Appeals of California for the Third District, Sacramento, affirmed the trial court's order compelling arbitration, as modified. Chris Garner sued Inter-State Oil, alleging employment claims and seeking certification of a class action. During Garner's employment with Inter-State Oil, Garner signed a 2014 arbitration agreement. There is no dispute that the 2014 agreement superseded an earlier arbitration agreement. Garner subsequently filed a class action complaint against Inter-State Oil, asserting a cause of action for unfair business practices and alleging that Inter-State Oil engaged in various illegal employment practices related to wages, breaks, and reimbursement of business expenses. Inter-State Oil filed a petition to compel arbitration, asserting that Garner agreed to arbitrate all claims arising out of his employment with Inter-State Oil and that Inter-State Oil had asked Garner to arbitrate his dispute but Garner refused. Garner acknowledged Inter-State Oil's petition to compel arbitration and offered to stipulate to arbitration of the class claims, but Inter-State Oil would agree only to arbitrate Garner's individual claims. Consequently, Garner opposed the petition to compel arbitration, asserting that Inter-State Oil breached the arbitration agreement by refusing to arbitrate the class claims and that the breach waived its rights under the agreement and excused Garner's duty to arbitrate. The trial court granted Inter-State Oil's petition to compel arbitration only as to Garner's individual claims. It relied on language in the arbitration agreement stating that Garner waived his right to participate in class action lawsuits. Garner appealed the trial court's order granting Inter-State Oil's motion to compel arbitration, citing Franco v. Athens Disposal Co., Inc., an order to arbitrate individual claims is appealable if it constitutes the "death knell" for class litigation. Garner contends (1) the plain language of the arbitration agreement gives him the right to pursue his class claims in arbitration, and (2) Inter-State Oil waived reliance on the arbitration agreement. The Appellate Court concludes that the arbitration agreement provides for arbitration of class claims. When reading the arbitration agreement in this case as a whole, the language of the arbitration agreement provides for arbitration of class claims. Therefore, the parties consented to arbitrate class claims. There is also no evidence of bad faith or willful misconduct, the Appellate Court finds. The parties simply had a disagreement over the meaning of the arbitration agreement, which is not a model of clarity, and took the disagreement to court. That the trial court has resolved the disagreement against Inter-State Oil is not evidence of bad faith or willful misconduct. It found no case holding that conduct similar to Inter-State Oil's rose to the level of waiver of the right to arbitrate. Therefore, giving effect to the public policy favoring arbitration, the Appellate Court concludes that the arbitration agreement must be enforced. Finally, Garner asserts Inter-State Oil's conduct showed a lack of mutuality of consideration that renders the [arbitration agreement] null and void. The Appellate Court holds that the parties made mutual, obligating promises to arbitrate. The dispute over the meaning of the arbitration agreement did not change those mutual, obligating promises. Adequacy of consideration is in the formation of the contract, not in its performance. The Appellate Court therefore rejects Garner's contention that Inter-State Oil's conduct rendered the arbitration agreement null and void because of lack of consideration. Based on the foregoing, the Appellate Court concludes (1) the arbitration agreement requires arbitration of Garner's class claims, and (2) Inter-State Oil did not waive reliance on the arbitration agreement. He will modify the trial court's order to require arbitration of both individual and class claims, and affirm the order as modified. Accordingly, the Appellate Court rules that the trial court's order compelling arbitration is modified to require arbitration of both individual and class claims, and, as modified, the trial court order is affirmed. Garner is awarded his costs on appeal. A full-text copy of the Appellate Court's June 26, 2020 Opinion is available at https://bit.ly/2SR7zuK from Leagle.com. INTERCEPT PHARMACEUTICALS: Bid to Amend Judgment in Liu Suit Denied ------------------------------------------------------------------- In the case, HOU LIU, et al., Plaintiffs, v. INTERCEPT PHARMACEUTICALS, INC., et al., Defendants, Case No. 17-cv-7371 (LAK) (S.D. N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York denied the Plaintiffs' motion to amend the March 26, 2020 judgment of the Court under Rule 59(e) of the Federal Rules of Civil Procedure or alternatively set it aside pursuant to Rule 60(b), and for leave to file their Proposed Second Amended Complaint ("PSAC"). The putative securities class action is born out of 30 reports of death or serious injury (the Serious Adverse Events, or SAEs) that occurred over a one-year period in 27 -- out of approximately 3,000 -- users of Ocaliva, the Defendant's drug to treat patients with the rare liver disease primary biliary cholangitis ('PBC'). These 30 SAEs comprised of 17 deaths and 11 cases of serious liver injury. Of the 27 patients, known to have suffered a serious adverse event, 12 of the 13 known late-stage PBC patients received an incorrect dose. Pursuant to the Federal Food, Drug, and Cosmetic Act ("FDCA"), Intercept must submit reports of any adverse events to the FDA. Intercept complied with the regulation and its pharmacovigilance department submitted the 30 reports to the FDA. On Sept. 12, 2017, Intercept issued a Dear Healthcare Provider Letter ("HCP Letter") warning providers against prescribing late-stage PBC patients with a dose higher than recommended. Following publication, Intercept's common stock fell from a close of $113.48 on Sept. 11, 2017 to a close of $90.75 on Sept. 13, 2017. On Sept. 21, 2017, the FDA issued a drug safety communication and a corresponding safety alert summarizing the Communication, on the SAEs reported by Ocaliva users. The data included in the Communication came directly from the adverse events reported to the FDA by Intercept. The FDA warned that Ocaliva was being incorrectly dosed in some patients with late-stage PBC, resulting in an increased risk of serious liver injury and death. It cautioned providers against prescribing higher than the suggested dose and recommended frequent monitoring of Ocaliva patients. Intercept's common stock price fell from $98.12 per share on Sept. 20, 2017 to close at $61.59 per share on September 22. Ocaliva remains on the market. The Plaintiffs argued that in light of the 27 Ocaliva users who took an incorrect dose of Ocaliva and/or suffered SAEs, certain of the Defendants' prior statements were materially false or misleading in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Court concluded that the Plaintiffs had failed to allege sufficiently a material misstatement or omission. It dismissed the amended complaint on the additional ground that it did not sufficiently allege scienter as required by Rule 9(b) and the PSLRA. On March 26, 2020, the Court granted the Dfendants' motion to dismiss the amended complaint and directed the Clerk to close the case. The matter is now before the Court on the Plaintiffs' motion to amend the judgment or alternatively set it aside, and for leave to file their PSAC. They claim that such relief is necessary to correct the Court's "clear error" of closing the case without granting them leave to amend, as requested in one sentence at the conclusion of their opposition to the Defendants' motion to dismiss. The Defendants contend that the Plaintiffs have failed to satisfy their burdens under Rules 59(e) and 60(b) and, in any event, that the Court should deny leave to amend because the proposed amendments would be futile. Judge Kaplan opines that to plead scienter sufficiently, the complaint must state with particularity facts demonstrating either that (1) the Defendants had both motive and opportunity to commit fraud, or (2) constitute strong circumstantial evidence of conscious misbehavior or recklessness. He finds that the PSAC does not include new allegations of a motive and opportunity to commit fraud. Instead, it simply recycles those that the Court had rejected already. Those allegations do not raise a strong inference of scienter for the reasons explained in the Court's prior opinion. Next, where a complaint does not allege sufficiently allegations of motive and opportunity, allegations of recklessness must be correspondingly greater. Allegations of recklessness are judged against the PSLRA's exacting requirement that the complaint state with particularity facts that give rise a "strong inference" of scienter. Judge Kaplan opines that the PSAC does not plead facts giving rise to a strong inference of scienter based on the Individual Defendants' alleged knowledge or access to contradictory information. First, the Plaintiffs ask the Court to assume, without any particularized allegations, that any report that contained information on pruritus contained also information on the serious adverse events of serious liver injury and death, the subjects of the alleged fraud. This type of conjecture cannot survive the PSLRA and Rule 9(b)'s heightened pleading standard. Second, the Plaintiffs do not identify any reports that allegedly contained information on pruritus. The Judge therefore cannot infer knowledge of the reported serious adverse events from the statements made on pruritus. Judge Kaplan further opines that the Plaintiffs have not alleged facts sufficient to show that an inference of scienter is at least -- or more -- compelling than the non-actionable inference of the Individual Defendant's negligence in failing to review certain data prior to speaking. The Plaintiffs' argument as to a possible negative regulatory response rely on the implausible notion that the Individual Defendants' alleged failure to review reports of adverse events and misdosing would insulate Intercept from the risk that the FDA would not approve Ocaliva for the treatment of other liver conditions. Moreover, the FDA's actions further undermine the Plaintiffs' scienter claim. The PSLRA requires that fraud be pleaded with particularity, in addition to plausibility. Regarding corporate scienter, Judge Kaplan holds that the new allegations bring the Plaintiffs closer to alleging scienter sufficiently. The critical pieces, however, are missing. There are no allegations connecting the relevant employees to the alleged misstatements. Without such allegations, the Jduge can therefore only guess what role those employees played in crafting or reviewing the challenged statements and whether it would be otherwise fair to charge the Corporate Defendants with their knowledge. Accordingly, the Plaintiffs have failed to set forth allegations sufficient to allege corporate scienter. Finally, as to the additional allegations of scienter: European Medical Agency ("EMA") documents and litigation, Judge Kaplan finds that although the Plaintiffs have added to their allegations, once again, they have only "detailed the chronology" of Intercept's challenge of the EMA's decision and have not raised a strong inference of scienter. Even if true, their position that the European lawsuit was "frivolous" and an attempt to shield them from certain documents are insufficient conclusory allegations. Accordingly, the Plaintiffs allegations concerning the EMA litigation fail once more, he said. For the foregoing reasons, Judge Kaplan denied the Plaintiffs' motion to amend the March 26, 2020 judgment of the Court. A full-text copy of the Court's Sept. 9, 2020 Memorandum Opinion is available at https://tinyurl.com/ydce75g5 from Leagle.com. Richard W. Gonnello -- rgonnello@faruqilaw.com -- Megan M. Sullivan -- msullivan@faruqilaw.co -- Dillon J. Hagius -- dhagius@faruqilaw.com -- FARUQI & FARUQI, LLP, Attorneys for Lead Plaintiffs Hou Liu and Amy Fu and Lead Counsel for the Class. Scott D. Musoff -- scott.musoff@skadden.com -- James R. Carroll -- james.carroll@skadden.com -- Alisha Q. Nanda -- alisha.nanda@skadden.com -- Rene H. DuBois -- rene.dubois@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Attorneys for Defendants Intercept Pharmaceuticals, Inc., Mark Pruzanski, Sandip S. Kapadia, Richard Kim and Rachel McMinn. IOWA: Rowe et al. Seek to Certify Class of Registered Nurses ------------------------------------------------------------ In the class action lawsuit captioned as SUSAN L. ROWE, CHRISTINE M. KLEIBER, TAMMY D. BURDEN, JULIE A. SCHROPP, STACEY L. GOOD, individually and on behalf of themselves and others similarly situated, v. KIMBERLY KAY REYNOLDS, in her official capacity as Governor State of Iowa, JAMES M. KURTENBACH, in his official capacity with Iowa Department of Administrative Services; and the STATE OF IOWA, Case No. 4:19-cv-00256-JAJ-SBJ (S.D. Iowa), the Plaintiffs Susan L. Rowe, Christine M. Kleiber, Tammy D. Burden, Julie A. Schropp and Stacey L. Good, individually and on behalf of all other similarly situated Registered Nurses, move the Court under the Fair Labor Standards Act for an Order: 1. conditionally certifying this case as a collective action; 2. authorizing the Plaintiffs to mail notice of this case to: "all current and former Registered Nurses of the State of Iowa in Job Classifications 02020 and 82020, at any time during the period July 1, 2017 to the present, plus periods of equitable tolling, as similarly situated Registered Nurses"; and 3. directing the Defendants to provide the Plaintiffs' counsel with a computer-readable data file containing the additional names, last known addresses, dates of employment, location of employment, date of birth (for address verification purposes), and telephone numbers for each such current and former Registered Nurses, for the following proposed Plaintiff classes: State of Iowa Job Classifications 02020 and 82020. A copy of Plaintiffs' Motion to Conditionally Certify Collective Class is available from PacerMonitor.com at https://bit.ly/3mnLr8N at no extra charge.[CC] The Plaintiffs are represented by: Bruce H. Stoltze, Esq. John Q. Stoltze, Esq. STOLTZE & STOLTZE, PLC 300 Walnut Street, Suite 260 Des Moines, IA 50309 Telephone: 515-244-1473 Facsimile: 515-244-3930 E-mail: bruce.stoltze@stoltzelaw.com bj.stoltze@stoltzelaw.com john.stoltze@stoltzelaw.com The Defendants are represented by: Molly M. Weber, Esq. Ryan Sheahan, Esq. ASSISTANT ATTORNEY GENERAL IOWA DEPARTMENT OF JUSTICE Hoover State Office Building 1305 E. Walnut Street Des Moines, Iowa 50319 E-mail: ryan.sheahan@ag.iowa.gov molly.weber@ag.iowa.gov J.C. CHRISTENSEN: Final Approval of Class Settlement Sought ----------------------------------------------------------- In the class action lawsuit captioned as EILEEN GREENE, on behalf of herself and all others similarly situated, v. J.C. CHRISTENSEN & ASSOCIATES, INC. and LVNV FUNDING LLC, Case No. 2:17-cv-01700-SCM (D.N.J.), the Parties will move Court for an order granting final approval of the within proposed class settlement and related relief. JC Christensen operates as debt recovery agents. LVNV Funding is a debt collection agency.[CC] Attorney for Plaintiff, on behalf of herself and all others similarly situated, is: Lawrence C. Hersh, Esq. ATTORNEY AT LAW 17 Sylvan Street, Suite 102B Rutherford, NJ 07070 Telephone: (201) 507-6300 JELLY BELLY: Court Stays Hoffman TCPA Suit Pending Ruling in AAPC ----------------------------------------------------------------- In the case, HOWARD HOFFMAN, as an individual and on behalf of all others similarly situated, Plaintiff, v. JELLY BELLY CANDY COMPANY, INC., Defendant, Case No. 2:19-cv-01935-JAM-DB (E.D. Cal.), Judge John A. Mendez of the U.S. District Court for the Eastern District of California granted the Defendant's Motion to Stay. The case at hand involves a putative class action against the Defendant, alleging it violated the Telephone Consumer Protection Act ("TCPA"), in transmitting unsolicited text messages using an Automatic Telephone Dialing System ("ATDS"). Specifically, the Plaintiff contends that on June 8, 2019, and June 18, 2019, the Defendant sent telemarketing text messages to his cellular phone. Each of the Defendant's messages contained information meant to promote the purchase of its goods. Plaintiff never provided his express, written consent to receive the Defendant's promotional text messages. Since the filing of the Plaintiff's complaint, the Supreme Court has granted certiorari in Barr v. Am. Ass'n of Political Consultants ("AAPC"). In AAPC, the Supreme Court is being asked to determine whether the government-debt exception to the TCPA's automated-call restriction is unconstitutional. And if so, whether the proper remedy is to sever the exception from the remainder of the statute. In addition, pending before the Supreme Court is a petition for certiorari in Facebook, Inc. v. Duguid, Appeal No. 19-511. In that case, the petitioner is asking the Supreme Court to resolve the following issues: (1) whether the TCPA's prohibition on calls made using an ATDS is unconstitutional and, if so, whether the proper remedy is to broaden the prohibition; and (2) whether the definition of ATDS in the TCPA encompasses any device that can "store" and "automatically dial" telephone numbers, even if the device does not use a random or sequential number generator. To date, the Supreme Court has not decided whether it will grant certiorari. As a result of these pending cases and the issues raised in them, the Defendant now moves to stay these proceedings until the Supreme Court has decided on the AAPC case. Judge Mendez holds that given the significant split that has developed among the circuits, the Supreme Court may not remain silent for much longer and may grant certiorari in the Duguid case, or else, its decision in the AAPC case may obviate the need to do so. In any event, the definitional problem of what constitutes an ATDS is relevant in the instant case, as the Plaintiff alleges the Defendant used an ATDS to send him text messages, but the Defendant contends it did not. Accordingly, even if certiorari remains pending or is denied in the Duguid case, Judge Mendez finds it is prudent and more efficient to wait to see whether the AAPC case provides more clarity on this issue. Waiting for the Supreme Court's decision in the AAPC case, and possibly also the Duguid case, will allow the District Court to adjudicate the issues before it with far greater certainty. To do otherwise would be a waste of judicial resources and a waste of the parties' time and energy. For this reason, a stay awaiting clarity on the validity of the TCPA in general, and the definition of an ATDS more specifically, would allow for a more orderly disposition of this motion. For the reasons he set forth, Judge Mendez granted the Defendant's Motion to Stay pending resolution by the U.S. Supreme Court of the AAPC case. The parties are ordered to file a joint status statement within ten days after the Supreme Court's decision in AAPC becomes final advising the Court as to how they wish to proceed in the case. A full-text copy of the District Court's June 26, 2020 Order is available at https://bit.ly/3kcqGM5 from Leagle.com. JONES LANG: North Seeks Unpaid Overtime Wages, Reimbursements ------------------------------------------------------------- Christopher North, an individual, on behalf of himself and others similarly situated, Plaintiff, v. Jones Lang Lasalle Americas, Inc. and Does 1 through 50, inclusive, Defendants, Case No. 37-2020-00027555, (Cal. Super., August 6, 2020), seeks redress for failure to pay minimum wages and overtime, failure to provide lawful meal and rest periods, failure to pay all wages due upon separation, reimbursements of all business-related expenses and failure to furnish timely and accurate itemized wage statements under California Labor Code and relevant orders of the Industrial Welfare Commission (IWC), and the California Business and Professions Code. Jones Lang LaSalle Americas is a commercial real estate service where North was employed at its facility in San Diego. [BN] Plaintiff is represented by: Emil Davtyan, Esq. DAVTYAN LAW FIRM INC. 880 E Broadway Glendale, CA 91205 Telephone: (818) 875-2008 Email: emil@davtyanlaw.com - and - David Harmik Yeremian, Esq. Natalie Haritoonian, Esq. DAVID YEREMIAN AND ASSOCIATES 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Phone: (818) 918-3876 Email: david@yeremianlaw.com natalie@yeremianlaw.com JPMORGAN CHASE: Prukala Class Suit Dismissed with Prejudice ----------------------------------------------------------- In the case, CHRISTINA PRUKALA, Plaintiff, v. CHASE BANK, N.A., Defendant, Case No. 3:19-CV-1791 (M.D. Pa.), Judge Robert D. Mariani of the U.S. District Court for the Middle District of Pennsylvania granted the Defendant's Motion to Dismiss Plaintiff's Amended Complaint with prejudice. On Sept. 9, 2019, Plaintiff Prukala filed a putative class action complaint in the Court of Common Pleas of Lackawanna County against Defendant JPMorgan Chase Bank, N.A., improperly named as "Chase Bank", for alleged violations of Pennsylvania's Fair Credit Extension Uniformity Act ("FCEUA") and the federal Fair Debt Collection Practices Act ("FDCPA"). On Oct. 16, 2019, Defendant Chase properly removed the action to the Court. On Oct. 21, 2019, the Defendant filed a Motion to Dismiss Plaintiff's complaint. On Nov. 4, 2019, the Plaintiff amended her complaint eliminating the FDCPA claims, but still alleging the Defendant violated the FCEUA when the Defendant reported her consumer credit report as delinquent, with derogatory information therein. The Plaintiff seeks relief under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). She seeks monetary damages, punitive damages, and injunctive relief on behalf of herself and a putative class. Plaintiff Prukala is a citizen and resident of the Commonwealth of Pennsylvania. Defendant Chase is a corporate entity engaged in, among other enterprises, collection of allegedly overdue credit accounts. Defendants John Does 1-10 are unknown individuals or entities who played a substantial role in the commission of the acts. Defendants X, Y, and Z Corporations are unknown entities who also played a substantial role in the commission of the acts. The Plaintiff possesses consumer debts, used for personal, household or family purposes, that the Defendant was seeking to collect. One of her consumer accounts was reported as delinquent and derogatory information was placed on her credit report by the Defendant. When the Plaintiff discovered the derogatory information on her credit report, she sent the Defendant letters both disputing the high balance of each account and requesting copies of the original contracts. The Defendant updated the Credit Reporting Agencies ("CRAs") on a regular basis, which is reflected on the Plaintiff's consumer credit report. It "constructively, if not actively" updated the information on the Plaintiff's consumer report without either reinvestigating said derogatory information or notating on the report that the account was disputed. The Defendant had actual and/or constructive notice that the Plaintiff disputed the debts as she sent letters to the Defendant indicating her dispute and requesting an accounting of the debts and the original contracts. The Plaintiff never received a response from the Defendant to her letters. The derogatory information on the consumer credit report negatively reflects upon the Plaintiff, the Plaintiff's credit repayment history, the Plaintiff's financial responsibility as a debtor and the Plaintiff's credit worthiness. As a result, the Plaintiff suffered repeated disruption of to pursuit of any business affairs affected by the false, unverified information on her credit report as well as the emotional distress suffered from being the target of the Defendant's collection activity. The Plaintiff's damages include lost time in dealing with said violations, including but not limited to loss of credit opportunities and business standing in the community, and in seeking and contacting legal counsel for the purpose of exploring and commencing the litigation. On Dec. 5, 2019, the Defendant again filed a Motion to Dismiss the Plaintiff's Amended Complaint with prejudice, which is now pending before the Court. Viewing all facts in the light most favorable to the Plaintiff and drawing all reasonable inferences in the Plaintiff's favor, Judge Mariani finds no allegation of causation or justifiable reliance in the Amended Complaint. Even if the disrupted pursuit of business affairs was an ascertainable loss, the Plaintiff does not allege how the Defendant's actions caused such a disruption. The Plaintiff pleads that the Defendant caused derogatory information to be placed on her consumer credit report despite sending the Defendant a dispute letter. However, she does not explain what the derogatory information is or how that derogatory information impacted her business pursuits. Nor does the Plaintiff allege reliance, justifiable or not, on any actions taken or statements made by the Defendant. For these reasons, the Plaintiff's Amended Complaint does not allege causation or justifiable reliance as is required by the UTPCPL and FCEUA; and therefore, fails to state a claim upon which relief may be granted, rules the Court. The Plaintiff does not allege facts sufficient to state a claim upon which relief can be granted in her Amended Complaint, nor does she request leave to amend the complaint. Judge Mariani deems the Plaintiff had the opportunity to amend her Complaint and cure its deficiencies but did not do so. No further leave will be granted. Without alleging justifiable reliance on the Defendant's prohibited statements or actions and without alleging an ascertainable loss as a result of that reliance, the Plaintiff's complaint does not state a claim upon which relief can be granted under the UTPCPL and the FCEUA. The Plaintiff was on notice of these defects after the Defendant's initial Motion to Dismiss, but saw fit not to address them. The complaint must be dismissed without leave to amend. Therefore, for the reasons set forth in his Sept. 4, 2020 Memorandum Opinion, a full-text copy of which is available at https://tinyurl.com/y4kksrbq from Leagle.com, Judge Mariani granted the Defendant's Motion to Dismiss with prejudice. A separate Order follows. KEITH GORSUCH: Court Denies Motion to Certify Class Action ---------------------------------------------------------- In class action lawsuit captioned as CLIFTON B. HENNINGTON, v. KEITH GORSUCH, ET AL., Case No. 6:20-cv-00302-JDK-KNM (E.D. Tex.), the Hon. Judge Jeremy D. Kernodle entered an order: 1. adopting the Report and Recommendation of Magistrate Judge K. Nicole Mitchell concluding that Plaintiff's motion to certify class action should be denied; and 2. denying the Plaintiff's motion to certify class action. A copy of the Court's Order denying motion to certify class action is available from PacerMonitor.com at https://bit.ly/2FVedNL at no extra charge.[CC] KOCH INDUSTRIES: 401(k) Plan Members Slam Fund Mismanagement ------------------------------------------------------------ David Kinder and Tracy Scott, individually and on behalf of all others similarly situated and on behalf of the Georgia-Pacific LLC Hourly 401(k) Plan, the Georgia-Pacific LLC 401(k) Retirement Savings Plan, the Koch Industries Inc. Employees' Savings Plan and the Flint Hills Resources Chemicals Salary Deferral Plan Plaintiffs, v. Koch Industries, Inc., Koch Business Solutions, LP, the Koch Benefits Administrative Committee and John Does 1-30, Defendants, Case No. 20-cv-02973 (N.D. Ga., July 16, 2020), seek equitable and injunctive relief for breach of the fiduciary duties of prudence and loyalty and for violation the Employee Retirement Income Security Act of 1974. Koch Companies Defined Contribution Master Trust is the single master trust governing several retirement plans for employees of Koch affiliated companies, including the Georgia-Pacific Hourly Plan, the Georgia-Pacific Savings Plan, the Koch Plan and the Flint Hills Plan. The Georgia-Pacific Hourly Plan covers eligible hourly-paid employees or former employees of Georgia-Pacific LLC or its affiliates. The Georgia-Pacific Savings Plan covers eligible employees and former employees of Georgia-Pacific or its affiliates. The Koch Plan covers eligible employees or former employees of Koch Industries or other companies affiliated with Koch Industries. The Flint Hills Plan covers certain groups of union employees or former employees of Flint Hills Resources, LLC. Georgia-Pacific and Flint Hills Resources are wholly-owned subsidiaries of Koch Industries. Defendants allegedly caused the Plans' participants to pay excessive recordkeeping expenses and failed to negotiate for lower per-participant recordkeeping fees. [BN] Fuentes is represented by: John T. Sparks, Esq. AUSTIN & SPARKS, P.C. 2974 Lookout Place, N.E., Suite 200 Atlanta, GA 30305 Tel: (404) 869-0100 Fax: (404) 869-200 Email: jsparks@austinsparks.com - and - Paul J. Lukas, Esq. Kai H. Richter, Esq. Brock J. Specht, Esq. Grace I. Chanin, Esq. NICHOLS KASTER, PLLP 4600 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 Email: plukas@nka.com krichter@nka.com bspecht@nka.com gchanin@nka.com - and - Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com LEXISNEXIS RISK: Court Certifies Class & Subclass in Gaston Suit ---------------------------------------------------------------- In the case, DELORIS GASTON AND LEONARD GASTON, Plaintiffs, v. LEXISNEXIS RISK SOLUTIONS, INC. AND POLICEREPORTS.US, LLC, Defendants, Civil Action No. 5:16-CV-00009-KDB-DCK (W.D. N.C.), Judge Kenneth D. Bell of the U.S. District Cour for the Western District of North Carolina, Statesville Division, (i) granted in part and denied in part the Plaintiff's Motion to Certify Class, (ii) denied as moot Plaintiffs' Motion for Appointment of Interim Co-Lead and Liaison counsel, (iii) granted in part and denied in part the Plaintiffs Motion for Summary Judgment; (iii) denied the Defendants' summary judgment motion; and (iv) denied the Defendants' Motion to Stay a ruling on the Plaintiffs' Motion for Summary Judgment. Plaintiffs Leonard and Delores Gaston are a married couple who live in Charlotte, North Carolina. Defendant LexisNexis is a Georgia corporation that provides data and information to various professionals and industries around the world. Defendant PoliceReports.US, LLC, ("PRUS") is a North Carolina corporation that is an online distributor of vehicle accident/crash reports throughout the United States, including North Carolina. PRUS was acquired by LexisNexis in 2014. In 2012 and 2015, the Gastons were involved in car accidents in Charlotte. After each accident, the responding CMPD officer prepared a Crash Report that included personal information, including their name, address and driver's license number. Further, the Crash Report specifically indicated that the address provided was the same as appears on their driver's license. In the action, the Gastons allege on their own behalf and as representatives of several proposed putative classes that the Defendants violated the DPPA by unlawfully using and disclosing their personal driver information in the Crash Reports without their consent. CMPD and other law enforcement officers in North Carolina theoretically can collect information to create a Crash Report through various means. Crash Reports can be prepared using an electronic crash reporting software application known as Report Beam, which interacts with a CMPD officer's Computer Automated Dispatch ("CAD") system. CAD has the ability to interface with a variety of third party databases, including the National Crime Information Center ("NCIC") and the North Carolina Division of Criminal Information ("DCI"), and return available information relating to the driver's license number or license tag, such as the driver's name, address, date of birth and insurance information. For North Carolina driver's licenses and tags, officers can pre-populate the driver information in a crash report form with the information returned by the CAD-connected databases by using the F11 function in Report Beam. The Plaintiffs assert that in their accidents and almost all of the accidents involving other putative North Carolina class members, the investigating officers electronically accessed their personal information, including driver identification numbers, names, and addresses, from information maintained by the DMV and then integrated that personal information obtained from the DMV into the Crash Report using electronic crash reporting software. In support of the claim, they offer an affidavit of Officer Nicholas Bush of the CMPD. Officer Bush testified that in the field he created thousands of crash reports using the Report Beam crash reporting software. He further testified that he taught other officers at the CMPD how to use the Report Beam crash reporting software, including the use of the F11 function to speed up the crash reporting process. Accordingly, it appears (and the parties do not dispute) that because police officers collectively prepare thousands of Crash Reports and the reports do not themselves indicate the source of the personal information in the report, the source of the personal information in any particular Crash Report is, as a practical matter, unknown and generally unknowable to an absolute certainty very shortly after the accident. However, it also appears that the Crash Reports were prepared using computer software and information from the DMV databases in at least a very substantial number of cases -- and particularly so for at least for one CMPD officer. During the relevant period, PRUS entered into contracts to make CMPD's Crash Reports available online. In those agreements with CMPD, PRUS is authorized to provide online access to Crash Reports as well as a "bulk/subscription download capability" to customers on a set price schedule. Also, while those contracts do not mention the DPPA nor specifically limit the manner in which the reports can be provided to the public (with the exception of the prices that PRUS can charge for access to the reports), the contracts do not provide a blanket authority to allow access to the Crash Reports without regard to Federal law. On the contrary, the contracts require that PRUS comply with all applicable federal, state and local laws and regulations and further include a specific representation that the Company will comply in all material respects with all applicable federal, state and local laws, regulations and guidelines in providing the Services. With respect to the use made of the Plaintiffs' information, the Gastons testified that they received numerous solicitations by both telephone and mail after the crash in February 2012, but the identification of those solicitations is unknown or disputed. As to the putative class members more generally, the parties also dispute the extent to which the Defendants' monthly subscription customers viewed and used their personal information for marketing and soliciting purposes, but there is substantial evidence that numerous monthly subscription customers used the personal information in the Crash Reports for the purpose of marketing and solicitation. Beyond CMPD and North Carolina, the Defendants resell crash reports for numerous law enforcement agencies around the nation. The Plaintiffs allege that law enforcement agencies in the state of New York and elsewhere similarly use software to create accident crash reports. However, they have not offered any specific testimony of the manner and prevalence of the use of the software outside of CMPD. With respect to class claims, the Plaintiffs seek to certify and represent a nationwide class of the Plaintiffs seeking declaratory and injunctive relief, pursuant to the provisions of Fed. R. Civ. P. 23(a), 23(b)(1)(A), 23(b)(2) and Rule 23(b)(3), defined as: a. Class 1 - Nationwide: All persons in the United States who, within four (4) years prior to the date of January 12, 2016 through the final disposition of the or any related actions, had their personal information (as defined by the DPPA, effective during the Class Period) contained in motor vehicle records of their State Motor Vehicle Departments obtained, used, disclosed, re-disclosed, and/or resold by the named Defendants, for purposes not permitted by the DPPA, or without establishing a permissible purpose required by the DPPA, without their express consent. b. Subclass 1 - North Carolina and New York Vehicle Owners and Drivers: All North Carolina and New York driver's license holders and North Carolina and New York vehicle owners who within four years prior to the date of Jan. 12, 2016, through the final disposition of this or any related actions, had their personal information (as defined by the DPPA, effective during the Class Period) contained in motor vehicle records of the North Carolina or New York Motor Vehicle Departments obtained, used, disclosed, re-disclosed, and/or resold by the named Defendants, for purposes not permitted by the DPPA, or without establishing a permissible purpose required by the DPPA, without their express consent. c. Subclass 2 - All Vehicle Owners and Drivers CMPD crash reports: All driver's license holders and owners who within four years prior to the date of Jan. 12, 2016, through the final disposition of this or any related actions, had their personal information (as defined by the DPPA, effective during the Class Period) contained in motor vehicle records of the North Carolina Department of Motor Vehicles obtained, used, disclosed, re-disclosed, and/or resold by the named Defendants, for purposes not permitted by the DPPA, or without establishing a permissible purpose required by the DPPA, without their express consent. The Plaintiffs seek the following class-wide relief under the DPPA. First, they seek a judgment that the Defendants (1) breached the DPPA by disclosing or making available their and class members' personal information to third-parties that did not have a permissible use to view or obtain such information; and (ii) violated 18 U.S.C. Section 2721(c) by failing to keep records of the persons or entities who obtained or viewed the information and the permissible use of each such disclosure. They allege they suffered actual damages and claim they and the members of the class are entitled to at least minimum statutory damages of $2,500 for the impermissible disclosures to third parties, plus injunctive relief, punitive damages, and attorneys' fees. Regarding the Class Certification, Judge Bell finds that each of the Rule 23(a) requirements has been met. He then determines which, if any, of the types of classes described in Rule 23(b) are appropriate in the action. He finds that an "injunctive class" limited to CMPD accident reports should be certified, but declines to certify a class under Rule 23(b)(1), which is inapplicable to the action, or a money damages class under Rule 23(b)(3) because he finds it is not a superior procedure given the Defendants' right to challenge damages individually based on whether a particular person's Crash Report was disclosed for an improper purpose under the DPPA. Accordingly, the Judge certifies an "injunctive relief" class and subclass as follows: a. Class - North Carolina residents whose personal information (as defined by the DPPA) appears on a North Carolina form DMV-349 CMPD vehicle accident report that was created between Jan. 12, 2012 and Sept. 1, 2020 and disclosed by a Defendant to a third party without any contemporaneous record of a purpose permitted by the DPPA. The class does not include any person who gave consent to the disclosure of their personal information by a Defendant. b. Subclass — All members of the class whose related accident report indicates that their address in the report is the same as on their driver's license. Further, the Judge appoints the Plaintiffs' counsel as the class counsel for the class under Rule 23(g). In doing so, he finds that the Plaintiffs' counsel will fairly and adequately represent the interests of the class, a finding which the Defendants do not challenge. Finally, the Plaintiffs seek certification under Rule 23(b)(3). Weighing the benefits and challenges of certifying a class action under the circumstances, the Judge finds that a class action is not a superior framework in which to adjudicate the Plaintiffs' money damages claims because of the Defendants' intention to seek an individualized assessment of the right to recover such damages. Therefore, he declines to certify a class action under Rule 23(b)(3). Turning to the Motions for Summary Judgment, Judge Bell finds that the Defendants' conduct is not authorized by the governmental function purpose permitted by the DPPA nor are they entitled to qualified immunity from liability. Also, with respect to their more specific arguments related to the purpose for which the Plaintiffs' personal information was used, the Judge finds that they are not entitled to summary judgment because there are disputed factual issues related to whether the Plaintiffs' information was improperly disclosed. For the same reason, he denies the Plaintiffs' cross motion for summary judgment as to their own claim for liquidated damages. Also, he denies the Plaintiffs' motion for summary judgment based on the alleged violation of 18 U.S.C. Section 2721(c) because there is no private right of action to assert the violation. The Judge, however, grants summary judgment on the Plaintiffs' claims for declaratory and injunctive relief with respect to the Rule 23(b)(2) subclass of those class members whose accident reports indicate that the address in the report matches the address on their driver's license. He finds that the Defendants have violated the DPPA as a matter of law because the Crash Reports related to that subclass are "motor vehicle records" as discussed earlier and Plaintiffs are entitled to summary judgment because, inter alia, it is undisputed that the Defendants make no effort to limit the disclosure of Crash Reports for purposes permitted by the DPPA, even though all records may not have been disclosed and some records may have been disclosed for permissible purposes. Accordingly, he enjoins the Defendants from continuing any conduct that violates the DPPA. The remaining motions before the Court are the Plaintiffs' Motion to Appoint Interim Counsel and the Defendants' Motion to Stay consideration of the Plaintiffs' Motion for Summary Judgment. Both of these motions will be denied as moot. Judge Bell is now certifying a class under Rule 23 (b)(2), appointing the Plaintiffs' counsel as the class counsel and denying certification of the Plaintiffs' other proposed classes; therefore, appointment of interim counsel is unnecessary. Similarly, because the Judge is declining to certify a class under Rule 23(b)(3), the only type of class which provides potential class members the right to "opt-out" which was the root of the Defendants' concern, and the Court has in any event entered summary judgment for the Plaintiffs' subclass, there is no basis for him to further consider the Defendants' requested stay. Based on the foregoing, Judge Bell granted in part and denied in part the Plaintiff's Motion to Certify Class as described. He appointed the Plaintiffs' counsel, Larry S. McDevitt, David M. Wilkerson, Eugene C. Covington, Jr. and Chris Cogdill as the class counsel for the certified class pursuant to Rule 23(g). The Judge granted in part and denied in part the Plaintiffs' Motion for Summary Judgment as described. The Defendants and their officers, agents, servants, employees, and attorneys and those acting in active concert with them are enjoined from violating the DPPA as described. The Judge denied the Defendants' Motion for Summary Judgment. He denied as moot the (i) Plaintiffs' Motion for Appointment of Interim Co-Lead and Liaison counsel; and (ii) the Defendants' Motion to Stay a ruling on the Plaintiffs' Motion for Summary Judgment. The case will proceed to trial on the merits on the Plaintiffs' claim for statutory liquidated damages and the full certified class' claim for injunctive relief in the absence of a voluntary resolution of the dispute among the parties. A full-text copy of the Court's Sept. 2, 2020 Order is available at https://tinyurl.com/yxlctzm2 from Leagle.com. LIDDLE & LIDDLE: Perchlak Suit Seeks to Certify FDCPA Class ----------------------------------------------------------- In the class action lawsuit captioned as Robert Perchlak, on behalf of himself and all others similarly situated, v. Liddle & Liddle, A Professional Corporation, Case No. 2:19-cv-09461-JFW-AFM (C.D. Cal.), the Plaintiff moves the Court to certify his and his counsel as representatives of a class of individuals with claims against the Defendant under the Fair Debt Collection Practices Act, defined as follows: "all persons in California, to whom Defendant sent an initial written communication based upon the Template from November 4, 2018 to the present in connection with the collection of a consumer debt." The Defendant engages in the collection of debts from consumers, such as Plaintiff. The Defendant sent Plaintiff a letter dated August 7, 2019 containing a Three-Day Notice to pay rent or quit. This letter is based on a Template that Defendant uses to send similar letters to other consumers, says the complaint. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/33PUaZb at no extra charge.[CC] The Plaintiff is represented by: Russell S. Thompson, IV, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Telephone: (602) 388-8898 Facsimile: (866) 317-2674 E-mail: rthompson@ThompsonConsumerLaw.com LIDL US LLC: Duffy Slams Mislabeling on Vanilla-Flavored Ice Cream ------------------------------------------------------------------ Deborah Duffy, individually and on behalf of all others similarly situated, Plaintiff, v. Lidl US, LLC, Defendant, Case No. 20-cv-03578 (E.D. N.Y., August 8, 2020), seeks injunctive relief resulting from negligence, unjust enrichment and breach of contract and for violation of the Consumer Protection from Deceptive acts of New York business laws. Lidl US, LLC manufactures, distributes, markets, labels and sells vanilla bean ice cream under its "Lidl" brand. Duffy disputes Lidl's claim that their ice cream are flavored only with vanilla and that they contain non-vanilla flavors which imitate and extend vanilla but are not derived from the vanilla bean. [BN] Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Blvd., Ste. 311 Great Neck, NY 11021-5101 Tel: (516) 303-0552 Facsimile: (516) 234-7800 Email: spencer@spencersheehan.com LILITH GAMES: Court Authorizes Email Service in Coy Class Suit -------------------------------------------------------------- In the case, KEITH COY, Plaintiff, v. LILITH GAMES (SHANGHAI) CO., LTD., et al., Defendants, Case No. 19-cv-08192-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California authorized the email service as described as an alternate method of serving the two foreign Defendants in the case, pursuant to Federal Rule of Civil Procedure 4(f)(3). In the putative consumer class action concerning the "Rise of Kingdoms" mobile videogame and certain "micro-transactions" within the game, the Plaintiff alleges that the Defendants engaged in deceptive and misleading conduct. The Plaintiff requests permission to serve the complaint on Defendants Lilith Games (Shanghai) Co., Ltd. and Shanghai Lilith Network Technology Co., Ltd. through alternative means pursuant to Federal Rule of Civil Procedure 4(f)(3). The Defendants, which are Chinese corporations headquartered in Shanghai, China, have not appeared in the action or filed any response to the Plaintiff's request. The Plaintiff proposes to effectuate service by personally serving an attorney in Dallas, Texas, who previously represented the Defendants in two other lawsuits in the District, and by email service to four separate email accounts related to the Defendants. Judge Donato finds that Coy appears to have expended a significant amount of time and effort in trying to serve the Defendants. Most significant are his efforts to reach out to Alisa Zheng. Before filing the complaint, Coy's counsel sent a "Notice of Intent to File Class Action Lawsuit" to the Defendants pursuant to California Civil Code Section 1782, putting the Defendants on notice that a lawsuit would be filed in 30 days' time if they did not cease the unlawful business practices as described in the letter. It appears that Alisa Zheng, writing as "the Legal Counsel of Lilith Games," responded to that letter by email, attaching a copy of the response that was signed by her on Nov. 14, 2019. The response states that they have received the complaint about the 'account sharing' in their game product 'Rise of Kingdoms,' attempts to address the alleged violations of Lilith in the letter, and directs the Plaintiff to contact their service group through in-game chat or sending email to service@lilithgames.com in the event he has more questions or suggestions. It appears the email response was sent from the address "alisazheng@lilithgames.com," copying the addresses "jixiaojun@lilith.sh" and "hurui@lilith.sh." The Plaintiff's submissions on the motion show his counsel has emailed these three email addresses multiple times, inquiring whether Ms. Zheng is able to accept service of the complaint on behalf of her client, attaching a copy of the summons and complaint, and proposing to meet and confer on a joint case management conference statement. The Plaintiff has not received a single response to these emails. Coy's counsel has also corresponded with, and personally served, attorney Bart Rankin, who previously served as counsel for the Defendants in two lawsuits in the Northern District of California. Coy makes no argument that those two lawsuits were related to the one in subject matter. He further appears to have sent via UPS Worldwide Saver (Express) a copy of the summons, complaint and other documents to defendants at the same physical address used for the pre-filing notice letter. In addition, he retained Rick Hamilton, the Director of International Services at ABC Legal Services, to move forward with service pursuant to the Hague Convention. All of this establishes that the district court's intervention on the issue of service is appropriate in the case. The question is what method of alternate service to order. To start, Judge Donato denies the Dlaintiff's request for substitute service on attorney Bart Rankin. Attorney Rankin informed the Plaintiff's counsel that he was not retained or authorized by the Defendant to accept service of process for the present lawsuit. Attorney Rankin has no demonstrated ties to the Defendants for the case. Alisa Zheng, who wrote to the Plaintiff's counsel is a much more appropriate person for alternate service. The Plaintiff has proposed to serve her by email. But he, while alluding to China's status as a signatory to the Hague Convention, has not fully addressed how the proposed email service is likely to be viewed under the Convention. Judge Donato has found in other contexts, however, that the Hague Convention is not a bar to alternate methods of service. He consequently authorizes alternative service of process by email to (1) "alisazheng@lilithgames.com"; (2) the two email addresses Ms. Zheng copied, i.e., "jixiaojun@lilith.sh" and "hurui@lilith.sh"; and (3) the email address to which she referred the Plaintiff, "service@lilithgames.com." To be clear, the alternate email service authorization is subject to a motion to quash service in the event the Defendants have good cause to contend that email service in China is prohibited by the Hague Convention or any other international agreement. Based on the foregoing, Judge Donato authorized the email service as described as an alternate method of serving the two foreign Defendants in the case, pursuant to Federal Rule of Civil Procedure 4(f)(3). The emails the Plaintiff previously sent were not authorized by Court order and cannot be authorized retroactively. The Plaintiff is consequently directed to newly serve the Defendants consistent with the Order and to file a proof of service on the docket. The Order should also be served on the Defendants at those same email addresses. The case management conference that was set for Sept. 10, 2020, is vacated and will be re-set once the Defendants have appeared. The case is administratively closed in the interim. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/y97rqa9g from Leagle.com. LVNV FUNDING LLC: Shaughnessy Disputes False Credit Report ---------------------------------------------------------- Grady Shaughnessy, individually and on behalf of all others similarly situated, Plaintiff, v. LVNV Funding, LLC and Resurgent Capital Services, LP, Defendants, Case No. 37-2020-00028067 (Cal. Super., August 11, 2020), seeks damages and declaratory relief under the California Consumer Credit Reporting Agencies Act. LVNV Funding and Resurgent Capital Services are debt collectors who were assigned to collect an obligation owed by Shaughnessy that went default. Shaughnessy entered into a written agreement that required him to pay a total settlement amount of $1,250.00 in a one-time payment upon a debt. In exchange, LVNV and Resurgent would waive and release him from any further amounts and to discharge him from any further claim. On or about October 31, 2019, Shaughnessy paid the full amount agreed upon. However, on or about June 29, 2020, Shaughnessy discovered that LVNV Funding and Resurgent had updated its reporting of said account on April 1, 2020 that the account is still "in collections" and has a balance of $1,214.00. [BN] The Plaintiff is represented by: Scott M. Grace, Esq. GRACE LAW, APC 1958 Sunset Cliffs Boulevard San Diego, CA 92107 Phone: (619) 346-4612 Fax: (619) 501-8106 Email: sgrace@gracelawapc.com - and - Babak Semnar, Esq. Jared M. Hartman, Esq. SEMNAR & HARTMAN, LLP 41707 Winchester Road, Suite 201 Temecula, CA 92590 Telephone: (951) 293-4187 Fax: (888) 819-8230 Email: bob@sandiegoconsumerattorneys.com jared@sandiegoconsumerattorneys.com - and - Patric A. Lester, Esq. CONSUMER ATTORNEY ADVOCATES, INC. 5694 Mission Center Road, #358 San Diego, CA 92108 Phone: (619) 665-3888 Fax: (314) 241-5777 Email: pl@lesterlaw.com MAGNA LEGAL: Guynn-Neupane Seeks to Certify Class & Subclass ------------------------------------------------------------ In class action lawsuit captioned as NAOMI GUYNN-NEUPANE on behalf of herself and all similarly situated employees, v. MAGNA LEGAL SERVICES, LLC; WILKINS RESEARCH SERVICES, LLC; and DOES 1 through 50, inclusive, Case No. 5:19-cv-02652-VKD (N.D. Cal.), the Plaintiff will move the Court on October 20, 2020 for an order: 1. certifying the following Class and Subclass: "all individuals who participated as a research participant in any in-person research sessions, online research sessions, and/or exploratory focus groups for Defendant Magna Legal Services, LLC in California, at any time between April 10, 2015, through the present (the "Class"); and "all Class members who were recruited through Defendant Wilkins Legal Services, LLC, at any time between April 10, 2015, through the present (the "Sub-Class"); and 2. finding the Plaintiff Naomi Guynn-Neupane to be an adequate representative and certifying her as the class representative and finding Plaintiff's counsel, namely Larry W. Lee and Mai Tulyathan of Diversity Law Group, P.C., B. James Fitzpatrick and Laura L. Franklin of Fitzpatrick & Swanston as adequate class counsel. Magna Legal Services, LLC provides legal services. Wilkins Research Services, LLC was established in 1971, and is a privately held data collection center dedicated to market research. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/3hMo4Cl at no extra charge.[CC] Attorneys for Plaintiff, the Class, and Aggrieved Employees are: Larry W. Lee, Esq. Mai Tulyathan, Esq. DIVERSITY LAW GROUP, P.C. 515 South Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com ktulyathan@diversitylaw.com - and - B. James Fitzpatrick, Esq. Charles Swanston, Esq. Laura Franklin, Esq. FITZPATRICK & SWANSTON 555 S. Main Street Salinas, CA 93901 Telephone: (831) 755-1311 Facsimile: (831) 755-1319 E-mail: bjfitzpatrick@fandslegal.com cswanston@fandslegal.com lfranklin@fandslegal.com MARION COUNTY, FL: Court Denies Motion to Certify Class ------------------------------------------------------- In the class action lawsuit captioned as CHARLES JOHNSON, v. BILLY WOODS, SHERIFF MARION COUNTY, FLORIDA, Case No. 5:20-cv-00407-RBD-PRL (M.D. Fla.), the Hon. Judge Roy B. Dalton entered an order: 1. denying the Petition for Writ of Habeas Corpus dismissing the case; 2. denying the Motion for Temporary Restraining Order; 3. denying the Motion to Certify Class; 4. directng the Clerk to close the case; and 5. directing the Clerk to send Petitioner a blank Civil Rights Complaint form. If the Petitioner chooses to initiate another action, he should not place this case number on the form because the Clerk will assign a separate case number upon receipt. The Court held that, as a pro se, non-lawyer litigant, the Petitioner may not represent other inmates in this federal civil action. See Hand v. Bibeault, 400 F. App'x 526, 528 (11th Cir. 2010) ("A non-attorney who is authorized to bring suit on behalf of a party may not appear pro se as that party's 'legal counsel.'"); M.D. Fla. R. 2.01(a) ("No person shall be permitted to appear or be heard as counsel for another in any proceeding in this Court unless first admitted to practice in the Court.”). See also Johnson v. Brown, 581 F. App'x 777, 781 (11th Cir. 2014) (affirming denial of a pro se inmate's motion for class certification on the grounds that an inmate cannot bring an action on behalf of others (citing Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008))). The Petitioner's Motion to Certify Class is denied. The Petitioner claims the Respondent is acting with deliberate indifference in response to the serious risk COVID-19 poses to medically vulnerable inmates. The Petitioner alleges there is a "systemic failure" by Respondent to identify and protect individuals of the "medically vulnerable subclass". The Marion County Sheriff's Office provides professional law enforcement to the citizens of Marion County. A copy of the Court's Order denying Motion to Certify Class is available from PacerMonitor.com at https://bit.ly/2FIjHLa at no extra charge.[CC] MAYO CLINIC: Kuhr Suit Seeks to Certify Settlement Classes ---------------------------------------------------------- In the class action lawsuit captioned as NATALIE KUHR, on behalf of herself and all others similarly situated, v. MAYO CLINIC JACKSONVILLE, a Florida not for profit corporation and PROFESSIONAL SERVICE BUREAU, INC., a Foreign corporation, Case No. 3:19-cv-00453-MMH-MCR (M.D. Fla.), the Plaintiff asks the Court for an order: 1. conditionally certifying a class action for settlement purposes only: MAYO Class: "all Florida Residents who according to readily accessible data and other electronic records of MAYO, at any time during the period of January 9, 2017 through May 28, 2020, were charged by the Defendant MAYO medical-related fees related to motor vehicle accidents in excess of the amount allowed under Florida law"; and Fair Debt Collection Practices Act Subclass: "all Florida Residents who according to readily accessible data and other electronic records of MAYO and PSB, at any time during the period of January 9, 2018 through May 28, 2020, were charged by Defendant PSB acting on MAYO's behalf medical-related fees related to motor vehicle accidents in excess of the amount allowed under Florida law." The following people are excluded from the Classes: 1) any Judge or Magistrate presiding over this action and members of their families; 2) Defendants, Defendants' subsidiaries, parents, successors, predecessors, and any entity in which Defendants or their parents have a controlling interest and its current or former employees, officers and directors; 3) persons who properly execute and file a timely request for exclusion from the Classes; 4) the legal representatives, successors, or assigns of any such excluded persons; 5) Plaintiff's counsel and Defendants' counsel. There are three hundred and seventy- one (371) settlement class members. 2. preliminarily approving the Parties' proposed Revised Settlement Agreement; 3. appointing the Plaintiff as Class Representative and Plaintiff's counsel as Class Counsel for settlement purposes; 4. establishing a schedule to complete the tasks necessary to effectuate the proposed settlement; and 5. providing that if the Settlement Agreement is not finally approved (or terminates for any reason), all parties shall retain, without prejudice, all objections, arguments, and defenses with respect to class certification The Total Settlement Amount is $1,015,502.20, including $515,502.58 in Refunds and Waivers. Settlement Class Members who were charged amounts in excess of the amount allowed under section 627.736(5)(a)(4), Fla. Stat, have already received 100% of those funds refunded or waived. In other words, each Settlement Class Member will receive 100 cents on the dollar for actual damages sustained. In addition to a refund of any actual damages, Settlement Class Members will automatically receive a pro-rata portion of a $500,000.00 Statutory Damage Fund. This is the maximum amount of statutory damages permitted in a FCCPA or FDCPA class action. In this Action, Ms. Kuhr alleges that she and the proposed Settlement Class were the subject of illegal medical billing practices or "balance billing. Put simply, Ms. Kuhr alleges that Defendant Mayo collected and/or attempted to collect medical bills that were in excess of the amount permitted by Florida law. Balance Billing refers to when a medical provider, in this case Mayo, attempts to bill more than twenty percent (20%) of the schedule of maximum charges and charges patients the balance between the Billed Amount and the Insurance Payment. The Complaint alleges that this conduct violated the Florida Consumer Collection Practices Act, and the Fair Debt Collection Practices Act (FDCPA), and seeks statutory damages, attorneys' fees, and litigation costs from Defendant. A copy of plaintiff's renewed unopposed motion for preliminary approval of class action settlement, certification of the settlement class, and approval of class notice is available from PacerMonitor.com at https://bit.ly/2ZFwjtI at no extra charge.[CC] The Plaintiff is represented by: Jordan A. Shaw, Esq. Kimberly A. Slaven, Esq. ZEBERSKY PAYNE SHAW LEWENZ, LLP 110 Southeast 6th Street, Suite 2150 Fort Lauderdale, FL 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 E-mail: jshaw@zpllp.com kslaven@zpllp.com mperez@zpllp.com MDL 2179: Summary Judgment Bid in Oil Spill Suit Partly Granted --------------------------------------------------------------- In In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf Of Mexico, on April 20, 2010, SECTION: J. Applies to: Remaining Cases in the B3 Pleading Bundle, MDL No. 2179 (E.D. La.), Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana granted in part and denied in part BP's Motion for Summary Judgment on B31 Claims Released Under the Medical Benefits Class Action Settlement Agreement. In 2012, after months of negotiations, BP America Production Co. and BP Exploration & Production Inc., reached a class-wide settlement, the Medical Benefits Class Action Settlement Agreement, with many individuals allegedly injured by exposure to chemicals released from the Macondo Well and/or used to combat the oil spill. The Court preliminarily approved the Settlement on May 2, 2012. Following a notice, objection, and opt-out period, the Court certified the Medical Benefits Settlement Class and approved the Settlement on Jan. 11, 2013. The class is defined in relevant part as all natural persons who worked as "Clean-Up Workers" at any time between April 20, 2010 and April 16, 2012. The Settlement defines "Clean-Up Workers" as: All natiral persons who performed Response Activities, including: 1. Captains, crew, and other workers employed under the Vessels of Opportunity (VoO) program who performed Response Activities; 2. Workers employed to perform the decontamination of vessels involved in Response Activities; 3. Captains, crew, and other workers on vessels other than VoO who performed Response Activities; 4. Onshore personnel employed to perform Response Activities; and 5. Persons involved in the recovery, transport, and decontamination of wildlife affected by the Deepwater Horizon incident. Furthermore, "Response Activities" is defined as: the clean-up, remediation efforts, and all other responsive actions (including the use and handling of dispersants) relating to the release of oil, other hydrocarbons, and other substances from the MC252 WELL and/or the Deepwater Horizon and its appurtenances that were done under the auspices of the Unified Command, BP, or a federal, state, or local authority. The Class members who did not want to be bound by the terms of the Settlement could exclude themselves by mailing an opt-out request to the Claims Administrator by Nov. 1, 2012. The Class members who did not opt out of the Settlement were barred from commencing, asserting, and/or prosecuting any and all "Released Claims" against any "Released Party," as those terms are defined in the Settlement. Indeed, the Court has previously dismissed claims that were released by the Settlement. In accordance with the Court's instruction, BP filed a motion for summary judgment against 11 Plaintiffs (Ricky Robin, Jr. (No. 17-03383), Tiffany Lee (No. 16-13874), Craig Burkett (No. 17-03681), Thomas Bodiford (No. 17-03341), Lillie Coleman (No. 17-03130), Jordan Dixey (No. 17-04321), Joseph Bruton (No. 17-03110), Nakia Scott (No. 17-03609), Guy Wallace (No. 17-01039), Ervin Pough (No. 17-04164), and Christopher Green (No. 17-03191) it believes are class members and whose claims were released by the Settlement. BP's motion is based in part on the Plaintiffs' Particularized Statements of Claim ("PSOC"), which were provided in 2018 pursuant to the Pretrial Order No. 66 ("PTO 66") process. The PSOC required the Plaintiff to provide information regarding, among other things, whether the Plaintiff performed oil spill cleanup work, the nature of the cleanup work, the circumstances of the Plaintiff's exposure to chemicals, and the nature of the plaintiff's claimed injuries. The PSOC included an attestation where the Plaintiff declared under penalty of perjury that the responses to the PSOC were true and correct. BP's motion also relies upon a 2018 report from the Settlement's Claims Administrator provided to the Court, BP, and the Plaintiffs' Steering Committee ("GRG Report"). The GRG Report lists the remaining Plaintiffs in the B3 bundle for whom the Claims Administrator did not have a valid and timely opt-out request. The Plaintiffs targeted by BP's motion are listed in the GRG Report. Ten of the 11 Plaintiffs filed responses to BP's motion. Judge Barbier granted in part and denied in part BP's Motion for Summary Judgment. He released the claims by the following Plaintiffs by the Medical Benefits Class Action Settlement Agreement and dismissed with prejudice: Ricky Robin, Tiffany Monicque Lee, Craig M. Burkett, and Christopher Green. Among other things, Judge Barbier finds that Robin's attorneys filed a response stating that Robin initially opted out of the Settlement but later revoked his opt out. Robin's attorneys state they have been unable to communicate with Robin, and they do not oppose BP's motion. Regarding Lee, Lee did not file a response to BP's motion. According to the GRG Report, Lee did not opt out of the Settlement. Accordingly, there is no material dispute that Lee is a class member and her claim was released by the Settlement. As to Burkett, who is pro se, he does not dispute that he is a class member whose personal injury claim was released by the Settlement. Instead, Burkett argues that he was not given proper notice that he needed to opt out of the Settlement. However, Burkett admits that notice was sent to the law firm that represented his Vessel of Opportunity claim (although Burkett points out that the firm did not represent his personal injury claim). Thus, Burkett had actual notice through his counsel, which satisfies due process. Furthermore, Judge Barbier has determined that the Settlement's notice satisfied the requirements of Due Process, Rule 23, and the Class Action Fairness Act. Finally, regarding Green, an affidavit from his attorney states, because Green worked offshore and was often unavailable to sign documents and conduct other business related to his filed claim, he appointed his mother with General Power of Attorney. Because Green was not a minor, did not lack capacity or was incompetent, and was alive, he was required to sign the opt-out himself. Therefore, there is no genuine dispute that Green's opt-out was invalid. The Clerk of Court is directed to file in 10-md-2179 and in the four cases dismissed by the Order. The Clerk will mail a copy of the Order to Craig M. Burkett, who is pro se. A full-text copy of the Court's Sept. 2, 2020 Order & Reasons is available at https://tinyurl.com/y3rg5aet from Leagle.com. MDL 2862: Filing of Second Amended Consolidated Antitrust Suit OK'd ------------------------------------------------------------------- Judge Donetta W. Ambrose of the U.S. District Court for the Western District of Pennsylvania granted the Plaintiffs' Motion for Leave to File Consolidated Second Amended Class-Action Complaint In IN RE: DIISOCYANATES ANTITRUST LITIGATION. This Document Relates to All Cases, Docket Misc. No. 18-1001, MDL No. 2862 (W.D. Pa.). The Plaintiffs filed a Motion seeking leave to amend the Class Action Complaint (CAC) to add an additional named Plaintiff, American Polymers Corp. The Defendants filed a Memorandum in Opposition asserting that the Motion should be denied because the Plaintiffs' actions constitute undue delay, and that the Motion is partially futile and substantially prejudices them. Thereafter, the Plaintiffs filed a Reply. The antitrust litigation was initiated on Oct. 10, 2018 and involves diisocyanates. The Plaintiffs' CAC alleges the Plaintiffs purchased diisocyanates from the Defendants. More specifically, the CAC discusses the purchase of both MDI (methylene diphenyl diisocyanate) and TDI (toluene diisocyanate). The Defendants moved to dismiss the TDI allegations arguing, inter alia, that the Plaintiffs lacked standing to bring the same. In response, the Plaintiffs stated that they purchased both MDI and TDI from the Defendants at inflated prices in the CAC. On June 11, 2020, the Plaintiffs discovered that none of the named Plaintiffs have records of any purchase of TDI from a Defendant during the Class Period. According to them, it was a "misunderstanding" based on "client representations to the counsel." On July 5, 2020, the Plaintiffs informed the Defendants of the same and sought consent to add American Polymers, a putative class Plaintiff, as a named Plaintiff. The Defendants assert the Motion to Amend should be dismissed due to undue delay. Upon review of the submissions of the parties, Judge Ambrose finds that though it would have been preferable for the Plaintiffs to have uncovered their "misunderstanding" previously, she does not find bad faith or undue delay. Within 30 days of discovering the misunderstanding, the Plaintiffs informed the Defendants. While the Defendants assert that the Plaintiffs should have discovered their "misunderstanding" at various prior junctures, it does not alter the fact that the case is still in its early stages. Discovery has just recently begun. Jurisdictional discovery with foreign Defendants is ongoing. Deadlines for challenges to class certification pursuant to Rule 23 have not been set. No trial date has been contemplated or set. Additionally, she notes that TDI products have been a part of the action from the very outset of this multi-district litigation. Consequently, amendment should not materially delay any current schedule. The Defendants further assert that the amendment is partially futile because it is barred by the statute of limitations and because it does not cure the jurisdictional defects as to the foreign Defendants. Judge Ambrose disagrees. The touchstone of relating back is fair notice. The Defendants suggest that the Court's inquiry must go further and consider Rule 15(c)(1)(C) in accordance with Nelson v. City of Allegheny. Nelson involved a motion to amend that was filed after class certification had been denied. That is not the case in the matter. Thus, the Judge finds the Defendants' reliance on the same is misplaced. The Plaintiffs are not attempting to inject a new unanticipated claim or assert a new theory. From the outset they have pursued claims related to diisocyanates, including TDI. As evidenced by the proposed amendment, the Plaintiffs merely seek to add a named Plaintiff from a putative class member and assert the identical claims. Additionally, the Defendants do not suggest that the Plaintiffs' CAC is untimely. Based on the same, Judge Ambrose finds the claim relates back to the filing of the class action. Therefore, the Plaintiffs' requested amendment would not be barred by the statute of limitations, and, thus, not futile. Finally, the Defendants assert that they will be "substantially prejudiced" by the proposed amendment because they should not have to litigate allegations that should never have been brought and should have been dismissed several months ago resulting in wasted time and resources. To the contrary, the Defendants have had notice all along that TDI (as a diisocyanate) is part of the alleged conspiracy. As set forth, it is a not new claim. Time and resources spent, therefore, are not wasted. Moreover, permitting the amendment should not materially delay the current discovery schedule as it does not change the nature of claims asserted against the Defendants. Based on the foregoing, Judge Ambrose granted the Plaintiffs leave to file a Second Amended CAC to add American Polymers as an additional named Plaintiff. The Plaintiffs Second Amended CAC only will include the following new allegation at Paragraph 24A: "Plaintiff American Polymers Corp. is a California corporation with its principal place of business in Santa Fe Springs, California. American Polymers Corp. purchased in the United States one or more of the products at issue directly from one or more of the Defendants during the Class Period and was injured in its business or property by reason of Defendants' alleged violations of the Sherman Act." In accordance with the Order granting the Plaintiffs leave to file their Second Amended CAC under seal, the Plaintiffs may file their Second Amended CAC under seal. "The Defendants are permitted, but need not, file responsive pleadings to the Second Amended CAC by Sept. 24, 2020. If no responsive pleading is filed to the Second Amended CAC, the Defendants' Answers to the CAC will be deemed to have been filed in response to the Second Amended CAC, in which case the Defendants will be deemed to have denied the allegations of paragraph 24A of the Second CAC," Judge Ambrose held. The Plaintiffs will provide the information required under Section 4(c) of the Stipulated Order re: Discovery of Electronically Stored Information for Plaintiff American Polymers within 21 days of the Order. They will collect and provide the Defendants with the data field maintained by Plaintiff American Polymers, and a sample of the requested fields within 30 days of the Order. A full-text copy of the Court's Sept. 4, 2020 Memorandum Opinion & Order is available at https://tinyurl.com/y59yuq5s from Leagle.com. MICHAEL DEMAYO: Court Denies Bid to Strike Class Claims in Hatch ---------------------------------------------------------------- In the case, JONATHAN HATCH, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. MICHAEL A. DEMAYO, et al., Defendants, Case No. 1:16CV925 (M.D. N.C.), Judge Loretta C. Biggs of the U.S. District Court for the Middle District of North Carolina, denied the motion to strike the operative complaint's class allegations, filed by all but two of the named Defendants, pursuant to Federal Rule of Civil Procedure 12(f). In the putative class action, the Plaintiffs allege that the Defendants violated the Driver's Privacy Protection Act of 1994 ("DPPA"), by obtaining their names and addresses from automobile accident reports and using that information for marketing purposes. Before the Court is the Moving Defendants' motion to strike the operative complaint's class allegations. As framed in the briefs, the instant motion presents a single, narrow question: whether the text of the DPPA contains a statutory bar prohibiting aggregated or class action litigation. In relevant part, the DPPA provides that a person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter will be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court. According to the Moving Defendants, this language creates an exclusive "statutory privity," running only between a defendant (who improperly obtained, disclosed, or used personal information) and a plaintiff ("to whom the information pertains"), which precludes any and all representative actions. Judge Biggs disagrees. Congress knows how to create exceptions to Rule 23's general authorization of class actions -- it did not create one in the case. Nor does it matter that the DPPA fails to expressly permit class actions, as the Moving Defendants argue. If the Court were to accept the Moving Defendants' reading, class representation would be unavailable in any suit arising out of a statute that provides for an individualized private cause of action where such statute does not explicitly authorize a class action. Yet class actions for violations of such statutes are routinely maintained even though the statute itself does not explicitly provide for such action. In short, the Judge finds no basis for the Moving Defendants' contention that the language of the DPPA precludes class actions, as a general matter. That is not to say, of course, that the classes and subclasses proposed in the suit are certifiable; the Judge will make that determination separately. Thus, the Judge denied the Moving Defendants' Motion to Strike Class Allegations. A full-text copy of the District Court's June 26, 2020 Memorandum Opinion & Order is available at https://bit.ly/3lN5vk4 from Leagle.com. MICHIGAN: Wash. Dist. Court Dismisses Young Prisoner Suit --------------------------------------------------------- In the case, DEMARCUS T. YOUNG, Plaintiff, v. GRETCHEN WHITMER et al., Defendants, Case No. 2:20-cv-68 (W.D. Wash.), Judge Robert J. Jonker of the U.S. District Court for the Western District of Michigan, Northern Division, dismissed the Plaintiff's complaint for failure to state a claim. The case is a civil rights action brought by a state prisoner under 42 U.S.C. Section 1983. The Plaintiff is presently incarcerated with the Michigan Department of Corrections ("MDOC") at the Chippewa Correctional Facility ("URF") in Kincheloe, Chippewa County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Gov. Whitmer, MDOC Director Heidi Washington, and Warden Connie Horton. The Plaintiff lists Maurice Haynes and Charles E. Payton as Plaintiffs in the case. However, Haynes and Payton failed to sign the complaint. Therefore, they are not parties to the action. The Plaintiff also attaches a list of names and signatures of other prisoners to his complaint as an exhibit. He states that these prisoners are joining him in the action and states that he is reserving the right to modify the classes of prisoners he is including in his complaint. However, the Plaintiff does not include the names or reference the prisoners in the body of his complaint. Nor did any other prisoner file an application to proceed IFP. The list itself does not declare that the signatories are Plaintiffs. Instead it appears that the Plaintiff is attempting to file a class action in which he seeks to represent the rights of vulnerable prisoners within the MDOC. The Plaintiff alleges that he is a medically vulnerable prisoner and that he and other prisoners have raised their concerns regarding the danger of infection from COVID-19 with their Unit Block Representative. However, Plaintiff Young does not allege any specific facts regarding his age or any preexisting medical conditions. According to the MDOC's Offender Tracking System ("OTIS"), he was born on June 18, 1991, and is currently 29 years old. He is 5 feet and 9 inches tall and weighs 179 pounds. The Plaintiff states that on March 10, 2020, the Michigan Department of Health and Human Services identified the first two positive cases of COVID-19 in Michigan. On the same date, Gov. Whitmer issued an executive order declaring a state of emergency, which stated that the best way to prevent the spread of COVID-19 is to maintain a distance of 6 feet between other people, to wear masks, and to frequently clean hands and surfaces. The Plaintiff alleges that although the MDOC has instituted certain procedures to protect inmates, they do not adequately protect prisoners. He states that ventilation, heating, cleaning and sanitary supplies, personal hygiene supplies, personal protective equipment, and the ability to socially distance are all inadequate. The Plaintiff states that the Defendants failure to properly address the continued danger of contracting COVID-19 violates his due process rights under the Fifth and Fourteenth Amendments, and his Eighth Amendment right to be free from cruel and unusual punishment. He seeks early release from prison for eligible prisoners, home confinement and community placement for other prisoners, and modified prison environment to allow for social distancing. He also seeks adequate cleaning and personal hygiene supplies. Finally, the Plaintiff seeks compensatory and punitive damages. First, because Plaintiff is an incarcerated pro se litigant, Judge Jonker finds that he is not an appropriate representative of a class. Therefore, he denies the Plaintiff's request for class certification. Second, to the extent that the Plaintiff is seeking to be released from prison, he is not entitled to relief under Section 1983. A challenge to the fact or duration of confinement should be brought as a petition for habeas corpus and is not the proper subject of a civil rights action brought pursuant to Section 1983. Therefore, to the extent that the Plaintiff's complaint challenges the fact or duration of his incarceration, it must be dismissed. Third, the Plaintiff's allegations do not rise to the level of an Eighth Amendment violation. The Judge finds that the Plaintiff does not allege that he has come into contact with any individual who has COVID-19. The MDOC has taken extensive steps to address the risk of COVID-19 to inmates statewide. Such actions demonstrate the opposite of a disregard of a serious health risk. Although the Court is sympathetic to the Plaintiff's general concern about the COVID-19 virus, he has failed to allege facts showing that th eDefendants' handling of the COVID-19 crisis violated his Eighth Amendment rights. Finally, the Plaintiff has filed a motion for a temporary restraining order seeking immediate release to home confinement. However, because the Plaintiff has failed to state a claim upon which relief may be granted, his motion is properly denied as moot. Having conducted the review required by the Prison Litigation Reform Act, Judge Jonker concludes that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). He must next decide whether an appeal of the action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). He does not certify that an appeal would not be in good faith. Should the Plaintiff appeal his decision, Judge Jonker will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. The Opinion is a dismissal as described by 28 U.S.C. Section 1915(g). A judgment consistent with the Opinion will be entered. A full-text copy of the Court's Sept. 9, 2020 Opinion is available at https://tinyurl.com/y8nv5x32 from Leagle.com. MONTGOMERY, AL: McCullough et al. Seek to Certify Three Classes --------------------------------------------------------------- In the class action lawsuit captioned as ANGELA MCCULLOUGH et al., on behalf of themselves, individually, and on behalf of a class of all others similarly situated, v. THE CITY OF MONTGOMERY, ALABAMA and JUDICIAL CORRECTION SERVICES, INC., a corporation, Case No. 2:15-cv-00463-RCL-SMD (M.D. Ala.), the Plaintiffs ask the Court for an order: 1. certifying these three Classes under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure: Bearden Class, consisting of: "all individuals the Montgomery Municipal Court placed on JCS-supervised probation, who: (1) had debt commuted to jail time in a JCS-supervised case after JCS petitioned the court to revoke probation; and (2) served any of that jail time on or after July 1, 2013"; False Imprisonment Class, consisting of: "all individuals the Montgomery Municipal Court placed on JCS-supervised probation, who: (1) had debt commuted to jail time in a JCS-supervised case after JCS petitioned the court to revoke probation; and (2) served any of that jail time on or after July 1, 2009"; and Abuse of Process Class, consisting of : "all individuals the Montgomery Municipal Court placed on JCS-supervised probation: (1) who at any time paid less than the minimum monthly payment ordered by the court; and (2) from whom JCS continued to collect or attempt to collect after July 1, 2013"; 2. appointing the Plaintiffs Agee and McCullough as representatives of the Bearden Class; Plaintiffs Agee, McCullough, Edwards, Johnson, Jones, and Mooney as representatives of the False Imprisonment Class; and Plaintiff Caldwell as representative of the Abuse of Process Class; and 3. appointing the National Center for Law and Economic Justice, Dentons LLP, Chestnut, Sanders & Sanders LLC, and Martha Morgan as counsel for the Classes. Montgomery is the capital city of Alabama. Judicial Correction Services, Incorporated is a privately held probation company established in 2001 and based in Georgia. A copy of the Plaintiffs' motion for class certification is available from PacerMonitor.com at https://bit.ly/3iSHzun at no extra charge.[CC] The Plaintiffs are represented by: Gregory Lee Bass, Esq. Britney Wilson, Esq. Claudia Wilner, Esq. NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE 275 Seventh Avenue, Suite 1506 New York, NY 10001 Telephone: (212) 633-6967 E-mail: bass@nclej.org wilson@nclej.org wilner@nclej.org - and - Martha I. Morgan, Esq. 8800 Lodge Lane Cottondale, AL 35453 Telephone: (205) 799-2692 E-mail: mimorgan@yahoo.com - and - Faya Rose Toure, Esq. Henry Sanders, Esq. CHESTNUT, SANDERS & SANDERS LLC P.O. Box 1290 Selma, AL 36702 Telephone: (334) 526-4531 Facsimile: (334) 526-4535 E-mail: fayarose@gmail.com gpompey@csspca.com MONTGOMERY, AL: Singleton Seeks Class Certification --------------------------------------------------- In class action lawsuit captioned as JONATHAN SINGLETON, RICKY VICKERY, and MICKI HOLMES, on behalf of themselves and others similarly situated, v. CITY OF MONTGOMERY, ALABAMA, HAL TAYLOR, in his official capacity as Secretary of the Alabama Law Enforcement Agency, and DERRICK CUNNINGHAM, in his official capacity as Sheriff for Montgomery County, Case No. 2:20-cv-00099-WKW-JTA (M.D. Ala,), the Plaintiffs Micki Holmes, Jonathan Singleton, and Ricky Vickery move the Cout for certification of and seek to represent a Class, which is proposed to be defined as: "all individuals who will in the future (1) stand on a public street for the purpose of soliciting employment, business, or contributions from the occupant of a vehicle, or (2) loiter, remain, or wander in a public place for the purpose of begging." Montgomery is the capital city of Alabama. A copy of the Plaintiffs' motion for class certification is available from PacerMonitor.com at https://bit.ly/3myObjX at no extra charge.[CC] The Plaintiffs are represented by: Micah West, Esq. Ellen Degnan, Esq. SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 Telephone: (334) 956-8200 Facsimile: (334) 956-8481 E-mail: ellen.degnan@splcenter.org micah.west@splcenter.org - and - Clara Potter, Esq. SOUTHERN POVERTY LAW CENTER 201 St. Charles Avenue, Suite 2000 New Orleans, LA 70170 Telephone: (504) 486-8982 Facsimile: (504) 486-8947 E-mail: clara.potter@splcenter.org - and - Randall C. Marshall, Esq. ACLU FOUNDATION OF ALABAMA P.O. Box 6179 Montgomery, AL 36106 Telephone: (334) 265-2754 E-mail: rmarshall@aclualabama.org - and - Tristia Bauman, Esq. NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY 2000 M Street NW, Suite 210 Washington, D.C., 20036 Telephone: (202) 638-2535 Facsimile: (202) 638-2737 E-mail: tbauman@nlchp.org The Defendants are represented by: Robert D. Segall, Esq. Shannon L. Holliday, Esq. Wallace D. Mills, Esq. COPELAND FRANCO SCREWS & GILL P.A. 444 South Perry Street Montgomery, AL 36104 - and - Jeremy S. Weber, Esq. James W. Davis, Esq. OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, AL 36130 - and - Thomas T. Gallion, III, Esq. Constance C. Walker HASKELL SLAUGHTER GALLION & WALKER, LLC 242 Winton Blount Loop Montgomery, AL 36117 MRS BPO: Can't Compel Arbitration in Ioane TCPA/FDCPA Suit ---------------------------------------------------------- In the case, SHANE IOANE, on behalf of himself and all others similarly situated, Plaintiff, v. MRS BPO, LLC a/k/a MRS ASSOCIATES OF NEW JERSEY, Defendant, Civil No. 20-00040 JAO-WRP (D. Haw.), Judge Jill A. Otake of the U.S. District Court for the District of Hawaii denied the Defendant's Motion to Compel Arbitration. Plaintiff Ioane brings the action against the Defendant alleging that it violated the Telephone Consumer Protection Act ("TCPA") and the Fair Debt Collection Practices Act ("FDCPA") by sending him various text messages in connection with a debt he allegedly owed. In 2016, the Plaintiff opened an account with Verizon Wireless and, in connection with doing so, signed a Receipt of Transaction. YThe Receipt of Transaction contains a section labeled "Agreements (View full agreement at vzw.com/myverizon)" with a subsection entitled "Customer agreement" that provides: "I agree to the Verizon Wireless Customer Agreement including, settlement of disputes by arbitration instead of jury trial." The Defendant attests that a true and correct copy of the relevant Customer Agreement contains the arbitration clause. In 2019, Verizon placed the Plaintiff's past due account with the Defendant and the Defendant attempted to collect the Plaintiff's debt on Verizon's behalf. According to the allegations in the Plaintiff's Complaint, the Defendant sent text messages to him without his prior express consent on five occasions. The text messages asked the Plaintiff to contact the Defendant regarding a Verizon Wireless matter, indicated they were an attempt to collect a debt, and identified the Defendant as a debt collector. The Plaintiff contends these text messages constitute violations of the TCPA because the Defendant used an automatic telephone dialing system within the meaning of the TCPA to send generic, impersonal text messages aimed at a mass audience without his prior express consent. He further contends that, although the Defendant communicated with him at least five times, he never received a notice of his right to dispute the debt, in violation of the FDCPA. The Plaintiff claims that the Defendant engaged in similar conduct in violation of these federal statutes with regard to thousands of other persons, and thus also seeks to bring these claims on a classwide basis. The Plaintiff filed a Class Action Complaint against the Defendant bringing the following claims: First Cause of Action - violation of the TCPA; Second Cause of Action - violation of the FDCPA. The Defendant filed a Motion to Compel Arbitration and stay the case pending arbitration, which the Plaintiff opposes. Judge Otake finds that the Plaintiff's TCPA and FDCPA claims rely on and are founded in federal consumer protection statutes, not his Customer Agreement with Verizon. The allegations in the Complaint object to receiving text messages from the Defendant and not receiving information regarding how to dispute an alleged debt; they do not reference any term of the Customer Agreement, allege any violation of it, or seek to enforce or benefit from any of its terms. The Defendant thus has not shown that the Plaintiff must rely on the terms of the Customer Agreement in asserting his claims against it. As the Plaintiff notes, district courts outside the Ninth Circuit have similarly held that TCPA and FDCPA claims do not rely on the terms of a written agreement even if the claims presume the existence of such an agreement, such as for the purpose of noting the existence of a debt. In fact, the Defendant cites no case where a court compelled a plaintiff to arbitrate TCPA or FDCPA claims against a nonsignatory after concluding that the claims relied on the terms of an agreement. Instead, most of the cases the Defendant cites in favor of compelling arbitration involved suits against Verizon, i.e., a party to the contract, and addressed whether statutory claims fell within the scope of an arbitration clause -- rather than whether a nonsignatory had standing to compel arbitration. The only instance Defendant raises where a court allowed a nonsignatory debt collector to compel arbitration against a Verizon customer, is distinguishable because the Defendant cites it for the proposition that a nonsignatory "acting on behalf of" a signatory is "permitted to compel arbitration." But under Hawai'i law, a nonsignatory may not invoke an arbitration clause merely because of its status as an agent of one of the signatories. Instead, a nonsignatory agent may invoke the arbitration clause only if the claims against him are dependent on the agreement in which the arbitration clause appears -- which the Defendant has not shown. For these reasons, Judge Otake concludes that the Defendant's Motion must be denied, and he therefore need not address the Plaintiff's other arguments. Accordingly, the Court denied the Defendant's Motion to Compel Arbitration. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/yyh2pxl6 from Leagle.com. MUTUAL FUND: Emerson Suit Settlement Gets Final Court Approval -------------------------------------------------------------- In the case, ROGER EMERSON, MARY EMERSON, ROBERT CAPLIN and MARTHA J. GOODLETT, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. MUTUAL FUND SERIES TRUST, CATALYST CAPITAL ADVISORS LLC, NORTHERN LIGHTS DISTRIBUTORS LLC, JERRY SZILAGYI, TOBIAS CALDWELL, TIBERIU WEISZ, BERT PARISER, and ERIK NAVILOFF, Defendants, Civil Action No. 2:17-cv-02565-SJF-SIL (E.D. N.Y.), Judge Sandra J. Feuerstein of the U.S. District Court for the Eastern District of New York finally approved the Class Action Settlement. The matter came before the Court pursuant to the Order Granting Preliminary Approval of Class Action Settlement, Approving Form and Manner of Notice, and Setting Date for Hearing on Final Approval of Class Action Settlement, entered March 30, 2020, on the application of the Parties for approval of the settlement set forth in the Stipulation and Agreement of Settlement, dated March 5, 2020. Due and adequate notice having been given to the Settlement Class as required in the Preliminary Approval Order, and the Judge having considered all papers filed and proceedings had therein, affirmed the Court's determinations in the Preliminary Approval Order. Judge Feuerstein finally certified, for purposes of the Settlement only, pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the Settlement Class of: all persons and entities that purchased or otherwise acquired Class A, Class C, and/or Class I shares of the Catalyst Hedged Futures Strategy Fund during the period from Nov. 1, 2014 through June 30, 2017, inclusive, and were allegedly damaged thereby. Judge Feuerstein re-affirmed and finally certified Lead Plaintiffs Eugene Almendinger, Jeffrey Berkowitz, Debra Folk, Earle Folk, Maryann Lovelidge, and Tom Lovelidge as the Class Representatives; and finally appointed the law firms of Labaton Sucharow LLP and Robbins Geller Rudman & Dowd LLP as the Class Counsel. The Court has received and considered the objection to the Settlement filed by Settlement Class Member Robert E. McCarthy. The objection is overruled in its entirety. Pursuant to Federal Rule of Civil Procedure 23(e)(2), Judge Feuerstein approved the Settlement set forth in the Stipulation, and authorized and directed the implementation and performance of all the terms and provisions of the Stipulation, as well as its terms and provisions. All the Released Claims of the Settlement Class, as against the Defendants and the Released Defendant Parties, are dismissed with prejudice. All the Settlement Class Members are forever barred and enjoined from prosecuting any of the Released Claims against any of the Released Defendant Parties. Without further order of the Court, the Parties may agree to reasonable extensions of time to carry out any of the provisions of the Stipulation. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/yaofa9gk from Leagle.com. NATIONAL FREIGHT: Class of Delivery Drivers in Portillo Certified ----------------------------------------------------------------- In the case, JOHN F. PORTILLO et al., individually and on behalf of all others similarly situated, Plaintiffs, v. NATIONAL FREIGHT, INC. and NFI INTERACTIVE LOGISTICS, INC., Defendants, Civil No. 15-7908 (JHR/KMW) (D. N.J.), Judge Joseph H. Rodriguez of the U.S. District Court for the District of New Jersey, Camden Vicinage, granted the Plaintiffs' Motion for Class Certification. The Defendants compose a leading provider of transportation, logistics and distribution services to various clients including, most relevant to the case, Trader Joe's Markets. NFI transports goods between Trader Joe's warehouses and stores up and down the Eastern Seaboard. To fulfill its obligations to Trader Joe's, NFI uses both its own employees and independent contractors as delivery drivers. The Named Plaintiffs in the suit -- Portillo, Rafael Suarez, Martin Duran, German Bencosme, Edin Vargas, Luis A. Hernandez, Josue Paz, and Alvaro Castaneda -- worked for NFI as delivery drivers during the relevant time period (i.e., between June 22, 2019, and the present). Each of them signed an agreement (generally referred to as an "Independent Contractor Agreement" ("ICA") with NFI that classified them as independent contractors rather than employees. The Plaintiffs believe that NFI entered into at least 135 such agreements with who performed deliveries full-time to Trader Joe's stores on the East Coast on NFI's behalf. They allege, on behalf of themselves and others similarly situated, that they were wrongly classified as independent contractors and that as a result of that misclassification, NFI illegally deducted amounts from their compensation in violation of the New Jersey Wage Payment Law" ("NJWPL"). The Defendants used four different ICAs during the relevant time period. In 2009, NFI used an agreement called the "Lessor and Lessee Operating Agreement" ("2009 LLOA"). Beginning at some point in 2010, NFI started using an agreement called the "Independent Contractor Operating Agreement" ("2010 ICOA"). In 2017 and 2019, NFI implemented new versions of the Independent Contractor Operating Agreement ("2017 ICOA" and "2019 ICOA," respectively). Importantly, the 2009 LLOA contains a New Jersey choice of law provision and no forum selection clause ("2009 LLOA Provision"); the 2010 and 2017 Agreements contain a New Jersey choice of law provision and a New Jersey forum selection clause ("2010 ICOA Provision" and "2017 ICOA Provision," respectively); and the 2019 Agreement contains a Texas choice of law provision and a Texas forum selection clause ("2019 ICOA Provision"). According to the Defendants, as of Oct. 18, 2019, five drivers had signed the 2019 Agreement. Other than the choice-of-law clauses, the contents of the various ICAs are materially the same. They required various things from the drivers, including background checks, drug and alcohol testing, the Defendants' exclusive use of the drivers' trucks, utilization of a specific GPS system, acquisition of various forms of insurance, regular inspections by the Defendants, record maintenance, log sheets, toll receipts, and immediate reporting of all accidents, among various other terms. The Defendants also utilized various workplace rules and procedures, including handbooks, codes of conduct, and other written policies that dictated the drivers' activities. The drivers had to put NFI's logo on their trucks and were prohibited from putting another company's logo on them. They were restricted in their ability to work for other companies, both practically (given the amount of hours they worked) and contractually (the Defendants had to give written consent). In practice, the drivers would report at least once per day to a Trader Joe's warehouse in either Nazareth or Hatfield, Pennsylvania, locations where the Defendants have offices and on-site staff. Their deliveries and routes were pre-determined by the Defendants, including the times that they had to be made. The Defendants were able to monitor drivers' progress via the GPS system mentioned. Failure to follow the procedures, rules, policies, and schedules set out by the Defendants could result in their employees disciplining the drivers. Finally, the Defendants had the authority to make various deductions from the drivers' weekly paychecks. Deductions included costs for the GPS device, damages to goods or property, fuel, insurance, and other things. The crux of the Plaintiffs' case is their allegation that these deductions were taken illegally by the Defendants. This relies on a finding that the Plaintiffs were in fact employees, and not independent contractors, under the NJWPL, which would make such deductions illegal. In order to rectify their alleged damages, the Plaintiffs filed the suit in the Superior Court of New Jersey Law Division in Camden County on June 19, 2015. On Nov. 5, 2015, the Defendants removed the case to the Court. After nearly three years of litigation -- including discovery issues and denied motions to remand, to dismiss, and for summary judgment -- the Plaintiffs filed the operative Amended Complaint on Aug. 13, 2018. The parties then unsuccessfully attempted to resolve the case via mediation between Nov. 30, 2018, and April 15, 2019. After further discovery issues, the Plaintiffs filed their Motion for Class Certification on Sept. 3, 2019. The Defendants filed their response in opposition on Oct. 18, 2019. The Plaintiffs timely filed their response on Nov. 1, 2019. The Defendants were permitted to file a sur-reply brief on June 30, 2020. The Plaintiffs seek to certify the following class: All individuals who: (1) entered into an independent contractor agreement with NFI, either personally or through a corporate entity; and (2) drove a vehicle on a full-time basis to perform deliveries of goods to Trader Joe's stores anywhere on the East Coast on behalf of NFI at any time since June 22, 2009. The first argument that the Defendants make in their opposition to the Plaintiffs' Motion for Class Certification revolves around what law should apply in the case. In their initial brief, the Plaintiffs refer exclusively to New Jersey law, which they argue applies because of an earlier decision made by the late Hon. Jerome B. Simandle. The Defendants disagree with that interpretation of that Opinion. With respect to the Defendants' arguments that the Court's previous Opinion about choice of law does not apply to anybody beyond Named Plaintiffs, Judge Rodriguez now holds that the Court's previous Opinion does apply to the putative class members, except for those who only signed the 2019 ICOA. The Court's previous decision relied heavily on the fact that the 2009 LLOA, the 2010 ICOA, and the 2017 ICOA all had New Jersey choice-of-law clauses. The 2019 ICOA, conversely, has a Texas choice-of-law clause. This fact drastically changes the Court's previous analysis. The Judge holds that the lack of a New Jersey choice-of-law clause in the 2019 ICOA would change the outcome of the Court's previous decision. A proposed class of five members would not satisfy the numerosity requirement. Because the choice-of-law question is not contested with respect to the drivers who signed the 2019 ICOA, the Judge will refrain from giving an in-depth analysis of what state has the most significant relationship to the circumstances surrounding the drivers who signed the 2019 ICOA. For the purposes of the Motion, he holds that it suffices to say that New Jersey law would not apply to those drivers. The Judge next discusses the requirements of Federal Rule of Civil Procedure 23, which governs class certification. The Judge finds that all of the relevant Rule 23 requirements are met, so he will grant class certification. For the reasons expressed, Judge Rodriguez granted the Plaintiffs' Motion for Class Certification, though he slightly altered the Plaintiffs' proposed class in light of the findings of his Opinion. The following class is certified under Rule 23(b)(3): All individuals who: (1) entered into, either personally or through a corporate entity, an independent contractor agreement with NFI that had a New Jersey choice-of-law clause; and (2) drove a vehicle on a full-time basis to perform deliveries of goods to Trader Joe's stores anywhere on the East Coast on behalf of NFI at any time since June 22, 2009. Full-time basis means having delivered at least 80% of the loads assigned to the contractor. A full-text copy of the District Court's June 30, 2020 Opinion is available at https://bit.ly/3iWS5jC from Leagle.com. NCAA: Freeman Sues Over Effects of Concussion-related Injuries -------------------------------------------------------------- Andre Freeman, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendants, Case No. 20-cv-02085 (S.D. Ind., August 7, 2020), seeks economic, monetary, actual, consequential, compensatory, and punitive damages, past, present and future medical expenses, other out of pocket expenses, lost time and interest, lost future earnings, litigation and attorney fees, prejudgment and post-judgment interest, injunctive and/or declaratory relief and such other and further relief resulting from negligence, fraudulent concealment, breach of express contract, breach of implied contract, breach of third-party express contract and unjust enrichment. Andre Freeman played football for the Slippery Rock University of Pennsylvania from 2009 to 2011, as a defensive back. He suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and gameplay. Freeman now suffers from issues including, but not limited to, migraines, short-term memory loss, loss of impulse control, loss of concentration, depression, emotional instability, and suicidal thoughts. NCAA is an unincorporated association with its principal office located at 700 West Washington Street, Indianapolis, Indiana 46206. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics. Freeman alleges NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries and sub-concussive injuries that resulted from playing college football, but did nothing.[BN] Plaintiff is represented by: Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Tel: (312) 589-6370 Fax: (312) 589-6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. 329 Bryant Street San Francisco, CA 94107 Tel: (415) 212-9300 Fax: (415) 373-9435 Email: rbalabanian@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: efile@raiznerlaw.com NCAA: Gill Sues Over Effects of Concussion-related Injuries ----------------------------------------------------------- Garylyn Gill, on behalf of Robert Gill, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendants, Case No. 20-cv-02095 (S.D. Ind., August 10, 2020), seeks economic, monetary, actual, consequential, compensatory, and punitive damages, past, present and future medical expenses, other out of pocket expenses, lost time and interest, lost future earnings, litigation and attorney fees, prejudgment and post-judgment interest, injunctive and/or declaratory relief and such other and further relief resulting from negligence, fraudulent concealment, breach of express contract, breach of implied contract, breach of third-party express contract and unjust enrichment. Robert Gill played football at the University of Louisiana at Lafayette from 1970 to 1974, as a running back. He suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and gameplay. Gill now suffers from issues including, but not limited to dementia. NCAA is an unincorporated association with its principal office located at 700 West Washington Street, Indianapolis, Indiana 46206. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics. Gill alleges NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries and sub-concussive injuries that resulted from playing college football, but did nothing. Plaintiff is represented by: Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Tel: (312) 589-6370 Fax: (312) 589-6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. 329 Bryant Street San Francisco, CA 94107 Tel: (415) 212-9300 Fax: (415) 373-9435 Email: rbalabanian@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: efile@raiznerlaw.com NCAA: James Sues Over Effects of Concussion-related Injuries ------------------------------------------------------------ Javarris James and Garry Vujanov, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendants, Case No. 1:20-cv-02093 (S.D. Ind., August 10, 2020), seeks economic, monetary, actual, consequential, compensatory, and punitive damages, past, present and future medical expenses, other out of pocket expenses, lost time and interest, lost future earnings, litigation and attorney fees, prejudgment and post-judgment interest, injunctive and/or declaratory relief and such other and further relief resulting from negligence, fraudulent concealment, breach of express contract, breach of implied contract, breach of third-party express contract and unjust enrichment. Javarris James played football at the University of Miami from 2006 to 2010 as a running back while Garry Vujanov played from 1969 to 1973 as a guard and center. Both suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and gameplay. James now suffers from issues including, but not limited to, short-term memory loss, loss of concentration, loss of impulse control, depression, emotional instability, mood swings, and suicidal thoughts while Vujanov suffers from issues including, but not limited to, suicidal thoughts, short-term memory loss, loss of impulse control, loss of inhibition, depression, motor impairment and Parkinson's disease. NCAA is an unincorporated association with its principal office located at 700 West Washington Street, Indianapolis, Indiana 46206. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics. James and Vujanov allege NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries and sub-concussive injuries that resulted from playing college football, but did nothing. Plaintiff is represented by: Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Tel: (312) 589-6370 Fax: (312) 589-6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. 329 Bryant Street San Francisco, CA 94107 Tel: (415) 212-9300 Fax: (415) 373-9435 Email: rbalabanian@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: efile@raiznerlaw.com NESTLE PURINA: Jacquin MMPA Class Suit Remanded to State Court -------------------------------------------------------------- In the case, KELLEN JACQUIN, KRISTEN SPARKS, and GREGORY WATERS, on behalf of themselves and all others similarly situated Plaintiffs, v. NESTLE PURINA PETCARE COMPANY, Defendant, Case No. 4:20-cv-00467-SNLJ (E.D. Mo.), Judge Stephen L. Limbaugh, Jr. of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted the Plaintiff's motion to remand the case to state court. The case began in state court alleging Purina violated the Missouri Merchandising Practices Act ("MMPA") when it falsely represented that its pet food products are safe and without risk to animals despite their products containing "alarming amounts" of glyphosate. The Plaintiffs, who seek to represent a class of similarly situated pet owners, say they purchased Purina's products in Missouri without knowing the products contained harmful substances such as glyphosate; instead, they say they trusted the "Purina Promise" that its products are tested, safe, and come from quality sources. Purina removed the case to the Missouri district court on April 1, 2020 pursuant to the Class Action Fairness Act. The Plaintiffs' motion seeks to remand the case back to state court for a number of reasons, but the controlling issue is the timeliness of their amended complaint. The Plaintiffs say the District Court "is bound to consider" their amended complaint because it was filed in state court prior to the state court receiving notice of removal. Purina, meanwhile, points out that the Plaintiffs did not file and serve the sham amended complaint on Purina prior to Purina filing its notice of removal with the state court. Purina suggests it is a classic "race to the courthouse" tactic designed to correct a "fatal" flaw in the Plaintiffs' original complaint. Judge Limbaugh finds that the case appears to be no different than Anthony v. Runyon, 76 F.3d 210 (8th Cir. 1996). The Plaintiffs filed their amended petition before the notice of removal was filed in state court. Hence the amended petition controls. Although the Eighth Circuit did not require service of the amended petition, as opposed to the mere filing of the amended petition, conceivably the issue was not raised. To be sure, from the perspective of state law, Missouri Supreme Court Rule 43.01 requires that every pleading subsequent to the original petition be served on the opposing party. And from the perspective of federal law, a removing defendant is required to establish the propriety of removal through "a short and plain statement" as supported by a copy of all process, pleadings, and orders served upon such defendant. On the other hand, it is unclear why the Plaintiffs must go to the time and expense of enlisting a process server to re-serve defendant with the amended petition, at least in the context of removal. The removal statute does not address process, pleadings and orders" filed but not yet served. Furthermore, assuming service is required, service arguably was accomplished by the Defendant's counsel's entry of appearance in the state court case simultaneously with counsel's filing of the notice of removal. By the counsel entering appearance, in other words, the counsel -- and the client -- is charged with notice of everything on record in the state court file, and service has thus been effected in that way. It is because an entry of appearance serves the same purpose as if a summons had been served. These considerations are problematic, of course, and the parties have not briefed them. In any event, the Judge is satisfied to follow the precedent in the Anthony case. The Defendant does not dispute that remand is appropriate if the amended petition is the operative pleading. The class then includes Missouri citizens, not Missouri residents, and CAFA would not apply. Accordingly, the Jacquin case is remanded to state court. A full-text copy of the District Court's June 26, 2020 Memorandum & Order is available at https://bit.ly/34WeW9T from Leagle.com. NEW YORK: H.A. Suit Seeks to Certify Rule 23 Class Action --------------------------------------------------------- In the class action lawsuit captioned as H.A., by her guardians L.A. and S.A., and L.A. and S.A. individually; P.Y., by her guardian T.Y., and T.Y. individually; P.M., by his guardians S.M. and B.M., and S.M. and B.M. individually; M.M., by his guardians M.M. and D.M., and M.M. and D.M. individually; and C.H., by her guardians J.G. and C.K., and J.G. and C.K. individually, on behalf of themselves and all others similarly situated, v. ANDREW CUOMO, in his official capacity as Governor of the State of New York, and DR. THEODORE KASTNER, in his official capacity as Acting Commissioner for The New York State Office For People With Developmental Disabilities, Case No.1:16-cv-00735-LJV-HKS (W.D.N.Y.), the Plaintiffs will move the Court for an order certifying this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for such other and further relief as the Court may deem just and proper.[CC] The Plaintiffs are represented by: Bruce A. Goldstein, Esq. KENNEY SHELTON LIPTAK NOWAK, LLP The Calumet Building 233 Franklin Street Buffalo, NY 14202 E-mail: bagoldstein@kslnlaw.com Telephone: (716) 853 3801 - and - Alexander J. Douglas, Esq. KENNEY SHELTON LIPTAK NOWAK, LLP The Powers Building 16 West Main Street, Suite 236 Rochester, NY 14214 Telephone: (585) 232-1911 E-mail: ajdouglas@kslnlaw.com NORTHROP GRUMMAN: Bafford Appeals C.D. Calif. Ruling to 9th Cir. ---------------------------------------------------------------- Plaintiffs Stephen Bafford, et al., filed an appeal from a court ruling entered in the lawsuit styled Stephen Bafford, et al. v. Northrop Grumman Corporation, et al., Case No. 2:18-cv-10219-ODW-E (Filed Dec. 7, 2018), in the U.S. District Court for the Central District of California (Los Angeles). The docket states the nature of suit as Employee Retirement. The appellate case is captioned as STEPHEN H. BAFFORD, LAURA BAFFORD, AND EVELYN L. WILSON, on their own behalves and on behalf of a class of similarly situated participants and beneficiaries, v. NORTHROP GRUMMAN CORPORATION; ADMINISTRATIVE COMMITTEE OF THE NORTHROP GRUMMAN PENSION PLA; ALIGHT SOLUTIONS LLC; and FKA Hewitt Associates LLC, Case No. 20-55222, in the United States Court of Appeals for the Ninth Circuit. Northrop Grumman is an American global aerospace and defense technology company. With 90,000 employees and an annual revenue in excess of $30 billion, it is one of the world's largest weapons manufacturers and military technology providers. Alight Solutions is a business process outsourcing company based in Lincolnshire, Illinois.[BN] The Plaintiffs-Appellants are represented by: Elizabeth Hopkins, Esq. KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA 91324 Telephone: 818 886-2525 - and - Susan Meter, Esq. BUTTERFIELD SCHECHTER LLP 10616 Scripps Summit Court San Diego, CA 92131-3961 Telephone: 858 444-2300 - and - Teresa Renaker, Esq. Kirsten Gibney Scott, Esq. RENAKER HASSELMAN SCOTT LLP 235 Montgomery Street, Suite 944 San Francisco, CA 94104 Telephone: 415 653-1733 Defendants-Appellees Northrop Grumman Corporation and Administrative Committee of the Northrop Grumman Pension Plan are represented by: Nancy G. Ross, Esq. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606-4637 Telephone: 312 701-8788 Defendants-Appellees Alight Solutions LLC and FKA Hewitt Associates LLC are represented by: Kimberly A. Klinsport, Esq. Eileen R. Ridley, Esq. FOLEY & LARDNER LLP 555 S. Flower Street, Suite 3300 Los Angeles, CA 90071-2411 Telephone: 414 297-5404 NUCO2 LLC: Court Denies Renewed Class Cert. Bid in Townhouse Suit ----------------------------------------------------------------- In the case, TOWNHOUSE RESTAURANT OF OVIEDO, INC. & ESTERO BAY HOTEL CO., Plaintiffs, v. NUCO2, LLC, Defendant, Case No. 2:19-CV-14085-ROSENBERG/MAYNARD (S.D. Fla.), Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida denied the Plaintiffs' Renewed Motion for Class Certification. NuCO2, provides CO2, equipment, and related services for beverage carbonation throughout the continental United States. Its customers operate businesses like restaurants, bars, breweries, gas stations, country clubs, hospitals, and universities. NuCO2 currently services roughly 176,000 customer locations in 47 states. Nationwide, it employs 60 Territory Sales Managers ("TSMs"), who sign up customers within their respective territories. Estero Bay is a former NuCO2 customer that operates a hotel and restaurant in Fort Myers, Florida. It has 50 to 75 employees. Estero Bay used NuCO2's services until September 2015. Townhouse remains a NuCO2 customer and operates a restaurant in Oviedo, Florida. It has 54 employees. The Plaintiffs have brought claims for breach of contract and for violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"). Their claims are all premised upon the Defendant's practice of calculating certain charges. They have not moved to certify a class on their breach of contract claims and have instead only sought certification for their FDUTPA claims. Their FDUTPA claims, however, are premised upon the parties' contractual agreements. The case is about periodic price adjustments. The Plaintiffs and the Defendant were parties to a contract. In that contract, they agreed (subject to certain restrictions and conditions) that the Defendant could periodically adjust and charge certain costs to the Plaintiffs. The Plaintiffs contend, however, that the methodology he Defendant used to calculate the charges was deceptive and, in the Renewed Motion before the Court, the Plaintiffs seek to certify a nationwide class for every customer of the Defendant that was affected by the charges. The Plaintiffs propose certification of the following classes: a. All individuals and entities in the United States who paid the standard fuel surcharge to NuCO2 at any time from March 5, 2015 through the date of certification. b. All individuals and entities in the United States who paid the standard energy surcharge to NuCO2 at any time from March 5, 2015 through the date of certification. c. All individuals and entities in the United States who paid more than their contractually agreed-upon price as a result of an open escalation price increase from March 5, 2015 through the date of certification. NuCO2 argues that the Plaintiffs' proposed classes cannot be certified for a large number of reasons, however, its arguments may be divided into two broad categories. NuCO2 argues that the Plaintiffs' proposed class cannot be certified because the non-Florida class members must bring their claims under other states' laws -- not FDUTPA -- and because the Plaintiffs have not met the requirements of Rule 23(a) and Rule 23(b)(3). Judge Rosenberg finds that the Plaintiffs fail to establish the absence of material conflicts between FDUTPA and the laws of other states, and have conducted no analysis of the variations in state law. They did not, despite the Court ordering Plaintiff "to more adequately address the issue of choice-of-law" on March 13, 2020. Their failure to show the absence of conflicts among other states' laws is fatal to certifying a nationwide class. The Judge also finds that the Plaintiffs have not carried their Rule 23 evidentiary burden of demonstrating that, under Florida's choice-of-law rules, FDUTPA applies to claims of non-Florida putative class members. Indeed, the Plaintiffs disregard key relevant conduct which did not occur in Florida. What was said by NuCO2's non-Florida employees to its non-Florida customers at their non-Florida business locations is highly relevant to the question of whether the "offending conduct" occurred "predominantly" in Florida. The non-Florida based discussions and negotiations not only predate any invoice or letter NuCO2 sent after a deal on services was reached, they provide the backdrop for further communications between the customer and its TSM, which occur after a customer is billed the surcharge or after they received a price increase letter. Regarding class certification under Rule 23(a), Judge Rosenberg finds that the Plaintiffs have failed to carry their burden of establishing commonality. Given the highly individualized nature of their FDUTPA claims, the Plaintiffs cannot meet their burden. She also finds that the Plaintiffs' claims are not typical under Rule 23(a)(3). They have not shown that the interaction between them and NuCO2 resembles the interaction of any other putative class member with NuCO2. Estero Bay was not even affected by an open escalation during the class period. Lastly, the Judge concludes that the Plaintiffs are not adequate representatives and they have failed to meet their burden of establishing adequacy. Regarding class certification under Rule 23(b)(3), Judge Rosenberg concludes that the Plaintiffs cannot meet the predominance standard for the same reasons they have not met the commonality standard. With respect to the second requirement, a class action is not a "superior" method for adjudication when there is a lack of predominance of class-based issues. For these reasons, the Plaintiffs have failed to meet their burden to certify a class under Rule 23(b)(3). For the reasons set forth, Judge Rosenberg denied the Plaintiffs' Renewed Motion for Class Certification. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/yaf2mf26 from Leagle.com. NUCO2 LLC: Court Denies Renewed Motion for Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as TOWNHOUSE RESTAURANT OF OVIEDO, INC. & ESTERO BAY HOTEL CO., v. NUCO2, LLC, Case No. 2:19-cv-14085-RLR (S.D. Fla.), the Hon. Judge Robin L. Rosenberg entered an order denying the Plaintiffs' renewed motion for class certification. The Court said, "Under [Fed.R.Civ.P.] Rule 23(b)(3), the movant must establish that questions of law or fact common to class members (1) predominate over any individual member's questions of law or fact and (2) that a class action would be superior to other methods of adjudication. With respect to the first requirement, predominance is "perhaps the central and overriding prerequisite for a Rule 23(b)(3) class." The predominance standard is "far more demanding" than commonality. Thus, the Plaintiffs cannot meet the predominance standard for the same reasons Plaintiffs have not met the commonality standard. With respect to the second requirement, a class action is not a "superior" method for adjudication when there is a lack of predominance of class-based issues. For these reasons, the Plaintiffs have failed to meet their burden to certify a class under Rule 23(b)(3). The Plaintiffs and Defendant were parties to a contract wherein the parties agreed (subject to certain restrictions and conditions) that the Defendant could periodically adjust and charge certain costs to the Plaintiffs. The Plaintiffs contend, however, that the methodology the Defendant used to calculate the charges was deceptive and, in the Renewed Motion before the Court, the Plaintiffs seek to certify a nationwide class for every customer of Defendant that was affected by the charges. The Plaintiffs have brought claims for breach of contract and for violation of the Florida Deceptive and Unfair Trade Practices Act. The Plaintiffs' claims are all premised upon the Defendant's practice of calculating certain charges. The Plaintiffs have not moved to certify a class on their breach of contract claims and have instead only sought certification for their FDUTPA claims. The Plaintiffs' FDUTPA claims, however, are premised upon the parties' contractual agreements. Estero Bay is a former NuCO2 customer that operates a hotel and restaurant in Fort Myers, Florida. The Defendant provides carbon dioxide, equipment, and related services for beverage carbonation throughout the continental United States. A copy of the Court's Order denying Plaintiffs' Renewed Motion for Class Certification is available from PacerMonitor.com at https://bit.ly/33Cm36P at no extra charge.[CC] OHIO: $151,000 Legal Fees Awarded in Community Refugee Suit ----------------------------------------------------------- In the case, COMMUNITY REFUGEE AND IMMIGRATION SERVICES, et al., Plaintiffs, v. REGISTRAR, OHIO BUREAU OF MOTOR VEHICLES, Defendant, Case No. 2:18-cv-1189 (S.D. Ohio), Judge Edmund A. Sargus, Jr. of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted the Plaintiffs' Motion for Attorney's Fees and Costs. On Oct. 5, 2018, the Plaintiffs filed the action seeking declaratory and injunctive relief against the Ohio Bureau of Motor Vehicles (BMV) Registrar. In their Complaint, the Plaintiffs alleged that a Ohio Bureau of Motor Vehicles ("BMV") Registrar policy which denied driver's licenses to individuals who held valid refugee admission documents but were admitted to the United States as refugees more than two years ago violated the Supremacy Clause of the Constitution, Article VI, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. On Feb. 25, 2020, the Court certified a class under Federal Rule of Civil Procedure 23(b)(2) consisting of all refugees residing in Ohio who possessed a valid refugee 1-94 document that was more than two years old and had not yet adjusted their status to that of a lawful permanent resident. Additionally, the Court designated Advocates for Basic Legal Equality, Inc. ("ABEL") and Porter Wright Morris & Arthur LLP as the class counsel. In the same Order, the Court granted the Plaintiffs' motion for summary judgment. The Court held that the BMV's policy was preempted by federal law. It was unnecessary for the Court to determine whether the policy also violated the Equal Protection Clause. The Plaintiffs now move for an award of attorney's fees in the amount of $151,912 and costs in the amount of $1090.65. The Plaintiffs contend that they are prevailing parties and thus, they are entitled to attorney's fees. The Defendant argues the hours expended were not reasonable because: (i) Porter Wright attorneys' hours should either be eliminated or reduced; (ii) ABLE attorneys' hours were inadequately documented and therefore should be reduced; (iii) hours billed in regard to expert Pratheepan Gulasekaram should be eliminated; and (iv) hours worked after the deadline to file a motion for judgment on the pleadings should be eliminated. Judge Sargus finds that (i) the Defendant has not shown that Porter Wright attorneys' hours were unreasonable; (ii) ABEL's time sheets are detailed enough such that the Court can discern that the hours were reasonably expended in pursuit of the litigation; (iii) it is clear that at least parts of Mr. Gulasekaram's expert opinion related to ultimate legal questions in the case were admissible and therefore the Plaintiffs are entitled to attorney's fees for work relating to the expert report; (iv) the Defendant has not shown the Plaintiffs' counsels' hours were frivolous or not in pursuit of a successful litigation outcome; and (v) the Plaintiffs have provided, including the counsels' resumes, declarations, and Mr. Chandra's testimony, that the rates reasonable. Using these conclusions, Judge Sargus holds that the Plaintiffs' counsel's reasonable hours at reasonable rates produce a lodestar of $150,821.50 ($123,057.50 to ABEL and $27,764 to Porter Wright). Thus, the Judge concludes that the Plaintiff's requested amount of $150,821.50 is reasonable under the lodestar analysis and awards the requested amount. The Plaintiffs ask for $1,090.65 in costs which includes costs from deposition transcripts, filing fees, attorney travel costs, photocopying, and printing. They assert these do not include attorney travel costs for multiple attorneys when multiple attorneys attended proceedings. They also assert that these expenses were reasonable and necessary to prosecuting the Plaintiffs' claims. The Defendant does not argue against the reasonableness of these costs. The requested costs do not appear excessive, the Court finds. In sum, Judge Sargus granted the Plaintiffs Motion for Attorney's Fees and Costs and awarded $150,821.50 in attorney's fees and $1,090.65 in costs. A full-text copy of the District Court's June 26, 2020 Opinion & Order is available at https://bit.ly/36X1S6S from Leagle.com. ORGAIN LLC: Jones Files Suit in Southern District of New York ------------------------------------------------------------- A class action lawsuit has been filed against Orgain, LLC. The case is styled as Tracey Jones, individually and on behalf of all others similarly situated v. Orgain, LLC, Case No. 7:20-cv-08463 (S.D.N.Y., Oct. 9, 2020). The nature of suit is stated as Other Fraud. Orgain, Inc., operates as a health supplement store. The Company offers organic nutritional shakes, protein powder, artificial sweeteners, bars, and oil.[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 PVH CORP: Court Dismisses DiCicco Class Suit Without Prejudice -------------------------------------------------------------- In the case, ROBERT DICICCO, individually and on behalf of all others similarly situated, Plaintiffs, v. PVH CORPORATION, Defendant, Case No. 19 Civ. 11092 (ER) (S.D. N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York granted PVH's motion to dismiss the complaint. DiCicco brought the putative class action against the PVH, asserting claims under the New Jersey Consumer Fraud Act ("NJCFA"), the New Jersey Truth in Consumer Contract, Warranty and Notice Act, and the implied covenant of good faith and fair dealing. Specifically, DiCicco alleges that PVH, a clothing manufacturer, engages in a sales practice of listing "fictitious" and "inflated" former prices on price tags of items that have purportedly been discounted so as to induce consumers into believing that they are getting a deal. DiCicco is a resident of New Jersey. PVH, a Delaware apparel corporation with its headquarters in New York, owns and operates several Van Heusen outlet stores in New Jersey. Before filing the instant lawsuit, DiCicco and his counsel had allegedly made visits to multiple Van Heusen company stores in New Jersey, on multiple dates, and stores of other retailers that sell PVH's products such as Kohl's, Macy's and JCPenney, to observe the extent and frequency of the sales and discounts PVH offers on its products. DiCicco's counsel had also used a computer program to track virtually every item offered for sale on those retailers' websites over the years, the data collected from which purportedly confirmed that PVH's products are "generally" on sale, and "in most cases rarely" offered at their regular prices. DiCicco claims that any savings that he received were illusory because the discounted prices were effectively the same prices regularly charged for those items by PVH. He claims that he would not have paid any money to PVH but for the fraudulent discounted prices. DiCicco asserts that PVH's practice of fraudulent price discount advertising violates the NJCFA, the New Jersey Truth in Consumer Contract, Warranty and Notice Act, and the implied covenant of good faith and fair dealing, and seeks both declaratory and injunctive relief under the New Jersey Declaratory Judgment Act. DiCicco commenced the instant action on Dec. 3, 2019. That same day, he also filed a statement of relatedness representing that the instant action contains identical factual allegations as in Tripicchio v. PVH Corporation, No. 19 Civ. 5729 (ER) (S.D.N.Y.). On Jan. 23, 2020, PVH moved to dismiss on the basis that the complaint fails to state a claim pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). Each of DiCicco's claims is expressly based on his allegations that PVH engages in fraudulent price discount advertising by listing "fictitious" former prices on its products. PVH contends that DiCicco has not plausibly alleged the circumstances constituting the fraud with the requisite particularity under the heightened pleading standards set forth in Rule 9(b). Judge Ramos agrees. DiCicco has failed to plead facts, plausibly and with the requisite particularity required by Rule 9(b), supporting his generalized assertions that PVH engages in a fraudulent practice of listing fictitious former prices on its products. This alone warrants dismissal of the instant action because each of his claims is based on the allegation that PVH lists fictitious former prices on its products. Even if PVH's purported practice were pled with the requisite particularity, PVH contends, as a separate basis for dismissal, that DiCicco has also failed to plausibly allege that he was injured by PVH's purportedly false discount pricing. DiCicco has not alleged that he had to spend additional money as a result of having bought the Van Heusen products, or that they are worthless. Accordingly, DiCicco has not alleged an out-of-pocket loss. DiCicco has also not alleged a loss of the "benefit-of-the-bargain" because his alleged injury that PVH failed to deliver the discounts it promised is not one that New Jersey courts have recognized as an "ascertainable loss." For all the foregoing reasons, his NJCFA claim must be dismissed, rules the Court. It is well settled that the New Jersey Truth in Consumer Contract and Warranty Notice Act ("TCCWNA") does not establish separate consumer rights or seller responsibilities, but rather bolsters rights and responsibilities established by other laws. Because DiCicco's TCCWNA claim is based on his allegation that PVH listed fictitious former prices for its products, it also fails because he fails to allege such practice with the required particularity under Rule 9(b). To state a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must plead "actual injury." The only injury described is the loss of the promised discounts. Therefore, for substantially the same reasons, DiCicco's claim for breach of the implied covenant of good faith and fair dealing must also be dismissed. DiCicco's only remaining claim under the New Jersey Uniform Declaratory Judgment Act seeks relief based on his CFA, TCCWNA and implied covenant claims, and thus is dismissed as well, Judge Ramos opines. Lastly, PVH urges the Court to dismiss each of DiCicco's claims with prejudice on the basis that it is "inconceivable" that any amendment could supply the missing facts for either: (1) DiCicco's failure to allege that he was injured by PVH's conduct; or (2) his failure to satisfy Rule 9(b) with respect to PVH's purportedly fraudulent conduct. However, DiCicco has not previously amended the complaint, and Judge Ramos does not find that amendment would necessarily be futile. Therefore, the instant action is dismissed without prejudice and DiCicco is permitted, if he wishes, to file an amended complaint. A full-text copy of the Court's Sept. 2, 2020 Opinion & Order is available at https://tinyurl.com/y5qf9xju from Leagle.com. RADIUS GLOBAL: Reyes Appeals S.D. Florida Ruling to 11th Circuit ---------------------------------------------------------------- Plaintiff-Appellant Vilma Reyes filed an appeal from a District Court ruling in the lawsuit titled Vilma Reyes v. Radius Global Solutions, LLC, Case No. 0:19-cv-61375-RAR, in the U.S. District Court for the Southern District of Florida. As previously reported in the Class Action Reporter, the Plaintiff filed the case under the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act. The appellate case is captioned as Vilma Reyes v. Radius Global Solutions, LLC, Case No. 20-10532, in the United States Court of Appeals for the Eleventh Circuit. Radius Global is a provider of account recovery and debt collection, customer relationship management and healthcare revenue cycle management solutions.[BN] Plaintiff-Appellant Vilma Reyes, individually and on behalf of all those similarly situated, is represented by: Jibrael S. Hindi, Esq. Thomas J. Patti, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: 954 907 1136 Facsimile: 855 529 9540 E-mail: jibrael@jibraellaw.com tom@jibraellaw.com Defendant-Appellee Radius Global Solutions, LLC, is represented by: Dayle Marie Van Hoose, Esq. Ashley Nicole Wydro, Esq. SESSIONS FISHMAN NATHAN & ISRAEL, LLC 3350 Buschwood Park Dr., Ste. 195 Tampa, FL 33618 Telephone: 813-890-2460 RBC CAPITAL MARKETS: Coulter Suit to Recover Unpaid Overtime Wages ------------------------------------------------------------------ Brett Coulter, individually and on behalf of all others similarly-situated, Plaintiff, v. RBC Capital Markets, LLC, Defendant, Case No. 20-cv-06144, (S.D. N.Y., August 6, 2020), seeks to recover damages for willful failure to pay for all regular hours worked, the overtime premium rate for all hours worked in excess of forty hours in a workweek, penalty damages for failure to provide the wage notices and pay statements as required by the Fair Labor Standards Act and New York labor law. RBC Capital Markets is a global investment bank operating throughout the United States with a principle place of business New York, NY where Coulter worked as salesperson. He claims that he was paid strictly on a commission basis that did not account for required overtime compensation when he worked in excess of forty hours in a given workweek. [BN] Plaintiff is represented by: Gregory N. Filosa, Esq. Ariel Y. Graff, Esq. FILOSA GRAFF LLP 111 John Street, Suite 2510 New York, NY 10038 Tel: (212) 256-1780 Fax: (212) 256-1781 Email: gfilosa@filosagraff.com agraff@filosagraff.com RELIASTAR LIFE: Advance Trust May File Second Amended Class suit ---------------------------------------------------------------- In the case, Advance Trust & Life Escrow Services, LTA, as securities intermediary for Life Partners Position Holder Trust, and Alice Curtis on behalf of themselves and all others similarly situated, Plaintiffs, v. ReliaStar Life Insurance Company, Defendant, Case No. 18-cv-02863 (DWF/ECW) (D. Minn.), Magistrate Judge Elizabeth Cowan Wright of the U.S. District Court for the District of Minnesota granted the Plaintiffs' Motion for Leave to File Second Amended Class Action Complaint. Advance Trust filed the putative class action on Oct. 5, 2018. A First Amended Class Action Complaint was filed on Feb. 24, 2020, which added Curtis as a named Plaintiff and alleged subclasses for which the Plaintiffs may alternatively seek class certification. Both the original Complaint and the First Amended Class Action Complaint alleged a single count for breach of contract. Specifically, the Plaintiffs alleged that Defendant ReliaStar breached universal life insurance policies that ReliaStar, or its predecessors-in-interest, issued by failing to determine cost of insurance ("COI") rates based solely on expected future mortality experience and deducting COI charges based on those impermissibly determined rates. The Plaintiffs alleged that ReliaStar is obligated by a provision in certain standardized form contracts to decrease COI rates to reflect improved projected mortality experience but has not so decreased the rates. The Court entered a Pretrial Scheduling Order on Feb. 1, 2019. The Deadlines relating to trial experts, dispositive motions, and trial were to be addressed following an order on class certification. The parties stipulated to several amendments to the Scheduling Order, each time extending the deadlines for class certification briefing and disclosures regarding pre-class certification experts, substantial completion of fact discovery, the close of fact discovery, and the close of pre-class certification expert discovery. The current schedule, entered on July 1, 2020, after the June 12, 2020 hearing on the Motion to Amend, sets the following deadlines: (i) Oct. 23, 2020 -- deadline to file class certification motion and opening of pre-class certification expert discovery; (ii) Nov. 13, 2020 -- deadline for substantial completion of fact discovery; and (iii) March 11, 2021 -- close of fact discovery and pre-class certification expert discovery, including depositions. None of the amendments extended the original July 12, 2019 deadline for filing motions seeking to amend pleadings or add parties. On Jan. 4, 2019, the Plaintiffs requested information related to COI rates and charges, namely documents showing data over time for the policies at issue that reflected changes to policy charges, premiums, and riders and that separately identified amounts of charges and deductions. They also asked in an interrogatory for identification of monthly COI rate scales used to determine COI charges for policies issued on certain policy forms. ReliaStar served its answer to that interrogatory on March 14, 2019, then amended its response on July 2, 2019, and amended it again on Nov. 8, 2019. Each response identified documents that contained COI rate tables, with the amended responses identifying new documents not previously identified. In March 2020, the Plaintiffs asked ReliaStar follow-up questions about the COI rate information that had been produced, including requesting that ReliaStar identify, on a monthly basis, the amount "used to calculate the COI and rider charges for Advance Trust'spolicy, (2) the COI and rider charges deducted, and (3) the COI and rider rates applied, prompted by the Plaintiffs' determination that certain produced information could not be reconciled with other information. In response, on March 26, 2020, ReliaStar provided a spreadsheet breaking out various data points for the policy. The Plaintiffs emailed again on April 20, 2020, asking additional follow-up questions about the COI tables and notifying ReliaStar that they planned to amend the complaint to add a breach of contract claim/class since the rider rates apparently are now also 15% higher than permitted in the policy. On May 4, 2020 ReliaStar stated that it would not consent to the amendment. The Plaintiffs then filed the present motion for leave to amend their complaint on May 21, 2020, attaching their proposed Second Amended Class Action Complaint. The proposed Second Amended Class Action Complaint adds allegations for a new class of policyholders who have been forced to pay excessive rider charges for their policies. It further alleges that the policies at issue, including Advance Trust's, provide that the rider charge is to be calculated using rates specified in the policies and do not give ReliaStar any discretion to charge rider rates that diverge from the contractually-specified rates,"but ReliaStar has imposed overcharges of at least 15% and possibly more, thus breaching the terms of the policies. Advance Trust seeks to represent a class of policyholders, the "Rider Overcharge Class," consisting of "all current and former owners of universal life (including variable universal life) insurance policies issued by ReliaStar Life Insurance Company, or its predecessors, that include a Waiver Rider with a table of monthly cost for rider." Plaintiff Curtis is not encompassed by the definition and does not seek to represent the Rider Overcharge Class. As the Plaintiffs did in their First Amended Class Action Complaint -- for what they now call the "COI Overcharge Class" -- the Plaintiffs alleged subclasses to the Rider Overcharge Class for which they may alternatively seek class certification. In addition to the Plaintiffs' brief in support of its motion and ReliaStar's brief in opposition, the Court permitted the Plaintiffs to file a reply brief and ReliaStar to file a sur-reply limited to the issues of futility and prejudice. The Court held a hearing on the motion on June 12, 2020. Magistrate Judge Wright finds that the spreadsheets produced on March 26, 2020 constitute newly discovered information that could not have been obtained earlier through the exercise of reasonable diligence, and that the Plaintiffs were diligent in seeking amendment after that discovery. ReliaStar made only a passing reference to Rule 16's good cause standard in its opening brief and did not argue prejudice separate and apart from the undue prejudice at issue in connection with Rule 15. The Magistrate concludes that the extension of the schedule to permit the Motion to Amend will not prejudice ReliaStar to the extent that it vitiates the Plaintiffs' showing of good cause based on diligence -- which is the primary measure of good cause. Moreover, any prejudice imposed on ReliaStar as a result of the amendment can be cured in part by an appropriate extension of the pretrial schedule. The Magistrate Judge also concludes that the Plaintiffs' new claim is not clearly frivolous and does not place an undue burden on ReliaStar. The Plaintiffs' rider charge claim based on a series of separate breaches of an ongoing obligation to charge certain rates based on the insured's attained age is not clearly frivolous under Minnesota or Texas law and consequently is not futile. Rather, at this stage in the proceedings, Plaintiffs have plausibly alleged such a claim. ReliaStar has not established that the proposed amendment will impose an undue burden on it. However, the Magistrate recognizes that granting the Motion to Amend will expand the scope of discovery and will permit the parties to seek an appropriate extension of the schedule to permit ReliaStar adequate time to prepare its defense to the new claim and the Plaintiffs adequate time to explore the new claim. In propounding new discovery, the Plaintiffs should remember their representation to the Court that ReliaStar will primarily need to produce only two categories of documents: (1) documents sufficient to prove the rider rates provided for in the policies at issue (e.g., copies of the subject policies), and (2) policy-level data, including applicable fields related to rider rates applied, rider charges, and insureds' attained ages. For all of the reasons she stated, Magistrate Judge Wright granted the Plaintiffs' Motion to Amend. A full-text copy of the Court's Sept. 2, 2020 Order is available at https://tinyurl.com/y56b86v5 from Leagle.com. RON DESANTEZ: Harrison Seeks to Certify Class of Inmates -------------------------------------------------------- In class action lawsuit captioned as Richard Kelly Harrison II, pre-trial inmates in the state of Florida, v. Ron Desantez, John Does 2, and Florida Supreme Court, Case No. 3:20-cv-05807-MCR-HTC (N.D. Fla.), the Plaintiff asks the Court for an order: 1. certifying a class of: "pre-trial inmates of the State of Florida"; and 2. appointing class counsel. A copy of the Plaintiff's Motion to Certify Class is available from PacerMonitor.com at https://bit.ly/33Ix1I6 at no extra charge. The Plaintiff appears pro se.[CC] ROSANN LANDSCAPE: Contreras Suit Moved From New York to Vermont --------------------------------------------------------------- The case is styled as Jose Barragan Contreras, Juan Alonzo Orellana, Jorge Yepez, Individually, and on behalf of all others similarly situated as Class Representatives v. Rosann Landscape Corp., A.F.A. Management Corp., Ana Maria Birlescu, Case No. 7:17-cv-6453-CS, was transferred from the U.S. District Court for the Southern District of New York to the U.S. District Court for the District of Vermont on Oct. 9, 2020. The District of Vermont Court Clerk assigned Case No. 2:20-mc-00117 to the proceeding. Rosann Landscape Corp.'s main line of business include landscape construction. The Plaintiffs appear pro se.[BN] ROSENBERG & ASSOCIATES: Weisheit D. Maryland Ruling to 4th Cir. --------------------------------------------------------------- The Plaintiff filed an appeal from a court ruling entered in the lawsuit styled Sherry Weisheit v. Rosenberg & Associates, LLC, Case No. 1:17-cv-00823-JKB (Filed March 27, 2017), in the U.S. District Court for the District of Maryland (Baltimore). As previously reported in the Class Action Reporter, Weisheit brought the action against Defendants Rosenberg and Bayview Loan Servicing, LLC, in March 2017, alleging violations of the Real Estate Settlement Procedures Act and its implementing regulations, and the Fair Debt Collection Practices Act, all resulting from alleged actions taken by the Defendants in connection with an attempted foreclosure of the Plaintiff's home in 2017. The appellate case is captioned as SHERRY WEISHEIT, On Behalf of Herself and All Others Similarly Situated v. ROSENBERG & ASSOCIATES, LLC, and BAYVIEW LOAN SERVICING, LLC, Case No. 20-1234, in the United States Court of Appeals for the Fourth Circuit. Rosenberg & Associates operates as a legal consulting firm. The Company offers legal services to clients in all areas of real estate law and creditor's rights. Bayview Loan Servicing, LLC provides loan management services. The company offers mortgage loan management and payment solutions. Bayview Loan Servicing serves the residential and commercial customers in the united states.[BN] The Plaintiff-Appellant is represented by: Fernando Peter Silva, II, Esq. GOWEN SILVA & WINOGRAD 513 Capitol Court, NE Washington, DC 20002 Telephone: 202 408-5400 - and - Jonathan Tycko, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW Washington, DC 20036 Telephone: 202 973-0900 Defendant-Appellee Rosenberg & Associates, LLC is represented by: Mark David Meyer, Esq. Sara Nicholson Tussey, Esq. ROSENBERG & ASSOCIATES, LLC 4340 East West Highway Bethesda, MD 20814-0000 Telephone: 301 907-8000 Defendant-Appellee Bayview Loan Servicing, LLC is represented by: John Curtis Lynch, Esq. Syed Mohsin Reza, Esq. TROUTMAN SANDERS, LLP 222 Central Park Avenue Virginia Beach, VA 23462-0000 Telephone: 757 687-7765 RP ON-SITE: Miller Suit Seeks to Certify Three Classes ------------------------------------------------------ In the class action lawsuit captioned as BRIAN MILLER, individually and on behalf of all others similarly situated, v. RP ON-SITE, LLC, a Delaware Limited Liability Company with its principal place of business in California, and DOES 1 to 100, inclusive Case No. 5:19-cv-02114-LHK (N.D. Cal.), the Plaintiff will move the Court on November 19, 2020 for an order certifying this case as a class action under Rule 23 of the Federal Rules of Civil Procedure for these Classes: a. The Expungement Class: "all natural persons with an address in the United States and its Territories about whom, from April 19, 2017 and continuing through the resolution of this action, the Defendants prepared a consumer report which included information regarding one or more criminal case which had been expunged, sealed, or otherwise removed from public dissemination at the time the report was prepared"; b. The Disciplinary Infraction Class: "all natural persons with an address in the United States and its Territories about whom, from April 19, 2017 continuing through the resolution of this action, the Defendants prepared a consumer report which included information regarding one or more administrative action undertaken by a department of corrections which Defendants reported as a "felony conviction"; and c. The Antedated Report Class: "all natural persons with an address in the United States and its Territories who were subjects of tenant screening reports created by Defendants from April 19, 2017 and continuing through the resolution of this action, that contained adverse information other than convictions (including criminal cases that had been expunged, sealed, set aside, or dismissed) that preceded the report by more than seven years." RP On-Site is in the computer related services, N.E.C. industry in Richardson, Texas. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/2RsjEpE at no extra charge.[CC] Counsel for Plaintiff and the Class are: Mark D. Potter, Esq. James M. Treglio, Esq. POTTER HANDY LLP 8033 Linda Vista Road, Suite 200 San Diego, CA 92111 Telephone: (858) 375-7385 Facsimile: (888) 422-5191 E-mail: mark@potterhandy.com jimt@potterhandy.com SAGINAW COUNTY, MI: Fox Seeks Class Certification ------------------------------------------------- In class action lawsuit captioned as THOMAS A. FOX, for himself and all those similarly situated, v. COUNTY OF SAGINAW, et al., Case No. 1:19-cv-11887-TLL-PTM (E.D. Mich.), the Plaintiff asks the Court for an order: 1. certifying a plaintiff class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3) defined as follows: "all persons and entities that owned real property in the following counties, whose real property, during the relevant time period, was seized through a real property tax foreclosure, which was worth and/or which was sold at tax auction for more than the total tax delinquency and were not refunded the value of the property in excess of the delinquent taxes owed: Alcona, Alpena, Arenac, Bay, Clare, Crawford, Genesee, Gladwin, Gratiot, Huron, Isabella, Jackson, Lapeer, Lenawee, Macomb, Midland, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, Sanilac, St Clair, Tuscola, and Washtenaw"; 2. appointing E. Powell Miller of The Miller Law Firm PC and Philip L Ellison of Outside Legal Counsel PLC as Co-Lead Counsel; and 3. appointing Thomas A. Fox as class representative. This case concerns "a matter of great public significance and seeks to remedy a serious wrong." According to the Plaintiff, Counties throughout Michigan foreclose on parcels when their property taxes are unpaid. But when the Counties auction the foreclosed parcels, they keep all of the sales proceeds and destroy any value beyond the auction price, even if the property's value far exceeds the amount of the tax delinquency. The Plaintiff Thomas A. Fox was the owner of residential property in Gratiot County (the Property), which, like the other Defendant Counties, has affirmatively elected to administer the tax foreclosure process instead of allowing the state to administer it. As of the auction sale, the Property had an outstanding tax delinquency of $3,091.23. The Defendants seized ownership of the Property on or about February 21, 2017. At this time, the Property had a fair market value of at least $50,400.00. The Defendants later sold the Property at a tax auction on August 16, 2017 for $25,500.00. The Property had equity -- that is, the difference between what the Property was worth and the tax delinquency that Plaintiff owed. The Plaintiff had a property interest in this equity. But the Defendants seized it and failed to return it. The Gratiot Defendants retained the entire value of the sales proceeds even though the sales proceeds were $22,408.77 more than the amount of the tax delinquency. Throughout, they neither initiated a condemnation action nor afforded Plaintiff any process to seek the equity's return. Saginaw County, officially the County of Saginaw, is a county located in the U.S. state of Michigan. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/3chKdat at no extra charge.[CC] The Plaintiff is represented by: Philip L. Ellison, Esq. OUTSIDE LEGAL COUNSEL PLC PO Box 107 Hemlock, MI 48626 Telephone: (989) 642-0055 E-mail: pellison@olcplc.com - and - Matthew E. Gronda, Esq. PO Box 70 St. Charles, MI 48655 Telephone: (989) 249-0350 E-mail: matthewgronda@gmail.com - and - E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Christopher D. Kaye, Esq. Gregory A. Mitchell, Esq. THE MILLER LAW FIRM PC 950 W University Drive, Ste 300 Rochester, MI 48307 Telephone: (248) 841-2200 E-mail: epm@millerlawpc.com ssa@millerlawpc.com cdk@millerlawpc.com gam@millerlawpc.com SALDUTTI LLC: Rankin Appeals E.D. Pa. Decision to Third Circuit --------------------------------------------------------------- Plaintiffs David Rankin and Dina Rankin filed an appeal from a court ruling entered in the lawsuit styled DAVID RANKIN AND DINA RANKIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. SALDUTTI, LLC also known as: SALDUTTI LAW, LLC also known as: SALDUTTI LAW GROUP, WILLIAM F. SALDUTTI, III, ROBERT L. SALDUTTI, and CUSTOMERS BANK, Case No. 2-19-cv-01508 (Filed April 9, 2019), in the U.S. District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter, the nature of suit is stated as Consumer Credit Other Statutes. The appellate case is captioned as DAVID RANKIN AND DINA RANKIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. SALDUTTI LLC, AKA Saldutti Law LLC, AKA Saldutti Law Group; ROBERT SALDUTTI; and CUSTOMERS BANK, Case No. 20-1355, in the United States Court of Appeals for the Third Circuit. Saldutti Law is a creditor's rights attorney specializing in collections law in South Jersey.[BN] The Plaintiffs-Appellants are represented by: Predrag Filipovic, Esq. 1735 Market Street Mellon Bank Center Philadelphia, PA 19103 Telephone: 267 265-0520 - and Kevin Laukaitis, Esq. Jonathan Shub, Esq. KOHN SWIFT & GRAF 1600 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: 215 238-1700 Defendants-Appellees Saldutti LLC, aka Saldutti Law LLC, aka Saldutti Law Group; and Robert Saldutti are represented by: Stephen Keim, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 2000 Market Street, Suite 2300 Philadelphia, PA 19103 Telephone: 215 575-2696 Defendant-Appellee Customers Bank is represented by: Joe N. Nguyen, Esq. Spencer R. Short, Esq. STRADLEY RONON STEVENS & YOUNG 2005 Market Street, Suite 2600 Philadelphia, PA 19103 Telephone: 215 564-8095 SEAWORLD PARKS: Wins Dismissal of Kouball Class Suit ---------------------------------------------------- In the case, LISA KOUBALL, on behalf of herself, and all others similarly situated, Plaintiff, v. SEAWORLD PARKS & ENTERTAINMENT, INC., Defendant, Case No. 20-cv-870-CAB-BGS (S.D. Cal.), Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California granted SeaWorld's motion to dismiss the Plaintiff's complaint. Plaintiff Kouball filed the putative consumer class action complaint against Defendant SeaWorld on May 8, 2020. The complaint asserts claims for: (1) violation of California's Consumers Legal Remedies Act ("CLRA"); (2) violation of California's Unfair Competition Law ("UCL"); (3) violation of California's False Advertising Law ("FAL"); (4) breach of contract; (5) unjust enrichment; and (6) money had and received. SeaWorld operates several amusement parks and water parks throughout the United States, with locations in San Diego, Orlando, and San Antonio. The Plaintiff alleges SeaWorld offers annual passes that allow its customers to access its parks on an unlimited basis. The Plaintiff purchased four annual passes for SeaWorld's San Diego location for which she is charged a total of $48.99 per month. In March of 2020, SeaWorld closed all its parks due to the COVID-19 pandemic. On approximately April 23, 2020, the Plaintiff was charged the full amount of her monthly payment of $48.99 for her annual passes even though she did not have access to SeaWorld's parks due to the closure. The Plaintiff alleges she signed up for SeaWorld's annual membership passes with the belief and on the basis that she would have access to SeaWorld San Diego amusement park at any time during the month in which she was charged. She further alleges she would not have paid for the membership had she known that she would not have access to the park and that SeaWorld continues charging its customers monthly fees while the parks remain closed. The Plaintiff seeks to represent a Nationwide class and California subclass of all persons who were charged annual membership fees for a period in which SeaWorld's parks were closed. SeaWorld moved to dismiss the complaint on July 1, 2020. It moves to dismiss on the grounds that the Plaintiff fails to plead all of her claims with the required specificity under Federal Rules of Civil Procedure 8(a) and 9(b), fails to state each of her claims as a matter of law, and lacks standing to seek injunctive relief. The Court held a telephonic hearing on Sept. 9, 2020. To the extent Plaintiff's CLRA, UCL, and FAL claims are based on affirmative misrepresentations by SeaWorld, Judge Bencivengo dismissed without prejudice the Plaintiff's claims for lack of standing. She finds that the Plaintiff's allegations fail to identify any statement made by SeaWorld, which the Plaintiff relied on, proclaiming the alleged "unlimited access" to its parks. The Plaintiff merely provides vague and general allegations. The complaint does not identify when and where she purchased the annual membership passes, nor does it identify any specific statement that SeaWorld made that she read, viewed, or heard, that led her to a belief that she would have unlimited access to the parks. To the extent the Plaintiff's CLRA, UCL, and FAL claims are based on an omission by SeaWorld, Judge Bencivengo dismissed without prejudice the Plaintiff's claims for lack of standing and failure to allege a duty to disclose any purported omission. The Plaintiff's theory for a fraudulent omission claim is that SeaWorld failed to disclose that it would continue charging annual passholders while the parks were closed and that only SeaWorld was privy to this fact. The Plaintiff failed to allege SeaWorld knew or should have known, of the existence of any material fact that it should have disclosed. SeaWorld, like the rest of the world, would not have been aware it would need to temporarily close its parks due to an unprecedented global pandemic. Moreover, such temporary closures were likely required under state or local orders and the decision on how to charge customers or provide other relief would be dependent on the agreements between them. Even if the Plaintiff adequately alleged actual reliance on a misrepresentation or omission to establish standing, SeaWorld contends the Plaintiff's CLRA, UCL, and FAL claims still fail because the complaint does not identify with sufficient particularity any statement or purported omission by SeaWorld. Judge Bencivengo holds that by agreeing to purchase the annual pass the Plaintiff would have agreed to allow for a temporary closure without notice. Beyond the footnote cite to SeaWorld's website, the complaint fails to identify what SeaWorld said, where and when it said it, or how it is false. Nor does the complaint include any facts on when and where Plaintiff purchased the passes. Accordingly, the Plaintiff's CLRA, UCL, and FAL claims based on affirmative misrepresentations are dismissed without prejudice for failure to state a claim. Judge Bencivengo continues to follow the reasoning by the California Supreme Court in Fairbanks v. Superior Court, that the Consumers Legal Remedies Act applies only to transactions for the sale or lease of consumer 'goods' or 'services' as those terms are defined in the act. The annual passes merely allow access to SeaWorld's parks, and do not qualify as "services" in the Court's view. Accordingly, the Plaintiff's CLRA claims are dismissed with prejudice. Likewise, her UCL claims, to the extent they are premised on a violation of the CLRA, are also dismissed with prejudice. As to breach of contract, the Plaintiff has alleged the existence of a contract with SeaWorld and performance, via her purchase of the annual passes. However, her allegations on the substance of the terms of the contract remain vague and conclusory. She purchased the annual passes with a belief she would have unlimited access to the parks. Yet, she does not support that belief with any sufficient factual support. Instead, the website citation that the Plaintiff provided contained terms that would dispute her allegation. Accordingly, the Plaintiff's breach of contract claim is dismissed without prejudice, rules Judge Bencivengo. Finally, the Plaintiff does not allege a quasi-contractual theory. She maintains there is a valid, enforceable contract through the purchase of the annual passes. Therefore, any amendment to these claims would be futile and the Plaintiff's request for recovery under unjust enrichment and money had and received are dismissed with prejudice. For the reasons discussed, Judge Bencivengo granted SeaWorld's motion to dismiss. The Plaintiff's claims are dismissed as follows: (i) Plaintiff's CLRA, unjust enrichment, and money had and received claims are dismissed with prejudice; (ii) her UCL and FAL claims based on an omission by SeaWorld, are dismissed without prejudice; (iii) the Plaintiff's UCL and FAL claims based on an affirmative misrepresentation by SeaWorld are dismissed without prejudice; (iv) her injunctive relief claim is dismissed without prejudice; and (v) the Plaintiff's breach of contract claim is dismissed without prejudice. The Plaintiff was directed to file an amended complaint by Sept. 23, 2020. Failure to do so will result in a final judgment of dismissal. SeaWorld must respond to any amended complaint within the time required by the applicable rules. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/yb2hy9ck from Leagle.com. SGS NORTH AMERICA: Tamimi Suit Seeks to Certify Class Action ------------------------------------------------------------ In class action lawsuit captioned as JD TAMIMI, individually and on behalf of all others similarly situated, v. SGS NORTH AMERICA, INC., a corporation; and DOES 1-20, inclusive, Case No. 8:19-cv-00965-PSG-KS (C.D. Cal.), the Plaintiff asks the Court for an order: 1. certifying the case as a class action; 2. appointing himself as class representative; and 3. appointing his attorneys as class counsel. SGS North America, Inc. provides consultancy services. A copy of the Motion for an Order Certifying Class Action is available from PacerMonitor.com at https://bit.ly/32NzP7b at no extra charge.[CC] The Plaintiff is represented by: Kashif Haque, Esq. Samuel A. Wong, Esq. Jessica L. Campbell, Esq. Suren N. Weerasuriya, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 E-mail: khaque@aegislawfirm.com swong@aegislawfirm.com jcampbell@aegislawfirm.com sweerasuriya@aegislawfirm.com SIMPSON STRONG-TIE: $85,203 Sanction Awarded in Nguyen Suit ----------------------------------------------------------- In the case, SIMON NGUYEN, et al., Plaintiffs, v. SIMPSON STRONG-TIE COMPANY, INC., et al., Defendants, Case No. 19-cv-07901-TSH (N.D. Cal.), Magistrate Judge Thomas S. Nixon of the U.S. District Court for the Northern District of California granted the Defendants' Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11. The Plaintiffs brought the putative class action alleging that Defendants Simpson Strong-tie and Simpson Manufacturing, Inc. concealed from consumers that its construction connectors and fasteners prematurely corrode and fail, requiring costly repairs and causing danger to homeowners whose homes are equipped with the products. The original Plaintiffs in the action were Cary W. Cooper and Terri G. Cooper, Georgia residents who own a home in Florida, and Fernandina Beach, a Florida limited liability company that owns property in Florida. They filed their Original Complaint ("OC") on Dec. 2, 2019. The gist of their action was that some of Simpson's products, a range of construction connectors and fasteners designed to provide homes structural support against strong winds and seismic activity, are defective and corrode prematurely, causing the Product to fail well before its reasonable useful life, putting homeowners at risk and requiring costly repairs. The Plaintiffs alleged that Simpson knew of the defect but omitted or concealed it, intentionally misleading customers about the quality and durability of the Product and its ability to secure and stabilize structures, to induce them and the Class Members to purchase the Product. According to Plaintiffs, Simpson described the Product in such a way that a reasonable consumer would expect the Product to last the entire life of a home and that the Product was capable of resisting corrosion and protecting against strong winds and seismic activity for the entire life of the home. The Plaintiffs asserted nine causes of action: unfair competition, or unfair or deceptive acts or practices, in violation of the California Consumers Legal Remedies Act; unlawful business practices in violation of the California unfair competition law ("UCL"); unfair business practices in violation of the UCL; a violation of Florida's Deceptive and Unfair Trade Practices Act; breach of express warranty; breach of implied warranty of fitness; breach of implied warranty of merchantability; negligence; and fraud through non-disclosure or concealment. On Feb. 4, 2020, Simpson sent a letter to the Plaintiffs' Counsel notifying them that it believed they had violated Rule 11 of the Federal Rules of Civil Procedure in filing their OC. Simpson proffered that the Counsel had either failed to investigate the factual basis for the claims it made in the OC, or purposefully determined to mislead the Court regarding the warnings, recommendations, and guidelines Simpson provides in connection with the products that are the subject of the Complaint. It asserted there was no factual basis for the Plaintiffs' allegations. Simpson pointed out that its 2001 website and its 2016 High Wind-Resistant Construction Application Guide, each of which the Plaintiffs referenced in their OC, both provided explicit corrosion warnings. Simpson also filed its Motion to Dismiss the OC on February 4. It argued for dismissal on a number of grounds, the broadest being that all nine of the Plaintiffs' causes of action were implausible because Simpson's corrosion warnings contradicted Plaintiffs' allegations that it failed to provide such warnings, and because the Plaintiffs did not allege that they or anyone else followed Simpson's recommendations, guidelines, and warnings concerning its products. Instead of filing an opposition to the First Motion, the Plaintiffs filed their Fits Amended Complaint on Feb. 25, 2020. The FAC added two California Plaintiffs, Simon Nguyen and Thoai Doan, who own a home in California. Although the FAC now acknowledged Simpson's corrosion warnings, the Plaintiffs' factual allegations remained largely the same as the OC. Whereas the Plaintiffs had alleged that Simpson failed to disclose the Product defect, they now alleged that Simpson had failed to "adequately" disclose that the product would corrode even when selected and installed pursuant to Simpson's instructions and guidelines. And they asserted the same nine causes of action. Simpson filed its Motion to Dismiss the FAC ("Second Motion" or "MTD") on March 17, 2020. Simpson argued that the Plaintiffs' re-worked allegations that despite the corrosion warnings Simpson failed to adequately warn consumers lacked plausibility and thus Plaintiffs' claims did as well. On March 19, 2020, Simpson served a copy of its Sanctions Motion along with a cover letter ("Second Rule 11 Letter") again asserting the reasons why Simpson believed it would be entitled to sanctions. Simpson proposed that the Parties meet and confer regarding the issues it identified in that letter and their Sanctions Motion. The Parties met and conferred on April 3, 2020. They agreed to stipulate to strike from the FAC the inaccurate allegation of the Simpson employee's purported admission. Simpson invited the Plaintiffs' counsel to provide more information regarding the Plaintiffs' position on the other matters raised in the Second Rule 11 Letter, but the Plaintiffs' counsel declined to do so. Instead, the Plaintiffs' counsel indicated that the Plaintiffs might propose certain amendments to the FAC in connection with their opposition to Simpson's MTD. Simpson waited to file its Sanctions Motion to see if the Plaintiffs might seek to amend the FAC to resolve some of the issues Simpson had raised, but the Plaintiffs did not. On May 1, 2020, Simpson filed its Sanctions Motion. The Court granted Simpson's MTD on May 15 and dismissed the FAC based on most of the grounds Simpson had asserted. The Plaintiffs filed their Opposition to the Sanctions Motion the same day. ECF No. 54. On May 22, Simpson filed its Reply. The Court granted the Plaintiffs leave to file a supplemental brief, which they filed on June 17, and Simpson filed an opposition to the supplemental brief on June 23. Judge Nixon holds that it is one of those exceptional cases where Rule 11 sanctions are warranted. The Counsel either failed to conduct a competent inquiry into the facts necessary to support the claims in the FAC or didn't bother including them, which is the flip side of the same coin. As a result, the FAC was factually baseless. The Counsel insisted on doubling down on certain allegations even after it became apparent that they were untenable. And by cherry-picking from the Application Guide and Website while simply ignoring the content of the corrosion warnings, and then later arguing that that evidence was inadmissible, the Counsel demonstrated an abuse of the judicial process and indifference toward judicial resources, and unnecessarily drove up litigation costs. Not only that, Simpson gave Counsel multiple opportunities and ample time in which they could have remedied these shortcomings. In light of all this, sanctions are appropriate. An award of attorneys' fees is the necessary deterrence. Simpson requests $170,403.77 in attorneys' fees and costs: 160.30 hours billed preparing the MTD and related papers, for a total of $100,674.18; and 129.7 hours billed preparing the Sanctions Motion and related papers for the remaining $69,729.59. Simpson's counsel billed Simpson at the following rates: Erick C. Howard at a rate of $637 per hour through March 2020 and $676.20 per hour after March 2020; Joseph V. Mauch at a rate of $597.80 per hour through March 2020 and $627.20 per hour after March 2020; and Felicia A. Draper at a rate of $563.50 per hour through March 2020 and $578.20 per hour after March 2020. Simpson does not seek recovery of fees billed by other timekeepers, such as a senior partner, a junior associate, and a paralegal. Judge Nixon finds the rates are reasonable. But, because Simpson has not provided a detailed accounting of what hours were spent on specific tasks by each attorney, the Judge cannot determine how much time was spent on particular activities to determine if the time spent was reasonable. Accordingly, he reduces fee amount for fees related to the MTD by half, to $50,338. Concerning the Sanctions Motion, Simpson's counsel states that they billed 129.7 hours preparing that and related papers for a total of $69,729.59. Even though they argued the Sanctions Motion well and ultimately prevail as well, the amount also seems excessive. Because he again cannot tell how much time was spent on particular activities, the Judge reduces the amount by half, to $34,865, for a total amount of fees of $85,203. For the reasons he stated, Judge Nixon granted the Defendants' Motion for Sanctions. Monetary sanctions in the amount of $85,203 are awarded in favor of the Defendants and against the Plaintiffs' Counsel. The firms of the Plaintiffs' Counsel are jointly and severally liable for that amount. A full-text copy of the Court's Sept. 2, 2020 Order is available at https://tinyurl.com/y397zxq9 from Leagle.com. SIMPSON STRONG-TIE: 3 References Struck from Amended Nguyen Suit ---------------------------------------------------------------- In the case, SIMON NGUYEN, et al., Plaintiffs, v. SIMPSON STRONG-TIE COMPANY, INC., et al., Defendants, Case No. 19-cv-07901-TSH (N.D. Cal.), Magistrate Judge Thomas S. Nixon of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendants' motion to strike as immaterial or improper a number of allegations in the Second Amended Class Action Complaint ("SAC"). The Plaintiffs brought the putative class action alleging that the Defendants' metal hurricane straps, which are installed in or on their homes, prematurely corrode and fail, rendering them incapable of protecting their homes. They assert violations of the California Consumers Legal Remedies Act, California Unfair Competition Law, and the Arizona Consumer Fraud Act, as well as claims for breach of express warranty, negligent misrepresentation, and fraud. The Plaintiffs allege that Defendants Simpson Strong-Tie and Simpson Manufacturing Co., Inc. developed, manufactured, advertised, sold, and distributed galvanized metal hurricane straps for embedment at concrete foundations edges in buildings and homes throughout the United States. Some of these straps are installed in the Plaintiffs' homes. The Plaintiffs allege that the Products have inherent defects that are substantially certain to result in failures during the Products' useful life. They allege that Simpson has actively concealed the defects from consumers. Simpson seeks to strike from the SAC various allegations on the grounds that the allegations either: describe settlements in prior litigation despite Federal Rule of Evidence ("FRE") 408's prohibitions on the use of prior settlements as evidence; reference changes Simpson made in its literature in violation of Federal Rule of Evidence 407's prohibition on the use of evidence of subsequent remedial measures; or cite to a previously-filed expert declaration despite the fact that Federal Rule of Civil Procedure 10(c) and related caselaw preclude citations to expert declarations in a complaint. Simpson seeks an order striking these allegations or references as immaterial or improper pursuant to Federal Rule of Civil Procedure 12(f). The Plaintiffs have filed an Opposition to the motion. Magistrate Judge Nixon finds that the allegations regarding the purported settlements have nothing to do with Simpson's state of mind, prior knowledge, fraud, and intent, let alone involve Simpson. In other words, the Plaintiffs' references to purported settlements have no possible bearing upon the subject matter of the litigation. Whether or not the Plaintiffs included the settlement allegations in an attempt to mislead (Simpson argues that they did), they are impertinent and immaterial and inappropriate, and the Judge will strike them. Next, the Simpson next challenges several allegations in the SAC relating to changes in Simpson's definition of "Interior Dry Service." It argues that these allegations are impermissible because they relate to subsequent remedial measures. The Plaintiffs counter that these allegations are not remedial at all, "that all of Simpson's specifications and statements. It is possible that the Plaintiffs would use evidence related to the "Interior Dry Service" definition in ways that wouldn't run afoul of Rule 407. The range of permissible uses of evidence of remedial measures is much broader than the scope of the exclusionary rule. But at this point, the Judge finds it too early to tell, so striking the allegations is not necessary or appropriate. Now, they're still just allegations; if at some point down the line, the Plaintiffs try to introduce evidence of remedial efforts in a way that violates Rule 407, Simpson can challenge the use then, when the Court is better apprised of the circumstances and can rule on the admissibly of that evidence. Lastly, Simpson argues that the Court should strike the Plaintiffs' citations to the expert declaration of Dan R. Werdowatz because they are impermissible under Federal Rule of Civil Procedure 10. Under Rule 10(c) and caselaw, the Court has no reason to and will not consider Werdowatz's expert declaration. The Plaintiffs argue that they included citations to Werdowatz's declaration to "buttress" their allegations concerning the Products' intended design, use, installation, and useful life. Whether or not that allegation, along with the plethora of other new allegations in the SAC, helps the SAC survive a challenge to the pleadings has not yet been tested. They are still at the motion to dismiss stage: either the Plaintiffs have alleged enough to survive a motion to dismiss or they have not. There is no reason for them to include an expert declaration, because the Court did not and will not decide whether the Plaintiffs' allegations are truthful or supported by evidence. And because the Court must generally assume the truth of all material factual allegations in a complaint, averments in an expert affidavit carry no additional probative weight merely because they appear within an affidavit rather than numbered paragraphs of the complaint. Nevertheless, although he will strike references to Werdowatz's declaration, Magistrate Judge Nixon does not find it appropriate to strike the allegations in the SAC which were derived from that declaration. Regardless of the source of the information or belief upon which the Plaintiffs make those allegations, they are allowed to make them; Simpson can challenge them later on. Simpson concedes that the allegations "need not be stricken," but argues they are "conclusory statements of opinion" which carry no additional probative weight and are not entitled to a presumption of truth. To the extent the allegations are merely conclusory they will be entitled to no weight, and the Court will treat the allegations like every other allegation in the complaint. For the foregoing reasons, Magistrate Judge Nixon granted in part and denied in part Simpson's Motion to Strike. The following references and text are stricken from the SAC (All citations to ECF No. 61-2): a. "According to a structural engineer licensed in California for thirty-five years who has analyzed and specified Simpson products for decades, and whose declaration was previously filed in this case at ECF Document 61-2, Paragraph 67"; b. "Ultimately, the Ocean Pointe case resolved for tens of millions of dollars, most of which funded a repair program to install new anchor bolt holdown systems to replace tens of thousands of defective and corroding HD Strap-Tie Holdowns and MAS Mudsill Anchors embedded in 1,628 Ocean Pointe homes, Paragraph 127"; and c. "Ultimately, the Ewa by Gentry case resolved for tens of millions of dollars, most of which funded a repair program to install new anchor bolt holdown systems to replace tens of thousands of defective and corroding HD Strap-Tie Holdowns and MAS Mudsill Anchors embedded in 2,136 Ewa by Gentry homes, Paragraph 129." A full-text copy of the Court's Sept. 2, 2020 Order is available at https://tinyurl.com/y6nvh4rs from Leagle.com. SLEEPY'S LLC: Denial of Class Certification in Hargrove Reversed ---------------------------------------------------------------- The U.S. Court of Appeals for the Third Circuit reversed the District Court's denial of a renewed motion for certification in the case, SAM HARGROVE; ANDRE HALL; MARCO EUSEBIO, individually and on behalf of all others similarly situated, Appellants, v. SLEEPY'S LLC, v. I STEALTH LLC; EUSEBIO'S TRUCKING CORP.; CURVA TRUCKING LLC, Case No. 19-2809 (3d Cir.). Sleepy's was a New York-based mattress retailer. Deliveries were an integral part of its business, and so it created a comprehensive delivery process to meet its customer needs. Sleepy's operated a large warehouse in Robbinsville, New Jersey, that it used to deliver mattresses. It ran 50 to 60 trucks daily, and as many as 85 to 90 each day during peak season. The Appellants (the three named Plaintiffs in the proposed class action) are individuals who performed mattress deliveries for Sleepy's. To work for Sleepy's, they had to sign a standardized Independent Driver Agreement ("IDA"). Each IDA required that the deliverers could not perform any other business while on duty with Sleepy's. Sleepy's enforced these provisions; in at least one instance, it penalized a driver because he made a delivery for another business while he was delivering Sleepy's product. Some drivers in the proposed class signed IDAs on their own behalf and others signed on behalf of their corporate entity or "carrier." The Appellants testified that individual drivers were required to form business entities as a condition of their employment with Sleepy's. This was true even if the business entity consisted of one driver and one truck. Appellants testified that, although there were some drivers who owned or operated two or three trucks at a time, most proposed class members operated one truck for significant stretches of time. Several drivers who operated more than one truck testified that they drove one of their trucks full time, and a relative or an associate drove the other. Sleepy's emphasizes that the IDA did not obligate it to pay wages to a carrier's individual owners or workers. It paid each carrier for all the deliveries the carrier performed as a whole. It also points out that, where carriers were not one-person limited liability companies, their owners did not necessarily drive the truck, and that there were signers to IDAs who did not provide delivery services to Sleepy's on a full-time basis. The Appellants brought an employee misclassification suit and sought certification as a class of Sleepy's delivery drivers. They alleged that Sleepy's misclassified them as independent contractors; because they are actually employees of Sleepy's, it violated the New Jersey Wage Payment Law, by making deductions from their pay for, among other things, damage claims, uniforms, customer claims, and other fines. Also, Sleepy's allegedly violated the New Jersey Wage and Hour Law, by failing to pay Appellants overtime when they worked more than 40 hours in a week. The Appellants filed their class action complaint in March 2010. After preliminary discovery, the District Court granted Sleepy's motion for summary judgment. The Appellants appealed to the Court, and in May 2015, it vacated and remanded so that the District Court could apply the proper test adopted by the New Jersey Supreme Court in response to a certified question from it. On remand, the parties filed partial cross-motions for summary judgment on whether the named Plaintiffs were employees or independent contractors. The District Court granted the Appellants' motion and denied Sleepy's motion, holding that the three named Plaintiffs were employees of Sleepy's. The District Court has already held on summary judgment that the named Plaintiffs were misclassified as independent contractors and instead are employees of Sleepy's. The issues of class certification and damages were not decided. The Appellants thereafter filed their first motion for class certification for a proposed class of 193 individuals who contracted with Sleepy's and performed deliveries on a full-time basis. In February 2018, however, the District Court denied their motion without prejudice, holding that the Appellants had not demonstrated the ascertainability of the proposed class. The Appellants filed a renewed motion for certification of a class of only the 111 individuals who performed deliveries on a full-time basis and who drove one truck for Sleepy's. Those individuals included 73 drivers who ran only one truck for Sleepy's, and an additional 38 drivers who ran one truck for at least six months even though they operated more than one truck on other occasions. The District Court denied the renewed motion for class certification in May 2019. The Appellants thereafter sought leave to appeal the District Court's denial pursuant to Fed. R. Civ. P. 23(f), and the Court granted their request. They argue that the District Court erred in treating their renewed motion for class certification as a motion for reconsideration, and that it instead should have treated it as an independent motion for class certification. The Third Circuit reviews the District Court's denial of a renewed motion for certification of a proposed class of drivers who performed deliveries on a full-time basis using one truck for mattress retailer Sleepy's. It held that the class was not ascertainable. In addition to all the other requirements for class actions in Federal Rule of Civil Procedure 23, the Court requires that a Rule 23(b)(3) class also be "currently and readily ascertainable." The Plaintiffs must show that (1) the class is defined with reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition. The Third Circuit reverses the District Court's order holding that first, the District Court should not have treated the renewed motion for class certification as a motion for reconsideration. An order that grants or denies class certification may be altered or amended before final judgment. Courts cannot graft onto that provision the heightened motion-for-reconsideration standard requiring that, in addition to satisfying the typical Rule 23 criteria, plaintiffs show there was a change in controlling law, new evidence, or a clear error. District courts should treat renewed motions for class certification as they would initial motions under Rule 23. Second, the District Court misapplied the ascertainability case law. It was too exacting and essentially demanded that the Appellants identify the class members at the certification stage. The Third Circuit has held that a plaintiff need not be able to identify all class members at class certification -- instead, a plaintiff need only show that class members can be identified. The Appellants have met that requirement. They submitted thousands of pages of contracts, driver rosters, security gate logs, and pay statements, as well as testimony from a dozen class members stating they were required to work exclusively for Sleepy's full-time. Affidavits, in combination with records or other reliable and administratively feasible means, can meet the ascertainability standard. The District Court focused on gaps in the records kept and produced by Sleepy's. But where an employer's lack of records makes it more difficult to ascertain members of an otherwise objectively verifiable class, the employees who make up that class should not bear the cost of the employer's faulty record keeping. To hold otherwise is in tension with the Supreme Court's decisions in Anderson v. Mt. Clemens Pottery Co., and Tyson Foods, Inc. v. Bouaphakeo, which held that employees bringing wage claims can meet their burdens of proof by producing sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. Such inferences are necessary to fill an evidentiary gap created by the employer's failure to keep adequate records. The Third Circuit extends Tyson Foods and Mt. Clemens to the ascertainability determination at the class-certification stage and holds that where an employer has failed to keep records it was required to keep by law, employees can prove ascertainability by producing sufficient evidence to define their proposed class as "a matter of just and reasonable inference." For the reasons it stated, the Third Circuit reversed the judgment of the District Court and remanded the case for further proceedings in accord with its Opinion. A full-text copy of the Third Circuit's Sept. 9, 2020 Opinion is available at https://tinyurl.com/yaoh4fek from Leagle.com. Harold L. Lichten (Argued) -- hlichten@llrlaw.com -- Benjamin J. Weber -- bweber@llrlaw.com -- Lichten & Liss-Riordan, 729 Boylston Street, Suite 2000 Boston, MA 02116. Anthony L. Marchetti, Jr. -- amarchetti@marchettilawfirm.com -- 317 Delsea Drive Sewell, NJ 08080, Counsel for Appellants. Marc Esterow, Theo E.M. Gould -- tgould@littler.com -- Matthew J. Hank (Argued) Paul C. Lantis -- plantis@littler.com -- Jonathan L. Shaw -- jlshaw@littler.com -- Littler Mendelson, 1601 Cherry Street Three Parkway, Suite 1400 Philadelphia, PA 19102, Counsel for Appellee. Peter Winebrake -- pwinebrake@winebrakelaw.com -- Winebrake & Santillo LLC, 715 Twinning Road Twinning Office Center, Suite 211 Dresher, PA 19025, Counsel for Amicus Appellants The National Employment Law Project and Towards Justice. Adam G. Unikowsky, Jenner & Block, 1099 New York Avenue, N.W., Suite 900 Washington, DC 20001 Counsel for Amicus Appellees Chamber of Commerce of the United States of America and New Jersey Civil Justice Institute. SOUTHERN SYNERGY: Cornelison Suit to Recover Unpaid Overtime ------------------------------------------------------------ Steven Cornelison, individually and on behalf of others similarly situated, Plaintiffs, v. Southern Synergy, Inc., Defendant, Case No. 20-cv-01157 (N.D. Ala., August 11, 2020), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. Cornelison worked for the Defendant as a Senior Technical Specialist from approximately July 2012 through December 2019. Cornelison regularly worked in excess of 40 hours per week with no overtime compensation, the complaint asserts. [BN] The Plaintiff is represented by: Nathan C. VanDerVeer, Esq. Justin C. Owen, esq. GOLDASICH, VICK & FULK 2100 3rd Avenue North, Suite 400 Birmingham, AL 35203 Telephone: (205) 731-2566 Fax: (205) 731-9451 Email: nate@golaw.net justin@golaw.net - and - Gabriel A. Assaad, Esq. MCDONALD WORLEY, PC 1770 St. James Street, Suite 100 Houston, TX 77056 Telephone: (713) 523-5500 Fax: (713) 523-5501 Email: gassaad@mcdonaldworley.com STITCH FIX: Staff Sues for Denied Breaks, OT Pay, Tips, Refunds --------------------------------------------------------------- Katherine Bookout-Varner, Sara Lashkari and Jennifer Cordeau, in a Representative capacity, and on behalf of other members of the general public similarly situated, v. Stitch Fix, Inc. and Does 1-10, inclusive, Defendants, Case No. 37-2020-00027926 (Cal. Super., August 10, 2020), seeks redress for failure to provide required meal/rest periods, overtime and minimum wages, to pay all wages due to discharged and quitting employees, failure to maintain and furnish accurate itemized wage statements and failure to indemnify employees for necessary expenditures incurred in discharge of duties, and improper retention of gratuities tip-pooling under California's Unfair Competition Law, California Labor Code and applicable Industrial Welfare Commission Wage Orders. Stitch Fix is an online personal styling service. Bookout-Varner worked for Stitch Fix from January of 2019 through May of 2020. Lashkari worked for Stitch Fix from December 2014 through the present. Cordeau worked for Stitch Fix from August of 2016 through June of 2020. [BN] Plaintiff is represented by: William B. Sullivan, Esq. Eric K. Yaeckel, Esq. Ryan T. Kuhn, Esq. SULLIVAN LAW GROUP, APC 2330 Third Avenue San Diego, CA 92101 Tel: (619) 702-6760 Fax: (619) 702-6761 Email: helen@sullivanlawgroupapc.com yaeckel@sullivanlawgroupapc.com ryan@sullivanlawgroupapc.com SUNCOKE ENERGY: Wins Dismissal of Consolidated Securities Suit -------------------------------------------------------------- In the case, IN RE SUNCOKE ENERGY PARTNERS, L.P., Civil Action No. 19-cv-693-CFC (D. Del.), Judge Colm F. Connolly of the U.S. District Court for the District of Delaware granted the Defendants' Motion to Dismiss Consolidated Class Action Complaint. The case is a consolidation of three related actions: Marks v. Suncoke Energy Partners, L.P., 19-cv-00693-CFC; Zolotarev v. Suncoke Energy Partners, L.P., 19-cv-01055-CFC; and Cohn v. Suncoke Energy Partners, L.P., 19-cv-01107-CFC. Lead Plaintiff Michael Cohn was a unitholder of SunCoke Energy Partners, L.P. ("SXCP"), a Delaware limited partnership. The sole general partner of SXCP was SunCoke Energy Partners, G.P. LLC (SXCP GP), a Delaware limited liability company. Section 7.9(c) of the partnership agreement that governs SXCP contains the "safe harbor" provision. The partnership agreement requires that the Conflicts Committee be comprised of two or more directors who have no affiliation with or ownership interest in SXCP GP or SXCP GP's affiliates. On Feb. 5, 2019, SunCoke Energy, Inc. and SXCP announced an agreement for SunCoke to acquire all outstanding common units of SXCP not already owned by SunCoke in a stock-for-unit merger transaction. The merger was approved by SXCP's Board of Directors and a majority of the members of the Conflicts Committee. It was also approved by holders of a majority of the outstanding SunCoke common shares and SXCP common units. SunCoke indirectly owned a sufficient percentage of the SXCP common units to approve the transaction on behalf of the holders of SXCP common units. The merger closed on June 28, 2019. The Plaintiffs allege in their Complaint that the Defendants' actions taken in connection with the merger violated federal securities laws, the Defendants' obligations under the SXCP partnership agreement, and Delaware state laws. Pending before the Court is the Defendants' Motion to Dismiss. Counts I and II of the Complaint allege that all the Defendants violated Section 14(a) of the Securities Exchange Act and rules promulgated pursuant to Section 14(a) by the U.S. Securities and Exchange Commission. Judge Connolly finds that the Plaintiffs have not pleaded and cannot plead transaction causation because their votes were not needed to authorize the merger. It is undisputed that SunCoke owned a sufficient percentage of SXCP to approve the transaction on its own. Therefore, the solicitation materials were not an essential link in the accomplishment of the transaction. And the parties to a merger agreement reach that agreement before submitting the S-4 registration statement to the SEC. Because the Plaintiffs have not pleaded and cannot plead transaction causation, they have not alleged Section 14(a) violations. Count III of the Complaint alleges that members of SunCoke and SXCP GP's boards of directors violated Section 20(a) of the Exchange Act. Because the Plaintiffs' Section 20(a) claim is predicated on their Section 14(a) claims, the Section 20(a) claim fails for the same reasons the Plaintiffs' Section 14(a) claims are not cognizable, rules Judge Connolly. Counts IV through VII of the Complaint allege that SXCP GP and the members of its board breached their fiduciary duties, contractual obligations, and the implied contractual covenant of good faith and fair dealing. The Defendants argue that because SXCP GP complied with the safe harbor provision in Section 7.9(c) by seeking and receiving Special Approval from the Conflicts Committee for the merger, Plaintiffs are barred from alleging these state law claims. Judge Connolly holds that because the Defendants sought and received Special Approval for the merger from the Conflicts Committee, they are entitled to the protection of Section 7.9(c)'s safe harbor provision and cannot be sued for a breach of SXCP's partnership agreement or any fiduciary or other duty existing at law. None of the allegations amount to misleading or deceptive conduct or call into question the independence of the Conflicts Committee. Accordingly, the Defendants are entitled to the protection of the partnership agreement's safe harbor provision. Count VIII of the Complaint alleges that SunCoke and its directors aided and abetted breach of contract. Because the Plaintiffs fail to state a claim for breach of contract, they necessarily fail to state a claim for aiding and abetting breach of contract, Judge Connolly opines. For these reasons, Judge Connolly granted the Defendants' motion to dismiss. A full-text copy of the Court's Sept. 9, 2020 Memorandum Opinion is available at https://tinyurl.com/y7aqa2b6 from Leagle.com. Michael Van Gorder -- mvangorder@faruqilaw.com -- FARUQI & FARUQI, LLP, Wilmington, Delaware; Nadeem Faruqi, James M. Wilson, Jr., FARUQI & FARUQI, LLP, New York, New York Counsel for Plaintiffs. Peter J. Walsh, Jr. -- pwalsh@potteranderson.com -- Alan R. Silverstein -- asilverstein@potteranderson.com -- POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; S. Mark Hurd, Thomas P. Will, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; David D. Sterling, Paul R. Elliott, Matthew B. Allen, BAKER BOTTS L.L.P., Houston, Texas; Michelle A. Reed, M. Scott Barnard, AKIN GUMP STRAUSS HAUER & FELD LLP, Dallas, Texas Counsel for Defendants. SUNY ALBANY: Duguid Discrimination Suit Seeks to Certify Class -------------------------------------------------------------- In the class action lawsuit captioned as DANIELLE DUGUID, OLIVIA SCHULTZ, COURTNEY TRUDEAU, JOYCE KAGAN, and TAYLOR WATTS, individually and on behalf of all those similarly situated, and GORDON GRAHAM, v. STATE UNIVERSITY OF NEW YORK AT ALBANY, and MARK BENSON, Case No. 1:17-cv-01092-TJM-DJS (N.D.N.Y.), the Plaintiffs ask the Court for an order: 1. certifying a class consisting of: "all present, prospective and future female students who are harmed by and wish to end SUNY Albany's sex discrimination in the allocation of athletic participation opportunities, with respect to Count I of the Second Amended Complaint against Defendant State University of New York at Albany for violation of Title IX of the Education Amendment Act of 1972, 20 U.S.C. section 1861, et seq. and its implementing regulations, 45 C.F.R. section 86.41"; and 2. appointing the law firms of Rimon, P.C. and Alvarez, Gonzalez & Menezes, LLP as class counsel. The State University of New York at Albany, commonly referred to as University at Albany, SUNY Albany or UAlbany, is a public research university with campuses in the New York cities of Albany and Rensselaer and the Town of Guilderland, United States. A copy of the Plaintiffs' Motion for Class Certification is available from PacerMonitor.com at https://bit.ly/33M7XQb at no extra charge.[CC] The Plaintiffs are represented by: Bernays T. Barclay, Esq. RIMON, P.C. 255 Patroon Creek Boulevard No. 4467 Albany, NY 12206 Telephone: (516) 375-2524 E-mail: buz.barclay@rimonlaw.com - and - Carlos F. Gonzalez, Esq. ALVAREZ, GONZALEZ & MENEZES, LLP One Flagler Building 14 N.E. 1st Avenue, Suite 1105 Miami, FL 33132 Telephone. (305) 723.1876 Facsimile. (786) 475-7832 E-mail: cfg@algofirm.com TAKEDA PHARMACEUTICAL: Appeals Decision in American Sales Suit -------------------------------------------------------------- Brand name drug makers and Defendants Takeda Pharmaceutical Company Limited, et al., filed an appeal from the District Court decision dated Jan. 28, 2020, entered in the lawsuit styled as AMERICAN SALES COMPANY, LLC, on behalf of itself and all others similarly situated v. TAKEDA PHARMACEUTICAL CO. LTD; TAKEDA AMERICA HOLDINGS, INC.; TAKEDA PHARMACEUTICALS U.S.A., INC.; TAKEDA DEVELOPMENT CENTER AMERICAS, INC.; MYLAN, INC.; MYLAN PHARMACEUTICALS, INC.; ACTAVIS PLC; WATSON LABORATORIES, INC.; RANBAXY LABORATORIES LTD.; RANBAXY, INC.; RANBAXY PHARMACEUTICALS, INC.; SUN PHARMACEUTICAL INDUSTRIES LTD.; TEVA PHARMACEUTICAL INDUSTRIES LTD.; and TEVA PHARMACEUTICALS USA, INC., Case No. 15-cv-3278 (Filed April 27, 2015), in the U.S. District Court for the Southern District of New York. The appellate case is captioned as Takeda Pharmaceutical Company Limited; Takeda America Holdings, Inc.; Takeda Pharamceuticals, U.S.A., Inc.; and Takeda Development Center Americas, Inc., the Petitioners, v. Meijer, Inc.; Meijer Distribution, Inc.; and Cesar Castillo, Inc. and American Sales Company, LLC, on behalf of themselves and all others similarly situated, the Respondents, Case No. 20-10532, in the United States Court of Appeals for the Second Circuit. This action arose out of an overarching anticompetitive scheme by Takeda and several of its ostensible generic competitors to allocate, and unreasonably delay competition in, two related drug markets--the market for pioglitazone hydrochloride tablets (sold by Takeda under the brand name ACTOS) and the market for the fixed dose combination product containing both pioglitazone hydrochloride and metformin (sold by Takeda under the brand name ACTOplus met). ACTOS is indicated for the improvement of glycemic control in patients with Type 2 diabetes, either as either a monotherapy treatment or a combination therapy consisting of two separate drugs--pioglitazone hydrochloride together with sulfonylurea, metformin, or insulin. ACTOplus met is indicated as a fixed dose combination of pioglitazone hydrochloride and metformin to improve blood sugar control in adults with Type 2 diabetes who are already taking ACTOS and metformin separately, or taking metformin alone and it is not controlling blood glucose at normal levels. ACTOS became one of Takeda's biggest selling products. By 2011, ACTOS and ACTOplus met together generated over $3 billion in annual sales. According to the complaint, Takeda knew, however, that the products were vulnerable to a rapid and near-complete loss of sales once less expensive generic versions entered the market. In order to delay the onset of generic competition and squeeze more multi-billion-dollar years out of these products, Takeda devised a multi-part scheme which it enticed its would-be generic competitors to join. American Sales retails grocery stores. The Company distributes health, seasonal and beauty care items, pharmaceutical products, and general merchandise. American Sales serves customers in the United States. Takeda Pharmaceutical is a Japanese multinational pharmaceutical and biopharmaceutical company.[BN] The Plaintiff-Respondent is represented by: Thomas M. Sobol, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway Cambridge, MA 02142 Telephone: 617 475-1950 The Defendants-Petitioners are represented by: Steven A. Reed, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: 215 963-5603 TECHSERV CONSULTING: Hartman Seeks Proper Pay Under FLSA -------------------------------------------------------- Dana Hartman, individually and on behalf of others similarly situated, Plaintiff, v. TechServ Consulting and Training, Ltd., Johnny Randall Staines and Randall Wisenbaker, Defendants, Case No. 20-cv-04055 (S.D. Ohio, August 7, 2020), seeks to recover unpaid wages, including overtime wages, owed pursuant to the Fair Labor Standards Act. TechServ provides consulting and services to the utility industry where Hartman was assigned to the North American Electric Reliability Corporation under a Critical Infrastructure Protection position. Hartman was required to travel to remote jobsites where he was required to stay overnight at these remote jobsites. He was paid a per diem to reimburse him for his lodging expenses. However, TechServ capped pay for travel time at 8 hours per work week, regardless of the actual time it took to get to the remote jobsites. [BN] Plaintiff is represented by: Greg R. Mansell, Esq. Carrie J. Dyer, Esq. Kyle T. Anderson, Esq. MANSELL LAW, LLC 1457 S. High St. Columbus, OH 43207 Phone: (614) 610-4134 Fax: (614) 547-3614 Email: Greg@MansellLawLLC.com Carrie@MansellLawLLC.com Kyle@MansellLawLLC.com TOWERS WATSON: Dismissal of Fort Myers Class Suit Reversed ---------------------------------------------------------- In the case, CITY OF FORT MYERS GENERAL EMPLOYEES' PENSION FUND, and ALASKA LABORERS-EMPLOYERS RETIREMENT TRUST, on behalf of themselves and other similarly situated former stockholders of TOWERS WATSON & CO., Plaintiffs-Below, Appellants, v. JOHN J. HALEY, VALUEACT CAPITAL MANAGEMENT, L.P., and JEFFREY UBBEN, Defendants-Below, Appellees, Case No. 368, 2019 (Del.), the Supreme Court of Delaware reversed the Court of Chancery's opinion granting the Defendants' motion to dismiss. The appeal arises from the 2016 "merger of equals" between Towers and Willis Group Holdings Public Limited Co. In June 2015, the two publicly-traded firms executed a merger agreement with closing conditioned on the approval of their respective stockholders. Although Towers had stronger performance and greater market capitalization, under the agreement's terms, Willis stockholders were to receive the majority (50.1%) of the post-merger company. Towers stockholders were to receive a $4.87 per-share special dividend and would own the remaining 49.9% of the combined company. Moreover, the consideration per share of Towers stock was below the unaffected trading price. Upon the merger's public announcement, several segments of the investment community criticized the transaction as a bad deal for Towers and a windfall for Willis. Towers' stock price declined and Willis' rose in reaction to the news. Proxy advisory firms recommended that the Towers stockholders vote against the merger, and one activist stockholder began questioning whether Towers' management's incentives were aligned with stockholder interests. The parties questioned whether Towers would be able to obtain stockholder approval. Also after announcing the merger, ValueAct Capital Management, L.P., an institutional stockholder of Willis, through its Chief Investment Officer, Jeffrey Ubben, presented to John J. Haley, the CEO and Chairman of Towers who was spearheading the merger negotiations, a compensation proposal with the post-merger company that would potentially provide Haley with a five-fold increase in compensation. Haley did not disclose the proposal to the Towers Board. In light of the uncertainty of stockholder approval, Haley renegotiated the transaction terms to increase the special dividend to $10 per share. Towers eventually obtained stockholder approval of the renegotiated merger. The transaction closed in January 2016, and the companies merged to form Willis Towers Watson Public Limited Co. Haley became the CEO of Willis Towers and was granted an executive compensation package with a long-term equity opportunity similar to ValueAct's proposal. The merger spawned several lawsuits across different jurisdictions. The matter before the Court arose from separate stockholder actions that were filed in early 2018 and then consolidated in April 2018. In the matter, Towers stockholders alleged that Haley breached his duty of loyalty by negotiating the merger on behalf of Towers while failing to disclose to the Towers Board the compensation proposal that, according to the Plaintiffs, would increase his long-term equity incentive compensation from the approximately $24 million maximum equity compensation that he could have earned in his last three years as Towers' CEO to upwards of $140 million in his first three years as Willis Towers' CEO. The Plaintiffs alleged that the proposal misaligned Haley's incentives at a critical juncture in the negotiations, and incentivized him to seek no more of a dividend than he believed necessary to secure the Towers stockholders' approval. The Plaintiffs further alleged that ValueAct and Ubben aided and abetted the breaches of fiduciary duty. The Defendants moved to dismiss the complaint on Nov. 16, 2018. The Court of Chancery dismissed the claims, holding that the business judgment rule applied because a reasonable board member would not have regarded the proposal as significant when evaluating the proposed transaction, and further holding that the Plaintiffs had failed to plead a non-exculpated bad faith claim against the Towers directors. In view of its dismissal of the predicate breach of fiduciary duty claim, the court dismissed the aiding and abetting claim. On appeal, the Plaintiffs contend that the Court of Chancery erred in holding that the executive compensation proposal was not material to the Towers Board. They argue further that because the predicate breach of fiduciary duty is adequately pleaded, the aiding and abetting claim survives as well. The Appellate Court finds that although the materiality inquiry is different in the two contexts, it concludes that the allegedly omitted information would be material in either context. A reasonable stockholder likely would consider important in deciding how to vote, information about Haley discussing and receiving the Proposal amidst deal completion uncertainty, and information concerning Haley's relationship with ValueAct, and whether that relationship impaired his ability to negotiate in good faith on behalf of Towers Watson shareholders. It is evident from the inquiries Towers received from certain significant stockholders regarding Haley's discussions with ValueAct. Next, the Appellate Court concludes that the Plaintiffs adequately allege that Haley failed to inform the Towers Board of his deepened interest in the transaction. That Haley kept the Towers Board generally apprised of negotiations, as the Court of Chancery found, does not rebut the Plaintiffs' contention that Haley failed to adequately disclose his self-interest to the Board. Even assuming that Haley kept the Towers Board generally apprised of the negotiations, he allegedly did not disclose that he had received the Proposal and had discussed executive compensation with ValueAct and Ubben. The Court of Chancery noted that the Plaintiffs "do not allege that Haley remained silent" since they allege that Haley had discussed the Proposal with Wickes. But, Wickes was a Towers officer -- the Managing Director of Benefits -- and not a Board member. Even more, the Plaintiffs allege in their Complaint that Board member and Compensation Committee Chair Ray testified that he would have wanted to know that Haley was discussing his compensation at the future company with Ubben and ValueAct, but did not receive such information, let alone information as to the magnitude of the raise that Haley stood to receive. Thus, the Plaintiffs have adequately pleaded that Haley failed to disclose the Proposal to the Towers Board. Finally, the Appellate Court concludes that the Plaintiffs have alleged sufficiently that Haley was materially interested in the merger, that he failed to disclose his interest in the Proposal to the Towers Board, and that a reasonable Board member would have regarded the existence of Haley's material interest as a significant fact in the evaluation of the merger. Accordingly, she holds that the Plaintiffs have adequately pleaded their claim for breach of fiduciary duty against Haley and, thus, the claim will survive a motion to dismiss. The Court of Chancery dismissed claims against ValueAct and Ubben because there was no predicate breach of fiduciary duty pleaded. To find ValueAct and Ubben liable for aiding and abetting a fiduciary duty breach, the Plaintiffs must show: (1) the existence of a fiduciary relationship, (2) a breach of the fiduciary's duty, (3) knowing participation in that breach by the Defendants, and (4) damages proximately caused by the breach. Although the Court of Chancery did not consider the other elements of the claim, the Plaintiffs suggest that the Court should rule on them in the appeal. The Appellate Court thinks the better course is for the Court of Chancery to consider those elements in the first instance. Accordingly, the Appellate Court directs the Court of Chancery to consider the aiding and abetting issues on remand. For the reasons set forth, the Supreme Court of Delaware reversed the Court of Chancery's opinion, and remanded for proceedings consistent with its Opinion. A full-text copy of the Supreme Court of Delaware's June 30, 2020 Opinion is available at https://bit.ly/31nZvGL from Leagle.com. Michael J. Barry, Esquire -- mbarry@gelaw.com -- Christine M. Mackintosh, Esquire, Grant & Eisenhofer P.A., Wilmington, Delaware. Of Counsel: Lee D. Rudy, Esquire, Geoffrey C. Jarvis, Esquire, J. Daniel Albert, Esquire, Stacey A. Greenspan, Esquire, Kessler Topaz Meltzer & Check, LLP, Radnor, Pennsylvania, for Appellants. Raymond J. DiCamillo, Esquire -- dicamillo@rlf.com -- Daniel E. Kaprow, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware. Of Counsel: Richard S. Horvath, Jr., Esquire, Gavin P.W. Murphy, Esquire, Paul Hastings LLP, San Francisco, California for Appellees ValueAct Capital Management, L.P. and Jeffrey Ubben. Bradley R. Aronstam, Esquire -- baronstam@ramllp.com -- Roger S. Stronach, Esquire, Ross Aronstam & Moritz LLP, Wilmington, Delaware. Of Counsel: John A. Neuwirth, Esquire, Joshua S. Amsel, Esquire, Matthew S. Connors, Esquire, Amanda K. Pooler, Esquire, Sean Moloney, Esquire, Weil, Gotshal & Manges LLP, New York, New York for Appellee John J. Haley. TTEC HEALTHCARE: Arbitration in Beattie FLSA Suit Partly Compelled ------------------------------------------------------------------ In the case, SONDRA BEATTIE, individually and on behalf of all other similarly situated individuals, and FRANCIS HOUSTON, JR., individually and on behalf of all other similarly situated individuals, Plaintiffs, v. TTEC HEALTHCARE SOLUTIONS, INC., and TTEC HOLDINGS, INC., Defendants, Civil Action No. 1:18-cv-03098-RM-NRN (D. Colo.), Judge Raymond P. Moore of the U.S. District Court for the District of Colorado (i) granted in part and denied in part the Defendants' fourth motion to compel arbitration, and (ii) granted the Plaintiffs' motion to file an amended complaint. Plaintiffs Beattie and Houston filed the lawsuit as a collective and class action, alleging, among other things, violations of the Fair Labor Standards Act (FLSA). The Court granted conditional collective certification, and more than 3,000 other Plaintiffs have opted into the lawsuit by filing consents to join. The Court has also granted motions to compel arbitration for 70 Plaintiffs, including the original named Plaintiffs. The parties stipulated that the Defendants would file a final motion to compel arbitration by March 16, 2020, and that the Plaintiffs would file a motion to amend the complaint by April 17, 2020. Those motions have been filed and briefed. The Defendants' Fourth Motion to compel argues that 2,487 Plaintiffs who have opted into the case executed arbitration agreements in the same manner as the 70 former Plaintiffs who have been compelled to arbitration. In response, the Plaintiffs filed declarations from 3,391 of those Plaintiffs stating they are certain that they were never presented with a physical or electronic copy of an arbitration agreement and that they never physically or electronically signed or agreed to an arbitration agreement before or during their employment with the Defendants. In its previous orders, the Court determined the arbitration agreements were enforceable. It also determined declarations such as those described were sufficient to raise a genuine issue regarding the existence of an agreement to arbitrate. Applying the principle of the law of the case would seem to dictate the result in the case. To the extent the parties contend that the circumstances are significantly different with respect to the 2,487 Plaintiffs that are the subjects of the Defendant's latest motion, Judge Moore is not persuaded. First, the Judge finds that in the context of the case, the sworn declarations submitted in support of their current motion are sufficient evidence to support a finding that these 2,487 Plaintiffs entered into arbitration agreements. With respect to 2,148 of these Plaintiffs, the Plaintiffs have presented adduced no evidence to the contrary. Second, the Judge rejects the Plaintiffs' contention that the arbitration agreements are invalid because the signature block is blank. The Court has already concluded that the Defendants' business records were sufficient to establish that similarly situated Plaintiffs electronically executed the arbitration agreements. Third, the Judge also rejects the Plaintiffs' contention that the Revana agreement is not enforceable. That version of the arbitration agreement has a clause reserving Revana's right, in its sole discretion, to modify, amend, adjust, or revise its policies and guidelines at any time without advance notice. The Plaintiffs contend that the clause renders the arbitration provision illusory because the Defendants are free to withdraw unilaterally from the arbitration agreement. But regardless of whether the arbitration agreement constitutes one of the Defendants' "policies and guidelines" subject to the clause described, that is a question to be resolved by the arbitrator. Fourth, the Judge is not persuaded by the Defendants' contention that the declarations of 339 Plaintiffs are insufficient to raise a genuine issue as to the existence of an agreement between them and the Defendants. As noted in the Court's previous order, when there are genuine issues of material fact regarding the making of agreement to arbitrate, a jury trial on the existence of the agreement is warranted. Accordingly, the Judge denies the Defendants' motion to compel with respect to these 339 Plaintiffs but grants the motion with respect to the remaining 2,148 Plaintiffs included in it. The Plaintiffs' motion for leave to file an amended complaint was timely filed in accordance with the parties' stipulation. Although the Defendants did not waive their right to object to the motion, the Judge finds their objections lack merit. First, the Defendants' contention that the Plaintiffs' motion is unduly delayed is not well taken considering the parties stipulated to the April 17, 2020, deadline. Second, their contention that that amendment would be futile is also unavailing. Due to the nature of the collective action, numerous consents to join were filed and the collective class grew to over 3,000 opt-in Plaintiffs. In sum, Judge Moore granted in part and denied in part the Defendants' fourth motion to compel as stated; and granted the Plaintiffs' motion to file an amended complaint. A full-text copy of the District Court's June 26, 2020 Order is available at https://bit.ly/2SY6RM8 from Leagle.com. Subsequently, the Plaintiffs have filed an amended complaint on July 7, 2020. TULARE COUNTY, CA: Criswell's TRO Bid in Prisoners Suit Partly OK'd ------------------------------------------------------------------- In the case, CHARLES CRISWELL, et al., Plaintiffs, v. MICHAEL BOUDREAUX, in his official capacity as Sheriff of Tulare County, Defendant, Case No. 1:20-cv-01048-DAD-SAB (E.D. Cal.), Judge Dale E. Drozd of the U.S. District Court for the Eastern District of California (i) granted the Plaintiffs' application for provisional class certification, and (ii) granted in part the Plaintiffs' motion for a temporary restraining order. On July 29, 2020, the Plaintiffs filed their complaint against the Defendant, alleging the following five causes of action: (1) 42 U.S.C. Section 1983 claim for violation of the Fourteenth Amendment of the U.S. Constitution as a result of the Defendant's reckless failure to act with reasonable care to mitigate the risk posed by COVID-19 to pretrial detainees; (2) 42 U.S.C. Section 1983 claim for violation of the Eighth Amendment of the U.S. Constitution by the Defendant's deliberate indifference to the obvious risks posed by COVID-19 to prisoners; (3) 42 U.S.C. Section 1983 claim for violation of the First and Fourteenth Amendments of the U.S. Constitution as a result of the Defendant's active interference with the ability of plaintiffs and the proposed class to meaningfully access the courts; (4) 42 U.S.C. Section 1983 claim for violation of the Sixth Amendment of the U.S. Constitution by the Defendant's active interference with the right of the Plaintiffs and the proposed class to access the assistance of their criminal defense counsel; and (5) California Civil Code Section 52.1(b) ("Bane Act") claim that the Defendant interfered or attempted to interfere by threat, intimidation, or coercion with the rights of the Plaintiffs and the proposed class, including the right to initiate civil actions under California Penal Code Section 2601(d). In their complaint, the Plaintiffs challenge the Defendant's callous indifference to their health and safety and his callow attempts to prevent them from challenging his unconstitutional practices in Court. They bring the action to prevent avoidable illness and death from COVID-19 among people incarcerated at Tulare County Jails. The Plaintiffs explain in their complaint that their use of the term Tulare County Jails refers to the five detention facilities managed by the Tulare County Sheriff's Office: Bob Wiley Detention Facility ("BWDF"), Main Jail, Men's Correctional Facility, Adult Pre-Trial Facility ("APTF"), and South County Detention Facility. These incarcerated Plaintiffs seek to represent a class defined as all people who are now, or in the future will be, incarcerated in Tulare County Jails, including as subclasses: (i) persons confined pre-trial, (ii) persons confined pursuant to a judgment of conviction, and (iii) Medically Vulnerable persons confined pre-trial and pursuant to a judgment of conviction. The allegations of Plaintiffs' complaint detail tge Defendant's purported failures to address the threat posed by COVID-19. In addition, they have alleged several specific instances of retaliation and intimidation taken against incarcerated people who challenge these purportedly unconstitutional conditions of confinement, whether through the internal grievance procedure in the Jails or by seeking legal assistance and access to the courts. The Plaintiffs further allege that in response to their counsel's investigation, the Defendant promulgated a new legal visitation policy on May 29, 2020 designed to frustrate the ability of incarcerated people to participate in confidential legal visits in the Jails. In their complaint, the Plaintiffs allege that immediate injunctive relief is crucial to restore confidential legal visits at Tulare County Jails and to cease the Defendant's ongoing constitutional violations. On Aug. 12, 2020, the Plaintiffs filed the pending application for provisional class certification and the pending motion for a temporary restraining order ("Motion"), seeking a Court order requiring the Defendant to immediately reduce overcrowding by using the available space in the Jails to facilitate social distancing; conduct universal testing to prevent the spread of COVID-19; and allow confidential attorney visits to proceed immediately without intimidation or the threat of retaliation. In addition to their own declarations, the Plaintiffs filed several declarations in support of their Application and Motion, including declarations attesting to the conditions of confinement in the Jails from four pre-trial detainees currently incarcerated in the BWDF. On Aug. 20, 2020, the Defendant filed his oppositions to the Application and Motion. In support of his oppositions, the Defendant filed declarations from officials in the Tulare County Sheriff's Department ("TCSD") including Captain Gabriel Macias, Lieutenant Cory Jones), Assistant Sheriff Cheri Lehner, Lieutenant Cyrena Robles (Doc. No. 15-6), and Undersheriff Tom Sigley. he Defendant also filed a declaration from Kevin Silveira, the Health Services Administrator for Wellpath, which contracts with TCSD to provide medical services in the Jails. On Aug. 24, 2020, the Plaintiffs filed their replies to the Defendant's oppositions to the pending Application and Motion. In further support of their motion, they also filed supplemental declarations from their attorney Sara McDermott and ACLU investigator Dylan Verner-Crist. The Plaintiffs seek to provisionally certify a class defined as all people who are now, or in the future will be, incarcerated in Tulare County Jails. Judge Drozd finds that all four requirements of Rule 23(a) have been satisfied. He also finds that the Plaintiffs have clearly satisfied the requirements of Rule 23(b)(2) and provisionally certifies the Proposed Class. He appoints Plaintiffs Criswell, Johnson, Ibarra, and Camposeco as the representatives of the class. Pursuant to Rule 23(g), he also appoints the ACLU Foundation of Northern California and the law firm Munger, Tolles & Olson as the class counsel. Turning to the Plaintiffs' Motion for a Temporary Restraining Order, Judge Drozd examines whether the Plaintiffs have satisfied each of the requirements for the issuance of the temporary restraining order which they seek. He finds that the Plaintiffs have demonstrated that they are likely to succeed (i) in showing that those remedies were effectively unavailable to them; (ii) on the merits of their claim alleging that jail conditions violate their Eighth and Fourteenth Amendment rights; (iii) on their deliberate indifference claim under the Eighth Amendment; (iv) on the merits of their right-to-access claim under the First and Fourteenth Amendments because they have presented ample evidence showing that defendant interfered with inmates' access to counsel and the courts; (v) on the merits of their Sixth Amendment claim; and (vi) on the merits of their Bane Act claim, which is derivative to an extent from those claims. Judge Drozd also finds that (i) the Plaintiffs have shown a likelihood that they will suffer irreparable harm in the absence of the requested injunctive relief; (ii) the Plaintiffs have satisfied their burden to show that the balance of the equities and public interest weighs in their favor; and (iii) good cause has been shown for early discovery by the Plaintiffs and authorizes the parties to serve early discovery in the case. Based on the foregoing, Judge Drozd pauses to note that at the conclusion of the hearing on the pending Motion, he encouraged the parties to meet and confer to determine whether resolution could be reached as to at least some of the issues discussed above. He did so because it appeared that there had been a complete lack of meaningful communication between the parties and that at least some of these issues should be capable of resolution without the need for intervention by the Court. Apparently, his hope in that regard was not well placed. Given the lack of meaningful response by the Defendant to the Plaintiffs' Motion and to the evidence presented by the Plaintiffs in support thereof, the Judge is compelled to issue the Order. For all of the reasons he stated, Judge Drozd granted the Plaintiffs' application for provisional class certification. The provisionally certified class is defined as: All people who are now, or in the future will be, incarcerated in Tulare County Jails." The ACLU Foundation of Northern California and the law firm Munger, Tolles & Olson are appointed as the class counsel; and Plaintiffs Criswell, Johnson, Ibarra, and Camposeco are appointed as the class representatives. The Judge granted in part the Plaintiffs' motion for a temporary restraining order. He ordered that, pending a hearing on a motion for preliminary injunction, the Defendant will be required to take the following actions: a. Adopt a policy designed to reduce contacts between incarcerated people in all common areas, including (but not limited to) bathrooms, day rooms, yards, and pill lines, and allow for the possibility of social distancing by inmates. The Defendant will memorialize the policy in writing and provide a copy of the policy to the Court and the Plaintiffs' counsel by Sept. 14, 2020. b. Adopt a policy with regards to masks, including the provision of masks to inmates and requirements for the wearing of masks. The Defendant will memorialize he policy in writing and provide a copy of the policy to the Court and the Plaintiffs' counsel by Sept. 8, 2020. c. Memorialize in writing the policy and procedure TCSD enacted on July 14, 2020 with regards to isolation, quarantine, and observation, including TCSD's policy for conducing COVID-19 testing. The Defendant will provide a copy of the policy to the Court and the Plaintiffs' counsel by Sept. 8, 2020. d. Provide to the Court and the Plaintiffs' counsel, by Sept. 14, 2020, a report detailing TCSD's COVID-19 testing to date. In addition, the report will provide the number of inmates who have been tested as a result of Wellpath's screening criteria, how many of those inmates tested positive, when those tests were conducted, and in which facility the inmates were incarcerated in at the time they were tested. The Defendant will also provide a copy of the current screening criteria being employed at the Jails by Wellpath and specify when Wellpath began using that current screening criteria. e. Ensure that the Plaintiffs' counsel have the ability to promptly (i.e., within two days) and confidentially communicate via remote means (i.e., video call) with incarcerated people at the Jails. f. Immediately cease requiring inmates to complete authorization forms as part of the attorney visitation policy enacted on May 29, 2020 (as revised on June 4, 2020). g. Provide to the Court and the Plaintiffs' counsel by Sept. 8, 2020, TCSD's revised legal visitation policy in writing. h. Ensure that no intimidation of or retaliation against incarcerated people who speak with counsel takes place at the Jails. No bond will be required to be posted by the Plaintiffs pursuant to Rule 65(c) of the Federal Rules of Civil Procedure. The Judge denied the Plaintiffs' request for leave to serve early discovery. He denied all other requests for relief in the Plaintiffs' motion. The parties were directed to meet and confer and, if possible, submit a joint proposed briefing schedule and hearing date with respect to any motion for a preliminary injunction, with that proposed schedule being submitted to the court no later than Sept. 28, 2020. The Judge granted the Defendant's motion to supplement his opposition to the pending Motion. The Defendant is further notified of his right to apply to the Court for modification or dissolution of the temporary restraining order, if appropriate and supported by a showing of good cause, on two days' notice or such shorter notice as the Court may allow. A full-text copy of the Court's Sept. 2, 2020 Order is available at https://tinyurl.com/yymv6v2b from Leagle.com. TVI INC: Melead Labor Suit Remanded to Orange County Superior Court ------------------------------------------------------------------- Judge Cormac J. Carney of the U.S. District Court for the Central District of California, Southern Division, granted the Plaintiff's motion to remand the case, RICK MELEAD, an individual, on behalf of himself, and on behalf of the general public similarly situated, Plaintiff, v. TVI, INC., d.b.a. SAVERS; and DOES 1 through 50, Defendants, Case No. SACV 20-01224-CJC (ADSx) (C.D. Cal.), to Orange County Superior Court. The Plaintiff worked for TVI as an hourly non-exempt sales clerk from October 2015 to October 2019 in Yorba Linda, California. The Complaint does not include any other details about his role, salary, or terms of employment. On May 11, 2020, the Plaintiff brought the suit in Orange County Superior Court. He asserts a claim for (1) violations of California's Unfair Competition Law, as well as six causes of action under California's Labor Code for (2) failure to pay overtime wages, (3) failure to pay minimum wages, (4) failure to provide meal periods, (5) failure to provide rest periods, (6) failure to provide accurate itemized statements, and (7) failure to pay wages when due. The Plaintiff asserts these claims on behalf of a proposed class of current and former non-exempt California employees of TVI at any time between April 6, 2016 and a date determined by the Court. The Plaintiff alleges broadly that TVI had a "uniform policy and practice which" failed to provide him and the class with (1) legally compliant meal and rest periods, (2) pay for all hours worked, and (3) accurate itemized wage statements. The boilerplate allegations in the complaint assert that TVI failed to properly compensate employees, forced them to work through required breaks, and failed to keep accurate records. Te Plaintiff has not alleged any other facts about TVI's practices and policies, the frequency of the alleged Labor Code violations, or the resulting damages. The Plaintiff served TVI with a summons and the Complaint on June 11, 2020. On July 10, 2020, TVI removed the action to the Court pursuant to the Class Action Fairness Act of 2005. Before the Court is the Plaintiff's motion to remand. The Plaintiff contends that the case must be remanded because TVI has not properly established that the amount in controversy exceeds $5 million. TVI argues that it reaches the $5 million threshold on the "waiting time penalties" alone, estimating them at $6,633,600. In the alternative, TVI contends that it can reach the threshold based on the following "conservative" estimates: (i) $4,772,875.20 in Waiting time penalties, (ii) $1,754,034.40 in Missed meal breaks, (iii) $1,754,034.40 in Missed rest breaks, and (iv) $250,000 in Attorneys' Fees. The total is $8,530,944. Judge Carney finds that TVI has not provided any evidence suggesting how many of the 2,744 terminated employees were full-time employees, as opposed to part-time employees. Nor has it provided an average of hours worked by class members. Accordingly, TVI has failed to sustain its evidentiary burden regarding waiting-period penalties for purposes of removal. Because TVI provides no factual underpinning for the assumption that a meal and rest break violation occurred one time per week, Judge Carney finds it has failed to carry its evidentiary burden for purposes of removal. Moss' declaration sets forth only the number of class members and their average hourly pay rate. She does not address anything that would provide factual support for TVI's assumption that one meal break violation and one rest break violation occurred per work week, rules the Court. Finally, TVI calculated its exposure for attorneys' fees as $250,000. While courts in the Ninth Circuit have considered potential attorneys' fees in calculating the amount in controversy in wage-and-hour cases, TVI's fee estimate is based on a conjectural damages calculation and should be disregarded, Judge Carney opines. For the foregoing reasons, Judge Carney concludes that TVI has not carried its burden to show that the Court has subject matter jurisdiction over the action under CAFA. Accordingly, he granted the Plaintiff's motion to remand, and remanded the case to Orange County Superior Court. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/yb8s4ue9 from Leagle.com. UNITED STATES AUTOMOBILE: Bid to Certify Interlocutory Appeal Nixed ------------------------------------------------------------------- In the case, SPINE CARE DELAWARE, LLC Plaintiff, v. UNITED STATES AUTOMOBILE ASSOCIATION, USAA GENERAL INDEMNITY COMPANY, USAA CASUALTY INSURANCE COMPANY, AND GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY Defendants, C.A. No. N18C-01-253 EMD CCLD (Del. Super.), Judge Eric M. Davis of the Superior Court of Delaware refused the Defendants' Application for Certification of an Interlocutory Appeal of Class Certification Order. Spine Care filed its "Plaintiff Spine Care Delaware, LLC's Motion for Class Certification" on July 29, 2019. The Motion centered on the Defendants' alleged untimely payment of covered medical expenses to Spine Care and other healthcare providers. Spine Care contends that the statutory interest owed on overdue Personal Injury Protection ("PIP")-related medical expenses is owed to Spine Care and others in the class. On Oct. 7, 2019, the Defendants filed their answer opposing the Plaintiff's Motion. On Nov. 13, 2019, Spine Care filed its reply. The Court held a hearing on the Motion, the Answer and the Reply on Jan. 29, 2020. After the hearing, it took the Motion under advisement. On June 18, 2020, the Court issued the Opinion, granting the relief requested in the Motion and certified a class under Civil Rule 23. The Defendants moved to reargue the Opinion, contending that reargument was necessary because: (i) they wished for further clarification on whether the certified class is limited to facility fee bills that the Defendants allegedly were precluded as a matter of law from disputing because they had deemed the underlying anesthesia bills to be compensable, and (ii) the class was improper as it is founded upon a misapprehension of the Defendants' data systems and ability to identify those claims. The Court denied reargument, holding that the Defendants were merely rehashing arguments already asserted and previously determined by the Court. The Court noted that the class definition was proper for: All persons or entities who, since Sept. 25, 2014, submitted claims for medical-expense-related Personal Injury Protection (or PIP) benefits under Delaware auto policies issued by United Services Automobile Association, USAA General Indemnity Co., USAA Casualty Insurance Co. or Garrison Property and Casualty Insurance Co., where (i) the claim was not disputed by the insurer on grounds of insufficient documentation within 30 days of receipt; (ii) the claim was not paid by the insurer within 30 days of receipt; and (iii) though ultimately paid in whole or part, the insurer made no payment of statutory interest on the claim. The Court allowed Spine Care to be included in the class because the Defendants were "precluded" from contesting the compensability of a portion of Spine Care's claim on a basis previously found to be improper by the Court. On Aug. 25, 2020, the Court entered an order implementing the Opinion dated June 18, 2020. The Defendants filed their Application for Certification of an Interlocutory Appeal of Class Certification Order on Sept. 4, 2020. They assert that the Application meets the criteria set forth in Rule 42(b)(iii)(A), (C), (G) and (H). They claim that: (i) the Opinion decides an issue unresolved in Delaware because the (a) the Supreme Court has never address an "interest class" before and (b) Delaware courts have not addressed a situation where class membership can be determined only by an individualized resolution of the merits of each class member's claim; (ii) the Opinion relates to the interpretation and application of a statute, which has not been, but should be, settled by the Supreme Court in advance of an appeal from a final order; and (iii) an interlocutory review of the Opinion may terminate this civil and action and thus serves the considerations of justice. Spine Care opposes the interlocutory appeal of the Opinion. In the Response, it argues that none of the rulings in the Opinion are questions of first impression in Delaware. It also contends that interlocutory review cannot possibly terminate the civil proceeding because, even without class certification, Spine Care could proceed with its individual claim against Defendants. Finally, it claims that piecemeal litigation of its claim and the class claims will not serve the considerations of justice. Judge Davis agrees with the arguments made in the Response. True, the Supreme Court has not ruled on the specific issues of the civil action, but it had and so had other jurisdictions. As noted in the Response, the Court has previously addressed class certification of statutory interest claims under Section 2118. Moreover, while there may be individual questions for certain claimants as to whether they meet Spine Care's class definition, the Court found that these individual questions did not predominate over whether the Defendants failed to pay statutory interest on PIP claims that were paid late. That is because the individual factual determinations that must be made, including the amount of interest to which each claimant is entitled, can be made by reference to records and objective criteria -- objective criteria and mathematical calculations applied to undisputed records. Interlocutory review will not result in a termination of the civil action. Spine Care has asserted both individual as well as classwide claims for statutory interest under Section 2118. As such, interlocutory review could only possibly terminate the class claims but not the individual claims of Spine Care. The Judge does not feel that interlocutory review will otherwise serve the considerations of justice. The Defendants do not, in the Application, seem to make additional arguments for their Rule 42(b)(iii)(H) argument. Moreover, as presented at the hearing on the Motion and through briefing, it does not seem to involve "intractable problems" that must be resolved through interlocutory appeal and not the normal trial court litigation process. As such, the Judge does not find that the benefits of interlocutory appeal outweigh the probable costs such that interlocutory review is in the interests of justice. He does not believe that the Defendants have demonstrated that interlocutory review of the Opinion is warranted. At the very least, a balancing of the considerations is uncertain. For these reasons, Judge Davis refused to certify the interlocutory appeal. A full-text copy of the Court's Sept. 9, 2020 Order is available at https://tinyurl.com/y8st22md from Leagle.com. UNITED STATES: Court Narrows Claims in Onosamba-Ohindo Suit ----------------------------------------------------------- Judge Elizabeth A. Wolford of the U.S. District Court for the Western District of New York issued a decision & order in the case, JUNIOR ONOSAMBA-OHINDO, on behalf of himself and all others similarly situated, and ANTONIO LOPEZ AGUSTIN, on behalf of himself and all others similarly situated, Petitioners/Plaintiffs, v. WILLIAM BARR, in his official capacity as Attorney General of the Department of Justice, et al., Respondents/Defendants, Case No. 1:20-CV-00290 EAW (W.D. N.Y.): (i) granting in part, denying in part, and reserving decision in part on the Petitioners' motion for class certification; (ii) granting in part and denying in part the Petitioners' motion for a preliminary injunction; and (iii) granting in part and denying in part the Respondents' motion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Class Petitioner/Plaintiff Onosamba-Ohindo and Subclass Petitioner Agustin have filed a petition for a writ of habeas corpus under 28 U.S.C. Section 2241 and complaint for declaratory and injunctive relief, purportedly on behalf of themselves and all other persons similarly situated. At the time the Petition was filed, the Petitioners were both civil immigration detainees held under 8 U.S.C. Section 1226(a) pending their removal proceedings. At the time the Petition was filed, the Class Petitioner was arrested by ICE and detained under 8 U.S.C. Section 1226(a) at the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York. He remained detained because he could not afford the $8,000 bond. The Petitioners allege that during the Class Petitioner's detention, he suffered from chest pains, back pains, and migraines without adequate medical treatment, and that separation from his wife and community also caused him "severe hardship." Additionally, his detention severely inhibited his ability to gather evidence for his underlying application for immigration relief and to assist his attorney in assembling his materials, a difficulty compounded by the fact that he speaks little English. On March 16, 2020, the Class Petitioner was released from immigration custody after the Brooklyn Bail Fund posted his bond. He presently lives with his wife in Buffalo, New York. On Aug. 7, 2019, ICE arrested the Subclass Petitioner after a raid at his workplace and detained him at the Richwood Correctional Center ("RCC") in Monroe, Louisiana. He has several traffic infractions and one misdemeanor conviction for possessing false identification from 2005 but has no violent or dangerous criminal history. ICE made the initial custody determination to detain the Subclass Petitioner without bond. At the time the Petition was filed, the Subclass Petitioner had been detained without bond for more than seven months at the RCC. His detention made it more difficult for him to communicate with the pro bono attorney who is helping him apply for cancellation of removal. Additionally, he could not communicate with friends and family on the outside to help gather evidence and support for his application, and Batavia was too far for them to come to support him or testify on his behalf. On April 6, 2020, the Subclass Petitioner was released from custody on his own recognizance. The Petitioners filed the instant action and motion to certify the class on March 11, 2020, and the case was assigned to Judge Lawrence J. Vilardo. The case was subsequently transferred to Judge Wolford on July 22, 2020. The Petitioners seek: class certification; a declaratory judgment that the actions, practices, policies, and/or omissions of Defendants/Respondents Barr, the United States Department of Justice, James McHenry, the Executive Office for Immigration Review, Matthew Albence, Chad F. Wolf, and Jeffrey Searls, violate the Immigration and Nationality Act ("INA") and its implementing regulations, the Administrative Procedure Act, and the Fifth Amendment to the U.S. Constitution; a declaratory judgment that each class member is entitled to a custody hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detained individual is a danger to others or a flight risk; and an order stating that each class member must be released unless provided with such a custody hearing. Presently pending before the Court are the Petitioners' motion for class certification, the Petitioners' motion for a preliminary injunction, and the Respondents' motion to dismiss. In their Motion to Dismiss for Lack of Subject Matter Jurisdiction, the Respondents contend that Petitioners' claims are moot because both Petitioners have been released from immigration custody. The Petitioners respond that their claims are not moot because they face the threat of re-detention. Alternatively, they claim that their claims are inherently transitory, an exception to the mootness doctrine. Judge Wolson finds that the Petitioners' claims fall within the inherently transitory exception to mootness. The Petitioners' claims are inherently transitory and may proceed even though they have been released from detention. The Petitioners have also argued that because they can be re-detained even after their release on bond, they are subject to the mootness exception for claims that are capable of repetition but evading review. However, in light of the finding that the inherently transitory doctrine applies to the Petitioners' claims, the Judge need not address whether the capable of repetition yet evading review exception to mootness applies to the instant matter. The Respondents also argue that the Court does not have jurisdiction over any putative class members detained at the RCC, or over the subclass because the Subclass Petitioner was detained at the RCC in Monroe, Louisiana, when the Petition was filed. Judge Wolson finds the Court does not presently have jurisdiction over the RCC detainees, including the Subclass Petitioner. The proper respondent/defendant for the Subclass Petitioner is the warden of the RCC. While the warden of the BFDF (Jeffrey Searls) is a party to the lawsuit, the warden of the RCC is not. Because the warden of RCC has not been named as a respondent nor served with the Petition, the Court does not have jurisdiction over the claims of the Subclass Petitioner. The Respondent next argues that 8 U.S.C. Section 1252(f)(1) prevents the Court from ordering class-wide relief. As a preliminary matter, the Judge finds that Section 1252(f)(1) does not bar class-wide declaratory relief. Accordingly, since the Class Petitioner seeks declaratory relief in addition to injunctive relief, the Respondent's motion to dismiss based on Section 1252(f)(1) must be denied. Moreover, Judge Wolson concludes that Section 1252(f)(1) does not bar the injunctive relief sought by the Class Petitioner. The dispositive inquiry into whether class-wide injunctive relief is available hinges on whether the Petitioners' requested relief would "enjoin or restrain the operation of" Section 1226(a). The Petitioners' requested injunctive relief does not enjoin or restrain the operation of Section 1226(a), and as a result Section 1252(f)(1) does not strip the Court of jurisdiction to order the requested relief on a class-wide basis. The Respondent next contends that the Court may not review discretionary bond determinations made by IJs. The Class Petitioner responds that he is not challenging the IJs' exercise of discretion but rather is challenging how the decisions are made -- i.e., what factors the IJs must consider in reaching a decision. Put another way, the Class Petitioner is raising legal, not factual challenges. Judge Wolson agrees. A district court cannot review custody determinations that an IJ, pursuant to her delegated authority, has made regarding a noncitizen's detention or release. The Class Petitioner is not challenging the IJ's weighing of evidence and factual findings. He is challenging the procedures used during Section 1226(a) bond hearings. Thus, these claims are outside the scope of the jurisdiction-stripping provisions of Sections 1226(e) and 1252(a)(2)(B). Turning to the Motion to Dismiss for Failure to State a Claim, Judge Wolson finds that (i) the Class Petitioner states a claim for the additional procedures requested at Section 1226(a) bond hearings; (ii) the Class Petitioner has stated a claim for violation of the INA; and (iii) the Court lacks jurisdiction over the Subclass Petitioner's claims, including the claims related to the No-Bond Policy. Accordingly, (i) the Respondent's motion to dismiss the habeas petition as to the Class Petitioner and the putative class members detained at the BFDF is denied; (ii) the Class Petitioner's claim that the IJ misinterpreted the INA by stating she could not consider alternative conditions of release may proceed, but his claims that the INA required the IJ to consider those alternatives or his ability to pay in setting bond are dismissed; and (iii) the Judge does not address the merits of the No Bond Policy claims at this time. On March 11, 2020, before applying for a preliminary injunction, the Class Petitioner moved to certify the class, seeking certification of the following: All individuals currently detained under Section 1226(a) who have had or will have a custody hearing before the Batavia or Buffalo Immigration Courts. Judge Wolson grants the motion in part and certifies a more narrowly defined class, denies the motion in part, and reserves decision in part. Among other things, Judge Wolson finds that the Class Petitioner has satisfied the prerequisites of Federal Rule of Civil Procedure 23(a) for class certification regarding the class-wide claims: "numerosity, commonality, typicality, and adequacy of representation. However, regarding the claim for injunctive relief, the Respondent correctly points out that the Court cannot resolve all of the claims of the proposed class with a single injunction. That does not mean that the Court is unable to certify, for purposes of injunctive relief, a class of individuals who have not yet received a bond hearing. Accordingly, the Judge grants class certification to the Pre-Hearing Class. With regards to the members of the proposed class who have already had a bond hearing, Judge Wolson does not at this time decide whether it would be appropriate to certify a separate class of those individuals for purposes of declaratory relief, although he notes that at least one other court has done so under similar circumstances. The issue has not yet been fully briefed, and certification of this potential class need not be addressed for purposes of the preliminary injunction motion. Therefore, the Judge reserves decision as to whether it would be appropriate to certify a separate class for purposes of declaratory relief that includes individuals currently detained at the BFDF under Section 1226(a) who have already had a custody hearing before the Batavia or Buffalo Immigration Courts ("Putative Post-Hearing Class"). Judge Wolfson granted in part and denied in part the Respondents' motion to dismiss. She dismissed without prejudice the claims of the Subclass Petitioner and the claims of the putative class and subclass members detained at the RCC. All the Respondents aside from Jeffrey Searls are dismissed without prejudice. She denied the Respondents' motion as to the Class Petitioner's due process claims and INA claim as articulated. Judge Wolson granted in part and denied in part the Petitioners' motion for class certification and otherwise reserved decision. Specifically, she certified the Pre-Hearing Class, which is defined as follows: All individuals currently detained at the Buffalo Federal Detention Facility under Section 1226(a) who will have a custody hearing before the Batavia or Buffalo Immigration Courts. Judge Wolson denied the motion without prejudice as moot to the extent it seeks class certification regarding any putative class member detained at the RCC, including the claims of Subclass Petitioner. She reserved decision on whether it will certify the Putative Post-Hearing Class, and a separate Text Order will be issued setting forth a briefing schedule on that aspect of the class certification motion. Judge Wolson also granted in part and denied in part the Petitioners' motion for a preliminary injunction. Specifically, she granted a preliminary injunction as to the constitutional claims of the Pre-Hearing Class and ordered that all members of the Pre-Hearing Class must receive a bond hearing wherein the government bears the burden of proving by clear and convincing evidence that the individual is a danger to the community or flight risk, and where the IJ must consider non-bond alternatives to detention or, if setting a bond, ability to pay. The Judge otherwise denied the motion for a preliminary injunction, including to the extent relief is sought by the Putative Post-Hearing Class and the Subclass Petitioner. The Court ordered the parties to confer within seven days of the date of the Decision and Order to develop a plan for the following: (i) developing instructions to all IJs in Batavia and Buffalo Immigration Courts who conduct Section 1226(a) bond hearings to inform them of the requirements of this Decision and Order; and (ii) developing a notice, in English, Spanish, and any other language deemed appropriate by the parties, summarizing the requirements of the Decision and Order for distribution to the Pre-Hearing Class members;. Within 10 days, the parties will provide a status report to the Court detailing the agreed-upon plan for the matters, after which the Court will, if necessary, issue an updated order. A full-text copy of the Court's Sept. 2, 2020 Decision & Order is available at https://tinyurl.com/y33qys74 from Leagle.com. UNITED STATES: Muhammad-Ali Suit v. 9 S.C. Justices Dismissed ------------------------------------------------------------- Judge Darrin P. Gayles of the U.S. District Court for the Southern District of Florida dismissed the case, AL-RABAT MOROCCO EMPRE KINGDOM ISLAMIC SOVEREIGNTY NATION 37-1880026 and XYZ INDIGENOUS ABORIGINAL 28,000 B.C. NATIVES AMERICAN CITIZENS, Plaintiffs, v. U.S. SUPREME COURT NINE JUSTICES, Defendant, Case No. 1:20-cv-23439-GAYLES/REID (S.D. Fla.). The matter comes before the Court on Magistrate Judge Lisette M. Reid's Report of Magistrate Judge. On Aug. 19, 2020, Plaintiff Drelijah Muhammad-Ali filed the pro se pleading, appearing to raise a class action. That same day, the action was referred to Judge Reid, for a ruling on all pretrial, non-dispositive matters and for a Report and Recommendation on any dispositive matters. On Aug. 26, 2020, Judge Reid issued her Report, recommending that the case be dismissed for lack of jurisdiction when construed as a petition brought under 28 U.S.C. Section 2241 and dismissed as a three-striker pursuant to 28 U.S.C. Section 1915(g) when construed as a complaint brought under 42 U.S.C. Section 1983. The Plaintiffs filed timely objections. Having conducted a de novo review of the record, Judge Gayles agrees with Judge Reid's well-reasoned analysis and conclusion that the case should be dismissed. Accordingly, he affirmed and adopted Judge Reid's Report. The case will be closed. A full-text copy of the Court's Sept. 4, 2020 Order is available at https://tinyurl.com/yyqabell from Leagle.com. UNITED STATES: Seeks Ninth Circuit Review in Scholl Prisoner Suit ----------------------------------------------------------------- Defendants Steven Terner Mnuchin, et al., filed an appeal from a court ruling entered in the lawsuit styled Colin Scholl, et al. v. Steven Mnuchin, et al., Case No. 4:20-cv-05309-PJH, in the U.S. District Court for the Northern District of California, Oakland. Mr. Mnuchin is sued in his official capacity as the Secretary of the U.S. Department of Treasury. As previously reported in the Class Action Reporter on Sept. 4, 2020, the Plaintiffs will move the Court on Sept. 11, 2020, for an order: 1. certifying a class of incarcerated persons under FRCP 23(b)(2) and/or (b)(3); and 2. granting a class-wide preliminary injunction declaring the Defendants' policy unlawful and requiring them to issue Economic Incentive Payments (EIP) benefits to eligible Class Members; and 3. appointing a co-lead class counsel. The Plaintiffs contend that the Defendants' exclusion of incarcerated people from the EIP program is unlawful and that further delay will cause irreparable harm to themselves, the proposed Class, and their friends and family members, particularly given that the CARES Act's express purpose is to provide relief "as rapidly as possible." The Department of the Treasury is the national treasury of the federal government of the United States where it serves as an executive department. The Internal Revenue Service is the revenue service of the United States federal government. The government agency is a bureau of the Department of the Treasury, and is under the immediate direction of the Commissioner of Internal Revenue, who is appointed to a five-year term by the President of the United States. The appellate case is captioned as Colin Scholl, et al. v. Steven Mnuchin, et al., Case No. 20-16963, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Appellees COLIN SCHOLL and LISA STRAWN, on behalf of themselves and all others similarly situated, are represented by: Jalle Dafa, Esq. Kelly M. Dermody, Esq. Yaman Salahi, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 Telephone: (415) 956-1000 E-mail: jdafa@lchb.com kdermody@lchb.com ysalahi@lchb.com - and - Eva Jefferson Paterson, Esq. EQUAL JUSTICE SOCIETY 1999 Harrison Street Oakland, CA 94612 Telephone: (415) 288-8700 Facsimile: (510) 338-3030 Intervenors-Plaintiffs-Appellees JOHN GALVAN and PATRICK TAYLOR are represented by: Christopher R. Pitoun, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Avenue, Suite 920 Pasadena, CA 91101 Telephone: (213) 330-7150 E-mail: christopherp@hbsslaw.com Defendants-Appellants STEVEN TERNER MNUCHIN, in his official capacity as the Secretary of the U.S. Department of Treasury; CHARLES P. RETTIG, in his official capacity as U.S. Commissioner of Internal Revenue; UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES INTERNAL REVENUE SERVICE, and UNITED STATES OF AMERICA, are represented by: Julie Ciamporcero Avetta, Esq. U.S. DEPARTMENT OF JUSTICE P.O. Box 502 Washington, DC 20044 Telephone: (202) 616-2743 VALENTINE & KEBARTAS: Cardenas Seeks to Certify FDCPA Class ----------------------------------------------------------- In the class action lawsuit captioned as GLORIA CARDENAS, individually and on behalf of all others similarly situated, v. VALENTINE & KEBARTAS LLC, and JOHN and JANE DOES 1-10, Case No. 5:20-cv-00300-OLG (W.D. Tex.), Ms. Cardenas asks the Court for an order certifying a class defined as: "all natural persons to whom Valentine & Kebartas, LLC, mailed a written communication to a Texas address during the Class Period beginning on March 11, 2019 and ending on April 1, 2020." Ms. Cardenas alleges V&K violated the Fair Debt Collection Practices Act, by mailing her and 19,601 similarly situated Texas residents an identical standardized form collection letter that she contends uniformly violates the FDCPA. V&K provides collection services to public and private sector clients. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/3iQNeAY at no extra charge.[CC] Attorneys for Plaintiff are: Andrew T. Thomasson, Esq. Philip D. Stern, Esq. Francis R. Greene, Esq. Katelyn B. Busby, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Telephone: (973) 379-7500 E-Mail: Andrew@SternThomasson.com Fhilip@SternThomasson.com Francis@SternThomasson.com Katelyn@SternThomasson.com - and - William M. Clanton, Esq. LAW OFFICE OF BILL CLANTON, P.C. 926 Chulie Drive San Antonio, TX 78216 Telephone: (210) 226-0800 Facsimile: (210) 338-8660 E-Mail: bill@clantonlawoffice.com VERIZON CONNECT: Collective Status Sought in Garnick et al. Suit ---------------------------------------------------------------- In the class action lawsuit captioned as LAUREN GARNICK, TSHACHA ROMEO and COREY HANVEY, Individually, and on behalf of all others similarly situated, v. VERIZON CONNECT FLEET USA LLC, Case No. 8:20-cv-01474-MSS-TGW (M.D. Fla.), the Plaintiffs ask the Court for an order: 1. conditionally certifying this case to proceed as a Section 216b collective action; 2. requiring the Defendant to produce the names, US mail, email addresses and telephone numbers of each putative class member; and 3. authorizing the Plaintiff to send notice of this action to: "all currently or formerly employed BDR and Closers that were employed by the Defendant and its predecessor within the preceding three (3) years to the present." The Plaintiffs have brought this Fair Labor Standards Act collective action against the Defendant, alleging that Defendant violated the FLSA by willfully failing to pay them and all Inside Sales Representatives (ISR) under the titles of "Closers" and Business Development Representatives (BDR) overtime compensation for all hours worked over 40 in each and every work week, and further willfully failed to properly and record their work hours in violation of the FLSA. Verizon is doing business in consumer electronics and appliances stores industry. A copy of the Plaintiffs' motion for conditional certification is available from PacerMonitor.com at https://bit.ly/2E8XSnI at no extra charge.[CC] Attorney for Plaintiffs and the Classes are: Mitchell L. Feldman, Esq. FELDMAN LEGAL GROUP 6940 W. Linebaugh Ave., #101 Tampa, FL 33625 Telephone: 813-639-9366 Facsimile: 813-639-9376 E-mail: mlf@feldmanlegal.us lschindler@feldmanlegal.us VIVINT INC: App. Court Flips Dismissal of Linehan-Clodfelter Suit ----------------------------------------------------------------- In the case, EZRA LINEHAN-CLODFELTER, Plaintiff and Appellant, v. VIVINT, INC., Defendant and Respondent, Case No. A157661 (Cal. App.), the Court of Appeals of California for the First District, Division Five, reversed the trial court's dismissal of the Plaintiff lawsuit against his former employer, Vivint, concluding he lacked standing to pursue a claim for penalties under the Private Attorney General Act of 2004. Vivint is a residential automation and security company. The Plaintiff worked for Vivint as an installation technician. After his employment ended, he filed a putative class action complaint against Vivint. The operative first amended complaint alleged violations of the Labor Code, including failure to pay wages and overtime and failure to provide meal and rest breaks - and an unfair competition cause of action. The complaint also alleged a PAGA claim. Vivint moved to compel arbitration of all claims except the PAGA claim. The court granted the petition and stayed the PAGA claim pending completion of arbitration. Not long after, the Plaintiff moved to dismiss the individual and class claims without prejudice. In a supporting declaration, Plaintiff averred he wished to dismiss the individual and class claims so he could continue in his role as a representative in the currently stayed PAGA claim. Plaintiff requested a dismissal without prejudice because he thought a dismissal with prejudice might prevent him from pursuing his PAGA claim on behalf of aggrieved employees. The Plaintiff, however, had no intention of pursuing any of the individual or class claims now or anytime in the future. He claimed his goal in filing the lawsuit was to help his coworkers, and he intended to do that by litigating the PAGA cause of action. The trial court granted the motion, dismissed the individual and class claims without prejudice, and lifted the stay on the PAGA claim. With the stay lifted, Vivint demurred to the PAGA claim. According to Vivint, by abandoning his individual claims, the Plaintiff was no longer an "aggrieved employee" within the meaning of PAGA. Vivint's logic was that without an underlying Labor Code claim, the Plaintiff lacked standing to pursue PAGA penalties on behalf of other employees. The trial court agreed and sustained the demurrer without leave to amend. It determined the legislative history demonstrated PAGA was not intended to allow an action to be prosecuted by any person who did not have a grievance against his employer for Labor Code violations. It reasoned that without an individual or class claim, the Plaintiff was not an aggrieved employee within the meaning of PAGA. It explained a litigant cannot assert individual labor claims, then dismiss them without prejudice while disclaiming any future intent to assert them, but still continue to maintain standing as an aggrieved party under PAGA. The trial court dismissed the operative complaint with prejudice and entered judgment for Vivint. Relying on the high court's opinion in Kim v. Reins Internat. California, Inc. (2020) 9 Cal.5th 73 (Kim), the Appellate Court will reverse. Under the Kim case, the Appellate Court concludes that the Plaintiff is an "aggrieved employee" with standing to pursue his PAGA claim. The Plaintiff alleged he was employed by Vivint, and that he personally suffered at least one Labor Code violation on which the PAGA claim is based. The Plaintiff's dismissal of his individual and class claims did not nullify these alleged Labor Code violations, nor strip the Plaintiff of his standing to pursue PAGA remedies. Dismissing these claims to pursue a stand-alone PAGA claim is -- as Kim observes -- authorized by section 2699, subdivision (g)(1). Vivint's attempt to distinguish Kim is not persuasive, the Appellate Court finds. For example, Vivint contends the Plaintiff did not settle his individual claims as in Kim, but rather "waived," "forfeited," or "abandoned" them. Premised on semantics, the argument misses the point. The rule from Kim is an "aggrieved employee" has standing to pursue a PAGA claim, irrespective of whether that employee maintains a separate Labor Code claim. And as discussed, the Plaintiff alleged he was an aggrieved employee. Under Kim, the allegation is sufficient, at this stage, to establish standing. To the extent Vivint argues Kim applies only when a plaintiff settles the underlying Labor Code claims, the Appellate Court disagrees. Vivint's reliance on federal district court cases, including Cabrera v. CVS Rx Servs., does not persuade the Judge that the Plaintiff lacks standing to pursue a PAGA claim. The holding in Cabrera -- that a plaintiff without underlying Labor Code claims lacks standing to pursue a PAGA claim -- has been rejected by the high court in the Kim case. The Court is bound by the California Supreme Court's decision. Because the Plaintiff was an "aggrieved employee," he had standing to pursue a PAGA claim notwithstanding the dismissal of his individual and class claims, the Appellate Court opines. The trial court erred by sustaining Vivint's demurrer without leave to amend on the basis that the Plaintiff lacked standing, the Appellate Court relates. Reversal is required. Accordingly, the Appellate Court reversed the trial order sustaining the demurrer without leave to amend and the judgment of dismissal. On remand, the trial court must vacate the order and judgment, and enter a new order overruling the demurrer. The Plaintiff is entitled to costs on appeal. A full-text copy of the Appellate Court's June 26, 2020 Opinion is available at https://bit.ly/3jXn54k from Leagle.com. WAL-MART STORES: Appeals Decision in Hamilton Suit to 9th Circuit ----------------------------------------------------------------- Defendants Wal-Mart Stores, Inc., et al., filed an appeal from a court ruling entered in the lawsuit styled as Chelsea Hamilton, individually and on behalf of all others similarly situated v. Wal-Mart Stores, Inc., a corporation; Wal-Mart Associates, Inc., a corporation; and DOES 1 through 50, inclusive, Case No. 5:17-cv-01415-AB-KK, in the U.S. District Court for the Central District of California (Riverside). The appellate case is captioned as Chelsea Hamilton, et al. v. Wal-Mart Stores, Inc., et al., Case No. 20-55223, in the United States Court of Appeals for the Ninth Circuit. The lawsuit alleges violation of labor-related laws. Wal-Mart Stores, doing business as Walmart, is an American multinational retailing corporation that operates as a chain of hypermarkets, discount department stores, and grocery stores.[BN] Plaintiff-Appellee Chelsea Hamilton is represented by: Brian J. Mankin, Esq. FERNANDEZ & LAUBY LLP 4590 Allstate Drive Riverside, CA 92501 Business: 951-320-1444 Personal: 951-320-1444 - and - Stephanie Emi Yasuda, Esq. Kenneth H. Yoon, Esq. Stephanie Emi Yasuda, Esq. Kenneth H. Yoon, Esq. LAW OFFICES OF KENNETH H. YOON One Wilshire Boulevard Los Angeles, CA 90017-3383 Personal: 213-612-0988 Plaintiff-Appellee Alyssa Hernandez, on behalf of themselves and all others similarly situated, is represented by: Brian J. Mankin, Esq. FERNANDEZ & LAUBY LLP 4590 Allstate Drive Riverside, CA 92501 Business: 951-320-1444 Personal: 951-320-1444 The Defendant-Appellants are represented by: Elizabeth Aislinn Dooley, Esq. Theane Evangelis, Esq. Bradley Joseph Hamburger, Esq. GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Personal: 415-393-8342 - and - Matthew Ryan Gershman, Esq. Robert James Herrington, Esq. Mark D. Kemple, Esq. GREENBERG TRAURIG LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Personal: 310 586-7776 WESTSIDE 309: Dismissal of Claims of 74 Plaintiffs in Chang Denied ------------------------------------------------------------------ In a class action against Westside 309 LLC, the New York County Supreme Court denied the Moving Defendants' motion to dismiss each of the 74 Plaintiffs' claims for, inter alia, rent overcharge damages asserted against them that are not their respective landlord. The case is YEN CHANG, KENNETH HICKS, RANDY GARCIA, TIFFANY LEE, STEPHEN BOTTA, TAILEEN JOA, SHIRLEY MITCHELL, CYNTHIA LOWE, DANIEL LORIA, NICOLE COCCHIARO, ANN VOTAW, SALVATORE RUSSO, ELIZABETH BOUK, NETANIA BUDOFSKY, JESSICA GOLDHIRSH, JOSEPH OSTWALD, ANDREW O'BRIEN, LAURA PIRAINO, MELODY MERKER, GARY TOPP, KRISTINA BONHORST, KENT HAINA, ANDREW KELTZ, DARRYL WASHINGTON, MEGAN HAGAR, MARISSA KOELLER, GABRIELLA GARCIA, TIMOTHY BARKER, ADEOLA ROLE, CAROLINA BOTERO, JOSEPH CRACCO, DAVID WALKER, FLORENCE LAGAMMA, MARY LEVITT, RYAN BALAS, DEIRDRE BALAS, JONATHAN LEUNG, LUKE VAN DEE VEER, JOSEPH RICCARDI, ADRIENNE RICCARDI, KAREN CLAMAN, PETER CERNAUSKAS, RYAN CLAPP, CLEMENT CHAN, MATTHEW HAENSLY, SCOTT CHAPMAN, MOHAMMAD ISLAM, STEPHANIE MOSHER, ALGERSON ANDRE, LUKASZ JANIK, YOLANDA NUNLEY, MICHAEL ALBERTSON, ADINA WOLF, JONATHAN O'GRADY, DAVID ISAACS, STEPHANIE MACIOCH, ISABELLA CARDONA, MICHAEL WILKE, SHUCHIN SHUKLA, MAMUA JEME, GLENN ENGLISH, ANA MARIE SANTOS, JEN WATSON, KERRY McFATE, DESIREE GRENAY, JONATHAN GRENAY, TIMOTHY MORAN, LORNE HEILBRONN, J.L. DUFFY, PHYLLIS HIRSHORN, HANS KLUEFER and KATHERINE KLUEFER, Plaintiffs, v. WESTSIDE 309 LLC, THAYER 45 LLC, POST 118 LLC, SEAMAN 20 LLC, SEAMAN 30 LLC, SEAMAN 133 LLC, VERMILYEA 153 LLC, HEIGHTS 170 LLC, HEIGHTS 624 LLC, HEIGHTS 177 LLC, FT GEORGE 617 LLC, INWOOD 213 LLC, PAYSON 55 LLC, CROWN ASSOCIATES LLC, GEBS REALTY LLC, ALJO REALTY LLC, ABIII LLC, SKILLMAN 47 LLC, PAGE REALTY LLC, SUNNYSIDE 45-42 LLC, SYLVEEN REALTY LLC, SUNNYSIDE 47-21 LLC and SUNNYSIDE 42 LLC, Defendant, Docket No. 153031/2018, Motion Seq. No. 006 (N.Y. Sup.). The Moving Defendants are Westside 309 LLC, Thayer 45 LLC, Post 118 LLC, Seaman 20 LLC, Seaman 30 LLC, Seaman 133 LLC, Vermilyea 153 LLC, Heights 170 LLC, Heights 624 LLC, Heights 177 LLC, Ft. George 617 LLC, Inwood 213 LLC, Payson 55 LLC, Crown Associates LLC, Gebs Realty LLC, Aljo Realty LLC, ABIII LLC, Skillman 47 LLC, Page Realty, LLC (incorrectly sued herein as Page Realty LLC), Sunnyside 45-42 LLC, Sylveen Realty LLC, and Sunnyside 47-21 LLC. In prior motions to dismiss, pursuant to CPLR 3211, the Moving Defendants raised a myriad of issues with the Plaintiffs' theory of the case, inter alia, that the Plaintiffs failed to allege sufficient facts to maintain the instant action as a class action, pursuant to Article 9 of the New York Civil Practice Law and Rules (CPLR), and that the action should be dismissed as against then-Defendant Bronstein Properties, LLC, arguing that said party had no liability as a managing agent acting on behalf of disclosed principals, its landlord-clients. On March 21, 2019, the Court granted in part and denied in part the aforesaid motions. Based upon the arguments made, the Court agreed that Bronstein Properties could not be found liable for the alleged rent overcharge claims, as it was a managing agent acting on behalf of disclosed principals (i.e. Moving Defendants), and as such, the Court dismissed the action as against Bronstein Properties. However, the Court denied the branches of the motions seeking to dismiss the complaint on the ground the Plaintiffs cannot maintain their claims as a class action as such arguments were "premature." Citing Maddicks v Big City Properties, LLC, (163 A.D.3d 501, 504 [1st Dept 2018]), the Court reasoned that such a detailed analysis of class certification status is inappropriate at the pleading stage. Since that time, the First Department's decision in Maddicks has been affirmed by the Court of Appeals. Notwithstanding the District Court's prior decision and the affirmance in the Maddicks case, the Moving Defendants brought a second motion to dismiss the class action and reiterating some of the same arguments made on the prior motions to dismiss. Furthermore, they make the additional argument that the motion should be dismissed pursuant to the doctrine of primary jurisdiction. In addition, the Moving Defendants also denominate the instant motion as a motion to sever, pursuant to CPLR 603, and argue that joinder of the claims is inappropriate and that the Court should sever the claims against each of the 23 single purpose owner entities into 23 separate actions. The Moving Defendants further argue that Maddicks is not relevant here because they are moving to sever, pursuant to CPLR 603, and not simply moving to dismiss on the pleadings, pursuant to CPLR 3211(a) -- as they did before. They also argue that the Court's dismissal of Bronstein Properties further militates in favor of dismissing the instant putative class action and the severing of the underlying claims into 23 separate litigations. The Plaintiffs oppose the motion and argue that they should be awarded attorney fees and costs in defending said motion. As established in the Maddicks case, on a motion pursuant to CPLR 3211, it is premature to dismiss class claims based on allegations of a methodical attempt to illegally inflate rents. Rather, when a defendant challenges issues of commonality and typicality -- as the Moving Defendants do in the case -- such a challenge should be addressed on a motion for class certification, pursuant to CPLR article 9, after the plaintiffs have had the benefit of class certification discovery. As long as the putative class complaint addresses harm effectuated through a variety of approaches but within a common systematic plan, the motion to dismiss should be denied. What makes the instant case somewhat different from the Maddicks case, is: (1) there is no allegation that any remaining defendant is an umbrella owner of all the Moving Defendants; and (2) the management company, Bronstein Properties, has been dismissed from the instant case -- again, per the Court's decision on the prior motions to dismiss -- on the grounds that it was an agent acting on behalf of disclosed principals. Judge Kalish finds that these two differences do not provide a basis to distinguish the instant case from the Maddicks case and its application. With regard to the first distinction, there has never been a requirement that the Defendants in a class action have a formal corporate relationship. With regard to the second distinction, it matters not that the management company Bronstein Properties cannot be held directly liable for the illegal actions it allegedly orchestrated as a "systematic effort" or "methodical attempt" for the benefit of its client landlords. To the extent that Moving Defendants argue that the action should be dismissed because the complaint asserts causes of action by individual plaintiffs against certain Moving Defendants that are not their respective landlord, Judge Kalish rejects that argument. Giving the complaint a liberal construction, the Judge finds that the complaint only asserts claims by each Plaintiff against his or her respective landlord. Regarding the Moving Defendants' argument that the action should be dismissed pursuant to the doctrine of primary jurisdiction -- without prejudice to the Plaintiffs pursuing their claims before the DHCR -- the Judge also rejects this argument. It has long been settled law that a class action may not be dismissed, pursuant to the doctrine of primary jurisdiction, prior to the Supreme Court ruling upon the issue of class certification. Lastly, to the extent that the Moving Defendants seek to differentiate the instant motion from the prior motions to dismiss by denominating the instant motion as also being a motion to sever, pursuant to CPLR 603 -- as opposed to purely a motion to dismiss, pursuant to CPLR 3211 -- the Court finds that to be a distinction without a difference and rejects the Moving Defendants' arguments. Further, the Moving Defendants argue that it is more efficient to sever the instant action into 23 separate actions and litigate them separately. Again, this is, in sum and substance, the same argument that was made on the prior motions to dismiss, based on CPLR 3211, and the same arguments will likely be made by the Moving Defendants in opposition to a future motion for class certification. With regard to the Plaintiffs' request for costs and attorney fees, that request is denied. The Judge has considered all the arguments raised and finds them to be unavailing. One argument not raised, however, is that the instant motion is barred by the single motion rule as per CPLR 3211(e). Every argument raised on this motion was either raised in the prior motions or could have been raised on those motions. Nonetheless, the Judge is encouraged by the parties recently stipulating to amend the complaint to conform to Regina Metro. Co., LLC v DHCR, (2020 NY Slip Op 02127, 21 [Ct App Apr. 2, 2020]). As such, the Judge expects that the parties will work cooperatively and expeditiously in completing class certification discovery. Accordingly, Judge Kalish denied the Moving Defendants' motion. The Judge also denied the Plaintiffs' request for an award of attorney fees and costs in defending the instant motion. A full-text copy of the District Court's June 26, 2020 Decision and Order is available at https://bit.ly/2SS8A5S from Leagle.com. ZARA USA: Gillett Seeks Conditional Collective Status ----------------------------------------------------- In the class action lawsuit captioned as LATRELL GILLETT, individually and on behalf of others similarly situated, v. ZARA USA, Inc. and INDITEX USA LLC, Case No. 1:20-cv-03734-KPF (S.D.N.Y.), the Plaintiff will move the Court for an order granting conditional collective certification, court-authorized notice, and expedited discovery, pursuant to the Fair Labor Standards Act, as well as such other and further relief as the Court deems just and proper. Zara is an architecture and planning company based out of 1238 Wisconsin Ave NW, Washington. A copy of the Plaintiff's motion for conditional certification is available from PacerMonitor.com at https://bit.ly/3kG5uxP at no extra charge.[CC] The Plaintiff is represented by: Brian S. Schaffer, Esq. Hunter G. Benharris, Esq. 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