/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/201029.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 29, 2020, Vol. 22, No. 217 Headlines 58TH BAKERY: Flores Sues Over Unpaid Wages for Restaurant Staff ABC PHONES: Court Disapproves $1.7MM Deal in O'Bryant FLSA Suit ABSOPURE WATER: Fails to Pay Proper OT to Delivery Staff, Guy Says ADIENT US: Underpays Manufacturing Employees, Butler Suit Claims AIR METHODS: Settlement in Toolajian Class Suit Gets Final Approval ALLIANCE ENTERTAINMENT: Fails to Timely Pay Wages, Carrington Says ALTERRA MOUNTAIN: Bursor and Dovel Firms Named Counsel in Kramer AMERICAN ELECTRIC: Rosen Law Reminds of Class Action AMERICAN HONDA: Dismissal of State-Law Claims in Floyd Suit Vacated AR RESOURCES: Court Narrows Claims in Wright FDCPA Suit ARKA GRILL: Fails to Pay Proper Wages to Servers, Fazzino Claims ASPEN CONSTRUCTION: Class in Arroyo Suit Conditionally Certified ATLANTIC CREDIT: Cooper Remanded for Lack of Jurisdiction Dismissal ATM COLLECTION: Blind Users Can't Access Web Site, Romero Claims AURORA CANNABIS: Bragar Eagel Announces Class Action AVIS BUDGET: Denial of Arbitration Bid in Celestin Suit Upheld B2C JEWELS: Blind Users Can't Access Web Site, Romero Claims BAIDU INC: Vincent Wong Reminds of Class Action BAYER HEALTHCARE: Bid to Dismiss First Amended Prescott Suit Denied BIOMARIN PHARMA: Gross Law Firm Announces Class Action BIOMARIN PHARMA: Howard G. Smith Reminds of Nov. 24 Deadline BLINK CHARGING: Pomerantz Law Firm Reminds of Class Action BRASKEM SA: Zhang Investor Law Reminds of Class Action BRIGHT FLOORING: Faces Cedeno FLSA Suit Over Abrupt Termination BUDGET VAN: Loses Bid to Dismiss Caplan TCPA Class Action CANADIAN MEDICAL: Byer Clinic et al. Sue Over Unsolicited Fax Ads CARVERTISE INC: Faces Kostakis Suit Over Unsolicited Text Messages CDM FEDERAL: Faces Ali Suit Over Failure to Pay Overtime Wages CDM FEDERAL: Fails to Pay Proper OT to Staff, Batiste Suit Says CELL NATION: Fails to Pay Proper Wages, Aribou et al. Claim COLONIAL PARKING: $1.95MM Deal in Abraha Gets Prelim. Approval COMCAST CORP: Faces Be ERISA Suit Over Denied Insurance Claim CONTRACTED MEDICAL: Court Denies Class Certification of Snyder Suit COPPERAS COVE: Cox Sues Over Unpaid Overtime for Nursing Aides COSTCO WHOLESALE: Consolidated Opioid-Related Litigation Ongoing COSTCO WHOLESALE: Continues to Defend Martinez Class Action COSTCO WHOLESALE: Decision to Remand Nevarez Suit Appealed COSTCO WHOLESALE: Soulek Putative Class Action Ongoing CREDIT ACCEPTANCE: Kahn Swick Reminds of Dec. 1 Deadline DELORES & WILLIAM: Website Inaccessible to Disabled, Sarwar Claims DIGITAL MEDIA: Hooper Sues Over Unsolicited Text Messages DNF ASSOCIATES: Loses Summary Judgment Bid in Viernes Class Action EASTMAN KODAK: Hagens Berman Reminds of Class Action EIGHT SLEEP: Website Inaccessible to Blind, Romero Suit Claims ENVISION PHYSICIAN: Weller Sues Over Unsolicited Text Messages FAST GRILL: Fails to Properly Pay Overtime Wages, Pichardo Claims FIDELITY NATIONAL: Faces Colmone Suit Alleging WARN Act Violations FIRST UNION: Faces Fabricant Suit Over Unsolicited Marketing Calls FREEDOM MORTGAGE: 4th Cir. Revives Lawsuit G4S SECURE: Fails to Timely Pay Overtime, Melendez et al. Claim GATES CORP: Bid to Strike 13 Opt-Ins from Lundine FLSA Suit Denied GLENCORE PLC: Court Dismisses Church's Amended Securities Suit GOLAR LNG: Rosen Law Reminds of Nov. 23 Deadline GRACE 365: Faces Cortes Suit Over Failure to Pay Proper Wages GREENE COUNTY, MO: $750,000 Deal in Voorhis Gets Final Approval HARBORSIDE INC: Rosen Law Reminds of November 9 Deadline HAVENLOCK INC: Website Inaccessible to Blind Users, Jaquez Claims HERB & LOU'S: Website Inaccessible to Blind, Jaquez Suit Says IDEXX DISTRIBUTION: Bid to Dismiss Howard Labor Suit Denied as Moot IES RESIDENTIAL: Ajpaccaja Sues Over Unpaid OT for Electricians INDIVIOR INC: Class Certification in Suboxone Antitrust Suit Upheld INTERSTATE BROKERS: Parks Sues Over Unsolicited Telephone Calls INVESTMENTS MANAGEMENT: Alfonso Sues Over Unpaid OT, Retaliation IPSOS PUBLIC: Faces Orlando TCPA Suit Over Unsolicited Phone Calls KAISER FOUNDATION: Court Modifies July 13 Opinion in Futterman Suit KEMPER SPORTS: Agras Sues Over Illegal Background Check KENAN ADVANTAGE: Underpays Dispatchers, Burns Suit Claims LENDINGCLUB CORP: Bid to Strike Class Claims in Erceg Suit Denied LYFE PRODUCTIVES: Faces Fuller Wage-and-Hour Suit in California MANTEI & ASSOCIATES: Black Suit Remanded to Lexington County Court MARS PETCARE: Dismissal of Moore's California State Claims Reversed MDL 2047: Court Orders Depositions in Chinese Drywall Suit MDL 2047: Knauf Entities Win Partial Summary Judgment v Steve Binns MDL 2047: Knauf Entities Win Summary Judgment vs. Amuso Claims MDL 2047: Knauf Entities Win Summary Judgment vs. Arrowhead Claims MDL 2047: Knauf Wins Dismissal of Gaspard Claims in Drywall Suit MDL 2323: Langfitt Garner to Get 60% of Counsel Fees in NFL Suit MICHIGAN: Two Classes of Non-citizen Detainees in Malam Certified MIELE INCORPORATED: Williams Suit Moved From S.D.N.Y. to N.D. Cal. MONDELEZ GLOBAL: Court Dismisses Harris Suit with Prejudice MONTANA: Summary Judgment Order in Brooke Suit Affirmed MOUNTAIRE FARMS: Interlocutory Appeal Cert. in Cuppels Suit Refused MRS BPO: Faces Pugh TCPA Suit Over Unsolicited Telephone Calls NEWREZ LLC: Court Denies Dismissal of Labrecque RESPA Suit NIKOLA CORP: Kessler Topaz Reminds of Nov. 16 Deadline NIKOLA CORPORATION: Johnson Fistel Reminds of Nov. 16 Deadline NMG LONG: Faces Jones TCPA Suit Over Unsolicited Text Messages NORTH CENTRAL: Compton Sues Over Drivers' Unreimbursed Expenses OHIO STATE TEACHERS: Dismissal of Amended Dennis Suit Recommended OHIOHEALTH CORP: Underpays Services Officers, Melgard Suit Claims OLD NORTHERN: Underpays Restaurant Servers, Giapitzaki Suit Says ONESPAN INC: Pomerantz Law Reminds of Class Action P.A.M. TRANSPORT: $16.5MM Settlement in Browne Gets Final Approval PARKOFF OPERATING: Court Denies Bid to Dismiss Amended Quinn Suit PORTFOLIO RECOVERY: Sites WVCCPA Suit Removed to S.D. West Virginia PROCTER & GAMBLE: Bid to Dismiss Davis Suit Denied as Moot PROGENITY INC: Johnson Fistel Reminds of Oct. 27 Deadline PUCKS EXPRESS: Underpays Delivery Drivers, Reese Suit Alleges QUTOUTIAO INC: Gross Law Announces Class Action QUTOUTIAO INC: Pomerantz Law Firm Reminds of Class Action ROCKLINE INDUSTRIES: Fails to Pay Proper OT Wages, King Claims ROSETTA STONE: Harrison Challenges Proposed Sale to Cambium Holding RUMPKE WASTE: Gambrell Sues Over Unpaid Overtime for Welders S.W.O.R.N. PROTECTION: Buckley Sues Over Managers' Unpaid Overtime SAFESPEED LLC: Court Refuses to Dismiss Marso ADA Class Action SAM GILDERSLEEVE: Becker Sues Over Failure to Pay OT to Laborers SAN JOSE: Fails to Provide Accurate Wage Statements, Flores Claims SDM HOSPITALITY: Fails to Pay Proper OT to Cooks, Hardy Suit Says SEALIFT HOLDINGS: Bond Posted for Llagas Claims Reduced to $42,000 SK FOODS: Status Conference in Cliffstar Case Moved to December SK FOODS: Status Conference in DFSI Case Moved to Dec. 10 SK FOODS: Status Conference in Four in One Case Moved to December SODEXO INC: Underpays Hospital Staff, Nodal Suit Alleges SONIC CORP: Faces Collins TCPA Suit Over Unsolicited Text Messages ST. DAVID'S: Court Partially Grants Motion to Dismiss Mock's Action STAAR SURGICAL: Pomerantz Law Firm Reminds of Class Action STARKEY LABORATORIES: Court Narrows Claims in Beck ERISA-RICO Suit SUMMIT HEALTH: Braunshtein Remanded to L.A. County Superior Court TACTILE SYSTEMS: Gainey McKenna Reminds of Nov. 30 Deadline THOMAS P. GOHAGAN: Can Compel Arbitration in Saperstein Class Suit TRANSWORLD SYSTEMS: Denial of Arbitration Bid in Landry Affirmed TTOTTAL BUSINESS: Viera Sues Over Unpaid Overtime and Retaliation UMTH LAND: Court Narrows Claims in Fannin Class Suit UNITED AMERICAN: Can Compel Hardy to Arbitrate Claims in Jones Suit UPMC: Court Denies Remand of Doe Privacy Suit to State Court V.F. CORP: Website Inaccessible to Blind Users, Paguada Claims WALDORF ASTORIA: Perez Sues Over Unpaid Overtime for Housekeepers WELLS FARGO: Faces Popal Suit Over Denied Sick Leave Benefits ZIMMER BIOMET: Class of Sales Associates in Karl Suit Certified ********* 58TH BAKERY: Flores Sues Over Unpaid Wages for Restaurant Staff --------------------------------------------------------------- GUILLERMO MORENO FLORES, individually and on behalf of all others similarly situated, Plaintiff v. 58TH BAKERY INC d/b/a ALL ABOUT FOOD, ALIAGED DINING INC d/b/a AGED, ALIFINE DINING INC d/b/a NANKING, OMSAI FOODS INC. d/b/a NANKING ROCKAWAY, TULIP NYC INC d/b/a NANKING HILTON, ALIMADE LLC d/b/a DELI PLUS, AKBARALI B HIMANI, and NICHOLAS VITHOULKAS, Defendants, Case No. 1:20-cv-08855 (S.D.N.Y., October 22, 2020) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay appropriate minimum wages due to invalid tip credit deductions, failure to pay overtime premium for all hours worked in excess of 40 hours in a workweek, failure to pay spread of hours premium, and failure to provide proper wage notice and wage statements. The Plaintiff worked at All About Food restaurant in New York as a delivery person in or around January 2008 to August 2018. 58th Bakery Inc. is an owner and operator of a restaurant under the name All About Food, located at 16 East 58th Street New York, New York. Aliaged Dining Inc. is an owner and operator of a restaurant under the name Aged, located at 107-02 70th Road Forest Hills, New York. Alifine Dining Inc. is an owner and operator of a restaurant under the name Nanking, located at 2056 Hillside Ave. New Hyde Park, New York. Omsai Foods Inc. is an owner and operator of a restaurant under the name Nanking Rockaway, located at 13-407 Rockaway Blvd. South Ozone Park, New York. Tulip NYC Inc. is an owner and operator of a restaurant under the name Nanking Hilton, located at 598 Broad Hollow Rd. Melville, New York. Alimade LLC is an owner and operator of a restaurant under the name Deli Plus, located at 2 West 45th Street New York, New York. [BN] The Plaintiff is represented by: CK Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, Eight Floor New York, NY 10011 Telephone: (212) 465-1124 Facsimile: (212) 465-1181 ABC PHONES: Court Disapproves $1.7MM Deal in O'Bryant FLSA Suit --------------------------------------------------------------- In the case, JACOB O'BRYANT and MARK BRANDON BAKER, individually and on behalf of all others similarly situated, Plaintiffs, v. ABC PHONES OF NORTH CAROLINA, INC., d/b/a VICTRA, f/d/b/a A WIRELESS, Defendant, Case No. 2:19-cv-02378 (W.D. Tenn.), Judge Samuel H. Mays, Jr. of the U.S. District Court for the Western District of Tennessee, Western Division: (a) denied (i) the Joint Motion for Settlement Approval brought by Plaintiffs O'Bryant and MBaker and Defendant VICTRA; and (ii) the parties' Joint Motion for Approval of First Amendment to Settlement and Release Agreement to Provide Further Benefits to the Store Manager and Non-Manager Classes; and (b) denied without prejudice the (i) putative intervenors Ron Hardney, Manuel Panngasiri, Michelle Salway, and other named persons' Motion to Intervene; (ii) putative intervenor James Baggott's Motion to Intervene; and (iii) putative intervenors Priscilla Solorio and Mariano Diaz's Motion to Intervene. The dispute arises from VICTRA's alleged failure to pay overtime compensation to certain employees. VICTRA sells Verizon-compatible phones, Verizon data plans, and cellular phone accessories through VICTRA-branded locations. It sets wage and hour policies, including employees' overtime pay, commission pay, and overtime rates. It compensates its retail associates by paying an hourly rate plus bonuses and commissions, which are paid according to frequently adjusted formulas. The commission payments and/or non-discretionary bonuses are not included in the employees' regular rate when overtime payments are calculated. On June 10, 2019, Plaintiffs filed a Complaint in the Initial Complaint. In their Initial Complaint, the Plaintiffs, VICTRA retail sales associates employed on an hourly-plus-commission basis, alleged that VICTRA employed a uniform payment structure for its retail sales associates that violated the Fair Labor Standards Act ("FLSA"). They alleged that VICTRA's payment scheme calculated the amount of overtime due by using the employees' base hourly rate rather than the regular rate as defined by 29 C.F.R. Section 778.114, which required including commission payments and non-discretionary bonuses when calculating overtime. The collective action description in the Initial Complaint was: All current and former retail employees of ABC Phones of North Carolina, Inc. or any of its subsidiaries doing business as VICTRA, who were paid an hourly wage plus commission, and who were employed in the United States at any time during the applicable limitations period covered by this Collective Action Complaint (i.e. two years for FLSA violations and, three years for willful FLSA violations) up to and including the date of final judgment in the matter, and who are Named Plaintiffs or elect to opt-in to the action pursuant to the FLSA, 29 U.S.C. Section 216(b). On Sept. 9, 2019, the Plaintiffs filed a First Amended Complaint ("FAC"). In the FAC, the Plaintiffs amended, inter alia, Baker's job description from "retail sales person" to "store manager." The FAC adds an additional collective description, stating a separate retail "manager" subcollective in addition to the Initial Complaint's retail "employee" collective: All current and former retail managers of ABC Phones of North Carolina, Inc. or any of its subsidiaries doing business as VICTRA, who were paid an hourly wage plus commission, and who were employed in the United States at any time during the applicable limitations period covered by this Collective Action Complaint (i.e. two years for FLSA violations and, three years for willful FLSA violations) up to and including the date of final judgment in the matter, and who are Named Plaintiffs or elect to opt-in to this action pursuant to the FLSA, 29 U.S.C. Section 216(b). The FAC also alleges an additional violation of the FLSA: VICTRA's failure to pay its retail managers for work performed "off-the-clock." The Plaintiffs allege that VICTRA converted its salaried store managers to hourly paid employees but did not substantially alter the work that such store managers, including Baker, were required to perform outside of their shifts; that store managers were not told that they should or could clock-in to complete work performed off-premises; that these tasks included "participating in mandatory conference calls scheduled outside of manager's shifts; responding to employee calls after work, before work, and on days off; responding to employee text messages; routinely checking and responding to issues brought up in group.me; and that these tasks were performed "in excess of an hour per week. The FAC alleges that the Plaintiffs are aware of another putative collective action addressing the retail manager "off-the-clock" allegation. Also on Sept. 9, 2019, the parties filed the Motion for Settlement Approval. The parties ask the Court to approve their proposed Settlement Agreement, and to dismiss the case with prejudice. They represent that, at a mediation on Aug. 21, 2019, they were able to settle the managers' "off-the-clock" claims. The parties represent that in the weeks after the Mediation, they were able to reach an agreement to settle the retail employees' "payment scheme" violations. On July 3, 2020, the parties filed a joint motion for Approval of First Amendment to Settlement and Release Agreement to Provide Further Benefits to the Store Manager and Non-Manager Classes. They represent that they have amended the Settlement Agreement to add $190,888 to the Gross Settlement Amount to address the time period that has elapsed since the Settlement Agreement was filed in September 2019. The parties also represent that they have amended the Settlement Agreement to make clear that, consistent with California law, the Settlement Agreement does not intend to release any claims under the California Private Attorneys General Act of 2004 ("PAGA"). The relevant terms of the First Amended Settlement Agreement are summarized: (a) The Plaintiffs and the Potential Opt-In Plaintiffs are current and former non-exempt employees of VICTRA who worked as store managers and non-manager retail employees who worked in any VICTRA-owned store in the United States at any time between June 10, 2016, and May 30, 2020. There are 779 individuals in the Store Manager Class, 17,284 individuals in the Non-Manager Class, and 3,011 individuals that overlap between both classes for certain periods of time. (b) The total settlement amount is $ $1,715,888. The Gross Settlement Amount, after payments of service awards of $10,000 to both O'Bryant and Baker, will be divided into two sub-funds: (1) $1,092,827 for the Store Manager Class (Manager Fund); and (2) $603,061 for the Non-Manager Class (Non-Manager Fund) (collectively, the Settlement Funds). (c) The Gross Settlement Amount is allegedly attributable to 50% backpay and 50% liquidated damages. The Plaintiffs' counsel seeks an amount not to exceed $292,500 from the Manager Fund and $149,750 from the Non-Manager Fund for attorneys' fees and costs. The Individual settlement payment amounts for the Opt-In Plaintiffs will be calculated pursuant to a point-allocation formula based on their job positions and the number of weeks they worked during the relevant timeframe. (d) The parties ask the Court to appoint a Settlement Administrator to be selected by VICTRA. VICTRA agrees to pay the expenses associated with the Settlement Administrator and those expenses will not affect the Gross Settlement Amount. The Settlement Administrator will prepare and send, from a list provided by VICTRA, each Potential Opt-In Plaintiff a Notice of FLSA Settlement form, along with a check for the amount of their individual settlement, calculated pursuant to the point-allocation formula, at least 30 days after the Court grants final settlement approval. (e) The Notice of FLSA Settlement form will explain how the Gross Settlement Amount is allocated. It will also notify each Potential Opt-In Plaintiff of how to obtain further information about the settlement of the case. On cashing the check, the Potential Opt-In Plaintiff will become an Opt-In Plaintiff under the terms of the Settlement Agreement. The settlement checks will state that they may be deposited for cash for 90 days from the date reflected on the check. (f) If the Potential Opt-In Plaintiff does not cash the check within the 90-day period and there is no request for a new check within 30 days, the amount of the check will revert to VICTRA. Any Potential Opt-In Plaintiffs who do not cash their checks within the 90-day period or request a new check within 30 days will not release any claims against VICTRA. (g) The Settlement Agreement describes the release of claims as follows: The Plaintiffs (including Named Plaintiffs and Opt-In Plaintiffs) on behalf of themselves and each of their respective spouses, heirs, assigns, administrators, executors, beneficiaries, conservators, successors, insurers, and attorneys, voluntarily agree to fully waive, release and forever discharge Victra, including its predecessors, successors, and assigns, and each of their respective parents, subsidiaries, affiliates, divisions, and all of their respective present and former officers, directors, shareholders, employees, insurers, lawyers, and agents (collectively, the Released Parties) from any and all known and unknown claims arising under federal and/or applicable state and local law relating in any way to the payment or non-payment of regular or overtime wages or compensation or compliance with wage or hour laws, regulations, or ordinances that accrued during the Applicable Class Period. Consistent with California law, nothing therein is intended to release any of the Plaintiffs' claims under the Private Attorneys General Act, as provided in Cal. Labor Code Section 2699, et seq. On Sept. 27, 2019, Putative Intervenors Hardney, Panngasiri, and Salway, along with the 37 other Store Managers who have opted into the case styled Hardney, et. al. v. ABC Phones of North Carolina, Inc., Case No. 1:19-cv-12722, in the U.S. District Court for the District of New Jersey filed the Hardney Motion. They argue, inter alia, that they have a substantial legal interest in the case because the reach of the proposed settlement encompasses and could possibly release "off-the-clock" FLSA-violation claims they are bringing against VICTRA in another putative collective and class action. VICTRA responded in opposition on Oct. 7, 2019. On Feb. 24, 2020, Baggott, a former VICTRA store manager, filed the Baggott Motion for the limited purpose of filing a written objection to the proposed settlement. VICTRA and the Plaintiffs responded in opposition on March 9, 2020. On July 1, 2020, Solorio and Diaz, store managers who worked in California and assert wage and hour claims under California law in a different putative class action and represent the State of California in a law enforcement proceeding under PAGA, filed the Solorio and Diaz Motion to object to the FLSA settlement in the case. VICTRA and the Plaintiffs also responded in opposition on July 15, 2020. Judge Mays construes the parties' Motion for Settlement Approval to ask the Court to approve: (1) that the Plaintiffs and Potential Opt-In Plaintiffs are similarly situated; (2) the structure of the First Amended Settlement Agreement, including the process for opting into the suit and the issuance of Notice of FLSA Settlement to the Potential Opt-In Plaintiffs; (3) the Gross Settlement Amount; (4) the Named-Plaintiffs' service awards; and (5) the attorneys' fees and costs awards. Judge Mays finds structural and substantive problems with the First Amended Settlement Agreement such that he cannot conclude that the settlement is a fair and reasonable resolution of a bona fide dispute. There are justiciability problems with the First Amended Settlement Agreement that do not comport with Article III. The form of the settlement calls into question its fairness. Among the deficiencies are the following: (i) although the Plaintiffs and the Potential Opt-In Plaintiffs may be similarly situated, the proposed Notice of Settlement Agreement is fatally flawed; (ii) the failure of the First Amended Settlement Agreement to satisfy the statutory mandates of Section 216(b) is fatal to its approval as to any Plaintiffs who wish to opt into the litigation; (iii) the information the parties provide is insufficient for the Court to determine whether the total Gross Settlement Amount is a fair and reasonable settlement of any potential recovery amount; (iv) the proposed Release is overbroad, unreasonable, and unfair because it goes far beyond the FLSA claims and purports to release claims that do not share the factual predicates of the claims pled in the FAC; and (v) First Amended Settlement Agreement contains reversionary provisions governing unclaimed settlement funds. For these reasons stated, Judge Mays denied the parties' Motion for Settlement Approval and Motion for Approval of First Amendment to Settlement. Turning to the Motions to Intervene, the Judge holds that the Hardney Intervenors, Baggott, and Solorio and Diaz may not intervene as a matter of right because their ability to protect their legal interests will not be impaired by their inability to intervene. Assuming without deciding that they have substantial legal interests in this case, none of those assumed legal interests would be impaired by denying intervention at this time. To the extent that they have brought the same or substantially similar claims in different actions, and that their claims in those actions could be barred by the Court's approval of the First Amended Settlement Agreement, the Court has declined to approve that Agreement. There is no present possibility that any legal rights would be barred. Judge Mays has denied the parties' Motion for Settlement Approval. Because the Hardney Intervenors, Baggott, and Solorio and Diaz represent that their purpose in seeking to intervene is to object to the parties' First Amended Settlement Agreement, and because the Court has denied the parties' Motion for Settlement Approval, the Judge exercises the discretion not to allow permissive intervention at this time. Accordingly, the Judge also denied without prejudice the Motions to Intervene. A full-text copy of the District Court's Aug. 4, 2020 Order is available at https://tinyurl.com/yynzvv35 from Leagle.com. ABSOPURE WATER: Fails to Pay Proper OT to Delivery Staff, Guy Says ------------------------------------------------------------------ JUSTIN GUY, individually and on behalf of those similarly situated, Plaintiff v. ABSOPURE WATER COMPANY, LLC, a domestic limited liability company, Defendant, Case No. 2:20-cv-12734-MAG-EAS (E.D. Mich., October 8, 2020) is a collective action complaint brought against the Defendant for its alleged violation of the Fair Labor Standards Act. The Plaintiff worked for the Defendant from approximately September 2018 to January 2020 as a non-exempt, hourly-paid local delivery driver. The Plaintiff claims that despite working in excess of 40 hours in various work weeks throughout the duration of his employment with the Defendant, he was not properly compensated by the Defendant at a rate of one and one-half times of his regular rate for all his overtime hours worked. Additionally, the Defendant failed to maintain accurate records of the Plaintiff and the class members' work hours in accordance with the law. Absopure Water Company, LLC produces Mountain Valley Spring Water, Maxwell House Coffee products, Green Mountain Coffee products, Starbucks products, and Folger's products. [BN] The Plaintiff is represented by: Michael N. Hanna, Esq. MORGAN & MORGAN, P.A. 2000 Town Center, Suite 1900 Southfield, MI 48075 Tel: (313) 251-1399 E-mail: mhanna@forthepeople.com ADIENT US: Underpays Manufacturing Employees, Butler Suit Claims ---------------------------------------------------------------- KELLY BUTLER, on behalf of herself and all others similarly situated, Plaintiff v. ADIENT US LLC, Defendant, Case No. 3:20-cv-02365-JJH (N.D. Ohio, October 16, 2020) brings this collective action complaint against the Defendant for its alleged violation of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The Plaintiff was employed by the Defendant between March and September 2019 as a manufacturing employee at its Northwood, Ohio manufacturing facility. The Plaintiff claims that the Defendant classified him and other similarly situated manufacturing employees as non-exempt employees. However, although they frequently worked over 40 hours per week, the Defendant did not pay them proper overtime pay for their time spent before and after their scheduled start and stop time, which are integral and indispensable part of their principal activities. Adient US, LLC manufactures automotive seating and operates manufacturing facilities throughout the U.S. [BN] The Plaintiff is represented by: Lori M. Griffin, Esq. Anthony J. Lazzaro, Esq. Chastity L. Christy, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Bldg., Suite 250 34555 Chagrin Boulevard Moreland Hills, OH 44022 Tel: (216) 696-5000 Fax: (216) 696-7005 E-mail: lori@lazzarolawfirm.com chastity@lazzarolawfirm.com anthony@lazzarolawfirm.com AIR METHODS: Settlement in Toolajian Class Suit Gets Final Approval ------------------------------------------------------------------- In the case, EVAN TOOLAJIAN on behalf of himself and all others similarly situated; Plaintiff, v. AIR METHODS CORPORATION, a Delaware corporation, and DOES 1 through 10, inclusive, Defendants, Case No. 3:18-cv-06722-AGT (N.D. Cal.), Magistrate Judge Alex G. Tse of the U.S. District Court for the Northern District of California, San Francisco Division, granted the Plaintiff's Motions For (1) Final Approval of Class Action Settlement, and (2) Attorneys' Fees, Costs, and Class Representative Service Award as Modified. Magistrate Judge Tse granted final approval of the Settlement Agreement because it meets the criteria for final settlement approval. The Settlement falls within the range of possible approval as fair, adequate and reasonable, appears to be the product of arm's-length and informed negotiations, and treats all members of the Class fairly, the Court finds. Solely for purposes of effectuating the Settlement, the Court certified the class is defined as follows: All current and former Pilots employed by Air Methods Corp. in California at any time during Sept. 20, 2014 to April 24, 2020. The Court approved the Settlement and the Released Claims and other terms set forth in the Settlement Agreement. The Parties and the Settlement Administrator are directed to perform in accordance with the terms set forth in the Settlement Agreement. Except as to any individual member of the Class who has validly and timely opted out of the Settlement, all of the claims asserted in the Action are dismissed with prejudice. The Parties are to bear their own attorneys' fees and costs, except as otherwise provided in the Settlement Agreement and the Order. The Action is dismissed on the merits and with prejudice. Distribution of the Net Settlement Amount will be done in accordance with the terms outlined in the Notice and Settlement Agreement. The Courtordered the appointment of (i) Plaintiff Evan Toolajian as the Class Representative for the Class, and (ii) Hunter Pyle of Hunter Pyle Law and Monique Olivier and Katharine Chao of Olivier Schreiber & Chao LLP as the Class Counsel for purposes of settlement. The Settlement Administrator will pay from the Gross Settlement Amount: (i) the Settlement Administrator for its reasonable fees for its services; and (ii) the Service Award to the Class Representative to reimburse him for his valuable services to the Settlement Class. The Court also approved the payment of (i) the settlement administration costs in the amount of $7,000 to Simpluris, Inc., and (ii) the Service Award to the Class Representative in the amount of $10,000. The Settlement Administrator is directed to make the foregoing payments in accordance with the terms of the Settlement Agreement. The Court further awarded to the Class Counsel the amount of $490,000 for attorneys' fees, and the amount of $12,406.54 for costs. The Settlement Administrator is ordered to wire these funds to the Class Counsel in accordance with the terms of the Settlement Agreement. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y2vs6fo6 from Leagle.com. HUNTER PYLE -- hunter@hunterpylelaw.com -- KATHERINE FIESTER -- kfiester@hunterpylelaw.com -- HUNTER PYLE LAW, Oakland, California. MONIQUE OLIVIER -- monique@osclegal.com -- KATHARINE CHAO -- kathy@osclegal.com -- OLIVIER SCHREIBER & CHAO LLP, San Francisco, California, Attorneys for Plaintiff EVAN TOOLAJIAN and the Proposed Class. ALLIANCE ENTERTAINMENT: Fails to Timely Pay Wages, Carrington Says ------------------------------------------------------------------ CHRIS CARRINGTON, individually and on behalf of all other persons similarly situated, Plaintiff v. ALLIANCE ENTERTAINMENT LLC and MECCA ELECTRONICS INDUSTRIES, INC., jointly and severally, Defendants, Case No. 1:20-cv-05054 (E.D.N.Y., October 21, 2020) is a class and collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants as a warehouse worker from in or around March 2010 until in or around July 2020. The Plaintiffs asserts these claims: -- The Defendants paid him below the statutory minimum wage from in or around January 2018 until in or around July 2020; -- The Defendants failed to pay him overtime premium pay for all the hours he worked in excess of 40 in a single work week; -- The Defendants paid him the same hourly rate for all hours worked in a week, regardless of the total number of hours he worked per week; -- The Defendants did not pay him for the first week he worked within each pay period within 7 days; and -- The Defendants failed to provide him and other similarly situated warehouse workers with a written wage statement with any wage payment, and the notice and acknowledgement of payrate and payday. Alliance Entertainment LLC and Mecca Electronics Industries, Inc. are American electronic distribution companies. [BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Alfons D'Auria, Esq. LIPSKY LOWE LLP 420 Lexington Ave., Suite 1830 New York, NY 10170-1830 Tel: (212) 392-4772 Fax: (212) 444-1030 E-mail: doug@lipskylowe.com alfons@lipskylowe.com ALTERRA MOUNTAIN: Bursor and Dovel Firms Named Counsel in Kramer ---------------------------------------------------------------- In the case, ROBERT STEPHEN KRAMER, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. ALTERRA MOUNTAIN COMPANY and IKON PASS INC., Defendants, Civil Action No. 20-cv-01057-RM-SKC, Consolidated for Pretrial: No. 20-cv-01158-RM-SKC, Nos. 20-cv-01175-RM-SKC, 20-cv-01186-RM-SKC, 20-cv-01254-RM-SKC, 20-cv-01347-RM-SKC, 20-cv-01520-RM-SKC, 20-cv-01583-RM-SKC, 20-cv-01691-RM-SKC, 20-cv-01699-RM-SKC, 20-cv-02021-RM-SKC (D. Colo.), Judge Raymond P. Moore of the U.S. District Court for the District of Colorado granted the Kramer and Steijn Plaintiffs' Joint Motion to Appoint Bursor & Fisher and Dovel & Luner Interim Co-Lead Class Counsel. The Plaintiffs and the putative class members purchased "Ikon Passes" for the 2019-2020 ski season from the Defendants. On March 15, 2020, the Defendants suspended operations of their ski resorts in North America due to the COVID-19 pandemic. Eleven putative class actions have been filed under various theories because the Defendants have allegedly refused to refund the unused value of the Ikon Passes. The Court has consolidated these actions for pretrial purposes. In accordance with the Court's order, various parties have filed motions for their counsel to be appointed as interim lead counsel, interim co-lead counsel, or liaison counsel. The issues before the Court are whom it should appoint as interim lead/co-lead counsel and whom, if anyone, it should appoint as liaison counsel. The motions before the Court for consideration on these issues are (i) the Joint Motion of Plaintiffs Eckert and Cleaver to Appoint Robert B. Carey of Hagens Berman Sobol Shapiro LLP and James Evangelista of Evangelista Worley LLC as Interim Lead Counsel Pursuant to Fed. R. Civ. P. 23(g); (ii) the Motion of Phillip Werner, Ryan Collins, Bradley Briar, Erik Ernstrom, Robert Lombardini, Jaycelle Marshall, Kim Kurpjuweit, Shannon Mcnamara, Jeffrey Farrell, James Sutcliffe, Eric Gifford, Erick Mcquillin, Aaron Batt, Linh Bui, Christopher Reed, Douglas Fuller, W. Walter Layman, Callan Kofoid, and Keri Reid to Appoint Hellmuth & Johnson, PLLC as Interim Lead Class Counsel; (iii) the Motion for Appointment of Interim Lead Counsel and Liaison Counsel ("Farmer Motion"); and (iv) the Kramer and Steijn Motion. Judge Moore has not only carefully considered the Motions but also examined the record for other filings made by the moving parties, such as the complaints, in deciding whom to appoint as the interim lead counsel. His review shows that each counsel has demonstrated he/she would fairly and adequately represent the interests of the putative class. The question then is whom among the adequate group of applicants the Judge should appoint that would best be able to represent the interests of all of the parties on their side. In the case, in the exercise of his discretion, the Judge appoints Bursor & Fisher and Dovel & Luner as the Interim Co-Lead Class Counsel. He does so for essentially two reasons. First, these law firms were the first and second to file. Thus, where the question is a close one, this method serves as an objective basis for choosing among highly qualified counsel and their law firms. And, second, because the Kramer and Steijn Motion identified in greater detail the specific substantive investigation, research, and analysis already conducted to support and prosecute the claims on behalf of putative class members. Accordingly, these two law firms are appointed the interim co-lead class counsel. As he indicated during the status conference held on June 18, 2020, the Judge did not believe that liaison counsel was necessary in the case. Except for Mr. Farmer, all the other movants in the Motions agree separate liaison counsel is not needed as interim lead/co-lead counsel can perform the administrative matters generally handled by liaison counsel. The Judge agrees. Upon review of the nature of the case, the limited number of actions filed, and the record as a whole, efficiency and economy can be achieved without jeopardizing fairness to the parties by having the interim co-lead class counsel appointed perform all of such tasks. Accordingly, Judge Moore granted the Kramer and Steijn Motion, and appointed Bursor & Fisher and Dovel & Luner as the Interim Co-Lead Class Counsel. The Order will apply to all related actions which have been or will be consolidated with the action. The Judge denied the following motions: (1) the Eckert and Cleaver Motion; (2) the Werner Motion; and (3) the Farmer Motion. The Order Referring Case to Magistrate Judge S. Kato Crews will apply to all consolidated actions. Within 35 days of the date of the Order, the Plaintiffs will file their Consolidated Amended Complaint. Within 15 days after the Plaintiffs file their Consolidated Amended Complaint, the parties will meet, confer, and file a joint proposed pre-trial schedule addressing the timing for the Defendants' anticipated motion to dismiss the Consolidated Amended Complaint and setting the scheduling conference required by Fed. R. Civ. P. 16. The parties will jointly email the Chambers of Magistrate Judge S. Kato Crews at Crews_Chambers@cod.uscourts.gov to coordinate a date for the scheduling conference. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y38fd4ra from Leagle.com. AMERICAN ELECTRIC: Rosen Law Reminds of Class Action ---------------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of American Electric Power Company, Inc. (NYSE: AEP) between November 2, 2016 and July 24, 2020, inclusive (the "Class Period"), of the important October 19, 2020 lead plaintiff deadline in the securities class action commenced by the firm. The lawsuit seeks to recover damages for AEP investors under the federal securities laws. To join the AEP class action, call Phillip Kim, Esq. toll-free at 866-767-3653 or email or for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) AEP covertly participated in the "the largest public corruption case in Ohio history"; (2) AEP secretly funneled substantial funds to Ohio political organizations and politicians to bribe politicians to pass Ohio House Bill 6, which benefitted the Company and its coal-fired generation assets; (3) AEP partially funded a massive, misleading advertising campaign in support of HB6 and in opposition to a ballot initiative to repeal HB6 by passing substantial sums through a web of dark money entities and front companies in order to conceal AEP's involvement; (4) AEP aided in subverting a citizens' ballot initiative to repeal HB6; (5) as a result of the foregoing, defendants' Class Period statements regarding AEP's regulatory and legislative efforts were materially false and misleading; (6) as a result of the foregoing, the Company would face increased scrutiny; (7) AEP was subject to undisclosed risk of reputational, legal and financial harm; (8) the bribery scheme would jeopardize the benefits the Company sought by HB6; (9) as opposed to AEP's repeated public statements regarding a move to clean energy, it sought a dirty energy bailout; (10) as opposed to AEP's repeated public statements regarding protection of its customers' interests, the Company sought an extra and state-mandated surcharge on its customers' bills; and (11) as a result of the foregoing, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than October 19, 2020 . A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to [To enable links contact MENAFN] or to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at or . NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] AMERICAN HONDA: Dismissal of State-Law Claims in Floyd Suit Vacated ------------------------------------------------------------------- In the case, HEATHER FLOYD; JODY SCHUTTE; KATE ZAIGER, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. AMERICAN HONDA MOTOR CO., INC., a California Corporation; HONDA NORTH AMERICA, INC., a Delaware Corporation, Defendants-Appellees, Case No. 18-55957 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed in part and vacated in part the district court's order of dismissal of the Plaintiffs' Magnuson-Moss Warranty Act ("MMWA") claim, and their state-law claims for express and implied warranty against Honda, and remanded the case for proceedings. In the putative class action, the Plaintiffs raise warranty claims arising out of crashes or injuries caused by the alleged "rollaway effect" of certain Honda Civic vehicles. The Plaintiffs are owners or lessors of 2016, 2017, and 2018 models of Honda Civic vehicles who experienced a "rollaway effect" of the vehicle's continuously variable transmission that, on occasion, failed to activate the electric parking brake automatically. The Plaintiffs allege that Honda's reliance on visual feedback in the absence of tactile feedback in the affected vehicles caused them to be unable to determine whether the parking brake had been properly engaged, which resulted in vehicles unintentionally rolling away and sometimes causing crashes or injuries. They allege that the transmission is inherently defective and that Honda failed to disclose the defect. In December 2017, Plaintiff Floyd, a citizen of Tennessee, filed a putative class action in the district court raising a federal claim under the MMWA and a variety of state-law claims. An amended complaint joined Jody Schutte, a citizen of Wisconsin, and Kate Zaiger, a citizen of California, as Plaintiffs, added Wisconsin and California subclasses, and alleged additional state-law claims. The district court dismissed the First Amended Complaint, holding that the MMWA claim was not cognizable due to the complaint's failure to name 100 Plaintiffs. Noting that the Plaintiffs had invoked supplemental jurisdiction over their state-law claims, the district court declined to exercise jurisdiction over those claims in light of its dismissal of the only federal claim. The district court, however, did not separately address whether jurisdiction existed over the state-law claims under CAFA. The Plaintiffs did not amend the First Amended Complaint and instead filed their notice of appeal on July 12, 2018, while final disposition of the district-court case was pending. The district court terminated the case on July 26, 2018 with a final order after the Plaintiffs failed to file an amended complaint. The Plaintiffs' notice of appeal was not amended after the termination. The question for decision is whether the Class Action Fairness Act overrides the MMWA's requirement to name 100 plaintiffs. The parties dispute whether the district court's order granting the motion to dismiss without stating whether it was granted with or without prejudice, and without explicitly granting leave to amend, constituted a final disposition of the action under 28 U.S.C. Section 1291. The Plaintiffs argue that we have jurisdiction because the district court intended its dismissal to be final and appealable. Honda, on the other hand, argues that the district court never intended the order dismissing the action to be final, because the district court did not file its final order until two weeks after the Plaintiff's notice of appeal and six weeks after issuance of the order to dismiss. The Ninth Circuit finds that the Plaintiffs filed a notice of appeal a month after the dismissal of their claims but two weeks before the district-court case was closed. Whether the Plaintiffs' notice of appeal was premature or not, the final disposition of the case by the district court cures any timeliness defects of their appeal pursuant to Federal Rule of Appellate Procedure 4(a)(2), and the Ninth Circuit has jurisdiction to review it under 28 U.S.C. Section 1291. Next, the text is clear that a requirement for an MMWA class action in federal court is at least 100 named plaintiffs. The Plaintiffs name only three individuals, but argue that, by satisfying CAFA requirements, they are relieved of the MMWA's obligation to name at least 100 plaintiffs. The Plaintiffs therefore posit a conflict between the two statutes and argue that CAFA has impliedly repealed MMWA's numerosity requirements. However, repeals by implication are disfavored, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. The Plaintiffs' arguments of policy and of implied repeal do not outweigh the clear statutory language establishing the requirements for federal jurisdiction under the MMWA. Construing CAFA to provide jurisdiction over MMWA claims despite the Plaintiffs' failure to satisfy the plain-language requirement of at least 100 named plaintiffs would have the effect of overriding a part of the MMWA. But the legislature's intent to repeal a statute must be "clear and manifest." Therefore, CAFA may not be used to evade or override the MMWA's specific numerosity requirement, and the Ninth Circuit affirms the district court's dismissal of the MMWA claim. Turning to the dismissal of the Plaintiffs' state-law claims, the Ninth Circuit opines that the district court erred in not considering whether the Plaintiffs' state-law claims met the diversity requirements of CAFA even if the MMWA claim failed. The Plaintiffs did not need to allege that their state-law claims were supplemental to jurisdiction under CAFA, because they had already generally alleged original jurisdiction over the entire action. The district court should have considered jurisdiction under CAFA entirely independently of the MMWA claim. If the district court then found that the requirements for CAFA were not satisfied, it would not have jurisdiction over state-law claims except under Section 1367 and the action could be dismissed. But if the Plaintiffs satisfied CAFA, the court would have had original jurisdiction over the Plaintiffs' state-law claims. The district court therefore improperly dismissed the Plaintiffs' state-law claims based only on lack of supplemental jurisdiction. The Ninth Circuit therefore vacates the dismissal of the Plaintiffs' state-law claims and remands for consideration consistent with its Opinion. For the foregoing reasons, Judge Danny J. Boggs, writing for the Ninth Circuit, affirmed in part and vacated in part the district court's order of dismissal, and remanded the case for proceedings. Each side will bear its own costs and fees on appeal. A full-text copy of the Ninth Circuit's July 28, 2020 Opinion is available at https://tinyurl.com/y5e79q6d from Leagle.com. Gregory F. Coleman (argued), Adam A. Edwards , Mark E. Silvey , Lisa A. White, and Rachel Soffin, Greg Coleman Law PC, Knoxville, Tennessee; Robert R. Ahdoot -- rahdoot@ahdootwolfson.com -- and Theodore W. Maya -- tmaya@ahdootwolfson.com -- Ahdoot & Wolfson PC, Los Angeles, California; for Plaintiffs-Appellants. Eric Y. Kizirian (argued) -- eric.kizirian@lewisbrisbois.com -- and Michael Grimaldi, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California; Jeffry A. Miller, and Brittany B. Sutton, Lewis Brisbois Bisgaard & Smith LLP, San Diego, California; for Defendants-Appellees. AR RESOURCES: Court Narrows Claims in Wright FDCPA Suit ------------------------------------------------------- In the case, JAVONTAE WRIGHT, individually and on behalf of all others similarly situated, Plaintiff, v. AR RESOURCES, INC., PREMIUM ASSET RECOVERY CORP., and JOHN DOES 1-25, Defendants, Case No. 8:20-cv-985-T-33CPT (M.D. Fla.), Judge Virginia M. Hernandez Covington of the U.S. District Court for the Middle District of Florida, Tampa Division, (i) granted Defendant Premium Asset Recovery Corp. ("PARC")'s Motion to Dismiss Plaintiff's Complaint; and (ii) granted in part and denied in part Defendant AR Resources ("ARR")'s Motion to Dismiss Complaint. On April 29, 2020, Javontae Wright initiated the putative class action lawsuit against the Defendants for violations of the Fair Debt Collection Practices Act ("FDCPA"). According to the complaint, Wright allegedly incurred a debt to "the EMA of Tampa Bay - St. Joes North." Wright alleges that PARC is the current owner of the debt and an alleged debt collector under the FDCPA. PARC then contracted with ARR, also allegedly a debt collector, to collect the debt. To that end, on May 8, 2019, ARR sent Wright an initial collection letter. The May 8 letter, which Wright attached to her complaint, stated the balance of the debt, explained that the debt had been sold to PARC, and that ARR had been contracted to collect the outstanding balance. After explaining the ways in which Wright could pay the balance, the letter stated: "Please be advised that our client is a credit reporting client. Your credit report may have a negative impact if we do not hear from you." According to Wright, the language about a potential negative impact on her credit report "completely overshadows" the rest of the notice by scaring the Plaintiff into making payment immediately to avoid a 'negative impact' credit reporting instead of exercising his statutory right to dispute the debt as provided by the FDCPA. In addition, Wright alleges that the "negative impact" language "coerces payment," and is "deceptive and misleading" as well as "confusing and threatening." Based on these allegations, Wright claims that the Defendants have violated the FDCPA, specifically 15 U.S.C. Section 1692e (Count I) and 15 U.S.C. Section 1692g (Count II). Wright also purports to bring these claims on behalf of the following class, pursuant to Federal Rule of Civil Procedure 23: All individuals with addresses in the state of Florida, to whom Defendant ARR sent a collection letter attempting to collect a consumer debt, on behalf of Defendant PARC, that included deceptive threats regarding negative impact of the credit report, which letter was sent on or after a date one year prior to the filing of the action and on or before a date 21 days after the filing of the action. The Defendants have now each filed Motions to Dismiss the complaint, to which Wright has responded. To succeed on a claim under the FDCPA, the Plaintiff must establish that (1) the Plaintiff has been the object of collection activity arising from consumer debt, (2) the Defendant is a debt collector as defined by the FDCPA, and (3) the Defendant has engaged in an act or omission prohibited by the FDCPA. Neither party disputes that Wright has been the object of collection activity, but PARC argues that Wright has insufficiently pled its status as a debt collector under the FDCPA because the allegations on that point are "conclusory and formulaic recitations of the FDCPA's statutory language. For its part, ARR concedes for purposes of the Motion that it is a debt collector but argues that it has not violated the FDCPA. Specifically, ARR argues that cases from other Circuits demonstrate that the "credit reporting" language in the May 8 letter does not overshadow a debtor's understanding of his rights or violate the FDCPA under the prevailing least-sophisticated-consumer standard. Wright alleges in the complaint that PARC is a debt collector under the FDCPA and is a company that uses the mail, telephone, and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another. Judge Covington finds it a conclusory language that merely tracks the language of the statute. The complaint contains no factual content that would enable the Court to make the inferential leap that PARC is a debt collector. As such, it is insufficient. The Judge takes no position on whether the principal purpose of PARC's business is in fact the collection of debts. That is a factual matter best left for another day. However, under the prevailing pleading standards, Wright must allege something more than conclusory and formulaic recitations of the statute to survive PARC's motion to dismiss. He must allege some factual content that would allow the Court to make the reasonable inference that PARC is a "debt collector" under the language of the FDCPA. Accordingly, PARC's motion to dismiss should be granted. However, because she believes that the deficiency is capable of being remedied, Wright will be given leave to file an amended complaint. Next, Wright alleges that the May 8, 2019, letter violates Section 1692e because it is "open to more than one reasonable interpretation, at least one of which is inaccurate" and violates Section 1692e(10) by making a false and misleading representation. The complaint makes clear that the credit-reporting language is at the heart of both Wright's Section 1692e and Section 1692g claim. The Judge fails to discern how the language is false, deceptive, or misleading. Wright does not allege that the Defendants would not, in fact, potentially report non-payment to credit reporting agencies or that consumers' credit reports would not be impacted by such non-payment. Wright has failed to plausibly allege that the least sophisticated consumer would be confused, misled, or deceived by the letter's negative-credit-reporting language. Thus, Count I should be dismissed without prejudice. The Jude grants Wright leave to amend the claim. Wright then alleges that the Defendants violated Section 1692g by threatening negative credit reporting, which overshadows the notice language and coerces the consumer not to exert its rights under the FDCPA. The Judge finds that the language requiring that the consumer contact the debt collector on receipt or face full collection efforts is akin to the language of immediacy. Upon reading the letter at issue in the case, a least sophisticated consumer would not be misled or confused into thinking she had to pay the debt immediately or face adverse credit consequences before her 30-day statutory validation period expired. She concludes as a matter of law that the language in the May 8 letter warning the consumer that their "credit report may have a negative impact if we do not hear from you" did not overshadow the required Section 1692g notice. Therefore, Wright's Section 1692g claim should be dismissed with prejudice. Accordingly, Judge Covington (i) granted PARC's Motion to Dismiss Complaint, and (ii) granted in part and denied in part ARR's Motion to Dismiss Complaint. Count I of the complaint is dismissed without prejudice and with leave to amend. Count II of the complaint is dismissed with prejudice. Wright may file an amended complaint without delay. The Defendants will then have the opportunity to file responses to any amended complaint filed. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y4o3aeaf from Leagle.com. ARKA GRILL: Fails to Pay Proper Wages to Servers, Fazzino Claims ---------------------------------------------------------------- JANICE FAZZINO, on behalf of herself and those similarly situated, Plaintiff v. ARKA GRILL COMPANY LLC d/b/a KALUZ RESTAURANT, a Florida Limited Liability Company, Defendant, Case No. 0:20-cv-62116-BB (S.D. Fla., October 16, 2020) brings this class action complaint against the Defendant for its alleged violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant from approximately December 2018 through February 2019 as an hourly paid server at the Defendant's Kaluz location in Fort Lauderdale, Florida. According to the complaint, the Defendant paid the Plaintiff and other similarly situated servers an hourly wage less than federal minimum wage plus the tip credit. However, the Defendant required them to share their tips with non-tipped employees, specifically the silverware rollers who had little or no customer contact. As a result of the Defendant's failure to properly compensate the Plaintiff and other similarly situated servers for one or more weeks of work, the Plaintiff and similarly situated servers have been damaged in the loss of minimum wages for one or more weeks of work with the Defendant. Arka Grill Company LLC operates a restaurant. [BN] The Plaintiff is represented by: Carlos V. Leach, Esq. Bruce A. Mount, Esq. THE LEACH FIRM, P.A. 631 S. Orlando Ave., Suite 300 Winter Park, FL 32789 Tel: (407) 574-8778 Fax: (407) 960-4789 E-mail: cleach@theleachfirm.com bmount@theleachfirm.com yhernandez@theleachfirm.com ASPEN CONSTRUCTION: Class in Arroyo Suit Conditionally Certified ---------------------------------------------------------------- In the case, WILLIAM ARROYO, Plaintiff, v. ASPEN CONSTRUCTION SERVICES, INC., et al., Defendants, Civil Action No. 19-5317 (E.D. Pa.), Judge Joel H. Slomsky of the U.S. District Court for the Eastern District of Pennsylvania granted the Plaintiff's Motion for Conditional Certification and Facilitation of Court-Authorized Notice but with modifications. On Nov. 12, 2019, Arroyo filed a complaint on behalf of himself and those whom he believes are similarly situated to himself for unpaid overtime wages under the Fair Labor Standards Act ("FLSA"). The Plaintiff is a mason/laborer who was employed by Defendant Aspen and Defendant Krzysztof Kaczmarczyk, President of Aspen and paid on an hourly basis. The Plaintiff filed the action against the Defendants on behalf of himself and others seeking to obtain unpaid overtime wages. Defendant Aspen does masonry work as one of their construction services. The Plaintiff alleges that he and other similarly situated mason/laborers are owed unpaid wages for their overtime hours based on the Defendants' improper payment during the period leading up to the lawsuit. In his Complaint, the Plaintiff alleges that the Defendants failed to compensate him for overtime wages from March 2016 to October 2018. Plaintiff avers that during this time, the Defendants knowingly made improper cash payments without including overtime pay or making required deductions. The Plaintiff states that he and other masons/laborers regularly worked over 40 hours in a seven-day period, and the Defendants' payment system either failed to properly compensate the overtime pay or was done by cash payments to avoid the payment of taxes and overtime. The Plaintiff claims that his Declaration, along with his verified Complaint and the attached cash pay stubs he and other mason/laborers received from the Defendants, are sufficient to show that he and the others are similarly situated to qualify for conditional class certification. Before the Court is the Plaintiff's Motion for Conditional Certification and Facilitation of Court-Authorized Notice. In his Motion, the Plaintiff requests that the Court conditionally certifies as a class the employees who he contends were entitled to overtime pay and approve a form of a notice to employees about the potential claim. The Plaintiff also requests that the Court authorizes notice of the lawsuit to be sent to employees who did not received overtime pay of their right to join in the lawsuit as putative Plaintiffs. He asks the Court to approve the content of the Notice as drafted by him. Further, he requests authorization of a "follow-up notice" via email to the putative Plaintiffs, that the mailed and posted Notice be in English and Spanish. The Defendants deny that the Plaintiff was not paid for any overtime hours and that any other employees were subject to unlawful pay policies. They claim that employees either self-reported their hours to them or confirmed the hours they worked, and the payments to all employees were consistent with hours reported. The Defendants also claim that the Plaintiff is not similarly situated to members of the purported class. In support of that claim, Defendant Kaczmarczyk has submitted an Affidavit in which he states that the Plaintiff made a request to be paid in cash for "personal reasons." Furthermore, the Defendants contend that the Plaintiff's allegations in the Complaint and in his Declaration are merely conclusory and are insufficient to support a conditional certification of the class. The Defendants also request that, should conditional certification be approved, the proposed Notice be amended. Specifically, they claim that notice by mail, without any follow-up email, is sufficient, and that information identifying the putative Plaintiffs should be reasonably tailored to include only the information necessary within a two-year statute of limitations. Finally, the argue that there are no grounds to prohibit Defendants from having contact with the putative class members. Judge Slomsky finds that the Plaintiff has met his burden for conditional certification at this stage of the proceeding. The Plaintiff has met his burden to show that he and the potential putative Plaintiffs are similarly situated to warrant conditional certification. The Plaintiff need only make a "modest factual showing" to satisfy this burden. The Plaintiff's allegations in the Complaint and the documents submitted in support of these allegations show, beyond pure speculation, the factual nexus between the Defendants' policy regarding overtime pay and the manner in which it affected the putative Plaintiffs. The Plaintiff requests the three-year statute of limitations apply here because the Defendants willfully violated the FLSA. As such, he seeks that the Notice be sent to the putative Plaintiffs who worked in the mason/laborer position from Nov. 11, 2016 to the date the Complaint was filed, Nov. 12, 2019. The Defendants rebut the allegations of "willfulness" and respond that the two-year statute of limitations is adequate. The Judge finds that the Plaintiff's allegations are sufficient to warrant notice based on a three-year statute of limitations, although he will not determine whether the Defendant's actions were "willful" at this time. Further, the date of commencement of the action for a putative Plaintiff will be the date the Consent form to opt-in as a Plaintiff is filed with the Court. The Plaintiff requests that the Defendants' contact with the putative Plaintiff class in matters regarding the litigation be limited by the Court. The Judge denies this request of the Plaintiff. He finds that the Plaintiff does not make any presentation of a clear record showing the need for any limitation of communication between the Defendants and the putative Plaintiff class. He makes no specific allegation showing abusive communication or misleading or coercive statements from the Defendants. Moreover, no Court-Authorized Notice has issued, nor have any putative Plaintiffs "opted-in." Next, the parties disagree as to (1) the Plaintiff's request for information regarding the putative Plaintiffs, and (2) the content of the Notice. The Plaintiff asks that the Defendants produce within fourteen days of the Court's Order a list that includes the following: To be presented in electronic format (1) name, (2) current or last known mailing address, (3) current or last known email address, (4) current or last known telephone number, (5) dates of employment, (6) employee identification number, if any, and (7) the last four digits of their social security number. The Plaintiff also asks for job title and date of birth of the putative Plaintiffs. He also claims that a follow-up email is appropriate where putative plaintiffs do not respond to the initial mailing. As an initial matter, Judge Slomsky grants the Plaintiff's request for information regarding the putative Plaintiffs. The Judge also allows the Plaintiff's request to send a follow-up notice email to the putative Plaintiffs who by the 14-day prior to close of Court-Authorized Notice period do not respond to his initial mailing. Second, the parties will meet and confer to finalize the language of the Notice and Consent form. The Plaintiff has submitted a proposed Notice of Lawsuit, Second and Final Notice of Lawsuit, and Consent to Join Collective Action. In their Response, Defendants do not contest the propriety of the documents. After the conference, the parties will submit the revised documents to the Court for review before dissemination, after which the Court will order the dissemination of the Notice. Additionally, the Plaintiff requests that the potential putative Plaintiff class be notified by first class mail, by posting the Notice at each of the Defendants' locations where mason/laborer putative Plaintiffs are employed, and by follow-up notice via email. The Judge grants the Plaintiff's request for Service of the Notice via first class mail, posting of the Notice, and follow-up notice via email. For the foregoing reasons, Judge Slomsky (i) granted the Plaintiff's Motion for Conditional Certification, and (ii) granted in part and denied in part the Plaintiff's Motion for Court Facilitation of Court-Authorized Notice. A full-text copy of the District Court's July 31, 2020 Opinion is available at https://tinyurl.com/y3t5atgk from Leagle.com. ATLANTIC CREDIT: Cooper Remanded for Lack of Jurisdiction Dismissal ------------------------------------------------------------------- In the case, ERICA COOPER, Plaintiff-Appellant, v. ATLANTIC CREDIT & FINANCE INC, a Virginia corporation, MIDLAND FUNDING LLC, a Delaware limited liability company, Defendants-Appellees, Case No. 19-12177 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit (i) vacated the dismissal of Cooper's class action complaint against the Defendants-Appellees for failure to state a claim; and (ii) remanded for the district court to dismiss the case without prejudice for lack of subject matter jurisdiction. Cooper alleges that the Appellees violated the Fair Debt Collection Practices Act ("FDCPA") when they sent a second collection letter that improperly "overshadowed" and/or "contradicted" the statutorily required validation notice contained in the first letter and that this constituted the use of unfair and unconscionable means to collect a debt. In October 2017, Atlantic and Midland sent Cooper two letters as part of their efforts to collect a debt Cooper owed on a credit card issued by Synchrony Bank, which she used to pay for dental services. On Oct. 3, 2017, the Appellees sent the first letter, which contained a FDCPA-required "validation notice." Under the FDCPA, a debt collector must include, within five days after the initial communication with a consumer in connection with the collection of any debt, a written notice of the consumer's right to dispute the validity of the debt within 30 days after receipt of the notice. If the consumer exercises this right, the debt collector must suspend its collection efforts pending a response to the request for verification of the debt. Also, during the 30-day validation period, a debt collector may not engage in any collection activities or communications which "overshadow" or are inconsistent with the disclosure of the consumer's right to dispute the debt. Before the 30-day validation period expired, on Oct. 13, the Appellees sent Cooper a second letter, telling her that Midland was considering forwarding her account to an attorney in her state for possible litigation. The second letter gave her two payment options to resolve the debt: (1) a one-time reduced repayment due Oct. 31, 2017; and (2) biweekly payments as low as $25 until the balance was paid in full. The second letter said the payment opportunities do not alter or amend her validation rights as described in the previous letter to her. In August 2018, Cooper filed the action. The complaint alleged that Atlantic and Midland violated 15 U.S.C. Section 1692g(b) by sending the second letter, which improperly "overshadowed" and/or "contradicted" the validation notice contained in the first letter, and that their conduct constituted the use of "unfair" and "unconscionable" means to collect a debt in violation of 15 U.S.C. Section 1692f. It further alleged that Atlantic and Midland's conflicting collection demands left Cooper confused about her statutory rights to dispute the debt and seek validation, as well as whether she had the full 30 days to dispute the debt and demand validation. The district court dismissed the complaint for failure to state a claim under both provisions, but did not address whether Cooper had Article III standing to bring suit, an issue that Atlantic and Midland had not raised. The timely appeal follows. After careful review, the Eleventh Circuit finds that Cooper has not alleged an injury-in-fact sufficient to confer standing. The essence of her injury, according to the complaint, is that Atlantic and Midland's alleged violations of Sections 1692g and 1692f left her "confused about her statutory rights to dispute the debt and seek validation, as well as whether she had the full 30 days to dispute the debt and demand validation. However, under the Court's precedent, these allegations, absent something more, are insufficient to establish that Cooper had standing to bring her claim. The Eleventh Circuit also finds that Cooper's alleged injuries are just as inchoate, if not more so. Cooper does not allege that, without the purportedly confusing language in the second letter, she would have disputed the debt or sought validation of the debt within the 30-day validation period, that she had any doubt regarding the validity of the debt, or that she would have accepted one of the payment options in the second letter. Nor does she allege that she suffered any harm beyond the alleged statutory violations, or that Atlantic and Midland ever made any further attempts to collect the debt at issue any time after the Oct. 13, 2017 second letter, prior to the filing of the complaint in August 2018. Indeed, Cooper talks only of her confusion without any possible financial or legal consequences. Further, Cooper's injury is much more attenuated. Cooper does not allege that her confusion about her statutory rights resulted in her not disputing the debt, that her confusion would have resulted in her utilizing one of the payment options in the second letter despite the debt being invalid, that her confusion would have resurrected any previously invalid debt, or that the confusion would have resulted in any other negative consequences. In short, Cooper does not allege any particularized injury; she simply does not say she was affected in any meaningful way by the letter. All Cooper says, at most, is that she was confused, but in this context, her asserted injury of confusion was "conjectural" or "hypothetical," because she has not alleged any actual harms that arose from her confusion. Without more, this asserted injury is insufficient to confer standing. The Eleventh Circuit is also unpersuaded by Cooper's argument that because she is suing under the FDCPA, what she calls a private attorney general statute, it should lower the standard she must meet to demonstrate a concrete injury. Cooper concedes that few Courts considering Article III standing challenges for claims brought pursuant to the FDCPA and other private attorney general statutes recognize the significance of this. In fact, Cooper has not cited any controlling authority even hinting that "private attorneys general" statutes require a reduced showing of Article III injury. Indeed, Spokeo itself involved a statute, the Fair Credit Reporting Act of 1970, which courts have described as making use of the "private attorneys general" concept. Accordingly, the Eleventh Circuit vacated the district court's holding to the extent it dismisses the complaint on the merits for failure to state a claim, and remanded with instructions that the district court reenters an order dismissing the case for want of jurisdiction. A full-text copy of the Eleventh Circuit's July 28, 2020 Order is available at https://tinyurl.com/yy5s4wph from Leagle.com. ATM COLLECTION: Blind Users Can't Access Web Site, Romero Claims ---------------------------------------------------------------- JOSUE ROMERO, individually and on behalf of all others similarly situated, Plaintiffs v. ATM COLLECTION INC., Defendant, Case No. 1:20-cv-07852-PGG (S.D.N.Y., Sept. 23, 2020), alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, www.atmcollection.com, is not fully or equally accessible to blind and visually-impaired consumers in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired consumers, including the Plaintiff. ATM Collection Inc. is a full lifestyle collection of luxurious sportswear for men and women. [BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal AURORA CANNABIS: Bragar Eagel Announces Class Action ---------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, announces that a class action lawsuit has been filed in the United States District Court for the District of New Jersey on behalf of investors that purchased Aurora Cannabis, Inc. (NYSE: ACB) securities between February 13, 2020 and September 4, 2020 (the "Class Period"). Investors have until December 1, 2020 to apply to the Court to be appointed as lead plaintiff in the lawsuit. Aurora is headquartered in Edmonton, Canada. The Company produces and distributes medical cannabis products worldwide. It is vertically integrated and horizontally diversified across various segments of the cannabis value chain, including facility engineering and design, cannabis breeding, genetics research, production, derivatives, high value-add product development, home cultivation, wholesale, and retail distribution. In 2018, the Canadian government approved the Cannabis Act, which legalized and regulated the use of recreational cannabis. In response to the statute's approval, and the corresponding surge of the recreational cannabis industry, Aurora completed a series of acquisitions to expand the Company's presence and increase its distribution, including the Company's all-share purchase of the Canadian medical cannabis producer MedReleaf for total consideration of 3.2 billion Canadian dollars. Like many other companies in the cannabis industry, however, the Company encountered a variety of difficulties as the industry surged, including, inter alia, overproduction, regulatory delays, and competition from the black market. On February 6, 2020,shortly before the start of the Class Period, Aurora issued a press release announcing, inter alia, a "business transformation plan," to "better align the business financially with the current realities of the cannabis market in Canada while maintaining a sustainable platform for long-term growth." Specifically, the press release touted that the plan was "expected to include significant and immediate decreases in selling, general & administrative ("SG&A") expenses and capital investment plans." On September 8, 2020, Aurora issued a press release "announc[ing] an update on its business operations along with certain unaudited preliminary fiscal fourth quarter 2020 results." Among other things, Aurora announced that the Company expected to record up to $1.8 billion in goodwill impairment charges in the fourth quarter of 2020. The Company also announced that "previously announced fixed asset impairment charges[ were] now expected to be up to $90 million, due to production facility rationalization, and a charge of approximately $140 million in the carrying value of certain inventory, predominantly trim, in order to align inventory on hand with near term expectations for demand." On this news, Aurora's stock price fell $0.99 per share, or 11.63%, to close at $7.52 per share on September 8, 2020. The complaint, filed on October 2, 2020, alleges that throughout the Class Period defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, defendants made false and/or misleading statements and/or failed to disclose that: (i) Aurora had significantly overpaid for previous acquisitions and experienced degradation in certain assets, including its production facilities and inventory; (ii) the Company's purported "business transformation plan" and cost reset failed to mitigate the foregoing issues; (iii) accordingly, it was foreseeable that the Company would record significant goodwill and asset impairment charges; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. If you purchased Aurora securities during the Class Period on an American Exchange and suffered a loss, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker, Melissa Fortunato, or Marion Passmore by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. About Bragar Eagel & Squire Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York and California. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. [GN] AVIS BUDGET: Denial of Arbitration Bid in Celestin Suit Upheld -------------------------------------------------------------- In the case, ANTHONY CELESTIN, Plaintiff-Respondent, v. AVIS BUDGET GROUP, INC. and BUDGET RENT A CAR SYSTEM, INC., Defendants-Appellants, Case No. A-1279-19T1 (N.J. Super. App. Div.), a two-judge panel of the Superior Court of New Jersey, Appellate Division, affirmed the trial court's Oct. 30, 2019 order denying the Defendants' motion to compel arbitration and stay the Plaintiff's individual claims. On Nov. 25, 2017, Plaintiff Celestin rented a car from Avis Budget at a facility located in Allentown, Pennsylvania. He lives in New Jersey and the rental agreement stated that he would return the car that same day to Budget's facility in Trenton, New Jersey. Before the Plaintiff rented the car, he was shown a one-page rental agreement, which he initialed and signed. The agreement set forth the estimated charges for the rental, which was $70.66. At the bottom of the rental agreement it stated he agrees the charges listed are estimates and that he has reviewed and agreed to notices and terms here and in the rental jacket. After he signed the rental agreement, the Plaintiff was given a rental jacket that contained a copy of the one-page rental agreement and a multi-page document entitled, "Rental Terms and Conditions." That second document contained 32 paragraphs. Paragraph 29 was labeled "Arbitration" and stated all disputes between the Plaintiff and Budget, except as noted, would be resolved in binding arbitration through the American Arbitration Association. The arbitration agreement is subject to the Federal Arbitration Act. It is undisputed that no representative of Budget reviewed the terms and conditions or the arbitration provision with the Plaintiff. The Plaintiff also did not sign the terms and conditions. Indeed, there was no place for him to sign the terms and conditions or the arbitration provision contained in those terms and conditions. The Plaintiff used the rental car for approximately three hours, drove it to New Jersey, and dropped it off at Budget's facility in Trenton. Budget charged plaintiff $340.66, which included a $250 cleaning fee for smoking in the car. The Plaintiff claimed he did not smoke in the car and disputed that charge. Budget, however, would not remove the charge. In January 2019, the Plaintiff filed a complaint in New Jersey against the Defendants. Thereafter, he amended his complaint and asserted various claims, including breach of contract, and claims under the Consumer Fraud Act, and the Truth-in-Consumer Contract, Warranty and Notice Act. In addition, the Plaintiff proposed that his claims should be certified as a class action. The Defendants responded by moving to compel arbitration and stay the litigation. They argued that Pennsylvania law governed the question whether the parties had entered into a binding arbitration agreement and whether the terms and conditions, including the arbitration provision, were incorporated into the rental agreement. After hearing oral argument, on Oct. 30, 2019, the trial court denied the Defendants' motion, explaining its ruling on the record and issuing a memorializing order. It held that there was no conflict between New Jersey and Pennsylvania law and the arbitration provision was not incorporated into the rental agreement under the law of either state. The court also reasoned that, even if there was a conflict, New Jersey law governed and under New Jersey law the arbitration provision was not incorporated into the rental agreement. Accordingly, the court held that there was no mutually enforceable agreement to arbitrate and denied the Defendants' motion. On appeal, the Defendants make three arguments, contending that (1) under New Jersey law, the arbitration provision was incorporated into the rental agreement; (2) if there is a conflict, Pennsylvania law governs; and (3) under Pennsylvania law, the Plaintiff agreed to arbitrate because the arbitration provision was incorporated into the rental agreement. The Appellate Division rejects these arguments and holds that there was no enforceable agreement to arbitrate. It finds that there is no substantive difference between Pennsylvania and New Jersey law concerning incorporation by reference. Applying either New Jersey or Pennsylvania law to the material facts of the case, the terms and conditions, including the arbitration provision, were not incorporated into the rental agreement. Accordingly, New Jersey law governs. The Appellate Division also holds that under Pennsylvania law, the arbitration provision was not incorporated by reference into the rental agreement that the Plaintiff signed. To be incorporated by reference under Pennsylvania law, the document must be reasonably clear and ascertainable. The Defendants did not identify or describe the arbitration provision before handing it to the Plaintiff after he signed the rental agreement. Accordingly, the arbitration provision was not reasonably clear or ascertainable because it was never identified, reviewed, or explained to or by the Plaintiff. Finally, the Appellate Division holds that New Jersey law governs the issue of whether there was a valid arbitration agreement and whether the arbitration provision was incorporated into the rental agreement. The contract at issue was entered into in Pennsylvania, but there were no negotiations. The contract was then performed both in Pennsylvania and in New Jersey when the Plaintiff drove the rental car into New Jersey. In that regard, the rental agreement expressly recognized that the Plaintiff would return the car in Trenton, New Jersey. The Plaintiff is a citizen of New Jersey and both the Defendants are incorporated in Delaware. The key determination, however, is that New Jersey has a strong interest in protecting its consumers and has well-developed policies concerning the enforceability of arbitration agreements. In light of the foregoing, the Appellate Court affirmed. A full-text copy of the Appellate Court's July 28, 2020 Opinion is available at https://tinyurl.com/yyl6f4p8 from Leagle.com. Kim M. Watterson -- kwatterson@reedsmith.com -- (Reed Smith LLP) of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellants (Reed Smith LLP, attorneys; Mark Fidanza -- mfidanza@reedsmith.com -- Kim M. Watterson, Jason E. Hazlewood -- jhazlewood@reedsmith.com -- (Reed Smith LLP) of the Pennsylvania bar, admitted pro hac vice, and M. Patrick Yingling -- mpyingling@reedsmith.com -- (Reed Smith LLP) of the Pennsylvania and Illinois bars, admitted pro hac vice, on the briefs). Joseph A. Osefchen argued the cause for respondent (De Nittis Osefchen and Prince PC, attorneys; Joseph A. Osefchen, Stephen P. De Nittis and Shane T. Prince, on the brief). B2C JEWELS: Blind Users Can't Access Web Site, Romero Claims ------------------------------------------------------------ JOSUE ROMERO, individually and on behalf of all others similarly situated, Plaintiffs v. B2C JEWELS, LLC, Defendant, Case No. 1:20-cv-07858-KPF (S.D.N.Y., Sept. 23, 2020), alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, www.b2cjewels.com, is not fully or equally accessible to blind and visually-impaired consumers in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers, including the Plaintiff. B2C Jewels, LLC is an online jewelry and diamond retailer. [BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal BAIDU INC: Vincent Wong Reminds of Class Action ----------------------------------------------- The Law Offices of Vincent Wong announce that a class action has commenced on behalf of certain shareholders of Baidu, Inc. If you suffered a loss you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. There will be no obligation or cost to you. Baidu, Inc. (NASDAQ:BIDU) If you suffered a loss, contact us at: http://www.wongesq.com/pslra-1/baidu-inc-loss-submission-form-2?prid=9774&wire=1 Lead Plaintiff Deadline: October 19, 2020 Class Period: April 8, 2016 - August 13, 2020 Allegations against BIDU include that: (1) Baidu misrepresented the financial and business condition of iQIYI; (2) iQIYI had inadequate controls; and (3) as a result, Defendants' public statements were materially false and/or misleading at all relevant times. To learn more contact Vincent Wong, Esq. either via email vw@wongesq.com or by telephone at 212.425.1140. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] BAYER HEALTHCARE: Bid to Dismiss First Amended Prescott Suit Denied ------------------------------------------------------------------- In the case, STEVEN PRESCOTT et al., Plaintiffs, v. BAYER HEALTHCARE LLC, et al., Defendants, Case No. 20-cv-00102-NC (N.D. Cal.), Magistrate Judge Nathanael M. Cousins of the U.S. District Court for the Northern District of California denied Defendants Bayer HealthCare and Beiersdorf, Inc.'s motion to dismiss Plaintiffs Prescott and Mike Xavier's first amended complaint. In the putative class action lawsuit, the Plaintiffs accuse the Defendants of misleading consumers by labeling their sunscreens as "mineral-based" when the sunscreens contain active chemical ingredient. Defendants Bayer HealthCare and Beiersdorf manufacture, market, label, and sell sunscreen lotions, including the four products challenged in the lawsuit. Those products are the Coppertone Water Babies Mineral-Based Sunscreen Lotion, Coppertone Water Babies Mineral-Based Sunscreen Stick, Coppertone Kids Mineral-Based Sunscreen Lotion, and the Coppertone Sport Face Mineral-Based Sunscreen Lotion. The front face of each sunscreen's label claims that it is "mineral-based." "Mineral-based" sunscreens are distinguished from "chemical-based" sunscreens through the compounds used to absorb or deflect ultraviolet radiation. Some compounds commonly used as active ingredients in sunscreens, such as zinc oxide and titanium dioxide, are considered inorganic minerals. Other common compounds commonly used as active ingredients in sunscreens, such as octisalate and octocrylene, are considered chemicals. Each of the four challenged products contain both mineral active ingredients and chemical active ingredients. Concerned about potential adverse health effects of chemical active ingredients, Plaintiffs Prescott and Xavier sought out "mineral-based" sunscreens. Prescott purchased the Sports Lotion after reading its "mineral-based" label and believing that the sunscreen contained only mineral active ingredients. Xavier purchased both the Sports Lotion and the Kids Lotion for the same reasons. Both Prescott and Xavier allege that they would not have purchased either product if they had known the products contained chemical ingredients. On May 15, 2020, the Plaintiffs filed their first amended class action complaint alleging claims for (1) unlawful and unfair business acts and practices; (2) deceptive advertising practices; (3) violation of the Consumers Legal Remedies Act; (4) breach of express warranty; and (5) unjust enrichment. The Defendants now move to dismiss and to strike the nationwide class allegations. They first argue that the Food, Drugs, and Cosmetics Act ("FDCA") expressly preempts the Plaintiffs' claims. In Astiana v. Hain Celestial Group, Inc., the Ninth Circuit held that the FDCA does not preempt state laws that allow consumers to sue cosmetics manufacturers that label or package their products in violation of federal standards. The Plaintiffs' claims allege deception as a result of advertising statements that contradicted the true ingredients listed on the FDA-mandated label." In particular, they contend that the Defendants' use of the phrase "mineral-based" is contradicted by the presence of allegedly significant chemical active ingredients. And if their suit ultimately requires the Defendants to remove the phrase "mineral-based" from their labels, such a result does not conflict with the FDCA because FDA regulations do not require or prohibit the use of phrase "mineral-based." Instead, FDA regulations generally prohibits claims that would be false and/or misleading on sunscreen products. Thus, Magistrate Judge Cousins holds that the Plaintiffs' claim that the Defendants mislead by calling their sunscreen is "mineral-based" is in line with FDA regulations. Accordingly, he concludes that the Plaintiffs' claims are not preempted by the FDCA's express preemption provision, and denies the Defendants' motion to dismiss on preemption grounds. The Defendants next argue that the Plaintiffs' lawsuit should be dismissed or stayed under the primary jurisdiction doctrine pending the FDA's proposed administrative order for sunscreen regulation pursuant to the recently enacted Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"). They also suggest that primary jurisdiction is appropriate because the FDA is considering further regulations regarding ingredient disclosures. First, the Magistrate Judge finds that false advertising suits like the instant one are squarely within the conventional experiences of judges and courts. Every day courts decide whether conduct is misleading and the reasonable-consumer determination and other issues involved in the Plaintiff's lawsuit are within the expertise of the courts to resolve. Second, contrary to the Defendants' suggestion, the lawsuit does not involve technical or policy considerations within the FDA's field of expertise. Although the Plaintiffs' complaint contains much rhetoric regarding chemical active ingredients used in sunscreen lotions, the crux of their lawsuit concerns whether the Defendants' description of their products is misleading. Accordingly, the Magistrate Judge concludes that the primary jurisdiction doctrine is inappropriate in the case and denies the Defendants' motion to dismiss on primary jurisdiction grounds. The Defendants raise two standing-related arguments for dismissal. First, they contend that the two named Plaintiffs lack standing to sue over two of the four contested products because they did not purchase them. Second, they argue that the Plaintiffs lack standing to pursue injunctive relief. The Magistrate Judge holds that while the challenged labels are not identical, the essence of each label is the same: the product claims to be "mineral-based." If the Plaintiffs are correct and reasonable consumers believe that the "mineral-based" descriptor implies that all or substantially all of the active ingredients are minerals, the misleading effect of all four labels are substantially the same. Thus, for the purposes of the motion to dismiss, the Magistrate concludes that the Plaintiffs have established standing. Accordingly, he denies the Defendants' motion to dismiss the Plaintiffs' claims relating to the Water Babies Lotion or Stick for lack of standing. The Defendants contend that the Plaintiffs now have all the information they require to avoid future misunderstanding about the challenged products ingredients: "they need only review the label." But it is not clear why the burden to avoid future misunderstanding lies with the Plaintiffs and not the Defendants when it is their actions that are allegedly unlawful. After all, if the ability to fully review a product label automatically defeats standing for injunctive relief, it is difficult to imagine any mislabeling and formulation case where injunctive relief would be appropriate. And the Ninth Circuit was not persuaded that injunctive relief is never available for a consumer who learns after purchasing a product that the label is false. Accordingly, the Magistrate Judge denies the Defendants' motion to dismiss for lack of standing to pursue injunctive relief. Turning to the merits, the Defendants next argue that the Plaintiffs have not adequately alleged that the reasonable consumer would find the phrase "mineral-based" to be false or misleading. Because the Plaintiffs' claims all rely on the premise that the Defendants' use of "mineral-based" is false or misleading, the Defendants contend that each of the Plaintiffs' claims must be dismissed. The Magistrate Judge finds that the Plaintiffs have plausibly alleged that the reasonable consumer may be misled by the Defendants' use of the phrase "mineral-based." Because the Defendants' motion to dismiss the Plaintiffs' first, second, third, fourth, and fifth claims all turn on whether the Plaintiffs have adequately alleged deception, the Magistrate Judge denies the Defendants' motion to dismiss the Plaintiffs' first, second, third, fourth, and fifth claims for failure to allege deception. In the alternative, the Defendants contend that the Plaintiffs' CLRA claim must be dismissed for failure to provide sufficient notice. However, the Plaintiffs' amendment of their complaint cures any defects with their CLRA notice. Although some courts dismiss CLRA claims with prejudice when the notice requirement is not met, most courts in this district grant leave to amend with liberality. Indeed, Section 1782 explicitly provides for the possibility of amendment. The Plaintiffs' original complaint clearly notifies both Defendants of the alleged violations and the first amended complaint was filed more than 30 days after the original complaint. Both requirements in Section 1782(a) are therefore satisfied. Finally, the Defendants argue that the Plaintiffs' class allegations must be stricken because the class members' claims are governed by the laws of their home states and variances in state law predominate. Defendants also contend that the Plaintiffs lack standing to bring claims on behalf of out-of-California class members. These arguments, however, are more appropriate at the class certification stage. The Magistarte therefore defers decision on the Defendants' motion to strike until class certification. Based on the foregoing reasons, Magistrate Judge Cousins denied the Defendants' motion to dismiss. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y2p9xrsl from Leagle.com. BIOMARIN PHARMA: Gross Law Firm Announces Class Action ------------------------------------------------------ The securities litigation law firm of The Gross Law Firm issues the following notice on behalf of shareholders of BioMarin Pharmaceutical Inc. Shareholders who purchased shares in the company during the dates listed are encouraged to contact the firm regarding possible Lead Plaintiff appointment. Appointment as Lead Plaintiff is not required to partake in any recovery. BioMarin Pharmaceutical Inc. (NASDAQ:BMRN) Investors Affected : February 28, 2020 - August 18, 2020 A class action has commenced on behalf of certain shareholders in BioMarin Pharmaceutical Inc. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (i) differences between the Phase 1/2 and Phase 3 study of valoctocogene roxaparvovec, an investigational adenoassociated virus gene therapy, limited the reliability of the Phase 1/2 study to support valoctocogene roxaparvovec's durability of effect; (ii) as a result, it was foreseeable that the U.S. Food and Drug Administration would not approve the Biologics License Application for valoctocogene roxaparvovec without additional data; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. Shareholders may find more information at https://securitiesclasslaw.com/securities/biomarin-pharmaceutical-inc-loss-submission-form/?id=9763&from=1 The Gross Law Firm is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] BIOMARIN PHARMA: Howard G. Smith Reminds of Nov. 24 Deadline ------------------------------------------------------------ Law Offices of Howard G. Smith announces that a class action lawsuit has been filed on behalf of investors who purchased BioMarin Pharmaceuticals Inc. ("BioMarin" or the "Company") (NASDAQ: BMRN) securities between February 28, 2020 and August 18, 2020 (the "Class Period"). BioMarin investors have until November 24, 2020 to file a lead plaintiff motion. On August 19, 2020, the Company announced receipt of a Complete Response Letter ("CRL") from the U.S. Food and Drug Administration ("FDA") regarding BioMarin's Biologics License Application ("BLA") for valoctocogene roxaparvovec. Therein, the FDA determined that the "differences between Study 270-201 (Phase 1/2) and the Phase 3 study limited its ability to rely on the Phase 1/2 study to support durability of effect." As a result, the FDA recommended that BioMarin "complete the Phase 3 Study and submit two-year follow-up safety and efficacy data on all study participants." On this news, BioMarin's stock price fell $41.82 per share, or 35%, to close at $76.72 per share on August 19, 2020, thereby injuring investors. The complaint filed alleges that throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (1) the differences between the Phase 1/2 and Phase 3 study of valoctocogene roxaparvovec limited the reliability of the Phase 1/2 study to support valoctocogene roxaparvovec's durability of effect; (2) as a result, it was foreseeable that the FDA would not approve the BLA for valoctocogene roxaparvovec without further data; and (3) that, as a result of the foregoing, Defendants' positive statements about the Company's busines, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased BioMarin securities, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Howard G. Smith, Esquire Law Offices of Howard G. Smith Tel No: 215-638-4847 888-638-4847 E-mail: howardsmith@howardsmithlaw.com [GN] BLINK CHARGING: Pomerantz Law Firm Reminds of Class Action ---------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Blink Charging Company ("Blink" or the "Company") (NASDAQ: BLNK) and certain of its officers. The class action, filed in the United States District Court for the Southern District of Florida, and docketed under 20-cv-23643, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise, acquired Blinksecurities between March 6, 2020, and August 19, 2020, inclusive (the "Class Period"). This action is brought on behalf of the Class for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Sec. 78j(b) and 78t(a) and Rule 10b-5 promulgated thereunder by the SEC, 17 C.F.R. Section 240.10b-5. If you are a shareholder who purchased Blink securities during the class period, you have until October 23, 2020, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. According to its most recent Annual Report filed on Form 10-K with the SEC, Blink purports to be "a leading owner, operator, and provider of" electric vehicle ("EV") "charging equipment and networked charging services. Blink offers both residential and commercial EV charging equipment, enabling EV drivers to easily recharge at various location types." Recently, Blink has touted the purported growth of its EV charging network, asserting that "drivers can easily charge at any of [Blink's] 15,000 charging stations." Over the last several months, Blink's stock price has climbed from trading between approximately $1.40 to $3.12 per share to an intraday high of $14.58 per share on July 30, 2020. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) many of Blink's charging stations are damaged, neglected, non-functional, inaccessible, or non-accessible; (ii) Blink's purported partnerships and expansions with other companies were overstated; (iii) the purported growth of the Company's network has been overstated; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. Culper continued to detail that of the 242 stations its investigators visited in the Atlanta, Chicago, Miami, and San Diego metro areas, twenty-three times (9.5% of total), Blink's map claimed that there were chargers onsite, but Culper's investigators were either unable to locate the chargers or locate all of the chargers claimed. In thirty-nine cases (16.1% of total), Culper's investigators "found chargers that, even though they existed, were visibly damaged and/or non-functional," and that "[a]s many of these chargers have been left to the elements for close to a decade, the most common deformities were due to sun and heat damage." Furthermore, in another eighteen cases (7.4% of total), Culper's investigators "found that chargers were inaccessible to the general public," and that "[m]any of these were behind locked garages, or restricted only for employee (in office buildings) or resident (in condo or apartment buildings) use only." Culper concluded: "In short, our sampling suggests that of the 3,275 chargers listed on the Company's map, only 67% of these, or 2,192 exist, are functional, and are publicly accessible." The Culper report included photos, from multiple locations, of Blink chargers that were severely damaged, inaccessible, and/or non-functional. It also included details of interviews with parking attendants and other locals who described the lack of use and/or other issues experienced with the Blink chargers. Also on August 19, 2020, analyst Mariner Research Group ("Mariner") published another report that was highly critical of Blink. Mariner wrote that Blink's "revenue growth has significantly seriously lagged the EV industry -- yet CEO Farkas made >$7M in compensation during this period. We believe that this is due to persistent issues around product quality, customer churn, and user experience, and believe that these issues will continue to hamper [Blink]'s growth." Mariner concluded: "[W]e believe the business should be valued at its liquidation, or book value, of just 17c in a downside scenario and at $2 a share in a bull case scenario . . . . The average of our price targets produces a base case target of $1.09, a drop of 91% from the 8/18/20 close." On this news, Blink's stock price fell from its August 18, 2020 closing price of $10.23 per share to an August 20, 2020 closing price of $7.94 per share. This represents a two day drop of approximately 22.4%. Indeed, the intraday price on August 20, 2020 reached as low as $6.42 per share. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com. Robert S. Willoughby Pomerantz LLP E-mail: rswilloughby@pomlaw.com [GN] BRASKEM SA: Zhang Investor Law Reminds of Class Action ------------------------------------------------------ Zhang Investor Law announces a class action lawsuit on behalf of shareholders who bought shares of Braskem S.A. (: BAK) between May 6, 2020 and July 8, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover investor losses under the federal securities laws. If you wish to serve as lead plaintiff, you must move the Court before the OCTOBER 26, 2020 DEADLINE. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. To join the class action, go to http://zhanginvestorlaw.com/join-action-form/?slug=braskem-s-a&id=2374 or call Sophie Zhang, Esq. toll-free at 800-991-3756 or email info@zhanginvestorlaw.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: 1) Braskem's salt mining operations were unsafe and presented a significant danger to surrounding areas, including nearly two thousand properties; (2) the foregoing foreseeably increased the risk that Braskem would be subjected to remedial liabilities, including, but not limited to, increased governmental and/or regulatory oversight or enforcement, significant monetary and reputational damage, and/or the permanent closure of one or more of its salt mining operations; (3) accordingly, earnings generated from Braskem's salt mining operations were unsustainable; (4) Braskem downplayed the true scope and severity of the Company's liability with respect to its salt mining operations; and (5) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Lead plaintiff status is not required to seek compensation. You may retain counsel of your choice. You may remain an absent class member and take no action at this time. Zhang Investor Law represents investors worldwide. Attorney Advertising. Prior results do not guarantee similar outcomes. [GN] BRIGHT FLOORING: Faces Cedeno FLSA Suit Over Abrupt Termination --------------------------------------------------------------- ANTHONY CEDENO, Plaintiff v. BRIGHT FLOORING DESIGNERS CORP. and NELSON MARTINEZ ENCISO, Defendants, Case No. CACE-20-017163 (Fla. Cir., 17th Judicial, Broward Cty., October 15, 2020) is brought on behalf of the Plaintiff and those similarly situated against the Defendants for their alleged wrongful, retaliatory discharge conduct in violation of the Fair Labor Standards Act (FLSA). The Plaintiff was employed by the Defendants as an assistant. According to the complaint, the Plaintiff suffered a work-related injury on or about October 3, 2020 that was caused by a car accident due to the lack of functioning seatbelt of the Defendants' vehicle. The Plaintiff reported his injury to the Defendants and requested for a medical treatment. However, the Defendants terminated the Plaintiff on or about October 6, 2020. Bright Flooring Designers Corp. is a licensed and insured flooring company owned and operated by Nelson Martinez Enciso. [BN] The Plaintiff is represented by: Tanesha Blye, Esq. Aron Smukler, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Ave., Ste. 800 Aventura, FL 33180 Tel: (305) 503-5131 Fax: (888) 270-5549 E-mail: tblye@saenzaderso.com asmukler@saenzanderson.com msaenz@saenzanderson.com BUDGET VAN: Loses Bid to Dismiss Caplan TCPA Class Action --------------------------------------------------------- In the case, MICHAEL CAPLAN, Plaintiff(s), v. BUDGET VAN LINES, INC., Defendant(s), Case No. 2:20-CV-130 JCM (VCF) (D. Nev.), Judge James C. Mahan of the U.S. District Court for the District of Nevada denied (i) Budget's motion to dismiss Caplan's complaint, and (ii) Budget's motion to strike the class allegations from Caplan's complaint. The putative class action arises from a dispute over a series of electronic communications. Caplan was a resident of Jupiter, Florida, preparing to move to Knoxville, Tennessee. To prepare for his move, he sought out quotes for movers and found Budget. Budget is a broker who provides quotes for various moving services. Caplan visited Budget's website and at least partially completed a form to compile quotes for moving services. He alleges that he never submitted the form to Budget. Soon after, Caplan received an allegedly prerecorded voicemail in which "Jeff with Budget Van Lines" solicited him to contact Budget for more information about moving services. He received another similar voicemail two days later. Through online research, Caplan discovered that other individuals reported receiving identical voicemail messages. Caplan now alleges these voicemail messages were violations of the Telephone Consumer Protection Act ("TCPA"). Presently before the Court is Budget's motion to dismiss and its motion to strike the class allegations from Caplan's complaint. Caplan has replied to both motions. There are two salient issues in the motion to dismiss. First, is whether Caplan has standing to bring the claim. Second is whether ringless voicemail messages ("RVMs") are "calls" under the TCPA. Budget argues that the court should dismiss Caplan's claims because Caplan consented to receiving the calls, therefore negating the injury-in-fact required for Article III standing. Caplan challenges that factual assertion by claiming he did not consent. Judge Mahan holds that the FCC has previously extended the TCPA's coverage to include internet-to-phone text messaging, finding that a focus on the means used to initiate the communication would elevate form over substance, thwart Congressional intent that evolving technologies not deprive mobile customers of the TCPA's protections, and potentially open a floodgate of unwanted text messages to wireless customer. He finds that the TCPA is applicable to RVMs for the same reason. Focusing on the method of delivery, as Budget would have the Court do, elevates form over substance. At bottom, RVMs are still a nuisance delivered to the recipient's phone by means of the phone number. RVMs are calls as defined by the TCPA. The Judge therefore denied Budget's motion to dismiss. In the alternative, Budget moves to strike the class allegations from Caplan's complaint on the grounds of overbreadth and Caplan's inadequacy as a class representative. Caplan's proposed class extends to people in an identical factual scenario. The proposed class fits within the same theory of legal liability Caplan advances himself. Therefore, the Court will not exercise its discretion to strike the class definition on the grounds of overbreadth. To the extent the Budget's motion does not rely on argument from its motion to dismiss, it relies on argument that the class cannot be certified under Rule 23. A motion to strike class allegations at the pleading stage is not the proper procedural vehicle to eliminate those claims. It is the functional equivalent of denying a motion to certify a case as a class action. Budget can raise these arguments regarding Caplan's adequacy as a class representative in response to Caplan's inevitable Rule 23 motion. For these reasons, the Judge denied Budget's motion to strike. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/yxob2p4e from Leagle.com. CANADIAN MEDICAL: Byer Clinic et al. Sue Over Unsolicited Fax Ads ----------------------------------------------------------------- BYER CLINIC OF CHIROPRATIC, LTD., an Illinois corporation, and ERIC B. FROMER CHIROPRACTIC, INC., a California corporation, individually and as the representatives of a class of similarly-situated persons, Plaintiffs v. CANADIAN MEDICAL DIST INC. a/k/a MEDYKITS, a Canadian corporation, Defendant, Case No. 1:20-cv-06210 (N.D. Ill., October 20, 2020) is a class action complaint brought against the Defendant for its alleged unlawful practice of sending unsolicited advertisements by facsimile in violation of the Telephone Consumer Protection Act. The Plaintiffs claim that they received unsolicited fax advertisements from the Defendant even without providing their prior express invitation or permission to the Defendant to send the faxes. The Plaintiffs suffered damages as a result of the Defendant's unwanted faxes, which caused them to lose paper and toner consumed, occupied their telephone lines and fax machines, wasted their time, intruded into their seclusion, and violated their right to privacy, the suit says. Canadian Medical Dist Inc. a/k/a Medykits provides various personal protection products. [BN] The Plaintiffs are represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Tel: (847) 368-1500 Fax: (847) 368-1501 E-mail: rkelly@andersonwanca.com CARVERTISE INC: Faces Kostakis Suit Over Unsolicited Text Messages ------------------------------------------------------------------ GEORGE KOSTAKIS, individually and as the representative of a class of similarly-situated persons, Plaintiff v. CARVERTISE, INC., a Delaware corporation, Defendant, Case No. 1:20-cv-06162 (N.D. Ill., October 16, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Telephone Consumer Protection Act. The Plaintiff claims that the Defendant sent a text message on his personal cellular telephone on or about October 6, 2020 in attempt to promote its products or services. The Defendant allegedly used an automatic telephone dialing system (ATDS) in transmitting its message without obtaining the Plaintiff's prior express written consent to transmit any advertisement or telemarketing messages to his cellular telephone. The Plaintiff incurred expenses to his wireless service, wasted data storage capacity, and suffered the nuisance, waste of time, aggravation, intrusion upon his seclusion, and invasion of privacy as a result of receiving the Defendant's unsolicited text message, the suit says. Carvertise, Inc. is an advertising/marketing company. [BN] The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Tel: (847) 368-1500 Fax: (847) 368-1501 E-mail: rkelly@andersonwanca.com CDM FEDERAL: Faces Ali Suit Over Failure to Pay Overtime Wages -------------------------------------------------------------- DONALD ALI, individually and on behalf of all others similarly situated, Plaintiff v. CDM FEDERAL PROGRAMS CORPORATION and CDM SMITH INC., Defendants, Case No. 1:20-cv-05008 (E.D.N.Y., October 19, 2020) brings this collective action complaint against the Defendants for their alleged failure to pay their employees for all hours worked in violation of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). The Plaintiff was employed by the Defendants from approximately September 2016 to approximately July 2020. According to the complaint, the Defendants classified the Plaintiff as a W-2 employee and paid him on an hourly basis. Although the Plaintiff regularly worked in excess of 40 hours per week, the Defendants denied him of his lawfully earned overtime at the rate of one and one-half times his regular rate of pay as required by the FLSA and NYLL. The Defendants, instead, paid him straight time without overtime, the suit says. CDM Federal Programs Corporation and CDM Smith Inc. provide natural disaster relief services. [BN] The Plaintiff is represented by: Ricardo J. Prieto, Esq. Melinda Arbuckle, Esq. SHELLIST LAZARS SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Tel: (713) 621-2277 Fax: (713) 621-0993 E-mail: rprieto@eeoc.net marbuckle@eeoc.net - and – Carlo A. C. e Oliveira, Esq. COOPER ERVING & SAVAGE LLP 39 North Pearl St., Fourth Floor Albany, NY 12207 Tel: (518) 449-3900 Fax: (518) 432-3111 E-mail: Cdeoliveira@coopererving.com CDM FEDERAL: Fails to Pay Proper OT to Staff, Batiste Suit Says --------------------------------------------------------------- HORACE BATISTE, individually and on behalf of all others similarly situated, Plaintiff v. CDM FEDERAL PROGRAMS CORPORATION; and CDM SMITH INC., Defendants, Case No. 3:20-cv-01497 (D.P.R., Sept. 23, 2020) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Batiste was employed by the Defendants as staff. Cdm Federal Programs Corporation provides engineering and construction services. The Company offers lasting and integrated solutions in water, environment, transportation, energy, and facilities. [BN] The Plaintiff is represented by: Ricardo J. Prieto, Esq. Melinda Arbuckle, Esq. SHELLIST LAZARZ SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 E-mail: rprieto@eeoc.net marbuckle@eeoc.net - and - Enrique J. Mendoza Mendez, Esq. MENDOZA LAW OFFICES P.O. Box 9282 San Juan, PR 00908-0282 Telephone: (787) 722-5522 Facsimile: (787) 723-7057 E-mail: mendozalo@yahoo.com CELL NATION: Fails to Pay Proper Wages, Aribou et al. Claim ----------------------------------------------------------- SHAYMAA ARIBOU; NESTOR ALVARADO; ARMANDO HERRERA; and ERIKA HERRERA, individually and on behalf of all others similarly situated, Plaintiffs v. FARID SULEIMAN; MOHAMMAD SULEIMAN; ALI SULEIMAN; CELL NATION OF 77 INC.; CELL NATION OF AUSTIN, INC.; CELL NATION OF JAMAICA INC.; CELL NATION OF FULTON CORP.; FLATBUSH CELL INC.; and JOHN DOES 1 – 30, Defendants, Case No. 1:20-cv-04511 (E.D.N.Y., Sept. 23, 2020) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as store clerks. Cell Nation of 77 Inc. owns and operates a cellular telephone store in Brooklyn, New York. [BN] The Plaintiffs are represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 3rd Avenue, Suite 1810 Telephone: (718) 669-0714 E-mail: mgangat@gangatllc.com COLONIAL PARKING: $1.95MM Deal in Abraha Gets Prelim. Approval -------------------------------------------------------------- In the case, BERTHE BENYAM ABRAHA, et al., Plaintiffs, v. COLONIAL PARKING, INC., et al., Defendants, Civil Action No. 16-680 (CKK) (D. D.C.), Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia granted the Plaintiffs' Unopposed Motion for Entry of an Order Preliminarily Approving a Settlement and Conditionally Certifying a Settlement Class. The proposed class action against Defendants Colonial and FCE Benefit Administrators, Inc., arises under the Employment Retirement Income Security Act of 1974 ("ERISA") in relation to two employee benefit plans. The Plaintiff's Amended Complaint asserts five claims. The principal claim is that the fees paid to FCE from the Forge Company Health and Welfare Plan were done under an arrangement that is prohibited under ERISA sections 406(a)(1)(D) and 406(b). The Plaintiffs further claim that the fiduciaries did not act solely within the interests of the participants or prudently pursuant to ERISA section 404. The Plaintiffs also assert three claims relating to the DUB accounts maintained within the ACEC-MW Health and Welfare Plan. First is that the Defendants violated ERISA sections 404, 405, and 406 with respect to the investment of the assets in the ACEC Plan that allegedly generated earnings that were credited to the DUB benefit balances of the Plaintiffs. Second, they claim that the Defendants violated ERIA sections 404 and 405 by not allocating the ACEC Plan's surplus assets to the DUB accounts of the Plaintiffs. Third, the Plaintiffs claim that the Defendants violated ERISA sections 404, 405, and 406 in connection with deductions for a "Trust Tax" that were taken from distributions made to the Plaintiffs from the ACEC Plan. The Plaintiffs next allege that the Defendants violated ERISA sections 404, 405, and 406 by reducing the DUB balances of 18 participants who elected dependent health coverage from 2007 through 2009. They lastly assert that the surplus assets in the Forge Plan should be distributed to them. On April 12, 2016, the Plaintiffs filed their original Complaint against the Defendants as a class action alleging breaches of fiduciary duty in direct violation of ERISA. In November 2017, the Plaintiffs filed their first Motion for Class Certification, which was opposed by both Defendants. In April 2018, the Court denied the motion without prejudice and allowed the Plaintiffs to amend the Complaint. In August 2019, the parties informed the Court that the Plaintiffs' renewed Motion for Class Certification would be unopposed, and on Dec. 6, 2019, the Court was informed that the parties reached a settlement in principle. On Dec. 13, 2019, the Court denied the Unopposed Motion for Class Certification, again without prejudice, and ordered that the parties seek class certification together with the proposed settlement agreement. On Jan. 24, 2020, the Plaintiffs filed the pending motion, seeking an order from the Court to preliminarily approve the proposed settlement and conditionally certify the class action as a settlement class. The parties have submitted their proposed settlement to the Court. The Settlement Agreement contemplates that a non-opt-out class will be certified pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(1), and 23(e). The proposed class is defined as: Individuals who participated in the Forge Company Health and Welfare plan who also received a DUB Benefit distribution between Oct. 1, 2006 and Dec. 31, 2015. The parties have identified 119 persons in the proposed class. As for monetary consideration, the Settlement Agreement provides for a Settlement Fund with approximately $1.95 million. This breaks down into three separate payments. First, the Defendants will pay $1.65 million in cash. Second, Trust Management Services ("TMS"), the current trustee of the Forge Plan, will deposit the remaining surplus of the assets in the Forge Plan, which totals approximately $90,000. Lastly, TMS will also deposit the remaining surplus in the ACEC Plan, which totals approximately $200,000. Payment from the Defendants would be sent within ten business days after the entry of the Court's Order preliminarily approving the Settlement Agreement, while TMS would send its payments within 10 business days after the Effective Date of Settlement. The Class Counsel are not seeking any attorney's fees and seek only reimbursement of out of pocket costs of approximately $70,000 as well as Incentive Awards to the four Named Plaintiffs of $15,000 each. The Defendants do not oppose expense reimbursements to the Class Counsel as long as they do not exceed $70,000 and do not oppose Incentive Awards of up to $15,000 for each of the four Named Plaintiffs. Under the Settlement Agreement, after these administrative expenses are distributed, the remaining funds are distributed under the Plan of Allocation, which has two stages. The first would involve distribution of $99,116.69 to 18 Settlement Class members whose DUB benefits were allegedly reduced because they elected health insurance coverage for their spouse or children between 2007 and 2009. The second stage is the distribution of the remaining funds, approximately $1.8 million, which will be distributed based on the total hours worked by each Settlement Class Member at the relevant facility. The Settlement Agreement further provides for releases by, and among, the parties. Under the Settlement Agreement, the Plaintiffs would release the "Released Parties" from the "Released Claims." Judge Kollar-Kotelly's Memorandum Opinion proceeds in three parts. First, having determined that the requirements of both Rule 23(a) and Rule 23(b)(3) are satisfied, and with the consent of the parties, the Judge certifies the Plaintiff class for settlement purposes. She appoints Edward Scallet and Susan Baron as class counsel at this time pursuant to Federal Rule of Civil Procedure 23(g). Second, the Judge preliminarily approves of the proposed class settlement as fair, adequate, reasonable, and not the product of collusion. She finds that the proposed settlement was the result of extensive arm's-length negotiations between the parties and a process that was thorough, adversarial, and professional. The settlement falls within the range of fair, adequate and reasonable settlements for the purposes of preliminary approval. It comes at the appropriate time in the action. The Judge will determine whether to grant final approval of the settlement after considering any class member objections and holding a fairness hearing. Third, the Judge approves of the proposed notice to be sent to the class members and schedules a hearing on the fairness of the proposed settlement. She finds that the proposed notice is sufficient and orders that it be provided to all the class members. The proposed a manner for providing the notice is reasonable. The Class Counsel will cause the Class Notice to be disseminated to the Settlement Class Members in the manner set forth in the Preliminary Approval Order. The Class Notice will be mailed to the members of the Settlement Class at the last known addresses. The Defendants will use good faith, reasonable efforts to provide such last known addresses, as well as social security numbers, to the Settlement Administrator but otherwise will bear no responsibility for the distribution of the Class Notice. The Class Counsel also will cause the Class Notice to be published on the website identified in the Class Notice. Based on the foregoing reasons, Judge Kollar-Kotelly granted the Plaintiffs' Unopposed Motion for Entry of an Order Preliminarily Approving a Settlement and Conditionally Certifying a Settlement Class. She conditionally certified the Plaintiff class for settlement purposes, appointed the Plaintiffs' counsel as the class counsel, preliminarily approved of the class settlement, approved of the agreed-upon notice to potential class members of the proposed settlement, and set a final approval hearing on the fairness of the settlement as outlined in her accompanying Order. A full-text copy of the Court's July 31, 2020 Memorandum Opinion is available at https://tinyurl.com/yyfqn2tg from Leagle.com. COMCAST CORP: Faces Be ERISA Suit Over Denied Insurance Claim ------------------------------------------------------------- SU BE, individually, and on behalf of all those similarly situated, Plaintiff v. COMCAST CORPORATION and MAGELLAN HEALTH SERVICES, INC., Defendants, Case No. 1:20-cv-08571 (S.D.N.Y., October 14, 2020) is a class action complaint filed by the Plaintiff to challenge the Defendants' unlawful practice that violated the Mental Health Parity and Addiction Equity Act, which is incorporated into the Employee Retirement Income Security Act of 1974 (ERISA). The Plaintiff worked at the company that was eventually owned by Comcast, and so her health insurance was provided by Defendant Comcast through a COBRA plan covering employees and plan participants and their beneficiaries. According to the complaint, the Comcast COBRA plan coverage will only pay benefits for medically necessary services or supplies that covered health services, mental health services and substance use disorder services. Covered inpatient mental health services include lodging and dietary services, physician, psychologist, nurse, counselor and trained staff services, family, group and individual therapy and counseling, partial hospitalization, and facility-based day/night care. The services at issue were incurred by the Plaintiff's daughter, whose initials are So Be, who was diagnosed with mental disorders by the time she was 14 and was enrolled as an inpatient at a wilderness therapy program as recommended by her caregivers after her continued suicide ideation. Subsequently, the Plaintiff submitted her coverage claim to Defendant Comcast. However, she received an explanation of benefits form under Defendant Magellan letterhead indicating that her insurance was denied. Comcast Corporation is a broadcasting and cable television company. Magellan Health, Inc. is a for-profit managed health care company. [BN] The Plaintiff is represented by: Amanda Peterson, Esq. MORGAN & MORGAN, P.A. 90 Broad Street, Suite 1011 New York, NY 10004 Tel: (212) 564-4568 E-mail: apeterson@forthepeople.com - and – Robert R. Sparks, Esq. STRAUSS TROY O., LPA 150 E. Fourth Street, 4th Floor Cincinnati, OH 45202 Tel: (513) 621-2120 E-mail: rrsparks@strausstroy.com - and – Jordan Lewis, Esq. JORDAN LEWIS, P.A. 4473 N.E. 11th Avenue Fort Lauderdale, FL 33334 Tel: (954) 616-8995 E-mail: jordan@jml-lawfim.com CONTRACTED MEDICAL: Court Denies Class Certification of Snyder Suit ------------------------------------------------------------------- In the case, JOANNA M. SNYDER and JENNIFER DONAHUE, v. CONTRACTED MEDICAL FOR THE DOC, et al, Civil Action No. 20-10226-RGS (D. Mass.), Judge Richard G. Stearns of the U.S. District Court for the District of Massachusetts denied (i) the motions by Elba Morales, Nikki Piazza, Tonicia Goodwin, Wendy Filkins, Caroline McDonough, Diane Farley and Justina Talbot to join the lawsuit; (ii) the Plaintiffs' motion for class certification; and (iii) the Plaintiffs' motion for appointment of counsel. The prisoner civil rights action was initiated by Snyder and Donahue, both inmates in custody at MCI-Framingham. On June 12, 2020, the Plaintiffs filed motions for class certification and appointment of counsel. At that time, the following seven inmates at MCI-Framingham filed motions to join the lawsuit: Morales, Piazza, Goodwin, Filkins, McDonough, Farley and Talbot. While the Plaintiffs' claims may implicate common questions of law, Movants Morales, Piazza, Goodwin, Filkins, McDonough, Farley and Talbot interacted at different times with some of the Defendants regarding their own particular concerns. Not every Plaintiff had contact with every Defendant and the claims do not "necessarily arise out of the same transaction, occurrence, or series of transactions or occurrences." The similarities do not convert each Movant's claims into claims arising from the same transaction or series of transactions or occurrences. Should the Defendants assert defenses in the case based on the failure exhaust administrative remedies, the Plaintiffs' response to those defenses would likely require different proof for each Plaintiff. Thus, Stearns denied the motions filed by the Movants. In their motion for class certification, the Plaintiffs assert that there are too many potential Plaintiffs to join the action pursuant to Rule 20(a) of the Federal Rules of Civil Procedure. As a general rule an individual appearing pro se may not represent other individuals in federal court, and courts have routinely denied a prisoner's request to represent a class of prisoners without the assistance of counsel. Each of the two Plaintiffs who signed the amended complaint appears pro se in the action, and neither of them is an attorney admitted to the Bar of the Court. The pro se Plaintiffs cannot adequately represent the interests of the class they have identified. Accordingly, the motion to certify a class is denied. Finally, under 28 U.S.C. Section 1915(e)(1), exceptional circumstances are shown when the denial of appointed counsel will result in fundamental unfairness impinging on a litigant's due process rights. In determining whether there are exceptional circumstances sufficient to warrant the appointment of counsel, a court must examine the total situation, focusing on the merits of the case, the complexity of the legal issues, and the litigants' ability to represent themselves. In the case, it does not appear that exceptional circumstances that would justify the appointment of counsel exist. Accordingly, the Plaintiffs' motion for appointment of counsel is denied. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/yyyqn7pt from Leagle.com. COPPERAS COVE: Cox Sues Over Unpaid Overtime for Nursing Aides -------------------------------------------------------------- The case, TINISHA COX, on behalf of herself and all others similarly situated, Plaintiff v. COPPERAS COVE LTC PARTNERS, INC. and CENTURY REHABILITATION OF TEXAS, LLC, Defendants, Case No. 6:20-cv-00971 (W.D. Tex., October 16, 2020) arises from the Defendants' alleged violation of the Fair Labor Standards Act. The Plaintiff was originally employed by Defendant Copperas Cove as a certified nursing assistant (CAN) and then she was subsequently jointly employed by Century Rehabilitation as a restorative aide. The Plaintiff asserts that Century Rehabilitation frequently forced her to work off the clock, frequently cut her hours to keep her hours below 40 hours per week, and simply ignored her complaints about their unlawful practices. Additionally, the Defendants refused to combine the hours she worked for both Defendants each week for overtime purposes even though both jointly employed her. As a result, despite consistently working well over 40 hours per week, the Plaintiff was not properly compensated for her lawfully earned overtime pursuant to the FLSA. Copperas Cove LTC Partners, Inc. and Century Rehabilitation of Texas, LLC offer long-term care and rehabilitation services. The Plaintiff is represented by: Douglas B Welmaker, Esq. MORELAND VERRETT, PC 700 West Summit Dr. Wimberly, TX 78676 Tel: (512) 782-0567 Fax: (512) 782-0605 E-mail: doug@morelandlaw.com COSTCO WHOLESALE: Consolidated Opioid-Related Litigation Ongoing ---------------------------------------------------------------- Costco Wholesale Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended August 30, 2020, that the company continues to defend a consolidated class action suit entitled, In re National Prescription Opiate Litigation (MDL No. 2804) (N.D. Ohio). In December 2017, the United States Judicial Panel on Multidistrict Litigation consolidated numerous cases concerning the impacts of opioid abuses filed against various defendants by counties, cities, hospitals, Native American tribes, third-party payors, and others. Included are federal cases that name the Company, including actions filed by counties and cities in Michigan, New Jersey, Oregon, Virginia and South Carolina, a third-party payor in Ohio, and class actions filed on behalf of infants born with opioid-related medical conditions in 40 states, and class actions and individual actions filed on behalf of individuals seeking to recover alleged increased insurance costs associated with opioid abuse in 43 states and American Samoa. In 2019, similar actions were commenced against the Company in state court in Utah. Claims against the Company in state courts in New Jersey, Oklahoma, and Arizona have been dismissed. The Company is defending all of these matters. Costco Wholesale Corporation, together with its subsidiaries, operates membership warehouses. It offers branded and private-label products in a range of merchandise categories. The company was formerly known as Costco Companies, Inc. Costco Wholesale Corporation was founded in 1976 and is based in Issaquah, Washington. COSTCO WHOLESALE: Continues to Defend Martinez Class Action ----------------------------------------------------------- Costco Wholesale Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended August 30, 2020, that the company continues to defend a class action suit entitled, Martinez v. Costco Wholesale Corp. (Case No. 3:19-cv-05624; N.D. Cal.; filed June 11, 2019). In June 2019, an employee filed a class action against the Company alleging claims under California law for failure to pay overtime, to provide meal and rest periods, itemized wage statements, to timely pay wages due to terminating employees, to pay minimum wages, and for unfair business practices. The Company filed an answer denying the material allegations of the complaint. No further updates were provided in the Company's SEC report. Costco Wholesale Corporation, together with its subsidiaries, operates membership warehouses. It offers branded and private-label products in a range of merchandise categories. The company was formerly known as Costco Companies, Inc. Costco Wholesale Corporation was founded in 1976 and is based in Issaquah, Washington. COSTCO WHOLESALE: Decision to Remand Nevarez Suit Appealed ---------------------------------------------------------- Costco Wholesale Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended August 30, 2020, that the decision to remand the case, Nevarez v. Costco Wholesale Corp. (Case No. 2:19-cv-03454; C.D. Cal.), has been appealed. On March 25, 2019, employees filed a class action against the Company alleging claims under California law for failure to pay overtime, to provide meal and rest periods and itemized wage statements, to timely pay wages due to terminating employees, to pay minimum wages, and for unfair business practices. Relief is sought under the California Labor Code, including civil penalties and attorneys' fees. The Company filed an answer denying the material allegations of the complaint. In December 2019, the court issued an order denying class certification. In January 2020, the plaintiffs dismissed their Labor Code claims without prejudice, and the court remanded the action to state court. The remand is being appealed. No further updates were provided in the Company's SEC report. Costco Wholesale Corporation, together with its subsidiaries, operates membership warehouses. It offers branded and private-label products in a range of merchandise categories. The company was formerly known as Costco Companies, Inc. Costco Wholesale Corporation was founded in 1976 and is based in Issaquah, Washington. COSTCO WHOLESALE: Soulek Putative Class Action Ongoing ------------------------------------------------------ Costco Wholesale Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended August 30, 2020, that the company continues to defend a putative class action suit entitled, Dustin S. Soulek v. Costco Wholesale, et al., Case No. 20-cv-937. On June 23, 2020, a putative class action was filed against the Company, the "Board of Directors," the "Costco Benefits Committee" and others under the Employee Retirement Income Security Act, in the United States District Court for the Eastern District of Wisconsin. The class is alleged to be beneficiaries of the Costco 401(k) plan from June 23, 2014, and the claims are that the defendants breached their fiduciary duties in the operation and oversight of the plan. The complaint seeks injunctive relief, damages, interest, costs, and attorneys' fees. On September 11, the defendants filed a motion to dismiss the complaint, and on September 21 the plaintiffs filed an amended complaint. Costco Wholesale Corporation, together with its subsidiaries, operates membership warehouses. It offers branded and private-label products in a range of merchandise categories. The company was formerly known as Costco Companies, Inc. Costco Wholesale Corporation was founded in 1976 and is based in Issaquah, Washington. CREDIT ACCEPTANCE: Kahn Swick Reminds of Dec. 1 Deadline -------------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until December 1, 2020 to file lead plaintiff applications in a securities class action lawsuit against Credit Acceptance Corporation (NasdaqGS: CACC), if they purchased the Company's shares between November 1, 2019 and August 28, 2020, inclusive (the "Class Period"). This action is pending in the United States District Court for the Eastern District of Michigan. What You May Do If you purchased shares of Credit Acceptance and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit https://www.ksfcounsel.com/cases/nasdaqgs-cacc/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by December 1, 2020. About the Lawsuit Credit Acceptance and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On August 28, 2020, the Attorney General of Massachusetts filed a lawsuit against the Company for allegedly unfair and deceptive automobile loans it made to thousands of Massachusetts consumers, providing its investors with false and/or misleading information regarding the asset-backed securitizations offered, and for unfair debt collection practices. On this news, the price of Credit Acceptance's shares plummeted. The case is Palm Tran, Inc. Amalgamated Transit Union Local 1577 Pension Plan V. Credit Acceptance Corporation, et al, 20-cv-12698. About Kahn Swick & Foti, LLC KSF, whose partners include former Louisiana Attorney General Charles C. Foti, Jr., is one of the nation's premier boutique securities litigation law firms. KSF serves a variety of clients – including public institutional investors, hedge funds, money managers and retail investors – in seeking to recover investment losses due to corporate fraud and malfeasance by publicly traded companies. KSF has offices in New York, California and Louisiana. Lewis Kahn Managing Partner Kahn Swick & Foti, LLC Tel No: 1-877-515-1850 E-mail: lewis.kahn@ksfcounsel.com [GN] DELORES & WILLIAM: Website Inaccessible to Disabled, Sarwar Claims ------------------------------------------------------------------ SAIM SARWAR, individually, Plaintiff v. DELORES & WILLIAM & BEIDMAN, Defendant, Case No. 3:20-cv-00210-SLH (W.D. Pa., October 19, 2020) is brought on behalf of the Plaintiff and all other individuals similarly situated against the Defendant for its alleged violation of the Americans with Disabilities Act. The Plaintiff is unable to engage in the major life activity of walking more than a few steps without assistive devices and has limited use of his hands. According to the complaint, the Plaintiff was unable to access the Defendant's online reservations services when he visited its Websites for the purpose of reviewing and assessing the accessible features at the Defendant's lodging property and ascertain whether they meet the requirements of 28 C.F.R. Section 36.302(e) and his accessibility needs. The Defendant allegedly failed to comply with the requirements, thereby depriving the Plaintiff the same goods, services, features, facilities, benefits, advantages, and accommodations of the property available to the general public. Delores & William & Beidman operates and owns a place of lodging known as Judy's Motel in Bedford, Pennsylvania. [BN] The Plaintiff is represented by: Tristan W. Gillespie, Esq. THOMAS B BACON, P.A. 5150 Cottage Farm Rd. Johns Creek, GA 30022 Tel: (404) 276-7277 E-mail: gillespie.tristan@gmail.com DIGITAL MEDIA: Hooper Sues Over Unsolicited Text Messages --------------------------------------------------------- GRAHAM HOOPER, individually and on behalf of all others similarly situated, Plaintiff v. DIGITAL MEDIA SOLUTIONS, INC., a Florida corporation, Defendant, Case No. 1:20-cv-24241 (S.D. Fla., October 16, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Telephone Consumer Protection Act. According to the complaint, the Plaintiff began receiving numerous telemarketing text messages to his cellular telephone number ending in 5783 on or about June 11, 2020 from the Defendant attempting to convince the Plaintiff to purchase vehicles, auto insurance, and other various products and services offered by the Defendant's marketing clients. The Plaintiff asserts that he never provide the Defendant with his prior express written consent to be sent telemarketing text messages to his cellular telephone number that was registered on the National Do-Not-Call Registry since September 22, 2018. As a result of the Defendant's unsolicited telemarketing messages, the Plaintiff suffered actual harm, that include invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Digital Media Solutions, Inc. is a global marketing company. [BN] The Plaintiff is represented by: Aaron M. Ahlzadeh, Esq. Scott Edelsberg, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Tel: (305) 975-3320 E-mail: aaron@edelsberglaw.com scott@edelsberglaw.com - and – Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Tel: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com DNF ASSOCIATES: Loses Summary Judgment Bid in Viernes Class Action ------------------------------------------------------------------ In the case, RONALD VIERNES, and all others similarly situated, Plaintiff, v. DNF ASSOCIATES, LLC, Defendant, Civ. No. 19-00316 JMS-KJM (D. Haw.), Chief District Judge J. Michael Seabright of the U.S. District Court for the District of Hawaii denied DNF's Motion for Summary Judgment. Plaintiff Viernes brought the class action against DNF, alleging that DNF unlawfully collected debts in violation of the Fair Debt Collection Practices Act ("FDCPA"), and Hawaii Revised Statutes ("HRS") Section 480-2 for failure to register as a collection agency with the State of Hawaii. Specifically, the Plaintiff alleges that DNF violated both the FDCPA and HRS Section 480-2 when it filed a complaint against the Plaintiff seeking to collect a debt which DNF had purchased from Kay Jewelers, but was not registered with the Hawaii Department of Commerce and Consumer Affairs ("DCCA") as a "collection agency" pursuant to HRS Section 443B-3. On May 28, 2020, DNF filed the instant Motion, seeking summary judgment as to both claims. On July 15, 2020, the Plaintiff filed his Opposition. On July 20, 2020, DNF filed its Reply. Under 15 U.S.C. Section 1692e of the FDCPA, a debt collector may not use any false, deceptive, or misleading representation or means in connection of any debt. And a complaint served directly on a consumer to facilitate debt-collection efforts is a communication subject to the requirements of Section 1692e. DNF does not dispute that a collection complaint was filed on its behalf, that the Plaintiff is a "consumer," or that DNF is a "debt collector" for purposes of the FDCPA. Rather, it argues it did not communicate with the Plaintiff in connection with the collection of a debt because the collection complaint was filed by its lawyers, Mandrich Law, and not by DNF or any of its employees. Judge Seabright disagrees. First, DNF cites to no authority (nor can it) for such proposition. At most, it cites to two cases -- both of which are inapposite to its position. Further, DNF's position -- that a complaint filed by its lawyers is allegedly a third-party filing -- belies basic principal-agency principles between a lawyer and a client. Under DNF's theory, any filings in courts, including the Court, could never be attributed to the clients whom attorneys represent, including DNF's own filings by its counsel. That cannot be. Accordingly, DNF's Motion for Summary Judgment as to the Plaintiff's FDCPA count is denied. DNF also argues that it did not violate HRS Section 480-2 because it is not a "collection agency" for debt collection purposes under Hawaii law and thus was not required to register with the DCCA pursuant to HRS Section 443B-3. A collection agency cannot collect or attempt to collect any money or any other forms of indebtedness alleged to be due and owing from any person who resides or does business in Hawaii without first registering. And failure to register by a collection agency will constitute unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce for the purpose of section 480-2. The Judge holds that the email from the DCCA, which itself states is "not legal advice" or a "legal interpretation" is insufficient for DNF to meet its burden at summary judgment to show that it was not, as a matter of law, a collection agency under Hawaii law. Nor, does DNF's cited authority aid its position. And DNF does not provide any other arguments or evidence in support that it was not a collection agency as a matter of law. Accordingly, DNF fails to meet its initial burden for summary judgment purposes that it is not a "collection agency" and its motion for summary judgment as to the Plaintiff's state law claim, HRS Section 480-2, is also denied. For these reasons, Judge Seabright denied DNF's Motion for Summary Judgment. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y42adye4 from Leagle.com. EASTMAN KODAK: Hagens Berman Reminds of Class Action ---------------------------------------------------- Hagens Berman urges Eastman Kodak Company (NYSE: KODK) investors with losses in excess of $500,000 to submit your losses now. The lead plaintiff deadline in a securities fraud class action that has been filed against the company and senior executives is fast approaching. Class Period: July 27, 2020 - Aug. 11, 2020 Lead Plaintiff Deadline: Oct. 13, 2020 Visit: www.hbsslaw.com/investor-fraud/KODK Contact An Attorney Now: KODK@hbsslaw.com 844-916-0895 Eastman Kodak Company (KODK) Securities Class Action: The complaint alleges Defendants perpetrated a scheme to profit by misleading investors about a purported deal Kodak reached with the U.S. International Development Finance Corporation (DFC). Specifically, on July 27, 2020, Kodak issued a statement to media outlets about the imminent public announcement of a "new manufacturing initiative" involving the DFC and the response to COVID-19. Following publication, the Company claimed this information was released inadvertently. That same day, Kodak granted several insiders options to purchase approximately 1.885 million shares of Kodak, including Executive Chairman and CEO Jim Continenza and CFO David E. Bullwinkle. On July 28, 2020, the price of Kodak's shares jumped 200% following news the Company secured a $765 million government loan from the DFC to produce pharmaceutical materials. Shares continued to surge by over 300% the next day. This massive stock price increase allowed Kodak insiders to profit. Thereafter, media outlets uncovered Defendants' compensation scheme. As a result of these revelations, Congress, the Office of Inspector General, and the SEC are reportedly investigating, the DFC paused the deal, and Kodak's share price has declined sharply thereby damaging Class Period investors. Recently, Kodak's Board released a report authored by Kodak's attorneys – Akin Gump Strauss Hauer & Feld LLP – purportedly absolving the Company's leadership of securities laws violations. But on Sept. 18, 2020, Congressional Reps. Jim Clyburn, D-S.C., Maxine Waters, D-Calif., and Carolyn Maloney, D-N.Y. reiterated that Congress will continue to "vigorously pursue" their own ongoing investigation of the DFC loan, stating, "Let's be clear: this report does not represent the findings of any regulator; it is a report generated by a law firm hired by Kodak." In fact, the lawmakers stated that the Akin Gump report "raises more questions than it answers," including why the Trump administration would give a loan to the onetime photography giant to set up a pharmaceutical manufacturing arm despite no prior experience in that industry and related "windfalls" by insiders stemming from stock trades executed before the loan was made public. "We're focused on investors' losses and holding Kodak and its insiders accountable for their fraudulent compensation scheme," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you are a Kodak investor who lost over $500,000 on Class Period investments, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding Kodak should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email KODK@hbsslaw.com. About Hagens Berman Hagens Berman is a national law firm with nine offices in eight cities around the country and eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. For the latest news visit our newsroom or follow us on Twitter at @classactionlaw. [GN] EIGHT SLEEP: Website Inaccessible to Blind, Romero Suit Claims -------------------------------------------------------------- JOSUE ROMERO, on behalf of himself and all others similarly situated, Plaintiff v. EIGHT SLEEP, INC., Defendant, Case No. 1:20-cv-08768 (S.D.N.Y., October 21, 2020) arises from the Defendant's failure to design and operate its Web site to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people, in violation of the Americans with Disabilities Act. The Plaintiff claims that when he visited the Defendant's Web site, www.eightsleep.com, in October 2020, he encountered multiple access barriers that denied him full and equal access to the facilities, goods and services offered to the public. The Defendant allegedly has engaged in acts of intentional discrimination due to its failure to comply with the Web Content Accessibility Guidelines 2.1 which would have provide the Plaintiff and the class with equal access to the Web site. Eight Sleep, Inc. is a mattress manufacturing company. [BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 E-mail: Joseph@cml.legal ENVISION PHYSICIAN: Weller Sues Over Unsolicited Text Messages -------------------------------------------------------------- MITCHELL WELLER, individually and on behalf of all others similarly situated, Plaintiff v. ENVISION PHYSICIAN SERVICES, LLC, a Delaware limited liability company, Defendant, Case No. CACE-20-017084 (Fla. Cir., 17th Judicial, Broward Cty., October 15, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Telephone Consumer Protection Act. According to the complaint, the Defendant sent unsolicited text messages to the Plaintiff's cellular telephone number on or about March 12, 2020 in an attempt to promote its services. The Defendant allegedly used an automatic telephone dialing system (ATDS) in transmitting unsolicited text messages and did not obtain prior express consent from the Plaintiff and other similarly situated individuals to be contacted using an ATDS. Envision Physician Services, LLC provides healthcare services. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Tel: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and – Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Tel: (305) 975-3320 E-mail: scott@edelsberglaw.com - and – Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd., Suite 1400 Ft. Lauderdale, FL 33301 Tel: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com FAST GRILL: Fails to Properly Pay Overtime Wages, Pichardo Claims ----------------------------------------------------------------- The case, JOSE O. BARRERA PICHARDO, on behalf of himself and all others similarly situated, Plaintiff v. FAST GRILL ENTERPRISES OF HIALEAH d/b/a LA GRANJA POLLO'S A LA BRASA, A Florida Profit Corporation and JULIO MARTINEZ, individually, Defendants, Case No. 1:20-cv-24277 (S.D. Fla., October 19, 2020) arises from the Defendants' alleged violation of the Fair Labor Standards Act. According to the complaint, the Plaintiff was employed by the Defendants as a non-exempt employee from on or about May 15, 2015 until on or about September 15, 2020. He was hired as a cook and promoted to manager on or about July 2019. The Plaintiff alleges that despite regularly working at least 72 hours per work week, the Defendants failed to properly pay him overtime for those hours worked over 40 in a given workweek at time and one-half per hour as required by the federal law. Fast Grill Enterprises of Hialeah operates a grill business owned and operated by Julio Martinez. As a corporate officer and president, Defendant Martinez exercised operational control over the activities of his company. [BN] The Plaintiff is represented by: Nathaly Saavedra, Esq. Juan J. Perez, Esq. PEREGONZA THE ATTORNEYS, PLLC 1414 NW 107th Ave., Suite 302 Doral, FL 33172 Tel: (786) 650-0202 Fax: (786) 650-0200 E-mail: nathaly@peregonza.com juan@peregonza.com FIDELITY NATIONAL: Faces Colmone Suit Alleging WARN Act Violations ------------------------------------------------------------------ JOSEPH COLMONE, individually and on behalf of all others similarly situated, Plaintiff v. FIDELITY NATIONAL FINANCIAL, INC., Defendant, Case No. 1:20-cv-05616 (N.D. Ill., Sept. 22, 2020), alleges violation of the Worker Adjustment and Retraining Notification Act (WARN Act). The Plaintiff seeks back pay and benefits, including medical expenses, at the highest rate of compensation due to the Plaintiff and other proposed class members for the entire 60 day period of the WARN Act violation. According to the complaint, the Defendant terminated the employment of the Plaintiff on April 13, 2020. The Defendant paid the Plaintiff through April 15, 2020, which was his last day of work. Until April 19, 2020, the Plaintiff worked as Director of Risk Management and was an employee in the Defendant's corporate division. On or about April 2020, the Defendant reported to investors that it had discharged 11% of the employees of its corporate division. The mass layoff on April 2020, without any prior proper notice, of more than 500 employees assigned to the location in Jacksonville Florida, and such mass layoff occurred within 30 days of the Plaintiff's last day of work on April 19, 2020, violated the WARN Act. Fidelity National Financial, Inc. provides title insurance, technology, and transaction services to the real estate and mortgage industries. The Plaintiff is represented by: Thomas Geoghegan, Esq. Michael Persoon, Esq. Will Bloom, Esq. DESPRES SCHWARTZ AND GEOGHEGAN LTD. 77 West Washington St. Chicago, IL 60602 Telephone: (312) 372-2511 E-mail: tgeoghegan@dsgchicago.com mpersoon@dsgchicago.com wbloom@dsgchicago.com FIRST UNION: Faces Fabricant Suit Over Unsolicited Marketing Calls ------------------------------------------------------------------ TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff v. FIRST UNION LENDING LLC and DOES 1 through 10, inclusive, and each of them, Defendants, Case No. 2:20-cv-09495 (C.D. Cal., October 16, 2020) is a class action complaint brought against the Defendants for its alleged negligent and willful violations of the Telephone Consumer Protection Act. According to the complaint, the Defendants placed calls to the Plaintiff's cellular telephone number ending in -1083 beginning in or around May 2018 in an attempt to solicit the Plaintiff to purchase its services. The Defendants allegedly used an "automatic telephone dialing system" (ATDS) in placing its calls without obtaining prior express consent from the Plaintiff to receive calls using an ATDS or an artificial or prerecorded voice on his cellular telephone. First Union Lending LLC is business lending company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com FREEDOM MORTGAGE: 4th Cir. Revives Lawsuit ------------------------------------------ Jody Godoy at Reuters reports that a federal appeals court in Virginia has revived a proposed class action against national mortgage company Freedom Mortgage, reversing a lower court's ruling that the company was not responsible for making property tax payments on mortgages it had recently purchased. A three-judge panel of the 4th U.S. Circuit Court of Appeals said that under a federal law that governs mortgage escrow accounts, when a mortgage changes hands, the servicer who handles the mortgage when the tax bill comes due is the one responsible for the payment -- not the servicer who initially received the borrower's escrow payment. [GN] G4S SECURE: Fails to Timely Pay Overtime, Melendez et al. Claim --------------------------------------------------------------- JESUS A. MELENDEZ and DANIEL BETANCOURT, each individually and on behalf of others similarly situated, Plaintiffs v. G4S SECURE SOLUTIONS (USA) INC., a Florida limited liability company, Defendant, Case No. 1:20-cv-24213 (S.D. Fla., October 14, 2020) brings this complaint against the Defendant for its alleged violation of the Fair Labor Standards Act (FLSA). The Plaintiffs worked for the Defendant as security guards at Miami International Airport at a post assigned to them by their employer. According to the complaint, the Plaintiffs regularly worked overtime hours, but the Defendant routinely and systematically failed to pay their overtime hours at the applicable premium rate as required by the FLSA. The Plaintiffs assert that the Defendant failed to: -- properly use the applicable base rate of pay in calculating the overtime premium payment due; -- timely pay the Plaintiffs for all overtime hours they worked; -- maintain the types of books and records and policies necessary for enforcement of the FLSA's hourly wage requirements; and -- timely disburse the correct overtime compensation due on the regularly scheduled payday for the corresponding workweek. G4S Secure Solutions (USA) Inc. provides security solutions to its customers. [BN] The Plaintiffs are represented by: Anthony F. Sanchez, Esq. ANTHONY F. SANCHEZ, P.A. 6701 Sunset Drive, Suite 101 Miami, FL 33143 Tel: (305) 665-9211 Fax: (305) 328-4842 E-mail: AFS@LABORLAWFLA.COM GATES CORP: Bid to Strike 13 Opt-Ins from Lundine FLSA Suit Denied ------------------------------------------------------------------ In the case, PEGGY LUNDINE, on behalf of herself and other similarly situated, Plaintiff, v. GATES CORPORATION, Defendant, Case No. 18-1235-EFM (D. Kan.), Judge Eric F. Melgren of the U.S. District Court for the District of Kansas denied Gates' Motion to Strike Opt-In Plaintiffs from the Conditional Class. Lundine filed the Fair Labor Standards Act ("FLSA") class action on behalf of herself and others similarly situated to recover alleged unpaid overtime wages from Gates. The Court granted conditional class certification on July 11, 2019, defining the putative class as all current and former nonexempt manufacturing employees who were employed by Gates from July 11th, 2016, to the present. On Oct. 25, 2019, Lundine served the approved class notice on the prospective class members. The notice does not explicitly address corresponding deadlines for consent forms received via email or fax. The notice period ended on Dec. 24, 2019. To assist in notifying the 4,432 putative class members, Lundine hired Simpluris, Inc. Simpluris employee Daniela Rojas managed Lundine's case. As Simpluris received consent forms back from the class members, Rojas would email the forms in PDF format to Lundine's counsel for filing with the Court. Between October 25 and Dec. 24, 2019, some 197 Opt-In Plaintiffs consented to join the action. After the close of the notice period, Lundine filed 32 additional consents on three separate dates: Dec. 31, 2019, Jan. 7, 2020, and Jan. 16, 2020. Of those Opt-in Plaintiffs, Gates moves to strike the following 13 from the conditionally-certified class for the noted reasons: (1) Keith Taylor (no postmark on return envelope); (2) Anthony Adkins (no postmark on return envelope); (3) Windolinne Young (illegible postmark on envelope); (4) Robert Robertson (timely received via email, but not from Robertson's email address); (5) Dalton Ryan (consent form timely received by fax); (6) Mary Wyatt (consent form timely received by fax); (7) Kevin Jenkins (consent form timely received by fax); (8) Ashley Graham (consent form timely received by fax); (9) Justin Cooper (consent form timely received by fax); (10) Joseph Garza (consent form timely received, filed late); (11) Phillip Johnson (consent form timely received, filed late); (12) Joseph McQueeney (consent form timely received, filed late); (13) Abby Sidebottom (consent form timely received, filed late). Opt-in Plaintiffs Taylor and Adkins' consent forms lacked postmarks and Simpluris received those two forms on Dec. 27 and 30, respectively. Opt-in Plaintiff Young's consent form bears an unclear postmark, but Simpluris confirmed that it received the form on December 23. Opt-in Plaintiff Robertson's consent form was emailed to Mac Beckett, an employee in Simpluris' sales department, rather than to Rojas as directed. Upon recognizing Robertson's mistake, Beckett forwarded the email to Rojas who then filed the consent form with the Court before the notice deadline. Opt-in Plaintiffs Ryan, Wyatt, Jenkins, Graham, and Cooper's consent forms were faxed to Simpluris before the deadline but lacked postmarks. Opt-in Plaintiffs Garza, Johnson, McQueeney, and Sidebottom mailed Simpluris their consent forms by Nov. 15, 2019, but none of the forms arrived in postmarked envelopes. On Nov. 15, 2019, Rojas emailed a batch of consent forms to Lundine's counsel but forgot to attach the forms for these four Opt-in Plaintiffs. Rojas saved the four consent forms as "Response 100-103.pdf." but accidentally omitted the PDF as an attachment on the email to Lundine's counsel. Instead, that email's attachments ended with the document "Response 96-99.pdf." Rojas next emailed Lundine's counsel on Nov. 21, 2019, attaching documents beginning with "Responses 104-111.pdf." After realizing its mistake, Simpluris emailed the four missing consent forms to Lundine's counsel on Jan. 15, 2020, which Lundine then filed with the Court. Gates seeks to strike the 13 Opt-In Plaintiffs from the case, arguing that all of their consent forms contained procedural defects. Gates first seeks to strike Opt-in Plaintiffs Adkins and Taylor because their consent forms lacked postmarks. Given the proximity of the notice deadline to multiple federal holidays, it is reasonable to assume that Adkins and Taylor mailed their forms within the proper timeframe. Without clear evidence to the contrary, Judge Melgren declines to strike those Opt-In Plaintiffs from the class action. Gates next seeks to strike Opt-in Plaintiff Young because the postmark on her consent form is allegedly illegible. However, Simpluris confirmed that it received Young's form on December 23 and that it was postmarked, albeit unclearly, December 16. As such, the Judge concludes that Young timely returned her consent form and will not strike her from the case. Gates also seeks to strike Opt-in Plaintiff Robertson because the email containing his consent form was sent from an address different than that listed under his primary contact information. The Judge holds that Robertson timely emailed his consent form to Simpluris before the December 24 deadline. Although the class notice did not delineate procedures for returning consent forms via email, the Judge concludes that Robertson returned his form to Simpluris within the notice period. As such, he will not strike him from the case. Gates next seeks to strike five Opt-in Plaintiffs (Ryan, Wyatt, Jenkins, Graham, and Cooper) because their consent forms lacked postmarks. The class notice did not proscribe all non-mail methods for returning consent forms. These five Opt-in Plaintiffs faxed their consent forms to Simpluris. Faxed documents obviously lack postmarks. But all of the fax coversheets reflect that Simpluris received them before the December 24 deadline. While the class notice does not explicitly address deadlines for faxed consent forms, the Judge concludes that these Opt-in Plaintiffs fulfilled the clear intent of both the class notice and the FLSA. As such, the Judge will not strike Opt-in Plaintiffs Ryan, Wyatt, Jenkins, Graham, and Cooper from the action. Finally, Gates seeks to strike Opt-in Plaintiffs Garza, Johnson, McQueeney, and Sidebottom because Simpluris filed their consent forms with the Court on Jan. 15, 2020, and the forms otherwise lacked postmarks indicating that Simpluris received them before the notice deadline. The Judge agrees with Gates that Simpluris' mistake does not excuse Lundine's counsel's oversight. Lundine's counsel should have noticed the numerical discrepancy in the attached PDF documents and requested the missing forms from Simpluris. Moreover, that oversight persisted for two months. Such lack of attention to detail is inexcusable. However, the Judge concludes that under the circumstances, these four Opt-in Plaintiffs should not be penalized for the counsel's mistake. They fit squarely within the putative class definition and they all returned their signed consent forms well over a month before the deadline, complying with both the spirit and letter of the FLSA. As such, the Judge will not strike them from the class action. Based on the foregoing, Judge Melgren denied Defendant Gates' Motion to Strike Opt-In Plaintiffs. A full-text copy of the District Court's July 31, 2020 Memorandum & Order is available at https://tinyurl.com/yxkgjf55 from Leagle.com. GLENCORE PLC: Court Dismisses Church's Amended Securities Suit -------------------------------------------------------------- In the case, HENRY CHURCH VI, individually and on behalf of all others similarly situated, Plaintiff, v. GLENCORE PLC, et al., Defendants, Civil Action No. 18-11477 (SDW) (CLW) (D. N.J.), Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey granted Defendants Glencore, Ivan Glasenberg, and Steven Kalmin's Motion to Dismiss Lead Plaintiff Randall Seymour and Plaintiff Michael Shannon's Amended Putative Class Action Complaint. On Jan. 7, 2020, the Plaintiffs filed the Amended Complaint alleging that the Defendants -- Glencore; Glasenberg, Glencore's CEO; and Kalmin, Glencore's CFO -- violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5, which was promulgated thereunder. In sum, the Amended Complaint alleges that Glencore, a "natural resource company" that produces and markets over 90 commodities worldwide and often in developing countries has common stock that trades on the New York-based over-the-counter market under the ticker symbols "GLCNF" and "GLNCY." From Sept. 30, 2016 through Dec. 5, 2019, the Defendants allegedly made false and/or misleading statements and/or failed to disclose adverse facts relating to briberies Glencore purportedly engaged in with the Democratic Republic of Congo ("DRC"), Venezuela, and Nigeria. After news regarding various countries' investigations into the alleged bribery was published, Glencore's common shares declined in market value, allegedly damaging investors. On May 18, 2018, Bloomberg reported that the U.K.'s Serious Fraud Office was preparing to open a formal bribery investigation into Glencore. That same day, the share price of GLNCY dropped $0.55 per share, and GLCNF dropped $0.32 per share. On July 3, 2018, Glencore disclosed that it had received a subpoena from the United States Department of Justice with respect to the company's compliance with the Foreign Corrupt Practices Act and United States money laundering statutes. That same day, shares of GLNCY fell $0.86 per share, and GLCNF fell $0.41 per share. The Plaintiffs contend that they and other class members were damaged as a result of the Defendants' wrongful acts and omissions. Glencore is incorporated in Jersey, United Kingdom, and is headquartered in Baar, Switzerland. It allegedly operates some offices and is affiliated with operations and/or subsidiaries located in the United States. Glasenberg is a citizen of Switzerland, South Africa, Australia, and Lithuania, and has maintained a primary residence in Switzerland since 1993. Kalmin is a citizen of Australia and has maintained a primary residence in Switzerland since 2010. The Plaintiffs allege that they are located "in the United States" and purchased artificially inflated GLCNF/GLNCY shares in the United States, specifically Florida for Lead Plaintiff Seymour. After the Court granted their request to exceed the maximum page limit under Local Civil Rule 7.2, the Defendants filed a joint Motion to Dismiss the Amended Complaint, the Plaintiffs filed an opposition, and the Defendants submitted their reply. In the present matter, the Plaintiffs are purportedly located in the United States. Although a plaintiff's connection with the particular federal district must be considered, Judge Wigenton finds no indication that the Plaintiffs are connected to New Jersey, nor do they proffer any purported relationship. Nor do the Plaintiffs allege that Glencore has any offices or subsidiaries in New Jersey. Rather, Glencore is headquartered in Baar, Switzerland, and incorporated in Jersey, United Kingdom. Moreover, the alleged conduct giving rise to the Plaintiff's claims purportedly occurred abroad in the DRC, Venezuela, and Nigeria. The Plaintiffs do not refute the Defendants' contention that the alleged misstatements/omissions were crafted and approved in Switzerland, where Glencore is headquartered, and that earnings calls were usually conducted from Switzerland or the United Kingdom. Furthermore, because the Amended Complaint's allegations are centered abroad, there is no indication that New Jersey houses any evidence relevant to the matter. For these reasons, the Judge holds that the Plaintiff's choice of forum is accorded less deference. The Defendants are willing to consent to jurisdiction in Switzerland as it relates to the Plaintiffs' claims. Additionally, Switzerland's judicial system permits the adjudication of the subject matter of the Plaintiffs' securities fraud claims. Moreover, the Court need not conduct complex exercises in comparative law as part of the forum non-conveniens analysis. Thus, the Defendants have met their burden by showing that at least one adequate alternate forum exists. Lastly, the Court must balance the private and public interest factors. The Judge finds that the relevant documentary evidence and other potential witnesses are likely located outside the United States, which may burden the Defendants with additional costs and implicate compulsory process for unwilling witnesses. The also Plaintiffs do not dispute that the witnesses or evidence relevant to their claims are located abroad. Similarly, as noted, there is no apparent connection to New Jersey. Rather, the center of the Defendants' purported securities violations appears to have occurred abroad in Switzerland, where the alleged misstatements/omissions were drafted and approved. Therefore, because the locus of the dispute lies in Switzerland, it would be unfair to burden New Jersey citizens with jury duty in the matter. Thus, the public interest factors The Judge concludes that the private and public interest factors weigh in favor of dismissal on forum non conveniens grounds. Accordingly, dismissal of the action is appropriate. Finally, because the Judge concludes, in exercising discretion, that dismissal is appropriate on the ground of forum non conveniens, she need not reach the merits of the Defendants' arguments under Rules 12(b)(2) and 12(b)(6). Accordingly, Judge Wigenton granted the Defendants' Motion to Dismiss. A full-text copy of the District Court's July 31, 2020 Opinion is available at https://tinyurl.com/yyzpguf7 from Leagle.com. GOLAR LNG: Rosen Law Reminds of Nov. 23 Deadline ------------------------------------------------ Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of Golar LNG Limited (NASDAQ: GLNG ) between April 30, 2020 and September 24, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Golar investors under the federal securities laws. To join the Golar class action, call Phillip Kim, Esq. toll-free at 866-767-3653 or email for information on the class action. The complaint alleges throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: (1) certain employees, including Hygo's CEO, had bribed third parties, thereby violating anti-bribery policies; (2) as a result, the Company was likely to face regulatory scrutiny and possible penalties; (3) as a result of the foregoing reputational harm, Hygo's valuation ahead of its IPO would be significantly impaired; and (4) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than November 23, 2020 . A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to [To enable links contact MENAFN] or to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] GRACE 365: Faces Cortes Suit Over Failure to Pay Proper Wages ------------------------------------------------------------- ARMANDO CORTES, individually and on behalf of all other persons similarly situated, Plaintiff v. GRACE 365 GROUP LLC, d/b/a Macchina, HANOVER VENTURES, LLC, ANDRES VALBUENA, and RAMON MORADO, jointly and severally, Defendants, Case No. 1:20-cv-08704 (S.D.N.Y., October 19, 2020) is a class and collective action complaint brought against the Defendants for their alleged willful violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants as a busser and food runner from in or around May 2018 until in or around February 2019, and as a waiter from in or around March 2019 until in or around May 2019. The Plaintiff asserts these claims: -- The Defendants did not allow him and other similarly situated employees to retain all of their tips; -- The Defendants failed to pay him and other similarly situated employees the statutory minimum wage, spread-of-hours pay, and overtime premium pay at one and one-half times their regular rate of pay for all hours they worked over 40 per week; -- The Defendants failed to provide him and other similarly situated employees any meal break period for any weekday shift; and -- The Defendants failed to provide accurate wage statements, and the notice and acknowledgement of payrate and payday. Grace 365 Group, LLC and Hanover Ventures, LLC are owners and operators of Macchina, a restaurant that specializes in Italian American fare wood fired pizzas, wine pairings, and delicious cocktails. Andres Valbuena and Ramon Morado control Macchina's day-to-day operations and management, regularly present at the restaurant, and have the authority to change employees' pay and employee's schedules. [BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Alfons D'Auria, Esq. LIPSKY LOWE LLP 420 Lexington Ave., Suite 1830 New York, NY 10170 Tel: (212) 392-4772 Fax: (212) 444-1030 E-mail: doug@lipskylowe.com alfonso@lipskylowe.com GREENE COUNTY, MO: $750,000 Deal in Voorhis Gets Final Approval --------------------------------------------------------------- In the case, THOMAS VOORHIS and REGINALD LEWIS, individually, and on behalf of a class of others similarly situated, Plaintiffs, v. GREENE COUNTY, Defendant, Case No. 19-cv-03257-SRB (W.D. Mo.), Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri, Southern Division granted the Plaintiffs' Unopposed Motion for Final Approval of Class Settlement. The Court preliminarily approved the Settlement Agreement on May 1, 2020, finding that the likelihood of final approval of the Settlement Agreement is sufficient to warrant notice to the class members as specified in the Settlement Agreement. The Court conducted a final approval and fairness hearing on July 31, 2020. And having duly considered the motion and supporting memorandum of law and other materials presented with respect to the Settlement addressing the class and collective claims asserted in the litigation under state and federal wage and hour law, Judge Bough finally approved the Settlement Agreement and the Settlement of the Missouri Minimum Wage Law Class and the Fair Labor Standards Act claims as fair, reasonable, and adequate. The Defendant will pay a total of $750,000, plus the employers' share of payroll taxes as set forth in the Settlement Agreement, to resolve the litigation. It will also allocate an additional $15,066.96 in compensatory time to account for the allocation issue identified during the notice period. The Defendant will issue payment, through the Class Counsel, to all the class members in accordance with the Settlement Agreement. All members of the Settlement Class will conclusively be deemed for all purposes to be permanently barred from commencing, prosecuting, or otherwise maintaining in any court or forum any action against the Defendant for any Released Claims consistent with the terms of the Settlement Agreement. The Plaintiffs' request for service payments to the Named Plaintiff, who has adequately represented the Class, is approved, and the Defendant will issue such payments, via the Settlement Administrator, in accordance with the Settlement Agreement. The Class Counsel has adequately represented the Class. Their application for an award of attorneys' fees and reimbursement of costs as set forth in the Motion for Final Settlement Approval is approved, and the Defendant will issue such payment in accordance with the Settlement Agreement. The litigation is dismissed with prejudice with respect to participating class members without costs to any party, except to the extent otherwise expressly provided in the Settlement Agreement and as otherwise ordered. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y2wa7gmn from Leagle.com. HARBORSIDE INC: Rosen Law Reminds of November 9 Deadline -------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Harborside Inc. (OTC: HSDEF) between July 2, 2019 and August 12, 2020, inclusive (the "Class Period"), of the important November 9, 2020 lead plaintiff deadline in the securities class action. The lawsuit seeks to recover damages for Harborside investors under the federal securities laws. To join the Harborside class action, go to http://www.rosenlegal.com/cases-register-1897.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Harborside had undisclosed material weaknesses and insufficient financial controls; (2) Harborside's previously issued financial statements were false and unreliable; (3) Harborside's earlier reported financial statements would need restatement; (4) as a result of the foregoing and subsequent reporting delays, Harborside's Canadian stock trading would be suspended; (5) Harborside downplayed the negative impacts of errors and delays regarding its financial statements; and (6) as a result, defendants' public statements were materially false and/or misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than November 9, 2020. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1897.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] HAVENLOCK INC: Website Inaccessible to Blind Users, Jaquez Claims ----------------------------------------------------------------- RAMON JAQUEZ, on behalf of himself and all others similarly situated, Plaintiff v. HAVENLOCK INC., Defendant, Case No. 1:20-cv-08750-RA (S.D.N.Y., October 20, 2020) brings this class action complaint against the Defendant for its alleged violation of the Americans with Disabilities Act. The Plaintiff, who is a blind, visually-impaired handicapped person, and dependent of a popular screen reading software called NonVisual Desktop Access, asserts that the Defendant's Website, www.havenlock.com, has multiple access barriers which denied him access similar to that of a sighted individual. He made this claim when he visited the Website on or around September 2020 with the intent of browsing and potentially making a purchase. The Defendant allegedly failed to comply with the Web Content Accessibility Guidelines 2.1, and thus, it lacks of a variety of features and accommodations which effectively barred the Plaintiff from being able to enjoy the privileges and benefits of the Defendant's public accommodation. The Defendant has engaged in act of intentional discrimination because of its failure to maintain a Website that is accessible to members of a protected class, the suit says. Havenlock Inc. is a smart lock manufacturing company that owns and operates the said Website. [BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 701 Cookman Ave., Suite 300 Asbury Park, NJ 07712 Tel: (732) 695-3282 Fax: (732) 298-6256 E-mail: Yzelman@MarcusZelman.com HERB & LOU'S: Website Inaccessible to Blind, Jaquez Suit Says ------------------------------------------------------------- RAMON JAQUEZ, on behalf of himself and all others similarly situated, Plaintiff v. HERB & LOU'S LLC, Defendant, Case No. 1:20-cv-08753-LJL (S.D.N.Y., October 20, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Americans with Disabilities Act. The Plaintiff is a blind, visually-impaired handicapped person, and a member of a protected class of individuals under the ADA. According to the complaint, the Plaintiff was denied access similar to that of a sighted individual when he visited the Defendant's Website, www.herbandlous.com, on or around September 2020 with the intent of browsing and potentially making a purchase. Because the Defendant allegedly failed to comply with the Web Content Accessibility Guidelines 2.1, its Website allegedly lacks a variety of features and accommodations, which effectively barred the Plaintiff and other similarly situated blind and visually-impaired persons from being able to enjoy the privileges and benefits of the Defendant's public accommodation. Herb & Lou's LLC is a cubed cocktail mixer distributing company that owns and operates the Website. [BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 701 Cookman Ave., Suite 300 Asbury Park, NJ 07712 Tel: (732) 695-3282 Fax: (732) 298-6256 E-mail: Yzelman@MarcusZelman.com IDEXX DISTRIBUTION: Bid to Dismiss Howard Labor Suit Denied as Moot ------------------------------------------------------------------- In the case, EBONY HOWARD, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. IDEXX DISTRIBUTION, INC., et al., Defendants, Case No. 2:20-cv-00079-JDL (D. Me.), Judge John D. Levy of the U.S. District Court for the District of Maine denied as moot Idexx's Motion to Dismiss. On March 5, 2020, Howard commenced the putative class action against Idexx Distribution and Idexx Laboratories, Inc., for alleged violations of the Fair Labor Standards Act (FLSA), and certain Nevada wage-and-hour laws. On May 5, 2020, Idexx moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). Magistrate Judge John H. Rich, III filed his Recommended Decision on the motion to dismiss with the Court on July 5, 2020. The time within which to file objections has expired, and no objections have been filed. The Magistrate Judge provided notice that a party's failure to object would waive the right to de novo review and appeal. Judge Levy has reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record, and has made a de novo determination of all matters adjudicated by the Magistrate Judge. Judge Levy concurs with the recommendations of the Magistrate Judge for the reasons set forth in his Recommended Decision and determines that no further proceeding is necessary. Therefore, Judge Levy accepted the Recommended Decision of the Magistrate Judge, and denied as moot Idexx's Motion to Dismiss. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/yyoc2k4h from Leagle.com IES RESIDENTIAL: Ajpaccaja Sues Over Unpaid OT for Electricians --------------------------------------------------------------- BRIAN AJPACCAJA, JORGE AGUILAR, KEVIN DIAZ, JEFFERSON LOPEZ, EDWINRIVERA, and JONATHAN TORRES, individually and on behalf of all other similarly situated current and former employees, Plaintiff v. IES RESIDENTIAL, INC. and IES HOLDINGS, INC. a/k/a INTEGRATED ELECTRICAL SYSTEMS, INC., and ARMANDO LOPEZ, individually, Defendants, Case No. 3:20-cv-00889 (M.D. Tenn., October 16, 2020) arises from the Defendants' alleged unlawful pay policy in violation of the Fair Labor Standards Act (FLSA). The Plaintiffs were employed by the Defendants as non-exempt electricians. According to the complaint, the Plaintiffs worked in excess of 40 hours per week, on average 60 to 66 hours per week, but they were only paid straight time wages for all the hours worked. The Defendants allegedly denied them of overtime compensation at one and one-half times their base rate of pay for all the time they worked in excess of 40 hours per week. The Corporate Defendants are a large, publicly traded company which provide installation and/or maintenance of residential electrical systems services. Armando Lopez is the direct supervisor of the Plaintiffs. [BN] The Plaintiffs are represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Nathaniel A. Bishop, Esq. Robert E. Morelli, Esq. JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Tel: (901) 754-8001 Fax: (901) 754-8524 E-mail: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com nbishop@jsyc.com rmorelli@jsyc.com - and – Nina H. Parsley, Esq. MICHAEL D. PONCE & ASSOCIATES 400 Professional Park Drive Goodlettsville, TN 37072 Tel: (615) 851-1776 Fax: (615) 859-7033 INDIVIOR INC: Class Certification in Suboxone Antitrust Suit Upheld ------------------------------------------------------------------- In the case, In re: Suboxone (Buprenorphine Hydrochlorine and Naloxone) Antitrust Litigation. Indivior Inc. f/k/a Reckitt Benckiser Pharmaceuticals, Inc., Appellant, Case No. 19-3640 (3d Cir.), the U.S. Court of Appeals for the Third Circuit affirmed the District Court's order certifying class of those who purchased Suboxone from Reckitt. Reckitt, manufactured Suboxone, a prescription drug used to treat opioid addiction. Reckitt developed Suboxone tablets. The FDA granted Reckitt a seven-year period of exclusivity in which other manufacturers could not introduce generic versions of Suboxone tablets. As the exclusivity period neared its end for its brand drug, Reckitt developed an under-the-tongue film version of Suboxone, which would enjoy its own exclusivity period. Generic versions of Suboxone tablets would not be AB-rated to Suboxone film, so state substitution laws would not require pharmacists to substitute generic Suboxone tablets if a patient were prescribed Suboxone film. According to the Purchasers, Reckitt's transition to Suboxone film was coupled with efforts to eliminate demand for Suboxone tablets and to coerce prescribers to prefer film. To that end, Reckitt allegedly: (1) engaged in a widespread campaign falsely disparaging Suboxone tablets as more dangerous to children and more prone to abuse; (2) publicly announced that it would withdraw Suboxone tablets from the market due to these safety concerns; (3) ended its Suboxone tablet rebate contracts with managed care organizations in favor of Suboxone film rebate contracts; (4) increased tablet prices above film prices; (5) withdrew brand Suboxone tablets from the market; and (6) impeded and delayed the market entry of generic Suboxone tablets by manipulating the FDA's Risk Evaluation and Mitigation Strategy ("REMS") process and filing a baseless citizen petition. Through these actions, Reckitt shifted the market to Suboxone film by the time generic Suboxone tablets hit the market and continued to dominate the Suboxone market as the exclusive maker of Suboxone film. The Purchasers sued Reckitt, alleging that its efforts to suppress generic competition amounted to unlawful maintenance of monopoly power, in violation of Section 2 of the Sherman Act. The Purchasers moved to certify a class of all persons or entities who purchased branded Suboxone tablets directly from Reckitt during a specified period. The proposed class representatives were Burlington Drug Co., Inc. and two other purchasers. In support of class certification, the Purchasers submitted an expert report by Dr. Russell Lamb, an economist. Dr. Lamb concluded that, due to Reckitt's allegedly anticompetitive conduct, the proposed class paid more for brand Suboxone products. Dr. Lamb attributed these overcharges to Reckitt's actions that: (1) suppressed generic tablet competition, so the Purchasers had to buy brand tablets or film instead of less expensive generic tablets; (2) delayed market entry of generic tablets, increasing the time more expensive brand tablets could dominate the market; and (3) increased the price of brand tablets. To reach these conclusions, Dr. Lamb relied on internal Reckitt documents reflecting its national Suboxone strategy and economic analysis of tablet pricing. He also calculated the damages attributable to this injury. Using economic modeling and data from Reckitt, he estimated, in the aggregate, the difference between the actual prices charged for brand Suboxone tablets and film and the price class members would have paid for generic and non-Reckitt-brand versions. The District Court certified the class. As relevant to the appeal, the Court held that (1) common evidence of injury and damages showed that the Purchasers paid more for brand Suboxone products than they would have for generic tablets due to Reckitt's actions to promote film, disparage tablets, and suppress generics' market entry; (2) although the Purchasers' aggregate damages model did not allocate damages among class members, issues regarding allocation of individual damages were insufficient to defeat class certification; and (3) Burlington was an adequate class representative because it had the requisite knowledge of the litigation, including "the basis for the claimed injury," and its interests aligned with the class. Reckitt appeals. It first argues that the Purchasers have not provided common evidence of injury or damages that matches a viable theory of liability, as required by Comcast Corp. v. Behrend, (holding that class certification was inappropriate when a damages model reflected injury from four antitrust injuries, but only one viable theory of antitrust liability and injury remained in the case). Reckitt does not dispute that the Purchasers have provided common evidence showing that the class paid more for Suboxone products. It, however, argues that it could lawfully raise the prices on Suboxone tablets and change its rebate program, so the Purchasers do not have an antitrust injury. The Appellate Court holds that the Purchasers' theory of their case, however, is not simply that Reckitt's pricing of brand tablets individually caused harm. Rather, they allege that the totality of Reckitt's actions, such as raising prices, withdrawing tablets from the market, providing rebates only for film, disparaging the safety of tablets, and delaying the generics' entry by filing a citizen petition and not cooperating in the REMS process, suppressed generic competition and thus violated the antitrust laws. Reckitt incorrectly asks the Appellate Court to examine each of these acts individually. Rather, the Appellate Court looks at all the acts taken together [to determine whether they show the willful acquisition or maintenance of a monopoly]. The common evidence would be used to prove that these actions occurred and together suppressed generic competition, and thereby caused the Purchasers to buy the higher-priced brand Suboxone products because Reckitt's actions made it difficult for the less expensive generics to compete. Thus, common evidence exists to prove the Purchasers' antitrust theory and the resulting injury. Next, Reckitt argues that the Purchasers did not satisfy the predominance requirement because their damages model only calculates aggregate damages, and the eventual need for individualized damages inquiries defeats predominance. Reckitt is incorrect, the Appellate Court says. Antitrust plaintiffs may satisfy the predominance requirement by using a model that estimates the damages attributable to the antitrust injury, even if more individualized determinations are needed later to allocate damages among class members. The Purchasers' theory of injury and damages is provable and measurable by an aggregate model relying on class-wide data. Although allocating the damages among the class members may be necessary after judgment, such individual questions do not ordinarily preclude the use of the class action device. Thus, the District Court correctly found that common issues predominate. Finally, Reckitt argues that Burlington is not an adequate class representative. Rule 23(a)(4) requires a district court to find that representative parties will fairly and adequately protect the interests of the class. Reckitt argues that the Purchasers failed to satisfy the adequacy requirement because Burlington has a risk of a conflict with class counsel and lacks control over the litigation, precluding it from protecting the class. Both arguments fail. First, each conflict that Reckitt identifies is speculative or without basis. Second, Reckitt's claim that Burlington has ceded control of this litigation to the class counsel, and that that creates a risk of conflicts, does not render Burlington an inadequate representative. Reckitt cites no precedent from the Appellate Court for its argument that a class representative must "control" the litigation. Accordingly, Reckitt's attack on Burlington's adequacy as class representative lacks merit. For the foregoing reasons, the Third Circuit affirmed the District Court's order certifying a direct purchaser class. A full-text copy of the Court's July 28, 2020 Opinion is available at https://tinyurl.com/y6c3jovh from Leagle.com. Bruce E. Gerstein -- bgerstein@garwingerstein.com -- Joseph Opper -- jopper@garwingerstein.com -- Garwin Gerstein & Fisher, New York, NY, Counsel for Plaintiff-Appellee Burlington Drug Co., Inc.. Thomas M. Sobol -- tom@hbsslaw.com -- Hagens Berman Sobol Shapiro, Cambridge, MA, Counsel for Plaintiff-Appellees Meijer Inc. and Meijer, Distribution Inc.. Caitlin G. Coslett -- ccoslett@bm.net -- David F. Sorensen -- dsorensen@bm.net -- Berger Montague, Philadelphia, PA, Peter Kohn, [ARGUED] Faruqi & Faruqi, Philadelphia, PA, Counsel for Plaintiff-Appellee Rochester Drug Cooperative Inc.. Jonathan B. Berman -- jberman@jonesday.com -- [ARGUED] Jones Day, Washington, DC, James R. Saywell -- jsaywell@jonesday.com -- Jones Day, Cleveland, OH, Counsel for Defendant-Appellant Indivior Inc., f/k/a, Reckitt Benckiser Pharmaceuticals Inc.. Anthony Russomanno, Wisconsin Department of Justice, Madison, WI, Counsel for Amicus State of Wisconsin in support of, Appellees. Randy Stutz -- rstutz@antitrustinstitute.org -- Kensington, MD, Counsel for Amicus American Antitrust Institute in support of Appellees. INTERSTATE BROKERS: Parks Sues Over Unsolicited Telephone Calls --------------------------------------------------------------- The case, CHRISTOPHER PARKS, on behalf of himself and others similarly situated, Plaintiff v. INTERSTATE BROKERS OF AMERICA LLC, Defendant, Case No. 1:20-cv-11885-MPK (D. Mass., October 20, 2020) arises from the Defendant's alleged violation of the Telephone Consumer Protection Act. The Plaintiff claims that he received several telemarketing calls from the Defendant, including on August 20, 2020, September 16, 21, 25, 28, 2020 and October 12, 2020, to his cellular telephone number 508-XXX-8565 that was registered on the National Do Not Call Registry in 2008. The Defendant's pre-recorded calls were purposely encouraging the Plaintiff to avail its services. Although the Plaintiff contacted the Defendant to ask for the calls to stop, the Defendant continued contacting the Plaintiff. The Plaintiff and other similarly situated individuals who were contacted by the Defendant have been harmed by the acts of the Defendant, the suit says. Interstate Brokers of America LLC is an American independent insurance agency.[BN] The Plaintiff is represented by: Anthony I. Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln St., Suite 2400 Hingham, MA 02043 Tel: (508) 221-1510 E-mail: anthony@paronichlaw.com INVESTMENTS MANAGEMENT: Alfonso Sues Over Unpaid OT, Retaliation ---------------------------------------------------------------- RANDY ALFONSO, and other similarly situated individuals, Plaintiff v. INVESTMENTS MANAGEMENT I, LLC d/b/a INVESTMENTS LIMITED, Defendant, Case No. 9:20-cv-81906 (S.D. Fla. October 14, 2020) brings this complaint against the Defendant for its alleged violation of the Fair Labor Standards Act (FLSA). The Plaintiff was employed by the Defendant approximately from September 2014 to August 28, 2020 as a non-exempt, full time, hourly-paid maintenance employee at the Defendant's Island Shores Apartments located at 1600 Island Shore Drive, Green Acres, Florida. The Plaintiff asserts that the Defendant refused to pay him for the overtime hours he worked, a minimum of 30 minutes at least one day every week, at the rate of one and one-half times his regular rate for every hour that he worked in excess of 40. Additionally, the Defendant unfairly terminated the Plaintiff from his position on or about August 28, 2020 due to his association with a former employee who filed an FLSA and discrimination claim against the Defendant, the suit says. Investments Management I, LLC d/b/a Investments Limited provides property leasing, management, and maintenance services to commercial accounts. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Tel: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmalawgroup.com IPSOS PUBLIC: Faces Orlando TCPA Suit Over Unsolicited Phone Calls ------------------------------------------------------------------ ANGEL ORLANDO, individually and as the representative of a class of similarly-situated persons, Plaintiff v. IPSOS PUBLIC AFFAIRS, LLC d/b/a KnowledgePanel, Defendant, Case No. 2:20-cv-09579-JFW-GJS (C.D. Cal., October 19, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Telephone Consumer Protection Act. According to the complaint, the Plaintiff received at least nine robocalls from the Defendant between May 2, 2020 and June 14, 2020. The Defendant used an automatic telephone dialing system (ATDS) as part of its overall marketing campaign to advertise its paid survey service. The Plaintiff asserts that she never provided the Defendant with her prior express written consent to be contacted using an ATDS or an autodialed or prerecorded telemarketing calls on his cellular telephone. Ipsos Public Affairs, LLC d/b/a KnowledgePanel is a for profit research corporation that designs and conduct surveys for its commercial clients. [BN] The Plaintiff is represented by: Trinette G. Kent, Esq. KENT LAW OFFICES 1333 Stradella Road Los Angeles, CA 90077 Tel: (480) 247-9644 Fax: (480) 717-4781 E-mail: tkent@kentlawpc.com - and – Jonathan B. Piper, Esq. BOCK HATCH LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Tel: (312) 658-5500 Fax: (312) 658-5555 E-mail: service@classlawyers.com KAISER FOUNDATION: Court Modifies July 13 Opinion in Futterman Suit ------------------------------------------------------------------- In the case, SUSAN FUTTERMAN, et al., Plaintiffs and Appellants, v. KAISER FOUNDATION HEALTH PLAN, INC., Defendant and Respondent, Case No. A155946 (Cal. App.), the Court of Appeals of California for the First District, Division Four, has entered an order modifying its July 13, 2020 Opinion. The July 13, 2020 is be modified as follows: On page 18, at the end of the final paragraph of section 1(d) of the Discussion, add as footnote 8 the following: "In a petition for rehearing, Kaiser contends that this opinion erroneously accepts and relies on the DMHC's own interpretation of the meaning of the Settlement Agreement between the DMHC and the Plan, as expressed in the DMHC's amicus brief, which Kaiser contends is both incorrect and irrelevant. On remand the court should explore whether DMHC is construing the settlement agreement correctly and whether the agency's understanding of its role affects the court's analysis of the class action issues." The footnote will require renumbering the subsequent footnote. The Court denied the petition for rehearing. There is no change in the judgment. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y2rvswqu from Leagle.com. KEMPER SPORTS: Agras Sues Over Illegal Background Check ------------------------------------------------------- VICTOR M. ARGAS, an individual, on behalf of himself and others similarly situated, Plaintiff v. KEMPER SPORTS MANAGEMENT, INC. and DOES 1 thru 50, inclusive, Defendants, Case No. 5:20-cv-02104 (C.D. Cal., October 8, 2020) is a class action complaint brought against the Defendants for their alleged failure to make proper disclosure and obtain proper authorization of consumer report in violation of the Fair Credit Reporting Act (FCRA). According to the complaint, in connection with his employment, the Plaintiff filled out the Defendant's standard FCRA form in June 14, 2019 which contained extraneous information such as state disclosures. Although the Plaintiff was confused regarding the nature of his rights under the FCRA and did not give valid authorization for the Defendant to procure a consumer report, the Defendant, however, procured or caused to be procured the Plaintiff's consumer report. The complaint asserts that the Defendant deprived the Plaintiff and other similarly situated of their right to information and the right to privacy. Kemper Sports Management, Inc. provides municipal and public golf courses, private clubs, resorts, development, and renovation. [BN] The Plaintiff is represented by: Eric B. Kingsley, Esq. Kelsey M. Szamet, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Tel: (818) 990-8300 Fax: (818) 990-2903 E-mail: eric@kingsleykingsley.com kelsey@kingsleykingsley.com KENAN ADVANTAGE: Underpays Dispatchers, Burns Suit Claims --------------------------------------------------------- PAUL BURNS, individually and on behalf of all others similarly situated, Plaintiff v. THE KENAN ADVANTAGE GROUP, INC., and PETRO-CHEMICAL TRANSPORT, LLC, Defendants, Case No. 5:20-cv-01227 (W.D. Tex., October 15, 2020) is a collective action complaint brought against the Defendants for their alleged willful violations of the Fair Labor Standards Act (FLSA). The Plaintiff was employed by the Defendants as a dispatcher from December 2018 to August 2020. The Plaintiff claims that the Defendants classified him and other similarly situated dispatchers as salaried employees, exempt from the overtime requirements of the FLSA starting in January or February 2019. As a result, despite regularly working more than 40 hours in a workweek, the Plaintiff and other similarly situated dispatchers were not paid overtime wages by the Defendants. The Kenan Advantage Group, Inc. and Petro-Chemical Transport, LLC operate as a single enterprise providing tank truck transportation and logistics services. [BN] The Plaintiff is represented by: Merideth Q. McEntire, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: merideth@sanfordlawfirm.com josh@sanfordlawfirm.com LENDINGCLUB CORP: Bid to Strike Class Claims in Erceg Suit Denied ----------------------------------------------------------------- In the case, LUKA ERCEG, Plaintiff, v. LENDINGCLUB CORPORATION, Defendant, Case No. 20-cv-01153-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendant's motion to stay the action, or alternatively to dismiss the first amended complaint. The Plaintiff alleges that in the course of attempting to secure financing for his children's tutoring, he submitted an application to "Your Tuition Solutions," a loan broker owned and/or operated by Springstone Financial LLC, which is a subsidiary of LendingClub. Following the application process, a representative of LendingClub, located at a call center in Massachusetts, left a telephone message for Plaintiff on his cellphone requesting a return call. The Plaintiff, who was located in California, returned the call at the direct line of the LendingClub representative, and left several voicemails. The Plaintiff alleges that on Oct. 3, 2018, he received a return call from the LendingClub representative, and did not receive notice that the call was being recorded. The representative proceeded to ask him about the loan application, at which point the conversation became contentious when LendingClub's representative accused the Plaintiff of fraud. The LendingClub representative later filed an application for a protective order against the Plaintiff, claiming that he threatened her during the call. On Feb. 14, 2019, during a hearing related to the protective order, the representative's attorney played a recording of the telephone call between the representative and the Plaintiff. The Plaintiff alleges that it was the first time he was informed or had reason to know that he had been recorded. During the course of the protective order hearing, a separate LendingClub employee testified that it was the company's "protocol" to record "pretty much anything" that involved an interaction between LendingClub and its customers and clients. The Plaintiff alleges that at no time during the Oct. 3, 2018 telephone conversation was he advised that the call was being recorded. He also alleges that during the recorded conversation, he disclosed sensitive personal and financial information at the request of the LendingClub representative, including social security numbers. He contends that despite having policies requiring its customer service representatives to inform individuals that they may be recorded, LendingClub failed to enforce this policy and does not always disclose to customers that it is recording the call. The Plaintiff alleges three causes of action: violations of (i) California Penal Code Section 632;1 (ii) California Penal Code Section 632.7; and (iii) Mass. Gen. Law. Ch. 272 Section 99. He seeks relief on behalf of a nationwide class of all individuals who have had their telephone calls with LendingClub recorded by LendingClub without their knowledge and consent. The Defendant moves to stay the pending action, or alternatively to dismiss the first amended complaint. Section 632.7 makes it a violation to, without consent, "intercept[] or receive[] and intentionally record[]" a cellphone communication. The California Court of Appeal recently held that "section 632.7 prohibits only third-party eavesdroppers from intentionally recording telephonic communications involving at least one cellular or cordless telephone. Conversely, section 632.7 does not prohibit the participants in a phone call from intentionally recording it." Smith v. LoanMe, Inc., 43 Cal. App. 5th 844, 848 (2019). That ruling, which is fatal to the Plaintiff's section 632.7 cause of action because the Plaintiff does not allege that a third-party eavesdropper recorded the call at issue, is currently on appeal to the California Supreme Court, and the Defendant seeks a stay of the action pending the outcome of that appeal. Judge Gilliam holds that because issuing a stay in the case will result in minimal harm to the parties and will eliminate a potential hardship by not requiring the parties to go forward with premature discovery, he stays the Plaintiff's section 632.7 and section 632 causes of action pending the California Supreme Court's decision in Smith. The Defendant is directed to file a notice of recent authority without delay. The filing must simply attach the decision, and must not include any legal or factual argument or characterization. The Defendant moves to dismiss the Plaintiff's third cause of action. It also moves under Federal Rule of Civil Procedure 12(f) to strike the Plaintiff's nationwide class allegations on the grounds that neither California nor Massachusetts law can be applied to a nationwide case. The Plaintiff asserts that he is a California resident and was located in California when the alleged harm occurred. While the Plaintiff maintains that Mass. Gen. Law Ch. 272 Section 99 does not contain a residency requirement, the Judge finds that the Plaintiff fails to point to any authority (and the Court likewise cannot find any) in which a court has applied Mass. Gen Law Ch. 272 Section 99 to a non-resident located outside of Massachusetts at the time of the alleged recording. Because the Plaintiff has not otherwise identified any substantive differences between Massachusetts and California law, California law applies. Even if there were minor substantive differences, under Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 117-118 (2006), because the Plaintiff is a resident of California, California has a greater interest in applying its privacy laws to protect the citizens of its states than Massachusetts does in applying its privacy laws to protect the citizens of a different state. The Plaintiff can and does bring claims under California's privacy statutes, and thus has a sufficient remedy. Because any amendment would be futile as a matter of law, the Defendant's motion to dismiss the Plaintiff's third cause of action is granted without leave to amend. Finally, the Defendant moves to strike the Plaintiff's class allegations, contending that the class definition of "all individuals who have had their telephone calls with LendingClub recorded by LendingClub without their knowledge and consent, is overbroad because neither California nor Massachusetts law can be applied to a nationwide class. The Plaintiff alleges that LendingClub employs call centers in both California and Massachusetts, and therefore is subject to the laws of both states. The Judge holds that if the case proceeds following the California Supreme Court's ruling in Lopez v. Smith, discovery will be necessary regarding the many issues that will arise at the class certification stage. The proposed class of individuals who potentially had their calls with LendingClub recorded without knowledge and consent is not overbroad at this stage given the facts alleged in the FAC. LendingClub has not carried its burden to show that it is one of the rare cases in which class allegations should be stricken prior to certification. The Judge therefore denies the Defendant's motion to strike the Plaintiff's nationwide class allegations. For the foregoing reasons, Judge Giliam (i) stayed the Plaintiff's California Penal Code Section 632.7 and California Penal Code Section 632 causes of action, (ii) granted without leave to amend the Defendant's motion to dismiss the Plaintiff's Mass. Gen. Law. Ch. 272 Section 99 cause of action, and (iii) denied the Defendant's motion to strike the Plaintiff's nationwide class allegations. A full-text copy of the Court's July 28, 2020 Order is available at https://tinyurl.com/y5hj8ljn from Leagle.com. LYFE PRODUCTIVES: Faces Fuller Wage-and-Hour Suit in California --------------------------------------------------------------- DILLON FULLER, individually and on behalf of all other aggrieved employees, Plaintiff v. LYFE PRODUCTIVES, LLC; ISAAC BROWN; DOES 1 through 50, inclusive, Defendants, Case No. 20STCV39378 (Cal. Super., Los Angeles Cty., October 14, 2020) is a class action against the Defendants for violations of the California Labor Code and the California Business and Professions Code including willful misclassification of the Plaintiff and all others similarly situated workers as independent contractors, failure to provide meal and rest periods, failure to timely pay wages upon termination, failure to pay minimum wages and overtime compensation, improper wage statements, failure to reimburse business expenses, failure to maintain records, and unfair business practices. The Plaintiff was employed by the Defendants as a content manager in Burbank, California from November 2017 until May 2020. Lyfe Productives, LLC is a social marketing and education firm focused on product development, with its principal place of business located in Burbank, California. [BN] The Plaintiff is represented by: Arin Norijanian, Esq. James H. Demerjian, Esq. ARIN | JAMES LLP 100 North Brand Blvd., Suite 620 Glendale, CA 91203 Telephone: (818) 476-0133 Facsimile: (818) 230-5243 E-mail: arin@arinjames.com james@arinjames.com MANTEI & ASSOCIATES: Black Suit Remanded to Lexington County Court ------------------------------------------------------------------ Judge Mary Geiger Lewis of the U.S. District Court for the District of South Carolina, Columbia Division, granted the Plaintiffs' motion for remand the case, DONALD BLACK, MARCIA BLACK, LARRY MARTIN, REBECCA MARTIN, BARBARA THOMPSON, and JAMES THOMPSON, for themselves and a class of similarly situated plaintiffs, Plaintiffs, v. MANTEI & ASSOCIATES, LTD., RICKEY ALAN MANTEI, CINDY CHIELLINI, CENTAURUS FINANCIAL, INC., and J.P. TURNER & CO., LLC, Defendants, Civil Action No. 3:19-02097-MGL (D. S.C.), to the Lexington County Court of Common Pleas. The Plaintiffs, for themselves and a class of similarly situated Plaintiffs, brought the action for various South Carolina state law claims in the Lexington County Court of Common Pleas. They originally alleged the Defendants advertised and sold illiquid debt instruments to unsophisticated investors. More specifically, the Plaintiffs alleged the suit involves products including structured certificates of deposit, principal protected notes, and 'medium term' corporate bonds, all of which shared the same characteristics the Defendants willfully misrepresented and/or concealed from the Named Plaintiffs and other Class Members. The Plaintiffs further asserted that all of the products included in the suit were debt securities exempt from registration pursuant to rules issued by the Securities and Exchange Commission under the Securities Act of 1933, which were not issued by investment companies registered under or which have filed registration statements under the Investment Company Act of 1940, and/or which otherwise did not qualify as covered securities for purposes of the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"). Importantly, neither the definition, nor any other portion of the complaint, identified specific products subject to the suit. Instead they provided merely a description of the products potentially applicable under the suit, without identifying specific products. The Defendants removed the action to federal court based on 15 U.S.C. Section 78bb(f)(2). Thereafter, the Plaintiffs filed a motion to remand the action to state court, which the Court denied because the original complaint implicated SLUSA and thus presented a federal question. Subsequently, the Plaintiffs filed a motion to amend their complaint, which the Court granted. The First Amended Complaint ("FAC") makes two relevant changes from the original complaint. First, it modifies paragraph five, adding: "The Named Plaintiffs hereby expressly exclude any products that otherwise meet the definition of a covered security from this action." Second, they likewise limit the class definition to individuals sold "a debt instrument that is not a 'covered security' under SLUSA." Stated differently, these changes exclude from the suit any product determined by a court during the course of the litigation to be a covered security, rather than declaring from the start the products meeting the other parameters of the suit fail to meet the requirements of a covered security. The Plaintiffs filed their amended complaint and filed a new motion for remand. They move to remand the case, arguing the FAC eliminates any SLUSA applicability and presents only state-law claims. They present two distinct arguments. First, they assert the changes made in the FAC mean the case no longer presents any federal questions, making SLUSA inapplicable and requiring remand. Second, they argue even if remand is not required, the Court should decline to exercise supplemental jurisdiction over the FAC, since all federal claims have been removed. The Defendants responded and the Plaintiffs replied. Judge Lewis identifies three analytical steps to address the Plaintiffs motion. First, she must determine whether the FAC still implicates SLUSA. The Judge finds that the FAC fails to implicate any federal questions, as the sued-upon products are definitionally not covered securities. Stated differently, even at this stage of the litigation, the FAC eliminates the possibility the suit will ever implicate a covered security, rather than requiring claims related to covered securities later be dismissed from the suit. This nuanced distinction from the original complaint is determinative. All purportedly fraudulent acts sued upon and their associated products, under the FAC, fail the fourth criteria of SLUSA preemption inasmuch as they have no connection with the purchase or sale of a covered security, and therefore no federal question remains. The fact a court might need to make later preclusion determinations on individual products associated with the purportedly fraudulent acts is insufficient to create a federal question. The Plaintiffs, thus, are correct; SLUSA no longer applies to the case. Having determined no federal questions remain in the FAC, the Judge must examine whether the Court has subject matter jurisdiction to hear the case moving forward. A court's subject matter jurisdiction is determined by the original complaint. Importantly, subject matter jurisdiction is not divested from the district court when the federal claims are dismissed from the complaint. Thus, because the Court previously determined the original complaint implicated federal questions, it retains subject matter jurisdiction over the complaint. Although the Court retains jurisdiction based on the original complaint, the Judge must decide whether to decline to exercise supplemental jurisdiction once she has decided the federal claims. Because the case can be remanded, the Judge must now perform a supplemental jurisdiction analysis. Among the factors that inform discretionary determination are convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy. The Judge finds that the factors for supplemental jurisdiction weigh against the District Court exercising supplemental jurisdiction in the case. Because the case still is in its infancy, there are no arguments for convenience or judicial economy present. Further, there is nothing inherently unfair to the parties in remanding a case at such an early stage of litigation. Finally, the mere fact a state court will make determinations of preclusion, fails to implicate a federal policy requiring the Court to retain jurisdiction. Accordingly, the Judge declines to exercise supplemental jurisdiction over the remaining state law claims. For the reasons stated, Judge Lewis granted the Plaintiffs' motion for remand. A full-text copy of the District Court's July 31, 2020 Memorandum Opinion & Order is available at https://tinyurl.com/y69nhxxp from Leagle.com. MARS PETCARE: Dismissal of Moore's California State Claims Reversed ------------------------------------------------------------------- In the case, TAMARA MOORE; GRETA L. ERVIN; RAFF ARANDO; NICHOLS SMITH; RENEE EDGREN; CYNTHIA WELTON, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. MARS PETCARE US, INC.; NESTLE PURINA PETCARE COMPANY; HILL'S PET NUTRITION, INC.; PETSMART, INC.; MEDICAL MANAGEMENT INTERNATIONAL, INC., DBA Banfield Pet Hospital; BLUEPEARL VET, LLC; ROYAL CANIN USA INC., Defendants-Appellees, Case No. 18-15026 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit reversed the district court's order granting the Defendants' motions to dismiss the Plaintiffs' Second Amended Complaint. The appeal arises out of a challenge by Moore and five other California residents to the marketing of so-called prescription pet food under California's consumer protection laws and federal antitrust law. The Plaintiffs brought a putative class action lawsuit against four pet food manufacturers, two veterinary clinic chains, and one pet goods retailer. They allege that the prescription requirement and advertising lead reasonable consumers falsely to believe that such food has been subject to government inspection and oversight, and has medicinal and drug properties, causing consumers to pay more or purchase the product when they otherwise would not have. The Defendants consist of pet food manufacturers, Mars and Royal; Purina and Hill's; veterinary clinic chains, Banfield and BluePearl; and pet goods retailer, PetSmart. Hill's manufactures and markets its prescription pet food in packaging labeled "Prescription Diet." Purina manufactures and markets its prescription pet food under the label "Pro Plan Veterinary Diets." Mars manufactured and sold prescription pet food under the "Iams" label prior to Jan. 1, 2017 and switched to "Royal Canin Veterinary Diet" starting in 2017. In September 2012, the U.S. Food & Drug Administration ("FDA") published for comment a Draft Compliance Policy Guide ("Draft CPG"). In the Draft CPG, the FDA noted that there has been an increase in the number of pet food products labeled as intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, as well as a shift in marketing toward pet owners directly. The agency expressed concerns that animal health may suffer from consumption of these products because they "affect physiological processes to extents that may not be tolerated by all animals and/or may not achieve effective treatment." The FDA was, however, less concerned when such dog and cat food products are marketed only through and used under the direction of a licensed veterinarian because the agency presumed the veterinarian will provide direction to the pet owner. The FDA then proposed a set of nine factors it would consider in determining whether to initiate enforcement action against pet food products. At that time, in late-2012, the Defendant Manufacturers' products violated three of the factors in the Draft CPG. First, their prescription pet food included indications of disease claims on the labels. Second, the distribution of promotional materials with disease claims were not limited to veterinary professionals. Third, they electronically disseminated promotional materials with disease claims to consumers on the internet. The FDA adopted a final Compliance Policy Guide ("Final CPG") in April 2016, in substantially the same form as the Draft CPG, although it added two more conditions that could lead to enforcement action. The Defendant Manufacturers did not change their behavior despite violating the same three conditions of the Final CPG. The FDA has not, however, taken any enforcement action against the Defendant Manufacturers. The Plaintiffs are six California residents who purchased prescription pet food for their sick pets after consulting with their vets. They assumed from the prescription requirement that the pet food was (i) a substance medically necessary to health; (ii) a drug, medicine, or other controlled ingredient; (iii) a substance that has been evaluated by the FDA as a drug; (iv) a substance to which the manufacturers' representations regarding intended uses and effects have been evaluated by the FDA; and (v) a substance legally required to be sold by prescription. As a result, the Plaintiffs paid more for the prescription pet food than they would have in the absence of the prescription requirement, had they purchased it at all. The Plaintiffs filed their Second Amended Complaint in August 2017 after the district court granted, with leave to amend, the Defendants' initial motions to dismiss the Plaintiffs' First Amended Complaint. The Plaintiffs alleged, among other matters, claims for relief that Mars and Hill's violated three California state consumer protection laws: California's Unfair Competition Law; California's False Advertising Law; and California's Consumer Legal Remedies Act. They also sought class certification, injunctive relief, and damages. The Defendants filed motions to dismiss the Second Amended Complaint for failure to state a claim for relief under the California consumer protection laws, failure to plead those claims with sufficient particularity under Federal Rule of Civil Procedure 9(b), and for lack of standing. The district court granted the motions with leave to amend the California state law claims to specify how the term prescription or Rx symbol affected each plaintiff's decision to purchase such pet food. The Plaintiffs elected to rest on the allegations in the Second Amended Complaint, and the district court dismissed the case with prejudice. The Plaintiffs timely appealed. They argue that the district court erred by dismissing their California state law consumer protection claims against Defendants Mars and Hill's. The district court dismissed the Plaintiffs' California state law claims on three separate grounds: first, the court concluded that the sale of the prescription pet food exclusively through vets or with veterinarian approval was not itself a deceptive or otherwise misleading practice; second, the court concluded that the Plaintiffs failed to plead enough facts to show that prescription pet food and other pet food are not materially different; third, the court determined that the Plaintiffs failed adequately to allege that the use of the word "prescription" or "Rx" symbol to have caused any of their claimed loss. The Ninth Circuit disagrees with all three grounds. First, the Appellate Court concludes that the Plaintiffs have sufficiently alleged a deceptive practice under the reasonable consumer test. The labeling of "prescription pet food" does appear deceptive and misleading. Common sense dictates that a product that requires a prescription may be considered a medicine that involves a drug or controlled substance. The district court seems to have discounted the potential to mislead in part because vets play a role in the referral process. Moreover, even though the FDA, in the 2016 CPG, explicitly sanctions the role of vets in supervising consumption of this type of pet food, that does not automatically defeat the Plaintiffs' claim. The Court also finds it persuasive that the FDA warns in the CPG that the labeling on such pet food may lack sufficient information, particularly for pet owners. Next, the Ninth Circuit concludes that the Plaintiffs have pleaded sufficient detail to put Defendants on notice as to the fraud claim. If the case had proceeded in the district court, the Defendants could have submitted evidence about why the difference in ingredients mattered between those specific prescription and non-prescription pet foods to justify the price differentials. The fact that the Plaintiffs placed the Defendants on sufficient notice to respond to the alleged fraud reflects how their allegations meet Rule 9(b). Finally, the Ninth Circuit concludes that the fact that vets had prescribed each Plaintiff the pet food -- rather than each discovering the pet food on their own -- does not negate the allegation of actual reliance because the prescription requirement and advertising need not be the sole or even the decisive cause of the purchase. Whether a misrepresentation is sufficiently material to allow for an inference of reliance is generally a question of fact that cannot be decided at the motion to dismiss stage. Similarly, it certainly seems plausible that a reasonable consumer would at least partially rely on the prescription labeling to pay more money for a certain type of pet food over others. For these reasons, the Ninth Circuit reversed the district court's dismissal of the Plaintiffs' California state claims. A full-text copy of the Ninth Circuit's July 28, 2020 Opinion is available at https://bit.ly/3jBPjjV from Leagle.com. Michael von Loewenfeldt (argued), Kerr & Wagstaffe LLP, San Francisco, California; Daniel R. Shulman -- daniel.shulman@gpmlaw.com -- Gray Plant Mooty Mooty & Bennett P.A., Minneapolis, Minnesota; Michael A. Kelly -- mkelly@walkuplawoffice.com -- and Matthew D. Davis -- mdavis@walkuplawoffice.com -- Walkup Melodia Kelly & Schoenberger, San Francisco, California; Michael L. McGlamry -- mmcglamry@pmkm.com -- and Wade H. Tomlinson III -- triptomlinson@pmkm.com -- Pope McGlamry P.C., Atlanta, Georgia; Edward J. Coyne III -- ejcoyne@wardandsmith.com -- Ward and Smith P.A., Wilmington, North Carolina; for Plaintiffs-Appellants. Jonathan D. Hacker (argued), Richard B. Goetz -- rgoetz@omm.com-- Michael Tubach -- mtubach@omm.com -- and Hannah Y. Chanoine , O'Melveny & Myers LLP, Los Angeles, California; John E. Schmidtlein (argued), Benjamin M. Greenblum, and Xiao Wang, Williams & Connolly LLP, Washington, D.C.; Jeffrey E. Faucette, Skaggs Faucette LLP, San Francisco, California; Bryan A. Merryman and Christopher M. Curran, White & Case LLP, Los Angeles, California; for Defendants-Appellees. MDL 2047: Court Orders Depositions in Chinese Drywall Suit ---------------------------------------------------------- In the case, IN RE CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION, SECTION L (5). THIS DOCUMENT RELATES TO: Elizabeth Bennett, et al. v. Gebr. Knauf Verwaltungsgesellschaft, KG, et al., No. 14-2722, Civil Action MDL No. 2047 (E.D. La.), Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana granted in part and denied in part the Defendants' Motions to Dismiss Claims Asserted by Michael Phillips, Peter and Lin H. Robinson, Jeremy Jordan, Cesar and Ines Jaramillo, and Annetta, LLC and Baco Annetta LLC, Richard Calevro, and Martin Kuntz, Under Rule 37, or Alternatively, Other Sanctions. From 2004 through 2006, the housing boom in Florida and rebuilding efforts necessitated by Hurricanes Rita and Katrina led to a shortage of construction materials, including drywall. As a result, drywall manufactured in China was brought into the United States and used to construct and refurbish homes in coastal areas of the country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese drywall, homeowners began to complain of emissions of foul-smelling gas, the corrosion and blackening of metal wiring, surfaces, and objects, and the breaking down of appliances and electrical devices in their homes. Many of these homeowners also began to complain of various physical afflictions believed to be caused by the Chinese drywall. These homeowners then began to file suit in various state and federal courts against homebuilders, developers, installers, realtors, brokers, suppliers, importers, exporters, distributors, and manufacturers who were involved with the Chinese drywall. As a result, many homebuilders also filed suit seeking to recoup their damages. Because of the commonality of facts in the various cases, the litigation was designated as a multidistrict litigation. Pursuant to a Transfer Order from the United States Judicial Panel on Multidistrict Litigation on June 15, 2009, all federal cases involving Chinese drywall were consolidated for pretrial proceedings in MDL 09-2047 before the Court. Since that date, numerous cases have been consolidated, involving thousands of individua l claims; over 20,000 documents have been entered into the record, millions of documents have been exchanged in discovery, depositions have been taken in the United States and in China, and over 30 Pretrial Orders have been issued; the Court has appointed steering committees and liaison counsel for plaintiffs, homebuilders, insurers, installers, and manufacturers, and it has presided over monthly status conferences, hearings, and several bellwether trials. The Chinese drywall at issue was largely manufactured by two groups of the Defendants: (1) the Knauf Entities and (2) the Taishan Entities. The litigation has focused upon these two entities and their downstream associates and has proceeded on strikingly different tracks for the claims against each group. The instant matter is a purported class action filed on Nov. 13, 2014 by Elizabeth Bennett in the Northern District of Alabama. Ms. Bennet raised claims on her own behalf and on the behalf of a nationwide class of similarly situated homeowners who allegedly suffered damages due to the presence of defective Chinese drywall in their homes. The Plaintiffs raised claims against the Knauf Entities for negligence, negligence per se, strict liability, breach of express and/or implied warranty, redhibition, violations of the Louisiana Products Liability Act, private nuisance, negligent discharge of a corrosive substance, unjust enrichment, violations of consumer protection laws, and equitable and injunctive relief and medical monitoring with respect to the manufacture of allegedly defective Chinese drywall. In January 2015, the Judicial Panel on Multidistrict Litigation transferred the case to the Eastern District of Louisiana and consolidated it with the In re Chinese Manufactured Drywall Liability Litigation, MLD 09-2047, currently pending before the Court. On Oct. 31, 2019, the Court granted leave for the Plaintiffs to add several new Plaintiffs to the action. The case now involves 130 affected properties. On that date, the Court also extended many of the Case Management Order's deadlines. With discovery well underway, the Knauf Defendants have begun to file dispositive motions targeting the claims of several individual Plaintiffs. In their Motion, the Defendants seek dismissal of claims asserted by Michael Phillips, Peter and Lin H. Robinson, Jeremy Jordan, Cesar and Ines Jaramillo, and Annetta, LLC and Baco Annetta on the grounds that these Plaintiffs either failed to attend their depositions or failed to accommodate the inspections of their properties. They also seek dismissal of Richard Calevro's claims, or, alternatively sanction under Rule 37, on the grounds that Calevro has not produced a Plaintiff Profile Form, a Supplemental Plaintiff Profile Form, an Owner Affidavit, or a Plaintiff Fact Sheet, nor has he submitted to a deposition. The Defendants further seek dismissal of Martin Kuntz's claims, or, alternatively sanctions under Rule 37, on the grounds that Kuntz has not produced "a single document in support of his claims," nor has he submitted a Plaintiff Profile Form, a Supplemental Plaintiff Profile Form, or a Plaintiff Fact Sheet. Alternatively, the Defendants seek partial summary judgment with respect to any non-remediation claims on the grounds that Kuntz was only assigned remediation claims by the property's prior owner, Steve Binns. Judge Fallon declines to dismiss the cases of Plaintiffs Phillips, the Robinsons, Jordan, the Jaramillos, the Annetta Entities, and Calevro. He, however, exercises discretion under Rule 37 and orders the Plaintiffs to promptly submit to depositions and/or property inspections. Considering the fact that the discovery period is over and the delay has caused prejudice to the Defendants, the Plaintiffs and the Defendants will each bear their own costs related to the rescheduled depositions and or/inspections. However, in contrast to the other Plaintiffs, Mr. Phillips failed to appear for two depositions and failed to provide access to his property during a scheduled inspection. The Judge believes his actions have more significantly frustrated the discovery process than those of other Plaintiffs and therefore warrant a more dramatic sanction. Accordingly, Mr. Phillips must bear all reasonable costs associated with his rescheduled deposition and property inspection. Plaintiffs Calevro and Kuntz also failed to submit Plaintiff Fact Sheets, Plaintiff Profile Forms, and Supplemental Plaintiff Profile Forms in a timely manner. The Judge recognizes that the delay in document production has significantly frustrated the discovery process and prejudiced Defendants' ability to develop a defense to Calevro and Kuntz's claims. However, the record does not indicate that Calevro or Kuntz acted willfully or in bad faith. Accordingly, the Judge declines to penalize Kuntz and Calevro for what could conceivably amount to attorney oversight, particularly because the documents were eventually produced. Lastly, the Defendants seek partial summary judgment on Kuntz's non-remediation claims. The Judge concludes that partial summary judgment is warranted with respect to Kuntz' non-remediation claims. The Defendants have demonstrated that Kuntz purchased the affected property from Binns on Jan.y 11, 2019, and received an assignment of claims that same day. The Plaintiff has not provided any argument or evidence to create a genuine issue of material fact with respect to Binns' retention of all non-remediation based claims. Accordingly, Kuntz only has the right to prosecute remediation-based claims, and all other claims he asserts must be dismissed. Based on the foregoing, Judge Fallon granted in part and denied in part the Defendants' Motion to Dismiss Claims Asserted by Mr. Phillips, the Robinsons, Mr. Jordan, the Jaramillos, and the Annetta Entities. The motion is granted to the extent it seeks an order requiring the Plaintiffs' to submit to depositions and/or inspections, but is denied to the extent it seeks the sanction of dismissal. The Judge also granted in part and denied in part the Defendants' Motion to Dismiss Claims Asserted by Calevro. The motion is granted to the extent it seeks an order requiring Calevro to submit to depositions and/or inspections, but is denied to the extent it seeks the sanction of dismissal. The Judge further granted in part and denied in part the Defendants' Motion to Dismiss Claims Asserted by Kuntz. The motion is granted to the extent it seeks partial summary judgment on Kuntz's non-remediation claims, but is denied to the extent it seeks sanctions. The parties arrange for depositions of Mr. Phillips, the Robinsons, the Jaramillos, the Annetta Entities, and Calevro, within 14 days of the Order's issuance. Due to ongoing concerns regarding the global outbreak of COVID-19, these depositions may take place via videoconference. The Plaintiffs and the Defendants are to bear their own costs, except for Mr. Phillips, who will bear all reasonable costs associated with his deposition. The parties arrange for inspections of Mr. Phillips' and the Robinsons' properties within one month of the Order's issuance. The Robinsons and the Defendants will each bear their own costs. Mr. Phillips will bear all reasonable costs associated with the inspection. Kuntz and Calevro must properly provide all outstanding documents necessary to complete the discovery process to the Defendants without delay. A full-text copy of the District Court's July 31, 2020 Order & Reasons is available at https://tinyurl.com/y63ru3wb from Leagle.com. MDL 2047: Knauf Entities Win Partial Summary Judgment v Steve Binns ------------------------------------------------------------------- In the case, IN RE CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION, SECTION L (5). THIS DOCUMENT RELATES TO: Elizabeth Bennett, et al. v. Gebr. Knauf Verwaltungsgesellschaft, KG, et al., No. 14-2722, Civil Action MDL No. 2047 (E.D. La.), Judge Edon E. Fallon of the U.S. District Court for the Eastern District of Louisiana granted the Defendants' Motion for Partial Summary Judgment on Claims Asserted by Steve Binns. From 2004 through 2006, the housing boom in Florida and rebuilding efforts necessitated by Hurricanes Rita and Katrina led to a shortage of construction materials, including drywall. As a result, drywall manufactured in China was brought into the United States and used to construct and refurbish homes in coastal areas of the country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese drywall, homeowners began to complain of emissions of foul-smelling gas, the corrosion and blackening of metal wiring, surfaces, and objects, and the breaking down of appliances and electrical devices in their homes. Many of these homeowners also began to complain of various physical afflictions believed to be caused by the Chinese drywall. These homeowners then began to file suit in various state and federal courts against homebuilders, developers, installers, realtors, brokers, suppliers, importers, exporters, distributors, and manufacturers who were involved with the Chinese drywall. As a result, many homebuilders also filed suit seeking to recoup their damages. Because of the commonality of facts in the various cases, the litigation was designated as a multidistrict litigation. Pursuant to a Transfer Order from the United States Judicial Panel on Multidistrict Litigation on June 15, 2009, all federal cases involving Chinese drywall were consolidated for pretrial proceedings in MDL 09-2047 before the Court. Since that date, numerous cases have been consolidated, involving thousands of individua l claims; over 20,000 documents have been entered into the record, millions of documents have been exchanged in discovery, depositions have been taken in the United States and in China, and over 30 Pretrial Orders have been issued; the Court has appointed steering committees and liaison counsel for plaintiffs, homebuilders, insurers, installers, and manufacturers, and it has presided over monthly status conferences, hearings, and several bellwether trials. The Chinese drywall at issue was largely manufactured by two groups of the Defendants: (1) the Knauf Entities and (2) the Taishan Entities. The litigation has focused upon these two entities and their downstream associates and has proceeded on strikingly different tracks for the claims against each group. The instant matter is a purported class action filed on Nov. 13, 2014 by Elizabeth Bennett in the Northern District of Alabama. Ms. Bennet raised claims on her own behalf and on the behalf of a nationwide class of similarly situated homeowners who allegedly suffered damages due to the presence of defective Chinese drywall in their homes. The Plaintiffs raised claims against the Knauf Entities for negligence, negligence per se, strict liability, breach of express and/or implied warranty, redhibition, violations of the Louisiana Products Liability Act, private nuisance, negligent discharge of a corrosive substance, unjust enrichment, violations of consumer protection laws, and equitable and injunctive relief and medical monitoring with respect to the manufacture of allegedly defective Chinese drywall. In January 2015, the Judicial Panel on Multidistrict Litigation transferred the case to the Eastern District of Louisiana and consolidated it with the In re Chinese Manufactured Drywall Liability Litigation, MLD 09-2047, currently pending before the Court. On Oct. 31, 2019, the Court granted leave for the Plaintiffs to add several new Plaintiffs to the action. The case now involves 130 affected properties. On that date, the Court also extended many of the Case Management Order's deadlines. With discovery well underway, the Knauf Defendants have begun to file dispositive motions targeting the claims of several individual Plaintiffs. The Defendants seek partial summary judgment of claims asserted by Binns. Binns' claims arise from the alleged presence of Chinese drywall in a property located at 1417 Southwest Devera Avenue, Port St. Lucie, Florida. He sold the affected property to Martin Kuntz on January 2019, allegedly assigning to Kuntz all remediation claims but reserving for himself claims for diminution in value, alternative living expenses, and loss of use and enjoyment, among others. The Defendants argue that summary judgment of Binns' remediation claim is warranted because the Assignment of Claims is "clear and unambiguous, evidencing the parties' intent to assign all remediation claims to Kuntz. Binns has not filed an opposition. The Defendants filed a reply, recognizing that although a failure to oppose a motion is not alone dispositive, the factual circumstances here warrant summary judgment. Judge Fallon finds that the Defendants have provided evidence that Binns assigned and transferred all of his Chinese drywall related remediation claims to a third party, Kuntz. Specifically, they point to an "Assignment of Claims & Retention of Rights Agreement" executed by Binns and Kuntz, in which Binns, as the seller of the affected property, agreed to assign and transfer to Kuntz all filed claims he may possess related to the remediation of the residential structure containing Chinese-manufactured drywall. Binns specifically retained non-remediation claims, including but not limited to claims for alternative living expenses, personal property, loss of equity, diminution in value, and loss of use and enjoyment, for himself. The Agreement also obligated Kuntz, as the Buyer, to follow through with all steps in the litigation process necessary to fully recover all damages, engage Doyle Law Firm, PC to prosecute the remediation claim, and assume all obligations and duties of the Seller against any responsible party. Further, a Warranty Deed executed on Jan. 11, 2019, indicates that Binns and his ex-wife, Jean A. William-Binns, conveyed the affected property to Kuntz. The Judge holds that contracts are to be construed in accordance with the plain meaning of the words contained therein. Considering the Assignment of Claims & Retention of Rights Agreement, he finds that the assignment of any Chinese-drywall related remediation claims from Binns to Kuntz is clear and unambiguous. Binns divested himself of any and all interest in the outcome of the remediation claim in executing the assignment, reserving for himself the right to prosecute other Chinese drywall related claims. Accordingly, summary judgment is warranted with respect to Binns' remediation claim. Based on the foregoing, Judge Fallon granted the Defendants' Partial Motion for Summary Judgment. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/y3lg8osc from Leagle.com. MDL 2047: Knauf Entities Win Summary Judgment vs. Amuso Claims -------------------------------------------------------------- In the case, IN RE CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION, SECTION L (5). THIS DOCUMENT RELATES TO: Elizabeth Bennett, et al. v. Gebr. Knauf Verwaltungsgesellschaft, KG, et al., No. 14-2722, Civil Action MDL No. 2047 (E.D. La.), Judge Edon E. Fallon of the U.S. District Court for the Eastern District of Louisiana granted the Defendants' Motion for Summary Judgment on Claims Asserted by Robert Amuso, Jr. From 2004 through 2006, the housing boom in Florida and rebuilding efforts necessitated by Hurricanes Rita and Katrina led to a shortage of construction materials, including drywall. As a result, drywall manufactured in China was brought into the United States and used to construct and refurbish homes in coastal areas of the country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese drywall, homeowners began to complain of emissions of foul-smelling gas, the corrosion and blackening of metal wiring, surfaces, and objects, and the breaking down of appliances and electrical devices in their homes. Many of these homeowners also began to complain of various physical afflictions believed to be caused by the Chinese drywall. These homeowners then began to file suit in various state and federal courts against homebuilders, developers, installers, realtors, brokers, suppliers, importers, exporters, distributors, and manufacturers who were involved with the Chinese drywall. As a result, many homebuilders also filed suit seeking to recoup their damages. Because of the commonality of facts in the various cases, the litigation was designated as a multidistrict litigation. Pursuant to a Transfer Order from the United States Judicial Panel on Multidistrict Litigation on June 15, 2009, all federal cases involving Chinese drywall were consolidated for pretrial proceedings in MDL 09-2047 before the Court. Since that date, numerous cases have been consolidated, involving thousands of individual claims; over 20,000 documents have been entered into the record, millions of documents have been exchanged in discovery, depositions have been taken in the United States and in China, and over 30 Pretrial Orders have been issued; the Court has appointed steering committees and liaison counsel for plaintiffs, homebuilders, insurers, installers, and manufacturers, and it has presided over monthly status conferences, hearings, and several bellwether trials. The Chinese drywall at issue was largely manufactured by two groups of the Defendants: (1) the Knauf Entities and (2) the Taishan Entities. The litigation has focused upon these two entities and their downstream associates and has proceeded on strikingly different tracks for the claims against each group. The instant matter is a purported class action filed on Nov. 13, 2014 by Elizabeth Bennett in the Northern District of Alabama. Ms. Bennet raised claims on her own behalf and on the behalf of a nationwide class of similarly situated homeowners who allegedly suffered damages due to the presence of defective Chinese drywall in their homes. The Plaintiffs raised claims against the Knauf Entities for negligence, negligence per se, strict liability, breach of express and/or implied warranty, redhibition, violations of the Louisiana Products Liability Act, private nuisance, negligent discharge of a corrosive substance, unjust enrichment, violations of consumer protection laws, and equitable and injunctive relief and medical monitoring with respect to the manufacture of allegedly defective Chinese drywall. In January 2015, the Judicial Panel on Multidistrict Litigation transferred the case to the Eastern District of Louisiana and consolidated it with the In re Chinese Manufactured Drywall Liability Litigation, MLD 09-2047, currently pending before the Court. On Oct. 31, 2019, the Court granted leave for the Plaintiffs to add several new Plaintiffs to the action. The case now involves 130 affected properties. On that date, the Court also extended many of the Case Management Order's deadlines. With discovery well underway, the Knauf Defendants have begun to file dispositive motions targeting the claims of several individual Plaintiffs. The Defendants seek summary judgment of the claims asserted by Mr. Amuso on the grounds that he does not have a legal interest in the affected property. Mr. Amuso's claims arise from the alleged presence of Chinese drywall in a property located at 3461 Ambrose Lane, Kimberly, Alabama. The Defendants argue summary judgment is warranted because Amuso has not set forth any evidence demonstrating that he owns the affected property. Mr. Amuso's claims arise from the alleged presence of Chinese drywall in a property he has not demonstrated an interest in. The Defendants have provided evidence suggesting that Amuso is not an owner of the affected property, and Mr. Amuso has not rebutted these allegations with evidence of his own to establish the existence of a genuine issue of material fact. Specifically, the deed for the property lists Stephanie Doss (now Stephanie Amuso), as the sole Grantee of the property. Both Stephanie Amuso and Mr. Amuso were deposed in connection with the litigation, and neither could confirm that Mr. Amuso was actually a coowner of the property. Although Ms. Amuso explained that she made her husband a co-owner of the property in 2014 while refinancing, she did not know whether he was included as an owner of the property, or simply added to the mortgage. When Mr. Amuso was questioned about his ownership of the property, he could not recall whether he was added to the title, deed, or any other documents, or whether he and his wife ever went back to a closing agent and [did] any sort of active transfer for the property. In failing to oppose the motion, the Plaintiff has not introduced any evidence to suggest he was actually made a co-owner of the property. Recognizing that an individual cannot recover for damage to property he does not own, Judge Fallon concludes that Robert Amuso has not set forth any specific facts, by affidavit or otherwise, supporting his right to prosecute the instant claims. They must accordingly be dismissed. Based on the foregoing, Judge Fallon granted the Defendants' Motion for Summary Judgment. A full-text copy of the District Court's July 31, 2020 Order & Reasons is available at https://tinyurl.com/y4c5x2l4 from Leagle.com. MDL 2047: Knauf Entities Win Summary Judgment vs. Arrowhead Claims ------------------------------------------------------------------ In the case, IN RE CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION, SECTION L (5). THIS DOCUMENT RELATES TO: Elizabeth Bennett, et al. v. Gebr. Knauf Verwaltungsgesellschaft, KG, et al., No. 14-2722, Civil Action MDL No. 2047 (E.D. La.), Judge Edon E. Fallon of the U.S. District Court for the Eastern District of Louisiana granted the Defendants' Motion for Summary Judgment on Claims Asserted by Arrowhead Investments, LLC and Dr. Peter Walimire. From 2004 through 2006, the housing boom in Florida and rebuilding efforts necessitated by Hurricanes Rita and Katrina led to a shortage of construction materials, including drywall. As a result, drywall manufactured in China was brought into the United States and used to construct and refurbish homes in coastal areas of the country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese drywall, homeowners began to complain of emissions of foul-smelling gas, the corrosion and blackening of metal wiring, surfaces, and objects, and the breaking down of appliances and electrical devices in their homes. Many of these homeowners also began to complain of various physical afflictions believed to be caused by the Chinese drywall. These homeowners then began to file suit in various state and federal courts against homebuilders, developers, installers, realtors, brokers, suppliers, importers, exporters, distributors, and manufacturers who were involved with the Chinese drywall. As a result, many homebuilders also filed suit seeking to recoup their damages. Because of the commonality of facts in the various cases, the litigation was designated as a multidistrict litigation. Pursuant to a Transfer Order from the United States Judicial Panel on Multidistrict Litigation on June 15, 2009, all federal cases involving Chinese drywall were consolidated for pretrial proceedings in MDL 09-2047 before the Court. Since that date, numerous cases have been consolidated, involving thousands of individual claims; over 20,000 documents have been entered into the record, millions of documents have been exchanged in discovery, depositions have been taken in the United States and in China, and over 30 Pretrial Orders have been issued; the Court has appointed steering committees and liaison counsel for plaintiffs, homebuilders, insurers, installers, and manufacturers, and it has presided over monthly status conferences, hearings, and several bellwether trials. The Chinese drywall at issue was largely manufactured by two groups of the Defendants: (1) the Knauf Entities and (2) the Taishan Entities. The litigation has focused upon these two entities and their downstream associates and has proceeded on strikingly different tracks for the claims against each group. The instant matter is a purported class action filed on Nov. 13, 2014 by Elizabeth Bennett in the Northern District of Alabama. Ms. Bennet raised claims on her own behalf and on the behalf of a nationwide class of similarly situated homeowners who allegedly suffered damages due to the presence of defective Chinese drywall in their homes. The Plaintiffs raised claims against the Knauf Entities for negligence, negligence per se, strict liability, breach of express and/or implied warranty, redhibition, violations of the Louisiana Products Liability Act, private nuisance, negligent discharge of a corrosive substance, unjust enrichment, violations of consumer protection laws, and equitable and injunctive relief and medical monitoring with respect to the manufacture of allegedly defective Chinese drywall. In January 2015, the Judicial Panel on Multidistrict Litigation transferred the case to the Eastern District of Louisiana and consolidated it with the In re Chinese Manufactured Drywall Liability Litigation, MLD 09-2047, currently pending before the Court. On Oct. 31, 2019, the Court granted leave for the Plaintiffs to add several new Plaintiffs to the action. The case now involves 130 affected properties. On that date, the Court also extended many of the Case Management Order's deadlines. With discovery well underway, the Knauf Defendants have begun to file dispositive motions targeting the claims of several individual Plaintiffs. The Defendants seek summary judgment of the claims asserted by Arrowhead and Walimire. Arrowhead's claims arise from the alleged presence of Chinese drywall in a property located at 19 Money Hill Lane, Poplarville, Mississippi. The Defendants argue that Arrowhead's claims must fail because the company assigned its claims involving Chinese drywall to a third party, Christopher Payton. Walimire's claims arise from the alleged presence of Chinese drywall in a property located at 3589 Malagrotta Circle, Cape Coral, Florida. Defendants argue Dr. Walimire's claims are barred because payment for Chinese drywall remediation for the Walimire Property was provided in 2012, and the prior owner authorized remediation and provided a release. They further explain that the Plaintiff's counsel orally agreed to dismissal of Walimire's claim upon learning of the prior settlement and release, but that to date, the claim has not yet been dismissed. Neither Arrowhead nor Walimire have filed an opposition to the motion. The Defendants filed a reply, recognizing that although a failure to oppose a motion is not alone dispositive, the factual circumstances warrant summary judgment. Considering the deposition transcript and the Assignment of Claims Agreement, Judge Fallon finds that the assignment of any Chinese drywall related claims from Arrowhead to Mr. Payton is clear and unambiguous. Arrowhead divested itself of any and all interest in the outcome of the instant lawsuit in executing the assignment, and accordingly lacks standing to bring the prosecute the instant claims. Accordingly, summary judgment is warranted. Summary judgment is also warranted with respect to Dr. Walimire's claims. The Defendants have demonstrated, with competent evidence, that Walimire's property was remediated in 2012 at the direction of the prior owner, who signed a General Release releasing all claims against the Knauf Defendants and other parties arising from the presence of allegedly defective Chinese manufactured drywall. Further, it appears as though Walimire's attorney agrees that his claim ought to be dismissed, as evidenced by the fact that Walimire's deposition was cancelled when the prior settlement and release was brought to his attention and the lack of opposition to the instant motion. Based on the foregoing, Judge Fallon granted the Defendants' Motion for Summary Judgment. A full-text copy of the District Court's July 31, 2020 Order & Reasons is available at https://tinyurl.com/y5qlby97 from Leagle.com. MDL 2047: Knauf Wins Dismissal of Gaspard Claims in Drywall Suit ---------------------------------------------------------------- In the case, IN RE CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION, SECTION L (5). THIS DOCUMENT RELATES TO: Elizabeth Bennett, et al. v. Gebr. Knauf Verwaltungsgesellschaft, KG, et al., No. 14-2722, Civil Action MDL No. 2047 (E.D. La.), Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana granted the Knauf Defendants' Motion to Dismiss Claims Asserted by Nicole Gaspard. From 2004 through 2006, the housing boom in Florida and rebuilding efforts necessitated by Hurricanes Rita and Katrina led to a shortage of construction materials, including drywall. As a result, drywall manufactured in China was brought into the United States and used to construct and refurbish homes in coastal areas of the country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese drywall, homeowners began to complain of emissions of foul-smelling gas, the corrosion and blackening of metal wiring, surfaces, and objects, and the breaking down of appliances and electrical devices in their homes. Many of these homeowners also began to complain of various physical afflictions believed to be caused by the Chinese drywall. These homeowners then began to file suit in various state and federal courts against homebuilders, developers, installers, realtors, brokers, suppliers, importers, exporters, distributors, and manufacturers who were involved with the Chinese drywall. As a result, many homebuilders also filed suit seeking to recoup their damages. Because of the commonality of facts in the various cases, the litigation was designated as a multidistrict litigation. Pursuant to a Transfer Order from the United States Judicial Panel on Multidistrict Litigation on June 15, 2009, all federal cases involving Chinese drywall were consolidated for pretrial proceedings in MDL 09-2047 before the Court. Since that date, numerous cases have been consolidated, involving thousands of individua l claims; over 20,000 documents have been entered into the record, millions of documents have been exchanged in discovery, depositions have been taken in the United States and in China, and over 30 Pretrial Orders have been issued; the Court has appointed steering committees and liaison counsel for plaintiffs, homebuilders, insurers, installers, and manufacturers, and it has presided over monthly status conferences, hearings, and several bellwether trials. The Chinese drywall at issue was largely manufactured by two groups of the Defendants: (1) the Knauf Entities and (2) the Taishan Entities. The litigation has focused upon these two entities and their downstream associates and has proceeded on strikingly different tracks for the claims against each group. The instant matter is a purported class action filed on Nov. 13, 2014 by Elizabeth Bennett in the Northern District of Alabama. Ms. Bennet raised claims on her own behalf and on the behalf of a nationwide class of similarly situated homeowners who allegedly suffered damages due to the presence of defective Chinese drywall in their homes. The Plaintiffs raised claims against the Knauf Entities for negligence, negligence per se, strict liability, breach of express and/or implied warranty, redhibition, violations of the Louisiana Products Liability Act, private nuisance, negligent discharge of a corrosive substance, unjust enrichment, violations of consumer protection laws, and equitable and injunctive relief and medical monitoring with respect to the manufacture of allegedly defective Chinese drywall. In January 2015, the Judicial Panel on Multidistrict Litigation transferred the case to the Eastern District of Louisiana and consolidated it with the In re Chinese Manufactured Drywall Liability Litigation, MLD 09-2047, currently pending before the Court. On Oct. 31, 2019, the Court granted leave for the Plaintiffs to add several new Plaintiffs to the action. The case now involves 130 affected properties. On that date, the Court also extended many of the Case Management Order's deadlines. With discovery well underway, the Knauf Defendants have begun to file dispositive motions targeting the claims of several individual Plaintiffs. Nicole Gaspard's claims arise from the alleged presence of Chinese drywall in a property located at 1402 O'Donnell Lane SE, Port St. Lucie, Florida. The Defendants allege that although Mercedes Gaspard, the owner of the home, submitted a Plaintiff Profile Form, Supplemental Plaintiff Profile Form, and Plaintiff Fact Sheet, Nicole Gaspard did not sign any of these documents. Additionally, they note that the warranty deed provided during discovery revealed that the property was granted only to Mercedes Gaspard, who confirmed during her deposition that Nicole Gaspard does not own the property. Accordingly, the Defendants seek summary judgment of Nicole Gaspard's claims on the grounds that she lacks standing. Judge Fallon finds that Gaspard's claims arise from the alleged presence of Chinese drywall in a property Defendants have demonstrated she does not own. Notably, a warranty deed dated Jan. 31, 2007 reflects that the property was conveyed by Majestic Land Holdings to Mercedes Gaspard alone. During Mercedes Gaspard's deposition, when asked why Nicole Gaspard was listed as a Plaintiff in the amended complaint filed on May 14, 2018, Mercedes Gaspard responded that because Nicole Gaspard's helping her. Mercedes Gaspard then confirmed that the house belongs to her. Further, Nicole Gaspard did not sign any of the documents required in the prosecution of the litigation, such as a Plaintiff Profile Form, which lists only Mercedes Gaspard as the Claimant and property owner. Mercedes Gaspard is listed as the sole owner in a Saint Lucie County Property Appraiser report, and the sole insured on a Renewal Declaration from United Property & Casualty Insurance Co. The Judge holds that Gaspard has not produced any evidence to rebut the claim that she does not own the affected property. Recognizing that an individual cannot recover for damage to property he does not own, the Judge concludes that Gaspard lacks standing to bring the instant claims. They must accordingly be dismissed. Based on the foregoing, Jude Fallon granted the Defendants' Motion to Dismiss Claims. A full-text copy of the District Court's July 31, 2020 Order & Reasons is available at https://tinyurl.com/y4tw7pfx from Leagle.com. MDL 2323: Langfitt Garner to Get 60% of Counsel Fees in NFL Suit ---------------------------------------------------------------- In the case, IN RE NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION. Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties, LLC, successor-in-interest to NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO Locks Law Firm v. Tamra Alexander Attorney Lien Dispute (Doc. No. 10684), Case No. 2:12-md-02323-AB, MDL No. 2323 (E.D. Pa.), Magistrate Judge David R. Strawbridge of the U.S. District Court for the Eastern District of Pennsylvania divided the atorneys' fee award between Locks Law Firm and Langfitt Garner PLLC, such that they receive 40% and 60% respectively, of the total fee (15% of the monetary award). Presently before the Court is the assertion of an Attorney Lien by Locks Law against the Award granted to Representative Claimant Tamra Alexander, on behalf of her husband, Settlement Class Member Kermit Alexander, in the litigation that became part of the class action. Locks Law seeks payment of attorneys' fees of up to as much as 10% of the Award that has been authorized for Mr. Alexander, its former client, pursuant to a contingency fee agreement ("CFA") that it entered into in an earlier phase of the litigation. By their current counsel, Langfitt Garner, the Alexanders challenge the Lien. Langfitt Garner also seeks approval of a 15% contingent fee for its work, which included securing a referral of Mr. Alexander to a different provider who certified a diagnosis of a more serious condition at an earlier date, leading to a larger monetary award than was initially contemplated when the case was handled by Locks Law. The parties consented to my resolution of this lien dispute. Mr. Alexander entered into a CFA with Locks Law on May 5, 2016 for litigation against the NFL for cognitive deficiencies resulting from injuries sustained while playing in the NFL. Under the terms of the fee agreement, if recovery were made by way of lawsuit or settlement, the Alexanders would pay 10% of the net recovery as the legal fee. The Alexanders would not owe a legal fee or expense if the firm made no recovery on his behalf by settlement or trial. Mr. Alexander had already been diagnosed with "dementia" when he engaged Locks Law. He sought evaluation and treatment for his memory problems and other symptoms at the Kaiser Riverside Medical Office when he was in his early 70s. A geriatrician and family medicine specialist who saw him for a consultation at Kaiser's Memory Clinic on Jan. 7, 2015, Palak Dave, M.D., was the first to diagnose dementia. Accordingly, after registering Mr. Alexander in the settlement claims portal on Feb. 8, 2017 and facing a deadline of Feb. 6, 2019 to file a pre-effective date claim, Locks Law wrote to Dr. Dave on Jan. 29, 2019 and asked her to complete a certification form required by the Settlement Claims Administrator. Unfortunately, she declined to do so. Without a certification form signed by Dr. Dave, Locks Law was left with no choice but to file a claim on behalf of Mr. Alexander on Feb. 5, 2019 without the requisite supporting materials. The claim sought an award for a Level 2.0 Neurocognitive Impairment diagnosis as of Oct. 24, 2018. As expected, the Claims Administrator notified Locks Law of deficiencies in the claim on April 29, 2019 and requested additional documentation. In the meantime, Locks Law had been working to obtain the necessary evaluations. In the midst of these efforts to obtain a neurologist's assessment, on June 7, 2019, Attorney Langfitt left Locks Law and set up a new firm, Langfitt Garner. The Alexanders were notified of the development and chose to follow him to Langfitt Garner. They entered into a CFA on June 20, 2019 that provided for a 15% contingency fee. In light of its termination, Locks Law promptly filed a Notice of Lien on June 22, 2019 seeking reasonable attorney's fees, plus expenses and costs, for its work on behalf of Mr. Alexander. Given the requirements of the 150-Mile Rule, Langfitt Garner sought out a Qualified MAF Physician in California to examine Mr. Alexander, interview Mrs. Alexander, and review earlier medical records. William Chow, M.D., evaluated Mr. Alexander on Sept. 25, 2019 and prepared his report on Sept. 27, 2019. He diagnosed Alzheimer's Disease and, based on his examination and review of Mr. Alexander's medical records, could date the onset of the condition to Dec. 9, 2014. Langfitt Garner submitted Dr. Chow's materials and certification form to the Claims Administrator as part of a new claim on Oct. 23, 2019. On Jan. 13, 2020, the Claims Administrator issued a Notice of Monetary Award, reflecting that Mr. Alexander qualified for an award based upon a diagnosis of Alzheimer's Disease and an onset consistent with the certification of Dr. Chow. The NFL did not appeal the decision. In light of the attorney liens and the contingency fee agreements of record, the Claims Administrator withheld from Mr. Alexander's award funds for payment of attorneys' fees in an amount equal to 22% of his Award, which reflects the presumptive cap on attorneys' fees imposed by the Court's April 5, 2018 Opinion and Order. Of the attorney fee withholding, a portion reflecting 5% of the Award was separately deposited into the Attorneys' Fees Qualified Settlement Fund ("AFQSF") pursuant to the Court's June 27, 2018 Order Regarding Withholdings for the Common Benefit Fund. Those funds may be distributed at a later date upon further order(s) of Judge Brody. The Claims Administrator also withheld the amount of costs asserted by Langfitt Garner in its April 27, 2020 Statement of Attorneys Fees and Costs The Court must determine the appropriate distribution for the attorney fees currently available for disbursement (representing 17% of Mr. Alexander's Award) and the allocation of those funds that are currently held in the AFQSF (representing 5% of his Award), if those funds, or a portion thereof, are distributed by the Court at a future date. Pursuant to a briefing schedule the Court issued through the Claims Administrator, and in accordance with the Lien Rules, both firms submitted simultaneous Statements of Dispute on April 27, 2020 concerning their entitlement to a fee in light of the other firm's claim to fees. They submitted Responses to the other's filings on May 12 and 15, 2020. Pursuant to Lien Rule 17, the Record of Dispute was then referred to the Court for resolution. As the Court set out in a Report and Recommendation filed on Jan. 7, 2019, Magistrate Judge Strawbridge's evaluation of these positions involves a consideration of the CFA between the Alexanders and former counsel and an assessment of the reasonableness of the requested fees of both law firms in light of the analysis set out by the Third Circuit's McKenzie Constr., Inc. v. Maynard decision. The approach obligates him to scrutinize the reasonableness of the CFAs at the time of the signing of the contracts and then determine whether the circumstances compel a different evaluation of the agreement at the time each lienholder seeks enforcement. He then examines the results Mr. Alexander obtained, the quality of the representation provided by Locks Law, and most importantly the extent to which the efforts of Locks Law substantially contributed to the result. As part of that analysis, the Magistrate necessarily considers the role of current counsel, Langfitt Garner. Ultimately, the Magistrate Judge concludes that both firms are entitled to recoup attorney's fees and costs but only such that their fees, when aggregated, do not exceed 15% of Mr. Alexander's total award, and with Locks Law and Langfitt Garner sharing the fee on a 40%-60% ratio. The Magistrate Judge opines that Mr. Alexander received an award under the Agreement that certainly can be considered favorable for someone of his advanced age. It was a meaningful development in the case, which was primarily handled by the same personnel that originated at Locks Law and moved to Langfitt Garner. It is apparent, however, that little was done on Mr. Alexander's matter for a period of time at Locks Law such that receipt of his award was unnecessarily delayed. Given the question of the quality of work in the earlier phase of representation, and the significance of the later opinion of Dr. Chow to the favorable award that Langfitt Garner secured for Mr. Alexander from its claim submission of Oct. 23, 2019, the Magistrate approves each firm's fee request in part but allocate the larger share to Langfitt Garner. Both Locks Law and Langfitt Garner agreed to represent Mr. Alexander for less than the maximum fee authorized to IRPA counsel in the litigation. After Locks was retained with a 10% contingency fee, its personnel did little over a period of about two years to advance his claim. When Mr. Alexander followed Attorney Langfitt from Locks Law to Langfitt Garner in 2019, he obligated himself to pay a 15% fee. The Magistrate Judge finds that number to fairly reflect what should be the total fee divided between the two firms in the case. The Magistrate Judge concludes that a fair resolution of the dispute is to divide the fee between Locks Law and Langfitt Garner, such that they receive 40% and 60% respectively, of the total fee (15% of the monetary award). These amounts must be reduced by the Common Benefit Fee deduction currently applicable to all Awards. Both firms are also entitled to the costs asserted. The balance of funds withheld by the Claims Administrator for the counsel fees will be payable to the Alexanders in accordance with all other applicable liens and the terms of the Settlement Agreement. A full-text copy of the District Court's July 31, 2020 Memorandum Opinion is available at https://tinyurl.com/y499btrn from Leagle.com. MICHIGAN: Two Classes of Non-citizen Detainees in Malam Certified ----------------------------------------------------------------- In the case, Janet Malam, Petitioner-Plaintiff, and Qaid Alhalmi, et al., Plaintiff-Intervenors, v. Rebecca Adducci, et al., Respondent-Defendants, Case No. 20-10829 (E.D. Mich.), Judge Judith E. Levy of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Plaintiffs' motion for class certification. The Plaintiffs in the case are all non-citizens subject to U.S. Immigration and Customs Enforcement ("ICE") custody in detention at the Calhoun County Correctional Facility. On March 30, 2020, Petitioner Malam filed an Emergency Petition for Writ of Habeas Corpus challenging her continued detention at the Calhoun County Correctional Facility. On April 3, 2020, the Court allowed Plaintiff-Intervenors Amer Toma and Ruby Briselda Escobar to intervene. On April 26, 15 named Plaintiffs filed an amended class action complaint. On June 5, 2020, the Court granted the Plaintiffs leave to amend their complaint and to add seven additional named Plaintiffs. The Court has issued five preliminary injunctions in the case granting relief to 13 civil detainees. Separately, it granted a preliminary injunction to Petitioner Fawzi Zaya, a noncitizen who similarly was detained by ICE at the Calhoun County Correctional Facility. Petitioner Zaya raises the same claims and seeks the same relief as the proposed habeas litigation group in the instant case. The Plaintiffs' second amended petition for writ of habeas corpus and complaint for declaratory and injunctive relief brings three counts. First, on behalf of all named Plaintiffs and the proposed class, the Plaintiffs claim that the Defendants' continued detention of the Plaintiffs and the proposed class members under the current conditions violates their due process rights under the Fifth Amendment. Second, on behalf of the 13 named Plaintiffs and the proposed subclass, the Plaintiffs claim that given the substantial risk of serious illness or death from COVID-19, there are no conditions of confinement that would permit the safe detention (or redetention) of the 13 named Plaintiffs and the subclass, and their continued detention is not reasonably related to, and excessive in relation to, the government's interest in ensuring their availability for removal. The Plaintiffs argue that the Fifth Amendment thus requires release of the 13 named Plaintiffs and the subclass. Third, the Plaintiffs claim that the removal of Plaintiffs Alhalmi, Baroi, Escobar, Ley Santana, Rodriguez Salabarria and Toma is not significantly likely in the reasonably foreseeable future. They argue that the Plaintiffs' detention is therefore not authorized by statute and they are entitled to immediate release under orders of supervision. On June 5, 2020, the Court established a case management plan in which it set deadlines for the Plaintiffs' motion for class certification. On June 14, 2020, the Plaintiffs filed the motion to certify a class and subclass of noncitizen immigration detainees at the Calhoun County Correctional Facility. The Defendants responded on June 26, 202, and the Plaintiffs replied on July 5, 2020. The Plaintiffs' proposed subclass poses a more complicated legal question with respect to certification. They suggest that under Federal Rule of Civil Procedure 23(d), the Court may create a subclass as a case management device that need not independently comply with all of the requirements of Rule 23(a) and (b). But the Plaintiffs proposed subclass -- if it is to be certified -- will proceed under a different jurisdictional source than its umbrella class. Specifically, the Court has habeas jurisdiction over the Plaintiffs' second claim but not their first, and accordingly the subclass exists as a distinct habeas case in the hybrid action. The subclass therefore cannot piggyback off a decision to certify the full class. Instead, the Court will consider certification of the Plaintiffs' proposed subclass as a distinct habeas litigation group. With respect to their first count, the Plaintiffs seek to certify a class of all noncitizens who are detained in Immigration and Customs Enforcement custody at the Calhoun County Correctional Facility. For their second claim, they move to certify a habeas litigation group of all noncitizens who are detained in ICE custody in the Calhoun County Correctional Facility, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19. Judge Levy finds that the class satisfies Rule 23 requirements and that Rule 23 analysis favors certifying the habeas litigation group. The Plaintiffs' proposed class satisfies Rule 23's numerosity, commonality, typicality, and adequacy requirements and meets the standard for collective litigation set forth by Rule 23(b)(2). She therefore grants the Plaintiffs' motion. The Plaintiffs also seek certification of a subclass of all noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19. Because the proposed subclass proceeds under a different jurisdictional source than the certified class, the Judge treats the Plaintiffs' motion for subclass certification as one for certification of a habeas litigation group. She looks to the Rule 23 requirements to determine whether an analogous procedure would help achieve the Court's mandate to summarily hear and determine the facts, and dispose of the matter as law and justice require. The Judge finds a Rule 23(b)(2) class action to be an appropriate framework from which it can analogize proceedings to govern the habeas litigation group so as to best summarily hear and determine the facts, and dispose of the matter as law and justice require. Next, on the basis of both parties' vigorous advocacy to date and the information provided by the Plaintiffs regarding the counsel's qualifications, the Judge finds that the Plaintiffs' counsel has done a great deal of work in identifying and investigating potential claims, has significant experience in handling class actions, has a deep knowledge of the applicable law, will commit sufficient resources to representing the class, and will fairly and adequately represent the interests of the class. Accordingly, the Judge appoints the American Civil Liberties Union Fund of Michigan, the American Civil Liberties Union Foundation, the ACLU Foundation Immigrants' Rights Project, and Paul, Weiss, Rifkind, Wharton & Garrison LLP to be class and habeas litigation group counsel. Finally, the Defendants argue in a footnote that the Court should amend the class and habeas litigation group definitions to exclude Calhoun detainees who brought individual habeas petitions that were denied. These detainees get the chance to appeal their denials. Having been denied on their individual claims, they should not be granted yet another chance by joining a class action. The Defendants neither develop nor offer legal support for its argument; the Judge declines to limit the class definitions at this time. While the Defendants' argument is likely inapplicable to the class, which proceeds under federal question jurisdiction, they may formally move to limit the class or habeas litigation group definition. For the reasons stated, Judge Levy concludes that the Plaintiffs have shown that both the general class and habeas litigation group may proceed on a collective basis. With respect to the Plaintiffs' first claim, Judge Levy certified a class of all noncitizens who are detained in ICE custody at the Calhoun County Correctional Facility. With respect to the Plaintiffs' second claim, she certified a habeas litigation group of all noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more medical risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19. A full-text copy of the District Court's July 31, 2020 Opinion is available at https://tinyurl.com/y59sj36a from Leagle.com. MIELE INCORPORATED: Williams Suit Moved From S.D.N.Y. to N.D. Cal. ------------------------------------------------------------------ The case styled PAMELA WILLIAMS, on behalf of herself and all others similarly situated v. MIELE, INCORPORATED, Case No. 1:20-cv-04794, was transferred from the U.S. District Court for the Southern District of New York to the U.S. District Court for the Northern District of California on October 22, 2020. The Clerk of Court for the Northern District of California assigned Case No. 3:20-cv-07329-LB to the proceeding. The case arises from the Defendant's alleged violations of the Americans with Disabilities Act and the New York City Human Rights Law by failing to design, construct, maintain, and operate its Web site, www.mieleusa.com, to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. Miele, Incorporated is a home appliance company based in New Jersey. [BN] The Plaintiff is represented by: David P. Force, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: dforce@steinsakslegal.com MONDELEZ GLOBAL: Court Dismisses Harris Suit with Prejudice ----------------------------------------------------------- In the case, CHARLES HARRIS, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. MONDELEZ GLOBAL LLC, Defendant, Case No. 19-cv-2249 (ERK) (RER) (E.D. N.Y.), Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York granted the Defendant's motion to dismiss with prejudice. The Purchasers of Oreo cookies allege that the manufacturer has misleadingly stated on the front packaging label that the cookies are "Always Made With Real Cocoa," even though the cocoa has been refined through an alkalizing process. They claim that the addition of alkali diminishes the quality and taste of the cocoa and that a reasonable consumer would understand "real cocoa" to refer to cocoa in an "unadulterated, non-artificially processed form." They further allege that Oreos are sold at a price premium as a result of the misleading representation. The Plaintiffs are consumers from twelve states who purchased the Defendant's well-known Oreo cookies. They allege that they were misled by the representation on the Oreos' front label that the cookies are "Always Made With Real Cocoa." Specifically, they claim that the text is misleading because the cocoa used in the cookies is "highly processed and modified" with alkali. In Plaintiffs' view, the Defendant's failure to caveat that the cocoa is processed with alkali is misleading to a reasonable consumer. Rather, they allege that reasonable consumers expect 'real cocoa' to be a quality of cocoa that is not processed with alkali. As the Plaintiffs explain, cocoa powder can be mixed with alkali ingredients to make the cocoa less acidic, which makes the taste of the cocoa milder. They claim that the representation 'real cocoa' is false, deceptive and misleading because consumers expect 'real cocoa' to indicate a higher quality cocoa than had the ingredient merely been accurately identified as 'cocoa.' Additionally, they allege that unalkalized cocoa is commercially available and has certain health benefits. The Plaintiffs assert claims under statutes from 40 states and the District of Columbia prohibiting deceptive or misleading business practices, as well as a claim for unjust enrichment. They have withdrawn their claims for fraud, negligent misrepresentation, and breach of warranty. They seek damages and injunctive relief on behalf of a putative nationwide class and on behalf of subclasses for the states of each named Plaintiff. Although the Plaintiffs allege violations of consumer protection statutes from 40 states and the District of Columbia, the parties agree that the critical issue for resolving the motion is whether a reasonable consumer would be misled by the Defendant's statement that its Oreos are "Always Made With Real Cocoa." The Plaintiffs argue that reasonable consumers are misled by the claim that the cookies are made with "real" cocoa and therefore would not expect that the cocoa has been adulterated, processed with alkali, or modified from its real nature. Judge Korman dismisses the Plaintiffs' claims for failure to allege a statement that would mislead a reasonable consumer. The Judge holds that it is not misleading for the Defendant to represent that its Oreos are made with "real" cocoa when they in fact contain cocoa. The crux of the Plaintiffs' claim is not that the label misrepresents the quantity or proportion of cocoa; they allege that the cocoa it contains is not "real" in light of the application of alkali. The Plaintiffs do not allege, for example, that the amount of cocoa is de minimis relative to the amount of alkali. Their claims are trained on whether the product contains cocoa that is real, and the Oreos indisputably do contain cocoa, along with other ingredients. There is no 'only' or 'exclusively' modifier before the phrase "real cocoa." In that context, reasonable consumers would not expect, upon learning that the Oreos contain cocoa, that the cocoa is present in a particular form or not mixed with other ingredients. Because the Plaintiffs' unjust enrichment claim is premised on the same theory of misrepresentation the Judge has rejected, that claim likewise fails. The claim is pleaded in a single sentence alleging that Defendant was unjustly enriched because the Products were not as represented and expected. Where a deceptive trade practices claim fails for failure to allege deception, an unjust enrichment claim fails, too. The Plaintiffs request leave to amend in the event the Defendant's motion is granted, but offer no explanation of what new allegations might be added. A plaintiff need not be given leave to amend if it fails to specify how amendment would cure the pleading deficiencies in its complaint. Because the Plaintiffs' substantive problem could not be cured through better pleadings, the Judge denies leave to amend as futile. Based on the foregoing, Judge Korman granted the Defendant's motion to dismiss with prejudice. A full-text copy of the Court's July 28, 2020 Memorandum & Order is available at https://tinyurl.com/y3ovpf59 from Leagle.com. MONTANA: Summary Judgment Order in Brooke Suit Affirmed ------------------------------------------------------- In the case, NICK BROOKE, ETHAN LERMAN, and BRIAN WEST, individually and on behalf of all others similarly situated, Petitioners and Appellants, v. STATE OF MONTANA, STEVE BULLOCK, in his official capacity as Governor; and RHONDA SCHAFFER, in her official capacity as the Director of the Office of the State Public Defender, Respondents and Appellees, Case No. DA 19-050 (Mont.), a five-judge panel of the Supreme Court of Montana affirmed the First Judicial District Court's order (i) granting the State's motion for summary judgment, and (ii) denying the Appellants' motion for partial summary judgment. On May 10, 2018, the Appellants filed a class action complaint against the State of Montana, Gov. Steve Bullock, and the director of the Office of the State Public Defender ("OPD") Rhonda Schaffer seeking declaratory relief, injunctive relief, and damages for breach of contract and violation of the Contract Clause, Article II, Section 31, of the Montana Constitution. The Appellants are attorneys who contract with OPD to provide legal services for indigent clients. They represent clients for whom OPD employees cannot provide legal representation due to conflict, lack of resources, or other reasons. To become an OPD contract attorney, a licensed Montana attorney signs a contract, referred to as a Memorandum of Understanding ("MOU"), with OPD. After the MOU is signed by the attorney and approved by a representative of OPD, OPD assigns cases to the attorney and pays the attorney in accordance with a fee schedule attached to the MOU. OPD relies on biennial legislative appropriations to fund its operations and fulfill its mission of affording counsel to indigent criminal defendants and others entitled to legal counsel at public expense. Until June 30, 2019, OPD operated on appropriations made during the 2017 legislative session. OPD's budget for that biennium was $32 million. OPD determined it was facing a shortfall of over $7 million if it did not cut costs. On Jan, 29, 2018, OPD notified its contract attorneys by email that it proposed to reduce rates for all contracted services effective March 1, 2018. It also proposed to reduce the hourly rate for travel time from $62 to $20. OPD invited public comment and held two public meeting. On March 22, 2018, OPD announced the final rate changes and notified contract attorneys by email. It reduced the hourly rate of pay for contracted legal services from $62 to $56 per hour, nearly a 10% reduction. Pay for case-related travel time was reduced from $62 to $45 per hour. The reduced rates were effective for any services rendered on or after April 1, 2018. Each of the Appellants had existing cases at the time of OPD's rate changes. The Appellants continued their existing cases despite the newly reduced rates. On Oct. 17, 2018, the State filed a motion for summary judgment based on legal interpretation of the MOU under contract law. The Appellants filed a cross-motion for partial summary judgment asking the court to rule, as a matter of law, that the Defendants are liable for breach of contract or violation of the Contract Clause. On June 27, 2019, the District Court granted the State's summary judgment motion, finding that the OPD did not breach its contract since the MOU specifically identified that the fee arrangement was subject to change by the Director upon notice. Regarding the Contract Clause claim, it found OPD had administrative discretion to reduce the rates to address budget issues since the Clause regulates legislative action, not the decisions of administrators, and OPD's decision was not compelled by the Legislature, citing Smith v. Sorensen. The Appellants appeal. The Court addresses the following issue on appeal: Whether a provision in the Office of the State Public Defender's contract with private attorneys specifying that hourly compensation rates can be unilaterally changed by the State permits prospective changes to a contract attorney's compensation rate for existing cases. The Appellants contend OPD breached its contract by failing to pay them the hourly rate in effect at the time a case was accepted through the duration of representation on the case. They argue that the MOU's language regarding compensation is ambiguous and that by failing to pay them the compensation rate that was in effect at the time they agreed to take on an assigned case, OPD breached the contract. They also argue the District Court's interpretation of the MOU renders it illusory since it gives the Director unlimited discretion to alter compensation rates. Alternatively, th eAppellants argue that the District Court's interpretation of the MOU results in giving the Director of OPD unlimited discretion to modify the compensation rates rendering its promise to pay contract attorneys illusory. The State Supreme Court concludes that the District Court did not err in granting the State's motion for summary judgment. Nothing in the MOU indicates that the compensation rates are locked in place for the duration of the contract attorney's representation. The MOU's language clearly provides for prospective modification of compensation rates at the OPD Director's discretion. The discretion to change the compensation rates is limited by both Montana statute, Section 47-1-121, MCA, and the implied covenant of good faith and fair dealing. However, budget shortfalls compelling contract rate changes violates neither. For these reasons, State Supreme Court affirmed. A full-text copy of the Court's July 28, 2020 Opinion is available at https://tinyurl.com/y5cwo82t from Leagle.com. Sean M. Morris, Jesse C. Kodadek, Worden Thane P.C., Missoula, Montana, for Appellants. Timothy C. Fox, Montana Attorney General, Christopher D. Abbott, Assistant Attorney General, Agency Legal Services Bureau, Helena, Montana. Raphael J.C. Graybill, Special Assistant Attorney General, Chief Legal Counsel, Office of the Governor, Helena, Montana. Michael P. Manion, Special Assistant Attorney General, Chief Legal Counsel, Department of Administration, Helena, Montana, for Appellees. MOUNTAIRE FARMS: Interlocutory Appeal Cert. in Cuppels Suit Refused ------------------------------------------------------------------- In the case, STATE OF DELAWARE, DEPARTMENT OF NATURAL RESOURCES & ENVIRONMENTAL CONTROL, Third Party Petitioner Below, Appellant, v. GARY and ANNA-MARIE CUPPELS, Plaintiffs Below, Appellee, Case No. 212, 2020 (Del.), Judge Gary F. Traynor of the Supreme Court of Delaware refused the State of Delaware Department of Natural Resources & Environmental Control's application for certification of an interlocutory appeal. The Appellant-third party petitioner, the Department of Natural Resources & Environmental Control (DNREC) has petitioned the Court under Supreme Court Rule 42 to accept an interlocutory appeal from a Superior Court opinion and order, dated April 14, 2020, denying its motion to quash subpoenas served by the Plaintiffs-Appellees, Gary and Anna-Marie Cuppels. The case is one of several cases arising from Defendant-Appellee Mountaire Farms of Delaware, Inc.'s disposal of waste at its poultry processing plant in Millsboro. In the class-action lawsuit, the Cuppels allege that they suffered property damage and personal injuries as a result of Mountaire Delaware's improper and unlawful waste disposal. The Cuppels have asserted tort claims against Mountaire Delaware, Mountaire Corp., and Mountaire Farms Inc. The other cases were filed by DNREC. In DNREC v. Mountaire Farms of Delaware, Inc., C.A. No. 18-838 (D. Del.) ("Federal DNREC Action"), DNREC alleged that Mountaire Delaware violated federal environmental laws in its disposal of waste. DNREC informed the District Court in late 2019 that DNREC and Mountaire had executed a settlement agreement and filed the agreement for entry as a consent decree. The Cuppels, who were permitted to intervene in the Federal DNREC Action, object to the proposed consent decree. In DNREC v. Mountaire Farms of Delaware, Inc., C.A. No. S18M-06-002 ("State DNREC Action"), DNREC alleged that Mountaire Delaware violated State environmental laws and permits in its disposal of waste. DNREC filed a consent decree with the complaint. The Cuppels moved to intervene in the State DNREC Action, but the Superior Court stayed that case pending resolution of the Federal DNREC Action without deciding the motion to intervene. In the course of the litigation, the Cuppels served a subpoena upon DNREC for all documents from July 1, 2017 to the present, in the possession or control of five DNREC employees, that related to the Millsboro plant's wastewater, sludge facilities, groundwater, and nearby wells. They also served subpoenas for depositions of the five DNREC employees named in the document subpoena. DNREC filed motions to quash the subpoenas or in the alternative for a protective order. In the motions, DNREC argued that: (i) it had already produced many documents from before July 1, 2017 in response to requests that the Cuppels made under the Delaware Freedom of Information Act; (ii) the subpoenas sought investigatory files and information protected from disclosure by Section 10002(l)(3) and D.R.E. 508(b); (iii) it should not be compelled to produce information protected by the attorney-client privilege, work product doctrine, or D.R.E. 408; and (iv) the subpoena was unduly burdensome to DNREC. The Cuppels opposed the motions. The Superior Court denied the motions. On April 14, 2020, the Superior Court issued an opinion further explaining its reasoning for the denial of the motions. On June 29, 2020, DNREC filed an application for certification of an interlocutory appeal. Mountaire supported the application. The Cuppels opposed the application. On July 14, 2020, the Superior Court denied the application for certification. In denying the application for certification, the Superior Court questioned whether a non-party may pursue an interlocutory appeal, but proceeded to consider the Rule 42 criteria. It acknowledged that the discoverability of the subpoenaed information was an important and substantial issue to DNREC, but expressed concern that appellate review would unduly delay the litigation to the detriment of the parties. As to the Rule 42(b)(iii) criteria, the Superior Court concluded that interlocutory review was not in the interests of justice because it would result in substantial and serious delay for the parties to the litigation. Applications for interlocutory review are addressed to the sound discretion of the Court. Even assuming a non-party may pursue an interlocutory appeal, Judge Traynor has concluded that the application for interlocutory review does not meet the strict standards for certification under Supreme Court Rule 42(b). Exceptional circumstances that would merit interlocutory review of the Superior Court's interlocutory opinion do not exist in the case, and the potential benefits of interlocutory review do not outweigh the inefficiency, disruption, and probable costs caused by an interlocutory appeal. For these reasons, Judge Traynor refused the interlocutory appeal. A full-text copy of the Court's July 28, 2020 Order is available at https://tinyurl.com/y489ts2x from Leagle.com. MRS BPO: Faces Pugh TCPA Suit Over Unsolicited Telephone Calls -------------------------------------------------------------- STEVEN PUGH, individually and on behalf of all others similarly situated, Plaintiff v. MRS BPO, LLC d/b/a MRS ASSOCIATES, DOES 1 through 10, inclusive, Defendants, Case No. 3:20-cv-02075-MMA-LL (S.D. Cal., October 21, 2020) brings this class action complaint against the Defendants for their alleged negligent and willful violations of the Telephone Consumer Protection Act. The Plaintiff claims that he was contacted by the Defendants on his cellular telephone (619) 453-2318 beginning during or around June 2019 in an attempt to sell or solicit its services. The Plaintiff contends that he did not provide the Defendants with his prior express consent to be contacted using an automatic telephone dialing system or an "artificial or prerecorded voice." According to the complaint, the Plaintiff and other similarly situated persons were harmed by the unlawful conduct of the Defendants causing them to incur certain charges or reduced telephone time for which they had previously paid, and invasion of their privacy. MRS BPO, LLC is a collections company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com NEWREZ LLC: Court Denies Dismissal of Labrecque RESPA Suit ---------------------------------------------------------- In the case, Richard J. Labrecque, Plaintiff, v. NewRez LLC, Defendant, Case No. CV-19-00465-TUC-RCC (EJM) (D. Ariz.), Judge Raner C. Collins of the U.S. District Court for the District of Arizona denied the Defendant's Motion to Dismiss. The Plaintiff alleges that the Defendant was required to pay Plaintiff's property taxes from Plaintiff's escrow account. The Defendant did not pay in a timely manner, causing late charges to accrue. Despite repeated assurances that the Plaintiff would not be responsible for the incurred fees, the Defendant paid the overdue fees out of his escrow funds. The Plaintiff seeks to recover for the erroneously charged funds; for himself and for others similarly situated. Plaintiff alleges the Defendant violated the Real Estate Settlement Procedures Act ("RESPA"), raises allegations of unjust enrichment and conversion, and seeks declaratory judgment. On June 16, 2020, Magistrate Judge Eric J. Markovich issued a Report and Recommendation ("R&R") in which he recommended the Court deny the Defendant's Motion to Dismiss. Judge Markovich notified the parties they had 14 days from the date of the R&R to file objections and an additional 14 days to file a response. The Defendant filed an objection to the R&R, and the Plaintiff a response. The Defendant does not object to the Magistrate Judge's statement of facts. The Defendant first argues that the Plaintiff's claim for a violation of the RESPA should be dismissed because the RESPA does not permit a private right of action. It believes that the Magistrate Judge erred and expanded the permissible actions under Section 2605 beyond those which were intended and interpreted in case law. It points to several cases that permit a private right of action under other circumstances but uses these cases to support its contention that subsection (g) does not provide for such relief. Judge Collins finds it incorrect. The Judge says while the cited case law may directly address other instances in which a private action may proceed, the cases also suggest that a suit under any subsection of Section 2605 is permissible, and they do not specifically preclude a right of action under subsection (g). The Defendant's argument is not persuasive, and Judge Collins agrees with the Magistrate Judge that Section 2605 is "broadly actionable" and the plain language permits a private right of action under 12 U.S.C. Section 2605(g). Because he agrees that a private right exists under RESPA, like the Magistrate Judge, Judge Collins concludes that granting a motion to dismiss the Plaintiff's attempt to obtain declaratory relief is inappropriate. Judge Collins also finds that the Plaintiff has a legal remedy under RESPA, therefore the Plaintiff cannot also seek relief under a theory of unjust enrichment. Therefore, this count will be dismissed. The Defendant has not challenged the Magistrate Judge's determination that the Plaintiff has pleaded a viable allegation of conversion. Judge Collins has reviewed the Magistrate Judge's analysis and finds that the conversion claim should proceed. First, Judge Collins finds that the Plaintiffs do not dispute that the Court has no general jurisdiction over the Defendants. Furthermore, it appears that the only connection between the Defendant's actions and putative non-resident Plaintiff's injury is the allegation that the Arizona resident Plaintiffs suffered similar injury in this state. At a glance, it appears the Court does not have specific jurisdiction over the Defendant as to the non-resident Plaintiffs. Second, Judge Collins cannot find that the Magistrate Judge erred in his determination that the circuit has repeatedly declined to extend BMS to class actions with unnamed plaintiffs and in the instance the Court could exercise jurisdiction over Defendant as to the putative, non-resident, class action claims. Courts in the Ninth Circuit do not support extending BMS to class actions. Furthermore, most of the Defendant's citations are drawn from the Northern District of Illinois and build off of one another, are from a district court's dissent, or constitute dicta. Judge Collins will not, therefore, strike to class action allegations and dismissal is inappropriate at this juncture. Finally, the Defendant also argues that the Magistrate Judge erroneously combined the standards for a motion to dismiss with the standards for class certification when deciding not to strike the nationwide class action claims. Judge Collins disagrees. Judge Collins holds that the Complaint's class allegations request that the class action members include all persons with loans serviced by Shellpoint in which Shellpoint within the applicable limitations period failed to make timely payment of taxes from their non-delinquent escrow account." In general, for class certification, a litigant must present claims that share numerosity, commonality, typicality, adequacy of representation, predominance, and superiority of class action over individual actions. Based on the allegations, and taking the facts in favor of the Plaintiff, the numerous putative class litigants have a common claim, the Plaintiff may be able to adequately represent the others' interests, and the simplicity of the allegations may be more easily handled through a class action. However, Judge Collins agrees with the Magistrate Judge; it is too soon to tell. Further discovery is necessary to provide the Plaintiff with a fair chance at presenting the class allegations and for the Defendants to argue against. Striking the class allegations and dismissing the putative Plaintiffs is premature. Accordingly, Judge Collins adopted the R&R. Judge Collins denied the Motion to Dismiss and dismissed the Plaintiff's unjust enrichment claim. All other claims for relief may proceed. The matter is referred to Magistrate Judge Eric J. Markovich for all pretrial proceedings and a report and recommendation in accordance with 28 U.S.C. Section 636(b)(1), Fed. R. Civ. P. 72, and 72.2. of the Rules of Practice of the U.S. District Court for the District of Arizona. A full-text copy of the Court's July 28, 2020 Order is available at https://tinyurl.com/y66bt72j from Leagle.com. NIKOLA CORP: Kessler Topaz Reminds of Nov. 16 Deadline ------------------------------------------------------ The law firm of Kessler Topaz Meltzer & Check, LLP reminds Nikola Corporation (NASDAQ: NKLA, NKLAW) ("Nikola") investors that a securities fraud class action lawsuit has been filed in the United States District Court for the District of Arizona against Nikola on behalf of those who purchased or otherwise acquired Nikola securities between March 3, 2020 and September 20, 2020, inclusive (the "Class Period"). Important Deadline Reminder: Investors who purchased or otherwise acquired Nikola securities during the Class Period may, no later than November 16, 2020, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this litigation please click https://www.ktmc.com/nikola-corporation-class-action?utm_source=PR&utm_medium=link&utm_campaign=nikola. According to the complaint, Nikola operates as an integrated zero emissions transportation systems provider, which designs and manufactures battery-electric and hydrogen-electric vehicles, electric vehicle drivetrains, vehicle components, energy storage systems, and hydrogen fueling station infrastructure. The merger of VectoIQ and Nikola closed on June 3, 2020. The Class Period commences on March 3, 2020 when Nikola issued a press release entitled, "Nikola Corporation, a Global Leader in Zero Emissions Transportation Solutions, to Be Listed on NASDAQ Through a Merger with VectoIQ." In connection with the merger announcement, Nikola released an investor presentation on March 3, 2020, which touted Nikola founder and Executive Chairman Trevor R. Milton's ("Milton") experience in the clean energy and technology field and Nikola's hydrogen production capabilities. The complaint alleges that, on September 10, 2020, before market hours, Hindenburg Research published a report describing, among other things, how: (i) Nikola claims to design key components in house, but they appear to simply be buying or licensing them from third parties; (ii) Nikola has not produced hydrogen; (iii) a spokesman for Powercell AB, a hydrogen fuel cell technology company that formerly partnered with Nikola, called Nikola's battery and hydrogen fuel cell claims "hot air"; (iv) Nikola staged a "test" video for its Nikola Two (a prototype truck); (v) some of Nikola's team, including Milton, are not experts and do not have relevant experience; and (vi) Nikola did not have five Tre trucks completed. Following this news, shares of Nikola fell $10.24, or 24%, over the next two trading days, to close at $32.13 per share on September 11, 2020. Then, on September 15, 2020, before trading hours, Hindenburg Research published another report, focused on Nikola's responses and nonresponses to its initial report, entitled "We View Nikola's Response As a Tacit Admission of Securities Fraud." Following this news, shares of Nikola fell $2.96, or 8%, to close at $32.83 per share on September 15, 2020. Finally, on September 20, 2020, Nikola issued a press release entitled "Nikola Board of Directors Announces Leadership Transition: Trevor Milton Steps Down as Executive Chairman; Stephen Girsky Appointed Chairman of the Board." Following this news, the price of Nikola's shares fell in pre-market trading on September 21, 2020, further damaging investors. The complaint alleges that throughout the Class Period, the defendants made false and/or misleading statements and/or failed to disclose that: (1) VectoIQ did not engage in proper due diligence regarding its merger with Nikola; (2) Nikola overstated its "in-house" design, manufacturing, and testing capabilities; (3) Nikola overstated its hydrogen production capabilities; (4) as a result, Nikola overstated its ability to lower the cost of hydrogen fuel; (5) Milton tweeted a misleading "test" video of the Nikola Two truck; (6) the work experience and background of key Nikola employees, including Milton, had been overstated and obfuscated; (7) Nikola did not have five Tre trucks completed; and (8) as a result, the defendants' public statements were false and/or misleading at all relevant times. If you wish to discuss this securities fraud class action lawsuit or have any questions concerning this notice or your rights or interests with respect to this litigation, please contact Kessler Topaz Meltzer & Check (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (844) 877-9500 (toll free) or (610) 667–7706, or via e-mail at info@ktmc.com. Nikola investors may, no later than November 16, 2020, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. [GN] NIKOLA CORPORATION: Johnson Fistel Reminds of Nov. 16 Deadline -------------------------------------------------------------- Shareholder rights law firm Johnson Fistel, LLP reminds investors that a class action lawsuit has been filed against Nikola Corporation ("Nikola or the "Company") (NASDAQ: NKLA) on behalf of all purchasers of common stock during the period between March 3, 2020 and September 15, 2020, inclusive (the "Class Period"). If you wish to serve as a lead plaintiff, you must move the Court no later than November 16, 2020. If you want to discuss this action or have any questions concerning this notice, please contact lead analyst Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number. The complaint alleges that during the Class Period, defendants throughout the Class Period made false and misleading statements and failed to disclose that: (1) VectoIQ did not engage in proper due diligence regarding its merger with Nikola; (2) Nikola overstated its "in-house" design, manufacturing, and testing capabilities; (3) Nikola overstated its hydrogen production capabilities; (4) as a result, Nikola overstated its ability to lower the cost of hydrogen fuel; (5) Nikola founder and Executive Chairman, Trevor Milton, tweeted a misleading "test" video of the Company's Nikola Two truck; (6) the work experience and background of key Nikola employees, including Mr. Milton, had been overstated and obfuscated; (7) Nikola did not have five Tre trucks completed; and (8) as a result, defendants' public statements were materially false and misleading at all relevant times. According to the suit, these true details were disclosed by a market research firm. On September 14, 2020, media outlets reported Nikola is facing a probe by the SEC and the DOJ. Then on September 20, 2020, Nikola announced that Trevor Milton, its founder stepped down as executive chairman. About Johnson Fistel Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. For more information about the firm and its attorneys, please visit http://www.johnsonfistel.com.Attorney advertising. Past results do not guarantee future outcomes. Jim Baker Johnson Fistel, LLP Tel No: 619-814-4471 E-mail: jimb@johnsonfistel.com [GN] NMG LONG: Faces Jones TCPA Suit Over Unsolicited Text Messages -------------------------------------------------------------- ANGELA JONES, individually and on behalf of all others similarly situated, Plaintiff v. NMG LONG BEACH, LLC d/b/a Showgrow, a California Limited Liability Company, Defendant, Case No. 2:20-cv-09595 (C.D. Cal., October 20, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Telephone Consumer Protection Act. According to the complaint, the Plaintiff has been receiving numerous telemarketing text messages to his cellular telephone number ending in 0844 from the Defendant over the past two years. The Defendant purportedly used an automatic telephone dialing system in transmitting the telemarketing text messages without obtaining the Plaintiff's express written consent to be contacted using an ATDS. NMG Long Beach, LLC sells cannabis and cannabis product. [BN] The Plaintiff is represented by: Scott Edelsberg, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Tel: (305) 975-3320 E-mail: scott@edelsberglaw.com NORTH CENTRAL: Compton Sues Over Drivers' Unreimbursed Expenses --------------------------------------------------------------- MICHAEL DEREK COMPTON, individually and on behalf of other similarly situated persons, Plaintiff v. NORTH CENTRAL VIRGINIA RESTAURANTS, INC. d/b/a "Papa John's Pizza," Defendant, Case No. 5:20-cv-00073-TTC (W.D. Va., October 19, 2020) is a collective action complaint brought against the Defendant for its alleged flawed reimbursement policy in violation of the Fair Labor Standards Act. The Plaintiff was hired by the Defendant as a delivery driver from about August 2019 to September 2020 at its Papa John's stores in Waynesboro, Virginia and Stanton, Virginia. According to the complaint, the Defendant required the Plaintiff and other similarly situated delivery drivers to maintain and pay for safe, legally-operable, and insured automobiles when delivering pizza and other food items. As a result, the Plaintiff and other similarly situated delivery drivers have incurred work-related expenses that include gasoline, vehicle parts and fluids, repair and maintenance services, insurance, depreciation, and other automobile expenses. The Defendant, however, employed a reimbursement policy which reimburses delivery drivers on a per-delivery basis resulting in a per-mile reimbursement far below the Internal Revenue Service business mileage reimbursement rate or a much less than a reasonable approximation of its delivery drivers' automobile expenses. North Central Virginia Restaurants, Inc. operates approximately 22 Papa John's franchise stores in Virginia, Maryland and West Virginia. [BN] The Plaintiff is represented by: Cary Powell Moseley, Esq. LAW OFFICES OF CARY POWELL MOSELEY, PLLC 401 Otey Street Bedford, VA 24523 Tel: (540) 583-5362 E-mail: cary@carymoseley.com - and – Mark A. Potashnick, Esq. WEINHAUS & POTASHNICK 11500 Olive Blvd., Suite 133 St. Louis, MO 63141 Tel: (314) 997-9150 E-mail: markp@wp-attorneys.com - and – Kevin J. Dolley, Esq. DOLLEY LAW, LLC 12977 N. Outer Forty Drive, Suite 230 St. Louis, MO 63141 Tel: (314) 645-4100 E-mail: kevin@dolleylaw.com OHIO STATE TEACHERS: Dismissal of Amended Dennis Suit Recommended ----------------------------------------------------------------- In the case, DEAN DENNIS, et al., Plaintiffs, v. STATE TEACHERS RETIREMENT BOARD, et al., Defendants, Case No. 1:19-cv-00386 (S.D. Ohio), Magistrate Judge Stephanie K. Bowman of the U.S. District Court for the Southern District of Ohio, Western Division, recommended that the motions filed by Ohio State Teachers Retirement Board ("STRB") and the 10 Individual Board members to dismiss the Plaintiffs' amended complaint be granted. Plaintiffs Dennis and Robert Buerkle, though counsel, initiated the putative class action against STRB on May 23, 2019. After the Defendant STRB moved to dismiss the original complaint, the Plaintiffs filed an amended complaint on Aug. 26, 2019. The amended complaint names the 10 individual Board members ("Board members"). Both the Board and the individual Board members have filed motions to dismiss the amended complaint, to which the Plaintiffs have filed responses, and the Defendants have replied. The Plaintiffs are retired public school teachers. STRB administers the State Teachers Retirement System ("STRS"), which is a public retirement system in which the Plaintiffs are enrolled. The Plaintiffs seek damages as well as declaratory and injunctive relief for themselves and all similarly situated persons in the form of reinstatement of a 2% annual cost of living allowance ("COLA") that was reduced to 0% by STRB on July 1, 2017. They allege that they had an unconditional, contractual right to the COLA, and/or a constitutionally protected property interest in the COLA. They further allege that the COLA could not be reduced below 2% unless the Board's actuary determined (in a specific, designated report) that a reduction was necessary to preserve the fiscal integrity of the system. The Plaintiffs allege that as of Aug. 1, 2013, they were given a "vested right" to an annual COLA for all then-current retirees, pursuant to O.R.C. Section 3307.42(A). Based upon the definition of "allowance" as including the pension plus the annuity, or any other payment under the STRS defined benefit plan, the Plaintiffs assert that the annual COLA became an integral part of their vested "allowance." In its motion to dismiss, STRB argues that the Court lacks subject matter jurisdiction because the Board is entitled to immunity from suit under the Eleventh Amendment to the United States Constitution. Alternatively, they argue that the Plaintiffs have failed to allege any plausible basis for the existence of a constitutionally protected contractual or property interest. STRB cites to legislative history in the 2012 enactment of the COLA statute that expressly states that no member has a legitimate expectation of any particular future cost-of-living adjustment under Ohio law. The individual Board members present additional arguments based upon the fact that they have been sued in their individual capacities. In Guertin v. State, the Sixth Circuit rejected a claim by the City of Flint that it was entitled to Eleventh Amendment immunity because Michigan had taken over some of the City's administrative functions on an emergency basis based upon the City's insolvency. In rejecting the City's argument, the court reiterated the four factors to be considered in determining whether an entity or agency is entitled to Eleventh Amendment immunity under established case law: (1) the State's potential liability for a judgment against the entity; (2) the language by which state statutes, and state courts refer to the entity and the degree of state control and veto power over the entity's actions; (3) whether state or local officials appoint the board members of the entity; and (4) whether the entity's functions fall within the traditional purview of state or local government. The Plaintiffs urge the Court to reject the reasoning of Appeal of Ford, Ashmus v. Bay Vill. City Sch. Dist. Bd. of Educ., and State ex rel. Schumacher v. State Teachers Ret. Bd., as inconsistent with the Supreme Court and Sixth Circuit's emphasis on the liability of the State for a judgment as the "foremost" of the four factors used to determine Eleventh Amendment immunity. Although the Plaintiffs concede that the first factor can be overcome by the remaining three factors, they argue that the presumption is not rebutted. For its part, STRB insists that not only should the Court follows the lead of other courts that have decided the same issue, but that all four factors favor a conclusion that it is entitled to Eleventh Amendment immunity. Magistrate Judge Bowman finds that STRB has presented a relatively strong case that the statutory scheme as written and in practice results in the "potential" liability of the State treasury for additional employer contributions to STRS. Considering the case law of other jurisdictions on the issue as well as the relevant Ohio statutes, Appeal of Ford, Ashmus and Schumacher, the Magistrate is persuaded that the first factor of the Eleventh Amendment immunity analysis favors STRB. Even if a reviewing court were to disagree with the undersigned's analysis of the first factor relevant to the Eleventh Amendment inquiry, STRB persuasively argues that analysis of the remaining three factors overcomes any presumption that the State treasury could not be impacted. The fact that an instrumentality of the state retains some autonomy does not outweigh the strong support the factor provides in favor of immunity. No local officials appoint the members of the Board. And the fact that STRS is not directly funded through annual appropriations does not sufficiently differentiate it from other state-wide retirement funds established for the benefit of the state. Relying on a series of statutory provisions, the Plaintiffs argue that Ohio has waived immunity for STRB. They assert that the "implication" is that Ohio intended to waive immunity in both state and federal courts. Leaping from state court to federal court and over geographical boundaries, the Plaintiffs further reason that because the U.S. District Court for the Southern District of Ohio has a court in Franklin County, suit is valid in the federal Court. In order to waive immunity from suit in federal court, however, a State must either "voluntarily invoke" federal jurisdiction, or else make a clear declaration' that it intends to submit itself to federal jurisdiction. The Supreme Court flatly rejected the notion that a "clear declaration" of waiver could be construed or implied as the Plaintiffs suggest. Accordingly, Ohio has not consented to suit against STRB in the federal court. In the Board Members' Motion, the Board members argue that even though the Plaintiffs "purport" to sue them in their individual capacities, the only allegations against them pertain to actions taken collectively as the Board. As such, they encourage the Court to disregard the Plaintiffs' allegation that the Board members are in fact being sued in their individual capacities, and to instead conclude based on the substantive allegations that the Plaintiffs claims are "actually asserted" against them in their official capacity. The Magistrate Judge finds that the Defendants' argument has some facial appeal. And to the extent that any reviewing court were to accept it, the Magistrate Judge agrees that duplicative claims against the individual Board members in their official capacities are barred by the Eleventh Amendment. However, it is one thing to look beyond the caption of a complaint and quite another to ignore allegations in a complaint in the context of a motion to dismiss. The Magistrate Judge holds that the case law cited by the Board members does not support the proposition that the Court may ignore allegations that unambiguously confirm the Plaintiffs' intention to sue the Board members in their individual capacities. Multiple counts are pleaded against the Board members individually rather than STRB. Also, the Plaintiffs allege that the individual Board members "acted unlawfully" and "outside the scope of their statutory authority" by rescinding the COLA. Finally, the Board members also are entitled to qualified immunity on all of the Plaintiffs' federal claims, including Count II (Impairment of Contract), Count IV (Unconstitutional Taking), Count VI (violation of procedural due process); and Count VII (violation of substantive due process). Qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The Plaintiffs maintain that they have asserted several bases for their alleged constitutional claims, including under the Contract Clause, the Takings Clause, and the Due Process Clause (both substantive and procedural). The Magistrate Judge finds no significant body of case law to suggest that a state pension-related COLA constitutes a type of property interest to which due process attaches. The Plaintiffs' reliance on other statutory provisions does not clear things up to the point that the constitutional rights asserted are "beyond debate." Having determined that the individual Board members are entitled to qualified immunity, the Plaintiffs' state law claims also should be dismissed. Accordingly, for these reasons, Magistrate Judge Bowman recommends that the motions to dismiss filed by both STRB and by the Board members be granted in full, and that all claims be dismissed, with the case to be terminated from the docket of the Court. A full-text copy of the District Court's July 28, 2020 Report & Recommendation is available at https://tinyurl.com/y29tcbe3 from Leagle.com. OHIOHEALTH CORP: Underpays Services Officers, Melgard Suit Claims ----------------------------------------------------------------- The case, DANE MELGARD, on behalf of himself and others similarly situated, Plaintiff v. OHIOHEALTH CORPORATION, Defendant, Case No. 2:20-cv-05322-SDM-CMV (S.D. Ohio, October 8, 2020) arises from the Defendant's alleged unlawful pay and rounding policies and/or practices in violation of the Fair Labor Standards Act. The Plaintiff, who was employed by the Defendant as an hourly-paid, non-exempt protective services officer from approximately September 2017 through approximately October 2020, alleges that the Defendant failed to compensate his and other similarly situated officers' seven minutes pre-shift and another seven minutes post-shift, which are integral and indispensable work-related time spent resulted in unpaid overtime. OhioHealth Corporation operates a system of hospitals and healthcare providers throughout Ohio. [BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd., Suite #126 Columbus, OH 43220 Tel: (614) 949-1181 Fax: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com OLD NORTHERN: Underpays Restaurant Servers, Giapitzaki Suit Says ---------------------------------------------------------------- MEA GIAPITZAKI, on behalf of herself and others similarly situated, Plaintiffs v. OLD NORTHERN BOULEVARD RESTAURANT, LLC d/b/a KYMA, EIRINEOS CHRISTOU, MERKOURIOS ANGELIADES, and CHRISTOS PANAGIOTOPOULOS, Defendants, Case No. 1:20-cv-04990 (E.D.N.Y., October 16, 2020) is a collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants as a server at Kyma Restaurant from 2013 until late 2018, when she was promoted as a floor manager. The Plaintiff contends that the Defendants illegally required him and other similarly situated servers to share tips with bar manager Herodotos Xenofontos. As a result, they were paid tip credit rate lower than the regular New York minimum wage. Moreover, the Defendants automatically deducted 30 minutes lunch break from each of the Plaintiff's workdays although she did not take a 30-minute break every workday. Old Northern Boulevard Restaurant, LLC owns and operates the restaurant Kyma Restaurant in Roslyn, NY. [BN] The Plaintiff is represented by: D. Maimon Kirschenbaum, Esq. JOSEPH & KIRSCHENBAUM LLP 32 Broadway, Suite 601 New York, NY 10004 Tel: (212) 688-5640 Fax: (212) 688-2548 ONESPAN INC: Pomerantz Law Reminds of Class Action -------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against OneSpan, Inc. ("OneSpan" or the "Company") (NASDAQ: OSPN) and certain of its officers. The class action, filed in United States District Court for the Northern District of Illinois, Eastern Division, and docketed under 20-cv-04906, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired OneSpan securities between May 9, 2018, and August 11, 2020, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased OneSpan securities during the class period, you have until October 19, 2020, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. OneSpan was founded in 1991 and is headquartered in Chicago, Illinois. The Company was formerly known as VASCO Data Security International, Inc. and changed its name to OneSpan Inc. in May 2018. OneSpan, together with its subsidiaries, designs, develops and markets digital solutions for identity, security, and business productivity worldwide. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) OneSpan had inadequate disclosure controls and procedures and internal control over financial reporting; (ii) as a result, OneSpan overstated its revenue relating to certain contracts with customers involving software licenses in its financial statements spread out over the quarters from the first quarter of 2018 to the first quarter of 2020; (iii) as a result, it was foreseeably likely that the Company would eventually have to delay one or more scheduled earnings releases, conference calls, and/or financial filings with the SEC; (iv) OneSpan downplayed the negative impacts of errors in its financial statements; (v) all the foregoing, once revealed, was foreseeably likely to have a material negative impact on the Company's financial results and reputation; and (vi) as a result, the Company's public statements were materially false and misleading at all relevant times. On August 4, 2020, during pre-market hours, OneSpan postponed its second-quarter 2020 earnings release and conference call by one week, attributing the delay to prior period revenue recognition problems relating to certain software license contracts spread out over the quarters from the first quarter of 2018 to the first quarter of 2020. OneSpan further stated that "[t]he net contract assets that originated from a portion of these contracts in prior periods were not properly accounted for in subsequent periods, which caused overstatements of revenue." On this news, OneSpan's common share price fell $0.46 per share, or 1.40%, to close at $32.50 per share on August 4, 2020. Then, on August 11, 2020, during after-market hours, OneSpan disclosed that it would not timely file its quarterly report for the quarter ended June 30, 2020, with the SEC; reported that same quarter year-over-year revenues had declined; and withdrew its full-year 2020 earnings guidance, which the Company had affirmed one quarter earlier. On this news, OneSpan's common share price fell $12.36 per share, or 39.62%, to close at $18.84 per share on August 12, 2020. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] P.A.M. TRANSPORT: $16.5MM Settlement in Browne Gets Final Approval ------------------------------------------------------------------ In the case, DAVID BROWNE, ANTONIO CALDWELL, and LUCRETIA HALL, on behalf of themselves and others similarly situated, Plaintiffs, v. P.A.M. TRANSPORT, INC., Defendant, Case No. 5:16-CV-5366 (W.D. Ark.), Judge Timothy L. Brooks of the U.S. District Court for the Western District of Arkansas, Fayetteville Division, granted the Plaintiffs' Motion for Final Approval of Collective and Class Action Settlement. The litigation began nearly four years ago when the Named Plaintiffs filed their complaint alleging claims under the Fair Labor Standards Act and the Arkansas Minimum Wage Act, along with some other collateral claims. Over the course of the hard-fought litigation, the Court certified class and collective actions of over-the-road truck drivers employed by Defendant PAM. Ultimately, the parties in the case reached a Settlement Agreement in February 2020, on the eve of trial. The Court gave preliminary approval to the Agreement and ordered that notice of the settlement be provided to all the class members, more than 16,000 over-the-road truck drivers in all. Notice having gone out and the objection and opt-out periods having expired, the Plaintiffs filed the instant unopposed Motion seeking final approval of the Agreement, accompanied by a Brief in Support. Judge Brooks opines that the Agreement is a fair, reasonable, and equitable settlement. The Judge is confident that there is a bona fide dispute between the parties and that the settlement agreement is the product of arm's length negotiations based on the merits of the case. The settlement agreement provides for the Plaintiffs' class counsel to seek one-third of the total settlement amount to cover the attorneys' fees in the matter, a total of $5.5 million. In considering the appropriate amount of attorney fees, courts in the Eighth Circuit have considered the factors laid out in Johnson v. Ga. Highway Express, Inc. The Judge finds that all of the Johnson factors apply and all of them weigh in favor of a finding that a one-third contingency fee is appropriate in the case. For example, the case was extremely hard-fought. The litigation stretched over nearly four years and involved extensive motion practice, voluminous discovery, and numerous depositions. It presented novel questions of law. The Plaintiffs' counsel proved themselves to be highly skilled and experienced in this particular area of litigation. They took the case on a contingent basis despite a significant risk that they might not prevail or might not be able to collect the judgment in full even if they did prevail. Even adjusting downward the reasonable hourly rate, resulting in a higher multiplier, the Judge believes that the lodestar calculation supports the appropriateness of the one-third contingency fee in the case. As to service awards, the Judge recognizes that the Named Plaintiffs are worthy of extraordinary recognition for their role in the litigation and approves a service award of $40,000 to each of the three Named Plaintiffs. In declining to award the full $50,000 requested by the Plaintiffs, he notes that the amount awarded represents approximately $100 per hour each Named Plaintiff spent on the case. It is his position that it is appropriate compensation and that any more would constitute a windfall. The Judge finds that the proposed service awards of $1,000 to the Plaintiffs who sat for deposition and $2,500 to the Plaintiffs who were prepared to appear and testify at trial are also appropriate. Finally, the settlement agreement proposes that any unclaimed funds from the settlement be donated to the St. Christopher Truckers Development and Relief Fund. The Judge believes that the St. Christopher Fund is an appropriate cy pres recipient in the case, as it provides support to truck drivers and their families who face financial struggles because of injury or illness. However, the Judge concludes that a final decision regarding the distribution of the residual amount in the settlement fund is better made when the parties and the Court knows exactly what that amount is. Based on all these findings, Judge Brooks granted final approval of the Class and Collective Settlement. The Defendant will cease charging $10 service fees for wage advances and to stop withholding wages on payday due to late paperwork. The Claims Administrator will distribute the Settlement Fund to all the Class Members Consistent with the Settlement, subject to any modification directed by the Court. The Judge granted: (i) the Class Counsel's requests for their reasonable attorneys' fees of $5.5 million, representing 33 1/3% of the Settlement Fund; (ii) the Named Plaintiffs David Browne, Antonio Caldwell, and Lucretia Hall modified service payments of $40,000; (iii) Service Payments of $1,000 each to the Opt-in Plaintiffs who sat for deposition, whose identities are provided in Section 3.3(A)(a) of the Settlement; (iv) Service Payments of $2,500 each to the Opt-in Plaintiffs who sat for deposition and who had made arrangements to travel to Arkansas to testify live at trial, whose identities are provided in Section 3.3(A)(b) of the Settlement; (v) the Class Counsel's request for reimbursement of their reasonable litigation costs of $600,000; and (vi) the Claims Administrator its reasonable fees and costs incurred in providing notice of and administering the settlement to be paid from the Settlement Fund in accordance with the Settlement Agreement, not to exceed $124,500. After one year of the final settlement check being issued, the parties submit to the Court information as to any unclaimed funds remaining in the Settlement Fund and the best allocation of those funds - either distribution among the class members or donation to the St. Christopher Truckers Relief Fund. The Court will retain jurisdiction to enforce the terms of the settlement and the Judge directed the Parties to provide a status report to the Court in 90 days. A full-text copy of the District Court's July 31, 2020 Opinion & Order is available at https://tinyurl.com/y5yk9au5 from Leagle.com. PARKOFF OPERATING: Court Denies Bid to Dismiss Amended Quinn Suit ----------------------------------------------------------------- In the case, COURTNEY QUINN, JEANNE SHOTZBARGER, JAMES EDWARDS, CLAIRE SHRIVER, ANUM SHAH, JAMES RAMSAY, MIRIAM RAMSAY, LORA SEO, ADAM HELTZER, CHRISTINE YI, RICHARD BOROVOY, IDALMIS BOROVOY, GRAHAM CIRAULO, THOMAS PIERCE, APRIL TOWNES, JUDITH TREZZA, ANTONIO VAZQUEZ, JENNIFER DUPREY, JULIETTE VAIMAN, LISAVETTA REYES, ANDOM GHEBREGHIOGIS, DOUG BENDER, SARA BENDER, CHARLES GOLDMAN, CHRISTOPHER FORD, STEVEN KATCHEN, RON YOSIPOVICH, R.S. SALAMON, S.E. FALK, Plaintiff, v. PARKOFF OPERATING CORPORATION, GRAMERCY PARK ESTATES LLC, SEADYCK REALTY CO., LLC, 19 SEAMAN LLC, ELBRIDGE REALTY CORPORATION, Defendant, Case No. 155195/2017 (N.Y. Sup.), Judge Robert R. Reed of the New York County Supreme Court denied the Defendants' motion to dismiss the amended complaint pursuant to various provisions of CPLR 3211. The individually named Plaintiffs are all tenants of record in four residential apartment buildings located at: (i) 144 East 22nd St. in New York County; (ii) 1-9 Seaman Ave. in New York County; (iii) 11-19 Seaman Ave. in New York County; and (iv) 500 West 235th St. in the County of the Bronx. The Plaintiffs allege that four of the named Defendants are "single purpose entities," whose sole function is to act as the corporate owner of one each of the subject buildings, and that Defendant Parkoff controls the other four Defendants. As a result, they refer to the four buildings as the "Parkoff buildings." The Plaintiffs allege that all of the Parkoff buildings were registered with the New York City Department of Housing Preservation and Development in the "J-51" real estate tax abatement program, the rules of which required that all of the buildings' apartments be registered as rent stabilized units with the New York State Division of Housing and Community Renewal for the duration of the buildings' enrollment. They further allege that Parkoff illicitly removed a number of Parkoff building apartments from rent stabilization while the buildings were enrolled in the "J-51" program, and began to collect inflated "market rate rents" and other improper charges from the tenants of those apartments. As a result, the Plaintiffs seek to assert rent overcharge claims against Parkoff and its subsidiary Defendants both on behalf of themselves, whom they refer to as "the class," and on behalf of other similarly situated tenants in the Parkoff buildings who have not yet been named as Plaintiffs, whom they refer to as the "sub-class." To that end, the Plaintiffs originally commenced the proposed class action by filing a summons and complaint on June 7, 2017. The Defendants moved to dismiss that complaint, and the Court granted the Defendants' motion in a decision dated March 16, 2018. The Plaintiffs appealed, and the Appellate Division, First Department, reversed and remanded the Court's earlier decision in an opinion dated Dec. 3, 2019. Immediately after remand, the Plaintiffs filed the instant amended class action complaint on Dec. 17, 2019, which sets forth causes of action for: (i) rent overcharge (on behalf of the class); (ii) rent overcharge (on behalf of the sub-class); (iii) a declaratory judgment (on behalf of the sub-class); and (iv) attorney's fees (on behalf of the class). Rather than file an answer, the Defendants submitted their new motion to dismiss on Jan. 31, 2020. The parties filed opposition and reply papers in February 2020; however, the Covid-19 national pandemic forced the court to suspend its operations indefinitely in mid-March, 2020. During that period, the parties nevertheless submitted a quantity of correspondence to the court concerning certain supervening changes to New York's Rent Stabilization Law ("RSL"). Notably, however, the Plaintiffs have not yet filed a motion for class certification pursuant to CPLR 901, as the First Department indicated they should. In any case, sufficient court operations have now been restored to permit the Defendants' dismissal motion to be addressed. Judge Reed holds that the memorandum of law supporting the Defendants' dismissal motion specifically declines to address the issue of class certification, although the counsel avers that they submit that the Amended Complaint makes clear on its face that the claims of the Plaintiffs do not have enough in common with one another (let alone with absent putative class members) to warrant class treatment. The Plaintiffs' opposition papers are similarly devoid of any class status arguments (apart from a minor point that they made in relation to the proposed "sub-class"). Instead, the parties focus solely on their respective arguments pursuant to CPLR 3211. The Judge concludes that it would be premature to address the parties' dismissal arguments at this juncture of the litigation. Instead, he believes that the appropriate course is to deny the Defendants' motion without prejudice to renewal after the Plaintiffs have filed a motion for class certification pursuant to CPLR 901 and 902, as the First Department indicated they should. For the foregoing reasons, Judge Reed denied without prejudice the Defendants' motion to dismiss the complaint. The Plaintiffs are directed to serve and file a motion for class certification pursuant to CPLR 901 and 902 within 60 days of the date of the Decision and Order. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/yy6ozv7p from Leagle.com. Newman Ferrara LLP, By: Noe Solorzano Esq., and Roger Alan Sachar Esq. -- rsachar@nfllp.com -- 1250 Broadway, 27th Floor, New York, NY 10001 Safirstein Metcalf LLP, The Empire State Building, By: Peter George Safirstein, 350 Fifth Avenue, 59th Floor, New York, NY 10118, Plaintiffs. Katsky Korins LLP, By: Elan R. Dobbs Esq., Adrienne B. Koch Esq. -- akoch@katskykorins.com -- Mark Walfish Esq., and Liza Merzel Esq., 605 Third Avenue, New York, NY 10158, Defendants. PORTFOLIO RECOVERY: Sites WVCCPA Suit Removed to S.D. West Virginia ------------------------------------------------------------------- The case captioned as STEPHEN SITES, on behalf of himself and all others similarly situated v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Case No. 18-C-1442, was removed from the West Virginia Circuit Court of Kanawha County to the U.S. District Court for the Southern District of West Virginia on October 22, 2020. The Clerk Court for the Southern District of West Virginia assigned Case No. 2:20-cv-00704 to the proceeding. The case arises from the Defendant's alleged violations of the West Virginia Consumer Credit and Protection Act (WVCCPA). Portfolio Recovery Associates, LLC is a debt collection company based in Norfolk, Virginia. [BN] The Defendant is represented by: Jonathan P. Floyd, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 1001 Haxall Point Richmond, VA 23219 Telephone: (804) 697-1435 Facsimile: (804) 697-1339 E-mail: jonathan.floyd@troutman.com PROCTER & GAMBLE: Bid to Dismiss Davis Suit Denied as Moot ---------------------------------------------------------- In the case, ANGELA DAVIS, et al., Plaintiffs, v. THE PROCTER & GAMBLE COMPANY, Defendant, Case No. 20-CV-3220 YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California denied as moot the pending motion to dismiss in light of the filing of the First Amended Class Action Complaint. A full-text copy of the District Court's July 31, 2020 Order is available at https://tinyurl.com/yxqmxnnz from Leagle.com. PROGENITY INC: Johnson Fistel Reminds of Oct. 27 Deadline --------------------------------------------------------- Shareholder rights law firm Johnson Fistel, LLP reminds investors that a class action lawsuit has been filed against Progenity, Inc. ("Progenity" or the "Company") (NASDAQ: PROG) pursuant and/or traceable to the Company's initial public offering conducted in June 2020. If you wish to serve as a lead plaintiff, you must move the Court no later than October 27, 2020. On or about June 6, 2020, Progenity sold about 6.7 million shares of stock in its initial public stock offering (the "IPO"), at $15.00 a share, raising nearly $100.5 million in new capital. The class-action lawsuit alleges that the Registration Statement for the IPO was negligently prepared and, as a result, contained untrue statements of material fact, omitted material facts necessary to make the statements contained therein not misleading, and failed to make the necessary disclosures required under the rules and regulations governing its preparation. Specifically, the Registration Statement failed to disclose, adverse facts that existed at the time of the IPO, rendering numerous statements provided therein materially false and misleading: (i) that Progenity had overbilled government payors by $10.3 million in 2019 and early 2020 and, thus, had materially overstated its revenues, earnings and cash flow from operations for the historical financial periods provided in the Registration Statement; (ii) that Progenity would need to refund this overpayment in the second quarter of 2020 (the same quarter in which the IPO was conducted), adversely impacting its quarterly results; and (iii) that Progenity was suffering from accelerating negative trends in the second quarter of 2020 concerning Progenity's testing volumes, revenues and product pricing. Since the IPO, Progenity stock has plummeted, on August 18, 2020, the stock closed at $9.56. A lead plaintiff will act on behalf of all other class members in directing the Progenity class-action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Progenity class-action lawsuit. An investor's ability to share any potential future recovery of the Progenity class action lawsuit is not dependent upon serving as lead plaintiff. If you are interested in learning more about the case, please contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number. Additionally, you can [Click here to join this action]. There is no cost or obligation to you. About Johnson Fistel, LLP Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. For more information about the firm and its attorneys, please visit http://www.johnsonfistel.com.Attorney advertising. Past results do not guarantee future outcomes. Jim Baker Johnson Fistel, LLP Tel No: 619-814-4471 E-mail: jimb@johnsonfistel.com [GN] PUCKS EXPRESS: Underpays Delivery Drivers, Reese Suit Alleges ------------------------------------------------------------- VICTOR REESE, individually and on behalf of others similarly situated, Plaintiff v. PUCKS EXPRESS, LLC, Defendant, Case No. 1:20-cv-02610-JMS-DML (S.D. Ind., October 8, 2020) is a class and collective action complaint brought against the Defendant for its alleged class-wide hour and overtime violations pursuant to the Fair Labor Standards Act. The Plaintiff, who was employed by the Defendant as an hourly-paid and non-exempt delivery driver, alleges that the Defendant has been underpaying its delivery drivers. The Plaintiff asserts these claims: -- The Defendant failed to pay him and other similarly situated delivery drivers' pre-shift and post-shift time spent on a continuous workday basis; -- The Defendant failed to include all earned wages in its calculation of its employees' overtime rate of pay; and -- The Defendant failed to reimburse its delivery drivers work-related expenses, particularly those related to truck maintenance, which resulted to an illegal "kickbacks." Pucks Express, LLC provides package delivery services for Amazon. [BN] The Plaintiff is represented by: Robert P. Kondras, Esq. HASSLER KONDRAS MILLER LLP 100 Cherry Street Terre Haute, IN 47807 Tel: (812) 232-9691 Fax: (812) 234-2881 E-mail: kondras@hkmlawfirm.com - and – Aaron J. Williamson, Esq. WILLIAMSON CIVIL LAW, LLC 8888 Keystone Crossing, Suite 1300 Indianapolis, IN 46240 Tel: (317) 434-0370 Fax: (765) 204-7161 E-mail: aaron.williamson@wcivillaw.com QUTOUTIAO INC: Gross Law Announces Class Action ----------------------------------------------- The securities litigation law firm of The Gross Law Firm issues the following notice on behalf of shareholders of Qutoutiao Inc. Shareholders who purchased shares in the company during the dates listed are encouraged to contact the firm regarding possible Lead Plaintiff appointment. Appointment as Lead Plaintiff is not required to partake in any recovery. Qutoutiao Inc. (NASDAQ:QTT) This lawsuit is on behalf of persons and entities that: a) purchased or otherwise acquired Qutoutiao American Depositary Shares pursuant and/ortraceable to the registration statement and prospectus issued in connection with the Company's September 2018 initial public offering; and/or b) purchased or otherwise acquired Qutoutiao securities between September 14, 2018 and July 15, 2020. A class action has commenced on behalf of certain shareholders in Qutoutiao Inc. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Qutoutiao replaced its advertising agent with a related party, thereby bypassing third-party oversight of the content and quality of the advertisements; (2) the Company placed advertisements on its mobile app for products whose claims could not be substantiated and thus were considered false advertisements under applicable regulations; (3) as a result, the Company would face increasing regulatory scrutiny and reputational harm; (4) as a result, the Company's advertising revenue was reasonably likely to decline; and (5) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. Shareholders may find more information at https://securitiesclasslaw.com/securities/qutoutiao-inc-loss-submission-form-2/?id=9763&from=1 The Gross Law Firm is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] QUTOUTIAO INC: Pomerantz Law Firm Reminds of Class Action --------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Qutoutiao, Inc. ("Qutoutiao" or the "Company") (NASDAQ: QTT) and certain of its officers. The class action, filed in United States District Court for the Southern District of New York, and docketed under 20-cv-07717, is on behalf of a class consisting of all persons and entities that: (a) purchased or otherwise acquired Qutoutiao American Depositary Shares ("ADSs") pursuant and/or traceable to the registration statement and prospectus (collectively, the "Registration Statement") issued in connection with the Company's September 2018 initial public offering ("IPO" or the "Offering"); and/or (b) purchased or otherwise acquired Qutoutiao securities between September 14, 2018, and July 15, 2020, inclusive (the "Class Period"). Plaintiff pursues claims against the Defendants under the Securities Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who: (a) purchased or otherwise acquired Qutoutiao American Depositary Shares ("ADSs") pursuant and/or traceable to the registration statement and prospectus (collectively, the "Registration Statement") issued in connection with the Company's September 2018 IPO; and/or (b) purchased or otherwise acquired Qutoutiao securities between September 14, 2018, and July 15, 2020, you have until October 19, 2020, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Qutoutiao offers a mobile application called Qutoutiao (which means "fun headlines" in Chinese) that aggregates articles and short videos from professional media and freelancers and presents customized feeds to users. On September 14, 2018, the Company filed its prospectus on Form 424B4 with the SEC, which forms part of the Registration Statement. In the IPO, the Company sold 13.8 million ADSs at a price of $7.00 per share. The Company received proceeds of approximately $85.8 million from the Offering, net of underwriting discounts and commissions. The proceeds from the IPO were purported to be used for expanding and enhancing the Company's content offerings, for product development and technology infrastructure, and for general corporate purposes, including marketing and promotion of its products and branding and potential acquisitions and investments. The Complaint alleges that in the Registration Statement and throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (i) that Qutoutiao replaced its advertising agent with a related party, thereby bypassing third-party oversight of the content and quality of the advertisements; (ii) that the Company placed advertisements on its mobile app for products whose claims could not be substantiated and thus were considered false advertisements under applicable regulations; (iii) that, as a result, the Company would face increasing regulatory scrutiny and reputational harm; (iv) that, as a result, the Company's advertising revenue was reasonably likely to decline; and (v) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On December 10, 2019, Wolfpack Research ("Wolfpack") published a report, alleging, among other things, that the Company had overstated its revenues by recording non-existent advances from advertising customers. Moreover, the report alleged that Qutoutiao replaced its third-party advertising agent with a related party, thereby bypassing the agent's oversight and allowing the Company to "perpetrate the unmitigated ad fraud that [Wolfpack] observed in [its] sample." On this news, the Company's ADS price fell $0.12 per share, or approximately 4%, to close at $2.86 per share on December 11, 2019. On July 15, 2020, hosts of a consumer rights gala stated that Qutoutiao had allowed ads on its platform promoting exaggerated or impossible claims from weight-loss products. For example, one such ad offered free weight-loss products valued at $14,300 that would help users lose more than 30 pounds a month. On this news, the Company's ADS price fell $0.85 per share, or approximately 23%, to close at $2.84 per share on July 16, 2020. On July 17, 2020, Chinese media reported that Qutoutiao's app had been removed from domestic Android app stores. By the commencement of this action, Qutoutiao's ADSs last closed at $2.42 per share on September 17, 2020, representing a 65.43% decline from the $7.00 per share IPO price. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com. [GN] ROCKLINE INDUSTRIES: Fails to Pay Proper OT Wages, King Claims -------------------------------------------------------------- JOHN KING and BRIAN SIMPSON, each individually and on behalf of all others similarly situated, Plaintiffs v. ROCKLINE INDUSTRIES, INC., Defendant, Case No. 2:20-cv-02188-PKH (W.D. Tex., October 20, 2020) is a collective action complaint brought against the Defendant for its alleged violations of the overtime provisions of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Plaintiffs were employed by the Defendant as hourly-paid employees at the Defendant's facilities in Booneville. Plaintiff King was hired as a Maintenance Supervisor from July 2017 to August 2020, while Plaintiff Simpson as a Mechanic from 2012 to the present. According to the complaint, the Plaintiffs were informed by the Defendant upon hiring that they will receive bonuses as part of the Defendant's compensation package. However, the Defendant did not include the bonuses in the regular rates of the Plaintiffs and other similarly situated hourly employees when calculating their overtime pay. As a result, although the Plaintiffs and other similarly situated hourly employees regularly worked in excess of 40 hours per week throughout their employment with the Defendant, they were not properly paid their lawfully earned overtime at the rate of one and one-half times their regular rate of pay. Rockline Industries, Inc. is one of the world's largest manufacturers of coffee filters and consumer, health care, industrial and institutional wet wipes. [BN] The Plaintiffs are represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: josh@sanfordlawfirm.com ROSETTA STONE: Harrison Challenges Proposed Sale to Cambium Holding ------------------------------------------------------------------- BRYAN HARRISON, individually and on behalf of all others similarly situated, Plaintiff v. ROSETTA STONE INC.; LAURENCE FRANKLIN; A. JOHN HAAS III; AEDHMAR HYNES; PATRICK GROSS; GEORGE LOGUE; DAVID NIERENBERG; KATHRYN EBERLE WALKER; JESSIE WOOLLEY-WILSON; and STEVEN YANKOVICH, Defendants, Index No. 654635/2020 (N.Y. Sup., New York Cty., Sept. 23, 2020) is a class action against the Defendants for breaches of fiduciary duty as a result of the Defendants' efforts to sell the Company to Cambium Holding Corp., and Empower Merger Sub Inc. as a result of an unfair process for an unfair price, and to enjoin an upcoming tender offer on a proposed all cash transaction valued at approximately $792 million. According to the complaint the terms of the proposed transaction were memorialized in an August 31, 2020, filing with the Securities and Exchange Commission on Form 8-K, attaching the definitive agreement and plan of merger. Under the terms of the merger agreement, Cambium will commence a tender offer to acquire all of the outstanding shares of Rosetta Stone's common stock at a price of $30 per share in cash. As a result, Rosetta Stone will become an indirect wholly-owned subsidiary of Cambium. Thereafter, on September 15, 2020, Rosetta Stone filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in support of the proposed transaction. In approving the proposed transaction, the Defendants have breached their fiduciary duties of loyalty, good faith, due care and disclosure by: (i) agreeing to sell Rosetta Stone without first taking steps to ensure that the Plaintiff and Class members would obtain adequate, fair and maximum consideration under the circumstances; and (ii) engineering the proposed transaction to benefit themselves and/or the Cambium without regard for Rosetta Stone's public stockholders. Rosetta Stone, Inc. provides technology-based language learning solutions. The Company develops, markets, and sells language learning solutions consisting of software, online services, and audio practice tools primarily under our Rosetta Stone brand. [BN] The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 240 Mineola Boulevard Mineola, NY 11501 Telephone: (516) 741-4977 Facsimile: (561) 741-0626 RUMPKE WASTE: Gambrell Sues Over Unpaid Overtime for Welders ------------------------------------------------------------ ROBERT GAMBRELL, on behalf of himself and others similarly situated, Plaintiff v. RUMPKE WASTE, INC. d/b/a RUMPKE WASTE COLLECTION & DISPOSAL SYSTEMS, Defendant, Case No. 1:20-cv-00801-MRB brings this collective and class action complaint against the Defendant for its alleged failure to pay overtime in violations of the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. The Plaintiff was employed by the Defendant from 2015 until August 2020 as an hourly, non-exempt welder at one of the Defendant's facilities. The Plaintiff alleges that the Defendant routinely deducted 30 minutes from his and other similarly situated employees' daily hours worked for meal breaks that they did not take or that were interrupted by work. As a result, despite they regularly worked more than 40 hours per workweek, the Defendant failed to fully and properly pay them for all of their hours worked at one and one-half times their regular rate of pay. Rumpe Waste, Inc. d/b/a Rumpe Waste Collection & Disposal Systems provides residential and commercial trash and recycling services to its customers in Ohio, Kentucky, Indiana, and West Virginia. [BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd., Suite #126 Columbus, OH 43220 Tel: (614) 949-1181 Fax: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com S.W.O.R.N. PROTECTION: Buckley Sues Over Managers' Unpaid Overtime ------------------------------------------------------------------ CASANDRA BUCKLEY, individually and on behalf of those similarly situated, Plaintiff v. S.W.O.R.N. PROTECTION LLC and MICHAEL DELONG, Defendants, Case No. 1:20-cv-00357 (N.D. Ind., October 14, 2020) is a collective action complaint brought against the Defendants for their alleged failure to pay overtime in violation of the Fair Labor Standards Act. The Plaintiff, who worked for the Defendants as a manager, alleges that the Defendants failed to pay her and other similarly situated employees at one and one-half times their regular rate of pay for all the overtime hours worked in excess of 40 in a single workweek. S.W.O.R.N. Protection LLC is licensed professional private security and investigative agency. [BN] The Plaintiff is represented by: Jason Ramsland, Esq. RAMSLAND LAW 8520 Allison Pointe Blvd. Ste. 223 PMB 65298 Indianapolis, IN 46250-4299 Tel: (765) 267-1240 E-mail: jason@rams.land SAFESPEED LLC: Court Refuses to Dismiss Marso ADA Class Action -------------------------------------------------------------- In the case, ANDREW MARSO, individually and on behalf of all similarly situated persons, Plaintiff, v. SAFESPEED, LLC, et al., Defendants, Civil Action No. 19-2671-KHV (D. Kan.), Judge Kathryn H. Vratil of the U.S. District Court for the District of Kansas overruled both (i) Defendant Safespee's Motion To Dismiss Amended Complaint, and (ii) Defendant Village of North Riverside, Illinois' Motion To Dismiss Plaintiff's First Amended Complaint. Marso brings individual and putative class action claims against Safespeed and Village for violations of Kansas law and the Americans with Disabilities Act ("ADA"). The Plaintiff is a resident of Kansas and a disabled individual within the meaning of the ADA. Village is a municipality in Illinois. SafeSpeed is an Illinois limited liability company that provides red light enforcement systems to more than 30 municipalities in Illinois, including the Village. SafeSpeed offices and operations are in Illinois, and it does not provide services to municipalities outside of Illinois. Its operations affect travel, transportation and commerce between Kansas and Illinois. SafeSpeed and the Village have a financial incentive to send out violation notices. The Kansas Department of Revenue issues Disabled Parking Placards to disabled drivers. Each Disabled Parking Placard has a number which is separate from the license plate number of the disabled driver. The Plaintiff has a Disabled Identification Placard Number for his vehicle. On May 23, 2019, a truck with a Kansas license plate ran a red light in the Village. Its license plate number was identical to the Plaintiff's Disabled Identification Placard Number, and SafeSpeed and the Village mistakenly issued the violation notice to him. The Plaintiff disputed the notice and Village dismissed it. The Plaintiff believes that he may not be the only disabled individual who has mistakenly received a violation notice from SafeSpeed and the Village. He alleges that by failing to properly verify vehicle information, SafeSpeed sends erroneous violation notices to disabled Kansans, and perhaps residents of other states as well. He alleges that SafeSpeed discriminates against individuals with disabilities by failing to make reasonable modifications in policies, practices and procedures to correct this problem. He asserts that unless the Court requires SafeSpeed to cease sending violation notices based on Disability Identification Placard Numbers, disabled individuals in Kansas and other states could suffer irreparable harm (i.e., wrongful criminal citations, impaired driving records, etc.). The Plaintiff seeks to represent a class that includes all persons residing in the United States who are disabled within the meaning of the ADA and whose state government or agency has issued Disability Identification Placard Numbers or other disability-related identification numbers. On behalf of the class, he asserts that: (1) SafeSpeed violated Section 12182 of the ADA and (2) the Village violated of Section 12132 of the ADA. He also seeks to represent two subclasses: (1) persons in Kansas who have Disability Identification Placard Numbers ("Kansas Subclass") and (2) individuals who have received wrongfully-issued violation notices ("Wrongfully-Issued Subclass"). On behalf of the Wrongfully-Issued Subclass, the Plaintiff asserts that SafeSpeed and the Village (1) were negligent and (2) committed malicious prosecution. Plaintiff asserts that the District Court has federal question jurisdiction based on the ADA. As to personal jurisdiction, plaintiff does not allege that the Court has general jurisdiction over defendants. As to specific jurisdiction, plaintiff alleges that the District Court has specific personal jurisdiction over SafeSpeed and the Village because they regularly conduct business in Kansas by causing notices of violation to be mailed into Kansas, and because SafeSpeed and the Village's purposeful establishment of significant contact with Kansas gave rise to the Plaintiff's cause of action. SafeSpeed and the Village have caused notices of violation to be mailed into Kansas even when the recipient has not traveled to Illinois. SafeSpeed argues that the Court should dismiss the Plaintiff's amended complaint for lack of personal jurisdiction, misjoinder of parties, improper venue, failure to state a claim and, if the Court dismisses the Plaintiff's ADA claim, lack of diversity jurisdiction. It argues that the Court lacks personal jurisdiction because it does not have minimum contacts with Kansas. In addition, SafeSpeed asserts that under its contract with Village, SafeSpeed conducts only an initial review of potential violations and the Village has final decision-making authority regarding who receives a violation notice. After Village makes the final decision, a SafeSpeed subcontractor prints and mails the notices. Accordingly, SafeSpeed argues that Village - not it -- is the proper Defendant in the case. Village argues that the Court should dismiss the Plaintiff's amended complaint for lack of personal jurisdiction, improper venue and, as to the laintiff's request to certify a class, failure to state a claim. It asserts that it does not have minimum contacts with Kansas and that in enforcing its traffic laws in Illinois, it did not anticipate being haled into court in Kansas. Village further asserts that requiring it to litigate in Kansas would offend traditional notions of fair play and substantial justice. Finally, it claims that venue is improper in Kansas because a substantial portion of the events occurred in Illinois. Judge Vratil finds that it is reasonable and consistent with notions of "fair play and substantial justice" to assert personal jurisdiction over the Defendants. It is particularly so in view of the lightness of the Plaintiff's burden of establishing personal jurisdiction at this early stage of litigation. She therefore overruled the Defendants' motions to dismiss for lack of personal jurisdiction. Next, under 28 U.S.C. Section 1391(b)(2), venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. As noted, the Plaintiff received the erroneous violation notice in Kansas and felt the brunt of the Defendants' allegedly tortious conduct in Kansas. In other words, a substantial part of the events which give rise to his claims occurred in Kansas. Accordingly, venue is proper in Kansas. In ruling on a motion to dismiss under Rule 12(b)(6), the Judge assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. SafeSpeed asserts that the Court should dismiss the Plaintiff's claims under Rule 12(b)(6) for failure to state a claim. In addition, it seeks dismissal on the ground that it carries out a government function on behalf of illage and therefore is immune from suit under the public official immunity doctrine. Village asserts that the Court should dismiss the Plaintiff's request for class certification. First, the Judge holds that SafeSpeed cannot argue both that it has no discretion over who receives a violation notice because Village makes that decision, and that it is entitled to immunity based on its exercise of discretion in who receives them. At this stage, SafeSpeed has not carried its burden of demonstrating that it is entitled to immunity. Second, SafeSpeed tagged the Plaintiff as a traffic offender because the license plate of the violator's vehicle matched the number on the Plaintiff's Disabled Identification Placard Number. At this stage, the Plaintiff has sufficiently alleged that by simply assigning the violation to him based on his Disabled Identification Placard Number, SafeSpeed discriminated against him because of his disability. The Judge therefore overrulef SafeSpeed's motion to dismiss Count I. Third, in light of the parties' disagreement regarding the relationship between SafeSpeed and Village, and without the benefit of adequate briefing, the Judge cannot accept SafeSpeed's bare assertion that the public duty doctrine bars the Plaintiff's negligence claim. The Plaintiff has sufficiently alleged that SafeSpeed owed him a duty to properly query the Illinois Secretary of State and Nlets regarding driver information, to verify that the information it receives is accurate and to confirm the identity of an alleged traffic law violator before issuing a violation notice. The Judge therefore overruled SafeSpeed's motion to dismiss Count III. Fourth, the Plaintiff has sufficiently stated a claim of malicious prosecution against SafeSpeed. Among, other things, the Plaintiff has sufficiently alleged that SafeSpeed procured the proceedings against him by wrongly identifying him as a traffic violator and mailing the violation notice to him; he has sufficiently alleged that SafeSpeed acted without probable cause; and the Plaintiff alleges that he and the subclass sustained damages in the form of substantial time and effort obtaining dismissal of their respective wrongfully-issued violation notices. The Judge therefore overruled SafeSpeed's motion to dismiss Count IV. Finally, consideration of whether the Plaintiff's class action allegations are sufficient under Rule 23, Fed. R. Civ. P., is not appropriate at the motion to dismiss stage. The Judge will make such determination at the class certification phase. Based on the foregoing, Judge Vratil overruled both Safespeed's and Village's Motion To Dismiss. A full-text copy of the District Court's Aug. 4, 2020 Memorandum & Order is available at https://tinyurl.com/y3hsgfq7 from Leagle.com. SAM GILDERSLEEVE: Becker Sues Over Failure to Pay OT to Laborers ---------------------------------------------------------------- The case, BRANDON BECKER, on behalf of himself and all others similarly-situated, Plaintiff v. SAM GILDERSLEEVE & SON PLUMBING, INC., SAM GILDERSLEEVE SR., SAM GILDERSLEEVE JR., and ERICA BRININGER, Defendants, Case No. 1:20-cv-02359 (N.D. Ohio, October 15, 2020) arises from the Defendants alleged failure to pay overtime in violation of the Fair Labor Standards Act. The Plaintiff was hired by the Defendants in or around May 2019 as a non-exempt and hourly-paid manual laborer to perform duties as directed by the Defendants at their various worksites. According to the complaint, the Plaintiff regularly worked in excess of 40 hours per week for the Defendants. Although the Plaintiff was required by the Defendants to not record his travel time back to the Defendants' shop on his timecard and any time he spent working at the shop after returning from the worksite, the Plaintiff regularly reported more than 40 hours each week. However, the Defendants only paid him for 40 hours of work, thereby failing to pay the Plaintiff's lawfully earned overtime at one and one-half times his regular rate of pay for all hours worked in excess of 40 per week. After Defendant Gildersleeve Sr.'s refusal to address the Plaintiff's complaints about their failure to pay him overtime, the Plaintiff filed his resignation to the Defendants on or about September 15, 2020. Sam Gildersleeve & Son Plumbing, Inc. operates a plumbing and remodeling business owned and operated by Sam Gildersleeve Sr. and Sam Gildersleeve Jr. Erica Brininger is a supervisor and/or manager for the Gildersleeve Plumbing. [BN] The Plaintiff is represented by: Chris P. Wido, Esq. THE SPITZ LAW FIRM, LLC 25200 Chagrin Blvd., Suite 200 Beachwood, OH 44122 Tel: (216) 291-4744 Fax: (216) 291-5744 E-mail: chris.wido@spitzlawfirm.com SAN JOSE: Fails to Provide Accurate Wage Statements, Flores Claims ------------------------------------------------------------------ The case, FERNANDO FLORES, as an individual and on behalf of all others similarly situated, Plaintiff v. SAN JOSE, LLC and DOES 1 through 50, inclusive, Defendants, Case No. 20CV371772 (Cal. Super., Los Angeles Cty., October 19, 2020) challenges the Defendants' alleged systemic illegal employment practices in violations of the California Labor Code. The Plaintiff was employed by the Defendants as an hourly-paid non-exempt employee during the period of February 22, 2010 to August 6, 2020. The Plaintiff alleges that the Defendants failed to provide proper payroll records, accurate itemized wage statements, and pay accurate overtime rate at one and one-half times the regular rate. Specifically, when overtime wages and/or differential wages were paid, the wage statements do not accurately show the total number of hours worked during the pay period. Additionally, the total hours displayed on the wage statements does not correlate to the correct number of total hours worked during the pay period. Moreover, the Plaintiff sent written notice to the California Labor and Workforce Development Agency (LWDA) on or about October 14, 2020 concerning the Defendant's Labor Code violations pursuant to the Private Attorney General Act. However, the LWDA has not responded to the Plaintiff's written notice. [BN] The Plaintiff is represented by: Larry W. Lee, Esq. Kristen M. Agnew, Esq. Nicholas Rosenthal, Esq. Mai Tulyathan, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Tel: (213) 488-6555 Fax: (213) 488-6554 SDM HOSPITALITY: Fails to Pay Proper OT to Cooks, Hardy Suit Says ----------------------------------------------------------------- MARSHALL HARDY, on behalf of himself and all others similarly situated, Plaintiff v. SDM HOSPITALITY, LLC, Defendant, Case No. 3:20-cv-03157-S (N.D. Tex., October 16, 2020) brings this collective action complaint against the Defendant for its alleged unlawful pay policy or practice in violation of the Fair Labor Standards Act. The Plaintiff was hired by the Defendant as a non-exempt cook in 2015 and still currently employed. The Plaintiff alleges that the Defendant deprived him and other similarly situated employees of their lawfully earned overtime compensation by regularly refusing to pay them for all hours worked over 40 per workweek. Despite consistently working in excess of 40 hours per week, the Defendant paid them straight time for all hours worked instead of paying them at one and one-half times their regular rate of pay. SDM Hospitality operates a bar and grill restaurant. [BN] The Plaintiff is represented by: Douglas B. Welmaker, Esq. MORELAND VERRETT, PC 700 West Summit Dr. Wimberley, TX 78676 Tel: (512) 782-0567 Fax: (512) 782-0605 E-mail: doug@morelandlaw.com SEALIFT HOLDINGS: Bond Posted for Llagas Claims Reduced to $42,000 ------------------------------------------------------------------ In the case, DANIEL GONZALES LLAGAS, v. SEALIFT HOLDINGS INC. ET AL, Case No. 2:17-CV-00472 (W.D. La.), Judge James D. Cain, Jr. of the U.S. District Court for the Western District of Louisiana, Lake Charles Division, granted the Motion to Reduce Security filed by Sealift Holdings, Sealift, Inc., Black Eagle Shipping, LLC, Fortune Maritime, LLC, Sealift Tankships, LLC, Sagamore Shipping, LLC and Remington Shipping, LLC, requesting that the Court reduce the security posted for the claims of Plaintiff Daniel Gonzales Llagas. The Plaintiff filed the instant lawsuit on March 17, 2017, asserting claims arising out of his employment on Sealift vessels; he alleges that his wages were paid contrary to U.S. law. The Plaintiff prayed for relief including (1) certification as a class action on behalf of all foreign nationals who worked as a seafarer aboard the vessels of the Sealift Fleet between Jan. 1, 2015 and March 17, 2017; (2) payment of wages calculated at the highest rate of pay from the proposed class' port of embarkation; and (3) issuance of a writ of attachment of Sealift's vessel, the M/V Black Eagle. To avoid seizure, Sealift provided the Plaintiff with alternate security in the form of a Letter of Undertaking ("LOU") in the amount of $7.5 million issued by the American Steamship Owners Protection & Indemnity Association. After removal from state court, and pursuant to a Motion to Stay Litigation and Arbitration filed by Sealift, followed by various other motions, the last of which was a Motion to Appoint Arbitrator and, Additionally or in the Alternative, Motion to Enjoin Select Foreign Proceedings, the Court concluded that the Plaintiff's employment contract ("POEA") which contained an arbitration clause was enforceable and that the arbitral proceeding belongs before the arbitral bodies in the Philippines. It also found that Section 5 of the POEA grants the Court the authority to designate and appoint an arbitrator. The Court expressly noted that the counsel for Plaintiff Llagas had failed to comply with the Court's rulings and orders to arbitrate the Plaintiff's claims pursuant to the arbitration provision in the POEA. Due to the protracted motion practice, and the counsel for Plaintiff Llagas' blatant non-compliance with the Court's orders, the Court ordered him to proceed with arbitration in the Philippines with the National Conciliation Mediation Board of the Department of Labor and Employment within 30 days of the ruling. Also before the Court was a Motion to Certify Class which was denied due to a lack of standing because Llagas's claims are subject to arbitration under Fifth Circuit law. Sealift now asks the Court to reduce its $7.5 million bond to a maximum of $41,570. It argues that this amount is more than sufficient to secure any conceivable arbitration award in Llagas's favor. Llagas was employed as a "fitter," on various vessels owned by Sealift during 2015-2017; during that three-year period, Llagas worked 24 months and earned a total pay of $41,570 which equates to approximately $1,732 per month. Sealift informs the Court that the $7.5 million security equates to $312,500 per month which is roughly 180 times Llagas' gross earnings over three years. Llagas claims as damages the difference between the highest rate of wages available to fitters in Manila during the relevant time period, and the wages actually paid to Llagas. Llagas opposes the reduction in security. He asserts that the case is stayed pending arbitration and remains a putative class action. He attempts to persuade the Court not to evaluate the merits and value of the litigation. He acknowledges that it is up to the Philippine arbitrator to determine the merits of his individual claim and then argues that the putative class is at least the same today as it was when Sealift agreed to the $7.5 million LOU. Noting that it is Llagas' burden to prove the quantum of his claim as well as to demonstrate the "fairly stated" value of that claim for security purposes, Sealift suggests that security equal to Llagas' gross wages over three years ($41,570) is more than adequate for his claim. Thus, Sealift requests that its security be reduced from $7.5 million to $41,570. Judge Cain agrees with Sealift that the Court has authority to reduce its security and furthermore, that the security originally agreed upon is now excessive. The Judge notes that Llagas has not provided any quantum value of his claims for the Court to consider, nor does he dispute the reduced amount of security offered by Sealift. The Judge further finds that security in the amount of $41,570 as presented by Sealift is a reasonable amount as to Llagas' claims. For these reasons, Judge Cain granted the Motion to Reduce Security. The Court reduced the $7.5 million security and set at $41,570. A full-text copy of the District Court's July 31, 2020 Memorandum Ruling & Order is available at https://tinyurl.com/yypjr2rb from Leagle.com. SK FOODS: Status Conference in Cliffstar Case Moved to December --------------------------------------------------------------- In the case captioned CLIFFSTAR CORPORATION, on behalf of itself and all others similarly situated, Plaintiffs, v. SK FOODS, L.P., INGOMAR PACKING COMPANY, LOS GATOS TOMATO PRODUCTS, SCOTT SALYER, STUART WOOLF and GREG PRUETT, Defendants, Case No. 09-cv-00442 KJM EFB (E.D. Cal.), District Judge Kimberly J. Mueller approved the parties' stipulation that the Sept. 24, 2020 status conference be continued until Dec. 10, 2020, or any other date convenient for the Court to address status of the final distributions to the Class in the Consolidated Cases. On Sept. 16, 2014, the United States Bankruptcy Court for the Eastern District of California entered an order confirming the Second Amended Joint Plan of Liquidation of SK Foods, L.P. and its Substantively Consolidated Affiliates in the Chapter 11 bankruptcy action filed by Defendant SK Foods, L.P. Class counsel has informed Defendant Scott Salyer of the following facts relating to SK Foods bankruptcy proceedings. All funds from the Class settlements with Ingomar Packing Company, Los Gatos Tomato Products, Stuart Woolf and Greg Pruett have been paid and distributed to the Class and Final Judgment has been entered as to these Defendants in the consolidated cases Four in One Company v. SF Foods, LP, et al. (Case No. 2:08-cv-03017-KJM-EFB), Diversified Foods and Seasoning, Inc. v. SK Foods, et al. (Case No. 2:08-cv-03074 KJM-EFB), Bruce Foods Corporation v. SK Foods, LP, et al. (Case No. 2:09-cv-00027-KJM-EFB), and Cliffstar Corporation v. SK Foods, LP, et al. (Case No. 2:09-cv-00442-KJM-EFB) (the "Consolidated Cases"). A portion of the funds previously recovered through the SK Foods bankruptcy action have been paid and distributed to the Class in the Consolidated Cases, and the only remaining distributions to the Class are additional funds recovered pursuant to the SK Foods Bankruptcy Plan in the bankruptcy action. On Jan. 13, 2020, the Chapter 11 Trustee mailed a check to the escrow agent of Class Counsel for $306,954.36, an amount representing the second distribution to the Class of the Allowed General Unsecured Claim Amount of $10.6 million based on a distribution rate of 2.895796%, which was deposited into the escrow account for this case held by Class Counsel (the "Escrow Account Funds"), and has informed Class Counsel the Chapter 11 Trustee has made final distributions of bankruptcy funds to unsecured creditors and the Class. The Chapter 11 Trustee is performing outreach regarding uncashed checks after which time the Trustee will file a motion to address any unclaimed funds or redistributions, if needed, and close the case. The Chapter 11 Trustee informs Class Counsel that there could be one final distribution not expected to be material which would consist of a redistribution of the funds from the uncashed checks and any funds left over in the administrative reserve after closing the case. Pursuant to the SK Foods Bankruptcy Plan, Class Counsel is in the process of making a pro rata distribution of the Escrow Account Funds to Class members in accordance with the plan of allocation approved by this Court, subject to the fees awarded to Class Counsel by the bankruptcy court, and that approximately 87% of the total check value issued has been cashed with 14 checks which remain uncashed. The claims administrator has determined additional outreach to the available contacts for the uncashed checks would not be fruitful at this time, due to the continued unavailability of some employees as a result of Covid-19, and that additional outreach can be resumed in late September and early October. In a 2009 ruling with regard to the consolidation of the cases, Judge Morrisson England stated that the cases stem from alleged violations of antitrust law that arise from claimed anticompetitive conduct by numerous common defendants involved in the processed tomato products market. The March 2009 ruling is available at https://bit.ly/2TdmI9T from Leagle.com. A copy of the Court's Order is available at https://bit.ly/2HjMZB7 from Leagle.com. About SK Foods SK Foods LP ran a tomato processing facility. It filed for Chapter 11 bankruptcy protection after being dropped by its lending group. Creditors filed an involuntary Chapter 11 petition against SK Foods LP and affiliate RHM Supply/ Specialty Foods Inc. (Bankr. E.D. Cal. Case No. 09-29161) on May 8, 2009. SK Foods had said it was preparing to file a voluntary Chapter 11 petition when the creditors initiated the involuntary case. The Company later put itself into Chapter 11 and Bradley D. Sharp was appointed as Chapter 11 trustee. The Debtors were authorized on June 26, 2009, to sell the business for $39 million cash to a U.S. arm of Singapore food processor Olam International Ltd. The replacement cost for the assets is $139 million, according to Olam. In February 2010, a federal grand jury returned a seven-count indictment charging Frederick Scott Salyer, former owner and CEO of SK Foods, with violations of the Racketeer Influenced and Corrupt Organizations Act, in connection with his direction of various schemes to defraud SK Foods' corporate customers through bribery and food misbranding and adulteration, and with wire fraud and obstruction of justice. Salyer supporters launched a Web site which can be accessed from two addresses: http://www.operationrottentomato.com/and http://www.scott-salyer.com/ SK FOODS: Status Conference in DFSI Case Moved to Dec. 10 --------------------------------------------------------- In the case captioned DIVERSIFIED FOODS AND SEASONING, INC., on behalf of itself and all others similarly situated, Plaintiffs, v. SK FOODS, L.P., INGOMAR PACKING COMPANY, LOS GATOS TOMATO PRODUCTS, SCOTT SALYER, STUART WOOLF and GREG PRUETT, Defendants, Case No. 08-cv-03074 KJM EFB (E.D. Cal.), District Judge Kimberly J. Mueller approved the parties' stipulation that the Sept. 24, 2020 status conference be continued until Dec. 10, 2020, or any other date convenient for the Court to address status of the final distributions to the Class in the Consolidated Cases. On Sept. 16, 2014, the United States Bankruptcy Court for the Eastern District of California entered an order confirming the "Second Amended Joint Plan of Liquidation of SK Foods, L.P. and its Substantively Consolidated Affiliates in the Chapter 11 bankruptcy action filed by Defendant SK Foods, L.P. Class counsel has informed Defendant Scott Salyer of the following facts relating to SK Foods bankruptcy proceedings. All funds from the Class settlements with Ingomar Packing Company, Los Gatos Tomato Products, Stuart Woolf and Greg Pruett have been paid and distributed to the Class and Final Judgment has been entered as to these Defendants in the consolidated cases Four in One Company v. SF Foods, LP, et al. (Case No. 2:08-cv-03017-KJM-EFB), Diversified Foods and Seasoning, Inc. v. SK Foods, et al. (Case No. 2:08-cv-03074 KJM-EFB), Bruce Foods Corporation v. SK Foods, LP, et al. (Case No. 2:09-cv-00027-KJM-EFB), and Cliffstar Corporation v. SK Foods, LP, et al. (Case No. 2:09-cv-00442-KJM-EFB) (the "Consolidated Cases"). A portion of the funds previously recovered through the SK Foods bankruptcy action have been paid and distributed to the Class in the Consolidated Cases, and the only remaining distributions to the Class are additional funds recovered pursuant to the SK Foods Bankruptcy Plan in the bankruptcy action. On Jan. 13, 2020, the Chapter 11 Trustee mailed a check to the escrow agent of Class Counsel for $306,954.36, an amount representing the second distribution to the Class of the Allowed General Unsecured Claim Amount of $10.6 million based on a distribution rate of 2.895796%, which was deposited into the escrow account for this case held by Class Counsel (the "Escrow Account Funds"), and has informed Class Counsel the Chapter 11 Trustee has made final distributions of bankruptcy funds to unsecured creditors and the Class. The Chapter 11 Trustee is performing outreach regarding uncashed checks after which time the Trustee will file a motion to address any unclaimed funds or redistributions, if needed, and close the case. The Chapter 11 Trustee informs Class Counsel that there could be one final distribution not expected to be material which would consist of a redistribution of the funds from the uncashed checks and any funds left over in the administrative reserve after closing the case. Pursuant to the SK Foods Bankruptcy Plan, Class Counsel is in the process of making a pro rata distribution of the Escrow Account Funds to Class members in accordance with the plan of allocation approved by this Court, subject to the fees awarded to Class Counsel by the bankruptcy court, and that approximately 87% of the total check value issued has been cashed with 14 checks which remain uncashed. The claims administrator has determined additional outreach to the available contacts for the uncashed checks would not be fruitful at this time, due to the continued unavailability of some employees as a result of Covid-19, and that additional outreach can be resumed in late September and early October. In a 2009 ruling with regard to the consolidation of the cases, Judge Morrisson England stated that the cases stem from alleged violations of antitrust law that arise from claimed anticompetitive conduct by numerous common defendants involved in the processed tomato products market. The March 2009 ruling is available at https://bit.ly/2TdmI9T from Leagle.com. A copy of the Court's Order is available at https://bit.ly/3kjku4R from Leagle.com. About SK Foods SK Foods LP ran a tomato processing facility. It filed for Chapter 11 bankruptcy protection after being dropped by its lending group. Creditors filed an involuntary Chapter 11 petition against SK Foods LP and affiliate RHM Supply/ Specialty Foods Inc. (Bankr. E.D. Cal. Case No. 09-29161) on May 8, 2009. SK Foods had said it was preparing to file a voluntary Chapter 11 petition when the creditors initiated the involuntary case. The Company later put itself into Chapter 11 and Bradley D. Sharp was appointed as Chapter 11 trustee. The Debtors were authorized on June 26, 2009, to sell the business for $39 million cash to a U.S. arm of Singapore food processor Olam International Ltd. The replacement cost for the assets is $139 million, according to Olam. In February 2010, a federal grand jury returned a seven-count indictment charging Frederick Scott Salyer, former owner and CEO of SK Foods, with violations of the Racketeer Influenced and Corrupt Organizations Act, in connection with his direction of various schemes to defraud SK Foods' corporate customers through bribery and food misbranding and adulteration, and with wire fraud and obstruction of justice. Salyer supporters launched a Web site which can be accessed from two addresses: http://www.operationrottentomato.com/and http://www.scott-salyer.com/ SK FOODS: Status Conference in Four in One Case Moved to December ----------------------------------------------------------------- In the case captioned FOUR IN ONE COMPANY, INC., on behalf of itself and all others similarly situated, Plaintiffs, v. SK FOODS, L.P., INGOMAR PACKING COMPANY, LOS GATOS TOMATO PRODUCTS, SCOTT SALYER, STUART WOOLF and GREG PRUETT, Defendants, Case No. 08-cv-3017 KJM EFB.(E.D. Cal.), District Judge Kimberly J. Mueller approved the parties' stipulation that the Sept. 24, 2020 status conference be continued until Dec. 10, 2020, or any other date convenient for the Court to address status of the final distributions to the Class in the Consolidated Cases. On Sept. 16, 2014, the United States Bankruptcy Court for the Eastern District of California entered an order confirming the Second Amended Joint Plan of Liquidation of SK Foods, L.P. and its Substantively Consolidated Affiliates in the Chapter 11 bankruptcy action filed by Defendant SK Foods, L.P. Class counsel has informed Defendant Scott Salyer of the following facts relating to SK Foods bankruptcy proceedings. All funds from the Class settlements with Ingomar Packing Company, Los Gatos Tomato Products, Stuart Woolf and Greg Pruett have been paid and distributed to the Class and Final Judgment has been entered as to these Defendants in the consolidated cases Four in One Company v. SF Foods, LP, et al. (Case No. 2:08-cv-03017-KJM-EFB), Diversified Foods and Seasoning, Inc. v. SK Foods, et al. (Case No. 2:08-cv-03074 KJM-EFB), Bruce Foods Corporation v. SK Foods, LP, et al. (Case No. 2:09-cv-00027-KJM-EFB), and Cliffstar Corporation v. SK Foods, LP, et al. (Case No. 2:09-cv-00442-KJM-EFB) (the "Consolidated Cases"). A portion of the funds previously recovered through the SK Foods bankruptcy action have been paid and distributed to the Class in the Consolidated Cases, and the only remaining distributions to the Class are additional funds recovered pursuant to the SK Foods Bankruptcy Plan in the bankruptcy action. On Jan. 13, 2020, the Chapter 11 Trustee mailed a check to the escrow agent of Class Counsel for $306,954.36, an amount representing the second distribution to the Class of the Allowed General Unsecured Claim Amount of $10.6 million based on a distribution rate of 2.895796%, which was deposited into the escrow account for this case held by Class Counsel (the "Escrow Account Funds"), and has informed Class Counsel the Chapter 11 Trustee has made final distributions of bankruptcy funds to unsecured creditors and the Class. The Chapter 11 Trustee is performing outreach regarding uncashed checks after which time the Trustee will file a motion to address any unclaimed funds or redistributions, if needed, and close the case. The Chapter 11 Trustee informs Class Counsel that there could be one final distribution not expected to be material which would consist of a redistribution of the funds from the uncashed checks and any funds left over in the administrative reserve after closing the case. Pursuant to the SK Foods Bankruptcy Plan, Class Counsel is in the process of making a pro rata distribution of the Escrow Account Funds to Class members in accordance with the plan of allocation approved by this Court, subject to the fees awarded to Class Counsel by the bankruptcy court, and that approximately 87% of the total check value issued has been cashed with 14 checks which remain uncashed. The claims administrator has determined additional outreach to the available contacts for the uncashed checks would not be fruitful at this time, due to the continued unavailability of some employees as a result of Covid-19, and that additional outreach can be resumed in late September and early October. In a 2009 ruling with regard to the consolidation of the cases, Judge Morrisson England stated that the cases stem from alleged violations of antitrust law that arise from claimed anticompetitive conduct by numerous common defendants involved in the processed tomato products market. The March 2009 ruling is available at https://bit.ly/2TdmI9T from Leagle.com. A copy of the Court's Order is available at https://bit.ly/3dJ79Al from Leagle.com. About SK Foods SK Foods LP ran a tomato processing facility. It filed for Chapter 11 bankruptcy protection after being dropped by its lending group. Creditors filed an involuntary Chapter 11 petition against SK Foods LP and affiliate RHM Supply/ Specialty Foods Inc. (Bankr. E.D. Cal. Case No. 09-29161) on May 8, 2009. SK Foods had said it was preparing to file a voluntary Chapter 11 petition when the creditors initiated the involuntary case. The Company later put itself into Chapter 11 and Bradley D. Sharp was appointed as Chapter 11 trustee. The Debtors were authorized on June 26, 2009, to sell the business for $39 million cash to a U.S. arm of Singapore food processor Olam International Ltd. The replacement cost for the assets is $139 million, according to Olam. In February 2010, a federal grand jury returned a seven-count indictment charging Frederick Scott Salyer, former owner and CEO of SK Foods, with violations of the Racketeer Influenced and Corrupt Organizations Act, in connection with his direction of various schemes to defraud SK Foods' corporate customers through bribery and food misbranding and adulteration, and with wire fraud and obstruction of justice. Salyer supporters launched a Web site which can be accessed from two addresses: http://www.operationrottentomato.com/and http://www.scott-salyer.com/ SODEXO INC: Underpays Hospital Staff, Nodal Suit Alleges -------------------------------------------------------- FRANCISCO NODAL, on behalf of himself and all others aggrieved, Plaintiff v. SODEXO, INC.; SDH SERVICES WEST, LLC; SHARP MEMORIAL HOSPITAL; TIM SMITH; and DOES 1 through 100, inclusive, Defendants, Case No. 20STCV40601 (Cal. Super., Los Angeles Cty., October 22, 2020) is a class action against the Defendants for violations of the California Labor Code Private Attorney's General Act including failure to provide the Plaintiff and all others similarly situated employees appropriate minimum wages and overtime pay for all hours worked, failure to provide required meal and rest periods or provide compensation in lieu thereof, failure to timely pay wages during employment and upon termination, and failure to furnish accurate itemized wage statements. The Plaintiff worked for the Defendants as a non-exempt employee, with duties that included, but were not limited to, maintaining and cleaning the floors at Sharp Memorial Hospital in San Diego, California since June 2015. Sodexo, Inc. is a company that provides outsourced food and facilities management services, headquartered in Gaithersburg, Maryland. SDH Services West, LLC is a wholly-owned subsidiary of Sodexo, Inc. based in Gaithersburg, Maryland. Sharp Memorial Hospital is a hospital located in San Diego, California. [BN] The Plaintiff is represented by: David D. Bibiyan, Esq. Diego Aviles, Esq. Sara Ehsani-Nia, Esq. BIBIYAN LAW GROUP, P.C. 8484 Wilshire Boulevard, Suite 500 Beverly Hills, CA 90211 Telephone: (310) 438-5555 Facsimile: (310) 300-1705 E-mail: david@tomorrowlaw.com diego@tomorrowlaw.com sara@tomorrowlaw.com SONIC CORP: Faces Collins TCPA Suit Over Unsolicited Text Messages ------------------------------------------------------------------ DANNY COLLINS, individually and on behalf of all others similarly situated, Plaintiff v. SONIC CORP., d/b/a SONIC DRIVE-IN, a Delaware Corporation, Defendant, Case No. 5:20-cv-01067-JD (W.D. Okla., October 21, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Telephone Consumer Protection Act. According to the complaint, the Defendant sent telemarketing text messages to the Plaintiff's cellular telephone number ending in 0177 on or around July 11, 2020 and July 22, 2020 in an attempt to encourage the Plaintiff to avail its services. Despite the Plaintiff's preferred opt-out language, the Defendant continued sending promotional text message to the Plaintiff's cellular telephone. Sonic Corp. operates drive-in fast-food restaurant chain. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Tel: (305) 479-2299 E-mail: ashamis@shamisgentile.com ST. DAVID'S: Court Partially Grants Motion to Dismiss Mock's Action ------------------------------------------------------------------- In the case MELANIE MOCK, on behalf of herself and all others similarly situated, Plaintiff, v. ST. DAVID'S HEALTHCARE PARTNERSHIP, L.P., LLP, a Texas limited liability partnership, Case No. 1:19-cv-611-RP (W.D. Texas), Judge Robert Pitman of the U.S. District Court for Western District of Texas adopted the Report and Recommendation of Magistrate Judge Andrew Austin concerning Defendant's Motion to Dismiss. Accordingly, St. David's Motion to Dismiss is granted in part and denied in part, the Court rules. The Court makes clear that the R&R is adopted with the clarification that Mock has standing to seek injunctive relief to prevent future collection efforts. The Court further orders that Mock's objections are granted only for the purpose of clarifying the report and recommendation. A copy of Judge Pitman's Sept. 2, 2020 Order is available at https://tinyurl.com/y4wv2ry7 from PacerMonitor.com. The case is a putative class action suit in which Plaintiff Mock asserts DTPA and Federal Declaratory Judgment Act claims against Defendant St. David's. Mock asserts that St. David's improperly charged her and other patients hidden emergency department fees for "overhead expenses" in the form of a surcharge. Mock seeks declaratory and injunctive relief. Mock was admitted to the St. David's South Austin Medical Center's Emergency Department on Oct. 27, 2018. Upon admission, she signed St. David's form contract, called the Conditions of Admission and Consent for Outpatient Care. It states that in consideration of the services to be rendered to Patient, Patient or Guarantor individually promises to pay the Patient's account at the rates stated in the hospital's price list (known as the Charge Master) effective on the date the charge is processed for the service provided. The Charge Master identifies five possible pricing levels for the ED Facility Fee: Level 1: $396; Level 2: $719; Level 3 $1,364; Level 4: $2,800; and Level 5: $3,975. Mock was charged the Level 4 fee of $2,800. She was billed $13,288 including a $2,800 ED Facility Fee for her visit to the St. David's emergency room. St. David's bill to Mock's insurer included a HCPCS code of 99284 for the ED Facility Fee. After insurance reductions and a payment of $75, Mock owes St. David's $8,960.84. To date, Mock has not paid any portion of the bill. Mock seeks a number of declarations for herself and the putative class and also requests an injunction. With regard to the declarations, she asks that the Court declare that: (1) St. David's billing practices for the ED Facility Fee are unconscionable under Texas common law and the DTPA; (2) the Contract she signed does not authorize the ED Facility Fee; (3) Mock and the putative class are not liable for the ED Facility Fee; and (4) St. David's billing practices for the ED Facility Fee are deceptive trade practices under DTPA. For injunctive relief, she requests an injunction that would require St. David's to disclose the ED Facility Fee before treatment and prohibit St. David's from billing and collecting the ED Facility Fee without advance disclosure. St. David's moved to dismiss with prejudice arguing that Mock lacks standing to bring her claims and that it complies with all federal and state laws governing disclosure and billing in charging these fees. St. David's further argued that Mock has failed to plead a viable DTPA claim, and therefore cannot bring a Federal Declaratory Judgment Act claim. Mock responded that she has suffered an injury in fact conferring standing and she has pled a viable DTPA claim. July 2020 Report & Recommendation Magistrate Judge Austin reviewed the Motion to Dismiss and issued a Report and Recommendation dated July 2020. To satisfy the irreducible constitutional minimum of standing under Article III, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. St. David's only contests the first and third elements of the test. Magistrate Judge Austin concluded that Mock satisfies the injury-in-fact requirement for standing, as her outstanding debt to St. David's, which includes the entirety of that $2,800 fee, demonstrates she has suffered an actual injury. Assuming that the Plaintiff is correct that the Service Fee is unlawful, she would be injured if forced to pay the fee under the Patient Contract. As to the redressability prong of the standing inquiry, Judge Austin has identified Mock's injury as the debt she owes to St. David's for the fees imposed. Each of the requested declarations would redress Mock's injury. She therefore fulfills the redressability prong of the standing analysis as to this portion of the relief requested. But Mock also requests injunctive relief that is forward looking, which would require St. David's to disclose the ED Facility Fee before treatment, and prohibit it from billing and collecting the ED Facility Fee without advance disclosure. Such an injunction would not address the injury Mock is suing for in the case -- her debt to St. David's. Instead, it would address future emergency room patients, and Mock has submitted no evidence that she is likely to suffer any such future injury. She therefore lacks standing to sue for this injunction, Judge Austin held. St. David's also asserts that Mock's claims brought pursuant to the Declaratory Judgment Act and DTPA should be dismissed for failure to state a claim pursuant to Rule 12(b)(6). It makes six arguments: (1) St. David's has complied with applicable state and federal law because it disclosed the ED Facility Fee in the Charge Master which is referenced in the Contract Mock signed upon admission; (2) the DTPA claim fails because Mock failed to plead economic damages and did not plead the alleged fraud with enough particularity to comply with Rule 9; (3) Mock failed to adequately plead a claim specifically enumerated in Tex. Bus. & Com. Code Section 17.50(a); (4) Mock failed to adequately plead a DTPA unconscionability claim; (5) the putative class' DTPA claims are largely time-barred; and (6) Mock has failed to plead a viable declaratory judgment claim. Magistrate Judge Austin finds that (i) the DTPA is a law of the state of Texas as much as the Texas Health and Safety Code is, and if the latter is not precluded by federal law, the former is not either; (ii) nothing in the DTPA requires Mock to plead for economic or mental anguish damages; (iii) Mock's pleadings are adequate to state a plausible claim that St. David's actions in not disclosing the ED Facility Fee were unconscionable; (iv) because Mock brings her substantive claims under the DTPA, its two year statute of limitation applies, and any claims based on conduct occurring prior to May 21, 2017, would be barred; and (v) because he has found Mock has adequately stated a claim for relief pursuant to the DTPA, St. David's assertion that Mock cannot bring a Declaratory Judgment Act claim because she has failed to plead a viable DTPA claim argument fails. In sum, in a July 31, 2020 Report & Recommendation available at https://tinyurl.com/y3eu9yj4 from Leagle.com, Magistrate Judge Austin recommended that the District Court grant in part and deny in part St. David's Motion to Dismiss Plaintiff's First Amended Complaint. Specifically, he recommended that the Court grants the motion as to Mock's claim seeking an injunction for lack of standings, any claims accruing prior to May 21, 2017, as time barred, but otherwise denies the motion in all other respects. STAAR SURGICAL: Pomerantz Law Firm Reminds of Class Action ---------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against STAAR Surgical Company ("STAAR" or the "Company") (NASDAQ: STAA) and certain of its officers. The class action, filed in United States District Court for the Central District of California, Southern Division, and docketed under 20-cv-01660, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired STAAR Surgical Company securities between February 26, 2020, and August 10, 2020, inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder by the SEC, 17 C.F.R. § 240.10b-5. If you are a shareholder who purchased STAAR securities during the class period, you have until October 19, 2020, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. STARR designs, develops, manufactures, and sells implantable lenses for the eye and companion delivery systems used to deliver the lenses into the eye. STAAR's primary products are: (1) "implantable Collamer® lenses," or "ICLs," used in refractive surgery; and (2) intraocular lenses, or "IOLs," used in cataract surgery. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts to investors. Specifically, Defendants misrepresented and/or failed to disclose to investors that the Company was overstating and/or mischaracterizing: (1) its sales and growth in China; (2) its marketing spend; (3) its research and development expenses; and that as a result of the foregoing, (4) Defendants' public statements were materially false and misleading at all relevant times. On August 5, 2020, after the markets closed, STAAR reported disappointing financial results, as detailed below. On this news, shares of STAAR common stock fell approximately 10%, down from the August 5, 2020 closing price of $61.81 to an August 6, 2020 close of $55.86. On August 11, 2020, analyst J Capital Research published a report in which it wrote that "[w]e think that STAAR Surgical has overstated sales in China by at least one-third, or $21.6 mln. That would mean that all of the company's $14 mln in 2019 profit is fake." The report continued that "[f]ake sales [in China] come at 100% margins and therefore translate directly into profit. That means that the roughly $21.6 mln in overstated Chinese sales in 2019 represents 152% of total company profit. In other words, without the fraud that we believe pervades the China business, STAAR is losing money." J Capital Research stated in reaching its conclusions, it "conduct[ed] over 75 interviews, visited company sites in China and Switzerland, and reviewed financial statements and other government documents for STAAR's distributors and customers in China. We will show that sales of STAAR's ICLs are dramatically overstated." On this news, the stock continued its descent, closing at just $48.25 per share on August 11, 2020. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. [GN] STARKEY LABORATORIES: Court Narrows Claims in Beck ERISA-RICO Suit ------------------------------------------------------------------ In the case, JAIME BECK, BYRON HANSON, and LYNN MELCHER, Plaintiffs, v. WILLIAM F. AUSTIN; BRANDON SAWALICH; JEROME RUZICKA; SCOTT A. NELSON; LAWRENCE W. MILLER; W. JEFFREY TAYLOR; JEFFREY LONGTAIN; STARKEY LABORATORIES, INC.; Defendants, Case No. 19-CV-1453 (PJS/ECW) (D. Minn.), Judge Patrick J. Schiltz of the U.S. District Court for the District of Minnesota granted in part and denied in part the Defendants' motion to dismiss. Starkey is a privately held Minnesota corporation that manufactures hearing aids. From 2006 to 2015, it was the victim of fraudulent schemes perpetrated by some of its high-level executives and their coconspirators. These thieves stole approximately $30 million from Starkey. Plaintiffs Beck, Hanson, and Melcher were participants in Starkey's employee stock ownership plan ("ESOP"). The Plaintiffs bring the putative class action asserting claims under the Employee Retirement Income Security Act ("ERISA"), the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and common law arising out of the fraudulent schemes and the failure to detect and prevent them. The matter before the Court is a motion to dismiss brought by three Defendants: Starkey, William Austin (founder and CEO of Starkey), and Brandon Sawalich (president of Starkey). The fiduciary Defendants move to dismiss all of the claims against them on the ground that those claims have been settled and released. The Plaintiffs do not dispute that all of their claims -- which they are asserting on behalf of the ESOP -- fall within the scope of the release (with the exception of their claims against Taylor, the former president of Sonion). Instead, they argue that, under the collateral-source rule, the release is ineffective with respect to the individual Defendants. Specifically, they argue that, because Starkey was the sole source of funds for the settlement payment, the payment is a "collateral source" as to the individual Defendants and cannot operate to bar claims against them. Judge Schiltz finds argument to be plainly meritless. The Plaintiffs have not cited, and the Judge has not found, a single judicial decision suggesting that a plaintiff can enter a settlement agreement under which it expressly agrees to release its claims against the paying party and other parties in return for money, accept that money from the paying party, and then turn around and sue the very parties whom it was just paid to release. The Judge rejects the Plaintiffs' argument -- as well as their closely related argument that the settlement operates only as an offset rather than a bar. The Plaintiffs next argue that the release was a prohibited transaction and thus is invalid unless it meets the requirements of the Prohibited Transaction Exemption ("PTE") 2003-39. The parties dispute whether the Plaintiffs must plead facts that plausibly call into question the validity of the release under PTE 2003-39. The Plaintiffs argue that they are under no obligation to plead that their claims were not released -- or, more specifically, to plead that the release did not meet the requirements of PTE 2003-39 -- because release is an affirmative defense that must be pleaded and proved by the Defendants. The Judge need not resolve the parties' dispute about what, if anything, the Plaintiffs were required to plead about the validity of the release under PTE 2003-39. The Defendants do not contend that the release was in effect at the time that the Plaintiffs filed their amended complaint. Instead, they argued in their opening brief that the release of claims will become effective if the second independent fiduciary, retained pursuant to the procedures set forth by PTE 2003-39, approves the settlement terms as reasonable. As a result, even if the Plaintiffs generally bear the burden of pleading facts that plausibly call into question the validity of a release, that obligation cannot possibly apply to a Plaintiff who files a complaint when no such release exists. The Judge therefore denies the Defendants' motion to dismiss insofar as it is premised on their argument that the claims have been released. That said, the Judge believes that it is quite likely that the Plaintiffs' claims (save for those against Taylor) are in fact barred by the release. In order to spare the parties from incurring the considerable expense of engaging in full discovery on the merits of claims that appear to have been released -- and recognizing that Starkey paid $800,000 to the ESOP so that the Defendants would not have to bear the costs of litigating claims brought on behalf of the ESOP -- the Judge will bifurcate discovery. The first phase of discovery will be strictly limited to matters relevant to the validity of the release under PTE 2003-39. The Judge will then determine if the release is valid. If he determines that the release is invalid -- or that a jury must decide the question of validity -- then the parties can engage in a second phase of discovery on the merits of the claims and defenses involved in the litigation. The Defendants move to dismiss the Plaintiffs' fiduciary-duty claims to the extent that those claims are focused on Austin's and Sawalich's actions after September 2015, when the fraud was discovered. The Plaintiffs do not allege any harm to the ESOP caused by Austin's and Sawalich's delay. At oral argument, the Plaintiffs premise of their claims is that the ESOP suffered losses due to the RICO Defendants' fraudulent activities and that Austin should have attempted to recover those losses on the ESOP's behalf. All of it may be true, but the fact remains that Austin's inaction after September 2015 did not impair the ESOP's ability to recover and therefore, under the Plaintiffs' theory of the case, Austin did not cause the loss. The Plaintiffs have therefore failed to state a claim for a post-September 2015 breach of fiduciary duty. In Counts III and IV of the amended complaint, the Plaintiffs bring a claim for violations of co-fiduciary duties and an alternative claim for an accounting. The Defendants' only argument with respect to these claims is that they are derivative of the Plaintiffs' other fiduciary-duty claims and so should be dismissed. As the Plaintiffs still have pending fiduciary-duty claims for pre-September 2015 conduct, however, dismissing these claims would be premature. Finally, in Count V of the amended complaint, the Plaintiffs plead a claim to reverse pierce the corporate veil in order to hold Starkey liable for Austin's alleged breaches of his fiduciary duties to Starkey and the ESOP. The Judge holds that the allegations are insufficient to plead a plausible basis for reverse piercing in the case. As the Plaintiffs admit, Starkey conducts legitimate business, is sufficiently capitalized, pays dividends, and is solvent. Even if they could satisfy the first prong of Victoria Elevator, they Plaintiffs cannot show that reverse piercing is necessary to avoid injustice or fundamental unfairness. They provide no reason to believe that Austin will be unable to pay any judgment entered against him. Moreover, if Austin's own alleged negligence were enough to justify reverse piercing, then reverse piercing would be the rule rather than the rare exception. The Judge therefore grants the Defendants' motion to dismiss the reverse-piercing claim. Based on the foregoing, and on all of the files, records, and proceedings, Judge Schiltz granted in part and denied in part the Defendants' motion to dismiss. The Judge granted the motion as to the following claims, and those claims are dismissed with prejudice and on the merits: (i) Counts I, II, and III to the extent that they are based on defendants William Austin's and Brandon Sawalich's post-September 2015 failure to bring a lawsuit on behalf of the ESOP, and (ii) Count V. The Judge denied the motion in all other respects. A full-text copy of the District Court's Aug. 4, 2020 Order is available at https://tinyurl.com/yxgffy5s from Leagle.com. Kate M. Baxter-Kauf -- kmbaxter-kauf@locklaw.com -- Gregg M. Fishbein -- gmfishbein@locklaw.com -- Arielle S. Wagner -- aswagner@locklaw.com -- and Kristen G. Marttila -- kgmarttila@locklaw.com -- LOCKRIDGE GRINDAL NAUEN P.L.L.P., for plaintiffs. Scott A. Neilson -- sneilson@hensonefron.com -- and David Bradley Olsen -- dolsen@hensonefron.com -- HENSON & EFRON, P.A. for defendants William F. Austin, Brandon Sawalich, and Starkey Laboratories, Inc. SUMMIT HEALTH: Braunshtein Remanded to L.A. County Superior Court ----------------------------------------------------------------- Judge Stephen V. Wilson of the U.S. District Court for the Central District of California remanded the case, PAVEL JOSEPH BRAUNSHTEIN, as an individual and on behalf of all others similarly situated, Plaintiff, v. SUMMIT HEALTH INC. D/B/A RETAIL HEALTH NETOWRK, INC., a Michigan corporation; and DOES 1 through 100, Defendants, Case No. 2:20-cv-00937-SVW-KS (C.D. Cal.), to the Superior Court of the State of California for the County of Los Angeles. The Parties have stipulated to the remand of the action. A full-text copy of the Court's July 28, 2020 Order is available at https://tinyurl.com/yxrdr6sb from Leagle.com. TACTILE SYSTEMS: Gainey McKenna Reminds of Nov. 30 Deadline ----------------------------------------------------------- Gainey McKenna & Egleston announces that a class action lawsuit has been filed against Tactile Systems Technology, Inc. ("Tactile Systems" or the "Company") (NASDAQ: TCMD) in the United States District Court for the District of Minnesota on behalf of those who purchased or acquired the securities of Tactile Systems between May 7, 2018 and June 8, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Tactile Systems investors under the federal securities laws. The Complaint alleges that Defendants failed to disclose to investors that: (1) while the Company publicly touted a $4 plus billion or $5 plus billion market opportunity, in truth, the total addressable market for the Company's medical devices was materially smaller; (2) to induce sales growth and share gains, Tactile engaged in illegal sales and marketing activities; and (3) the Company's revenues were in part the product of unlawful conduct and thus unsustainable. Investors who purchased or otherwise acquired shares of Tactile Systems during the Class Period should contact the Firm prior to the November 30, 2020 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. [GN] THOMAS P. GOHAGAN: Can Compel Arbitration in Saperstein Class Suit ------------------------------------------------------------------ In the case, GUY SAPERSTEIN, Plaintiff, v. THOMAS P. GOHAGAN & COMPANY, et al., Defendants, Case No. 20-cv-03143-JCS (N.D. Cal.), Chief Magistrate Judge John C. Spero of the U.S. District Court for the Northern District of California granted Defendant Gohagan's motion to compel arbitration and dismiss or stay the proceeding. Guy Saperstein commenced a putative class action against Defendant Gohagan, asserting claims of breach of contract, breach of covenant of good faith and fair dealing, intentional misrepresentation, unjust enrichment, and violations of California's Unfair Competition Law. In August 2019, Saperstein and his wife, Jeanine Saperstein, purchased a deluxe travel program from Gohagan on Cal Discoveries Travel, a travel booking site for alumni of the University of California, Berkeley. Gohagan is one of a dozen specialized wholesale tour operators that participate in Cal Discoveries Travel. The Sapersteins made reservations for the European Coastal Civilizations: A Voyage from Lisbon to London scheduled from April 27, 2020 to May 6, 2020. On Aug. 26, 2019, they also purchased travel insurance in connection with the Cruise and paid a total of $3,079 to Travel Guard Americas, LLC. In order to register for the Cruise, the Plaintiff signed a reservation form and submitted it to Gohagan's offices. The reservation form contained the Release of Liability, Assumption of Risk and Binding Arbitration Agreement. Saperstein signed the reservation form and paid a deposit of $2,000 on Aug. 16, 2019, and Gohagan confirmed the reservation on Aug. 19, 2019. On Dec. 18, 2019, the Sapersteins received an invoice for and paid the remaining balance of $27,480 to Gohagan. In total, the Sapersteins paid Gohagan $29,480. In March 2020, Gohagan notified the Sapersteins that it had canceled the Cruise in light of the COVID-19 pandemic. Gohagan presented the Sapersteins with two options for compensation: (1) transfer the reservation and money paid to another European Coastal Civilizations travel program in 2021 or 2022, or (2) receive travel certificates valid on other Gohagan travel programs operating through 2022. Gohagan denied Saperstein's request for a refund of monies paid to Gohagan for the Cruise. On May 7, 2020, Saperstein brought the action alleging Gohagan breached its contract with Saperstein by denying Saperstein's request to refund the money he paid for the Cruise after Gohagan announced the cancellation. He also alleges breach of covenant of good faith and fair dealing, intentional misrepresentation, unjust enrichment, and violations of the Unfair Competition Law against Gohagan in relation to the same set of facts. Saperstein initially named Travel Guard as a second Defendant, but dismissed all claims against that party without prejudice on May 19, 2020. Gohagan filed a motion to compel arbitration and dismiss or stay the proceeding based on an arbitration provision in the trip reservation form between Saperstein and Gohagan. It also argues that Saperstein's claims fall within the scope of the signed arbitration agreement and that relevant case law supports enforcing the arbitration agreement. It further argues that the agreement to arbitrate is unambiguous and enforceable and that Saperstein's claims against it fall within the scope of the arbitration provision in the parties' agreement. Alternatively, Gohagan argues that questions about the scope or enforceability of the arbitration agreement should be resolved by the arbitrator in accordance with the delegation clause of the arbitration agreement. In his opposition, Saperstein concedes that the Court must compel arbitration if (1) a valid agreement to arbitrate exists, and (2) the dispute at issue falls within the scope of that agreement, but argues that there is no such valid agreement to arbitrate because the arbitration provision cited by Gohagan is unconscionable and thus unenforceable under California law. He suggests the contract is procedurally unconscionable because it contains both the elements of oppression and surprise required to make a showing of procedural unconscionability under California law. Saperstein argues that the agreement is substantively unconscionable because it grants Gohagan the sole authority to amend the contract. Alternatively, Saperstein argues that the arbitration provision is invalid because it prevents his request for public injunctive relief. Magistrate Judge Spero finds that the motion is appropriate for resolution without oral argument, and vacates the hearing and case management conference scheduled for Aug. 7, 2020. Because Gohagan has presented undisputed evidence that Saperstein signed an agreement which contains both an arbitration provision and delegation clause requiring resolution of the dispute by arbitration, the Magistrate Judge finds that Gohagan has met its burden of showing that Saperstein agreed to the arbitration clause Gohagan seeks to enforce. Turning to the delegation clause, the Magistrate Judge finds that Saperstein had not shown that the delegation clause present in his agreement with Gohagan is unconscionable. Pursuant to the Supreme Court's ruling in Rent-A-Center and his analysis, a valid agreement exists between Saperstein and Gohagan at least to arbitrate gateway issues of arbitrability, which encompasses the dispute of whether the broader arbitration provision is unconscionable. Thus, the FAA requires enforcement of the delegation provision in accordance with its terms. Whether any other provision of the parties' agreement might be unconscionable is for an arbitrator to decide. Finally, the Magistrate Judge holds that he need not decide whether Saperstein actually seeks public injunctive relief because Saperstein conspicuously fails to argue that the arbitration provision Gohagan seeks to enforce would prevent such relief. The arbitration provision at issue contains no language purporting to preclude public injunctive relief in any way, and Saperstein fails to argue how it would have such an effect. Thus, Saperstein has not shown that the agreement would violate the McGill v. Citibank, N.A. rule. To the extent that Saperstein seeks public injunctive relief, an arbitrator may determine whether to award such relief. For the reasons discussed, Magistarte Judge Spero granted the Defendant's motion to compel arbitration, and stayed the case pending arbitration. If an arbitrator determines that the arbitration agreement is invalid or unenforceable, or that any aspect of Saperstein's claims should be litigated in court rather than arbitrated, Saperstein may file a motion to lift the stay. If the case proceeds in arbitration to a complete resolution, either party may move to dismiss the action. A status conference is set for Jan. 29, 2021 at 2:00 p.m., and the parties will file a joint report on the status of arbitration no later than Jan. 22, 2021. A full-text copy of the District Court's Aug. 4, 2020 Order is available at https://tinyurl.com/y6kc856n from Leagle.com. TRANSWORLD SYSTEMS: Denial of Arbitration Bid in Landry Affirmed ---------------------------------------------------------------- The Supreme Judicial Court of Massachusetts, Worcester, affirmed the denial of Transworld's motion to compel arbitration in the case, PHILIP LANDRY vs. TRANSWORLD SYSTEMS INC, Case No. SJC-12813 (Mass.). Landry, purportedly owes a debt to Enterprise Rent-A-Car Company of Boston, LLC (Enterprise), for damage to a rental vehicle that he has declined to pay. In February 2018, Landry rented a vehicle from Enterprise, which Enterprise asserts that he returned in a damaged condition. Enterprise repaired the vehicle and billed Landry for the repairs. After Landry failed to make any payment, Enterprise assigned the debt to Transworld, a company that Enterprise had engaged to provide it debt collection services. In September 2018, Landry filed a class action complaint against Transworld in the Superior Court. The complaint asserted that Transworld had called Landry's cellular telephone eight times within a seven-day period, in violation of the limits established under the Massachusetts consumer protection act, and debt collection regulations. Landry seeks to represent all Massachusetts consumers who have received more than two collection calls from Transworld in a seven-day period in the four years immediately prior to the filing of his complaint. Transworld moved to compel arbitration pursuant to the Federal Arbitration Act. In support of its motion, Transworld cited a binding arbitration provision contained in Landry's rental contract with Enterprise. In order to rent a vehicle from Enterprise, Landry signed a form lease contract, which contains the Mandatory Arbitration Agreement. The Superior Court judge denied Transworld's motion to compel arbitration. The Judge reasoned that Transworld, as a non-signatory, was required to present "clear and unmistakable" evidence that Landry had agreed to arbitrate his claims against Transworld, and that Transworld had failed to do so. Transworld sought an interlocutory appeal in the Appeals Court, as was its right pursuant to G. L. c. 251, Section 18, of the denial of its motion to compel arbitration. The Supreme Judicial Court transferred the case to its jurisdiction on its own motion. The sole issue before the Court is whether Transworld may enforce the arbitration provision in a contract to which it is not a signatory. Hence, it looks State law principles of contract law pertaining to such enforcement. The Court has acknowledged six theories under which a nonsignatory may enforce a contract, such as an arbitration agreement, against a signatory: (1) incorporation by reference; (2) assumption; (3) agency; (4) veil-piercing/alter ego; (5) equitable estoppel, and (6) third-party beneficiary. These theories ordinarily are applied to resolve a different question from the question at issue in the case -- whether a signatory to a contract could enforce the contract against a nonsignatory. Nonetheless, the theories also have been used where a nonsignatory seeks to enforce a contract against a signatory. Transworld contends that two of the theories discussed in Machado v. System4 LLC apply. First, Transworld asserts that it may enforce the arbitration provision in Enterprise's contract with Landry under the "agency" theory. Second, Transworld argues that it may enforce the arbitration provision as a third-party beneficiary. The Court concludes that, on these facts, neither theory is applicable. Transworld argues that it is entitled to enforce Enterprise's arbitration provision because it acted as Enterprise's agent for debt collection purposes. Assuming, without deciding, that Transworld was acting as Enterprise's agent, the Court nonetheless concludes that, given the facts at issue, Transworld cannot rely upon the "agency" theory in its effort to enforce Enterprise's arbitration provision with Landry. The Court does not agree with Transworld's assertion that the agency theory would permit a nonsignatory agent to enforce an arbitration provision in a contract signed by its principal solely by virtue of its status as an agent of the signatory. Typically, agents do not obtain rights from contracts entered into by their principals. Landry has no dispute with Enterprise, and Landry's claims are not related to his rental contract with Enterprise. Moreover, if Transworld had engaged in the untoward debt collection practices alleged, it would not have been acting within the scope of the work Enterprise hired it to perform. The service agreement between Enterprise and Transworld expressly prohibits debt collection by any means that violate applicable Federal and State law. Transworld argues as well that it may enforce the arbitration provision as a third-party beneficiary. It contends that, because the arbitration provision is to be broadly interpreted and applies to all claims Renter may bring against Enterprise's employees, agents, affiliates or representatives, the contract must be read to require Landry to arbitrate his claim against Transworld. The arbitration provision in question contains competing language regarding the parties who may enforce it. The second sentence of the arbitration provision states that the Renter and Enterprise agree to arbitrate any and all claims against each other. In light of these competing provisions, reasonable minds surely could differ as to whether the arbitration provision is applicable to claims brought against Transworld. Even assuming, without deciding, that Transworld's interpretation of the arbitration provision is reasonable, it is by no means the only reasonable interpretation. The Court concludes that the language in the arbitration provision is susceptible of multiple interpretations; the arbitration provision is, at a minimum, ambiguous as to whether Transworld can enforce it. Transworld accordingly has not put forth the "clear and definite" evidence of intent that it must if it were to be entitled to enforce the arbitration provision as a third-party beneficiary. In sum, there was no error in the denial of Transworld's motion to compel arbitration. Accordingly, the order denying motion to compel arbitration is affirmed. A full-text copy of the Court's July 28, 2020 Opinion is available at https://tinyurl.com/y4v4kdrd from Leagle.com. Bryan C. Shartle -- bshartle@sessions.legal -- of Louisiana, for the defendant. Sergei Lemberg for the plaintiff. Angela Laughlin Brown -- abrown@grayreed.com -- of Texas, & John C. La Liberte -- jclaliberte@sherin.com -- for ACA International, amicus curiae, submitted a brief. Maura Healey, Attorney General, & Max Weinstein, Assistant Attorney General, for the Commonwealth, amicus curiae, submitted a brief. TTOTTAL BUSINESS: Viera Sues Over Unpaid Overtime and Retaliation ----------------------------------------------------------------- ATANASILDO A. VIERA, and other similarly situated individuals, Plaintiff v. TTOTTAL BUSINESS LLC d/b/a MARGHERITA PIZZA BEER & WINE, DANIEL CADOSCH DELMAR and URI DALY, individually, Defendants Case No. 1:20-cv-24225 (S.D. Fla., October 15, 2020) brings this collective action complaint against the Defendants for their alleged failure to pay overtime and unlawful retaliation in violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants approximately from March 1, 2018 to January 13, 2020 as a non-exempted full-time restaurant employee. According to the complaint, the Plaintiff worked more than 40 hours every week, but he was only paid by the Defendants for a fraction of all his hours worked. As a result, the Defendants willfully failed to pay the Plaintiff regular and overtime hours at the rate of one and one-half times his regular rate of pay for every hour that he worked in excess of 40. Ttottal Business LLC d/b/a Margherita Pizza Beer & Wine is a pizza restaurant. Daniel Cadosch Delmar and Uri Dally are owners, partners, officers and operators of the Ttottal Business. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Tel: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmalawgroup.com UMTH LAND: Court Narrows Claims in Fannin Class Suit ---------------------------------------------------- In the case, DAVID C. FANNIN AND LUCILLE S. FANNIN AS CO-TRUSTEES OF THE DAVID C. FANNIN REVOCABLE TRUST DATED AUGUST 3, 1995 AND THE LUCILLE STEWART FANNIN REVOCABLE TRUST DATED AUGUST 3, 1995, Plaintiffs, v. UMTH LAND DEVELOPMENT, L.P., UMT SERVICES, INC., UMT HOLDINGS, L.P., UMTH GENERAL SERVICES, L.P., UNITED MORTGAGE TRUST, UNITED DEVELOPMENT FUNDING, L.P., UNITED DEVELOPMENT FUNDING IV, UNITED DEVELOPMENT FUNDING X, L.P., TODD F. ETTER, HOLLIS M. GREENLAW, MICHAEL K. WILSON, BEN L. WISSINK, CARA D. OBERT, AND MELISSA H. YOUNGBLOOD, Defendants, and UNITED DEVELOPMENT FUNDING III, L.P., Nominal Defendant, C.A. No. 12541-VCF (Del. Ch.), the Court of Chancery of Delaware granted in part and denied in part the Defendants' Motions to Dismiss. United Development Funds is a family of investment funds that makes loans for the purpose of real estate development. The nominal defendant in the action, United Development Funding III ("Partnership"), is a Delaware limited partnership and a member of the family. The Plaintiffs are limited partners of UDF III. They allege that UDF III's general partner and the entities and individuals that ultimately control UDF III used the Partnership's funds to support earlier-formed funds within the family as part of a broader scheme to conceal the earlier funds' losses and to support their continued payment of partnership distributions. The Plaintiffs allege the general partner and those that control it breached their fiduciary duties and UDF III's limited partnership agreement, committed corporate waste, and were unjustly enriched. They also allege that affiliates of the general partner aided and abetted the breaches of fiduciary duty alleged in the complaint and were also unjustly enriched. The Complaint contains the following seven counts (Counts I, III to V, and VII are pleaded as derivative claims, and Counts II and VI are pleaded as direct claims): a. Count I (Derivative Claim, On Behalf of UDF III, For Breach of Fiduciary Duty): Count I is a derivative claim on behalf of UDF III against Etter, Greenlaw, Wilson, Wissink, Obert, Youngblood, UMT Services, and UMTH LD for breach of fiduciary duty. The Plaintiffs allege that UMTH LD owes fiduciary duties to UDF III because it is the general partner of UDF III; that UMT Services owes fiduciary duties because it is the general partner of UMTH LD; that Etter and Greenlaw owe fiduciary duties because they are the ultimate controllers and owners of UMT Services; that Etter, Greenlaw, and Wilson owe fiduciary duties because they are directors and officers of UMT Services and controllers of the decisions and conduct which injured UDF III; and that Wissink, Obert, and Youngblood owe fiduciary duties as senior executive decision- makers concerning the conduct that injured UDF III. The Plaintiffs argue that each of these Defendants breached their fiduciary duties through conflicted and self-dealing conduct. b. Count II (Direct Claim, On Behalf of the Class, for Breach of Fiduciary Duties): Count II asserts a direct claim on behalf against Etter, Greenlaw, Wilson, Wissink, Obert, Youngblood, UMT Services, and UMTH LD for the same breach of fiduciary duty. The Plaintiffs allege these Defendants breached their fiduciary duties by their decision to cease distributions of the Cash Available for Distribution to UDF III's Limited Partners since January 2016 and by omitting and misstating material information provided to the Limited Partners concerning UDF III and its assets. c. Count III (Derivative Claim, On Behalf of UDF III, for Waste of Partnership Assets): Count III alleges that Etter, Greenlaw, Wilson, Wissink, Obert, Youngblood, UMT Services, and UMTH LD wasted Partnership assets by engaging in the challenged loan transactions and for failing to enforce UDF III's rights under the loan agreements. In response to the Defendants' briefs, the Plaintiffs have abandoned the claim as to all the Defendants except UMTH LD. d. Count IV (Derivative Claim, On Behalf of UDF III, for Aiding and Abetting Breach of Fiduciary Duty): Count IV asserts a derivative claim on behalf of UDF III against UMT, UMT Holdings, UMTH General, UDF I, UDF IV, and UDF X for aiding and abetting the breaches of fiduciary duty described in Counts I and II. e. Count V (Derivative Claim, on Behalf of UDF III, for Breach of Contract): Count V is a derivative claim against UMTH LD for breach of the Partnership Agreement. The Plaintiffs contend that by causing UDF III to invest in and/or to make loans to UDF I and its subsidiaries and to the Developer Borrowers, UMTH LD breached Section 11.3(b) of the Partnership Agreement, which provides loan concentration limitations to any single borrower. The Plaintiffs allege that UMTH LD also breached the Partnership Agreement by failing to obtain appraisals in connection with the UMT Participation Interest and UMT Option. f. Count VI (Direct Claim, on Behalf of the Class, for Breach of Contract): Count VI is a direct claim against UMTH LD for breach of the Partnership Agreement. The Plaintiffs contend that UMTH LD's decision to cease distributions of the Cash Available for Distribution and to cease distributions of financial reports for UDF III breached the Partnership Agreement. g. Count VII (Derivative Claim, on Behalf of UDF III, for Unjust Enrichment): Count VII is a claim for unjust enrichment against all the Defendants. On June 28, 2019, the Entity Defendants and the Individual Defendants each filed separate motions to dismiss the Complaint. The Defendants have moved to dismiss pursuant to Court of Chancery Rules 12(b)(6) and 23.1. They contend the Complaint does not state a claim under Court of Chancery Rule 12(b)(6), because (1) claims based on transactions that occurred and were disclosed more than three years prior to the commencement of the action are barred by laches and statutes of limitations; (2) the Plaintiffs have failed to allege injury; and (3) the Complaint fails to state claims as to each of the causes of actions. Second, the Individual Defendants argue that they do not owe fiduciary duties to UDF III or its limited partners. The argument urges the Court to reject the well-established precedent of In re USACafes, L.P. Litigation and its progeny, which held that the persons who ultimately control a corporate general partner owe fiduciary duties to the limited partnership. Wissink, Obert, and Youngblood separately argue that even if the Court follows USACafes, Counts I, II, and VII should be dismissed as to them because the Plaintiffs have failed to allege that these specific Defendants exercise sufficient control over UDF III to impose fiduciary duties upon them. The Defendants further argue that the derivative claims based upon the transactions with "unaffiliated, third-party borrowers" must be dismissed pursuant to Court of Chancery Rule 23.1 for failure to plead demand futility. On April 14, 2020, the Court held oral argument on the Motions to Dismiss. Pursuant to Court of Chancery Rule 12(b)(6), the Motion to Dismiss for Failure to State a Claim is granted in part and denied in part. It is denied as to Counts I, II, IV, V, and VI, and is granted as Counts III and VII. Among other things, the Court finds that the Complaint falls short of the high standard to plead a claim for waste of partnership assets. The challenged transactions fail to show economic terms "so one-sided" that they are "unconscionable." For example, extending the maturity date and accepting assignments for some of the challenged loans rather than writing them off would not be unconscionable if it increased the likelihood that they would be repaid. Furthermore, the Plaintiffs do not allege facts to show that the Partnership received no consideration for the challenged loans and transactions. Accordingly, the Plaintiffs have failed to state a claim for waste of partnership assets. The Court cannot also determine, as a matter of law, that any of the unjust enrichment claims should be dismissed solely on the grounds that relationships were comprehensively governed by contract. As to the other grounds for dismissal, the Court concludes that the claim for unjust enrichment must be dismissed as to UMT Services and UMT. The Plaintiffs specifically pointed to paragraphs 150, 316, 326, 330, 334, and 340 of the Complaint as allegations showing "unjust profits obtained" by several of the Entity Defendants as a result of the Partnership's lending. But those paragraphs do not allege facts to support a reasonable inference that UMT Services or UMT were unjustly enriched. Therefore, Count VII is dismissed as to those two Defendants. The Court cannot dismiss the unjust enrichment claims as to the Individual Defendants. It finds that it is unlikely that those who have been determined to owe fiduciary duties—UMTH LD, UMT Services, Greenlaw, Etter, Wilson, and Wissink—"could be liable for unjust enrichment under circumstances when they would not also be liable for a breach of fiduciary duty. Yet it is possible that they could have a defense to fiduciary duty liability but the profits they received could have resulted from a fiduciary breach. Under those circumstances, the unjust enrichment claim could be a vehicle for the Partnership's recovery. That same rationale supports the Plaintiffs' unjust enrichment claims against Obert and Youngblood. Although the Court has concluded that they do not owe fiduciary duties, the Plaintiffs may be able to show that the profits they are alleged to have obtained are without justification. Pursuant to Court of Chancery Rule 23.1, the Motion to Dismiss for Demand Futility is denied. The parties disagree as to whether the demand futility analysis should be conducted solely from the perspective of UDF III's General Partner, UMTH LD, or the individuals with ultimate decision-making authority regarding any litigation demand. The Defendants argue that the Court may only consider whether the General Partner is disinterested and independent. The Plaintiffs argue that the Court should also look to Etter and Greenlaw, who constitute a majority of the board of UMT Services, the general partner to UMTH LD. The Court finds that the Plaintiffs have alleged facts sufficient to raise a reasonable doubt that UMTH LD is disinterested and independent. The Complaint sufficiently alleges that UMTH LD, as the general partner of UDF III, is not disinterested and independent with respect to each of UDF III's loans to CTMGT, Buffington, and their respective affiliates. The Plaintiffs have adequately alleged that UMTH LD derives a financial benefit not shared with the Limited Partners and that its actions were designed to enrich UMTH LD and its controllers at UDF III's expense with respect to its loans to the Developer Borrowers. For these reasons, the Court need not consider whether demand futility can be satisfied by raising reasonable doubt as to the disinterestedness and independence of Etter and Greenlaw. A full-text copy of the Court's July 31, 2020 Memorandum Opinion is available at https://tinyurl.com/y44yopmx from Leagle.com. Robert J. Kriner, Jr. -- RobertKriner@chimicles.com -- and Tiffany J. Cramer -- TiffanyCramer@chimicles.com -- CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP, Wilmington, Delaware; Attorneys for Plaintiffs David C. Fannin, and Lucille S. Fannin, as Co-Trustees of the David C. Fannin Revocable Trust Dated August 3, 1995 and the Lucille Stewart Fannin Revocable Trust Dated August 3, 1995. Steven L. Caponi -- steven.caponi@klgates.com -- K&L GATES LLP, Wilmington, Delaware; John W. Rotunno -- john.rotunno@klgates.com -- Paul J. Walsen -- paul.walsen@klgates.com -- Joseph C. Wylie II, Molly K. McGinley, Matthew A. Alvis, K&L GATES LLP, Chicago, Illinois; Attorneys for UMTH Land Development, L.P., UMT Services, Inc., UMT Holdings, L.P., UMTH General Services, L.P., United Mortgage Trust, United Development Funding, L.P., United Development Funding IV, and United Development Funding X, L.P. Myron T. Steele -- msteele@potteranderson.com -- Timothy R. Dudderar -- tdudderar@potteranderson.com -- Jacqueline A. Rogers, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Attorneys for Defendants Todd F. Etter, Hollis M. Greenlaw, Michael K. Wilson, Ben L. Wissink, Cara D. Obert, and Melissa Youngblood. UNITED AMERICAN: Can Compel Hardy to Arbitrate Claims in Jones Suit ------------------------------------------------------------------- In the case, ANTWAUN JONES, on behalf of himself and those similarly situated, Plaintiff, v. UNITED AMERICAN SECURITY, LLC d/b/a GARDAWORLD SECURITY SERVICES, Defendant, Case No. 1:20-cv-00440 (N.D. Ohio), Judge James S. Gwin of the U.S. District Court for the Northern District of Ohio granted in part and denied in part the Defendant's motion to compel Opt-in Plaintiffs Shannon Hardy and Danial Tucker to arbitrate their claims. On Feb. 26, 2020, Plaintiff Jones sued Defendant GardaWorld. Jones says that he and others similarly situated worked for GardaWorld as security guards and were hourly employees. He says that the Defendant required them to arrive to work 10 to 15 minutes before their shift start time to perform shift-change duties. The Plaintiff alleges GardaWorld did not pay the security guards for that time. Additionally, because the time was unpaid it was not included in overtime calculations. Jones sues under the Fair Labor Standards Act and Ohio's overtime statute and includes collective and class action allegations. On March 4, 2020, Hardy and Tucker joined the collective action as opt-in Plaintiffs. The Defendant moved to compel Hardy and Tucker to arbitrate their claims on April 24, 2020. On May 15, 2020, Plaintiff Jones filed a notice of non-opposition to the motions to compel. Defendant GardaWorld and Opt-in Plaintiff Hardy executed an arbitration agreement in which they agreed to arbitrate, among other issues, claims for violation of, or arising out of any city, county, local, state, federal or other governmental law relating to the payment of wages, the amount of wages, off the clock work, overtime pay, or compensation. Judge Gwin finds that such agreement appears to cover the claims in the present litigation in which the Plaintiff alleges claims under the Fair Labor Standards Act and Ohio's overtime statute for uncompensated work performed pre-shift. Furthermore, the federal statutory claims under the FLSA, are arbitrable. He finds that Opt-in Plaintiff's Hardy's claims are arbitrable. She further finds that the litigation should not be stayed pending the arbitration of Opt-in Plaintiff Hardy's claims. As to Opt-in Plaintiff Tucker, Defendant GardaWorld states that Opt-In Plaintiff Tucker never worked for GardaWorld and instead worked for non-party Whelan Security Protection Services, Inc. It attaches an arbitration agreement between Tucker and Whelan in support of that assertion. Without explaining its relationship with Whelan Security, GardaWorld seeks to compel enforcement of the Tucker-Whelan arbitration agreement. As a non-party to the agreement, Defendant GardaWorld does not explain why it would have standing to compel the arbitration. The Judge therefore declines to enforce the arbitration agreement between Opt-In Plaintiff Tucker and non-party, Whelan. For the foregoing reasons, Judge Gwin granted the motion to compel the arbitration as to Opt-in Plaintiff Hardy, but denied the motion as to Opt-in Plaintiff Tucker. A full-text copy of the Court's July 28, 2020 Opinion & Order is available at https://tinyurl.com/y2ha7suz from Leagle.com. UPMC: Court Denies Remand of Doe Privacy Suit to State Court ------------------------------------------------------------- In the case, JANE DOE I and JANE DOE II, on behalf of themselves and all others similarly situated, Plaintiffs, v. UPMC, Defendant, Case No. 2:20-cv-359 (W.D. Pa.), Judge Marilyn J. Horan of the U.S. District Court for the Western District of Pennsylvania (i) denied the Plaintiffs' Motion to Remand, and (ii) denied as moot both the Plaintiffs' Motion for Jurisdictional Discovery and Request for Judicial Notice. The Plaintiffs, currently proceeding under pseudonyms, filed the present class action against Defendant UPMC in the Court of Common Pleas of Allegheny County, Pennsylvania. The Plaintiffs seek redress under Pennsylvania law for UPMC's alleged disclosure of their personally identifiable information to third parties for internet marketing purposes without their knowledge or authorization. The Plaintiffs bring the action individually and on behalf of a class consisting of all Pennsylvania residents who are, or were, patients of UPMC or any of its affiliates, and who used UPMC's web properties, including, but not limited to, UPMC.com and the Patient Portal at myupmc.upmc.com. According to the Complaint, UPMC encourages patients to exchange communications through its website and patient portal to search for a doctor, learn more about their conditions and treatments, access medical records and test results, and make appointments. The Plaintiffs allege that UPMC then re-directs certain personally identifiable information and patient communication content from its website and patient portal to third parties, such Facebook and Google, for marketing purposes without patients' consent. They contend that through this conduct, UPMC fails to uphold its obligations and promises to protect patients' privacy. The Plaintiffs thus bring the following claims: in Count I, breach of provider-patient confidentiality; in Count II, violation of Pennsylvania's Wiretapping and Electronic Surveillance Control Act; in Count III, violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law; in Count IV, identity theft, in violation of 40 P.S. Section 4120; in Count V, negligence; and in Count VI, intrusion upon seclusion. UPMC removed the matter to federal court primarily on the basis of the federal officer removal jurisdiction, found at 28 U.S.C. Section 1442. In its Notice of Removal, UPMC states that when it engaged in the complained-of conduct, it was acting under the Department of Health and Human Services ("DHHS"), the Centers for Medicare and Medicaid Services ("CMS"), and the Office of the National Coordinator for Health Information Technology, to implement DHHS's voluntary electronic health records incentive program, known as the EHR Incentive Program or, more commonly, the Meaningful Use Program. Through the Meaningful Use Program, the federal government makes incentive payments to healthcare providers who increase their use of, as well as patient engagement with, electronic health records, or "EHR." The program came about as a result of the federal government's goal of a nationwide implementation of interoperable health information technology in both the public and private health care sectors. According to UPMC, the Plaintiffs' claims effectively ask a court to intervene in the operation of a federal program and hold that the federal government, UPMC, and most other healthcare systems are all violating state law. As such, UPMC argues, the matter belongs in federal court. The Plaintiffs disagree. UPMC also contends that removal is proper under the Class Action Fairness Act, in that the amount in controversy exceeds $5 million and minimal diversity exists. In response, the Plaintiffs argue that the "home state" exception to CAFA applies, which requires the Court to remand the matter to state court if more than two-thirds of the class are citizens of the same state as the primary defendant. They ask that the Court takes judicial notice of certain information and that they be allowed to engage in discovery related to the citizenship of the potential class, so that they may show that more than two-thirds of the class are citizens of Pennsylvania. Judge Horan opines that something more than regulation by the federal government or compliance with federal law by the private entity is required to establish an "acting under" relationship between the private entity and the federal government. That said, the burden is not so high that a private entity must establish that it has an agency relationship with the federal government. The private entity need only show that the allegations in the complaint are directed at the private entity's efforts to assist a federal superior. UPMC, as a participant in the Meaningful Use Program, receives incentive payments from DHHS for its development and use of the UPMC website and the MyUPMC portal in accordance with the program's criteria. In particular, UPMC must, among other things, raise awareness and increase usability of the UPMC website and the MyUPMC portal. The Plaintiffs' Complaint addresses the design and functionality of UPMC's website and patient portal, implicating UPMC's implementation of the Meaningful Use Program, particularly as the implementation involves patient engagement and usership. The fact that the government offers payment in exchange for UPMC's voluntary participation in implementing a nationwide EHR network shows the relationship between UPMC and DHHS is less like the regulator-regulated relationship in Watson v. Philip Morris Companies, Inc. and more like the government contractor relationship in Papp v. Fore-Kast Sales Co. And, the Plaintiffs' allegations are directed at that relationship. UPMC is therefore "acting under" a federal superior for purposes of the federal officer removal statute. Next, the parties dispute whether the Plaintiffs' claims are "for or relating to" an act under color of federal office. To establish this element, the removing defendant only needs to show that there is a 'connection' or 'association' between the act in question and the federal office. It is a broad standard: as noted by the Third Circuit, Congress's addition of "or relating to" in 2011 "was intended to broaden the universe of acts that enable Federal officers to remove to Federal court." The Plaintiffs' allegations target mechanisms by which UPMC manages and markets its website and patient portal. There is plainly a connection or association between UPMC's website management and marketing strategies and the Meaningful Use program, particularly the incentives that are tied to patient participation and usability. The Plaintiffs' claims are therefore "for or relating to" an act under color of federal office. Lastly, the parties dispute whether UPMC has raised a defense that is both colorable and based in federal law. UPMC argues that it will raise four colorable federal defenses in response to the Complaint: a duty-based defense under the Health Insurance Portability and Accountability Act; preemption of the Plaintiffs' state law claims by HIPAA; Buckman preemption; and the dormant Commerce Clause. The Judge holds that UPMC has pleaded facts supporting removal under the federal officer removal statute. UPMC has shown that by its participation in the Meaningful Use Program, it was "acting under" DHHS when it engaged in the conduct that is at issue in the Complaint. Furthermore, the complained-of conduct is "for or relating to" an act under color of office, and UPMC has raised several colorable federal defenses. Consequently, the Plaintiffs' Motion to Remand will be denied. Having found that the Court has subject matter jurisdiction under the federal officer removal statute, the Judge does not need to reach the issue of whether it also has jurisdiction under CAFA. Accordingly, she does not address the parties' CAFA arguments or the Plaintiffs' additional Motions filed in support of their Motion to Remand at this time. Based on the foregoing, Judge Horan denied the Plaintiffs' Motion to Remand the matter to state court. Additionally, the Judge denied as moot the (i) Plaintiffs' Motion for Jurisdictional Discovery, and (ii) the Plaintiffs' Request for Judicial Notice. A full-text copy of the Court's July 31, 2020 Opinion & Order is available at https://tinyurl.com/y3e75pbf from Leagle.com. V.F. CORP: Website Inaccessible to Blind Users, Paguada Claims -------------------------------------------------------------- JOSUE PAGUADA, on behalf of himself and all others similarly situated, Plaintiff v. V.F. CORPORATION, Defendant, Case No. 1:20-cv-08658 (S.D.N.Y., October 16, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Americans with Disabilities Act. The Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. The Plaintiff contends that the Defendant's Website has multiple access barriers which he encountered when he visited the Website in October 2020 to browse and potentially make a purchase. Because the Defendant failed to comply with the Web Content Accessibility Guidelines 2.1, its Website lacks variety of features and accommodations which effectively barred the Plaintiff and other similarly situated visually-impaired and legally blind persons from being able to enjoy the privileges and benefits of the Defendant's public accommodation similar to that of the sighted individuals. The Plaintiff alleges that the Defendant has engaged in acts of intentional discrimination due to its failure to construct and maintain a Website that is equally accessible to visually-impaired individuals, and failure to take actions to correct these access barriers. V.F. Corporation is a boot manufacturing company that owns and operates the website, www.kodiakboots.com. [BN] The Plaintiff is represented by: Mars Khaimov, Esq. MARS KHAIMOV LAW, PLLC 10826 64th Ave., Second Floor Forest Hills, NY 11375 Tel: (929) 324-0717 E-mail: marskhaimovlaw@gmail.com WALDORF ASTORIA: Perez Sues Over Unpaid Overtime for Housekeepers ----------------------------------------------------------------- IVET C. PEREZ and DERECK S. DUMONT, for themselves and on behalf of others similarly situated, Plaintiffs v. WALDORF ASTORIA EMPLOYER LLC a/k/a WALDORF ASTORIA ORLANDO d/b/a WALDORF ASTORIA ORLANDO, Defendant, Case No. 6:20-cv-01910 (M.D. Fla., October 15, 2020) bring this collective action complaint against the Defendant for its alleged unlawful pay policy and/or practice in violation of the Fair Labor Standards Act. The Plaintiffs were employed by the Defendant as a non-exempted, full time, hourly-paid housekeepers. According to the complaint, the Plaintiffs and other similarly situated housekeepers were not allowed by the Defendant's managers to clock-in before their scheduled shift start-time, but were required to clock out at the end of their scheduled shift although they were required to stay working at least one more off-the-clock-hour. Otherwise, the Defendant's managers harassed, reprimanded, and threatened workers who have tried to clock-in early to record their pre-shift work, or to clock late to record their post-shift work. As a result, the Defendant failed to pay the Plaintiffs and other similarly situated housekeepers the proper overtime compensation at the rate of one and one-half times their regular rate of pay for all the hours worked over 40 in a workweek. Waldorf Astoria Orlando operates a luxury hotel and resort located at 14200 Bonnet Creek Resort Lane, Orlando, FL 32821. [BN] The Plaintiffs are represented by: Zandro E. Palma, Esq. ZANRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Tel: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmalawgroup.com WELLS FARGO: Faces Popal Suit Over Denied Sick Leave Benefits ------------------------------------------------------------- MERYAM POPAL, on behalf of herself and all others similarly situated, Plaintiff v. WELLS FARGO BANK, NATIONAL ASSOCIATION, and DOES 1 through 10, Inclusive, Defendants, Case No. 37-2020-00038101-CU-OE-CTL (Cal. Super., October 21, 2020) is a class action complaint brought against the Defendants for their alleged unlawful and unfair business practices in violation of the California Labor Code and the California Business and Professions Code. The Plaintiff alleges that the Defendants underpaid his and other similarly situated employees' sick leave wages. As a result, the Defendants violated the Business and Professions Code sections 17200 for failing to provide the Plaintiff and the class the employment protections, wages, premiums, and funds and property owed to them. Wells Fargo provides banking, insurance, investment, and financial services. [BN] The Plaintiff is represented by: Michael D. Singer, Esq. Jeff Geraci, Esq. COHELAN KHAOURY & SINGER 605 C Street, Suite 200 San Diego, CA 92101 Tel: (619) 595-3001 Fax: (619) 595-3000 E-mail: msinger@ckslaw.com jgeraci@ckslaw.com ZIMMER BIOMET: Class of Sales Associates in Karl Suit Certified --------------------------------------------------------------- In the case, JAMES KARL, on behalf of himself, and on behalf of a class of those similarly situated, Plaintiffs, v. ZIMMER BIOMET HOLDINGS, INC., a Delaware corporation, ZIMMER US, INC., a Delaware corporation, BIOMET U.S. RECONSTRUCTION, LLC, an Indiana limited liability company, BIOMET BIOLOGICS, LLC, an Indiana limited liability company, and BIOMET, INC., an Indiana corporation, Defendants, Case No. C 18-04176 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted the Plaintiff sales associates' motion for class certification. Defendant (and parent corporation) Zimmer Biomet Holdings and its subsidiaries design, manufacture, and market biopharmaceutical and medical products. Relevant in the matter, subsidiaries Zimmer US, Inc., Biomet U.S. Reconstruction, LLC, and Biomet Biologics, sell knee, hip, sports medicine, foot and ankle, extremity, and trauma products to physicians and hospitals. In August 2015, Plaintiff Karl signed a sales associate agreement classifying him as an independent contractor (and not an employee) with Zimmer and began selling orthopedic devices as a member of "Team Golden Gate" in the San Francisco Bay Area. Zimmer paid the team on a commission-only "pooled" arrangement. That is, the Defendants (1) set a "base rate" commission percentage for each product type sold, (2) pooled each team member's base rate commissions, and (3) paid each member a predetermined percentage of the pooled commissions, regardless of the amount of commissions that member personally generated. Karl himself was paid through Edge Medical, LLC, an entity he established for tax purposes. On the job, Karl typically spent 60% to 70% of his time on "case coverage," assisting surgeons in the operating room and planning for procedures, such as designing modifications for implants. He averaged between 10 to 12 hours each workday. In July 2018, Karl filed the instant putative class action alleging primarily his misclassification as an independent contractor instead of an employee of Zimmer. Initially successful in certifying an FLSA collective, Zimmer's motion for summary judgment cut down several of Karl's claims (including those for overtime wages and failure to provide meal and rest periods), an Oct. 31, 2019 order finding him an exempt "outside salesperson." Though the Court certified the summary judgment order for interlocutory appeal, our court of appeals declined to intervene. The case having resumed, Karl seeks, for himself and the putative class, reclassification as employees of Zimmer, itemized wage statements, reimbursement of business expenses, restitution for unpaid wages and benefits, and a finding that their classification as independent contractors was unlawful. The Plaintiffs now move for class certification under Federal Rule of Civil Procedure 23. Following an initial proposed class definition reaching to nearly a year before the merger that created the current Zimmer Biomet Holdings and the relevant subsidiaries, Karl has revised his class definition to: Any person who, during the period commencing June 24, 2015 to the present, was hired or otherwise engaged as an independent contractor for the purposes of solicitation or sales of Zimmer Biomet products and/or services in California by Zimmer US, Inc., Biomet U.S. Reconstruction, LLC, and Biomet Biologics, LLC, or any one of them. Zimmer naturally opposes certification. Judge Alsup finds that common questions predominate the merits of the Plaintiffs' claims. Under the Plaintiffs' theory of liability, Zimmer's common sales associate agreements and policies will decide whether its sales associates may remain independent contracts or must be reclassified as employees. That analysis will serve as the bedrock for two derivative claims, first for unpaid business expenses, and second for restitution of unpaid wages and benefit. Last, the lawfulness of Zimmer's classification of sales associates as independent contractors under the Medicaid Anti-Kickback statute presents a common question of law. Zimmer says Karl atypically lacks standing to pursue the Section 17200 claim for unpaid benefits. But this argument largely rests on Zimmer's contention that its benefits plans exclude sales associates from entitlement even if they are reclassified as common law employees, an argument that targets Karl as much as any putative class member. Rather than rendering him atypical, the common applicability of the defense confirms Karl's typicality on this front. Next, nothing in the record suggests Karl's interests deviate from the interests of the other putative class members. Nor does the record suggest any risk that Karl or his counsel would fail to prosecute the action vigorously. The suit addresses whether sales associates and their team leaders should be treated as employees of Zimmer, not whether sales associates and team leaders should always get along. Karl remains adequate to litigate the suit on behalf of the putative class. As for superiority, the Judge finds that a court within California presents the superior forum for application of California law. And, as for case management, the Plaintiffs propose a three-part trial plan: (i) trial of Labor Code claims before the jury; (ii) trial of Section 17200 and PAGA claims before the Court; and (iii) damages before the Court or a special master. Zimmer does not contest the superiority of a class in these circumstances. Zimmer also does not contest the sufficient numerosity of a 266-member class. Finally, in its Footnote 19, Zimmer buries an objection to use of improper electronic signatures in declarations under the local rules. Aside from probing the putative classmembers' states of mind regarding their expected recovery, the facts driving class certification here are Zimmer's own policies, not the Plaintiffs' declarations. Hence, the objection is denied as moot. For the foregoing reasons, Judge Alsup certified the following class: Any person who, during the period commencing June 24, 2015, to the present, was hired or otherwise engaged as an independent contractor for the purposes of solicitation or sales of Zimmer Biomet products and/or services in California by Zimmer US, Inc., Biomet U.S. Reconstruction, LLC, and Biomet Biologics, LLC, or any one of them. Lohr Ripamonti & Segarich LLP and Scherer Smith & Kenny, LLP are appointed the class counsel. A full-text copy of the Court's July 28, 2020 Order is available at https://tinyurl.com/y5y9d6rj from Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2020. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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