/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/201102.mbx C L A S S A C T I O N R E P O R T E R Monday, November 2, 2020, Vol. 22, No. 219 Headlines 2U INC: Bid to Dismiss Maryland Consolidated Suit Pending 3M CO: 1st Bellwether in Defective Earplug Suit Set for April 2021 3M CO: Agrees to Contribute $5MM to Provide Expanded Water Service 3M CO: Bid to Dismiss Amended Delaware Class Complaint Pending 3M CO: Class Cert. Bid in NY Suit Over Water Pollution Underway 3M CO: Petition for Writ of Mandamus in Consolidated Suit Pending ABBEY ROAD: Fails to Pay Proper OT to Flaggers, Guzman Suit Claims ACE HIGH: Conditional Cert. of Brand Ambassadors Class Sought ADVANCED MICRO: Remaining Claims in Hauck Suit Dismissed AGENT WALL: Misclassifies Construction Workers, Moran et al. Claim ALLERGAN PLC: Beats Workers' ERISA Appeal Over Drug Price-fixing ALLERGAN PLC: Court Denies Bid to Certify Class in Securities Suit ALLIANT CREDIT: Wins Dismissal of Page Case ALLSTATE INDEMNITY: Bid to Certify Class in Basher Suit Denied AMAZON.COM INC: Denial of Arbitration Bid in Rittman Suit Affirmed AMERICAN FINANCIAL: Davis Sues Over Unsolicited Text Messages ANTHEM INC: Appeal in Express Scripts/Anthem ERISA Suit Pending APPLE INC: Viglietti Sues to Recover Money Lost to Illegal Gambling APPLE INC: Workman Sues to Recover Money Lost to Illegal Gambling ASTRAZENECA PHARMA: EPPs Antitrust Suit Moved to Del. Dist. Ct. ATLANTINC HOUSING: Resident Coordinators' Suit Wins Class Status AURORA CANNIBAS: Pomerantz Law Announces Class Action BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit BETHPAGE FEDERAL: Restrepo Sues Over Unfair Fees BLACK TIE: Court Approves $145K Settlement in Bailey FLSA Suit BLACKBAUD INC: Faces Bedell Class Action Over Data Breach BOILERMAKER-BLACKSMITH: Reply Time to Class Cert. Bid Ended Oct. 31 BOSTON SCIENTIFIC: Settlement in Pelvic Mesh Device Case Gets OK BRINKER INTERNATIONAL: Mediation in Data Breach Suit on Nov. 18 BUCKEYE INC: Morgan et al. Sue Over Failure to Properly Pay OT CELLULAR CONNECTION: Pa. Employees Class Certified in Weirbach Case CENTENE CORP: Ambetter Policies Related Suit Dismissed CHIPOTLE MEXICAN: Bid for Rehearing En Banc in Ong Suit Denied CHIPOTLE MEXICAN: Judgment in Ong Securities Fraud Suit Affirmed CHURCHILL DOWNS: Fairness Hearing in Soileau Continued to Nov. 17 CHURCHILL DOWNS: Feb. 2021 Final Hearing on Kater Deal CHURCHILL DOWNS: Feb. 2021 Final Hearing on Thimmegowda Accord CJS SOLUTIONS: May Amend Reply in Borup Case to Clarify Defense CKF ENTERPRISES: $595K Settlement in Ware Suit Gets Final Approval COBB & FENDLEY: Bid to Certify Class in Leal FLSA Suit Now Moot COMMUNITY HEALTH: Bid to Dismiss Padilla Suit Still Pending COMMUNITY HEALTH: Final Settlement Approval Hearing on Nov. 30 COMMUNITY HEALTH: Tentative Settlement Reached in Kirk Suit CONVERGENT OUTSOURCING: Rawls Sues to Recover Overtime Wages CROWN CASTLE: Continues to Defend Securities Class Suits CUBESMART LP: Torres Class Suit Seeks OT Pay for Managers CULTURAL CARE: Court Narrows Claims in Mack Suit DEKALB COUNTY SCHOOL: T.H. Suit Seeks to Certify Class & Subclass DIEBOLD NIXDORF: Continues to Defend NY Consolidated Class Suit DIRECT BUSINESS: Benitez Sues Over Unsolicited Telemarketing Acts DISCOVER FINANCIAL: Bid to Compel Arbitration in B&R Suit Pending EDISON INT'L: Bellwether Jury Trial Set for February 2021 EDISON INT'L: Woolsey Bellwether Jury Trial Set for June 2021 EL JOBITO: Fails to Properly Pay Overtime, Reyes Claims ELMIRON: Faces Class Action in Canada Over Link to Vision Loss ENTERPRISE FINANCIAL: Facing Parshall Putative Class Suit in Del. EQUIFAX INC: Accord in Financial Institutions MDL Wins Final OK EQUIFAX INC: Appeal from Class Cert. Order in Ontario Case Pending EQUIFAX INC: Settlement in Pa. State Court Case Wins Final OK EXACT SCIENCES: Genomic Defends Flannery Class Action F&E AIRCRAFT: Fails to Pay Proper Wages Under FLSA, Vinasco Claims FABFITFUN INC: Faces Gaston Class Action Suit Over Data Breach FACEBOOK INC: Final Hearing on $650MM BIPA Suit Deal Set for Jan. 7 FIORELLA INSURANCE: Jones TCPA Suit Seeks to Certify Class FIRST EAGLE: Tola Sues Over Revision in Cert. of Incorporation FLUOR ENTERPRISES: Mixon FLSA Suit Seeks Conditional Class Cert. FORSTER & GARBUS: Wins Summary Judgment in Musante FDCPA Suit FRESH FARMS: Class Cert. Bid in Yarger Suit Denied as Premature GARDNER-WEBB UNIVERSITY: Blind Can't Access Web Site, Hedges Says GLADIATOR ENERGY: Pruneda Sues Over Unpaid Overtime Wages GOODFELLA'S PIZZA: Vineyard Sues to Recover Unpaid Wages GOOGLE LLC: Valencia-Torres Sues Over Illegal Mobile Gambling Games GOOGLE: Herrera Sues Over Android Mobile App Market Monopoly H & L PIZZA: Miller-Peppard Sues Over Unpaid Minimum and OT Wages HANOVER INSURANCE: Fails to Reimburse Medical Expenses, MSP Claims HARBOR FREIGHT: Jack Stand Lawsuit Filed After Recall HEALTHCARE SERVICES: Continues to Defend E.D. Pa. Securities Suit HEARING HELP: Laurie Loses Bid to Dismiss Hoffman TCPA Suit HETERO USA: Faces KPH Suit Over Bystolic Market Conspiracy HILLSHIRE BRANDS: Wargo Files False and Mislabeling Class Action HOMEADVISOR INC: Court Orders Arbitration in Margulis TCPA Suit HYATT HOTELS: Germak Sues Over Unlawful Restaurant Service Charge HYUNDAI: Recalls Vehicles in United States to Brake-Fluid Leak IBM CORP: Continues to Defend ERISA-Related Class Suit in New York IMPINJ INC: Nov. 19 Hearing Set for $20MM Deal in Securities Suit IMPINJ INC: Stipulation of Settlement Reached in Plymouth Suit INNOVATIVE HEIGHTS: Loses Bid to Dismiss Stauffer Suit Under BIPA JOHNSON & JOHNSON: Talc-Related Class Suit Ongoing in Illinois JOHNSON & JOHNSON: XARELTO Sales Class Suit in Louisiana Ongoing JUUL LABS: Can't Compel Arbitration in Bautista Wage Suit K3 WORKS: DeJohn Seeks Minimum & OT Wages for Delivery Drivers KANEX INC: Rakhmanin Seeks to Recover Unpaid Wages LG ELECTRONICS: Court Narrows Claims in Hudock Suit LIBRARY SYSTEMS: Khaled Seeks to Certify Settlement Class MASIMO CORP: Physicians Healthsource's Suit Ongoing MASTERCARD INC: Appeals in Point-of-Sale Acceptance Suit Ongoing MASTERCARD INC: Class Cert. Bids in ATM Surcharge Suits Pending MASTERCARD INC: Class Cert. Ruling in Shift Fraud Suit Appealed MASTERCARD INC: Damage Class Settlement Approval Order Appealed MASTERCARD INC: TCPA Class Suit in Florida Ongoing MAYO CLINIC: Court Conditionally Certifies Mayo & FDCPA Classes MDL 2742: Distribution Plan of Net Settlement Fund Approved MERCED CITY, CA: Mag. Judge Recommends OK of McKinnon Suit Deal MERLIN ENTERTAINMENTS: Court Sets Further Deadlines in Case Suit MICHAEL ARAM: Website Inaccessible to Blind Users, Angeles Claims MICHIGAN: Court Denies Howell's Class Certification Bid MICHIGAN: Philpot's Request for Class Certification Denied MICHIGAN: Plair's Class Certification Bid Denied MICROSOFT CORP: Settlement in Canadian Class Suits Wins Final OK MYOS RENS: Directors Breached Fiduciary Duties, Vigil Suit Claims NAHAL REALTY: Rosales Sues Over Unpaid Minimum and Overtime Wages NESTLE WATERS: Court Narrows Claims in Patane Suit NEVADA: Appeals from Writ of Mandamus Ruling in Payne Dismissed NEW YORK CITY TRANSIT: Robinson Suit Wins Class Status NEW YORK: M.G. Gets OK to File Second Amended Complaint NIKOLA CORP: Faces Malo Suit Over Inflated Common Stock Price NORTHERN NATURAL: De Leon Seeks Conditional Class Certification NS8: Laid Off Workers Sue Citing Lack of Advance Notice O'FALLON, IL: Ill. App. Flips Summary Judgment in Saladrigas Suit ODONATE THERAPEUTICS: Class Suit Over Tesetaxel Safety Ongoing OHIO RENAL: Freeman Sues Over Unlawful OT Pay and Wage Statements OTIS WORLDWIDE: Continues to Defend Darnis Putative Class Suit PENNSYLVANIA: Jennings Suit Seeks to Certify Class of Residents PETRO-HUNT: Fredericksburg Balks at Untimely Gas Royalty Payments PHILIP MORRIS: Amended Complaint in Rebolledo Suit Not Yet Served PHILIP MORRIS: Appeal in ADESF Class Suit vs. Unit Dismissed PHILIP MORRIS: Continues to Defend Adams Class Suit in Canada PHILIP MORRIS: Continues to Defend Securities Class Suit in NY PHILIP MORRIS: Still Defends McDermid Class Action POLARIS INC: 8th Cir. to Hear Appeal in Johannessohn Suit POLARIS INC: Appeal in Sales & Product Liability Suit Pending POLARIS INC: Deposition & Document Discovery in "Guzman" Ongoing PORSCHE AG: Manipulates Emissions Testing Results, Del Barrio Says PORTLAND GENERAL: Employees' Fund Sues Over Share Price Drop PORTLAND GENERAL: Glancy Prongay Reminds of Nov. 2 Deadline PRO FACADE: Hernandez Seeks to Recover Unpaid Wages Under FLSA QUEST DIAGNOSTICS: Johnson and Rice Suits Consolidated QUOTEQIZARD.COM LLC: Bid to Dismiss Perrong TCPA Suit Denied RAVISSANICS BEAUTY: Dou Seeks Unpaid Wages & Overtime Under FLSA RESTART USA: Faces Sosa Class Suit Over Wage & Hour Violations RESTAURANTS BRANDS: Appeal in Suit Over Non-Compete Policy Pending RESTAURANTS BRANDS: Latifi Suit Against TDL Group Corp. Ongoing RESTAURANTS BRANDS: Suits Over Data Collection Underway in Canada RICHARD ALEXANDER: Court Denies Bid to Certify Class as Moot ROUNDPOINT MORTGAGE: Class Allegations in Elbert Suit Struck RYDER SYSTEM: Putative Securities Class Suit in Florida Ongoing SAFE HAVEN: Settlement in Martin FLSA Suit Gets Court Approval SAN FRANCISCO: Underpays Registered Nurses, Silloway et al. Claim SEABOARD CORP: Bid to Dismiss Pork Antitrust Litigation Denied SEALED AIR: Bid to Nix UA Local 13's Securities Class Suit Pending SEI INVESTMENTS: Suits Over SPTC Services to Stanford Ongoing SELECT PORTFOLIO: Initial Approval of Class Settlement Sought SIX FLAGS: Bid to Nix Electrical Workers Pension Fund Suit Pending SIX FLAGS: Discovery Kingdom Employees' Suit Ongoing SIX FLAGS: Settlement Reached in Refund Related Class Suits SIX FLAGS: Suit Against Park Management Corp. Ongoing SOUTHERN RESPONSE: Appeal Court Reduces Damages in Dodd Suit SOUTHWEST AIRLINES: Appeal in Airfare-Related Class Suit Ongoing SOUTHWEST AIRLINES: Bid to Dismiss Texas Securities Suit Pending SOUTHWEST AIRLINES: Discovery Ongoing in Boeing MAX Defect Suit SPECTRUM PHARMA: Court Enters Final Judgment in Securities Suit STURM RUGER: Primus Group Suit v. Smith and Wesson Ongoing SUDS & BUBBLES: Villatoro Sues Over Unpaid Wages Under FLSA SUFFOLK COUNTY, NY: Court Certifies Class in Newkirk Suit v. Pierre SUNERGY INC: Faces Abitbol Suit Over Unsolicited Telephone Calls SUNNY & KP: Sanchez Suit Seeks Proper Wages SURESCRIPTS: Pharmacies Antitrust Suit Dismissed Without Prejudice TELIGENT INC: Oklahoma Police Pension Fund Seeks Class Status TESCO CORP: 5th Circuit Affirms Heinze Suit Dismissal TESLA INC: Appeal in Investor Suit Over Model 3 Production Pending TH NYC RESTAURANT: Song Suit Seeks Unpaid Minimum, Overtime Wages THAI SMILE: Tolentino Sues Over Unpaid Minimum and Overtime Wages TOMS KING: Thomas FACTA Suit Dismissed Without Prejudice TOWN SPORTS: Court Denies Class Certification Bid in "Kolomiichuk" TOYOTA MOTOR: 9th Cir. Partly Reverses Dismissal of Heber Suit TRANS-CONTINENTIAL: Stern Seeks to Certify FDCPA Classes TRILOGY REAL: Dickinson Sues Over Unpaid Minimum and OT Wages TRUFFA PIZZERIA: Ruiz Sues to Recover Unpaid Overtime Wages UNDERGROUND ENTERPRISES: Blind Can't Access Website, Angeles Says UNITED BEHAVIORAL: Court Dismisses LD Suit with Leave to Amend UNITED STATES: Court Awards Atty's Fees & Costs in Haggart Suit UNITED THERAPEUTICS: Class Suit by MSP Recovery Claims Ongoing UNUM GROUP: Appeal in Tennessee Securities Class Suit Pending VEECO INSTRUMENTS: Still Defends Wolther Class Suit in California VITA-MIX CORP: 6th Cir. Vacates Atty.'s Fees Award in Linneman Suit VITALE'S ITALIAN: 2nd Conditional Class Certification Bid OK'd WAL-MART STORES: Has 45 Days to Finalize Neal Suit Settlement WALGREEN CO: Caves Class Suit Settlement Gets Initial Approval WB STUDIO: Fails to Pay Minimum & Overtime Wages, Ettedgui Claims WHC LLC: Garcia Seeks Proper Overtime Pay Under FLSA WILLOUGHBY REHAB: Cert. Ruling/Protective Order in Olmann Upheld YGRENE ENERGY: Court Denies Complete Stay of Woolley Case YHA AUSTRALIA: Accused of $15M Underpayment to 'Volunteers' ZOAN MANAGEMENT: Arbitration Ruling in Gist Wage & Hour Suit Upheld ZWILLING J.A.: Bishop Files ADA Suit in S.D. New York ********* 2U INC: Bid to Dismiss Maryland Consolidated Suit Pending --------------------------------------------------------- 2U, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the motion to dismiss the consolidated putative class action suit remains pending before the United States District Court for the District of Maryland. On August 7 and 9, 2019, Aaron Harper and Anne M. Chinn filed putative class action complaints against the Company, Christopher J. Paucek, the Company's CEO, and Catherine A. Graham, the Company's former CFO, in the United States District Court for the Southern District of New York, alleging violations of Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder, based upon allegedly false and misleading statements regarding the Company's business prospects and financial projections. The district court transferred the cases to the United States District Court for the District of Maryland, consolidated them under docket number 8:19-cv-3455 (D. Md.), and appointed Fiyyaz Pirani as the lead plaintiff in the consolidated action. On July 30, 2020, Mr. Pirani filed a consolidated class action complaint ("CAC"), adding Harsha Mokkarala, the Company's former Chief Marketing Officer, as a defendant. The CAC also asserts claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, as amended, against Mr. Paucek, Ms. Graham, members of the Company's Board of Directors, and the Company's underwriters, based on allegations related to the Company’s secondary stock offering on May 23, 2018. The proposed class consists of all persons who acquired the Company's securities between February 26, 2018 and July 30, 2019. On October 27, 2020, defendants filed a motion to dismiss. 2U said, "The Company believes that the claims are without merit, and it intends to vigorously defend against these claims. However, due to the complex nature of the legal and factual issues involved, the outcome of this matter is not presently determinable." Headquartered in Landover, Maryland, 2U, Inc. provides cloud-based SaaS solutions that address the needs of nonprofit colleges and universities to attract, enroll and deliver quality education to students. The 2U platform enables clients to offer full undergraduate, graduate and doctoral programs online. 3M CO: 1st Bellwether in Defective Earplug Suit Set for April 2021 ------------------------------------------------------------------ 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the first bellwether case in Defective Earplugs Suit is scheduled for April 2021. Aearo Technologies sold Dual-Ended Combat Arms – Version 2 earplugs starting in about 2003. 3M acquired Aearo Technologies in 2008 and sold these earplugs from 2008 through 2015, when the product was discontinued. In December 2018, a military veteran filed an individual lawsuit against 3M in the San Bernardino Superior Court in California alleging that he sustained personal injuries while serving in the military caused by 3M's Dual-Ended Combat Arms earplugs - Version 2. The plaintiff asserts claims of product liability and fraudulent misrepresentation and concealment. The plaintiff seeks various damages, including medical and related expenses, loss of income, and punitive damages. As of September 30, 2020, the Company is a named defendant in approximately 3,000 lawsuits (including 14 putative class actions) in various state and federal courts that purport to represent approximately 12,000 individual claimants making similar allegations. In April 2019, the U.S. Judicial Panel on Multidistrict Litigation granted motions to transfer and consolidate all cases pending in federal courts to the U.S. District Court for the Northern District of Florida to be managed in a multi-district litigation (MDL) proceeding to centralize pre-trial proceedings. Discovery is underway. The plaintiffs and 3M filed preliminary summary judgment motions on the government contractor defense. In July 2020, based on the current record, the court granted the plaintiffs’ summary judgment motion and denied the defendants' summary judgment motion, ruling that plaintiffs’ claims are not barred by the government contractor defense. The court denied the Company's request to immediately certify the summary judgment ruling for appeal to the U.S. Court of Appeals for the Eleventh Circuit. The first bellwether case is scheduled for April 2021. 3M said, "No liability has been recorded for these matters because the Company believes that any such liability is not probable and estimable at this time." 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: Agrees to Contribute $5MM to Provide Expanded Water Service ------------------------------------------------------------------ 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that Georgia-Pacific and 3M have agreed to contribute to a fund of approximately $5 million to provide expanded municipal water service. 3M is a defendant, together with Georgia-Pacific as co-defendant, in a putative class action in federal court in Michigan brought by residents of Parchment, who allege that the municipal drinking water is contaminated from waste generated by a paper mill owned by Georgia-Pacific's corporate predecessor. The defendants have moved to dismiss certain claims in the complaint, and the parties have begun discovery on the remaining claims. As a result of discussions among Georgia-Pacific, 3M and municipalities near Parchment, Georgia-Pacific and 3M have agreed to contribute to a fund of approximately $5 million to provide expanded municipal water service in the area. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: Bid to Dismiss Amended Delaware Class Complaint Pending -------------------------------------------------------------- 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the motion seeking dismissal of the amended class action complaint in Delaware is pending. In Delaware, 3M, together with several co-defendants, is defending one putative class action brought by individuals alleging Perfluorooctanoic acid (PFAS contamination of their water supply resulting from the operations of local metal plating facilities. Plaintiffs allege that 3M supplied PFAS to the metal plating facilities. DuPont, Chemours, and the metal platers have also been named as defendants. This case has been removed from state court to federal court, and plaintiffs have withdrawn its motion to remand to state court and filed an amended complaint. 3M has filed a motion to dismiss the amended complaint. No further updates were provided in the Company's SEC report. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: Class Cert. Bid in NY Suit Over Water Pollution Underway --------------------------------------------------------------- 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the motion for class certification filed in the putative class action suit filed before the U.S. District Court for the Northern District of New York remains pending. In New York, 3M is defending 41 individual cases and one putative class action filed in the U.S. District Court for the Northern District of New York and four additional cases filed in New York state court against 3M, Saint-Gobain Performance Plastics Corp. (Saint-Gobain), Honeywell International Inc. and E.I. DuPont De Nemours and Co. (DuPont). The plaintiffs allege that 3M manufactured and sold Perfluorooctanoic acid (PFOA) that was used for manufacturing purposes at Saint-Gobain's and Honeywell's facilities located in the Village of Hoosick Falls and the Town of Hoosick. The plaintiffs claim that the drinking water around Hoosick Falls became contaminated with unsafe levels of PFOA due to the activities of the defendants and allege that they suffered bodily injury due to the ingestion and inhalation of PFOA. The plaintiffs seek unstated compensatory, consequential, and punitive damages, as well as attorneys' fees and costs. 3M has answered the complaints in these cases, which are now proceeding through discovery. The plaintiffs in the putative class action have moved for class certification. 3M is also defending eight additional cases in New York filed by Nassau County drinking water providers in the U.S. District Court for the Eastern District of New York. The plaintiffs in these cases allege that 3M, DuPont, and additional unnamed defendants are responsible for the contamination of plaintiffs’ water supply sources with various PFAS compounds. DuPont's motion to transfer these cases to the AFFF MDL was denied in March 2020. These cases are in the preliminary stages of litigation. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: Petition for Writ of Mandamus in Consolidated Suit Pending ----------------------------------------------------------------- 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the defendants' petition for writ of mandamus to the U.S. Court of Appeals for the Third Circuit in the consolidated putative class action suit initiated by Heavy & General Laborers' Locals 472 & 172 Welfare Fund, is pending. In July 2019, Heavy & General Laborers' Locals 472 & 172 Welfare Fund filed a putative securities class action against 3M Company, its former Chairman and CEO, current Chairman and CEO, and current CFO in the U.S. District Court for the District of New Jersey. In August 2019, an individual plaintiff filed a similar putative securities class action in the same district. Plaintiffs allege that defendants made false and misleading statements regarding 3M's exposure to liability associated with PFAS, and bring claims for damages under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 against all defendants, and under Section 20(a) of the Securities and Exchange Act of 1934 against the individual defendants. In October 2019, the court consolidated the securities class actions and appointed a group of lead plaintiffs. In January 2020, the defendants filed a motion to transfer venue to the U.S. District Court for the District of Minnesota. In August 2020, the court denied the motion to transfer venue, and in September 2020, the defendants filed a petition for writ of mandamus to the U.S. Court of Appeals for the Third Circuit. The suit is in the early stages of litigation. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. ABBEY ROAD: Fails to Pay Proper OT to Flaggers, Guzman Suit Claims ------------------------------------------------------------------ SAUL GUZMAN, on behalf of himself and others similarly situated v. ABBEY ROAD CONTROL, INC., Case No. 3:20-cv-01877-JPW (M.D. Pa., Oct. 12, 2020) arises from the Defendant's unlawful conduct in violation of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. The complaint alleges that the Defendant acted willfully and with reckless disregard of clearly applicable federal and state provisions in paying the Plaintiff and other collective members straight-time compensation for some of their hours worked over 40 per week. The Plaintiff was employed by the Defendant as a flagger during the three-year period relevant to this lawsuit. Abbey Road Control, Inc. owns and operates a business known as "Traffic Control" that provides, inter alia, "flagging" services at road construction sites.[BN] The Plaintiff is represented by: Peter Winebrake, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 E-mail: pwinebrake@winebrakelaw.com ACE HIGH: Conditional Cert. of Brand Ambassadors Class Sought ------------------------------------------------------------- In the class action lawsuit captioned as MAURICE EYO, on behalf of himself and all others similarly situated, v. ACE HIGH MARKETING, LLC, Case No. 1:20-cv-01018-AT (N.D. Ga.), the Plaintiff asks the Court for an order: 1. conditionally certifying a putative class of: "Brand Ambassadors employed by Defendant Ace High Marketing, LLC ("Ace High" or "Defendant")"; 2. authorizing herself to proceed as a collective action under 29 U.S.C. section 216(b) on behalf of Plaintiffs and other similarly situated employees and former employees; 3. directing Ace High to provide Plaintiff's counsel with contact information for the putative collective class to facilitate notice and so that additional Brand Ambassadors can be promptly notified of their right toC participate in this lawsuit; and 4. approving the form of notice to the putative collective class. Ace High is a premier nationwide event staffing agency. A copy of the Plaintiffs' motion for conditional certification is available from PacerMonitor.com at https://bit.ly/3lxyeJr at no extra charge.[CC] The Plaintiff is represented by: Andrew Lampros, Esq. Gordon Van Remmen, Esq. Brittany A. Barto, Esq. ALL & L AMPROS, LLP 400 Galleria Pkwy SE, Suite 1150 Atlanta, GA 30339 Telephone: (404) 876-8100 Facsimile: (404) 876-3477 E-mail: alampros@hallandlampros.com gordon@hallandlampros.com ADVANCED MICRO: Remaining Claims in Hauck Suit Dismissed -------------------------------------------------------- Advanced Micro Devices, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 26, 2020, that the district court has dismissed the remaining claims in the consolidated Diana Hauck et al. v. AMD, Inc., with prejudice. Since January 19, 2018, three putative class action complaints have been filed against the Company in the United States District Court for the Northern District of California: (1) Diana Hauck et al. v. AMD, Inc., Case No. 5:18-cv-0047, filed on January 19, 2018; (2) Brian Speck et al. v. AMD, Inc., Case No. 5:18-cv-0744, filed on February 4, 2018; and (3) Nathan Barnes and Jonathan Caskey-Medina, et al. v. AMD, Inc., Case No. 5:18-cv-00883, filed on February 9, 2018. On April 9, 2018, the court consolidated these cases and ordered that Diana Hauck et al. v. AMD, Inc. serve as the lead case. On June 13, 2018, six plaintiffs (from California, Louisiana, Florida and Massachusetts) filed a consolidated amended complaint alleging that the Company failed to disclose its processors' alleged vulnerability to Spectre. Plaintiffs further allege that the Company's processors cannot perform at their advertised processing speeds without exposing consumers to Spectre, and that any "patches" to remedy this security vulnerability will result in degradation of processor performance. The plaintiffs seek damages under several causes of action on behalf of a nationwide class and four state subclasses (California, Florida, Massachusetts and Louisiana) of consumers who purchased the Company's processors and/or devices containing AMD processors. The plaintiffs also seek attorneys' fees, equitable relief and restitution. Pursuant to the court's order directing the parties to litigate only eight of the causes of action in the consolidated amended complaint initially, the Company filed a motion to dismiss on July 13, 2018. On October 29, 2018, after the plaintiffs voluntarily dismissed one of their claims, the court granted the Company's motion and dismissed six causes of action with leave to amend. The plaintiffs filed their amended consolidated complaint on December 6, 2018. On January 3, 2019, the Company again moved to dismiss the subset of claims currently at issue. On April 4, 2019, the court granted the Company's motion and dismissed all claims currently at issue with prejudice. On May 6, 2019, the court granted the parties' stipulation and request under Fed. R. Civ. P. 54(b) to enter a partial final judgment and certify for appeal the court's April 4, 2019 dismissal order, and on that same date, the plaintiffs voluntarily dismissed without prejudice their remaining claims pursuant to an agreement whereby, subject to certain terms and conditions, the Company agreed to toll the statute of limitations and/or statute of repose. On May 30, 2019, the plaintiffs filed a Notice of Appeal with the U.S. Court of Appeals for the Ninth Circuit. On May 15, 2020, the Ninth Circuit affirmed the district court's ruling dismissing the subset of claims currently at issue against the Company. On August 14, 2020, the district court dismissed the remaining claims with prejudice. Advanced Micro Devices, Inc. operates as a semiconductor company worldwide. The company operates in two segments, Computing and Graphics; and Enterprise, Embedded and Semi-Custom. Advanced Micro Devices, Inc. was founded in 1969 and is headquartered in Santa Clara, California. AGENT WALL: Misclassifies Construction Workers, Moran et al. Claim ------------------------------------------------------------------ DOUGLAS MORAN and YOLEISSY MANSFARROL, individually and on behalf of themselves and others similarly situated, Plaintiffs v. AGENT WALL SYSTEMS, INC., and B&A CONSTRUCTION SERVICES, INC., Defendants, Case No. 3:20-cv-00823-HEH (E.D. Va., October 22, 2020) is a collective and class action complaint brought against the Defendants for their alleged unlawful policies, practices, and procedures in violations of the Fair Labor Standards Act, the Virginia Wage Payment Law, and the Virginia Misclassification Law. The Plaintiffs were employed by the Defendants as construction workers at the Defendants' Fine Arts Center of Christopher Newport University in Newport News, Virginia. Plaintiff Moran began working for the Defendants from approximately June 2020 to October 2020, while Plaintiff Mansfarroll has worked for the Defendants since August 2019. The Plaintiffs claim that they were misclassified by the Defendants as independent contractors. As a result, the Defendant did not pay them overtime premiums at the rate of one and one-half times for hours they worked over 40 in a week despite frequently working more than that number of hours per week. Agent Wall Systems, Inc. and B&A Construction Services, Inc. are construction contractors at multiple construction projects around Virginia. [BN] The Plaintiffs are represented by: Rachel Nadas, Esq. Matthew K. Handley, Esq. HANDLEY FARAH & ANDERSON PLLC 777 6th Street, NW – Eleventh Floor Washington, DC 20001 Tel: (202) 899-2991 E-mail: rnadas@hfajustice.com - and – Matthew B. Kaplan, Esq. THE KAPLAN LAW FIRM 1100 N Glebe Rd., Suite 1010 Arlington, VA 22201 Tel: (703) 665-9529 E-mail: mbkaplan@thekaplanlawfirm.com ALLERGAN PLC: Beats Workers' ERISA Appeal Over Drug Price-fixing ---------------------------------------------------------------- Allergan PLC defeated a proposed class action by employees who said they lost retirement savings because of the company's participation in a generic drug price-fixing scheme, when the Third Circuit ruled that the employees didn't present sufficient allegations of illegal conduct. The employees' claims under the Employee Retirement Income Security Act are premised on the idea that the fiduciaries of their 401(k) plan knew or should have known about the company's illegal conduct and taken action to protect the plan from losses tied to a drop in Allergan's stock price, the court said. But the employees didn't allege that Allergan was charged with any criminal conduct, only that the company received inquiries from members of Congress and the Justice Department about potential price-fixing, the court said. "Because all of the plaintiffs' causes of action ultimately rest on the premise that the defendants knew or should have known about that supposed illegal conduct, the absence of allegations sufficient to support the existence of it is fatal to each of their claims," the court said. The employees argued that nothing in ERISA requires them to prove fraud. The Third Circuit disagreed, saying the employees "ignore the premise of their own complaint." "Regardless of whether ERISA requires proof of 'collusive or fraudulent activity,' the plaintiffs specifically chose a theory of liability predicated on Allergan's participation in an unlawful price-fixing conspiracy," the court said. "In advancing that theory, they assumed the burden of plausibly alleging both the existence of a price-fixing conspiracy and Allergan's participation in it." Judge Kent A. Jordan wrote the decision. Judges Stephanos Bibas and Richard L. Nygaard joined. The employees are represented by Zamansky LLC; Stull, Stull & Brody; Kantrowitz, Goldhamer & Graifman; Abraham, Fruchter & Twersky; and Mark Levine of Pelham, N.Y. Allergan is represented by Becker LLC and Duane Morris. The case is In re Allergan ERISA Litig., 3d Cir., No. 18-2729, No. 18-2729 9/18/20. To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bloomberglaw.com To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com [GN] ALLERGAN PLC: Court Denies Bid to Certify Class in Securities Suit ------------------------------------------------------------------ In the class action lawsuit RE ALLERGAN PLC SECURITIES LITIGATION, Case No. 1:18-cv-12089-CM-GWG (S.D.N.Y.), the Court entered an order: 1. denying the Plaintiff's motion to certify a class; and "all individuals and entities that purchased or otherwise acquired Allergan preferred stock between January 30, 2017 and December 19, 2018 -- the period during which the Defendants' alleged misstatements and omissions caused the price of Allergan stock to artificially inflate"; and 2. granting in part and denying in part the Plaintiff's motion to seal. The Court said, "There is absolutely no question that this action should proceed as a class action. It is a garden-variety securities fraud suit, a type of action particularly well suited to class treatment. What has become clear, however, is that the Lead Plaintiff Boston Retirement System (BRS) is not the plaintiff who should be controlling the representation of the class. Because BRS is an inadequate representative of the class, its motion for class certification is denied. The parties also move to seal certain exhibits to their briefs in support of and in opposition to the Plaintiff's motion for class certification. That motion is granted in part and denied in part. In their memorandum of law in response to Plaintiff's motion to file under seal, the Defendants ask the Court to strike a subset of these exhibits on the basis of their purported irrelevancy to the class certification motion. This is not the proper way to make a motion. However, the only apparent use of these exhibits was as citations in the "Relevant Facts" section of the Plaintiff's reply brief, which, to Allergan, suggests that they were added to the record for an improper purpose and so can be stricken under Fed. R. Civ. P. 12(f) as "immaterial" matter. Unfortunately for Allergan, that rule is specifically directed to pleadings, not materials submitted in connection with a motion. The Judge direct that the exhibits that Allergan seeks to strike from the record be filed under seal, but only temporarily, until the point at which they do become relevant to a decision the court needs to make. At that point, they will almost certainly have to be unsealed." On April 19, 2019, the Lead Plaintiff BRS filed the Consolidated Amended Class Action Complaint against the Defendant Allergan and certain of its executives, alleging the that Defendants had made materially false and misleading statements and omitted to make necessary disclosures about an alleged link between breast implant-associated anaplastic large cell lymphoma and the variety of silicone-gel breast implants manufactured by the Company. Allergan is a global pharmaceutical and medical products company that develops, manufactures, and sells, among other things, breast implants. Allergan's Natrelle BIOCELL line of breast implants is the subject of this lawsuit. BIA-ALCL -- a rare form of non-Hodgkin's lymphoma that typically occurs in the scar tissue surrounding the breast implant -- was first reported in 1997. A copy of the Court's decision and order denying BRS' motion for class certification is available from PacerMonitor.com at https://bit.ly/3dgWA7l at no extra charge.[CC] ALLIANT CREDIT: Wins Dismissal of Page Case ------------------------------------------- In the case, ALICIA M. PAGE, individually and on behalf of all others similarly situated, Plaintiff, v. ALLIANT CREDIT UNION, et. al, Defendants, Case No. 19-cv-5965 (N.D. Ill.), Judge Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part with prejudice and granted in part without prejudice Alliant's motion to dismiss Page's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). This case was previously captioned ALICIA M. PAGE, CARMEL COOPER, and CINDY MUNIZ, individually and on behalf of all others similarly situated, Plaintiffs, v. ALLIANT CREDIT UNION and DOES 1-100, Defendants, Case No. 1:19-cv-5965 (N.D. Ill.). However, in a Memorandum Opinion and Order entered on May 18, 2020, a full-text copy of which is available at https://tinyurl.com/ybqncq3r from Leagle.com, Judge Coleman granted the defendant's motion to compel arbitration in relation to named plaintiffs Carmel Cooper and Cindy Muniz. The Court held that it will address defendant's motion to dismiss in relation to plaintiff Alicia M. Page in a separate ruling. The Plaintiffs filed the present putative class action challenging the practices of Defendant Alliant and Defendants DOES 1 through 100 in relation to charging overdraft or non-sufficient fund ("NSF") fees. Alliant is a non-profit, state-chartered credit union that offers its members various financial services, including checking accounts and debit cards. It relationship with its members is governed by Account Agreement and Disclosures. Page alleges that when processing transactions, Alliant has a practice of assessing overdraft or NSF fees although a member's account has sufficient funds to cover the transaction and that the practice is contrary to the express terms of the Membership Agreement. In addition, Page challenges Alliant's practice of charging multiple overdraft fees for one purchase when retailers re-submit the same transaction for Alliant's approval. The parties agree that the Membership Agreement governing their dispute is the November 2013 version. In her complaint, Page contends that Alliant has breached the Membership Agreement, breached the implied covenant of good faith and fair dealing, and engaged in unfair and deceptive business practices in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"). She also brings quasi-contract claims for equitable relief in the alternative to her breach of contract claim. Before the Court is Alliant's motion to dismiss Page's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Alliant's first argument is that Page's state law claims are preempted by the Truth in Savings Act ("TISA") because they are, in essence, claims that Alliant failed to disclose certain fee practices. Although several federal district courts have concluded that claims based on a credit union's failure to disclose are preempted by TISA and/or FCUA, true breach of contract and affirmative misrepresentation claims are not federally preempted, even if the result of those claims may affect a federal credit union's fee disclosures. Examining Page's breach of contract claim, Page alleges that Alliant has an overdraft practice that is contrary to the express terms of the Membership Agreement. Under these allegations, Page is bringing a "true" breach of contract claim, not a failure to disclose claim as Alliant argues, especially because she highlights the terms of the Membership Agreement that Alliant allegedly breached. Therefore, Page's breach of contract claim is not preempted. In support of her ICFA claim, Page alleges that Alliant's practice in relation to its overdraft fees constitutes both unfair and deceptive business practices. She specifically asserts that Alliant misrepresented the actual nature of its overdraft program -- not that it failed to disclose certain aspects of its practice. Because Page's claims are not preempted, Judge Coleman examines whether she has adequately alleged her claims under the federal pleading standards. First, Page alleges that Alliant has breached the Membership Agreement by charging overdraft fees when a member's account has sufficient funds and by assessing multiple overdraft fees for a single transaction. Judge Coleman finds that Page's reading of the agreement that all of her funds should be accessible renders the term "available" meaningless. Read in tandem, these sections of the Membership Agreement spell out that not all funds are immediately available for use or withdrawal. She therefore grants with prejudice this aspect of Alliant's motion to dismiss. Next, Page asserts that Alliant breached the Membership Agreement by assessing multiple overdraft fees for a single transaction. Judge Coleman holds that the language in the provisions does not promise members that Alliant will charge just one overdraft fee per transaction. Rather, in the context of the entire Membership Agreement, Alliant charges its members an overdraft fee every time a third-party payee presents an item for payment against insufficient available funds. Page's stilted reading of the Membership Agreement does not create any ambiguity. Her remaining arguments are equally unpersuasive. The Judge cannot consider extrinsic evidence if the agreement's language is unambiguous. She therefore grants with prejudice this aspect of Alliant's motion to dismiss. Alliant contends that the Court must dismiss Page's claim for breach of the implied covenant of good faith and fair dealing because it is not a stand-alone claim under Illinois law. Judge Coleman agrees. She therefore grants Alliant's motion to dismiss this claim with prejudice. Further, Alliant maintains that the Court must dismiss Page's quasi-contract claims of unjust enrichment and "money had and received" because there is a binding contract at issue. Alliant correctly asserts, Page's quasi-contract claims cannot stand because Page incorporated her breach of contract allegations into her equitable claims. Under this precedent, Judge Coleman grants Alliant's motion to dismiss Page's quasi-contract claims without prejudice granting Page leave to amend her quasi-contract claims accordingly. Last, Alliant argues that Page has failed to plead a viable ICFA claim because she did not allege any conduct separate and apart from the breach of the Membership Agreement. In response, Page identifies Alliant's use of what she calls the "artificial available balance" or "accounting gimmicks" as deceptive and unfair. She also states that Alliant affirmatively misrepresented its fee practices and overdraft program. Not only are these arguments intermingled with Page's breach of contract claims, she fails to allege the alleged deceptive business practices under Rule 9(b)'s particularity requirements. Judge Coleman, hence, grants Alliant's motion to dismiss Page's ICFA claim without prejudice. On a final note, Page filed a request for the Court to take judicial notice of account agreements from other institutions to support her opposition to Alliant's motion to dismiss. She suggests that the Court reviews the extrinsic evidence in evaluating her breach of contract claims. Because the Membership Agreement is unambiguous, Judge Coleman will not consider the extrinsic evidence, and thus denies Page's request. For the foregoing reasons, Judge Coleman, in a Memorandum Opinion & Order dated Aug. 26, 2020, a full-text copy of which is available at https://tinyurl.com/y3yex6ks from Leagle.com, granted in part with prejudice and granted in part without prejudice, Alliant's motion to dismiss Page's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). She also granted the Plaintiff leave to file an amended complaint in accordance with her ruling. ALLSTATE INDEMNITY: Bid to Certify Class in Basher Suit Denied -------------------------------------------------------------- In the case, DONALD BRASHER, individually and on behalf of all others similarly situated, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant, Case No. 4:18-cv-00576-ACA (N.D. Ala.), Judge Annemarie Carney Axon of the U.S. District Court for the Northern District of Alabama, Middle Division, (i) denied Mr. Brasher's motion for class certification; (ii) granted in part and denied in part Allstate's motion to exclude the opinion testimony of Chris Hatcher and Jason Wells; (iii) denied as moot Mr. Brasher's motion to strike and exclude the opinion testimony of Don Odom; (iv) denied as moot Mr. Brasher's motion to exclude the opinion testimony of Victoria Roberts; (v) denied as moot Allstate's motion to strike paragraphs 6 and 7 of Colby Graff's declaration; and (vi) denied Mr. Brasher's motion to strike paragraphs 9, 10, 11, and 13 of Mr. Odom's declaration. A storm damaged Plaintiff Brasher's home in St. Clair County, Alabama. Mr. Brasher filed a property damage claim with Defendant Allstate. Under the terms of Mr. Brasher's policy, Allstate settles claims on an "actual cash value" basis. Allstate denied Mr. Brasher's claim because after depreciating the cost of materials and labor, the actual cash value of Mr. Brasher's claim was less than his deductible. Mr. Brasher filed the putative class action lawsuit claiming that by depreciating labor costs, Allstate breached the terms of his insurance contract and was unjustly enriched. He seeks to represent similarly situated Allstate policyholders in Alabama who also had labor depreciation deducted from actual cash value claim payments. Specifically, Mr. Brasher seeks to represent the following class of individuals: All Allstate Indemnity Co. property insurance policyholders who submitted a claim for structural property damage in Alabama, and whose ACV payment was reduced by the withholding of labor depreciation and who did not receive a subsequent replacement cash value payment for the amount of that withheld labor depreciation, or whose claim failed to meet the deductible after labor depreciation was deducted from the claim estimate, during the time period from Feb. 28, 2012, to the date of trial. The members of the proposed class purchased one of the following nine policy types that Allstate sells in Alabama: (1) Deluxe Homeowners Policy; (2) Deluxe Plus Homeowners Policy; (3) Standard Homeowners Policy; (4) Deluxe Select Homeowners Policy; (5) Standard Select Value Homeowners Policy; (6) Manufactured Home Policy; (7) Standard Mobilehome Policy; (8) Deluxe Mobilehome Policy; or (9) Landlord Package Policy. Pending before the court is Mr. Brasher's motion for certification of a Rule 23(b)(3) class for breach of contract and appointment of class counsel. In addition, the parties have filed the following motions to exclude the others' experts pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.: (1) Allstate's motion to exclude the opinion testimony of Mr. Hatcher and Mr. Wells; (3) Mr. Brasher's motion to strike and exclude the opinion testimony of Don Odom; and (3) Mr. Brasher's motion to exclude the opinion testimony of Victoria Roberts. The parties also have filed two other motions to strike the other's evidence: (1) Allstate's motion to strike paragraphs 6 and 7 of Colby Graff's declaration, and (2) Mr. Brasher's motion to strike paragraphs 9, 10, 11, and 13 of Mr. Odom's declaration. The Court held a hearing on the motions on June 17, 2020. First, with respect to the parties' evidentiary challenges, both parties have proffered experts in support of their respective positions on class certification, and both parties challenge the admissibility of the other's expert testimony. Judge Axon granted in part and denied in part Allstate's motion to exclude the opinion testimony of Mr. Hatcher and Mr. Wells. She denied as moot the motion, to the extent Allstate seeks to exclude Mr. Hatcher's opinion that labor should not be depreciated because she has not considered the opinion for purposes of ruling on class certification. Judge Axon granted the motion, to the extent Allstate seeks to exclude Mr. Hatcher's opinion about the amount of labor depreciation applied to the class members' property damage claims because the opinion in unreliable. She granted the motion to exclude Mr. Wells' testimony, to the extent his calculations are based on Mr. Hatcher's unreliable opinion. Next, Judge Axon denied Mr. Brasher's motion to exclude the opinion testimony of Mr. Odom, to the extent Mr. Brasher seeks to exclude the opinion for failure to provide a written report, and denied as moot the motion, to the extent Mr. Brasher's claims the opinions do not pass a Daubert test because the court has not relied on Mr. Odom as an expert witness for purposes of ruling on class certification. Mr. Odom is not specially employed or retained to provide expert testimony in the case, and his duties as an Allstate employee do not regularly involve giving expert testimony. The Judge has not relied on any opinions from Mr. Odom for purposes of ruling on class certification. She has relied only on Mr. Odom's fact testimony in his capacity as Allstate's corporate representative. Mr. Brasher may renew his Daubert challenges to Mr. Odom's testimony, if necessary, at a later stage in these proceedings. Judge Axon denied as moot Mr. Brasher's motion to exclude Ms. Roberts' opinions, to the extent Mr. Brasher challenges the cited portions of her testimony because she has not relied on those opinions for purposes of ruling on class certification. Mr. Brasher may renew his Daubert challenge to Ms. Roberts' opinions, if necessary, at a later stage in these proceedings. She also denied as moot Allstate's motion to exclude paragraphs 6 and 7 of Colby Graff's declaration because she has not relied on the disputed portions of Mr. Graff's declaration in ruling on class certification. Judge Axon denied Mr. Brasher's motion to strike paragraphs 9, 10, 11, and 13 of Mr. Odom's declaration because the declaration does not contain new or contradictory opinions, and even if it did, Mr. Brasher is not prejudiced by the new opinions because she has not relied on the disputed portions of Mr. Odom's declaration for purposes of ruling on class certification. Finally, Judge Axon denied Mr. Brasher's motion for class certification because Mr. Brasher has not established that common issues predominate over individual questions as required by Federal Rule of Civil Procedure 23(b)(3). The Court cannot find that any common issues regarding the class members' ability to establish liability predominate over the individual issues concerning the existence of valid contracts; the class members' own performance under the policies; class members' damages; and Allstate's affirmative defenses. Accordingly, Mr. Brasher cannot establish that the class breach of contract claim satisfies Rule 23(b)(2)'s predominance requirement. A full-text copy of the Court's Aug. 12, 2020 Memorandum Opinion & Order is available at https://tinyurl.com/y35g8mfb from Leagle.com. AMAZON.COM INC: Denial of Arbitration Bid in Rittman Suit Affirmed ------------------------------------------------------------------ In the case, BERNADEAN RITTMANN, individually and on behalf of all others similarly situated; FREDDIE CARROLL, individually and on behalf of all similarly situated; JULIA WEHMEYER, individually and on behalf of all others similarly situated; RAEF LAWSON, individually and on behalf of all others similarly situated; in his capacity as Private Attorney General Representative; IAIN MACK, in his capacity as Private Attorney General Representative, Plaintiffs-Appellees, v. AMAZON.COM, INC.; AMAZON LOGISTICS, INC., Defendants-Appellants, Case No. 19-35381 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit ruled 2-1 to affirm the district court's order denying the Defendants-Appellants' motion to compel arbitration of Plaintiff Raef Lawson's federal and state wage and hour claims. Plaintiffs Rittman, Freddie Carroll, Julia Wehmeyer, and Lawson contracted with Amazon Logistics to provide delivery services for AmFlex. Amazon Logistics is a subsidiary of Amazon.com, an online retailer that sells its own products and provides fulfillment services for third-party sellers who also sell their products on Amazon.com. Historically, Amazon has shipped products by using large third-party delivery providers such as FedEx and UPS. Recently, it has supplemented those delivery services by contracting with local delivery providers through its AmFlex program, which is available in certain metropolitan areas in the United States. To sign up for the AmFlex program, individuals must agree to the AmFlex Independent Contractor Terms of Service ("TOS") in the app, the most recent version of which -- and the one at issue -- was updated in October 2016. In relevant part, the TOS includes the arbitration provision at issue. Plaintiffs Rittman, Carroll, and Wehmeyer timely opted out of arbitration when they signed up for AmFlex and thus are not subject to the arbitration provision. Plaintiff Lawson, however, did not opt out. He then went on to make deliveries in the Los Angeles area. In 2016, Plaintiffs Rittman, Carroll, and Wehmeyer filed the proposed collective and class action lawsuit alleging that Amazon misclassifies AmFlex users as independent contractors rather than employees. In 2017, they filed a Second Amended Complaint ("SAC"), adding Lawson as a Plaintiff. The SAC alleges violations by Amazon of the Fair Labor Standards Act of 1938 ("FLSA"), the California Labor Code, and Washington state and Seattle municipal wage and hour laws. The Plaintiffs seek to bring the FLSA claims as a nationwide collective action and their state claims as state-wide class actions. Amazon moved to compel Lawson's claims to arbitration. The district court stayed the proceedings pending the resolution of Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), Van Dusen v. Swift Transportation Co., No. 17-15102 (9th Cir. Jan. 20, 2017), and New Prime Inc. v. Oliveira, 139 S.Ct. 532 (2019). Following the Supreme Court's decision in New Prime, the parties supplemented their briefing on the motion to compel. The district court denied Amazon's motion to compel. It determined that the Plaintiffs fell within the FAA's transportation worker exemption, which exempts from the FAA's arbitration enforcement provisions the contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. The court then considered whether the arbitration provision in Section 11 was otherwise valid and enforceable. Pointing to the text of the TOS' governing law provision, the court determined that the FAA did not govern Section 11 in light of the application of the FAA's exemption, and that the parties did not intend Washington law to apply either. As a result, the court determined that it was not clear what law would apply to the provision, or whether the parties intended to arbitrate disputes in the event the FAA did not apply. Accordingly, it concluded that there was no valid agreement to arbitrate and denied Amazon's motion to compel arbitration. Amazon timely appealed, and the district court stayed proceedings pending the appeal. The Ninth Circuit holds that the AmFlex delivery providers in the case are transportation workers engaged in interstate commerce and are thus exempt from the FAA's enforcement provisions pursuant to Section 1. It furthers hold that the parties did not enter into a valid agreement to arbitrate and that there is no other ground upon which the Court may enforce the arbitration provision. It rejects Amazon's alternative bases to compel arbitration. The Ninth Circuit, therefore, affirmed the district court's denial of Amazon's motion to compel arbitration. A full-text copy of the Court's Aug. 19, 2020 Opinion is available at https://tinyurl.com/y6khn4cu from Leagle.com. David B. Salmons -- david.salmons@morganlewis.com -- (argued) and Michael E. Kenneally -- michael.kenneally@morganlewis.com -- Morgan Lewis & Bockius LLP, Washington, D.C.; Richard G. Rosenblatt -- richard.rosenblatt@morganlewis.com -- Morgan Lewis & Bockius LLP, Princeton, New Jersey; for Defendants-Appellants. Harold Lichten -- hlichten@llrlaw.com -- (argued), Shannon Liss-Riordan -- sliss@llrlaw.com -- and Adelaide Pagano -- apagano@llrlaw.com -- Lichten & Liss-Riordan P.C., Boston, Massachusetts, for Plaintiffs-Appellees. Toby J. Marshall -- tmarshall@terrellmarshall.com -- Blythe H. Chandler -- bchandler@terrellmarshall.com -- and Elizabeth A. Adams -- eadams@terrellmarshall.com -- Terrell Marshall Law Group PLLC, Seattle, Washington; Jennifer D. Bennett, Public Justice, Oakland, California; for Amicus Curiae Public Justice. Archis A. Parasharami -- aparasharami@mayerbrown.com -- and Daniel E. Jones -- djones@mayerbrown.com -- Mayer Brown LLP, Washington, D.C., for Amici Curiae Chamber of Commerce of the United States and National Association of Manufacturers. AMERICAN FINANCIAL: Davis Sues Over Unsolicited Text Messages ------------------------------------------------------------- BENJAMIN DAVIS, individually and on behalf of all others similarly situated, Plaintiff v. AMERICAN FINANCIAL FREEDOM LLC, d/b/a GLOBELEND CAPITAL, Defendant, Case No. 1:20-cv-24362-DPG (S.D. Fla., October 22, 2020) brings this class action complaint against the Defendant for its alleged violation of the Telephone Consumer Protection Act. The Plaintiff claims that the Defendant transmitted text messages to his cellular telephone number ending in -3278, including on October 2, 9, and 10, 2018, April 29, 2019, and on or about June 13, 2019, in an attempt to promote the commercial availability of its commercial lending services, for the purpose of selling such services to the Plaintiff for profit. The Plaintiff has never provided the Defendant with his "prior express consent" to be sent such unsolicited text messages. Furthermore, each of the Defendant's unsolicited text message transmitted to the Plaintiff's 3278 cellular telephone number was invasive and intruded upon the Plaintiff's seclusion because he is alerted by his cellular device whenever he receives a text message. American Financial Freedom LLC d/b/a Globeland Capital provides capital to business throughout the U.S. [BN] The Plaintiff is represented by: Frank S. Hedin, Esq. HEDIN HALL LLP 1395 Brickell Ave., Suite 1140 Miami, FL 33131 Tel: (305) 357-2107 Fax: (305) 200-8801 E-mail: fhedin@hedinhall.com ANTHEM INC: Appeal in Express Scripts/Anthem ERISA Suit Pending --------------------------------------------------------------- Anthem, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the appeal in the class action suit entitled, In re Express Scripts/Anthem ERISA Litigation, has been heard but the U.S. Court of Appeals for the Second Circuit has yet to issue a decision. The company is a defendant in a class action lawsuit that was initially filed in June 2016 against Anthem, Inc. and Express Scripts, which has been consolidated into a single multi-district lawsuit captioned In Re Express Scripts/Anthem ERISA Litigation, in the U.S. District Court for the Southern District of New York. The consolidated complaint was filed by plaintiffs against Express Scripts and us on behalf of all persons who are participants in or beneficiaries of any ERISA or non-ERISA healthcare plan from December 1, 2009 to December 31, 2019 in which the company provided prescription drug benefits through the ESI PBM Agreement and paid a percentage based co-insurance payment in the course of using that prescription drug benefit. The plaintiffs allege that the company breached its duties, either under ERISA or with respect to the implied covenant of good faith and fair dealing implied in the health plans, (i) by failing to adequately monitor Express Scripts' pricing under the ESI PBM Agreement, (ii) by placing the company's own pecuniary interest above the best interests of its insureds by allegedly agreeing to higher pricing in the ESI PBM Agreement in exchange for the purchase price for the company's NextRx PBM business, and (iii) with respect to the non-ERISA members, by negotiating and entering into the ESI PBM Agreement that was allegedly detrimental to the interests of such non-ERISA members. Plaintiffs seek to hold us and Express Scripts jointly and severally liable and to recover all losses suffered by the proposed class, equitable relief, disgorgement of alleged ill-gotten gains, injunctive relief, attorney's fees and costs and interest. In April 2017, the company filed a motion to dismiss the claims brought against us, and it was granted, without prejudice, in January 2018. Plaintiffs filed a notice of appeal with the United States Court of Appeals for the Second Circuit, which was heard in October 2018 but has not yet been decided. Anthem said, "We intend to vigorously defend this suit; however, its ultimate outcome cannot be presently determined." No further updates were provided in the Company's SEC report. Anthem, Inc., through its subsidiaries, operates as a health benefits company in the United States. It operates through three segments: Commercial & Specialty Business, Government Business, and Other. The company was formerly known as WellPoint, Inc. and changed its name to Anthem, Inc. in December 2014. Anthem, Inc. was founded in 1944 and is headquartered in Indianapolis, Indiana. APPLE INC: Viglietti Sues to Recover Money Lost to Illegal Gambling ------------------------------------------------------------------- Rico Viglietti, on behalf of himself and all others similarly situated v. APPLE, INC., Case No. 2:20-cv-02773 (W.D. Tenn., Oct. 22, 2020), is brought against the Defendant to recover money lost to illegal gambling pursuant to Section 29-19-104 of the Code of Tennessee. The Defendant promotes, enables, and profits from games downloaded from the App Store and played by numerous Tennessee residents that constitute illegal gambling under the statutory law and the strong public policy of the state of Tennessee. This case concerns Apple's profiting from illegal gambling machine games that it sells in its App Store. Apple and its chief mobile device software competitor, Google, both allow customers to purchase games that are no more or no less than casino-style slot machines, casino style table games, and other common gambling games. The Plaintiff downloaded and played several of these casino-style gambling games, including Lighning Link, Cashman, and Heart of Vegas. Mr. Viglietti downloaded these games from the Apple App Store at least two years ago. More than ninety days ago, he began purchasing coins through the app so he could continue to play for a chance to win free coins that would enable him to enjoy the games for a longer period of time. In the ninety days prior to the filing of this complaint, he paid $106.00 to Apple for the privilege of continuing to play the illegal gambling games. A customer such as plaintiff does not have the ability to collect actual cash as a result of " winning" games, but he does have the ability to win and therefore acquire more playing time. Tennessee law prohibits paying to win anything of value, including free plays. Apple is not some minor or incidental participant in these illegal gambling games. It is the principal promoter and facilitator of the illegal activity. Apple maintains dictatorial control over what apps can be downloaded from the App Store, and the payment method to purchase in-app items. Apple has the ability, which it has employed on other apps, to geo-restrict games so that they can only be played in certain states. In fact, with cash-out gambling games it regularly restricts those game so that they can only be played in states where that type of gambling is legal. Apple has also restricted gambling games such as the ones made the basis of this lawsuit so that minors cannot download or play them. It has the ability with existing technology it currently uses to prevent the games at issue here from being played in this state. Apple's App Store is not just a venue to buy iOS apps. It is a promotional tool. Apple heavily promotes apps, such as the illegal gambling games that form the basis of this complaint, that promise to bring in revenue. Revenue from the App Store is the reason Apple is the most valuable company on the planet. Thus, Apple enables, permits, promotes, and profits from illegal gambling, says the complaint. The Plaintiff Rico Vigliette is an adult resident citizen of the state of Tennessee. Apple is the most valuable company in the world, with a market capitalization exceeding $2 trillion as of mid-2020. It is by far the world's biggest technology company, now roughly double the size of both Microsoft Corporation and Alphabet Inc., the parent company of Google, respectively.[BN] The Plaintiff is represented by: D. Frank Davis, Esq. John E. Norris, Esq. Wesley W. Barnett, Esq. DAVIS & NORRIS, LLP 2154 Highland Avenue South Birmingham, AL 35205 Phone: 205.930.9900 Facsimile: 205.930.9989 Email: fdavis@davisnorris.com jnorris@davisnorris.com wbarnett@davisnorris.com APPLE INC: Workman Sues to Recover Money Lost to Illegal Gambling ----------------------------------------------------------------- Karen Workman, on behalf of herself and all others similarly situated v. APPLE, INC., Case No. 3:20-cv-01595 (D. Conn., Oct. 22, 2020), is brought against the Defendant to recover money lost to illegal gambling pursuant to Section 52-554 of the Connecticut General Statutes. The complaint alleges that the Defendant promotes, enables, and profits from games downloaded from the App Store and played by numerous Connecticut residents that constitute illegal gambling under the statutory law and the strong public policy of the state of Connecticut. This case concerns Apple's profiting from illegal gambling machine games that it sells in its App Store. Apple and its chief mobile device software competitor, Google, both allow customers to purchase games that are no more or no less than casino-style slot machines, casino style table games, and other common gambling games. The Plaintiff downloaded and played one of these casino-style gambling games. Prior to or near the beginning of 2017, she downloaded Jackpot Mania from the Apple App Store. During January of 2017, she began purchasing coins through the app so she could continue to play for a chance to win free coins that would enable her to enjoy the game(s) for a longer period of time. In the six months prior to the filing of this complaint, she paid $3,312.19 to Apple for the privilege of continuing to play the illegal gambling game(s). A customer such as the Plaintiff does not have the ability to collect actual cash as a result of " winning" games, but he does have the ability to win and therefore acquire more playing time. Connecticut's gambling statutes make it clear that paying money in a game for a chance to win more playing time constitutes illegal gambling. Apple is not some minor or incidental participant in these illegal gambling games. It is the principal promoter and facilitator of the illegal activity. Apple maintains dictatorial control over what apps can be downloaded from the App Store, and the payment method to purchase in-app items. Apple has the ability, which it has employed on other apps, to geo-restrict games so that they can only be played in certain states. In fact, with cash-out gambling games it regularly restricts those game so that they can only be played in states where that type of gambling is legal. Apple has also restricted gambling games such as the ones made the basis of this lawsuit so that minors cannot download or play them. It has the ability with existing technology it currently uses to prevent the games at issue here from being played in this state. The complaint asserts that Apple's App Store is not just a venue to buy iOS apps. It is a promotional tool. Apple heavily promotes apps, such as the illegal gambling games that form the basis of this complaint, that promise to bring in revenue. Revenue from the App Store is the reason Apple is the most valuable company on the planet. Thus, Apple enables, permits, promotes, and profits from illegal gambling, says the complaint. The Plaintiff Karen Workman is an adult resident citizen of the state of Connecticut. Apple is the most valuable company in the world, with a market capitalization exceeding $2 trillion as of mid-2020. It is by far the world's biggest technology company, now roughly double the size of both Microsoft Corporation and Alphabet Inc., the parent company of Google, respectively.[BN] The Plaintiff is represented by: Paul M. Geraghty, Esq. GERAGHTY & BONNANO, LLC P. O. Box 231, New London, CT 06320 Phone: (860) 447-8077 Fax (860) 447-9833 Email: pgeraghty@geraghtybonnano.com - and - DAVIS & NORRIS, LLP 2154 Highland Avenue South Birmingham, AL 35205 Phone: 205.930.9900 Facsimile: 205.930.9989 ASTRAZENECA PHARMA: EPPs Antitrust Suit Moved to Del. Dist. Ct. --------------------------------------------------------------- Judge Colleen McMahon of the U.S. District Court for the Southern District of New York transferred the case captioned In re: Seroquel XR. (Extended Release Quetiapine Fumarate) Litigation. All End-Payor Class Actions, Lead Dkt. No. 19-cv-8296 (CM) (S.D. N.Y.), to the U.S. District Court for the District of Delaware. In the class action, eight end-payor purchaser Plaintiffs ("EPPs") bring a consolidated antitrust class action on behalf of themselves, and all others similarly situated, against Defendants AstraZeneca Pharmaceuticals L.P. and AstraZeneca L.P., AstraZeneca UK Ltd., Handa Pharmaceuticals, LLC, and Pa" Pharmaceutical, Inc. for their allegedly anticompetitive behavior in violation of various state laws. The action arises from the same facts as the lead direct purchaser class action, JM Smith Corporation v. AstraZeneca Pharmaceuticals LP et al., No. 19-cv-7233 ("DPP Case"). The consolidated class action arises from two alleged conspiracies between and among the Defendants to delay and suppress competition for generic versions of AstraZeneca's branded quetiapine fumarate extended-release tablets, Seroquel XR(R). Each EPP indirectly purchased, paid and/or reimbursed for some or all of the purchase price for one or more Seroquel XR and its AB-rated generic equivalent in class state(s) during the class period -- from Sept. 29, 2011 until the anticompetitive effects of the Defendants' challenged conduct cease. Generics manufacturers Handa and Accord Pharmaceuticals, Inc. were the first to file Abbreviated New Drug Applications ("ANDAs") for different strengths of generic Seroquel XR. AstraZeneca filed lawsuits against Handa and Accord in the District of New Jersey, alleging that their ANDAs infringed AstraZeneca's patent that protected Seroquel XR. Around Oct. 1, 2011, AstraZeneca entered into two settlement agreements -- one with Handa (which was assigned to Pa" in 2012), and the other with Accord. Under the settlement agreements, Handa and Accord agreed to delay their launches of generic Seroquel XR. The EPPs allege that the settlement agreements delayed generic competition with branded Seroquel XR for up to five years and eliminated competition between the Handa/Par's and Accord's first-filed generics and AstraZeneca's AGs for 180 days thereafter. The presence of additional generics would have resulted in lower prices. Accordingly, the EPPs and members of the putative class would have been able to satisfy their requirements for extended-release quetiapine fumarate at significantly lower prices substantially earlier. The EPPs assert various state antitrust and consumer protection causes of action against the Defendants on their own behalf and on behalf of similarly situated persons and entities in forty states, Puerto Rico, and the District of Columbia who indirectly purchased, paid and/or provided reimbursement for some or all of the purchase price of brand or generic Seroquel XR, other than for resale, at any time during the period from Sept. 29, 2011 (when AstraZeneca and Handa settled the patent litigation) through and until the anticompetitive effects of Defendants' challenged conduct cease. Other generic competitors launched their own versions of generic extended release quetiapine fumarate in all strengths in or around May 2017. Specifically, the EPPs assert five causes of action under various state laws: (I) monopolization against AstraZeneca; and against all Defendants, (II) conspiracy to monopolize; (III) combination and conspiracy in restraint of trade; (IV) unfair or deceptive trade practices; and (V) unjust enrichment. The Defendants filed the same motion to dismiss in the case and the DPP Case. The EPPs have not submitted their own briefing on the motion; rather, they incorporate by reference all arguments in the opposition filed by the named plaintiff in the DPP Case, JM Smith Corp., doing business as Smith Drug Co. By the Court's order dated Aug. 11, 2020, the DPP Case was transferred to the District of Delaware. The Transfer Order turned largely on a valid and enforceable forum selection clause in contracts between AstraZeneca and Smith. In this indirect purchaser action, the Defendants cannot rely on any contracts between AstraZeneca and the EPPs. Nevertheless, transfer is warranted under Section 1404(a). Judge McMahon holds that, as in the DPP Case, it is prudent to address the motion to transfer before dealing with the contested issue of personal jurisdiction because all the Defendants are either subject to general personal jurisdiction in the District of Delaware, or consent to such jurisdiction for the purposes of the case. Courts consider the following factors under Section 1404(a): (1) the plaintiffs choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative case of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, (7) the relative means of the parties, (8) the forum's familiarity with the governing law, and (9) trial efficiency and the interest of justice. The balance of these factors favors transfer to the District of Delaware. Next, generally, courts give a plaintiff's choice of forum "considerable weight." Several of the EPPs -- SBA, IOUE, and the UFA Funds -- are located in the Southern District of New York. Moreover, there is some connection between the operative facts and the district based the alleged overpayments by these New York-based EPPs. However, the four remaining EPPs are not citizens of the district. They hale from Florida, Pennsylvania, Maryland, and Minnesota. The fact that the Plaintiffs are not citizens of nor have any particular connection to their chosen forum diminishes the deference afforded their choice to litigate. Moreover, all EPPs in the action seek to represent a class of entities from 40 states, the District of Columbia, and Puerto Rico. That further diminishes the deference afforded the Plaintiffs' choice of forum -- even as to the New York-based EPPs. The EPPs' choice of forum is afforded little weight in a purported class action, as here, where numerous potential Plaintiffs are each possibly able to make a showing that a particular forum is best suited. Hence, the EPPs' choice of forum weighs in favor of transfer, but is afforded only little weight. As noted in the Transfer Order, neither side specifies the key witnesses to be called or states what their testimony will cover. Where, in the case, the Defendants seek transfer on account of several factors, their failure to specify key witnesses and their testimony is not fatal. In any event, both potential venues are located in the Northeastern United States along a major transportation corridor, which minimizes any difference in convenience. However, the court has already transferred the DPP Case to the District of Delaware. The testimony of most -- if not all -- AstraZeneca, Handa, Par, and Accord witnesses will pertain equally to Smith's claims in the DPP Case and the EPPs' claims in the action. Those witnesses will be spared much inconvenience by being called to testify in a single trial in a single location. Accordingly, the convenience of the witnesses factor weighs in favor of transfer. The relative convenience of the parties also slightly favors transfer. Several EPPs are located in the Southern District of New York; the others are located in Florida, Pennsylvania, Maryland, and Minnesota. Similarly, AstraZeneca is located in Delaware, Pa" is located in New York, and the other Defendants are located in California and the United Kingdom. Most parties would have to travel whether this case was heard in New York City or Wilmington. However, trying all claims in a common forum is far more efficient than bifurcating them, such that transfer to Delaware would greatly enhance the Defendants' convenience without meaningfully adding to the EPPs' inconvenience. The interest of justice weighs heavily in favor of transfer. The Court has transferred the DPP Case to the District of Delaware based on mandatory forum selection clauses in AstraZeneca's contract with Smith and other wholesalers. There is all but complete overlap in the allegations made by the EPPs here and those made by Smith in the DPP Case. The only way to ensure that all related cases are litigated in a single forum is to transfer the action to the District of Delaware. Finally, the Defendants concede that many of the remaining factors are irrelevant. In sum, the private interest factors point in different directions: the EPPs' choice of forum somewhat favors the district, while the convenience of the witnesses and the parties favors transfer. The public interest weighs decisively in favor of transfer. There is no rigid formula for balancing these factors and no single one of them is determinative. Instead, weighing the balance is essentially an equitable task left to the Court's discretion. The balance tips toward transfer. Judge McMahon finds that transfer of the consolidated class action is warranted under Section 1404(a). Based on the foregoing, Judge McMahon granted the Defendants' motion to transfer the action to the District of Delaware. Her order constitutes the decision and order of the court. It is a "written opinion." The Clerk of Court is respectfully directed to close the open motion at Dkt. No. 107 and transfer the action to the U.S. District Court for the District of Delaware. A full-text copy of the Court's Aug. 12, 2020 Order is available at https://tinyurl.com/y25a2sje from Leagle.com. ATLANTINC HOUSING: Resident Coordinators' Suit Wins Class Status ---------------------------------------------------------------- In the class action lawsuit captioned as ANITA JORGE, individually and on behalf of others similarly situated, v. ATLANTINC HOUSING FOUNDATION, INC., et al., Case No. 3:20-cv-02782-N (N.D. Tex.), the Hon. Judge David C. Godbey entered an order: 1. granting Jorge's motion for notice and conditional certification; 2. conditionally certifying a class consisting of: "all current and former Resident Coordinators and those with similar job duties and pay provisions Atlantic Housing Foundation has employed over the past three years"; 3. authorizing notice to potential plaintiffs; and 4. directing the parties to conduct additional class certification discovery for 90 days after the Filing Date. Jorge claims Atlantic subjected her and other Resident Coordinators to a common wage policy that, among other things, resulted in failure to pay minimum wage and overtime wages. Additionally, Jorge claims that other similarly situated current and former employees of the Defendants will join the opt-in class. Because Jorge seeks only conditional certification at this time, the Court finds her request reasonable in scope and conducive to judicial efficiency. The Court follows the two-step approach to FLSA class certification set forth in Lusardi v. Xerox Corp. 99 F.R.D. 89 (D.N.J. 1983) (conditional certification). Jorge brought an action asserting claims against the Defendants to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act. Jorge is a former "Resident Coordinator" of Atlantic Housing Foundation, a nonprofit organization that provides affordable housing to residents with low or moderate income. Jorge claims that Resident Coordinators' wages are $50 a week plus lodging. Jorge argues that Atlantic has failed to pay Jorge both minimum wage and overtime wages and takes illegal credit against Resident Coordinators' wages in the form of a "rent concession. Atlantic Housing Foundation provides affordable housing, student housing and independent senior living. A copy of the Court's Memorandum, Opinion and Order is available from PacerMonitor.com at https://bit.ly/3iBlL5n at no extra charge.[CC] AURORA CANNIBAS: Pomerantz Law Announces Class Action ----------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against certain officers of Aurora Cannibas, Inc. ("Aurora" or the "Company") (NYSE: ACB). The class action, filed in United States District Court for the District of New Jersey, and docketed under 20-cv-13819, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise, acquired Aurora securities between February 13, 2020, and September 4, 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 Aurora securities during the class period, you have until December 1, 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. 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 a 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." The complaint alleges that thought the Class Period, Defendants made materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations, and prospects, which were known to Defendants or recklessly disregarded by them. 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. 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 Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. Robert S. Willoughby Pomerantz LLP Tel No: 888-476-6529 ext. 7980 E-mail: rswilloughby@pomlaw.com [GN] BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit --------------------------------------------------------------- Baker Hughes Company Baker Hughes Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 23, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend the consolidated class action suit by Tri-State Joint Fund and City of Providence. On August 13, 2019, Tri-State Joint Fund filed in the Delaware Court of Chancery, a shareholder class action lawsuit for and on the behalf of itself and all similarly situated public stockholders of Baker Hughes Incorporated ("BHI") against the General Electric Company (GE), the former members of the Board of Directors of BHI, and certain former BHI Officers alleging breaches of fiduciary duty, aiding and abetting, and other claims in connection with the combination of BHI and the oil and gas business (GE O&G) of GE (the Transactions). On October 28, 2019, City of Providence filed in the Delaware Court of Chancery a shareholder class action lawsuit for and on behalf of itself and all similarly situated public shareholders of BHI against GE, the former members of the Board of Directors of BHI, and certain former BHI Officers alleging substantially the same claims in connection with the Transactions. The relief sought in these complaints include a request for a declaration that Defendants breached their fiduciary duties, an award of damages, pre- and post-judgment interest, and attorneys' fees and costs. The lawsuits have been consolidated, and plaintiffs filed a consolidated class action complaint on December 17, 2019 against certain former BHI officers alleging breaches of fiduciary duty and against GE for aiding and abetting those breaches. The December 2019 complaint omitted the former members of the Board of Directors of BHI, except for Mr. Craighead who also served as President and CEO of BHI. Mr. Craighead and Ms. Ross, who served as Senior Vice President and Chief Financial Officer of BHI, remain named in the December 2019 complaint along with GE. The relief sought in the consolidated complaint includes a declaration that the former BHI officers breached their fiduciary duties and that GE aided and abetted those breaches, an award of damages, pre- and post-judgment interest, and attorneys' fees and costs. Baker Hughes said, "At this time, we are not able to predict the outcome of these claims." No further updates were provided in the Company's SEC report. Baker Hughes Company provides oilfield products and services. The Company engages in surface logging, drilling, pipeline operations, petroleum engineering, and fertilizer solutions, as well as offers gas turbines, valves, actuators, pumps, flow meters, generators, and motors. Baker Hughes serves oil and gas industries worldwide. The company is based in Houston, Texas. BETHPAGE FEDERAL: Restrepo Sues Over Unfair Fees ------------------------------------------------ Annamaria Restrepo, individually and on behalf of others similarly situated v. BETHPAGE FEDERAL CREDIT UNION and DOES 1 through 100, Case No. 2:20-cv-05075-GRB-SIL (E.D.N.Y., Oct. 22, 2020), seeks monetary damages, restitution, and injunctive relief due to, inter alia, the Defendant's policy and practice of maximizing the fees it imposes on members; and the Defendant wrongfully charging the Plaintiff fees related to their checking accounts. In connection with its processing of debit transactions (debit card, ATM, check, ACH, and other similar transactions), Bethpage assesses what it calls " Uncollected Funds Charge External Withdrawal (Paid)" ; "Uncollected Funds Charge External Withdrawal (Returned)"; " Insufficient Funds Charge External Withdrawal (Paid)"; " Insufficient Funds Charge External Withdrawal (Returned)"; " Insufficient Funds Charge CK (Paid)"; " Insufficient Funds Charge CK (Returned)"; " Overdraw Protection Withdraw" OD Protection Tran Fee"; and "POS Courtesy Pay Usage Fees" fees. These fees either were not at all permitted to be charged by any Bethpage contract during the class periods, or were charged in breach of the contracts, or were charged without mention in the contracts, or without predicate compliance with law. Overdraft fees and Insufficient Funds fees ("NSF fees") constitute the primary fee generators for banks and credit unions. The complaint alleges that this conduct has the common denominator of breaching its members' contracts and violating laws so as to maximize the Defendant's fee income, including but not limited to, imposing more than one NSF fee, or an NSF fee followed by overdraft fee, on the same electronic item or check; and, charging fees which were neither disclosed nor authorized by the Account Contract or Fee Schedule, or not in accordance with the contracts' terms. The charging of such fees breaches the Defendant's contracts with its members, who include Plaintiff and the members of the Class, and also violates federal law, says the complaint. The Plaintiff Annamaria Restrepo, is a resident of Old Brookville, Nassau County, New York, and is a former member of Bethpage. Bethpage Federal Credit Union offers a full range of banking products, including checking, savings, credit cards, mortgages and loans.[BN] The Plaintiff is reprensted by: Kevin P. Roddy, Esq. WILENTZ, GOLDMAN & SPITZER, P.A. 90 Woodbridge Center Drive, Suite 900 Woodbridge, NJ 07095 Phone: (732) 636-8000 Facsimile: (732) 726-6686 Email: kroddy@wilentz.com - and - Taras Kick, Esq. Jeffrey Bils, Esq. THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Phone: (310) 395-2988 Facsimile: (310) 395-2088 Email: taras@kicklawfirm.com jeff@kicklawfirm.com BLACK TIE: Court Approves $145K Settlement in Bailey FLSA Suit -------------------------------------------------------------- In the case, JORDAN BAILEY, on behalf of himself and all others similarly situated, Plaintiff, v. BLACK TIE MANAGEMENT COMPANY LLC, et. al., Defendant, Case No. 2:19-cv-1677 (S.D. Ohio), Judge Edmund A. Sargus, Jr. of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted the Joint Motion for Fair Labor Standards Act Settlement Approval. Plaintiff Bailey initiated the action on April 29, 2019 alleging violations of the Fair Labor Standard Act ("FLSA"), the Ohio Minimum Fair Wage Act of 1938, the Ohio Revised Code Sections 4111, et seq., and the Ohio Constitution, Article II, Section 34(a). The Plaintiff alleged that Defendants Black Tie Management, Black Tie Moving Services LLC, Black Tie Moving Columbus LLC, Black Tie Moving Cleveland LLC, Black Tie Moving Cincinnati LLC, James Dustin Black, and Christopher Hess, employed him and others similarly situated to carry out their intrastate moving services among several states. The Defendants employed the Plaintiff and other similarly situated employees as non-exempt drivers who either did not cross state lines or did not cross state lines for periods of more than four months. The Plaintiff alleged that the Defendants misclassified him and others similarly situated as independent contractors. The Plaintiff plead that the Defendants failed to pay him and others similarly situated when they engaged in compensable work and for travel time. Additionally, he contended the Defendant failed to pay them overtime compensation. Finally, he alleged he was never paid his final paycheck and more than 30 days had passed since such wages were due. Thus, the Plaintiff contended the Defendants violated both the FLSA and Ohio law. He brought the action as an FLSA collective action and a Federal Rule of Civil Procedure Rule 23 class action. On Nov. 12, 2019, the Court granted in part and denied in part the Plaintiff's motion to conditionally certify a class. On June 3, 2020, the parties participated in a mediation before mediator Mike Ungar and reached a settlement. On June 18, 2020, the parties filed a joint notice of settlement. On July 15, 2020, the Parties filed a joint motion to approve their settlement agreement. The settlement includes the Defendants, 103 class members, of which 69 are opt-in Plaintiffs, and those who worked in Ohio during the period of April 29, 2016 to May 11, 2020, who have not yet joined the lawsuit but will have the opportunity to join through settlement. The total settlement amount is $145,211.13 which covers alleged unpaid overtime, a service award to the named Plaintiff ($2,500), liquidated damages, attorney's fees ($48,403.71), and costs ($15,884.31). The settlement allocates $78,423.11 across the class members which represents approximately 216.52 minutes of unpaid overtime per week, and thus, an average median of $761.39. The Plaintiff agrees to release his claims against the Defendant. The Parties have submitted their settlement agreement, a list of the class and the amount they will receive if the Court approves the settlement agreement, the proposed notice to the opt-in Plaintiffs, the proposed notice to the non-opt-in Plaintiffs, and the Plaintiffs' attorney Robi J. Baishnab's declaration. Judge Sargus finds that (i) there is no evidence of fraud or collision in this case and instead only evidence of good-faith arms-length negotiations; (ii) not settling the matter at this time would cause the parties expense and time; (iii) both parties made an informed decision to enter into the settlement agreement; (iv) due to the uncertainties inherent in the Plaintiff's claims, the likelihood of success is uncertain; (v) he gives deference to the parties' counsel's belief that the settlement is fair and reasonable particularly in light of the counsel's experience in this type of litigation; (vi) the $2,500 award to the representative Plaintiff for his time and effort in prosecuting the matter is reasonable; and (vii) the attorney's fees for Plaintiffs' counsel in the amount of $48,403.71, one-third of the total settlement amount, is reasonable. All of the relevant factors weigh in favor of approving the settlement. Judge Sargus concludes that the settlement reflects a reasonable compromise over issues and therefore is fair and reasonable. Thus, the Joint Motion for Fair Labor Standard Act Settlement Approval is granted and the case is dismissed. The Clerk is directed to close the case. A full-text copy of the Court's Aug. 12, 2020 Opinion & Order is available at https://tinyurl.com/y4nn93lt from Leagle.com. BLACKBAUD INC: Faces Bedell Class Action Over Data Breach --------------------------------------------------------- MICHELE SILVERMAN BEDELL, Individually and On Behalf of All Others Similarly Situated, v. BLACKBAUD, INC., Case No. 7:20-cv-08271 (S.D.N.Y., Oct. 5, 2020), is a class action complaint arising out of a May 2020 ransomware attack and data breach of BLACKBAUD's systems between February 7 and May 20, 2020, during which hackers acquired a database that manages SINAI'S fundraising information. The BLACKBAUD data and servers breached contained identifying, sensitive, and Private Information and personal data from donors, including Plaintiff’s. As a result of the Data Breach, the Plaintiff and thousands of other Class Member users suffered ascertainable losses in the form of out-of-pocket expenses and the value of their time reasonably incurred to remedy or mitigate the effects of the attack, the complaint says. The Plaintiff seeks to obtain damages, restitution, and injunctive relief for the Class. The Plaintiff is a resident and citizen of Scarsdale, Westchester County, New York. She has been a patient of and donor to SINAI. BLACKBAUD is a third-party vendor that provides The Mount Sinai Health System, Inc., (SINAI) with cloud-based and data solution services related to SINAI's fundraising activities.[BN] The Plaintiff is represented by: Steven Bennett Blau, Esq. Shelly A. Leonard, Esq. BLAU LEONARD LAW GROUP, LLC 23 Green Street, Suite 105 Huntington, NY 11743 Telephone: (631) 458-1010 E-mail: sblau@blauleonardlaw.com sleonard@blauleonardlaw.com BOILERMAKER-BLACKSMITH: Reply Time to Class Cert. Bid Ended Oct. 31 ------------------------------------------------------------------- In the case, THOMAS ALLEN PHILLIPS, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. BOILERMAKER-BLACKSMITH NATIONAL PENSION TRUST, et al., Defendants, Case No. 19-2402-DDC-KGG (D. Kan.), Judge Daniel D. Crabtree of the U.S. District Court for the District of Kansas extended the Defendants' deadline to respond to the Plaintiffs' Motion for Class Certification to Oct. 31, 2020. On Aug. 14, 2020, the Defendants moved the Court to extend the time to respond to the Plaintiffs' Motion for Class Certification until Dec. 15, 2020. Their response currently is due Aug. 21, 2020. To support the extension request, the Defendants explain they seek to depose the four named Plaintiffs. They explain they waited to notice the depositions until they learned the Plaintiffs' official proposed class definition from the class certification motion. The Defendants assert an extension until December is appropriate because it will allow them time to take the depositions, order transcripts, and prepare the response. The extension also would allow time to review the Plaintiffs' responses to their pending discovery requests, which are due on Aug. 24, 2020, before conducting the depositions. Additionally, they seek an extension because the class certification motion involves seven claims with different legal theories they must analyze. Finally, the Defendants describe how scheduled vacations and COVID-19 related delays to school start dates make scheduling the depositions and preparing the response difficult in the short term. The Plaintiffs opposed the extension request. When the Defendants reached out to them about the request, the Plaintiffs noted their opposition to the lengthy extension, but did not oppose the Defendants deposing the class representatives before responding to the class certification motion. And, the Plaintiffs agreed to a 60-day extension until Oct. 20, 2020 as a matter of professional courtesy. Now, they oppose any extension, arguing that a four-month extension is unreasonable and will prejudice them who have their pensions withheld during the difficult economic time. The claims in the lawsuit assert the Defendants' denial of pension benefits is unlawful. Despite the Plaintiffs' arguments that the Defendants have not shown good cause for any extension, Judge Crabtree finds an extension is permissible. The Defendants have provided a variety of reasons they are unable to respond to the Plaintiffs' class certification motion within the 14-day period permitted by the Court's local rules, and he concludes they have made some showing of good faith and some reasonable basis for noncompliance within the time specified. While the Plaintiffs assert the Defendants haven't explained in adequate detail why they can't meet the deadline despite diligent efforts, the Defendants have identified circumstances underlying their request sufficient for the court to determine some extension is appropriate. But the Judge agrees with the Plaintiffs that an extension until Dec. 15, 2020 is unreasonable. If the Court grants an extension, the Plaintiffs ask to limit the extension to 60 days -- extending the response deadline to Oct. 20, 2020. Consistent with Fed. R. Civ. P. 1's directive to administer and employ the rules to secure the just, speedy, and inexpensive determination of every action and proceeding, Judge Crabtree extended the Defendants' response deadline, but only until Oct. 31, 2020. If the Defendants exercise diligence in reviewing the Plaintiffs' forthcoming discovery responses and scheduling and conducting the depositions they assert are needed, he believes they will have adequate time to respond to the merits of the Plaintiffs' class certification motion. The extension is longer than the Plaintiffs argue is tolerable, but significantly shorter than the Defendants' initial request, and the Judge concludes extending the response deadline to the end of October is reasonable. Based on the foregoing, Judge Crabtree granted in part the Defendants' Motion for Extension of Time. A full-text copy of the Court's Aug. 19, 2020 Memorandum & Order is available at https://tinyurl.com/y4alvlvq from Leagle.com. BOSTON SCIENTIFIC: Settlement in Pelvic Mesh Device Case Gets OK ---------------------------------------------------------------- Siskinds LLP and Siskinds, Desmeules s.e.n.c.r.l. announced court approval of a Canada-wide settlement reached in a class action related to certain women's transvaginal mesh devices for treatment of Pelvic Organ Prolapse ("POP") and Stress Urinary Incontinence ("SUI") manufactured and distributed by Boston Scientific Ltd. and Boston Scientific Corporation ("BSC"). The settlement applies to all Canadian women who have been implanted with one or more of these device(s) at any time on or before February 28, 2020 and provides for the payment by the defendants of $21,500,000.00 (Canadian dollars) for eligible claims, administration costs, health care expenses incurred by Provincial Health Insurers and legal fees. "We are proud of this settlement on behalf of Canadian women who have received pelvic mesh implants," said Jill McCartney of Siskinds. "We are pleased to be able to finally resolve the claims of the class members." The class action, which was commenced in 2012 against BSC, alleged various injuries associated with BSC's Transvaginal Mesh Devices. The proposed Settlement is not an admission of the facts or liability on the part of the defendants, nor has there been any finding of liability by the Court against them. The defendants deny the allegations made in the lawsuits. The settlement was approved by the Ontario Superior Court of Justice on June 12, 2020. The Ontario Court also approved the Compensation Protocol, which governs which Class Members are eligible for compensation and in what amount. For information about the eligibility criteria and compensation levels, you should review the long-form Notice, the Compensation Protocol and the Settlement Agreement and related documents at www.canadabscmeshclassaction.com or contact the Claims Administrator or Class Counsel at the addresses below. Class Members Can Claim Compensation Class Members can now submit claims for compensation which will be adjudicated by the Claims Administrator pursuant to the eligibility terms of the Compensation Protocol. Further information relating to the proposed settlement, including copies of the Settlement Agreement, Compensation Protocol, and related documents, and how to make a claim, including a copy of the claim form, is available at www.canadabscmeshclassaction.com or by calling the Claims Administrator at 1.866.795.5067. Pursuant to the Compensation Protocol, there will be an Initial Claim Period for women who were implanted with a BSC Transvaginal Mesh Device before April 1, 2016, which will end on January 18, 2021, and a Supplemental Claim Period, ending on January 18, 2023. Women who sustained injuries (or worsening injuries) after January 18, 2021, women who missed the Initial Claim Deadline and women who were implanted with a BSC Transvaginal Mesh Device on or after April 1, 2016 will be eligible to claim during the Supplemental Claim Period. To qualify in the Initial Claim Period, claims must be submitted (postmarked) by January 18, 2021. Filing a claim is complex and requires medical records which will take time to retrieve. As a result, you may wish to retain a lawyer to assist you. You can retain Class Counsel or a lawyer of your choice. [GN] BRINKER INTERNATIONAL: Mediation in Data Breach Suit on Nov. 18 --------------------------------------------------------------- Brinker International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 23, 2020, that mediation in the putative class action suit entitled, In re: Brinker Data Incident Litigation, Case No. 18-cv-00686-TJC-MCR, is scheduled for November 18, 2020. In fiscal 2018, the company issued a public statement that malware had been discovered at certain Chili's restaurants that may have resulted in unauthorized access or acquisition of customer payment card data. Based on investigation by the company's third-party forensic experts, the company believe most Company-owned Chili's restaurants were impacted by the malware during time frames that vary by restaurant, but the company believes in each case began no earlier than March 21, 2018 and ended no later than April 22, 2018. The Company was named as a defendant in a putative class action lawsuit in the United States District Court for the Middle District of Florida styled In re: Brinker Data Incident Litigation, Case No. 18-cv-00686-TJC-MCR (the "Litigation") relating to the cyber security incident. In the Litigation, plaintiffs assert various claims stemming from the cyber security incident at the Company's Chili's restaurants involving customer payment card information and seek monetary damages in excess of $5.0 million, injunctive and declaratory relief, and attorney's fees and costs. On July 27, 2020, the Court granted the company's second motion to dismiss as to all of Plaintiffs' claims for injunctive relief on Article III standing grounds, dismissing Plaintiffs' declaratory judgment and Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claims outright and dismissing the injunctive relief portions of their UCL claims. The Court further ordered Brinker to file an answer to Plaintiffs' Third Amended Complaint by August 23, 2020, and ordered the parties to mediate the case by November 20, 2020, prior to the class certification hearing in January 2021. Plaintiffs filed their motion for class certification on August 31, 2020, and Brinker's deadline to file its opposition to Plaintiffs’ motion is October 30, 2020. Mediation is scheduled for November 18, 2020. "We believe we have defenses and intend to continue defending the Litigation. As such, as of September 23, 2020, we have concluded that a loss, or range of loss, from this matter is not determinable, therefore, we have not recorded a liability related to the Litigation. We will continue to evaluate this matter based on new information as it becomes available," Brinker said. Brinker International, Inc., together with its subsidiaries, owns, develops, operates, and franchises casual dining restaurants in the United States and internationally. As of June 27, 2018, it owned, operated, or franchised 1,686 restaurants comprising 997 company-owned restaurants and 689 franchised restaurants under the Chili's Grill & Bar and Maggiano's Little Italy brand names. The company was founded in 1975 and is based in Dallas, Texas. BUCKEYE INC: Morgan et al. Sue Over Failure to Properly Pay OT -------------------------------------------------------------- ROLAND MORGAN and BURNICE PICKENS, individually and on behalf of all others similarly situated, Plaintiffs v. BUCKEYE, INC., Defendant, Case No. 7:20-cv-00247 (W.D. Tex., October 22, 2020) bring this collective action complaint against the Defendant for its alleged failure to pay overtime in violation of the Fair Labor Standards Act. The Plaintiffs, who were employed by the Defendant as non-exempt day rate workers, claim that the Defendant employs a day rate compensation system that did not take into account all hours worked in a workweek or overtime hours. Despite routinely working in excess of 60 or more hours in a workweek, the Plaintiffs received a flat rate only for all hours they worked without overtime premiums at one and one-half times their regular rate of pay for all hours they worked in a workweek. Buckeye, Inc. provides drilling fluids and other specialized services to the oil and gas industry. [BN] The Plaintiffs are represented by: William S. Hommel, Jr., Esq. HOMMEL LAW FIRM 5620 Old Bullard Road, Suite 115 Tyler, TX 75703 Tel: (903) 596-7100 Fax: (469) 533-1618 E-mail: bhommel@hommelfirm.com CELLULAR CONNECTION: Pa. Employees Class Certified in Weirbach Case ------------------------------------------------------------------- In the case THERESA WEIRBACH and CHARLES ZIMMER, on behalf of themselves and all others similarly situated, Plaintiffs, v. THE CELLULAR CONNECTION, LLC, Defendant, Case No. 5:19-cv-05310-JDW (E.D. Pa.), Judge Joshua D. Wolson of the U.S. District Court for the Eastern District of Pennsylvania granted the Plaintiff's motion for conditional certification, but limits the scope to Pennsylvania Plaintiffs. The Cellular Connection ("TCC") offers cellphones and related services at retail stores across the United States. Ms. Weirbach worked as a Sales Representative at a TCC retail location in Allentown, Pennsylvania, from May 2017 to January 2018. TCC paid her hourly. Mr. Zimmer worked as Technical Advisor from July 2017 to June 2018 at TCC retail locations in Sayre, Pennsylvania, and Elmira, New York. Sales Representatives and Technical Advisors have similar job duties, including customer service, sales of cellphones and phone service plans, cleaning, and stocking products in the store. Ms. Weirbach and Mr. Zimmer allege that TCC managers required them and similarly situated Sales Reps to participate in off-the-clock meetings and conferences via phone and a group messaging application called GroupMe. They also contend that they had to complete work-related paperwork and make bank deposits during off-hours. They estimate that they worked five to ten unpaid overtime hours per workweek. TCC does not provide a method for recording such time spent working outside the retail stores, so Sales Reps were not compensated for this time. Ms. Weirbach and Mr. Zimmer assert that TCC has violated its obligations under the FLSA. TCC contends that it prohibits employees from working off-the-clock and does not require its employees to use any group messaging application outside of its retail locations or after working hours. It also asserts that employees are unable to perform any meaningful work-related tasks while outside of the store. However, in the event that work is performed outside a store, TCC claims that it adjusts employees' time records to ensure that it pays them for all hours worked. Ms. Weirbach filed a complaint in the action on Nov. 12, 2019. On Feb. 28, 2020, Ms. Weirbach filed an amended complaint that added Mr. Zimmer as a Plaintiff. Since Ms. Weirbach filed the original complaint, approximately 22 other individuals have filed opt-in notices. The opt-in Plaintiffs come from several different states around the country. Ms. Weirbach filed a motion for conditional certification on Feb. 14, 2020. The Court heard argument on that motion on Aug. 4, 2020. Ms. Weirbach and Mr. Zimmer seek conditional certification of an FLSA collective consisting of: All non-exempt hourly retail associates (including Sales Representatives, Technical Advisors and similarly titled employees) employed by TCC at any retail store location throughout the United States on or after Nov. 12, 2016 to the date of judgment of the action, who have not been paid for all overtime hours worked. Judge Wolson concludes that the Plaintiffs have made the modest factual showing necessary for conditional certification of a collective. The claims in the amended complaint are similar to the claims that members of the collective would assert: they had to perform off-the-clock work, had no way of recording it, and did not get paid for it. All members of the collective will seek the same time type of relief. TCC also argues that the Court should not certify claims concerning off-the-clock work. Judge Wolson opines that the fact that determining alleged liability and damages in an off-the-clock case may prove fact-intensive or individualized does not weigh against conditional certification at this stage of the proceedings. The decisions on which TCC bases its argument are not on point because they arise under Rule 23's class certification standards. TCC argues that the Court cannot conditionally certify individuals over whose claims it does not have personal jurisdiction. As an initial matter, Judge Wolson concludes that he must tackle the question now, not defer it to the second stage of certification. Courts should only authorize notice to individuals who might be in the collective. If he authorized notice to individuals who cannot be in the collective, it would only sow confusion. The FLSA makes opt-ins parties to the lawsuit. The statute states that no employee will be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. Section 216(b) is a rule of joinder giving legal status to individual opt-in plaintiffs. The existence of a collective action depends on the active participation of opt-in party plaintiffs. In addition to a jurisdictional limit, TCC asks the Court to limit the scope of any collective to non-managerial employees. Judge Wolson will not do so at this phase of the litigation. It is not clear to the Court whether managers are exempt or, if not, whether they have to perform off-the-clock work. However, as the Plaintiffs point out, many managers likely started as Sales Reps and might therefore be members of the collective. Thus, excluding managers at this point could create more confusion than it will resolve. The Court, therefore, declines to do so. TCC can argue that managers are not similarly situated at the next phase of the case. Once a court conditionally certifies a collective action, it possesses discretion to provide court-facilitated notice to proposed plaintiffs. Taking the Parties' requests into account, Judge Wolson imposes certain conditions on the form and provision of the notice. Those conditions are set forth in the Order accompanying his Memorandum. Accordingly, Judge Wolson conditionally certified the collective action, but only for TCC employees who live or work in Pennsylvania. The Court does not have personal jurisdiction for claims of other Sales Reps. An appropriate Order follows. A full-text copy of the Court's Aug. 12, 2020 Memorandum is available at https://tinyurl.com/yytn8m6n from Leagle.com. CENTENE CORP: Ambetter Policies Related Suit Dismissed ------------------------------------------------------ Centene Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the case related to Ambetter policies has been dismissed with prejudice. On January 11, 2018, a putative class action lawsuit was filed by Cynthia Harvey and Steven A. Milman against the Company and certain subsidiaries in the U.S. District Court for the Eastern District of Washington. The complaint alleges that the Company failed to meet federal and state requirements for provider networks and directories with regard to its Ambetter policies, denied coverage and/or refused to pay for covered benefits, and failed to address grievances adequately, causing some members to incur unexpected costs. In March 2018, the Company filed separate motions to dismiss each defendant. In July 2018, the plaintiff, Cynthia Harvey, voluntarily filed a First Amended Complaint that removed Steven A. Milman as a plaintiff, dropped Centene Corporation and Superior Health Plan as defendants, abandoned certain claims, narrowed the putative class to Washington State only, and added Centene Management Company as a defendant. In August 2018, the Company moved to dismiss the First Amended Complaint. In response, the plaintiff voluntarily filed a Second Amended Complaint. In September 2018, the Company filed a motion to dismiss the Second Amended Complaint. On November 21, 2018, the Court granted in part and denied in part the Company's motion to dismiss. The plaintiff filed a Third Amended Complaint, on November 28, 2018, against Centene Management Company and Coordinated Care Corporation (Defendants), both subsidiaries of the Company. Defendants filed an answer on December 12, 2018. The plaintiff filed a motion for class certification on January 8, 2020. The Company opposed and the Court denied the class certification. The plaintiff appealed the class certification denial to the 9th Circuit, but the 9th Circuit dismissed the plaintiff's appeal on procedural grounds. The case proceeded as an individual lawsuit between a single member and Coordinated Care Corporation until September 15, 2020, when the case was dismissed with prejudice. Centene Corporation, incorporated on September 26, 2001, is a healthcare company. The Company provides a portfolio of services to government sponsored healthcare programs, focusing on under-insured and uninsured individuals. The Company operates through two segments: Managed Care and Specialty Services. It provides member-focused services through locally based staff by assisting in accessing care, coordinating referrals to related health and social services and addressing member concerns and questions. It also provides education and outreach programs to inform and assist members in accessing appropriate healthcare services. The company is based in St. Louis, Missouri. CHIPOTLE MEXICAN: Bid for Rehearing En Banc in Ong Suit Denied -------------------------------------------------------------- Chipotle Mexican Grill, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the court in the putative class action suit initiated by Susie Ong has denied the plaintiffs' motion for an en banc rehearing. On January 8, 2016, Susie Ong filed a complaint in the U.S. District Court for the Southern District of New York on behalf of a purported class of purchasers of shares of the company's common stock between February 4, 2015 and January 5, 2016. The complaint purports to state claims against the company, each of the co-Chief Executive Officers serving during the claimed class period and the Chief Financial Officer under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and related rules, based on the company's alleged failure during the claimed class period to disclose material information about our quality controls and safeguards in relation to consumer and employee health. The complaint asserts that those failures and related public statements were false and misleading and that, as a result, the market price of our stock was artificially inflated during the claimed class period. The complaint seeks damages on behalf of the purported class in an unspecified amount, interest, and an award of reasonable attorneys' fees, expert fees, and other costs. On March 22, 2018, the court granted the company's motion to dismiss, with prejudice. On April 20, 2018, the plaintiffs filed a motion for relief from the judgment and seeking leave to file a third amended complaint, and on November 20, 2018, the court denied the motion. On December 20, 2018, the plaintiff initiated an appeal to the U.S. Court of Appeals for the Second Circuit, and on October 1, 2020, the court denied the plaintiffs' motion for an en banc rehearing. Chipotle Mexican Grill, Inc., together with its subsidiaries, operates Chipotle Mexican Grill restaurants. As of December 31, 2018, it operated 2,491 restaurants, including 2,452 Chipotle restaurants in the United States, 37 Chipotle restaurants internationally, and two non-Chipotle restaurants. The company was founded in 1993 and is headquartered in Newport Beach, California. CHIPOTLE MEXICAN: Judgment in Ong Securities Fraud Suit Affirmed ---------------------------------------------------------------- In the case, METZLER INVESTMENT GMBH, CONSTRUCTION LABORERS PENSION TRUST OF GREATER ST. LOUIS, Plaintiffs-Appellants, SUSIE ONG, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. CHIPOTLE MEXICAN GRILL, INC., MONTGOMERY F. MORAN, JOHN R. HARTUNG, M. STEVEN ELLS, Defendants-Appellees, Case No. 18-3807-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the district court's order denying the Plaintiffs' motion for relief from judgment for the Defendants-Appellees, (ii) for leave to file a third amended complaint. The Plaintiffs-Appellants purchased shares of Chipotle common stock between Feb. 5, 2015 and Feb. 2, 2016. Chipotle is a fast-food restaurant chain. It was founded by Defendant Ells in 1993 and by Dec. 31, 2015 had grown to operate over 1,900 restaurants. During the class period, before it was shortened to Oct. 21, 2015 through Feb. 2, 2016, Defendants Ells and Moran served as the co-CEOs of Chipotle while Defendant Hartung served as the CFO. Defendants Ells and Moran served also on Chipotle's board of directors -- Moran as a director and Ells as the chairman. On Dec. 12, 2016, Moran resigned both of his positions at the board's request. Ells then served as the sole CEO until he resigned on Nov. 29, 2017. He continued to serve as chairman of the board. Chipotle sells ready-to-eat food products that contain produce including tomatoes, lettuce, red onions, jalapeños, and cilantro. Up until late 2014, the company prepared its produce in centralized commissaries. During 2014 and 2015, FDA regulations required such centralized commissaries to provide two different types of testing to ensure food safety: raw material testing and end-product testing. In late 2014, Chipotle transitioned from preparing the produce for its ready-to-eat food products in centralized commissaries to preparing the produce in its individual restaurants. As a result, the "risks to Chipotle's operations," specifically that its food products would cause outbreaks of food-borne illness, "dramatically increased" after the transition. The Plaintiffs allege that the increased risk of food-borne illness outbreaks following the transition was realized. Prior to the transition, from 2008 to December 2014, there were three outbreaks of food-borne illness from Chipotle food products. After the transition, from December 2014 through December 2015, there were fourteen outbreaks linked to Chipotle customers or locations: five Salmonella outbreaks, six E. coli outbreaks, and three Norovirus outbreaks. These outbreaks occurred in various parts of the country, affecting at least 23 states and sickening a total of approximately 611 people. The Center for Disease Control ("CDC"), the Food and Drug Administration ("FDA"), and state or local public health officials investigated at least seven of these outbreaks. Public health officials were able to identify sources they suspected of causing several outbreaks. They included contaminated produce items such as cilantro, red onions, jalapeños, tomatoes, and lettuce which caused six outbreaks, and sick employees reporting to work which caused three outbreaks. They were unable to identify a source or suspected source for five of the outbreaks. Chipotle responded by announcing in September 2015 that it was implementing a comprehensive whole chain traceability program that would allow it to trace ingredients across the supply chain (end to end). The outbreaks had an adverse impact on Chipotle's financial and operating results in the fourth quarter of 2015. In its Form 10-K for the fiscal year ending Dec. 31, 2015, filed on Feb. 5, 2016, Chipotle stated that significant publicity regarding a number of food-borne illness incidents associated with Chipotle restaurants had a severe adverse impact on their sales and profitability. Comparable restaurant sales declined 14.6% in the fourth quarter of 2015 and approximately 36 percent in January 2016. In its Form 10-K filed for the fiscal year ending Dec. 31, 2016, the company reported $22.9 million in earnings compared to $475.6 million in earnings for the fiscal year ending Dec. 31, 2015 -- a 95.2% decline. On Jan. 8, 2016, Plaintiff Ong, who is not a party to the appeal, filed the putative securities class action against Chipotle, Ells, Moran, and Hartung in the U.S. District Court for the Southern District of New York. The complaint asserted causes of action under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 thereunder, on behalf of purchasers of Chipotle securities between February 4, 2015, and Jan. 5, 2016. The complaint alleged that the Defendants made materially false and misleading statements regarding the company's quality controls that artificially inflated Chipotle's stock price. The putative class allegedly suffered damages when Chipotle's stock price dropped after a series of food-borne illness outbreaks from August to December 2015 were connected to Chipotle customers and restaurants. On March 8, 2016, by-then putative class members Metzler and the Trust made a motion asking the court to appoint them as the Lead Plaintiffs and to approve their counsel as the lead counsel. On April 18, 2016, the court granted the motion. Two months later, on June 17, 2016, the Plaintiffs filed an amended complaint that included more detailed and specific allegations than had the original complaint. Among other things, the amended complaint alleged that the defendants had violated federal securities laws based on Chipotle's failure to disclose its decision to switch from using central commissary kitchens to process and prepare the produce used in its restaurants to processing produce in each of the Company's over 1,900 restaurants, and the increased risk of food-borne illness outbreaks that resulted from that decision. That increased risk allegedly was realized when there were at least seven food-borne illness outbreaks from July to December 2015. On Aug. 18, 2016, the Defendants moved to dismiss the amended complaint. On March 8, 2017, the court granted the motion. It dismissed the amended complaint without prejudice and granted the Plaintiffs' request for leave to amend their complaint. The Plaintiffs filed a second amended complaint ("SAC") on April 7, 2017. It included new allegations of six additional outbreaks, including several in late 2014 and early 2015, presumably to rebut the district court's conclusion that the transition appeared not to heighten Chipotle's risk at all for the first half of 2015. The Defendants again moved to dismiss. The Plaintiffs, in their opposition papers, included a request for leave to replead if the court were to grant any part of the Defendants' motion. On March 22, 2018, the district court granted the Defendants' motion to dismiss with prejudice. In the same opinion and order, the district court denied the Plaintiffs' request for leave to file a third amended complaint. The following day, the Clerk of Court entered judgment for the Defendants and closed the case. On April 20, 2018, the Plaintiffs moved in the district court for relief from the judgment, pursuant to Federal Rules of Civil Procedure 59(e) and 60(b), and for leave to file a proposed third amended complaint ("PTAC"), pursuant to Rule 15(a)(2). They sought relief from the Judgment. They argued that the court should grant them leave to file the PTAC because the new allegations it contained cure the deficiencies perceived by the court in the SAC and therefore amendment would not be futile. On Nov. 20, 2018, the court denied the motion. It concluded that the Plaintiffs were not entitled to relief because the purported newly discovered evidence -- but for a single allegation -- was not in fact new for purposes of Rules 59(e) and 60(b). The court noted, however, that even if it were to consider the purported new information in the PTAC, the result would not change because the proposed amendment would be futile. The appeal followed. On appeal, the Plaintiffs-Appellants contend only, in sum, that in denying their post-judgment motion for leave to amend, the district court applied an incorrect legal standard, and that it erroneously determined that the filing of the PTAC was futile. As to the former, they argue that the court was obliged to consider only the standard that governs pre-trial motions for leave to amend a pleading pursuant to Federal Rule of Civil Procedure 15(a)(2). The court should freely give leave when justice so requires. The Second Circuit holds that the Plaintiffs had three opportunities to state a claim and had requested a fourth in their opposition to the Defendants' motion to dismiss before the district court granted the Defendants' motion with prejudice and denied the Plaintiffs' request. Even with the benefit of that opinion, the Plaintiffs failed to cure the deficiencies in their Second Amended Complaint. Moreover, they cite no authority that supports their assertion that the district court was obliged to consider their proposed amendment only under Rule 15(a)(2), effectively replacing the standards under Rules 59(e) and 60(b) with those in Rule 15(a)(2) to decide their post-judgment motion. The Second Circuit concludes that its well-established rule that a plaintiff seeking to file an amended complaint post-judgment must first have the judgment vacated or set aside pursuant to Rules 59(e) or 60(b), stands. In the post-judgment context, the Circuit has indeed given "due regard" to "the liberal spirit of Rule 15" by ensuring plaintiffs at least one opportunity to replead. But it has not given sole regard to Rule 15. Doing so would allow the liberal amendment policy of Rule 15(a) to swallow the philosophy favoring finality of judgments. The Plaintiffs-Appellants' argument that their motion is governed solely by the legal standard applicable to Rule 15(a)(2) motions therefore is without merit, rules the Second Circuit. Alternatively, the Plaintiffs-Appellants argue that the district court erred by considering whether they had presented any newly discovered evidence that would entitle them to relief under Rules 59(e) and 60(b). The Circuit is not persuaded. It recently reiterated that Rule 60(b) allows relief from a judgment or order when evidence has been newly discovered or for any other reason justifying relief from the operation of the judgment. Newly discovered evidence must be of facts that existed at the time of trial or other dispositive proceeding. A motion to dismiss is one such dispositive proceeding. The newly discovered evidence provisions of Rules 59(e) and 60(b) thus apply to the Plaintiffs-Appellants' post-judgment motion for leave to amend because it was made following grant of a motion to dismiss which, like a trial, is a dispositive proceeding." Their challenge to the legal standard applied by the district court thus fails, adds the Second Circuit. The Second Circuit has considered their remaining arguments on appeal and concludes that they are without merit. Ultimately, IT concludes that the Plaintiffs-Appellants are not entitled to relief from the judgment and a fourth opportunity to state a claim. Accordingly, the judgment of the district court is affirmed. A full-text copy of the Second Circuit's Aug. 12, 2020 Order is available at https://tinyurl.com/y4lrynx4 from Leagle.com. DOUGLAS WILENS -- dwilens@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Boca Raton, FL, for Plaintiffs-Appellants. Samuel H. Rudman, David A. Rosenfeld -- drosenfeld@rgrdlaw.com -- and Michael G. Capeci -- mcapeci@rgrdlaw.com -- on the brief, Robbins Geller Rudman & Dowd LLP, Melville, NY, for Plaintiffs-Appellants. James M. Hughes -- jhughes@motleyrice.com -- and Christopher F. Moriarty -- cmoriarty@motleyrice.com -- on the brief, Motley Rice LLC, Mount Pleasant, SC, for Plaintiffs-Appellants. William H. Narwold -- bnarwold@motleyrice.com -- and Mathew P. Jasinski, on the brief, Motley Rice LLC, Hartford, CT, for Plaintiffs-Appellants. Louis M. Bogard, on the brief, Motley Rice LLC, Washington, DC, for Plaintiffs-Appellants. ANDREW B. CLUBOK -- andrew.clubok@lw.com -- (Susan E. Engel -- susan.engel@lw.com -- Matthew J. Peters -- matthew.peters@lw.com -- and Jessica L. Saba, on the brief), Latham & Watkins LLP, Washington, DC, for Defendants-Appellees. Kendra N. Beckwith -- kbeckwith@messner.com -- on the brief, Messner Reeves LLP, Denver, CO, for Defendants-Appellees. CHURCHILL DOWNS: Fairness Hearing in Soileau Continued to Nov. 17 ----------------------------------------------------------------- Churchill Downs Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the fairness hearing in John L. Soileau, et al. v. Churchill Downs Louisiana Horseracing, LLC, Churchill Downs Louisiana Video Poker Company, LLC (Suit No. 14-3873) relating to the terms of a settlement agreement began on October 7, 2020, and has been continued until November 17, 2020. On April 21, 2014, John L. Soileau and other individuals filed a Petition for Declaratory Judgment, Permanent Injunction, and Damages-Class Action styled John L. Soileau, et. al. versus Churchill Downs Louisiana Horseracing, LLC, Churchill Downs Louisiana Video Poker Company, LLC (Suit No. 14-3873) in the Parish of Orleans Civil District Court, State of Louisiana. The petition defined the "alleged plaintiff class" as quarter horse owners, trainers and jockeys that have won purses at the "Fair Grounds Race Course & Slots" facility in New Orleans, Louisiana since the first effective date of La. R.S. 27:438 and specifically since 2008. The petition alleged that Churchill Downs Louisiana Horseracing, LLC and Churchill Downs Louisiana Video Poker Company, LLC ("Fair Grounds Defendants") have collected certain monies through video draw poker devices that constitute monies earned for purse supplements and all of those supplemental purse monies have been paid to thoroughbred horsemen during Fair Grounds' live thoroughbred horse meets. La. R.S. 27:438 requires a portion of those supplemental purse monies to be paid to quarter-horse horsemen during Fair Grounds' live quarter-horse meets. The petition requested that the District Court declare that Fair Grounds Defendants violated La. R.S. 27:438, issue a permanent and mandatory injunction ordering Fair Grounds Defendants to pay all future supplements due to the plaintiff class pursuant to La. R.S. 27:438, and to pay the plaintiff class such sums as it finds to reasonably represent the value of the sums due to the plaintiff class. On August 14, 2014, the plaintiffs filed an amendment to their petition naming the Horsemen’s Benevolent and Protective Association 1993, Inc. ("HBPA") as an additional defendant and alleging that HBPA is also liable to plaintiffs for the disputed purse funds. On October 9, 2014, HBPA and Fair Grounds Defendants filed exceptions to the suit, including an exception of primary jurisdiction seeking referral to the Louisiana Racing Commission. By Judgment dated November 21, 2014, the District Court granted the exception of primary jurisdiction and referred the matter to the Louisiana Racing Commission. On January 26, 2015, the Louisiana Fourth Circuit Court of Appeals denied the plaintiffs' request for supervisory review of the Judgment. On August 24, 2015, the Louisiana Racing Commission ruled that the plaintiffs did not have standing or a right of action to pursue the case. The plaintiffs appealed this decision to the District Court, which affirmed the Louisiana Racing Commission's ruling. The plaintiffs filed an appeal of the District Court's decision with the Louisiana Fourth Circuit Court of Appeals, which reversed the Louisiana Racing Commission's ruling and remanded the matter to the Louisiana Racing Commission for further proceedings on June 13, 2018. The Louisiana Fourth Circuit Court of Appeals denied the Fair Grounds Defendants' Motion for Rehearing on July 12, 2018 and the Louisiana Supreme Court denied the Fair Grounds Defendants' Writ of Certiorari seeking review of that decision on November 14, 2018. The parties had previously attempted to mediate the matter in October 2018, but were unsuccessful. Thereafter, the parties resumed informal settlement discussions, and, as a result, the Company established an accrual for an immaterial amount in the third quarter of 2019. The parties submitted a settlement agreement to the District Court on February 14, 2020, following the Louisiana Racing Commission's approval to transfer the matter to the District Court for approval and administration of the settlement agreement on February 12, 2020. At a hearing on February 18, 2020, the District Court granted preliminary approval of the settlement agreement and set certain deadlines relating to actions to be taken by class members. The settlement agreement requires, among other items, the Fair Grounds Defendants to (i) pay a certain out-of-pocket amount that is within the amount for which we established an accrual in the third quarter of 2019, and (ii) support legislation that allocates a specified amount of video poker purse funds to quarter horse purses for races at Fair Grounds with maximum annual payout caps that are not deemed material. On June 13, 2020, the legislation addressed in the settlement agreement was passed by the legislature and signed into law by the Governor of Louisiana. The settlement includes a release of claims against the Fair Grounds Defendants in connection with the proceeding, although individual plaintiffs may opt-out. If there are opt-out claims in excess of $50,000, the settlement will be voided, unless the parties agree to stipulate otherwise. The settlement agreement is subject to certain conditions, including court approval. After the parties entered into the settlement, legal counsel for six objecting, named plaintiffs filed an amended petition with the District Court. After a hearing on July 20, 2020, the District Court dismissed the amended petition. The objecting plaintiffs filed a notice of their intention to seek a writ with the Louisiana Court of Appeals for the Fourth Circuit related to the dismissal of the amended petition, which was denied. The fairness hearing with the District Court relating to the terms of the settlement agreement began on October 7, 2020, and has been continued until November 17, 2020. Churchill Downs Incorporated operates as a racing, gaming, and online entertainment company in the United States. It operates through Racing, Casinos, Online Wagering, and Other Investments and Corporate segments. Churchill Downs Incorporated was founded in 1928 and is headquartered in Louisville, Kentucky. CHURCHILL DOWNS: Feb. 2021 Final Hearing on Kater Deal ------------------------------------------------------ Churchill Downs Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the final settlement approval hearing in Cheryl Kater v. Churchill Downs Incorporated, is currently scheduled for February 11, 2021. On April 17, 2015, the Kater litigation (Cheryl Kater v. Churchill Downs Incorporated) was filed in the Washington District Court alleging, among other claims, that the Company's "Big Fish Casino" operated by the Company's then-wholly owned mobile gaming subsidiary Big Fish Games, violated Washington law, including the Washington Consumer Protection Act, by facilitating unlawful gambling through its virtual casino games (namely the slots, blackjack, poker, and roulette games offered through Big Fish Casino), and seeking, among other things, return of monies lost, reasonable attorney's fees, treble damages, and injunctive relief. On January 9, 2018, the Company sold Big Fish Games to Aristocrat, an indirect, wholly owned subsidiary of Aristocrat Leisure Limited, an Australian corporation, pursuant to the Stock Purchase Agreement. Pursuant to the terms of the Stock Purchase Agreement, the Company agreed to indemnify Aristocrat for the losses and expenses associated with the Kater litigation for Big Fish Games, which is referred to in the Stock Purchase Agreement as the "Primary Specified Litigation." After the Washington District Court dismissed the case with prejudice on November 19, 2015, the United States Court of Appeals for the Ninth Circuit reversed and remanded the Washington District Court's dismissal of the complaint on March 28, 2018. The complaint was amended on March 20, 2019, to add Big Fish Games as a party and to assert claims on behalf of an additional plaintiff, Suzie Kelly. Prior disclosures in our filings with the Securities and Exchange Commission have identified the extensive procedural history associated with this case. As previously disclosed, on May 22, 2020, the parties entered into an agreement in principle to settle the Kater litigation and the Thimmegowda litigation. The agreement in principle remains contingent on final court approval by the Washington District Court. Under the terms of the settlement, which will take effect only after final court approval of the proposed class settlement: (i) a total of $155.0 million will be paid into a settlement fund. CDI will pay $124.0 million of the settlement from its available cash; Aristocrat will pay $31.0 million of the settlement; (ii) all members of the nationwide settlement class who do not exclude themselves will release all claims relating to the subject matter of the lawsuits; and (iii) Aristocrat has agreed to specifically release CDI of any and all indemnification obligations under the Stock Purchase Agreement arising from or related to the Kater and Thimmegowda litigations, including any claims of diminution of value of Big Fish Games and any claims by any person who opts out of the proposed class settlement. On August 31, 2020, the Washington District Court granted the parties' motion for preliminary approval, and the final settlement approval hearing is currently scheduled for February 11, 2021. Churchill Downs Incorporated operates as a racing, gaming, and online entertainment company in the United States. It operates through Racing, Casinos, Online Wagering, and Other Investments and Corporate segments. Churchill Downs Incorporated was founded in 1928 and is headquartered in Louisville, Kentucky. CHURCHILL DOWNS: Feb. 2021 Final Hearing on Thimmegowda Accord -------------------------------------------------------------- Churchill Downs Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the final settlement approval hearing in Manasa Thimmegowda v. Big Fish Games, Purchaser, Aristocrat Leisure Limited, is currently scheduled for February 11, 2021. On February 11, 2019, the Thimmegowda litigation was filed in the Washington District Court alleging, among other claims, that "Big Fish Casino," which is operated by Big Fish Games, violated Washington law, including the Washington Consumer Protection Act, and seeking, among other things, return of monies lost, reasonable attorney's fees, injunctive relief, and treble and punitive damages. Prior disclosures in the company's filings with the Securities and Exchange Commission have identified the extensive procedural history associated with this case. On May 22, 2020, the parties entered into an agreement in principle to settle the Kater and Thimmegowda litigations. The agreement in principle with respect to the Thimmegowda litigation is described above, under the "Kater Class Action Suit." On August 31, 2020, the Washington District Court granted the parties' motion for preliminary approval, and the final settlement approval hearing is currently scheduled for February 11, 2021. Churchill Downs Incorporated operates as a racing, gaming, and online entertainment company in the United States. It operates through Racing, Casinos, Online Wagering, and Other Investments and Corporate segments. Churchill Downs Incorporated was founded in 1928 and is headquartered in Louisville, Kentucky. CJS SOLUTIONS: May Amend Reply in Borup Case to Clarify Defense --------------------------------------------------------------- In the case, Timothy C. Borup, Individually and on behalf of all others similarly situated, Plaintiff, v. The CJS Solutions Group, LLC, d/b/a The HCI Group, Defendant, Case No. 18-cv-1647 (PAM/DTS) (D. Minn.), Magistrate Judge David T. Schultz of the U.S. District Court for the District of Minnesota, granted the Defendant's motion to amend its answer to clarify its personal jurisdiction defense. In the wage and hour suit, Borup -- individually, as a collective action, and on behalf of a purported class -- has sued HCI alleging that HCI failed to properly pay overtime compensation. HCI is a Florida-based technology company that provides nationwide support and training services to the healthcare industry in using new electronic recordkeeping systems. The Mayo Clinic in Rochester, Minnesota is one of HCI's clients, for which HCI hired1 Borup as a consultant and where it assigned him to work. Borup's suit identifies two distinct groups of aggrieved litigants. First, he brings his federal FLSA claim (Count I) as a collective action representing: All individuals who were classified as independent contractors while performing consulting work for The CJS Solutions Group, LLC, doing business as The HCI Group, in the United States, for the maximum time period as may be allowed by law. Borup, however, defines the second group more narrowly by bringing the Minnesota FLSA claim (Count II) as a Rule 23 class action on behalf of: All individuals who were classified as independent contractors while performing consulting work for The CJS Solutions Group, LLC, doing business as The HCI Group, in the State of Minnesota, for the maximum time period as may be allowed by law. Thus, while his state-based FLSA class action encompasses only litigants who worked in Minnesota, his federal FLSA collective action is nationwide. HCI answered the complaint, defending that as applied to the facts and circumstances of the case, Borup's suit would constitute a denial of its Due Process rights, both substantive and procedural, in violation of the Fourteenth Amendment to the United States Constitution. And though personal jurisdiction is inextricably linked to due process protections, HCI never explicitly mentioned personal jurisdiction in its pleadings. HCI moves to amend its answer to more clearly plead an affirmative defense. In its original answer HCI asserted that certification of a collective action or class action would constitute a denial of Defendant's Due Process rights, both substantive and procedural, but did not specifically aver that this Court lacked personal jurisdiction over it with respect to certain defendants. HCI now claims that it intended to plead the affirmative defense that the Court lacks personal jurisdiction, and now seeks to amend its answer to plead that the Court lacks personal jurisdiction over it as to the claims of any individual who neither worked for Defendant in Minnesota nor resided in Minnesota at the time they worked for the Defendant, and the exercise of such personal jurisdiction over the Defendant as to such claims would deprive Defendant of its right to due process. Magistrate Judge Schultz concludes that HCI has adequately pleaded -- however inartfully -- a defense of personal jurisdiction in its original answer. Having determined that HCI has not waived its personal jurisdiction defense, he must now determine whether to grant HCI's motion to amend its answer to more clearly plead it. Borup argues that the Court should deny HCI's motion to amend because allowing the amendment will prejudice the putative collective. But Borup's reasoning is not that the Court's order granting leave would create prejudice, but that applying the Bristol-Myers Squibb Co. v. Superior Court standard, which underlies HCI's personal jurisdiction defense for nationwide class actions, to collective actions would be prejudicial. But whether the personal jurisdiction limitations of Bristol-Myers Squibb extend to nationwide collective actions is not before the Court and is a question for a later day. Accordingly, HCI may amend its answer to clearly plead its personal jurisdiction defense, rules Magistrate Judge Schultz. A full-text copy of the Court's Aug. 26, 2020 Amended Order is available at https://tinyurl.com/yyxde9pa from Leagle.com. CKF ENTERPRISES: $595K Settlement in Ware Suit Gets Final Approval ------------------------------------------------------------------ In the case, JULIA WARE, et al., Plaintiffs, v. CKF ENTERPRISES, INC., et al., Defendants, Civil Action No. 5: 19-183-DCR (E.D. Ky.), Judge Danny C. Reeves of the U.S. District Court for the Eastern District of Kentucky, Southern Division, at Lexington, granted the Plaintiffs' motion for final approval of the amended settlement agreement. Plaintiffs Ware and Ralph Edwards are former consultants for CKF. They claim that CKF classified them as independent contractors rather than employees, thus failing to pay them adequate overtime and violating the Fair Labor Standards Act ("FLSA"), and the Kentucky Wages and Hours Act ("KWHA"). They filed one claim individually and on behalf of a collective for violation of the FLSA. Ware also filed two claims individually and on behalf of a class for violation of the KWHA pursuant to Federal Rule of Civil Procedure 23 ("Kentucky class"). After an attempt at mediation, the parties eventually agreed to a gross settlement amount of $595,000, which includes $198,333.33 in attorney's fees, $9,148.88 in costs, and a $5,000 service award to each named Plaintiff. The net settlement amount would be approximately $377,517.79. The Plaintiffs have identified 652 consultants as beneficiaries of the settlement agreement. Out of that total, 530 are members of the FLSA collective and 381 are members of the Kentucky class. Of those 381 Kentucky class members, 122 are only members of the Kentucky class, and 259 are members of both the Kentucky class and the FLSA collective. Each participant will receive a $100 per capita in exchange for their applicable release of claims. The releases of claims differ among the named Plaintiffs, FLSA collective members, Kentucky class members, and those in both the class and collective. Participants will also receive pro rata allocations based on alleged uncompensated overtime hours. The average share for participants is calculated at $883.12. The agreement will be effective one business day after the Court's final approval reaches finality and is no longer appealable. The Plaintiffs' counsel will mail checks within 15 calendar days, and they will remain valid and negotiable for 180 calendar days. After those 180 days, any remaining funds will go to Hope Center, Inc., their chosen cy pres recipient. The first unopposed motion for preliminary approval was denied without prejudice. The Plaintiffs then filed a second unopposed motion for preliminary approval of the proposed settlement agreement. The Court conditionally certified the FLSA collective; preliminarily certified the Rule 23 class; appointed a class representative and counsel; and preliminarily approved attorney's fees, costs, service awards, and the cy pres beneficiary. But due to concerns with the notice forms, the Court declined to approve the proposed agreement or the notices. The Plaintiffs then filed a third motion for preliminary approval of the proposed settlement and approval of the notices. After review, the Court preliminarily approved the proposed settlement and approved the notices. After the agreement was preliminarily approved, the Plaintiffs' counsel self-administered the settlement. They sent out notice, opt-in consent forms, and claim forms to the 652 consultants. They further issued reminder notices, calls, and emails. Ultimately, only four class members requested exclusion, and none objected. Three hundred and thirty-two consultants submitted opt-in consent forms or claim forms, with a total of 402 participants. The Plaintiffs have now filed an unopposed motion for final approval. They seek approval of their settlement agreement; certification of their FLSA collective and Kentucky class; and approval of attorney's fees, costs, and service awards. A final fairness hearing was held on Aug. 26, 2020. Judge Reeves finds that final certification of the FLSA collective action for purposes of settlement is appropriate. The notice provided was appropriate. Further, the settlement amount, attorney's fees, costs, and service awards are fair, reasonable, and adequate. And as outlined more fully above in in prior opinions filed in the case, the settlement is fair, reasonable and appropriate. Accordingly, Judge Reeves granted the Plaintiffs' motion for final approval of the amended settlement agreement and approved the settlement agreement. The provisionally certified Kentucky class is now finally certified pursuant to Federal Rules 23(a) and (b)(3) of the Federal rules of Civil Procedure for purposes of settlement only. The conditionally certified FLSA collective is now finally certified pursuant to 29 U.S.C. Section 216(b) for purposes of settlement only. The attorney's fees, costs, and service awards provided for in the proposed agreement, as well as the cy pres beneficiary, are approved. A full-text copy of the Court's Aug. 26, 2020 Memorandum Opinion & Order is available at https://tinyurl.com/yywywlpo from Leagle.com. COBB & FENDLEY: Bid to Certify Class in Leal FLSA Suit Now Moot --------------------------------------------------------------- In the class action lawsuit captioned as Andres Leal v. Cobb, Fendley & Associates, Inc., Case No. 5:20-cv-00372 (W.D. Tex.), the Hon. Judge Orlando L. Garcia entered an order mooting the motion to certify class of: "all field employees employed as a Senior Field Technician, Field Technician, Party/Crew Chief, or Instrument Operator/Rodman in CobbFendley's Survey Department who were paid an hourly rate and received an annual bonus in a period covering at least one week in which the employee worked more than 40 hours in the last three years." The Plaintiff filed this lawsuit as a collective action on March 24, 2020. The suit alleges violation of the Fair Labor Standards Act. CobbFendley provides professional civil engineering and land surveying services.[CC] The Plaintiff is represented by: Josh Sanford, Esq. Merideth Q. McEntire, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com merideth@sanfordlawfirm.com The Defendant is represented by: Mario A. Barrera, Esq. NORTON ROSE FULBRIGHT US LLP Frost Tower 111 W. Houston St., Suite 1800 San Antonio, TX 78205 Telephone: (210) 224-5575 Telecopier: (210) 270-7205 E-mail: mario.barrera@nortonrosefulbright.com COMMUNITY HEALTH: Bid to Dismiss Padilla Suit Still Pending ----------------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the motion to dismiss the case, Caleb Padilla, individually and on behalf of all others similarly situated vs. Community Health Systems, Inc., Wayne T. Smith, Larry Cash, and Thomas J. Aaron, is still pending. Caleb Padilla, individually and on behalf of all others similarly situated v Community Health Systems, Inc., Wayne T. Smith, Larry Cash, and Thomas J. Aaron. This purported federal securities class action was filed in the United States District Court for the Middle District of Tennessee on May 30, 2019. It seeks class certification on behalf of purchasers of the company's common stock between February 20, 2017 and February 27, 2018 and alleges misleading statements resulted in artificially inflated prices for the company's common stock. On November 20, 2019, the District Court appointed Arun Bhattacharya and Michael Gaviria as lead plaintiffs in the case. The lead plaintiffs filed a consolidated class complaint on January 21, 2020. The Company filed a motion to dismiss the consolidated class complaint on March 23, 2020. That motion is pending. Community Health said, "We believe this matter is without merit and will vigorously defend this case." No further updates were provided in the Company's SEC report. Community Health Systems, Inc., through its subsidiaries, owns, leases, and operates general acute care hospitals in the United States. The company offers general acute care, emergency room, general and specialty surgery, critical care, internal medicine, obstetrics, diagnostic, psychiatric, and rehabilitation services, as well as skilled nursing and home care services. It also provides outpatient services at urgent care centers, occupational medicine clinics, imaging centers, cancer centers, and ambulatory surgery centers. Community Health Systems, Inc. was founded in 1985 and is headquartered in Franklin, Tennessee. COMMUNITY HEALTH: Final Settlement Approval Hearing on Nov. 30 -------------------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the hearing to consider final approval of the settlement in the case, Zwick Partners, LP and Aparna Rao, individually and on behalf of all others similarly situated v. Quorum Health Corporation, Community Health Systems, Inc., Wayne T. Smith, W. Larry Cash, Thomas D. Miller, and Michael J. Culotta, is set for November 30, 2020. This purported class action lawsuit previously filed in the United States District Court, Middle District of Tennessee was amended on April 17, 2017 to include Community Health Systems, Inc., Wayne T. Smith and W. Larry Cash as additional defendants. The plaintiffs seek to represent a class of Quorum Health Corporation, or QHC, shareholders and allege that the failure to record a goodwill and long-lived asset impairment charge against QHC at the time of the spin-off of QHC violated federal securities laws. The District Court denied all defendants' motions to dismiss on April 20, 2018. The plaintiffs moved for class certification. Plaintiffs also amended their complaint on September 14, 2018. The company moved to dismiss the additional claims in the plaintiffs' September 14, 2018 amended complaint and responded to plaintiffs' class certification motion. On March 29, 2019, the court granted the company's motion to dismiss the additional claims. The court granted the plaintiffs' motion for class certification on that same date. On April 12, 2019, the company filed a petition for permission to appeal the court's order granting class certification with the United States Court of Appeals for the Sixth Circuit, which was denied on July 31, 2019. On May 17, 2019, the plaintiffs moved to amend their complaint for a third time to add additional claims, which the District Court denied on August 2, 2019. All parties have now reached a settlement of this case, which was preliminarily approved by the District Court on July 27, 2020. On September 17, 2020, Greenlight Capital requested exclusion from the Class. The hearing for final approval of the settlement by the District Court is set for November 30, 2020. Community Health Systems, Inc., through its subsidiaries, owns, leases, and operates general acute care hospitals in the United States. The company offers general acute care, emergency room, general and specialty surgery, critical care, internal medicine, obstetrics, diagnostic, psychiatric, and rehabilitation services, as well as skilled nursing and home care services. It also provides outpatient services at urgent care centers, occupational medicine clinics, imaging centers, cancer centers, and ambulatory surgery centers. Community Health Systems, Inc. was founded in 1985 and is headquartered in Franklin, Tennessee. COMMUNITY HEALTH: Tentative Settlement Reached in Kirk Suit ----------------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that a tentative settlement has been reached in the case, Becky Kirk, Perry Ayoob, and Dawn Karzenoski, as representatives of a class of similarly situated persons, and on behalf of the CHS/Community Health Systems, Inc. Retirement Savings Plan v. Retirement Committee of CHS/Community Health Systems, Inc., John and Jane Does 1-20, Principal Life Insurance Company, Principal Management Corporation, and Principal Global Investors, LLC. This purported class action was filed in the United States District Court for the Middle District of Tennessee on August 8, 2019. The plaintiffs seek to represent a class of current and former participants in the CHS/Community Health Systems, Inc. Retirement Savings Plan and allege that the defendants breached their fiduciary duties by offering certain investments in the Plan that were more expensive and/or did not perform as well as other marketplace alternatives. Community Health said, "We have reached a tentative, immaterial settlement with the plaintiffs and will be seeking court approval of the settlement." No further updates were provided in the Company's SEC report. Community Health Systems, Inc., through its subsidiaries, owns, leases, and operates general acute care hospitals in the United States. The company offers general acute care, emergency room, general and specialty surgery, critical care, internal medicine, obstetrics, diagnostic, psychiatric, and rehabilitation services, as well as skilled nursing and home care services. It also provides outpatient services at urgent care centers, occupational medicine clinics, imaging centers, cancer centers, and ambulatory surgery centers. Community Health Systems, Inc. was founded in 1985 and is headquartered in Franklin, Tennessee. CONVERGENT OUTSOURCING: Rawls Sues to Recover Overtime Wages ------------------------------------------------------------ Quneshia Rawls, individually and on behalf of all others similarly situated v. CONVERGENT OUTSOURCING, INC., Case No. 2:20-cv-01538 (W.D. Wash., Oct. 16, 2020), is brought to recover overtime wages, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938, and Alabama common law. Specifically, the Defendant has enforced a uniform company-wide policy wherein it improperly required its hourly call-center employees to perform work "off-the-clock" and without pay. The Defendant's illegal company-wide policy has caused the Plaintiff to have hours worked that were not compensated and further created a miscalculation of their regular rate(s) of pay for purposes of calculating their overtime compensation each workweek. Although the Plaintiff routinely worked in excess of 40 hours per workweek, the Plaintiff was not paid overtime of at least one and one half their regular rates for all hours worked in excess of 40 hours per workweek, asserts the complaint. The Defendant knowingly and deliberately failed to compensate Plaintiff for all hours worked each workweek and the proper amount of overtime on a routine and regular basis during the relevant time period, the complaint adds. The Plaintiff Quneshia Rawls was employed by Convergent in Montgomery, Alabama. Convergent is a global customer engagement and contact center that provides customer services, technical support services, and sales and marketing support to its business clients.[BN] The Plaintiff is represented by: Michael C. Subit, Esq. Marc C. Cote, Esq. FRANK FREED SUBIT & THOMAS LLP 705 Second Avenue, Suite 1200 Seattle, WA 98104 Phone: (206) 682-6711 Email: msubit@frankfreed.com mcote@frankfreed.com - and - Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 North Upper Broadway Corpus Christi, TX 78401 Phone: (361) 452-1279 Facsimile: (361) 452-1284 Email: cliff@a2xlaw.com austin@a2xlaw.com CROWN CASTLE: Continues to Defend Securities Class Suits -------------------------------------------------------- Crown Castle International Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend putative securities class action suits in the U.S. District Court for the District of New Jersey. In February and March 2020, putative securities class action suits were filed in the United States District Court for the District of New Jersey against the Company and certain of its current officers. The lawsuits were filed on behalf of investors that purchased or otherwise acquired stock of the Company between February 26, 2018 and February 26, 2020. The allegations relate to allegedly false or misleading statements or other failures to disclose information about the Company's business, operations and prospects. The complaints seek unspecified money damages and the award of the plaintiffs' costs and expenses incurred in the respective class action. Crown Castle said, "The Company is currently unable to determine the likelihood of an outcome or estimate a range of reasonably possible losses, if any, with respect to these lawsuits. The Company believes these lawsuits are without merit and intends to defend itself vigorously." No further updates were provided in the Company's SEC report. Crown Castle International Corp. owns, operates and leases shared wireless infrastructure, including towers and other structures like rooftops and small cell networks supported by fiber. The Houston-based Company's wireless infrastructure is geographically dispersed throughout the U.S., including Puerto Rico. The company is based in Houston, Texas. CUBESMART LP: Torres Class Suit Seeks OT Pay for Managers --------------------------------------------------------- SHELTALEE TORRES, individually and on behalf of all others similarly situated, v. CUBESMART LP, and CUBESMART MANAGEMENT LLC, d/b/a Cubesmart Self Storage, Case No. 3:20-cv-01137-TJC-PDB (M.D. Fla., Oct. 5, 2020), alleges that the Defendants violated the Fair Labor Standards Act for failure to pay overtime compensation and any premium for all hours worked over 40 each week. The Plaintiff contends that like his fellow Managers, and who are members of this putative Class, worked at the Defendants' self storage retail locations across the United States and its territories, were paid on an hourly basis and classified as non-exempt employees under the FLSA. She alleges that the Defendants classified all Store Managers, Property Managers and General Managers as Non-Exempt from overtime wages pursuant to either State law or the FLSA. She, like his fellow Managers were systematically denied any overtime pay for hours they worked in excess of 40 hours, she adds. Sheltalee Torres worked for the Defendants for a period of about 10 years until his termination on October 3, 2020, working under the job title of "General Manager". CUBESMART LP, formerly known as U Store It Trust, operates and/or manages 1246 stores, properties or locations across the United States and its territories.[BN] The Plaintiff is represented by: Mitchell Feldman, Esq. FELDMAN LEGAL GROUP Tampa, FL 33625 Telephone: 813-639-9366 Facsimile: 813-639-9376 E-mail: mlf@feldmanlegal.us CULTURAL CARE: Court Narrows Claims in Mack Suit ------------------------------------------------ In the case, AMANDA MACK, Plaintiff, v. CULTURAL CARE INC., Defendant, Civil Action No. 1:19-cv-11530-ADB (D. Mass.), Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts granted in part and denied in part the Defendant's motion to dismiss the Plaintiff's Second Amended Complaint. Plaintiff Mack brings the putative class action against the Defendant, alleging that it double charged the Plaintiff and au pairs for travel costs associated with both international airfare and transitioning the au pairs from its training school to their host families. The Defendant operates an exchange program that connects au pairs from foreign countries with host families in the United States. On March 4, 2018, the parties entered into an agreement whereby the Defendant would provide an au pair from China that would live in the Plaintiff's home in Massachusetts and care for her children. The terms of the agreement were included in the Host Family Agreement, and the fee arrangement for the Defendant's services was set forth in the Host Family Financial Responsibility Agreement. According to the Agreement, the Program Fee for a new family seeking an au pair was $8,695 and the Domestic Transportation Fee was between $0 and $300, depending on the location of the host family. The Agreement did not provide any further definition of the Program Fee or the Domestic Transportation Fee. Because the Program Fee and Domestic Transportation Fee were left undefined, the Plaintiff looked to the Defendant's website for more information. Regarding the Domestic Transportation fee, the website explained that it covers an au pair's transportation to their host family's home from the Au Pair Training School in New York. Regarding the Program Fee, the website provided that it includes recruitment and screening, Training School, matching services, orientation, round-trip international airfare, travel medical insurance coverage and year-long support from one's local childcare consultant. The Plaintiff paid the Program Fee and the Domestic Transportation Fee of $100 for the au pair's transportation from New York City to her home in Boston and the au pair successfully executed the duties set forth in the Agreement from July 2018 until June 2019. Unbeknownst to her, the Defendant had similar agreements with au pairs, who were also required to pay a program fee which allegedly includes and covers the au pair's travel costs. The Defendant's website for au pairs in China states that the cost includes travel costs from designated departure cities to the United States, as well as transportation costs from the training school to the host families' homes. The au pair websites for other countries provide similar arrangements. The Plaintiff claims that the Defendant misrepresented the nature of its fees and led her to believe that she would be paying the au pair's travel costs in their entirety and that her au pair would therefore not be charged for her travel costs. She alleges that the Defendant's actions constituted a breach of contract and a breach of the implied covenant of good faith, or, if the Court determines that there is no enforceable contract, unjust enrichment. The Plaintiff additionally brings a claim under Massachusetts General Laws Chapter 93A. At the root of her claims is the allegation that the Defendant either double charged her au pair for the same fee or misrepresented the nature of the fees, which in either case, induced her to pay more than she would have reasonably paid for the Program Fee and Domestic Transportation Fee. The Plaintiff filed her original complaint on July 12, 2019. With the agreement of the Defendant, the Plaintiff filed an amended complaint on Aug. 14, 2019. Again, with the agreement of the Defendant, she filed the operative SAC on Sept. 30, 2019. The Defendant filed the instant motion to dismiss on Oct. 21, 2019 to which the Plaintiff opposed on Nov. 18, 2019. Judge Burroughs granted in part and denied in part the Defendant's motion to dismiss. Specifically, Counts I (Breach of Contract and the Covenant of Good Faith and Fair Dealing) and III (Unjust Enrichment) of the complaint are dismissed. Count II (Violation of Chapter 93A) may go forward, insofar as the Plaintiff claims that the Defendant's alleged double billing practice violated Chapter 93A. Regarding Count I, Judge Burroughs finds that (i) the releases agreed to by the Plaintiff do not bar the breach of contract claim for the alleged double charging or, alternatively, misrepresentation of the au pair's travel costs; (ii) even if the Defendant engaged in the alleged double charging scheme, its participation in such a scheme did not breach any contractually obligated promise between the Defendant and the Plaintiff; and (iii) the Plaintiff's claim that the Defendant breached the covenant of good faith and fair dealing by charging a third party a potentially duplicative service fee did not deny Plaintiff the benefit of her bargain and does not implicate a contracted for right or promise. Regarding Count II, Judge Burroughs holds that (i) the claims are sufficiently factually distinct to allow the 93A claim to go forward; (ii) the Plaintiff has failed to allege that a reasonable consumer would have acted differently in reliance on the Defendant's alleged misrepresentations on its website; and (iii) the Plaintiff has sufficiently pled that the Defendant's undisclosed double charging caused her to pay an inflated cost for travel expenses, and that charging both an au pair and the Plaintiff a fee for the same service would influence a consumer's decision to use the Defendant's services and the price of those services. Finally, regarding Count III, Judge Burroughs explains that the First Circuit has recently clarified that a common law claim for unjust enrichment fails because a party with an adequate remedy at law cannot claim unjust enrichment. The viability of a plaintiff's Chapter 93A claim is beside the point. A plaintiff's unjust enrichment claims must be dismissed because an adequate remedy at law was undoubtedly available to her through Chapter 93A. The Plaintiff's unjust enrichment claim is therefore dismissed. A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is available at https://tinyurl.com/y3efxpnw from Leagle.com. DEKALB COUNTY SCHOOL: T.H. Suit Seeks to Certify Class & Subclass ----------------------------------------------------------------- In the class action lawsuit captioned as T.H., et al., v. DeKalb County School District, et al., Case No. 1:19-cv-03268-TWT (N.D. Ga.), the Plaintiffs ask the Court for an order: 1. certifying a class and subclass consisting of the following: Individuals with Disabilities Education Act (IDEA) Class: "all youth detained at the DeKalb County Jail with a disability, as defined by the IDEA"; and Discrimination Subclass: "all members of the IDEA Class who are qualified individuals with a disability, as defined by the Americans with Disabilities Act or Section 504 of the Rehabilitation Act.; and 2. appointing Plaintffs' law firms as class counsel for the IDEA Class and Discrimination Subclass. The DeKalb County School District is a school district headquartered at 1701 Mountain Industrial Boulevard in unincorporated DeKalb County, Georgia, United States, near Stone Mountain and in the Atlanta metropolitan area. A copy of the Plaintiffs' Motion for Class Certification is available from PacerMonitor.com at https://bit.ly/34KA0jp at no extra charge.[CC] The Plaintiffs are represented by: Christina Wilson Remlin, Esq. Aaron Finch, Esq. Jonathan King, Esq. Danielle Beth Rosenthal, Esq. CHILDREN'S RIGHTS, INC. 1700 Northside Drive, Suite A7 PMB 1086 Atlanta, GA 30318 Telephone: (646) 831-3543 Facsimile: (212) 683-4015 E-mail: cremlin@childrensrights.org afinch@childrensrights.org jking@childrensrights.org drosenthal@childrensrights.org - and - David G.H. Brackett, Esq. Amanda Kay Seals BONDURANT, MIXSON & ELMORE, LLP 1201 W. Peachtree Street 3900 One Atlantic Center Atlanta, GA 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 E-mail: brackett@bmelaw.com seals@bmelaw.com - and - Randee Waldman, Esq. BARTON JUVENILE DEFENDER CLINIC EMORY UNIVERSITY SCHOOL OF LAW 1301 Clifton Road Atlanta, GA 30322 Telephone: (404) 727-6235 Facsimile: (404) 727-7851 E-mail: rwaldm2@emory.edu - and - Greg Hecht, Esq. Michael W. Warner, Esq. HECHT WALKER, P.C. 3340 Peachtree Road, Suite 1530 Atlanta, GA 30326 Telephone: (404) 348-4881 Facsimile: (678) 884-1257 E-mail: greg@hmhwlaw.com michael@hmhwlaw.com DIEBOLD NIXDORF: Continues to Defend NY Consolidated Class Suit --------------------------------------------------------------- Diebold Nixdorf, Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a consolidated class action suit pending before the U.S. District Court for the Southern District of New York. In July and August 2019, shareholders filed putative class action lawsuits alleging violations of federal securities laws in the United States District Court for the Southern District of New York and the Northern District of Ohio. The lawsuits collectively assert that the Company and three former officers made material misstatements regarding the Company's business and operations, causing the Company's common shares to be overvalued from February 14, 2017 to August 1, 2018. The lawsuits have been consolidated before a single judge in the United States District Court for the Southern District of New York and lead plaintiffs appointed. Diebold said, "While management remains confident that it has valid defenses to these claims, as with any pending litigation, the Company is unable to predict the final outcome of this matter." No further updates were provided in the Company's SEC report. Diebold Nixdorf, Incorporated, incorporated on August 11, 1876, provides connected commerce services, software and technology. The Company's geographic segments include North America (NA), Asia Pacific (AP), Europe, Middle East and Africa (EMEA), and Latin America (LA). These segments sell and service financial self-service (FSS), retail solutions and security systems. The Company provides connected commerce solutions to financial institutions. The company is based in North Canton, Ohio. DIRECT BUSINESS: Benitez Sues Over Unsolicited Telemarketing Acts ----------------------------------------------------------------- The case, MARIANO BENITEZ, individually and on behalf of all others similarly situated, Plaintiff v. DIRECT BUSINESS FINANCING INC., d/b/a EMC FINANCIAL; DOES 1 through 10, inclusive, Defendants, Case No. 3:20-cv-02077-BEN-MDD (S.D. Cal., October 22, 2020) arises from the Defendants' alleged negligent and willful violations of the Telephone Consumer Protection Act. According to the complaint, the Plaintiff received calls and text on his cellular telephone number ending in -7919 beginning on or around July 10, 2019 from the Defendants in an effort to sell or solicit its services. The Defendants allegedly used an "automatic telephone dialing system" (ATDS) and/or "artificial or prerecorded voice" in placing calls and text message without obtaining "prior express consent" from the Plaintiff and other similarly situated individuals. The Plaintiff contends that the Defendants' unsolicited calls and text message have invaded his privacy and caused him to incur certain charges or reduced telephone time for which he had previously paid. Direct Business Financing, Inc. is a small business loan company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, 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 mgeorge@toddflaw.com DISCOVER FINANCIAL: Bid to Compel Arbitration in B&R Suit Pending ----------------------------------------------------------------- Discover Financial Services said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 26, 2020, for the quarterly period ended September 30, 2020, that the company has filed a Letter Motion to Compel Arbitration in the class action suit entitled, B&R Supermarket, Inc., d/b/a Milam's Market, et al. v. Visa, Inc. et al. On March 8, 2016, a class action lawsuit was filed against the Company, other credit card networks, other issuing banks and EMVCo in the U.S. District Court for the Northern District of California (B&R Supermarket, Inc., d/b/a Milam's Market, et al. v. Visa, Inc. et al.) alleging a conspiracy by defendants to shift fraud liability to merchants with the migration to the EMV security standard and chip technology. Plaintiffs assert joint and several liability among the defendants and seek unspecified damages, including treble damages, attorneys' fees, costs and injunctive relief. In May 2017, the Court entered an order transferring the entire action to a federal court in New York that is presiding over certain related claims that are pending in the actions consolidated as MDL 1720. On August 28, 2020, the Court granted Plaintiff's Motion to Certify a Class. Defendants appealed the ruling on September 11, 2020. Discover filed a Letter Motion to Compel Arbitration on September 29, 2020. Discover said, "The Company is not in a position at this time to assess the likely outcome or its exposure, if any, with respect to this matter, but will seek to vigorously defend against all claims asserted by the plaintiffs." Discover Financial Services operates as a credit card issuer and electronic payment services company. The Company issues credit cards and offers student and personal loans, as well as savings products such as certificates of deposit and money market accounts. Discover Financial Services manages automated teller machine networks. The company is based in Riverwoods, Illinois. EDISON INT'L: Bellwether Jury Trial Set for February 2021 --------------------------------------------------------- Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the bellwether jury trial on certain fire only matters has been scheduled for February 16, 2021. In December 2017, wind-driven wildfires impacted portions of Southern California Edison Company's (SCE's) service territory, causing loss of life, substantial damage to both residential and business properties, and service outages for SCE customers. The Ventura County Fire Department (VCFD) and the California Department of Forestry and Fire Protection (CAL FIRE) have determined that the largest of the 2017 fires originated on December 4, 2017, in the Anlauf Canyon area of Ventura County (the investigating agencies refer to this fire as the "Thomas Fire"), followed shortly thereafter by the Koenigstein Fire. According to CAL FIRE, the Thomas and Koenigstein Fires burned over 280,000 acres, destroyed or damages an estimated 1,343 structures and resulted in two fatalities. As of October 20, 2020, SCE was aware of at least 319 lawsuits, representing approximately 5,000 plaintiffs, related to the Thomas and Koenigstein Fires naming SCE as a defendant. One hundred and fifty-five of the 319 lawsuits also name Edison International as a defendant based on its ownership and alleged control of SCE. At least four of the lawsuits were filed as purported class actions. The lawsuits, which have been filed in the superior courts of Ventura, Santa Barbara and Los Angeles Counties allege, among other things, negligence, inverse condemnation, trespass, private nuisance, and violations of the public utilities and health and safety codes. The lawsuits have been coordinated in the Los Angeles Superior Court. Three categories of plaintiffs have filed lawsuits against SCE and Edison International relating to the Thomas Fire, Koenigstein Fire and Montecito Mudslides: individual plaintiffs, subrogation plaintiffs and public entity plaintiffs. An initial trial for a limited number of plaintiffs, sometimes referred to as a bellwether trial, on certain fire only matters is currently scheduled for February 16, 2021. In November 2019, SCE and Edison International reached a settlement with certain local public entity plaintiffs in the Thomas Fire, Koenigstein Fire and Montecito Mudslides litigation under which SCE paid those local public entity plaintiffs parties an aggregate of $150 million and, other than as set forth below, the plaintiffs released SCE and Edison International from all claims and potential claims in the Thomas Fire, Koenigstein Fire and Montecito Mudslides litigation and/or related to or arising from the Thomas Fire, Koenigstein Fire or Montecito Mudslides. Certain of the local public entity plaintiffs will retain the right to pursue certain indemnity claims against SCE and Edison International. In September 2020, SCE reached the September 2020 Subrogation Settlement with the Settling Subrogation Plaintiffs to resolve those parties' collective claims arising from the Thomas Fire, Koenigstein Fire or Montecito Mudslides. Under the terms of the September 2020 Subrogation Settlement, SCE paid the Settling Subrogation Plaintiffs an aggregate of $1.2 billion in October 2020 and also agreed to pay $0.555 for each dollar in claims to be paid by the Settling Subrogation Plaintiffs to their policy holders before July 15, 2023, up to an agreed upon cap. In the second and third quarters of 2020, SCE entered into settlements with several hundred of the several thousand individual plaintiffs in the 2017/2018 Wildfire/Mudslide Events litigation under which it agreed to pay an aggregate of approximately $73 million to those individual plaintiffs. Edison International and SCE did not admit liability as part of any of the settlements described above. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. Edison International, incorporated on April 20, 1987, is the holding company of Southern California Edison Company (SCE). EDISON INT'L: Woolsey Bellwether Jury Trial Set for June 2021 ------------------------------------------------------------- Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the bellwether jury trial in the purported class action suits related to the Woolsey Fire, is currently scheduled for June 1, 2021. In November 2018, wind-driven wildfires impacted portions of Southern California Edison Company 's (SCE's) service territory and caused substantial damage to both residential and business properties and service outages for SCE customers. The largest of these fires, known as the Woolsey Fire, originated in Ventura County and burned acreage located in both Ventura and Los Angeles Counties. According to the California Department of Forestry and Fire Protection (CAL FIRE), the Woolsey Fire burned almost 100,000 acres, destroyed an estimated 1,643 structures, damaged an estimated 364 structures and resulted in three fatalities. Two additional fatalities have also been associated with the Woolsey Fire. As of October 20, 2020, SCE was aware of at least 261 lawsuits, representing approximately 4,908 plaintiffs, related to the Woolsey Fire naming SCE as a defendant. One hundred ninety-one of the 261 lawsuits also name Edison International as a defendant based on its ownership and alleged control of SCE. At least two of the lawsuits were filed as purported class actions. The lawsuits, which have been filed in the superior courts of Ventura and Los Angeles Counties allege, among other things, negligence, inverse condemnation, personal injury, wrongful death, trespass, private nuisance, and violations of the public utilities and health and safety codes. The Woolsey Fire lawsuits have been coordinated in the Los Angeles Superior Court. Three categories of plaintiffs have filed lawsuits against SCE and Edison International relating to the Woolsey Fire: individual plaintiffs, subrogation plaintiffs and public entity plaintiffs. An initial jury trial for a limited number of plaintiffs, sometimes referred to as a bellwether jury trial, is currently scheduled for June 1, 2021. In November 2019, SCE and Edison International reached a settlement with certain local public entity plaintiffs in the Woolsey Fire litigation under which SCE paid the local public entity plaintiffs an aggregate of $210 million and those local public entity plaintiffs released SCE and Edison International from all claims and potential claims in the Woolsey Fire litigation and/or related to or arising from the Woolsey Fire. In the second and third quarters of 2020, SCE entered into settlements with several hundred of the several thousand individual plaintiffs in the 2017/2018 Wildfire/Mudslide Events litigation under which it agreed to pay an aggregate of approximately $73 million to those individual plaintiffs. Edison International and SCE did not admit liability as part of any of the settlements. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. Edison International, incorporated on April 20, 1987, is the holding company of Southern California Edison Company (SCE). EL JOBITO: Fails to Properly Pay Overtime, Reyes Claims ------------------------------------------------------- The case, JOSE REYES, on behalf of himself and all others similarly situated, Plaintiff v. EL JOBITO SEAFOOD RESTAURANT INC., d/b/a EL JOBITO RESTAURANT and JUAN ARIAS, individually, Defendants, Case No. 1:20-cv-08816 (S.D.N.Y., October 22, 2020) arises from the Defendants' alleged willful violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants from on or about June 2017 through September 2020 as a cook. The Plaintiff asserts these claims: -- The Defendants did not compensate him at the appropriate overtime rate of pay for workweeks in which he worked more than 40 hours; -- The Defendants failed to provide him any meal breaks throughout his employment with them; -- The Defendants failed to provide him with any notation or any other documentation of his hours worked during that pay period or his rate of pay; and -- The Defendants failed to keep accurate records of hours worked by employees. El Jobito Seafodd Restaurant Inc. is a restaurant owned and operated by Juan Arias. [BN] The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, 3rd Floor New York, NY 10007 Tel: (212) 323-6980 E-mail: jaronauer@aronauerlaw.com ELMIRON: Faces Class Action in Canada Over Link to Vision Loss -------------------------------------------------------------- Rockland County Times reports that Elmiron is a drug that has been prescribed for years to treat interstitial cystitis -- a painful condition faced by up to 12 million people in the U.S. Around twice as many women as men are affected, with symptoms including urinary urgency and a burning sensation in the bladder area. Lawsuits are being brought in the U.S. and, more recently, Canada, alleging that there is a link between the medication and vision loss. Legal professionals allege that the makers of the drug have known that the medication was linked to vision problems since 2018, but failed to provide doctors and patients with this information. Vision Loss Issues Plaintiffs claim that the range of problems caused by Elmiron include blurry vision, muted colors, and reading problems. In Canada, an Elmiron class action lawsuit was recently filed, while in the U.S., legal pressure is also mounting. In the U.S. some firms are offering patients free representation, with fees or percentages being charged only in the event that the lawsuits are successful and compensation is obtained. In research conducted in 2018 and published in Ophthalmology, scientists presented the results of the evaluation of six adult patients seen between 2015 and 2017. The findings showed that there was "a novel and possibly avoidable maculopathy associated with chronic exposure to PPS (pentosan polysulfate, the active ingredient in Elmiron). A Review Of Patients Later research conducted in 2019 and published by the American Academy of Ophthalmology found that about 25% of patients with significant exposure to Elmiron showed definite signs of eye damage. The researchers added that this problem "could masquerade as other known retinal conditions such as age-related macular degeneration or pattern dystrophy." The damage caused by the toxins, say the scientists, affects the central part of the retina, which is vital for seeing things clearly and crisply. Their research began with 140 patients who had taken around 5,000 Elmiron pills over the course of a decade and a half. Around 65% of these patients agreed to come in for an ocular exam, with 22 of them showing "clear signs of drug toxicity." The researchers recommended that patients who have no visual problems be screened for vision problems at least once yearly. Those who do have signs of toxicity, meanwhile, should talk to their specialist about discontinuing the medication. What Problems Can Arise From Drug Toxicity? In addition to problems with sight, vision problems such as those described can cause many other issues, ranging from mental health issues to a higher risk of falling. One study published in JAMA Ophthalmology in 2014 linked poor vision to a reduced life expectancy. Additional issues can include cognitive decline, difficulty learning, and a feeling of being discriminated against. Therefore, it is important for those affected to seek specialist medical and legal attention. The plethora of cases against the manufacturers of Elmiron arise from findings of a link between this drug and problems such as blurry vision and difficulty reading. Currently cases have been brought both in the U.S. and Canada, with lawyers calling those affected to see them for advice. It is important to obtain compensation if it is forthcoming, since visual problems can result in a plethora of health issues that may require specialist care. [GN] ENTERPRISE FINANCIAL: Facing Parshall Putative Class Suit in Del. ----------------------------------------------------------------- Enterprise Financial Services Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 23, 2020, for the quarterly period ended September 30, 2020, that the company is facing a putative class action suit entitled, Parshall v. Seacoast Commerce Banc Holdings, et al., No. 1:99-cv-01300 Following the announcement on August 20, 2020 of the execution of the definitive agreement related to the Company's acquisition of Seacoast Commerce Banc Holdings (SCBH) and Seacoast Commerce Bank (Seacoast), a lawsuit challenging the proposed transaction was filed in the U.S. District Court for the District of Delaware. The lawsuit is captioned Parshall v. Seacoast Commerce Banc Holdings, et al., No. 1:99-cv-01300 (filed September 28, 2020). This lawsuit challenging the proposed transaction is a putative class action filed on behalf of the shareholders of SCBH and names as defendants SCBH, its directors and Enterprise Financial Services Corp (EFSC). The complaint alleges that SCBH and its directors violated Section 14(a) of the Exchange Act by failing to disclose certain facts about the financial projections of SCBH and EFSC and financial analysis performed by SCBH's financial advisor. The complaint further alleges that EFSC and SCBH's board of directors violated Section 20(a) of the Exchange Act by acting as control persons. The action seeks, among other relief, an order enjoining completion of the proposed transaction. Enterprise said, "The outcome of the pending litigation is uncertain. If the case is not resolved, this lawsuit could prevent or delay completion of the proposed transaction and result in substantial costs, the magnitude of which cannot be predicted at this time, to EFSC and SCBH, including any costs associated with the indemnification of directors and officers. One of the conditions to the closing of the SCBH acquisition is that no injunction, order, judgement or decree prohibiting or making illegal completion of the transaction or any of the other transactions contemplated by the definitive agreement related to the transaction will be in effect. As such, if plaintiff were successful in obtaining an injunction prohibiting the completion of the SCBH acquisition on the agreed-upon terms, then such injunction may prevent the acquisition from being completed, or from being completed within the expected timeframe. The defense or settlement of any lawsuit or claim that remains unresolved at the time the SCBH acquisition is completed may adversely affect EFSC's business, financial condition, results of operations and cash flows. Such litigation is common in connection with acquisitions similar to the SCBH acquisition, regardless of any merits related to the underlying acquisition. In this instance, the defendants believe that the claims asserted against them in the lawsuit are without merit and intend to defend the litigation vigorously." Enterprise Financial Services Corp. operates as the financial holding company for Enterprise Bank & Trust that offers banking and wealth management services to individuals and corporate customers. Enterprise Financial Services Corp was founded in 1988 and is headquartered in Clayton, Missouri. EQUIFAX INC: Accord in Financial Institutions MDL Wins Final OK --------------------------------------------------------------- Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2020, for the quarterly period ended September 30, 2020, that a court has granted final approval of the settlement in the Financial Institutions MDL Class Action. On May 15, 2020, the Company entered into a settlement agreement to resolve the consolidated financial institutions class action cases pending before the MDL Court (the "Financial Institutions MDL Litigation"). Under the settlement, the Company agreed to pay for valid claims submitted by class members up to a maximum amount, reasonable settlement administration and notice costs, and reasonable attorneys' fees and expenses. The Company also agreed to adopt and/or maintain certain business practices related to its information security program. The court granted final approval of the settlement on October 22, 2020. Equifax Inc. provides information solutions and human resources business process outsourcing services for businesses, governments, and consumers. The company operates through four segments: U.S. Information Solutions (USIS), International, Workforce Solutions, and Global Consumer Solutions. Equifax Inc. was founded in 1899 and is headquartered in Atlanta, Georgia. EQUIFAX INC: Appeal from Class Cert. Order in Ontario Case Pending ------------------------------------------------------------------ Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2020, for the quarterly period ended September 30, 2020, that the company's appeal in the class action suit pending before the court in Ontario is pending. Five putative Canadian class actions, four of which are on behalf of a national class of approximately 19,000 Canadian consumers, are pending against the company in Ontario, British Columbia and Alberta. Each of the proposed Canadian class actions asserts a number of common law and statutory claims seeking monetary damages and other related relief in connection with the 2017 cybersecurity incident. In addition to seeking class certification on behalf of Canadian consumers whose personal information was allegedly impacted by the 2017 cybersecurity incident, in some cases, plaintiffs also seek class certification on behalf of a larger group of Canadian consumers who had contracts for subscription products with Equifax around the time of the incident or earlier and were not impacted by the incident. On December 13, 2019, the court in Ontario granted certification of a nationwide class that includes all impacted Canadians as well as Canadians who had subscription products with Equifax between March 7, 2017 and July 30, 2017 who were not impacted by the incident. The company's motion for leave to appeal this decision was granted in part, and the company's appeal is now pending. All remaining purported class actions are at preliminary stages or stayed. Equifax Inc. provides information solutions and human resources business process outsourcing services for businesses, governments, and consumers. The company operates through four segments: U.S. Information Solutions (USIS), International, Workforce Solutions, and Global Consumer Solutions. Equifax Inc. was founded in 1899 and is headquartered in Atlanta, Georgia. EQUIFAX INC: Settlement in Pa. State Court Case Wins Final OK ------------------------------------------------------------- Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2020, for the quarterly period ended September 30, 2020, that the settlement in Pennsylvania State Court Financial Institution Class Action, had been granted final approval. The Company entered into a settlement agreement to resolve the individual claims brought by one of the original named plaintiffs in the Financial Institutions MDL Litigation in the Court of Common Pleas of Lawrence County, Pennsylvania on behalf of itself and a class of financial institutions headquartered in Pennsylvania. The claims asserted in this matter were substantially similar to claims asserted by financial institutions that previously were dismissed in the MDL proceeding for lack of standing. The court granted approval of the settlement on July 13, 2020. Equifax Inc. provides information solutions and human resources business process outsourcing services for businesses, governments, and consumers. The company operates through four segments: U.S. Information Solutions (USIS), International, Workforce Solutions, and Global Consumer Solutions. Equifax Inc. was founded in 1899 and is headquartered in Atlanta, Georgia. EXACT SCIENCES: Genomic Defends Flannery Class Action ----------------------------------------------------- Exact Sciences Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that Genomic Health continues to defend an individual and class action complaint entitled, Flannery v. Genomic Health, Inc., et al., C.A. No. 2020-0492. In connection with the company's combination with Genomic Health, on June 22, 2020, Suzanne Flannery, a purported former stockholder of Genomic Health, filed a Verified Individual and Class Action Complaint in the Delaware Court of Chancery, captioned Flannery v. Genomic Health, Inc., et al., C.A. No. 2020-0492. The complaint asserts individual and class action claims, including: (i) a violation of 8 Del. C. Section 203 by Genomic Health's former directors; (ii) conversion by Genomic Health, Exact and Spring Acquisition Corp.; (iii) breach of fiduciary duty by Genomic Health's former directors; (iv) breach of fiduciary duty by a purported controlling group of former Genomic Health stockholders comprised of funds managed by former Genomic Health directors, Julian Baker and Felix Baker; and (v) aiding and abetting breach of fiduciary duty against Exact, Spring Acquisition and Goldman Sachs & Co. LLC, Genomic Health's financial advisor in the combination. The complaint seeks, among other things, declaratory relief, unspecified monetary damages and attorneys' fees and costs. All defendants intend to move to dismiss the complaint. Exact Sciences Corporation is a molecular diagnostics company with an initial focus on the early detection and prevention of colorectal cancer. Exact Sciences Corp. launched Cologuard in 2014, the first stool DNA test for colorectal cancer. The company is based in Madison, Wisconsin. F&E AIRCRAFT: Fails to Pay Proper Wages Under FLSA, Vinasco Claims ------------------------------------------------------------------ INGRID VINASCO, individually and on behalf of similarly situated individuals v. F&E AIRCRAFT MAINTENANCE, LLC, Case No. (S.D. Tex., Oct. 19, 2020), is a collective action seeking to recover unpaid wages, liquidated damages, and other damages owed to workers, together with attorneys' fees, interest, and costs of these proceedings under the Fair Labor Standards Act. The Plaintiff contends that the Defendant employs Cabin Interior Maintenance workers at their home facility on an hourly rate but subjects them to automatic lunch deductions while still requiring them to work. FEAM subjects the Plaintiff and the Cabin Interior Maintenance workers to time shaving by adjusting the clock in time to show less or no overtime. When FEAM sends the Plaintiff and the Cabin Interior Maintenance workers to work out of town, they pay them a day rate and no overtime. When FEAM also sends the Plaintiff and the other Cabin Interior Maintenance workers on out of town projects, they regularly work more than 40 hours in a workweek but the Defendant fails to pay them overtime, the complaint adds. FEAM is an aircraft service company that provides line maintenance services to foreign and domestic customers.[BN] The Plaintiff is represented by: Trang Q. Tran, Esq. TRAN LAW FIRM 2537 S. Gessner, Suite 104 Houston, TX 77063 Telephone: (713) 223-8855 Facsimile: (713) 623-6399 E-mail: trang@tranlf.com service@tranlf.com FABFITFUN INC: Faces Gaston Class Action Suit Over Data Breach -------------------------------------------------------------- CHERYL GASTON, Individually and on Behalf of All Others Similarly Situated v. FABFITFUN, INC., Case No. 2:20-cv-09534 (C.D. Cal., Oct. 16, 2020), is brought on behalf of the Plaintiff and all persons whose PII was compromised as a result of the Defendant's failure to: (i) adequately protect its users' personally identifiable information (PII), (ii) warn users of its inadequate information security practices, and (iii) effectively monitor its Website and e-commerce platform for security vulnerabilities and incidents. The Plaintiff contends that the Defendant's conduct amounts to negligence and violates federal and state statutes. He alleges that he and similarly situated customers have suffered injury as a result of the Defendant's conduct. These injuries may include lost or diminished value of their PII, and out-of-pocket expenses associated with the prevention, detection, and recovery from identity theft, tax fraud, and/or unauthorized use of their PII. On September 18, 2020, FabFitFun began notifying customers and state Attorneys General about a widespread data breach that occurred from April 26, 2020 to May 14, 2020 and May 22, 2020 to August 3, 2020. Hackers not only "scraped" many of the Defendant's customers' full names from the Website by infecting it with a malicious code, but hackers also stole customers' PII, including names, addresses, payment card account numbers, card expiration dates, and card verification codes, says the complaint. The Defendant assures their customers that they are concerned about PII security and claims: "We take reasonable and appropriate measures to help keep information secure and to help prevent it from becoming disclosed." The Defendant does not claim that it abides by the Payment Card Industry Data Security Standard (PCI DSS) compliance, which is a requirement for businesses that store, process, or transmit payment card data. Ms. Gaston purchased a subscription from FabFitFun on May 7, 2020 using her debit card. She received FabFitFun's Notice of Data Breach on September 29, 2020. FabFitFun is a popular lifestyle e-commerce retailer best known for its flagship product, the FabFitFun Box. The FabFitFun Box includes a selection of full-size products across beauty, fashion, fitness, wellness, home, and technology-delivered each season.[BN] The Plaintiff is represented by: Betsy C. Manifold, Esq. Rachele R. Byrd, Esq. Marisa C. Livesay, Esq. Brittany N. Dejong, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 1820 San Diego, CA 92101 Telephone: (619) 239-4599 Facsimile: (619) 234-4599 E-mail: manifold@whafh.com byrd@whafh.com livesay@whafh.com dejong@whafh.com - and - M. Anderson Berry, Esq. Leslie Guillon, Esq. CLAYEO C. ARNOLD A PROFESSIONAL LAW CORP. 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 777-7777 Facsimile: (916) 924-1829 E-mail: aberry@justice4you.com lguillon@justice4you.com FACEBOOK INC: Final Hearing on $650MM BIPA Suit Deal Set for Jan. 7 ------------------------------------------------------------------- Judge James Donato of the U.S. District Court for the Northern District of California granted the Plaintiffs' motion for preliminary approval of the amended class action settlement in IN RE FACEBOOK BIOMETRIC INFORMATION PRIVACY LITIGATION, Case No. 15-cv-03747-JD (N.D. Cal.). The Court will convene a hearing to consider final approval of the settlement on Jan. 7, 2021 at 10:00 a.m. Plaintiffs Nimesh Patel, Adam Pezen and Carlo Licata brought the consolidated class action lawsuit against Defendant Facebook, for violations of the Illinois Biometric Information Privacy Act ("BIPA"). The consolidated complaint alleges that Facebook violated Sections 15(a) and 15(b) of BIPA by collecting and storing the class members' biometric data in the form of scans of their faces without prior notice or consent. Facebook harvested the scans in connection with its "Tag Suggestions" program, which looks for and identifies people's faces in photographs uploaded to Facebook to promote user tagging. On the eve of a trial setting conference in February 2020, the parties reported that a settlement in principle had been reached between the class and Facebook. After an extended hearing, the Court denied the Plaintiffs' initial motion for preliminary approval of the class action settlement over serious concerns about the fairness of several terms to class members and the overall adequacy of proposed relief, including the amount of damages to be paid to the victims of Facebook's conduct. The parties filed supplemental briefs renewing their preliminary approval request, and negotiated revisions to the proposed settlement to address the Court's concerns. In addition to other changes in the revised agreement, Facebook will pay $650 million into a non-reversionary cash fund. From this fund, settlement administration expenses, taxes, and any class representative incentive awards and counsel fee awards will be paid, and then the balance will be distributed on a pro rata basis to each class member who submits an approved claim. The $650 million amount is $100 million more than the $550 million Facebook had previously agreed to pay. For a conduct remedy, Facebook has agreed to set the Face Recognition default user setting to "off" and to delete all existing and stored face templates for class members unless Facebook obtains a class member's express consent after a separate disclosure about how Facebook will use the face templates. It has proposed an exception to this for class members who signed up for Facebook after Sept. 3, 2019, because it has already implemented these practices for such newer users. It also proposes to except users who have manually enabled Face Recognition for themselves, for obvious reasons. Silence or inaction by the user will be deemed a withholding of consent, and the Face Recognition function will be set on "off," and face templates deleted. Facebook will also delete the face templates of any class members who have had no activity on Facebook for three years. Judge Donato held another hearing in July 2020, and took live testimony from Facebook's Face Recognition Product Manager on several issues related to the adequacy of the proposed notice to the class and the class definition. The revised settlement agreement and additional information presented by the parties have resolved the Court's concerns. The Judge finds on a preliminary basis that the settlement agreement appears to be fair, reasonable and adequate for the class. Consequently, preliminary approval of the class action settlement was granted. The Court certified a class of Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011, and the class definition is the same for purposes of settlement. Nothing has changed to require the Court to revisit the Rule 23 analysis in the class certification order, and the same is true of the adequacy of the class representatives and the class counsel. Consequently, the Judge approved the class definition in the settlement agreement, and the appointment of Nimesh Patel, Adam Pezen and Carlo Licata as the class representatives, and Edelson PC, Robbins Geller Rudman & Dowd LLP, and Labaton Sucharow LLP as the class counsel. The proposed exclusion of persons from the settlement class including judicial staff and other potentially interested persons is approved. The Judge approved the language and proposed forms of notice and claim form attached as Exhibits A to H to the settlement agreement; together they constitute the best practicable notice to individual class members under the circumstances of the case. He directed the parties to file a report every 14 days on the progress made in providing notice through the channels approved. The parties should be prepared to propose improvements in the delivery of notice based on the data as it is collected. Status conferences will be set as needed. The following schedule is set: a. Facebook to provide Class Notice List to Settlement Administrator - September 2, 2020 b. Notice Date - Sept. 23, 2020 c. Last day class counsel to file motion for attorney's fees and costs, and any incentive awards for class representatives - Oct. 15, 2020 d. Claims Deadline - Nov. 23, 2020 e. Objection/Exclusion Deadline - Nov. 23, 2020 f. Last day to file motion for final approval of class settlement - Dec. 3, 2020 g. Final Approval Hearing - Jan. 7, 2021 at 10:00 a.m. Gilardi & Co. LLC is appointed as the settlement administrator, and the American Civil Liberties Union of Illinois is preliminarily approved as the potential cy pres recipient. The parties are authorized to agree to and adopt further settlement-implementing measures so long as they are consistent in all material respects with the terms of the settlement agreement and do not limit or impair the rights of the class. The issues of any incentive awards to the named class representatives and any fees and costs to the class counsel are reserved for the final approval hearing. The parties are directed to follow the schedule set out above and all other terms of their settlement agreement. A full-text copy of the Court's Aug. 19, 2020 Order is available at https://tinyurl.com/y5mojv29 from Leagle.com. FIORELLA INSURANCE: Jones TCPA Suit Seeks to Certify Class ---------------------------------------------------------- In the class action lawsuit captioned as PAUL JONES, individually and on behalf of all others similarly situated, v. FIORELLA INSURANCE AGENCY, INC., Case No. 2:20-cv-14105-RLR (S.D. Fla.), the Plaintiff asks the Court for an order: 1. certifying a class of: "all persons or entities within the United States who (a) received at least one call from Spartan Approach for Fiorella; (b) made using a pre-recorded voice; (c) to their cellular telephone numbers; (d) whose phone number was provided to Fiorella by All Web Leads; (e) as a result of a purported visit to usinsuranceonline.com and/or get- instant-health-insurance.com; and (f) who did not receive a call from Spartan Approach prior to the date on which All Web Leads provided the lead to Fiorella." 2. appointing himself to serve as the class representative; 3. appointing Kaufman P.A. to serve as class counsel; and 4. directing himself to submit a proposed notice plan and form of notice. According to the complaint, Fiorella sells insurance policies. To increase its customer base, Fiorella relies on its wholly owned subsidiary call center, Spartan Approach, LLC, to engage in telemarketing. However, instead of individually contacting consumers, Spartan Approach employs a calling platform that makes pre-recorded voice calls en masse but connects the call recipients to agents only if, after hearing a pitch for insurance, the call recipient "press[es]". Notably, the pre-recorded voice does not identify Fiorella (or any other company) as the company that is calling, likely in an attempt to avoid Telephone Consumer Protection Act liability. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/2GFIlwL at no extra charge.[CC] Attorneys for the Plaintiff and the proposed classes are: Avi R. Kaufman, Esq. Rachel E. Kaufman, Esq. KAUFMAN P.A. 400 NW 26 th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com rachel@kaufmanpa.com FIRST EAGLE: Tola Sues Over Revision in Cert. of Incorporation -------------------------------------------------------------- JOSEPH TOLA v. FIRST EAGLE ALTERNATIVE CAPITAL BDC, INC., a Delaware Corporation, CHRISTOPHER J. FLYNN, EDMUND P. GIAMBASTIANI, NANCY HAWTHORNE, JAMES D. KERN, DEBORAH MCANENY, and JANE MUSSER NELSON, Case No. 2020-0905 (Del. Ch., Oct. 20, 2020), is a verified class action complaint brought on behalf of the Plaintiff and all other similarly situated public stockholders of First Eagle seeking declaratory relief relating to the Company's violation of the Delaware General Corporation Law and Delaware common law. On August 3, 2020, the Company changed its name from "THL Credit, Inc." to "First Eagle Alternative Capital BDC, Inc." in connection with the approval of a new advisory agreement between the Company and First Eagle Alternative Credit, LLC. In regard with the name change, the First Eagle Board, without stockholder approval, adopted the Company's third amended and restated certificate of incorporation (the "Charter"). Section 5.4 of Article V of the Charter entitled "Removal of Directors" provides that: Any director may be removed for cause from office by the action of the holders of at least seventy-five percent (75%) of the then outstanding shares of the Corporation's capital stock entitled to vote for the election of the respective director. Any director may be removed with or without cause by approval of at least sixty-six and two-thirds percent (66 2/3%) of the continuing directors. The Plaintiff contends that the Removal Provisions (a) unlawfully prohibit Company stockholders from removing directors without cause, (b) unlawfully prohibit Company stockholders from removing directors with simple majority support, and (c) impermissibly expand directorial power to permit directors to remove fellow directors. The Plaintiff is entitled to a declaration that the Removal Provisions violate the DGCL and Delaware law generally and are therefore invalid, unlawful, null, void, and of no further effect, the complaint says. The Plaintiff is a stockholder of First Eagle and has owned First Eagle common stock at all material times alleged in the Complaint. The Defendant First Eagle is a closed-end management investment company that has elected to be treated as a business development company under the Investment Company Act of 1940. The Individual Defendants are directors of the company.[BN] The Plaintiff is represented by: Gregory V. Varallo, Esq. Jacqueline Y. Ma, Esq. Mark Lebovitch, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 500 Delaware Avenue, Suite 901 Wilmington, DE 19801 - and - Jeremy S. Friedman, Esq. David F.E. Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 FLUOR ENTERPRISES: Mixon FLSA Suit Seeks Conditional Class Cert. ---------------------------------------------------------------- In the class action lawsuit captioned as WADE MIXON, on Behalf of Himself and on Behalf of All Others Similarly Situated, v. FLUOR ENTERPRISES, INC., Case No. 3:19-cv-00018-B (N.D. Tex.), the Plaintiff asks the Court for an order: 1. granting his motion for conditional certification; and 2. in the alternative, granting his motion for equitable tolling of the statute of limitations. This case concerns an overtime dispute under the Fair Labor Standards Act ("FLSA"). After Plaintiff Mixon filed this lawsuit, 147 Opt-In Plaintiffs joined this case. The Plaintiffs contend that they were denied overtime wages as a result of Fluor's policy to pay them straight time for overtime rather than time and one half their regular rates of pay for each hour worked over 40 in a workweek. Fluor Corporation is an American multinational engineering and construction firm headquartered in Irving, Texas. It is a holding company that provides services through its subsidiaries in the following areas: oil and gas, industrial and infrastructure, government and power. A copy of the Plaintiff's motion for conditional certification is available from PacerMonitor.com at https://bit.ly/33Q0HnT at no extra charge.[CC] The Plaintiff is represented by: Don J. Foty, Esq. HODGES & FOTY, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Telephone: 713 523 0001 Facsimile: 713 523 1116 E-mail: dfoty@hftrialfirm.com FORSTER & GARBUS: Wins Summary Judgment in Musante FDCPA Suit ------------------------------------------------------------- In the cases, JENNIFER MUSANTE, on behalf of herself and all others similarly situated, Plaintiff, v. FORSTER & GARBUS, L.L.P., MARK GARBUS, and RONALD FORSTER, Defendants. ROBYN G. DORMAN, on behalf of herself and all others similarly situated, Plaintiff, v. FORSTER & GARBUS, L.L.P., MARK GARBUS, and RONALD FORSTER, Defendants, Case Nos. 19-cv-440 (SJF) (ARL), 19-cv-1314 (SJF) (SIL) (E.D. N.Y.), Judge Sandra J. Feuerstein of the U.S. District Court for the Eastern District of New York granted the Defendants' motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs Musante and Dorman each commenced a putative class action against Forster & Garbus ("F&G"), Garbus, and Forster alleging that the Defendants have used unlawful collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"). Defendant F&G was retained by TD Bank USA, N.A. to collect consumer debts based upon account balances accrued in connection with Target Credit Cards. Each Plaintiff is indebted to TDB. In an attempt to collect the debts owed to TDB, F&G sent each Plaintiff a collection letter. Musante was sent a letter dated Jan. 22, 2018 indicating a total amount owed of $2,466.79, and Dorman's letter dated March 9, 2018 showed a total amount due of $3,866.88. To the right of the addressee, each of the Letters includes a heading with specific information regarding the debt. In addition to the total amount owed or "Full Balance," the Letters display a "Minimum Amount due." The Defendants have submitted the "controlling TDB contract" relevant to the Plaintiffs' TDB debts and notification of changes made to the account terms in 2016. Paragraph 7 sets forth the terms regarding accrual of interest. Paragraph 8 of the Account Agreement, entitled "Fees," lists fees that may be assessed. Several account terms in the Account Agreement were changed in 2016, becoming effective for Musante's account on Nov. 21, 2016 and for Dorman's on Dec. 9, 2016. The Account Agreement provides for the imposition of additional fees for expediting additional or replacement cards and for document reproduction. The Defendants have submitted an affidavit from Ryan Flynn, Senior Agency Relations Business Partner for TDB. Flynn stated the account balances set forth in the Letters were increasing on a daily basis due to accruing interest and were also subject to additional late charges and other charges such as bounced check fees. Musante and Dorman filed their complaints on Jan. 22, 2019 and March 6, 2019, respectively, and amended complaints were filed in both cases on April 7, 2019. While the original complaints differed from one another in some aspects including the order in which the claims were presented, the amended complaints are identical. The amended complaints assert five causes of action against the Defendants arising under sections 1962g(a)(1), 1692e, 1692e(2)(A), 1692e(10). The Plaintiffs claim that the advisement that interest, late charges and other charges may continue to accrue was false, deceptive, or misleading because (1) TDB had no right under the Account Agreement to impose "other charges," and; (2) late charges were actually accruing. They further claim that the least sophisticated consumer could believe that timely payment of the minimum amount due would prevent the accrual of interest, late charges or other charges. The Defendants move for summary judgment on the first three claims, contending, inter alia, that: (1) utilization of "safe harbor" language insulates them from liability; (2) the fact that late charges were accruing on the Plaintiffs' accounts renders the statement true; and (3) the Plaintiffs' argument that the least sophisticated consumer could believe that payment of the minimum amount due would prevent the accrual of interest, late charges and other charges is frivolous. In their opposition papers, the Plaintiffs withdraw their claims againstDefendants Garbus and Forster. Hence, all claims against these individuals Defendants are dismissed. The Plaintiffs' first two claims arise from the Letters' use of safe harbor language stating that that "depending upon your account agreement with the creditor, interest, late charges and other charges may continue to accrue on your account." They argue that the language is false, deceptive, or misleading because (1) the Account Agreement allowed TDB to assess interest and late charges, but not "other charges," and (2) late charges were, in fact, accruing. Judge Feuerstein holds that the Plaintiffs' challenge to the safe harbor language fails because where the safe harbor language references possible increases in interest, late charges, and other charges, it is only necessary for one of the three components to change. As interest was accumulating on the Plaintiff's debt, the Letter's accuracy does not need to specify which of those components fluctuate nor does it require all three to do so. The Plaintiffs' second claim is that the conceded fact that late charges were, in fact, accruing leads to the conclusion that the safe harbor's advisement that such charges "may" be imposed was false, deceptive, and misleading under the FDCPA. The argument has been raised previously, and consistently rejected, in the District, and is similarly rejected in the case. F&G is protected by the safe harbor language and thus there is no violation of either Section 1692e or Section 1692g. Each of the Letters complies with these sections as it lists the actual amount due (rather than an estimated amount), states that that amount may increase due to interest or other charges, and provides a way for the debtor to contact the debt collector. It is all the FDCPA requires. In their third claim, the Plaintiffs claim that the least sophisticated consumer could believe that payment of the Minimum Amount due by the specified date would prevent the accrual of interest, late charges and other charges. The Judge has considered the single case relied upon the Plaintiffs in support of their argument, Ortiz v. Advanced Call Center Techs., LLC. The Ortiz court, in deciding a motion to dismiss, found that the letter at issue implied that payment of the amount currently due would prevent accrual of additional interest and fees. The reported decision in Ortiz does not include the entire letter, and while it seems to have used similar language, it is not identical to the language used in the Letters. In light of the factual disparities, the case is not persuasive. The Judge has considered the Plaintiffs' remaining arguments and finds them to be without merit. In the final paragraph of their opposition, the Plaintiffs include a pro forma request for an opportunity to further amend the complaints to the extent that the amended complaints do not conform to the contract which governed their debts. The Plaintiffs do not offer any excuse for their failure to request leave to amend earlier. Putting aside any issue regarding the timeliness of the request, the Plaintiffs' perfunctory request is deficient in that it fails to provide any proposed theories or additional facts that would raise their claims from implausible to plausible. The Plaintiffs fail to explain how adding references to the Account Agreements would cure any deficiency in the pleadings. As amendment would be futile, leave to amend these claims is denied. For the foregoing reasons, Judge Feuerstein (i) withdrew the Plaintiffs' claims against Individual Defendants Garbus and Forster; (ii) granted the Defendant's motions for summary judgment in Musante and Dorman; and (3) denied the Plaintiffs' request to further amend their complaints. The Clerk of the Court is directed to enter judgment and close both cases. A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is available at https://tinyurl.com/yxqn4gjo from Leagle.com. FRESH FARMS: Class Cert. Bid in Yarger Suit Denied as Premature --------------------------------------------------------------- In the case, DANYALE YARGER, on behalf of herself and those similarly situated, Plaintiff, v. FRESH FARMS, LLC, Defendant, Case No. 2:19-CV-2767-JAR-JPO (D. Kan.), Judge Julie A. Robinson of the U.S. District Court for the District of Kansas (i) granted Fresh Farms' Motion to Set Aside Clerk's Entry of Default, and (ii) granted in part and denied in part without prejudice the Plaintiff's Motion to Certify Class and for Leave to Take Discovery Prior to Entry of Final Judgment. In the putative class action, Plaintiff Yarger alleges that Defendant Fresh Farms violated the Telephone Consumer Protection Act ("TCPA"). The Plaintiff filed her Complaint in the matter on Dec. 19, 2019. The Plaintiff, a Kansas resident, alleges that Fresh Farms, a South Dakota wholesaler that delivers fruit and vegetables to customers nationwide, violated the TCPA, by sending unsolicited, automatic text messages to the Plaintiff's and the putative class members' cellular phones. She alleges that she received an unsolicited text message advertisement from Fresh Farms on Nov. 7, 2019. Under Fed. R. Civ. P. 23(b)(2) and 23(b)(3), the Plaintiff seeks certification of a proposed class consisting of all persons throughout the United States who, at any time between Dec. 19, 2015 and the present: (1) subscribed to a cellular telephone service; and (2) received, at the telephone number assigned to such service, one or more automated text messages from Fresh Farms. The Plaintiff omits from the class definition the requirement—previously included in her Complaint -- that class members be persons for whom the Defendant did not claim to have obtained prior express written consent, or claim to have obtained prior express written consent in the same manner they claim to have obtained prior express written consent from the Plaintiff. She states that she omitted the requirement from the class definition because "express written consent" is an affirmative defense to a claim for violation of the TCPA. Yet Fresh Farms has not entered an appearance in the case, has not asserted an "express written consent" defense and has thereby waived the defense, and has not presented any evidence of such consent as to her or any other member of the proposed class. The Plaintiff seeks appointment as the class representative; her attorneys' appointment as the class counsel; declaratory and injunctive relief; an award of damages under Section 227(b)(3)(B); treble damages under Section 227(b)(3)(C); attorneys' fees, costs, and expenses under Rule 23; and pre- and post-judgment interest. She seeks up to $1,500 in damages for each text message sent in violation of the TCPA. On March 17, 2020, the Plaintiff filed an application for default, which showed that Fresh Farms had been served with the Complaint on Dec. 23, 2019, but had failed to appear or file an answer within the 21-day deadline set forth in Fed. R. Civ. P. 12(a). The Clerk entered default against Fresh Farms on March 18, 2020. On April 28, 2020, the Plaintiff filed a motion for class certification and for leave to take discovery prior to the entry of a final default judgment. Fresh Farms' response to that motion was initially due on May 12, 2020. On that date, Fresh Farms made its first appearance in the action, filing both a motion for an extension of time to respond to the Plaintiff's class certification motion and a motion to set aside the Clerk's entry of default. The Court extended Fresh Farms' deadline to respond to the Plaintiff's motion for class certification to June 11, 2020, and then later extended it again to July 6, 2020. After the Plaintiff opposed Fresh Farms' motion to set aside the Clerk's entry of default, however, Fresh Farms' attorney, Brian Baggott, filed a motion to withdraw from the matter. Mr. Baggott indicated that the primary reason for his withdrawal was that Fresh Farms wished to terminate his representation due to lack of financial resources. Mr. Baggott attached to his motion documentation that he advised Fresh Farms that it could not, as a limited liability company, represent itself in litigation. He also advised Fresh Farms of its July 6 deadline to oppose the Plaintiff's motion for class certification and for leave to take discovery prior to entry of a final default judgment. Magistrate Judge James P. O'Hara granted Mr. Baggott's motion to withdraw on June 18, 2020, and then on July 7, 2020, issued a Notice and Order to Fresh Farms warning that limited liability companies, like other corporate entities, may not proceed pro se nor be represented by a non-attorney corporate officer. Thus, by Aug. 3, 2020, new counsel must enter an appearance for Fresh Farms. Fresh Farms is warned that if it fails to obtain counsel to represent it in the action by the set date, default judgment likely will be entered against it. August 3 has passed, but no new counsel has entered an appearance on Fresh Farms' behalf. Although the Court twice extended Fresh Farms' deadline to respond to the Plaintiff's motion for class certification and for leave to take discovery, Fresh Farms did not respond, nor did it file a reply in support of its motion to set aside the Clerk's entry of default. Fresh Farms also failed to seek leave to answer out of time. The Clerk entered default against Fresh Farms after it failed to appear or defend within 21 days of receiving notice of the Plaintiff's Complaint. The case is before the Court on Fresh Farms' Motion to Set Aside Clerk's Entry of Default and the Plaintiff's Motion to Certify Class and for Leave to Take Discovery Prior to Entry of Final Judgment. While Fresh Farms has filed neither a reply in support of it motion to set aside default nor a response in opposition to the Plaintiff's motion for class certification and for leave to take discovery, the time for doing so has passed and the Court is prepared to rule. Fresh Farms submitted the declaration of its CEO, Irina Kleinsasser, stating that when the TCPA lawsuit was filed and served, Fresh Farms did not have the financial resources to consult and to hire a TCPA attorney to prepare and file a response or to otherwise represent Fresh Farms in the lawsuit. Instead, Fresh Farms "consulted" with a local South Dakota attorney who had "no experience with the TCPA." The Plaintiff counters that after Fresh Farms was served with the summons and Complaint on Dec. 23, 2019, it chose to ignore the lawsuit for months. She points out that Kleinsasser's declaration tacitly acknowledges that Fresh Farms was aware of the lawsuit at the time of service. Judge Robinson agrees with the Plaintiff that Fresh Farms' failure to appear in the case until months after service amounts to culpable conduct rather than inadvertence or simple neglect. Its CEO does not appear to be a stranger to the legal process. Yet despite having knowledge of the suit at the time it was filed in December 2019, or at the latest in mid-February 2020, Fresh Farms failed to appear, seek an extension of time to respond, or otherwise communicate with the Court. Fresh Farms' explanation that it did not have the resources to hire a "TCPA attorney" is not a persuasive justification for having failed to respond until nearly five months after service. No particular TCPA expertise is required to seek an extension of time to respond, nor does Fresh Farms' contention that it lacks the resources to participate in this case excuse it from its obligations under the Federal Rules of Civil Procedure. Further, despite filing a motion to set aside the Clerk's entry of default, Fresh Farms never sought leave to answer out of time. In light of Fresh Farms' continuing failure to participate in the case, and because the litigation has been essentially halted due to Fresh Farms' unresponsiveness, Judge Robinson denied Fresh Farms' motion to set aside the Clerk's entry of default. Turning to the Plaintiff's Motion for Class Certification and for Leave to Take Discovery Prior to Entry of Final Judgment, Judge Robinson finds that the Plaintiff's request for class certification is premature. Regardless of whether the Plaintiff intended her early motion for class certification merely as a placeholder -- and despite the fact that the Plaintiff's well-pleaded allegations are deemed admitted due to Fresh Farms' default -- Judge Robinson cannot conduct the required, rigorous Rule 23 analysis without the benefit of a more developed factual record. Although the Plaintiff would certainly fit within the broader group of persons to whom Fresh Farms allegedly sent text advertisements both with and without prior written consent, the Court presently lacks a definite understanding of the nature of the class Plaintiff seeks to represent, and the unclear and/or shifting class definition complicates the application of Rule 23 at this early stage. In her discretion, Judge Robinson finds that a ruling on whether the requirements of Rule 23(a) and (b) are satisfied should await additional discovery on the scope and contours of the purported class and a renewed motion for class certification. While the Plaintiff's motion for class certification is premature, Judge Robinson finds that the Plaintiff's request for leave to conduct discovery prior to the entry of a final default judgment is well-taken. It would be unjust to prevent her from attempting to demonstrate the elements for certification of a class without the benefit of discovery, due to the Defendant's failure to participate in the case. The Judge, therefore, granted the Plaintiff 90 days from the date of the Order to conduct such discovery, after which the Plaintiff may renew her motion for class certification, with clarification of the proposed class, and ultimately seek a final default judgment. For these reasons, Judge Robinson granted in part and denied in part without prejudice the Plaintiff's Motion to Certify Class and for Leave to Take Discovery Prior to Entry of Final Judgment. The motion for leave to take discovery is granted; the motion to certify is denied without prejudice. A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is available at https://tinyurl.com/yy2udejy from Leagle.com. GARDNER-WEBB UNIVERSITY: Blind Can't Access Web Site, Hedges Says ----------------------------------------------------------------- DONNA HEDGES, ON BEHALF OF HERSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, v. GARDNER-WEBB UNIVERSITY, Case No. 1:20-cv-08717 (S.D.N.Y., Oct. 19, 2020), asserts claims against the Defendant for its failure to design, construct, maintain, and operate its Web site to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. The Defendant's denial of full and equal access to its Web site, https://gardner-webb.edu/, and therefore denial of its goods and services offered thereby, is a violation of the Plaintiff's rights under the Americans with Disabilities Act, according to the complaint. Because the Defendant's Web site is not equally accessible to blind and visually-impaired consumers, the Defendant violates 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. The Plaintiff is a visually-impaired and legally blind person, who requires screen-reading software to read Web site content using his computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments, who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people, who meet this definition have limited vision. Others have no vision. The Defendant operates the Gardner-Webb online college as well as the Gardner-Webb website and advertises, markets, and/or operates in the State of New York and throughout the United States.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Jeffrey@gottlieb.legal danalgottlieb@aol.com GLADIATOR ENERGY: Pruneda Sues Over Unpaid Overtime Wages --------------------------------------------------------- Eric Pruneda, Individually and on behalf of All Others Similarly Situated v. GLADIATOR ENERGY, LLC, Case No. 4:20-cv-03556 (S.D. Tex., Oct. 16, 2020), is brought under the Fair Labor Standards Act, for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of the Defendant's failure to pay the Plaintiff overtime compensation for all hours worked in excess of 40 hours per week. The Plaintiff regularly worked over forty hours in a one-week period. The Plaintiff estimates he generally worked between 90 and 100 hours per week. Despite the entitlement of the Plaintiff to overtime payments under the FLSA, the Defendant failed to pay the Plaintiff an overtime rate of one and one-half times his regular rate of pay for all hours worked over 40 in each week. The Defendant's failure to pay the Plaintiff all overtime wages owed was willful, says the complaint. The Plaintiff was employed by the Defendant as a Service Supervisor from February of 2019 until March of 2020. Gladiator Energy LLC is located in Houston, TX, United States and is part of the Business Services Sector Industry.[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 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: merideth@sanfordlawfirm.com april@sanfordlawfirm.com GOODFELLA'S PIZZA: Vineyard Sues to Recover Unpaid Wages -------------------------------------------------------- Angel Vineyard, individually and on behalf of similarly situated persons v. GOODFELLA'S PIZZA, INC. and AARON FOX, Case No. 3:20-cv-00441 (E.D. Tenn., Oct. 16, 2020), is brought under the Fair Labor Standards Act, seeks to recover unpaid wages owed to Plaintiff and similarly situated delivery drivers employed by the Defendants at its Domino's stores. The Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, the Defendants use a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks, says the complaint. The Defendants operate numerous Domino's Pizza franchise stores. The Plaintiff was employed by the Defendants from August of 2018 to September of 2020 as a delivery driver at the Defendants' Domino's stores. [BN] The Plaintiff is represented by: J. Forester, Esq. FORESTER HAYNIE PLLC 400 N. St. Paul Street, Suite 700 Dallas, TX 75201 Phone: (214) 210-2100 Fax: (214) 346-5909 Email: jay@foresterhaynie.com GOOGLE LLC: Valencia-Torres Sues Over Illegal Mobile Gambling Games ------------------------------------------------------------------- MARIA VALENCIA-TORRES, on behalf of himself and all others similarly situated, v. GOOGLE, LLC and GOOGLE PAYMENT CORP., Case No. 2:20-cv-01651-SGC (N.D. Ala., Oct. 21, 2020), seeks to recover money lost to illegal gambling pursuant to Section 87-1-5 of the Code of Mississippi. According to the complaint, Google promotes, enables, and profits from games downloaded from its Google Play Store and played by numerous Mississippi residents that constitute illegal gambling under the statutory law and the strong public policy of the state of Mississippi. Ms. Maria Valencia-Torres is an adult resident citizen of the state of Alabama, residing in Shelby County, Alabama. Google, LLC is an American multinational technology company that specializes in Internet-related services and products, which include online advertising technologies, search engine, cloud computing, software, and hardware. Google Payment Corp. provides in-app payment processing services to Android app developers and Android users, collecting a 30% commission on most in-app purchases such as the ones made the basis of this lawsuit.[BN] The Plaintiff is represented by: D. Frank Davis, Esq. John E. Norris, Esq. Wesley W. Barnett, Esq. Dargan M. Ware, Esq. DAVIS & NORRIS, LLP 2154 Highland Avenue South Birmingham, AL 35205 Telephone: 205 930 9900 Facsimile: 205 930 9989 E-mail: fdavis@davisnorris.com jnorris@davisnorris.com wbarnett@davisnorris.com dware@davisnorris.com GOOGLE: Herrera Sues Over Android Mobile App Market Monopoly ------------------------------------------------------------ KONDOMAR HERRERA, on behalf of herself and all others similarly situated, v. GOOGLE LLC, a Delaware limited liability company, Case No. 5:20-cv-07365 (N.D. Cal., Oct. 20, 2020), is a class action complaint for damages and injunctive relief against Google for violations of Sections 1 and 2 of the Sherman Act, and for violations of the California's Cartwright Act. The Plaintiff contends that Google has abused and maintained its monopoly power in the Android Mobile App Distribution Market through restrictive, non-negotiable agreements with mobile app developers -- who must choose between complying with Google's draconian terms of use or exit Google's ecosystem. To have a mobile app listed on the Google Play Store, mobile app developers must agree and have agreed with Google to not license their mobile app to any rival app stores. Indeed, Google's developer agreements mandate that developers may not "make available any Product that has a purpose that facilitates the distribution of software applications and games for use on Android devices outside of Google Play." This has enabled Google to secure the most desired and highest quality mobile apps while simultaneously foreclosing access to mobile apps by rival app stores, the Plaintiff adds. Kondomar Herrera is a natural person who resides in Queens County, New York. The Plaintiff purchased and paid Google for one or more apps through the Google Play Store and purchased and paid Google directly for in-app digital content through an app purchased on the Google Play Store within the last four years. Google owns and operates the largest app store on earth, the Google Play Store. The Google Play Store is available to all mobile device users running Google's Android operating system. The Google Play Store offers users the choice of more than 2.96 million apps, and, in 2019, users worldwide downloaded those apps more than 84.3 billion times.[BN] The Plaintiff is represented by: Laurence D. King, Esq. Mario M. Choi, Esq. Robert N. Kaplan, Esq. Hae Sung Nam, Esq. Frederic S. Fox, Esq. Donald R. Hall, Esq. Aaron L. Schwartz, Esq. KAPLAN FOX & KILSHEIMER LLP 1999 Harrison Street, Suite 1560 Oakland, CA 94612 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com mchoi@kaplanfox.com rkaplan@kaplanfox.com hnam@kaplanfox.com ffox@kaplanfox.com dhall@kaplanfox.com aschwartz@kaplanfox.com H & L PIZZA: Miller-Peppard Sues Over Unpaid Minimum and OT Wages ----------------------------------------------------------------- MITCHELL MILLER-PEPPARD, individually and on behalf of similarly situated persons, v. H. AND L. PIZZA, INC. d/b/a Domino's Pizza and HASSAN JANBAKHSH, individually, Case No. 6:20-cv-00213-CHB (E.D. Ky., Oct. 21, 2020), is a collective action lawsuit under the Fair Labor Standards Act (FLSA), the Kentucky Wage and Hour Act, and the Kentucky common law to recover unpaid minimum wages and overtime hours owed to the Plaintiff and similarly situated delivery drivers employed by the Defendants at its Domino's Pizza stores. The Defendants operate numerous Domino's Pizza franchise stores. The Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, the Defendants use a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the minimum wage during some or all workweeks, the Plaintiff contends.[BN] The Plaintiff is represented by: David O'Brien Suetholz, Esq. Joe P. Leniski, Jr., Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 515 Park Avenue Louisville, KY 40208 Telephone: (502) 636-4333 E-mail: davids@bsjfirm.com joeyl@bsjfirm.com HANOVER INSURANCE: Fails to Reimburse Medical Expenses, MSP Claims ------------------------------------------------------------------ MSP RECOVERY CLAIMS, SERIES LLC, AND MSPA CLAIMS 1, LLC, v. THE HANOVER INSURANCE GROUP, INC., CITIZENS INSURANCE COMPANY OF AMERICA, MASSACHUSETTS BAY INSURANCE COMPANY, Case No. 1:20-cv-24330 (S.D. Fla., Oct. 21, 2020), alleges that the Defendants have failed to honor the Plaintiffs' primary payer obligations under the Medicare Secondary Payer provisions of the Social Security Act, by failing to pay for or reimburse medical expenses resulting from injuries sustained in automobile and other accidents. As a result of the Defendants' misconduct, those accident-related medical expenses were paid by Medicare Advantage Organizations, as well as first tier and downstream actors who ultimately paid for Medicare beneficiaries' accident-related medical expenses pursuant to risk-sharing agreements authorized under 42 U.S.C. section 1395w-22(b)(4) (these Medicare Advantage payors are hereinafter referred to collectively as "MA Plans"). Further, the Defendants have also failed to reimburse the Plaintiffs and the Class Members for accident-related medical expenses upon entering into settlements with Medicare beneficiaries, says the complaint. As a result, the cost of those accident-related medical expenses has been borne by Medicare and MA Plans to the detriment of the Medicare Trust Funds and the public. The Plaintiffs and the class are entitled to be paid or reimbursed at industry standard rates by the defendant primary payers. The Defendants are auto and/or other liability insurers that provide either no-fault or med-pay insurance to their customers, including Medicare beneficiaries enrolled under Part C of the Medicare Act.[BN] The Plaintiffs are represented by: John H. Ruiz, Esq. Michael O. Mena, Esq. MSP RECOVERY LAW FIRM 2701 S. LeJeune Road, 10th Floor Coral Gables, FL 33134 Telephone: (305) 614-2222 E-mail: jruiz@msprecoverylawfirm.com mmena@msprecoverylawfirm.com - and - Francesco Zincone, Esq. Eduardo Bertran, Esq. J. Alfredo Armas, Esq. ARMAS BERTRAN ZINCONE 4960 SW 72nd Avenue, Suite 206 Miami, FL 33155 Telephone: (305) 661-2021 E-mail: fzincone@armaslaw.com ebertran@armaslaw.com alfred@armaslaw.com HARBOR FREIGHT: Jack Stand Lawsuit Filed After Recall ----------------------------------------------------- carcomplaints.com reports that a Harbor Freight jack stand lawsuit alleges 1.7 million stands in the U.S. were sold with defects that made the jack stands too dangerous to use. The jack stand class action lawsuit includes all consumers nationwide who purchased Harbor Freight jack stands with item numbers 56371, 61196 or 61197. The lawsuit follows a Pittsburgh Automotive jack stand recall of 3-ton and 6-ton heavy duty steel jack stands sold by Harbor Freight. However, consumers who suffered property damage or injuries caused by the jack stands are not included in the class action lawsuit. According to the lawsuit, every jack stand has manufacturing defects which cause the ratchet teeth on the jack stand lifting extension post to inconsistently engage the pawl deep enough. In addition, the 3-ton jack stands allegedly have inconsistent location indexing of the pawl armature holes. Georgia plaintiff Markeith Mitchell purchased the Pittsburgh Automotive 6-ton jack stands (part number 61197) and used them a few times but allegedly experienced slip on the ratcheting mechanism while lifting his truck. Mr. Mitchell says he had safety mechanisms in place to catch the truck before it slammed to the ground. The plaintiff says he stopped using the jack stands because he felt they were dangerous. According to the lawsuit, Mitchell tried to return the jack stands to the Harbor Freight store but a customer representative told him the jack stands were no longer under warranty and couldn't be returned. The plaintiff alleges he received no value from the stands and he tossed them out because they were too dangerous to use. The lawsuit says the jack stands are unsafe due to manufacturing problems caused by aging in the tooling. The last thing a consumer needs from a jack stand is for it to collapse while under load, but the class action alleges that is exactly what makes the Harbor Freight stands so dangerous. The lawsuit says sales of the jack stands were negligent because the stands were "unmerchantable" and unfit for their intended purposes. The jack stands were also allegedly unreasonably dangerous and caused damage to all buyers because the "jack stands were worthless in the condition they were purchased." The Harbor Freight jack stand lawsuit brings claims for breach of warranty, negligence and products liability. The Harbor Freight jack stand lawsuit was filed in the U.S. District Court for the Middle District of Georgia, Macon Division: Mitchell, et al., v. Harbor Freight Tools USA, Inc. The plaintiff is represented by Steven N. Newton, LLC, and Davis & Norris, LLP. [GN] HEALTHCARE SERVICES: Continues to Defend E.D. Pa. Securities Suit ----------------------------------------------------------------- Healthcare Services Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 23, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a putative shareholder class action suit in the U.S. District Court for the Eastern District of Pennsylvania. On March 22, 2019, a putative shareholder class action lawsuit was filed against the Company and its Chief Executive Officer in the U.S. District Court for the Eastern District of Pennsylvania. The initial complaint, which was filed by a plaintiff purportedly on behalf of all purchasers of our securities between April 11, 2017 and March 4, 2019, alleges violations of the federal securities laws in connection with the matters related to the company's earnings per share (EPS) calculation practices. On September 17, 2019, the complaint was amended to, among other things, extend the Class Period to cover the period between April 8, 2014 and March 4, 2019, and to name additional individuals affiliated with the Company as defendants. The lead plaintiff seeks unspecified monetary damages and other relief on behalf of the plaintiff class. Healthcare Services said, "While the Company is vigorously defending against all litigation claims asserted, this litigation—along with the ongoing SEC investigation—could result in substantial costs to the Company and a diversion of the Company's management's attention and resources, which could harm its business. In addition, the uncertainty of the pending lawsuit or potential filing of additional lawsuits could lead to more volatility and a reduction in the Company's stock price. At this time the Company is unable to reasonably estimate possible losses or form a judgment that an unfavorable outcome is either probable or remote." No further updates were provided in the Company's SEC report. Healthcare Services Group, Inc., incorporated on November 22, 1976, provides management, administrative and operating services to the housekeeping, laundry, linen, facility maintenance and dietary service departments of the healthcare industry, including nursing homes, retirement complexes, rehabilitation centers and hospitals located throughout the United States. The Company operates through two segments: housekeeping, laundry, linen and other services (Housekeeping), and dietary department services (Dietary). The company is based in Bensalem, Pennsylvania. HEARING HELP: Laurie Loses Bid to Dismiss Hoffman TCPA Suit ----------------------------------------------------------- In the case, MARK HOFFMAN, et al., Plaintiffs, v. HEARING HELP EXPRESS INC., et al., Defendants, Case No. C19-5960RBL (W.D. Wash.), Judge Ronald B. Leighton of the U.S. District Court for the Western District of Washington, Tacoma, (i) granted in part and denied in part the Plaintiff Hoffman's Motion to Compel; (ii) Pro se Defendant Lewis Lurie's Motion to Dismiss for Lack of Personal Jurisdiction; (iii) denied as moot Hoffman's responsive Motion for Leave to Conduct Jurisdictional Discovery; and (iv) granted Hoffman's Motion to File Confidential Documents Under Seal or In Open Court. The case is a putative class action under the Telephone Consumer Protection Act ("TCPA"). Hoffman claims Hearing Help made three unwanted and unauthorized sales calls to his cellular phone, including one with a "pause," indicating the use of an automatic telephone dialing system ("ATDS"), despite the fact his number is on the national Do Not Call registry and he did not consent to such a call. He seeks to represent two classes of Plaintiffs: one class who received calls directly from Hearing Help (which he calls the "Direct Liability Class") and a second class who received calls from Hearing Help's agent, Triangular Media Corp. ("Vicarious Liability Class"). Hoffman has since added Triangular and its owner/operator, Lurie, as the Defendants. Hoffman asks the Court to compel Hearing Help to produce documents (call record details) related to the Direct Liability Class. He seeks records of every call made by Hearing Help since 2015. Hoffman claims that he needs that information to identify calls made using the "Genesys" system like the one used to make the call to him. Defendant Lurie seeks dismissal of Hoffman's TCPA claims against him, arguing that he is a Florida resident with no Washington contacts. He claims that even if the Court has personal jurisdiction over Triangular, it does not have jurisdiction over him. Indeed, he denies any ownership interest in Triangular. Hoffman asks for leave to conduct jurisdictional discovery into Lurie's Washington contacts, if the Court determines that he has thus far failed to establish the Court's jurisdiction over Lurie. Finally, Hoffman has filed documents in response to Lurie's Motion to Dismiss that Hearing Help previously designated as "confidential." He asks the Court to determine whether Hearing Help has met its burden of demonstrating that these documents should be filed under seal. Hearing Help has not responded. In his Motion to Compel, Hoffman seeks five revised categories of information, instead of his original 10, about all Hearing Help outgoing calls since 2015: (1) the date and time each call was placed, (2) the number of calls placed, (3) the telephone numbers called, (4) the telephone numbers for the outgoing telephone lines used to place calls, and (5) the identity of the companies or carriers that were used to place automated calls. He claims that such information will inform the numerosity, commonality and typicality aspects of his Rule 23 class certification efforts. Judge Leighton agrees that as revised, Hoffman's request seeks discoverable information discoverable and that it is not unduly burdensome to produce. He granted in part as to these five categories of calls placed by Hearing Help using leads provided by Triangular and other vendors, or on its own, to prospective customers. Hearing Help need not produce information on calls unrelated to telemarketing. In his Motion to Dismiss, Lurie argues that the Court has no personal jurisdiction over him, based on his claim that he has no ownership of Triangular and his claim that whatever control he exerted over its activities occurred in Florida. He also argues he is not personally liable for any violation by Triangular. Judge Leighton denied Lurie's Motion to Dismiss. Hearing Help has met its jurisdictional burden of demonstrating that Lurie purposefully availed himself of the benefits of doing business in Washington by expressly aiming his conduct. Hoffman also argues persuasively that the fiduciary shield doctrine does not apply where the individual defendant was the "primary participant" in the alleged wrongdoing. Hoffman's Motion for Leave to Conduct Jurisdictional Discovery is denied as moot. Finally, Judge Leighton is aware that the Local Rules' mechanism for filing one's adversary's confidential information under seal is cumbersome. Hearing Help designated documents it produced as "confidential," and now Hoffman wants to use those documents in his motions practice. He properly met and conferred, and Hearing Help would not agree to his filing some of the information in open court. He filed the documents under seal, but asks the Court to determine whether they were in fact confidential. He does not argue that they are not confidential, and Hearing Help has not responded to his motion, explaining why they should be confidential. The Court held that the "Motion to Seal" is procedurally proper, but it also appears that neither side cares very much about the outcome, making it unnecessary. The Motion is granted and the documents, which are generally invoices from Triangular to Hearing Help, and email communications between them, may be filed in open Court, rules Judge Leighton. Since Judge Leighton is retiring from the federal bench at the end of August 2020, following resolution of the recently filed Motion to Amend, the case is transferred to a new Judge, and the Court will set a schedule consistent with its own calendar. The Class Certification deadline (September 30) was stricken. A full-text copy of the Court's Aug. 12, 2020 Order is available at https://tinyurl.com/y5ko5nu5 from Leagle.com. HETERO USA: Faces KPH Suit Over Bystolic Market Conspiracy ---------------------------------------------------------- KPH HEALTHCARE SERVICES, INC., a/k/a KINNEY DRUGS, INC., individually and on behalf of all others similarly situated, v. HETERO USA INC., HETERO LABS LTD., HETERO DRUGS LTD., TORRENT PHARMACEUTICALS LTD., TORRENT PHARMA INC., ASCEND LABORATORIES, LLC, ALKEM LABORATORIES LTD., INDCHEMIE HEALTH SPECIALTIES PRIVATE LTD., GLENMARK GENERICS INC., GLENMARK GENERICS LTD., GLENMARK PHARMACEUTICALS S.A., AMERIGEN PHARMACEUTICALS, INC., AMERIGEN PHARMACEUTICALS, LTD., WATSON LABORATORIES, INC. (NV), WATSON LABORATORIES, INC. (DE), WATSON LABORATORIES, INC. (NY), WATSON LABORATORIES, INC. (CT), WATSON PHARMA, INC., WATSON PHARMACEUTICALS INC., ACTAVIS, INC., TEVA PHARMACEUTICAL INDUSTRIES LTD., and TEVA PHARMACEUTICALS USA, INC., Case No. 1:20-cv-08756 (S.D.N.Y., Oct. 20, 2020), is a class action complaint brought on behalf of the Plaintiff and a putative Class of direct purchasers of Bystolic (nebivolol hydrochloride or nebivolol HCl) during the period from July 9, 2016 until the anticompetitive effects of the Defendants' conduct cease. The Plaintiff alleges that the Defendants engaged in anticompetitive conduct in the Bystolic market in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. sections 1, 2. As a result of the Defendants' anticompetitive conduct, the Plaintiff and Class Members sustained damages by paying more for Bystolic than they otherwise would have paid in the absence of the Defendants' unlawful conduct. The Plaintiff seeks redress for overcharge damages sustained as a result of the Defendants' antitrust violations. KPH operates retail and online pharmacies in the Northeast under the name Kinney Drugs, Inc. KPH is the assignee of McKesson Corporation, which directly purchased branded Bystolic during the Class Period and resold it to KPH. The Defendants are pharmaceuticals companies engaged in the manufacture and distribution of Bystolic drug.[BN] The Plaintiff is represented by: Dianne M. Nast, Esq. NASTLAW LLC 1101 Market Street, Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com - and - Michael L. Roberts, Esq. ROBERTS LAW FIRM, P.A. 20 Rahling Circle Little Rock, AR 72223 Telephone: (501) 821-5575 Facsimile: (501) 821-4474 E-mail: mikeroberts@robertslawfirm.us - and - Joseph M. Vanek, Esq. SPERLING & SLATER, P.C. 55 W. Monroe St, Suite 3200 Chicago, IL 60603 Telephone: (312) 641-3200 E-mail: jvanek@sperling-law.com HILLSHIRE BRANDS: Wargo Files False and Mislabeling Class Action ---------------------------------------------------------------- Christopher Wargo, individually and on behalf of all others similarly situated v. The Hillshire Brands Company, Case No. 7:20-cv-08672-NSR (S.D.N.Y., Oct. 17, 2020), seeks damages and an injunction to stop the Defendant's false and misleading marketing practices with regards to its turkey sausage, egg white and cheese breakfast sandwiches within a purported "whole grain" English muffin under their Jimmy Dean brand. The relevant front label representations include "English Muffin," "Made With Whole Grain*," "18g Protein Per Serving - Excellent Source of Protein," a picture of the Product and "Turkey Sausage, Egg White & Cheese Sandwich." Though the Product's front label prominently states "MADE WITH WHOLE GRAIN," it is misleading because the primary ingredient in the sandwich portion of the Product is "ENRICHED WHEAT FLOUR," shown in the very fine print of the ingredient list on the side panel, asserts the Plaintiff. The complaint further relates that the marketing of the Product is misleading because the bread portion contains mostly non-whole grains and contains only a small amount of whole grains. The Defendant's branding and packaging of the Product is designed to--and does--deceive, mislead, and defraud plaintiff and consumers. The Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers. Had the Plaintiff and class members known the truth, they would not have bought the Product or would have paid less for them, says the complaint. The Plaintiff purchased the Product within her district and/or State for personal consumption. The Hillshire Brands Company manufactures and markets food products for retail and foodservice markets.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Blvd., Suite 311 Great Neck, NY 11021 Phone: (516) 303-0552 Facsimile: (516) 234-7800 Email: spencer@spencersheehan.com HOMEADVISOR INC: Court Orders Arbitration in Margulis TCPA Suit --------------------------------------------------------------- In the case, MARILYN MARGULIS and MAX MARGULIS, individually and on behalf of all others similarly situated, Plaintiff(s), v. HOMEADVISOR, INC., and JOHN DOES 1-10, Defendant(s), Case No. 4:19-cv-00226-SRC (E.D. Mo.), Judge Stephen R. Clark of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted HomeAdvisor's Motion to Compel Arbitration. On behalf of his wife, Marilyn, attorney Max Margulis submitted a service request on the website of Defendant HomeAdvisor. In doing so, he gave HomeAdvisor his phone number and agreed to the Terms and Conditions of the website. The Terms and Conditions included an agreement to arbitrate and a class action waiver. The Plaintiffs allege they later received unsolicited telemarketing phone calls because they gave HomeAdvisor their phone number, and bring claims under the Telephone Consumer Protection Ac ("TCPA") and Missouri's No-Call Law. HomeAdvisor's business includes providing free referrals through its website by matching customer requests for various types of service work with member service professionals who are part of its referral network. As part of the sunroom project, in September 2017, Max requested quotes for painting service through HomeAdvisor's website. Through HomeAdvisor's online service request process, Max provided HomeAdvisor with his phone number, email address, and a description of the requested service, i.e., painting of the sunroom baseboards. In order to complete online submission of a service request through HomeAdvisor's website, Max navigated to the submission webpage and clicked a button labeled "View Matching Pros." It is not possible to complete submission of a service request on the HomeAdvisor website without navigating to the submission page and clicking on the "View Matching Pros" button. At the time Max submitted the service request to HomeAdvisor, the webpage displayed, directly underneath the "View Matching Pros" button, the following text: "By submitting this request, you are agreeing to our Terms & Conditions." Clicking on any of the "Terms & Conditions" hyperlinks would direct the user to a webpage containing HomeAdvisor's complete Terms and Conditions. At the time Max submitted the service request, HomeAdvisor's Terms and Conditions included the arbitration provision. In response to Max's service request, HomeAdvisor submitted the referral to three contractors. The Plaintiffs then received phone calls from the contractors who informed them that they received the request for a service quote from HomeAdvisor. They chose not to use any of the contractors referred by HomeAdvisor because their service quotes were higher than who Plaintiffs ended up using. The Plaintiffs allege that they began to receive unsolicited telemarketing calls in 2018 because they shared their phone number with HomeAdvisor. Accordingly, they initiated the present lawsuit against HomeAdvisor, asserting violations of the TCPA and Missouri's No-Call Law. HomeAdvisor filed its first Motion to Compel Arbitration before the Parties conducted any discovery. It moved to compel arbitration because the Plaintiffs used HomeAdvisor's website and thereby agreed to HomeAdvisor's Terms and Conditions, which include an agreement to arbitrate. The Plaintiffs dispute that they ever consented to the Terms and Conditions or otherwise agreed to arbitration. Thus, the threshold question the Court must address is whether the Parties entered into a valid arbitration agreement. The Court denied that Motion because Max's affidavit stating that he "did not recall" setting up an account with HomeAdvisor precluded a conclusive showing that the service request submitted in Max's name was actually submitted by him. It then permitted a period of discovery pertaining solely to the issues of contract formation and whether the Parties agreed to arbitration. That discovery conclusively shows that Max set up a HomeAdvisor account. Judge Clark takes judicial notice of the fact that the Plaintiffs are frequent litigants under the TCPA. Mr. Margulis has testified that for the last seven years his practice has been exclusively handling TCPA actions. He or his wife have been plaintiffs in approximately 208 individual suits filed under the TCPA. Between 1996 through June 29, 2004, Mr. Margulis has filed a total of 1,215 lawsuits under the TCPA. Max admits that he used the HomeAdvisor website, that he submitted a service request by clicking the 'View Matching Pros.' Despite these admissions, Margulis argues that he is not bound by the Terms and Conditions because he never actually clicked the hyperlink to view them and because the hyperlink was not underlined. Judge Clark finds that Max agreed to the Terms and Conditions when he submitted the service request. The Plaintiffs received actual benefit from HomeAdvisor's services, notwithstanding the fact they found cheaper contractors elsewhere. As a contractor-referrer, them Plaintiffs more information on which to base their choice of contractor than they would have had otherwise. And, Marilyn was the direct beneficiary of that information because Max requested HomeAdvisor's services on Marilyn's behalf. Accordingly, Marilyn is bound by the Terms and Conditions as a third-party beneficiary. To hold otherwise would allow anyone to avoid HomeAdvisor's Terms and Conditions simply by asking a third-party to use the website on their behalf. Having determined that both Max and Marilyn are bound by the Terms and Conditions, Judge Clark next considers whether the Parties thereby agreed to arbitration. The Terms and Conditions include an arbitration clause providing that arbitration will be the "exclusive means of resolving any dispute" between HomeAdvisor and the Plaintiffs. The Plaintiffs do not dispute the validity of the arbitration provision except to repeat their already-rejected arguments that they are not bound by the Terms and Conditions. Accordingly, Judge Clark finds that the arbitration provision in the Terms and Conditions constitutes a valid agreement to arbitrate between the Parties. The Plaintiffs next argue that the arbitration agreement does not apply to the present dispute because their TCPA claims are beyond the scope of the arbitration provision. Judge Clark does not reach the question because the arbitration agreement delegates questions of arbitrability to the mediator. The Plaintiffs are bound by the Terms and Conditions which incorporate the Arbitration Procedures by express reference. The Arbitration Procedures' incorporation of the AAA rules requires the Court to refer all jurisdictional and arbitrability disputes to the arbitrator, including the formation, existence, validity, or scope of the Agreement. It includes the question of whether the agreement governs the Plaintiffs' TCPA claims. Therefore, Judge Clark must compel arbitration. Because he granted HomeAdvisor's Motion to Compel Arbitration, Judge Clark denied without prejudice HomeAdvisor's alternative Motion to Enforce Class Action Waiver. If the arbitrator should decide that the dispute is not arbitrable and the stay of the matter is lifted, then HomeAdvisor may at that time file a renewed Motion to Enforce Class Action waiver. Finally, Judge Clark considers the Plaintiffs' Motion to Strike HomeAdvisor's Reply Statement of Uncontroverted Material Facts. The Court instructed HomeAdvisor to include with its renewed Motion to Compel Arbitration a Statement of Uncontroverted Material Facts, as described in Local Rule 4.01(e). HomeAdvisor did so. The Plaintiffs filed a Response to HomeAdvisor's Statement of Facts. HomeAdvisor then filed its Reply to the Plaintiffs' Response. The Plaintiffs move to strike HomeAdvisor's Reply, arguing that it was improper without leave of Court. HomeAdvisor responds that the Reply was appropriate given the Plaintiffs' largely argumentative responses to HomeAdvisor's Statement of Facts, and argues that a motion to strike may only be directed to pleadings. Alternatively, HomeAdvisor requests leave of Court to file the Reply. The Court granted HomeAdvisor's alternative request for leave to file the Reply. Accordingly, Judge Clark denied the Plaintiffs' motion to strike, as moot. The matter is stayed pending arbitration. The Parties are directed to jointly file a status report within 14 days of final entry of an arbitration award or other termination of the arbitration proceedings. A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is available at https://tinyurl.com/y6b4432z from Leagle.com. HYATT HOTELS: Germak Sues Over Unlawful Restaurant Service Charge ----------------------------------------------------------------- LAURA MARIE GERMAK, on behalf of herself and all others similarly situated, v. HYATT HOTELS CORPORATION, HYATT CORPORATION, HT-MIAMI BEACH, LLC, and THE CONFIDANTE MIAMI BEACH, Case No. 1:20-cv-24341-XXXX (S.D. Fla., Oct. 21, 2020), is a consumer class action brought on behalf of people who, from four years prior to filing of this complaint through and including the date of judgment, purchased food and/or drinks at a restaurant, bar, mini-bar, lounge and/or other public food service establishment owned, operated and/or controlled by Defendants in the State of Florida and were charged a gratuity or service charge in violation of Florida Statute 509.214, and/or in violation of the Miami-Dade County Code of Ordinances, Sec. 8A-110.1(1) for the properties in Miami-Dade County, and the Florida Unfair Deceptive Trade Practices Act. The Plaintiff contends that the Defendants violated these Florida statutes in a number of ways, including unlawfully including an automatic, mandatory gratuity or service charge of an amount equal to or approximately 20% of the charges for food and beverages without providing the statutorily required notice; and/or presenting the notice of an automatic gratuity or service charge in small, hard to read type. On October 7, 2020, the Plaintiff went to a restaurant located in the Confidante Miami Beach hotel. The restaurant displayed the restaurant's menu along with a QR code on a single television screen by the bar that brought up an electronic version of the restaurant's menu on her smartphone by using the device's camera. The Plaintiff ordered food and drink items from the menu presented to her on the television screen. When she was done eating, the Plaintiff was presented with a restaurant bill. The check appeared to indicate that the restaurant was named "Soiree." An automatic service charge of 20% was included with the charges for food and beverages on the check, under the subtotal for the meal items, listed as "20% SVC CHG." The Plaintiff did not see any notice on the restaurant's menu she reviewed that an automatic gratuity or service charge of any amount would be added to Plaintiff's check, says the complaint. The Defendants own, operate, manage, franchise and/or control 60 hotel properties in the State of Florida including Chesterfield Hotel Palm Beach, Grand Hyatt Tampa Bay, Hyatt Centric Brickell Miami, Hyatt Centric Key West Resort & Spa, and Hyatt Centric Las Olas Fort Lauderdale.[BN] The Plaintiff is represented by: David M. Marco, Esq. SMITHMARCO, P.C. 55 W. Monroe Street, Suite 1200 Chicago, IL 60603 Telephone: (312) 546-6539 Facsimile: (888) 418-1277 E-Mail: dmarco@smithmarco.com - and - James A. Francis, Esq. FRANCIS & MAILMAN, P.C. 1600 Market Street, Suite 2510 Philadelphia, PA 19103 Telephone: (215) 735-8600 Facsimile: (215) 940-8000 E-mail: jfrancis@consumerlawfirm.com - and - Lewis J. Saul, Esq. LEWIS SAUL & ASSOCIATES, P.C. 29 Howard Street, 3rd Floor New York, NY 10013 Telephone: (212) 376-8450 Facsimile: (212) 376-8447 E-mail: lsaul@lewissaul.com HYUNDAI: Recalls Vehicles in United States to Brake-Fluid Leak -------------------------------------------------------------- Brad Anderson, writing for CarScoops, reports that Hyundai and Kia are recalling roughly 591,000 vehicles in the United States due to a brake-fluid leak. A recall notice from the National Highway Traffic Safety Administration (NHTSA) reveals that due to a suspected supplier quality deviation issue, brake fluid may leak internally inside the Hydraulic Electronic Control ECU (HECU) which, over time, could trigger an electrical short. An electrical short in the HECU increases the risk of an engine compartment fire while driving -- and Hyundai has added that an engine fire could even happen if the car is not turned on. Vehicles involved in the recall are 2013-2015 Kia Optima models, totaling 283,803 vehicles. The recall also involves 156,567 Kia Sorentos from 2014 and 2015 and 151,000 Hyundai Santa Fe models from the 2013-2015 model years. Kia says all owners of the subject vehicles will be notified by first class mail with instructions to bring their vehicles to a Kia or Hyundai dealership. Once the vehicles are in workshops, dealerships will inspect the HECU for leaking brake fluid and, if they find one, the HECU will be replaced with a new one. Kia will reimburse owners for repair expenses. This isn't the first time that Hyundai or Kia have made a recall of this nature. Earlier this year, Hyundai recalled 2006-2011 Elantra and 2007-2011 Elantra Touring vehicles due to another electrical short-circuit issue involving water getting into the ABS computer unit, something that also increased the possibility of an engine fire. [GN] IBM CORP: Continues to Defend ERISA-Related Class Suit in New York ------------------------------------------------------------------ International Business Machines Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a putative class action suit related to the company's October 2014 announcement that it was divesting its global commercial semiconductor technology business, alleging violations of the Employee Retirement Income Security Act (ERISA). In May 2015, a putative class action was commenced in the United States District Court for the Southern District of New York related to the company's October 2014 announcement that it was divesting its global commercial semiconductor technology business, alleging violations of the Employee Retirement Income Security Act (ERISA). Management's Retirement Plans Committee and three former IBM executives are named as defendants. On September 29, 2017, the Court granted the defendants' motion to dismiss the first amended complaint. On December 10, 2018, the Second Circuit Court of Appeals reversed the District Court order. On January 14, 2020, the Supreme Court of the United States vacated the decision and remanded the case to the Second Circuit. On June 22, 2020, the Second Circuit reinstated its prior decision and remanded the case to the District Court. International Business Machines Corporation operates as an integrated technology and services company worldwide. The company was formerly known as Computing-Tabulating-Recording Co. and changed its name to International Business Machines Corporation in 1924. The company was incorporated in 1911 and is headquartered in Armonk, New York. IMPINJ INC: Nov. 19 Hearing Set for $20MM Deal in Securities Suit ----------------------------------------------------------------- Impinj, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that a court has set a final settlement approval hearing for November 19, 2020. On August 7, 2018, a class-action complaint for violation of the federal securities laws was filed in the U.S. District Court for the Central District of California against the company, its chief executive officer and former chief operating officer. Captioned Schultz v. Impinj, Inc., et al, the complaint, purportedly brought on behalf of all purchasers of the company's common stock from May 7, 2018 through and including August 2, 2018, asserted claims that the company's quarterly statement filed on Form 10-Q for first-quarter 2018 and a concurrent press release made false or misleading statements about the company's business prospects and financial condition. The complaint sought monetary damages, costs and expenses. On October 3, 2018, the plaintiff voluntarily dismissed this complaint. On August 27, 2018, a second class-action complaint for violation of the federal securities laws was filed in the U.S. District Court for the Western District of Washington against the company, its chief executive officer, former chief operating officer and former chief financial officer. Captioned Montemarano v. Impinj, Inc., et al., the complaint, purportedly brought on behalf of all purchasers of our common stock from May 4, 2017 through and including August 2, 2018, asserted claims that the company made false or misleading statements in its financial statements, press releases and conference calls during the purported class period in violation of Section 10(b) of the Securities Exchange Act of 1934, as amended, or the Securities Exchange Act. The complaint sought monetary damages, costs and expenses. On October 2, 2018, a third class-action complaint for violation of the federal securities laws was filed in the U.S. District Court for the Western District of Washington against the company, its chief executive officer, former chief operating officer and former chief financial officer. Captioned Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge v. Impinj, Inc., et al., the complaint, purportedly brought on behalf of all purchasers of the company's common stock from November 3, 2016 through and including February 15, 2018, asserted claims that the company made false or misleading statements about customer demand for our products and inventory in SEC filings, press releases and conference calls in violation of Section 10(b) of the Securities Exchange Act. The complaint sought monetary damages, costs and expenses. On January 14, 2019, the U.S. District Court for the Western District of Washington consolidated the Montemarano and Baton Rouge actions and appointed the Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge as lead plaintiff. On February 13, 2019, lead plaintiff filed a consolidated amended complaint. The consolidated amended complaint alleged that from July 21, 2016 through February 15, 2018, the company made false or misleading statements about customer demand and the capability of its products and platform in violation of Section 10(b) of the Securities Exchange Act. On March 19, 2019, the company filed a motion to dismiss the consolidated amended complaint, and on October 4, 2019, the court entered an order granting in part and denying in part the motion. The court dismissed the Section 10(b) claim against the company's former chief operating officer, dismissed product-capability-related allegations against the company's former chief financial officer, and dismissed allegations that defendants made false or misleading statements concerning increasing demand prior to first-quarter 2017. The court denied the motion as to all other claims and defendants. On July 9, 2020, following a private settlement mediation with the lead plaintiff in the federal securities class actions and plaintiff in the New York State securities class action, the parties in both actions executed a stipulation of settlement that resolved the claims asserted in both actions. The settlement provided for a payment to the plaintiff class of $20.0 million. Impinj said, "Our insurers contributed $14.6 million to the settlement, and we contributed the remaining settlement amount of $5.4 million. Accordingly, we recorded a provision of $5.4 million related to our estimated settlement amount to general and administrative expenses for the three months ended June 30, 2020, which was paid during the three months ended September 30, 2020. On July 29, 2020, the court entered an order preliminarily approving the settlement, and set a final settlement approval hearing for November 19, 2020." Impinj, Inc. operates a platform that enables wireless connectivity for everyday items by delivering each items unique identity, location, and authenticity to business and consumer applications. Impinj, Inc. was founded in 2000 and is headquartered in Seattle, Washington. IMPINJ INC: Stipulation of Settlement Reached in Plymouth Suit -------------------------------------------------------------- Impinj, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that a stipulation of settlement has been reached in the case, Plymouth County Retirement System v. Impinj, Inc., et al. On January 31, 2019, a class-action complaint for violation of the federal securities laws was filed in the Supreme Court of the State of New York for the County of New York against the company, its chief executive officer, former chief operating officer, former chief financial officer, members of the company's board of directors and the underwriters of the company's July 2016 initial public stock offering, or IPO, and December 2016 secondary public offering, or SPO. Captioned Plymouth County Retirement System v. Impinj, Inc., et al., the complaint, purportedly brought on behalf of purchasers of the company's stock pursuant to or traceable to its IPO and second public offering (SPO), alleged that the company made false or misleading statements in the registration statements and prospectuses in those offerings concerning demand for the company's products and inventory in violation of Section 11 of the Securities Act of 1933. On April 9, 2019, the New York Supreme Court entered an order staying the action and requiring the parties to update the court every 90 days as to the status of the pending federal securities class actions discussed above. In connection with the Federal Securities Class Action, on July 9, 2020, the parties in both this action and the federal securities class actions executed a stipulation of settlement that resolved the claims in both actions. On July 29, 2020, the U.S. District Court for the Western District of Washington entered an order preliminarily approving the settlement, and set a final settlement approval hearing for November 19, 2020. Once the settlement is finally approved by the federal court, plaintiffs will dismiss this action with prejudice. Impinj, Inc. operates a platform that enables wireless connectivity for everyday items by delivering each items unique identity, location, and authenticity to business and consumer applications. Impinj, Inc. was founded in 2000 and is headquartered in Seattle, Washington. INNOVATIVE HEIGHTS: Loses Bid to Dismiss Stauffer Suit Under BIPA ----------------------------------------------------------------- In the case, MADISYN STAUFFER, on behalf of herself an all others similarly situated, Plaintiff, v. INNOVATIVE HEIGHTS FAIRVIEW HEIGHTS, LLC, AND PATHFINDER SOFTWARE, LLC D/B/A PATHFINDER SOFTWARE, LLC, Defendants, Case No. 3:20-CV-00046-MAB (S.D. Ill.), Magistrate Judge Mark A. Beaty of the U.S. District Court for the Southern District of Illinois (i) granted in part and denied in part Plaintiff Stauffer's Motion to Remand, and (ii) denied Defendant Pathfinder's Motion to Dismiss. In her Amended Complaint, the Plaintiff alleges, on behalf of herself and a class of similarly situated individuals, that both Defendants Innovative Heights and Pathfinder collected her biometric information, specifically her fingerprints, in violation of The Illinois Biometric Information Privacy Act ("BIPA"). On April 29, 2019, the Plaintiff filed her Complaint in the Twentieth Judicial Circuit, St. Clair County, Illinois. She brings the action individually and on behalf of a class of similarly situated individuals who were employed by Defendant Innovative Heights and worked at its "Sky Zone" facility in Fairview Heights, Illinois for alleged violations of BIPA. Originally, the Plaintiff brought the action solely against her employer, Defendant Innovative Heights. Sky Zone is a recreational facility with indoor trampolines that offers a variety of different activities, including, but not limited to, Ultimate Dodgeball, SkyHoops, SkyJoust, and Laser Tag. As part of their employment, employees are required to give their fingerprints to Defendant Innovative Heights at the beginning of their employment and then scan their fingerprints for timekeeping1 and other employment purposes. She alleges that she was never informed by Defendant Innovative Heights, in writing, of the purpose and the period for which her fingerprints were being collected, stored, or used. While still in state court, the Plaintiff sought leave to amend her complaint on Nov. 19, 2019 after learning of Defendant Pathfinder's relationship with her employer through the first stages of discovery. She alleges that Defendant Pathfinder controls and operates the system and database in which Defendant Innovative Heights' employees' fingerprints were stored. Like Defendant Innovative Heights, the Plaintiff alleges that Defendant Pathfinder never informed her, in writing, of the specific purpose of and the period for which her fingerprints were being collected, stored, or used. The Plaintiff received leave on Nov. 25, 2019 to amend her complaint. She Plaintiff filed her amended complaint on Nov. 27, 2019 in which she named Defendant Pathfinder, for the first time, as a co-defendant along with Defendant Innovative Heights. In adding Defendant Pathfinder, the Plaintiff also alleges two separate classes of individuals—those that were employed by Defendant Innovative Heights and worked at its SkyZone facility in Fairview Heights, Illinois and those individuals who had their fingerprints collected, captured, purchased, received through trade, or otherwise obtained by Defendant Pathfinder. The Plaintiff alleges that both Defendants Innovative Heights and Pathfinder have violated Sections 15(a) and 15(b) of BIPA while scanning and storing her and other class members' fingerprints for timekeeping and other purposes. She alleges Defendant Innovative Heights violated Section 15(b) of BIPA because it failed to notify her and the putative class, in writing, that their fingerprints were being collected, stored, and used before collecting this biometric information. Additionally, she notes Defendant Innovative Heights failed to obtain a written release from herself and the other putative class members before collecting their fingerprints. Defendant Pathfinder also violated Sections 15(a) of BIPA, according to the Plaintiff, by not making available, to the public, a written policy establishing a retention schedule and guidelines for permanently destroying the biometric information once the initial purpose for collecting had been satisfied. She alleges Defendant Pathfinder violated Section 15(b) of BIPA by not first informing the class members, in writing, of the purpose for which their fingerprints were being collected, stored, and used, and for how long these fingerprints were being collected, stored, and used. Finally, she contends Defendant Pathfinder did not obtain a written release from the Plaintiff or the class members before collecting, capturing, or receiving their fingerprints. After filing her amended complaint, Defendant Pathfinder removed the case on Jan. 10, 2020 to the Southern District of Illinois pursuant to the Class Action Fairness Act ("CAFA"). Soon after removal, Defendant Pathfinder filed a motion to dismiss on Feb. 5, 2020. The Plaintiff then filed a motion to remand the matter to state court on March 12, 2020. Both pending motions, and the responses and replies, are currently before the Court. In her motion to remand, the Plaintiff hinges on whether she has alleged an actual injury to sustain Article III standing. The Plaintiff argues that Defendant Pathfinder based its motion to dismiss on the argument that she has failed to appropriately plead that she suffered an injury; therefore, she cannot sustain Article III standing and the case must be remanded because a crucial element of subject matter jurisdiction is absent. Subsequently, Defendant Pathfinder sought leave from the Court to supplement its response in opposition to the Plaintiff's motion to remand to include a recent case from the Seventh Circuit on the issue of Article III standing in BIPA cases. The Court granted Defendant Pathfinder's motion and allowed additional briefing on the issue of Article III standing from both the Plaintiff and Defendant Pathfinder. Defendant Pathfinder argued that a recent case, Bryant v. Compass Group USA, Inc., 958 F.3d 617 (7th Cir. 2020), moots all of the Plaintiff's arguments in her Motion for Remand. In her response, the Plaintiff argues that Bryant is instructive for determining whether Article III standing exists for a Plaintiff bringing a BIPA Section 15(b) claim, but not a Section 15(a) claim. Magistrate Judge Beaty finds that while the Plaintiff has advanced some additional facts discussing the impact of Defendant Innovative Heights' Section 15(a) violation, she has still not described a concrete and particularized harm for Article III standing. She has not described how the Section 15(a) violations have impacted her thinking or if those violations were the reason for her leaving, for example; rather, her description is more hypothetical and describes what could happen if one left employment while Defendant Innovative Heights still improperly retained their biometric information. The fact that she has left employment is not enough if she has not pled how the alleged Section 15(a) violation impacted her. Accordingly, the Plaintiff has Article III standing for her Section 15(b) claims against both Defendants Pathfinder and Innovative Heights. The Plaintiff does not have Article III standing for her Section 15(a) claims against either Defendant. The Plaintiff's Section 15(a) claims against Defendant Pathfinder and Defendant Innovative Heights are remanded to the Twentieth Judicial Circuit, St. Clair County, Illinois, rules Magistrate Judge Beaty. In its motion to dismiss, Defendant Pathfinder makes a series of five arguments in its motion to dismiss, arguing that the Plaintiff has failed to plead sufficient facts for the case to survive beyond this early stage of litigation. The Plaintiff opposes each of these arguments in her response to the Defendant Pathfinder's motion to dismiss. First, Pathfinder argues that BIPA is unconstitutional special legislation because it imposes strict compliance requirements on some employers, but then exempts "the entire financial industry" and state and local government contractors "arbitrarily," so BIPA "should be struck down" as unconstitutional. The Plaintiff disagrees, arguing that Defendant Pathfinder has failed to cite to any precedent in which a court has declared BIPA as unconstitutional. Magistrate Judge Beaty holds that that BIPA was enacted in 2008, approximately 12 years ago, and there have been a number of BIPA cases both in federal and state court. Defendant Pathfinder did not cite to a single BIPA case to support its argument and while that is not dispositive of its arguments alone, it is noteworthy that not a single other case has found BIPA to be unconstitutional in those twelve years. For purposes of a 12(b)(6) motion, the Plaintiff has pled sufficient facts to conclude that BIPA is not special legislation and is, therefore, not unconstitutional. Second, Pathfinder argues that it should be classified as a financial institution in the aforementioned financial exemption and, therefore, Defendant Pathfinder is exempt from BIPA's requirements. The Plaintiff argues that Defendant Pathfinder is not a financial institution as defined by BIPA and is not exempt. Magistrate Judge Beaty finds that the Plaintiff has sufficiently pled her claims against Defendant Pathfinder for purposes of a 12(b)(6) motion because at this time, he cannot find that Defendant Pathfinder is exempt from BIPA because it is a financial institution subjected to the reporting requirements of GLBA. Third, Defendant Pathfinder argues that the Plaintiff's complaint is time-barred since she did not bring the claim in the appropriate statute of limitations, which it claims is one year. The Plaintiff argues that Defendant Pathfinder relies on the incorrect statute of limitations and that almost every other BIPA case has held that BIPA claims are subject to the five-year catchall statute of limitations. As he has previously noted, Magistrate Judge Beaty holds that BIPA precedent is developing, and while many of the cases the Plaintiff cites to are state-court decisions and non-binding on the Court's decision, they are instructive for how state courts interpret the state law, particularly since the Court must apply the law of Illinois as it believes the Illinois Supreme Court would apply it. Accordingly, the Plaintiff has pled sufficient facts for purposes of a 12(b)(6) motion that her BIPA claims are timely. Fourth, Defendant Pathfinder argues that the Plaintiff voluntarily waived her right to sue because she implicitly consented to the collection of her fingerprints for the purpose of clocking in and out of work; accordingly, the doctrine of equitable estoppel applies and Plaintiff cannot bring BIPA claims now. The Plaintiff argues that Defendant Pathfinder incorrectly conflated waiver and equitable estoppel, and that she is not barred from bringing her BIPA claims under either doctrine. Magistrate Judge Beaty opines that Defendant Pathfinder does not identify any material facts that the Plaintiff has concealed or misrepresented. It does not attempt to explain how the elements of equitable estoppel have been satisfied, so the Magistrate cannot find that the Plaintiff is estopped from bringing her claims. Additionally, he cannot say, based on the pleadings and the minimal arguments provided by Defendant Pathfinder, that the only conclusion logically drawn from the Plaintiff's actions while employed at Defendant Innovative Heights is that she knowingly, voluntarily, and intentionally waived any right to bring a BIPA claim by continuing to scan her fingerprints at her place of work. He, therefore, concludes that it would be inappropriate, at this early stage of the case, to dismiss the Plaintiff's claims due to either doctrine. Finally, Defendant Pathfinder argues that the case should be dismissed because the Plaintiff has not pled sufficient facts to support her cause of action, specifically that she has not asserted that Defendant Pathfinder negligently, recklessly or intentionally violated BIPA, specifically 740 ILCS 14/20(1). The Plaintiff argues that she is not required to assert facts regarding Defendant Pathfinder's negligent, reckless, or intentional actions to bring a BIPA cause of action. The Plaintiff is correct, rules Magistrate Judge Beaty. To allege a claim that Defendant Pathfinder violated BIPA, all she must do is allege thatthe Defendant collected, captured, purchased, received, or obtained her fingerprints without complying with BIPA's requirements. As the Plaintiff explained, and as other courts have outlined, the references to negligent, reckless, and intentional violations only relate to what the prevailing party may recover for each violation, which is not before the Court presently. Accordingly, for purposes of a 12(b)(6) motion, the Plaintiff has pled sufficient facts to state a cause of action against Defendant Pathfinder. For the aforementioned reasons, Magistrate Judge Beaty denied in part and granted in part the Plaintiff Stauffer's motion to remand. The Court retains jurisdiction over the Plaintiff's BIPA Section 15(b) claims as they pertain to both Defendants Innovative Heights and Pathfinder. The Plaintiff's BIPA Section 15(a) claims are remanded as they pertain to Defendants Pathfinder and Innovative Heights to the Twentieth Judicial Circuit, St. Clair County, Illinois as the Court does not have jurisdiction over those claims. Defendant Pathfinder's motion to dismiss is denied. A full-text copy of the Court's Aug. 19, 2020 Memorandum & Order is available at https://tinyurl.com/y395tndu from Leagle.com. JOHNSON & JOHNSON: Talc-Related Class Suit Ongoing in Illinois -------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 23, 2020, for the quarterly period ended September 27, 2020, that the company continues to defend a class action suit in in Illinois State Court involving talc contained in JOHNSON'S(R) Baby Powder and JOHNSON'S(R) Shower to Shower. In May 2014, two purported class actions were filed in federal court, one in the United States District Court for the Central District of California and one in the United States District Court for the Southern District of Illinois, against Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (now known as Johnson & Johnson Consumer Inc.) (JJCI) alleging violations of state consumer fraud statutes based on nondisclosure of alleged health risks associated with talc contained in JOHNSON'S(R) Baby Powder and JOHNSON'S(R) Shower to Shower (a product no longer sold by JJCI). Both cases seek injunctive relief and monetary damages; neither includes a claim for personal injuries. In October 2016, both cases were transferred to the United States District Court for the District Court of New Jersey as part of a newly created federal multi-district litigation. In July 2017, the district court granted Johnson & Johnson's and JJCI's motion to dismiss one of the cases. In September 2018, the United States Court of Appeals for the Third Circuit affirmed this dismissal. In September 2017, the plaintiff in the second case voluntarily dismissed the complaint. In March 2018, the plaintiff in the second case refiled in Illinois State Court. Following motion practice to remove the case to United States District Court, as of September 2020 the case will remain in Illinois State Court. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: XARELTO Sales Class Suit in Louisiana Ongoing ---------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 23, 2020, for the quarterly period ended September 27, 2020, that the company continues to defend a class action suit in the U.S. District Court for the Eastern District of Louisiana related to its improper marketing and promotion of XARELTO(R). In August 2015, two third-party payors filed a purported class action in the United States District Court for the Eastern District of Louisiana against Janssen Research & Development, LLC, Janssen Ortho LLC, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc. and Johnson & Johnson (as well as certain Bayer entities), alleging that the defendants improperly marketed and promoted XARELTO(R) as safer and more effective than less expensive alternative medications while failing to fully disclose its risks. The complaint seeks damages. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JUUL LABS: Can't Compel Arbitration in Bautista Wage Suit --------------------------------------------------------- In the case, MARIA DE LA LUZ PEREZ BAUTISTA, et al., Plaintiffs, v. JUUL LABS, INC., et al., Defendants, Case No. 20-cv-01613-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California denied the motions to compel arbitration and stay the proceedings filed by Defendants Long Ying International, Inc. ("LYI"), David M. Ho, Juul, and the Coalition for Reasonable Vaping Regulation ("CRVR"). On June 25, 2019, San Francisco's Board of Supervisors banned the sale and distribution of e-cigarettes and vaping products in San Francisco. On July 10, 2019, the San Francisco Department of Elections certified a ballot measure -- Proposition C -- for the 2019 general election that would repeal the ban passed by the Board of Supervisors. CRVR is a political committee and advocacy organization established and incorporated under California law to advocate for the enforcement of strong and coherent laws, regulations and policies which will prevent the use of e-cigarettes and other tobacco products by youth under the age of 21, while allowing adults the choice to continue purchasing these products in brick and mortar stores and online. CRVR retained LYI, a San Francisco-based strategic consultancy company, to provide campaign consulting and field management services in support of the Yes on C Campaign. David Ho, the CEO of LYI, is a political consultant and registered lobbyist. Mr. Ho was also retained by CRVR as an independent contractor to provide field campaign consulting services. Plaintiffs Maria de la Luz Perez Bautista, Luz Perez Bautista, and Salvadora Correa are former campaign workers who were hired by LYI to provide canvassing, phone banking, and administrative services, purportedly as independent contractors, to support the "Yes on C Campaign" in San Francisco in 2019. The Plaintiffs are native Spanish speakers who applied for a position to join the Spanish-speaking campaign team. Each of the Plaintiffs entered into an Independent Contractor Agreement ("ICA") with LYI under which they worked for the Yes on C Campaign. Between August and October 2019, they worked as phone bank callers and door-to-door canvassers, and Plaintiff Luz Perez Bautista also worked as an administrative assistant. The Plaintiffs admit that they each signed an agreement entitled "Independent Contractor Agreement" with LYI. However, they contend that they were only offered the ICA in English, and were not given the option of receiving a translated version of the ICA or allowed to take it home to have it translated. The Plaintiffs and LYI entered into the ICAs for the stated purpose of providing services for CRVR. Mr. Ho signed the contracts on behalf of LYI. The Plaintiffs allege that the Defendants are each joint employers of them and the Campaign Workers, and the Defendants are jointly and severally liable for violations of applicable San Francisco, California, and federal law. Further, they allege that CRVR and Juul are each other's alter egos and form a single enterprise. Specifically, the Plaintiffs allege that the Defendants are liable for (1) Failure to Pay Wages Owed at Separation; (2) Failure to Furnish Accurate Wage Statements; (3) Failure to Pay Minimum Wages Under California Law; (4) Failure to Pay San Francisco Minimum Wage; (5) Failure to Pay Overtime Wages; (6) Failure to Reimburse Business Expenses; (7) Failure to Provide Meal Periods; (8) Violations of Unfair Competition Law; and (9) Failure to Pay Overtime Wages. The Plaintiffs also seek to represent a class of all individuals who were hired by LYI to perform phone banking, canvassing and/or administrative tasks for the Yes on C Campaign and did perform such work at any time during the period between July 2019 and October 2019. Pending before the Court are motions to compel arbitration and stay the proceedings filed by LYI, Mr. Ho, Juul, and CRVR. On June 25, 2020, the Court held a hearing on the motions. Judge Gilliam explains that under the FAA, the Court must compel arbitration if the claims asserted fall within the scope of a valid arbitration agreement. Although the FAA establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, the Judge finds that the Plaintiffs' claims are not a dispute over the terms of the ICA so as to trigger the arbitration provision. Without question, the Defendants could have drafted the arbitration provision to cover labor code misclassification causes of action by, for example, expressly providing for arbitration of disputes or claims arising out of, or related to, the Plaintiffs' employment, or of all labor code claims. Instead, the Defendants drafted a narrow clause that only covers "disputes over the terms of" the ICA, which, applying Ninth Circuit and California law, the Plaintiffs' causes of action clearly are not. Therefore, Judge Gilliam finds that the Plaintiffs did not agree to arbitrate the causes of action pled in the Complaint. Because the dispute does not fall within the scope of the arbitration provision in the ICA, Judge Gilliam denied the motions to compel arbitration. He also denied Juul's motion to compel arbitration as a non-signatory in light of his finding that the arbitration provision in the ICA does not cover the Plaintiffs' claims. Judge Gilliam set a telephonic case management conference for last Aug. 25, 2020 at 2:00 p.m., wherein the parties will discuss next steps, including a plan for resolving the Motion for Conditional Certification. A full-text copy of the Court's Aug. 12, 2020 Order is available at https://tinyurl.com/yxvrcmlv from Leagle.com. K3 WORKS: DeJohn Seeks Minimum & OT Wages for Delivery Drivers -------------------------------------------------------------- JENNIFER DEJOHN, individually and on behalf of similarly situated persons v. K3 WORKS, INC. d/b/a DOMINO'S PIZZA and BILL KENT, Case No. 1:20-cv-01289-TJM-DJS (N.D.N.Y., Oct. 19, 2020), is a collective action lawsuit under the Fair Labor Standards Act and the New York Minimum Wage Act to recover unpaid minimum wages and overtime hours owed to Plaintiff and similarly situated delivery drivers employed by the Defendants at its Domino's stores. The Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, the Defendants use a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks, says the complaint. The Plaintiff and the putative class have sustained losses and lost compensation as a proximate result of the Defendants' violations. Accordingly, the Plaintiff, on behalf of herself and the putative class, seeks damages in the amount of their unpaid earned compensation, liquidated damages, plus interest at the legal rate set forth in the New York Labor Law. The Defendants own and operate numerous Domino's franchise stores. Bill Kent is an owner, officer and director of corporate Defendant K3 Works, Inc.[BN] The Plaintiff is represented by: Jay Forester, Esq. FORESTER HAYNIE PLLC 400 N. St. Paul Street, Suite 700 Dallas, TX 75201 Telephone: (214) 210-2100 Facsimile: (214) 346-5909 E-mail: jay@foresterhaynie.com KANEX INC: Rakhmanin Seeks to Recover Unpaid Wages -------------------------------------------------- Sergei Rakhmanin, Natalia Stepanova and Svetlana Larina, Individually and on behalf of all other persons similarly situated v. KANEX INC. d/b/a GRAND MOUNTAIN HOTEL, ALEX SMUSHKOVICH and TATYANA RUGANOVICH, Jointly and Severally, Case No. 1:20-cv-01287-FJS-DJS (N.D.N.Y., Oct. 16, 2020), alleges that the Defendants willfully violated the Fair Labor Standards Act and the New York Labor Law by failing to pay minimum wage, overtime premium pay, and spread-of-hours pay; unlawfully retaining gratuities; failing to provide the Notice and Acknowledgement of Payrate and Payday under N.Y. Lab. Law; and failing to provide an accurate wage statement under N.Y. Lab. Law with every wage payment. Throughout their employment with Defendants, the Plaintiffs regularly worked in excess of 40 hours per week. The Plaintiffs were not required to keep track of their time, nor to their knowledge, did the Defendants utilize any time tracking device, such as punch cards. The Defendants paid the Plaintiffs their wages in cash. The Plaintiffs' pay did not vary regardless of how many hours they worked. The Defendants were not permitted to pay the Plaintiffs a fixed weekly salary. The complaint alleges that Defendants failed to pay the Plaintiffs the federal and state minimum wage because their average hourly rates fell below the applicable federal and state wage requirements during their employment. By paying the Plaintiffs a fixed weekly salary, the Defendants failed to pay them any overtime compensation. Moreover, for the days they were scheduled to and worked more than 10 hours in a day, the Defendants did not pay the Plaintiffs spread-of-hours pay--an extra hour at the statutory minimum wage, says the complaint. The Plaintiffs worked mainly as servers for the Defendants. The GM Hotel is a seasonal hotel located in Ulster County, New York.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Milana Dostanitch, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017-6705 Phone: 212.392.4772 Email: doug@lipskylowe.com milana@lipskylowe.com LG ELECTRONICS: Court Narrows Claims in Hudock Suit --------------------------------------------------- In the case, BREANN HUDOCK, EUGENE MANNACIO, and BRIAN FLEISHMAN, individually and on behalf of all others similarly situated, Plaintiffs, v. LG ELECTRONICS U.S.A., INC., BEST BUY CO., INC., BEST BUY STORES, L.P., and BESTBUY.COM, LLC, Defendants, Civil No. 16-1220 (JRT/KMM) (D. Minn.), Judge John R. Tunheim of the U.S. District Court for the District of Minnesota (i) granted in part and denied in part the Defendants' Motion for Summary Judgment; (ii) denied the Defendants' Motion to Exclude Expert Testimony; (iii) granted in part and denied in part the Plaintiffs' Motion to Exclude Expert Testimony of Dr. Keith R. Ugone and Dr. Charles A. Poynton; and (iv) denied the Plaintiffs' Motion to Exclude the Declaration of Taylor Vander Aarde. The case is a class action brought by the Named Plaintiffs against Defendants LG and Best Buy. The Plaintiffs purchased televisions manufactured by LG either on Bestbuy.com or in a Best Buy store. They allege that, prior to buying the televisions, they decided to purchase a television with a refresh rate of either 120Hz or 240Hz. They contend that they spent weeks shopping for their preferred television and that advertisements and specifications indicated these LG televisions had refresh rates of either 120Hz or 240Hz. After purchasing their televisions, the Plaintiffs allege that they noticed that the television images were not as clear as expected. They later learned that the televisions used a technology called backlight scanning to enhance picture quality and, therefore, had a "native" refresh rate of only 60Hz or 120Hz, respectively. In March 2020, the Court granted in part and denied in part the Plaintiffs' class-certification motion. It certified the proposed damages class and subclass as to (1) claims against LG under the New Jersey Consumer Fraud Act ("NJCFA") and claims for unjust enrichment under New Jersey law; and (2) claims against Best Buy under the Minnesota Consumer Fraud Act ("MCFA"), Minnesota Uniform Unlawful Trade Practices Act ("MUTPA"), and claims for unjust enrichment under Minnesota law. Because the Court's choice-of-law analysis weighed in favor of application of home-state law for both breach-of-warranty claims and breach-of-contract claims, the Court declined to certify a class for those counts. It also declined to certify an injunctive class because it concluded that the Plaintiffs' case is primarily seeking monetary damages. Now, under the operative SCC, (i) there are three named Plaintiffs; (ii) four class claims: Count I (MCFA), Count III (MUTPA), Count IV (NJCFA), and Count XIII (Unjust Enrichment); and there are nine claims brought only by the Named Plaintiffs: Count II (Minnesota Uniform Deceptive Trade Practices Act ("MDTPA"); Count V (California Legal Remedies Act ("CLRA"); Count VI (California Unfair Competition Law ("UCL"); Count VII (Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"); Count VIII (New York General Business Law ("GBL"); Count IX (Pennsylvania Unfair Trade Practices & Consumer Protection Law ("PUTP"); Count X (Breach of Express Warranty); Count XI (Breach of Implied Warranty); and Count XII (Breach of Contract) (against Best Buy only). The Defendants moved for summary judgment. Addressing the motion for summary judgment, Judge Tunheim will deny the Defendants' Motion for Summary Judgment except as to claims for injunctive relief under Count II (MDTPA); Count V (CLRA); and Count VI (UCL). According to Judge Tunheim, the Named Plaintiffs offer no evidence that they are likely to be harmed in the future by the Defendants' alleged mislabeling. The only record evidence suggests that neither Fleishman nor Mannacio plan to purchase any television in the foreseeable future. There does not appear to be any evidence either way of Hudock's plans to purchase a new television. Given the absence of any evidence of the likelihood of future harm to the Named Plaintiffs, they lack standing to seek injunctive relief. The Judge will also sua sponte dismiss Count VII (ICFA) and Count VIII (GBL) as those claims were not certified for the Class and there are no longer any named Plaintiffs who reside in either Illinois or New York. Both parties also filed motions to exclude expert testimony. The Plaintiffs later filed a Motion to Exclude a declaration in support of the Defendants' summary judgment motion. The Plaintiffs move to exclude the Defendants' experts Ugone and Poynton, and the Declaration of Vander Aarde. The Plaintiffs argue that Ugone offered four opinions which comment on survey design despite not being an expert on CBC survey design, methodology, or analysis. In addition, they attack Ugone's opinion for being speculative, unreliable, and based on insufficient facts. Finally, they argue three of the four opinions that Ugone offers are duplicative in violation of Fed. R. Evid. 403. The Plaintiffs challenge Dr. Poynton's opinions on four grounds: (i) his qualifications; (ii) the reliability of his methods; (iii) relevancy; and (iv) whether he usurps the role of factfinder by commenting on the ultimate question of the case. The Defendants move to exclude certain expert testimony of Steven P. Gaskin and Colin B. Weir, taking issue with a choice-based conjoint ("CBC") analysis conducted by Gaskin and utilized by Weir to calculate class-wide damage. First, mirroring their summary judgment argument, the Defendants contend that Gaskin's CBC survey does not reliably measure relevant market-price damages because it does not consider both demand and supply-side factors. They also argue that the survey to collect the CBC data was unreliable, and that Gaskin's analysis of the data has various flaws. Finally, the Defendants argue that some of the survey responses were unreasonable, and thus the entire survey should be discarded. Ultimately, they argue that because evidence exists which undermines the reliability of Gaskin's CBC, it ought to be excluded. Judge Tunheim will deny the Defendants' Motion to Exclude, and deny the Plaintiffs' Motions to Exclude, except as to Ugone's opinion that the design of the Plaintiffs' damages model is flawed because Ugone is not qualified to opine as a survey-design expert. Judge Tunheim will also deny both the Plaintiffs' Motion to Exclude Defendants' Expert Dr. Poynton and their Motion to Exclude the Declaration of Aarde. Poynton's relevant experience, including a 40-year career in television-display technology and multiple awards for his work, render him sufficiently qualified despite his lack of refresh rate specialization. As to Vander Aarde, the Defendants produced over 750 documents which mentioned Vander Aarde's name or email address, and multiple deponents discussed Vander Aarde. He was frequently identified in documents and depositions produced during discovery. Based on the foregoing, Judge Tunheim granted in part and denied in part the Defendants' Motion for Summary Judgment. Count II of the Plaintiffs' Second Consolidated Complaint is dismissed with prejudice. Counts V and VI of the Plaintiffs' Second Consolidated Complaint are dismissed with prejudice so far as they seek injunctive relief. Counts VII and VIII of the Plaintiffs' Second Consolidated Complaint are dismissed without prejudice. Judge Tunheim (i) denied the Defendants' Motion to Exclude Expert Testimony; (ii)granted in part and denied in part the Plaintiffs' Motion to Exclude Expert Testimony; (iii) denied the Plaintiffs' Motion to Exclude Expert Testimony; and (iv) denied the Plaintiffs' Motion to Exclude the Declaration of Vander Aarde. A full-text copy of the Court's Aug. 12, 2020 Order is available at https://tinyurl.com/y5a72fer from Leagle.com. David M. Cialkowski -- david.cialkowski@zimmreed.com -- and Alyssa Leary -- Alyssa.leary@zimmreed.com -- ZIMMERMAN REED, 1100 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402, Raina Borrelli -- rborrelli@gustafsongluek.com -- Brittany N. Resch -- bresch@gustafsongluek.com -- and Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- GUSTAFSON GLUEK PLLC, 120 South Sixth Street, Suite 2600, Minneapolis, Minnesota 55402, for plaintiffs. Phoebe Anne Wilkinson -- Phoebe.wilkinson@hoganlovells.com -- HOGAN LOVELLS US LLP, 875 Third Avenue, New York, New York 10020, Robert Benjamin Wolinsky, HOGAN LOVELLS US LLP, 555 Thirteenth Street Northwest, Washington, District of Columbia, 20004, Peter H. Walsh -- peter.walsh@hoganlovells.com -- HOGAN LOVELLS US LLP, 80 South Eighth Street, Suite 1225, Minneapolis, Minnesota 55402, for defendants. LIBRARY SYSTEMS: Khaled Seeks to Certify Settlement Class --------------------------------------------------------- In the class action lawsuit captioned as ELIZABETH KHALED, on behalf of herself, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004, v. LIBRARY SYSTEMS AND SERVICES, LLC, a Maryland limited liability company; and DOES 1 through 50, inclusive, Case No. e 5:19-cv-01478-JGB-KK (C.D. Cal.), the Plaintiff Elizabeth Khaled will move the Court for an order: 1. granting class certification of the Settlement Class solely for settlement purposes pursuant to Rule 23 of Federal Rules of Civil Procedure; 2. preliminarily approving the Stipulation of Class Settlement and Release Between Plaintiff and Defendant; 3. appointing David Spivak of The Spivak Law Firm and Walter Haines of United Employees Law Group as Class Counsel; 4. appointing herself as the Representative Plaintiff; 5. approving the use of the proposed notice procedures and related forms; 6. directing that notice be mailed to the proposed Settlement Class; and 7. scheduling a hearing date for motion for final approval of class action settlement and awards of attorneys' fees and costs. The essential monetary terms of the Settlement are: a. Defendant LSS LLC's payment of a Gross Settlement Amount ("GSA") of $450,000; b. Plaintiff's Incentive Award of up to $15,000; c. Class Counsel's fees of not more than one-third of the GSA, or $150,000; d. Class Counsel's costs and expenses not to exceed $18,000; e. The Claims Administrator's costs not to exceed $17,500; f. Civil penalties under the California Private Attorneys General Act (PAGA) of $10,000, of which 25% or $2,500 will be payable to the Settlement Class and 75% or $7,500 will be payable to California Labor and Employee Workforce Development Agency; g. The Net Settlement Amount ("NSA") is the net amount available for distribution to Settlement Class Members after payments have been made from the GSA for (i) Plaintiff's Incentive Award; (2) Class Counsel's attorney's fees; (3) Class Counsel's costs and expenses; (4) Claims Administration Costs; (5) the portion of the PAGA payment payable to the LWDA; and (6) employer- and employee-side taxes. Library Systems is a private for-profit company that manages municipal libraries on an outsourced basis. It is the largest library outsourcing company in the United States. It runs 20 library systems in 80 locations. A copy of the Plaintiff's motion for preliminary approval of the class action settlement is available from PacerMonitor.com at https://bit.ly/2Goy08I at no extra charge.[CC] The Plaintiff is represented by: David G. Spivak, Esq. Carl J. Kaplan, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd., Suite 203 Encino, CA 91436 Telephone: (818) 582-3086 Facsimile: (818) 582-2561 E-mail: david@spivaklaw.com carl@spivaklaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Ave, Suite 201 Huntington Beach, CA 92649 Telephone: (562) 256-1047 Facsimile: (562) 256-1006 E-mail: whaines@uelglaw.com MASIMO CORP: Physicians Healthsource's Suit Ongoing --------------------------------------------------- Masimo Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 26, 2020, that the company continues to defend a class action suit initiated by Physicians Healthsource, Inc. (PHI). On January 2, 2014, a putative class action complaint was filed against the Company in the U.S. District Court for the Central District of California by Physicians Healthsource, Inc. (PHI). The complaint alleges that the Company sent unsolicited facsimile advertisements in violation of the Junk Fax Protection Act of 2005 and related regulations. The complaint seeks $500 for each alleged violation, treble damages if the District Court finds the alleged violations to be knowing, plus interest, costs and injunctive relief. On March 26, 2019, an amended complaint was filed adding Radha Geismann, M.D. PC as an additional named plaintiff. On June 17, 2019, the plaintiffs filed their motion for class certification. On September 10, 2019, the parties filed motions for summary judgment. On September 30, 2019, the Company filed its opposition to the motion for class certification, and the plaintiffs filed their reply on October 7, 2019. On November 21, 2019, the District Court issued an order denying the plaintiffs' motion for class certification and granting in part and denying in part the Company's motion for summary judgment, and deferring ruling on the plaintiffs' motion for summary judgment. On December 5, 2019, the plaintiffs filed a petition for permission to appeal the order denying class certification, which was denied on January 24, 2020. Trial of the individual plaintiffs' claims was scheduled for June 2, 2020, but on April 1, 2020, the District Court vacated the trial date and directed the parties to conduct an in-person mediation. The mediation has not occurred and no new trial date has been set. On July 13, 2020, the District Court issued an order granting in part and denying in part the plaintiffs' motion for summary judgment. Masimo said, "The Company believes it has good and substantial defenses to the claims, but there is no guarantee that the Company will prevail. The Company is unable to determine whether any loss will ultimately occur or to estimate the range of such loss; therefore, no amount of loss has been accrued by the Company in the accompanying condensed consolidated financial statements." Masimo Corporation, a medical technology company, develops, manufactures, and markets noninvasive monitoring technologies worldwide. Masimo Corporation was founded in 1989 and is headquartered in Irvine, California. MASTERCARD INC: Appeals in Point-of-Sale Acceptance Suit Ongoing ---------------------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that objectors to a class action settlement in Canada have sought to appeal the approval orders and certain appellate courts have rejected the objectors' appeals, while outstanding appeals remain in a few provinces. In December 2010, a proposed class action complaint was commenced against Mastercard in Quebec on behalf of Canadian merchants. The suit essentially repeated the allegations and arguments of a previously filed application by the Canadian Competition Bureau to the Canadian Competition Tribunal (dismissed in Mastercard's favor) concerning certain Mastercard rules related to point-of-sale acceptance, including the "honor all cards" and "no surcharge" rules. The Quebec suit sought compensatory and punitive damages in unspecified amounts, as well as injunctive relief. In the first half of 2011, additional purported class action lawsuits were commenced in British Columbia and Ontario against Mastercard, Visa and a number of large Canadian financial institutions. The British Columbia suit sought compensatory damages in unspecified amounts, and the Ontario suit sought compensatory damages of $5 billion on the basis of alleged conspiracy and various alleged breaches of the Canadian Competition Act. Additional purported class action complaints were commenced in Saskatchewan and Alberta with claims that largely mirror those in the other suits. In June 2017, Mastercard entered into a class settlement agreement to resolve all of the Canadian class action litigation. The settlement, which requires Mastercard to make a cash payment and modify its "no surcharge" rule, has received court approval in each Canadian province. Objectors to the settlement have sought to appeal the approval orders. Certain appellate courts have rejected the objectors' appeals, while outstanding appeals remain in a few provinces. No further updates were provided in the Company's SEC report. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: Class Cert. Bids in ATM Surcharge Suits Pending --------------------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the motions for class certification filed in the ATM Surcharge Fees suits remain pending. In October 2011, a trade association of independent Automated Teller Machine ("ATM") operators and 13 independent ATM operators filed a complaint styled as a class action lawsuit in the U.S. District Court for the District of Columbia against both Mastercard and Visa (the "ATM Operators Complaint"). Plaintiffs seek to represent a class of non-bank operators of ATM terminals that operate in the United States with the discretion to determine the price of the ATM access fee for the terminals they operate. Plaintiffs allege that Mastercard and Visa have violated Section 1 of the Sherman Act by imposing rules that require ATM operators to charge non-discriminatory ATM surcharges for transactions processed over Mastercard's and Visa's respective networks that are not greater than the surcharge for transactions over other networks accepted at the same ATM. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. Subsequently, multiple related complaints were filed in the U.S. District Court for the District of Columbia alleging both federal antitrust and multiple state unfair competition, consumer protection and common law claims against Mastercard and Visa on behalf of putative classes of users of ATM services (the "ATM Consumer Complaints"). The claims in these actions largely mirror the allegations made in the ATM Operators Complaint, although these complaints seek damages on behalf of consumers of ATM services who pay allegedly inflated ATM fees at both bank and non-bank ATM operators as a result of the defendants' ATM rules. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. In January 2012, the plaintiffs in the ATM Operators Complaint and the ATM Consumer Complaints filed amended class action complaints that largely mirror their prior complaints. In February 2013, the district court granted Mastercard's motion to dismiss the complaints for failure to state a claim. On appeal, the Court of Appeals reversed the district court's order in August 2015 and sent the case back for further proceedings. In September 2019, the plaintiffs filed their motions for class certification in which the plaintiffs, in aggregate, allege over $1 billion in damages against all of the defendants. Mastercard intends to vigorously defend against both the plaintiffs' liability and damages claims and has opposed class certification. Briefing on class certification is complete. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: Class Cert. Ruling in Shift Fraud Suit Appealed --------------------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the defendants in the class action suit involving conspiracy to shift fraud liability have taken an appeal from the court decision granting class certification. In March 2016, a proposed U.S. merchant class action complaint was filed in federal court in California alleging that Mastercard, Visa, American Express and Discover (the "Network Defendants"), EMVCo, and a number of issuing banks (the "Bank Defendants") engaged in a conspiracy to shift fraud liability for card present transactions from issuing banks to merchants not yet in compliance with the standards for EMV chip cards in the United States (the "EMV Liability Shift"), in violation of the Sherman Act and California law. Plaintiffs allege damages equal to the value of all chargebacks for which class members became liable as a result of the EMV Liability Shift on October 1, 2015. The plaintiffs seek treble damages, attorney's fees and costs and an injunction against future violations of governing law, and the defendants have filed a motion to dismiss. In September 2016, the district court denied the Network Defendants' motion to dismiss the complaint, but granted such a motion for EMVCo and the Bank Defendants. In May 2017, the district court transferred the case to New York so that discovery could be coordinated with the U.S. merchant class interchange litigation. In August 2020, the district court issued an order granting the plaintiffs' request for class certification. The Network Defendants have requested permission to appeal the district court's certification decision to the appellate court. The case is proceeding with substantive expert discovery. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: Damage Class Settlement Approval Order Appealed --------------------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the district court's order granting approval of the damage class settlement has been appealed. In June 2005, the first of a series of complaints were filed on behalf of merchants (the majority of the complaints were styled as class actions, although a few complaints were filed on behalf of individual merchant plaintiffs) against Mastercard International, Visa U.S.A., Inc., Visa International Service Association and a number of financial institutions. Taken together, the claims in the complaints were generally brought under both Sections 1 and 2 of the Sherman Act, which prohibit monopolization and attempts or conspiracies to monopolize a particular industry, and some of these complaints contain unfair competition law claims under state law. The complaints allege, among other things, that Mastercard, Visa, and certain financial institutions conspired to set the price of interchange fees, enacted point of sale acceptance rules (including the no surcharge rule) in violation of antitrust laws and engaged in unlawful tying and bundling of certain products and services. The cases were consolidated for pre-trial proceedings in the U.S. District Court for the Eastern District of New York in MDL No. 1720. The plaintiffs filed a consolidated class action complaint that seeks treble damages. In July 2006, the group of purported merchant class plaintiffs filed a supplemental complaint alleging that Mastercard's initial public offering of its Class A Common Stock in May 2006 (the "IPO") and certain purported agreements entered into between Mastercard and financial institutions in connection with the IPO: (1) violate U.S. antitrust laws and (2) constituted a fraudulent conveyance because the financial institutions allegedly attempted to release, without adequate consideration, Mastercard's right to assess them for Mastercard’s litigation liabilities. The class plaintiffs sought treble damages and injunctive relief including, but not limited to, an order reversing and unwinding the IPO. In February 2011, Mastercard and Mastercard International entered into each of: (1) an omnibus judgment sharing and settlement sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa International Service Association and a number of financial institutions; and (2) a Mastercard settlement and judgment sharing agreement with a number of financial institutions. The agreements provide for the apportionment of certain costs and liabilities which Mastercard, the Visa parties and the financial institutions may incur, jointly and/or severally, in the event of an adverse judgment or settlement of one or all of the cases in the merchant litigations. Among a number of scenarios addressed by the agreements, in the event of a global settlement involving the Visa parties, the financial institutions and Mastercard, Mastercard would pay 12% of the monetary portion of the settlement. In the event of a settlement involving only Mastercard and the financial institutions with respect to their issuance of Mastercard cards, Mastercard would pay 36% of the monetary portion of such settlement. In October 2012, the parties entered into a definitive settlement agreement with respect to the merchant class litigation (including with respect to the claims related to the IPO) and the defendants separately entered into a settlement agreement with the individual merchant plaintiffs. The settlements included cash payments that were apportioned among the defendants pursuant to the omnibus judgment sharing and settlement sharing agreement described above. Mastercard also agreed to provide class members with a short-term reduction in default credit interchange rates and to modify certain of its business practices, including its "no surcharge" rule. The court granted final approval of the settlement in December 2013, and objectors to the settlement appealed that decision to the U.S. Court of Appeals for the Second Circuit. In June 2016, the court of appeals vacated the class action certification, reversed the settlement approval and sent the case back to the district court for further proceedings. The court of appeals' ruling was based primarily on whether the merchants were adequately represented by counsel in the settlement. As a result of the appellate court ruling, the district court divided the merchants' claims into two separate classes - monetary damages claims (the "Damages Class") and claims seeking changes to business practices (the "Rules Relief Class"). The court appointed separate counsel for each class. In September 2018, the parties to the Damages Class litigation entered into a class settlement agreement to resolve the Damages Class claims. Mastercard increased its reserve by $237 million during 2018 to reflect both its expected financial obligation under the Damages Class settlement agreement and the filed and anticipated opt-out merchant cases. The time period during which Damages Class members were permitted to opt out of the class settlement agreement ended in July 2019 with merchants representing slightly more than 25% of the Damages Class interchange volume choosing to opt out of the settlement. The district court granted final approval of the settlement in December 2019. The district court's settlement approval order has been appealed. Mastercard has commenced settlement negotiations with a number of the opt-out merchants and has reached settlements and/or agreements in principle to settle a number of these claims. The Damages Class settlement agreement does not relate to the Rules Relief Class claims. Separate settlement negotiations with the Rules Relief Class are ongoing. As of September 30, 2020 and December 31, 2019, Mastercard had accrued a liability of $784 million and $914 million, respectively, as a reserve for both the Damages Class litigation and the opt-out merchant cases. As of September 30, 2020 and December 31, 2019, Mastercard had $586 million and $584 million, respectively, in a qualified cash settlement fund related to the Damages Class litigation and classified as restricted cash on its consolidated balance sheet. The reserve as of September 30, 2020 for both the Damages Class litigation and the opt-out merchants represents Mastercard's best estimate of its probable liabilities in these matters. The portion of the accrued liability relating to both the opt-out merchants and the Damages Class litigation settlement does not represent an estimate of a loss, if any, if the matters were litigated to a final outcome. Mastercard cannot estimate the potential liability if that were to occur. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: TCPA Class Suit in Florida Ongoing -------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a class action suit in Florida, involving Telephone Consumer Protection Act ("TCPA") alleged violations Mastercard is a defendant in a Telephone Consumer Protection Act ("TCPA") class action pending in Florida. The plaintiffs are individuals and businesses who allege that approximately 381,000 unsolicited faxes were sent to them advertising a Mastercard co-brand card issued by First Arkansas Bank ("FAB"). The TCPA provides for uncapped statutory damages of $500 per fax. Mastercard has asserted various defenses to the claims, and has notified FAB of an indemnity claim that it has (which FAB has disputed). In June 2018, the court granted Mastercard's motion to stay the proceedings until the Federal Communications Commission (FCC) makes a decision on the application of the TCPA to online fax services. In December 2019, the FCC issued a declaratory ruling clarifying that the TCPA does not apply to faxes sent to online fax services that are received via e-mail. As a result of the ruling, the stay of the litigation was lifted in January 2020. The parties have completed briefing plaintiff's motion for class certification. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MAYO CLINIC: Court Conditionally Certifies Mayo & FDCPA Classes --------------------------------------------------------------- In the class action lawsuit captioned as as NATALIE KUHR, on behalf of herself and all conditionally certifies others similarly situated, v. MAYO CLINIC JACKSONVILLE and PROFESSIONAL SERVICE BUREAU, INC., Case No. 3:19-cv-00453-MMH-MCR (M.D. Fla.), the Hon. Judge Marcia Morales Howard entered an order: 1. conditionally certifies, for purposes of settlement only, the Settlement Class made up of the Mayo Class and the Fair Debt Collection Practices Act (FDCPA) Subclass, defined as follows: The Mayo Class: "[A]ll Florida residents who according to readily accessible data and other electronic records of Mayo, at any time during the period of January 9, 2017 through May 28, 2020, were charged by the Defendant Mayo medical- related fees related to motor vehicle accidents in excess of the amount allowed under Florida law.; and The FDCPA Subclass: "[A]ll Florida Residents who according to readily accessible data and other electronic records of Mayo and PSB, at any time during the period of January 9, 2018 through May 28, 2020, were charged by Defendant PSB acting on Mayo's behalf medical-related fees related to motor vehicle accidents in excess of the amount allowed under Florida law."; The following individuals are excluded from the Settlement Class: a) any Judge or Magistrate presiding over this action and members of their families; b) Defendants, Defendants' subsidiaries, parents, successors, predecessors, and any entity in which Defendants or their parents have a controlling interest and its current or former employees, officers and directors; c) persons who properly execute and file a timely request for exclusion from the Classes; d) the legal representatives, successors, or assigns of any such excluded persons; e) Plaintiff's counsel and the Defendants' counsel. 2. designating Plaintiff Natalie Kuhr as Class Representative, with Plaintiff's Counsel Jordan A. Shaw, Edward H. Zebersky, and Kimberly A. Slaven of Zebersky, Payne, Shaw, Lewenz, LLP as Class Counsel. 3. preliminarily approving the terms of the Revised Agreement as being a fair, reasonable, and adequate resolution of the dispute between the parties. 4. scheduling a final hearing (Fairness Hearing) on January 20, 2021; 5. directing the Parties on or before January 11, 2021, to file under seal the list of all putative Settlement Class Members, along with their last known mailing address, as updated by the Settlement Administrator (the Class List). The Class List must indicate which, if any, of the Settlement Class Members submitted requests for exclusion from the Settlement Class, and any Settlement Class Members whose Class Notice was returned as undeliverable.; 6. rejecting the request for an Incentive Award to the Class Representative, and denying the request for preliminary approval of this award; 7. directing the parties to review the Court's Class Notice and insert the relevant information in paragraphs four and ten to create the Final Class Notice.; 8. approving the the Final Class Notice for distribution to those individuals on the Class List with a valid mailing address as determined by the Settlement Administrator in accordance with the Revised Agreement. The following deadlines shall govern the distribution of the Final Class Notice: a. Defendants shall immediately provide a list of the approximately 371 putative members of the Settlement Class (the Class List) with their last known mailing address to the Settlement Administrator. b. The Settlement Administrator shall obtain updates, if any, to the addresses contained in the Class List as provided in paragraph 2.03 of the Revised Agreement. c. No later than Friday, November 6, 2020, the Settlement Administrator shall mail the Final Class Notice via first class mail to each Class Member at the address set forth on the Class List, as updated by the Settlement Administrator. 9. directing the Plaintiff, after conferral with the Defendants, to file a Motion to Finally Approve the Settlement Agreement on or before January 11, 2021; 10. authorizing Class Counsel to represent and act on behalf of the Settlement Class with respect to all acts required by the Revised Agreement or such other acts which are reasonably necessary to consummate the spirit of the Revised Agreement; 11. staying pending all litigation, including discovery, other than further proceedings with respect to the Revised Agreement; The Court found that the Plaintiff has met the prerequisites to class certification set forth in Rule 23, Federal Rules of Civil Procedure. The Plaintiff Natalie Kuhr initiated this action in state court on January 9, 2019, against the Defendants. PSB removed this action to this Court, with Mayo's consent, on April 22, 2019. In the Complaint, the Plaintiff asserts claims against Mayo and PSB under both the Florida Consumer Collection Practices Act (FCCPA), and the FDCPA. The Plaintiff alleges that Mayo billed, and PSB attempted to collect, medical fees in excess of the amounts permitted under Florida law from certain Florida residents whose medical care was covered by personal injury protection (PIP) insurance. Mayo Clinic is a comprehensive medical center. A copy of the Court's Order is available from PacerMonitor.com at https://bit.ly/3lFX4XD at no extra charge.[CC] MDL 2742: Distribution Plan of Net Settlement Fund Approved ----------------------------------------------------------- Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York granted the Plaintiffs' Unopposed Motion for Approval of Distribution Plan in IN RE: SUNEDISON, INC. SECURITIES LITIGATION. This Document Relates To: Horowitz et al. v. SunEdison, Inc. et al., 1:16-cv-07917-PKC, Civil Action No. 1:16-md-2742-PKC, MDL Docket No. 2742 (S.D. N.Y.). The Order incorporates by reference the definitions in the Stipulation and Agreement of Settlement dated July 11, 2019, and the Simmons Declaration. The Plaintiffs' plan for distribution of the Net Settlement Fund to Authorized Claimants is approved. The administrative recommendations of the Court-approved Claims Administrator, Analytics Consulting, LLC, to accept the Timely Eligible Claims stated in Exhibit D to the Simmons Declaration and the Late But Otherwise Eligible Claims stated in Exhibit E to the Simmons Declaration, are adopted. The Claims Administrator's administrative recommendations to reject wholly ineligible Claims, as stated in Exhibit F to the Simmons Declaration, are adopted. Analytics is directed to conduct an Initial Distribution of the Net Settlement Fund, after deducting all payments previously allowed and the payments approved by the Order, and after deducting the payment of any estimated taxes, the costs of preparing appropriate tax returns, and any escrow fees, while maintaining a 5% reserve from the Net Settlement Fund to address any tax liability and claims administration-related contingencies that may arise. Specifically, (1) Analytics will calculate each Authorized Claimant's: (a) pro rata share of the Exchange Act Claim Fund based on the amount of the Authorized Claimant's Exchange Act Recognized Claim in comparison to the total Exchange Act Recognized Claims of all Authorized Claimants; and (b) pro rata of the Securities Act Claim Fund based on the amount of the Authorized Claimant's Securities Act Recognized Claim in comparison to the total Securities Act Recognized Claims of all Authorized Claimants; (2) Analytics will, in accordance with the terms of the Court-approved Plan of Allocation, calculate the total amount each Authorized Claimant would recover in accordance with the calculations stated and then will eliminate from the Initial Distribution any Authorized Claimant whose combined pro rata shares of the Exchange Act Claim Fund and Securities Act Claim Fund calculate to less than $10. These Claimants will not receive any payment from the Net Settlement Fund and will be so notified by Analytics; (3) After eliminating Claimants who would have received less than $10 in the Initial Distribution, Analytics will recalculate the pro rata share of the Exchange Act Claim Fund and Securities Act Claim Fund for all Authorized Claimants who would have received $10 or more pursuant to the calculations described, and the sum of those pro rata shares is the Authorized Claimant's Distribution Amount; (4) Authorized Claimants whose Distribution Amount calculates to less than $100 will be paid their fill Distribution Amount in the Initial Distribution (Claims Paid in Full), and these Authorized Claimants will get no additional funds in subsequent distributions; and (5) After deducting the payments to the Claims Paid in Full, 95% of the remaining balance of the Net Settlement Fund will be distributed pro rata to Authorized Claimants whose Distribution Amount calculates to $100 or more. The remaining 5% of the Net Settlement Fund will be held in reserve (the Reserve) to address any tax liability and claims administration-related contingencies that may arise. To the extent the Reserve is not depleted, the remainder will be distributed in the Second Distribution. In order to encourage Authorized Claimants to cash their checks promptly, all distribution checks will bear the following notation: Cash Promptly. Void and Subject to Redistribution if Not Cashed by [90 Days After Issue Date]. The Lead Counsel and Analytics are authorized to take appropriate action to locate and contact Authorized Claimants who have not cashed their distribution checks within said time. The Authorized Claimants who do not cash their Initial Distribution checks within the time allotted or on the conditions stated will irrevocably forfeit all recovery from the Settlement, and the funds allocated to all stale-dated checks will be available to be distributed to other Authorized Claimants in the Second Distribution. Similarly, Authorized Claimants who do not cash their second or subsequent distribution checks (should such distributions occur) within the time allotted or on the conditions stated will irrevocably forfeit any further recovery from the Net Settlement Fund. After Analytics has made reasonable and diligent efforts to have Authorized Claimants cash their Initial Distribution checks, but not earlier than seven months after the Initial Distribution, Analytics will conduct a second distribution in which any amount remaining in the Net Settlement Fund after the Initial Distribution, after deducting Analytics' unpaid fees and expenses incurred in administering the Settlement, and after deducting the payment of any estimated taxes, the costs of preparing appropriate tax returns, and any escrow fees, will be distributed to all Authorized Claimants who cashed their Initial Distribution check and are entitled to receive at least $10 from the Second Distribution based on their pro rata share of the remaining funds. Additional distributions, after deduction of costs and expenses as described above and subject to the same conditions, may occur thereafter in six-month intervals until the Lead Counsel determines that further distribution is not cost-effective. At such time as the Lead Counsel, in consultation with Analytics, determines that further distribution of the funds remaining in the Net Settlement Fund is not cost-effective, if sufficient funds remain to warrant the processing of Claims received after June 29, 2020, such Claims will be processed, and any such Claims that are otherwise valid, as well as any previously received Claims for which an adjustment was received after submission of the Plaintiffs' motion that resulted in an increased Recognized Claims amount, will be paid. If any funds remain in the Net Settlement Fund after payment of such late or late-adjusted Claims, the remaining balance of the Net Settlement Fund, after payment of any unpaid fees or expenses incurred in connection with administering the Net Settlement Fund and after the payment of any estimated taxes, the costs of preparing appropriate tax returns, and any escrow fees, will be contributed to nonsectarian, not-for-profit, organization(s), to be recommended by the Lead Counsel and approved by the Court. No new Claims may be accepted after June 29, 2020, and no further adjustments to previously received Claims that would result in an increased Recognized Claims amount may be made, subject to the following exception. If Claims are received or modified that would have been eligible for payment or additional payment under the Plan of Al location if timely received, then, at the time that the Lead Counsel determines that a redistribution is not cost-effective, and after payment of any unpaid fees or expenses incurred in connection with administering the Net Settlement Fund and after deducting the payment of any estimated taxes, the costs of preparing appropriate tax returns, and any escrow fees, such Claimants may be paid the distribution amounts or additional distribution amounts on a pro rata basis that would bring them into parity with other Authorized Claimants who have cashed all their prior distribution checks to the extent possible. All of Analytics' fees and expenses incurred in the administration of the Settlement and estimated to be incurred in connection with the Distribution of the Net Settlement Fund are approved, and the Lead Counsel is directed to pay the outstanding balance of $56,828.75 out of the Settlement Fund to Analytics. Unless otherwise ordered by the Court, one year after the Second Distribution, if that occurs, or, if there is no Second Distribution, two years after the Distribution, Analytics may destroy the paper copies of the Claims and all supporting documentation, and one year after all funds have been distributed may destroy electronic copies of the same. A full-text copy of the Court's Aug. 26, 2020 Order is available at https://tinyurl.com/y6enypjg from Leagle.com. MERCED CITY, CA: Mag. Judge Recommends OK of McKinnon Suit Deal ---------------------------------------------------------------- In the case, NATHANIEL McKINNON, et al., Plaintiffs, v. CITY OF MERCED, Defendant, Case No. 1:18-cv-01124-NONE-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California issued his findings and recommendations recommending the granting of the parties' joint motion for preliminary approval of settlement agreement and certification of the collective for purposes of settlement. Named Plaintiffs McKinnon, Courtney Bohanan, Edward Drum, Timothy Gaches, Joseph Perez, and Luis R. Solis bring the action on behalf of themselves and all similarly situated individuals, against Defendant City of Merced, alleging various wage and hour violations under the Fair Labor Standards Act ("FLSA"). The Plaintiffs are 75 current or former employees of Defendant City of Merced claiming unpaid overtime compensation under the FLSA stemming from the Defendant's alleged failure to include holiday-in-lieu pay in the regular rate of pay used to calculate overtime compensation. Specifically, they allege that because they were required to work on designated holidays that other City employees were allowed to take off, the holiday-in-lieu pay was compensation pursuant to the FLSA and should have been included in calculating and paying the Plaintiffs' overtime compensation. The City denies that it was required to include holiday-in-lieu pay in the regular rate and asserts that the Plaintiffs were properly and fully compensated for their overtime work. The Plaintiffs assert that the Defendant has miscalculated their overtime compensation by not including the holiday-in-lieu pay in the overtime rate calculation. They contend that, by excluding the holiday-in-lieu pay from their regular rate of pay, the Defendant violated the FLSA by failing to pay full compensation for all hours of overtime worked. On Aug. 17, 2018, the Named Plaintiffs filed this action. On Oct. 9, 2018, the Defendant filed a motion to dismiss that was denied on Dec. 21, 2018. On Dec. 28, 2018, the Defendant filed an answer to the complaint. On Feb. 6, 2019, the Court issued a scheduling order setting among other dates, a trial date of Jan. 26, 2021. On June 20, 2019, pursuant to the parties' stipulation, the Court issued an order conditionally certifying the matter as a collective action. In addition to the six Named Plaintiffs, 69 current and former employees of the City filed consents joining the action as Plaintiffs. Of the 75 Plaintiffs, 73 are or were employed by the City of Merced in the Police Department, and the remaining two are employed as refuse equipment operates by the City. The parties proffer that after extensive discovery and investigative activities, as well as substantial negotiations, including an all-day mediation, they reached an agreement to settle the action. Pursuant to the proposed settlement agreement, Defendant City of Merced will pay a total of $250,000 to settle the action, inclusive of attorneys' fees and costs. A total of $106,119 is allocated to pay damages to the Plaintiffs. Attorneys' fees will be paid in the amount of $106,984.23 for services rendered in the action, and costs will be paid in the amount of $36,896.77, for a total of $143,881 in total fees and costs to be paid to the law firm of the Plaintiffs' counsel. Each collective action member agrees to dismiss with prejudice his or her claims in the action. The Settlement Agreement applies to any complaint, claim, grievance or charge for FLSA overtime compensation related to the action, filed with any state or federal court, with any administrative body, agency, board, commission, or other entity. The Plaintiffs are releasing all claims, known or unknown, arising out of the matters raised in this action including all claims made in the lawsuit for unpaid overtime, liquidated damages and attorneys' fees and costs that have occurred up to and including the effective date of the Settlement Agreement. The parties proffer that the 75 Plaintiffs have signed an individual signature page or acknowledgement agreeing to the terms of the Settlement Agreement. On May 14, 2020, the parties filed a notice of conditional settlement. On the same date, the Court vacated all pending dates and matters and ordered the Plaintiffs to file a motion for approval of settlement within 60 days. Pursuant to the parties' stipulation, on July 14, 2020, the Court extended the deadline for filing until July 17, 2020. On July 16, 2020, parties filed the joint motion for approval of the FLSA settlement and set a hearing to occur on Aug. 19, 2020. On Aug. 19, 2020, the Court held a hearing on the motion via videoconference. Magistrate Judge Boone finds that the policy alleged to have violated the FLSA is a department-wide policy to which all the Plaintiffs were subjected, which supports finding that the employees are similarly situated under the FLSA. He finds that the Plaintiffs are similarly situated under the FLSA and recommends the action be certified to proceed as a collective action for purposes of settlement. As to whether a bona fide dispute exists, Magistrate Judge Boone finds that (i) the parties have a bona fide dispute regarding whether the Defendant was required to include holiday-in-lieu pay in the regular rate for the purposes of calculating overtime under the FLSA; (ii) a bona fide dispute exists between the parties as to the proper method to calculate the amount of wage damages in the action; (iii) a bona fide dispute exists over the fact and which limitations period is applicable to the action, based on the parties' opposing positions regarding whether the Defendant's conduct was willful; (iv) a bona fide dispute exists as to whether the Plaintiffs are entitled to liquidated damages should they prevail in the action.; and (v) bona fide disputes exist between the parties as to whether there was a violation of the FLSA, the method for calculating damages, whether liquidated damages could be recovered in the action, and whether the Defendant's conduct was willful and the related impact on the appropriate statute of limitations. Having found that a bona fide dispute exists, the Magistrate Judge considers whether the settlement is fair and reasonable. He finds that (i) the amount offered in settlement; (ii) the stage of the proceedings and the amount of discovery that was conducted; (iii) consideration of the future litigation risks; (iv) the scope of the release; (v) the experience and views of the counsel, along with the fact that the Plaintiffs each reviewed and agreed to the terms of the settlement agreement; (vi) the settlement was reached by arm's-length bargaining; and (vii) the settlement's overall effect, which is to vindicate the policy goals and purposes of the FLSA, all weigh in favor of finding the settlement to be fair and reasonable resolution of a bona fide dispute. Assessing the reasonableness of the attorneys' fee award, Magistrate Judge Boone finds that (i) the amount of attorneys' fees is well above the 25% benchmark; (ii) the Plaintiffs have sufficiently demonstrated the reasonable expenditure of 445.4 total hours of attorney and law clerk time; and (iii) the counsels' normal hourly rates to be reasonable rates to utilize in the lodestar calculation, and sees no compelling reason to adopt the higher proposed $450 rate. He emphasizes that while he ultimately finds the total fees and costs to be reasonable as based on the counsels' sufficient explanation, the counsel is cautioned that when an accounting expert's services are utilized to the extent they were, attorneys' hours billed should normally and comparatively be lessened to reflect that the accounting expert firm carried a major load of the litigation work, particularly when in a pre-trial posture. Nonetheless, for all the reasons explained, he accepts the attorneys' fees and the costs as reasonable. He recommends attorneys' fees in the amount of $106,984.23 be approved as part of the parties' settlement. Finally, the counsel has attached multiple invoices from the expert's firm that itemizes the tasks completed by the various timekeepers. Magistrate Judge Boone does not find any of the tasks to be facially unreasonable. Accepting the representations of the counsel explaining the necessity for experts given the complexity of the records involved, and consent to these terms by the parties and the Defendant, he does not find the expert fees are out of the bounds of reasonableness or prohibitively expensive. He also finds the other documented costs to be reasonable. Accordingly, Magistrate Judge Boone recommends approval of the total amount of $36,896.77 in costs as agreed to by the parties in the settlement agreement. Based on the forefoing reasons, Magistrate Judge Boone recommended that (i) the settlement agreement be approved as fair and reasonable; (ii) the collective be certified for purposes of settlement; and (iii) the joint motion for approval of the settlement be granted. His findings and recommendations is submitted to the district judge assigned to the action. Within 14 days of service of the recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. A full-text copy of the Court's Aug. 19, 2020 Findings & Recommendations is available at https://tinyurl.com/y58fvy5f from Leagle.com. MERLIN ENTERTAINMENTS: Court Sets Further Deadlines in Case Suit ---------------------------------------------------------------- In the case, JOYCE CASE, individually and on behalf of all others similarly situated, Plaintiff, v. MERLIN ENTERTAINMENTS GROUP U.S. HOLDINGS INC., a Delaware corporation; LEGOLAND CALIFORNIA, LLC, a Delaware limited liability company; MERLIN ENTERTAINMENTS SHORT BREAKS LLC, a Delaware limited liability company; MADAME TUSSAUDS HOLLYWOOD LLC, a Delaware limited liability company; MADAME TUSSAUDS SAN FRANCISCO LLC, a Delaware limited liability company; and SAN FRANCISCO DUNGEON LLC, Defendants, Case No. 3:20-CV-01049-JAH-MSB (S.D. Cal.), Judge John A. Houston of the U.S. District Court for the Southern District of California granted the Parties' Joint Motion to Set Further Case Deadlines and to Vacate the Hearing Date on Defendants' Motion to Dismiss. Accordingly, the hearing date on the Defendants' Motion to Dismiss the Plaintiff's Complaint that was set for Sept. 2, 2020 at 10:30 a.m. was vacated. The Court ordered the Plaintiff to file a First Amended Complaint no later than Sept. 2, 2020. The Defendants must move to dismiss or otherwise respond to the Plaintiff's First Amended Complaint no later than Sept. 30, 2020. The Plaintiff must file her Opposition to the Defendants' anticipated Motion to Dismiss the First Amended Complaint no later than Oct. 21, 2020. The Defendants will file a Reply in Support of their anticipated Motion to Dismiss the First Amended Complaint no later than Nov. 4, 2020. A full-text copy of the Court's Aug. 19, 2020 Order is available at https://tinyurl.com/y3jdpdrc from Leagle.com. MICHAEL ARAM: Website Inaccessible to Blind Users, Angeles Claims ----------------------------------------------------------------- JENISA ANGELES, on behalf of herself and all others similarly situated, Plaintiff v. MICHAEL ARAM, INC., Defendant, Case No. 1:20-cv-08810 (S.D.N.Y., October 22, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Americans with Disabilities Act (ADA). The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using her computer. The Plaintiff claims that she was denied a shopping experience similar to that of a sighted individual when she visited the Defendant's Website, www.michaelaram.com, on multiple occasions, the last occurring in October of 2020, to make a purchase. The Website allegedly lacks a variety of features and accommodations, which effectively barred the Plaintiff from being able to determine what specific products were offered for sale. The Plaintiff alleges that the Defendant failed to design, construct, maintain, and operate its website to be fully accessible to and independently usable by blind or visually-impaired people due to its non-compliance with the Web Content Accessibility Guidelines 2.1, thereby engaging in acts of intentional discrimination. Michael Aram, Inc. is a designer company that owns and operates www.michaelaram.com. [BN] The Plaintiff is represented by: David P. Force, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 E-mail: dforce@steinsakslegal.com MICHIGAN: Court Denies Howell's Class Certification Bid ------------------------------------------------------- In the case, DWAYNE E. HOWELL, Petitioner, v. RANDEE REWERTS et al., Respondents, Case No. 1:20-cv-763 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, (i) dismissed the petition for habeas corpus for failure to exhaust state-court remedies, (ii) denied the Petitioner's request for class certification, (iii) denied his request for preliminary injunctive relief, and (iv) denied a certificate of appealability. Petitioner Howell is incarcerated with the Michigan Department of Corrections ("MDOC") at the Carson City Correctional Facility ("DRF") in Carson City, Michigan. A Wayne County Circuit Court jury found the Petitioner guilty of two counts of first-degree murder and one count of breaking and entering an occupied dwelling. On Dec. 21, 1984, the court sentenced him to life imprisonment for the first-degree murder convictions and 10 to 15 years for breaking and entering. The Petitioner has been discharged from the breaking and entering sentence. On July 21, 2020, the Petitioner filed his habeas corpus petition. The petition alleges that the risk of infection arising from the COVID-19 pandemic and the perpetual fear resulting from that risk renders the Petitioner's continued imprisonment a violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. He seeks placement under house arrest or in a "halfway house." The Court considers Petitioner's request for relief as a request for immediate release. The Petitioner's claims regarding the constitutionality of his custody in the prison because of risks posed by COVID-19 are principally claims regarding the conditions of his confinement. Such claims should be raised by a complaint for violation of 42 U.S.C. Section 1983. Accordingly, Judge Neff construes his claim as a proper claim for habeas relief. Nonetheless, because the Petitioner has chosen to pursue relief by way of a habeas petition, the available relief is circumscribed. Even if there might be conditions of confinement, short of release, that would mitigate the risk -- and eliminate the cruel or unusual character of the punishment -- it is not within the Court's habeas jurisdiction to grant such relief. A claim seeking relief other than release is properly brought under 42 U.S.C. Section 1983. Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. The Petitioner bears the burden of showing exhaustion. He has neither alleged that he exhausted his claims in the state courts nor has he provided any documentation indicating that he has pursued any such state remedies. He does contend that he has not exhausted, and should not be required to exhaust, his claims by way of DRF's administrative grievance procedure. Exhaustion of that remedy, however, is not required before filing a habeas petition. Because he has failed to exhaust his claims, his petition is properly dismissed without prejudice, rules Judge Neff. The habeas statute imposes a one-year statute of limitations on habeas claims. The Petitioner's period of limitation commenced running when the factual predicate of his claim could have been discovered through the exercise of reasonable diligence. The Petitioner has far more than 60 days remaining in his limitations period. If he diligently pursues his state-court remedies and promptly returns to the Court after the Michigan Supreme Court issues its decision, he is not in danger of running afoul of the statute of limitations. Therefore, a stay of these proceedings is not warranted, and Judge Neff dismissed the petition for failure to exhaust available state-court remedies. The Petitioner asks the Court to certify a class of petitioners due to the large number of prisoners affected by the Respondents deliberate violations. Because the Petitioner is an incarcerated pro se litigant, the Judge finds that he is not appropriate representative of a class. Therefore, Judge Neff denied the Petitioner's request for class certification. As part of his petition, the Petitioner asks the Court to order preliminary injunctive relief immediately releasing him from custody at DRF. Because the petition is properly dismissed, the Judge denied his request as moot. Finally, Judge Neff finds that reasonable jurists could not find it debatable whether the Petitioner's application should be dismissed for lack of exhaustion. Therefore, a certificate of appealability is denied. Moreover, for the same reasons she will deny a certificate of appealability, the Judge also concludes that any issue the Petitioner might raise on appeal would be frivolous. A full-text copy of the Court's Aug. 19, 2020 Opinion is available at https://tinyurl.com/y5oyjo34 from Leagle.com. MICHIGAN: Philpot's Request for Class Certification Denied ---------------------------------------------------------- In the case, ISAAC PHILPOT, Petitioner, v. RANDEE REWERTS et al., Respondents, Case No. 1:20-cv-765 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, (i) dismissed the petition for habeas corpus for failure to exhaust state-court remedies, (ii) denied the Petitioner's request for class certification, (iii) denied his request for preliminary injunctive relief, and (iv) denied a certificate of appealability. Petitioner Philpot is incarcerated with the Michigan Department of Corrections ("MDOC") at the Carson City Correctional Facility ("DRF") in Carson City, Michigan. Following the Plaintiff's guilty pleas in three separate Wayne County Circuit Court criminal proceedings, on Dec. 16, 1977, the court sentenced him to life imprisonment for three counts of armed robbery, one count of first-degree criminal sexual conduct, one count of assault with intent to commit murder, and one count of second-degree murder. On July 21, 2020, the Petitioner filed his habeas corpus petition. The petition alleges that the risk of infection arising from the COVID-19 pandemic and the perpetual fear resulting from that risk renders the Petitioner's continued imprisonment a violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. He seeks placement under house arrest or in a "halfway house." The Court considers Petitioner's request for relief as a request for immediate release. The Petitioner's claims regarding the constitutionality of his custody in the prison because of risks posed by COVID-19 are principally claims regarding the conditions of his confinement. Such claims should be raised by a complaint for violation of 42 U.S.C. Section 1983. Accordingly, Judge Neff construes his claim as a proper claim for habeas relief. Nonetheless, because the Petitioner has chosen to pursue relief by way of a habeas petition, the available relief is circumscribed. Even if there might be conditions of confinement, short of release, that would mitigate the risk -- and eliminate the cruel or unusual character of the punishment -- it is not within the Court's habeas jurisdiction to grant such relief. A claim seeking relief other than release is properly brought under 42 U.S.C. Section 1983. Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. The Petitioner bears the burden of showing exhaustion. He has neither alleged that he exhausted his claims in the state courts nor has he provided any documentation indicating that he has pursued any such state remedies. He does contend that he has not exhausted, and should not be required to exhaust, his claims by way of DRF's administrative grievance procedure. Exhaustion of that remedy, however, is not required before filing a habeas petition. Because he has failed to exhaust his claims, his petition is properly dismissed without prejudice, rules Judge Neff. The habeas statute imposes a one-year statute of limitations on habeas claims. The Petitioner's period of limitation commenced running when the factual predicate of his claim could have been discovered through the exercise of reasonable diligence. The Petitioner has far more than 60 days remaining in his limitations period. If he diligently pursues his state-court remedies and promptly returns to the Court after the Michigan Supreme Court issues its decision, he is not in danger of running afoul of the statute of limitations. Therefore, a stay of these proceedings is not warranted, and the Judge dismissed the petition for failure to exhaust available state-court remedies. The Petitioner asks the Court to certify a class of petitioners due to the large number of prisoners affected by the Respondents deliberate violations. Because the Petitioner is an incarcerated pro se litigant, the Judge finds that he is not appropriate representative of a class. Therefore, Judge Neff denied the Petitioner's request for class certification. As part of his petition, the Petitioner asks the Court to order preliminary injunctive relief immediately releasing him from custody at DRF. Because the petition is properly dismissed, the Judge denied his request as moot. Finally, Judge Neff finds that reasonable jurists could not find it debatable whether the Petitioner's application should be dismissed for lack of exhaustion. Therefore, a certificate of appealability is denied. Moreover, for the same reasons she will deny a certificate of appealability, the Judge also concludes that any issue the Petitioner might raise on appeal would be frivolous. A full-text copy of the Court's Aug. 19, 2020 Opinion is available at https://tinyurl.com/y5m7qzbn from Leagle.com. MICHIGAN: Plair's Class Certification Bid Denied ------------------------------------------------ In the case, OLIVER PLAIR, Petitioner, v. RANDEE REWERTS et al., Respondents, Case No. 1:20-cv-761 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, (i) dismissed the petition for habeas corpus for failure to exhaust state-court remedies, (ii) denied the Petitioner's request for class certification, (iii) denied his request for preliminary injunctive relief, and (iv) denied a certificate of appealability. Petitioner Plair is incarcerated with the Michigan Department of Corrections ("MDOC") at the Carson City Correctional Facility ("DRF") in Carson City, Michigan. A Genessee County Circuit Court jury found the Petitioner guilty of kidnapping, first-degree criminal sexual conduct ("CSC-I"), and armed robbery. On Aug. 9, 1991, the court sentenced Petitioner to 50 to 75 years' imprisonment for kidnapping and CSC-I and 10 to 20 years for armed robbery. While the Petitioner was in prison, he was convicted of two counts of assaulting a prison employee. He received sentences of 3 to 15 years for each count. According to the MDOC, as a result of these sentences, the Petitioner has an earliest release date of March 7, 2034, and a maximum discharge date of Sept. 15, 2063. On July 21, 2020, the Petitioner filed his habeas corpus petition. The petition alleges that the risk of infection arising from the COVID-19 pandemic and the perpetual fear resulting from that risk renders the Petitioner's continued imprisonment a violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. He seeks placement under house arrest or in a "halfway house." The Court considers Petitioner's request for relief as a request for immediate release. The Petitioner's claims regarding the constitutionality of his custody in the prison because of risks posed by COVID-19 are principally claims regarding the conditions of his confinement. Such claims should be raised by a complaint for violation of 42 U.S.C. Section 1983. Accordingly, Judge Neff construes his claim as a proper claim for habeas relief. Nonetheless, because the Petitioner has chosen to pursue relief by way of a habeas petition, the available relief is circumscribed. Even if there might be conditions of confinement, short of release, that would mitigate the risk -- and eliminate the cruel or unusual character of the punishment -- it is not within the Court's habeas jurisdiction to grant such relief. A claim seeking relief other than release is properly brought under 42 U.S.C. Section 1983. Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. The Petitioner bears the burden of showing exhaustion. He has neither alleged that he exhausted his claims in the state courts nor has he provided any documentation indicating that he has pursued any such state remedies. He does contend that he has not exhausted, and should not be required to exhaust, his claims by way of DRF's administrative grievance procedure. Exhaustion of that remedy, however, is not required before filing a habeas petition. Because he has failed to exhaust his claims, his petition is properly dismissed without prejudice, rules Judge Neff. The habeas statute imposes a one-year statute of limitations on habeas claims. The Petitioner's period of limitation commenced running when the factual predicate of his claim could have been discovered through the exercise of reasonable diligence. The Petitioner has far more than 60 days remaining in his limitations period. If he diligently pursues his state-court remedies and promptly returns to the Court after the Michigan Supreme Court issues its decision, he is not in danger of running afoul of the statute of limitations. Therefore, a stay of these proceedings is not warranted, and the Judge dismissed the petition for failure to exhaust available state-court remedies. The Petitioner asks the Court to certify a class of petitioners due to the large number of prisoners affected by the Respondents deliberate violations. Because the Petitioner is an incarcerated pro se litigant, Judge Neff finds that he is not appropriate representative of a class. Therefore, the Petitioner's request for class certification is denied. As part of his petition, the Petitioner asks the Court to order preliminary injunctive relief immediately releasing him from custody at DRF. Because the petition is properly dismissed, the Judge denied his request as moot. Finally, the Judge Neff finds that reasonable jurists could not find it debatable whether the Petitioner's application should be dismissed for lack of exhaustion. Therefore, a certificate of appealability is denied. Moreover, for the same reasons she will deny a certificate of appealability, the Judge also concludes that any issue the Petitioner might raise on appeal would be frivolous. A full-text copy of the Court's Aug. 19, 2020 Opinion is available at https://tinyurl.com/y49px8dl from Leagle.com. MICROSOFT CORP: Settlement in Canadian Class Suits Wins Final OK ---------------------------------------------------------------- Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that a final settlement and form of notice have been approved by the courts in British Columbia, Ontario, and Quebec, in Canada. Antitrust and unfair competition class action lawsuits were filed against the company in British Columbia, Ontario, and Quebec, Canada. All three have been certified on behalf of Canadian indirect purchasers who acquired licenses for Microsoft operating system software and/or productivity application software between 1998 and 2010. The trial of the British Columbia action commenced in May 2016. Following a mediation, the parties agreed to a global settlement of all three Canadian actions, and submitted the proposed settlement agreement to the courts in all three jurisdictions for approval. The final settlement and form of notice have been approved by the courts in British Columbia, Ontario, and Quebec. Microsoft said, "The ten month claims period will commence upon distribution of notice to the class, which we anticipate to occur in the second quarter of fiscal year 2021." Microsoft Corporation develops, licenses, and supports software, services, devices, and solutions worldwide. The company was founded in 1975 and is headquartered in Redmond, Washington. MYOS RENS: Directors Breached Fiduciary Duties, Vigil Suit Claims ----------------------------------------------------------------- LOUIS VIGIL, On Behalf of Himself and All Others Similarly Situated v. JOSEPH MANNELLO, DR. ROBERT HARIRI, DR. LOUIS ARONNE, CHRISTOPHER PECHOCK, VICTOR MANDEL, ERIC ZALTAS, CHRISTOPHER DEWEY, ANDREW PONTE, and REN REN, Case No. A-20-822848-C (Nev. Dist. Ct., Clark Cty., Oct. 12, 2020), is a stockholder class action complaint brought on behalf of the Plaintiff and the holders of the common stock of MYOS RENS Technology Inc. against the members of the Board of Directors of MYOS for breaching their fiduciary duties. On June 30, 2020, MYOS announced that it had entered into a definitive merger agreement with MedAvail, Inc. The Merger Agreement is the result of the Board's -- and, specifically, CEO and director defendant Joseph Mannello's -- desire to simultaneously rid themselves of Ren Ren, the Company's "Global Chairman" with whom they had been embroiled in ongoing litigation, and take MYOS private. According to the complaint, in order to end this litigation, see Ren Ren on his way, and take the Company private, the Board concocted an extremely unorthodox Merger Agreement that will result in two distinct transactions, pursuant to which (1) the current business of MYOS -- all that MYOS essentially is at this time -- is being spun out into a new company that will be owned by all of MYOS 's current shareholders except Ren Ren; and (2) MYOS is essentially selling its public listing on the NASDAQ to MedAvail in exchange for $2 million in cash and a $3 million promissory note -- which it will apparently use to pay off Ren Ren so that he does not have an interest in the spinoff -- and a nominal 3.5% interest in the post-merger company. The Plaintiff contends that the Proposed Transaction is a reverse merger whereby MYOS is selling to MedAvail its public listing on the NASDAQ for $2 million in cash, the $3 million Promissory Note, and a 3.5% interest in the Post-Merger Company, and is no more than a vehicle through which the Board -- and specifically MYOS' CEO and second largest shareholder, defendant Mannello -- can liberate themselves from Ren Ren. Accordingly, the process leading to the Proposed Transaction appears to be plagued by conflicts of interest, the Plaintiff adds. In order to convince MYOS shareholders to vote in favor of the Proposed Transaction, on September 2, 2020, the Company filed a preliminary Form S-4 Registration Statement with the Securities and Exchange Commission. The Proxy provides a woefully inadequate account of the process and negotiations that resulted in the Proposed Transaction and omits material information necessary for Plaintiff and the other public shareholders of MYOS to cast an informed vote in connection with the Proposed Transaction, all in breach of the Defendants' fiduciary duties, the Plaintiff alleges. The Plaintiff seeks an order enjoining the November 16, 2020 special meeting of Company shareholders to vote on a Proposed Transaction unless and until the Board remedies the material Proxy disclosure deficiencies, and, in the event the Proposed Transaction is consummated, damages incurred as a result of Defendants' breaches of fiduciary duty. The Plaintiff is/was a continuous stockholder of MYOS. MYOS RENS Technology Inc. operates as a biopharmaceutical company. The Company discovers, develops, and commercializes therapeutics and nutritional products that improves muscle health and function essential to the management of sarcopenia, cachexia, and chronic and acute muscle diseases. The Defendants are officers and directors of MYOS.[BN] The Plaintiff is represented by: G. Mark Albright, Esq. Daniel R. Ormsby, Esq. Hayden R. D. Smith, Esq. ALBRIGHT, STODDARD, WARNICK & ALBRIGHT 801 South Rancho Drive, Suite D-4 Las Vegas, NE 89106 Telephone: (702) 384 7111 Facsimile: (702) 384 0605 E-mail: gma@albrightstoddard.com dormsby@albrightstoddard.com hsmithAalbrightstoddard.com - and - Michael J. Palestina, Esq. KAHN SWICK & FOTI, LLC 100 Poydras Street, Suite 3200 New Orleans, LA 70163 Telephone: (504) 455-1400 Facsimile: (504) 455-1498 - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Telephone: (212) 971-1341 Facsimile: (212) 202-7880 E-mail: jmonteverde@monteverdelaw.com NAHAL REALTY: Rosales Sues Over Unpaid Minimum and Overtime Wages ----------------------------------------------------------------- Arnulfo Rosales, individually and on behalf of others similarly situated v. NAHAL REALTY CORP., HABIB FARZAMIFAR, and BAKHTIAR BAKHTIARI, Case No. 1:20-cv-08634 (S.D.N.Y., Oct. 16, 2020), is brought for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938, and for violations of the N.Y. Labor Law, including applicable liquidated damages, interest, attorneys' fees, and costs. The complaint alleges that the Plaintiff worked for the Defendants without appropriate minimum wage compensation for the hours that he worked. The Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay the Plaintiff appropriately for any hours worked at the straight rate of pay. Furthermore, the Defendants repeatedly failed to pay the Plaintiff's wages on a timely basis. The Defendants also maintained a policy and practice of requiring the Plaintiff and other employees to work without providing the minimum wage compensation required by federal and state law and regulations, says the complaint. The Plaintiff Rosales was employed as a porter. The Defendants own, operate, or control an apartment building located in New York City.[BN] The Plaintiffs are represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 NESTLE WATERS: Court Narrows Claims in Patane Suit -------------------------------------------------- In the case, MARK J. PATANE et al., Plaintiffs, v. NESTLE WATERS NORTH AMERICA, INC., Defendant, Case No. 3:17-cv-01381 (JAM) (D. Conn.), Judge Jeffrey Walker Meyer of the U.S. District Court for the District of Connecticut granted in part and denied in part Nestle's motion for summary judgment. The Plaintiffs have filed the class action lawsuit alleging that Defendant Nestle fraudulently labels and sells its Poland Spring bottled water product as "spring water" when in fact it is not spring water as defined by law. Nestle labels and sells its Poland Spring water products as "spring water" in retail, home, and office markets. The Plaintiffs have purchased Poland Spring water since 2003 and reside in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island. Nestle has packaged its water at bottling facilities in Poland Spring and Hollis, Maine, and Framingham, Massachusetts, since 2003, and since 2009 has also used a fourth facility in Kingfield, Maine. From 2003 to 2017, the water packaged at these four facilities came from eight sites in Maine. In 2018, Judge Meyer dismissed the Plaintiffs' initial complaint because their state law claims as framed were all preempted by the federal Food, Drug, and Cosmetic Act. The Plaintiffs then filed an amended complaint on behalf of consumers in the eight states listed as well as Vermont, alleging state common law claims for fraud and breach of contract in addition to state statutory claims for consumer fraud and unfair trade practices. The Judge dismissed the Vermont law claims and allowed the rest to proceed. The Plaintiffs seek, among other remedies, money damages and a permanent injunction enjoining Nestlé from selling its Poland Spring water as "spring water." Nestle has now moved for summary judgment on all of the Plaintiffs' claims arising under the laws of Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island on three grounds. First, it argues that there is no private right of action under applicable state law for the claimed violations by Nestlé of state law "spring water" standards. Second, Nestle argues that applicable state law recognizes a safe harbor defense to foreclose liability against it in light of alleged state regulatory approvals of its "spring water" for sale. Third, it argues that the lawsuit functions as an impermissible collateral attack on the administrative approvals of state regulators for the sale of its product as "spring water." Based on his state-by-state evaluation of these arguments, Judge Meyer generally concludes that the lack of a specific right of action for the violation of a state law spring water standard does not foreclose the underlying conduct from being actionable under separate state statutes that prohibit unfair and deceptive trade practices or from being actionable to the extent that they amount to fraud and breach of contract. He further concludes -- with the exception of Rhode Island -- that at least a genuine issue of fact remains whether Nestle is entitled to the benefit of any regulatory safe harbor exemptions or whether the Plaintiffs' claims amount to an impermissible collateral attack on state-issued licenses or permits. Responding to Nestle's argument that that it is entitled to Rhode Island Deceptive Trade Practices Act ("RIDTPA")'s safe harbor exemption, the Plaintiffs rely on a single case noting in dicta that a statute requiring debt collectors to register with an agency may not be sufficient regulation or monitoring under the exemption but declining to decide whether the exemption applied. In the instant case, not only was Nestle subject to licensure, but the misconduct alleged by the Plaintiffs risks it having its license suspended or revoked. Accordingly, because RIDTPA's safe harbor exemption is significantly broader in scope than the safe harbor exemption under the laws of the other states at issue in the case and because Nestle has shown that it was subject to monitoring in relevant respects by the Rhode Island Department of Health, Nestle has shown that it qualifies for the RIDTPA safe harbor exemption, and Judge Meyer grants Nestle's motion for summary judgment with respect to the Plaintiffs' RIDTPA claim. Judge Meyer, therefore, granted in part and denied in part the motion for summary judgment. It is granted as to Count VIII (Rhode Island Deceptive Trade Practices Act claim), and denied as to all other claims. A full-text copy of the Court's Aug. 12, 2020 Order is available at https://tinyurl.com/y2owas3d from Leagle.com. NEVADA: Appeals from Writ of Mandamus Ruling in Payne Dismissed --------------------------------------------------------------- The Supreme Court of Nevada dismissed the appeal and cross-appeal from a July 22, 2020 order of the district court granting in part and denying in part a petition for a writ of mandamus in an unemployment benefits matter in the case, AMETHYST PAYNE; IRIS PODESTAMIRELES; ANTHONY NAPOLITANO; ISAIAH PAVIA-CRUZ; VICTORIA WAKED; CHARLES PLOSKI; DARIUSH NAIMI; TABITHA ASARE; SCOTT HOWARD; RALPH WYNCOOP; ELAINA ABING; AND WILLIAM TURNLEY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Appellants/Cross-Respondents, v. STATE OF NEVADA, DEPARTMENT OF EMPLOYMENT, TRAINING AND REHABILITATION (DETR); HEATHER KORBULIC IN HER OFFICIAL CAPACITY ONLY AS NEVADA DIRECTOR OF EMPLOYMENT, TRAINING AND REHABILITATION; DENNIS PEREA IN HIS OFFICIAL CAPACITY AS DEPUTY DIRECTOR OF DETR; AND KIMBERLY GAA, IN HER OFFICIAL CAPACITY ONLY AS THE ADMINISTRATOR FOR THE EMPLOYMENT SECURITY DIVISION (ESD), Respondents/Cross-Appellants, Case No. 81582 (Nev.). Specifically, in the July 22 order, the district court described generally who should be considered a covered individual for purposes of Pandemic Unemployment Assistance and ordered that payments to individuals whose payments had begun and then stopped must be restarted by July 28, 2020. In the order, a hearing for July 30, 2020, to resolve the claims of the earliest filers, and address the purported non-eligibility of people who filed claims before the first case of COVID-19 was confirmed in Nevada, was scheduled. All other forms of relief requested were "denied with right to renew" and reserved the right "to modify sua sponte the relief ordered" as a result of information provided at the July 30 hearing. A review of the documents before it revealed a potential jurisdictional defect, so the Supreme Court of Nevada directed the parties to show cause why the appeal and cross-appeal should not be dismissed for lack of jurisdiction. In particular, it noted, the district court's order left undecided certain issues pending further proceedings, including concerns regarding claimants who were denied benefits because they ostensibly were eligible for benefits under a program different from that for which they applied, which is one of the issues appellants raise on appeal. The Nevada Supreme Court also pointed out that the district court reserved the right to modify its order as result of those further proceedings, which, it explained, indicated that the appealed order did not finally resolve the entire matter before the district court. The parties timely responded to the show cause order, arguing that the Nevada Supreme Court has jurisdiction for a number of reasons. First, they assert that the issues the July 22 order reserved for further review are not properly considered part of the relief requested in the mandamus petition, but were intertwined with that requested relief such that the order, in denying "all other forms of relief," should be treated as finally resolving all claims and issues. However, it appears that the other forms of relief did not include the relief requested with respect to the three issues preserved for further proceedings on July 30, which were argued by the parties and considered by the district court whether or not they were formally included in the writ petition. And even if the Nevada Supreme Court read the July 22 order as equating to a dismissal without prejudice, as the Appellants suggest, orders dismissing without prejudice do not necessarily finally resolve the issues before the Court. Instead, a final order is needed, and thus, the fact that the district court did not issue a modification order resulting from the July 30 hearing does nothing to confirm jurisdiction in the Nevada Supreme Court. Indeed, the district court apparently did not resolve the pending issues at the July 30 hearing but continued the matter to an Aug. 20, 2020, hearing. Moreover, the Appellants state that, during this time, they also renewed their motion for relief. Thus, the July 22 order identified in the notices of appeal and cross-appeal did not finally resolve all issues before the district court. As appeals may be properly taken from orders granting or denying writ petitions only when the order finally resolves the matter, the Nevada Supreme Court lacks jurisdiction over the appeal and cross-appeal from the July 22 order. And although the Appellants argue that, at the August 20 hearing, the district court clarified that it was fully resolving the matter and also indicated that it would certify the July 22 order as final under NRCP 54(b), no written order doing either has been submitted to the Nevada Supreme Court or identified in a notice of appeal. Therefore, the Nevada Supreme Court concludes that it lacks jurisdiction. Accordingly, it dismissed the appeal and cross-appeal. A full-text copy of the Nevada Supreme Courts Aug. 26, 2020 Order is available at https://tinyurl.com/y2qqwb25 from Leagle.com. NEW YORK CITY TRANSIT: Robinson Suit Wins Class Status ------------------------------------------------------ In the class action lawsuit captioned as NATHANIEL ROBINSON and DAVID EVANS, on behalf of themselves and all others similarly situated, v. NEW YORK CITY TRANSIT AUTHORITY; PATRICK J. FOYE, in his official capacity as Acting Chairman of the New York City Transit Authority; and SARAH E. FEINBERG, in her official capacity as Interim President of the New York City Transit Authority, Case No. 1:19-cv-01404-AT-BCM (S.D.N.Y.), the Hon. Judge Analisa Torres entered an order: 1. adopting Judge Moses' report and recommendation (R&R) in its entirety, and granting the Plaintiffs' motion for class certification; and 2. substituting Sarah E. Feinberg, the interim president of the New York City Transit Authority (NYCTA) as a party in this action because Andy Burford is no longer the president of the NYCTA. The Plaintiffs moved for class certification of their claims against NYCTA, its president Andy Byford, and its chairman Patrick Foye, related to the Defendants' practices for securing default judgments against individuals accused of violating transit regulations. The Court referred the motion to the Honorable Barbara C. Moses for a Report & Recommendation. On August 31, 2020, Judge Moses issued a R&R recommending that the Plaintiffs' motion be granted. The Court has reviewed de novo those portions of the R&R to which Plaintiff properly objected and has reviewed the remainder of the R&R for clear error. The Court held that certification under Fed.R.Civ.P. 23(b) is appropriate even where the relief to each class member is not "identical" -- the relief need only be "beneficial." Sykes, 780 F.3d at 97. The Plaintiffs' requested relief meet this standard, the Court said. For example, the Plaintiffs seek an injunction "barring TAB from enforcing default judgments until it develops procedures that comply with the Due Process Clause." Because every member of the proposed class has or will have a default judgment entered against them, the Plaintiffs' requested relief will benefit every member of the proposed class. The Court agrees with Judge Moses that certification under Rule 23(b)(2) is appropriate. The NYCTA operates a large public transit system and has a Transit Adjudication Bureau that adjudicates violations of its rules, the "Rules Governing the Conduct and Safety of the Public in the Use of the Facilities of the Authority. A copy of the Court's Order is available from PacerMonitor.com at https://bit.ly/3nlKK06 at no extra charge.[CC] NEW YORK: M.G. Gets OK to File Second Amended Complaint ------------------------------------------------------- In the case, M.G., et al., Plaintiffs, v. ANDREW CUOMO, et al., Defendants, Case No. 19 CV 639 (CS) (LMS) (S.D. N.Y.), Magistrate Judge Lisa Margaret Smith of the U.S. District Court for the Southern District of New York granted the Plaintiffs' motion for leave to file a Second Amended Complaint. The Plaintiffs commenced the action on Jan. 23, 2019, by filing their original Complaint naming M.G., P.C., C.J., M.J., J.R., and D.R. as Plaintiffs individually and on behalf of other similarly situated individuals. The putative class action asserted claims by a General Class and an RTF Subclass, which alleged that inmates with serious mental illness ("SMI") were being held in the custody of the New York State Department of Corrections and Community Supervision past their lawful release dates due to the Defendants' failure to provide appropriate community-based housing for these inmates on their release dates in violation of Title 11 of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act. The Plaintiffs sought declaratory and injunctive relief, with the primary focus on the Defendants developing and implementing an effective plan for providing care and treatment in the most integrated setting appropriate to the needs of SMI individuals who would qualify for and desire mental health services in an integrated setting and promptly making available sufficient community-based care and treatment opportunities, including OMH-funded mental health housing, to ensure that the most integrated appropriate care and treatment is provided without undue delay to those qualified individuals being discharged from state prison who want community-based care and treatment. On June 3, 2019, the Plaintiffs filed its First Amended Complaint. The FAC elaborates on the facts alleged in the original complaint and did not change the parties or the causes of action. The FAC was meant to address some of the issues raised by the Defendants about the original complaint. During the same conference, Judge Seibel set a briefing schedule for the Defendants' anticipated motion to dismiss the FAC. The matter was set to be fully briefed by Aug. 30, 2019. Subsequently, Judge Seibel referred the matter to Magistrate Judge Smith for general pretrial supervision. As the result of delays in producing discovery, the Court repeatedly extended the briefing deadlines for the Defendants' motion to dismiss. Throughout the briefing period and pendency of the Court's decision on the Defendants' motion, the parties engaged in document discovery supervised by the undersigned via monthly status conferences. Four days ahead of the conference scheduled for Aug. 14, 2020, the Plaintiffs raised by letter the intention to file a SAC. In lieu of formal briefing, the Magistrate Judge deemed the Plaintiffs' letter a motion to amend and set a schedule for letter briefing. The letter briefing on the motion to amend is now fully submitted. The Magistrate heard argument from the parties at a phone conference on Aug. 25, 2020. The Defendants' motion to dismiss the FAC is still pending. The proposed SAC adds three named Plaintiffs, S.D., W.P., and D.H., who would be party representatives for the proposed Discharge Class. The class includes individuals who were not held past their lawful release dates but were discharged to shelters or similar settings where they did not receive the services for which they were deemed eligible by OMH. To that end, the SAC includes allegations related to the new Plaintiffs and the Discharge Class, and it includes two additional causes of action for the Defendants' violation of Title II of the ADA and Section 504 of the Rehabilitation Act as against the new Plaintiffs and the Discharge Class. In addition, the Plaintiffs have updated the facts to reflect changes with the previously named Plaintiffs (e.g., most of the previously named Plaintiffs have been released from prison since the filing of the FAC), and the Plaintiffs have added allegations throughout the SAC that bolster their claim. The prayer for relief is unchanged but for the addition of the Discharge Class as one of the classes for which the Plaintiffs seek class certification. The Defendants argue that the Plaintiffs' amendments effectively constitute an entirely new lawsuit. They that Federal Rule of Civil Procedure 16 governs the Plaintiffs' motion to amend, which requires a showing of good cause. They assert that the Plaintiffs cannot demonstrate good cause because they did not diligently seek leave to amend after becoming aware of the proposed additional claims. The Defendants further argue that the claims of the proposed Discharge Class are futile and allowing the proposed amendments would cause undue prejudice to them. Magistrate Judge Smith agrees with the Plaintiffs that since a scheduling order has not been issued in the case, the rule governing their motion is Federal Rule of Civil Procedure 15. Having supervised the discovery that has taken place thus far, she is aware of the burden that the Defendants have experienced with respect to its production obligations. It is concerning that potentially hundreds of thousands of documents would need to be re-reviewed to determine if they are relevant to the proposed new claims, meaning an increase in effort, cost, and potential delay. However, it is difficult to imagine an amendment to pleadings under Rule 15(a) that would not create some increased work to the opposing party, and if the Plaintiffs were to bring the claims of the Discharge Class in a separate lawsuit, the Defendants would face the same burden as it does now. Magistrate Judge Smith recognizes that the addition of the Discharge Class will involve more discovery, but the need to conduct the additional discovery is not a sufficient justification for denying leave to amend. The matter is still in the pleading stage and the parties are still engaging in paper discovery with no deadlines set for depositions; in other words, the matter is far from the eve of trial. Moreover, the Plaintiffs contend that it has already started seeking discovery related to the Discharge Class and that much of what has already been produced is relevant to the Discharge Class. Therefore, the Magistrate Judge finds that the prejudice that the Defendants may endure is not so significant as to require that the Court denies the Plaintiffs the opportunity to test their claims on the merits. As to futility, since there is a pending motion to dismiss before Judge Seibel, Magistrate Judge Smith thinks it inappropriate to address the merits of the Plaintiffs' claims on the motion to amend. Contrary to the Plaintiffs' assertion, the new claims do appear to change the tenor of the case. Judicial economy is better served if the same judge determines whether the Plaintiffs' claims, both new and old, would survive a motion to dismiss. Based on representations by the parties, it may be that determination of the Olmstead issues is better sought by motion for summary judgment where material outside the pleadings may be consulted. For these reasons, Magistrate Judge Smith granted the Plaintiffs' motion to amend their complaint. The Clerk of the Court was directed to terminate the motion at ECF No. 125. A full-text copy of the Court's Aug. 26, 2020 Decision & Order is available at https://tinyurl.com/y3j5tcqa from Leagle.com. NIKOLA CORP: Faces Malo Suit Over Inflated Common Stock Price ------------------------------------------------------------- DOUGLAS MALO, individually, and on behalf of all others similarly situated, v. NIKOLA CORPORATION DBA NIKOLA MOTOR COMPANY, TREVOR MILTON and DOES 1-10, inclusive, Case No. 5:20-cv-02168 (C.D. Cal., Oct. 16, 2020), is a securities fraud class action on behalf of all persons who purchased the common stock of Nikola between June 4, 2020 and October 06, 2020, inclusive. This action is brought against the Defendants for violations of the Securities Exchange Act of 1934. The Plaintiff also brings this class action complaint against the Defendant for violation of Unfair Competition Law, and to obtain redress for a California class of investors who changed position, within the applicable statute of limitations period. The Defendants' fraudulent scheme and course of business that operated as a fraud or deceit on purchasers of Nikola's common stock was a success, as it deceived the investing public regarding Nikola's prospects and business; artificially inflated the price of Nikola's common stock; and caused the plaintiff and other members of the Class to purchase Nikola common stock at inflated prices, says the complaint. The Plaintiff contends that when purchasing the Defendants' common stock, he relied on the Defendants' statements about the nature and quality of the trucks in deciding to purchase stocks of the Defendants' company. He felt assured by the Defendants' that the trucks would be as represented by the Defendants, namely that it was drivable. He would not have purchased the Defendants' common stock if he had known that the Defendants' trucks were of a nature and quality other than what the Defendants represented, he adds. The Plaintiff is a citizen and resident of the State of California, County of San Bernardino, who purchased the common stock of Nikola during the Class Period and was damaged as the result of Defendants' alleged wrongdoing. Nikola is an American company that has announced a number of concept zero-emissions vehicles since 2016 and has indicated plans to produce some of them in the future. The company is based in Phoenix, Arizona, where its research and development facility is located. Mr. Trevor Milton is the Company's Chairman of the Board, Chief Executive Officer and President.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com - and - Steven S. Soliman, Esq. THE SOLIMAN FIRM, P.L.C. thesolimanfirm.com 245 Fischer Ave D-1 Costa Mesa, CA 92626 Telephone: (714) 970-4770 E-mail: ssoliman@thesolimanfirm.com NORTHERN NATURAL: De Leon Seeks Conditional Class Certification --------------------------------------------------------------- In the class action lawsuit captioned as JESSIE DE LEON, Individually and for Others Similarly Situated, v. NORTHERN NATURAL GAS COMPANY, Case No. 7:20-cv-00179 (W.D. Tex., July 24, 2020), the Plaintiff asks the Court for an order granting conditional certification of the following Fair Labor Standards Act class: "all inspectors of Northern Natural Gas who were paid a day-rate with no overtime in the past 3 years (Putative Class Members)" The Plaintiff contends the Court should conditionally certify this class because he has more than satisfied his minimal burden of demonstrating that he and NNG's other inspectors are similarly situated, as they performed similar job duties and were all subjected to NNG's uniform day rate policy that deprived them of overtime compensation in violation of the FLSA. The Plaintiff alleges that NNG employs inspectors on a day rate basis. For example, he worked for Northern from July 2017 until April 2018. Similarly, Opt-in Plaintiff Anthony Hernandez (Hernandez) worked for NNG as a utility inspector from July 2018 until December 2018. During this period, NNG paid Plaintiffs and the Putative Class Members a day rate with no overtime compensation. NNG -- https://www.northernnaturalgas.com/ -- is a subsidiary of Berkshire Hathaway Energy. NNG owns and operates the largest interstate natural gas pipeline system in the United States. NNG's pipeline system stretches across 11 states, from the Permian Basin to Michigan's Upper Peninsula. It provides natural gas transportation and storage services to 82 utilities and numerous producers, energy marketing companies and industrial end users. A copy of the Plaintiff's motion for conditional certification dated Sept. 29, 2020 is available from PacerMonitor.com at https://bit.ly/3d9Awvd at no extra charge.[CC] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 325-1100 Facsimile: (713) 325-3300 E-mail: adunlap@mybackwages.com mjosephson@mybackwages.com rschreiber@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH , PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com NS8: Laid Off Workers Sue Citing Lack of Advance Notice ------------------------------------------------------- Jonathan Ng at Las Vegas Review-Journal reports that former employees that were laid off from NS8, the Las Vegas-based cyberfraud prevention startup embroiled in a federal investigation, have filed class action lawsuits against the company. Joshua Hoover, a former NS8 employee, filed the class action suit in Nevada District Court earlier, days after being let go. The lawsuit alleges that NS8 did not comply with the federal Worker Adjustment and Retraining Notification Act, which is meant to ensure employees have 60 days notice before significant layoffs so they have time to find work elsewhere. Genevieve Haldeman, a spokeswoman for NS8, said the company does not comment on pending litigation. According to the U.S. Department of Labor's website, a 60-day notice is required if a company with at least 100 full-time employees plans to lay off at least 50 people at a single site. Employers who do not comply with the WARN Act are liable to pay each affected employee an amount equal to back pay and benefits for the violation period, which can last up to 60 days. In NS8's Sept. 10 WARN Act notice to employees, the company said, "While we would have preferred to give you more advance notice of this decision, we were not in a position, 60 days ago, to anticipate the sudden change to our business circumstances, nor the decisions that were necessitated by them." Employees were laid off the next day. Hoover's attornery, Kaine Messer of Las Vegas-based Gabroy Law Offices, told the Review-Journal that the lawsuit was filed to protect the communities where a company operates, "specifically because when a company does have these mass layoffs, the community itself is put in danger of harm." There are exceptions to the WARN Act, though, according to the DOL's website: "WARN makes certain exceptions to the requirements when layoffs occur due to unforeseeable business circumstances, faltering companies, and natural disasters." Messer said that "what we do take issue with is not adhering to the law, particularly when the exceptions don't apply, and it's our position that there are no exceptions that apply to the current situation." Federal agents arrested NS8 co-founder and former CEO Adam Rogas. The Securities and Exchange Commission charged Rogas with defrauding investors, alleging he falsified bank statements to obtain over $123 million in financing for his company, of which he personally received approximately $17.5 million. Rogas resigned Sept. 1 soon after an employee in NS8's finance department discovered the true balance of funds in the company's revenue account and the transactions were uncovered. Another NS8 employee filed a separate class action suit in Delaware District Court. Contact Jonathan Ng at jng@reviewjournal.com. Follow @ByJonathanNg on Twitter. [GN] O'FALLON, IL: Ill. App. Flips Summary Judgment in Saladrigas Suit ----------------------------------------------------------------- In the case, ROGELIO SALADRIGAS, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. THE CITY OF O'FALLON, Defendant-Appellee, Case No. 5-19-0466 (Ill. App.), the Appellate Court of Illinois for the Fifth District reversed the circuit court's summary judgment in favor of O'Fallon and remanded for further proceedings. The class action case presents a constitutional challenge to the validity of an ordinance enacted by the Defendant, the City of O'Fallon. O'Fallon's ordinance authorizes the municipality to impound a motor vehicle that is used to commit certain offenses, including driving under the influence. The ordinance also provides for a $500 charge to the owner of any motor vehicle that is impounded under the ordinance. The $500 charge is in addition to any fees imposed for the vehicle's towing and storage and any penalties imposed for the underlying offense. On Oct. 8, 2011, the Plaintiff was arrested by the O'Fallon Police Department for a Level I violation, his vehicle was towed and impounded pursuant to O'Fallon's ordinance, and he paid the $500 administrative fee. In his class action complaint, the Plaintiff alleged that the $500 fee violated his substantive due process rights because the amount of the fee was not rationally related to the cost of towing services or any other services provided by O'Fallon. He alleged that there is no rational justification for imposing $500 administrative fee upon a motorist to merely issue that person a receipt stating they have paid $500. The Plaintiff brought the class action proceeding on behalf of himself and similarly situated individuals consisting of all persons who were cited and arrested for any of the Level I violations that resulted in the payment of the $500 administrative fee set out in O'Fallon's ordinance. The Plaintiff's original class action complaint alleged only a facial constitutional challenge, not an as-applied constitutional challenge. However, the Plaintiff's first and second amended class action complaints included both facial and as-applied constitutional challenges to the ordinance. The Plaintiff filed a class action complaint, alleging that O'Fallon's ordinance was unconstitutional because the amount of the "administrative fee" was not reasonably related to the recoupment of any actual costs incurred by O'Fallon. O'Fallon filed a motion for summary judgment maintaining that its ordinance called for a $500 "fine" that is imposed as a penalty to deter criminal behavior, not a "fee" to recoup costs. O'Fallon argued that, as a "fine," the amount passes constitutional muster because the amount is not grossly disproportionate to the offenses that call for the fine to be imposed. O'Fallon's motion for summary judgment, therefore, required the circuit court to interpret the language of the ordinance and determine whether it imposed a fine or a fee. The circuit court interpreted O'Fallon's ordinance as providing for a $500 fine. As a result, the circuit court granted O'Fallon's motion for summary judgment because the Plaintiff did not contend that a $500 "fine" was grossly disproportionate to the underlying offenses calling for the fine. The Plaintiff now appeals the circuit court's judgment, arguing that the ordinance provides for a fee, not a fine. The Appellate Court finds it significant that, not only did O'Fallon describe the $500 charge as a fee, but it expressly stated in the preamble that the ordinance's purpose was to "recoup costs associated with processing certain arrests." It is the purpose of a fee, not a fine. It also finds it significant that O'Fallon made no mention of punishment or crime deterrence in setting out the purpose for imposing the "administrative fee." O'Fallon does not use any language in its preamble or in the body of the ordinance to suggest that any part of the city's intent in imposing the fee is to deter crime or to punish people who own vehicles that have been used to commit Level I offenses. In addition to that express language, the Appellate Court believes that some of the attributes of the $500 charge are consistent with the charge being a fee. Accordingly, it does not believe that the attributes of the $500 charge in O'Fallon's ordinance clearly indicate that O'Fallon intended the charge to serve a purpose different than its chosen label (fee) and different than its expressed intent (recoupment of costs). The Appellate Court agrees with O'Fallon that some attributes of the $500 charge are consistent with the $500 charge being a fine. However, those attributes are not so compelling that they outweigh the plain language that O'Fallon used in declaring its intent in creating the ordinance. The attributes, at most, are inconclusive as they are consistent with a fine and a fee. O'Fallon's express intent requires us to construe the $500 charge in the case as a fee. Finally, the Appellate Court notes that the circuit court has not addressed the issue of whether the amount of the fee was rationally related to O'Fallon's legitimate governmental interests in recouping costs. The circuit court did not address the issue because it granted summary judgment in favor of O'Fallon on the basis that the ordinance established a fine. The Plaintiff argues that he has sufficiently pled that the fee is not rationally related to the recoupment of any costs and that there remains a factual question concerning the reasonableness of the amount of the charge. The Court agrees and, therefore, concludes that the circuit court erred in granting O'Fallon's motion for summary judgment. The Appellate Court expresses no opinion concerning whether the amount of the fee is rationally related to O'Fallon's recoupment of expenses. It holds only that the court erred in granting summary judgment on the basis that O'Fallon's ordinance provided for a fine. For the foregoing reasons, the Appellate Court agreed with the Plaintiff and construed O'Fallon's ordinance as imposing a fee, rather than a fine. Accordingly, it reversed the circuit court's summary judgment in favor of O'Fallon and remanded for further proceedings. A full-text copy of the Court's Aug. 26, 2020 Opinion is available at https://tinyurl.com/yy5wm9r8 from Leagle.com. Donna Morrison Polinske -- polinske@sbcglobal.net -- Brian L. Polinske, Edwardsville, IL, Attorneys for Appellant. Brian M. Funk -- bfunk@okgc.com -- O'Halloran, Kosoff, Geitner & Cook, LLC, Northbrook, IL, Attorney for Appellee. ODONATE THERAPEUTICS: Class Suit Over Tesetaxel Safety Ongoing -------------------------------------------------------------- Odonate Therapeutics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company is a defendant in a putative class action suit alleging the safety and tolerability of tesetaxel. On September 16, 2020, a putative class action lawsuit was filed against the company and its Chief Executive Officer, as well as its current and former Chief Financial Officers. The complaint was filed in the United States District Court for the Southern District of California and alleges that the company made material misrepresentations and omissions regarding the safety and tolerability of tesetaxel in its public statements in violation of federal securities laws. The lawsuit seeks damages allegedly sustained by the class and an award of plaintiffs' costs and attorney fees. Odonate said, "We believe the complaint is without merit, and we have substantive defenses to the claims of liability and damages. We plan to respond accordingly." Odonate Therapeutics, Inc. is a pharmaceutical company dedicated to the development of best-in-class therapeutics that improve and extend the lives of patients with cancer. The company's initial focus is on the development of tesetaxel, an investigational, orally administered chemotherapy agent that belongs to a class of drugs known as taxanes, which are widely used in the treatment of cancer. The company is based in San Diego, California. OHIO RENAL: Freeman Sues Over Unlawful OT Pay and Wage Statements ----------------------------------------------------------------- DAVID M. FREEMAN, on behalf of himself and all others similarly situated, Plaintiff v. OHIO RENAL CARE GROUP, LLC, RENAL CARE GROUP, INC., AND FRESENIUS MEDICAL CARE HOLDINGS, INC., Defendants, Case No. 1:20-cv-02402 (N.D. Ohio, October 22, 2020) is a class and collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act. According to the complaint, the Plaintiff and other similarly situated employees frequently worked 40 or more hours per week. However, they did not receive accurate overtime compensation for all hours they worked over 40 because the Defendants allegedly auto-deducted break periods from their timesheets although their breaks were not taken. Moreover, the Defendants failed to maintain accurate and complete records of employees' time or working hours. The Plaintiff has worked as an acute care dialysis nurse for the Defendants from December 21, 2009 to the present. Ohio Renal Care Group, LLC operates a joint venture with Defendant Renal Care Group, Inc. to provide dialysis treatment at healthcare facilities throughout Northeast Ohio and the state generally. Renal Care Group has been a wholly-owned subsidiary of Defendant Fresenius Medical Care Holdings, Inc. dba Fresenius Medical Care North America. Fresenius provides coordinated health care services at pivotal care points for hundreds of thousands of chronically ill customers throughout the continent. [BN] The Plaintiff is represented by: Scott D. Perlmuter, Esq. TITTLE & PERLMUTER 4106 Bridge Avenue Cleveland, OH 44113 Tel: (216) 308-1522 Fax: (888) 604-9299 E-mail: scott@tittlelawfirm.com - and – Thomas A. Downie, Esq. 46 Chagrin Falls Plaza #104 Chagrin Falls, OH 44022 Tel: (440) 973-9000 E-mail: tom@chagrinlaw.com OTIS WORLDWIDE: Continues to Defend Darnis Putative Class Suit -------------------------------------------------------------- Otis Worldwide Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a putative class action suit entitled, Geraud Darnis et al. v. Raytheon Technologies Corporation et al. On August 12, 2020, a putative class action lawsuit, (Geraud Darnis et al. v. Raytheon Technologies Corporation et al.), was filed in the United States District Court for the District of Connecticut against Otis, Raytheon Technologies Corporation ("RTX"), Carrier, each of their directors, and various incentive and deferred compensation plans. The named plaintiffs are former employees of United Technologies Corporation (UTC) and its current and former subsidiaries, including Otis and Carrier. They seek to recover monetary damages, as well as related declaratory and equitable relief, based on claimed decreases in the value of long-term incentive awards and deferred compensation under nonqualified deferred compensation plans allegedly caused by the formula used to calculate the adjustments to such awards and deferred compensation from RTX, Carrier, and Otis following the spin-offs of Carrier and Otis and the subsequent combination of UTC and Raytheon Company. Otis believes that the claims are without merit. At this time, Otis is unable to predict the outcome, or the possible loss or range of loss, if any, which could result from this action. Otis Worldwide Corporation is the world's largest elevator and escalator manufacturing, installation and service company. The Company is organized into two segments - New Equipment and Service. Through our New Equipment segment, we design, manufacture, sell and install a wide range of passenger and freight elevators, as well as escalators and moving walkways for residential and commercial buildings and infrastructure projects. The company is based in Farmington, Connecticut. PENNSYLVANIA: Jennings Suit Seeks to Certify Class of Residents --------------------------------------------------------------- In the class action lawsuit captioned as RUSSEL "JOEY" JENNINGS, RINALDO SCRUCI, ROBERT B. CARSON, LAUREN LOTZI, BETH LAMBO, MARIA KASHATUS, DAVID NAULTY, MAUREEN JORDA, JANINE WINSOCK, CYNTHIA MARTIN, TERRY D. HETRICK, SHARON MCCABE, and VIOLA "VIANNE" CAYE, v. TOM WOLF, TERESA D. MILLER, KRISTIN AHRENS, SUE RODGERS, MARK J. GEORGETTI, PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, PENNSYLVANIA OFFICE OF DEVELOPMENT PROGRAMS, POLK CENTER, and WHITE HAVEN CENTER, Case No. 3:20-cv-00148-MEM (M.D. Pa.), the Plaintiffs ask the Court for an order certifying the case as a class action on behalf of "284 residents of Polk Center and White Haven Center." The class claims or issues are: a. There are unmet obligations of Defendants to provide treatment, supports, and services to individuals residing in the Centers consistent with the Americans with Disabilities Act and implementing regulations. The forcing of discharges or transfers on Plaintiffs to inappropriate, harmful and more restrictive environments without their consent, or without the consent of their guardians or families. b. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified person with disabilities shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." c. The Commonwealth of Pennsylvania has voluntarily assumed certain obligations under federal law in return for federal funding under the Medical Assistance Program authorized by 42 U.S.C. section 1396, et seq. The Pennsylvania Department of Human Services is a cabinet-level state agency in Pennsylvania. The Pennsylvania Department of Human Services's seven program offices administer services that provide care and support to Pennsylvania's most vulnerable citizens. A copy of the Plaintiffs' motion to certify class is available from PacerMonitor.com at https://bit.ly/3nlyAEG at no extra charge.[CC] The Plaintiffs are represented by: Thomas Cook, Esq. 1205 Argus Road Kill Devil Hills, NC 27948 Telephone: (717) 495-4555 E-mail: tyork@yorklaw.us The Defendants are represented by: Jessica S. Davis, Esq. SENIOR DEPUTY ATTORNEY GENERAL OFFICE OF ATTORNEY GENERAL 15th Floor, Strawberry Square Harrisburg, PA 17120 PETRO-HUNT: Fredericksburg Balks at Untimely Gas Royalty Payments ----------------------------------------------------------------- FREDERICKSBURG ROYALTY, LTD., on behalf of itself and all others similarly situated, v. PETRO-HUNT, L.L.C., Case No. 3:20-cv-03170-L (N.D. Tex., Oct. 19, 2020), arises from Petro-Hunt's willful and ongoing violations of North Dakota law related to the interest owed on untimely payments of oil-and-gas royalties. North Dakota statute requires operators like Petro-Hunt to pay royalties to mineral owners, both leased and unleased, within 150 days of marketing the oil or gas. The statute further requires operators to pay mineral owners statutory interest when they fail to meet that deadline. The Plaintiff alleges that Petro-Hunt does not automatically pay mineral owners the interest it owes on untimely royalty payments. Instead, it has a policy of only paying statutory interest when mineral owners demand it, despite the fact that the statute expressly disclaims a demand requirement. The Plaintiff brings this class action to recover damages for itself and all similarly situated mineral owners who received untimely payments from Petro-Hunt for which it did not pay the interest required by North Dakota statute. The Plaintiff owns an interest in oil and gas produced from the Klevmoen 153-95-17C-7-2H well, which is located in Section 17-153N-95W in McKenzie County, North Dakota. Petro-Hunt operates the Klevmoen 153-95-17C-7-2H well and remits royalty payments to the Plaintiff.[BN] The Plaintiff is represented by: Reagan E. Bradford, Esq. Ryan K. Wilson, Esq BRADFORD & WILSON PLLC 431 W. Main Street, Suite D Oklahoma City, OK 73102 Telephone: (405) 698-2770 Facsimile: (405) 234-5506 E-mail: reagan@bradwil.com ryan@bradwil.com - and - John Paul Albert, Esq. Brady L. Smith, Esq. NEEDHAM & ASSOCIATES, PLLC 410 N. Walnut Avenue, Suite 110 Oklahoma City, OK 73104 Telephone: (405) 297-0176 Facsimile: (405) 297-0173 E-mail: jpalbert@theneedhamcompanies.com brady@theneedhamcompanies.com - and - John C. Sokatch, Esq. DYKEMA GOSSETT PLLC 1717 Main Street, Suite 4200 Dallas, TX 75201 Telephone: (214) 462-6494 E-mail: jsokatch@dykema.com PHILIP MORRIS: Amended Complaint in Rebolledo Suit Not Yet Served ----------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that Philip Morris Colombia S.A. has yet to be served with the amended complaint in the purported class action suit Ana Ferrero Rebolledo v. Philip Morris Colombia S.A., et al. In Colombia, an individual filed a purported class action, Ana Ferrero Rebolledo v. Philip Morris Colombia S.A., et al., in April 2019 against the company's subsidiaries with the Civil Court of Bogota related to the marketing of the company's Platform 1 product. Plaintiff alleged that the company's subsidiaries advertise the product in contravention of law and in a manner that misleads consumers by portraying the product in a positive light, and further asserts that the Platform 1 vapor contains many toxic compounds, creates a high level of dependence, and has damaging second-hand effects. Plaintiff sought injunctive relief and damages on her behalf and on a behalf of two classes (class 1 - all Platform 1 consumers in Colombia who seek damages for the purchase price of the product and personal injuries related to the alleged addiction, and class 2 - all residents of the neighborhood where the advertising allegedly took place who seek damages for exposure to the alleged illegal advertising). The company's subsidiaries answered the complaint in January 2020, and in February 2020, plaintiff filed an amended complaint. The amended complaint modifies the relief sought on behalf of the named plaintiff and on behalf of a single class (all consumers of Platform 1 products in Colombia who seek damages for the product purchase price and personal injuries related to the use of an allegedly harmful product). "The amended complaint has not yet been served on our subsidiaries," the Company said. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other nicotine-containing products, and smoke-free products and related electronic devices and accessories. The company was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Appeal in ADESF Class Suit vs. Unit Dismissed ------------------------------------------------------------ Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the Superior Court of Justice has confirmed the denial of plaintiff's appeal finally dismissing the plaintiff's claim in The Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A. suit. In a class action in Brazil, The Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A., Nineteenth Lower Civil Court of the Central Courts of the Judiciary District of Sao Paulo, Brazil, filed July 25, 1995, the company's subsidiary and another member of the industry are defendants. The plaintiff, a consumer organization, sought damages for all addicted smokers and former smokers, and injunctive relief. In 2004, the trial court found defendants liable without hearing evidence and awarded "moral damages" of R$1,000 (approximately $179) per smoker per full year of smoking plus interest at the rate of 1% per month, as of the date of the ruling. The court did not award actual damages, which were to be assessed in the second phase of the case. The size of the class was not estimated. Defendants appealed to the Sao Paulo Court of Appeals, which annulled the ruling in November 2008, finding that the trial court had inappropriately ruled without hearing evidence and returned the case to the trial court for further proceedings. In May 2011, the trial court dismissed the claim. In February 2015, the appellate court unanimously dismissed plaintiff's appeal. In September 2015, plaintiff appealed to the Superior Court of Justice. In February 2017, the Chief Justice of the Superior Court of Justice denied plaintiff's appeal. Plaintiff filed a further appeal. In August 2020, the Superior Court of Justice confirmed the denial of plaintiff's appeal finally dismissing the plaintiff's claim. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other nicotine-containing products, and smoke-free products and related electronic devices and accessories. The company was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Continues to Defend Adams Class Suit in Canada ------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a class action suit entitled, Adams v. Canadian Tobacco Manufacturers' Council, et al. In a class action pending in Canada, Suzanne Jacklin v. Canadian Tobacco Manufacturers' Council, et al., Ontario Superior Court of Justice, filed June 20, 2012, the company, Rothmans, Benson & Hedges Inc. ("RBH"), and the company's indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD") resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, heart disease, or cancer, as well as restitution of profits. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other nicotine-containing products, and smoke-free products and related electronic devices and accessories. The company was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Continues to Defend Securities Class Suit in NY -------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a putative shareholder class action suit entitled, In re Philip Morris International Inc. Securities Litigation. A putative shareholder class action lawsuit, In re Philip Morris International Inc. Securities Litigation, is pending in the United States District Court for the Southern District of New York, purportedly on behalf of purchasers of Philip Morris International Inc. stock between July 26, 2016 and April 18, 2018. The lawsuit names Philip Morris International Inc. and certain officers and employees as defendants and includes allegations that the defendants made false and/or misleading statements and/or failed to disclose information about PMI's business, operations, financial condition, and prospects, related to product sales of, and alleged irregularities in clinical studies of, PMI's Platform 1 product. The lawsuit seeks various forms of relief, including damages. In November 2018, the court consolidated three putative shareholder class action lawsuits with similar allegations previously filed in the Southern District of New York (namely, City of Westland Police and Fire Retirement System v. Philip Morris International Inc., et al, Greater Pennsylvania Carpenters' Pension Fund v. Philip Morris International Inc., et al., and Gilchrist v. Philip Morris International Inc., et al.) into these proceedings. A putative shareholder class action lawsuit, Rubenstahl v. Philip Morris International Inc., et al., that had been previously filed in December 2017 in the United States District Court for the District of New Jersey, was voluntarily dismissed by the plaintiff due to similar allegations in these proceedings. On February 4, 2020, the court granted defendants' motion in its entirety, dismissing all but one of the plaintiffs' claims with prejudice. The court noted that one of plaintiffs’ claims (allegations relating to four non-clinical studies of PMI's Platform 1 product) did not state a viable claim but allowed plaintiffs to replead that claim by March 3, 2020. On February 18, 2020, the plaintiffs filed a motion for reconsideration of the court's February 4th decision; this motion was denied on September 21, 2020. On September 28, 2020, plaintiffs filed an amended complaint seeking to replead allegations relating to four non-clinical studies of PMI's Platform 1 product. Philip Morris said, "We believe that this lawsuit is without merit and will continue to defend it vigorously." Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other nicotine-containing products, and smoke-free products and related electronic devices and accessories. The company was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Still Defends McDermid Class Action -------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a class action suit entitled, McDermid v. Imperial Tobacco Canada Limited, et al. In a class action pending in Canada, McDermid v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010, the company, Rothmans, Benson & Hedges Inc. ("RBH"), and the company's indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges his own addiction to tobacco products and heart disease resulting from the use of tobacco products. He is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from heart disease allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other nicotine-containing products, and smoke-free products and related electronic devices and accessories. The company was incorporated in 1987 and is headquartered in New York, New York. POLARIS INC: 8th Cir. to Hear Appeal in Johannessohn Suit --------------------------------------------------------- Polaris Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the United States Court of Appeals for the Eighth Circuit has agreed to hear plaintiffs' appeal from a lower court ruling denying class certification in the matter, Riley Johannessohn, Daniel Badilla, James Kelley, Kevin Wonders, William Bates and James Pinion, individually and on behalf of all others similarly situated v. Polaris Industries (D. Minn.). A putative class action is also pending in the United States District Court for the District of Minnesota and alleges excessive heat hazards on Sportsman ATV, seeking damages for alleged economic loss: Riley Johannessohn, Daniel Badilla, James Kelley, Kevin Wonders, William Bates and James Pinion, individually and on behalf of all others similarly situated v. Polaris Industries (D. Minn.), October 4, 2016. On March 31, 2020, the district court judge denied class certification. The Eighth Circuit agreed to hear plaintiffs' appeal. Polaris Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that No further updates were provided in the Company's SEC report. Polaris Inc. is an American manufacturer of motorcycles, snowmobiles, ATV, and neighborhood electric vehicles. Polaris was founded in Roseau, Minnesota, USA, where it still has engineering and manufacturing. The company's corporate headquarters is in Medina, Minnesota. The company manufactured motorcycles through its Victory Motorcycles subsidiary until January 2017, and currently produces motorcycles through the Indian Motorcycle subsidiary, which it purchased in April 2011. Polaris produced personal watercraft from 1994-2004. The company was originally named Polaris Industries Inc. and was renamed in 2019 to Polaris Inc. POLARIS INC: Appeal in Sales & Product Liability Suit Pending ------------------------------------------------------------- Polaris Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the appeal in the putative class action suit entitled, In re Polaris Marketing, Sales Practices, and Product Liability Litigation (D. Minn.), is pending. A putative class action is pending in the United States District Court for the District of Minnesota and arises out of allegations that certain Polaris products suffer from purportedly unresolved fire hazards allegedly resulting in economic loss, and is the result of the consolidation of the three putative class actions that were filed between April 5-10, 2018 and that the company disclosed in its Quarterly Report on Form 10-Q for the period ended March 31, 2018: In re Polaris Marketing, Sales Practices, and Product Liability Litigation (D. Minn.), June 15, 2018. On February 26, 2020, the district court dismissed the majority of plaintiffs and claims. Plaintiffs subsequently voluntarily dismissed the remaining plaintiffs and have appealed, as of right, to the Eight Circuit on behalf of the Court dismissed plaintiffs. Polaris Inc. is an American manufacturer of motorcycles, snowmobiles, ATV, and neighborhood electric vehicles. Polaris was founded in Roseau, Minnesota, USA, where it still has engineering and manufacturing. The company's corporate headquarters is in Medina, Minnesota. The company manufactured motorcycles through its Victory Motorcycles subsidiary until January 2017, and currently produces motorcycles through the Indian Motorcycle subsidiary, which it purchased in April 2011. Polaris produced personal watercraft from 1994-2004. The company was originally named Polaris Industries Inc. and was renamed in 2019 to Polaris Inc. POLARIS INC: Deposition & Document Discovery in "Guzman" Ongoing ---------------------------------------------------------------- Polaris Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that deposition and document discovery are proceeding in the case, Paul Guzman and Jeremy Albright v. Polaris Inc., Polaris Industries Inc., and Polaris Sales Inc. A class action is pending in the United States District Court for the Central District of California and alleges violations of various California consumer protection laws focused on rollover protection systems' certifications, for various Polaris off-road vehicles sold in California: Paul Guzman and Jeremy Albright v. Polaris Inc., Polaris Industries Inc., and Polaris Sales Inc., August 8, 2019. Depositions and document discovery are proceeding in this matter. No further updates were provided in the Company's SEC report. Polaris Inc. is an American manufacturer of motorcycles, snowmobiles, ATV, and neighborhood electric vehicles. Polaris was founded in Roseau, Minnesota, USA, where it still has engineering and manufacturing. The company's corporate headquarters is in Medina, Minnesota. The company manufactured motorcycles through its Victory Motorcycles subsidiary until January 2017, and currently produces motorcycles through the Indian Motorcycle subsidiary, which it purchased in April 2011. Polaris produced personal watercraft from 1994-2004. The company was originally named Polaris Industries Inc. and was renamed in 2019 to Polaris Inc. PORSCHE AG: Manipulates Emissions Testing Results, Del Barrio Says ------------------------------------------------------------------ ERNESTO DEL BARRIO JR. AND OWEN WILLIAMS, on behalf of themselves and all others similarly situated, v. DR. ING. H.C. F. PORSCHE AG, and PORSCHE CARS NORTH AMERICA, INC., Case No. 3:20-cv-07341 (N.D. Cal., Oct. 19, 2020), concerns the deception of Porsche consumers stemming from the manipulation of federal and California emissions testing for Porsche cars in the U.S. market. The Plaintiffs contend that despite Volkswagen's promises to "come clean" and to be honest about its past mistakes in 2015, its subsidiary Porsche apparently persisted in concealing its emission-testing deception for its high-end 911 and Panamera vehicles. Five years after the 2015 scandal surrounding Volkswagen Group's installation of "Defeat Devices" in Volkswagen, Audi, and Porsche diesel vehicles that unlawfully concealed from regulators and consumers the true and illegally-high levels of pollutants these vehicles emitted, and following the discovery of a similar device in Audi gasoline vehicles, another "Defeat Device" embedded in numerous Porsche vehicles during emissions testing has just come to light. New reporting reveals that Porsche deliberately modified the transmissions of test vehicles so that they emitted fewer pollutants during testing than the actual cars it sold to consumers would emit during normal use, says the complaint. As a direct and proximate result of Porsche's breach, the Plaintiff Williams and New Jersey Class members have been damaged. They reasonably relied on Porsche's warranty in purchasing and continuing to drive Class Vehicles. They were unaware of Porsche's emissions-testing manipulation. Had they known the truth, they would not have acted as they did. They would not have purchased vehicles whose high performance was only made possible through emissions fraud, or would have paid less for them, the Plaintiffs allege. Dr.-Ing. h.c. F. Porsche AG, usually shortened to Porsche AG, is a German automobile manufacturer specializing in high-performance sports cars, SUVs and sedans.[BN] The Plaintiffs are represented by: Gretchen Freeman Cappio, Esq. Ryan McDevitt, Esq. Adele A. Daniel, Esq. Matthew J. Preusch, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: gcappio@kellerrohrback.com rmcdevitt@kellerrohrback.csom adaniel@kellerrohrback.com PORTLAND GENERAL: Employees' Fund Sues Over Share Price Drop ------------------------------------------------------------ Public Employees' Retirement System of Mississippi, Individually, and on Behalf of All Others Similarly Situated v. PORTLAND GENERAL ELECTRIC COMPANY, MARIA POPE, and JAMES F. LOBDELL, Case No. 3:20-cv-01786-MO (D. Ore., Oct. 16, 2020), is brought pursuant to the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder; on behalf of Plaintiff and all other persons or entities who purchased or otherwise acquired securities of the Portland General Electric Company during the period from February 13, 2020 to August 24, 2020, inclusive and were damaged thereby as a result from materially false and misleading statements and omissions by PGE. After the market closed on August 24, 2020, PGE sprung on its investors news that the Company was taking a $128 million loss by its proprietary trading unit, which investors did not know even existed, based on wrong way bets in the energy trading market. Changes in the wholesale energy markets in the summer of 2020 exposed these "ill conceived" trades, forcing PGE to disclose its proprietary trading unit and report the loss. In announcing the loss, PGE placed employees on administrative leave and created a special committee to review the Company's energy trading practices and its controls related to the trading, with the assistance of external advisors. PGE also lowered its earning guidance, down from $2.20-$2.50/share -- which it had reaffirmed just weeks earlier on July 31, 2020 -- to $1.30-$1.60/share. The surprise announcement of a nine-figure loss arising from a business segment that investors did not know even existed other than to hedge and manage risk stunned the markets and decimated PGE's stock price, which fell by nearly 8% on unusually heavy volume as a result of the announcement. The stock's decline wiped out of over $300 million in shareholder value. The complaint alleges that Defendants made materially false and/or misleading statements and failed to disclose material adverse facts about PGE's business. Specifically, the Defendants failed to disclose to investors that: (1) PGE had entered into substantial trades in the wholesale energy markets, with increasing volumes in 2020; (2) PGE lacked effective internal controls over its energy trading practices; (3) PGE downplayed the risks it faced in commodity price exposure; and (4) the Company's trading in the wholesale energy markets created significant negative exposure for PGE and was reasonably likely to incur significant losses. As a result of the foregoing, PGE's stock price dropped precipitously, its earnings guidance was slashed, and the Defendants' positive statements about PGE's operations were materially misleading and/or lacked a reasonable basis, says the complaint. The Plaintiff, the Public Employees' Retirement System of Mississippi, acquired shares of PGE common stock during the Class Period. PGE is an electric utility which produces, acquires, and distributes electricity to over 900,000 customers throughout Oregon, about its proprietary trading activity in the wholesale energy markets..[BN] The Plaintiff is represented by: Keith S. Dubanevich, OSB No. 975200 Keil M. Mueller, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. Oak Street, Suite 500 Portland, OR 97204 Phone: (503) 227-1600 Facsimile: (503) 227-6840 Email: Kdubanevich@stollberne.com kmueller@stollberne.com - and - Daniel L. Berger, Esq. Caitlin M. Moyna, Esq. GRANT & EISENHOFER P.A. 485 Lexington Avenue, 29th Floor New York, NY 10017 Phone: (646) 722 8500 Facsimile: (646) 722 8501 Email: dberger@gelaw.com cmoyna@gelaw.com PORTLAND GENERAL: Glancy Prongay Reminds of Nov. 2 Deadline ----------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of today's (November 2, 2020) deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased or otherwise acquired Portland General Electric Company ("PGE" or the "Company") (NYSE: POR) securities between April 24, 2020 and August 24, 2020, inclusive (the "Class Period"). If you suffered a loss on your PGE investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/portland-general-electric-company/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On August 24, 2020, after the market closed, PGE announced that it had incurred losses of $127 million as of August 24, 2020. PGE further stated that "personnel entered into a number of energy trades during 2020, with increasing volume accumulating late in the second quarter and into the third quarter, resulting in significant exposure to the Company." In addition, the Company announced that it had formed a Special Committee "to review the energy trading that led to the losses and the Company's procedures and controls related to the trading." On this news, the Company's share price fell $3.51, or nearly 8%, to close at $38.45 per share on August 24, 2020, thereby injuring investors. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that PGE lacked effective internal controls over its energy trading practices; (2) that PGE personnel had entered energy trades during 2020, with increasing volume accumulating late in the second quarter and into the third quarter, that created significant negative financial exposure for PGE; (3) that, as a result, the Company was reasonably likely to incur significant losses; and (4) 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. If you purchased or otherwise acquired PGE securities during the Class Period, you may move the Court no later than November 2, 2020 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] PRO FACADE: Hernandez Seeks to Recover Unpaid Wages Under FLSA -------------------------------------------------------------- RUBEN HERNANDEZ, YOANNY AREBALO ALBA and other similarly situated individuals, v. PRO FACADE LLC, a Florida Corporation, JOSE BARRIOS, RAPHAEL LEVY, and DELFINA BARRIOS, individually, Case No. 1:20-cv-24282-XXXX (S.D. Fla., Oct. 19, 2020), is an action to recover money damages for unpaid wages pursuant to the Fair Labor Standards Act. The Plaintiffs are iron facade installer employees who performed various duties which included, any and all works that were necessary of him in the construction site. While employed by the Defendants, the Plaintiffs are not provided proper overtime pay for any hours worked over 40. The Defendant is a Florida Profit corporation having their main place of business in Miami-Dade County, Florida. The Individual Defendants are the owners of the Company.[BN] The Plaintiffs are represented by: Franklin Antonio Jara, Esq. JARA LAW FIRM 10271 Sunset Drive, Suite 103 Miami, FL 33173 Telephone: (305) 372-0290 E-mail: Franklin@JaraLaw.com Joanna@JaraLaw.com QUEST DIAGNOSTICS: Johnson and Rice Suits Consolidated ------------------------------------------------------ Quest Diagnostics Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 23, 2020, for the quarterly period ended September 30, 2020, that putative class action suits entitled, House Johnson v. Quest Diagnostics Incorporated, et al. and Rice, et al. v. Quest Diagnostics Incorporated, et al., have been consolidated and plaintiffs filed a consolidated amended complaint. In June 2020, a putative class action lawsuit, House Johnson v. Quest Diagnostics Incorporated, et. al, was filed in the U.S. District Court for New Jersey against the Company and other defendants with respect to the Company's 401(k) plan. The complaint alleges, among other things, that the fiduciaries of the 401(k) plan breached their duties by failing to disclose the expenses and risks of plan investment options, allowing unreasonable administration expenses to be charged to plan participants, and selecting and retaining high cost and poor performing investments. In July 2020, a putative class action lawsuit, Rice, et. al v. Quest Diagnostics Incorporated, et. al, was filed in the U.S. District Court for New Jersey. The plaintiffs in the Rice case named the same defendants as those named in the House Johnson case and alleged substantially similar claims to those made in the House Johnson matter. In October 2020, the court consolidated the two lawsuits and plaintiffs filed a consolidated amended complaint. The Company plans to vigorously defend this matter. Quest Diagnostics Incorporated, incorporated on September 20, 1996, is a provider of diagnostic information services. The Company operates through two businesses: Diagnostic Information Services and Diagnostic Solutions. The company is based in Secaucus, New Jersey. QUOTEQIZARD.COM LLC: Bid to Dismiss Perrong TCPA Suit Denied ------------------------------------------------------------ In the case, ANDREW PERRONG, Individually And on behalf of a class of all persons and entities similarly situated, Plaintiff, v. QUOTEQIZARD.COM, LLC, Defendant, Civil Action No. 20-CV-2506 (E.D. Pa.), Judge J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania denied the Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. Nos. 12(b)(1) and 12(b)(6). The case was initiated by Plaintiff Perrong, a Pennsylvania resident against QuoteWizard, a Delaware limited liability corporation with its principal place of business in Seattle, WA, pursuant to the Telephone Consumer Protection Act ("TCPA"). In his Complaint, the Plaintiff alleges that the TCPA was enacted to prevent nuisance telemarketing calls and that the Defendant, a telemarketer, sent a pre-recorded message to him without consent. He further avers that because telemarketing campaigns generally result in the placement of "hundreds of thousands or even millions" of calls to "potential customers en masse," he therefore is endeavoring to bring the action on behalf of a nationwide class of individuals who have received similar illegal calls from or on behalf of Defendant. The Plaintiff submits that the Court has federal question jurisdiction over this matter pursuant to 28 U.S.C. Section 1331 and that venue is proper in the district as he resides here and the telemarketing call to him was placed. As to the particulars of his own claim, the Plaintiff alleges that on April 17, 2020 at 3:02 p.m., he received one of these prohibited calls from an "Avatar," which identified itself as "Danny" with "Cheap Insurance Rates Online." He responded to the prompts from the "Avatar" in an effort to receive a follow-up call as he suspected that "Cheap Insurance Rates Online" was not the true company behind the call. He provided the Avatar with false vehicle information and a mis-transcribed name -- "Andy Terrong," and requested a follow-up to the call. The Plaintiff avers that he provided the incorrect information so that if there were a follow-up, he would be able to discern that the preliminary information was gathered during the particular phone call. Approximately three hours later, he received an email from Geico Insurance Co. addressed to Andy Terrong and stating that Geico had received his information from its "partner site, QuoteWizard." The Plaintiff alleges that he has never submitted any information to QuoteWizard's website. By his Complaint, the Plaintiff claims that he, along with potentially "hundreds of thousands or even millions" of others suffered injury by being temporarily deprived of the use of their phones because the phone line was tied up and their privacy was improperly invaded, and because the calls were frustrating, obnoxious, annoying, a nuisance and disturbed their solitude. He therefore seeks to bring the action on behalf of a class of individuals impacted by pre-recorded calls from the Defendant pursuant to Fed. R. Civ. P. 23(b)(2) and/or (b)(3). He seeks both injunctive relief prohibiting the defendant from placing telephone calls using a pre-recorded voice and monetary damages in the amount of $500 for each violation of the TCPA. In response, the Defendant QuoteWizard moves to dismiss this matter in its entirety on the grounds that the Plaintiff lacks standing and his complaint fails to state a claim upon which relief may be granted. Judge Joyner finds that the Plaintiff's Complaint sufficiently alleges facts which, assumed to be true, establish Article III standing and state a cause of action under the TCPA against the Defendant upon which relief could be granted. The Plaintiff's allegations clearly comport with the pleading requirements set forth in the TCPA. He therefore finds no merit whatsoever in the Defendant's argument that the complaint fails to state a viable and factually plausible claim upon which relief may be granted and for this reason, the motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is denied. Judge Joyner likewise finds that the Complaint more than adequately alleges that the Plaintiff, and potentially a class of similarly situated individuals, suffered an invasion of their legally protected interest as codified in the TCPA and thus suffered a concrete and particularized, non-hypothetical injury in fact and that the complaint contains enough factual averments to make out a causal connection between the Defendant identified -- QuoteWizard, and the complained-of telephone solicitation such that the Plaintiff's injury can be said to be fairly traceable to QuoteWizard's business activity. Accordingly, the requisite nexus between the April 17, 2020 call to the Plaintiff and the Defendant's action (as opposed to a third party not before the Court) has been sufficiently pled. Given that the relief sought by the Plaintiff is that prescribed by the statute itself, Judge Joyner finds that it is indeed likely, as opposed to merely speculative, that the alleged injury will be redressed by a favorable decision. As a consequence, the Plaintiff has adequately alleged facts which, taken as true, would confer standing to sue upon him pursuant to Article III. The motion to dismiss under Rule 12(b)(1) is therefore also properly denied. For all of the stated reasons, Judge Joyner denied the Defendant's Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (12(b)(6). A full-text copy of the Court's Aug. 26, 2020 Memorandum & Order is available at https://tinyurl.com/y3yze3yx from Leagle.com. RAVISSANICS BEAUTY: Dou Seeks Unpaid Wages & Overtime Under FLSA ---------------------------------------------------------------- Huijie Dou, on behalf of herself and others similarly situated, v. RAVISSANICS BEAUTY LLC d/b/a Ravissanics Beauty, and YAHONG SUN, Case No. 3:20-cv-14793-BRM-TJB (D.N.J., Oct. 21, 2020), alleges violations of the Fair Labor Standards Act, the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, and the New Jersey Wage and Hour Regulations, arising from the Defendants' various willful and unlawful employment policies, patterns and/or practices. The Plaintiff contends that the Defendants have willfully and intentionally committed widespread violations of the federal and state laws by engaging in a patterned practice of failing to pay its employees, including her, minimum wage for all hours worked and overtime compensation for all hours worked over 40 each workweek. The Plaintiff seeks to recover from the Defendants unpaid wage for regular hours worked, unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest; and attorneys' fees and cost. The Plaintiff Huijie Dou was employed by the Defendants to work as a massage worker from July 7, 2019 to January 14, 2020, from February 13, 2020 to March 15, 2020, and finally from July 11, 2020 to July 18, 2020. Ravissanics Beauty offers in store beauty enhancement services and massage services, and also sells beauty products over the Internet.[BN] The Plaintiff is represented by: Adam Dong, Esq. DONG, ADAM'S LAW FIRM PLLC 3708 Main St, Suite 308 Flushing, NY 11354 Telephone: (929) 269-5666 RESTART USA: Faces Sosa Class Suit Over Wage & Hour Violations -------------------------------------------------------------- EFRAIN SOSA, DULCE SOSA, FANNY MARTINEZ, SENAIDA CASTRO, CLAUDIA JARA, FANNY CASTRON, NANCY MIRANDA, and JAIRO CASTRO, individually and on behalf of all others similarly situated, v. RESTART USA INC. D/B/A FUCHANG USA LLC, and ZHI HAO YUAN, as an individual, Case No. 1:20-cv-04755 (E.D.N.Y., Oct. 5, 2020), seeks to recover damages resulting the Defendants' violations pf the federal wage and hour laws arising out of Plaintiffs' employment at Restart USA located at 1013 Close Avenue, Bronx, New York. The Plaintiffs seek compensatory damages and liquidated damages in an amount exceeding $100,000.00. The Plaintiffs also seek interest, attorneys’ fees, costs, and all other legal and equitable remedies this Court deems appropriate.[BN] The Plaintiffs are represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: 718-263-959 RESTAURANTS BRANDS: Appeal in Suit Over Non-Compete Policy Pending ------------------------------------------------------------------ Restaurant Brands International Limited Partnership said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the plaintiffs in the class action suit over employee no-solicitation and no-hiring policies have taken an appeal from the court's denial of their motion for leave to amend complaint. On October 5, 2018, a class action complaint was filed against Burger King Worldwide, Inc. ("BKW") and Burger King Corporation ("BKC") in the U.S. District Court for the Southern District of Florida by Jarvis Arrington, individually and on behalf of all others similarly situated. On October 18, 2018, a second class action complaint was filed against Restaurant Brands International Inc. (RBI), BKW and BKC in the U.S. District Court for the Southern District of Florida by Monique Michel, individually and on behalf of all others similarly situated. On October 31, 2018, a third class action complaint was filed against BKC and BKW in the U.S. District Court for the Southern District of Florida by Geneva Blanchard and Tiffany Miller, individually and on behalf of all others similarly situated. On November 2, 2018, a fourth class action complaint was filed against RBI, BKW and BKC in the U.S. District Court for the Southern District of Florida by Sandra Muster, individually and on behalf of all others similarly situated. These complaints have been consolidated and allege that the defendants violated Section 1 of the Sherman Act by incorporating an employee no-solicitation and no-hiring clause in the standard form franchise agreement all Burger King franchisees are required to sign. Each plaintiff seeks injunctive relief and damages for himself or herself and other members of the class. On March 24, 2020, the Court granted BKC's motion to dismiss for failure to state a claim and on April 20, 2020 the plaintiffs filed a motion for leave to amend their complaint. On April 27, 2020, BKC filed a motion opposing the motion for leave to amend. The court denied the plaintiffs motion for leave to amend their complaint in August 2020 and the plaintiffs are appealing this ruling. Restaurant Brands said, "While we currently believe these claims are without merit, we are unable to predict the ultimate outcome of these cases or estimate the range of possible loss, if any." Restaurant Brands International Limited Partnership operates and franchises quick service restaurants. The company operates through three segments: Tim Hortons, Burger King, and Popeyes. The company was formerly known as New Red Canada Limited Partnership and changed its name to Restaurant Brands International Limited Partnership in December 2014. The company was founded in 1954 and is headquartered in Toronto, Canada. Restaurant Brands International Limited Partnership is a subsidiary of Restaurant Brands International Inc. RESTAURANTS BRANDS: Latifi Suit Against TDL Group Corp. Ongoing --------------------------------------------------------------- Restaurant Brands International Limited Partnership said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that The TDL Group Corp. continues to defend a class action suit initiated by Samir Latifi. In July 2019, a class action complaint was filed against The TDL Group Corp. in the Supreme Court of British Columbia by Samir Latifi, individually and on behalf of all others similarly situated. The complaint alleges TDL violated the Canadian Competition Act by incorporating an employee no-solicitation and no-hiring clause in the standard form franchise agreement all Tim Hortons franchisees are required to sign. The plaintiff seeks damages and restitution, on behalf of himself and other members of the class. Restaurant Brands said, "While we currently believe this claim is without merit, we are unable to predict the ultimate outcome of this case or estimate the range of possible loss, if any." No further updates were provided in the Company's SEC report. Restaurant Brands International Limited Partnership operates and franchises quick service restaurants. The company operates through three segments: Tim Hortons, Burger King, and Popeyes. The company was formerly known as New Red Canada Limited Partnership and changed its name to Restaurant Brands International Limited Partnership in December 2014. The company was founded in 1954 and is headquartered in Toronto, Canada. Restaurant Brands International Limited Partnership is a subsidiary of Restaurant Brands International Inc. RESTAURANTS BRANDS: Suits Over Data Collection Underway in Canada ----------------------------------------------------------------- Restaurant Brands International Limited Partnership said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company is a named defendant in class action suits in Canada related to its alleged collection of geolocation data through the Tim Hortons mobile application. On June 30, 2020, a class action complaint was filed against Restaurant Brands International Inc., Restaurant Brands International Limited Partnership and The TDL Group Corp. in the Quebec Superior Court by Steve Holcman, individually and on behalf of all Quebec residents who downloaded the Tim Hortons mobile application. On July 2, 2020, a Notice of Action related to a second class action complaint was filed against Restaurant Brands International Inc., in the Ontario Superior Court by Ashley Sitko and Ashley Cadeau, individually and on behalf of all Canadian residents who downloaded the Tim Hortons mobile application. On August 31, 2020, a notice of claim was filed against Restaurant Brands International Inc. in the Supreme Court of British Columbia by Wai Lam Jacky Law on behalf of all persons in Canada who downloaded the Tim Hortons mobile application or the Burger King mobile application. On September 30, 2020, a notice of action was filed against Restaurant Brands International Inc., Restaurant Brands International Limited Partnership, The TDL Group Corp., Burger King Worldwide, Inc. and Popeyes Louisiana Kitchen, Inc. in the Ontario Superior Court of Justice by William Jung on behalf of a to be determined class. All of the complaints allege that the defendants violated the plaintiff’s privacy rights, the Personal Information Protection and Electronic Documents Act, consumer protection and competition laws or app-based undertakings to users, in each case in connection with the collection of geolocation data through the Tim Hortons mobile application, and in certain cases, the Burger King and Popeyes mobile applications. Each plaintiff seeks injunctive relief and monetary damages for himself or herself and other members of the class. Restaurant Brands said, "These cases are in preliminary stages and we intend to vigorously defend against these lawsuits, but we are unable to predict the ultimate outcome of any of these cases or estimate the range of possible loss, if any." Restaurant Brands International Limited Partnership operates and franchises quick service restaurants. The company operates through three segments: Tim Hortons, Burger King, and Popeyes. The company was formerly known as New Red Canada Limited Partnership and changed its name to Restaurant Brands International Limited Partnership in December 2014. The company was founded in 1954 and is headquartered in Toronto, Canada. Restaurant Brands International Limited Partnership is a subsidiary of Restaurant Brands International Inc. RICHARD ALEXANDER: Court Denies Bid to Certify Class as Moot ------------------------------------------------------------ In the class action lawsuit captioned as GIRISH MODI, v. RICHARD T. ALEXANDER, Clerk of the State Court of Gwinnett County, Case No. 1:19-cv-05619-AJB (N.D. Ga.), the Hon. Judge Alan J. Baverman entered an order: 1. denying the Plaintiff's motions for recusal and to amend; 2. dismissing without prejudice the Plaintiff's complaint for lack of jurisdiction; 3. denying as moot the following pending motions including the Plaintiff's Motion to Certify Class; Motion for Judgment on the Pleadings; the Plaintiff's Motion to Withdraw Motion for Judgment on the Pleadings; the Plaintiff's Motion for a Three-Judge Court; the Defendant's Motion to Dismiss for Failure to State a Claim; the Plaintiff's Motion to Add Attorney General of Georgia; the Plaintiff's Pro Se Motion for Leave to File Amended Complaint; the Plaintiff's Motion for Reconsideration; the Plaintiff's Emergency Motion for Preliminary Injunctive Relief; the Plaintiff's Pro Se Motion for Leave to Amend; the Plaintiff's Pro Se Third Motion to Grant Leave to Amend; the Plaintiff's Renewed Emergency Motion for Preliminary Injunctive Relief; and the Plaintiff's construed Motion for Ruling on Pending Motions. The Court said it lacks jurisdiction over the complaint and must dismiss it without prejudice. All other pending motions not expressly ruled upon are denied as moot. A copy of the Court's Order and Opinion is available from PacerMonitor.com at https://bit.ly/36O6jAH at no extra charge.[CC] ROUNDPOINT MORTGAGE: Class Allegations in Elbert Suit Struck ------------------------------------------------------------ In the case, AMYE ELBERT, Plaintiff, v. ROUNDPOINT MORTGAGE SERVICING CORPORATION, Defendant, Case No. 20-cv-00250-MMC (N.D. Cal.), Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California granted in part and denied in part RoundPoint's Motion to Dismiss Plaintiff's Complaint or, in the Alternative, Motion to Strike Class Allegations. Elbert alleges that, in 2015, she purchased a home in Antioch, California, through a loan secured by a Deed of Trust issued by an Federal Housing Administration ("FHA")-approved lender and insured by the FHA. She further alleges she sometimes makes mortgage payments over the phone, and that, on those occasions, RoundPoint, the loan servicer, charges her a fee. As examples, Elbert states that, on Aug. 5, 2019, and again on Sept. 4, 2019, RoundPoint "charged" her a $12 "Pay-to-Pay Fee" for making a payment over the phone, which fees, according to Elbert, were not authorized under the terms of the Deed of Trust. Based on these allegations, Elbert asserts, on her own behalf and on behalf of a putative class, three Counts under state law, specifically, a claim for breach of contract, a claim under the Rosenthal Fair Debt Collection Practices Act, and a claim under California's Unfair Competition Law ("UCL"). In its motion, RoundPoint argues each Count asserted by Elbert is subject to dismissal for failure to state claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and, in the alternative, that certain portions of the complaint should be stricken, pursuant to Rule 12(f) and Rule 23(d)(1)(D). In Count I, Elbert alleges RoundPoint breached the terms of the Deed of Trust by charging her Pay-to-Pay fees. RoundPoint argues Elbert has failed to identify any provision in the Deed of Trust precluding it from charging such fees. Judge Chesney disagrees. She finds that Elbert has alleged sufficient facts to support a finding that RoundPoint, by charging her a fee not authorized by the Secretary, violated the "Loan Charges" section in the Deed of Trust. Elbert has also alleged sufficient facts to support a finding that the Pay-to-Pay fees she was charged are not allowed under the terms of the contract. Accordingly, Count I is not subject to dismissal. In Count II, Elbert asserts RoundPoint has violated the Rosenthal Act, which Act provides that no debt collector will collect or attempt to collect a consumer debt by means of various specified practices. RoundPoint argues Elbert's claim is subject to dismissal because, RoundPoint asserts, Elbert has not alleged any mortgage payment she made by telephone was, at the time of such payment, due or owing. In her opposition, Elbert cites to Sanders v. LoanCare LLC, in which the plaintiff alleged she made a payment within a "grace period," which payment, the district court held, was made when it was, for purposes of the Rosenthal Act, "due and owing." Even assuming a payment within a grace period can be considered "due and owing," however, Elbert has not identified any relevant document providing for a grace period, let alone that she made any telephonic payment within any such period, Judge Chesney opines. Accordingly, Count II is subject to dismissal. In Count III, Elbert alleges the Defendant has violated Section 17200 of the California Business & Professions Code, which section prohibits any unlawful, unfair or fraudulent business act or practice. Specifically, Elbert alleges, RoundPoint's Pay-to-Pay fees are "unlawful" and "unfair." To the extent Count III is based on the allegation that the collection of Pay-to-Pay fees is unlawful, the claim, as pleaded, is wholly derivative of the Rosenthal Act, and, consequently, is subject to dismissal with respect to Count II, rules Judge Chesney. To the extent Count III is based on the allegation that the collection of Pay-to-Pay fees is unfair, RoundPoint argues the claim is conclusory, and the Judge agrees. Elbert has not identified a public policy implicated by Pay-to-Pay fees, nor has she pleaded facts sufficient to show the collection of such fees is immoral, unethical, oppressive or unscrupulous. Although she alleges the fees charged are well above the actual cost of providing phone payments service, she includes insufficient facts to support such allegation. Accordingly, Count III is subject to dismissal. RoundPoint contends the first three numbered paragraphs of the complaint should be stricken, on the ground those paragraphs are vague and inflammatory and are irrelevant to Elbert's experiences and claims. As Elbert points out, however, the allegations therein are limited to and summarize the claims Elbert is making. Accordingly, the first three numbered paragraphs will not be stricken. RoundPoint next argues the putative class allegations should be stricken pursuant to Rule 23(d), under which Rule a court may issue orders that require that the pleadings be amended to eliminate allegations about representation of absent persons. In that regard, RoundPoint is, in essence, contending Elbert cannot show there are questions of law or fact common to the putative class or that her claims or defenses are typical of the claims or defenses of the putative class. Although, as Elbert points out, a motion to strike class allegations is rarely granted, Judge Chesney finds the instant case is one of the rare cases in which the complaint indicates that the class requirements cannot possibly be met. The class consists of all borrowers whose loans were serviced by RoundPoint, irrespective of whether those loans were insured by the FHA, and Elbert does not allege RoundPoint only services loans insured by the FHA. Moreover, although the class definition includes persons who made payments by the internet, nothing in the complaint suggests RoundPoint charges a fee to persons who make payments in that manner. Accordingly, the class allegations will be stricken. For the reasons she stated, Judge Chesney graneed in part and denied in part RoundPoint's motion. To the extent RoundPoint seeks dismissal of Counts II and III, the motion is granted. To the extent RoundPoint seeks an order striking the class allegations, the motion is granted. In all other respects, the motion is denied. If Elbert wishes to amend for purposes of curing any or all of the deficiencies identified, the Court ordered Elbert to file her First Amended Complaint no later than Sept. 10, 2020. In light of the foregoing, the Case Management Conference is continued from Sept. 4, 2020 to Dec. 4, 2020, at 10:30 a.m. A Joint Case Management Statement will be filed no later than Nov. 27, 2020. A full-text copy of the Court's Aug. 19, 2020 Order is available at https://tinyurl.com/y62z83zp from Leagle.com. RYDER SYSTEM: Putative Securities Class Suit in Florida Ongoing --------------------------------------------------------------- Ryder System, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a putative securities class action suit in the U.S. District Court for the Southern District of Florida. On May 20, 2020, a putative class action on behalf of purchasers of the company's securities who purchased or otherwise acquired their securities between July 23, 2015 and February 13, 2020, inclusive (the "Class Period"), was commenced against Ryder and certain of its current and former officers in the U.S. District Court for the Southern District of Florida, captioned Key West Policy & Fire Pension Fund v. Ryder System, Inc., et al. The complaint alleges, among other things, that the defendants misrepresented Ryder's depreciation policy and residual value estimates for its vehicles during the Class Period in violation of Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks to recover, among other things, unspecified compensatory damages and attorneys' fees and costs. On August 3, 2020, the State of Alaska, Alaska Permanent Fund, the City of Fort Lauderdale General Employees' Retirement System, and the City of Plantation Police Officers Pension Fund were appointed lead plaintiffs. On October 5, 2020, the lead plaintiffs filed an amended complaint. Ryder System, Inc., commonly known as Ryder, is an American provider of transportation and supply chain management products, and is especially known for its fleet of rental trucks. Ryder specializes in fleet management, supply chain management, and dedicated contracted carriage. SAFE HAVEN: Settlement in Martin FLSA Suit Gets Court Approval -------------------------------------------------------------- In the case, ISAIAH MARTIN, et al., Plaintiffs, v. SAFE HAVEN SECURITY SERVICES, INC., Defendant, Case No. 19-CV-00063-ODS (W.D. Mo.), Judge Ortrie D. Smith of the U.S. District Court for the Western District of Missouri, Western Division, (i) granted the parties' Motion to Approve Collective Action Settlement; and (ii) granted in part and denied in part the Plaintiffs' Application for Attorneys' Fees. In January 2019, the Plaintiffs filed the lawsuit on behalf of themselves and a putative class of "inside sales representatives" against Defendant Safe Haven for alleged violations of the Fair Labor Standards Act ("FLSA"). In September 2019, the Court conditionally certified a collective action of all current and former sales representatives who worked for the Defendant at any time from Sept. 19, 2016, to the present, at the Defendant's place of business in Kansas City, Missouri, who were not properly compensated for all time worked in excess of 40 hours in a workweek. The putative collective action members were notified and required to submit their consent to join forms by Jan. 6, 2020. On July 17, 2020, the parties jointly moved for the Court's approval of their settlement of this matter. Nothing was filed in response to the parties' motion, and the deadline to do so has passed. Also pending is the Plaintiffs' application for attorneys' fees, which the Defendant opposes. On July 17, 2020, the parties executed a Collective Action Settlement Agreement. The Settlement Agreement provides compensation to the Settlement Class, which is defined as follows: All current and former sales representatives who worked for Defendant at any time from Sept. 19, 2016, to the present, at thhe Defendant's place of business in Kansas City, Missouri, and who timely exercised their right and option to opt into the Action and have not been Dismissed by the Court. The Settlement Class also includes Frank Musquiz, Steven Nimmo, Charmaine Payne, Jonathan Poindexter, Lauryn White, Alvinesha Wynn, and Carol Foster, whose claims the Court dismissed without prejudice on May 14, 2020. The 59 Settlement Class members will receive a total of $375,000, which will be distributed on a pro rata basis among the Settlement Class members based on rate of pay and length of employment with the Defendant during the class period. Except for the adjustments discussed infra, each Settlement Class member will receive approximately 8.14 hours of overtime compensation along with an equal amount apportioned for statutory liquidated damages for each week worked for the Defendant during the Class Period. Thirteen Settlement Class members will receive 75% of their pro rata distribution due to failure to appear at their scheduled depositions. The Settlement Payment also includes service awards, which are discussed infra. In exchange for the Settlement Payment, the Settlement Class members release all wage and hour claims they asserted (or could have asserted) against the Defendant in the matter. Judge Smith approves the parties' settlement in accordance with the FLSA as fair, reasonable, and adequate. He concludes the settlement is in the best interests of the Settlement Class members, especially in the light of the benefits to the Settlement Class members. He also determines the consideration provided under the Settlement Agreement constitutes reasonable and fair value given in exchange for the release of claims against the Defendant. For purposes of the settlement, Judge Smith designates Isaiah Martin and Kirk Kincaid as the representatives of the Settlement Class. The Settlement Payment includes a $10,000 service award for Martin and a $5,000 service award for Kincaid. The parties also request a $500 service award for each Settlement Class member who was deposed. Upon consideration of the relevant factors, the Judge finds service awards of $10,000 to Martin, $5,000 to Kincaid, and $500 to each Settlement Class member who was deposed are warranted. Judge Smith also concludes the requested amounts are reasonable and appropriate in these circumstances. Thus, he grants the service award requests. The Defendant will deliver the service awards pursuant to the terms of the Settlement Agreement. For purposes of the settlement, Judge Smith appoints Marc N. Middleton, Ryan M. Paulus, and Megan Lowe Stiles of Cornerstone Law Firm as the Class Counsel. The Plaintiffs and the Class Counsel seek recovery of $7,956.30 for costs incurred in this matter. The Defendant does not oppose the request for costs or the amount of costs requested. The Settlement Payment does not provide for costs, and the parties have agreed to be bound by the Court's award of costs. The Class Counsel provided an itemized list of costs and expenses, which the Judge reviewed. He grants the Class Counsel's request for costs and awards Class Counsel $7,956.30 in costs. The Defendant will deliver payment to the Class Counsel for costs pursuant to the Settlement Agreement's terms. Pursuant to the Settlement Agreement, the Defendant will deliver to the Class Counsel the Settlement Payment within 60 days of the Order in the form of an individual check for each Settlement Class member pursuant to the settlement allocations attached to the Settlement Agreement. The Class Counsel will administer the settlement and bear the costs and expenses associated with administering the settlement and distributing the Settlement Payment. Upon receipt of the Settlement Payment, the Class Counsel will promptly distribute the Settlement Payment to the Settlement Class members along with a Notice, which is attached to the Settlement Agreement. The Notice informs Settlement Class members of their eligibility to participate in the settlement by cashing the check, and they will only be bound by the settlement if they cash their checks. The Notice also advises Settlement Class members that they must cash the check within 120 days of the date the Notice is sent. The 120-day deadline will be bolded and underlined in the Notice. Because they were unable to agree to the appropriate amount of fees to be awarded to the Plaintiffs' counsel, the parties briefed the issue for the Court. The Class Counsel asks the Court to award to $1,098,223.04 in attorneys' fees. The Defendant opposes the amount of fees sought and suggests an attorneys' fee award of $125,000 is appropriate in the matter. Judge Smith concludes the Class Counsel has not met its burden of establishing the hourly rates the Class Counsel requested. He finds a reasonable hourly rate for Middleton and Paulus is $500, a reasonable hourly rate for Stiles is $300, and a reasonable hourly rate for the Class Counsel's paralegals is $150. When reviewing the Class Counsel's time records, Judge Smith found a few errors. First, Paulus billed 30 minutes for a pretrial conference on Feb. 7, 2020, but no pretrial conference was held on that date in the matter. On March 30, 2020, both Paulus and Middleton billed one-tenth of an hour for reviewing a text order, but no text order was issued that day. These entries are both errors, and the Court will reduce the Class Counsel's request for motion for fees accordingly. When multiplying the hours reasonably expended by the Class Counsel and the Class Counsel's paralegals by the reasonable hourly rates determined, Judge Smith arrives at the total lodestar in the amount of $432,837. The Class Counsel suggests the Court multiplies the lodestar by two so that the Class Counsel is adequately compensated for accepting the matter on a contingent fee arrangement. The Court holds that the matter presented a relatively straightforward legal issue: whether the Plaintiffs were compensated for overtime worked. Once the necessary documents were obtained, the Class Counsel had to calculate the hours of overtime worked by the Plaintiffs, determine whether the Plaintiffs were compensated, in whole or in part, for overtime worked, and how much the Plaintiffs were owed. The Court finds the Class Counsel's work is accurately reflected in the time and hourly rates, and there is insufficient justification for applying a multiplier. Accordingly, Judge Smith denies the Plaintiff's request to apply a multiplier to the lodestar. Accordingly, Judge Smith granted the parties' Motion to Approve the Collective Action Settlement. He designated Martin and Kincaid as the representative Plaintiffs and approved service awards of $10,000 to Martin, $5,000 to Kincaid, and $500 to each Settlement Class member who was deposed. He appointed the Class Counsel, awarded costs in the amount of $7,956.30, and awarded attorneys' fees in the amount of $432,837. Within five business days of receiving the Settlement Payment and payment for the Court-ordered attorneys' fees and costs, the parties will file a joint stipulation of dismissal. A full-text copy of the Court's Aug. 19, 2020 Order & Opinion is available at https://tinyurl.com/yym6l5h8 from Leagle.com. SAN FRANCISCO: Underpays Registered Nurses, Silloway et al. Claim ----------------------------------------------------------------- KRISTEN SILLOWAY, CHRISTA DURAN, BRIGITTA VAN EWIJK, and those similarly situated, Plaintiffs v. CITY & COUNTY OF SAN FRANCISCO, Defendant, Case No. 3:20-cv-07400 (N.D. Cal., October 22, 2020) bring this complaint against the Defendant for its alleged violation of the Fair Labor Standards Act. According to the complaint, the Plaintiffs, who were employed by the Defendants as registered nurses, performed substantively identical work for more than 40 hours per week without being properly compensated for their overtime hours performed. Instead, the Plaintiffs and other similarly situated registered nurses were paid by the Defendant the straight-time hourly rate for each hour worked. Allegedly, the Defendant has consistently failed and continues to fail, to properly compensate the Plaintiffs and other similarly situated registered nurses at the FLSA-mandated rate of not less than one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek or 80 hours per pay period. City and County of San Francisco is a political entity created pursuant to the laws of the State of California. [BN] The Plaintiffs are represented by: Matthew J. Gauger, Esq. Kerianne R. Steele, Esq. Benjamin J. Fuchs, Esq. WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Ste. 200 Alameda, CA 94501 Tel: (510) 337-1001 Fax: (510) 337-1023 E-mail: courtnotices@unioncounsel.net mgauger@unioncounsel.net ksteele@unioncounsel.net bfuchs@unioncounsel.net SEABOARD CORP: Bid to Dismiss Pork Antitrust Litigation Denied -------------------------------------------------------------- Seaboard Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 26, 2020, that the motion to dismiss the class action suit entitled, In re Pork Antitrust Litigation, has been denied. On June 28, 2018, Wanda Duryea and eleven other indirect purchasers of pork products, acting on behalf of themselves and a putative class of indirect purchasers of pork products, filed a class action complaint in the U.S. District Court for the District of Minnesota (the "District Court") against several pork processors, including Seaboard Foods LLC and Agri Stats, Inc., a company described in the complaint as a data sharing service. Subsequent to the filing of this initial complaint, additional class action complaints making similar claims on behalf of putative classes of direct and indirect purchasers were filed in the District Court. The complaints were amended and consolidated for pre-trial purposes, into three consolidated putative class actions brought on behalf of (a) direct purchasers, (b) consumer indirect purchasers and (c) commercial and institutional indirect purchasers. The amended complaints named Seaboard Corporation as an additional defendant. The consolidated actions are styled In re Pork Antitrust Litigation. Subsequent to the original filings, two additional actions making similar claims, including one by the Commonwealth of Puerto Rico, were brought in or transferred to the District Court. The complaints alleged, among other things, that beginning in January 2009, the defendants conspired and combined to fix, raise, maintain, and stabilize the price of pork products in violation of U.S. antitrust laws by coordinating their output and limiting production, allegedly facilitated by the exchange of non-public information about prices, capacity, sales volume and demand through Agri Stats, Inc. The complaints on behalf of the putative classes of indirect purchasers also included causes of action under various state laws, including state antitrust laws, unfair competition laws, consumer protection statutes and state common law claims for unjust enrichment. The complaints also alleged that the defendants concealed this conduct from the plaintiffs and the members of the putative classes. The relief sought in the respective complaints includes treble damages, injunctive relief, pre- and post-judgment interest, costs and attorneys' fees on behalf of the putative classes. On August 8, 2019, the District Court granted defendants' motion to dismiss the class action cases while giving the plaintiffs leave to amend. The classes and the other two plaintiffs filed amended complaints in November and December 2019. In addition to amending the original claims, the consumer indirect purchasers have asserted a new claim alleging that the exchange of information by defendants through Agri Stats Inc. unreasonably restrained trade. On October 16, 2020, the defendants' pending motion to dismiss the amended complaints was denied. Seaboard intends to defend these cases vigorously. Seaboard Corporation operates as a diverse agribusiness and transportation company worldwide. The company's Pork division produces and sells fresh pork products, such as loins, tenderloins, and ribs, as well as frozen pork products to further processors, food service operators, grocery stores, distributors, and retail outlets. Seaboard Corporation was founded in 1918 and is headquartered in Merriam, Kansas. SEALED AIR: Bid to Nix UA Local 13's Securities Class Suit Pending ------------------------------------------------------------------ Sealed Air Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company's motion to dismiss filed in the putative class action suit initiated by UA Local 13 & Employers Group Insurance Fund, remains pending. On November 1, 2019, purported Company stockholder UA Local 13 & Employers Group Insurance Fund filed a putative class action complaint in the United States District Court for the Southern District of New York against the Company and certain of its current and former officers. On June 4, 2020, the complaint was amended to remove all individual defendants other than the Company's former CFO and to add a plaintiff, and on July 13, 2020, the complaint was further amended to identify a total of four plaintiffs. The complaint alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder based on allegedly false and misleading statements and omissions concerning the Company's hiring of Ernst & Young LLP as its independent auditors and concerning the Company’s corporate policies and procedures. The plaintiffs seek to represent a class of purchasers of the Company's common stock between November 17, 2014 and June 20, 2019. The complaint seeks, among other things, unspecified compensatory damages, including interest, and attorneys' fees and costs. On September 4, 2020, the Company filed a motion to dismiss the complaint, and after briefing the motion, will await a decision by the court. Sealed Air Corporation provides food safety and security, and product protection solutions worldwide. It was founded in 1960 and is headquartered in Charlotte, North Carolina. SEI INVESTMENTS: Suits Over SPTC Services to Stanford Ongoing ------------------------------------------------------------- SEI Investments Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 26, 2020, for the quarterly period ended September 30, 2020, that the company and SEI Private Trust Company (SPTC) continue to defend several class action suits related to SPTC's services to Stanford Trust Company. SEI has been named in seven lawsuits filed in Louisiana courts; four of the cases also name SEI Private Trust Company (SPTC) as a defendant. The underlying allegations in all actions relate to the purported role of SPTC in providing back-office services to Stanford Trust Company. The complaints allege that SEI and SPTC participated in some manner in the sale of "certificates of deposit" issued by Stanford International Bank so as to be a "seller" of the certificates of deposit for purposes of primary liability under the Louisiana Securities Law or so as to be secondarily liable under that statute for sales of certificates of deposit made by Stanford Trust Company. Two of the actions also include claims for violations of the Louisiana Racketeering Act and possibly conspiracy, and a third also asserts claims of negligence, breach of contract, breach of fiduciary duty, violations of the uniform fiduciaries law, negligent misrepresentation, detrimental reliance, violations of the Louisiana Racketeering Act, and conspiracy. The procedural status of the seven cases varies. The Lillie case, filed originally in the 19th Judicial District Court for the Parish of East Baton Rouge, was brought as a class action and is procedurally the most advanced of the cases. SEI and SPTC filed exceptions, which the Court granted in part, dismissing claims under the Louisiana Unfair Trade Practices Act and permitting the claims under the Louisiana Securities Law to go forward. On March 11, 2013, newly-added insurance carrier defendants removed the case to the United States District Court for the Middle District of Louisiana. On August 7, 2013, the Judicial Panel on Multidistrict Litigation transferred the matter to the Northern District of Texas where MDL 2099, In re: Stanford Entities Securities Litigation ("the Stanford MDL"), is pending. On September 22, 2015, the District Court on the motion of SEI and SPTC dismissed plaintiffs' claims for primary liability under Section 714(A) of the Louisiana Securities Law, but declined to dismiss plaintiffs' claims for secondary liability under Section 714(B) of the Louisiana Securities Law based on the allegations pled by plaintiffs. On November 4, 2015, the District Court granted SEI and SPTC's motion to dismiss plaintiffs' claims under Section 712(D) of the Louisiana Securities Law. Consequently, the only claims of plaintiffs remaining in Lillie are plaintiffs' claims for secondary liability against SEI and SPTC under Section 714(B) of the Louisiana Securities Law. On May 2, 2016, the District Court certified the class as being "all persons for whom Stanford Trust Company purchased or renewed Stanford Investment Bank Limited certificates of deposit in Louisiana between January 1, 2007 and February 13, 2009". Notice of the pendency of the class action was mailed to potential class members on October 4, 2016. On December 1, 2016, a group of plaintiffs who opted out of the Lillie class filed a complaint against SEI and SPTC in the United States District Court in the Middle District of Louisiana ("Ahders Complaint"), alleging claims essentially the same as those in Lillie. In January 2017, the Judicial Panel on Multidistrict Litigation transferred the Ahders proceeding to the Northern District of Texas and the Stanford MDL. During February 2017, SEI and SPTC filed their response to the Ahders Complaint, and in March 2017 the District Court for the Northern District of Texas approved the stipulated dismissal of all claims in this Complaint predicated on Section 712(D) or Section 714(A) of the Louisiana Securities Law. In both cases, as a result of the proceedings in the Northern District of Texas, only the plaintiffs’ secondary liability claims under Section 714(B) of the Louisiana Securities Law remain. Limited discovery and motions practice have occurred, including SEI and SPTC’s filing of a dispositive summary judgment motion in the Lillie proceeding. On January 31, 2019, the Judicial Panel on Multidistrict Litigation remanded the Lillie and Ahders proceedings to the Middle District of Louisiana. With respect to the Lillie proceeding, on July 9, 2019, the District Court issued an order granting SEI's Summary Judgment Motion to dismiss the remaining Section 714(B) claim and denying Plaintiffs’ Motion for Continuance of SEI and SPTC's Motion for Summary Judgment pursuant to Rule 56(d). On July 17, 2019, Plaintiffs filed a Motion for Reconsideration and/or New Trial. The Court denied Plaintiffs' Motion for Reconsideration and/or New Trial and entered a Final Judgment in favor of SEI and SPTC on August 15, 2019. On August 27, 2019, Plaintiffs-Appellants filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit of the District Court's dismissal of the Lillie matter. On November 20, 2019, Plaintiffs-Appellants filed a Motion in Support of the Notice of Appeal. On January 17, 2020, SEI and SPTC timely filed their brief in opposition to the Plaintiffs-Appellants' motion for appeal. On February 7, 2020, Plaintiffs- Appellants filed their reply brief. The parties are currently waiting for oral argument to be scheduled. With respect to the Ahders proceeding, on July 16, 2019, SEI and SPTC filed a Motion for Summary Judgment pursuant to Rule 56(d) to have the remaining Section 714(B) claim dismissed. On January 24, 2020, the District Court issued an order granting SEI's Summary Judgment Motion to dismiss the remaining Section 714(B) claim. On March 17, 2020, Plaintiffs-Appellants filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit of the District Court's dismissal of the Ahders matter. Similar to the Lillie matter, all motions and briefs in support of the parties' positions have been filed and the parties are currently waiting for oral argument to be scheduled. Another case, filed in the 23rd Judicial District Court for the Parish of Ascension, also was removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Texas and the Stanford MDL. The schedule for responding to that Complaint has not yet been established. Two additional cases remain in the Parish of East Baton Rouge. Plaintiffs filed petitions in 2010 and have granted SEI and SPTC indefinite extensions to respond. No material activity has taken place since. In two additional cases, filed in East Baton Rouge and brought by the same counsel who filed the Lillie action, virtually all of the litigation to date has involved motions practice and appellate litigation regarding the existence of federal subject matter jurisdiction under the federal Securities Litigation Uniform Standards Act (SLUSA). The matters were removed to the United States District Court for the Northern District of Texas and consolidated. The court then dismissed the action under SLUSA. The Court of Appeals for the Fifth Circuit reversed that order, and the Supreme Court of the United States affirmed the Court of Appeals judgment on February 26, 2014. The matters were remanded to state court and no material activity has taken place since that date. SEI said, "While the outcome of this litigation remains uncertain, SEI and SPTC believe that they have valid defenses to plaintiffs' claims and intend to defend the lawsuits vigorously. Because of uncertainty in the make-up of the Lillie class, the specific theories of liability that may survive a motion for summary judgment or other dispositive motion, the relative lack of discovery regarding damages, causation, mitigation and other aspects that may ultimately bear upon loss, the Company is not reasonably able to provide an estimate of loss, if any, with respect to the foregoing lawsuits." SEI Investments Company is a publicly owned asset management holding company. Through its subsidiaries, the firm provides wealth management, retirement and investment solutions, asset management, asset administration, investment processing outsourcing solutions, financial services, and investment advisory services to its clients. SEI Investments Company was founded in 1968 and is based in Oaks, Pennsylvania. SELECT PORTFOLIO: Initial Approval of Class Settlement Sought ------------------------------------------------------------- In the class action lawsuit captioned as THERESA GAFFNEY, individually and on behalf of all others similarly situated, v. SELECT PORTFOLIO SERVICING, INC., Case No. 3:18-cv-12233-BRM-ZNQ (D.N.J.), the Plaintiff Theresa Gaffney asks the Court for an order granting preliminary approval of the Parties' Class Settlement Agreement on behalf of a class consisting of: "all consumers with properties in New Jersey who were 30 or more days past due on their mortgage loans when SPS began servicing their loans, and to whom SPS sent monthly mortgage statements from July 31, 2017 through December 31, 2019, after a foreclosure judgment was entered with respect to their loans, and where the note rate in the monthly statements was in excess of the then-applicable post-judgment interest rate under New Jersey R. 4:42-11." Select Portfolio is a loan servicing company founded in 1989 as Fairbanks Capital Corp. with operations in Salt Lake City, Utah and Jacksonville, Florida. A copy of the unnopposed motion for an order granting preliminary approval of class settlement agreement is available from PacerMonitor.com at https://bit.ly/34zkdUu at no extra charge.[CC] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS & ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: Ari@MarcusZelman.com SIX FLAGS: Bid to Nix Electrical Workers Pension Fund Suit Pending ------------------------------------------------------------------ Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the motion to dismiss filed in the Electrical Workers Pension Fund Local 103 I.B.E.W. v. Six Flags Entertainment Corp., et al., is pending. In February 2020, two putative securities class action complaints were filed against the company (Holdings) and certain of its former executive officers in the U.S. District Court for the Northern District of Texas. On March 2, 2020, the two cases were consolidated in an action captioned Electrical Workers Pension Fund Local 103 I.B.E.W. v. Six Flags Entertainment Corp., et al., Case No. 4:20-cv-00201-P (N.D. Tex.) (the "Electrical Workers litigation"), and an amended complaint was filed on March 20, 2020. On May 8, 2020, Oklahoma Firefighters Pension and Retirement System and Electrical Workers Pension Fund Local 103 I.B.E.W. were appointed as lead plaintiffs, Bernstein Litowitz Berger & Grossman LLP was appointed as lead counsel, and McKool Smith PC was appointed as liaison counsel. On July 2, 2020, lead plaintiffs filed a consolidated complaint. The consolidated complaint alleges, among other things, that the defendants made materially false or misleading statements or omissions regarding the Company's business, operations and growth prospects, specifically with respect to the development of its Six Flags branded parks in China and the financial health of its partner, Riverside Investment Group Co. Ltd., in violation of the federal securities laws. The consolidated complaint seeks compensatory damages and other relief on behalf of a putative class of purchasers of Holdings’ publicly traded common stock during the period between April 24, 2018 and February 19, 2020. On August 3, 2020, defendants filed a motion to dismiss the consolidated complaint. Six Flags said, "We believe that these lawsuits are without merit and intend to defend this litigation vigorously. However, there can be no assurance regarding the ultimate outcome of the lawsuit." No further updates were provided in the Company's SEC report. Six Flags Entertainment Corporation, incorporated on December 9, 1997, is a regional theme park operator. The Company operates in the theme parks segment. The Company operates approximately 19 regional theme and water parks. Its parks occupy approximately 4,500 acres of land. Its parks are located in geographically diverse markets across North America. The company is based in Grand Prairie, Texas. SIX FLAGS: Discovery Kingdom Employees' Suit Ongoing ---------------------------------------------------- Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that Magic Mountain LLC, continues to defend purported class action suits in the Superior Court of Los Angeles County, California, initiated by current and former employees of Six Flags Discovery Kingdom. On September 18, 2019, a complaint was filed against Magic Mountain LLC in the Superior Court of Los Angeles County, California, on behalf of a purported class of current and former employees of Six Flags Discovery Kingdom. An amended complaint was filed on November 24, 2019. On May 27, 2020, a copycat complaint was filed by the same law firm on behalf of a different named plaintiff alleging identical causes of action. The complaints allege violations of California law governing payment of wages, wage statements, and background checks, and seeks statutory damages under California law as well as under the Private Attorneys General Act, and attorneys' fees costs. Six Flags said, "We intend to vigorously defend ourselves against this litigation. Since this litigation is in an early stage, the outcome is currently not determinable and a reasonable estimate of loss or range of loss cannot be made." No further updates were provided in the Company's SEC report. Six Flags Entertainment Corporation, incorporated on December 9, 1997, is a regional theme park operator. The Company operates in the theme parks segment. The Company operates approximately 19 regional theme and water parks. Its parks occupy approximately 4,500 acres of land. Its parks are located in geographically diverse markets across North America. The company is based in Grand Prairie, Texas. SIX FLAGS: Settlement Reached in Refund Related Class Suits ----------------------------------------------------------- Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the parties in the purported class action suit related to the illegal charge the company made to members and season passholders while parks were closed and did not provide refunds for the amounts charged, have agreed to a settlement in principle. Since COVID-19 began affecting the operations of the company's parks in mid-March 2020, three similar purported class action complaints were filed against the company (Holdings) or one of its subsidiaries in the United States District Court for the Central District of California on April 10, 2020, April 13, 2020, and April 21, 2020. These complaints allege that the company, in violation of California law, charged members and season passholders while the parks were closed and did not provide refunds for the amounts charged. The complaints seek compensatory damages, punitive damages, restitution, and unspecified injunctive relief. On September 9, 2020, the parties agreed to a settlement in principle to resolve the lawsuits, for an immaterial amount, which is subject to preliminary and final approval by the court. Six Flags Entertainment Corporation, incorporated on December 9, 1997, is a regional theme park operator. The Company operates in the theme parks segment. The Company operates approximately 19 regional theme and water parks. Its parks occupy approximately 4,500 acres of land. Its parks are located in geographically diverse markets across North America. The company is based in Grand Prairie, Texas. SIX FLAGS: Suit Against Park Management Corp. Ongoing ----------------------------------------------------- Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that Park Management Corp. continues to defend a purported class action suit initiated by current and former employees of Six Flags Discovery Kingdom. On February 20, 2020, a complaint was filed against Park Management Corp. in the Superior Court of Solano County, California, on behalf of a purported class of current and former employees of Six Flags Discovery Kingdom. The complaint alleges violations of California law governing payment of wages, wage statements, and background checks, and seeks statutory damages under California law and attorneys' fees costs. Six Flags said, "We intend to vigorously defend ourselves against this litigation. Since this litigation is in an early stage, the outcome is currently not determinable and a reasonable estimate of loss or range of loss cannot be made." No further updates were provided in the Company's SEC report. Six Flags Entertainment Corporation, incorporated on December 9, 1997, is a regional theme park operator. The Company operates in the theme parks segment. The Company operates approximately 19 regional theme and water parks. Its parks occupy approximately 4,500 acres of land. Its parks are located in geographically diverse markets across North America. The company is based in Grand Prairie, Texas. SOUTHERN RESPONSE: Appeal Court Reduces Damages in Dodd Suit ------------------------------------------------------------ Stuff reports that a Christchurch couple locked in an ongoing legal battle with state-owned quake insurer Southern Response says it is sobering for a Court of Appeal decision to go their way, one decade on from the harrowing earthquakes. An earlier High Court decision found Southern Response guilty of misleading and deceptive behaviour when it short-changed Karl and Alison Dodds tens of thousands of dollars after their quake damaged house was written off. The Dodds say they were tricked into accepting a lower offer from Southern Response only to later discover the insurer had kept secret from them a second higher estimate to rebuild their damaged house, a so-called second secret detailed repair and rebuild analysis (DRA). The High Court ordered Southern Response to pay the Dodds almost $180,000 in damages, plus costs. But the government appealed the decision, saying it needed clarity, because of the thousands of similar cases it could be liable for. The Court of Appeal reduced the damages Southern Response has to pay $10,656.44 due to an earlier error in calculations. Speaking to Checkpoint shortly after receiving the news, Karl said he felt "cathartic" and a "whole bundle of emotions". "Having the outcome in the middle of what is effectively the 10th anniversary of the earthquakes is poignant and sobering and I think what we and the others in Christchurch have gone through, has been harrowing to say the least, and the post-traumatic effects of having to deal with Southern Response have added to the trauma of the earthquakes, and to bring it all to conclusion is brilliant from our point of view and tremendous for the other 3000 people." Karl Dodds said his wife Allison had been traumatised by the whole experience -- from being shaken around the top of her work building in the 22 February, 2011 earthquake, watching the CTV building collapse, and then having to deal with Southern Response in the aftermath. He said decisions were made by the "highest level of the organisation" and renewed his call for an inquiry into Southern Response, by the likes of Dame Silvia Cartwright. It would need to be similar to the inquiry into EQC, but with one difference. "EQC made a lot of mistakes, but they were really caught off guard. Nobody expected the magnitude of the disaster. They were understaffed, ill-equipped and perhaps one could say they did their best, but with that said we spent the first two years battling EQC, with letters flying backwards and forwards and getting more and more fiery as we went. "But with Southern Response they don't have the same excuse. They came into existence after the disaster and therefore were well-equipped to behave professionally and competently and this they failed to do. "When an independent person digs deep enough they will be able to find all sorts of additional dubious practices of which we are well aware, but we are not going to disclose at this point in time, which will really push the whole case, as to their behaviour, beyond another level." Karl Dodds said Southern Response had a right to appeal and take the case to the Supreme Court, but he hoped it wouldn't come to that. Both the minister responsible, Grant Robertson, and Southern Response declined to be interviewed. Neither have ruled out appealing the decision in the Supreme Court Karl Dodds wished others in a similar position all the very best with their battle against the insurer. [GN] SOUTHWEST AIRLINES: Appeal in Airfare-Related Class Suit Ongoing ---------------------------------------------------------------- Southwest Airlines Co. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the appeal from a lower court decision approving the settlement of the airfare-related class suit remains pending even as objectors to the settlement have opted to drop the appeal. On July 1, 2015, a complaint was filed in the United States District Court for the Southern District of New York on behalf of putative classes of consumers alleging collusion among the Company, American Airlines, Delta Air Lines, and United Airlines to limit capacity and maintain higher fares in violation of Section 1 of the Sherman Act. Since then, a number of similar class action complaints were filed in the United States District Courts for the Central District of California, the Northern District of California, the District of Columbia, the Middle District of Florida, the Southern District of Florida, the Northern District of Georgia, the Northern District of Illinois, the Southern District of Indiana, the Eastern District of Louisiana, the District of Minnesota, the District of New Jersey, the Eastern District of New York, the Southern District of New York, the Middle District of North Carolina, the District of Oklahoma, the Eastern District of Pennsylvania, the Northern District of Texas, the District of Vermont, and the Eastern District of Wisconsin. On October 13, 2015, the Judicial Panel on Multi-District Litigation centralized the cases to the United States District Court in the District of Columbia. On March 25, 2016, the plaintiffs filed a Consolidated Amended Complaint in the consolidated cases alleging that the defendants conspired to restrict capacity from 2009 to present. The plaintiffs seek to bring their claims on behalf of a class of persons who purchased tickets for domestic airline travel on the defendants' airlines from July 1, 2011 to present. They seek treble damages, injunctive relief, and attorneys' fees and expenses. On May 11, 2016, the defendants moved to dismiss the Consolidated Amended Complaint, and on October 28, 2016, the Court denied this motion. On December 20, 2017, the Company reached an agreement to settle these cases with a proposed class of all persons who purchased domestic airline transportation services from July 1, 2011, to the date of the settlement. The Company agreed to pay $15 million and to provide certain cooperation with the plaintiffs as set forth in the settlement agreement. The Court granted preliminary approval of the settlement on January 3, 2018, and the plaintiffs provided notice to the proposed settlement class. The Court held a fairness hearing on March 22, 2019, and it issued an order granting final approval of the settlement on May 9, 2019. On June 10, 2019, three sets of objectors filed notices of appeal to the United States Court of Appeals for the District of Columbia Circuit. Two sets of the objectors dismissed their appeals, and the Company and the other settling parties moved to dismiss the remaining appeal because the district court did not certify the approval order as appealable. The court of appeals has ordered the parties to brief the jurisdictional issue and the merits of the objections raised in the appeal. The case is continuing as to the remaining defendants. The Company denies all allegations of wrongdoing. No further updates were provided in the Company's SEC report. Southwest Airlines Co. operates a passenger airline that provides scheduled air transportation services in the United States and near-international markets. Southwest Airlines Co. was founded in 1967 and is based in Dallas, Texas. SOUTHWEST AIRLINES: Bid to Dismiss Texas Securities Suit Pending ---------------------------------------------------------------- Southwest Airlines Co. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the motion seeking to dismiss the putative class action suit before the United States District Court for the Northern District of Texas in Dallas remains pending. On February 19, 2020, a complaint alleging violations of federal securities laws and seeking certification as a class action was filed against the Company and certain of its officers in the United States District Court for the Northern District of Texas in Dallas. A lead plaintiff has been appointed in the case, and an amended complaint was filed on July 2, 2020. The amended complaint seeks damages on behalf of a putative class of persons who purchased the Company's common stock between February 7, 2017, and January 29, 2020. The amended complaint asserts claims under Sections 10(b) and 20 of the Securities Exchange Act and alleges that the Company made material misstatements to investors regarding the Company's safety and maintenance practices and its compliance with federal regulations and requirements. The amended complaint generally seeks money damages, pre-judgment and post-judgment interest, and attorneys' fees and other costs. On August 17, 2020, the Company and the individual defendants filed a motion to dismiss. On October 1, 2020, the lead plaintiff filed a response in opposition to the motion to dismiss. The Company filed a reply on or about October 21, 2020, such that the motion is now fully briefed. Southwest Airlines said, "The Company denies all allegations of wrongdoing, including those in the amended complaint. The Company believes the plaintiffs' positions are without merit and intends to vigorously defend itself." Southwest Airlines Co. operates a passenger airline that provides scheduled air transportation services in the United States and near-international markets. Southwest Airlines Co. was founded in 1967 and is based in Dallas, Texas. SOUTHWEST AIRLINES: Discovery Ongoing in Boeing MAX Defect Suit --------------------------------------------------------------- Southwest Airlines Co. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that discovery is ongoing in the class action suit related to the company's concealment of defects in the Boeing MAX aircraft. On July 11, 2019, a complaint alleging violations of federal and state laws and seeking certification as a class action was filed against Boeing and the Company in the United States District Court for the Eastern District of Texas in Sherman. The complaint alleges that Boeing and the Company colluded to conceal defects with the MAX aircraft in violation of the Racketeer Influenced and Corrupt Organization Act ("RICO") and also asserts related state law claims based upon the same alleged facts. The complaint seeks damages on behalf of putative classes of customers who purchased tickets for air travel from either the Company or American Airlines between August 29, 2017, and March 13, 2019. The complaint generally seeks money damages, equitable monetary relief, injunctive relief, declaratory relief, and attorneys' fees and other costs. On September 13, 2019, the Company filed a motion to dismiss the complaint and to strike certain class allegations. Boeing also moved to dismiss. On February 14, 2020, the trial court issued a ruling that granted in part and denied in part the motions to dismiss the complaint. The trial court order, among other things: (i) dismissed without prejudice various state law claims that the plaintiffs abandoned in response to the motions, (ii) dismissed with prejudice the remaining state law claims, including fraud by concealment, fraud by misrepresentation, and negligent misrepresentation on the grounds that federal law preempts those claims, and (iii) found that plaintiffs lack Article III standing to pursue one of the plaintiffs’ theories of RICO injury. The order denied the motion to dismiss with respect to two RICO claims premised upon a second theory of RICO injury and denied the motion to strike the class allegations at the pleadings stage. Discovery is ongoing. The Company denies all allegations of wrongdoing, including those in the complaint that were not dismissed. The Company believes the plaintiffs' positions are without merit and intends to vigorously defend itself. No further updates were provided in the Company's SEC report. Southwest Airlines Co. operates a passenger airline that provides scheduled air transportation services in the United States and near-international markets. Southwest Airlines Co. was founded in 1967 and is based in Dallas, Texas. SPECTRUM PHARMA: Court Enters Final Judgment in Securities Suit --------------------------------------------------------------- Judge Richard F. Boulware of the U.S. District Court for the District of Nevada has entered an Order and Final Judgment in In Re Spectrum Pharmaceuticals, Inc. Securities Litigation. This Document Relates To: All Actions, Case No. 2:16-cv-02279-RFB-EJY (D. Nev.). The Court has granted the Lead Plaintiff's Motion for Preliminary Approval of Class Action Settlement, dated Feb. 19, 2020. On July 22, 2020, a hearing having been held before the Court to determine: (1) whether the terms and conditions of the Stipulation and Agreement of Settlement executed Nov. 8, 2019 are fair, reasonable and adequate for the settlement of all claims asserted by the Settlement Class against the Defendants, and should be approved; (2) whether judgment should be entered dismissing the Action with prejudice; (3) whether to approve the proposed Plan of Allocation as a fair and reasonable method to allocate the Net Settlement Fund among Settlement Class Members; (4) whether and in what amount to award the Lead Counsel as fees and reimbursement of expenses; and (5) whether and in what amount to award the Lead Plaintiff as incentive fees. Having considered all matters submitted to him at the hearing and otherwise, Judge Boulware finds that, for settlement purposes only, the prerequisites for a class action under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied. He finally certified the action as a class action for purposes of the Settlement, on behalf of all Persons (including, without limitation, their beneficiaries) all persons and entities, other than Defendants and their affiliates, who purchased or acquired publicly traded Spectrum common stock (including through the exercise of warrants or options) and/or call options, and/or sold publicly traded Spectrum put options, from Jan. 31, 2013 through Sept. 16, 2016, both dates inclusive. The Lead Plaintiffs are certified as the class representatives, and the Lead Counsel previously selected by the Lead Plaintiffs and appointed by the Court is appointed as the Class Counsel. The Settling Parties are directed to consummate the Settlement in accordance with the terms and provisions of the Settlement Stipulation. The Action and all claims contained therein, as well as all of the Released Claims, are dismissed with prejudice as against the Defendants and the Released Parties. The Settling Parties are to bear their own costs, except as otherwise provided in the Settlement Stipulation. Without further order of the Court, the Defendants and the Class Representatives may agree to reasonable extensions of time to carry out any of the provisions of the Settlement Stipulation Judge Boulware held that there is no just reason for delay in the entry of the Order and Final Judgment and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The finality of the Order and Final Judgment will not be affected, in any manner, by rulings that the Court may make on the Class Counsels' application for an award of attorneys' fees and expenses or an award to Class Representatives. A full-text copy of the Court's Aug. 12, 2020 Order & Final Judgment is available at https://tinyurl.com/y4jmc8ql from Leagle.com. STURM RUGER: Primus Group Suit v. Smith and Wesson Ongoing ---------------------------------------------------------- Sturm, Ruger & Company, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 26, 2020, that the company continues to defend a putative class action suit entitled, Primus Group LLC v. Smith and Wesson, et al. Primus Group LLC v. Smith and Wesson, et al. is a putative class action filed in the United States District Court for the Southern District of Ohio on August 8, 2019. Plaintiff alleges that the defendants’ lawful sale of modern sporting rifles violates the Racketeer Influenced Corrupt Organizations Act and seeks a temporary restraining order ("TRO") and permanent injunction. On August 20, 2019, the court denied plaintiff's request for a TRO. On September 3, 2019, defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On September 16, 2019, plaintiff filed an Amended Complaint. On October 9, 2019, the court dismissed plaintiff's Amended Complaint, with prejudice. Plaintiff filed a Notice of Appeal on October 15, 2019 and sought two extensions of time to file its initial brief. Plaintiff's subsequent motion to hold the appeal in abeyance was granted, though the court also ordered plaintiff to file periodic status reports. Plaintiff filed a series of status reports and eventually requested that the appeal be reactivated. Pursuant to the scheduling order in place currently, the matter should be briefed fully by December 9, 2020. Sturm, Ruger & Company, Inc., together with its subsidiaries, designs, manufactures, and sells firearms under the Ruger name and trademark in the United States. It operates in two segments, Firearms and Castings. Sturm, Ruger & Company, Inc. was founded in 1949 and is based in Southport, Connecticut. SUDS & BUBBLES: Villatoro Sues Over Unpaid Wages Under FLSA ----------------------------------------------------------- Benjamin Villatoro, on behalf of himself and all other persons similarly situated v. Suds & Bubbles Inc. d/b/a Turnpike Car Wash and John Does #1-10, Case No. 2:20-cv-04972 (E.D.N.Y. Oct. 16, 2020), is brought pursuant to the Fair Labor Standards Act and the New York Labor Law, alleging that the Plaintiff is entitled to unpaid wages from the Defendants for overtime work for which they did not receive overtime premium pay as required by law, and liquidated damages pursuant to the FLSA, because the Defendants' violations lacked a good faith basis. From roughly February through September each year, the Plaintiff worked seven days per week, for a total of about 73 and a half hours per week. The remainder of the year each year he worked only six days per week, for a total of around 63 hours per week. When the Plaintiff was paid by a combination of check and cash, he received paystubs for the check portion of his pay only. The paystubs, however, did not reflect the cash payments that he received and did not reflect all of his hours worked. As a result, the Plaintiff's effective rate of pay was below the statutory New York minimum wage throughout all of his employment with the exception of 2016. The Defendants' failure to pay the Plaintiff amounts at least equal to the New York state minimum wage in effect during relevant time periods was willful, and lacked a good faith basis, says the complaint. The Plaintiff Mr. Villatoro has been employed at Turnpike Car Wash since July 2014. The Defendants have owned and operated a car wash in Suffolk County, New York.[BN] The Plaintiff is represented by: David Stein, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Phone: (212) 563-9884 Email: dstein@samuelandstein.com SUFFOLK COUNTY, NY: Court Certifies Class in Newkirk Suit v. Pierre ------------------------------------------------------------------- In the case, LANCE NEWKIRK, DOROTHY W., and CHRISTOPHER G., on behalf of themselves, and all those similarly situated, Plaintiffs, v. FRANCES PIERRE, Commissioner of the Suffolk County Department of Social Services, in her official capacity, Defendant, Case No. 19-CV-4283 (NGG) (SMG) (E.D. N.Y.), Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York granted the Plaintiffs' amended motion for class certification. On July 25, 2019, the named Plaintiffs bring the action on behalf of themselves and all those similarly situated against Defendant Pierre, requesting declaratory and injunctive relief for violations of Title II of the Americans with Disabilities Act ("ADA"), and Section 504 of the Rehabilitation Act of 1973. On the same day, the Plaintiffs moved for class certification pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. On Aug. 7, 2019, the Plaintiffs filed an Amended Complaint and an amended motion for class certification to correct an error as to a named Plaintiff's full name. As alleged in the Plaintiffs' Amended Complaint, SCDSS administers federal and state subsistence benefit programs and services to low-income individuals and families residing in Suffolk County, New York, including: (1) Supplemental Nutrition Assistance Program ("SNAP"), a federally-funded nutrition assistance program; (2) Medicaid, a joint federal and state program that provides free or low-cost health coverage; and (3) Temporary Assistance ("TA"), a joint federal and state program that provides temporary financial and housing assistance and related support services. To receive these benefits and services, individuals must apply either online (SNAP, Medicaid) or in person (SNAP, Medicaid, TA) at one of the five service centers in Suffolk County. The Plaintiffs allege that they and the putative class members are low-income individuals with physical and/or mental impairments who have encountered significant difficulties in working through eligibility procedures—and later, recertification forms -- absent reasonable accommodations. According to them, although Suffolk County has a policy of providing reasonable accommodations as required by the ADA and Section 504, the Defendant has failed to effectively operationalize and implement this policy within SCDSS, leaving benefits applicants or recipients who present with a need for reasonable accommodations and/or who specifically request them without a consistent and effective method of obtaining them. They allege that the Defendant's discriminatory actions and omissions have resulted and continue to result in denial, loss, or limited access to benefits and services to which the Plaintiffs and the members of the class are entitled by law. Based on these allegations, the Plaintiffs seek a judgment declaring that the Defendant's actions and failures or refusals to act violate Title II of the ADA and Section 504 of the Rehabilitation Act and injunctive relief requiring the Defendant to comply with these statutes and implementing regulations. The requested injunctive relief specifically includes requiring defendant to (1) provide adequate and timely information as to how to request or access a reasonable accommodation needed to access or retain benefits; (2) enact, implement, and enforce systemic and countywide policies to ensure that SCDSS provides appropriate screening to identify persons with disabilities who require reasonable accommodations to access and/or maintain benefits; (3) uniformly provide reasonable accommodations on an ongoing basis, as needed to those who are appropriately identified as requiring or having requested accommodations in order to access and/or maintain benefits; (4) maintain adequate records of those clients who have requested reasonable accommodations and/or who have been determined to require such accommodations; (5) develop a grievance procedure to provide prompt and equitable resolution of disputes in all instances when a reasonable accommodation is either denied or is not provided in the manner or form requested; (6) designate one or more individuals to coordinate the efforts of the Defendant to comply with and carry out its responsibilities under the ADA or Section 504; (7) provide training to SCDSS employees on the rights of benefits applicants and recipients with disabilities under the ADA and Section 504; and (8) provide quarterly reporting to the Court and the Plaintiffs regarding the Defendant's policies and actions with respect to reasonable accommodations. Following several adjournments, the Defendant filed an answer to the Amended Complaint and an opposition to the amended motion for class certification, and the Plaintiff then filed a reply. Judge Garaufis has referred the amended motion for class certification to Magistrate Judge Steven M. Gold for a report and recommendation ("R&R"). On May 13, 2020, Mag. Judge Gold heard oral argument and reserved decision. The Plaintiffs seek to certify the following class: All Suffolk County residents with disabilities who: (1) have applied for or will apply for SNAP, Medicaid, or TA, from the SCDSS since July 1, 2018 and are entitled to reasonable accommodations in the application process to participate in or benefit from these programs; and/or (2) have been found eligible for such programs and are entitled to reasonable accommodations in order to enjoy equal opportunity to participate in or benefit from them. Judge Gold found that the Plaintiffs have satisfied the prerequisites of Rule 23(a) for certifying a class action. She also found that class certification under Rule 23(b)(2) is appropriate because each of the claims at issue is based on the Defendant's systemic failure or refusal to comply with the ADA and Section 504, and the requested declaratory and injunctive relief would inure to the benefit of all the class members. For these reasons, the Magistrate Judge respectfully recommended that the Court grants the Plaintiffs' motion to certify a Rule 23(b)(2) class consisting of all Suffolk County residents with disabilities who: (a) have applied for or will apply for SNAP, Medicaid, or TA from SCDSS since July 1, 2018, and are entitled to reasonable accommodations in the application process to participate in or benefit from these programs; and/or (b) have been found eligible for such programs and are entitled to reasonable accommodations in order to enjoy equal opportunity to participate in or benefit from them. The Objection Deadline to R&R was Aug. 25, 2020. No party has objected to Judge Gold's R&R, and the time to do so has passed. Therefore, Judge Garaufis reviewed the R&R for clear error. Having found none, he adopted the R&R in full and certified a Rule 23(b)(2) class as recommended by Magistrate Judge Gold. A full-text copy of the Court's Aug. 26, 2020 Order is available at https://tinyurl.com/y2bhkuf9 from Leagle.com. SUNERGY INC: Faces Abitbol Suit Over Unsolicited Telephone Calls ---------------------------------------------------------------- DAVID ABITBOL, individually and on behalf of all others similarly situated, Plaintiff v. SUNERGY, INC., and VOLTAIC, INC., and DOES 1 through 10, inclusive, and each of them, Defendants, Case No. 2:20-cv-09719 (C.D. Cal., October 22, 2020) is a class action complaint brought against the Defendants for their alleged negligent and willful violations of the Telephone Consumer Protection Act. According to the complaint, the Defendants placed numerous calls on the Plaintiff's cellular telephone number ending in -6443 by using an "automatic telephone dialing system" in an attempt to solicit the Plaintiff to purchase its services. The Plaintiff asserts that he never provided the Defendants with his "prior express consent" to receive calls using an ATDS or an artificial or prerecorded voice on his cellular telephone number that was registered to the National Do-Not-Call Registry on or about February 18, 2020. Moreover, the Defendants continued placing calls on the Plaintiff's cellular telephone despite the Plaintiff's request to stop calling him on his cellular telephone. The Plaintiff has been harmed by the Defendants' unlawful conduct causing him to incur certain charges or reduced telephone time for which he had previously paid, and invading his privacy. Sunergy, Inc. is a home services company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, 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 mgeorge@toddflaw.com SUNNY & KP: Sanchez Suit Seeks Proper Wages ------------------------------------------- Mario Sanchez, Francisco Mezquita, and Nano Batista, on behalf of themselves and all others similarly situated v. SUNNY & KP CONSTRUCTION CORP., GURNOOR CONSTRUCTION CORP., OMG CONSTRUCTION CORP., SARBJIT SINGH, KULDIP SINGH, and XINOS CONSTRUCTION CORP., Case No. 1:20-cv-08649 (S.D.N.Y., Oct. 16, 2020), seeks unpaid wages and unpaid overtime wages over the Defendants' violations of the Fair Labor Standards Act of 1938, the New York Labor Law, and the supporting regulations. Despite the Plaintiffs regularly working more than 40 hours per week, the Defendants did not compensate the Plaintiffs at the lawful overtime rate of one and one-half times their regular hourly rate of pay for the hours they worked in excess of 40 hours per week. The Defendants also failed to keep accurate and sufficient time records as required by Federal and New York State laws, says the complaint. The Plaintiffs were employed as full-time non-exempt construction employees of the Defendants. The Defendants jointly operate a construction company that is "part of the Roofing, Siding, & Sheet Metal Contractors Industry".[BN] The Plaintiffs are represented by: David Harrison, Esq. HARRISON, HARRISON & ASSOCIATES 110 State Highway 35, 2nd Floor Red Bank, NJ 07701 Phone: (718) 799-9111 Fax: (718) 799-9171 Email: dharrison@nynjemploymentlaw.com SURESCRIPTS: Pharmacies Antitrust Suit Dismissed Without Prejudice ------------------------------------------------------------------ Judge John J. Tharp, Jr. of the U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed without prejudice the Plaintiffs' Consolidated Class Action Complaint ("CAC") in IN RE SURESCRIPTS ANTITRUST LITIGATION. This Document Relates To All Class Actions, Case No. 1:19-cv-06627 (N.D. Ill.). The Plaintiffs assert that the Defendants have conspired to restrain trade and monopolize key services related to the provision of e-prescriptions. E-prescription services include both "routing," the transmission of prescription information from a physician to a pharmacy, and "eligibility," the transmission of a patient's formulary and pharmaceutical benefit information from the patient's health care plan to a prescriber's electronic health record system. The Plaintiffs are 10 pharmacies that participate solely in the routing market. Defendant Surescripts is a health information technology company that provides e-prescription routing and eligibility services. Defendant RelayHealth is a wholesale customer of Surescripts that resells Surescripts' e-prescription routing services. Defendant Allscripts is an electronic health records ("EHR") vendor that provides patient chart data electronically for physicians and hospitals. The market for e-prescription services has expanded dramatically in recent years, encouraged in part by the Medicare Improvements for Patients and Providers Act and the Health Information Technology for Economic and Clinical Health Act. In 2017, 77% of all prescriptions were delivered electronically. The plaintiffs allege that Defendant Surescripts maintains at least a 95% share, by transaction volume, in both the routing and eligibility markets and has been able to charge pharmacies supracompetitive prices for nearly 10 years. They allege that they and other pharmacies have been forced to pay considerably more for their routing services than they otherwise would have paid in the presence of lawful competition. In addition, the Plaintiffs allege that some pharmacy technology vendors ("PTVs") -- firms that provide software and computer technology services that facilitate pharmacies' connections to Surescripts' routing services -- entered into a conspiracy with the Defendants. These PTVs resell Surescripts' e-prescription routing transactions to pharmacies, charging routing prices in lock-step with Surescripts' prices that are paid to the PTV rather than to Surescripts. The Plaintiffs seek to represent a prospective class of U.S.-based pharmacies who paid for e-prescription routing transactions from Surescripts, RelayHealth, or any pharmacy technology vendor with an exclusive Surescripts or RelayHealth routing contract during the period Sept. 21, 2010, through and until the date of trial. They allege that the Defendants' fraudulent concealment tolled the statute of limitations, as they and members of the prospective class had no knowledge of the alleged conspiracy until the FTC filed a complaint against Surescripts in the U.S. District Court for the District of Columbia in May 2019. The plaintiffs filed actions in the District in October and November 2019 and filed the CAC on Dec. 5, 2019, bringing claims for monopolization, conspiracy to monopolize, and conspiracy or combination in restraint of trade in violation of the Sherman Act against Surescripts, RelayHealth, and Allscripts. The Plaintiffs reached a settlement in principle with Defendant RelayHealth in June 2020, and accordingly RelayHealth's motion to dismiss has been held in abeyance; Defendants Surescripts' and Allscripts' motions to dismiss are before the Court. Argument on the motions was heard on June 26, 2020 by telephone conference. The Defendants, argue (among other things) that under the direct purchaser rule of Illinois Brick Co. v. Illinois, the Plaintiffs are not proper parties to bring the antitrust action for damages. Judge Tharp concludes that because the Plaintiffs stop short of alleging that they are direct purchasers from the Defendants or otherwise permitted by the Illinois Brick doctrine to bring these claims, they have failed to push their claim across the line between possibility and plausibility of entitlement to relief. The CAC does not tell whether the Plaintiffs purchased e-prescription routing services directly from Surescripts, or from RelayHealth or other resellers, or from PTVs who were conspiring with Surescripts, or from PTVs who weren't conspiring with Surescripts. Without this information, the CAC fails to allege facts that establish that the Plaintiff pharmacies are permitted under the Illinois Brick doctrine to bring suit in federal court for antitrust damages. That's the Plaintiffs' burden. Accordingly, Defendants Surescripts' and Allscripts' motions to dismiss are granted. The dismissal, however, is without prejudice; the Plaintiffs may replead if they are able. If they prefer to stand on the CAC, however, they may so advise the Court and it will enter judgment for Surescripts and Allscripts to facilitate any appeal the Plaintiffs may wish to pursue, rules Judge Tharp. A full-text copy of the Court's Aug. 19, 2020 Memorandum Opinion & Order is available at https://tinyurl.com/y2t69jfw from Leagle.com. TELIGENT INC: Oklahoma Police Pension Fund Seeks Class Status ------------------------------------------------------------- In the class action lawsuit captioned as OKLAHOMA POLICE PENSION FUND AND RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, v. TELIGENT, INC. and JASON GRENFELL-GARDNER, Case No. 1:19-cv-03354-VM (S.D.N.Y.), the Plaintiff asks the Court for an order: 1. certifying the action to proceed as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure; 2. appointing Oklahoma Police to serve as Class Representative; and 3. appointing Scott and Scott Attorneys at Law LLP as Class Counsel. Teligent is a specialty generic pharmaceutical company.[CC] Counsel for Lead Plaintiff Oklahoma Police Pension Fund and Retirement System and Proposed Lead Counsel for the Class, are: Max R. Schwartz, Esq. Anjali Bhat, Esq. Jeffrey P. Jacobson SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: 212-223-6444 Facsimile: 212-223-6334 E-mail: mschwartz@scott-scott.com abhat@scott-scott.com jjacobson@scott-scott.com TESCO CORP: 5th Circuit Affirms Heinze Suit Dismissal ----------------------------------------------------- In the case, NORMAN HEINZE, Plaintiff-Appellant, v. TESCO CORPORATION; FERNANDO R. ASSING; JOHN P. DIELWART; R. VANCE MILLIGAN; DOUGLAS R. RAMSAY; ROSE M. ROBESON; ELIJIO V. SERRANO; MICHAEL W. SUTHERLIN; NABORS INDUSTRIES, LIMITED, Defendants-Appellees. NORMAN HEINZE, Plaintiff-Appellant, v. TESCO CORPORATION; MICHAEL W. SUTHERLIN; FERNANDO R. ASSING; JOHN P. DIELWART; R. VANCE MILLIGAN; DOUGLAS R. RAMSAY; ROSE M. ROBESON; ELIJIO V. SERRANO, Defendants-Appellees, Case No. 19-20298 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's dismissal of all the claims against all the Defendants. Heinze brings the putative class action on behalf of himself and other former shareholders of Tesco against Tesco, former members of Tesco's board of directors, and Nabors Industries, Ltd. Heinze alleges that the Defendants' omissions from a proxy statement led Tesco shareholders to approve an all-stock acquisition by Nabors. Tesco provided certain technologies related to the drilling, servicing, and completion of wells for the upstream energy industry. On July 6, 2017, Tesco received an acquisition offer from Nabors, a company that provides drilling and drilling-related services for oil and gas wells. Nabors proposed an all-stock acquisition with an exchange ratio of 0.62 Nabors shares for each outstanding share of Tesco common stock. On July 12, Tesco engaged J.P. Morgan Securities LLC to analyze the offer. Based on the lack of interest from third parties, Tesco's board focused on negotiations with Nabors. On August 3, Tesco's board met to consider the Nabors proposal. The board determined that the 0.62 ratio was insufficient. Later that night, Nabors proposed a new ratio of 0.66 Nabors shares for each outstanding share of Tesco common stock. Tesco's board rejected that offer the following day. On August 8, Nabors revised its proposal to 0.68 Nabors shares for each outstanding share of Tesco common stock. On August 13, J.P. Morgan presented its oral opinion to the Tesco board that the proposed transaction would provide Tesco shareholders with fair consideration. Tesco and Nabors signed the agreement that evening and publicly announced the transaction the following morning on August 14. The transaction valued Tesco at $4.62 per share, which represented a 19% premium over Tesco's closing price on the last trading day before the transaction's announcement. Because Tesco was incorporated under Alberta law, the Court of Queen's Bench of Alberta had to approve the transaction. On October 18, the Alberta court issued an interim order approving a special meeting of Tesco shareholders and requiring a two-thirds majority vote of common shares, stock options, and restricted stock units represented at the meeting. The interim order also called for the dissemination of a Schedule 14A proxy statement. Tesco filed its final proxy statement on October 26. At the special meeting on December 1, Tesco's shareholders approved the transaction with the required voting majority. The Alberta court approved it too. Heinze brought claims on behalf of himself and all other former Tesco shareholders against Tesco, former members of Tesco's board of directors, and Nabors. He alleged that the Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9. Specifically, Heinze alleged that the Defendants made a number of omissions in the proxy statement that rendered the proxy statement misleading. The district court granted the Defendants' Rule 12(b)(6) motion and dismissed all claims against all them. Heinze timely appealed. The heightened pleading requirements of the Private Securities Litigation Reform Act apply to the case. Heinze's amended complaint alleges that the Defendants omitted to state a material fact necessary in order to make the statements made, in the light of the circumstances in which they were made, not misleading. Heinze has two causes of action. The first arises under Section 14(a) of the 1934 Act. He claims that the proxy statement was misleading because it omitted certain material facts. The second arises under Section 20(a) of the 1934 Act. He claims that the individual defendants are liable for any violations of Section 14(a) committed by people they controlled. The Fifth Circuit examines Heinze's allegations in turn and concludes that he failed to state a claim upon which relief can be granted. Starting with the Section 14(a) of the 1934 Act, the Fifth Circuit finds that (i) the Defendants' alleged failure to communicate a more bullish forecast in the case doesn't come close to rendering the revenue and EBITDA projections for 2017 and 2018 misleading; (ii) the projections of revenue and EBITDA for 2017 and 2018 are clearly identified as forward-looking statements and are accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ, therefore safe harbor is inapplicable; and (iii) Heinze doesn't dispute that the summary of J.P. Morgan's fairness opinion on pages 44-48 of the proxy correctly summarizes J.P. Morgan's analysis. Heinze's second cause of action arises under Section 20(a) of the 1934 Act. It alleges that the individual Defendants are liable for any violations described in the first cause of action committed by a person they controlled. Because Heinze has failed to state a predicate claim under Section 14(a) and SEC Rule 14a-9, he has also failed to state a claim under Section 20(a), rules the Fifth Circuit. Finally, Heinze argues that the district court erred in not granting him leave to further amend his complaint. Heinze already had one opportunity to amend his complaint. He makes only a general request for leave to amend and has not identified how amendment would cure the defects identified. The Fifth Circuit, therefore, holds that amendment would be futile and that the district court did not abuse its discretion in denying leave to amend. For these reasons, the district court's judgment is affirmed. A full-text copy of the Fifth Circuit's Aug. 19, 2020 Order is available at https://tinyurl.com/y58jsgv5 from Leagle.com. TESLA INC: Appeal in Investor Suit Over Model 3 Production Pending ------------------------------------------------------------------ Tesla Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 26, 2020, for the quarterly period ended September 30, 2020, that the parties in a class action related to the company's production of Model 3 cars are awaiting a decision from the U.S. Court of Appeals for the Ninth Circuit. On October 10, 2017, a purported stockholder class action was filed in the U.S. District Court for the Northern District of California against Tesla, two of its current officers, and a former officer. The complaint alleges violations of federal securities laws and seeks unspecified compensatory damages and other relief on behalf of a purported class of purchasers of Tesla securities from May 4, 2016 to October 6, 2017. The lawsuit claims that Tesla supposedly made materially false and misleading statements regarding Tesla's preparedness to produce Model 3 vehicles. Plaintiffs filed an amended complaint on March 23, 2018, and defendants filed a motion to dismiss on May 25, 2018. The court granted defendants' motion to dismiss with leave to amend. Plaintiffs filed their amended complaint on September 28, 2018, and defendants filed a motion to dismiss the amended complaint on February 15, 2019. The hearing on the motion to dismiss was held on March 22, 2019, and on March 25, 2019, the Court ruled in favor of defendants and dismissed the complaint with prejudice. On April 8, 2019, plaintiffs filed a notice of appeal and on July 17, 2019 filed their opening brief. The company filed its opposition on September 16, 2019. A hearing on the appeal before the U.S. Court of Appeals for the Ninth Circuit was held on April 30, 2020, and the parties await a ruling. The company continues to believe that the claims are without merit and intend to defend against this lawsuit vigorously. The company is unable to estimate the possible loss or range of loss, if any, associated with this lawsuit. On October 26, 2018, in a similar action, a purported stockholder class action was filed in the Superior Court of California in Santa Clara County against Tesla, Elon Musk, and seven initial purchasers in an offering of debt securities by Tesla in August 2017. The complaint alleges misrepresentations made by Tesla regarding the number of Model 3 vehicles Tesla expected to produce by the end of 2017 in connection with such offering and seeks unspecified compensatory damages and other relief on behalf of a purported class of purchasers of Tesla securities in such offering. Tesla thereafter removed the case to federal court. On January 22, 2019, plaintiff abandoned its effort to proceed in state court, instead filing an amended complaint against Tesla, Elon Musk and seven initial purchasers in the debt offering before the same judge in the U.S. District Court for the Northern District of California who is hearing the above-referenced earlier filed federal case. On February 5, 2019, the Court stayed this new case pending a ruling on the motion to dismiss the complaint in such earlier filed federal case. After such earlier filed federal case was dismissed, defendants filed a motion on July 2, 2019 to dismiss this case as well. This case is now stayed pending a ruling from the appellate court on such earlier filed federal case with an agreement that if defendants prevail on app Tesla Inc. designs, manufactures, and sells high-performance electric vehicles and electric vehicle powertrain components. The Company owns its sales and service network and sells electric powertrain components to other automobile manufacturers. Tesla serves customers worldwide. The company is based in Palo Alto, California. TH NYC RESTAURANT: Song Suit Seeks Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- Hong Jie Song, Bai Sun, and Jing Guo, Individually and on Behalf of All Other Employees Similarly Situated v. TH NYC Restaurant 1 LLC d/b/a Pinch Chinese, Xiang Tang a/k/a Sean Tang, Tao Li a/k/a "Tony" Li, Chang Gui Chen, and Ming Liang Chen, Case No. 1:20-cv-08624 (S.D.N.Y., Oct. 16, 2020), alleges violations of the Fair Labor Standards Act, the New York Labor Law, and the Trafficking Victims Protection Reauthorization Act. The Plaintiffs assert that they are entitled to recover from the Defendants unpaid minimum wages, unpaid overtime wages, unpaid "spread of hours" premium for each day they worked 10 or more hours, compensation for failure to provide wage notice at the time of hiring, and failure to provide paystubs in violation of the NYLL, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs. The complaint alleges that the Defendants have willfully and intentionally committed widespread violations of the FLSA, and NYLL by engaging in a pattern and practice of failing to pay their employees, including Plaintiffs, compensation for all hours worked and overtime compensation for all hours worked over 40 each workweek. The complaint further alleges that Defendants have unlawfully confiscated and held Plaintiffs' passports and O-2 work visas, failed to pay Plaintiffs salaries and assign Plaintiffs to positions according to the employment contract provided for their work visa application. The Defendants also breached the employment contract between parties by improperly terminating Plaintiffs' employment prior to the expiration of the contract term. Defendants constituted fraud, breach of the implied covenant of good faith and fair dealing, and conversion under New York common law, the complaint relates. The Defendants own and operate a restaurant business. The Plaintiffs were employed by the Defendants' restaurant.[BN] The Plaintiffs are represented by: Qinyu Fan, Esq. HANG & ASSOCIATES, PLLC. 136-20 38th Ave., Suite 10G Flushing, NY 11354 Phone: 718.353.8588 Email: qfan@hanglaw.com THAI SMILE: Tolentino Sues Over Unpaid Minimum and Overtime Wages ----------------------------------------------------------------- Jeronimo Tolentino, individually and on behalf of others similarly situated v. THAI SMILE RESTAURANT CORP. (D/B/A TUE THAI FOOD), PRASONG PORNPICHAYANURAK, and SUPHAKIT SAEUE AKA NICK, Case No. 1:20-cv-08812 (S.D.N.Y., Oct. 22, 2020), is brought for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938, and for violations of the N.Y. Labor Law, and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor, including applicable liquidated damages, interest, attorneys' fees, and costs. According to the complaint, the Plaintiff worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked. The Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay the Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay the Plaintiff the required "spread of hours" pay for any day in which he had to work over 10 hours a day. The Defendants employed and accounted for the Plaintiff as a delivery worker in their payroll, but in actuality his duties required a significant amount of time spent performing the non-tipped duties. Regardless, the Defendants paid the Plaintiff at a rate that was lower than the required tip-credit rate, the complaint relates. The Defendants also employed the policy and practice of disguising the Plaintiff's actual duties in payroll records by designating him as a delivery worker instead of as a non-tipped employee, adds the complaint. The Plaintiff Tolentino was employed as a food preparer and delivery worker at the restaurant. The Tue Thai Food is a Thai restaurant, located in the City of New York, under the name "Tue Thai Food" .[BN] The Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 TOMS KING: Thomas FACTA Suit Dismissed Without Prejudice -------------------------------------------------------- Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, Eastern Division, dismissed without prejudice the case, DENECE THOMAS, etc., Plaintiff, v. TOMS KING (OHIO), LLC, et al., Defendants, Case No. 1:19CV1419 (N.D. Ohio). On June 19, 2019, the Plaintiff on behalf of herself and all others similarly situated, brought the Class Action Complaint against the TOMS King Defendants for violations of the Fair and Accurate Credit Transactions Act ("FACTA"). The Plaintiff alleges that at one of the Defendants' locations on June 26, 2017, the Defendants printed the first six digits and the last four digits of her card number on the printed receipt. By doing so, the Defendants have harmed the Plaintiff and the Class by exposing them to at least an increased and material risk of identity theft and credit and/or debit card fraud. The Defendants' violation of FACTA's prohibition against printing excess digits of a card number presents a significant risk of the exact harm that Congress intended to prevent—the display of card information that could be exploited by an identity thief. The first six digits identify the card and the card issuer. In this situation, the Plaintiff and the Class members must take additional steps to ensure the safety of his or her identity; he or she may not simply crumple the receipt and throw it into a nearby trash can, but must review it to assess what was printed, hold on to it, and perhaps shred it or cut it up later. Furthermore, to the extent the Defendants retained a copy of the Plaintiff's receipt(s) and/or the information contained therein, such retention provides an additional access point for the information to persons other than the Plaintiff, and thereby further increases the risk of harm to te Plaintiff and other customers similarly situated. The Plaintiff alleges that the Defendants' actions were not accidental. Despite being on notice of FACTA requirements since at least 2007, the Defendants knowingly, willfully, intentionally, and recklessly disregarded FACTA's requirements and used cash registers and or other machines or devices that printed receipts in violation of FACTA. She prays for statutory damages pursuant to 15 U.S.C. Section 1681n for the Defendants' willful violations, punitive damages, attorneys' fees and costs. In their Motion to Dismiss, the Defendants argue that the Plaintiff's Complaint sets forth only a bare procedural violation of FACTA, i.e., providing a single point-of-sale transaction receipt that allegedly fails to comply with the statute. Consequently, the Plaintiff's Complaint fails to satisfy the actual case or controversy jurisdictional requirement set forth in Article III of the United States Constitution, and therefore fails to establish that the Court has subject matter jurisdiction over her claim or the claims of the putative class members she seeks to represent. Judge Boyko finds that the Defendants' technical violation of FACTA demonstrates no harm to the Plaintiff's identity. The Plaintiff's allegations of hypothetical future injury are insufficiently concrete to confer Article III standing. Without standing, the Court has no subject matter jurisdiction over the Plaintiff's FACTA claims or that of the class she purports to represent. Therefore, the Motion of Defendants TOMS King (Ohio), TOMS King (Ohio II) LLC and TOMS King Services, LLC to Dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is granted and the Complaint is dismissed without prejudice. A full-text copy of the Court's Aug. 26, 2020 Opinion & Order is available at https://tinyurl.com/y5jarle8 from Leagle.com. TOWN SPORTS: Court Denies Class Certification Bid in "Kolomiichuk" ------------------------------------------------------------------ In the class action lawsuit captioned as MYKOLA KOLOMIICHUK, on behalf of himself and all others similarly situated, v TOWN SPORTS INTERNATIONAL HOLDINGS, INC., et al., Case No. 7:18-cv-01223-KMK (S.D.N.Y.), the Hon. Judge Kenneth M. Karas entered an order denying without prejudice the Defendants' Motion for Summary Judgment, and Plaintiff's Motion for Class Certification in light of the Defendants' recent bankruptcy petitions. On September 14, 2020, the Defendants filed voluntary petitions for Chapter 11 bankruptcy in the United States Bankruptcy Court for the District of Delaware, thereby triggering an automatic stay of the pending matter. The Parties may renew their motions once the automatic stay is lifted. The Clerk of Court is respectfully directed to terminate the pending motions, the District Judge said. Town Sports International Holdings is an operator of fitness centers in the Eastern United States, California and in Switzerland. Its brands include New York Sports Clubs, Boston Sports Clubs, Philadelphia Sports Clubs, Washington Sports Clubs, Lucille Roberts, TMPL Gym and Total Woman Gym and Spa. A copy of the Court's Order is available from PacerMonitor.com at https://bit.ly/30x3yzQ at no extra charge.[CC] TOYOTA MOTOR: 9th Cir. Partly Reverses Dismissal of Heber Suit -------------------------------------------------------------- In the case, ALBERT HEBER; et al., Plaintiffs-Appellants, v. TOYOTA MOTOR SALES, U.S.A., INC.; TOYOTA MOTOR CORPORATION, Defendants-Appellees, Case No. 18-55935 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the district court's dismissal of the putative class action against Toyota. The Appellants, individually and on behalf of all others similarly situated, appeal the district court's dismissal of their putative class action against Toyota. In their Fourth Amended Complaint ("FAC"), the Appellants allege that because Toyota switched its wiring harness from vinyl chloride to a soy-based material, rodents were more attracted to their vehicles and caused damages. The district court dismissed the FAC for failure to plead with particularity under Federal Rule of Civil Procedure 9(b) and found that the soy-based wiring did not constitute a latent defect. The appeal concerns the dismissal of the Appellants' claims arising under 13 states' consumer protection statutes, the implied warranty of merchantability, and the Magnuson-Moss Warranty Act ("MMWA"). While the district court did not address whether Appellants adequately stated a claim for relief under Rule 8, Toyota argues that the Court should affirm on that ground. The Appellants pled that Toyota shifted from vinyl chloride-coated harnesses to soy-based wiring harnesses, which in turn attracted more rodents to their vehicles. They bolstered their FAC with numerous documents. They state a claim under Rule 8. Invoking Herodotus, Toyota contends that rats have always been pests that chew on things. But that is not in dispute. Rather, the Appellants assert that the soy-based wiring harness has led to an increase in rodent damage to their vehicles. The factual allegations in the FAC directly support the Appellants' theory, which necessarily excludes Toyota's explanation. Accordingly, the Appellants state a plausible claim for relief under Rule 8. The district court dismissed the Appellants' claims arising under state law fraud and consumer protection statutes because they failed to plead with sufficient particularity under Rule 9(b). The Appellants concede that those claims are governed by this heightened pleading standard. The Ninth Circuit finds that the Appellants fail to identify the fraud with particularity. The Appellants merely state in conclusory fashion that Toyota fraudulently failed to disclose the alleged defect. Indeed, they fail to allege the extent to which Toyota was aware of this issue. The consumer complaints they point to are unpersuasive. This point is made more salient by the infrequency of reported damage to Toyota vehicles. The Ninth Circuit is left to wonder who at Toyota was aware of the alleged defect and why Toyota did not disclose it. Thus, the Ninth Circuit affirmed the district court's dismissal of Appellants' state-law fraud and consumer protection claims. The district court dismissed the Appellants' state-law implied warranty of merchantability and corresponding MMWA claims, concluding that the defect did not exist at the time of sale. It reasoned that the rodents did not destroy the vehicles until after the sale. On appeal, the Appellants concede they cannot state claims arising under Idaho, Illinois, and Oregon law, but challenge the dismissal of their remaining implied warranty and MMWA claims. The Ninth Circuit holds that the district court incorrectly identified the rodents as the alleged defect; the alleged defect was the soy-based wiring harnesses that attracted the rodents in the first place. The defect existed at the time of sale even if the damage only occurred later. To hold otherwise would require that the damage exists at the time of sale. Such a limitation runs counter to the implied warranty's protection for ordinary use. Accordingly, the Ninth Circuit reversed the district court's dismissal of the Appellants' implied warranty of merchantability claims -- with the exception of the abandoned claims arising under Idaho, Illinois, and Oregon law -- and MMWA claims. Based on the foregoing, the Court affirmed in part, reversed in part, and remanded. The parties will bear their own costs on appeal. A full-text copy of the Ninth Circuit's Aug. 19, 2020 Memorandum is available at https://tinyurl.com/y4zecb2j from Leagle.com. TRANS-CONTINENTIAL: Stern Seeks to Certify FDCPA Classes -------------------------------------------------------- In the class action lawsuit captioned as SURY STERN AS PARENT AND GUARDIAN OF BABY BOY STERN on behalf of herself and all others similarly situated consumers, v. TRANS-CONTINENTIAL CREDIT & COLLECTION CORP., Case No. 1:19-cv-06947-WFK-JO (E.D.N.Y.), the Plaintiff asks the Court for an order certifying classes as follows: Class A consisting of: "all persons whom Defendant's records reflect resided in the State of New York and who were sent a collection letter in substantially the same form letters as -7- the letter sent to the Plaintiff on or about April 25, 2019; and (a) the collection letter was sent to a consumer seeking payment of a personal debt; and (b) the collection letter was not returned by the postal service as undelivered; (c) and the Plaintiff asserts that the letter contained violations of 15 U.S.C. sections 1692e, 1692e(10) and 1692g for false representations and deceptive means and for contradicting the Plaintiff’s thirty day validation rights"; and Class B consisting of: "all persons whom Defendant's records reflect resided in the State of New York and who were sent a collection letter in substantially the same form letter as the letter sent to the Plaintiff on or about April 25, 2019; and (a) the collection letter was sent to a consumer seeking payment of a personal debt; and (b) the collection letter was not returned by the postal service as undelivered; (c) and the Plaintiff asserts that the letter contained violations of 15 U.S.C. sections 1692e, 1692e(10), 1692g and 1692g(a)(2) for failing to correctly identify the name of the creditor to whom the debt is owed." The Plaintiff contends Trans-Continental Credit & Collection Corp. has violated the FDCPA by sending to consumers, collection letters which contradict the consumer's right to dispute the debt for the initial thirty day period from receipt of the initial collection letter and that the entity on behalf of which the defendant collected was not properly identified as the creditor which violate the Fair Debt Collection Practices Act. Trans-Continental Credit And Collection Corp was founded in 1973. The company's line of business includes collection and adjustment services on claims and other insurance related issues. A copy of the Plaintiff's motion for class certification is available from PacerMonitor.com at https://bit.ly/34DAOXw at no extra charge.[CC] The Plaintiff is represented by: Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Telephone (516) 668-6945 TRILOGY REAL: Dickinson Sues Over Unpaid Minimum and OT Wages --------------------------------------------------------------- DANIELLE DICKINSON, in a representative capacity only, and on behalf of other members of the public similarly situated, v. TRILOGY REAL ESTATE MANAGEMENT, INC., a California Corporation, and DOES 1-10, inclusive, Case No. 37-2020-00037990-CU-OE-CTL (Cal. Super., San Diego Cty., Oct. 20, 2020), is a class action complaint against the Defendants for meal and rest period, minimum wage and overtime violations pursuant to the California Labor Code. The Plaintiff contends that throughout her employment with the Defendants, she performed her job in a capable and competent manner, and was commended for doing so. Throughout the term of her employment, she was denied the benefits and protections of the Labor Code due to the Defendants institutionalized pay practices, standard as to all of the Defendants California-based, nonexempt, non-union employees. The Plaintiff was employed by the Defendants as a non-exempt employee from August 14, 2017 through October 28, 2019. Trilogy is a commercial real estate investment and property management company in San Diego, California.[BN] The Plaintiff is represented by: Eric K. Yaeckel, Esq. Ryan T. Kuhn, Esq. SULLIVAN & YAECKEL LAW GROUP, APC 2330 Third Avenue San Diego, CA 92101 Telephone: (619) 702-6760 Facsimile: (619) 702-6761 E-mail: yaeckel@sullivanlawgroupapc.com ryan@sullivanlawgroupapc.com TRUFFA PIZZERIA: Ruiz Sues to Recover Unpaid Overtime Wages ----------------------------------------------------------- Sandy Ruiz, on behalf of himself and all others similarly situated v. TRUFFA PIZZERIA & WINE ROOM CORP. d/b/a COCINA CHENTE MEXICAN CUISINE, and MOISES LOPEZ SR., ROMA LOPEZ and JUAN ROSARIO, individually, Case No. 1:20-cv-08645 (S.D.N.Y., Oct. 16, 2020), seeks to recover unpaid overtime compensation under the Fair Labor Standards Act and the New York Labor Law. Throughout the vast majority of his employment with the Defendants, the Plaintiff was regularly scheduled to work more than 40 hours each week. The Plaintiff was scheduled to work between 5 and 6 days per week. The Plaintiff was usually scheduled to work from 2 pm to 11 pm. However, the Plaintiff did not receive a meal break. The Plaintiff was paid a flat weekly salary that was not inclusive of overtime. The Defendants also never discussed overtime compensation or overtime work with the Plaintiff. The Plaintiff never received any written record of his regular and/overtime hours worked, says the complaint. The Plaintiff was employed by the Defendants as a cook from July 24, 2017 through May 1, 2020. Cocina Chente is a Mexican restaurant incorporated in the State of New York.[BN] The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, 3rd floor New York, NY 10007 Phone: (212) 323-6980 Email: jaronauer@aronauerlaw.com UNDERGROUND ENTERPRISES: Blind Can't Access Website, Angeles Says ------------------------------------------------------------------ JENISA ANGELES, on behalf of herself and all others similarly situated, Plaintiffs v. UNDERGROUND ENTERPRISES, INC., Defendant, Case No. 1:20-cv-08811 (S.D.N.Y., October 22, 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 requires screen-reading software to read website content using her computer. The Plaintiff claims that she was denied a shopping experience similar to that of a sighted individual when she visited the Defendant's Website, www.undergroundcellar.com, on multiple occasions, the last occurring in October of 2020, to make a purchase. The Website allegedly lacks a variety of features and accommodations, which effectively barred the Plaintiff from being able to determine what specific products were offered for sale. The Plaintiff alleges that the Defendant failed to design, construct, maintain, and operate its website to be fully accessible to and independently usable by blind or visually-impaired people due to its non-compliance with the Web Content Accessibility Guidelines 2.1, thereby engaging in acts of intentional discrimination. Underground Enterprises, Inc. is a wine company that owns and operates the Website. [BN] The Plaintiff is represented by: David P. Force, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 E-mail: dforce@steinsakslegal.com UNITED BEHAVIORAL: Court Dismisses LD Suit with Leave to Amend -------------------------------------------------------------- In the case, LD, ET AL., Plaintiffs, v. UNITED BEHAVIORAL HEALTH, ET AL., Defendants, Case No. 4:20-cv-02254 YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the motions to dismiss all claims in the complaint under Federal Rule of Civil Procedure 12(b)(6), with leave to amend. The Plaintiffs bring the putative class action against Defendants United and Viant, Inc. for claims arising out of United's alleged failure to reimburse non-party Summit Estate at the Usual, Customary, and Reasonable Rate ("UCR") for Intensive Outpatient Program ("IOP") services that it provided to the Plaintiffs. The Plaintiffs allege that the Defendants' conduct caused them injury, because it forced them to pay out-of-pocket any amounts that United failed to reimburse Summit Estate. In the complaint, the Plaintiffs assert, on their own behalf and on behalf of a proposed class of similarly-situated United members, claims under the Employee Retirement Income Security Act of 1974 ("ERISA") and the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The Plaintiffs are members of active health insurance policies administered by United. Every such policy provided coverage for out-of-network benefits for mental health and substance use disorder treatment at usual, customary, or reasonable rates. Before obtaining IOP services from Summit Estate, an out-of-network provider, the Plaintiffs signed a contract with Summit Estate that makes them responsible for amounts not paid by United. Based on the "plain language" of the plans, it was understood by all parties that 100% of UCR was equivalent to 100% of the billed charges of Summit Estate. United through plan documents, marketing materials, EOBs, and other materials represented to the Plaintiffs that their plans would pay for out-of-network IOP services at the UCR amount according to an objective, empirical methodology. After receiving the IOP services, claims were submitted to United for payment according to the "out-of-network rate." Instead of "paying UCR," United engaged Defendant Viant to "negotiate" reimbursements. Viant has "financial incentives" to negotiate low reimbursements. Neither United nor Viant disclosed to the Plaintiffs the methodology they used for calculating the reimbursement rates for IOP services. No plaintiff has an agreement with Viant that permits Viant to negotiate with providers on his or her behalf. Yet, Viant represented through written and oral correspondence that it had authority to negotiate with providers on the patients' behalf. Every claim at issue in the litigation has been underpaid by United and overpaid or currently owed by the Plaintiffs and the Class. United's underpayment of the claims at issue here resulted in unduly large balance bills to the Plaintiffs. The Plaintiffs assert the following on their own behalf and on behalf of a proposed class of members of a health benefit plan either administered or insured by United whose claims for out-of-network IOP services were underpaid or repriced by United and Viant: a claim against (1) both the Defendants under RICO; (2) United for underpaid benefits under ERISA; (3) United for breach of plan provisions under ERISA; (4) United for ERISA disclosure violations under 29 U.S.C. Section 1132(c)(1); (5) United for breach of fiduciary duties under 29 U.S.C. Section 1109 and 29 U.S.C. Section 1132(a)(3); (6) United for violations of ERISA's full and fair review statute; and (7) two claims against both Defendants for equitable relief under 29 U.S.C. Section 1132(a)(3). The Defendants move to dismiss all claims in the complaint under Federal Rule of Civil Procedure 12(b)(6) on the grounds that: (1) all of the claims in the complaint are inadequately pleaded; and (2) the Plaintiffs lack RICO standing. Judge Rogers finds that the Plaintiffs' claims under Section 502(a)(1)(B), 29 U.S.C. Section 1132(a)(1)(B), are subject to dismissal. She concludes that United's motion is well-taken given the allegations in the complaint. The Plaintiffs' claims are predicated on allegations that United under-reimbursed Summit Estate for IOP services it provided to them. They aver that, pursuant to the "plain language" of their healthcare plans, United was required, but failed, to reimburse Summit Estate based on UCR, with UCR being equivalent to 100% of the billed charges of Summit Estate. The Plaintiffs, however, do not identify the terms of their plans that require United to reimburse Summit Estate for IOP services based on UCR or at 100% of Summit Estate's billed charges. In the absence of allegations that identify the plan terms at issue, the Plaintiffs fail to raise the reasonable inference that United breached the terms of their plans. The Plaintiffs' claim under 29 U.S.C. Section 1132(c)(1) is also subject to dismissal. Judge Rogers finds that the Plaintiffs have alleged no factual matter to raise the inference that United was designated under any plan documents as the plan administrator, or that United can otherwise be deemed as the plan administrator under 29 U.S.C. Section 1002(16)(A). Courts routinely dismiss with prejudice claims under 29 U.S.C. Section 1132(c)(1) asserted against entities that allegedly served as "de facto" administrators by virtue of having assumed administrative responsibilities. Accordingly, the claim is subject to dismissal on the basis that plaintiffs have not alleged facts to show that United can be sued under 29 U.S.C. Section 1132(c)(1). Even if United were the plan administrator for the purposes of 29 U.S.C. Section 1132(c)(1), however, the claim would still be subject to dismissal because the Plaintiffs' allegations do not give rise to the reasonable inference that United failed to comply with ERISA's disclosure requirements. To the extent that the Plaintiffs' 29 U.S.C. Section 1132(c)(1) claim is predicated on the theory that United's plan documents and other communications, such as EOBs, were not accurate, that claim fails because the Plaintiffs have not shown that a claim disputing the accuracy of such materials can be brought under 29 U.S.C. Section 1132(c)(1). Finally, to the extent that plaintiffs seek to assert a 29 U.S.C. Section 1132(c)(1) claim based on the theory that United was required, but failed, to disclose the methodology it used to calculate UCR in the context of the reimbursements it provided to Summit Estate, the claim is subject to dismissal because the Plaintiffs have not identified any provision of ERISA that requires disclosure of such information. The Plaintiffs' claim for breach of fiduciary duties is predicated on alleged actions by United that were not authorized by the plan documents. For the reasons she discussed, the Judge holds that the Plaintiffs have failed to allege any breaches of the plan terms or the "plan documents" in connection with United's reimbursements for the IOP services at issue. Accordingly, the claim is subject to dismissal. The Plaintiffs' claim for violations of 29 U.S.C. Section 1133 is also subject to dismissal to the extent that it is based on the theory that the EOBs were required, but failed, to state the words "adverse benefit determination," as the Plaintiffs have cited no authority to support that proposition, rules Judge Rogers. Moreover, the Plaintiffs' claims under 1132(a)(3) are subject to dismissal. Regardless of how the Plaintiffs label their requested remedies, the Judge cannot reasonably infer that such remedies are permissible under Section 1132(a)(3) in the absence of allegations raising the inference that the basis and nature of such remedies is equitable. Turning to the RICO claim, Judge Rogers holds that the Plaintiffs' RICO claim under Section 1962(c) is subject to dismissal for failure to allege facts to satisfy the elements of RICO Section 1962(c) claim. The complaint does not raise the reasonable inference that the element of reliance is met so as to find that the Plaintiffs' injuries were proximately caused by the alleged mail fraud and wire fraud. Because it is not clear that amendment of the complaint would be futile, Judge Rogers grants the Plaintiffs leave to amend the complaint to attempt to allege a cognizable theory for each of the claims discussed. For the foregoing reasons, Judge Rogers granted the Defendants' motions to dismiss with leave to amend. The Plaintiffs may file an amended complaint within 30 days of the date the Order is filed. The Defendants may file a response to the amended complaint within 30 days of the date it is filed. The Order terminated Docket Numbers 33 and 34. A full-text copy of the Court's Aug. 26, 2020 Order is available at https://tinyurl.com/y36ke3us from Leagle.com. UNITED STATES: Court Awards Atty's Fees & Costs in Haggart Suit --------------------------------------------------------------- In the case, DANIEL and KATHY HAGGART, et al., For Themselves and As Representatives of a Class of Similarly Situated Persons, Plaintiffs, v. UNITED STATES, Defendant, Case No. 09-103L (Fed. Cl.), Judge Charles S. Lettow of the U.S. Court of Federal Claims granted in part and denied in part (i) the class' motion for fees and costs and (ii) the Woodleys' motion for Kellogg Hansen's fees and costs. The origins of the dispute underlying the pending motions concern land in the State of Washington that was converted into a recreational trail pursuant to Section 208 of the National Trails System Act Amendments of 1983. The Plaintiffs filed suit over a decade ago, alleging that the conversion constituted a taking of their property without just compensation. The Court certified an initial class of over 500 members, which was subsequently split into six subclasses. In 2012, the Court ruled on cross-motions for summary judgment, finding the government liable to certain class members within Subclass Two and Categories A through D of Subclass Four while also granting the government summary judgment as to class claimants in Subclass Four, Category E. After extensive mediation, the parties reached a settlement in February 2014. Of the 521 claimants and their 659 parcels of land, the settlement would dismiss the claims of 268 class members without compensation and pay $110 million to the remaining 253 class members, plus interest, attorneys' fees, and litigation costs. After a fairness hearing in March 2014, the Court approved the settlement and entered final judgment, awarding legal fees to class counsel through a common fund. On Jan. 8, 2016, the Federal Circuit vacated the Court's approval of the settlement because it determined that the class counsel had provided to the Woodleys and the class members generally inadequate information for verifying their individual award allocations. After the Federal Circuit's mandate issued on April 25, 2016, the Court re-opened discovery to rectify the deficiency of written notice to the class, enabling the Woodleys and tge other class members to access detailed documentation that had not previously been made available to them in electronic form. The informational defect that the Federal Circuit had identified in the Court's prior approval of the settlement agreement was cured during this period of discovery. Throughout the proceedings until this time, none of the parties had suggested that the settlement agreement itself had been set aside, vacated, or altered, except potentially as to the allocation of the individual amounts. Then for the first time, in an abrupt volte face in November 2016, the government indicated that it considered the settlement agreement itself to be invalid. Following up on that suggestion, on March 1, 2017, the government filed a motion for reconsideration seeking to undermine the basis of the settlement agreement and render it invalid. On Aug. 17, 2017, the Court rejected the government's attempt to negate the unconditional, comprehensive settlement agreement that the government executed with the class. The Plaintiffs then sought approval of a renewed notice to the class regarding the settlement, which the government opposed on the same grounds it had raised in its prior post-remand motions. The Court held a fairness hearing on Dec. 18, 2017 in Seattle, Washington, in which numerous class members participated. On Jan. 26, 2018, the Court approved the settlement agreement and entered a partial final judgment under Rule 54(b), enabling the government to appeal the settlement approval immediately while reserving judgment on the matter of whether the Plaintiffs could recover statutory legal fees and costs beyond those already contained within the settlement agreement itself. Effectively, the Court employed Rule 54(b) to bifurcate its approval of the settlement agreement from any determination regarding legal fees and costs outside the settlement agreement. On the government's subsequent appeal, the Federal Circuit affirmed the Court's approval of the settlement on Nov. 27, 2019 but declined to address the government's arguments regarding legal fees and costs on the jurisdictional ground that the Court had not previously acted regarding them. The Federal Circuit's mandate issued on Jan. 21, 2020. On March 2, 2020, the Plaintiffs filed five separate motions, representing four different Plaintiffs or groups of the Plaintiffs, seeking statutory legal fees and costs pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Following an additional round of motions practice in which the government sought to compel the production of retainer and fee agreements from the class counsel, the government individually responded to each of the fee motions on June 22, 2020. The Plaintiffs filed replies on July 6, 2020. The Woodleys seek to recover legal fees and costs incurred both by the representation of Mr. Woodley himself and later for the Woodleys' representation by Kellogg Hansen. First, the Woodleys seek to recover fees for 670.5 hours of time expended by Mr. Woodley between 2014 and 2020 and an additional $10,674.16 of related legal costs. Second, they seek to recover legal fees and costs incurred by their representation by attorneys at Kellogg Hansen between 2015 and 2020, amounting to $1,059,152.89. Judge Lettow finds that the situation changed after the government filed its motions seeking to overturn the settlement agreement on March 1, 2017. From that point forward, the primary emphasis of the legal work performed by Kellogg Hansen on behalf of the Woodleys shifted from resolving the disputed informational and allocation issues to defending, both in the Court and on appeal, against the government's attempts to vacate the agreement. Those expenses were not comprehended by any of the aspects of the settlement agreement itself or the earlier proceedings related to the agreement. Consequently, the Woodleys may recover reasonable legal fees and costs incurred in retaining representation by Kellogg Hansen on and after March 1, 2017. After the Federal Circuit's decision vacating the first approval of the settlement agreement, Cleveland Square and 25 other class members obtained representation by Hillis Clark Martin & Peterson P.S. In addition to the portion they received as part of the settlement agreement, the Cleveland Square group now seeks to recover legal fees it paid to Hillis Clark amounting to $244,372 and costs of $4,243.92. Judge Lettow opines that Cleveland Square's retention of independent counsel may have obtained for it a larger overall amount derived from a separate agreement with, and payment from, the class counsel, but there is no evidence to show that it provided a benefit to the class as a whole. Notably, the counsel for the Cleveland Square group did not seek to enter an appearance in the litigation until July 14, 2017. That was 71 days after the Court had entered an opinion and order denying the government's motions that sought to overturn the settlement agreement and granting the motion by the class counsel to enforce the agreement. In short, the parameters of the remanded case had been set in place before, not after, Cleveland Square's counsel sought to appear. Cleveland Square's separate representation thus generated no benefit to the broader class. Accordingly, Cleveland Square is not entitled to any legal fees or costs. Class members Mr. Ghoddoussi and Westpoint retained Goodstein Law Group PLLC to represent them on May 18, 2017. They now seek legal fees incurred to retain Goodstein pursuant to a contingent fee agreement in the amount of $143,044. They also seek $69,035 to reimburse Goodstein's costs, as well as time and expenses expended by Mr. Ghoddoussi for valuable assistance in preparation of the litigation and various costs he incurred to retain expert title officers, appraisers, surveyors, a railroad mapping service, and engineers even before he retained Goodstein. As he previously noted, Judge Lettow holds that fees and costs may only be awarded if they provided a benefit to the entire class. Mr. Ghoddoussi and Westpoint indicate in their brief that Goodstein's representation assisted them in obtaining more proceeds than before. They have not, however, produced any evidence tending to show that the legal fees and costs they seek to recover generated any benefit to the broader class. Moreover, as with the Cleveland Square group, the counsel's motion for separate representation of Mr. Ghoddossi and Westpoint was first filed on June 16, 2017, 43 days after the Court had ordered that the settlement agreement was enforceable and effective and should be enforced. Accordingly, Mr. Ghoddoussi and Westpoint are not entitled to any additional fees or costs. Having determined that the class and the Woodleys are entitled to recover legal fees and costs incurred on and after March 1, 2017, Judge Lettow addresses and assesses the reasonableness of the amounts sought. The firm Stewart, Wald & McCulley, served as the class counsel throughout the litigation and during the period relevant. Stewart Wald retained Sidley Austin LLP to handle the appellate portion of the litigation. The class thus seeks to recover reasonable fees and costs attributable to representation by both Stewart Wald and Sidley Austin. The firm Kellogg Hansen represented the Woodleys during the period relevant. The class seeks to recover legal fees attributable to Stewart Wald's representation from Jan. 8, 2016 through Feb. 15, 2020, amounting to $3,049,425.50. They likewise seek costs for the same period in the amount of $293,550.32. In its reply brief, the class increased those amounts, seeking an additional $184,354 in fees and $217.90 in costs incurred between Feb. 15, 2020 and July 6, 2020. As he already noted, Judge Lettow declines to award fees and costs incurred before March 1, 2017. During the more limited time period beginning on March 1, 2017 and extending through Feb. 15, 2020, the Court calculates that six timekeepers at Stewart Wald expended 4,186.70 hours on the matter, incurring fees amounting to $2,008,830.50. During that same period, Stewart Wald incurred expenses of $196,124.73. Accordingly, including the additional amounts sought for the period after Feb. 15, 2020, the total amount of legal fees and costs sought and potentially recoverable by the class is $2,389,527.13. Accordingly, finding the hours, rates, and costs charged by Stewart Wald reasonable, Judge Lettow awards the class $2,389,527.13 in legal fees and costs. The class next seeks to recover legal fees attributable to Sidley Austin's representation as the class counsel's appellate counsel for the second appeal from 2018 through Feb. 15, 2020. Sidley Austin expended 476.75 hours during this time, amounting to $595,393.75 in fees. They likewise seek costs for the same period in the amount of $7,832.96. The class supplemented those amounts in its reply brief, seeking an additional $22,335 in fees for an additional 21.25 hours and $16,178.41 in costs attributable to the period from Feb. 15, 2020 to July 6, 2020. In sum, the class seeks a total of $641,740.12 for legal fees and costs attributable to Sidley Austin's representation. Judge Lettow is satisfied that the rates charged by the team assembled by Mr. Carter G. Phillips are reasonable. Nevertheless, he is also mindful that Mr. Phillips' rate of $2,000 per hour exceeds by $700 the next highest rate charged by Sidley Austin on the matter and considers that difference unwarranted by the circumstances at hand. Therefore, to address and somewhat limit this disparity, the Judge reduces the hourly rate recoverable for Mr. Phillips' work on the matter to $1,500, which reflects a one-quarter reduction. Accordingly, applying that reduced rate to the 133.75 hours Mr. Phillips recorded, the Judge awards the class $552,228.75 for Sidley Austin's legal fees. Judge Lettow also must assess the reasonableness of the $24,011.37 costs incurred by Sidley Austin. The government's response brief does not specifically address or challenge any of the costs requested by Sidley Austin. Having reviewed the detailed listing of the claimed costs, the Judge is satisfied that they were reasonable and necessary expenses customarily charged. Accordingly, he awards the class $576,240.12 in legal fees and costs attributable to the representation by Sidley Austin. In their initial motion, the Woodleys sought to recover legal fees and costs attributable to Kellogg Hansen's representation from February 2015 through February 2020, amounting to $1,059,152.89. In their reply brief, the Woodleys increased that amount to $1,089,071.21, requesting an additional $29,918.32 to account for additional time and expense incurred between March and June 2020. In sum, the Woodleys' seek a total of $1,089,071.21 in legal fees and costs attributable to Kellogg Hansen's representation between February 2015 and June 2020. Judge Lettow is satisfied that the rates charged by Kellogg Hansen's attorneys are reasonable. He is equally satisfied that the $10,219.04 in costs were reasonably incurred by Kellogg Hansen from March 1, 2017 through July 6, 2020. For the reasons stated, Judge Lettow denied the Woodleys' motion for pro se fees and costs, Mr. Ghoddoussi's corresponding motion, and Cleveland Square's comparable motion. He granted in part and denied in part the class' motion and the Woodleys' motion for Kellogg Hansen's fees and costs. The class is awarded reasonable legal fees and costs attributable to the representation provided by Stewart Wald in the amount of $2,389,527.13. The class is also awarded reasonable legal fees and costs attributable to the representation provided by Sidley Austin in the amount of $576,240.12. The Woodleys are awarded reasonable legal fees and costs attributable to the representation provided by Kellogg Hansen in the amount of $497,449. The clerk is directed to enter final judgment accordingly. No further costs. A full-text copy of the Court's Aug. 12, 2020 Opinion & Order is available at https://tinyurl.com/y6efxcwy from Leagle.com. Thomas S. Stewart -- Stewart@swm.legal -- Stewart Wald & McCulley LLC, Kansas City, Missouri, for plaintiffs Daniel Haggart and Kathy Haggart, et al. With him on the briefs were Elizabeth G. McCulley, Stewart Wald & McCulley LLC, Kansas City, Missouri, Steven M. Wald and Michael J. Smith, Stewart Wald & McCulley LLC, St. Louis, Missouri. David C. Frederick -- dfrederick@kellogghansen.com -- Kellogg, Hansen, Todd, Figel & Frederick, PLLC, Washington, D.C., for plaintiffs Gordon A. Woodley and Denise L. Woodley. Mary Crego Peterson -- mary.peterson@hcmp.com -- Hillis Clark Martin & Peterson P.S., Seattle, Washington, for plaintiff Cleveland Square, LLC and twenty-five others. Richard B. Sanders, Goodstein Law Group PLLC, Tacoma, Washington, for plaintiffs Faramarz Ghoddoussi and Westpoint Properties, LLC. Lucinda J. Bach -- lucinda.bach@usdoj.gov -- Trial Attorney, Natural Resources Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for defendant. With her on the briefs were Prerak Shah, Deputy Assistant Attorney General, Environment and Natural Resources Division, and Sarah Izfar, Trial Attorney, Natural Resources Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C. UNITED THERAPEUTICS: Class Suit by MSP Recovery Claims Ongoing -------------------------------------------------------------- United Therapeutics Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a class action suit initiated by MSP Recovery Claims, Series LLC; MSPA Claims 1, LLC; and Series PMPI. On July 27, 2020, MSP Recovery Claims, Series LLC; MSPA Claims 1, LLC; and Series PMPI, a designated series of MAO-MSO Recovery II, LLC (Plaintiffs) filed a "Class Action Complaint" against Caring Voices Coalition, Inc. (CVC) and the company in the United States District Court for the District of Massachusetts. The Complaint alleges that the company violated the federal Racketeer Influenced and Corrupt Organizations (RICO) act and various state laws by coordinating with CVC when making donations to a pulmonary arterial hypertension fund so that those donations would go towards copayment obligations for Medicare patients taking drugs manufactured and marketed by the company. Plaintiffs claim to have received assignments from various Medicare Advantage health plans and other insurance entities that allow them to bring this lawsuit on behalf of those entities. United Therapeutics said, "We intend to vigorously defend against this lawsuit." Silver Spring, Md.-based United Therapeutics Corporation develops and commercializes therapeutic products for patients with chronic and life-threatening diseases. The Company offers products primarily in three therapeutic areas, including cardiovascular, cancer, and infectious diseases. UNUM GROUP: Appeal in Tennessee Securities Class Suit Pending ------------------------------------------------------------- Unum Group said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 28, 2020, for the quarterly period ended September 30, 2020, that the plaintiffs in the consolidated class action suit entitled, In re Unum Group Securities Litigation, have taken an appeal with the Sixth Circuit Court of Appeals. Three alleged securities class action lawsuits have been filed against Unum Group and individual defendants as follows: -- On June 13, 2018, an alleged securities class action lawsuit entitled Cynthia Pittman v. Unum Group, Richard McKenney, John McGarry, and Daniel Waxenberg was filed in the United States District Court for the Eastern District of Tennessee. The plaintiff seeks to represent purchasers of Unum Group publicly traded securities between January 31, 2018 and May 2, 2018. The plaintiff alleges the Company caused its shares to trade at artificially high levels by failing to disclose information about the rate of long-term care policy terminations and long-term care claim incidence resulting in misleading statements about capital management plans and long-term care reserves. The complaint asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder and seeks compensatory damages in an amount to be proven at trial. The Company strongly denies these allegations and will vigorously defend the litigation. -- On July 13, 2018, an alleged securities class action lawsuit entitled Scott Cunningham v. Unum Group, Richard McKenney, John McGarry, and Daniel Waxenberg was filed in the United States District Court for the Eastern District of Tennessee. The allegations, class period, and damages claimed mirror those in the Pittman matter. The Company strongly denies these allegations and will vigorously defend the litigation. -- On July 25, 2018, an alleged securities class action lawsuit entitled City of Taylor Police and Fire Retirement System v. Unum Group, Richard McKenney, John McGarry, Steve Zabel, and Daniel Waxenberg was filed in the United States District Court for the Eastern District of Tennessee. The plaintiff seeks to represent purchasers of Unum Group publicly traded securities between October 27, 2016 and May 1, 2018. The allegations and damages claimed mirror those in the Pittman matter. The Company strongly denies these allegations and will vigorously defend the litigation. On November 9, 2018, the court consolidated the Pittman, Cunningham, and City of Taylor Police and Fire Retirement System cases into one matter entitled In re Unum Group Securities Litigation, appointed a lead plaintiff and lead plaintiff's counsel, and directed the plaintiff to file a consolidated amended complaint. On January 15, 2019, the plaintiff filed a consolidated amended complaint asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder and seeks compensatory damages in an amount to be proven at trial as well as costs, expenses, and attorney's fees. On March 18, 2019, the Company filed a motion to dismiss the consolidated amended complaint. On November 4, 2019, the court heard oral argument on the motion. On June 1, 2020, the court granted the Company's motion and dismissed the cases with prejudice. On June 26, 2020, the plaintiffs filed a notice of appeal with the Sixth Circuit Court of Appeals. The appeal is in a very preliminary stage and the outcome is uncertain. We believe the appeal and the underlying claims lack merit and reserves have not been established for these matters as we are unable to estimate a range of reasonably possible losses. However, an adverse outcome in one or more of these actions could, depending on the nature, scope, and amount of any ruling, materially adversely affect our consolidated results of operations in a period. Unum Group, together with its subsidiaries, provides financial protection benefit solutions in the United States, the United Kingdom, and internationally. It operates through Unum US, Unum International, Colonial Life, and Closed Block segments. The company was founded in 1848 and is based in Chattanooga, Tennessee. VEECO INSTRUMENTS: Still Defends Wolther Class Suit in California ----------------------------------------------------------------- Veeco Instruments Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2020, for the quarterly period ended September 30, 2020, that the company continues to defend a consolidated purported class action suit entitled, Wolther v. Maheshwari et al. On June 8, 2018, an Ultratech shareholder who received Veeco stock as part of the consideration for the Ultratech acquisition filed a purported class action complaint in the Superior Court of the State of California, County of Santa Clara, captioned Wolther v. Maheshwari et al., Case No. 18CV329690, on behalf of himself and others who purchased or acquired shares of Veeco pursuant to the registration statement and prospectus which Veeco filed with the SEC in connection with the Ultratech acquisition (the "Wolther Action"). On August 2 and August 8, 2018, two purported class action complaints substantially similar to the Wolther Action were filed on behalf of different plaintiffs in the same court as the Wolther Action. These cases have been consolidated with the Wolther Action, and a consolidated complaint was filed on December 11, 2018. The consolidated complaint seeks to recover damages and fees under Sections 11, 12, and 15 of the Securities Act of 1933 for, among other things, alleged false/misleading statements in the registration statement and prospectus relating to the Ultratech acquisition, relating primarily to the alleged failure to disclose delays in the advanced packaging business, increased MOCVD competition in China, and an intellectual property dispute. Veeco is defending this matter vigorously. No further updates were provided in the Company's SEC report. Veeco Instruments Inc., together with its subsidiaries, develops, manufactures, sells, and supports semiconductor and thin film process equipment primarily to make electronic devices worldwide. Veeco Instruments Inc. was founded in 1989 and is headquartered in Plainview, New York. VITA-MIX CORP: 6th Cir. Vacates Atty.'s Fees Award in Linneman Suit ------------------------------------------------------------------- In the case, VICKI A. LINNEMAN and OBADIAH N. RITCHEY, on behalf of themselves and those similarly situated, Plaintiffs-Appellees, v. VITA-MIX CORPORATION, VITA-MIX MANAGEMENT CORPORATION, and VITA-MIX MANUFACTURING CORPORATION, Defendants-Appellants, Case Nos. 19-3993, 19-4249 (6th. Cir.), a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court's award of attorney's fees. What began as a case about defective blenders has devolved into a quarrel about attorney's fees. Vita-Mix is a family-owned company that manufactures and sells high-performance blenders. Several years ago, the company learned that some of its blenders contained tiny black flecks after use. Vita-Mix determined that these flecks were polytetrafluoroethylene -- a substance commonly used in kitchen appliances and used in the seals of its blenders. Normal wear-and-tear would cause tiny pieces -- so tiny they were almost invisible to the naked eye -- to rub off from the seal and end up in the blender container. Because of that defect, the named Plaintiffs (owners of Vita-Mix blenders) filed the class action, alleging various claims against the company under state law. The parties soon entered into settlement negotiations and eventually agreed to a proposed settlement. The settlement provided for two classes of Plaintiffs: a household class and a commercial class. The Class members who owned a household blender could request either a $70 gift card or a replacement blade assembly, which included a non-flecking blender seal. (Those with multiple household blenders were eligible for a $140 gift card.) In contrast, the class members who owned a commercial blender could request only a replacement blade assembly. The settlement also specified that class counsel was entitled to attorney's fees but that the parties had not agreed on the amount. The district court preliminarily approved this settlement in late 2017. The parties then spent most of the next two years arguing about attorney's fees. The district court ultimately decided to calculate the fees by multiplying the hours the class counsel reasonably worked on the case by a reasonable hourly rate. That calculation resulted in a fees award of a little over $2.2 million. But based on the purportedly exceptional nature of the litigation, the court enhanced the figure by 75% for a final award of just under $4 million. Vita-Mix appealed that decision. The district court later awarded post-judgment interest on the fees award. Vita-Mix appealed that order too. Vita-Mix raises a host of challenges to the district court's award of attorney's fees. The Panel considers several questions of first impression about attorney's fees in class-action settlements. It holds that the district court correctly held that Section 1712 permitted it to use the lodestar method in the case. The district court held that the gift cards in the case qualify as "coupons" under CAFA and thus that Section 1712 applies. The question for the Panel is whether Section 1712 permitted the district court to use the lodestar method (rather than the percentage method) when it calculated the attorney's fees in the case. The Panel holds that Section 1712 requires a district court to use the redemption rate only when the it calculates fees based on the percentage method; it doesn't prohibit it from using the lodestar method instead. And nothing in Section 1712 instructs district courts to conduct a crosscheck. And the Court has repeatedly said that district courts are not required to conduct a crosscheck in every case. The district court will often abuse its discretion if it fails to consider the redemption rate as part of that analysis. The point is simply that Section 1712 does not require district courts to calculate attorney's fees based on the percentage method in every coupon settlement. Vita-Mix next argues that the settlement agreement places certain limits on any award of attorney's fees. The Panel holds that the district court correctly interpreted the settlement agreement. First, it finds that the agreement does say that the class counsel can seek attorney's fees under Civil Rules 23(h) and 54(d)(2), which provide for "reasonable" fees. And courts have long recognized that "reasonable" attorney's fees can include a multiplier in limited circumstances. Second, the Plaintiffs' complaint included a request for attorney's fees as part of the prayer for relief. And the district court didn't terminate the case from its docket until after it decided the fees dispute. If Vita-Mix had wanted to limit the fees to those incurred by the class counsel in obtaining the settlement, the settlement agreement could have said as much. But it didn't. Thus, the settlement allowed the district court to award fees-on-fees. Vita-Mix also argues that the district court abused its discretion when it calculated the award of attorney's fees. The company challenges various aspects of the award, but its arguments can be grouped into three general issues: (1) the determination of the billing rates, (2) the use of an upward multiplier, and (3) the reasonableness of the final award. The Panel holds that the district court abused its discretion when it calculated the award of attorney's fees. The district court first abused its discretion when it determined the billing rates. It then erred when it determined the billing rates based on the class counsel's affidavits. The district court next abused its discretion when it used an upward multiplier. It also abused its discretion as to the reasonableness of the attorney's fees. On remand, the district court should recalculate the award in light of its opinion. It leaves to the district court's discretion whether to permit new evidence. Finally, Vita-Mix argues that the district court erred when it ordered post-judgment interest on the award of attorney's fees under 28 U.S.C. Section 1961. The Panel finds that the district court correctly held that Section 1961 applies in the case. The whole point of Section 1961 is to ensure that a successful party receives compensation for any delay in the time it takes for the opposing party to pay up. The Panel's reading of Section 1961 does little to undermine the freedom-of-contract principles underlying settlements. But since Vita-Mix hasn't argued that the parties contracted around Section 1961 in their settlement agreement, it can leave the issue for another day. On remand, the district court should recalculate the post-judgment interest in light of any changes to its fees award. The Panel concludes that it agrees with the district court on many issues but finds that it abused its discretion as to the final award of fees. The Panel, therefore, vacated the award and remanded for further proceedings. A full-text copy of the Court's Aug. 12, 2020 Opinion is available at https://tinyurl.com/yylvagkd from Leagle.com. ARGUED: John M. Fitzgerald -- jfitzgerald@tdrlawfirm.com -- TABET DIVITO & ROTHSTEIN, LLC, Chicago, Illinois, for Appellants. W. B. Markovits -- bmarkovits@msdlegal.com -- MARKOVITS, STOCK & DEMARCO, LLC, Cincinnati, Ohio, for Appellees. ON BRIEF: John M. Fitzgerald, TABET DIVITO & ROTHSTEIN, LLC, Chicago, Illinois, Tracey L. Turnbull -- tturnbull@porterwright.com -- PORTER WRIGHT MORRIS & ARTHUR, LLP, Cleveland, Ohio, Caroline H. Gentry -- cgentry@porterwright.com -- PORTER WRIGHT MORRIS & ARTHUR, LLP, Dayton, Ohio, for Appellants. W. B. Markovits, Paul M. DeMarco -- pdemarco@msdlegal.com -- Justin C. Walker -- justin@finneylawfirm.com -- Terence R. Coates -- tcoates@msdlegal.com -- MARKOVITS, STOCK & DEMARCO, LLC, Cincinnati, Ohio, Jeffrey S. Goldenberg -- jgoldenberg@gs-legal.com -- GOLDENBERG SCHNEIDER, L.P.A., Cincinnati, Ohio, for Appellees. VITALE'S ITALIAN: 2nd Conditional Class Certification Bid OK'd -------------------------------------------------------------- In the class action lawsuit captioned as EMILIO TORRES v. VITALE'S ITALIAN RESTAURANT, INC., SALVATORE VITALE, and BELINDA PIERSON, Case No. 1:18-cv-547 (W.D. Mich.), the Hon. Judge Ray Kent entered an order: 1. granting the Plaintiff's second motion for conditional certification in a collective action pursuant to 29 U.S.C. section 216(b); 2. conditionally certifying a collective action for unpaid overtime wages pursuant to 29 U.S.C section 216(b) defined as: "current and former employees of Vitale's Italian Restaurant, Inc. d/b/a Vitale's Grand Rapids who were not compensated at a rate of time and one half their regular rate for any hours worked in excess of 40 hours in a workweek at any time from May 15, 2015, to the present." 3. directing the Defendants to provide plaintiffs with the names, all known addresses, e-mail addresses, all known phone numbers and the dates of employment of all Class Members; 4. approving the Plaintiffs' proposed "Notice of right to join lawsuit" to be sent to the Class Members, via traditional mail, email, text, and/or social media with a 90 day opt-in period; and 5. appointing the Avanti Law Group, PLLC as interim class counsel. According to plaintiff's amended complaint, defendants engaged in a common policy or plan which involved: using two time cards; paying employees with checks for the regular hours worked (as reflected on the first time card); paying employees at their regular hourly rates for overtime hours worked (as reflected on the second time card); and, paying the overtime hours without withholding income taxes. In his present motion, the plaintiff seeks conditional certification of a class based on a much narrower common policy, i.e., the current and former employees "were not compensated at a rate of time and one half their regular rate for any hours worked in excess of 40 hours in a workweek at any time from May 15, 2015, to the present." The Court said Torres' affidavit and Whiteside's declaration have met the "fairly lenient" standard at the first stage, and establish at least a colorable basis for plaintiff's claim that a class of similarly situated plaintiffs exists. While the plaintiff was employed as both a kitchen supervisor and a line cook, he was paid at an hourly rate, and was not compensated at a rate of time and one-half for "the majority" of his hours worked over 40 in a workweek. The Plaintiff's new class definition identifies Vitale's common policy as a policy not to pay overtime. This is an adequate policy. "It is enough that plaintiff makes a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law, to wit, that defendant failed to lawfully compensate all potential plaintiffs for their work." A copy of the Court's Order granting the plaintiff's second motion for conditional certification of a collective action is available from PacerMonitor.com at https://bit.ly/3lrj9ct at no extra charge.[CC] WAL-MART STORES: Has 45 Days to Finalize Neal Suit Settlement ------------------------------------------------------------- In the case, Curtis Neal, on behalf of himself and others similarly situated, Plaintiff, v. Wal-Mart Stores, Inc., d/b/a Walmart and Synchrony Bank, f/k/a GE Capital Retail Bank, Defendants. Roy Campbell on behalf of himself and all others similarly situated, Plaintiff, v. Synchrony Bank, Defendant, Civil Action No. 3:17-cv-00022 (W.D. N.C.), Judge Kenneth D. Bell of the U.S. District Court for the Western District of North Carolina, Charlotte Division, gave the parties 45 days to finalize their class action settlement agreement and for the Plaintiffs to file their motion for preliminary approval of the class action settlement. The matter is before the Court on the parties' Notice of Class Action Settlement. The parties state that they have reached an agreement "in principle" to settle the matter. Having carefully considered the parties' filing, Judge Bell suspended all case deadlines and consideration of pending motions until further order of the Court. In the event the parties are unable to finalize the settlement agreement, they are to notify the Court by the end of the 45-day period. A full-text copy of the Court's Aug. 19, 2020 Order is available at https://tinyurl.com/y2j7yc52 from Leagle.com. WALGREEN CO: Caves Class Suit Settlement Gets Initial Approval -------------------------------------------------------------- In the case, GLORIA CAVES and TAMIM KABIR, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. WALGREEN CO., Defendant, Case No. 2:18-cv-02910-MCE-DB (E.D. Cal.), Judge Morris C. England, Jr. of the U.S. District Court for the Eastern District of California, Sacramento Division, granted the Plaintiffs' motion for order preliminarily approving the Parties' settlement, certifying a settlement class, appointing the settlement class counsel, setting a hearing on the final approval of the settlement, and directing notice to the class. The Defendant joined in the Plaintiffs' request for an order preliminarily approving the Parties' settlement. Judge England granted preliminary approval of the Settlement based upon the terms set forth in the Settlement Agreement. The terms of the Settlement Agreement are sufficiently fair, reasonable, and adequate to allow dissemination of the Notice according to the Notice Program. Judge England appointed the following attorneys as the counsel for the Settlement Class: James C. Shah of Shepherd, Finkelman, Miller & Shah, LLP, and John F. Edgar of Edgar Law Firm, LLC. The Notice and provisions for disseminating notice are approved. Settlement Administrator Simpluris will be responsible for providing notice of the proposed Settlement to the Settlement Class Members in accordance with the provisions of the Settlement Agreement and to the appropriate state and federal officials as directed under the Class Action Fairness Act. Simpluris will mail the Notice to the identified Settlement Class Members per the Notice Program within 30 days of the entry of the Order. On the same date, it will make an informational settlement website available to the public. Anyone who wishes to be excluded from the Settlement Class must submit a written request for exclusion and must be postmarked within 45 days from the Notice Date. The Court will rule on the validity of exclusions at the Final Approval Hearing. Any Settlement Class Member who wishes to object to the proposed Settlement must send or file an objection with the Court within 45 days from the Notice Date. A copy of such papers being filed in support of any Objection will also be mailed to Simpluris, Settlement Administrator, P.O. Box 26170 Santa Ana, CA 92799. No less than 10 days prior to the Final Approval Hearing, the Claims Administrator will provide to the Parties a declaration attesting that the Class Notice was disseminated in a manner consistent with the terms of the Settlement Agreement. The Class Counsel will file with the Court their petition for payment of attorneys' fees and reimbursement of litigation costs and expenses no later than 15 days prior to the Objection and Opt out deadline. At least 28 days prior to the date set for the Final Approval Hearing, the Plaintiff will file a motion for judgment and final approval of the Settlement. The Parties will file their briefs in support of settlement approval, as well as any supplemental briefs supporting the Class Counsel's motion for attorneys' fees and reimbursement of litigation costs, at that time. If any Settlement Class Members object or opt-out after Plaintiff files the motion for final approval, the Parties will file supplemental briefing no later than seven days prior to the date set for the Final Approval Hearing, setting forth the Parties' responses to such Objections and the number of opt-outs. If appropriate, the parties will include supplemental briefing on Class Counsel's motion for attorneys' fees at that time. On Feb. 11, 2021, the Court will hold the Final Approval Hearing. Pending further orders by the Court, all proceedings in the case will be stayed, except for proceedings pursuant to the Order. The Class Counsel and the Defense Counsel are authorized to establish other means necessary to effectuate the terms of the Settlement Agreement. The Court has received filings on behalf of various "class members and objectors." These individuals are not party to the action, and it is premature for the Court to entertain their objections and any requests included therein. Accordingly, those filings at ECF Nos. 34 and 41 are stricken. A full-text copy of the Court's Aug. 12, 2020 Order is available at https://tinyurl.com/yysvm53m from Leagle.com. WB STUDIO: Fails to Pay Minimum & Overtime Wages, Ettedgui Claims ----------------------------------------------------------------- DAVID ETTEDGUI, on behalf of the State of California, as a private attorney general, v. WB STUDIO ENTERPRISES INC., a Corporation; and DOES 1 through 50, inclusive, Case No. 20BBCV00719 (Cal. Super., Los Angeles Cty., Oct. 19, 2020), is brought on behalf of the Plaintiff and all current and former aggrieved employees who worked for the Defendants, seeking to recover anything other than penalties as permitted by the California Labor Code. As a proximate result of the Defendants' willful, knowing, and intentional violation(s) of the Labor Code section 1102.5, the Plaintiff has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to their damage in a sum according to proof, says the complaint. The Plaintiff was employed by the Defendant in California from December 4, 2019 to January 4, 2020 as a Tour Guide/Floater and was at all times classified by the Defendant as a non-exempt employee, paid on an hourly basis, and entitled to the legally required meal and rest periods and payment of minimum and overtime wages due for all time worked. The Defendant operates as an entertainment company. The Company engages in the creation, production, distribution, licensing and marketing of all forms of entertainment and their related businesses.[BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. Nicholas J. De Blouw, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 WHC LLC: Garcia Seeks Proper Overtime Pay Under FLSA ---------------------------------------------------- Mario A. Garcia Jr., on behalf of himself and all others similarly situated, v. WHC, LLC, Case No. 7:20-cv-00331 (S.D. Tex., Oct. 16, 2020), is brought by the Plaintiff pursuant to the federal Fair Labor Standards Act and the federal Portal-to-Portal Pay Act for the Defendant's failure to pay the Plaintiff time and one-half his regular rate of pay for all hours worked over 40 during each seven day workweek. The Plaintiff worked for the Defendant from April 2018 through August 2020 as an hourly-paid employee. The putative Collective Action Members are all current and former hourly-paid employees of the Defendant who were not paid time and one-half their respective regular rates of pay for all hours worked over 40 during each seven day workweek due to the Defendant's failure to include remuneration designated as per diem pay and/or "Welder Rig Pay." WHC, LLC offers construction management services. The Company provides gas pipeline construction, pipeline recoating, facility upgrades, in-house fabrication, sandblasting, painting, metering station construction, and pump station construction services.[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 tjones@eeoc.net WILLOUGHBY REHAB: Cert. Ruling/Protective Order in Olmann Upheld ---------------------------------------------------------------- In the case, JOSEPH OLMANN, ETC., Appellant, v. WILLOUGHBY REHABILITATION AND HEALTH CARE CENTER, LLC, ET AL., Respondents, Case 2016-07212, 2017-07645, Index No. 514289/15 ( N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, (i) modified and affirmed the order of the Supreme Court, Kings County, dated June 20, 2017, denying the Plaintiff's motion for class certification; and (ii) modified and affirmed the court's order dated May 11, 2016, denying the Plaintiff's motion for a protective order. In the putative class action, inter alia, to recover damages for negligence and violation of Public Health Law Section 2801-d, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Judge Gloria M. Dabiri), dated May 11, 2016, and (2) an order of the same court dated June 20, 2017. The order dated May 11, 2016, denied the Plaintiff's motion pursuant to CPLR 3103(a) for a protective order. The order dated June 20, 2017, insofar as appealed from, denied the Plaintiff's motion pursuant to CPLR 901 and 902 for class certification and denied stated portions of their separate motion pursuant to CPLR 3124 to compel the Defendants to comply with his discovery demand. Decedent Marie C. Olmann was a resident of the defendant Spring Creek Rehabilitation & Nursing Care Center, a nursing home, from June 2012 to January 2014. In November 2015, the Decedent's son, Plaintiff Olmann, individually and as the proposed administrator of her estate, and purportedly on behalf of all others similarly situated, commenced the putative class action against Spring Creek and its owner, the Defendant Willoughby Rehabilitation, inter alia, to recover damages for negligence and violation of Public Health Law Section 2801-d. The Plaintiff alleged that the decedent and other residents at Spring Creek sustained injuries attributable to substandard nursing care. He was subsequently appointed the administrator of the Decedent's estate, and the caption was amended to reflect that appointment. Thereafter, the Plaintiff moved pursuant to CPLR 3103(a) for a protective order to allow for the disclosure of confidential health information of other residents at Spring Creek. In an order dated May 11, 2016, the Supreme Court denied that motion as premature and overly broad. He also moved pursuant to CPLR 901 and 902 for class certification and separately moved pursuant to CPLR 3124 to compel the defendants to comply with his discovery demands. In an order dated June 20, 2017, the court, inter alia, denied his motion for class certification and denied stated portions of his motion to compel the Defendants to comply with his discovery demands. The Plaintiff appeals. According to the Appellate Court, under the circumstances presented, the Supreme Court providently exercised its discretion in denying the Plaintiff's motion for a protective order to allow for disclosure of confidential health information of other Spring Creek residents. Contrary to the Plaintiff's contention, the Supreme Court also providently exercised its discretion in denying his motion for class certification. However, the Appellate Court held that the Supreme Court should have granted those branches of the Plaintiff's motion which were to compel the Defendants to comply with (1) his discovery demand number 30, (2) his discovery demand number 32 to the extent that it demands "all documents relating to meals provided to" the Decedent, (3) his discovery demand number 33 to the extent that it demands "all documents relating to bed changing records for" the Decedent, (4) his discovery demand number 34 to the extent that it demands "all documents relating to the movement of" the Decedent, (5) his discovery demand number 35 to the extent that it demands "all documents relating to the washing of" the Decedent, (6) his discovery demand number 36 to the extent that it demands "all documents relating to the change of position of" the Decedent, and (7) his discovery demand number 51. Those demands related to the Decedent's care, the staffing of nurses and nursing assistants who provided care to the Decedent, and complaints or investigations of alleged substandard care or abuse involving the Decedent. The Supreme court otherwise providently exercised its discretion in denying stated portions of the Plaintiff's motion to compel compliance with his discovery demands, ruled the Appellate Court. While the Defendants failed to object to the Plaintiff's discovery demands within the time period set forth in CPLR 3122(a)(1), that failure does not foreclose review of the Defendants' challenge to those demands as palpably improper. With the exception of the aforementioned discovery demands, the demands at issue were palpably improper, since they sought information that was irrelevant, or were overbroad and burdensome. The plaintiff's remaining contentions either are without merit or need not be reached in light of the Court's determination, the Appellate Court added. For these reasons, the Appellate Court affirmed the order dated May 11, 2016. With regards the order dated June 20, 2017, the Appellate Court modified the order, on the law, by deleting the provisions thereof denying those branches of the Plaintiff's motion pursuant to CPLR 3124 which were to compel the Defendants to comply with (1) his discovery demand number 30, (2) his discovery demand number 32 to the extent that it demands "all documents relating to meals provided to" the Decedent, (3) his discovery demand number 33 to the extent that it demands "all documents relating to bed changing records for" the Decedent, (4) his discovery demand number 34 to the extent that it demands "all documents relating to the movement of" the Decedent, (5) his discovery demand number 35 to the extent that it demands "all documents relating to the washing of" the Decedent, (6) his discovery demand number 36 to the extent that it demands "all documents relating to the change of position of" the Decedent, and (7) his discovery demand number 51, and substituting therefor provisions granting those branches of that motion. As so modified, the order dated June 20, 2017, is affirmed insofar as appealed from. One bill of costs is awarded to the Defendants. A full-text copy of the Appellate Court's Aug. 26, 2020 Decision & Order is available at https://tinyurl.com/y2lskmya from Leagle.com. Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains, NY (Jeremiah Frei-Pearson -- jfrei-pearson@fbfglaw.com -- of counsel), for appellant. Kaufman Borgeest & Ryan LLP, Valhalla, NY (Jacqueline Mandell -- jmandell@kbrlaw.com -- and Rebecca A. Barrett -- rbarrett@kbrlaw.com -- of counsel), for respondents. YGRENE ENERGY: Court Denies Complete Stay of Woolley Case --------------------------------------------------------- In the case, GEORGE W. WOOLLEY, TAMMY S. WOOLLEY, ANTHONY LOOK, JR., KIMBERLY LOOK, ALEJANDRO MARCEY, and FELICIA MARCEY, individually and on behalf of all others similarly situated, Plaintiffs, v. YGRENE ENERGY FUND, INC., and YGRENE ENERGY FUND FLORIDA, LLC, Defendants, Case No. 17-cv-01258-LB (N.D. Cal.), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, denied the Plaintiffs' motion to stay the case under Rule 23(f). The case is a putative class action about (1) Ygrene Energy's alleged misrepresentations to homeowners that clean-energy loans for home improvements (such as solar panels or better windows) were assessments that attached to their properties (like property taxes) and transferred on resale to new owners, when (2) in fact, the homeowners had to prepay the loans if they wanted to sell their homes or refinance their mortgages. On May 28, 2020, the Court denied the Plaintiffs' class-certification motion, generally because they did not show that class members were exposed to the challenged marketing materials. On June 11, 2020, the Plaintiffs filed a Federal Rule of Civil Procedure 23(f) petition with the Ninth Circuit for permission to appeal the order. They then moved to stay the case under Rule 23(f). The Defendants oppose a complete stay because they contemplate filing a motion for summary judgment for the claims of the named Plaintiffs Tammy and George Woolleys, but they otherwise do not oppose the motion to stay. The Plaintiffs contend that the Court should stay the case pending the Rule 23(f) petition because (1) their appeal raises a serious legal question, (2) they would suffer irreparable harm absent a stay, (3) a stay does not prejudice Ygrene, and (4) judicial economy and the public interest favor a stay. First, the Plaintiffs argue that the Court committed "manifest error" when it reversed its previous order granting class certification without any intervening changes in the law or the facts. As the Court has explained, in its first order, it considered the Plaintiffs' argument and did not consider evidence -- in the form of exposure -- sufficiently. Moreover, the Court's initial order was interlocutory, and it can reconsider it, rules Magistrate Judge Beeler. Second, the Plaintiffs face Ygrene's summary-judgment motion in any event, and if they need more discovery, the Court will grant it. If there are issues about the Woolleys, then the Court will address the issues when they are live, Magistrate Judge Beeler added. Third, Ygrene does not oppose staying other aspects of the case. It otherwise has some harm from a full stay. This factor favors the Court's approach. Fourth, the Court's approach balances the interests of the parties and -- if the post-motion case is stayed -- the interests of efficiency. Based on the foregoing, Magistrate Judge Beeler denied the motion to stay in that it will allow the summary-judgment motion, related discovery, and any discovery relevant to the class-certification issues (as it has said previously). The Magistrate Judge otherwise is willing to stay the case and can address the scope of the stay at the next case-management conference or in the context of any discovery disputes. A full-text copy of the Court's Aug. 19, 2020 Order is available at https://tinyurl.com/y4lv6maz from Leagle.com. Previously, the plaintiff moved for a protective order limiting Ygrene's communications with the classes because Ygrene surveyed class members before class certification. In an order entered on March 2, 2020, a full-text copy of which is available at https://tinyurl.com/r7rt53s from Leagle.com, Magistrate Judge Beeler denied the motion because the plaintiffs have failed to establish a "clear record" of abuse or of "likelihood of serious abuse." "The plaintiffs' sole justification for a protective order, the Hanssens survey, does not establish "a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties," ruled the Magistrate Judge. "The Hanssens survey was not conducted under false pretenses and did not affect the customers' individual rights to participate in the class." YHA AUSTRALIA: Accused of $15M Underpayment to 'Volunteers' ----------------------------------------------------------- smh.com.au reports that the nationwide YHA Australia chain of hostels has been accused of systematically underpaying backpackers by classifying them as volunteers but requiring them to do regular work. One man classified as a volunteer, Afshun Zareey, said he worked as a desk attendant and activities co-ordinator doing tasks including cleaning on late night shifts at three YHA properties in NSW and Queensland. While Mr Zareey's claim has settled on confidential terms, his lawyer Rory Markham of Adero Law is preparing a class action against the hostel company which he estimates could cover up to 4000 backpackers and recoup $15 million in lost wages. Mr. Markham, the managing principal at Adero, said the YHA offered beds to backpackers who worked for its hostels but not for long enough to fairly compensate for the work done. [GN] ZOAN MANAGEMENT: Arbitration Ruling in Gist Wage & Hour Suit Upheld ------------------------------------------------------------------- In the case, Jeff GIST, individually and on behalf of all similarly situated, Plaintiff-Appellant, v. ZOAN MANAGEMENT, INC.; Senvoy, LLC; and Driver Resources, LLC, a domestic limited liability company, Defendants-Respondents, Case Nos. 131115916; A159509 (Or. App.), a three-judge panel of the Court of Appeals of Oregon affirmed the trial court's order compelling arbitration. The Plaintiff was a delivery driver for Defendant Driver Resources, which operates with Defendants ZoAn and Senvoy to provide delivery service to businesses. In December 2010, the Plaintiff signed a Driver Services Agreement with Driver Resources to work as a driver. In November 2013, the Plaintiff filed a putative class-action complaint against the Defendants, alleging wage and hour claims under Oregon law. The complaint sought unpaid wages, unpaid overtime wages, statutory penalty wages, compensation for unlawful deductions from wages, and recovery of attorney fees. In May 2014, the Defendants petitioned the trial court for an order to stay proceedings and compel arbitration pursuant to the terms of the Driver Services Agreement. Because the agreement did not provide for arbitration of class action claims, the Defendants sought arbitration of the Plaintiff's individual claims. The Plaintiff opposed the petition, contending that the arbitration provisions were unenforceable as part of an unconscionable contract. The trial court, however, abated further proceedings and ordered the parties to arbitrate. After two unsuccessful attempts to initiate an appeal from the order, the Plaintiff filed a motion to dismiss his claims with prejudice, while reserving his challenge to the order on appeal. The trial court granted the Plaintiff's motion and entered a general judgment of dismissal. Initially, the Plaintiff's appeal was rebuffed. The Defendants moved to dismiss the appeal on the ground that the judgment was not appealable because the Plaintiff had requested it. The court dismissed. On review, the Oregon Supreme Court reversed the Court Appeal's decision and remanded the case to the Court of Appeals. It concluded that the judgment was appealable but expressed no view whether all the issues raised by the Plaintiff on appeal are reviewable. The court added that certain of the Defendants' arguments may more appropriately be directed to what issues the Court of Appeals may properly review on appeal rather than the appealability of the judgment. On appeal, the Plaintiff contends that the arbitration provisions are unenforceable because the contract is procedurally and substantively unconscionable. The Defendants disagree, adding that the issue is not reviewable. The Panel holds that the record reveals that the order compelling arbitration resulted in the nature of the judgment of dismissal of the Plaintiff's claims. Consequently, the order "affected" the judgment and is reviewable on appeal from that judgment. Next, the Plaintiff does not deny that arbitration fees may be shifted to the losing parties, but insists that the risk of such costs is nonetheless a barrier to arbitration. The Panel does not know that the Plaintiff will bear any costs in arbitration, because arbitration fees can be shifted to the losing party. The parties disagree as to what the fees for arbitration might be, and the Panel does not know the amount of those fees in proportion to the amount of damages that the Plaintiff may recover. When the fee provisions themselves are not onerous and when the Plaintiff's factual information is incomplete, it cannot rely on speculation to declare arbitration costs unconscionable. On that record, the Panel cannot determine that the cost of arbitration is truly a barrier to arbitration or an indication of unconscionability. The Plaintiff next argues that the arbitration is substantively unconscionable due to an arbitration provision on attorney fees, complainting that the provision denies his recovery of attorney fees from the Defendants in a claim on the agreement. The Defendants rejoin that the provision is nonetheless mutual. In the case, the attorney-fee provision is not one-sided, rules the Appeals Court. It is even-handed; each party pays its own attorney fees. There is no "unreasonably unfair" term that would treat the Plaintiff differently from the Defendants. Nor is there even any risk that, if the Plaintiff did not prevail, he would owe the Defendants' attorney fees. The Panel is presented with nothing but the written terms of the agreement, and, from them, it cannot determine that the attorney-fee provision, in itself, is an indication of unconscionability. Finally, the Appeals Court recognizes that the Plaintiff's argument is not with the attorney-fee provision itself. Rather, he argues that the attorney-fee provision seems to deny him the potential to recover attorney fees on his wage claims under Oregon statutes. The issue is that an arbitration provision of the Driver Services Agreement seems to provide a different rule. The Panel concludes that the half-dozen conflicts that the Plaintiff raises, as between the agreement and Oregon statute, are not matters that relate to the Court's consideration of unconscionability. They are simply legal disputes for resolution in due course by the arbitration panel. Ultimately, the Appeals Court concludes that the issues presented are reviewable, that the arbitration provisions of the agreement are not unconscionable, and that the trial court did not err in compelling the parties to arbitrate. The Plaintiff's claims remain for resolution in arbitration. A full-text copy of the Appeals Court's Aug. 12, 2020 Order is available at https://tinyurl.com/y43rhsxy from Leagle.com. Lisa Hunt -- lthunt@lthuntlaw.com -- argued the cause for appellant. On the opening brief were Phil Goldsmith and Law Office of Phil Goldsmith; and David A. Schuck, Stephanie J. Brown, and Schuck Law, LLC. Also on the reply brief were Law Office of Lisa T. Hunt, LLC; and David A. Schuck and Shuck Law, LLC. Erin N. Dawson -- edawson@pfglaw.com -- argued the cause for respondents. Also on the brief were Charles J. Paternoster -- cpaternoster@pfglaw.com -- and Parsons Farnell and Grein, LLP. ZWILLING J.A.: Bishop Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Zwilling J.A. Henckels, LLC. The case is styled as Cedric Bishop, on behalf of himself and all other persons similarly situated v. Zwilling J.A. Henckels, LLC, Case No. 1:20-cv-08863 (S.D.N.Y., Oct. 22, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Zwilling J. A. Henckels AG is a German kitchenware manufacturer based in Solingen, Germany. It is one of the largest and oldest manufacturers of kitchen knives, scissors, cookware and flatware, having been founded in June 1731 by Peter Henckels.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal ********* 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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