/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210120.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 20, 2021, Vol. 23, No. 9 Headlines A PLACE FOR MOM: Class Settlement in Pine Suit Gets Final Nod ACANDYSTORE.COM: Jaquez Files ADA Suit in S.D. New York AEI PAINTING: Arias FLSA Suit Seeks to Certify Class of Painters AFTRA RETIREMENT: Fails to Secure Consumers' Info, A.A. Claims ALLEN BEARD: District Court Junks Jerome Woods' Class Action ALTA HOSPITALS: Aguilar Sues Over Unpaid Wages and Retaliation AMAZON.COM: Faces Class-Action Lawsuit Over Ebook Pricing AMERICAN SOCIETY: Baker Files Suit in Arizona ANNE ARUNDEL CCC: District of Maryland Dismisses Student C Suit AVALANCHE CONSTRUCTION: Denied Workers Overtime Pay, Breaks BABY BREZZA: Rules Tolling Reply Deadline in Borgese Suit Confirmed BANKERS TRUST: Suit Seeks Initial Approval of Settlement Deal BAXTER INT'L: Securities Class Suit Dismissed Without Prejudice BAYER CROPSCIENCE: Monopolizes Crop Input Market, Piper Suit Says BCBSM INC: Bid for Class Certification Tossed in J.P. ERISA Suit BEMIS CO: New York Court Dismisses Securities Suit With Prejudice BLACKBAUD INC: Atwood Class Suit Transferred to D. South Carolina BLACKBAUD INC: Mitchell Files Suit in D. South Carolina BOEING COMPANY: Wins Bid to Dismiss Christensen Negligence Suit BORAL LIMITED: Faruqi & Faruqi Announces Securities Class Action CD PROJEKT: Pomerantz Law Announces Securities Class Action CHARTER COMMUNICATIONS: Wojtowicz Files Suit in Connecticut CITY NATIONAL BANK: Carter Files Suit in W.D. Oklahoma COMMUNITY BANK: Suit Seeks Initial Approval of Class Settlement CORECIVIC INC: Bid to Reconsider April 1, 2020 Order Tossed CORIANT OPERATIONS: Court Narrows ERISA Claims in McCutchan Suit DAP PRODUCTS: Wins Bid to Dismiss Fraud Suit Initiated by Ehlis DEXTER-RUSSELL INC: Paguada Files ADA Suit in S.D. New York DISTRICT OF COLUMBIA: Pappas Suit Dismissed With Leave to Amend DOLE FOOD: Denial of Bid to Vacate Order Dismissing Chaverri Upheld ESCOBAR CONSTRUCTION: Perez Counsel Affirms Collective Cert. Bid ESCOBAR CONSTRUCTION: Perez Seeks FLSA Collective Action Status EVERGREEN FREEDOM: Huntsman Files TCPA Suit in E.D. Washington EXTENDICARE INC: Faces COVID-19 Class Action Over Negligence FACEBOOK INC: Monopolizes Social Advertising Market, Layser Claims FACEBOOK INC: Nearly 1.6MM Illinois Users to Get About $350 Each FAST AUTO: Appeals Court Affirms Arbitration Denial in Maldonado FCI OAKDALE: Steven Rast Suit Seeks to Certify Class of Prisoners FIAT CHRYSLER: Distribution of Koopman Settlement Funds Granted GEICO GENERAL: Plaintiffs Ask Court to Amend Reply Brief GOODRX HOLDINGS: Levi & Korsinsky Reminds of February 16 Deadline GOOGLE LLC: Kavulak Sues Over App Market Monopoly GOPLUS CORP: Arbitration Ruling as to McLane's PAGA Claim Affirmed GTT COMMUNICATIONS: Federman & Sherwood Reminds of Mar. 15 Deadline GTT COMMUNICATIONS: Frank Roth Sues Over Drop in Share Price GTT COMMUNICATIONS: Portnoy Law Announces Securities Class Action GTT COMMUNICATIONS: Rosen Law Reminds Investors of Mar. 15 Deadline GTT COMMUNICATIONS: Schall Law Reminds of March 15 Deadline HAYT & HAYT: Settlement Deal Gets Final Approval in Barenbaum Suit HINJUDA GLOBAL: McCarthy Sues Over Call Center Staff's Unpaid Wages HOME DEPOT: Asks Court to Continue Class Certification Dates HUDSON HALL: New York Court Refuses to Reconsider Order in Stewart INNOCOLL HOLDINGS: Class Certification Bid Mooted w/o Prejudice INVITATION HOMES: McCumber Files Suit in Maryland JBS SA: $24.5 Million Pork Price-Fixing Settlement Gets Early OK JOHN VARVATOS: N.Y. Court Denies Bid for Judgment in Knox EPA Suit JT ENTERPRISES: Faces Gill Suit Over Unpaid Wages for Caregivers KROGER COMPANY: 9th Cir. Appeal Filed in Hawkins Mislabeling Suit LEXINGTON LAW: Moore Files TCPA Suit in Utah LINCOLN LIFE: VLF's Class Cert. Filing Deadline Extended to June 7 LOCAL ADVANTAGE: Fabricant Sues Over Unsolicited Telephone Calls LONGCAP LAMSON: Paguada Files ADA Suit in S.D. New York MACMILLAN PUBLISHERS: Simoni Sues Over Fraudulent Sale of E-Books MARRIOTT INTERNATIONAL: Martin Suit Seeks Class Action Settlement MDL 2873: Womack Alleges Injury From Exposure to Toxic AFFF MDL 2875: Bids to Dismiss Liability Suit Over BP Drugs Partly OK'd MDL 2985: Apple Seeks Consolidation of Six Actions to N.D. Cal. MIDLAND CREDIT: Collins Seeks to Certify Class of Consumers MIDLAND CREDIT: Pacifico FDCPA Suit Removed to E.D. New York MIDLAND CREDIT: Peters Files FDCPA Suit in M.D. Florida MIDWESTERN AUTO: Binder FLSA Suit Seeks to Certify Employees Class MONARCH FUNDING LLC: Fabricant Slams Illegal Telemarketing Calls NEW JERSEY: Petition for Writ of Habeas Corpus Filed in Goodchild NEW YORK: Court Directs Nugent, Others to File IFP and PLRA Forms NOBLE ENERGY: Galindo Sues Directors for Breach of Fiduciary Duties NUDGE LLC: JLR Suit Stayed Pending Lift of Preliminary Injunction NVIDIA CORP: Arbitration & Dismissal Order in LeBoeuf Suit Affirmed O.J. SMITH FARMS: Combined Class & Collective Certification Granted OPA-LOCKA, FL: Court Allows Class-Action Lawsuit On Water Bills PARAMED INC: McKenzie Lake Announces Securities Class Action PASCHALL TRUCK: Carter Parties to Confer on 2019 Accord Enforcement PEABODY ENERGY: Labaton Named Lead Counsel in Oklahoma FPRS Suit PEANUT SHELLERS: Court Certifies Runner Peanuts Antitrust Lawsuit PILLPACK LLC: Williams' Bid to Certify Class Deferred to Feb. 5 PNC BANK: 4th Cir. Appeal Filed in Lyons Consumer Credit Suit POLARIS INDUSTRIES: Guzman Suit Seeks to Certify Class & Subclass QIWI PLC: Robbins Geller Rudman Reminds of February 9 Deadline RECON OILFIELD: Joint Bid for Collective Conditional Status Filed RICOH USA: Class Cert. Filing Deadline Continued to March 16 RISE DEVELOPMENT: Faces Morales Wage-and-Hour Suit in E.D.N.Y. RLI INSURANCE: Denied Coverage of Business Interruption Claims ROPER ST. FRANCIS: Stanley Sues Over Unpaid Wages, Termination SARASOTA COUNTY, FL: Bid to Dismiss Grames Class Suit Granted SAUNDRA THURMAN-CUSTIS: LaCaprucia Case Trial Set for Feb. 14 SHENANDOAH VALLEY: Summary Judgment in Latino UACs Suit Reversed SIERRA MOUNTAIN: Perez Wins Bid to Remand Suit to State Court SM ENERGY: CRC Class Action Settlement Wins Initial Approval SOLARWINDS CORP: Faruqi & Faruqi Reminds of March 5 Deadline SOUTHSTAR CAPITAL: Adegbola Files Suit for Wrongful Termination SPEEDY CASH: Ct. Enters Scheduling Order Through Class Cert. SPLUNK INC: Portnoy Law Reminds of February 2 Deadline SPROUT CHILDREN: Angeles Files ADA Suit in S.D. New York SRI HARTIMAA: Faces Mohammad Wage-and-Hour Suit in E.D. New York SUSHI OTA: S.D. California Narrows Claims in Cota ADA Class Suit TCF ENERGY: Perrong Files TCPA Suit in N.D. Georgia TESLA INC: Faces Fish Suit Over Defective Vehicle Battery Packs TEX CHEVROLET: Harris Files TCPA Suit in Arizona TRAVIS CREDIT: Judgment on Pleadings Bid in Stoutt TCPA Suit Denied TRICIDA INC: Glancy Prongay Reminds Investors of March 8 Deadline TRU TOP: Wolchko Files Suit in Arizona Over TCPA Violation UNEQUAL TECHNOLOGIES: Paguada Files ADA Suit in S.D. New York UNITED STATES: Brian Broadfield Seeks to Certify Class of Prisoners UNITED STATES: Ernest Riley Suit Seeks Class Action Certification UNITED STATES: Morton & Ayala's Bid to Intervene in Scholl Denied UNITED STATES: Vangala Class Cert. Proceedings Stayed Until Feb. 15 UNIVERSITY OF PENNSYLVANIA: Suit Seeks to Certify Settlement Class UPS SUPPLY: Ayala & Aviles Seek to Certify Class of Employees US FOODS: Morris, et al., Directed to File Class Cert. by Jan. 22 USANA HEALTH: Lacasse's Motion to Remand to State Court Granted V & O MONTALVAN: Faces Giron Wage-and-Hour Suit in E.D.N.Y. VALERY SWEENY: Molina Sues Over Failure to Pay Overtime Wages VELOCITY INVESTMENTS: Jackson Suit Trial-Related Deadlines Stayed VELOCITY INVESTMENTS: Summary Judgment in Massaro Suit on Hold VIPKIDS INTERNATIONAL: Meehan Labor Suit Removed to E.D.N.Y. WALMART STORES: Lisowski Appeals Order in Consumer Suit to 3rd Cir. WEST ROAD: Calhoun Has Until May 14 to File Class Certification Bid WESTERN REFINING: Class Cert. Bid Deadline Continued to June 21 ZIP CAPITAL: Smith Files TCPA Suit in C.D. California ********* A PLACE FOR MOM: Class Settlement in Pine Suit Gets Final Nod ------------------------------------------------------------- The U.S. District Court for the District of Washington grants the deferred portion of the Plaintiff's unopposed motion for final approval of class action settlement in the lawsuit titled KEVIN PINE, individually and on behalf of all others similarly situated v. A PLACE FOR MOM, INC., Case No. C17-1826 TSZ (W.D. Wash.). In the matter, the Settlement Class, as defined by the Order entered December 5, 2019, was divided into two groups; the remaining issues in this matter involve only Group 1. The Settlement Administrator, Kurtzman Carson Consultants LLC and its division known as KCC Class Action Services, had been directed to send notices to individuals in Group 1 via U.S. mail. The Settlement Administrator successfully did so with respect to 46,384 of the 62,247 members of Group 1. With respect to another 6,662 individuals in Group 1, for whom no postal address was available, the Settlement Administrator distributed notices via email. Through inadvertence, however, as of the date of the hearing conducted on October 1, 2020, the purpose of which was to consider whether to approve the proposed class action settlement, at least 9,201 members of Group 1 had not received notice via either postcard or email. The Court, therefore, directed the Settlement Administrator to engage in further efforts to provide notice to such persons. The Settlement Administrator has now reported as follows. Of the 9,201 individuals who did not previously receive notice, 81 are deceased, and another 205 could not be reached via U.S. mail, email, or social media. All other members of Group 1 have received direct notice via one method or another, reflecting a success rate of 99.67%, when the deceased persons are excluded from the calculation (i.e., service effected as to 61,961 of 62,166 individuals). The post-hearing round of notices has resulted in at least 99 additional members of Group 1 being eligible to receive a share of the settlement proceeds. Prior to the extended deadline set by the Court, December 7, 2020, the Settlement Administrator received no additional exclusions forms and no further objection to the proposed settlement. In light of the results of the Settlement Administrator's supplementary attempts to notify all persons in Group 1 of the proposed settlement, the Court orders as follows: (1) The deferred portion of the Plaintiff's unopposed motion for final approval of class action settlement is granted; (2) The Court finds that, to the extent possible, notice was disseminated to all members of the Settlement Class. The Court further concludes that the notice plan outlined in the Preliminary Approval Orders, as supplemented by the Order entered October 22, 2020, with which the Settlement Administrator has fully complied, provided the "best notice that is practicable under the circumstances," see Fed. R. Civ. P. 23(c)(2)(B), and comports with the requirement of due process; (3) The Court approves the Amended Settlement Agreement and Release executed by Class Representative Kevin Pine and Defendant A Place for Mom, Inc., finds that the Settlement Agreement memorializes a fair, reasonable, and adequate settlement as to all the Settlement Class members in accordance with Federal Rule of Civil Procedure 23, and directs that the Settlement Agreement be Consummated pursuant to its terms and conditions; (4) The claims of each Settlement Class member that were or could have been asserted in the action are dismissed with prejudice, and the release of claims set forth in the Settlement Agreement will have binding effect, provided, however, that the individuals identified in Exhibit D to the Declaration of Victoria Fellner, who have opted out of the Settlement Class, are not bound by the dismissal or the terms of the Settlement Agreement and will not receive any of the proceeds of the settlement; (5) In light of Paragraph 4, the Defendant's motion for supplemental briefing concerning any exclusion of individuals in Group 1 to whom notice could not be delivered, is stricken as moot. (6) The deferred portion of the Plaintiff's unopposed motion for attorney's fees, costs, and service awards is granted. The Class Counsel, Lieff Cabraser Heimann & Bernstein, LLP, Mason Lietz & Klinger LLP, Hussin Law Firm, and Frank Freed Subit & Thomas LLP, are collectively awarded $1,500,000 in attorneys' fees and $55,080.60 in costs. The Court concludes that the attorneys' fees and costs are fair and reasonable in light of the work performed, the results achieved, and the purposes of the Telephone Consumer Protection Act, pursuant to which the action was brought; (7) Pursuant to the parties' agreement, and no objection having been made by a member of the Settlement Class, the Electronic Frontier Foundation is designated as the cy pres beneficiary. Any proceeds of the Settlement Fund that remain after 180 calendar days from the date on which order and judgment -- the last check for a Settlement Award was issued will be paid to the Electronic Frontier Foundation; (8) The Preliminary Approval Orders and the Order entered October 22, 2020, are incorporated herein by reference; (9) The Clerk is directed to send a copy of the Order and Judgment to all the counsel of record and to close the case. A full-text copy of the Court's Order and Judgment dated Jan. 11, 2021, is available at https://tinyurl.com/y32kzutu from Leagle.com. ACANDYSTORE.COM: Jaquez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against ACandyStore.com Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. ACandyStore.com Inc., Case No. 1:21-cv-00354 (S.D.N.Y., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. CandyStore.com -- https://www.candystore.com/ -- offers over 1000s of candies in bulk, low prices, with flat rate and free shipping over $100.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com AEI PAINTING: Arias FLSA Suit Seeks to Certify Class of Painters ---------------------------------------------------------------- In the class action lawsuit captioned as JOSE ARIAS, MERLIN IVAN CANALES, BENJAMIN CASTRO-RAMIREZ, OSCAR CHIRINOS (a/k/a Felix Chirinos and a/k/a Felix Hernandez-Anariva), MARTIN DUQUE-CAMACHO, JAIRO ANTONIO GUNERA-GARCIA, KELVIN LENIN LEZAMA-CHIRINOS, ALEXANDER MENDOZA, DARWIN NAVARRO (a/k/a JONATHAN FUNER), ANGEL MANFREDO ORTIZ-CHIRINO, YONY JAVIER PAZ-CHIRINOS, GERMAN A. PEREZ-SANTOS, JUAN R. PEREZ-SANTOS, SELVIN RIOS, NORIN TERUEL-RAPALO, and JHAN VALENTIN, individually, and on behalf of all similarly situated persons, v. AEI PAINTING CONTRACTORS, LLC, and CHAD SKINNER, individually, Case No. 1:20-cv-00550-AT (N.D. Ga.), the Plaintiff German Perez-Santos, along with 16 other Painters who have joined this lawsuit as Opt-in Plaintiffs move this Court for an order: 1. conditionally certifying a putative class of Painters employed by Defendants AEI Painting Contractors, LLC and Chad Skinner; 2. authorizing them 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 AEI Painting to provide Plaintiffs' counsel with contact information for the putative collective class to facilitate notice and so that additional Painters can be promptly notified of their right to participate in this lawsuit; and 4. approving the form of notice to the putative collective class. The Court should grant conditional certification because Plaintiffs meet the lenient standard of showing that they are similarly situated to other Painters in their job requirements and pay provisions, and there are other putative collective class members who would join this lawsuit if they received notice, says the complaint. A copy of the Plaintiffs' motion to certify class dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3nVzUNI at no extra charge.[CC] Attorneys for Plaintiffs and Collective Action Members, are: Randall D. Grayson, Esq. DELCAMPO & GRAYSON, LLC 5455 Chamblee Dunwoody Road Atlanta, GA 30338 Telephone: (770) 481-0444 Facsimile: (770) 395-0806 E-mail: rgrayson@dcglawfirm.com The Defendants are represented by J. Daniel Cole, Esq. Dustin Crawford, Esq. PARKS, CHESIN & WALBERT, P.C. 75 14th Street, 26th Floor Atlanta, GA 30309 E-mail: dcole@pcwlawfirm.com dcrawford@pcwlawfirm.com AFTRA RETIREMENT: Fails to Secure Consumers' Info, A.A. Claims -------------------------------------------------------------- A.A., a minor, by and through his natural parent, STEVE ALTES, PAUL BRIGHT and BILLY CHOI, on behalf of themselves and all others similarly situated v. AFTRA RETIREMENT FUND, Case No. 1:20-cv-11119-UA (S.D.N.Y., Dec. 31, 2020) arises from AFTRA's failure to properly secure and safeguard personal identifiable information (PII) of the Plaintiffs and the class of consumers, including without limitation, names, Social Security numbers, addresses and dates of birth. On or about February 25, 2020, AFTRA notified the state Attorneys General and many of its fund participants about a widespread data breach involving sensitive PII of certain current and former plan members of the SAG-AFTRA Health Plan. According to the complaint, the PII was compromised due to AFTRA's negligent and/or careless acts and omissions and the failure to protect consumers' data. In addition to AFTRA's failure to prevent the Data Breach, AFTRA allegedly failed to provide timely notice to the affected participants: it took AFTRA four months to provide notice to the Health Plan members and over a year to notify the AFTRA Retirement Fund members. As a result of this delayed response, Plaintiffs and Class Members had no idea their PII had been compromised, and that they were, and continue to be, at significant risk to identity theft and various other forms of personal, social, and financial harm, the suit says. The Plaintiffs in this action were all participants of the AFTRA Retirement Fund, not the Health Plan, and were not notified about the Data Breach until on or about December 17, 2020. AFTRA Retirement Fund is a retirement fund with its principal place of business in New York City.[BN] The Plaintiffs are represented by: Amanda Peterson, Esq. MORGAN & MORGAN 90 Broad Street, Suite 1011 New York, NY 10004 Telephone: (212) 564-4568 E-mail: apeterson@ForThePeople.com - and - John A. Yanchunis, Esq. Ryan J. McGee, Esq. MORGAN & MORGAN 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@ForThePeople.com rmaxey@ForThePeople.com - and - M. Anderson Berry CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORP. 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 777-7777 E-mail: aberry@justice4you.com ALLEN BEARD: District Court Junks Jerome Woods' Class Action ------------------------------------------------------------- In the class action lawsuit captioned as JEROME WOODS v. J. ALLEN BEARD, Warden, Case No. : 0:20-cv-00151-DLB (E.D. Ky.), the Hon. Judge David L. Bunning entered an order: 1. directing the Clerk to substitute Warden J. Allen Beard as the sole respondent in this proceeding; 2. directing the Clerk to substitute inmate Jerome Woods as the sole petitioner in this proceeding; 3. denying Petitioner Woods's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. section 2241 4. dismissing and striking case from the Court's docket The Court said, "Woods's Petition also suggests a desire for this matter to proceed as a class action. However, he has not attempted to define the scope of the class or the claims encompassed within it, alleged or argued that his claims satisfy the requirements for class certification set forth in Federal Rule of Civil Procedure 23(a)(1)-(4), or identified the type of class action appropriate under Rule 23(b)(1)-(3). A pleading that fails to satisfy these criteria does not warrant class certification. See Wal-Mart v. Dukes, 564 U.S. 338, 350 (2011); Newsom v. Norris, 888 F. 2d 371, 381 (6th Cir. 1989). The Court will therefore direct that Woods be identified as the sole petitioner in this proceeding." A copy of the Court's memorandum, opinion and order dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3sN5hh8 at no extra charge.[CC] ALTA HOSPITALS: Aguilar Sues Over Unpaid Wages and Retaliation -------------------------------------------------------------- JACQUELINE AGUILAR v. ALTA HOSPITALS SYSTEM, LLC; ALTA LOS ANGELES HOSPITALS, INC.; and DOES 1 to 25, inclusive, Case No. 21STCV01482 (Cal. Super., Los Angeles Cty., Jan. 13, 2021) is brought on behalf of the Plaintiff and other similarly situated aggrieved employees due to the Defendants' alleged violations of the California Labor Code and the California Business and Professions Code. Ms. Aguilar contends that the Defendants failed to compensate her and other similarly situated aggrieved employees for all hours worked, failed to pay minimum wages and overtime compensation, failed to provide accurate wage statements, failed to pay wages owed every pay period, failed to maintain accurate records, failed to give meal and rest breaks, failed to pay wages when employment ends, failed to reimburse business expenses, and engaged in retaliation and wrongful constructive discharge. Ms. Aguilar started working for Alta Los Angeles on or May 13, 2019. Her employment with the Company ended on or around October 19, 2020. She was classified as an hourly, non-exempt employee. She initially started as a "Point of Care Coordinator" and was then promoted to "lab supervisor." Alta Hospitals System LLC provides healthcare services. The Company specializes in pediatric, obstetrics, gynecology, general surgery, orthopedic, outpatient, as well as skilled nursing and urgent care services.[BN] The Plaintiff is represented by: Harout Messrelian, Esq. MESSRELIAN LAW INC. 500 N. Central Ave., Suite 840 Glendale, CA 91203 Telephone: (818) 484-6531 Facsimile: (818) 956-1983 AMAZON.COM: Faces Class-Action Lawsuit Over Ebook Pricing --------------------------------------------------------- Arundhati Sarkar at Reuters reports that Amazon.com Inc was slapped with a class-action lawsuit accusing the e-commerce giant of inflating the prices of ebooks in collusion with some publishers. The lawsuit alleges that Amazon and the five largest U.S. publishers, collectively called the 'Big Five', agreed to price restraints that cause consumers to overpay for eBooks purchased from them through a retail platform other than Amazon.com. The lawsuit comes a day after Connecticut said it was investigating Amazon for potential anti-competitive behavior in its business selling digital books. Amazon declined to comment. About 90% of eBooks are sold through Amazon, the largest U.S. eBooks seller, the lawsuit claimed. Law firm Hagens Berman, bringing the case, in 2011 filed a similar lawsuit against Apple Inc and the 'Big Five' over ebook prices. [GN] AMERICAN SOCIETY: Baker Files Suit in Arizona --------------------------------------------- A class action lawsuit has been filed against American Society of Composers, Authors and Publishers, et al. The case is styled as Alexander C. Baker, All other similarly situated Songwriters; Adam Bravery LLC, All other similarly situated Royalty Assignees; v. American Society of Composers, Authors and Publishers also known as: ASCAP; Broadcast Music Incorporated also known as: BMI; Mike O'Neill; Erika Stallings; Unknown Parties named as Does 1-10; Case No. 4:21-cv-00022-RM (D. Ariz., Jan. 14, 2021). The nature of suit is stated as Other Civil Rights. The American Society of Composers, Authors, and Publishers -- https://www.ascap.com/ -- is an American not-for-profit performance-rights organization that protects its members' musical copyrights by monitoring public performances of their music, whether via a broadcast or live performance, and compensating them accordingly.[BN] The Plaintiffs are represented by: G Scott Sobel, Esq. LAW OFFICE OF G SCOTT SOBEL 1180 S Beverly Dr., Ste. 610 Los Angeles, CA 90035-1158 Phone: (310) 422-7067 Fax: (888) 863-5630 Email: gscottsobel@gmail.com ANNE ARUNDEL CCC: District of Maryland Dismisses Student C Suit --------------------------------------------------------------- The U.S. District Court for the District of Maryland granted the Defendant's motion to dismiss the lawsuit captioned STUDENT "C" v. ANNE ARUNDEL COUNTY COMMUNITY COLLEGE, Case No. SAG-20-1505 (D. Md.). Student "C" filed an Amended Complaint against Defendant Anne Arundel Community College ("AACC"), alleging breach of contract, violations of the Takings Clause of the United States Constitution, and deprivation of rights under the Maryland Declaration of Rights, and seeking monetary damages and declaratory and injunctive relief for himself and similarly situated individuals. AACC filed a Motion to Dismiss all counts under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and a Motion to Strike Plaintiff's class claims. The Plaintiff is a full-time student at AACC, who was enrolled in in-person classes during the Spring 2020 semester. In December 2019, the Plaintiff paid $1,386 in tuition and $175 in mandatory fees for the Spring 2020 semester. Due to the novel coronavirus pandemic, AACC suspended classes and closed the campus on March 14, 2020. Ten days of classes were cancelled and never rescheduled. Classes resumed remotely on April 5, 2020, but the Plaintiff and other students were not permitted back on campus for the remainder of the semester. The Plaintiff contends AACC should have refunded students, who paid tuition and fees for in-person classes but were subsequently barred from campus in March and forced to complete the semester online. The Plaintiff asserts AACC's failure to provide the promised in-person, on-campus educational experience amounts to a breach of contract and taking of private property without compensation, and seeks monetary damages and declaratory and injunctive relief for himself and similarly situated students. AACC first asserts that the Plaintiff's claims are barred by sovereign immunity. AACC further argues the Plaintiff's claims must otherwise be dismissed because he fails to plead a cause of action that is factually plausible and legally cognizable under Maryland law or the United States Constitution. Finally, AACC asserts that even if the Plaintiff were permitted to proceed in this action as an individual, this case does not meet the requirements of Rule 23 of the Federal Rules of Civil Procedure for a class action. The Court ultimately concludes the Plaintiff's breach of contract claims are barred by sovereign immunity and his remaining claims fail to state any cognizable cause of action against AACC. Alternatively, the Plaintiff claims AACC's decision not to refund tuition and fees due to the changes to the Spring 2020 semester constitutes an unlawful taking of private property under the United States Constitution and the Maryland Constitution. The Fifth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, bars the government from taking private property for public use, without just compensation. The Plaintiff separately seeks recovery under Article 24 of the Maryland Declaration of Rights. Article 24 is the Maryland analog to the Fourteenth Amendment and prohibits the government from, among other acts, taking one's property without due process, citing Ellis v. McKenzie, 457 Md. 323, 332 (2018). The Plaintiff readily admits that his dispute with AACC is in its essence a dispute between a proprietor and a consumer and AACC's failure to refund tuition and fees for the Spring 2020 semester was a business act, the decision of a proprietor. District Judge Stephanie A. Gallagher notes that the only potential property interests the Plaintiff identifies are those voluntarily created by contract. The Takings Clause, however, was not meant to protect property owners in their voluntary dealings with the government, the Judge says, citing Arthur E. Selnick Assocs., Inc. v. Howard Cnty. Md., 206 Md. App. 667, 702-03 (2012). Thus, the Plaintiff cannot base his takings claim on his purported contract rights to in-person instruction and an on-campus experience. Judge Gallagher also notes that even if no contract existed between the Plaintiff and AACC, the Plaintiff's takings claims would still be incognizable since he has alleged no other taking of his property. The only property AACC acquired from the Plaintiff was $1,561 for tuition and fees. Once the Plaintiff voluntarily paid AACC to register for classes, he transferred any property interest in those specific funds to AACC, who rightfully accepted payment before the semester began. Nothing in the Amended Complaint suggests that the Plaintiff's "AACC account" is a trust or escrow account in which he retains any interest in the funds. Thus, the Plaintiff's claim that he has a property interest in the monies he paid amounts to nothing more than a claim that he has an interest in receiving the benefit of his bargain. These funds were freely given by the Plaintiff and not seized by the government, and, thus, cannot be the basis for a takings claim, Judge Gallagher opines. Because the Plaintiff has identified no private property interest that can support his takings and deprivation of rights claims, Counts V, VI, IX, and X will be dismissed. For the reasons set forth in the Court's Memorandum Opinion, the Plaintiff's Contract claims in Counts I and II, Takings claims in Counts V and VI, and Deprivation of Rights claims in Counts IX and X are dismissed without prejudice. Because he has stated no valid substantive claim, the Plaintiff's requests for declaratory and injunctive relief, Counts VII and VIII, are also dismissed. Therefore, AACC's Motion to Dismiss is granted, and AACC's Motion to Strike is denied as moot. The case will be closed, subject to reopening if the Plaintiff seeks leave to amend within 30 days of the date of the Court's Opinion. A full-text copy of the Court's Memorandum Opinion dated Jan. 11, 2021, is available at https://tinyurl.com/y27b6oxz from Leagle.com. AVALANCHE CONSTRUCTION: Denied Workers Overtime Pay, Breaks ----------------------------------------------------------- Elvis Martinez and Ernesto Vera, on behalf of themselves and all others similarly situated, Plaintiffs, v. Avalanche Construction Group Inc, A&P Quality Construction Inc., Trident General Contracting LLC, and Artur Wilk, Defendants, Case No. 20-cv-11065 (S.D. N.Y. December 30, 2020), seeks unpaid wages and unpaid overtime wages in violation of the Fair Labor Standards Act and New York labor law. Defendants are engaged in various commercial and residential construction in and/or around New York City, primarily in Manhattan. Plaintiffs are all construction workers involved in demolition, bricklaying, scaffolding and cement work. According to the complaint, the Defendants would require Plaintiffs to clean up and remove debris from the job sites, requiring an additional 30 minutes or so of work. Their Saturday work usually involved an extra 30 minutes per day. They regularly worked a minimum of 9 hours per day Monday through Friday. However, they were not given uninterrupted meal breaks of thirty minutes. Defendants also regularly shaved hours off of their total hours worked per week. Plaintiffs were also denied one and one-half times their regular hourly rate of pay for the hours they worked in excess of forty hours per week and Defendants failed to keep accurate and sufficient time records, the complaint adds. [BN] Plaintiff is represented by: David Harrison, Esq. HARRISON, HARRISON & ASSOCIATES 110 State Highway 35, 2nd Floor Red Bank, NJ 07701 Tel: (718) 799-9111 Fax: (718) 799-9171 Email: dharrison@nynjemploymentlaw.com BABY BREZZA: Rules Tolling Reply Deadline in Borgese Suit Confirmed ------------------------------------------------------------------- In the case, JON BORGESE, Individually and as Guardian of LB., and on Behalf of All Others Similarly Situated, Plaintiffs, v. BABY BREZZA ENTERPRISES LLC; THE BETESH GROUP; and THE BETESH GROUP HOLDING CORPORATION, INC., Defendants, Case No. 20 Civ. 1180 (VM) (S.D. N.Y.), Judge Victor Marrero of the U.S. District Court for the Southern District of New York confirmed that Rule II(B) of the Court's Individual Rules of Practice tolls the deadline to answer or otherwise respond to the Complaint upon submission of pre-motion letters. The Complaint in the putative class action was filed on Feb. 12, 2020. Pursuant to the Court's Individual Rules of Practice, the counsel for the Defendants submitted a pre-motion letter to dismiss the Complaint via e-mail to chambers on April 23, 2020. The Plaintiff submitted a responsive letter via e-mail to chambers on April 30, 2020. Since then, the parties have filed several joint stipulations extending the time to answer or otherwise reply to the Complaint. A full-text copy of the Court's Jan. 12, 2021 Order is available at https://tinyurl.com/y59pwzsf from Leagle.com. BANKERS TRUST: Suit Seeks Initial Approval of Settlement Deal ------------------------------------------------------------- In the class action lawsuit captioned as SHELA M. BLACKWELL and JO ANN BATTIESTE, on behalf of the Sta-Home Health & Hospice, Inc. Employee Stock Ownership Plan, and on behalf of a class of all other persons similarly situated, v. BANKERS TRUST COMPANY OF SOUTH DAKOTA, a South Dakota Limited Liability Corporation, Case No. 3:18-cv-00141-KHJ-FKB (S.D. Miss.), the Plaintiffs ask the Court to enter an order: a. granting preliminary approval of the Settlement Agreement; -- The Parties have settled this Employee Retirement Income Security Act (ERISA) class action for a payment of $5,000,000. b. certify the Settlement Class for settlement purposes, defined as: "All persons who, at any time, were vested participants in the StaHome Health & Hospice, Inc. Employee Stock Ownership Plan and the beneficiaries of such participants." -- Excluded from the Settlement Class are the Selling Shareholders and their immediate families, the directors of Sta-Home (other than non-Selling Shareholder directors who were employees of Sta-Home), and legal representatives, successors, and assigns of any such excluded persons. c. appointing the Plaintiffs as Class Representatives; d. appointing their Counsel as Class Counsel; e. approving the proposed Class Notice; f. appointing CPT as the Settlement Administrator; g. approving the Plan of Allocation; h. appointing CPT as Escrow Agent; and i. setting a date for a Fairness Hearing. This is a proposed class action brought on behalf of participants and beneficiaries of the Sta-Home Health & Hospice, Inc. Employee Stock Ownership Plan (Plan). The Complaint alleges that the Defendant, Bankers Trust, in its capacity as trustee, violated ERISA in connection with the purchase of shares of Sta-Home Health & Hospice, Inc. (Sta-Hom) common stock by the Plan in 2014 (the ESOP Transaction). Specifically, the Plaintiffs allege that Bankers Trust violated ERISA section 406, 29 U.S.C. section 1106, because it engaged in a prohibited transaction under ERISA by causing the Plan to purchase the shares of Sta-Home stock, causing the Plan to borrow money from StaHome for that purchase, acting for the benefit of Sta-Home and its shareholders who sold their shares by approving a purchase price for Sta-Home stock that exceeded its fair market value, and receiving payment from Sta-Home for serving as trustee on behalf of the Plan. Bankers Trust denies these allegations; denies any wrongdoing or liability; and has vigorously defended itself in this Lawsuit. Bankers Trust does not admit wrongdoing of any kind regarding the ESOP Transaction or this Lawsuit. A copy of the plaintiffs' unopposed motion for preliminary approval of settlement dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/38Uz7bq at no extra charge.[CC] The Plaintiffs are represented by: Gregory Porter, Esq. Ryan T. Jenny, Esq. Patrick O. Muench, Esq. BAILEY & GLASSER LLP 1055 Thomas Jefferson Street NW, Suite 540 Washington, DC 20007 Telephone: (202) 463-2101 Facsimile: (202) 463-2103 E-mail: gporter@baileyglasser.com rjenny@baileyglasser.com pmuench@baileyglasser.com - and - W. Eric Stracener, Esq. W. Andrew Neely, Esq. STRACENER & NEELY PLLC 304 N. Congress St. Jackson, MS 39201 Telephone: (601) 206-0885 E-mail: eric@sn-law.net andrew@sn-law.net BAXTER INT'L: Securities Class Suit Dismissed Without Prejudice --------------------------------------------------------------- In the case, IN RE BAXTER INTERNATIONAL INC. SECURITIES LITIGATION, Case No. 19 C 7786 (N.D. Ill.), Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendants' motion to dismiss and their motion to consider the exhibits attached to their motion to dismiss. An individual shareholder brought the putative securities class action lawsuit on behalf of himself and all others who purchased or acquired common stock in Baxter from Feb. 21, 2019, through Oct. 23, 2019, alleging that Baxter and certain of its officers engaged in federal securities fraud. After the Court appointed putative class members Varma Mutual Pension Insurance Co. and Louisiana Municipal Police Employees' Retirement System ("LAMPERS") as the Lead Plaintiffs, they filed an amended complaint, in which they allege that Defendants Baxter, Jose Almeida, and James Saccaro violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934, codified at 15 U.S.C. Sections 78j(b) and 78t(a), and SEC Rule 10b-5, 17 C.F.R. Section 240.10b-5. Varma is based in Finland and manages the pension savings for approximately 900,000 Finns. LAMPERS is a statewide retirement system that provides retirement, disability, and survivor benefits to full-time police officers in Louisiana and their families. During the Class Period, Varma and LAMPERS last purchased Baxter stock on September 17, 2019, and October 23, 2019, respectively. Baxter is a Delaware corporation that maintains its principal executive offices in Deerfield, Illinois. It develops, manufactures, and sells a variety of renal and hospital products. Although Baxter is a U.S.-based company, it has substantial global operations and derives significant revenues from outside the United States. Baxter manufactures products in more than twenty countries and has operations in Europe, the Middle East, Africa, Asia, Latin America, and Canada. It also sells its products in more than 100 countries. From 2017 through 2019, Baxter generated more than $33 billion in total sales, with just shy of $19 billion of those sales (57.5%) coming from outside the United States. Baxter's common stock trades on the New York Stock Exchange. Almeida joined Baxter as an executive officer in October 2015 and has served as Baxter's Chairman, President, and CEO since January 2016. Saccaro served as Baxter's Corporate Vice President and CFO during the Class Period and as Baxter's Corporate Vice President and Treasurer from 2011 to 2013. The Lead Plaintiffs allege that from January 2019 through July 2019, the Defendants made a series of false and misleading statements or omissions regarding Baxter's income and other key financial metrics related to FX rate fluctuations, its compliance with Generally Accepted Accounting Principles ("GAAP"), and the adequacy and effectiveness of its internal controls over financial reporting. On Oct. 24, 2019 (the day after the end of the Class Period), Baxter announced in a press release issued before the market opened that it had recently begun investigating certain intra-company transactions that had been undertaken to generate foreign exchange gains or losses. These Transactions "used a foreign exchange rate convention historically applied by" Baxter--the FX Convention--that was not in accordance with generally accepted accounting principles and that enabled the Transactions to be undertaken after the related exchange rates were already known. The material weakness in its internal controls also resulted in Baxter restating its consolidated financial statements and other financial data for certain time periods ("Restatement"). Baxter's Restatement showed that in at least 2017 and 2018, it had overstated its foreign exchange gains, which led to an overstatement of its non-operating income, which led to an overstatement of its net income--"the bottom line"--which led to overstating Baxter's reported retained earnings and EPS. From 2017 through 2019, Almeida received approximately $18.7 million in Baxter stock and $15.2 million in Baxter stock options under Baxter's "Long Term Incentive Program" and approximately $7.2 million in cash bonuses under Baxter's "Annual Incentive Program." Over the same time frame, Saccaro received approximately $9.2 million in stock, $3.8 million in stock options, and $2.5 million in cash bonuses under the same programs. This compensation was based, at least in part, on financial metrics that were artificially inflated by Baxter's use of the FX Convention to manufacture FX gains and avoid losses. After the Restatement, however, Baxter recouped $1.1 million from Almeida's 2019 cash bonus and just over $500,000 from Saccaro's 2019 cash bonus to conform their bonuses paid for 2015 through 2018 to the performance Baxter actually achieved. Baxter further reduced Saccaro's 2019 cash bonus by nearly $165,000 to account for the Restatement and the material weakness in Baxter's internal controls over financial reporting. As a result of these reductions, Saccaro received no cash bonus for 2019. The Lead Plaintiffs' amended complaint sets forth two claims. First, they allege that all Defendants--Baxter, Almeida, and Saccaro--have violated Section 10(b) of the Exchange Act and SEC Rule 10b-5 by engaging in misconduct that artificially inflated the price of Baxter's common stock and maintained the artificially inflated prices, caused the Lead Plaintiffs and the other class members to purchase the stock at artificially inflated prices, and then concealed Baxter's true condition from the investing public ("Section 10(b) claim"). Second, they seek to hold Almeida and Saccaro individually liable under Section 20(a) of the Exchange Act as "controlling persons" of Baxter ("Section 20(a) claim"). The Defendants move to dismiss the amended complaint. They also move to have the Court consider exhibits they attach to their motion to dismiss based on the incorporation-by-reference doctrine or judicial notice. The Lead Plaintiffs do not oppose the Defendants' request for consideration of their exhibits, and the Court may take judicial notice of or otherwise consider these exhibits in deciding the Defendants' motion to dismiss, so Judge Ellis grants the Defendants' motion to consider their exhibits. And because the Lead Plaintiffs have failed to allege facts that give rise to a strong inference of scienter on the part of any Defendant, the Judge grants the Defendants' motion to dismiss. The dismissal, however, is without prejudice. First, the Judge considers whether the Lead Plaintiffs have sufficiently pleaded Almeida's and Saccaro's scienter. Then, she addresses whether the Lead Plaintiffs have sufficiently pleaded Baxter's scienter. Looking collectively at all the alleged facts discussed above, the Court concludes that Lead Plaintiffs have failed to plead facts giving rise to a strong inference of scienter on either Almeida's or Saccaro's part. Notably missing from the Lead Plaintiffs' amended complaint, according to the Judge, are particularized factual allegations suggesting that when they made their challenged statements between January 2019 and July 2019, Almeida or Saccaro knew that Baxter's FX Convention did not comply with GAAP, that individuals at Baxter were using the FX Convention to execute the Transactions, or that Baxter's internal controls were inadequate and ineffective. Nor does the amended complaint provide factual allegations from which the Court can reasonably infer that Almeida or Saccaro were aware of (but disregarded) other information that would give them a reason to know about these problems. Ultimately, the Judge opines that an inference of scienter is not as compelling as the inference that Almeida and Saccaro did not discover and were not reckless in failing to discover any of these issues until at least Baxter initiated its internal investigation in October 2019, which was after they made their allegedly false and misleading statements. Accordingly, she dismisses the Lead Plaintiffs' Section 10(b) claims against Almeida and Saccaro. The Judge cannot infer Baxter's scienter based on the states of mind of Almeida, Saccaro, or Bohaboy, and the Lead Plaintiffs' amended complaint does not otherwise set forth allegations from which the Court can infer corporate scienter based on unidentified Baxter corporate officials. Thus, she also dismisses the Lead Plaintiffs' Section 10(b) claim against Baxter. The Lead Plaintiffs' second claim alleges that Almeida and Saccaro violated Section 20(a) of the Exchange Act as "controlling persons" of Baxter. Because the Lead Plaintiffs have failed to adequately plead their Section 10(b) claims, the Judge dismisses the Lead Plaintiffs' Section 20(a) claims as well. For the foregoing reasons, Judge Ellis grants the Defendants' motion to dismiss and the Defendants' motion to consider the exhibits attached to their motion to dismiss. She also directs the Clerk to remove Brian C. Stevens as a Defendant from the Court's docket for this case. Because it is the Court's first dismissal of the Lead Plaintiffs' complaint, the dismissal is without prejudice. The Judge gives the Lead Plaintiffs 21 days to amend their amended complaint if they can do so consistent with Federal Rule of Civil Procedure 11 and her Opinion. A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is available at https://tinyurl.com/yyx2eusp from Leagle.com. BAYER CROPSCIENCE: Monopolizes Crop Input Market, Piper Suit Says ----------------------------------------------------------------- Margy Eckelkamp at agweb.com reports that a class action complaint was filed in the U.S. District Court for the Southern District of Illinois by a farmer's widow on behalf of his estate. In summary, the lawsuit alleges crop input manufacturers, large wholesalers and retailers have created an unfair market for farmers. The plaintiff is Barbara Piper, the executor of the estate of her husband, Michael Piper, who died in 2017. Michael, who went by Mike, was a farmer in Mount Vernon, Ill. He grew row crops and was involved in competitive tractor pulling. Claims include: "The existing distribution process maintains supracompetitive crop input prices by denying farmers accurate product information, including pricing information." The complaint names as defendants: -- Bayer Cropscience -- Corteva -- BASF Corporation -- Syngenta Corporation -- Cargill Incorporated -- Winfield Solutions -- Univar Solutions -- Federated Co-Operatives Limited -- CHS Inc. -- Nutrien Ag Solutions -- Growmark Inc. -- Simplot -- Tenkoz The complaint gives as an example Piper's purchase of Liberty herbicide from Gateway FS, a retail outlet of Growmark. The company provided this statement: "We are aware of the lawsuit filed against a number of organizations including Growmark. It is Growmark's policy not to comment on pending litigation." The filing also alleges the suppliers, distributors and retailers coordinated and cooperated together to limit the opportunity of new entrants in the space, namely electronic platforms Farmers Business Network and AgVend. However, AgVend offered this statement: "AgVend has no part in the [Piper v Bayer] lawsuit and we are exploring every legal avenue to remove references to AgVend from it. Not only are we inaccurately represented, we categorically deny all allegations pertaining to AgVend in the lawsuit. On the contrary, we have long-standing partnerships with many of the defendants and we fully support the work they do to serve the American Grower." FBN provided this statement: "FBN is not a party to this suit and therefore has no comment." The plaintiff is seeking a jury trial. Here are statements from the named defendants: BASF: "BASF is aware of the lawsuit filed last Friday alleging that BASF and certain other manufacturers, distributors, and retailers of crop inputs violated antitrust laws. BASF strongly disagrees with the allegations in the lawsuit and intends to defend itself vigorously. Most importantly, BASF is committed to a fair and competitive marketplace that provides access for farmers to the critical products they need." Bayer: "We have not been served with the complaint and will review it in due course. Based on information in published reports, we believe the markets identified in this action are competitive, and the complaint has no merit." CHS: "We are aware of the lawsuit filed against a number of agriculture companies including CHS. It is company policy not to comment on pending litigation." Corteva: "We are aware of the filing of a lawsuit filed in the U.S. District Court for the Southern District of Illinois involving allegations relating to the manner in which several agricultural industry members marketed and sold products. Corteva believes that the allegations are factually and legally unsupported and will vigorously defend the case." Federated Co-operatives: "We do not provide comments on active court or legal proceedings, so we'll have to respectfully decline this opportunity to comment. Land O' Lakes: "We are aware that a lawsuit has been filed against Winfield Solutions and numerous other agribusinesses. Although we generally do not comment on pending litigation, we want to make our priorities clear: as a 100-year old farmer owned cooperative, we operate our business in strict compliance with applicable law and we always put our farmer-owners first. We will continue to do so in vigorously defending this lawsuit." Syngenta: "Syngenta is dedicated to the support and success of our customers, and we will vigorously defend any allegations that our actions have been improper or illegal." This story will be updated as more information becomes available. AgWeb editors have reached out to the legal counsel for comment. Sonja Begemann contributed to this article. [GN] BCBSM INC: Bid for Class Certification Tossed in J.P. ERISA Suit ---------------------------------------------------------------- In the class action lawsuit captioned as J.P. and M.K., individually and on behalf of all others similarly situated, v. BCBSM, Inc. d/b/a Blue Cross and Blue Shield of Minnesota, Case No. 0:18-cv-03472-MJD-DTS (D. Minn.), the Hon. Judge Michael J. Davis entered an order denying the Plaintiffs' Motion for Class Certification of: "all persons who are covered under any Employee Retirement Income Security Act of 1974 (ERISA)-governed health benefit plan insured and/or administered by Blue Cross against whom Blue Cross offset covered charges based on the following language found in the Blue Cross plan and/or certificate of coverage and/or summary plan description: "Payments made in error or overpayments may be recovered by the Claims Administrator as provided by law." Blue Cross has identified 221 persons who have the same Payments Made in Error Term in their SPDs and against whom Blue Cross may have recovered an overpayment by not issuing a check on a later claim. Collectively, Blue Cross has withheld payment of $275,965.00, out of the $378,841.78 it has overpaid. Of those 221 persons, 51 participate in Medtronic, Inc.'s ERISA plan, participate in Cargill, Incorporated's ERISA plan, and 2 participate in The Travelers Indemnity Company's ERISA plan. For those 63 members, Blue Cross withheld $115,001.38. In addition to those plan members, the proposed class includes participants in 81 other ERISA plans, for a total of 84 separate ERISA plans. The Court holds that the Plaintiffs cannot show that they are typical and adequate class representatives because they are subject to major and unique defenses. The Court also holds that class certification is inappropriate based on a lack of commonality and typicality. The Court concludes that the Plaintiffs cannot meet the Rule 23(a) requirements for class certification. Bolton & Menk, Inc. self-insures an ERISA health benefit plan that it offers to its employees and hired Defendant BCBSM, Inc. to administer the plan. Plaintiff J.P. is an employee of Bolton & Menk, Inc. and is covered under the plan as the subscriber or contract holder. J.P.'s wife, M.K., and his daughter, L.P., are also covered under the plan as beneficiaries. A copy of the Court's memorandum of law & order dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3oXCYtL at no extra charge.[CC] Counsel for the Plaintiffs, are: Charles N. Nauen, Esq. Susan E. Ellingstad, Esq. David W. Asp, Esq. Jennifer L. M. Jacobs, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 S Washington Ave No. 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 - and - Jordan Lewis, Esq. JORDAN LEWIS, P.A. 4473 N.E. 11th Avenue Fort Lauderdale, FL 33334 Telephone: (954) 616-8995 Cell: (612) 559-3660 Facsimile: (954) 206-0374 E-mail: jordan@jml-lawfirm.com Counsel for the Defendant. Joel Allan Mintzer, Esq. Doreen A. Mohs, Esq. BLUE CROSS AND BLUE SHIELD OF MINNESOTA - and - David M. Wilk, Esq. LARSON KING, LLP Wells Fargo Place 30 E 7th St No. 2800 St Paul, MN 55101 Telephone: (651) 312-6500 BEMIS CO: New York Court Dismisses Securities Suit With Prejudice ----------------------------------------------------------------- Judge John P. Cronan of the U.S. District Court for the Southern District of New York dismissed the case, IN RE: BEMIS CO. SECURITIES LITIGATION, Case No. 19 Civ. 3356 (JPC) (S.D.N.Y.), with prejudice. The Defendants have moved to dismiss the Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Lead Plaintiff Michael Dixon brings the putative class action against Defendants Bemis and the members of Bemis's Board of Directors, contending that Defendants disseminated a materially false and misleading Definitive Proxy Statement in violation of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, and Securities and Exchange Commission ("SEC") Rule 14a-9. The case arises out of statements contained in the Proxy, whose purpose was to solicit votes from Bemis shareholders in favor of a merger between Bemis and Amcor Limited. That merger, which was ultimately approved by Bemis shareholders, resulted in the creation of New Amcor. The Plaintiff filed his original complaint on April 15, 2019. On March 10, 2020, Judge Paul G. Gardephe, to whom the case was previously assigned, consolidated the case with Stein v. Bemis Company Inc., No. 19 Civ. 3412 (PGG) (S.D.N.Y.) pursuant to Federal Rule of Civil Procedure 42(a), and appointed Dixon as the Lead Plaintiff. Approximately two months later, on May 11, 2020, the Plaintiff filed the Amended Complaint on behalf of all Bemis stockholders entitled to vote on the proposal to approve the Transaction and whose Bemis common stock was exchanged for 5.1 New Amcor shares in connection with the Transaction. The Plaintiff's Amended Complaint alleges two counts. Count One alleges that the Proxy disseminated by the Defendants "failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not materially false and misleading," in violation of Section 14(a) of the Exchange Act and SEC Rule 14a-9 promulgated thereunder. The Plaintiff alleges that the Proxy omitted material facts "about the synergies projected to be achieved pursuant to the Transaction and Goldman's potential conflict of interest." Specifically, the Plaintiff alleges that the Proxy was false and misleading because it was silent to the most important facts concerning the basis and formulation of the Net Synergies, including: (1) the assumptions and methodologies underlying the projected Net Synergies; (2) the specific role, if any, played by Bemis management, the Defendants, or Bemis' financial advisor Goldman in the development and calculation of the projected Net Synergies; and (3) the identity and role played by Amcor's 'third-party' consultant in the development and calculation of the projected Net Synergies. The Plaintiff further alleges that two declarations in the Proxy were materially false and misleading because the Net Synergies reflect Amcor's, not the Defendants', estimates and judgments: (1) that the projected Net Synergies had been reasonably prepared on a basis reflecting the best currently available estimates and judgments of management of Bemis, and (2) that shareholders would benefit from the net cost synergies expected to result from the transaction, which are projected to be at least $180 million annually (on a pre-tax basis) by the end of New Amcor's third fiscal year. Count Two alleges that the individual Defendants, i.e., the members of Bemis' Board, are liable under Section 20(a) of the Exchange Act as controlling persons of Bemis, because they had the ability to and did exercise control over persons who violated Section 14(a) and SEC Rule 14a-9. The Defendants have moved to dismiss the Amended Complaint, contending that it fails to state a Section 14(a) claim by not alleging (1) a false or misleading statement or omission and, alternatively, (2) loss causation. Since the Section 20 claim is derivative of the Section 14(a) claim, the Defendants argue that claim must be dismissed as well. The Court heard oral argument on the Motion to Dismiss on Dec. 8, 2020. In his Opposition to the Motion to Dismiss Count I, the Plaintiff alleges new facts not alleged in the Amended Complaint and appears to advance new legal theories of liability. He now claims the Proxy was false and misleading because: (1) it fails to disclose a pre-existing set of material projections (the Bemis Net Synergies) that differ from those disclosed in the Proxy; (2) it fails to disclose the basis, assumptions and rationale for the creation of Bemis Net Synergies; (3) it contains misleading statements concerning the basis for Bemis management's revising and abandoning the Bemis Net Synergy projections;" and (4) it contains misleading statements concerning Bemis' Management's opinion of and belief in the substance of the Net Synergy Projections. First, Judge Cronan holds that the Proxy's forward-looking statements regarding the Net Synergies were forward-looking and are covered by the PSLRA's safe harbor provision. Although the Plaintiff disclaims any intent to attack the substance of the predictions, his motion papers demonstrate that he is, at least in part, challenging the Board's adoption of the Net Synergies as the best predictive measure. It is exactly what the safe harbor provision protects. Second, when viewed under the proper standard, the Judge finds that it is clear that the Plaintiff has pointed to no material facts that were omitted from the Proxy that would render it false or misleading. The Plaintiff does not point to any relevant SEC regulation requiring disclosure of additional information not disclosed in the Proxy, but instead broadly contends that any misstatement or omission regarding those Net Synergy Projections is material as a matter of law. But that is not the law. Third, even if the Plaintiff had managed to allege an omission, his claim that the Proxy's statement reflecting the Board's faith in the Net Synergies was misleading would fail for another reason: It is a protected statement of opinion, the Judge opines. There are no facts pleaded in the Amended Complaint that allow for an inference that these predictions were not shared by the Board, but only speculation that Bemis "capitulated" to Amcor's estimates to "make the Transaction more appealing." Fourth, there is nothing in the Plaintiff's Amended Complaint--or his Opposition--that adequately alleges that the Board omitted information that made their opinion statements false or misleading. There are simply no analogous facts in the Plaintiff's Amended Complaint or his Opposition. Instead, the opinion statements that he highlights in the Bemis Proxy were clearly forward-looking statements expressing a belief that the projections used were based on the best metrics available. Such statements are not actionable. Finally, the Judge finds it clear that the Proxy provided significant, comprehensive disclosure of the potential conflicts of interest that Goldman faced. The requirement that a company disclose potential conflicts of interest is designed to warn "stockholders to give more careful scrutiny to the terms of the merger than they might to one recommended by an entirely disinterested" Thus, while full disclosure of potential conflicts of interest is required, the Proxy did just that when it disclosed Goldman's potential conflict. The shareholders were on notice of that potential conflict of interest and what it entailed, and the Plaintiff fails to allege how any additional disclosures were required. In sum, the Judge holds that the Plaintiff fails to state a Section 14(a) claim because the statements at issue are protected by the PSLRA's safe harbor provision; because the Plaintiff has not pleaded an actionable omission or opinion statement; and because the Proxy sufficiently disclosed Goldman's potential conflicts of interest. Because the Court finds that the Plaintiff fails to plead an underlying Section 14(a) violation, his Section 20(a) claim also fails. Accordingly, for the reasons he stated, Judge Cronan granted the Defendants' Motion to Dismiss, and dismissed the case with prejudice. The Clerk of the Court is respectfully directed to terminate the motion at Docket Number 22 and close the case. A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is available at https://tinyurl.com/y3yst9vv from Leagle.com. BLACKBAUD INC: Atwood Class Suit Transferred to D. South Carolina ----------------------------------------------------------------- The case styled as Heide M. Atwood, individually and on behalf of all others similarly situated v. Blackbaud Inc., Case No. 1:20-cv-01230, was transferred from the U.S. District Court for the Eastern District of Virginia to the U.S. District Court for the District of South Carolina on Dec. 31. 2020. The Clerk of Court for the District of South Carolina assigned Case No. 3:20-cv-04516-JMC to the proceeding. The case alleges breach of contract and is assigned to the Honorable Judge Michelle Childs. Blackbaud, Inc. provides software and related services designed specifically for non-profit organizations. The Company's products and services enable non-profit organizations to increase donations, reduce fundraising costs, improve communication with constituents, manage their finances, and optimize internal operations.[BN] The Plaintiff is represented by: David Hilton Wise, Esq. WISE AND DONAHUE PLC 10476 Armstrong Street Fairfax, VA 22030 Telephone: (703) 934-6377 Facsimile: (703) 934-6379 E-mail: dwise@wisedonahue.com - and - John Joseph Drudi, Esq. WISE LAW FIRM, PLC 10640 Page Avenue, Suite 320 Fairfax, VA 22030 Telephone: (703) 934-6377 Facsimile: (703) 934-6379 E-mail: jdrudi@wiselaw.pro The Defendant is represented by: David Neal Anthony, Esq. Ryan Joseph Strasser, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP Troutman Sanders Bldg., 1001 Haxall Point PO Box 1122 Richmond, VA 23219 Telephone: (804) 697-5410 Facsimile: (804) 698-5118 E-mail: david.anthony@troutman.com ryan.strasser@troutman.com BLACKBAUD INC: Mitchell Files Suit in D. South Carolina ------------------------------------------------------- A class action lawsuit has been filed against Blackbaud Inc. The case is styled as Alexandra L. Mitchell, individually and on behalf of all others similarly situated v. Blackbaud Inc., Case No. 3:21-cv-00145-JMC (D.S.C., Jan. 14, 2021). The nature of suit is stated as Other P.I. for Personal Injury. Blackbaud -- https://www.blackbaud.com/ -- is a cloud computing provider that serves the social good community--nonprofits, foundations, corporations, education institutions, healthcare organizations, religious organizations, and individual change agents.[BN] The Plaintiff is represented by: Charles Ross Heyl, Esq. Tammy Cauley Rivers, Esq. MOTLEY RICE (Ch) 28 Bridgeside Boulevard Charleston, SC 29403 Phone: (843) 216-9066 Email: rheyl@motleyrice.com tcrivers@motleyrice.com - and - Marlon E Kimpson, Esq. MOTLEY RICE PO Box 1792 Mt Pleasant, SC 29465 Phone: (843) 216-9000 Fax: (843) 216-9440 Email: mkimpson@motleyrice.com BOEING COMPANY: Wins Bid to Dismiss Christensen Negligence Suit --------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois grants the Defendant's motion to dismiss in the lawsuit titled SUSAN CHRISTENSEN, VICTORIA STILZ, WILLIAM EHLERS, CHEYENNE HAUSER, ANGELIKA KNOEBL, NATASHA HEIDLAGE, CASSIDY DEELY and GLENN LEE v. THE BOEING COMPANY, Case No. 20 C 1813 (N.D. Ill.). The named Plaintiffs, on behalf of themselves and all others similarly situated, have brought a six count putative class action complaint against the Defendant alleging fraud by non-disclosure, negligence, tortious interference with contractual rights and relationship, tortious interference with an existing business relationship, fraudulent misrepresentation, and negligent misrepresentation, in Counts I to VI respectively. The Plaintiffs are Southwest Airlines flight attendants. They seek lost wages and other damages that they and approximately 17,000 other Southwest flight attendants allegedly suffered as a result of the grounding in 2019 of the Defendant's 737 Max aircraft. The Plaintiffs allege that the Defendant made material misrepresentations to regulators, the Defendant's customers, including Southwest Airlines, and the public to circumvent the appropriate regulatory process and rush the aircraft into production and service. District Judge Robert W. Gettleman notes that the 72-page, 380-paragraph complaint is long on the details of the Defendant's problems with the aircraft since it first announced its launch in 2011, Southwest Airlines' order for 150 Max aircraft in late 2011, and its alleged efforts to hide the problems from the public. The complaint is short, however, on how the Defendant's efforts to hide the problems affected the individual plaintiffs, Judge Gettleman finds. The Defendant moved to dismiss all counts under Rules 12(b)(1), 12(b)(6), and 9(b) of the Federal Rules of Civil Procedure. In response, the Plaintiffs have withdrawn their claims for tortious interference with contract (Count III) and tortious interference with existing business relationship (Count IV). To survive such a motion, the complaint must allege sufficient facts that, if true, would raise a right to relief the speculative level, showing that the claim is plausible on its face. To be plausible on its face, the complaint must plead facts sufficient for the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. In addition, because Counts I and IV sound in fraud, they are also subject to the heightened requirements of Rule 9(b) of the Federal Rules of Civil Procedure, which provides that in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. The complaint must provide "the who, what, when, where, and how" of the alleged fraud, citing DiLeo v. Ernst & Young, 901 F. 2d 624, 627 (7th Cir. 1990). Judge Gettleman opines that the instant complaint fails as to both requirements. It fails to allege how the Defendant's alleged misrepresentations injured any of the named Plaintiffs in any way. As the Defendant argues, the Plaintiffs' claims rest on the allegation that as a group the Southwest Airlines Flight Attendants relied on certain misstatements made in 2012 and 2013 when, in June 2013 their union entered into a new Collective Bargaining Agreement ("CBA") with the airline in which the flight attendants agreed to "fly on and staff" the new aircraft. As the complaint makes clear, however, the negotiations and agreement occurred well before the Defendant had even achieved a firm design configuration and more than a year before it began ground testing of the engine. Nothing in the complaint suggests that the alleged misrepresentations made in 2012 or 2013, caused any damage to any named plaintiff or the flight attendants as a group. And, to the extent that the claims rely on the CBA, they cannot be based on alleged misrepresentations made after the agreement was entered, Judge Gettleman holds. The Plaintiffs have also failed to adequately allege legal causation, as their alleged injuries (lost compensation) are far too remote from the Defendant's alleged misconduct. The Plaintiffs do not, of course, allege any connection to the two air crashes of the 737 MAX. Instead, their claims are of the nature of a third party who suffers no physical damage to person or property, but who claims harm as a result of injury to the person or property of another. Consequently, the Court concludes that the Plaintiffs have failed to allege proximate cause. There are, as well, other problems with the complaint, Judge Gettleman says. Count I attempts to allege a claim for fraud by non-disclosure. Additionally, to assert a claim based on a fraudulent omission, the Plaintiffs must allege the existence of a special or fiduciary relationship that would raise a duty to speak. They have failed to plausibly do so, alleging only that the Defendant's position in the commercial airline industry gives rise to a special or fiduciary duty to the Plaintiffs. Judge Gettleman points out that this allegation is deficient. A seller of an aircraft does not share a confidential of fiduciary relationship with the purchaser, even if the seller possesses superior knowledge of the aircraft. Because the Defendant did not have such a relationship with its customer, Southwest Airlines, it did not have such a relationship with its customers' employees. The Plaintiffs' negligence and negligent misrepresentation claims are barred by Illinois' version of the economic loss doctrine, Judge Gettleman opines, among other things. In Illinois it is well settled that a plaintiff cannot recover for solely economic loss under a negligence theory, except for certain exceptions. Judge Gettleman holds that none of these exceptions apply to the Plaintiffs' negligence and negligent misrepresentation claims. First, the Plaintiffs do not allege that they sustained damages in connection with personal injury or property damage. Next, their negligence and negligent misrepresentation claims do not allege intentional misrepresentations. Finally, they do not allege and the Defendant in is not in the business of supplying information for the guidance of others in their business dealings. It is in the business of supplying a tangible product. Consequently, the Plaintiffs' negligence and negligent misrepresentations claims (Counts II and VI) fail to state plausible claims. Hence, the Defendant's motion to dismiss is granted. A full-text copy of the Court's Memorandum Opinion and Order dated Jan. 11, 2021, is available at https://tinyurl.com/y5uq8ubm from Leagle.com. BORAL LIMITED: Faruqi & Faruqi Announces Securities Class Action ---------------------------------------------------------------- Faruqi & Faruqi, LLP, a leading minority and certified woman-owned national securities law firm, is investigating potential claims against Boral Limited ("Boral" or the "Company") (OTC Pink: BOALY). If you suffered losses exceeding $50,000 investing in Boral stock or options and would like to discuss your legal rights, click here: www.faruqilaw.com/BOALY or call Faruqi & Faruqi partner James Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). On December 5, 2019, Boral revealed that it identified financial irregularities in its North American window business, involving the misreporting of inventory levels and raw material and labor cost at the window plants, and was conducting an internal investigation into the matter. Then, on February 9, 2020, Boral revealed that its investigation found inflated earnings at its North American window-making business and announced that the Company had fired the division's vice president of finance and financial controller. On this news, the Company's stock price fell from $13.80 per share on February 7, 2020 to $12.72 per share on February 10, 2020: a $1.08 or 7.83% drop. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. [GN] CD PROJEKT: Pomerantz Law Announces Securities Class Action ----------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against CD Projekt S.A. ("CD Projekt" or the "Company") (OTCMKTS: OTGLF; OTGLY) and certain of its officers. The class action, filed in the United States District Court for the Central District of California, and docketed under 21-cv-00354, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise, acquired CD Projekt securities between January 16, 2020 and December 17, 2020, inclusive (the "Class Period"). Plaintiff seeks to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder by the United States Securities and Exchange Commission, against the Company and certain of its top officials. If you are a shareholder who purchased CD Projekt securities during the Class Period, you have until February 22, 2021 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. [Click https://bit.ly/3o0G3rG for information about joining the class action] CD Projekt, through its subsidiaries, engages in the development and digital distribution of videogames worldwide. The Company operates through two segments: CD PROJEKT RED and GOG.com. The Company's product portfolio includes The Witcher; The Witcher 2: Assassins of Kings; The Witcher 3: Wild Hunt, Hearts of Stone games, and Blood and Wine; Thronebreaker: The Witcher Tales; Gwent: The Witcher Card game; and Cyberpunk 2077, as well as online multiplayer games. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements, and failed to disclose material adverse facts about the Company's business, operational, and compliance policies. Specifically, Defendants made false and/or misleading statements and failed to disclose to investors that: (i) Cyberpunk 2077 was virtually unplayable on the current-generation Xbox or Playstation systems due to an enormous number of bugs; (ii) as a result, Sony would remove Cyberpunk 2077 from the Playstation store, and Sony, Microsoft, and the Company would be forced to offer full refunds for the game; (iii) consequently, the Company would suffer reputational and pecuniary harm; and (iv) as a result, Defendants' statements about the Company's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. CD Projekt launched Cyberpunk 2077 on December 10, 2020. Consumers soon discovered that the current-generation console versions of Cyberpunk 2077 were error-laden and difficult to play. IGN published a scathing review, stating that the console versions "fail[] to hit even the lowest bar of technical quality one should expect even when playing on lower-end hardware. [Cyberpunk 2077] performs so poorly that it makes combat, driving, and what is otherwise a master craft of storytelling legitimately difficult to look at." On December 14, 2020, facing criticisms for delivering an unplayable, bug-ridden product on the current-generation consoles, the Company held a conference call. During the call, Defendant Adam Michal Kicinski called the current-generation console versions "way below our expectations". During that same call, Defendant Piotr Marcin Nielubowicz stated "we definitely did not spend enough time looking at that," when referring to issues with the current-generation console versions. Following the release, the Company's American Depository Receipt ("ADR") (OTGLY) price fell $6.93 per share, or 25%, over three trading days to close at $20.75 per share on December 14, 2020, damaging investors. Over that same period, CD Projekt's common share (OTGLF) price fell $21.65 per share, or 20.1%, to close at $86.00 per share on December 14, 2020, damaging investors. Then, on December 18, 2020, Sony issued a statement via the Playstation website that it would "offer a full refund for all gamers who have purchased Cyberpunk 2077 via PlayStation Store" and "be removing Cyberpunk 2077 from PlayStation Store until further notice." Microsoft also announced that it would offer refunds for the game. That same day, the Company stated that Sony's decision to "temporarily suspend" sales of the game came after a discussion with the Company. On this news, CD Projekt's ADR (OTGLY) price fell $3.49 per share, or 15.87%, to close at $18.50 per share on December 18, 2020, damaging investors. CD Projekt's common share (OTGLF) price fell $9.20 per share, or 10.45%, to close at $78.80 per share on December 18, 2020, damaging investors. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com. [GN] CHARTER COMMUNICATIONS: Wojtowicz Files Suit in Connecticut ----------------------------------------------------------- A class action lawsuit has been filed against Charter Communications, Inc. The case is styled as Hope Wojtowicz, on behalf of herself and all others similarly situated v. Charter Communications, Inc., Case No. 3:21-cv-00061-JAM (D. Conn., Jan. 15, 2021). The nature of suit is stated as Other Contract for Breach of Contract. Charter Communications, Inc. -- https://corporate.charter.com/ -- is an American telecommunications and mass media company with services branded as Charter Spectrum.[BN] The Plaintiff is represented by: James J. Reardon, Jr, Esq. REARDON SCANLON LLP 45 South Main Street Suite 305 West Hartford, CT 06107 Phone: (860) 955-9455 Fax: (860) 520-5242 Email: james.reardon@reardonscanlon.com CITY NATIONAL BANK: Carter Files Suit in W.D. Oklahoma ------------------------------------------------------ A class action lawsuit has been filed against The City National Bank and Trust Company of Lawton Oklahoma, et al. The case is styled as Lisa Carter, individually and on behalf of all others similarly situated v. The City National Bank and Trust Company of Lawton Oklahoma, JOHN DOE 1-5, inclusive, Case No. 5:21-cv-00029-PRW (W.D. Okla., Jan. 14, 2021). The nature of suit is stated as Banks and Banking. City National Bank -- https://www.cnb1901.com/ -- has over 40 community banks in Oklahoma and Kansas. CNB offers personal, savings, business, loans and commercial products.[BN] The Plaintiff is represented by: Barrett T Bowers, Esq. BARRETT T. BOWERS PLLC PO Box 891628 Oklahoma City, OK 73189 Phone: (405) 727-7188 Email: btb@fastmail.com - and - Richard D McCune, Esq. MCCUNEWRIGHT LLP 2068 Orange Tree Lane, Ste. 216 Redlands, CA 92374 Phone: (909) 557-1250 Fax: (909) 557-1275 Email: rdm@mccunewright.com COMMUNITY BANK: Suit Seeks Initial Approval of Class Settlement --------------------------------------------------------------- In the class action lawsuit captioned as TINA THOMPSON and SCOTT DOXEY, on behalf of themselves and all others similarly situated, v. COMMUNITY BANK, N.A., Case No. 8:19-cv-00919-MAD-CFH (N.D.N.Y.), the Plaintiffs Tina Thompson and Scott Doxey will move the Court to enter an order: 1. granting their Unopposed Motion for Preliminary Approval of Class Action Settlement; 2. certifying for settlement purposes the proposed Settlement Class, pursuant to Rule 23(a) and 23(b)(3), defined as: "all current and former customers of Community Bank with consumer checking accounts, who were charged a Relevant Overdraft Fee during the Class Period;" -- Relevant Overdraft Fees include both APPSN Fees and Account Verification Fees. It includes both the APPSN Fee Class and the Account Verification Fee Class; and -- Excluded from the Settlement Class is Community Bank, its parents, subsidiaries, affiliates, officers and directors; all Settlement Class members who make a timely election to be excluded; and all judges assigned to this litigation and their immediate family members; and -- The Class Period is from January 1, 2015 to December 31, 2019; 3. appointing themselves Plaintiffs as Class Representatives; 4. approving the Notice Program and approving the form and content of the Notices; 5. approving and order the opt-out and objection procedures in the Agreement; 6. staying the Action against Community Bank pending Final Approval of the Settlement; 7. appointing Jeff Ostrow and Jonathan Streisfeld of Kopelowitz Ostrow P.A. and Jeffrey Kaliel and Sophia Gold of Kaliel PLLC as Class Counsel; and 8. scheduling a Final Approval Hearing no sooner than the week of June 14, 2021 (if convenient for the Court). Settlement Terms: -- The $3,460,833.02 Value of the Settlement, consists of Community Bank's: (a) cash payment of $2,850,000; and (b) agreement to forgive, waive, and agree not to collect an additional $610,833.02 in Uncollected Overdraft Fees. -- Of the $2,850,000.00 paid into the Settlement Fund, $2,830,000 (99.3%) is allocated to the APPSN Fee Class and $20,000 (.7%) is allocated to the Account Verification Fee Class. On July 26, 2019, former Plaintiff Charles Kelly filed a putative class action complaint in the Action seeking damages, restitution, and declaratory relief arising from the allegedly unfair and unconscionable assessment and collection of APPSN Fees and Account Verification Fees. On October 20, 2020, the Parties filed a Notice of Settlement, confirming their agreement in principle and requesting that the Court stay all deadlines in the Action pending the Parties execution of the Agreement and the filing of this Motion. The Parties finalized and signed the Agreement on November 23, 2020. Community Bank is a Department of Defense owned banking program operated through a contract with a commercial financial institution. A copy of the Notice of plaintiffs' unopposed motion for preliminary approval of class action settlement dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/2XS0Wee at no extra charge.[CC] The Counsel for the Plaintiffs and the Settlement Classes, are: Jeff Ostrow, Esq. Jonathan M. Streisfeld, Esq KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas Boulevard, Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: streisfeld@kolawyers.com ostrow@kolawyers.com - and - James R. Peluso, Esq. DREYER BOYAJIAN LLP 75 Columbia Street Albany, NY 12210 Telephone: (518) 463-7784 E-mail: jpeluso@dbls.com - and - Jeffrey D. Kaliel, Esq. Sophia G. Gold, Esq. KALIEL PLLC 1875 Connecticut Ave., NW, 10th Floor Washington, D.C. 20009 Telephone: (202) 350-4783 E-mail: jkaliel@kalielpll.com sgold@kalielpllc.com CORECIVIC INC: Bid to Reconsider April 1, 2020 Order Tossed ----------------------------------------------------------- In the class action lawsuit captioned as SYLVESTER OWINO and JONATHAN GOMEZ, on behalf of themselves and all others similarly situated, v. CORECIVIC, INC., a Maryland corporation, Case No. 3:17-cv-01112-JLS-NLS (S.D. Cal), the Hon. Judge Jannis L. Sammartino entered an order denying the Defendant's motion for reconsideration. The Court said, "Contrary to the Defendant's assertions, there is no rule prohibiting the use of averages in assessing damages, particularly in situations like this one where the evidentiary difficulties are a product of the Defendant's own timekeeping deficiencies. The Court agrees with the Plaintiffs' interpretation of Bluford v. Safeway Stores, Incorporated, 216 Cal. App. 4th 864 (2013), and Aldapa, see Opp'n at 19–20. The prohibition on averaging concerns an employer's compliance with California's minimum wage laws, not the calculation of damages in class actions. The court upheld all but a small portion of the damages award, reasoning: "In our view, it was within the discretion of the trial court to weigh the disadvantage of statistical inference -- the calculation of average damages imperfectly tailored to the facts of particular employees -- with the opportunity it afforded to vindicate an important statutory policy without unduly burdening the courts." In short, the Court did not clearly err in finding that a possible means of assessing class-wide damages exists in this case. Accordingly, the Court denies the Defendant's Motion as to this ground." On April 1, 2020, the Court issued the 59-page Order, denying without prejudice the Plaintiffs' motion for partial summary judgment, denying the Defendant's motion for judgment on the pleadings, denying as moot Plaintiffs' motion to exclude, and granting in part and denying in part Plaintiffs' motion for class certification. The Court certified the Plaintiffs' proposed California and National Forced Labor Classes in their entirety and the Plaintiffs' proposed California Labor Law Class as to the causes of action for failure to pay minimum wage, failure to provide wage statements for actual damages, failure to pay compensation upon termination, and imposition of unlawful conditions of employment. On April 15, 2020, the Defendant filed the present Motion, seeking reconsideration of several portions of the Order. CoreCivic, formerly the Corrections Corporation of America, is a company that owns and manages private prisons and detention centers and operates others on a concession basis. A copy of the Court's order denying the defendant's motion for reconsideration dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/2Nb1ny5 at no extra charge.[CC] CORIANT OPERATIONS: Court Narrows ERISA Claims in McCutchan Suit ---------------------------------------------------------------- In the lawsuit styled CALVIN McCUTCHAN v. CORIANT OPERATIONS, INC., INFINERA CORPORATION, CORIANT 401(k) PLAN, and J. DOES 1-20, Case No. 20 C 561 (N.D. Ill.), the U.S. District Court for the Northern District of Illinois issued a Memorandum Opinion: -- granting in part a motion to dismiss the Plaintiff's First Amended Class Action Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by Defendants Coriant Operations, Inc., Infinera Corporation, the Coriant 401(k) Plan, and J. Does' 1-20; and -- granting the Defendants' motion to strike McCutchan's jury demand under Rule 12(f). Plaintiff McCutchan is a Texas citizen. Defendant Coriant is a Delaware corporation with a principal place of business in Naperville, Illinois. The Defendant Plan is an employee benefit retirement plan sponsored by Coriant and has its principal place of business in Naperville, Illinois. Defendant Infinera is a Delaware corporation with a principal place of business in Sunnyvale, California. Defendant J. Doe 1 was Coriant's 401(k) Plan Trustee. Defendants J. Does 2-10 were members of Coriant's 401(k) Plan Administrative Committee. Defendants J. Does 11-20 were members of Coriant's 401(k) Plan Investment Committee. The exact identities of the Doe Defendants are unknown. Plaintiff McCutchan was an employee of Coriant and a participant in the Plan. Prudential Financial, Inc., was the Investment Manager for the Plan and offered Plan participants an investment option known as the Gibraltar Guaranteed Fund ("GGF"). Under the terms of the GGF, Plan participants would receive the book value of the GGF investment if the participant elected to liquidate their investment. However, if Prudential elected to terminate the Plan participants' GGF investments, the Plan participants would instead receive the market value, not the book value, of their investment. On July 23, 2018, Infinera publicly announced its intention to acquire Coriant. A condition of the acquisition was that Coriant would terminate the Plan before finalization of the acquisition because Infinera maintained its own 401(k) plan. Infinera's acquisition of Coriant became final on October 1, 2018, and the Plan was terminated the day prior, September 30, 2018. The Plaintiff alleges that on October 10, 2018, Coriant mailed notice to Plan participants that the GGF would terminate on October 15, 2018. On October 15, 2018, McCutchan alleges that Coriant sent a mass email to all Plan participants again notifying them that the GGF would terminate that day. Both communications told Plan participants that they must elect to liquidate their GGF investments by October 15, 2018, to receive the book value of the investments. If they failed to do so, Plan participants would receive the market value of their investments. Mr. McCutchan says that he never received the mailed notice because it did not arrive before October 15, 2018. Additionally, he says he did not receive the email notification because it was filtered into his spam folder. As a result, he was not able to elect to liquidate his GGF investment and receive the book value. He alleges that the market value was substantially less than the book value and, therefore, he and other Plan participants suffered a monetary loss due to insufficient timely notice. McCutchan argues that the Defendants should have provided notice of the Plan's termination at some point between July 23, 2018, when Infinera announced their intent to acquire Coriant, and October 10, 2018, when Coriant attempted to provide notice of the Plan's termination a few days later. Based on these events, McCutchan filed his FAC on June 10, 2020. McCutchan seeks the recovery of benefits from the Plan under the Employment Income Retirement Security Act ("ERISA") Section 502(a)(1)(B), 29 U.S.C. Section 1132(a)(1)(B) (Count I), and claims a breach of fiduciary duty under ERISA Section 502(a)(2), 29 U.S.C. Section 1132(a)(2), against Infinera, Coriant, and the Doe Defendants (Count II). The Defendants argue that McCutchan's recovery of benefits claim fails because he failed to exhaust his administrative remedies. The Court agrees. McCutchan fails to allege that he exhausted his administrative remedies under the Plan. He asserts that on several occasions he attempted to resolve this matter by communicating with Debra Ragusa, Coriant's former Senior Global Benefits Manager. He alleges that, in response to his communications with Ragusa, Coriant repeatedly declined to admit any liability, engaged in systematic obfuscation, directed him to speak with Prudential instead of Coriant representatives, and made no indication of any intent to settle the dispute. Mr. McCutchan, however, does not allege that he submitted a proper appeal under the procedures set forth under the terms of the Plan, District Judge Charles P. Kocoras notes. McCutchan merely alleges that he had communications with Ragusa outside the proper administrative review process and that those communications were not fruitful. Thus, McCutchan's argument that the Plan's litigation position shows that pursing administrative remedies would be futile fails. Therefore, McCutchan has failed to plead that he exhausted his administrative remedies under the terms of the Plan. Accordingly, the Defendants' motion to dismiss McCutchan's recovery of benefits claim is granted. The Defendants also argue that McCutchan's breach of fiduciary duty claim should be dismissed because it is a repackaging of his recovery of benefits claim and because they did not breach any duty owed to him. The Court disagrees. According to the Court's Memorandum Opinion, Coriant allegedly knew that the failure to timely liquidate a GGF investment would result in a beneficiary receiving the market value of their investment, instead of the higher book value. McCutchan and other beneficiaries allegedly did not know about the termination of the GGF. Coriant attempted to provide notice of the termination only five days prior to the termination. However, the notice was allegedly not made in time for McCutchan to act. Thus, McCutchan plausibly alleges that Coriant may have failed to provide adequate timely notice of the termination of the investment. The failure to provide timely allegedly affected his material interests because it resulted in his receiving the lower value of his investment. Adequate timely notice, McCutchan alleges, would have prevented this injury. Accordingly, the motion to dismiss the breach of fiduciary duty claim is denied. The Defendants argue that Infinera should be dismissed because McCutchan has not alleged that Infinera is, or ever was, a Plan fiduciary. The Court agrees. Judge Kocoras notes that a claim for breach of fiduciary duty under ERISA requires the plaintiff to plausibly allege that the defendant is a plan fiduciary, citing Kenseth, 610 F.3d at 466 (citing Eddy v. Colonial Life Ins. of Am., 919 F.2d 747, 750 (D.C. Cir. 1990)). McCutchan fails to do so in his case. To be a fiduciary, Inferna must have had some degree of control over the management of the Plan and its assets. Therefore, the Plan was terminated before Inferna ever owned Coriant or had any control over the Plan. Accordingly, Defendant Inferna is dismissed. The Defendants move the Court to strike the Plaintiff's jury demand on the basis that ERISA actions do not have a federal right to a jury trial. In ERISA cases, the general rule is that there is no federal "right to a jury trial because ERISA's antecedents are equitable, not legal." Divane v. Northwestern Univ., 953 F.3d 980, 994 (7th Cir. 2020). Accordingly, the Defendants' motion to strike McCutchan's jury demand is granted. For these reasons, the Court grants the Defendants' motion to dismiss in part. Count I is dismissed and Defendant Inferna is dismissed. McCutchan's breach of fiduciary duty claim may still proceed. Additionally, the Defendants' motion to Strike McCutchan's jury demand is granted. The jury demand is stricken. Telephonic status hearing is set for February 2, 2021, at 10:40 a.m. A full-text copy of the Court's Memorandum Opinion dated Jan. 11, 2021, is available at https://tinyurl.com/y2yrrzaf from Leagle.com. DAP PRODUCTS: Wins Bid to Dismiss Fraud Suit Initiated by Ehlis --------------------------------------------------------------- The U.S. District Court for the District of Minnesota granted the Defendant's motion to dismiss the lawsuit titled BRANDON EHLIS, on behalf of himself Case and all others similarly situated v. DAP PRODUCTS, INC., Case No. 20-CV-1872 (PJS/ECW) (D. Minn.). The lawsuit is a putative class action brought by Plaintiff Ehlis against Defendant DAP. Ehlis alleges that he bought a tube of DAP 3.0 Crystal Clear Kitchen, Bathroom, and Plumbing Sealant and that, even though DAP had represented that the sealant was "crystal clear," the sealant turned yellow sometime after Ehlis used it. He brings a host of fraud and warranty claims against DAP, some under Maryland law, and others under Minnesota law. District Judge Patrick J. Schiltz notes that claims sounding in fraud are subject to the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure. To assert a fraud claim with the particularity required under Rule 9(b), a complaint must allege in detail "the who, what, when, where, and how" of the fraud, citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 550 (8th Cir. 1997). Mr. Ehlis' complaint falls well short of these standards, as it is woefully devoid of factual allegations, Judge Schiltz finds. To cite just some of the most glaring omissions: Ehlis does not identify where he bought the sealant and he does not identify when he bought the sealant, other than to say that he bought the sealant within the Class Period. To be clear, the Court states that it is not holding that all of this information must be alleged in order for Ehlis to plead a single plausible claim. It is holding that, because none of the information was alleged, Ehlis has not pleaded a single plausible claim. The allegations of the complaint leave the Court without a basis even to identify which state's law applies to Ehlis's claims, much less to determine whether any of those claims are plausible under the applicable state law. All of the missing information identified by the Court is presumably within the knowledge of Ehlis, and all of it could have been provided in a brief paragraph or two in the complaint. The Court cannot fathom why Ehlis would not include these rudimentary factual allegations in his 32-page, eight-count complaint. Nor can it fathom why Ehlis would not voluntarily file an amended complaint after these obvious deficiencies were (presumably) brought to his attention during the meet-and-confer session with DAP. Adding a paragraph or two of facts to the complaint is a lot easier than drafting a 37-page brief defending the adequacy of an obviously inadequate complaint, Judge Schiltz notes. Because of the paucity of factual allegations, none of the claims in the complaint meet the threshold requirement of Rule 8(a)(2) that the plain statement possesses enough heft to show that the pleader is entitled to relief, much less the more demanding requirement of Rule 9(b) that the Plaintiff state with particularity the circumstances constituting fraud or mistake, Judge Schiltz opines. The Court, therefore, grants DAP's motion to dismiss. But because the case is in its infancy -- and because many of the complaint's deficiencies appear to be easily curable -- it will stay its order dismissing this lawsuit for 21 days to give Ehlis a chance to move to amend his complaint. The Court warns Ehlis that it will not provide a second such opportunity -- and thus, if Ehlis does draft a proposed amended complaint, he would be well-advised to include all of the missing factual information identified by the Court and to be as specific as possible. Judge Schiltz rules that: 1. Defendant DAP Products, Inc.'s motion to dismiss is granted; 2. Plaintiff Brandon Ehlis' complaint is dismissed without prejudice; 3. Entry of judgment is stayed until February 1, 2021, so that Ehlis may move pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure and Local Rule 15.1 for leave to file an amended complaint. Any such motion will be considered by Magistrate Judge Elizabeth Cowan Wright in the first instance; and 4. If Ehlis does not file a motion for leave to file an amended complaint by February 1, 2021, or if Ehlis' timely-filed motion is denied, judgment will be entered pursuant to the order. A full-text copy of the Court's Order dated Jan. 11, 2021, is available at https://tinyurl.com/y2v67vad from Leagle.com. David A. Goodwin -- dgoodwin@gustafsongluek.com -- Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- and Kaitlyn L. Dennis -- kdennis@gustafsongluek.com -- GUSTAFSON GLUEK PLLC; Brian C. Gudmundson -- brian.gudmundson@zimmreed.com -- Michael J. Laird -- michael.laird@zimmreed.com -- and Rachel K. Tack -- Rachel.Tack@zimmreed.com -- ZIMMERMAN REED LLP, for Plaintiff. Russell S. Ponessa -- rponessa@hinshawlaw.com -- and Anju Suresh -- ASuresh@hinshawlaw.com -- HINSHAW & CULBERTSON LLP; Charles W. Steese -- csteese@atllp.com -- Ijay Palansky -- ipalansky@atllp.com -- Alec Harris -- aharris@atllp.com -- and Amber Gonzales -- agonzales@atllp.com -- ARMSTRONG TEASDALE, LLP, for Defendant. DEXTER-RUSSELL INC: Paguada Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Dexter-Russell, Inc. The case is styled as Josue Paguada, on behalf of himself and all others similarly situated v. Dexter-Russell, Inc., Case No. 1:21-cv-00361 (S.D.N.Y., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dexter-Russell, Inc. -- https://dexter1818.com/ -- is a cutlery manufacturing company in the town of Southbridge, MA. It is the largest US manufacturer of professional cutlery, and is also the oldest cutlery manufacturer in the United States.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com DISTRICT OF COLUMBIA: Pappas Suit Dismissed With Leave to Amend --------------------------------------------------------------- Judge Rudolph Contreras of the U.S. District Court for the District of Columbia enters a Memorandum Opinion in the case, STEVE PAPPAS, et al., Plaintiffs v. DISTRICT OF COLUMBIA, et al., Defendants, Case No. 19-2800 (RC) (D.D.C.), granting in part and denying in part the Defendants' motion to dismiss, and granting the Plaintiffs leave to amend within 30 days. Plaintiffs Pappas, Tawana Lindsay, Nichole Mathies, and Malachi Malik, former employees of the District of Columbia Metropolitan Police Department ("MPD"), brought the class action against MPD, the District of Columbia, and Peter Newsham in his official capacity as Chief of Police of the MPD, challenging the MPD's practice of requiring employees who spend 172 cumulative days within any 24-month period at less than full-duty status to take disability retirement, without offering reasonable accommodations through reassignment, job restructuring, or extended leave. They argue the policy violated the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504"). Mr. Pappas also alleges that the MPD made improper medical inquiries and subjected him to improper medical examinations, in violation of the same statutes. The Plaintiffs are all former MPD officers who developed medical conditions that caused them to go on leave or be moved to limited duty roles. They allege that pursuant to MPD General Order 100.11.L, they were required to take involuntary disability retirement after accruing 172 days on sick leave or limited-duty status within a 24-month period for "any disability that occurs outside the performance of duty." Under the Forced Retirement Policy, MPD does not allow any possibility of reassignment, job restructuring or extended leave. Disability retirement is mandatory regardless of whether the medical prognosis is that a member will be able to perform in a full duty status after reaching maximum medical improvement. The Plaintiffs assert that the policy violates both the ADA and Section 504. Mr. Pappas filed a formal charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on Oct. 5, 2015. On Aug. 10, 2016, the EEOC issued a determination letter that referred Mr. Pappas's claim to the U.S. Department of Justice ("DOJ"), finding that there was cause to believe that by MPD's actions and through its policies, MPD had violated the ADA rights of Mr. Pappas and a class of similarly situated individuals. On June 21, 2019, the DOJ issued Mr. Pappas a right to sue letter for his claim. Mr. Pappas filed suit on Sept. 19, 2019. An amended complaint was filed by Mr. Pappas, along with Ms. Lindsay, Ms. Mathies, and Mr. Malik on Dec. 12, 2019. The Defendants have moved to dismiss the complaint in its entirety, arguing that (1) Ms. Lindsay, Ms. Mathies, and Mr. Malik have failed to exhaust their administrative remedies as to their ADA claims, (2) that Ms. Lindsay, Ms. Mathies, and Mr. Malik's Section 504 claims are barred by the applicable statute of limitations, (3) that all the Plaintiffs have failed to plead a failure to accommodate claim under the ADA or Section 504, and (4) that Mr. Pappas has failed to state a claim for improper medical inquiries. Judge Contreras grants in part and denied in part the Defendants' motion to dismiss. He finds that due to the doctrine of vicarious exhaustion, only Mr. Malik has failed to exhaust his administrative remedies regarding his ADA claims, but that Ms. Lindsay, Ms. Mathies, and Mr. Malik's Section 504 claims are all barred by the applicable statute of limitations. The remaining failure to accommodate claims--Mr. Pappas's claims under both the ADA and Section 504 and Ms. Lindsay and Ms. Mathies's claims under the ADA--survive the motion to dismiss, when given (as required) all reasonable inferences in the Plaintiffs' favor. But because Mr. Pappas has not alleged sufficient facts to plausibly infer that he was subjected to improper medical inquiries given that the inquiries in question were job-related, the Judge also grants the motion to dismiss his improper medical inquiries claims under the ADA and Section 504. The Judge grants the Plaintiffs' request to amend to address the various pleading deficiencies identified in his opinion. In their opposition brief, the Plaintiffs request "leave to amend their complaint" should the Court require more in the way of specificity of the pleadings. The Judge opines that it is in the interest of justice to grant the Plaintiffs' request to amend. They seek leave to correct various pleading errors, among them some that they impermissibly attempted to supplement through their opposition brief. Given that the case is still in its beginning stages, and allowing amendment will not prejudice the Defendants, there is no sufficient reason to deny the request. The Plaintiffs are given leave to amend within 30 days. An order consistent with the Memorandum Opinion is separately and contemporaneously issued. A full-text copy of the Court's Jan. 12, 2021 Memorandum Opinion is available at https://tinyurl.com/y3e7no7m from Leagle.com. DOLE FOOD: Denial of Bid to Vacate Order Dismissing Chaverri Upheld ------------------------------------------------------------------- In the case, EDUARDO ALVARADO CHAVERRI, et al., Plaintiffs Below, Appellants v. DOLE FOOD COMPANY, INC., et al., Defendants Below, Appellees, Case No. 519, 2019 (Del.), the Supreme Court of Delaware affirms the Superior Court's order denying the Plaintiffs' motion to motion to vacate the Dismissal Order under Superior Court Civil Rule 60(b)(6) entered in 2013. The Plaintiffs-Appellants worked on banana plantations in Costa Rica, Ecuador, and Panama. They filed their complaint in the case in 2012, claiming that while working on the plantations they suffered personal injuries from a pesticide known as 1, 2, Dibromo 3, Chloropropane ("DBCP"). The Defendants-Appellees are numerous companies alleged to have caused the Plaintiffs' exposure to DBCP and their resulting injuries. They are U.S. corporations that were involved in the manufacture and distribution of DBCP or who owned and operated the banana farms where the Plaintiffs worked. In 2013, the Superior Court dismissed the Plaintiffs' complaint under what has sometimes been referred to as Delaware's McWane doctrine. On Dec. 31, 2018, the Plaintiffs filed a motion to vacate the Dismissal Order under Superior Court Civil Rule 60(b)(6). The Superior Court denied the Plaintiffs' motion, finding that the motion was untimely and the Plaintiffs failed to show extraordinary circumstances for vacating the judgment. The Plaintiffs have appealed from that order. They raise three claims on appeal. The first is that the Superior Court committed an error of law and abused its discretion by failing to adhere to established Delaware jurisprudence in analyzing the Plaintiffs' assertion of extraordinary circumstances under Rule 60(b)(6). The second is that the Superior Court misapplied the law by giving preference to "finality" of decisions over Delaware's public policy favoring adjudication on the merits, and in so holding, erred when finding the Plaintiffs' request for relief under Rule 60(b)(6) untimely. The third is that the Superior Court committed errors of law in a series of "non-distinctions" to justify its disregard of Chavez v. Dole Food Company, Inc. and Marquinez v. Dow Chemical Company. In response to these claims, the Defendants contend that the Superior Court did not abuse its discretion in denying the motion to vacate based on the Plaintiffs' unreasonable delay, the Superior Court did not abuse its discretion in denying the motion to vacate based on the Plaintiffs' failure to set forth "extraordinary circumstances," and the Plaintiffs cannot obtain Rule 60(b)(6) relief as to defendants they excluded from their prior appeal. The Supreme Court of Delaware finds that case involves the application of different legal principles by courts in separate, sovereign jurisdictions. The Superior Court judge very ably explained the distinction between the federal first-filed rule and Delaware's forum non conveniens law in her opinion denying the Plaintiffs' motion, and how those distinctions permit the federal courts and our state courts to treat second-filed actions differently. What has happened in the case is a consequence of filing cases asserting the same or similar claims in courts of different jurisdictions where different principles of law may apply. By dividing the Plaintiffs' claims between the federal and state courts of Delaware, the Plaintiffs' counsel rendered them not similarly situated and created a foreseeable risk that procedural rules of the two jurisdictions may lead to different results. The developments in the Marquinez and Chavez federal cases after the instant case was dismissed are not extraordinary circumstances justifying relief from the Dismissal Order. The dissent writes that Chavez contradicts what had been a foundational point in the Dismissal Order. The Supreme Court of Delaware disagrees. It states that the cases do not involve conflicting application of the same law. Neither contradicts or undercuts the other. Since it finds that the Plaintiffs have failed to show extraordinary circumstances for vacating the Dismissal Order and the Superior Court did not abuse its discretion in denying the Plaintiffs' motion on that ground, the Court holds there is no need for it to address the Superior Court's ruling that the motion was untimely or the Defendants' argument concerning defendants excluded from the Plaintiffs' prior appeal. Yet because the dissent's strongest disagreement with the trial court's analysis appears to be centered on its treatment of the timeliness of the Plaintiffs' motion, the Court offers its views on that issue. The Court finds no fault with the Superior Court's consideration, as one factor among many and as it did in Schremp v. Marvel, of the "inflexible time" its rules of court allow litigants when perfecting an appeal (30 days), or moving for a new trial under Superior Court Rule 59(b) (10 days) or reargument in the Court (15 days). To be sure, had that been the Superior Court's sole consideration, it might view its timeliness ruling differently. But the Superior Court, recognizing its obligation to consider all circumstances surrounding the delay, did not so limit its analysis. Not surprisingly, the Superior Court cited the two reasons for the delay offered by the Plaintiffs--the burden of the many other DBCP cases the counsel was handling and the time and research required to prepare the motion--and found them to be unpersuasive. The Supreme Court of Delaware cannot say that the trial court's conclusion exceeds the bounds of reason, especially when it considers that the Plaintiffs' motion, which was filed seven months after Chavez and fourteen months after Gramercy (arguably the most relevant starting point for the timeliness analysis)--contains barely five pages of substantive text and only three unremarkable exhibits. The simplicity of the motion itself cannot be squared with the Plaintiffs' contention that it took seven months to untangle and explain the procedural history of this case in the motion. And finally, the Supreme Court of Delaware appreciates the dissent's concern that the complexity of the case that arguably contributed to the delay was in large part the product of the "extraordinary resistance exerted by the defendants over three decades." But it was not improper--or, for that matter, unfounded--in its view for the Superior Court to comment on how the Plaintiffs' strategic choices are at least a partial cause of their present predicament. In sum, it concludes that the Superior Court's finding that the Plaintiffs' delay in filing the motion to vacate the then six-year-old judgment of dismissal was not an abuse of discretion. Ultimately, the Supreme Court of Delaware holds that the question is whether the Superior Court abused its discretion in denying the Plaintiffs' motion to reopen the judgment as untimely and for failure of the Plaintiffs to show extraordinary circumstances. As it recently observed, when it reviews a trial court for abuse of discretion, it holds that the question is not whether it agrees with the court below, but rather whether it believes that the judicial mind in view of the relevant rules of law and upon due consideration of the facts of the case could reasonably have reached the conclusion of which complaint is made. Applying that standard, the Court finds that there was no abuse of discretion. It therefore affirms the judgment of the Superior Court. A full-text copy of the Court's Jan. 12, 2021 Order is available at https://tinyurl.com/y4r2evyl from Leagle.com. Andrew C. Dalton, Esquire -- adalton@bdaltonlaw.com -- Dalton & Associates, P.A., Wilmington, Delaware, Scott M. Hendler, Esquire, Hendler Flores, PLLC, Austin, Texas, Attorneys for Plaintiffs. Somers S. Price, Jr., Esquire -- sprice@potteranderson.com -- Potter, Anderson & Corroon LLP, Wilmington, Delaware; Andrea Neuman, Esquire, Thomas Manakides, Gibson, Dunn & Crutcher, New York, New York, Attorneys for Defendants Dole Food Company, Inc., Dole Fresh Fruit Company, Standard Fruit Company, and Standard Fruit and Steamship Company. Adam Orlacchio, Esquire -- orlacchio@blankrome.com -- Brandon McCune, Esquire -- bmccune@blankrome.com -- Blank Rome LLP, Wilmington, Delaware, Attorneys for Defendants Chiquita Brands International, Inc., Chiquita Brands, LLC, and Chiquita Fresh North America, LLC. Donald E. Reid, Esquire -- dreid@mnat.com -- Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, Michael L. Brem, Esquire, Shirrmeister, Diaz-Arrastia, Brem, LLP, Houston, Texas, Attorneys for Defendant Dow Chemical Company. Timothy Jay Houseal, Esquire -- thouseal@ycst.com -- Jennifer M. Kinkus, Esquire -- jkinkus@ycst.com -- William E. Gamgort, Esquire, Young, Conaway, Stargatt & Taylor, LLP, Wilmington, Delaware, Attorneys for Occidental Chemical Corporation. John C. Phillips, Esquire, Phillips, Goldman, McLaughlin & Hall, P.A., Wilmington, Delaware, Attorney for Defendant AMVAC Chemical Corporation. Kelly E. Farnan, Esquire -- farnan@rlf.com -- Katharine L. Mowery, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware, Craig Stanfield, King & Spalding, LLP, Houston, Texas, Attorneys for Defendant Shell Oil Company. James Semple, Esquire -- jsemple@coochtaylor.com -- Cooch & Taylor, P.A., Wilmington, Delaware, Attorney for Defendant Del Monte Fresh Produce, N.A., Inc. ESCOBAR CONSTRUCTION: Perez Counsel Affirms Collective Cert. Bid ---------------------------------------------------------------- MARCO ANTONIO PEREZ PEREZ, and JOSE EDUARDO SANCHEZ ARIAS, on their own behalf and on behalf of others similarly situated, v. ESCOBAR CONSTRUCTION, INC.; NATIONS CONSTRUCTION, INC.; JRS SERVICES, LLC; JHONY A ESCOBAR, ELIAS O. PALACIOS a/k/a Elias Escobar, NATALIE PALACIOS, JENNY CAROLINA ALVAREZ, LUIS ENRIQUE MONZON, Case No. 1:20-cv-08010-LTS-GWG (S.D.N.Y.), Attorney John Troy, submits an affirmation in support of the Plaintiffs' motion for an Order granting collective action status pursuant to 29 U.S.C. section 216(b) for the Plaintiffs' claims under the Fair Labor Standards Act (FLSA). The putative class consists of: "The named Plaintiffs and all nonexempt current and former employees of the Defendants ESCOBAR CONSTRUCTION, INC.; NATIONS CONSTRUCTION, INC.; JRS SERVICES, LLC; JHONY A ESCOBAR, ELIAS O. PALACIOS a/k/a Elias Escobar, NATALIE PALACIOS, JENNY CAROLINA ALVAREZ, and LUIS ENRIQUE MONZON who performed work as non-exempt, non-managerial employees from December 29, 2016 to present. Corporate officers, shareholders, directors, administrative employees, managers, and other customarily exempt employees are not part of the defined class." The Defendants are doing business in the construction industry. A copy of the Plaintiff's motion to certify class dated Jan. 13, 2020 is available from PacerMonitor.com at http://bit.ly/3qo4a5kat no extra charge.[CC] Attorney for the Plaintiffs, proposed FLSA Collective and potential Rule 23 Class, are: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 103 Flushing, NY 11355 Telephone: (718) 762-1324 ESCOBAR CONSTRUCTION: Perez Seeks FLSA Collective Action Status --------------------------------------------------------------- MARCO ANTONIO PEREZ PEREZ, and JOSE EDUARDO SANCHEZ ARIAS, on their own behalf and on behalf of others similarly situated, v. ESCOBAR CONSTRUCTION, INC.; NATIONS CONSTRUCTION, INC.; JRS SERVICES, LLC; JHONY A ESCOBAR, ELIAS O. PALACIOS a/k/a Elias Escobar, NATALIE PALACIOS, JENNY CAROLINA ALVAREZ, LUIS ENRIQUE MONZON, Case No. 1:20-cv-08010-LTS-GWG (S.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. granting collective action status, under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. section 216(b); 2. directing the Defendants within 14 days of the entry of this Order to produce an Excel spreadsheet containing first and last name, last known address with apartment number (if applicable), the last known telephone numbers, last known e-mail addresses, WhatsApp, WeChat ID and/or FaceBook usernames (if applicable), and work location, dates of employment and position of: "ALL current and former non-exempt and non-managerial employees employed at any time from December 29, 2016 (three years prior to the filing of the Complaint in the Northern District of New York, before it was transferred to the Southern District of New York by consent) to the date when the Court so-orders the Notice of Pendency and Consent to Join Form or the date when Defendants provide the name list, whichever is later"; 3. authorizing that notice of this matter be disseminated, in any relevant language via mail, email, text message, website or social media messages, chats, or posts, to all members of the putative class within 21 days after receipt of a complete and accurate Excel spreadsheet with affidavit from Defendants certifying that the list is complete and from existing employment records; 4. authorizing an opt-in period of 90 days from the day of dissemination of the notice and its translation; 5. authorizing the Plaintiff to publish the full opt-in notice on Plaintiffs' counsel's website; 6. authorizing the publication of a short form of the notice may also be published to social media groups specifically targeting the Spanish-speaking American immigrant worker community; 7. directing the Defendants to post the approved Proposed Notice in all relevant languages, in a conspicuous and unobstructed locations likely to be seen by all currently employed members of the collective, and the notice shall remain posted throughout the opt-in period, at the workplace; 8. directing the Plaintiffs to publish the Notice of Pendency, in an abbreviated form to be approved by the Court, at the Defendants' expense by social media and by publication in newspaper should the Defendants fail to furnish a complete Excel list or more than 20% of the Notice be returned as undeliverable with no forwarding address to be published in English, and Spanish; and 9. granting equitable tolling on the statute of limitation on this suit be tolled for 90 days until the expiration of the Opt-in Period. The Defendants are doing business in the construction industry. A copy of the Plaintiff's motion to certify class dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/2XSssrU at no extra charge.[CC] Attorney for the Plaintiffs, proposed FLSA Collective and potential Rule 23 Class, are: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 103 Flushing, NY 11355 Telephone: (718) 762-1324 EVERGREEN FREEDOM: Huntsman Files TCPA Suit in E.D. Washington -------------------------------------------------------------- A class action lawsuit has been filed against Evergreen Freedom Foundation. The case is styled as Mark Huntsman, individually and on behalf of all others similarly situated v. Evergreen Freedom Foundation, Case No. 4:21-cv-05005-SAB (E.D. Wash., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. The Evergreen Freedom Foundation -- https://www.freedomfoundation.com/ -- operating as the Freedom Foundation, is a state-based free market conservative think tank founded in the state of Washington.[BN] The Plaintiff is represented by: Kira Meshawn Rubel, Esq. HARBOR LAW GROUP 3615 Harborview Drive, Suite C Gig Harbor, WA 98329 Phone: (253) 251-2955 Email: kira@theharborlawgroup.com EXTENDICARE INC: Faces COVID-19 Class Action Over Negligence ------------------------------------------------------------ insauga.com reports that the unproven claim alleges Extendicare failed to respond properly to the pandemic and was negligent in the care of residents. "The plaintiffs plead that the defendants behaved in a reprehensible and unconscionable manner by failing to implement an adequate COVID-19 response plan," the suit alleges. "The defendants had a history of failing to implement properly, or at all, an adequate infection-control program." Extendicare has a Mississauga location at 855 John Watt Blvd. A similar $500-million lawsuit announced on Wednesday also names Extendicare as well as other long-term care providers across Ontario such as Chartwell and Sienna Senior Living. The unproven claim also names the Ontario government along with several cities, such as Toronto, Essex, Ottawa and Hamilton. The suit is the first to allege multiple branches of government were culpable for COVID-19 deaths, its lawyers said. Extendicare either owns or operates 71 long-term care facilities in Ontario. One of its homes, Tendercare Living Centre in east-end Toronto, has seen at least 73 residents die of COVID-19 -- one of the worst-hit long-term care facilities in Canada. A second Extendicare-run facility, Orchard Villa in Pickering, Ont., has had at least 70 deaths, according to the latest provincial data. The proposed lead plaintiff, Peggy Hannon, is a disabled resident of West End Villa in Ottawa. Her claim would include all residents of an Extendicare facility as of Jan. 25, 2020 or, if they have since died, their estates. Hannon's daughter, Suzanne Zagallai, proposes to represent relatives. "Extendicare owns or manages the two most severely devastated long-term care facilities in Ontario," Stephen Birman, one of the plaintiffs' lawyers said in a statement. "Extendicare continues to be cited for infractions regarding infection control. In a statement on Wednesday, the company said it would respond to the allegations through "appropriate legal channels" in due course. "Our focus at this time is solely on providing quality care to our residents, and supporting our families and team members," the statement said. "Our hearts are with our community and those who have lost loved ones to this virus." According to its corporate profile, the company's 23,000 employees operate or provide contract services to a network of 122 long-term care homes and retirement communities. The proposed Extendicare class action was initially filed in September only against West End Villa in Ottawa and sought $16 million. Since then, COVID-19 has ravaged other facilities, including Tendercare. Among those who have died there recently was Ping Qiu. "We have many questions as to why Tendercare was not prepared for the second wave and why Tendercare was not able to protect my grandmother," Reed Zhao, her grandson, said in a statement. As recently as last month, a government inspection after a deadly COVID-19 outbreak that affected residents and staff cited Tendercare for violating infection-prevention protocols. Issues included "inconsistent" controls and an inconsistent supply of protective gear. "As a result," the inspection report states, "the disease spread rapidly throughout the home and there were a number of resident deaths and also a number of residents who have tested positive." Extendicare's latest financial statements show long-term-care revenues rose to $523.4 million for the nine months ended Sept. 30, 2020 -- from $477.1 million in the same period the previous year. The company also recently announced shareholders would receive $0.04 per share for December. In a tweet, last June, New Democrat Leader Jagmeet Singh denounced Extendicare for short-changing residents to the benefit of shareholders. "During the worst of the crisis, Extendicare gave $10 million to shareholders when only spending $300,000 on care of seniors and while dozens of seniors died from in their care," Singh said. The plaintiffs also note that Extendicare Care in the United States paid $38 million dollars in October 2014 in a settlement after an investigation into some of its American facilities. Soon after, the company announced the sale of its American portfolio for US $870 million. [GN] FACEBOOK INC: Monopolizes Social Advertising Market, Layser Claims ------------------------------------------------------------------ JESSICA L. LAYSER, individually and on behalf of all others similarly situated v. FACEBOOK, INC., a Delaware corporation headquartered in California, Case No. 5:21-cv-00337 (N.D. Cal., Jan. 13, 2021) arises from the anticompetitive conduct of the Defendant in violation of the Sherman Act. The complaint contends that the Defendant has willfully acquired and maintained monopoly power for Facebook in the Social Advertising Market. Allegedly, the Defendant has accomplished this by means of predatory, exclusionary, and anticompetitive conduct, including but not limited to obtaining monopoly power by deceiving users about its privacy protection practices, secretly obtaining user data from third parties to identify and deter emerging competitive threats, engaging in covert surveillance of potential competitors' users to detect and ultimately acquire competitive threats before they became too formidable, neutralizing potential competitive threats by acquisition before they became an actual threat, and using its application programming interface as a means to exclude competition and prevent competitors from forming or growing. Facebook, Inc. operates a social networking Website. The Company Website allows people to communicate with their family, friends, and coworkers. Facebook develops technologies that facilitate the sharing of information, photographs, Website links, and videos. Facebook users have the ability to share and restrict information based on their own specific criteria.[BN] The Plaintiff is represented by: Christina "Dena" C. Sharp, Esq. Jordan Elias, Esq. Adam E. Polk, Esq. Scott M. Grzenczyk, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dsharp@girardsharp.com jelias@girardsharp.com apolk@girardsharp.com scottg@girardsharp.com - and - Keith J. Verrier, Esq. Austin B. Cohen, Esq. LEVIN SEDRAN & BERMAN LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106-3997 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: kverrier@lfsblaw.com acohen@lfsblaw.com FACEBOOK INC: Nearly 1.6MM Illinois Users to Get About $350 Each ---------------------------------------------------------------- Robert Channick at Chicago Tribune reports that the check is not yet in the mail, but nearly 1.6 million Illinois Facebook users can expect to get about $350 each in a landmark privacy lawsuit. The totals were disclosed in a California federal court Thursday during the final approval hearing for a $650 million class-action settlement over alleged violations of Illinois' biometric privacy law. The individual payout was projected at about $400 each in November, but that amount was reduced after some 200,000 claims were filed in the final days before the deadline. U.S. District Judge James Donato, who called the case a "groundbreaking settlement in a novel area," is expected to issue a final approval order in the coming days, though payouts could be months away. "This is money that's coming directly out of Facebook's own pocket," Donato said. "The violations here did not extract a penny from the pockets of the victims. But this is real money that Facebook is paying to compensate them for the tangible privacy harms that they suffered. " The Illinois Biometric Information Privacy Act is among the strictest such laws in the U.S., and has spawned a number of lawsuits. It requires companies to get permission before using technologies such as facial recognition to identify customers. The settlement class included about 7 million Facebook users in Illinois for whom the social network created and stored a face template after June 7, 2011. To qualify, Facebook users had to live in the state for at least six months over the last nine years. More than 1 in 5 eligible Illinois Facebook users filed a claim in the case by the Nov. 23 deadline. The case spanned more than five years and a 2,000-mile change of venue. In April 2015, Chicago attorney Jay Edelson filed the initial lawsuit in Cook County Circuit Court on behalf of plaintiff Carlo Licata, alleging the social media giant's use of facial tagging features without consent was not allowed under Illinois privacy law. The case was moved to Chicago federal court and then California federal court, where it attained class-action status. [Most read] A 'healthy' doctor died two weeks after getting a COVID-19 vaccine; CDC is investigating why » Last January, Facebook agreed to settle the lawsuit for $550 million, but Donato rejected the deal. After subsequent negotiations, Facebook agreed to increase the settlement to $650 million, and the court gave the deal preliminary approval in August. Michael Rhodes, a California-based attorney representing Facebook, told Donato if the case went to trial, it could have cost the tech giant "billions and billions of dollars" if it had lost. "I mean, $650 million, by any stretch of the imagination is a tremendous sum of money," Rhodes said. "It's not something that Facebook wants to do. But we're also rational, intelligent people trying to manage a very significant risk." The hearing Thursday included discussion about lowering the fee structure. The three law firms representing the plaintiff class are seeking a total of $110 million, or 16.9% of the settlement, plus expenses. A reduction in fees would increase the payout for claimants. Facebook will pay $650 million into a fund, which will be distributed to those who filed claims after litigation expenses are deducted. Illinois Facebook users who filed a claim can expect to receive their checks within a few months, pending final approval and barring any appeals, Edelson told the Tribune on Thursday. "This is a historic settlement and we look forward to reading the court's opinion when it comes out," Edelson said. [GN] FAST AUTO: Appeals Court Affirms Arbitration Denial in Maldonado ---------------------------------------------------------------- The Court of Appeals of California affirms the trial court's denial of the Defendant's motion to compel arbitration in the lawsuit entitled JOE MALDONADO et al., Plaintiffs and Respondents v. FAST AUTO LOANS, INC., Defendant and Appellant, Case No. G058645 (Cal. App.). In the putative class action, Plaintiffs Maldonado, Alfredo Mendez, J. Peter Tuma, Jonabette Michelle Tuma, and Roberto Mateos Salmeron ("Customers"), assert Lender Fast Auto charged unconscionable interest rates on loans in violation of Financial Code Sections 22302 and 22303. The Lender filed a motion to compel arbitration and stay the action pursuant to an arbitration clause contained within the Customers' loan agreements. The trial court denied the motion on the grounds the provision was invalid and unenforceable because it required consumers to waive their right to pursue public injunctive relief, a rule described in McGill v. Citibank, N.A., (2017) 2 Cal.5th 945 (McGill). On appeal, the Lender asserts the "McGill Rule" does not apply, but even if it did, other claims were subject to arbitration. Alternatively, the Lender contends the McGill Rule is preempted by the Federal Arbitration Act. The Appellate Court concludes that the Lender's contentions on appeal lack merit, and it affirms the trial court's order. Judge Kathleen E. O'Leary, writing for the Panel, opines that because all the issues raised in the appeal involve only questions of law, the Panel reviewed the trial court's order de novo, citing Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691. The Panel concludes that the contentions lack merit. Judge O'Leary holds that the McGill Rule applies in the case. The Lender's assertion the Customers seek a private injunction is based on the opening paragraph of the complaint, where the Customers introduced themselves as individually and on behalf of all other similarly situated, bringing the class action against the Lender to seek recompense for themselves and other similarly-situated California consumers, who take out personal loans from the Lender. Judge O'Leary notes that it is language typically used in a class action lawsuit. Judge O'Leary explains that the Lender ignores the operative allegations and specific requests for relief located in Sections VI (describing basis for causes of action) and VII (the prayer for relief) of the complaint. In these sections, the Customers alleged Lender's misconduct was ongoing and injurious to the public and consumers. The Customers clarified the injunctive relief should require Lender to stop charging unlawful interest rates and adopt corrective advertising. In short, the Customers' complaint and prayer does not limit the requested remedies for only some class members, but rather encompasses all consumers and members of the public, Judge O'Leary finds. Moreover, an injunction under the Consumers Legal Remedies Act ("CLRA") against the Lender's unlawful practices will not directly benefit the Customers because they have already been harmed and are already aware of the misconduct. The Judge adds that the Lender attempts to limit the reach of the McGill Rule by suggesting it only applies to plaintiffs seeking to enjoin false or misleading advertising on behalf of the general public. The Panel is not persuaded. California's consumer protection laws must be liberally, not narrowly, applied. Judge O'Leary opines that the Appellate Court found no case, and the Lender cites to none, holding the remedy of public injunctions under CLRA and California's Unfair Competition Law should be limited to false advertising claims. The Appellate Court is also unpersuaded by the Lender's argument this lawsuit challenges only the interest rates charged in the putative class members' loans and, therefore, they primarily seek private relief with the injunction. The Lender also asserts that the trial court also erred by concluding the entire arbitration provision was unenforceable simply because the Class Waiver clause was invalid. Judge O'Leary agrees with the Customers' assertion that the Lender's argument is illogical because it requires the Appellate Court to initially determine the agreement is invalid before the trial court. The Appellate Court concludes that the Lender's interpretation of the agreement is incorrect, and in any event, the argument is now moot. As predicted by the Customers, because the Appellate Court has determined the Class Waiver was unenforceable, it follows that the entire arbitration provision becomes void as clearly and unambiguously stated in paragraphs 14(h) of the Customers' loan agreements [poison pill provision] and 14(n) [severability and survival provision]. If for the sake of argument, the Appellate Court were to accept the Lender's interpretation of the "subject to the right to appeal" language, the Panel could not say the trial court erred by denying the motion to arbitrate. After all, the Appellate Court has reached the same conclusion as the trial court. It is no longer relevant the trial court's order may have been premature, Judge O'Leary states. In any event, the Appellate Court does not interpret the agreement as requiring an appellate decision before the trial court could apply the poison pill or severability provisions of the agreement. Both paragraphs 14(h) and 14(n) clearly and unambiguously state the arbitration provisions cannot be saved if the Class Waiver is deemed invalid. The Class Waiver was unequivocally deemed "non-severable," Judge O'Leary points out. The Lender's final argument is the FAA preempts McGill. In its briefing, the Lender notes two telecommunication companies, AT&T Mobility LLC and Comcast Corporation, have asked the United States Supreme Court overturn the Ninth Circuit in two companion cases ruling the FAA does not preempt the McGill Rule. The Lender asserts that the Appellate Court should stay the appeal until the high court renders a decision. Encouraged by these pending petitions, the Lender presents a lengthy argument about why the Supreme Court incorrectly decided the McGill case. As noted by the Customers in their briefing, on June 1, 2020, the Supreme Court denied review of the Ninth Circuit rulings -- AT&T Mobility LLC v. McArdle (2020 ___ U.S. ___) 140 S.Ct. 2827, 207 L. Ed. 2d 159; Comcast Corp. v. Tillage (2020 ___ U.S. ___) 140 S.Ct. 2827, 207 L. Ed. 2d 158. Insofar as the Lender thinks McGill was wrongly decided, the argument fails, as the Appellate Court is bound to follow the precedent of the California Supreme Court, Judge O'Leary explains. Moreover, the Appellate Court finds its analysis to be legally sound and persuasive, as does the Ninth Circuit. It concludes the Lender's arguments the FAA preempts the McGill Rule lack merit, and there is no basis to stay the appeal. Accordingly, the order is affirmed. The Appellant's motion for judicial notice of documents relating to the Lender's licensing is denied because the information was not before the trial judge and not relevant to the Panel's analysis. The Respondents will recover their costs on appeal. A full-text copy of the Court's Opinion dated Jan. 11, 2021, is available at https://tinyurl.com/y2wq45zd from Leagle.com. Cohelan Khoury & Singer, Isam C. Khoury -- ikhoury@ckslaw.com -- Michael D. Singer -- msinger@ckslaw.com -- and Kristina De La Rosa -- kdelarosa@ckslaw.com -- Mesriani Law Group and Rodney Mesriani -- rodney@mesriani.com -- for Plaintiffs and Respondents. Ballard Spahr LLP and Marcos D. Sasso -- sassom@ballardspahr.com -- for Defendant and Appellant. FCI OAKDALE: Steven Rast Suit Seeks to Certify Class of Prisoners ----------------------------------------------------------------- In the class action lawsuit captioned as Steven Z. Rast, v. Warden Ma'at, et al., Case No. 2:20-cv-01503-TAD-KK (W.D. La.), the Plaintiff asks the Court to enter an order: 1. certifying this action as a class action defined as follows: "all prisoners who are incarcerated at the Federal Correctional Institution II, Oakdale, Louisiana, during the ongoing COVID-19 pandemic;" The following are excluded from the Class: (1) any judge presiding over this action and members of their family; (2) any prisoners' subsidiaries, parents, successors, predecessors, and any entity in which any prisoner or his parent has a controlling interest (as well as current or former employees, officers, and directors); (3) persons who properly execute and file a timely request for exclusion from the Class; (4) persons whose claims in this matter have beneficially adjudicated on the merits or otherwise released; (5) Plaintiff's counsel and counsel for any Defendant; and (6) the legal representatives, successors, and assigns of any such excluded persons; and 2. adding the following plaintiffs to this action: all Plaintiffs are incarcerated and housed at the Federal Correctional Institution II, Oakdale, Louisiana: -- Addison, Lonnie -- Barnett, John -- Brockington, Alonzo -- Bernal-Salazar, Juan -- Bullard, Jerry -- Burgess, Brian -- Camilo, Gary -- Campbell, Cairro -- Cannon-Guzman, Roberto -- Cardenas-Meneses, Joel -- Catano-Lopez, Edward -- Chavez, Carlos -- Cifuentes, Jorge -- Cruz-Perez, Rodrigo -- Delao-Lopez, Mario -- Elmezain, Mohammad -- Fernandez-Ramos, Reyes -- Galvan, Enrique -- Gaton, Christian -- Gonzalez-Chavez, Manuel -- Gonzalez, Jesus -- Goodman, Terrance -- Green, Ronrico -- Groover, Jeffrey -- Guizar-Hernandez, Javier -- Hernandez-Gonzalez, Nicolas -- Hernandez-Hernandez, Jose -- Hernandez-Madrid, Jose -- Higgins, Wallace -- Hollins, Kevin -- Jimenez, Edwin -- Jimenez-Nava, Juan -- Kelly, Joseph -- Larry, Lawrence -- Leon, Torres -- Lopez, Nicolas -- Martinez, Homar -- Mediola-Martinez, Maximo -- Meraz-Magana, Apolinar -- Micolta-Sinisterra, Silvio -- Murillo, Jose L. -- Norris, Evan -- Palacios-Dominguez, Angelio -- Potter, Brandon -- Proffitt, Michael -- Rivera, Ricardo -- Rodas, Manuel -- Romans, Richard -- Rowlett, Shawn -- Rouse, Matthew -- Sanchez, Luis Isaac -- Sanford, Dontrelle -- Thomas, Edward -- Tobias, Mark -- Valdez, Narciso -- Valencia, Gabriel -- Valenzuela, Victor -- Vance, James -- Wolfe II, Charles -- Worthey, Dustin -- Wright Jr., Richard Plaintiff Rast brings this action for damages and other legal and equitable remedies resulting from the civil rights violations of the Plaintiff's Fifth, Eighth, and Fourteenth Amendment rights under the United States Constitution committed by the Defendants. The Defendants have arbitrarily, capriciously, systematically, and with deliberate indifference held Plaintiffs in conditions that put each plaintiff in danger of physical harm or death. says the complaint. FCI Oakdale is a low-security facility. FCI Oakdale is located in central Louisiana, thirty-five miles south of Alexandria. A copy of the Plaintiff's motion to certify class dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3nTkvxh sat no extra charge.[CC] FIAT CHRYSLER: Distribution of Koopman Settlement Funds Granted --------------------------------------------------------------- In the case, GARY KOOPMANN, TIMOTHY KIDD and VICTOR PIRNIK, Individually and on Behalf of All Others Similarly Situated, Plaintiff(s) v. FIAT CHRYSLER AUTOMOBILES N.V., FCA US, LLC, RONALD ISELI AND ALESSANDRO BALDI, AS CO-EXECUTORS FOR THE ESTATE OF SERGIO MARCHIONNE, SCOTT KUNSELMAN, MICHAEL DAHL, STEVE MAZURE and ROBERT E. LEE, Defendants, Case No. 1: 15-cv-07199-JMF (S.D.N.Y.), Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York granted the Plaintiffs' Motion for Distribution of Class Action Settlement Funds. The funds that are currently in the Net Settlement Fund (less any necessary amounts to be withheld for payment of potential tax liabilities and related fees and expenses) will be distributed on a pro rata basis to the Authorized Claimants identified in Exhibits C-1 and C-2 to the Declaration of Nicholas Schmidt Concerning the Results of the Claims Administration Process, at the direction of the Class Counsel, The Rosen Law Firm P.A. and Pomerantz LLP, pursuant to the Stipulation and Agreement of Settlement filed with the Court on April 5, 2019, and the Plan of Allocation of the Net Settlement Fund set forth in the Notice of Pendency and Proposed Settlement of Class Action that was distributed pursuant to the Court's prior Order. Any person asserting any rejected or subsequently filed claims are finally and forever barred as of May 21, 2020, the date used to finalize the administration based on the Schmidt Declaration. The checks for distribution to Authorized Claimants will bear the notation "CASH PROMPTLY, VOID AND SUBJECT TO RE-DISTRIBUTION 180 DAYS AFTER DISTRIBUTION DATE." The Class Counsel and the Claims Administrator, Epiq Class Action & Claims Solutions, Inc., are authorized to locate and/or contact any Authorized Claimant who has not cashed his, her, or its check within said time. Pursuant to the Plan of Allocation, if any funds remain in the Net Settlement Fund by reason of uncashed checks or otherwise, then, after Epiq has made reasonable and diligent efforts to have the Settlement Class Members who are entitled to participate in the distribution of the Net Settlement Fund cash their distribution checks, any balance remaining in the Net Settlement Fund after three months from the initial distribution (whether by reason of tax refunds uncashed checks or otherwise), the Claims Administrator, shall, if feasible: (a) first, pay any amounts mistakenly omitted from the initial disbursement; (b) second, pay any additional settlement administration fees, costs, and expenses, including those of the Class Counsel as may be approved by the Court; and (c) finally, make a second distribution to claimants, who cashed their checks from the initial distribution and who would receive at least $10, after payment of the estimated costs, expenses, or fees to be incurred in administering the Net Settlement Fund and in making the second distribution, if such second distribution is economically feasible. A full-text copy of the Court's Jan. 12, 2021 Order is available at https://tinyurl.com/y6m2uznv from Leagle.com. GEICO GENERAL: Plaintiffs Ask Court to Amend Reply Brief -------------------------------------------------------- In the class action lawsuit Re GEICO General Insurance Company, Case No. 4:19-cv-03768-HSG (N.D. Cal.), the Plaintiffs ask Court to amend/correct the reply that they filed in support of their motion for class certification. After the Plaintiffs filed their reply, the Defendant GEICO sought to confer with Plaintiffs. The Parties reached the agreement that Plaintiffs would amend/correct their reply brief. A copy of the motion to amend/correct plaintiffs' reply in support of class certification dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/38Wn1yz at no extra charge.[CC] Counsel the for Plaintiffs and the Proposed Classes, are: Annick M. Persinger, Esq. Mallory Morales, Esq. TYCKO & ZAVAREEI LLP 10880 Wilshire Blvd., Suite 1101 Los Angeles, CA 90024 Telephone: (510) 254-6808 E-mail: apersinger@tzlegal.com mmorales@tzlegal.com - and - Edmund A. Normand, Esq. Jacob L. Phillips, Esq. NORMAND PLLC 3165 McCrory Place, Ste. 175 Orlando, FL 32803 Telephone: (407) 603-6031 E-mail: service@ednormand.com ed@ednormand.com jacob@normandpllc.com - and - Michael Louis Kelly, Esq. Joshua A. Fields, Esq. KIRTLAND & PACKARD LLP 1638 South Pacific Coast Highway Redondo Beach, CA 90277 Telephone: (310) 536-1000 Facsimile: (310) 536-1001 E-mail: mlk@kirtlandpackard.com jf@kirtlandpackard.com - and - Andrew John Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave, Ste 1205 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com GOODRX HOLDINGS: Levi & Korsinsky Reminds of February 16 Deadline ----------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of GoodRx Holdings, Inc ("GoodRx ") (NASDAQ: GDRX) between September 23, 2020 and November 16, 2020. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the Central District of California. To get more information go to: https://www.zlk.com/pslra-1/goodrx-holdings-inc-loss-submission-form?prid=12174&wire=5 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is no cost or obligation to you. The complaint alleges that throughout the class period Defendants issued materially false and/or misleading statements and/or failed to disclose that: at the time of the IPO, unbeknownst to investors, Amazon.com, Inc. was developing and would soon introduce its own online and mobile prescription medication ordering and fulfillment service that would directly compete with GoodRx. Defendants timed the IPO so that it was priced before Amazon announced its online pharmaceutical business to facilitate the IPO and create artificial demand for the common shares sold therein, as well to maximize the amount of money the Company and the selling stockholders could raise in the IPO. Given defendants' knowledge of Amazon's intention to enter the online pharmaceutical business, and their misleading statements about GoodRx's competitive position made contemporaneously with that knowledge, defendants' materially false and/or misleading statements alleged herein were made willfully and caused GoodRx common stock to trade at artificially inflated prices during the Class Period. If you suffered a loss in GoodRx you have until February 16, 2021 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] GOOGLE LLC: Kavulak Sues Over App Market Monopoly ------------------------------------------------- Alison Kavulak, individually and on behalf of all others similarly situated, Plaintiffs, v. Google LLC, Google Ireland Limited, Google Commerce Limited, Google Asia Pacific Pte. Limited and Google Payment Corp., Defendants, Case No. 20-cv-09421 (N.D. Cal., December 30, 2020), seeks damages, injunctive relief, and other relief under Sections 4, 12, and 16 of the Clayton Act including Section 2 of the Sherman Antitrust Act and for violation of the Unfair Competition Act. Google is a technology company that provides internet-related services and products, including online advertising technologies and a search engine. It is a wholly-owned subsidiary of Alphabet Inc. Google's Play Store is available to mobile device users running Google's Android operating system which Google claims to be an "open" source software. Google allegedly deterred competition in the market for Android mobile applications and products sold with such apps. McCready claims that users have overpaid for such products due to Google's monopolization of this market. Google's market dominance of Android OS was allegedly achieved through a series of contracts with distributors designed to minimize competition. Google requires OEMs such as LG, Motorola, and Samsung to enter into agreements specifically forbidding them from developing or distributing versions of Android that do not comply with Google-controlled technical standards. Kavulak purchased application(s) and/or made in-app purchase(s) through the Google Play Store. [BN] Plaintiff is represented by: Dennis Stewart, Esq. GUSTAFSON GLUEK PLLC 600 B Street, 17th Floor San Diego, CA 92101 Telephone: (619) 595-3299 Email: dstewart@gustafsongluek.com - and - Daniel E. Gustafson, Esq. Daniel C. Hedlund, Esq. Daniel J. Nordin Ling S. Wang, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 Email: dgustafson@gustafsongluek.com dhedlund@gustafsongluek.com dnordin@gustafsongluek.com lwang@gustafsongluek.com GOPLUS CORP: Arbitration Ruling as to McLane's PAGA Claim Affirmed ------------------------------------------------------------------ In the case, CHRISTOPHER McLANE, Plaintiff and Respondent v. GOPLUS CORP. et al., Defendants and Appellants, Case No. E072046, E072049 (Cal. App.), the Court of Appeals of California for the Fourth District, Division Two, reversed in part and affirmed in part the trial court's order denying GoPlus and Costway.com Inc.'s joint petition to compel arbitration of McLane's claims. GoPlus hired McLane in January 2018. As part of his new employee onboarding, he had to sign an "Acknowledgment" form. The Acknowledgment is on GoPlus letterhead, states "ACKNOWLEDGMENT" at the top, and contains three short, separately spaced paragraphs, including the paragraph on the Arbitration Agreement. The "Arbitration Agreement" paragraph states in full: "Notice: By signing this acknowledgment you are agreeing that all disputes will be decided by neutral arbitration, and you are giving up your right to a jury trial or court trial." Immediately below the Arbitration Agreement, there is a line for the employee's signature, a line for the employee's printed name, and a line for the date. McLane filed an individual action and a class action against GoPlus and Costway alleging various employment-related claims. In his individual action, he alleged claims of discrimination, retaliation, and wrongful termination. In his class action, he alleged wage-and-hour claims under the Labor Code, including one claim under the Private Attorneys General Act. GoPlus and Costway petitioned the trial court to compel McLane to arbitrate his claims, arguing that he agreed to arbitrate the claims when he agreed to arbitrate "all disputes" by signing the Acknowledgment. The trial court denied the petition. Relying on Metters v. Ralph's Grocery Co. (2008) 161 Cal.App.4th 696, the trial court first found that the parties did not form a contract because the Acknowledgment "doesn't even look like a contract" and thus McLane did not agree to its terms. It also found that, even if the parties had agreed to the terms of the Acknowledgement, the Arbitration Agreement is unconscionable and thus unenforceable. The trial court reasoned that the Arbitration Agreement lacks mutuality in that "nothing is said about GoPlus giving up any of its rights" and it does not explain "where the case will be arbitrated or under what rules of arbitration it would proceed." GoPlus and Costway appeal. They contend the trial court erroneously relied on Metters, and concluded that McLane did not agree to the Arbitration Agreement despite having signed the Acknowledgment. The Court of Appeals concludes McLane and GoPlus formed a contract when McLane signed the Acknowledgment. He, therefore, agreed to the Arbitration Agreement's terms. Their bilateral agreement to arbitrate is sufficient consideration to render the Arbitration Agreement enforceable. The trial court erred in finding otherwise. The trial court agreed with McLane that, even if he agreed to the Arbitration Agreement, it is unenforceable because it is unconscionable. The Appellate Court disagrees. It concludes that the Arbitration Agreement is not substantively unconscionable. The CAA and applicable case law will govern the parties' arbitration proceedings because the Arbitration Agreement does not state the proceedings will be governed by procedures different from those prescribed in the CAA. It follows that the Arbitration Agreement's terms are not substantively unconscionable. Finally, to the extent that McLane argues the Arbitration Agreement is unconscionable because GoPlus did not attach a copy of the applicable arbitration rules, the Court rejects the argument. The state Supreme Court explicitly held that an arbitration agreement is not substantively unconscionable if it does not attach a copy of the applicable arbitration rules. The trial court did not address McLane's argument that his PAGA claim is not arbitrable. Nor did the trial court address GoPlus' argument that McLane's PAGA claim was arbitrable if it sought unpaid wages. GoPlus, however, waived any argument that McLane's PAGA claim is arbitrable by failing to address the issue on appeal. The Appellate therefore affirms the trial court's denial of GoPlus' petition to compel arbitration of McLane's PAGA claim. On remand, the trial court may stay McLane's PAGA claim pending the resolution of the parties' arbitration proceedings or may allow it to proceed in the trial court so long as the claim does not seek unpaid wages. The trial court also may consider striking the unpaid wages allegations from McLane's complaint, permitting him to amend the complaint, and other measures. Finally, in his opposition to Costway's petition to compel arbitration, McLane argued that Costway cannot enforce the Arbitration Agreement because it is not a signatory to it. In its reply brief, Costway argued for the first time that it could enforce the Arbitration Agreement because McLane's claims against Costway are "intimately founded in and intertwined" with McLane's claims against GoPlus. The Court finds that neither party addresses on appeal the issue of whether Costway can enforce the Arbitration Agreement. In any event, the trial court's statements at the hearing suggest that it found it unnecessary to decide whether Costway could enforce the Arbitration Agreement because the court found it unenforceable as unconscionable. But because it concludes the Arbitration Agreement is enforceable, the Court holds that the trial court may determine on remand whether Costway can enforce the Arbitration Agreement. In light of the foregoing, the Court of Appeals reversed the trial court's order denying GoPlus and Costway's petitions to compel arbitration as to McLane's non-PAGA claims, and affirmed as to his PAGA claim. The parties will bear their own costs on appeal. A full-text copy of the Court's Jan. 12, 2021 Opinion is available at https://tinyurl.com/y5x5evmn from Leagle.com. Troutman Sanders, Eudeen Chang -- eudeen.chang@troutman.com -- Misha Tseytlin -- misha.tseytlin@troutman.com -- Mark J. Payne -- mark.payne@troutman.com -- and Lauren E. Grochow -- lauren.grochow@troutman.com -- for Defendants and Appellants. Sansanowicz Law Group and Leonard H. Sansanowicz; Feldman Browne Olivares and Lee R. Feldman -- lee@leefeldmanlaw.com -- for Plaintiff and Respondent. GTT COMMUNICATIONS: Federman & Sherwood Reminds of Mar. 15 Deadline ------------------------------------------------------------------- Federman & Sherwood announces that on January 12, 2021, a class action lawsuit was filed in the United States District Court for the Central District of California against GTT Communications, Inc. (NYSE: GTT). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is May 5, 2016 through November 9, 2020. To learn how to participate in this action, please visit https://www.federmanlaw.com/blog/federman-sherwood-announces-the-filing-of-a-securities-class-action-lawsuit-against-gtt-communications-inc-2/. Plaintiff seeks to recover damages on behalf of all GTT Communications, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, March 15, 2021 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: rkh@federmanlaw.com [GN] GTT COMMUNICATIONS: Frank Roth Sues Over Drop in Share Price ------------------------------------------------------------ FRANK ROTH BETEILIGUNGS GmbH, Individually and on behalf of all others similarly situated v. GTT COMMUNICATIONS, INC., RICHARD D. CALDER, JR., ERNIE ORTEGA, MICHAEL T. SICOLI, DANIEL M. FRASER, and STEVEN BERNS, Case No. 2:21-cv-00270 (C.D. Cal., Jan. 12, 2021) is a federal securities class action brought on behalf of the Plaintiff and all persons or entities that purchased or otherwise acquired GTT publicly traded securities from May 5, 2016 through November 9, 2020, inclusive, seeking to recover compensable damages under the Securities Exchange Act of 1934 arising from the Defendants' issuance of false and misleading statements resulting to the precipitous decline in the market value of the Company's securities. According to the complaint, throughout the Class Period, GTT stated that its internal controls over financial reporting were "effective" and provided "reasonable assurance" that all required information was being disclosed. In truth, GTT's internal controls over financial reporting were allegedly inadequate, which led to years of inaccurate financial reporting, including failing to make adequate adjustments to the Company's Cost of Telecommunication Services and failing to recognize certain expenses. The complaint further asserts that as a result of GTT's inadequate internal controls, the Company announced after market hours on August 10, 2020 that it would delay its filing of its quarterly report for the quarter ended June 30, 2020. On November 9, 2020, the Company announced its quarterly report for the quarter ended September 30, 2020 would be delayed as well. The Company stated the delay was caused by the ongoing review and "examining the accounting for Cost of Telecommunications Services and [. . . ] a number of issues in connection with the Company's previously issued financial statements." On this news, GTT shares fell by $0.04, or 1%, to close at $3.96 on November 9, 2020, the suit says. GTT operates a global communications network, providing telecommunications services to large, multinational enterprises, carriers, and governments across five continents.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 E-mail: lrosen@rosenlegal.com GTT COMMUNICATIONS: Portnoy Law Announces Securities Class Action ----------------------------------------------------------------- The Portnoy Law Firm advises investors that a class action lawsuit has been filed on behalf of GTT Communications, Inc. ("GTT Software" or "the Company") (NYSE: GTT) investors that acquired securities between May 5, 2016 and November 9, 2020. Investors are encouraged to contact attorney Lesley F. Portnoy, to determine eligibility to participate in this action, by phone 310-692-8883 or email, or click here to join the case. It is alleged in the complaint that GTT throughout the Class Period misleading and/or false statements and/or failed to disclose that: (1) GTT's internal controls suffered from issues related to the recording and reporting of Cost of Telecommunications Services; (2) GTT previously reported Cost of Telecommunications was inaccurate or accounted for unsupported adjustments; (3) delays in the GTT's 10-Q quarterly reports would result from inadequate internal controls; and (4) GTT's public statements were materially misleading and/or false and/or lacked a reasonable basis, as a result of the foregoing. Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims arising from corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] GTT COMMUNICATIONS: Rosen Law Reminds Investors of Mar. 15 Deadline ------------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the securities of GTT Communications, Inc. (NYSE:GTT) between May 5, 2016 and November 9, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for GTT investors under the federal securities laws. To join the GTT class action, go http://www.rosenlegal.com/cases-register-1927.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) the Company's internal controls suffered from issues related to the recording and reporting of Cost of Telecommunications Services; (2) the Company's previously reported Cost of Telecommunications was inaccurate or accounted for unsupported adjustments; (3) inadequate internal controls would result in delays in the Company's 10-Q quarterly reports; and (4) as a result of the foregoing, Defendants' public statements were materially false and/or misleading and/or lacked a reasonable basis. A class-action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 15, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1927.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll-free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest-ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome.[GN] GTT COMMUNICATIONS: Schall Law Reminds of March 15 Deadline ----------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against GTT Communications, Inc. ("GTT" or "the Company") (NYSE: GTT) for violations of Sec10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between May 5, 2016 and November 9, 2020, inclusive (the "Class Period"), are encouraged to contact the firm before March 15, 2021. If you are a shareholder who suffered a loss, click https://bit.ly/3itiLK4 to participate. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. GTT failed to maintain proper internal controls related to the recording and reporting of Cost of Telecommunications Services. The Company's Cost of Telecommunications as previously reported included unsupported adjustments and were otherwise inaccurate. The Company's failure to maintain internal controls resulted in a delay in the Company's 10-Q quarterly reports. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about GTT, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. [GN] HAYT & HAYT: Settlement Deal Gets Final Approval in Barenbaum Suit ------------------------------------------------------------------ In the class action lawsuit captioned as DANIEL BARENBAUM, on behalf of himself and all others similarly situated, v. HAYT, HAYT & LANDAU, LLC, Case No. 2:18-cv-04120-BMS (E.D. Pa.), the Hon. Judge J. Schiller entered an order granting the motions for final approval of the settlement agreement and for attorneys' fees and costs. The Court said, "Having reviewed the record before the Court and the parties' submissions, the Court concludes that the requirements of Rule 23 have been satisfied, and that the settlement is fair, reasonable, and adequate. Further, the request for attorneys' fees and costs is reasonable. The Court, therefore, grants the motions to approve the settlement and for attorneys' fees and costs, including an incentive award for Plaintiff. An Order approving the settlement--with specific additional distribution requirements -- and the petition for attorneys' fees and costs will be docketed separately." Defendant Hayt issued deposition notices to judgment debtors in Pennsylvania without ever intending to take a deposition. Daniel Barenbaum received one of these notices and appeared at the designated location, as did hundreds of other recipients of the notices. Barenbaum filed a class action lawsuit contending that Hayt's sending of the deposition notices without intent to take a deposition violates the Fair Debt Collections Practices Act (FDCPA). Following the Court's ruling on motions for summary judgment and class certification, the parties reached an agreement to settle the case. The Court partially granted summary judgment to Plaintiff, appointed Barenbaum as class representative, appointed Plaintiff's counsel Marcus & Zelman, LLC as class counsel, and certified a class, pursuant to Rule 23(b)(3), of: "all consumers residing in the Commonwealth of Pennsylvania who received a 'Notice of Deposition In Aid Of Execution' from the Defendant on an obligation owed or allegedly owed to Midland Funding, LLC, during the time period of September 25, 2017 to September 24, 2018, and who thereafter appeared as directed at the date, time and location noticed for the Deposition." Settlement Terms -- The proposed Settlement Class is the same class that the Court previously certified pursuant to Rule 23(b)(3). -- Under the proposed settlement agreement, Hayt will create a class settlement fund of $8,200. Each class member who did not opt out of the settlement will receive a pro rata share of the class recovery, which is approximately $25.15 to each of the 326 class members. -- Checks issued to claimants will be void sixty days from issuance if they have not been cashed. -- Any checks that have not been cashed by the void date will be donated as a cy pres award to the Pennsylvania Legal Aid Network, located at 118 Locust Street in Harrisburg, Pennsylvania. -- Hayt shall pay directly to the Class Administrator all the reasonable costs and expenses necessary to administer and facilitate the Settlement Agreement. Hayt, Hayt & Landau is a collection law firm with offices in Philadelphia, Pennsylvania. A copy of the Court's memorandum dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/3syjeiP at no extra charge.[CC] HINJUDA GLOBAL: McCarthy Sues Over Call Center Staff's Unpaid Wages ------------------------------------------------------------------- CHRISTOPHER MCCARTHY, individually and on behalf of all others similarly situated v. HINJUDA GLOBAL SOLUTIONS, INC., Case No. 1:21-cv-01016-JES-JEH (C.D. Ill., Jan. 12, 2021) arises under the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act for Defendant's failure to pay Plaintiff and other similarly situated persons all earned regular and overtime pay for all time worked. Mr. McReynolds was employed from approximately December 2016 to March 2018 as an hourly, non-exempt, telephone-dedicated employee who worked in a call center owned and operated by Defendant located in Peoria, Illinois. Hinjuda Global Solutions, Inc. operates in the business process management industry.[BN] The Plaintiff is represented by: James X. Bormes, Esq. Catherine P. Sons, Esq. LAW OFFICE OF JAMES X. BORMES, P.C. 8 South Michigan Avenue, Suite 2600 Chicago, IL 60603 Telephone: (312) 201-0575 - and - Thomas M. Ryan, Esq. LAW OFFICE OF THOMAS M. RYAN, P.C. 35 East Wacker Drive, Suite 650 Chicago, IL 60601 Telephone: (312) 726-3400 HOME DEPOT: Asks Court to Continue Class Certification Dates ------------------------------------------------------------ In the class action lawsuit captioned as STEVE MOSHTAGH, an individual, on behalf of himself and others similarly situated, v. THE HOME DEPOT U.S.A., INC., a Delaware corporation, Case No. 2:19-cv-01205-RSM (W.D. Wash.), Home Depot moves the Court for an order to continue the current class certification briefing as follows: 1. Plaintiff's deadline to file a class certification motion is continued from January 21, 2021 to July 30, 2021; 2. Home Depot's deadline to oppose plaintiff's class certification motion is continued from February 18, 2021 to August 26, 2021; and 3. The Plaintiff's deadline to reply is continued from to March 4, 2021 to September 9, 2021 Shortly after the Court continued the class certification deadline, Washington and much of the nation went into lockdown due to the COVID-19 pandemic, preventing travel to the depositions scheduled for June in California, Texas, Georgia, Oregon and Washington. The parties submitted a further stipulation to continue the class certification deadline to January 21, 2021, believing this would allow sufficient time to resume travel and allow the depositions to go forward in person; the Court granted that further continuance on July 31, 2020. In this putative wage and hour class action, plaintiff Steve Moshtagh alleges that Home Depot violated Washington law by: (1) making unlawful payroll deductions for plaintiff's contributions to the Homer Fund, a charitable organization that provides grants to Home Depot employees who experience financial hardship; (2) failing to provide rest breaks to employees in 13 certain Washington stores who work five-hour shifts; and (3) failing to pay employees for time spent waiting to exit after the stores are closed to the public ("waiting time claim"). The Plaintiff intends to move for class treatment, including the waiting time claim. Home Depot disputes plaintiff's claims and maintains they are not appropriate for class treatment. Home Depot is the largest home improvement retailer in the United States, supplying tools, construction products, and services. A copy of the Defendant's motion to continue class certification deadlines dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3qw9lAj at no extra charge.[CC] Attorneys for the Defendant The Home Depot U.S.A., Inc., are: D. Michael Reilly, Esq. John S. Devlin III, Esq. LANE POWELL PC 1420 Fifth Ave, Ste 4200 P.O. Box 91302 Seattle, WA 98111-9402 Telephone: (206) 223-7000 Facsimile: (206) 223-7107 E-mail: reillym@lanepowell.com devlinj@lanepowell.com - and - Donna M. Mezias, Esq. Dorothy F. Kaslow, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 580 California Street, Suite 1500 San Francisco, CA 94104 Telephone: (415) 765-9500 Facsimile: (415) 765-9501 E-mail: dmezias@akingump.com dkaslow@akingump.com HUDSON HALL: New York Court Refuses to Reconsider Order in Stewart ------------------------------------------------------------------ In the lawsuit captioned DERRICK STEWART, on behalf of himself, FLSA Collective Plaintiffs and the Class v. HUDSON HALL LLC, d/b/a MERCADO LITTLE SPAIN, et al., Case No. 20 Civ. 885 (PGG) (SLC) (S.D. N.Y.), the U.S. District Court for the Southern District of New York denied the Plaintiff's motion for reconsideration of the Court's December 9, 2020 Order denying his motion to lift the Protective Order precluding the deposition of Jose Ramon Andres Puerta, also known as Jose Ramon. Plaintiff Stewart filed the putative collective and class action asserting claims under the Fair Labor Standards Act and the New York Labor Law against Corporate Defendants Hudson Hall, LLC, Hudson Hall Holdings, LLC, Think Food Group, LLC, and Andres. Stewart is seeking to recover: (1) unpaid overtime wages; (2) unpaid wages for off-the-clock work; (3) liquidated damages; and (4) attorneys' fees and costs. Before the Court is Stewart's motion pursuant to the Individual Practices of the Judge and Local Rule 6.3 seeking reconsideration of the Court's December 9, 2020 Order. On January 31, 2020, Stewart filed the original complaint in the action, and on April 27, 2020, he filed the FAC. On May 29, 2020, the Defendants filed the Motion to Dismiss. On October 19, 2020, the Court issued the R&R, recommending that the Motion to Dismiss be granted in part to the extent that the claims against Holdings and Think be dismissed without prejudice, and denied in part as to the claims against Andres. The Court also recommended that Stewart be granted one final opportunity to amend his pleading. Neither party has filed written objections to the R&R. On October 2, 2020, the Defendants moved for a protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) precluding the Plaintiff from taking Andres' deposition, or, in the alternative, holding his deposition in abeyance until after the Court rules on the Defendants' pending Motion to Dismiss." On October 19, 2020, Stewart filed a Letter notifying the Court that he did not oppose the Protective Order Motion. On October 20, 2020, the Court granted the Protective Order Motion "as unopposed by the Plaintiff" and entered the Protective Order. On November 19, 2020, Stewart filed the Original Motion, citing recent deposition testimony of Michael Principe, the Executive Director of Mercado Little Spain, which he contends shows that Andres (1) interviewed personnel, (2) hired personnel, (3) trained personnel, (4) developed the menus, and (5) engaged in quality control of the food. In the December 9 Order, the Court held that Stewart "failed to meet his burden to show an 'extraordinary circumstance or compelling need' to take Andres' deposition at this time and there was no discernable change of circumstance since Stewart decided not to oppose the Protective Order." As is particularly relevant to the current Motion, the Court held that Stewart's own and Principe's deposition testimony did "not represent an extraordinary circumstance or compelling need for Andres' testimony at this time." Magistrate Judge Sarah L. Cave opines that Stewart has failed to meet his burden, for a second time, to justify the Court's entry of a Protective Order precluding Andres' deposition at this time. She concludes, in her discretion, that the Defendants' effort in preparing a two-page response to Stewart's two-page Motion to Reconsider does not justify the award of attorneys' fees and costs. No delay has resulted from Stewart's Motion to Reconsider, nor has the Court previously warned Stewart against making frivolous filings and the risks of doing so. Therefore, the Magistrate Judge denies the Defendants' request for an award of attorneys' fees and costs. For the reasons set forth in the Order, the Motion to Reconsider is denied. The Defendants' request for fees and costs in opposing the Motion to Reconsider is denied. The Clerk of the Court is respectfully directed to close ECF No. 67. A full-text copy of the Court's Order dated Jan. 11, 2021, is available at https://tinyurl.com/y4cvokre from Leagle.com. INNOCOLL HOLDINGS: Class Certification Bid Mooted w/o Prejudice --------------------------------------------------------------- In the class action lawsuit re: INNOCOLL HOLDINGS PUBLIC LTD. CO. SEC. LITIG., Case No. 2:17-cv-00341-GEKP (E.D. Pa.), the Hon. Judge Gene E.K. Pratter entered an order: 1. mooting without prejudice the Plaintiffs' Motion for Class Certification; 2. deeming moot the Motion to Seal and the Motion for Leave to File Excess Pages; and 3. directing completion of all class certification discovery and pertinent evidence as of February 3, 2021, after which the Court will set the class certification briefing schedule. Innocoll Holdings operates as a specialty pharmaceutical company. A copy of the Court's order dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/35O4mTJ at no extra charge.[CC] INVITATION HOMES: McCumber Files Suit in Maryland ------------------------------------------------- A class action lawsuit has been filed against Invitation Homes, Inc. The case is styled as Francine McCumber, Erin Bird, Melissa Lynch, La Shay Harvey, Maryah Marciniak, Brian Majka, Chad Whetman, Tracy White, Rachel Osborn, Teresa Kerr formerly known as: Teresa Marie Moore, as individuals, on behalf of themselves and on behalf of others similarly situated v. Invitation Homes, Inc., a Maryland corporation, Case No. 1:21-cv-00123-CCB (D. Md., Jan. 14, 2021). The nature of suit is stated as Other Contract. Invitation Homes -- https://www.invitationhomes.com/ -- is a home leasing company, providing professionally managed, updated homes for rent in desirable neighborhoods for a more inviting life.[BN] The Plaintiffs are represented by: William Nelson Sinclair, Esq. SILVERMAN THOMPSON SLUTKIN AND WHITE LLC 201 N Charles St 26th Fl Baltimore, MD 21201 Phone: (410) 385-2225 Fax: (410) 547-2432 Email: bsinclair@mdattorney.com JBS SA: $24.5 Million Pork Price-Fixing Settlement Gets Early OK ---------------------------------------------------------------- bloomberglaw.com reports that the pork wholesalers leading a proposed price-fixing class action over an alleged industrywide cartel scheme won preliminary approval from a federal judge in Minneapolis for a $24.5 million settlement with meatpacking giant JBS SA. Judge John R. Tunheim gave his tentative blessing to the deal, which resolves claims brought by "direct" purchasers, but not parallel retailer and consumer allegations consolidated with them in the U.S. District Court for the District of Minnesota. In addition to the payment, the pact includes a pledge by JBS to cooperate against the other pork processors named as defendants. Class counsel haven't yet requested attorneys' fees in connection with the agreement. The deal -- reached through "arm's length negotiations by highly experienced counsel with the assistance of an experienced and nationally renowned mediator" -- appears "fair, reasonable, adequate, and in the best interests of the settlement class," the judge wrote Wednesday. The approval decision comes about three months after Tunheim let the antitrust lawsuit proceed with claims that the country's top pork processors fixed prices for years through secret data exchanges and coordinated public statements about the need for herd cutbacks. In addition to JBS, the suit targets affiliates of Tyson Foods Inc., Hormel Foods Corp., Clemens Food Group LLC, Seaboard Foods LLC, Smithfield Foods Inc., Triumph Foods Inc., and Eli Lilly & Co. subsidiary Agri Stats Inc., which runs industry databases. It's part of a wave of price-fixing cases involving livestock and protein, including chicken, beef, turkey, tuna, salmon, and eggs. Tuna and chicken executives are also facing actual or potential prison time for their roles in the alleged schemes. JBS subsidiary Pilgrim's Pride Corp. -- which saw its CEO hit with criminal charges in June -- will pay $111 million to resolve a Justice Department probe. It also agreed Jan. 11 to settle the proposed class action for $75 million, and Tyson said the same day it had reached a deal in principle. The beef industry, meanwhile, is contending with two separate federal investigations into its prices. Lockridge Grindal Nauen PLLP and Pearson Simon & Warshaw LLP are lead counsel for the wholesalers. Cuneo Gilbert & LaDuca LLP and Larson King LLP are lead counsel for the retailers. Gustafson Gluek PLLC and Hagens Berman Sobol Shapiro LLP are lead counsel for the consumers. JBS is represented by Quinn Emanuel Urquhart & Sullivan LLP. Hormel is represented by Faegre Drinker Biddle & Reath LLP. Tyson is represented by Axinn, Veltrop & Harkrider LLP. Clemens is represented by Kirkland & Ellis LLP. Seaboard is represented by Stinson LLP. Smithfield is represented by Gibson, Dunn & Crutcher LLP. Triumph is represented by Husch Blackwell LLP. Agri Stats is represented by Hogan Lovells US LLP. The case is In re Pork Antitrust Litig., D. Minn., No. 18-cv-1776, 1/13/21. To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com [GN] JOHN VARVATOS: N.Y. Court Denies Bid for Judgment in Knox EPA Suit ------------------------------------------------------------------ In the case, TESSA KNOX, Plaintiff v. JOHN VARVATOS ENTERPRISES INC., Defendant, Case No. 17 Civ. 772 (GWG) (S.D.N.Y.), Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York denied the Defendant's motion for judgment as a matter of law except that it is entitled to a new trial as to the issue of compensatory and punitive damages, unless the Plaintiffs accept the proposed remittitur. Plaintiff Knox, on behalf of a class of 72 current or former female "sales professionals" of clothing retailer Varvatos, a menswear brand, brought the action alleging that Varvatos' clothing allowance policy, which included giving free clothing to male sales professionals but not female sales professionals, violated various federal and state anti-discrimination laws. The Plaintiffs brought claims under the federal Equal Pay Act ("EPA"); the New York Equal Pay Act ("NY EPA"); Title VII of the Civil Rights Act; and the New York Human Rights Law, alleging that male sales professionals were given a Clothing Allowance and that female sales professionals were not given equivalent compensation. As background, the Varvatos dress code required the male sales professionals to wear at least three articles of specified Varvatos-branded clothing while on the sales floor. It required female sales professionals to wear outfits that were appropriate for the work environment and representative of the brand. To assist the males in complying with the dress code, Varvatos' Clothing Allowance allowed male sales professionals to select and keep Varvatos clothing worth $3,000 at retail prices four times per year--once for each season. The selections were known as "pulls." Female sales professionals were not provided any free clothing. Instead, they (and not the males) received a 50% discount on women's clothes at "AllSaints," a sister brand of Varvatos. A trial was held from Feb. 24, 2020, to March 2, 2020. On Feb. 28, 2020, the jury delivered a verdict in favor of the Plaintiffs as to liability on all counts, awarded the compensatory damages sought by the Plaintiffs ($3,000 per quarterly pull), and found Varvatos was liable for liquidated damages and punitive damages. Following the presentation of additional evidence, the jury fixed the award of liquidated damages at $2,500 per quarter and punitive damages at $2,500 per quarter. On March 23, 2020, a judgment was entered in keeping with the jury's verdict awarding the Plaintiffs a total judgment of $3,516,051.23. Varvatos now moves for judgment as a matter of law on a number of issues pursuant to Fed. R. Civ. P. 50 and also moves for a new trial on certain issues, or a remittitur on damages, pursuant to Fed. R. Civ. P. 59(a). To prove their EPA claims, the Plaintiffs had to demonstrate that (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. Thus, the questions presented to the jury were whether the jobs were substantially equal and whether female sales professionals were paid less than their male counterparts. Judge Gorenstein finds that the jury had a legally sufficient evidentiary basis to conclude that the jobs of male sales professional and female sales professional required substantially equal effort and responsibility. Furthermore, such a conclusion was not against the weight of the evidence and thus no new trial is warranted on the issue. Thus, Varvatos is not entitled to judgment as a matter of law or a new trial on the issue of EPA or NY EPA liability. In addressing the employment discrimination claims, the jury was instructed that the Plaintiffs must prove that [1] Varvatos paid them less than men and [2] their sex was a motivating or substantial factor in Varvatos's decision to pay them less than men. The Judge finds that the jury could properly conclude that Varvatos paid female sales professionals less than male sales professionals. Varvatos' reason for the difference in pay is based entirely on the Clothing Allowance policy, which explicitly discriminates between men and women in that it gives the Clothing Allowance only to male employees, not female employees. Thus, Varvatos did not give a "nondiscriminatory" explanation for the difference in pay and the inference of discrimination raised under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) framework was never rebutted. Varvatos sought to argue three affirmative defenses to the jury: 1) that any sex discrimination was based on a factor other than sex; 2) that giving the Clothing Allowance only to men constituted a "bona fide occupation qualification" ("BFOQ"); or 3) that the policy was allowed as a "business necessity." The affirmative defenses were raised during the charge conference pursuant to Rule 51(b)(2) and the Court refused to instruct the jury on them. Varvatos argues that not presenting the first two arguments to the jury was error, and that it is entitled to judgment as a matter of law on these two defenses or, in the alternative, a new trial where it can present these defenses. The Judge opines that Varvatos presented no evidence justifying the wage differential. There was no claim made in the case that the selection for those jobs was based on sex. As to Varvatos' challenge to the Court's refusal to charge the jury on the issue of whether Varvatos had shown a "bona fide occupation qualification" defense, the Judge finds that Varvatos was not also entitled to a jury instruction on this defense because there was no evidence from which it could argue that the defense applied. Thus, the defense could not have been found to apply in the case. What remains to be addressed are various issues that ultimately relate to the award of damages: specifically, (1) the compensatory damage award; (2) the jury's finding as to good faith; (3) the jury's finding as to willfulness; and (4) the entitlement to punitive damages and whether the punitive damage award was excessive. Except as otherwise stated, the the Defendant seeks relief both under Rule 50 and Rule 59 as to these issues. Varvatos argues (a) that the Plaintiffs were not paid less than their male counterparts; and (b) that the jury could not have awarded the full retail value of the clothing ($3,000) per quarter as compensatory damages In sum, the Judge holds that Varvatos is not entitled to judgment as a matter of law or a new trial except that it is entitled to a new trial as to the issue of compensatory and punitive damages, unless the Plaintiffs accept the proposed remittitur. The Judge recognizes that there is a wide range of sums that a jury could appropriately fix in an effort to answer that question. A jury might reasonably have awarded a sum of money close to the range of $250 per quarter if it viewed the Varvatos clothing as having no value to the men outside the workplace. But in an effort to respect the jury's obvious intention to award at the high end of any permissible range, and for the reasons stated in the previous section, the Judge concludes that an award of $1,500 per quarter would be a reasonable award at the very high end of the range of permissible awards. Accordingly, he grants the Defendant a new trial on the issue of damages, unless the Plaintiffs accept a remittitur of the compensatory damages award in the amount of $1,500 per quarter. As to the amount of punitive damages, the jury awarded less than the amount of compensatory damages, or $2,500 per pull. But having found that the compensatory damage number is excessive, the Judge holds that it is clear that the jury's verdict as to punitive damages rested on an error: that is, the error of assuming that the compensatory damage award could appropriately be fixed at $3,000. As he has already explained at length, however, the $3,000 compensatory award verdict cannot stand. Because the punitive damage award was entirely dependent on this finding, the Judge concludes that, if the punitive award is left undisturbed, it will for all practical intents and purposes rest on "an error that caused the jury to include in the verdict a quantifiable amount that should be stricken." Indeed, leaving the punitive damage award intact would thwart the jury's obvious intention to fix an award of punitive damages at 83% of the compensatory damage award. Accordingly, a new trial is ordered on the issue of the amount of punitive damages unless the Plaintiffs accept a concomitant reduction in the punitive damage award--that is, to $1,250 per quarter. For the foregoing reasons, Judge Gorenstein denied Varvatos' motion except that the Defendant is granted a new trial on the issue of compensatory and punitive damages unless the Plaintiffs agree in a writing filed on the docket within 21 days to accept the remittitur described. If the Plaintiffs accept the remittitur, they will thereafter consult with defendant and submit a new proposed amended judgment consistent with the remittitur. If they do not accept, they will so report to the Court and the Court will (1) set a deadline for the filing of revised pretrial materials and (2) set a trial date on the issue of compensatory and punitive damages to take place at a time when jury trials in the courthouse resume. A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is available at https://tinyurl.com/y3nydyut from Leagle.com. JT ENTERPRISES: Faces Gill Suit Over Unpaid Wages for Caregivers ---------------------------------------------------------------- QUINETTA GILL, on behalf of herself and all others similarly situated v. JT ENTERPRISES, INC. d/b/a ALWAYS BEST CARE OF GREATER MILWAUKEE, Case No. 21-cv-54 (E.D. Wis., Jan. 13, 2021) is a collective and class action brought pursuant to the Fair Labor Standards Act and Wisconsin's Wage Payment and Collection Laws, seeking relief for unpaid overtime compensation, unpaid agreed upon wages, liquidated damages, costs, and attorneys' fees. In approximately August 2020, Defendant hired Plaintiff into the position of caregiver responsible for providing home health care services. The Plaintiff is still currently employed with Defendant. JT Enterprises, Inc. is headquartered in New Berlin, Wisconsin, and is a privately-owned franchise doing business as "Always Best Care of Greater Milwaukee" providing home health care and related services.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com KROGER COMPANY: 9th Cir. Appeal Filed in Hawkins Mislabeling Suit ----------------------------------------------------------------- Defendant The Kroger Company filed an appeal from a court ruling entered in the lawsuit entitled SHAVONDA HAWKINS, on behalf of herself and all others similarly situated, v. THE KROGER COMPANY, Case No. 3:15-cv-02320-JM-AHG, in the U.S. District Court for the Southern District of California, San Diego. As reported in the Class Action Reporter on Dec. 28, 2020, Kroger Company moved the Court for reconsideration of the Court's decision dated November 9, 2020, granting Hawkins's motion for class certification. The Defendant contended that because the Court's jurisdictional analysis has been called into question by the Ninth Circuit's recent decision in Harris and because the Court failed to conduct the required analysis of Hawkins's experts' testimony under the Daubert standard, Kroger requested the Court to reconsider its November 9, 2020 Order and decline Hawkins's Motion for Class Certification. The Court's decision dated November 9, 2020, certified a class of: "all citizens of California who purchased, between January 1, 2010 and December 31, 2015, Kroger Bread Crumb containing partially hydrogenated oil and the front label claim "0g Trans Fat." The Plaintiff clearly and repeatedly states, under oath, that she relied on the "0g Trans Fat" label on Kroger's breadcrumbs in her decision to purchase them. The lack of details as to why, when, and how much she relied on the "0g Trans Fat" label is not a good enough reason to conclusively decide, in a motion for class certification, that Plaintiff is not credible, especially where Kroger apparently failed to develop the record on this issue, the Defendant stated. The Plaintiff purchased Kroger breadcrumbs in San Diego about six times per year from 2000 to July of 2015. She purchased the breadcrumbs for use in her weekly family meatloaf. "During much of the class period," the breadcrumbs were made with partially hydrogenated oil ("PHO"), but displayed "0g Trans Fat" on the front label. PHO is artificial trans fat. Kroger admits that because the breadcrumbs contained PHO, they contained "trace amounts" of trans fat. Kroger also claims, and Plaintiff does not dispute, that the back label of the breadcrumbs listed PHO as an ingredient as early as 2005. The Defendant filed this petition for permission to appeal under Federal Rule of Civil Procedure 23(f). The appellate case is captioned as Shavonda Hawkins v. The Kroger Company, Case No. 21-80001, in the United States Court of Appeals for the Ninth Circuit, Jan. 13, 2021.[BN] Plaintiff-Respondent SHAVONDA HAWKINS, on behalf of herself and all others similarly situated, is represented by: Gregory Weston, Esq. THE WESTON FIRM 1405 Morena Boulevard, Suite 201 San Diego, CA 92110 Telephone: (619) 255-7098 E-mail: greg@westonfirm.com Defendant-Petitioner THE KROGER COMPANY is represented by: Jacob Harper, Esq. Nicole Susan Phillis, Esq. DAVIS WRIGHT TREMAINE LLP 865 S. Figueroa Street, Suite 2400 Los Angeles, CA 90017-2566 Telephone: (213) 633-6800 E-mail: jacobharper@dwt.com nicolephillis@dwt.com LEXINGTON LAW: Moore Files TCPA Suit in Utah -------------------------------------------- A class action lawsuit has been filed against Heath. The case is styled as Jennifer Moore, individually and on behalf of all others similarly situated v. John C. Heath doing business as: Lexington Law Firm, Case No. 2:21-cv-00027-TC (D. Utah, Jan. 14, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. John Heath -- https://www.lexingtonlaw.com/about-lexington-law/profiles -- was born and raised in Salt Lake City, Utah. He received his BA from the University of Utah and his Juris Doctor from Ohio Northern University.[BN] The Plaintiff is represented by: Rebecca Anne Evans, Esq. LAWHQ LLC 299 S Main ST. #1300 Salt Lake City, UT 84111 Phone: (385) 233-6612 x. 3152 Email: rebecca@lawhq.com LINCOLN LIFE: VLF's Class Cert. Filing Deadline Extended to June 7 ------------------------------------------------------------------ In the class action lawsuit captioned as Vida Longevity Fund, LP v. Lincoln Life & Annuity Company of New York, Case No. e 1:19-cv-06004-ALC-DCF (S.D.N.Y.), the Hon. Judge Debra Freeman entered an order approving the joint proposed modified schedule for expert discovery and class certification briefing, set out as follows: 1. Expert discovery shall be conducted on the following schedule: a. The deadline for Plaintiff to serve its opening expert report(s) shall be extended from February 15, 2021, to March 1, 2021; b. The deadline for Defendant to serve its rebuttal reports shall be extended from March 29, 2021, to April 12, 2021; c. The deadline for Plaintiff to serve reply or rebuttal expert report(s) shall be set on May 14, 2021; d. The deadline for the completion of expert discovery shall be extended from May 24, 2021, to June 7, 2021. 2. The Class Certification briefing shall be conducted on the following schedule: a. The deadline for Plaintiff to file a motion for class certification shall be extended from May 7, 2021, to June 7, 2021; b. The deadline for Defendant to file its opposition to the motion for class certification shall be extended from July 9, 2021, to July 23, 2021; c. The deadline for Plaintiff to file a reply in support of its motion for class certification shall be extended from August 6, 2021, to August 20, 2021; Vida Longevity Fund is located in Austin, Texas, and is part of the Asset Management Industry. Lincoln Life & Annuity Company of New York operates as an insurance firm. The Company offers annuities, life insurance, and retirement planning services. A copy of the Court's order dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/38U3M92 at no extra charge.[CC] The Plaintiff is represented by: Nicholas C. Carullo, Esq. SUSMAN GODFREY LLP 1301 Avenue of the Americas, 32nd Floor New York, NY 10019 Telephone: (212) 336-8330 Facsimile: (212) 336-8340 The Defendant is represented by: John F. LaSalle, Esq. BOIES SCHILLER FLEXNER LLP 55 Hudson Yards New York, NY 10001 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 LOCAL ADVANTAGE: Fabricant Sues Over Unsolicited Telephone Calls ---------------------------------------------------------------- TERRY FABRICANT, individually and on behalf of all others similarly situated v. LOCAL ADVANTAGE, INC., and DOES 1 through 10, inclusive, and each of them, Case No. 2:21-cv-00304 (C.D. Cal., Jan. 13, 2021) seeks damages and any other available legal or equitable remedies resulting from the illegal actions of the Defendant in negligently, knowingly, and/or willfully contacting Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act. The complaint alleges that the Defendant used an "automatic telephone dialing system" to place its calls to Plaintiff seeking to solicit its services. The Defendant did not possess Plaintiff's "prior express consent" to receive calls using an artificial or prerecorded voice on his cellular telephone, the suit says. Local Advantage, Inc. is an online marketing company.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com LONGCAP LAMSON: Paguada Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against LongCap Lamson Products, LLC. The case is styled as Josue Paguada, on behalf of himself and all others similarly situated v. LongCap Lamson Products, LLC, Case No. 1:21-cv-00362-JPO (S.D.N.Y., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. LongCap Lamson Products, LLC, (formally Lamson & Goodnow) -- https://lamsonproducts.com/ -- maker of LamsonSharpa cutlery, is the oldest cutlery manufacturer in the United States.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com MACMILLAN PUBLISHERS: Simoni Sues Over Fraudulent Sale of E-Books ----------------------------------------------------------------- STEPHEN SIMONI, Individually and on behalf of all others similarly situated, (collectively, "Consumers") v. DOES 1 through 10, inclusive, CHARLES E. SPICER, JR., and MACMILLAN PUBLISHERS INC., (collectively, "Macmillan"), Case No. 1:21-cv-00001-KPF (S.D.N.Y., Jan. 1, 2021) arises from alleged violations of the Defendants of industry standards by fraudulently marketing and selling "ebooks" while deliberately concealing from prospective customers that its ebooks lack substantial portions of the printed book of the same title in violation of the New York General Business Law. The complaint contends that the Company continues to flout industry practice and instead sells ebooks that purposely omit the photographs and substantial textual information that are included in the printed book of the same title. Mr. Simoni was fraudulently solicited by Macmillan over the Internet outside of New York to purchase an ebook. Macmillan Publishers Inc. is a corporation incorporated in Delaware and headquartered in New York that markets and sells both printed and electronic versions of books it publishes.[BN] The Plaintiff is represented by: Stephen J. Simoni, Esq. SIMONI LAW OFFICES c/o Jardim, Meisner & Susser, PC 30B Vreeland Road, Suite 100 Florham Park, NJ 07932 Telephone: (917) 621-5795 E-mail: StephenSimoniLAW@gmail.com MARRIOTT INTERNATIONAL: Martin Suit Seeks Class Action Settlement ----------------------------------------------------------------- In the class action lawsuit captioned as CYRIL MARTIN; JENNIFER MARTIN; RUSSELL BAIRD; CYNDY BAIRD; MICHAEL ARCHIBALD; SHELLEY ARCHIBALD; STEVE OLSON; JULIE OLSON; ROBERT HAZELTON; and ALICIA HAZELTON, individually and on behalf of all others similarly situated, v. MARRIOTT INTERNATIONAL, INC.; KYO-YA HOTELS & RESORTS; and DOE DEFENDANTS 1-50, Case No. 1:18-cv-00494-JAO-RT (D. Haw.), the Plaintiffs asks the Court to enter an order: 1. preliminarily approving the class action settlement: -- The settlement provides an Original Settlement Fund of $1,825,435.48 and an Additional Funding of $350,000 creating a Total Available Settlement Fund of $2,175,435.48 to a Settlement Class of at least 2,000 members. 2. conditionally certifying the Settlement Class for settlement purposes only pursuant to the Agreement, defined as: "All United States and Canada residents (1) who booked and paid for a stay (2) at one or more of the following Hotels: The Royal Hawaiian, a Luxury Collection Resort; The Moana Surfrider, a Westin Resort & Spa, Waikiki Beach; Sheraton Waikiki; Sheraton Princess Kaiulani or Sheraton Maui Resort & Spa, (3) for a stay that took place on one or more dates between October 8, 2018 through and including November 27, 2018." The Settlement Class is further divided into Subclasses 1 and 2 based on the segments and/or booking channel through which the Settlement Class members booked their stay: -- Subclass 1 includes all Settlement Class members who booked their stay directly with Marriott or a Hotel and booking channels other than through a Wholesaler, Online Travel Agent, or Group Booking ("Subclass 1 Members"). -- Subclass 2 includes all Settlement Class members who booked their stay through a Wholesaler, Online Travel Agent, or Group Booking ("Subclass 2 Members"). 3. appointing the Plaintiffs as the class representatives; 4. approving their counsel as class counsel; 5. approving retention of the class administrator; 6. approving the proposed Dissemination Plan, which consists of the Class Notice; and 7. setting a fairness hearing to determine final approval of the proposed Settlement. This action involves five hotels in the State of Hawaii: The Royal Hawaiian, a Luxury Collection Resort, Moana Surfrider, a Westin Resort & Spa, Sheraton Waikiki, Sheraton Princess Kaiulani, and Sheraton Maui Resort & Spa (the Hotels). All five Hotels are managed by Marriott. The Plaintiffs allege in the First Amended Complaint (FAC) that on September 10, 2018, the employees of the Hotels -- who are members of the Unite Here Local 5 Union (the Union) -- voted to strike, with 95% of the Hotel workers voting in favor of the strike. On November 20, 2018, Plaintiffs filed their FAC claiming damages against Defendants for "the amounts they were unfairly and/or deceptively required to pay" for their rooms at the Hotels during the Strike. The FAC alleges "two counts: (1) Unfair or Deceptive Acts or Practices under Chapter 480 Hawaii Revised Statutes [(UDAP)], and (2) Unjust Enrichment." The Plaintiffs allege that Defendants did not inform guests before they arrived of the Strike at the Hotels and that the Strike would impact the Hotel's services and amenities. The Defendants deny all claims alleged in the FAC, deny all allegations of wrongdoing, liability and damages as alleged by Plaintiffs in the Lawsuit. A copy of the Plaintiffs' motion to certify class action settlement dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/39HoBn6 at no extra charge.[CC] Attorneys for the Plaintiffs individually and on behalf of all others similarly situated, are: James J. Bickerton, Esq. Bridget G. Morgan-Bickerton, Esq. BICKERTON LAW GROUP A LIMITED LIABILITY LAW PARTNERSHIP Topa Financial Center, Fort Street Tower 745 Fort Street, Suite 801 Honolulu, HA 96813 Telephone: (808) 599-3811 Facsimile: (808) 694-3090 E-mail: bickerton@bsds.com morgan@bsds.com MDL 2873: Womack Alleges Injury From Exposure to Toxic AFFF ----------------------------------------------------------- JACK WOMACK v. v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S., INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No. 2:20-cv-04499-RMG (D.S.C., Dec. 31, 2020) is a class action brought on behalf of the Plaintiff and others similarly situated seeking damages for personal injury resulting from exposure to aqueous film-forming foams (AFFF) containing the toxic chemicals collectively known as per and polyfluoroalkyl substances (PFAS). AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. According to the complaint, the Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. These PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. The Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. The Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused the Plaintiff to develop the serious medical conditions and complications, the suit says. The Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of the Plaintiff's training and firefighting activities. The Womack case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. The 3M Company is an American multinational conglomerate corporation operating in the fields of industry, worker safety, US health care, and consumer goods.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 MDL 2875: Bids to Dismiss Liability Suit Over BP Drugs Partly OK'd ------------------------------------------------------------------ Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey, Camden Vicinage, granted in part the Defendants' Motions to Dismiss Master Complaints in the case, IN RE VALSARTAN, LOSARTAN, AND IRBESARTAN PRODUCTS LIABILITY LITIGATION. This Document Relates to All Actions, MDL No. 2875 (RBK/JS) (D.N.J.). Before the Court are the Defendants' Motions to Dismiss the three Master Complaints filed in the MDL which involves the sale of a generic blood pressure medication that was found to be contaminated with probable human carcinogens. Two of these three Master Complaints are the Economic Loss Master Complaint ("ELMC") and the Medical Monitoring Master Complaint ("MMMC"). Because the MTDs seek dismissal of several claims for each set of the Plaintiffs, the Court is issuing a series of opinions to resolve the motions. Each opinion will be numbered with the instant Opinion being the second in the series. The Opinion 2 resolves the Defendants' arguments relating to Article III standing. An Order 2 of the same date accompanies the Opinion 2. Hundreds of millions of Americans suffer from high blood pressure. Two common medications used to treat the condition are Diovan and Diovan HCT and Exforge and Exforge HCT. The case involves their generic counterparts, Valsartan and its combination therapy with hydrochlorothiazide and Amlodipine-valsartan and its combination therapy with hydrochlorothiazide ("VCDs"). While generic drugs are supposed to be bioequivalent to their brand-name counterparts, at some point these VCDs were found to be contaminated with probable human carcinogens known as N-nitrosodimethylamine ("NDMA") and N-nitrosodiethylamine ("NDEA"). This led to a recall of the VCDs in July of 2018. The current lawsuits stem from the Defendants' manufacturing, promotion, and sale of the VCDs and their subsequent recall. The Plaintiffs, consumers and Third-Party Payors who purchased or made reimbursements for the Defendants' contaminated VCDs, brought an economic damage and a medical monitoring class action against the Defendants. They also brought a personal injury action against Defendants. The Defendants are entities with various and sometimes overlapping roles within the supply chain. They include the manufacturers of the drug (both the manufacturers of the active pharmaceutical ingredient and the manufacturers that make the finished drug product), the wholesalers who obtain the finished drug product and resell it to retailers, and consumer-level distributors. On July 13, 2018, FDA announced the voluntary recalls of the VCDs manufactured by Defendants and others due to the presence of NDMA and NDEA. Two weeks later, it announced expanded recalls of additional VCDs manufactured by the Defendants and non-parties and repackaged by third parties. Subsequently, the FDA announced numerous additional recalls of VCDs, and other similar products manufactured, distributed, or sold by the Defendants as well as non-parties. The FDA's testing of the other Defendants VCDs revealed similar findings of NDMA and NDEA well in excess of the limits. Lawsuits quickly followed these voluntary recalls. Consumers and third-party payors filed a class action alleging economic losses. Consumers also filed a medical monitoring class action alleging cellular damage, genetic harm, and/or an increased risk of developing cancer as a result of exposure to the probable human carcinogens in the VCDs. Lastly, personal injury claims were filed on behalf of consumers who allegedly developed cancer as a result of taking the contaminated VCDs. These actions were centralized by the United States Judicial Panel on Multi-District Litigation and transferred to the Court for pretrial purposes only. Three Master Complaints were filed with the Court. Only the ELMC and the MMMC are relevant now. ELMC alleges economic damages based on the Defendants sale of VCDs that were of a lesser quality and were adulterated and/or misbranded (and thereby rendered worthless) through contamination with probable human carcinogens. The ELMC asserts 18 claims on behalf of classes of consumers and third-party payors in order to recoup the amounts they paid for the Defendants' allegedly worthless VCDs. In the EMLC, the consumer class Plaintiffs are represented by 24 named Plaintiffs from the following states: (1) New York; (2) New Mexico; (3) North Carolina; (4) South Carolina; (5) New Jersey; (6) Texas; (7) Indiana; (8) Pennsylvania; (9) California; (10) Ohio; (11) Massachusetts; (12) Mississippi; (13) Florida; (14) Virginia; (15) Louisiana; (16) Kansas; (17) Georgia; and (18) Connecticut. The named Plaintiffs allege they purchased one or more of the Defendants' VCDs, that the Defendants expressly and impliedly warranted their VCDs were the same as the registered listed drug, had they known the product was not the same as the brand-name drug, they would not have paid for it, and had the Defendants' deception about the product's impurities been made known earlier, they would not have paid for it. They alleged they purchased the VCDS from the following: (1) ZHP; (2) Aurobindo; (3) Solco; (4) Mylan; (5) Teva; (6) Camber; (7) Torrent; and (8) Hetero. The Third-Party Payor Plaintiffs are represented by Plaintiff MSP Recovery Claims, Series, LLC ("MSPRC") as they have assigned their recovery rights to assert claims to MSPRC. MSRPC's assignors paid $79 million on behalf of their enrollees and it is believed some of those payments include payments for Defendants VCDs. The MMMC alleges cellular damage, genetic harm, and/or an increased risk of developing cancer based on ingestion to the Defendants' contaminated VCDs. It asserts nine claims seeking injunctive and monetary relief, including creation of a fund to finance independent medical monitoring services, notification to all people exposed to the contamination, examinations, testing, preventative screening, and care and treatment of cancer resulting, at least in part, from the exposure to the NDMA or NDEA contamination. The consumer class Plaintiffs are represented by 10 named Plaintiffs from the following states: (1) California; (2) Florida; (3) Illinois; (4) Maryland; (5) New Jersey; (6) Pennsylvania; and (7) West Virginia. Each was prescribed and used varying doses of Defendants' VCDs for several years and allege that as a result of the VCDs being contained with NDMA and NDEA they suffered cellular and genetic injury that creates or increases the risk that they will develop cancer. The named Plaintiffs allege the following entities were the distributors of their VCDs: (1) Camber; (2) Hetero USA; (3) Hetero Labs; (4) Hetero; (5) Solco; (6) Prinston; (7) Huahai US; (8) ZHP; (9) Walmart; (10) Aurobindo USA; (11) Aurolife; (12) Aurobindo; (13) Actavis; (14) Teva; (15) Mylan Pharm; (16) Mylan Labs; (17) Mylan; and (18) CVS. The Manufacturer Defendants argue the ELMC and MMMC should be dismissed for lack of Article III standing because: (1) the ELMC does not allege an injury in fact; (2) the MMMC fails to plead injuries fairly traceable to all defendants; and (3) both complaints seek to assert claims under the laws of states in which Plaintiffs do not reside and were not injured. The Wholesaler and Pharmacy Defendants incorporate these arguments. The Plaintiffs maintain both complaints properly allege Article III standing because: (1) the ELMC alleges monetary harm--a paradigmatic form of injury in fact; (2) the MMMC alleges both physical and monetary harm; (3) the injuries alleged are fairly traceable to the Manufacturers based on their misrepresentations; (4) the injuries alleged are fairly traceable to Wholesalers due to their control over the market; and (5) the named class representatives may assert claims on behalf of out of state class members. First, Judge Kugler opines that, as the Defendants point out, the Plaintiffs effectively concede the VCDs performed their intended function--lowering blood pressure--when they allege the FDA advised patients to continue taking VCDs because of the risks associated with untreated high blood pressure. However, it does not mean the Plaintiffs did not suffer an economic injury. The Judge holds that the Defendants' attempt to cabin the economic injury is directly contrary to Third Circuit precedent. In Koronthaly v. L'Oreal USA, Inc., the Third Circuit concluded that absent any allegation that the plaintiff received a product that failed to work for its intended purpose or was worth objectively less than what one could reasonably expect, the plaintiff has not demonstrated a concrete injury-in-fact. Moreover, the Plaintiffs' theory of injury-in-fact, that they did not receive the benefit of their bargain, is not based solely on the effectiveness of the VCDs. And, whether the Plaintiffs' concession undermines their claim that the VCDs were "worthless" amounts to an attack on the merits. Given the constraints on his ability to subject the Plaintiffs' claims to additional scrutiny at this point, the Judge is satisfied that they have alleged an injury-in-fact. Next, the Judge agrees with the Plaintiffs. The Plaintiffs argue that the Third Circuit has unequivocally determined in medical monitoring cases that exposure to contaminated products or a medical device with a risk of failure constitutes an injury-in-fact. The Plaintiffs' allegations that they consumed VCDs contaminated with carcinogens and thereby suffered genetic and cellular damage easily satisfy Article III's requirement that they allege an "identifiable trifle" of an injury. The Defendants' arguments conflate the legal sufficiency of the Plaintiffs' causes of action with Article III standing. The Judge then holds that he cannot conclude the named Plaintiffs injuries are attributable to AmerisourceBergen Corporation from the allegation that it sold "a large portion of the adulterated and/or misbranded VCDs that were ultimately paid for by U.S. consumers." Therefore, they have failed to satisfy the traceability requirement for purposes of Article III standing with respect to the Defendants listed in the Manufacturer Defendants' charts. However, the Plaintiffs will be given the opportunity to amend their Complaint and properly plead the bases for asserting claims against specific Defendants. Finally, because the Plaintiffs should be able to amend their Complaints with relative ease to satisfy this requirement, the Judge continue considers the remaining arguments raised by the Defendants. He holds that the Plaintiffs are correct that "unnamed, putative class members need not establish Article III standing," so long as the class representatives have standing. However, it does not squarely address the issue before the Court. The issue is whether the named Plaintiffs have standing to assert their claims, and more precisely, whether they have standing to assert claims under the laws of states where they do not reside and were not injured; and the answer flowing from Supreme Court precedent would be no. The MMMC and ELMC assert state specific claims under the laws of all 50 states, and the District of Columbia and Puerto Rico. Yet, named Plaintiffs, collectively, represent only 21 states -- New York, New Mexico, North Carolina, South Carolina, New Jersey, Texas, Indiana, Pennsylvania, California, Ohio, Massachusetts, Mississippi, Florida, Virginia, Louisiana, Kansas, Georgia, Connecticut, West Virginia, Maryland, and Illinois. As the named Plaintiffs neither reside in nor have alleged they suffer an injury in 31 other states and territories, their claims in these jurisdictions will be dismissed without prejudice for want of standing. For the reasons he expressed, Judge Kugler granted in part the Defendants' Motions to Dismiss. The Plaintiffs have up and including Jan. 27, 2021, to move to amend. A full-text copy of the Court's Jan. 12, 2021 Opinion is available at https://tinyurl.com/y4avv6wz from Leagle.com. MDL 2985: Apple Seeks Consolidation of Six Actions to N.D. Cal. --------------------------------------------------------------- Defendant Apple Inc. in the lawsuit styled IN RE: APPLE INC. GAME APPS LOSS RECOVERY ACT LITIGATION, MDL No. 2985, asks the United States Judicial Panel on Multidistrict Litigation to transfer 6 related cases for centralized pretrial proceedings to the U.S. District Court for the Northern District of California. Centralization in the Northern District of California -- which is the litigation's center of gravity -- is particularly appropriate. The Northern District of California has a strong connection to these cases because: Apple's headquarters is located there as are the majority of documents and likely witnesses; and upon download and use of the apps at issue, plaintiffs agreed to litigate any claim or dispute with Apple in the State of California. Further, the judges of the Northern District of California have substantial experience with multidistrict litigation and with Apple and the complex technological software and products at issue as well as the relationships between Apple, its third-party app developers, and the users of those apps. Between October 21, 2020 and October 23, 2020, the Plaintiffs filed six putative class actions against Apple in six different federal districts. The named Plaintiffs are six individuals who allegedly used certain mobile apps created by third-party developers that were made available to consumers through Apple's App Store. Plaintiffs allege that these games "constitute illegal gambling" and that Apple unlawfully "promotes, enables, and profits" from these apps. The six actions include: -- Larsen v. Apple, Inc., Case No. 2:20-cv-01652 (N.D. Ala. Oct. 21, 2020); -- Custodero v. Apple, Inc., Case No. 5:20-cv-01320 (N.D.N.Y. Oct. 22, 2020); -- Workman v. Apple, Inc., Case No. 3:20-cv-01595 (D. Conn. Oct. 22, 2020); -- Viglietti v. Apple, Inc., Case No. 2:20-cv-02773 (W.D. Tenn. Oct. 22, 2020); -- Payton v. Apple, Inc., Case No. 1:20-cv-04326 (N.D. Ga. Oct. 22, 2020); and -- McCloskey v. Apple, Inc., Case No. 3:20-cv-00434 (S.D. Ohio Oct. 23, 2020).[BN] The Defendant is represented by: Raj N. Shah, Esq. DLA PIPER LLP (US) 444 West Lake Street Suite 900 Chicago, IL 60606 Telephone: (312) 368-8904 Facsimile: (312) 251-5714 E-mail: raj.shah@dlapiper.com - and - Keara M. Gordon, Esq. DLA PIPER LLP (US) 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 335-4500 Facsimile: (212) 335-4501 E-mail: keara.gordon@dlapiper.com John S. Gibson, Esq. DLA PIPER LLP (US) 2000 Avenue of the Stars 400 North Tower Los Angeles, CA 90067 Telephone: (310) 595-3039 Facsimile: (310) 595-3339 E-mail: john.gibson@dlapiper.com - and - Brooke Kim, Esq. DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 699-3439 Facsimile: (619) 764-6739 E-mail: brooke.kim@dlapiper.com MIDLAND CREDIT: Collins Seeks to Certify Class of Consumers ------------------------------------------------------------ In the class action lawsuit captioned as COURTNEY COLLINS, individually, and on behalf all other similarly situated consumers, v. MIDLAND CREDIT MANAGEMENT, INC., Case No. 2:20-cv-03453-MAK (E.D. Pa.), the Plaintiff asks the Court to enter an order certifying the Class defined as follows: "all consumers with a Pennsylvania address that were sent the same form letter as Exhibit A from MCM concerning debt originating with Capital One Bank USA, N.A. used primarily for personal, household, or family purposes within one year prior to the filing of the complaint." This action arises from the Defendant's violation of the Fair Debt Collection Practices Act (FDCPA) in its attempt to collect a debt from Plaintiff. The Plaintiff filed an initial Complaint on July 24, 2020 alleging that the defendant violated the provisions of the FDCPA banning false, deceptive, or misleading collection conduct. Defendant MCM is a debt collector that regularly collects debts incurred by Pennsylvania consumers. During the course of its collection efforts, the Defendant sent a letter to over 100 Pennsylvania consumers with the same creditor as Plaintiff containing the same allegedly confusing, ambiguous language concerning "adjustments" of the debt allegedly owed, says the complaint. A copy of the Plaintiff's motion to certify class dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/39KMcU9 at no extra charge.[CC] The Plaintiff is represented by: Nicholas Linker, Esq. ZEMEL LAW LLC 660 Broadway Paterson, NJ 07514 Telephone: 862-227-3106 E-mail: NL@zemellawllc.com MIDLAND CREDIT: Pacifico FDCPA Suit Removed to E.D. New York ------------------------------------------------------------ The case captioned as Alex Pacifico, on behalf of himself and all others similarly situated v. Midland Credit Management, Inc., John and Jane Does 1-10, Case No. 619392/2020, was removed from the Supreme Court, County of Suffolk, to the U.S. District Court for the Eastern District of New York on Jan. 14, 2021. The District Court Clerk assigned Case No. 2:21-cv-00203 to the proceeding. The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Midland Credit Management (MCM) -- https://www.midlandcredit.com/ -- is a debt collection agency.[BN] The Plaintiff appears pro se. The Defendant is represented by: Dana Brett Briganti, Esq. Ellen Beth Silverman, Esq. HINSHAW & CULBERTSON LLP 800 Third Avenue, 13th Floor New York, NY 10022 Phone: (212) 471-6200 Fax: (212) 935-1166 Email: dbriganti@hinshawlaw.com esilverman@hinshawlaw.com MIDLAND CREDIT: Peters Files FDCPA Suit in M.D. Florida ------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc., et al. The case is styled as Nikirah Peters, individually and on behalf of all others similarly situated v. Midland Credit Management, Inc., Midland Funding, LLC, John Does 1-25, Case No. 6:21-cv-00112-RBD-DCI (M.D. Fla., Jan. 15, 2021). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Midland Credit Management (MCM) -- https://www.midlandcredit.com/ -- is a debt collection agency.[BN] The Plaintiff is represented by: Justin Zeig, Esq. ZEIG LAW FIRM, LLC 3475 Sheridan Street, Suite 310 Hollywood, FL 33024 Phone: (754) 217-3084 Fax: (754) 217-3084 Email: justin@zeiglawfirm.com MIDWESTERN AUTO: Binder FLSA Suit Seeks to Certify Employees Class ------------------------------------------------------------------ In the class action lawsuit captioned as Austin Binder, On behalf of himself and those similarly situated, v. Brentlinger Enterprises, d/b/a Midwestern Auto Group, Case No. 2:21-cv-00136-MHW-KAJ (S.D. Ohio), the Plaintiff asks the Court pursuant to Section 16(b) of the Fair Labor Standards Act (FLSA), to enter an order, 1. conditionally certifying this case as an FLSA collective action under Section 216(b); 2. implementing an Opt-In period of 90 days whereby Court- approved Notice of Plaintiff's FLSA claims is sent via U.S. mail and e-mail to: "all of Defendant's current and former hourly employees whose payroll records reflect that they worked 40 or more hours in any workweek beginning three years preceding the instant Motion and continuing to the present ("216(b) Class" or "Potential Opt-In Plaintiffs"); 3. approving the content contained in the proposed Notice and Consent to Join; 4. requiring the Defendant to, within 14 days of this Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, phone numbers, dates of employment, position(s) held, location(s) of worksite, and e-mail addresses of all potential opt-in plaintiffs who worked for the Defendant at any time from the three years preceding the filing of this Motion through the present; and 5. directing that Notice, in the form approved by the Court, be sent to the Potential Opt-In Plaintiffs within 14 days of receipt of the list using the home and email addresses provided by the Defendant. On January 13, 2021, the Plaintiff Binder filed his Collective and Class Action Complaint against Brentlinger Enterprises In his Complaint, he seeks all available relief under the FLSA, the Ohio Wage Act, and the Ohio Prompt Pay Act for Defendant's failure to pay the Plaintiff and similarly situated individuals for all overtime wages earned as required by the FLSA. The Plaintiff contends that the Defendant suffered or permitted him and others similarly situated to work more than 40 hours in one or more workweeks, entitling them to overtime compensation under the FLSA, but failed to pay them for all hours worked and at the correct overtime rate of pay in at least three main respects. Brentlinger Enterprises manufactures automobile. A copy of the Plaintiff's motion to certify class dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3c2lvx1 at no extra charge.[CC] Attorneys for the Plaintiff and those similarly situated, are: Laren E. Knoll, Esq. THE KNOLL LAW FIRM, LLC 7240 Muirfield Drive, Suite 120 Dublin, OH 43017 Telephone: (614) 372-8890 Facsimile: (614) 452-4850 E-mail: lknoll@knolllaw.com - and - Daniel I. Bryant), Esq. BRYANT LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Telephone: (614) 704-0546 Facsimile: 614-573-9826 E-mail: dbryant@bryantlegalllc.com MONARCH FUNDING LLC: Fabricant Slams Illegal Telemarketing Calls ---------------------------------------------------------------- Terry Fabricant and Keith Hobbs, individually and on behalf of all others similarly situated, Plaintiff, v. Monarch Funding, LLC and Does 1 through 10, Defendant, Case No. 20-cv-11771 (C.D. Cal., December 30, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Monarch Funding, LLC is a business funding company. Fabricant and Hobbs claim to have received auto-dialed telemarketing calls from them on their phones. Fabricant is registered in the National Do-Not-Call registry. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com NEW JERSEY: Petition for Writ of Habeas Corpus Filed in Goodchild ----------------------------------------------------------------- A Petition for Writ of Habeas Corpus has been filed in the case styled as Peter Goodchild, Eliezer Soto-Concepcion, Joan Abreu-Feliz, Michael Winans, individually and on behalf of all others similarly situated v. DAVID E. ORTIZ in his capacity as Warden of the FCI, Fort Dix; MICHAEL CARVAJAL in his capacity as Medical Director of the Bureau of Prisons; DR. NICOLLETTA TURNER-FOSTER in her capacity as Medical Director of the FCI, Fort Dix, Jointly and severally; Case No. 1:21-cv-00790-RMB (S.D.N.Y., Jan. 15, 2021). David E. Ortiz was a Correctional Institution Administrator at the Bureau of Prisons/Federal Prison System in Fort Dix, New Jersey In 2018.[BN] The Petitioners appear pro se. The Respondents are represented by: John Andrew Ruymann, Esq. OFFICE OF THE US ATTORNEY 402 East State Street, Suite 430 Trenton, NJ 08608 Phone: (609) 989-2190 Email: john.ruymann@usdoj.gov NEW YORK: Court Directs Nugent, Others to File IFP and PLRA Forms ----------------------------------------------------------------- In the lawsuit styled KEVIN NUGENT, JR. v. OFFICER GRAY, # 18367, and NYC DEPARTMENT OF CORRECTION, Case No. 19-CV-4251 (RRM) (CLP) (E.D.N.Y.), the U.S. District Court for the Eastern District of New York grants the Plaintiffs additional time to file their in forma pauperis applications and Prisoner Litigation Reform Act forms. The Plaintiff, who is detained on Rikers Island, brings the pro se civil rights action against a corrections officer and the Department of New York City Corrections pursuant to 42 U.S.C. Section 1983. Nugent's June 19, 2019, submission included an application to proceed in forma pauperis ("IFP"), but it did not include the Prisoner Authorization form required by the Prisoner Litigation Reform Act ("PLRA"). On July 25, 2019, the Court sent Nugent a letter enclosing the PLRA form and directing him to return the completed form within 14 days from the date of the letter. On August 26, 2019, the Court received an amended complaint from Nugent. The amended complaint raises the same allegations, but names two additional Plaintiffs: Detainees Thris Strobach and Christopher Cruz. Nugent labeled the amended complaint as a "class action" and included a new IFP application, purportedly signed by all three Plaintiffs. However, none of the Plaintiffs submitted the PLRA form. Citing Lasher v. Dagostino, No. 16-CV-0198, 2016 WL 1717205 (N.D.N.Y. Apr. 28, 2016), Judge Roslynn R. Mayskopf notes that where multiple plaintiffs file a joint action, each incarcerated plaintiff is required to pay the full filing fee. Accordingly, the Plaintiffs may not proceed on the lawsuit until they have each submitted their own signed IFP application and their own PLRA authorization. The Court reminds the Plaintiffs that a non-attorney appearing pro se may not represent another pro se litigant, including in a proposed class action. Accordingly, if they intend to seek class certification, they must find counsel who can represent the interests of the entire class. In light of the Plaintiffs' pro se status and the three-year statute of limitations applicable to Section 1983 claims in New York, the Court grants the Plaintiffs additional time to file their IFP applications and PLRA forms. However, if they fail to comply with the Order and do not submit the completed and signed forms within 30 days from the date of the Order, the action will be dismissed. No extension of time will be granted without good cause shown. The Clerk of Court is directed to mail a copy of the Order, along with IFP and PLRA forms, to Nugent, Strobach, and Cruz, individually. The action will proceed only as to each Plaintiff, who returns the completed and signed forms. No summonses will issue and no response from the Defendants to the action is required at this time. A full-text copy of the Court's Memorandum & Order dated Jan. 11, 2021, is available at https://tinyurl.com/y2hxv9ct from Leagle.com. NOBLE ENERGY: Galindo Sues Directors for Breach of Fiduciary Duties ------------------------------------------------------------------- STEPHANIE GALINDO and DAVID WALSH, Individually and For All Others Similarly Situated v. DAVID L. STOVER, JEFFREY L. BERENSON, JAMES E. CRADDOCK, BARBARA J. DUGANIER, THOMAS J. EDELMAN, HOLLI C. LADHANI, SCOTT D. URBAN, WILLIAM T. VAN KLEEF, and MARTHA B. WYRSCH, Case No. 2021-0031 (Del. Chancery Ct., Jan. 12, 2021) is brought by the Plaintiffs, individually and on behalf of the former holders of the common stock of Noble Energy, Inc., against the members of the Board of Directors of the Company for breaching their fiduciary duties in connection with the acquisition of the Company by Chevron Corporation and Chelsea Merger Sub, Inc. According to the complaint, the Noble Energy Board and its Chief Executive Officer, Defendant David L. Stover, breached their fiduciary duties during the sale of Noble Energy to Chevron by means of an unfair process, for an inadequate price, and without full disclosure of all information material for stockholders to cast an informed vote on the Merger. As a result of the Merger, Noble Energy stockholders received only 0.1191 of a share of Chevron common stock for each share of Noble Energy common stock that they owned representing approximately $10.39 in value per share as of the last trading day before the public announcement of the execution of the Merger Agreement, the suit says. Noble Energy, Inc. was a company engaged in hydrocarbon exploration headquartered in Houston, Texas. In October 2020, the company was acquired by Chevron Corporation.[BN] The Plaintiffs are represented by: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Telephone: (212) 971-1341 - and - Blake A. Bennett, Esq. COOCH AND TAYLOR, P.A. The Nemours Building 1007 N. Orange St., Suite 1120 Wilmington, DE 19801 Telephone: (302) 984-3800 NUDGE LLC: JLR Suit Stayed Pending Lift of Preliminary Injunction ----------------------------------------------------------------- In the class action lawsuit captioned as JUST US REALTORS, LLC on Behalf of Itself and All Others Similarly Situated, v. NUDGE, LLC, BUYPD, LLC, INCOME PROPERTY USA, LLC, INSIDER'S CASH, LLC, RYAN POELMAN; GUARDIAN LAW, LLC, AMERICAN LEGAL & ESCROW, LLC, INVICTUS LAW, LLC, and BLAIR R. JACKSON, Case No. 2:18-cv-00128-HCN-CMR (D. Utah), the Hon. Judge Cecilia M. Romero entered an order granting in part and denying in part the Plaintiff's Motion to Vacate Class Certification Deadline and Modify Stay: -- The court stays the case in its entirety pending a lift of the Preliminary Injunction or upon motion by the parties. -- All deadlines, including the deadline for class certification, are also stayed. -- As a result of the stay, the court will deny as moot plaintiff's motion for leave to amend. -- Absent relief from Judge Barlow, when the stay is lifted, Plaintiff must file a renewed motion for leave to amend. The Court grants Plaintiff's Motion to Vacate only in the request for a stay and will stay this matter until the Preliminary Injunction is lifted and a relief from stay is filed by the parties. The court declines to set this matter for regular scheduling conferences. Within 20 days of resolution of the FTC Matter, the parties are to petition this court for relief from the stay. The Plaintiff filed this potential class action against nine defendants which include several individuals and limited liability corporations that allegedly sold and financed real estate through investor training seminars. On December 19, 2019, in a separate case, Chief Judge Robert J. Shelby issued a Preliminary Injunction enjoining "other persons seeking to establish or enforce any claim, right, or interest" from "commencing, prosecuting, or continuing a judicial, administrative, or other action or proceeding against" defendants in this case, BuyPD, Nudge, LLC, Ryan Poelman, and their subsidiaries and affiliates. A copy of the Court's order dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/2M7ySRh at no extra charge.[CC] NVIDIA CORP: Arbitration & Dismissal Order in LeBoeuf Suit Affirmed ------------------------------------------------------------------- In the case, MATTHEW LEBOEUF, Plaintiff-Appellant, ROBERT HANEY, Appellant v. NVIDIA CORPORATION, Defendant-Appellee, Case No. 19-17481 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order granting Appellee NVIDIA's motion to compel arbitration and dismissing the case without prejudice. Appellants LeBoeuf and Haney allege they purchased graphics cards that suffered from performance issues from third-party manufacturers and retailers. They also downloaded and installed NVIDIA's software that is necessary to operate the graphics cards. Before downloading the software, NVIDIA required Appellants to consent to its License Agreement that contained an arbitration and class-action waiver provision. NVIDIA moved to compel arbitration of the Appellants' claims relating to the graphics cards, and the district court granted that motion based on the License Agreement. The Appellants argue on appeal that the district court erred in granting the motion for several reasons. First, the Appellants contend the district court erred because their claims relate to hardware, not software, such that the parties did not enter into a valid arbitration agreement with respect to their claims. The Ninth Circuit holds that the argument fails, however, because the undisputed facts show that the Appellants entered into a valid arbitration agreement when they twice assented to NVIDIA's License Agreement. Any dispute as to the scope of that agreement, and whether the Appellants' claims fall outside the agreement, must be determined by the arbitrator under the License Agreement's delegation clause. Second, the Appellants contend the district court erred by enforcing the License Agreement's delegation clause and holding that the arbitrator must determine issues related to arbitrability. The Ninth Circuit also holds that the argument fails because the district court properly enforced the License Agreement's choice-of-law provision that required application of Delaware law because the Appellants failed to show that Delaware Law conflicts with a fundamental California public policy and that California has a materially greater interest than Delaware in evaluating the delegation clause. In addition, under Delaware law, the broad arbitration clause and incorporation of the Judicial Mediation and Arbitration Services Rules clearly and unmistakably evidences the parties' intention to delegate issues of arbitrability to the arbitrator. Finally, the Appellants contend the delegation clause is procedurally and substantively unconscionable. The argument fails because the Appellants were given the opportunity to review the License Agreement at two separate points when they downloaded and installed the NVIDIA software, the Appellate Court finds. In addition, the Appellants were not presented with the arbitration agreement on a "take-it-or-leave-it" basis because NVIDIA provided them the opportunity to opt out. Despite the opportunity, they chose to continue using the graphics cards and software without opting out of the arbitration agreement. The Appellants also fail to demonstrate that the delegation clause "shocks the conscience" or is on terms "so extreme as to appear unconscionable according to the mores and business practices of the time and place." To the contrary, the Supreme Court requires enforcement of such clauses. A full-text copy of the Court's Jan. 12, 2021 Memorandum is available at https://tinyurl.com/y5pzjjex from Leagle.com. O.J. SMITH FARMS: Combined Class & Collective Certification Granted ------------------------------------------------------------------- In the class action lawsuit captioned as MARCOS BENITEZ GONZALEZ, ISAAC GONZALEZ HERNANDEZ, VICTORINO FELIX ANTONIO, JUAN JAVIER VARELA CUELLAR, RUBEN DOMINGUEZ ANTONIO, RIGOBERTO CARTERAS JARDON, JORGE BAUTISTA SABINO, EMMANUEL CRUZ RIVERA, CELSO GONZALEZ TREJO, ERIC JACINTO WENCES VASQUEZ, MARTIN NELSON WENCES VASQUEZ, PORFIRIO BAUTISTA CRUZ, ALEJANDRO DE LA CRUZ MEDINA, JOSE ESTEBAN HERNANDEZ CRUZ, SIXTO HERNANDEZ BUENO, VIRGINIO ANGELES GONZALEZ, TIBURCIO ANTONIO MANUEL, and HUMBERTO ANTONIO HERNANDEZ, on behalf of themselves and all other similarly situated persons, v. O.J. SMITH FARMS, INC., BOSEMAN FARMS, INC., GREENLEAF NURSERY CO., SBHLP, INC., JOEL M. BOSEMAN, JEAN J. BOSEMAN, PEYTON G. MCDANIEL, SANDRA W. MCDANIEL, and SALVADOR BARAJAS, Case No. 5:20-cv-00086-FL (E.D.N.C.), the Hon. Judge Louise W. Flanagan entered an order granting the parties' Joint Motion By Plaintiffs and O.J. Smith Farms Defendants for Combined Class Certification Under Rule 23(b)(3) and Collective Action Certification Under 29 U.S.C. section 216(b). The combined Fair Labor Standards Act (FLSA) Collective Action and a North Carolina Wage and Hour Act (NCWHA) Rule 23(b)(3) class referred to as the "FLSA/NCWHA class," is defined as follows: "all H-2A visa workers who were allegedly jointly employed by SBHLP, Inc. and/or Salvador Barajas on one hand and by O.J. Smith Farms, Inc., Peyton G. McDaniel, and/or Sandra W. McDaniel on the other who were not paid all wages when due on their first or last regular payday in 2019 because of de facto wage deductions for travel and other related expenses that were an incident of and necessary to their employment in North Carolina with an H-2A visa." The Plaintiffs filed their Complaint on March 9, 2020 alleging claims for class relief under two different NCWHA legal theories and one overlapping FLSA collective action. In the Second Amended Complaint, the named Plaintiffs allege four separate classes under the NCWHA against Smith Farms and one overlapping FLSA collective action. The Smith Farms Defendants denied the claims against them and asserted various affirmative defenses. The Plaintiffs and the Smith Farms Defendants have negotiated a settlement agreement in this action which includes relief on a class-wide basis for the Plaintiffs' combined claims under the NCWHA and the FLSA. For settlement purposes only, the Smith Farms Defendants consent to and join in the Joint Motion for Class Certification under Rule 23(b)(3) pursuant to the Settlement Agreement reached between the parties, which is the result of compromise to resolve the disputes between them and does not constitute an admission of any liability to any party. A copy of the Court's order dated Jan. 13, 2020 is available from PacerMonitor.com at http://bit.ly/3sCna1Oat no extra charge.[CC] OPA-LOCKA, FL: Court Allows Class-Action Lawsuit On Water Bills --------------------------------------------------------------- An appeals court has cleared the way for part of a class-action lawsuit alleging that the financially troubled city of Opa-locka overbilled customers for water use. On Wednesday, a three-judge panel of the 3rd District Court of Appeal upheld a circuit judge's "certification" of a class of customers who contend they were overbilled. "The plaintiffs seeking to represent the overbilled class have demonstrated their standing to maintain class certification by showing that a case or controversy exists between the plaintiffs and the city regarding alleged overbilling for water services," said the 10-page opinion, written by Judge Eric Hendon. "We conclude that the plaintiffs have demonstrated sufficient interest in the outcome of the litigation to proceed." The panel, however, overturned class certification in another part of the case alleging that the city improperly used money paid as deposits for water service. The opinion said the case involves allegations related to the Miami-Dade County city's "decade-long policy and practice of estimating customer water usage and its decision to use customer water deposits to satisfy budget shortfalls during the city's ongoing financial crisis." [GN] PARAMED INC: McKenzie Lake Announces Securities Class Action ------------------------------------------------------------ McKenzie Lake Lawyers LLP would like to inform residents of Ontario that the class action against Paramed Inc. in respect of allegedly using improperly sterilized equipment in wound care services, was certified on September 22, 2020. The claim alleges the method used to clean and disinfect medical devices used by Paramed Inc. at its London clinics was grossly inadequate as the medical devices were not sterilized or high level disinfected after each use. On August 20, 2018, the Middlesex-London Health Unit issued an advisory indicating there was a lapse in infection prevention and control practices at Paramed Inc.'s London clinics, exposing the class to risks of contracting Hepatitis B, Hepatitis C, and HIV. The class action seeks damages for invasion of bodily integrity by reason of blood testing, severe mental and/or emotional distress, psychological trauma, and/or nervous shock. The Court has not taken a position as to the likelihood of recovery on the part of the plaintiff or class, or as to the merits of the claims or defences asserted by either side. All persons who received wound care involving the use of medical instruments at Paramed Inc.'s Clinics located at 124 Barker Street, 1340 Huron Street, and 148 Fullarton Street, Suite 200 in London, Ontario between January 1, 2008 and July 27, 2018 and who were contacted by the Defendant and advised that they may have been exposed to infection and should be tested for hepatitis B, hepatitis C, and HIV, or where such person is deceased, the personal representative of the estate of the deceased person, are automatically included in the class action lawsuit. If someone who meets this definition does not want to participate in the class action lawsuit, they must opt-out. Those who opt out of the class action may be entitled to pursue a claim in a separate proceeding. Anyone who wishes to opt-out and not participate in the class action must send a written, signed election, including their name, address and telephone number by March 15, 2021 to: McKenzie Lake Lawyers LLP c/o Paramed Class Action 140 Fullarton St. Suite 1800 London, ON N6A 5P2 [GN] PASCHALL TRUCK: Carter Parties to Confer on 2019 Accord Enforcement ------------------------------------------------------------------- In the case, GALE CARTER and FORBES HAYS, On behalf of themselves and those similarly situated, Plaintiffs v. PASCHALL TRUCK LINES, INC., et al., Defendants, Case No. 5:18-cv-00041-BJB-LLK (W.D. Ky.), Judge Benjamin Beaton of the U.S. District Court for the Western District of Kentucky, Paducah Division: (i) reserved ruling on the pending motion to strike the late-filed consent forms; and (ii) ordered the parties to confer regarding the proper application of their 2019 agreement to the 110 late-filed consents, and file a joint report with the Court within 30 days. A year ago the parties proposed and the Court accepted an agreed process for handling truck drivers' late-filed consent forms in the Fair Labor Standards Act collective action. Both sides now ignore that process and ask the Court to either accept or reject, en masse, the opt-in forms of 110 potential Plaintiffs. At least based on the papers, the parties do so without even attempting to apply their own agreement to the current situation, leaving the Court to sift through the record, or the equities, or the caselaw to reach a decision. Plaintiffs Carter and Hayes previously drove trucks for Defendant Paschall, also known as PTL. Co-defendant Element Fleet Management Corp. and other outfits leased tractor trailers to the Plaintiffs. But those lease arrangements allegedly required the Plaintiffs to enter into Independent Contractor Service Agreements with PTL, restricted the Plaintiffs' ability to drive for companies besides PTL, allowed PTL to deduct lease payments and costs from the Plaintiffs' compensation, and restricted the Plaintiffs' ability to hire others to drive their leased vehicle. The Plaintiffs assert that these extensive restrictions made PTL their employer under the FLSA, yet PTL did not pay them in accordance with the requirements the Act imposes on employers. They filed a motion for conditional certification of an FLSA "collective action," which the Court granted in April 2019. Shortly thereafter, the Court entered an agreed order approving a process for notifying other potential "similarly situated" Plaintiffs regarding how to opt into the collective action. That agreed order established that the opt-in period would be 90 days, starting from the day the FLSA notice was mailed or emailed, whichever was earlier. The parties recognized that some drivers might need additional time to return the consent form: if the initial notice by mail proved undeliverable, PTL agreed to provide social security numbers so a third-party administer could locate an updated address and send a second notice. Any such "undeliverable opt-in Plaintiff" would have 45 days from the second mailing or 30 days after the opt-in period ended (whichever was later) in which to return and file their consent form with the Court. The notice period ran from July 12 to Oct. 10, 2019. The Plaintiffs' counsel filed several batches of consent forms in September and October, before the period closed. And on October 11 and 14, the Plaintiffs' counsel filed 11 additional consent forms, apparently without objection to their timeliness. At the conclusion of the notice period, the Plaintiffs' counsel had filed with the Court consent forms for approximately 959 Plaintiffs who opted into the conditionally certified FLSA class. Roughly two weeks later, in October 2019, the parties asked the Court to stay the case for mediation, and the Court obliged. After that mediation failed in August 2020, the Chief Judge reassigned the case to a new judge in December and the Court lifted the stay in January. The Motion concerns the status of would-be Plaintiffs whose consent forms the counsel filed in August and November 2020, well after the 90-day notice period ended. Before the Court lifted the stay, the Plaintiffs filed 64 consent forms from drivers seeking to join the conditional class. PTL moved to strike the consents because the parties had agreed to cap the class as of October 2019. The Plaintiffs then filed 46 more consent forms. These, the counsel asserts, arrived during the opt-in period but weren't filed with the Court. PTL objected to these consents as well. Now that the Court has lifted the stay, the question is whether these additional 110 putative Plaintiffs may join the existing FLSA collective action--or must instead file their own collective (or individual) lawsuit. Judge Beaton notes that agreement was sufficiently sensible and important that the parties presented it to the then-presiding judge for entry as a court order. And that agreed order presumptively dictates the outcome in the case. Judge Beaton emphasizes that the Court's orders are not suggestions. They are not guidelines. They are orders that must be followed. The parties cannot disobey court orders without consequence. Enforcing a plan endorsed by the Plaintiffs, PTL, and the Court certainly serves the twin goals of "avoiding a multiplicity of duplicative suits" and "expediting disposition of the action." Curiously, the Judge finds that the parties' submissions begin to parse the putative Plaintiffs, but do so without grappling with the terms of the agreed order. He hears that some drivers consented during the optin period, some shortly thereafter, some after undeliverable mailings attributable to PTL, some through duplicate consents, and some more than three years after leaving PTL. He cannot tell, however--because the parties have not told the Court--which of the 110 new consents complies with the agreed order, which violate it, and which might merely be excusably late. The Judge, therefore, ordered the parties to meet and confer--which they seem to concede has not yet happened--regarding the proper application of the agreed order to the 110 consents at issue. He further ordered them to jointly submit a report concerning the status of each putative Plaintiff within 30 days. PTL also has invoked the separate-but-related issue of the statute of limitations, while the Plaintiffs have invoked the fallback option of a separate-but-associated collective action of new opt-in Plaintiffs. Plainly, the Judge opines that neither is ripe for a decision at this time. Equally plain, the viability of such a parallel class of new Plaintiffs is intertwined with the Court's disposition of the late-filed consents. And if discussing these issues now, rather than in a later complaint or summary judgment motion, would advance "the just, speedy, and inexpensive determination of the action," the Judge encourages the counsel to do so. To be sure, even the most conscientious of counsel might prove unable to resolve all outstanding issues concerning these disputed consents. Yet the Judge remains confident that the parties can make substantial progress in defining the contours of the class and narrowing their areas of disagreement, just as they succeeded at the conditional-certification stage. In all events, an agreed order submitted to and entered by the Court is worth the extra effort. A full-text copy of the Court's Jan. 12, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/yxb4uhdp from Leagle.com. PEABODY ENERGY: Labaton Named Lead Counsel in Oklahoma FPRS Suit ---------------------------------------------------------------- In the case, OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. PEABODY ENERGY CORPORATON, GLENN L. KELLOW, and AMY B. SCHWETZ, Defendants, Case No. 20-cv-8024 (PKC) (S.D.N.Y.), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York appointed Oregon Public Employees Retirement Fund as the Lead Plaintiff and Labaton Sucharow as the Lead Counsel. The case is brought as a putative class action asserting claims under sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The proposed class consists of all persons who purchased or otherwise acquired shares of Peabody during the Class Period. Peabody is alleged to be the world's largest coal mining company, with 23 coal mines throughout the United States and Australia. It is a Delaware corporation with its headquarters in St. Louis, Missouri. The Complaint alleges that the Defendants materially misrepresented and omitted large safety issues that threatened Peabody's most profitable mine ("North Goonyella mine"). Peabody is alleged to have concealed the safety issues, which eventually led to a fire at the mine and the Australian government's suspension of mining activity there. After shutdown, Peabody allegedly materially misrepresented and omitted the steps that it had taken to reopen the mine, as well as the timeline of the reopening. The Complaint alleges that the Defendants' material misstatements and omissions artificially inflated Peabody's stock price, which dropped each time investors learned the truth surrounding the safety issues plaguing the North Goonyella mine. The complaint asserts securities fraud claims on behalf of a proposed class of shareholders who purchased Peabody common stock from April 3, 2017 through Oct. 28, 2019. Three motions for appointment as the Lead Plaintiff have been filed. Oregon PERF has filed a motion showing they purchased and/or sold Peabody stock during the Class Period, sustaining a loss of $5,446,903. Schultze Asset Management LP has filed a motion showing it purchased and/or sold Peabody stock during the Class Period, incurring a loss of $2,238,598.59. Lastly, SCC/Dunhill Trust has filed a motion showing it purchased and/or sold Peabody stock during the Class Period, suffering a loss of $220,000. On Dec. 4, 2020, SCC withdrew its motion for appointment, citing the larger financial interests that Oregon PERF and Schultze claimed to have suffered. In addition, Schultze filed a notice that it does not oppose the motion of Oregon PERF to be appointed the Lead Plaintiff, citing the larger financial loss that Oregon PERF claims to have suffered. Defendant Peabody has taken no position on the motions. In light of the substantial financial loss claimed by Oregon PERF, and because it it is capable of adequately representing the interests of class members, Judge Castel will appoint Oregon PERF as the Lead Plaintiff. The Judge finds that Oregon PERF has submitted evidence to support its assertion that it has suffered nearly $5.5 million dollars in losses as a result of the Defendants' alleged fraud. It has submitted a chart of trading data that indicates each transaction of Peabody stock that it engaged in, and the net profit or loss from the trade. Oregon PERF's losses are nearly double that of Schultze and are millions of dollars more than the losses claimed by SCC or Oklahoma Pension and Retirement System (who did not file a motion but filed the Complaint). In addition, the Judge also finds that Oregon PERF has also made a provisional showing that it can satisfy the typicality and adequacy requirements of Rule 23. At this stage, only a preliminary showing of typicality and adequacy is required. Oregon PERF's claims would be typical of the class because they assert violations of section 10(b) and Rule 10b-5, and section 20(a) based on the Defendants' allegedly false and misleading statements. Oregon PERF's motion for appointment as the Lead Plaintiff is therefore granted. The Judge also granted Oregon PERF's application to appoint the law firm of Labaton Sucharow as the Lead Counsel. He finds that Labaton Sucharow has extensive experience in litigating shareholder class actions and has been lead counsel in actions that have settled for hundreds of millions of dollars. It has the necessary experience to act as lead counsel, and its retention on behalf of the class in the action is approved. All other motions for appointment are denied. The Clerk is directed to terminate the motions (Docs 9, 13, 15). A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is available at https://tinyurl.com/y6okug9r from Leagle.com. PEANUT SHELLERS: Court Certifies Runner Peanuts Antitrust Lawsuit ----------------------------------------------------------------- Freed Kanner London & Millen LLC and Lockridge Grindal Nauen PLLP ("Class Counsel") announce that the United States District Court for the Eastern District of Virginia, Norfolk Division ("Court") has approved the following announcement regarding the certification of a class action lawsuit and settlements with the Olam and Birdsong Defendants totaling $57.75 million. The lawsuit claims that Defendants conspired to suppress competition and to pay depressed prices for Runner Peanuts purchased from farmers in the United States, in violation of federal antitrust laws. The Court's class certification decision and the settlements affect those persons or entities in the United States who sold Runner Peanuts to Golden Peanut Company LLC, Birdsong Corporation, and Olam Peanut Shelling Company (or their subsidiaries or affiliates) from January 1, 2014 through December 31, 2019. A hearing will be held on March 25, 2021, at 10:00 a.m., before the Honorable Raymond A. Jackson, United States District Judge, at the Walter E. Hoffman United States Courthouse, 600 Granby Street, Norfolk, VA 23510, Courtroom 4 (or such other courtroom as may be assigned for the hearing, or if the Court believes that it is appropriate, remotely by telephone or other electronic means), for the purpose of determining whether to approve the proposed settlement with the Olam and Birdsong Defendants. A Notice was mailed to potential Class members on or about January 12, 2021. The Notice describes in more detail the litigation and options available to Class members with respect to the settlements. The Notice and other important documents related to the settlement can be accessed at www.PeanutFarmersAntitrustLitigation.com, or by calling (844) 754-7469 or writing to In re Peanut Farmers Antitrust Litigation, P.O. Box 58220, Philadelphia, PA 19102. Those who believe they may be a member of the Class, are urged to obtain a copy of the Notice. United States District Court for the Eastern District of Virginia, Norfolk Division [GN] PILLPACK LLC: Williams' Bid to Certify Class Deferred to Feb. 5 --------------------------------------------------------------- In the class action lawsuit captioned as AARON WILLIAMS, v. PILLPACK LLC, Case No. 3:19-cv-05282-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order: 1. deferring the Plaintiff's Motion to Certify Class: -- The parties are directed to each file a supplemental brief, not to exceed ten (10) pages, on or before February 5, 2021, addressing (i) whether consent to be called by third parties unaffiliated with Defendant PillPack LLC, including consent to be called by third parties using fictitious company names or "dbas,", constitutes "prior express written consent" to be called by Defendant or its agents; and (ii) how this consent issue affects the Court's analysis of whether the Plaintiff has satisfied Rule 23's commonality and predominance requirements -- The court considers only the "consent defenses that [defendant] has advanced and for which it has provided supporting evidence" in determining whether those defenses "may be sufficiently similar or overlapping to allow [plaintiff] to satisfy the predominance requirement"). -- The Plaintiff's Motion to Certify Class is renoted to February 5, 2021. 2. directing the parties to meet and confer and to file a Joint Status Report on or before February 5, 2021, (i) indicating when the case will be ready for trial, and how long such trial is anticipated to take; (ii) proposing related pre-trial deadlines; and (iii) indicating whether the case can be tried remotely via the ZoomGov.com platform. -- After reviewing the Joint Status Report, the Court intends to order a case management scheduling order pursuant to Federal Rule of Civil Procedure 16(b) as soon as possible. 3. directing the Clerk to send a copy of this Minute Order to all counsel of record. PillPack LLC provides pharmaceutical services. The Company operates a full-service pharmacy with online prescription management and delivery services for individually packaged medicines, sorted by date and time. A copy of the Court's minute order dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3qpyk8q at no extra charge.[CC] PNC BANK: 4th Cir. Appeal Filed in Lyons Consumer Credit Suit ------------------------------------------------------------- Defendant PNC Bank filed an appeal from a court ruling entered in the lawsuit entitled WILLIAM T. LYONS JR., Plaintiff v. PNC BANK, N.A., Defendant, Case No. 1:20-cv-02234-SAG, in the U.S. District Court for the District of Maryland. As reported in the Class Action Reporter on Jan. 14, 2021, Judge Stephanie A. Gallagher of the U.S. District Court for the District of Maryland granted in part and denied in part the Defendant's Motion to Compel Arbitration, to Strike Class Action Demand, and to Stay Litigation. Plaintiff Lyons filed suit against PNC Bank, N.A., alleging violations of the Truth in Lending Act and the Real Estate Settlement Procedures Act. The Plaintiff obtained a Home Equity Line of Credit ("HELOC") from National City Bank on Feb. 4, 2005. At the closing, the Plaintiff and National City signed an Equity Reserve Agreement, which did not contain an arbitration clause or a class action waiver. The HELOC set a 10-year loan term and allowed the Plaintiff to take draws up to a maximum amount of $149,650. The Defendant is seeking an appeal to review the order entered by Judge Gallagher. The appellate case is captioned as William Lyons v. PNC Bank, Case No. 21-1058, in the United States Court of Appeals for the Fourth Circuit, Jan. 13, 2021. The briefing schedule in the Appellate Case states that: -- Opening Brief and Appendix are due on February 22, 2021; and -- Response Brief is due on March 24, 2021.[BN] Plaintiff-Appellee WILLIAM T. LYONS, Individually and on Behalf of Others Similarly Situated, is represented by: Scott C. Borison, Esq. BORISON FIRM LLC 1900 South Norfolk Street San Mateo, CA 94403 Telephone: (301) 620-1016 E-mail: usdc@legglaw.com - and - Phillip R. Robinson, Esq. 8737 Colesville Road Silver Spring, MD 20910-0000 Telephone: (301) 448-1304 E-mail: phillip@marylandconsumer.com Defendant-Appellant PNC BANK, National Association is represented by: Matthew D. Lamb, Esq. Daniel J. Tobin, Esq. BALLARD SPAHR, LLP 1909 K Street, NW 20006 Washington, DC 20006-1157 Telephone: (202) 661-2200 E-mail: lambm@ballardspahr.com tobindj@ballardspahr.com POLARIS INDUSTRIES: Guzman Suit Seeks to Certify Class & Subclass ----------------------------------------------------------------- In the class action lawsuit captioned as Paul Guzman and Jeremy Albright, individually on behalf of themselves and all other similarly situated, v. POLARIS INDUSTRIES, INC., a Delaware corporation; POLARIS SALES, INC., a Minnesota corporation; POLARIS INDUSTRIES, INC., a Minnesota corporation; and DOES 1 through 10, inclusive, Case No. 8:19-cv-01543-FLA-KES (C.D. Cal.), the Plaintiffs will move the Court on a date and time of convenience for The Honorable Court, to enter an order: 1. granting the Plaintiffs' Motion for Class Certification against the Defendants concerning violations of Cal. Bus. & Prof. Code sections 17200, and Consumer Legal Remedies Act; 2. certifying a Class of: "all California residents, who, between in or about August 8, 2015 and December 31, 2019, purchased one or more models of Polaris RZR, Ranger, or General UTVs, in California, which were advertised with a sticker on the ROPS system as complying with Occupational Safety and Health Administration (OSHA) requirements as set forth under 29 C.F.R. section 1928.53, and which were tested using Gross Vehicle Weight, not Tractor Weight;" 3. certifying a Subclass of: "all California residents, who, between in or about August 8, 2015 and December 31, 2019, purchased one or more models of Polaris RZR UTVs, in California, which were advertised with a sticker on the ROPS system as complying with OSHA requirements as set forth under 29 C.F.R. section 1928.53, and which were tested using Gross Vehicle Weight, not Tractor Weight;" 4. granting injunctive relief; 5. appointing themselves as Class Representative; and 6. appointing their attorneys as Class Counsel. Polaris is an American manufacturer of motorcycles, snowmobiles, ATV, and neighborhood electric vehicles. Polaris was founded in Roseau, Minnesota, where it still has engineering and manufacturing. A copy of the Notice of the plaintiffs' motion for class certification dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/2Lz73BP at no extra charge.[CC] Attorneys for the Plaintiffs and all others similarly situated, are: John P. Kristensen, Esq. KRISTENSEN LLP 12450 Beatrice Street, Suite 200 Los Angeles, CA 90066 Telephone: (310) 507-7924 Facsimile: (310) 507-7906 E-mail: john@kristensenlaw.com - and - Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: (877) 619-8966 Facsimile: (866) 633-0028 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com - and - Christopher Wood, Esq. DREYER BABICH BUCCOLA WOOD CAMPORA, LLP 20 Bicentennial Circle Sacramento, CA 95826 Telephone: (916) 379-3500 Facsimile: (916) 379-3599 E-mail: cwood@dbbwc.com QIWI PLC: Robbins Geller Rudman Reminds of February 9 Deadline -------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP announces that purchasers of Qiwi plc (NASDAQ: QIWI) publicly traded securities between March 28, 2019 and December 9, 2020, inclusive (the "Class Period") have until February 9, 2021 to seek appointment as lead plaintiff in the Qiwi class action lawsuit, Ochakoff v. Qiwi plc, No. 20-cv-06054 (E.D.N.Y), which is assigned to Judge Rachel P. Kovner. The Qiwi class action lawsuit charges Qiwi and certain of its executives with violations of the Securities Exchange Act of 1934. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Qiwi publicly traded securities during the Class Period to seek appointment as lead plaintiff in the Qiwi class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Qiwi class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Qiwi class action lawsuit. An investor's ability to share in any potential future recovery of the Qiwi class action lawsuit is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff of the Qiwi class action lawsuit or have questions concerning your rights regarding the Qiwi class action lawsuit, please provide your information here or contact counsel, Michael Albert of Robbins Geller, at 800/449-4900 or 619/231-1058 or via e-mail at malbert@rgrdlaw.com. (Мы говорим по-русски.). Lead plaintiff motions for the Qiwi class action lawsuit must be filed with the court no later than February 9, 2021. Qiwi, together with its subsidiaries, operates electronic online payment systems primarily in Russia, Kazakhstan, Moldova, Belarus, Romania, the United Arab Emirates, and internationally. The Qiwi class action lawsuit alleges that, throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) Qiwi's internal controls relating to reporting and record-keeping were ineffective; (2) consequently, the Central Bank of Russia would impose a monetary fine upon Qiwi and impose restrictions upon Qiwi's ability to make payments to foreign merchants and transfer money to pre-paid cards; and (3) as a result, defendants' public statements were materially false and/or misleading at all relevant times. On December 9, 2020, Qiwi announced that the Central Bank of Russia had imposed a fine of approximately $150,000 for deficient record-keeping and reporting and suspended Qiwi from conducting most types of payments to foreign merchants and money transfers to pre-paid cards from corporate accounts. On this news, the price of Qiwi's American Depositary Shares fell more than 20%, damaging investors. Robbins Geller Rudman & Dowd LLP is one of the world's leading law firms representing investors in securities class action litigation. With 200 lawyers in 9 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For seven consecutive years, ISS Securities Class Action Services has ranked the Firm in its annual SCAS Top 50 Report as one of the top law firms in the world in both amount recovered for shareholders and total number of class action settlements. Robbins Geller attorneys have helped shape the securities laws and have recovered tens of billions of dollars on behalf of aggrieved victims. Beyond securing financial recoveries for defrauded investors, Robbins Geller also specializes in implementing corporate governance reforms, helping to improve the financial markets for investors worldwide. Robbins Geller attorneys are consistently recognized by courts, professional organizations, and the media as leading lawyers in the industry. Please visit http://www.rgrdlaw.comfor more information. [GN] RECON OILFIELD: Joint Bid for Collective Conditional Status Filed ----------------------------------------------------------------- In the class action lawsuit captioned as CORY MCDANIEL, on behalf of himself and others similarly situated, v. RECON OILFIELD SERVICES, INC., et al., Case No. 2:20-cv-04497-ALM-CMV (S.D. Ohio), the Parties ask the Court for an order: 1. conditionally certifying the present Fair Labor Standards Act (FLSA) collective action and provide notice to the putative class members; 2. directing the Defendants, within 21 days of the Court's entry of an Order approving the Parties' Joint Stipulation and to the extent they have the information in their possession, to provide the Plaintiff's Counsel a list (in Microsoft Office Excel format) containing the names and last known addresses (including zip code), email addresses, and phone numbers of the following employees in their possession: "all current and former hourly, non-exempt Ohio field employees of Defendants who were paid 40 or more work hours in any workweek from December 30, 2017 and continuing through the final disposition of this case ("FLSA Collective" or "FLSA Collective Members");" 3. directing the Plaintiff's counsel will mail to the Putative Collective Class Members via First Class U.S. Mail and email within seven days of receiving the list; and 4. giving the Putative Collective Class Members 60 days from the date the Notice Packet is mailed to return their Consent to Join form and join this case. Recon Oilfield is a full-service pressure testing company. A copy of the joint motion for conditional certification dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/3nSJz7H at no extra charge.[CC] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. (100041 COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, Oh 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com The Defendant is represented by: Michael B. Mattingly, Esq. Lindsey N. Boyd, Esq. DINSMORE & SHOHL LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 Telephone: (513) 977-8200 Facsimile: (513) 977-8141 E-mail: michael.mattingly@dinsmore.com lindseyN.boyd@dinsmore.com RICOH USA: Class Cert. Filing Deadline Continued to March 16 ------------------------------------------------------------ In the class action lawsuit captioned as MARIO SARABIA, MARTIN MORENO, on behalf of themselves and for all similarly situated persons, and the general public, v. RICOH USA, INC., a California Corporation, and DOES 1-50 ALL INCLUSIVE, Case No. e 8:20-cv-00218-JLS-KES (C.D. Cal.), the Hon. Judge Josephine L. Staton entered an order continuing the Class Certification Deadlines for eight weeks, as follows: 1. The deadline for Plaintiffs to file their Motion for Class Certification shall be continued for eight weeks from January 19, 2021 to March 16, 2021; 2. The deadline for the Defendants to file their Opposition to Plaintiffs' Motion shall be continued for eight weeks from March 16, 2021 to May 11, 2021; and 3. The deadline for the Plaintiffs to file a Reply in support of the Motion for Class Certification shall be continued for eight weeks from March 20, 2021 to May 25, 2021. Ricoh is a Japanese multinational imaging and electronics company. A copy of the Court's order continuing class certification deadlines dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/2KnLenV at no extra charge.[CC] RISE DEVELOPMENT: Faces Morales Wage-and-Hour Suit in E.D.N.Y. -------------------------------------------------------------- ISRAEL MORALES, JUAN MALDONADO, JOSE ELIAS RAMIREZ MELGAR, JOSE EVELIO MENJIVAR AMAYA, JOSE R. AVILA, SILVIANO ESPIRITU, and JAIME AMAYA, individually and on behalf of all others similarly situated v. RISE DEVELOPMENT PARTNERS, LLC, RISE CONCRETE LLC, LBS MAINTENANCE CORP., and BARRY CALDWELL and JOSE ALVAREZ, as individuals, Case No. 1:21-cv-00166 (E.D.N.Y., Jan. 12, 2021) arises from the Defendants' egregious violations of the Fair Labor Standards Act and the New York Labor Law by failing to pay overtime compensation and wages for all hours worked, failing to furnish a written wage notice, and failing to provide wage statements. The Plaintiffs are former employees of the Defendants who performed construction and carpentry duties at various job sites throughout New York City. The Defendants are construction companies in New York.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 RLI INSURANCE: Denied Coverage of Business Interruption Claims -------------------------------------------------------------- MILA MIAMI, LLC vs. RLI INSURANCE COMPANY, dba MT. HAWLEY INSURANCE COMPANY and CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON KNOWN AS RENAISSANCE RE SYNDICATE 1458 LLOYD'S, Case No. 1:20-cv-25339-DPG (S.D. Fla., Dec. 31, 2020) is brought by the Plaintiff, individually and on behalf of all others similarly situated, arising out of the Defendant's denial of coverage for losses caused by the COVID-19 pandemic. The complaint asserts that the Plaintiff purchased insurance coverage from the Defendants, including property coverage, to protect its business in the event that it suddenly had to suspend operations for reasons outside of its control, and/or in order to prevent further property damage. According to the complaint, the Defendants have denied Plaintiff's business interruption claims arising from COVID-19, the State ordered interruption of business, and/or executive orders by civil authorities that required the suspension of business to prevent further property damage, and the duty to minimize damage to insured property imposed on Plaintiff by the commercial property policy. As a result, the Plaintiff brings this action against Defendants for failure to honor their obligations under the policy issued to Plaintiff which provides coverage for losses of the type alleged herein, the suit says. The Plaintiff is an upscale restaurant located at 800 Lincoln Road, Miami Beach, Florida. RLI Insurance Company is an American property and casualty insurance company.[BN] The Plaintiff is represented by: Kevin P. Crosby, Esq. Guy Bennett Rubin, Esq. COVID LAW GROUP PO Box 395 Stuart, FL 34995 Telephone: (772) 283-2004 Facsimile: (772) 283-2009 E-mail: kcrosby@rubinandrubin.com grubin@rubinandrubin.com ROPER ST. FRANCIS: Stanley Sues Over Unpaid Wages, Termination -------------------------------------------------------------- George Stanley, On Behalf of Himself and Others Similarly Situated v. Roper St. Francis Mount Pleasant Hospital, Bon Secours-St. Francis Xavier Hospital, Inc., Roper Hospital Inc., Roper St. Francis Berkeley Hospital Inc., collectively d/b/a, Roper St. Francis Health Care and/or alternatively collectively d/b/a, Bon Secours St. Francis Health Systems, Case No. 2:20-cv-04505-BHH (D.S.C., Dec. 31, 2020) arises from the Defendants' violations of the Fair Labor Standards Act and the South Carolina Payment of Wages Act by failing to pay Plaintiff straight time and overtime compensation and by terminating him because he verbally complained to his supervisors and co-workers about the violations. Mr. Stanley was employed by the Defendants as a respiratory therapist from approximately August of 2015 until his retaliatory termination on September 29, 2020. The Defendants are health care providers organized as non-profit corporations in South Carolina.[BN] The Plaintiff is represented by: Marybeth Mullaney, Esq. MULLANEY LAW, LLC 652 Rutledge Avenue, Suite A Charleston, SC 29403 Telephone: (843) 588-5587 E-mail: marybeth@mullaneylaw.net SARASOTA COUNTY, FL: Bid to Dismiss Grames Class Suit Granted ------------------------------------------------------------- The U.S. District Court for the Middle District of Florida grants the Federal Defendants' Motion to Dismiss Plaintiffs' Complaint in the lawsuit titled WILLIAM GRAMES, BROOKE GRAMES, CRAIG B. DICKIE, CYNTHIA D. DICKIE, JUDY H. JOHNSON, JAMES KOSTAN, DIANE KOSTAN, PATRICK J. LOYET and LISA A. LOYET v. SARASOTA COUNTY, FLORIDA, ANN D. BEGEMAN, PATRICK J. FUCHS, MARTIN J. OBERMAN and SURFACE TRANSPORTATION BOARD, Case No. 8:20-cv-739-T-36CPT (M.D. Fla.). In the Motion, Federal Defendants Begeman, Fuchs, Oberman, and the Board argue that the Plaintiffs' Complaint should be dismissed for lack of subject matter jurisdiction. They seek dismissal with prejudice of the claims against them in Counts I and II of the Plaintiffs' Complaint. The lawsuit is a rails-to-trails case concerning a 7.68-mile line of railroad in Sarasota County, Florida, that extended the Legacy Trail between Sarasota and Venice. The Legacy Trail is a public recreational trail and a rail-trail corridor easement the federal government "railbanked" under the National Trails System Act. The named Plaintiffs are Florida landowners, who seek a declaration of the respective rights to their property and to enjoin Sarasota County from removing or demolishing their private property in order to build the northern extension of the Legacy Trail. The Plaintiffs allege that in the early 1900s much of the land now known as Sarasota County was owned by Bertha Palmer and members of her family, including her son Adrian Honore. In November 1910, Adrian Honore, the predecessor-in-interest to present-day landowners, granted Seaboard Air Line Railway a right-of-way easement across his land allowing Seaboard to build and operate a railway line from Sarasota to Venice. The easement provided if at any time the railroad abandoned the land for railroad purposes, the property would revert to Honore, his heirs or assigns. The right-of-way easement Honore gave Seaboard ultimately was transferred to CSX Transportation, which leased the railway line to Seminole Gulf Railway, L.P. By 2002, CSXT and Seminole Gulf no longer operated a railroad over the land, nor had any need for the right-of-way. In March 2019, Seminole Gulf requested the Board allows it to abandon the 7.68-mile segment of rail line between Sarasota and Venice. After the railroads told the Board they wanted to abandon the railway line, Sarasota County asked the Board to invoke section 8(d) of the Trails Act and authorize Seminole Gulf and CSXT to transfer the otherwise abandoned right-of-way to Sarasota County so that Sarasota County could build a public recreational trail across these owners' land. The Plaintiffs allege that Seminole Gulf and CSXT had no right to transfer or sell any interest the railroads had in the land, unless transferring to another railroad. The owners of the land taken for the northern extension -- which is the subject of the litigation -- have also instituted litigation in the Court of Federal Claims, see 4023 Sawyer Road I, LLC v. United States. Because the Court of Federal Claims has no jurisdiction over Sarasota County and can only award monetary damages, not injunctive relief, the Plaintiffs filed the instant action in the Court. In apparent reliance on the Board's invoking section 8(d), Sarasota County sent almost 300 landowners letters claiming their existing improvements, including pools, septic fields, fences, sheds, and other structures, encroached upon property claimed by Sarasota County for purposes of the recreational trail. Sarasota County, among others, claims that the Board retains jurisdiction over the rail-trial corridor, but that the Board has authorized Sarasota County to construct and operate a public recreational trail across the Plaintiffs' land. Sarasota County adopted a public bond to fund the cost, but such funds did not include compensating the owners for their land that was taken for the Legacy Trail. While compensation for private land takings for the Legacy Trail should be paid by the federal government, the Plaintiffs allege that Sarasota County must compensate the landowners for any interest it takes that is greater than the interest taken by the Board. Relevant to the instant motion, the Plaintiffs sue the Federal Defendants in Counts I and II. Count I seeks a judgment declaring "the rights and other legal relations" of the Sarasota landowner Plaintiffs and the federal government Surface Transportation Board regarding these owners' private property, specifying the physical dimensions of the rail-trail right-of-way easement established under the federal Trails Act, and specifying Sarasota County's right to use this land. The Plaintiffs allege that a controversy has arisen between the Plaintiff landowners and Sarasota County together with the Federal Defendants as to the rights and status of the parties. On May 14, 2019, the Federal Defendants invoked Section 8(d) of the Trails Act and took property from the Plaintiffs by encumbering their land with an easement for recreation and railbanking. As a result, the federal government became obligated to pay the Plaintiff landowners. The Plaintiffs allege that the Federal Defendants' invocation of section 8(d) of the Federal Trails Act granted Sarasota County the right to use the Plaintiffs' land for a public recreational trail and the responsibility to maintain the corridor for a possible future railroad line. They claim that although Sarasota County has the power of eminent domain to take private property without an owner's consent, Sarasota County is relying upon whatever authority it received by reason of the Federal Defendants' invocation of section 8(d) of the federal Trail Act. In Count II of the Plaintiffs' Complaint, which consists of only three paragraphs and does not incorporate any of the background allegations, the Plaintiffs sue all the Defendants in a claim brought under the Quiet Title Act. They allege the new rail-trail easement the federal government imposed across their property clouds and impairs the landowners' title to their property and takes property interests from them. The Plaintiffs request the Court resolves the matter and quiet title to these owners' land and hold that Sarasota County does not possess the authority to demand that these owners remove or demolish improvements on their property. The Federal Defendants move to dismiss with prejudice all claims against them for lack of subject matter jurisdiction. In their motion to dismiss, the Federal Defendants argue the Court lacks subject matter jurisdiction over them because the United States has not waived its immunity to a declaratory judgment claim. Rather, the Quiet Title Act, 28 U.S.C. Section 2409a, provides the exclusive means to dispute real property where the United States is a defendant. District Judge Charlene Edwards Honeywell opines that the Plaintiffs fail to offer any authority to support their contention that the United States has waived sovereign immunity as to Count I. Accordingly, the Plaintiffs' claim for declaratory relief in Count I is due to be dismissed with prejudice as to the Federal Defendants. Regarding Count II, the Federal Defendants argue the Plaintiffs have not adequately pleaded any adverse interest with particularity as required by the express terms of the Quiet Title Act and, therefore, have not met their burden to show a waiver of sovereign immunity. Judge Honeywell finds that the Plaintiffs' allegations fall short. As a preliminary matter, Count II consists of only three paragraphs. The general background allegations were not incorporated into Count II and, therefore, may not be considered in response to the motion. For that reason alone, the Motion is due to be granted. But even if the Court were to consider the background facts as alleged by the Plaintiffs, the allegations still fail to identify with particularity the right, title or real property interest claimed by the United States. The Court agrees with the Federal Defendants that the Plaintiffs' claim that their titles are "clouded" does not satisfy the specific pleadings requirements of Section 2409a(d) and is too vague to establish a waiver of sovereign immunity. Accordingly, Count II is due to be dismissed. However, because Quiet Title actions may be brought against the United States pursuant to 28 U.S.C. Section 2409a, the Court will permit the Plaintiffs the opportunity to amend their complaint to see if they are able to state such a claim. The Federal Defendants further urge that the United States is not a necessary party for the Plaintiffs' Quiet Title Act claim or, at the least, the Plaintiffs' claim should be dismissed as premature because the Plaintiffs do not ask the Court to set aside or suspend, or otherwise challenge, any order of the Board. Thus, the Federal Defendants claim there is no justiciable controversy between the Plaintiffs and the United States. To the extent that the Federal Defendants contend there must be a challenge to a specific Board order for a Quiet Title action to be ripe, the Court finds the Defendants' reading of Section 2409a to be too narrow. Notwithstanding, Section 2409a permits a civil action to adjudicate a disputed title to real property in which the United States claims an interest. The Plaintiffs have not identified the dispute vis-a-vis the United States, nor the interest claimed by the United States. Accordingly, the Federal Defendants' Motion to Dismiss Plaintiffs' Complaint and Memorandum in Support is granted. Count I of the Plaintiffs' Complaint is dismissed with prejudice as to the Federal Defendants. Count II of the Plaintiffs' Complaint is dismissed without prejudice, as to the Federal Defendants. The Plaintiffs are granted leave to file an Amended Complaint, on or before January 22, 2021. Failure to file an Amended Complaint by the deadline will result in dismissal of Count II, as to the Federal Defendants, without further notice. A full-text copy of the Court's Order dated Jan. 11, 2021, is available at https://tinyurl.com/y3faf35h from Leagle.com. SAUNDRA THURMAN-CUSTIS: LaCaprucia Case Trial Set for Feb. 14 ------------------------------------------------------------- In the class action lawsuit captioned as SUE LaCAPRUCIA, v. SAUNDRA THURMAN-CUSTIS, et al., Case No. 20-0849-CV-W-BCW (W.D. Mo.), the Hon. Judge Brian C. Wimes entered an order granting scheduling order for class certification and trial order as follows: 1. setting for a case trial on February 14, 2022 at 9:00 a.m. for 3-4 days, at the United States Courthouse in Kansas City, Missouri; 2. setting a final pretrial teleconference on January 13, 2022 at 9:30 a.m.; 3. directing the Plaintiff to file any motion for class certification on or before July 1, 2021; 4. directing the parties to amend all pleadings and/or add parties on or before April 30, 2021; 5. directing the Plaintiff to designate any class certification-related expert witness on or before April 1, 2021; 6. directing the Defendant to designate any certification- related expert witness on or before May 3, 2021; and 7. scheduling completion of all pretrial discovery authorized by the Federal Rules of Civil Procedure and related to Class Discovery on or before June 8, 2021. A copy of the Court's order dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/3il51B8 at no extra charge.[CC] SHENANDOAH VALLEY: Summary Judgment in Latino UACs Suit Reversed ---------------------------------------------------------------- In the case, JOHN DOE 4, by and through his next friend, NELSON LOPEZ, on behalf of himself and all persons similarly situated, Plaintiff-Appellant v. SHENANDOAH VALLEY JUVENILE CENTER COMMISSION, Defendant-Appellee. CURRENT AND FORMER STATE ATTORNEYS GENERAL; ELECTED PROSECUTORS; CORRECTIONS LEADERS, CRIMINAL JUSTICE LEADERS; DISABILITY RIGHTS LEADERS, Amici Supporting Appellant, Case No. 19-1910 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit reversed the district court's order granting summary judgment to the Commission. The Appellants are a class of Latino unaccompanied alien children ("UACs") detained at Shenandoah Valley Juvenile Center ("SVJC") who challenge the adequacy of their medical care. After fleeing their native countries due to harrowing traumas, many of these children struggle with severe mental illnesses, resulting in frequent self-harm and attempted suicide. SVJC is a secure juvenile detention facility in Staunton, Virginia. It is run by the Commission, a governmental entity formed under Virginia law by the Cities of Harrisonburg, Lexington, Staunton, and Waynesboro, and the Counties of Rockingham, Augusta, and Rockbridge. SVJC provides education, housing, and medical care to unaccompanied immigrant children who, in the discretion of ORR, require a secure placement due to safety concerns. SVJC also houses youth from surrounding jurisdictions who have been charged with a crime but have not yet had their cases adjudicated. The facility houses approximately 20 to 40 unaccompanied immigrant children at any given moment. In October 2017, the Appellants filed a class action complaint on behalf of unaccompanied immigrant children detained at SVJC, naming the Commission as the sole Defendant. They sought declaratory and injunctive relief under 42 U.S.C. Section 1983, alleging that the Commission engaged in unlawful patterns of conduct through: (1) excessive use of force, physical restraints, and solitary confinement; (2) failing to provide a constitutionally adequate level of care for the Plaintiffs' serious mental health needs; and (3) discrimination on the basis of race and national origin. The Appellants allege that the Commission fails to provide a constitutionally adequate level of mental health care due to its punitive practices and failure to implement trauma-informed care. The district court granted the Plaintiffs' consent motion for class certification. It defined the class as: Latino unaccompanied alien children ("UACs") who are currently detained or will be detained in the future at Shenandoah Valley Juvenile Center who either: (i) have been, are, or will be subject to the disciplinary policies and practices used by SVJC staff; or (ii) have needed, currently need, or will in the future need care and treatment for mental health problems while detained at SVJC. After certification, named Plaintiff Doe 1--along with substitute Plaintiffs Does 2 and 3--were transferred or removed from SVJC, and Doe 4 became the substituted class representative. Following discovery, the Commission filed a motion for summary judgment and motions in limine to exclude the Appellants' expert testimony and testimony about non-class members. At the summary judgment hearing, the Appellants withdrew their claim of discrimination based on race and national origin. The court granted in part and denied in part the Commission's motion for summary judgment. Treating the Appellants' solitary confinement allegation as a condition of confinement claim, the Court denied summary judgment with respect to the Appellants' claims for excessive force and unconstitutional conditions of confinement, finding that both claims presented genuine disputes of material fact. But it granted the Commission summary judgment with respect to the Appellants' claim that SVJC provided inadequate mental health care after finding that it provides adequate care by offering access to counseling and medication. The court also granted in part and denied in part the Commission's motions in limine to exclude expert testimony. Among other things, it excluded Dr. Gregory Lewis' testimony about the mental health care provided by SVJC, reasoning that his testimony was "irrelevant" because the court was granting summary judgment to SVJC with respect to the adequacy of mental health services. Similarly, the court excluded Dr. Andrea Weisman's opinions about the mental health care provided, considering it irrelevant because the court was granting summary judgment and because the court considered Dr. Weisman's testimony to be about standards that are inapplicable to the defendant and beyond what is constitutionally required. After the court issued summary judgment, the Appellants abandoned their excessive force and conditions of confinement claims. They then timely appealed the court's grant of summary judgment with respect to their claim of inadequate mental health care. The Appellants urge the Court to apply Youngberg's standard of professional judgment. In Youngberg v. Romeo, 457 U.S. 307, 320-23 (1982), the Supreme Court considered the Fourteenth Amendment protections guaranteed to a mentally disabled person involuntarily committed to a state institution. The plaintiff claimed that the institution failed to provide safe conditions of confinement, unduly restricted his physical freedom, and failed to adequately train him in necessary skills. Youngberg held that liability may be imposed only when the decision by the professional represents a substantial departure from accepted professional judgment. Applying the same analysis, the Fourth Circuit holds that the Youngberg standard governs the case. Considering whether trauma-informed care represents a relevant standard of professional judgment, the Fourth Circuit finds that a trauma-informed system of care is one that "provides an environment in which youth feel safe, are assisted in coping when past traumatic experiences are triggered, and in which exposure to potentially retraumatizing reminders or events is reduced." The Commission claims that trauma-informed care represents an aspirational standard, not an accepted standard of professional judgment. The Court leaves it to the trial court to determine in the first instance to what extent, if any, the trauma-informed approach should be incorporated into the professional judgment standard in the case. It observes only that trauma-informed care is part of the landscape of relevant evidence to be considered by the trial court in making the determination. The Court then turns to whether summary judgment was appropriate. Because the Youngberg standard governs the Appellants' claim, it holds that the district court erred by applying the standard of deliberate indifference. In doing so, the district court also excluded evidence relevant under Youngberg, including Dr. Lewis' opinions concerning trauma-informed care and Dr. Weisman's opinions which were not presented as part of the record on appeal. Moreover, the district court misread the record and failed to construe it in the light most favorable to the nonmoving party, the Fourth Circuit states. The court justified summary judgment in part because it did not consider Doe 4 to be at risk of serious harm. It reasoned that Doe 4 did not need additional psychiatric care but SVJC's own records contradict it. The district court also did not construe the record in the light most favorable to the Appellants when describing the adequacy of existing services at SVJC. In light of the Youngberg standard, the district court must consider the evidence and all other evidence relevant to the professional standards of care necessary to treat the Appellants' serious mental health needs. For all of these reasons, the Fourth Circuit concludes that the district court incorrectly applied a standard of deliberate indifference when it should have determined whether the Commission substantially departed from accepted standards of professional judgment. Accordingly, it reversed the district court's grant of summary judgment and remanded for further proceedings consistent with its Opinion so that the court may apply the appropriate standard and consider all evidence relevant to it. A full-text copy of the Court's Jan. 12, 2021 Opinion is available at https://tinyurl.com/yxhfkv5c from Leagle.com. ARGUED: Theodore A. Howard -- thoward@wileyrein.com -- WILEY REIN, LLP, in Washington, D.C., for Appellant. Jason A. Botkins -- jason.botkins@littensipe.com -- LITTEN & SIPE, LLP, in Harrisonburg, Virginia, for Appellee. ON BRIEF: Hannah E.M. Lieberman -- Hannah_Lieberman@washlaw.org -- Mirela Missova, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, in Washington, D.C., for Appellant. Joshua S. Everard -- josh.everard@littensipe.com -- LITTEN & SIPE, LLP, Harrisonburg, Virginia; Harold E. Johnson -- hjohnson@williamsmullen.com -- Meredith M. Haynes -- mhaynes@williamsmullen.com -- WILLIAMS MULLEN, in Richmond, Virginia, for Appellee. Neil R. Ellis -- nellis@sidley.com -- Mark E. Herzog -- MHERZOG@SIDLEY.COM -- David A. Miller -- DMILLER@SIDLEY.COM -- SIDLEY AUSTIN LLP, in Washington, D.C., for Amici Current and Former State Attorneys General, Elected Prosecutors, Corrections Leaders, Criminal Justice Leaders, and Disability Rights Leaders. SIERRA MOUNTAIN: Perez Wins Bid to Remand Suit to State Court ------------------------------------------------------------- The U.S. District Court for the Eastern District of California grants the Plaintiff's motion to remand to state court his lawsuit entitled SIGIFREDO PEREZ JR., an individual, on behalf of himself and all others similarly situated v. SIERRA MOUNTAIN EXPRESS INC., a limited liability company; WILLIAM E. SCANLON, an individual; and DOES 1 through 10, inclusive, Case No. 2:20-cv-02003-JAM-JDP (E.D. Cal.). Defendant Sierra Mountain Express ("SME") is a federally licensed motor carrier engaged in the business of transporting new automobiles on behalf of various auto-manufacturers. Defendant Scanlon is SME's President and CEO. SME uses independent contractors to transport automobiles throughout California and interstate. The Plaintiff is one such individual, who transported automobiles for SME. On May 21, 2020, the Plaintiff filed a wage and hour class action complaint against Defendant SME in the Superior Court of the State of California for the County of Sacramento. The Plaintiff added Scanlon as a Defendant when he filed an amended complaint. The Plaintiff brings 11 state law claims against the Defendants for: (1) failure to pay minimum wages, (2) failure to provide meal periods, (3) failure to permit paid rest breaks, (4) failure to pay all wages to piece-rate workers for time spent in rest breaks, (5) failure to pay wages upon separation of employment, (6) failure to pay wages within the required time, (7) failure to provide accurate itemized wage statements, (8) failure to reimburse necessary business expenses, (9) failure to refrain from unlawful deductions, (10) violation of California Business and Professions Code Section 17200, et seq., and (11) Enforcement of Labor Code Section 2698, et seq. On October 6, 2020, the Defendants filed a Notice of Removal, invoking the Court's federal question jurisdiction. Although the Plaintiff has pled only state law claims, the Defendants removed on the grounds that the Plaintiff's second, third, and fourth causes of action are preempted by the Motor Carrier Safety Act of 1984 ("MCSA"). In response, the Plaintiff filed the motion to remand. The parties dispute whether federal question jurisdiction exists to support the removal of this case from state court. The Defendants acknowledge that the Plaintiff has only pled state-law claims, but argue the Court nevertheless has federal jurisdiction over the lawsuit because complete preemption applies. Specifically, they argue that three of the Plaintiff's state law claims -- the second, third, and fourth causes of action for failure to provide meal and rest breaks -- fall squarely within the scope of the Federal Motor Carrier Safety Administration's ("FMCSA") Hours of Service Regulations -- regulations that effectuate the MCSA -- and thus are completely preempted by the MCSA. The Plaintiff, on the other hand, argues that the preemption at issue here is merely "ordinary preemption," an anticipated defense that is insufficient to confer federal question jurisdiction. The Court agrees with the Plaintiff that only ordinary preemption, not complete preemption, applies here and that ordinary preemption does not provide grounds for removal. By contrast, ordinary preemption will not support removal jurisdiction if a plaintiff chooses to frame his claim based solely on state law, and preemption is raised only as a defense by the defendant. In the case, the Defendants argue that the MCSA is a statute with such extraordinary preemptive force that the application of complete preemption doctrine is warranted. However, the Defendants have not provided the Court with any caselaw, binding or otherwise, in which another federal court has found the MCSA to have such force. In sum, none of the Defendants' cases provide the Court with authority to find the MCSA as having such extraordinary preemptive power that the application of complete preemption is warranted. Further, the Plaintiff has brought forth persuasive authority in support of its position that the MCSA and related FMCSA regulations do not completely preempt California state labor law claims. In the absence of any caselaw supporting the Defendants' contention that the MCSA should be added to the short list of statutes with extraordinary preemptive force, the Court declines to make such a finding. Judge Mendez opines that because the Court finds the MCSA is not a statute with extraordinary preemptive force, the Defendants' argument for removal jurisdiction based on complete preemption fails. Their preemption arguments go to their anticipated defense against the Plaintiff's three claims for failure to provide meal and rest breaks. Because ordinary preemption is not a proper ground for removal and because the Defendants raise no other grounds for removal jurisdiction, they have has not met their burden of establishing federal jurisdiction, Judge Mendez opines. The Plaintiff's second, third, and fourth claims are the only claims over which the Defendants argue the Court has original jurisdiction. Given the Court's finding that it does not have original jurisdiction over these three claims, it also refuses to exercise supplemental jurisdiction over the Plaintiff's remaining claims. For the reasons set forth in the Order, the Court grants the Plaintiff's Motion to Remand the case to the Superior Court of the State of California for the County of Sacramento. A full-text copy of the Court's Order dated Jan. 11, 2021, is available at https://tinyurl.com/y4xfnjta from Leagle.com. SM ENERGY: CRC Class Action Settlement Wins Initial Approval ------------------------------------------------------------ In the class action lawsuit captioned as CHIEFTAIN ROYALTY COMPANY, v. SM ENERGY COMPANY (including predecessors, successors and affiliates), Case No. 5:18-cv-01225-J (W.D. Okla.), the Hon. Judge Bernard M. Jones entered an order: 1. granting preliminary approval of class action settlement; 2. certifying the settlement class defined as follows: "all non-excluded persons or entities who are or were royalty owners in Defendant's 126 Coal County Gathering System wells where Defendant is or was the operator;" -- The Class Claims relate only to payment for gas and its constituents (residue gas, natural gas liquids, and drip gas) produced from the wells for production months October 1, 2001 through May 31, 2015. -- The Settlement Class does not include overriding royalty owners or other owners who derive their interest through the oil and gas lessee. -- The persons or entities excluded from the Class are: (1) agencies, departments, or instrumentalities of the United States of America or the State of Oklahoma; (2) Commissioners of the Land Office of the State of Oklahoma (CLO); (3) publicly traded oil and gas exploration companies and their affiliates; (4) persons or entities (and their affiliates) who are the Oklahoma Corporation Commission (OCC) designated operator of more than fifty (50) Oklahoma wells in the month when this Settlement Class definition was originally filed; (5) persons or entities that the Plaintiff's counsel may be prohibited from representing under Rule 1.7 of the Oklahoma Rules of Professional Conduct; and (6) officers of the court. 3. preliminarily approving the form and content of the proposed Short Form Notice, Summary Notice, and Long Form Notice; 4. preliminarily approving the proposed manner of communicating the Short Form Notice, Summary Notice, and Long Form Notice to the Settlement Class, as set out below: -- No later than February 23, 2021, the Settlement Administrator will mail (or cause to be mailed) the Short Form Notice by first class mail to all potential Settlement Class Members who have been identified after reasonable efforts to do so. -- No later than March 5, 2021, or at such time as is ordered by the Court, the Settlement Administrator also shall publish (or cause to be published) the Summary Notice one time in each of the following newspapers: (a) The Oklahoman, (b) the Tulsa World, (c) The Daily Ardmoreite, (d) the Fairview Republican, (e) the McAlester News-Capital, (f) the Holdenville Tribune, and (g) the Coalgate Record Register. -- Within 10 days after mailing the first Short Form Notice and continuing through the Final Fairness Hearing, the Settlement Administrator will also display (or cause to be displayed) on an internet website dedicated to this Settlement the following documents: (i) the Short Form Notice and Summary Notice, (ii) the Complaint and Answer, (iii) the Settlement Agreement, (iv) this Order, (v) the Long Form Notice, and (vi) other publicly filed documents related to the Settlement. -- Upon request from a Settlement Class Member, the Settlement Administrator will directly mail a copy of the Long Form Notice to the Settlement Class Member. -- The Gross Settlement Fund shall bear any Administration, Notice, and Distribution Costs. 5. setting a Final Fairness Hearing on April 27, 2021 at 10:00 a.m. in the United States District Court for the Western District of Oklahoma; and 6. directing the Settlement Class Members wishing to exclude themselves from the Settlement Class pursuant to Federal Rule of Civil Procedure 23(e)(4) must submit to the Settlement Administrator a valid and timely Request for Exclusion. The Court finds the above-defined Settlement Class satisfies all prerequisites of Federal Rule of Civil Procedure 23(a) for purposes of the proposed class settlement. SM Energy Company is a company engaged in hydrocarbon exploration. It is organized in Delaware and headquartered in Denver, Colorado. A copy of the Court's order dated Jan. 13, 2020 is available from PacerMonitor.com at http://bit.ly/2N5LDweat no extra charge.[CC] The Plaintiff's Counsel are: Bradley E. Beckworth, Esq, Jeffrey J. Angelovich, Esq, Lisa P. Baldwin, Esq, Susan Whatley, Esq, NIX PATTERSON, LLP 3600 North Capital of Texas Highway Suite 350 Building B Austin, TX 78746 - and - Emily Kitch, Esq. BARNES & LEWIS, LLP 208 N.W. 60th Street Oklahoma City, OK 73118 The Defendant's Counsel are: J. Kevin Hayes, Esq. Pamela S. Anderson, Esq. HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C. 320 South Boston Avenue, Suite 200 Tulsa, OK 74103-3706 SOLARWINDS CORP: Faruqi & Faruqi Reminds of March 5 Deadline ------------------------------------------------------------ If you suffered losses exceeding $50,000 investing in SolarWinds stock or options between February 24, 2020 and December 15, 2020 and would like to discuss your legal rights, click here: www.faruqilaw.com/SWI or call Faruqi & Faruqi partner James Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). There is no cost or obligation to you. Faruqi & Faruqi, LLP, a leading minority and certified woman-owned national securities law firm, is investigating potential claims against SolarWinds Corporation ("SolarWinds" or the "Company") (NYSE: SWI) and reminds investors of the March 5, 2021 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that: (1) since mid-2020, SolarWinds Orion monitoring products had a vulnerability that allowed hackers to compromise the server upon which the products ran; (2) SolarWinds' update server had an easily accessible password of 'solarwinds123'; (3) consequently, SolarWinds' customers, including, among others, the Federal Government, Microsoft, Cisco, and Nvidia, would be vulnerable to hacks; (4) as a result, the Company would suffer significant reputational harm; and (5) as a result, Defendants' statements about SolarWinds's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Specifically, on December 14, 2020, SolarWinds filed a Form 8-K with the SEC, disclosing that it had been the subject of hack on its Orion monitoring products. On this news, the Company's shares fell $3.93 per share, or 17%, to close at $19.62 per share on December 14, 2020, damaging investors. Then, on December 15, 2020, Reuters published an article stating that, last year, security researcher Vinoth Kumar "alerted the company that anyone could access SolarWinds' update server by using the password 'solarwinds123.'" The article also disclosed that, according to Kyle Hanslovan, the cofounder of Maryland-based cybersecurity company Huntress, "days after SolarWinds realized their software had been compromised, the malicious updates were still available for download." On this news, the Company's shares fell $1.56 per share or 8% to close at $18.06 per share on December 15, 2020, damaging investors. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding SolarWinds's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. To view the source version of this press release, please visit https://www.newsfilecorp.com/release/72117[GN] SOUTHSTAR CAPITAL: Adegbola Files Suit for Wrongful Termination --------------------------------------------------------------- Derasean Adegbola v. SouthStar Capital LLC, and SouthStar Capital Holdings LLC, Case No. 2:20-cv-04506-BHH (D.S.C., Dec. 31, 2020) is brought by the Plaintiff, individually and on behalf of all others similarly situated, arising from the Defendants' engagement in retaliatory conduct by terminating Plaintiff, even in the face of a perceived risk to the public's health. According to the complaint, the Plaintiff was discharged because he needed to care for his two-year son who had tested positive for COVID-19. The Plaintiff alleges his termination was retaliatory and in violation of the Families First Coronavirus Response Act and the Fair Labor Standards Act. Mr. Adegbola served as the Defendants' Vice President and Corporate Counsel from November of 2019 until October 2020. SouthStar Capital LLC and SouthStar Capital LLC provide custom financing solutions to businesses headquartered in Mount Pleasant, South Carolina.[BN] The Plaintiff is represented by: Marybeth Mullaney, Esq. MULLANEY LAW 652 Rutledge Ave, Suite A Charleston, SC 29403 Telephone: (843) 588-5587 E-mail: marybeth@mullaneylaw.net SPEEDY CASH: Ct. Enters Scheduling Order Through Class Cert. ------------------------------------------------------------ In the class action lawsuit captioned as CINDY DELISLE and ROBERT DOUGHERTY, Individually and On Behalf of All Others Similarly Situated, v. SPEEDY CASH, Case No. 3:18-cv-02042-GPC-RBB (S.D. Cal.), the Hon. Judge Ruben B. Brooks entered an order that: 1. any motion to join other parties, to amend the pleadings, or to file additional pleadings shall be filed by March 12, 2021; 2. all fact discovery for Plaintiffs' motion for class certification shall be completed by all parties by July 2, 2021; -- "Completed" means that all discovery under 26 Rules 30- 36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date, taking into account the times for service, notice and response as set forth in the Federal Rules of Civil Procedure. -- Counsel shall promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26.1(a). -- The Court expects counsel to make every effort to resolve all disputes without court intervention through the meet and confer process. If the parties reach an impasse on any discovery issue, counsel shall file an appropriate motion within the time limit and procedures outlined in the undersigned magistrate judge's chambers rules. -- A failure to comply in this regard will result in a waiver of a party's discovery issue. Absent an order of the court, no stipulation continuing or altering this requirement will be recognized by the court. 3. All motions for discovery shall be filed no later than 30 days following the date upon which the event giving rise to the discovery dispute occurred. -- The 30-day deadline will not be extended without a prior Court order; counsel cannot unilaterally extend the deadline. For example, ongoing meet-and-confer efforts, rolling document productions, or supplemental discovery responses do not extend the deadline. -- A failure to comply will bar the party from filing a corresponding discovery motion. For oral discovery, the event giving rise to the discovery dispute is the completion of the transcript of the affected portion of the deposition. -- For written discovery, the event giving rise to the discovery dispute is the service of the response. All interrogatories, requests for admission, and document production requests relating to class certification must be served by May 7, 2021. A copy of the Court's scheduling order through class certification dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/35U0X5F at no extra charge.[CC] SPLUNK INC: Portnoy Law Reminds of February 2 Deadline ------------------------------------------------------ The Portnoy Law Firm advises investors that a class action lawsuit has been filed on behalf of Splunk, Inc. (NASDAQ: SPLK) investors that acquired shares between October 21, 2020 and December 2, 2020. Investors have until February 2, 2021 to seek an active role in this litigation. Investors are encouraged to contact attorney Lesley F. Portnoy, to determine eligibility to participate in this action, by phone 310-692-8883 or email, or click https://portnoylaw.com/splunk/ to join the case. It is alleged in the complaint that Splunk made misleading and/or materially false statements and/or failed to disclose that: (1) In the third fiscal quarter of 2021, Splunk was not closing deals with its largest customers; and (2) Splunk was not hitting the financial targets that had been previously announced. After the market closed on December 2, 2020, Splunk announced its financial results for the third fiscal quarter of 2021, ended October 31, 2020. Splunk reported total revenues of $559 million, which was down 11% year-over-year and missing estimates by nearly $60 million. On December 2, 2020, Splunk also held an earnings call with analysts in which Splunk admitted that these results fell "certainly short of both our expectations and our communication of those expectations." despite having reiterated its 2021 third quarter guidance just ten days before the close of the quarter. This news stunned the market, which led analyst JPMorgan to write that it was "blindsided by the magnitude of too many large deals slipping in the final days of October." The stock price of Splunk plummeted on this news, closing at $158.03 per share on December 3, 2020, down over 23% from the December 2, 2020 closing price of $205.91 per share. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than February 2, 2021. Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims arising from corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes.[GN] SPROUT CHILDREN: Angeles Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Sprout Children Online LLC. The case is styled as Jenisa Angeles, on behalf of herself and all others similarly situated v. Sprout Children Online LLC, Case No. 1:21-cv-00378 (S.D.N.Y., Jan. 15, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Sprout -- https://www.sproutsanfrancisco.com/ -- is an organic children's boutique that has clothes, toys and gear that have been hand selected to be free from harmful materials.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SRI HARTIMAA: Faces Mohammad Wage-and-Hour Suit in E.D. New York ---------------------------------------------------------------- ULLAH MOHAMMAD, individually and on behalf of all other persons similarly situated v. SRI HARTIMAA INC. and SHER BHDUR KARKI, Case No. 1:21-cv-00179 (E.D.N.Y., Jan. 13, 2021) arises from the Defendants' violations of the Fair Labor Standards Act and the New York Labor Law by failing to pay minimum and overtime wages, failing to comply with notice and recordkeeping requirements, failing to pay spread of hours wages, and failing to reimburse expenses incurred in the purchase and maintenance of delivery bicycles. Plaintiff Mohammad was employed by Sri Hartimaa as a waiter and delivery person from approximately 2009, until December 2019, at the Sri Hartimaa restaurant located in Brooklyn, New York. Sri Hartimaa is a restaurant located at 2032 Bedford Avenue, Brooklyn, New York. It consists of a restaurant with delivery, take out, and eat in service.[BN] The Plaintiff is represented by: Marc S. Hepworth, Esq. David A. Roth, Esq. Rebecca Predovan, Esq. HEPWORTH, GERSHBAUM & ROTH, PLLC 192 Lexington Avenue, Suite 802 New York, NY 10016 Telephone: (212) 545-1199 Facsimile: (212) 532-3801 E-mail: Mhepworth@hgrlawyers.com Cgershbaum@hgrlawyers.com Droth@hgrlawyers.com rpredovan@hgrlawyers.com SUSHI OTA: S.D. California Narrows Claims in Cota ADA Class Suit ---------------------------------------------------------------- The U.S. District Court for the Southern District of California grants the Defendant's motion to dismiss the Plaintiff's state law claim for lack of subject matter jurisdiction in the lawsuit captioned as JULISSA COTA, individually and on behalf of herself and all others similarly situated v. SUSHI OTA INC., a California corporation; and DOES 1 through 10, inclusive, Case No. 20-cv-01721-H-BLM (S.D. Cal.). On November 24, 2020, Defendant Sushi filed a motion to dismiss the state law claim in Plaintiff Cota's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. On December 14, 2020, the Court took the matter under submission. On December 28, 2020, the Plaintiff filed a response in opposition to the Defendant's motion. On January 4, 2021, the Defendant filed a reply. The Plaintiff is a visually impaired and legally blind person, who requires screen reading software to read website content using her computer. The Defendant is a California corporation that operates a sushi restaurant in San Diego, California. The Plaintiff alleges that she has made numerous trips to the Defendant's website and has "encountered multiple accessibility barriers for blind or visually impaired people." She alleges that these barriers denied her full and equal access to the facilities, goods and services offered to the public and made available to the public on Defendant's website. On September 2, 2020, the Plaintiff filed a class action complaint against the Defendant, alleging claims for: (1) violations of the American With Disabilities Act; and (2) violations of the Unruh Civil Rights Act, California Civil Code Section 51, et seq. By the present motion, the Defendant moves pursuant to Rule 12(b)(1) to dismiss the Plaintiff's Unruh Act claim for lack of subject matter jurisdiction. District Judge Marilyn L. Huff opines that the Plaintiff's Unruh Act claim substantially predominates over her ADA claim. Both entitle her to injunctive relief; however, only the Unruh Act allows her to recover statutory damages. Unlike the ADA, the Unruh Act permits the recovery of monetary damages, in the form of actual and treble damages or statutory damages of $4,000 per violation, Judge Huff says, citing Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1011 (C.D. Cal. 2014). Also, compelling interests in comity and deterring forum shopping support declining jurisdiction over the Plaintiff's Unruh Act claim, Judge Huff adds. In sum, the Court declines to exercise supplemental jurisdiction over the Plaintiff's Unruh Act claim because it substantially predominates over her federal claim under the ADA and exceptional circumstances favor dismissal, including the Court's interests in comity and discouraging forum-shopping. As such, the Court grants the Defendant's motion to dismiss the Plaintiff's Unruh Act claim for lack of subject matter jurisdiction. The Court declines to exercise supplemental jurisdiction over the Plaintiff's Unruh Act claim, and it dismisses the claim from the action without prejudice. The action will proceed on the Plaintiff's remaining claim for violations of the ADA. The Defendant must a file an answer to the Plaintiff's complaint within 30 days of the date the Order is filed. A full-text copy of the Court's Order dated Jan. 11, 2021, is available at https://tinyurl.com/yyp9khn5 from Leagle.com. TCF ENERGY: Perrong Files TCPA Suit in N.D. Georgia --------------------------------------------------- A class action lawsuit has been filed against TCF Energy Solutions, LLC. The case is styled as Andrew Perrong, individually and on behalf of a class of all persons and entities similarly situated v. TCF Energy Solutions, LLC, Case No. 1:21-cv-00246-ELR (N.D. Ga., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act. TCF Energy Solutions -- https://thecallfirm.com/ -- provides strategic business solutions.[BN] The Plaintiff is represented by: Anthony Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln St., Suite 2400 Hingham, MA 02043 Phone: (615) 485-0018 Email: anthony@paronichlaw.com - and - Brian K. Murphy, Esq. MURRAY MURPHY MOUL + BASIL LLP 1114 Dublin Road Columbus, OH 43215 Phone: (614) 488-0400 Fax: (614) 488-0401 Email: murphy@mmmb.com - and - Steven Howard Koval, Esq. THE KOVAL FIRM, LLC Building 15, Suite 120 3575 Piedmont Rd. Atlanta, GA 30305 Phone: (404) 513-6651 Fax: (404) 549-4654 Email: shkoval@aol.com TESLA INC: Faces Fish Suit Over Defective Vehicle Battery Packs --------------------------------------------------------------- ROBERT FISH, individually, and on behalf of all others similarly situated v. TESLA, INC., a Delaware corporation, Case No. 8:21-cv-00060 (C.D. Cal., Jan. 12, 2021) arises from the Defendant's violations of the Magnuson-Moss Warranty Act and the Computer Fraud and Abuse Act due to alleged defective battery packs and deceptive conduct about battery capacity to avoid replacement under warranty. According to the complaint, in 2014, Mr. Fish purchased a new 2014 Tesla Model S 85 in Orange County directly from Defendant Tesla. In August 2020, with less than 60,000 miles on the odometer of the vehicle, Mr. Fish noticed a significant loss in actual range traveled from a near fully charged battery. He contacted a Tesla service technician to inquire about the substantial loss of range and effective battery capacity of the vehicle's battery pack. The service technician instructed him to determine battery capacity by focusing on his vehicle's displayed percent battery state of charge, instead of range. The technician also denied Mr. Fish's claim for a warranty replacement of the battery pack, the suit says. Allegedly, Tesla has a common practice of denying warranty replacements for defective battery packs in Class vehicles, or otherwise substantially limits available battery capacity of Class vehicles via software updates to hide known safety issues. Tesla, Inc. is an auto manufacturer of electric vehicles, and it designs, manufacturers, markets, distributes, and sells exclusively electric vehicles.[BN] The Plaintiff is represented by: John van Loben Sels, Esq. Jennifer J. Shih, Esq. Matthew J. C. Lusich, Esq. FISH IP LAW, LLP 2603 Main Street, Suite 1000 Irvine, CA 92614-4271 Telephone: (949) 943-8300 Facsimile: (949) 943-8358 E-mail: jvanlobensels@fishiplaw.com jshih@fishiplaw.com mlusich@fishiplaw.com TEX CHEVROLET: Harris Files TCPA Suit in Arizona ------------------------------------------------ A class action lawsuit has been filed against Tex Chevrolet Incorporated. The case is styled as Rhakeem Harris, individually and on behalf of all others similarly situated v. Tex Chevrolet Incorporated doing business as: Earnhardt Chevrolet, an Arizona corporation, Case No. 2:21-cv-00062-SMB (D. Ariz., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Earnhardt Chevrolet in Chandler -- https://www.earnhardtchevroletaz.com/ -- serves the East Valley, including Phoenix, Mesa, & Tempe, AZ with new and certified used cars.[BN] The Plaintiff is represented by: Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Avenue, Suite 417 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com TRAVIS CREDIT: Judgment on Pleadings Bid in Stoutt TCPA Suit Denied ------------------------------------------------------------------- In the case, SHAWNTEL STOUTT, Plaintiff v. TRAVIS CREDIT UNION, Defendant, Case No. 2:20-cv-01280 WBS AC (E.D. Cal.), Senior District Judge William B. Shubb of the U.S. District Court for the Eastern District of California denied the Defendant's Motion for Judgment on the Pleadings. In the putative class action, Plaintiff Stoutt claims that Defendant Travis violated Section 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act of 1991 ("TCPA"), which prohibits the use of an automatic telephone dialing system ("ATDS") to call cell phones. The Plaintiff alleges that the Defendant used an ATDS to call her cell phone number at least 18 times between Jan. 24, 2019, and Feb. 26, 2020. The Defendant has filed a motion for judgment on the pleadings, arguing that the Court lacks subject matter jurisdiction over the Plaintiff's claim following the Supreme Court's ruling in Barr v. American Ass'n of Political Consultants, Inc., 140 S.Ct. 2335 (2020) ("AAPC"). It argues that the Court lacks subject matter jurisdiction over the Plaintiff's claim because it is premised on a statute that was unconstitutional and ineffective at the time of the Defendant's alleged phone calls. The Plaintiff responds that the TCPA was effective, at least as to the Defendant's activities, during the relevant period. In AAPC, the Supreme Court addressed the constitutionality of the TCPA. There, a group of political and nonprofit organizations sought a declaratory judgment that the government-debt exception unconstitutionally favored debt-collection speech over political and other speech in violation of the First Amendment. The case made its way to the Supreme Court, and in a fractured decision, six Justices agreed that, in adding the government-debt exception to the statute in 2015, Congress had impermissibly favored debt-collection speech over political and other speech in violation of the First Amendment. Seven Justices agreed that the proper remedy for the constitutional infirmity was to invalidate and sever the government debt exception, leaving the rest of the TCPA intact. The issue now is whether the Supreme Court's decision in AAPC forecloses federal courts from asserting subject matter jurisdiction over alleged violations of the TCPA committed while the government-debt exception was affixed to the face of the statute--that is, between November 2015 and July 6, 2020. Judge Shubb denied the Defendant's Motion for Judgment on the Pleadings. He holds that contrary to the Defendant's assertions, judicial severance of a specific statutory provision does not act as a declaration that the entire statute was void and unenforceable up until the date of the court's opinion. One of the central premises underlying the Supreme Court's decision to sever the government-debt exception was that "the remainder of the law is capable of functioning independently and thus would be fully operative as law." Holding the entire robocall ban to be ineffective as to calls made between 2015 and 2020 would improperly construe AAPC as having invalidated the entirety of Section 227(b)(1)(A)(iii), rather than just the government-debt exception, and thus would undermine the Court's central purpose in severing the statute. Supreme Court precedent dictates that, in cases like the instant one, where Congress added an unconstitutional amendment to a prior law, the court must treat the original, pre-amendment statute as the valid expression of legislative intent. The Judge concludes that the Defendant's view of severability has no foundation in law. Because the Supreme Court has invalidated and severed the government-debt exception from the remainder of Section 227(b)(1)(A)(iii), the exception did not affect the remainder of the statute and the statute remains enforceable, at least against non-government debt collectors, as to calls made between November 2015 and July 6, 2020. The Court may, therefore, adjudicate the Plaintiff's TCPA claim against the Defendant concerning the calls alleged in his complaint. A full-text copy of the Court's Jan. 12, 2021 Order is available at https://tinyurl.com/y45ewebk from Leagle.com. TRICIDA INC: Glancy Prongay Reminds Investors of March 8 Deadline ----------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming March 8, 2021 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased or otherwise acquired Tricida, Inc. ("Tricida" or the "Company") (NASDAQ: TCDA) securities between September 4, 2019 and October 28, 2020, inclusive (the "Class Period"). If you suffered a loss on your Tricida 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/tricida-inc/. 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. Tricida's drug candidate, veverimer, is a polymer designed as a potential treatment for metabolic acidosis in patients with chronic kidney disease ("CKD"). The Company has completed a Phase 3, double-blind, placebo-controlled trial of veverimer in patients with CKD and metabolic acidosis. On September 4, 2019, Tricida announced that it had submitted a New Drug Application ("NDA") to the U.S. Food and Drug Administration ("FDA") under the Accelerated Approval Program for approval of veverimer for the treatment of metabolic acidosis in patients with CKD. On July 15, 2020, Tricida announced that it had received a notice from the FDA "identif[ying] deficiencies that preclude discussion of labeling and postmarketing requirements/commitments at this time." The Company stated that "[t]he notification does not specify the deficiencies identified by the FDA." On this news, the Company's stock price fell $10.56, or 40.31%, to close at $15.64 per share on July 16, 2020, thereby injuring investors. Then, on October 29, 2020, following its End-of-Review Type A meeting with the FDA, Tricida announced that it "now believes the FDA will also require evidence of veverimer's effect on CKD progression from a near-term interim analysis of the VALOR-CKD trial for approval under the Accelerated Approval Program and that the FDA is unlikely to rely solely on serum bicarbonate data for determination of efficacy." Tricida also disclosed that it was "significantly reducing its headcount from 152 to 59 people and will discuss its commitments with vendors and contract service providers to potentially provide additional financial flexibility." On this news, the Company's stock price fell $3.90, or 47.16%, to close at $4.37 per share on October 29, 2020, thereby injuring investors. The complaint filed 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 that: (1) Tricida's NDA for veverimer was materially deficient; (2) accordingly, it was foreseeably likely that the FDA would not accept the NDA for veverimer; and (3) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased or otherwise acquired Tricida securities during the Class Period, you may move the Court no later than March 8, 2021 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] TRU TOP: Wolchko Files Suit in Arizona Over TCPA Violation ---------------------------------------------------------- A class action lawsuit has been filed against Tru Top Offer LLC, et al. The case is captioned as George D. Wolchko, individually and on behalf of those similarly situated v. Tru Top Offer LLC, an Arizona limited liability company, and Corey Geary, an individual, Case No. 2:20-cv-02506-DLR (D. Ariz., Dec. 31, 2020). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act and is assigned to Judge Douglas L. Rayes. Tru Top Offer LLC is a real estate investment company located in Phoenix, Arizona.[BN] The Plaintiff is represented by: Jesse Vassallo Lopez, Esq. Jonathan Adam Dessaules, Esq. DESSAULES LAW GROUP 5343 N 16th St., Ste. 200 Phoenix, AZ 85016 Telephone: (602) 274-5400 Facsimile: (602) 274-5401 E-mail: jvassallo@dessauleslaw.com jdessaules@dessauleslaw.com UNEQUAL TECHNOLOGIES: Paguada Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Unequal Technologies Company. The case is styled as Josue Paguada, on behalf of himself and all others similarly situated v. Unequal Technologies Company, Case No. 1:21-cv-00360 (S.D.N.Y., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Unequal Technologies -- https://unequal.com/ -- is a sporting goods company that reduces impact acceleration which can help reduce the risk of football, baseball, hockey, lacrosse, soccer and action sports injuries.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com UNITED STATES: Brian Broadfield Seeks to Certify Class of Prisoners ------------------------------------------------------------------- In the class action lawsuit captioned as Brian D. Broadfield v. Jeffery Rosen Acting Attorney General of the United States of America, Michael Carvajal Director of the Federal Bureau of Prisons, Case No. 2:21-cv-00103-TAD-KK (W.D. La.), the Plaintiff asks the Court to enter an order: 1. determining that this action may be maintaining as a class action, pursuant to Rule 23(c)(1) of the Federal Rules Of Civil Procedure, on behalf of the following class: "all Prisoners detained incarcerated under the custody of The Attorney General of the United States, Who are currently Eligible to earn time credits Under 18 U.S.C section 3632 (d)(4)(A)(i)(ii), and being held In the Federal Bureau of prisons and addressing the following issues: under the Federal register Notice the defendant are currently seeking to codify a rule that would define the meaning of one day to mean one eight hour-period, the rule will make a rule that is outside the meaning and intent of Congress, and a class of plaintiffs will suffer irreparable harm; 2. confirming for him to serve as a representative; 3. appointing class counsel to represent the class, who shall serve as class counsel; 4. authorizing the notice and maintenance of this class action to be given to members of Rule 23 (c)(2)(A) or Rule 23 (c)(2)(B) of the Federal Rules of Civil Procedure; -- this notice shall be by means of a weekly newsletter given to all prisoners within the class, with in the bureau of prisons, by first class mail. The class includes an undefined prisoners that are confined within the Federal Bureau of Prisons and an undermined future number of prisoners. Therefore, the class members are so numerous that the joinder of all is impracticable, the Plaintiff contends. The Federal Bureau of Prisons is a United States federal law enforcement agency under the Department of Justice responsible for the care, custody, and control of incarcerated individuals. The Plaintiff appears pro se. A copy of the Plaintiff's motion to certify class action dated Jan. 13, 2020 is available from PacerMonitor.com at http://bit.ly/3ik6uaGat no extra charge.[CC] UNITED STATES: Ernest Riley Suit Seeks Class Action Certification ----------------------------------------------------------------- In the class action lawsuit captioned as Ernest Riley v. Attorney General William Barr, Warden Scott Finley, and unknown defendants (Employer Federal Bureau of Prisons), Case No. 3:21-cv-00085-RDM-CA (M.D. Pa.), the Plaintiff asks the Court to enter an order granting his motion for class action certification. The Plaintiff claims damages due to legal injury to personal right to be free from future imminent danger of serious physical injury. William Pelham Barr is an American attorney who served as the 77th and 85th United States Attorney General, in the administrations of Presidents George H. W. Bush and Donald Trump. The Federal Bureau of Prisons is a United States federal law enforcement agency under the Department of Justice responsible for the care, custody, and control of incarcerated individuals. The United States Department of Justice, also known as the Justice Department, is a federal executive department of the United States government responsible for the enforcement of the law and administration of justice in the United States. The Plaintiff appears pro se. A copy of the Plaintiff's motion to certify class dated Jan. 14, 2020 is available from PacerMonitor.com at http://bit.ly/3bQhlYYat no extra charge.[CC] UNITED STATES: Morton & Ayala's Bid to Intervene in Scholl Denied ----------------------------------------------------------------- In the lawsuit styled COLIN SCHOLL, et al. v. STEVEN MNUCHIN, et al., Case No. 20-cv-05309-PJH (N.D. Cal.), the U.S. District Court for the Northern District of California denied the motion to intervene and the motion for civil contempt filed by proposed Plaintiff-Intervenors Jamal Morton and Araclis Ayala. On August 1, 2020, Plaintiffs Scholl and Lisa Strawn filed a complaint in the class action asserting three causes of action: (1) violation of the Administrative Procedure Act ("APA"), 5 U.S.C. Section 706(1); (2) violation of the APA, 5 U.S.C. Sections 702, 706(2); and (3) violation of the CARES Act, 26 U.S.C. Section 6824, and the Little Tucker Act, 28 U.S.C. Section 1346(a)(2). Defendants Mnuchin, Charles Rettig, the U.S. Department of the Treasury, the U.S. Internal Revenue Service, and the United States of America are generally responsible for administering economic impact payments ("EIP") to eligible individuals pursuant to the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"). The Plaintiffs and class members are incarcerated and formerly incarcerated persons, who did not receive payments but are otherwise eligible to receive an EIP. They alleged that the Defendants violated the APA and the CARES Act by instituting a policy that withheld EIPs to incarcerated individuals based solely on their incarcerated status. The Plaintiffs filed a motion for preliminary injunction on August 4, 2020, seeking to enjoin the Defendants' policy of withholding EIPs to incarcerated individuals. On September 24, 2020, the Court granted the Plaintiffs' motion for preliminary injunction and enjoined the Defendants from "withholding benefits pursuant to 26 U.S.C. Section 6428 from plaintiffs or any class member on the sole basis of their incarcerated status." The Court also provisionally certified a class of United States citizens and legal permanent residents who are or were incarcerated. The Plaintiff-Intervenors are incarcerated individuals in the U.S. Virgin Islands and Puerto Rico and seek to intervene in the suit pursuant to Rule 24 of the Federal Rules of Civil Procedure. The broad thesis of their claim is that, similar to the Plaintiffs and class members in the case, they are eligible to receive EIPs, but the federal government is denying them payments on the basis of their incarcerated status. The Plaintiff-Intervenors maintain that the Plaintiffs are not adequately representing their interests given the unique statutory arrangements governing the U.S. territories and possessions. Because they are residents of the U.S. territories and possessions, resolution of the Plaintiff-Intervenors' claims would require a broader examination of the CARES Act than previously addressed in the case, District Judge Phyllis J. Hamilton states. The Plaintiff-Intervenors allege that the U.S. Virgin Islands' Bureau of Internal Revenue ("BIR") entered into a plan with the U.S. Treasury Department for the distribution of CARES Act funds pursuant to Section 2201(c). As part of litigation in the district court for the District of the Virgin Islands, the director of the BIR disclosed that the agency merely serves as an intermediary between eligible Virgin Islands taxpayers on the one hand, and U.S. Treasury on the other. Further, the U.S. Virgin Islands took no position on the eligibility of incarcerated persons to receive EIPs and stated that any restrictions on EIPs resulted from terms imposed by the Treasury Department's plan. The director averred that one of the restrictions in Treasury's plan was that no monies could be used to pay EIPs to incarcerated persons. Finally, the director stated that the BIR remitted EIPs solely in conformance with the limitations placed on the funds provided by the United States Treasury Department." If permitted to intervene, the Plaintiff-Intervenors seek to certify a subclass of incarcerated residents of the U.S. territories and possessions, who would otherwise be eligible for an EIP but did not receive a payment. Both the Plaintiffs and the Defendants have filed oppositions to the Plaintiff-Intervenors' motion. Judge Hamilton holds that the Plaintiff-Intervenors Motion is untimely and that the original parties would be prejudiced by the intervention. The Plaintiff-Intervenors assert that the reason for their delay in moving for intervention is due to the fact that the Treasury's plan was only recently disclosed in litigation before the district court for the U.S. Virgin Islands. As a general matter, Judge Hamilton states, the change of circumstances illustrated by the revelation of the Treasury Department's involvement in the plan implementing the CARES Act in the U.S. territories and possessions is a plausible reason for delay. Yet, that reasonable delay does not cure the fact that the interest implicated by the reasonable delay -- the application of section 2201(c) of the CARES Act to the territories and possessions -- is not at stake in this litigation. Assuming that they have legally protectable interests, the Plaintiff-Intervenors' argument fails the relationship prong, Judge Hamilton notes. If it is the case, as the Plaintiff-Intervenors contend, that the Plaintiffs' claims affected them, then their interest would be satisfied because the Court has already entered a permanent injunction prohibiting the Defendants from withholding benefits pursuant to 26 U.S.C. Section 6428 from plaintiffs or any class member on the sole basis of their incarcerated status and has declared the Defendants' policy of excluding payments to incarcerated individuals solely on their status to be void. Instead, the distinguishing fact between the Plaintiffs' claims and the Plaintiff-Intervenors' interest are the plans agreed to by the Treasury Department and the respective U.S. territories and possessions. That issue was not litigated in the case and has no relationship to the Plaintiffs' claims, Judge Hamilton explains. In sum, there are any number of reasons to deny the Plaintiff-Intervenors' motion for permissive intervention and the Court has discretion to deny permissive intervention even if the Plaintiff-Intervenors met the threshold requirements under Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). Judge Hamilton opines that they have not even met the threshold requirements and the Motion must be denied. For these reasons, the Court denies the Plaintiff-Intervenors' motion to intervene and denies as moot their motion for civil contempt. A full-text copy of the Court's Order dated Jan. 11, 2021, is available at https://tinyurl.com/y5ccv5bo from Leagle.com. UNITED STATES: Vangala Class Cert. Proceedings Stayed Until Feb. 15 ------------------------------------------------------------------- In the class action lawsuit captioned as AKHILESH VANGALA, et al., v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Case No. 4:20-cv-08143-HSG (N.D. Cal.), the Hon. Judge Haywood S. Gilliam, Jr. entered an order: 1. staying the class certification proceedings in this case until February 15, 2021; and 2. directing the parties to provide a joint status report by February 15, 2021. The Court said, "The parties stipulate and request that the proceedings in this case be stayed until February 15, 2021, at which time the parties will file a joint status report with the Court. At that time, the parties may request a further continuance of the stay of proceedings, court approval of a proposed settlement agreement and dismissal of the litigation if appropriate, or placement of the case back on the Court's active docket. A stay of proceedings in this case will benefit the parties and conserve the Court's resources while the parties pursue a potential settlement." The Plaintiffs filed this action under the Administrative Procedure Act, challenging United States Citizenship and Immigration Services' (USCIS) implementation of a "blank space" rejection criteria for certain immigration benefits forms. On December 3, 2020, the Court granted the parties' stipulated briefing schedule for Plaintiffs' Motion for Class Certification. Shortly after this action was filed, however, the parties entered into settlement discussions. In light of the parties' pursuit of a potential settlement in lieu of litigation, the parties conferred and agree that judicial economy would best be served by staying the litigation deadlines in this case for a limited time. A copy of the Court's order dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3oXsqev at no extra charge.[CC] Attorney for the Plaintiffs, are: Matt Adams, Esq. NORTHWEST IMMIGRANT RIGHTS PROJECT 1119 Pacific Ave No. 1400 Tacoma, WA 98402 Telephone: (253) 383-0519 The Defendants are represented by: David L. Anderson, Esq. Elizabeth D. Kurlan, Esq. UNITED STATES ATTORNEYS UNIVERSITY OF PENNSYLVANIA: Suit Seeks to Certify Settlement Class ------------------------------------------------------------------ In the class action lawsuit captioned as JENNIFER SWEDA, ET AL., v. THE UNIVERSITY OF PENNSYLVANIA, ET AL., Case No. 2:16-cv-04329-GEKP (E.D. Pa.), the Plaintiffs ask the Court to enter an order: 1. certifying the Settlement Class defined as: "All persons who participated in the Plans at any time during the Class Period, including any Beneficiary of a deceased person who participated in one or more of the Plans at any time during the Class Period, and any Alternate Payee of a person subject to a Qualified Domestic Relations Order who participated in one or more of the Plans at any time during the Class Period." -- Excluded from the Settlement Class are each of the individual members of the Investment Committee during the Class Period. -- The Class Period is from August 10, 2010 through January 14, 2021. 2. appointing the Plaintiffs Jennifer Sweda, Benjamin A. Wiggins, Robert L. Young, Faith Pickering, Pushkar Sohoni, and Rebecca N. Toner as class representatives; and 3. appointing their counsel also as class counsel. On August 10, 2016, the Plaintiffs Jennifer Sweda, Benjamin A. Wiggins, Robert L. Young, Faith Pickering, Pushkar Sohoni, and Rebecca N. Toner, individually and as representatives of a class of participants and beneficiaries of the University of Pennsylvania Matching Plan, filed their complaint. On November 21, 2016, the Plaintiffs amended their complaint, adding the Investment Committee as a Defendant. Finally, on October 18, 2019, the Plaintiffs amended their complaint again to add two additional Plans—The University of Pennsylvania Supplemental Retirement Annuity Plan and The University of Pennsylvania Basic Plan. The Plaintiffs brought this action under 29 U.S.C. section 1132(a)(2) alleging that the Defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 by causing the Plan to pay unreasonable recordkeeping and administrative fees and maintaining high-cost and underperforming investment options. The Plaintiffs seek to recover all losses to the Plans resulting from each breach of duty under 29 U.S.C. section 1109(a) and for other equitable and remedial relief. The University of Pennsylvania is a private Ivy League research university in Philadelphia, Pennsylvania. A copy of the plaintiffs' unopposed motion for certification of settlement class dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3qurgr2 at no extra charge.[CC] Local Counsel for the Plaintiffs, are: Heather Lea, Esq. Jerome J. Schlichter, Esq. SCHLICHTER BOGARD & DENTON, LLP Troy A. Doles, MO No. 47958* Heather Lea, MO No. 49872* 100 South Fourth Street, Ste. 1200 St. Louis, MO 63102 Telephone: (314) 621-6115 Facsimile: (314) 621-5934 - and - David M. Promisloff, Esq. PROMISLOFF LAW, P.C. 5 Great Valley Parkway, Suite 210 Malvern, PA 19355 Telephone: (215) 259-5156 Facsimile: (215) 600-2642 E-mail: david@prolawpa.com The Defendants are represented by: Christopher Boran, Esq. MORGAN, LEWIS & BOCKIUS LLP 77 W. Wacker Dr. Chicago, IL 60601-5094 Telephone: (312) 324-1000 Facsimile: (312) 324-1001 E-mail: cboran@morganlewis.com UPS SUPPLY: Ayala & Aviles Seek to Certify Class of Employees ------------------------------------------------------------- In the class action lawsuit captioned as ERIC AYALA and ADRIAN AVILES, on behalf of themselves and all others similarly situated, and as "aggrieved employees" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004, v. UPS SUPPLY CHAIN SOLUTIONS, INC. a Delaware corporation; and DOES 1 through 10, inclusive, Case No. 5:20-cv-00117-PSG-AFM (C.D. Cal.), the Plaintiffs will move the Court on May 3, 2021 to enter an order: 1. determining that a class action is proper as to all Causes of Action contained in the Consolidated Complaint pursuant to Federal Rule of Civil Procedure 23, on the grounds that (1) the Class is so numerous that joinder of all members is impracticable, (2) there are questions of law and fact common to the Class, (3) the class representatives' claims are typical of the claims of the Class, and (4) the class representatives and their counsel will fairly and adequately protect the interests of the Class; 2. determining that class treatment is appropriate under Federal Rule of Civil Procedure 23(b)(3); 3. certifying the following Class: "all persons Defendant employed in California and paid on an hourly basis, including but not limited to equipment operators, warehouse workers, shift leads, and persons in comparable positions, at any time between December 12, 2015 and date that final judgment is entered in this action, including employees at the Defendant's each warehouse facilities, as follows: (a) "UPS -- Mira Loma 1," 11991 Landon Drive, Mira Loma CA, 91752; (b) "UPS -- Mira Loma 2," 11811 Landon Drive, Mira Loma CA, 91752; (c) "UPS -- Fontana DC," 14650 Meyer Canyon Dr., Fontana, CA 92336; (d) "UPS -- Jurupa I," 16270 Jurupa Ave Suite 200, Fontana CA 92337; (e) "UPS SCS -- Tracy," 1160 Arbor Avenue, Suite C, Tracy, CA 95304; (f) "UPS -- Bloomington," 10760 Tamarind Ave, Bloomington, CA 92316; (g) "UPS SCS -- Tracy," 5849 W. Schulte Road Suite 107/108, Tracy, CA 95377; and (h) "UPS SCS – Citrus" 11281 Citrus Ave., 2 Fontana, CA 92337; 4. finding that Plaintiffs Eric Ayala and Adrian Aviles to be adequate representatives and certifying them as the class representatives; and 5. finding that Plaintiffs Eric Ayala's and Adrien Aviles' counsel and their law firms, namely David Spivak of The Spivak Law Firm and Aparajit Bhowmik and Piya Mukherjee of Blumenthal Nordrehaug Bhowmik De Blouw LLP, respectively, as adequate class counsel and certifying them as class counsel. UPS Supply offers a comprehensive portfolio of services to enhance customers' business performance, including logistics and distribution, transportation and freight, consulting, customs brokerage, and international trade services. A copy of the Plaintiffs' motion to certify class dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/2M3RHos at no extra charge.[CC] The Attorneys for the Plaintiff Eric Ayala, and all others similarly situated, are: David G. Spivak, Esq. Carl J. Kaplan, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd., Ste 203 Encino, CA 91436 Telephone (818) 582-3086 Facsimile (818) 582-2561 E-mail: david@spivaklaw.com carl@spivaklaw.com The Attorneys for the Plaintiff Adrian Aviles, are: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. Piya Mukherjee, Esq. Victoria B. Rivapalacio, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 US FOODS: Morris, et al., Directed to File Class Cert. by Jan. 22 ----------------------------------------------------------------- In the class action lawsuit captioned as BETTY MORRIS, et al., v. US FOODS, INC., Case No. 8:20-cv-00105-SDM-CPT (M.D. Fla.), the Hon. Judge Steven D. Merryday entered an order directing the plaintiffs to move for class certification and for preliminary approval of the settlement no later than January 22, 2021 in accord with the magistrate judge's instruction. An August 28, 2020 order referred the motion to the magistrate judge for a report and recommendation, and the magistrate judge in an endorsed order denied the motion without prejudice. The endorsed order explains that "[i]f the parties elect to file a similar motion in the future, they shall address -- with supporting authority -- all issues pertinent to such a request for relief, including those discussed in the Eleventh Circuit's decision in Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020)." After the parties announced a settlement of this action, a July 2, 2020 order extends the time within which to move both for class certification and for preliminary approval of the settlement. The plaintiffs moved unopposed for an order that (1) preliminarily approves the class action settlement, (2) preliminarily certifies the class, (3) approves the manner of notifying the class, and (4) schedules a fairness hearing. US Foods is an American foodservice distributor. A copy of the Court's order dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/2XQZrNq at no extra charge.[CC] USANA HEALTH: Lacasse's Motion to Remand to State Court Granted --------------------------------------------------------------- The U.S. District Court for the Eastern District of California grants the Plaintiff's motion to remand to state court the lawsuit entitled Megan Lacasse, individually, and on behalf of other members of the general public similarly situated v. USANA Health Sciences, Inc., et al., Case No. 2:20-cv-01186-KJM-AC (E.D. Cal.). Plaintiff Lacasse moves to remand the case to the Superior Court of the State of California for the County of Sacramento. She argues the Defendant USANA has not shown that more than $5 million is in controversy, so the Court lacks jurisdiction over the case under the Class Action Fairness Act. USANA has moved to dismiss. Both motions were submitted without a hearing. Because USANA has not carried its burden to establish the Court's jurisdiction, the motion to remand is granted, and the motion to dismiss is denied as moot. Ms. Lacasse alleges USANA hired her as an "Associate" about five years ago. She stopped working for USANA about two years later. According to her complaint, USANA classified Lacasse as an independent contractor when it should have treated her as its employee. As a result, she claims, she was deprived of minimum wages, overtime pay, reimbursements for business expenses, and meal and rest breaks. The complaint does not say how often Lacasse (or any other associates) worked overtime, how much less than the minimum wage she earned, how often USANA deprived her of rest or meal breaks, or the amount of her unreimbursed businesses expenses, but she alleges her individual claims are less than $75,000. She asserts a single claim under California's Unfair Competition Law and seeks to represent a class of "all current and former California-based independent contractors" with the same job title who worked for USANA within the last four years. Ms. Lacasse filed her complaint in Sacramento County Superior Court. USANA removed the case to the Court under the Class Action Fairness Act. It submitted a declaration by Dan Whitney with its notice of removal. Whitney is USANA's Vice President of Ethics and Market Expansion. He says USANA had about 4,400 associates in California in March 2020 and is a Utah Corporation. The amount-in-controversy requirement is, therefore, the only contested condition of the Court's jurisdiction under the CAFA. USANA argued in the alternative that more than $5 million would be in controversy if it assumed it had paid 4,400 associates $1 less than the minimum wage and they all worked forty hours per week, fifty weeks per year, in each of the previous four years. It also proposes many alternative assumptions, all of which, it contends, would lead to the same result. Ms. Lacasse moves to remand the case to state court. She argues USANA's assumptions are unreasonable and baseless. USANA also moved to dismiss for improper venue or to transfer the case to the District of Utah. Chief District Judge Kimberly J. Mueller holds that when a complaint does not allege an amount in damages, a defendant who removes the complaint to federal court under the CAFA "need only allege in its notice of removal" that more than $5 million is in controversy, citing Harris v. KM Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020). Like the plaintiff in Harris, Lacasse makes a factual attack by contesting the reasonableness of the assumptions underlying USANA's conclusion that more than $5 million is in controversy, Judge Mueller states. Like the defendant in Harris, USANA has not cited evidence to support its assumptions. And as in Harris, its assumptions are unreasonable without that evidence. USANA does not explain why it is reasonable to assume that it had the same number of associates for all of the last four years; that every associate regularly worked one or two or any number of hours of overtime per week; that every associate qualified for and was consistently deprived of meal and rest breaks every week, fifty weeks per year for four years; and that associates were consistently paid a specific amount less than the minimum wage. These assumptions, in defense against a factual attack, do not establish the Court's jurisdiction, the Judge concludes. The many alternative calculations USANA proposes in its opposition do not take the place of evidence, Judge Mueller holds. They are also only allegations. These alternative calculations also demonstrate how arbitrary USANA's assumptions are: they show how simple it is to manipulate the assumptions to produce totals larger or smaller than the $5 million threshold. Like the defendant in Harris, USANA had every opportunity to offer evidence in response to Lacasse's objections. It did not. The motion to remand is, thus, granted and the motion to dismiss is denied as moot. The parties' recent joint request to reschedule the status conference is also denied as moot. The action is remanded to the Sacramento County Superior Court. A full-text copy of the Court's Order dated Jan. 11, 2021, is available at https://tinyurl.com/y4sohzw9 from Leagle.com. V & O MONTALVAN: Faces Giron Wage-and-Hour Suit in E.D.N.Y. ----------------------------------------------------------- TRANSITO GIRON, individually and on behalf of all others similarly situated v. V & O MONTALVAN FENCE CORP., and OSCAR MONTALVAN, as an individual, Case No. 2:20-cv-06379 (E.D.N.Y., Dec. 31, 2020) seeks to recover damages for the Defendants' egregious violations of the Fair Labor Standards Act and the New York Labor Law by failing to pay overtime compensation, failing to furnish a wage notice upon hiring, and failing to provide accurate wage statements. Mr. Giron was employed by the Defendants from in or around March 2010 until in or around July 2020, whose primary duties include fencing and cementing services, cleaning and performing other miscellaneous duties. V & O Montalvan Fence Corp. is a fence contractor in Uniondale, New York.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 VALERY SWEENY: Molina Sues Over Failure to Pay Overtime Wages ------------------------------------------------------------- Mirna Molina, an individual, on behalf of herself and all other Aggrieved Employees v. VALERY SWEENY D.D.S., a corporation; VALERY SWEENY, an individual; and DOES 1 through 100, inclusive, Case No. 21STCV01785 (Cal. Super. Ct., Los Angeles Cty., Jan. 15, 2021), is brought against the Defendants for their violation of the California Labor Code by failing to pay the Plaintiff overtime wages. The Plaintiff worked in excess of eight and in excess 12 of hours in a workday or 40 hours in a workweek. The Defendant routinely required the Plaintiff and the other Aggrieved Employees to perform work tasks before or after their scheduled shifts, or during off-the-clock meal breaks, and during rest breaks. As a consequence, the Defendant willfully failed to pay the Plaintiff and the other Aggrieved Employees all of the wages to which they were entitled, says the complaint. The Plaintiff was hired by the Defendant as a Front Desk associate on January 2, 2019. The Defendant is a dental office doing business in the State of California.[BN] The Plaintiff is represented by: Haig B. Kazandjian, Esq. Cathy Gonzalez, Esq. Kevin Crough, Esq. HAIG B. KAZANDJIAN LAWYERS, APC 801 North Brand Boulevard, Suite 970 Glendale, CA 91203 Phone: 1-818-696-2306 Facsimile: 1-818-696-2307 Email: haig@hbklawyers.com cathy@hbklawyers.com kevin@hbklawyers.com VELOCITY INVESTMENTS: Jackson Suit Trial-Related Deadlines Stayed ----------------------------------------------------------------- In the class action lawsuit captioned as TYNISHA JACKSON, DAVID CREVELING, and MARY HANS, Individually and on behalf of all others similarly situated, v. VELOCITY INVESTMENTS, LLC, Case No. 5:20-cv-02524-JFL (E.D. Pa.), the Hon. Judge Joseph F. Leeson Jr. entered an order: 1. granting The Jackson Plaintiffs' request and directing them to file a status report with the Court on or before January 25, 2021, indicating whether they have received the material referenced in the parties' correspondence; 2. granting the parties' joint request to hold summary judgment and trial-related deadlines in abeyance pending determinations of the class certification motions; -- The existing summary judgment and trial-related deadlines are stayed. 3. directing the parties, within seven days of the Court's determination of the pending motions for class certification, to file with the Court a joint proposed Order setting forth a proposed timeline for the filing of motions for summary judgment. Velocity Investments, LLC is a national buyer of delinquent consumer receivables. A copy of the Court's order dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/2LKujg7 at no extra charge.[CC] VELOCITY INVESTMENTS: Summary Judgment in Massaro Suit on Hold -------------------------------------------------------------- In the class action lawsuit captioned as MARC MASSARO, BENJAMIN BERNSTEIN, and GREG AIKENS, Individually and on behalf of all others similarly situated, v. VELOCITY INVESTMENTS, LLC, Case No. 5:20-cv-01845-JFL (E.D. Pa.), the Hon. Judge Joseph F. Leeson Jr. entered an order: 1. granting The Jackson Plaintiffs' request and directing them to file a status report with the Court on or before January 25, 2021, indicating whether they have received the material referenced in the parties' correspondence; 2. granting the parties' joint request to hold summary judgment and trial-related deadlines in abeyance pending determinations of the class certification motions; -- The existing summary judgment and trial-related deadlines are hereby stayed. 3. directing the parties, within seven days of the Court's determination of the pending motions for class certification, to file with the Court a joint proposed Order setting forth a proposed timeline for the filing of motions for summary judgment. Velocity Investments, LLC is a national buyer of delinquent consumer receivables. A copy of the Court's order dated Jan. 13, 2020 is available from PacerMonitor.com at https://bit.ly/3sA1m7b at no extra charge.[CC] VIPKIDS INTERNATIONAL: Meehan Labor Suit Removed to E.D.N.Y. ------------------------------------------------------------ The case tiled Kevin J. Meehan, individually, on behalf of themselves, and on behalf of all persons similarly situated, Plaintiff, v. VIPKid, VIPKids International, Inc., Beijing Dami Technology Co., Ltd., Beijing Dami Future Technology Co., Ltd., Tencent Holdings Ltd., Cloud & Smart Industries, Tencent Holdings Ltd., Tencent America LLC, Tencent Cloud LLC, China Renaissance Holdings Ltd., Sequoia Capital Operations LLC, VIPKID HK Limited, VIPKID Class HK Limited, and VIPTeach Inc., Defendants, Case No. 20BBCV00719 (N.Y. Sup., November 13, 2020), was removed to the United States District Court for the Eastern District of New York on December 30, 2020, under Case No. 20-cv-06370. In the original complaint, Plaintiff accuses Defendants of fraud-in-the-inducement, common law fraud, unlawful deceptive acts or practices in violation of New York General Business Law Section 349, violations of the New York Civil Rights Law Sections 50-51, conspiracy, unjust enrichment, wage and hour violations under the federal Fair Labor Standards Act, wage and hour violations under the New York labor laws, retaliation in violation of New York Labor Law Section 215 and whistleblower retaliation in violation of New York Labor Law Section 740. Defendants cite that the class easily exceeds the 100-member requirement imposed by the Class Action Fairness Act, that the amount in controversy exceeds $5,000,000, and that Plaintiff and Defendant are citizens of different states, as basis for removal. [BN] Defendants are represented by: Kevin R. Vozzo, Esq. Michael L. Lynch, Esq. EPSTEIN BECKER & GREEN, P.C. 875 Third Avenue New York, NY 10022 Tel: (212) 351-4500 Email: kvozzo@ebglaw.com mllynch@ebglaw.com WALMART STORES: Lisowski Appeals Order in Consumer Suit to 3rd Cir. ------------------------------------------------------------------- Plaintiff Christopher Lisowski filed an appeal from a court ruling entered in the lawsuit entitled CHRISTOPHER LISOWSKI, on behalf of himself and all other similarly situated v. WALMART STORES, INC., t/d/b/a WALMART, Case No. 2-20-cv-01729, in the U.S. District Court for the Western District of Pennsylvania. As previously reported in the Class Action Reporter, the U.S. District Court for the District of Pennsylvania denied the Plaintiff's motion to remand based on the Tax Injunction Act and principles of comity. Mr. Lisowski sued Walmart in state court for conversion, unjust enrichment, and violation of the Unfair Trade Practices and Consumer Protection Law. The complaint alleges that Walmart improperly collected sales tax on two, 6-packs of "5-Hour Energy" supplements purchased by Mr. Lisowski. He alleges that 5-Hour Energy drinks are tax-exempt "Dietary Supplements and Substitutes" under 61 Pa. Code Section 58.1. He further alleges that the Pennsylvania Department of Revenue gave express notice that dietary supplements and substitutes, in any form are exempt from tax. Mr. Lisowski seeks review of the District Court's order entered January 7, 2021, denying his motion to remand the case to state court. The appellate case is captioned as Christopher Lisowski v. WalMart Stores Inc., Case No. 21-1070, in the United States Court of Appeals for the Third Circuit, January 13, 2021.[BN] Plaintiff-Appellant CHRISTOPHER LISOWSKI, on behalf of himself and all others similarly situated, is represented by: Frank G. Salpietro, Esq. Emily E. Town, Esq. ROTHMAN GORDON 310 Grant Street, 3rd Floor Pittsburgh, PA 15219 Telephone: (412) 338-1185 E-mail: fgsalpietro@rothmangordon.com eetown@rothmangordon.com Defendant-Appellee WALMART STORES INC, TDBA WalMart is represented by: Suyash Agrawal, Esq. Paul Berks, Esq. MASSEY & GAIL 50 East Washington Street, Suite 400 Chicago, IL 60602 Telephone: (312) 379-0949 E-mail: sagrawal@masseygail.com pberks@masseygail.com - and - Michael P. Pest, Esq. Thomas E. Sanchez, Esq. ECKERT SEAMANS CHERIN & MELLOTT 600 Grant Street 44th Floor, US Steel Tower Pittsburgh, PA 15219 Telephone: (412) 566-1930 E-mail: mpest@eckertseamans.com tsanchez@eckertseamans.com WEST ROAD: Calhoun Has Until May 14 to File Class Certification Bid ------------------------------------------------------------------- In the class action lawsuit captioned as Samantha Calhoun, v. West Road Pizza Stop, Inc. et al., Case No. 5:20-cv-12661-JEL-DRG (E.D. Mich.), the Hon. Judge Judith E. Levy entered an order approving the following the dates set and agreed on by the parties to this litigation: Event Date Settlement Conference before April 2021 Magistrate Judge Grand: Plaintiff's Rule 23 Motion for May 14, 2021 Class Certification filed by: Discovery completed by: 60 days after ruling on class certification Dispositive Motions filed by 90 days after ruling on class certification Motions in Limine filed by: To be determined Joint Final Pretrial Order To be determined submitted by: Final Pretrial Conference: To be determined Proposed Joint Jury Instructions & To be determined Verdict Form submitted by: Trial Date: To be determined The Court said, "The parties are required to first confer and attempt to narrow any disagreements in regard to discovery. E.D. Mich. Local R. 37.1. In the event a dispute still exists after the parties confer, the Court's practice guidelines require parties to contact the Court via telephone prior to filing any discovery motions. The Court will then hold a telephonic conference with the parties regarding the subject of the dispute. The Court will only permit discovery motions to be filed after it holds a telephonic conference on the dispute; discovery motions filed without leave of Court will be stricken from the docket." A copy of the Court's scheduling order dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3oYynYy at no extra charge.[CC] WESTERN REFINING: Class Cert. Bid Deadline Continued to June 21 --------------------------------------------------------------- In the class action lawsuit captioned as ELIZABETH HALL and SHANIECE MAYNOR, individually and on behalf of all others similarly situated, v. WESTERN REFINING RETAIL, LLC; and DOES 1 through 10, inclusive, Case No. 5:19-cv-00855-VAP-SK (C.D. Cal.), the Hon. Judge Virginia A. Phillips entered an order that: 1. The Motion for Class Certification due date is continued from February 21, 2021 to June 21, 2021; 2. The Opposition to Motion for Class Certification due date is continued from April 2, 2021 to July 2, 2021; and 3. The Reply in Support of Motion for Class Certification due date is continued from April 26, 2021 to July 26, 2021. Western Refining, Inc. refines crude oil and markets petroleum products. The Company produces gasoline, diesel, and jet fuel. Western Refining serves customers in the United States and Mexico. A copy of the Court's order continuing case deadlines dated Jan. 14, 2020 is available from PacerMonitor.com at https://bit.ly/3p29viw at no extra charge.[CC] ZIP CAPITAL: Smith Files TCPA Suit in C.D. California ----------------------------------------------------- A class action lawsuit has been filed against Zip Capital Group, LLC. The case is styled as Jonathan Smith, individually and on behalf of all others similarly situated v. Zip Capital Group, LLC, a California limited liability company, Case No. 8:21-cv-00073 (C.D. Cal., Jan. 14, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act. Zip Capital Group -- https://zipcapitalgroup.com/ -- is a small business lender servicing small and medium-sized businesses in many industries across the United States.[BN] The Plaintiff is represented by: Joshua E Moyer, Esq. SHAMIS AND GENTILE PA 401 West A Street Suite 200 San Diego, CA 92101 Phone: (305) 479-2299 Fax: (786) 623-0915 Email: jmoyer@shamisgentile.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***