/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210224.mbx C L A S S A C T I O N R E P O R T E R Wednesday, February 24, 2021, Vol. 23, No. 34 Headlines 3M COMPANY: Engel Suit Alleges Injury From Exposure to Toxic AFFF 7-ELEVEN INC: Franchisees Want 9th Circuit to Rule on Class Action 9F INC: Schall Law Firm Reminds Investors of March 22 Deadline AGEAGLE AERIAL: Rosen Law Announces Securities Class Action AMAZON.COM INC: Certiorari Petition Filed in Waithaka Labor Suit AMAZON.COM SERVICES: Swearingen Class Suit Stayed Until April 21 AMERICAN LUGGAGE: Nisbett Files ADA Suit in S.D. New York AMERICAN PROTECTION: Faces Scott Employment Suit in California ARIZONA: Prison Inmates Seek Action in Health Care Dispute AROMA MARKET: Faces Haon Suit Over Failure to Properly Pay OT ASTRAZENECA PLC: Hagens Berman Reminds of March 29 Deadline B & JCM: Architectural Barriers Violates ADA, Longhini Alleges BANK OF AMERICA: 9th Cir. Affirms Dismissal of Georges Class Suit BAYER CROPSCIENCE: Jones Sues Over Crop Chemicals Market Monopoly BAYSIDE, DE: Homeowners File Class Action Suits Against Developer BELDEN INC: Faces Macket Suit Over Data Breach in E.D. Missouri BET STREAMING: Sanchez Files ADA Suit in S.D. New York BLUE APRON: May 10 Class Action Settlement Fairness Hearing Set BLUEBIRD BIO: Faces Leung Suit Over Drop in Share Price BLUEBIRD BIO: Gainey McKenna Reminds Investors of April 13 Deadline BLUEBIRD BIO: Kehoe Law Firm Investigates Securities Claims BLUEBIRD BIO: Klein Law Reminds Investors of April 13 Deadline BLUEBIRD BIO: Rosen Law Firm Reminds of April 13 Deadline BLUEBIRD BIO: Schall Law Firm Reminds of April 13 Deadline BNP PARIBAS: Claims in Second Amended Kashef Complaint Narrowed CAPTIVA MVP: Court Refuses to Approve Data Privacy Settlement CENTRAL CONSTRUCTION: Valentine Seeks Unpaid Overtime Wages CERNER CORP: Settles Lawsuit Over Its Retirement Plan for $4MM CHARTER COMMUNICATIONS: Bids to Seal Docs in Harper Suit Denied CHARTER COMMUNICATIONS: Summary Judgment Bid in Harper Partly OK'd CHW GROUP: Adam Files TCPA Suit in N.D. Iowa CINCINNATI CAPITAL: Judgment on Pleadings Bid in Lee Partly OK'd CLEANSPARK INC: Klein Law Reminds of March 22 Deadline CLOVER HEALTH: Klein Law Reminds of April 6 Deadline CLOVER HEALTH: Proxy Statement Lacks Business Info, Kaul Alleges COMPASS INC: Maffei Suit Removed from Cal. State Ct. to C.D. Cal. CONTINENTAL CASUALTY: Court Grants Bid to Dismiss Cafe Plaza Suit DOORDASH INC: Saunders Suit Moved to San Francisco Superior Court DOSE OF COLORS: Jaquez Files ADA Suit in S.D. New York FALONI LAW: Lugo Files FDCPA Suit in D. New Jersey FIRST CREDIT: Faces Jones FDCPA Suit in New Jersey Federal Court FIRSTCREDIT INC: Reynolds Files FDCPA Suit in N.D. Ohio FISHER-PRICE: Poppe Baby Sleeper Suit Seeks to Certify Classes FISHER-PRICE: Willis Baby Sleeper Suit Seeks to Certify Classes FISHER-PRICE: Wray Baby Sleeper Suit Seeks to Certify Classes FLORIDA: Unemployment Compensation System Class Action Pending GARDEN FRESH: Lopez-Aguilar Sues Over Collection of Biometrics GARDENS ALIVE: Williams Files ADA Suit in S.D. New York GENERAL MOTORS: Pilgrim Allowed to File First Amended Complaint GENERAL MOTORS: Sproles Files Suit in W.D. Virginia GENERALI US: Dziagwa Suit Transferred to S.D. New York GILBERT H. WILD: Williams Files ADA Suit in S.D. New York GLOBAL APPAREL: Blind Users Can't Access Website, Nisbett Alleges GOOGLE INC: Calif. Court Tosses Class Action Over Loot Boxes GOOGLE INC: Faces Lawsuit Over Stadia 4K Game Quality GOOGLE LLC: Vance BIPA Suit Stayed Until Resolution of IBM Suit GTS TRANSPORTATION: Equitable Claims in Plestsov Suit Dismissed HAIN CELESTIAL: Baby Products Contain Heavy Metals, Mays Suit Says HEARST MAGAZINE: Sanchez Files ADA Suit in S.D. New York HOME DEPOT: Faces Gregorio Suit Over Sale of Herbicide Roundup HOUGHTON MIFFLIN: Bais Yaakov Appeals Case Dismissal to 2nd Cir. HUHTAMAKI INC: Chavez Suit Removed from Cal. State Ct. to C.D. Cal. ICEBOX BRANDS: Faces Lopez Employment Suit in Calif. State Court IIWII GARDENS: Williams Files ADA Suit in S.D. New York INOVIO PHARMACEUTICALS: Claims in McDermid Securities Suit Narrowed INTERACTIVE LIFE: Jaquez Files ADA Suit in S.D. New York IRHYTHM TECHNOLOGIES: Klein Law Firm Reminds of April 2 Deadline IRHYTHM TECHNOLOGIES: Klein Law Reminds of April 2 Deadline IT'S JUST LUNCH: Faces Class Action Over Alleged Fraud JIANPU TECHNOLOGY: Bragar Eagel Reminds of April 19 Deadline JR CITY PROPERTIES: Fails to Pay Overtime, Rodriguez Suit Claims JUUL LABS: School Boards Sue Over Unlawful Sales of E-Cigarettes KRAFT HEINZ: Bagels Don't Contain Mozzarella Cheese, Suit Says KRG KINGS: Court Conditionally Certifies Class in McDonnell Suit LIBERTY HEALTCARE: Underpays Investigators, Williams Suit Claims MCCLATCHY COMPANY: Sanchez Files ADA Suit in S.D. New York MDL 2989: 41 Short Squeeze Class Suits Consolidated in N.D. Calif. MENTED COSMETICS: Blind Users Can't Access Website, Slade Says MERIDIAN BIOSCIENCE: Pomerantz Law Announces Securities Class Suit MONARCH INVESTMENT: Turner Suit Stayed Pending Bid to Compel Ruling MRS BPO: Milam Sues Over Unsolicited Phone Calls & Text Messages NAGOYA INC: Fails to Pay Overtime Pay, Jiang Suit Alleges NATURE HILLS: Williams Files ADA Suit in S.D. New York NEPTUNE WELLNESS: Pomerantz Law Announces Securities Class Action NESTLE USA: Coubaly Suit Alleges Child Labor and Trafficking NEW HO WAH: Juracan Seeks Minimum, Overtime Wages Under FLSA, NYLL NEW YORK: 2nd Circuit Appeal Filed in Gulino Suit re Alford NIAGARA BOTTLING: Awarded $98K in Counsel Fees, Costs in Frompovicz OATH INC: Sanchez Files ADA Suit in S.D. New York ORTHOPEDIATRICS CORP: Rosen Law Investigates Securities Claims PARDHAR LLC: Perkey Suit Seeks OT Premiums for Home Care Providers PEACOCK TV: Sanchez Files ADA Suit in S.D. New York PENUMBRA INC: Bernstein Liebhard Reminds of March 16 Deadline PENUMBRA INC: Kahn Swick Reminds Investors of March 16 Deadline PICSART INC: Sanchez Files ADA Suit in S.D. New York PILLPACK LLC: Class & Subclass in Williams TCPA Suit Certified PREFERRED PHYSICIANS: Sharfman Sues Over Unsolicited Fax Ads PROCTER & GAMBLE: Court Dismisses First Amended Davis Class Suit PROGRESSIVE ADVANCED: Must Pay Davis ACV Under Policy, Court Says PROVIDENCE ST. JOSEPH: Gregg Remanded to California Superior Court QEP ENERGY: Blasi Files Suit in North Dakota QUANTUM GLOBAL: $175K Settlement in Taafua FCRA Suit Gets Final Nod QUANTUMSCAPE CORP: Kahn Swick Reminds Investors of March 8 Deadline QUANTUMSCAPE CORP: Robbins LLP Reminds of March 8 Deadline QUANTUMSCAPE CORP: Schall Law Firm Reminds of March 8 Deadline RAPID PASADENA: Faces Gomez Labor Suit in California State Court SAN DIEGO GAS: Remand of Radcliff to California Super. Ct. Denied SCOTT CREDIT: Court Partly Grants Bid to Dismiss Toth Class Suit SMOKY MOUNTAIN: Jaquez Files ADA Suit in S.D. New York SONY INTERACTIVE: Faces DualSense Controller Drifting Class Action SORRENTO THERAPEUTICS: Zenoff Named Lead in Wasa Securities Suit SPRAGUE OPERATING: Cruz Suit Seeks Prevailing Wages for Drivers SYNCHRONY FINANCIAL: Dismissal of Securities Suit Partly Affirmed TENNESSEE WHOLESALE: Williams Files ADA Suit in S.D. New York TENNESSEE: Bid to Certify Class in Green Prisoners Suit Denied TFC PARTNERS: Fails to Pay Wages for all Hours Worked, Jones Says TV GUIDE: Sanchez Files ADA Suit in S.D. New York TYSON FOODS: Schall Law Firm Reminds of April 5 Deadline UBER TECHNOLOGIES: Hogan Lovells Attorneys Discuss Court Ruling UBS AG: Tel Aviv Court Tosses LIBOR Manipulation Class Action UNITED AIRLINES: Pilots & Attendants Classes Certified in Ward Suit UNITED STATES: Banks Files Appeal in Martinez-Brooks Suit UNITED STATES: Evans Brings Appeal to C.A.F.C. VIACOMCBS INC: Stockholder Class Action Over Merger Can Proceed WALGREENS CO: Forth Suit Transferred to N.D. Illinois WEDDERSPOON ORGANIC: Sanchez Files ADA Suit in S.D. New York WELD COUNTY, CO: Settlement in Martinez Suit Wins Final Approval WESTCHESTER METAL: Suit Seeks Prevailing Wages Under FLSA, NYLL WHAM-O INC: Jaquez Files ADA Suit in S.D. New York WOLFGANG'S STEAKHOUSE: $445K Settlement in Delijanin Gets Final Nod WORLDWIND SERVICES: Lopez Files Suit in Cal. Super. Ct. ZERO SKATEBOARDS: Sanchez Files ADA Suit in S.D. New York ********* 3M COMPANY: Engel Suit Alleges Injury From Exposure to Toxic AFFF ----------------------------------------------------------------- JOHN ENGEL v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, 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; 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. 2:21-cv-00382-RMG (D.S.C., Feb. 5, 2021) seeks damages for personal injury sustained by the Plaintiff and others similarly situated resulting from exposure to aqueous film-forming foams containing the toxic chemicals collectively known as per and polyfluoroalkyl substances. AFFF is a specialized substance designed to extinguish petroleum-based fires. AFFF 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. 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. PFAS are highly toxic and carcinogenic chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals, including those that degrade to PFOA and/or PFOS. The Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans, the Plaintiff contends. 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 Engel 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.[BN] The Plaintiff is represented by: 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 E-mail: gregc@elglaw.com - and - 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 7-ELEVEN INC: Franchisees Want 9th Circuit to Rule on Class Action ------------------------------------------------------------------ Peter Loh, Esq. -- ploh@foley.com -- of Foley & Lardner LLP, in an article for JDSupra, reports that on Wednesday, February 10, California 7-Eleven franchise owners asked U.S. District Court Judge Dale Fischer to allow the Ninth Circuit Court of Appeals to rule on the district court's previous denial of the franchisees' application for class certification. The franchise owners filed a class action against 7-Eleven, claiming they are actually employees of the franchisor and not independent contractors. The impetus for the franchisees' motion is a previous ruling from Judge Fischer, that the court should evaluate the franchisees' claims of California labor code violations under the eleven-factor test set forth in the 1989 holding in S.G. Borello & Sons Inc. v. Department of Industrial Relations, while claims for violation of California's wage orders would be subject to decision under the so-called "ABC test." The California Supreme Court's 2018 decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County established the much-discussed ABC test. This space has extensively covered the Dynamex litigation and the potential impacts of the ABC test. The 7-Eleven franchisees unsurprisingly argue that the ABC test, which makes it harder for companies to classify workers as independent contractors, should apply to their case. The franchisees point to a once stayed, now pending, case before the Ninth Circuit involving a GrubHub driver, Raef Lawson, in which the court will decide whether Dynamex should apply retroactively to Lawson's claims of misclassification. In January 2021, the California Supreme Court held that its Dynamex ruling indeed applied retroactively, and in response the Ninth Circuit lifted a stay in Lawson's case presumably to proceed in light of the California court's action. The 7-Eleven franchisees now seek to seize whatever advantage might come from the Ninth Circuit's action, as it relates to Lawson's claims against GrubHub. The 7-Eleven franchisees originally brought suit in October 2017, alleging they were employees of the franchisor due to the level of control 7-Eleven exercised over their individual store operations. In March 2018, U.S. District Court Judge John Walter ruled the controls 7-Eleven imposed did not make the franchisees employees. The franchisees appealed to the Ninth Circuit, and in the interim the California Supreme Court issued its decision in Dynamex. The Ninth Circuit then vacated the judgment in favor of 7-Eleven and remanded the case to the district court. In 2019, the Ninth Circuit certified the question of Dynamex's retroactivity to the California Supreme Court, leading to its recent ruling on that question. This litigation remains ongoing but represents a preliminary victory for 7-Eleven to the extent plaintiffs' efforts to certify a class have been unsuccessful. This litigation is also another example of the far-reaching impact of Dynamex. [GN] 9F INC: Schall Law Firm Reminds Investors of March 22 Deadline -------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on Feb. 16 announced the filing of a class action lawsuit against 9F Inc. ("9F" or "the Company") (NASDAQ:JFU) for violations of the federal securities laws. Investors who purchased the Company's securities pursuant and/or traceable to the Company's August 14, 2019 initial public offering (the "IPO"), or between August 14, 2019 and September 29, 2020, are encouraged to contact the firm before March 22, 2021. 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. 9F touted value and benefits to its financial institution partners and tri-party cooperation business model that did not exist. In fact, the Company and Property and Casualty Company Limited ("PICC") were engaged in an ongoing dispute regarding payment of service fees. The Company's collectability of service fees from PICC was at serious risk of non-payment. There was also significant risk that PICC would discontinue credit insurance and guarantee protection to investors and institutional funding partners. 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 9F, 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. CONTACT: The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] AGEAGLE AERIAL: Rosen Law Announces Securities Class Action ----------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces an investigation of potential securities claims on behalf of shareholders of AgEagle Aerial Systems, Inc. (NYSE: UAVS) resulting from allegations that AgEagle may have issued materially misleading business information to the investing public. SO WHAT: If you purchased AgEagle securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to http://www.rosenlegal.com/cases-register-2037.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. WHAT IS THIS ABOUT: On February 18, 2021, Bonitas Research published a report alleging, among other things, that AgEagle "was a pump & dump scheme orchestrated by Alpha Capital Anstalt ('Alpha Capital'), AgEagle founder and former chairman Bret Chilcott and other UAVS insiders to defraud US investors." The report also alleged that "in April 2020 rumor of a partnership between Amazon . . . & AgEagle was started by a promotional video uploaded to AgEagle's founder and former chairman Bret Chilcott's daughter's personal website and youtube account" but that "we have found no evidence of any ‘major e-commerce customer.'" In mid-2020, AgEagle received over $23 million in proceeds from registered direct offerings. Then, in fourth quarter 2020, an Amazon spokesperson stated that the company does not have any dealings with AgEagle whatsoever. On this news, AgEagle's stock price fell $5.13, or 36.4%, on February 18, 2021, damaging investors. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience or resources. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. 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 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020 founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] AMAZON.COM INC: Certiorari Petition Filed in Waithaka Labor Suit ---------------------------------------------------------------- Defendant Amazon.com Inc. filed with the Supreme Court of United States a petition for a writ of certiorari in the matter styled Amazon.com, Inc., et al., Petitioners vs. Bernard Waithaka, Respondent, Case No. 20-1077. Response is due on March 10, 2021. Amazon.com Inc. filed a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in the case titled BERNARD WAITHAKA, on behalf of himself and all others similarly situated, Plaintiff-Appellee v. AMAZON.COM, INC.; AMAZON LOGISTICS, INC., Defendants-Appellants, Case No. 19-1848. A three-judge panel of the Court of Appeals for the First Circuit affirmed the district court's denial of the Appellants' motion to compel arbitration. As previously reported in the Class Action Reporter on Dec. 9, 2020, Chief District Judge Ricardo S. Martinez issued an order granting the Defendants' motion to extend stay in the lawsuit captioned as BERNARD WAITHAKA, on behalf of himself and all others similarly situated v. AMAZON.COM, INC., AMAZON LOGISTICS, INC., Case No. C19-01320-RSM (W.D. Wash.). The Defendants moved to extend stay pending the U.S. Supreme Court's decision on their petitions for writ of certiorari. Plaintiff Waithaka is an Amazon Flex ("AmFlex") delivery driver for Amazon. Amazon historically used third-party delivery providers like FedEx and UPS to deliver its products but recently began using independent contractors for delivery services for the last mile of the order. These "last mile" delivery drivers, like the Plaintiff, use the AmFlex smartphone application to sign up for delivery shifts and use their own methods of transportation, such as a private vehicle, to deliver products subject to Amazon's service standards. Contractors are paid an hourly rate for their shifts but are not compensated for additional time needed to complete all their deliveries, nor are they reimbursed for gas, vehicle maintenance, or cellphone data expenses. To work as an AmFlex driver, contractors like the Plaintiff must download the AmFlex app and agree to the AmFlex Independent Contractor Terms of Service ("Agreement"). Section 11 of the Agreement provides, in part, that the Federal Arbitration Act ("FAA") and applicable federal law "will govern any dispute that may arise between the parties." In a separate section, the Agreement states that "interpretation of this Agreement is governed by the law of the state of Washington without regard to its conflict of laws principles, except for Section 11 of this Agreement, which is governed by the Federal Arbitration Act and applicable federal law." The Plaintiff brought this action against the Defendants in Massachusetts state court alleging (1) misclassification of AmFlex drivers as contractors; (2) violation of the Massachusetts Wage Act; and (3) violation of the Massachusetts Minimum Wage Law. Amazon removed the action to the U.S. District Court for the District of Massachusetts. Amazon then moved to compel arbitration or, in the alternative, to transfer or stay the case. On August 20, 2019, Judge Hillman of the District of Massachusetts granted in part and denied in part Amazon's motion, concluding that a transfer to the Western District of Washington was proper but denying Amazon's motion to compel arbitration. On the arbitration issue, Judge Hillman concluded that the Plaintiff and those similarly situated fall within the FAA's transportation worker exemption, 9 U.S.C. Section 1, that Massachusetts law therefore governed the enforceability of the arbitration provision, and that the provision was unenforceable based on Massachusetts public policy. Amazon appealed Judge Hillman's ruling on the FAA transportation worker exemption to the U.S. Court of Appeals for the First Circuit. On July 17, 2020, the First Circuit affirmed the District Court's holding as to the scope of 9 U.S.C. Section 1, agreeing that the FAA transportation worker exemption encompasses the contracts of transportation workers, like Plaintiff, "who transport goods or people within the flow of interstate commerce, not simply those who physically cross state lines the course of their work." Waithaka v. Amazon.com, Inc., 966 F.3d 10, 13 (1st Cir. 2020). On September 1, 2020, the First Circuit denied Amazon's petition for rehearing en banc.[BN] Defendants-Appellants-Petitioners Amazon.com, Inc., et al. are represented by: David B. Salmons, Esq. MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 373-6283 Facsimile: (202) 739-3001 E-mail: david.salmons@morganlewis.com AMAZON.COM SERVICES: Swearingen Class Suit Stayed Until April 21 ---------------------------------------------------------------- Magistrate Judge Jolie A. Russo of the U.S. District Court for the District of Oregon stayed until April 21, 2021, the proceedings in the cases, KRISTIN SWEARINGEN, Plaintiff v. AMAZON.COM SERVICES, INC. and AMAZON.COM INC., Delaware corporations, and AMAZON.COM.DEDC, LLC, a Delaware limited liability company, Defendants; and CANAN SCHUMANN, individually and on behalf of all similarly situated, Plaintiff v. AMAZON.COM, INC., a foreign corporation, AMAZON.COM SERVICES LLC, a foreign corporation, Defendants, Case Nos. 3:19-cv-1156-JR, 3:20-CV-1751-JR (D. Or.). In Case No. 19-CV-1156-JR, Plaintiff Swearingen brings an action under state wage and hour laws against Defendant Amazon arguing she is entitled to recover unpaid wages and penalty wages. The Plaintiff seeks to bring the claim on behalf of herself, as well as similarly situated employees of the Defendant Amazon. Generally, the Plaintiff alleges Amazon rounded time clock punches resulting in a consistent net underpayment to her and the purported class members. She also alleges Amazon failed to pay for breaks of fewer than 30 minutes resulting in further underpayment. In addition, the Plaintiff asserts Amazon failed to pay all earned wages within the statutory deadline upon her employment termination as well as that of the purported class members. The proceedings are currently at the precertification stage. However, the parties have briefed the motion to certify the class. The proposed classes consist of: 1. The Rounding Class, consisting of all current and former Amazon employees who performed work in Oregon "fulfillment center" facilities (i.e., excluding data center employees), in any workweek the regular payday for which was on or after Dec. 20, 2012 and on or before April 15, 2019, during which they lost time due to Amazon's rounding policy, who do not file a timely request to opt-out of the Class; and 2. The Unpaid Break Class, consisting of all current and former Amazon employees who performed work at any Oregon facility in any workweek the regular payday for which was on or after Dec. 20, 2012 and on or before April 15, 2019, during which they had a clocked-out break (i.e., either a rest period or a meal period) of fewer than 30 minutes, who do not file a timely request to opt-out of the Class. Contemporaneous with the completion of briefing on the motion to certify, the Amazon Defendants moved to stay the proceedings until April 21, 2021, which is the day after a scheduled mediation. Magistrate Judge Russo finds that at this stage, merits discovery, as a practical matter, will not proceed until the issue of class certification is resolved. The certification issue went under advisement on Feb. 8, 2021. The parties have not consented to magistrate judge jurisdiction. Accordingly, Magistrate Judge Russo will need to issue a Findings and Recommendation ("F&R") which will then place the matter before a district judge for final disposition. That process may very well result in a decision on class certification after the mediation scheduled for April 20, 2021. Accordingly, the Defendants move the Court to stay these proceedings to essentially preserve the status quo heading into mediation and to allow the parties to fully invest their energies in preparing for the mediation rather than potentially preparing objections to an F&R. Further complications involve whether the case would subsume the Schumann case should the Court certify the proposed classes. The Plaintiff speculates that the true purpose of the motion is to stall the case as long as possible. However, a delay of two to three months before the Court considers a fully briefed motion results in little prejudice to her given the circumstances of the case. As Magistrate Judge Russo noted, even merits discovery is mostly complete with the exception of a motion to compel the Plaintiff may seek to file before responding to an already stayed motion for partial summary judgment filed by the Defendants. The Plaintiff asserts she is confident that her motion for certification as to both classes will be certified and assumes, therefore, the case will not settle until "Amazon has the bad news in writing." However, the parties are equally capable of assessing the strengths and weaknesses of their respective cases absent a ruling from the Court and negotiate accordingly in mediation. Te Plaintiff also digresses into the profitability of Amazon during the pandemic in an attempt to negate any hardship the Defendant may suffer if the stay is not granted. Amazon's profitability (or lack thereof) is not considered by the Court when assessing whether to exercise its discretion. The Court primarily considers judicial economy particularly with respect to the time and effort that may be saved by the parties and the Court. At this stage of the litigation, Magistrate Judge Russo finds that the proposed classes resemble the existence of Schrödinger's cat, they are both certified and not certified. Neither party is prejudiced by this paradox any more than the other. However, if she denies the stay and proceeds to recommend a ruling on the motion, then both parties will expend their energies on any objections that will result with a significant chance that the motion will not be fully resolved prior to mediation. In addition, the Court will have to spend time and effort on a motion that may become moot depending on the success of mediation. Magistrate Judge Russo holds that the only hint of prejudice in granting a stay is the Plaintiff's belief that her position in mediation will be strengthened by the success of her certification motion. However, this merely puts the Plaintiff on an equal plane with defendant going into mediation. The Judge presumes the parties will act in good faith in assessing the likelihood of success both as to the certification issue and the merits of the underlying claims while undertaking efforts to mediate. The Plaintiff, in her sur-response, asserts she would rather postpone mediation than postpone class certification. However, she not only disregards the utility of mediation with respect to the economy it affords the parties, but she also disregards the impact mediation has on judicial economy for the Court. The parties both agreed mediation would be useful, and, despite the ongoing pandemic, successfully scheduled a date with a mediator that may very well precede a final ruling on the motion to certify. It is in the interest of all concerned that the parties undertake this effort in good faith. Moreover, the Court has every reason to believe that both parties, after assessing the respective strengths and weaknesses of their cases, will do exactly that. For these reasons, the motion to stay is granted and the proceedings in the case are stayed until April 21, 2021. In addition, Magistrate Judge Russo encourages consultation with the counsel in Schumann v. Amazon.com, Inc, Case No. 20-CV-1751 as to any impact mediation may have on that case and, if necessary, invite Schumann to participate in the mediation as well. Accordingly, the Court, on its own motion stays the proceedings in Case No. 20-CV-1751-JR until April 21, 2021. A full-text copy of the Court's Feb. 16, 2021 Order is available at https://tinyurl.com/yb9q2oz2 from Leagle.com. AMERICAN LUGGAGE: Nisbett Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against American Luggage Group LLC. The case is styled as Kareem Nisbett, Individually and on behalf of all other persons similarly situated v. American Luggage Group LLC doing business as: Roam, Case No. 1:21-cv-01461-JMF (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ROAM -- https://roamluggage.com/ -- is the world's first premium customizable luggage.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170 Phone: (212) 764-7171 Email: chris@lipskylowe.com AMERICAN PROTECTION: Faces Scott Employment Suit in California -------------------------------------------------------------- A class action lawsuit has been filed against American Protection Group, Inc. The case is captioned as Steven Scott vs. American Protection Group, Inc., a California corporation, Case No. 34-2021-00293969-CU-OE-GDS (Cal. Super., Sacramento Cty., Feb. 4, 2021). The suit arises from employment-related issues. American Protection Group is a national security company based in Sun Valley, California.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP 515 S Figueroa St., Ste. 1250 Los Angeles, CA 90071-3316 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com ARIZONA: Prison Inmates Seek Action in Health Care Dispute ---------------------------------------------------------- ktar.com reports that attorneys representing inmates in a legal settlement over the quality of health care in Arizona's prisons have asked a judge to hold a hearing soon to discuss her threats to impose contempt-of-court fines against the state for not complying with the deal and others matters. The lawyers said in a filing that U.S. District Judge Roslyn Silver hasn't held a status conference in the class-action lawsuit since December 2018, though another judge who was assigned by Silver to mediate disputes in the case held a video teleconference nearly six months ago to talk about compliance with the settlement during the coronavirus pandemic. In any case, the prisoners' lawyers want a hearing to discuss Silver's threats to impose contempt fines as high as $100,000 per violation against the state for not adequately following through on its promises in the 2014 settlement to improve care for inmates. The attorneys have estimated in court filings that those fines could reach as high as $13.9 million. It wouldn't mark the first contempt fine the state would face in the case. The state and then-Corrections Director Charles Ryan were fined $1.4 million in the summer of 2018 for noncompliance with the settlement. Though the state paid the fine, the company that at the time provided health care services within the prisons had reimbursed the state for that amount. Silver also has raised the possibility of throwing out the settlement and bringing the case to trial. The lawsuit was filed on behalf of the 30,000 inmates in Arizona's 10 state-run prisons and doesn't challenge health care in private prisons in the state. Attorneys for the prisoners also want to hear about the state's plans to offer the coronavirus vaccine to inmates. No dates have been set for when inmates will receive the vaccine, which has already been offered to corrections officers and people who work in health care operations within state prisons. The first inmates who will be offered vaccinations are those who are 65 or older, followed by inmates who have high-risk medical conditions. Vaccinations will be offered to the remainder of state prisoners in a later phase.[GN] AROMA MARKET: Faces Haon Suit Over Failure to Properly Pay OT ------------------------------------------------------------- ZOILA HAON, on behalf of herself and all others similarly situated, Plaintiff v. AROMA MARKET AND CATERING, INC., a Florida Profit Corporation; AROMA BOCA, INC., a Florida Profit Corporation, MEIR YALOZ, individually, and GIL RIBAK, individually, Defendants, Case No. 0:21-cv-60354-XXXX (S.D. Fla, February 15, 2021) is a collective action complaint brought against the Defendants for their alleged illegal pay practices in violation of the Fair Labor Standards Act. According to the complaint, the Defendant employed the Plaintiff and other similarly situated persons as non-exempt hourly paid employees to positions, such as cashier, stocker, bagger, kitchen staff and cleaning personnel, at the Defendants' grocery market and catering store locations throughout South Florida. The Plaintiff was hired from January 2017 through December 11, 2020. The Plaintiff alleges that the Defendant failed to properly pay her and other similarly situated employees because the Defendant manipulated their payroll documents by automatically deducting a 30 minutes meal break from their hours worked although they did not actually take breaks. As a result, although the Plaintiff and other similarly situated employees worked more than 40 hours in a week, they were not paid for all hours they worked, including overtime at the rate of one and one-half times their regular rates of pay for all hours they worked in excess of 40 in a week, the Plaintiff added. The Plaintiff brings this complaint on behalf of herself and all other similarly situated employees seeking to recover all unpaid overtime compensation, liquidated damages in the amount calculated, reasonable attorney's fees, litigation costs and expenses, post-judgment interest, and other relief as the Court deems to be just and proper. The Corporate Defendants operate grocery market and catering store. The Individual Defendants are/were supervisors and/or manager/owners who were involved in the day-to-day operations and/or were directly responsible for the supervision of the Plaintiff and all similarly situated members. [BN] The Plaintiff is represented by: Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A. 10368 West State Road 84, Suite 103 Davie, FL 33324 Tel: (866) 344-9243 Fax: (954) 337-2771 E-mail: noah@floridaovertimelawyer.com ASTRAZENECA PLC: Hagens Berman Reminds of March 29 Deadline ----------------------------------------------------------- Hagens Berman urges AstraZeneca PLC (NASDAQ:AZN) investors to submit their losses now. A securities fraud class action has been filed and certain investors may have valuable claims. Class Period: May 21, 2020 - Nov. 20, 2020 Lead Plaintiff Deadline: March 29, 2021 Visit:www.hbsslaw.com/investor-fraud/AZN Contact An Attorney Now:AZN@hbsslaw.com 844-916-0895 AstraZeneca PLC (AZN) Securities Fraud Class Action: The complaint alleges that Defendants misrepresented and omitted to disclose widespread flaws in the design, execution, and results of the company's clinical trials of AstraZeneca's COVID-19 vaccine candidate (AZD1222). Specifically, Defendants concealed that: (1) a critical manufacturing error resulted in a substantial number of trial participants receiving half the designed dosage; (2) clinical trials consisted of an improper patient makeup that received subtly different treatments undermining any conclusion that could be drawn from the clinical data; (3) certain clinical trial participants had not received a second dose at the designated time points; and (4) the Company failed to include a substantial number of patients over 55 years of age. Investors allegedly began to learn the truth on Nov. 23, 2020, when AstraZeneca announced an interim analysis of its ongoing trial for AZD1222, which revealed that the company used two different dosing regimens in two trials conducted in the UK and Brazil. In one trial, patents received a half dose followed by a full dose (resulting in 90% efficacy). In the other, patients received two full doses (resulting in 62% efficacy). Thereafter, investors learned through a series of disclosures that: (1) the differing dosing regimens were due to a known manufacturing error discovered early in the process, (2) the half dose had not been tested in patients over 55, (3) certain trial participants did not timely receive the second dose, and (4) U.S. regulators stated that, absent a clear explanation of discrepancies in the trial results, approval for commercial sale of AZD1222 in the U.S. was unlikely. In response to this news, the price of AstraZeneca American Depositary Receipts significantly fell. "We're focused on investor losses and proving AstraZeneca knowingly took undisclosed shortcuts in its rush to commercialize AZD1222," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you are an AstraZeneca investor, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding AstraZeneca should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email AZN@hbsslaw.com. About Hagens Berman Hagens Berman is a national law firm with eight offices in eight cities around the country and over eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. For the latest news visit our newsroom or follow us on Twitter at @classactionlaw. [GN] B & JCM: Architectural Barriers Violates ADA, Longhini Alleges -------------------------------------------------------------- DOUG LONGHINI, Individually v. B & JCM DORAL DEVELOPMENT, L.L.C., a Florida Limited Liability Company, Case No. 1:21-cv-20505-JAL (S.D. Fla., Feb. 5, 2021) is a class action complaint brought on behalf of the Plaintiff and on behalf of all other mobility impaired individuals similarly situated suing the Defendant for injunctive relief, and attorney's fees, litigation expenses, and costs pursuant to the Americans with Disabilities Act. Mr. Longhini qualifies as an individual with disabilities as defined by the ADA. He has cerebral palsy and requires the use of a wheelchair to ambulate. He has very limited use of his hands and cannot operate any mechanisms which require tight grasping or twisting of the wrist. Mr. Longhini regularly goes to the subject property to bank at First Bank Florida -- Doral Branch, to eat and shop there, to enjoy the Doral area and as part of his advocacy to ensure public accommodations comply with the ADA. Mr. Longhini definitely intends to return to the subject property in the near future to avail himself of the goods and services offered to the public at the subject property, and will in the future continue to encounter architectural barriers at the subject property, until the barriers are corrected. The barriers to access have endangered his safety, he says. The Defendant owns, leases, leases to, or operates a place of public accommodation as defined by the ADA and the regulations implementing the ADA. The Defendant is responsible for complying with the obligations of the ADA. The place of public accommodation that the Defendant owns, operates, leases or leases to is known as Doral Park Centre, and is located at 3905 NW 107th Avenue, Doral, Florida.[BN] The Plaintiff is represented by: John P. Fuller, Esq. FULLER, FULLER & ASSOCIATES, P.A. 12000 Biscayne Blvd., Suite 502 North Miami, FL 33181 Telephone: (305) 891-5199 Facsimile: (305) 893-9505 E-mail: jpf@fullerfuller.com BANK OF AMERICA: 9th Cir. Affirms Dismissal of Georges Class Suit ----------------------------------------------------------------- In the case, ALEKSANDER GEORGES; IDA JELVEH, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants v. BANK OF AMERICA, N.A., Defendant-Appellee, Case No. 20-55499 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the putative class action brought in diversity against Bank of America. Plaintiffs Georges and Jelveh, who are at least 24 years old, are accountholders at BOA and allege that BOA's student-fee waiver constitutes illegal age discrimination under the California Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code Section 51 et seq., and the "unlawful" prong of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Section 17200, et seq. The Ninth Circuit reviews novo the district court's order granting a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Like most banks, BOA offers various banking products, including personal bank accounts, to its customers. One type of personal bank account BOA offers is called "Bank of America Advantage Plus Banking." BOA imposes a monthly $12 "maintenance fee" on this account unless the account holder: (1) makes at least one direct deposit of $250 or more per month; (2) maintains a daily minimum balance of at least $1,500; (3) enrolls in a specified rewards program and qualifies for a certain tier of rewards; or (4) qualifies for a student waiver. To qualify for the student waiver, accountholders must show that they (1) are enrolled in a high school, college, university, or vocational program and (2) are under 24 years old. The Plaintiffs contend that BOA's age-based student-fee waiver constitutes illegal age discrimination under the Unruh Act because the waiver ceases to apply to student accountholders--like them--when they turn 24 years of age. The Ninth Circuit finds an insufficient basis to conclude that BOA's age-based maintenance fee violates the Unruh Act. It says the Unruh Act does not prohibit all preferential treatment based on age, but "prohibits only arbitrary, invidious or unreasonable discrimination." Such discrimination "emphasizes irrelevant differences or perpetuates irrational stereotypes. This is consistent with the "fundamental purpose" of the Unruh Act, which is the elimination of antisocial discriminatory practices--not the elimination of socially beneficial ones. The Ninth Circuit finds that the overwhelming majority of California courts to address age-based discrimination under the Unruh Act have upheld reasonable age-based discrimination so long as the age-based discrimination is justified by public-policy considerations. The Plaintiffs' reliance on Candelore v. Tinder, Inc., 228 Cal.Rptr.3d 336 (Ct. App. 2018) is unpersuasive, the Ninth Circuit further holds. Unlike in Candelore, where the defendant made no attempt to identify any public interest in its age-based pricing differences, BOA's age-based student fee waiver is supported by public-policy considerations, as evidenced by statutes and federal reports that favor assistance to young adults--and in particular those under 24--as they transition to financial independence and into the banking system. Because BOA's age-based maintenance fee is supported by public-policy considerations, the Ninth Circuit cannot conclude it constitutes "arbitrary, invidious or unreasonable discrimination." Finally, the Plaintiffs assert a derivative claim under the "unlawful" prong of California's UCL, which prohibits "any unlawful, unfair or fraudulent business act or practice." But because there is no violation of the Unruh Act, the Ninth Circuit finds that the Plaintiffs' UCL claim also fails. Accordingly, it affirmed. A full-text copy of the Court's Feb. 16, 2021 Memorandum is available at https://tinyurl.com/3bc9ycv7 from Leagle.com. BAYER CROPSCIENCE: Jones Sues Over Crop Chemicals Market Monopoly ----------------------------------------------------------------- JONES PLANTING CO. III, individually and on behalf of all others similarly situated, Plaintiff v. BAYER CROPSCIENCE LP; BAYER CROPSCIENCE, INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF CORPORATION; SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR SOLUTIONS, INC.; FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG SOLUTIONS INC.; GROWMARK INC.; SIMPLOT AB RETAIL SUB, INC.; and TENKOZ INC., Defendants, Case No. 3:21-cv-00173-GCS (S.D. Ill., Feb. 12, 2021) alleges violation of the Sherman Act. The Plaintiff alleges in the complaint that by impairing competition in the retail sales market for seeds and crop protection chemicals such as fungicides, herbicides, and insecticides ("Crop Inputs"), and by excluding electronic platforms from competing in that market, the Defendants have artificially raised the prices paid by farmers for Crop Inputs, and ultimately the prices paid by consumers for farm products, including corn and grain. Allegedly, the Defendants' conduct in boycotting and preventing electronic platforms from competing in the retail sales market for Crop Inputs lacks any procompetitive justification. Moreover, the harm to competition and the resulting antitrust injury, suffered by both farmers and other consumers of Crop Inputs, more than offsets any procompetitive justifications the Defendants may offer, the suit adds. Bayer Cropscience LP operates as a crop science company. The Company offers fungicides, harvest aids, herbicides, insecticides, traits, seed, and seed treatments. [BN] The Plaintiff is represented by: Charles F. Barrett, Esq. NEAL & HARWELL, PLC 1201 Demonbreun Street, Suite 1000 Nashville, TN 37203 Telephone: (615) 244-1713 E-mail: cbarrett@nealharwell.com -and- Gregory S. Asciolla, Esq. Karin E. Garvey, Esq. Jonathan S. Crevier, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 E-mail: gasciolla@labaton.com kgarvey@labaton.com jcrevier@labaton.com -and- Jonathan P. Barrett, Esq. BARRETT LAW, PLLC 121 Colony Crossing, Suite D Madison, MS 39110 Telephone: (601) 790-1505 E-mail: jpb@barrettlawms.com BAYSIDE, DE: Homeowners File Class Action Suits Against Developer ----------------------------------------------------------------- Ryan Mavity at capegazette.com reports that homeowners in the Bayside community near Selbyville have filed a pair of class-action lawsuits in Delaware Court of Chancery against developer Carl M. Freeman Communities alleging the developer withheld information that would have allowed the homeowners to control their own community association. Judge Sam Glasscock denied the plaintiffs' request for a status quo order Feb. 15, and ordered a trial to be held in early May. In a nutshell, the Bayside homeowners who filed suit believe they should have the controlling interest on the board of directors of the Bayside Community Association. Freeman Communities has said the homeowners are misinterpreting the state's common interest law, and there is an intention to transition the association to the homeowners by 2024. The homeowners believe that isn't soon enough, and Freeman Communities is obligated by law to make the transition now. Bayside homeowner Don Picard said, "I have owned a home in Bayside since 2006. I really like Bayside; it's a wonderful community. But it's been difficult working through the homeowners association with the developer." Fellow homeowner Greg Merrill said, "I don't have a complaint about the community. People support Bayside. But the transition needs to take place. The majority of the board is employed by Freeman. The homeowners do not have control and do not have a say." In a statement, Freeman Companies President and CEO Michelle Freeman said, "We will vigorously defend ourselves against these legally and factually baseless lawsuits, which we believe portray the Carl M. Freeman Companies in an unfair and inaccurate light. We take enormous pride in the quality of how we have developed Bayside, how we operate its amenities in a world-class manner, and how our vision to be the premier development in Sussex County and the entire Delmarva has become a reality." The two suits are related to each other in that they both make allegations that Freeman Communities, the residential real estate development arm of Carl Freeman Companies, did not turn over control of the board of directors of the Bayside Community Association to Bayside residents when more than 75 percent of the lots in Bayside were sold, as required in Delaware's Uniform Common Interest Ownership Act. The first suit, filed in November by attorney Robert Valihura on behalf of Bayside resident Nancy Green, asks for Bayside residents to be appointed to the majority of seats on the association board. The Green suit has since been amended to be a class-action suit. The second suit, filed Jan. 28 by Valihura as a class-action on behalf of Bayside resident David Williams, asks for financial compensation based on disclosure documents for all home sales in Bayside since 2009. The Green lawsuit says that Bayside, created in 2005, has been a common interest ownership community controlled by Freeman Companies President and CEO Michelle Freeman. The suit says the board of directors members were appointed by Freeman Communities, the property developer. Plaintiffs argue that according to the state's uniform common interest law, after 75 percent of the units in a common interest community are sold, the developer's control period ends, and the majority of the board of directors must consist of homeowners. They say that 83 percent of the lots in Bayside have been sold. Green's suit says when she learned in July that control of the board must go to residents, she and other homeowners tried to negotiate a transition, which would include an election of new board members. Green's suit alleges those attempts were rejected by Freeman Communities. They argue that while Freeman Communities only owns 20 percent of the remaining lots in the development, the developer still controls the finances and has authority over the community. The Green suit asks for a judgment declaring that Freeman Communities is violating state law and seeks an order directing an election with homeowners holding the majority of the board seats. In response, Freeman Communities, represented by Rehoboth Beach attorney Mark Dunkle, argued that Green had misread the common interest law and stated that Bayside was a master planned community, which is defined in Delaware law as a community consisting of at least 400 acres with at least 400 units. In practice, a master planned community usually consists of multiple neighborhoods with shared amenities like a golf course, swimming pool and clubhouse. Dunkle argued that Delaware law allows the developer of a master planned community to set its own terms for how control of a board of directors is conveyed to unit owners, and the MPC is not subject to the 75 percent rule. He argued that Bayside requires 90 percent ownership of the units to be sold before the board can be controlled by the homeowners. Freeman Communities has asked for the Green suit to be dismissed. In its legal filings, Freeman Communities also argues that while the board of directors is appointed by the developer, the committees, such as the finance committee, which comes up with the community budget, and the grounds and operations committee, which handles much of the day-to-day operation of Bayside, are controlled by homeowners. While the board has the final say, the committees make recommendations on how the community moves forward. "The current structure of decision-making of the HOA favors the homeowners," Dunkle wrote. "Opting to turn over control of the HOA board earlier than prescribed in the Delaware Uniform Common Interest Ownership Act and the charter would put the developer and its interests at risk after investment of over 20 years and $100,000,000 in Bayside, its master plan and amenities." Dunkle also wrote that a possible motivation behind the Green suit is to prevent completion of the community's master plan, including the Freeman Arts Pavilion, a planned amphitheater to be located next to the current Freeman Stage. In response to Dunkle's motion to dismiss, Valihura filed a second lawsuit, this one a class-action suit with Williams as the lead plaintiff. Valihura argues that if Bayside is a master planned community, it must provide disclosure documents stating such to homeowners when they purchase their homes. He said this was not done. The Williams suit alleges Freeman Communities committed fraud by failing to provide this information, and is seeking damages and attorneys fees. A response brief to the Williams suit has not yet been filed. [GN] BELDEN INC: Faces Macket Suit Over Data Breach in E.D. Missouri --------------------------------------------------------------- KIA MACKEY, individually and on behalf of all others similarly situated v. BELDEN, INC., Case No. 4:21-cv-00149 (E.D. Mo., Feb. 4, 2021) seeks to hold Defendant responsible for the harms it caused to the Plaintiff and the other Class members in the large and preventable data breach that was discovered by Belden on November 12, 2020 and announced publicly by Belden on November 24, 2020, in which unauthorized users accessed Belden servers that contained personal information of current and former employees and business partners ("Data Breach"). Grass Valley USA, LLC, a former subsidiary of Belden, was made aware of the Data Breach on November 18, 2020. According to the Notice of Data Incident disseminated by Belden, Grass Valley was owned by Belden until July 2020. Belden continues to provide IT, HR and other services for Grass Valley pursuant to the terms of Grass Valley's divestiture. According to the complaint, Belden, a provider of networking, connectivity, and cable products, which designs, manufacturers, and markets signal transmission products for applications, has failed to meet its obligation to protect the sensitive personal identifying information entrusted to them by current and former employees, or current and former employees of Belden's subsidiaries. Belden has not yet disclosed when the Data Breach occurred, but on November 24, 2020, it announced that an unknown third party gained unauthorized access to its servers that were used to store certain employee data. Data including names, birthdates, government-issued identification numbers (e.g. Social Security numbers), bank account information (for North American employees on Belden/Grass Valley payroll), home addresses, email addresses, and other general employment-related information ("PII") was accessed, the suit says. The Plaintiff contends that as a result of the Defendant's failure to provide reasonable and adequate data security, the she and the Class members' PII has been exposed to those who should not have access to it. The Plaintiff and the Class are now at much higher risk of identity theft and for cybercrimes of all kinds, especially considering the highly sensitive PII stolen here, added the suit. Plaintiff Kia Mackey is a resident of Indianapolis, Indiana. In December 2020, she received notice from Belden by letter dated December 11, 2020 that it improperly exposed her PII to unauthorized third parties. She worked for Belden from 2019-2020.[BN] The Plaintiff is represented by: Jeffrey R. Schmitt, Esq. Katherine M. Flett, Esq. DANNA MCKITRICK, P.C. 7701 Forsyth Blvd., Suite 1200 St. Louis, MO 63105 Telephone: (314) 726-1000 Facsimile: (314) 725-6592 E-mail: jschmitt@dmfirm.com kflett@dmfirm.com - and - William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Ave. Oklahoma City, OK 73120 Telephone: (405) 235-1560 Facsimile: (405) 239-2112 E-mail: wbf@federmanlaw.com BET STREAMING: Sanchez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against BET Streaming LLC. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. BET Streaming LLC, Case No. 1:21-cv-01436-JMF (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Black Entertainment Television (BET) -- https://www.bet.com/ -- is an American pay television channel targeting African American audiences.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal BLUE APRON: May 10 Class Action Settlement Fairness Hearing Set --------------------------------------------------------------- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE BLUE APRON HOLDINGS, INC. SECURITIES LITIGATION No. 17-cv-04846-NGG-PK This Document Relates To: ALL ACTIONS SUMMARY NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED BLUE APRON HOLDINGS, INC. CLASS A COMMON STOCK FROM JUNE 29, 2017, THROUGH AUGUST 25, 2017, BOTH DATES INCLUSIVE. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Eastern District of New York, that a hearing will be held on May 10, 2021, at 10:00 a.m., before the Honorable Nicholas G. Garaufis, at the United States District Court, Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 11201, for the purpose of determining: (1) whether the proposed Settlement of the claims in the above-captioned Action for consideration including the sum of $13,250,000 should be approved by the Court as fair, reasonable, and adequate; (2) whether the proposed plan to distribute the Settlement proceeds is fair, reasonable, and adequate; (3) whether the application of Plaintiffs' Counsel for an award of attorneys' fees of no more than one-third plus interest of the Settlement Amount, reimbursement of expenses of not more than $125,000, and an award of no more than $40,000, in aggregate, or $10,000 each, to Lead Plaintiffs, should be approved; and (4) whether this Action should be dismissed with prejudice as set forth in the Amended Stipulation and Agreement of Settlement dated November 12, 2020 ("Stipulation"). The Court reserves the right to hold the Settlement Hearing telephonically or by other virtual means. If you purchased Blue Apron Holdings, Inc. ("Blue Apron") Class A Common Stock during the period from June 29, 2017, through August 25, 2017, both dates inclusive ("Settlement Class Period"), your rights may be affected by this Settlement, including the release and extinguishment of claims you may possess relating to your ownership interest in Blue Apron Class A Common Stock. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release Form, you may obtain copies by writing to, calling, or contacting the Claims Administrator: Blue Apron Holdings, Inc. Securities Litigation, c/o A.B. Data, Ltd., P.O. Box 173115, Milwaukee, WI 53217; (Tel) (877) 884-3360; info@BlueApronSecuritiesSettlement.com. If you are a member of the Settlement Class, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release Form electronically or postmarked no later than March 27, 2021, establishing that you are entitled to recovery. Unless you submit a written exclusion request, you will be bound by any judgment rendered in the Action whether or not you make a claim. If you desire to be excluded from the Settlement Class, you must submit to the Claims Administrator a request for exclusion so that it is received no later than April 19, 2021, in the manner and form explained in the Notice. All members of the Settlement Class who have not requested exclusion from the Settlement Class will be bound by any judgment entered in the Action pursuant to the Stipulation. Any objection to the Settlement, Plan of Allocation, or Plaintiffs' Counsel's request for an award of attorneys' fees and reimbursement of expenses and award to Lead Plaintiffs must be in the manner and form explained in the detailed Notice and received no later than April 19, 2021, to each of the following: CLERK OF THE COURT: United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 PLAINTIFFS' COUNSEL: Jeremy A. Lieberman, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, New York 10016 Phillip Kim, Esq. THE ROSEN LAW FIRM P.A. 275 Madison Avenue, 40th Floor New York, New York 10016 DEFENDANTS' COUNSEL: Michael G. Bongiorno, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, New York 10007 If you have any questions about the Settlement, you may call or write to Plaintiffs' Counsel: Jeremy A. Lieberman, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, New York 10016 Phillip Kim, Esq. THE ROSEN LAW FIRM P.A. 275 Madison Avenue, 40th Floor New York, New York 10016 PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. Dated: February 1, 2021 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK [GN] BLUEBIRD BIO: Faces Leung Suit Over Drop in Share Price ------------------------------------------------------- PETER LEUNG, individually and on behalf of all others similarly situated, Plaintiff v. BLUEBIRD BIO, INC.; NICK LESCHLY; and CHIP BAIRD, Defendants, Case No. 1:21-cv-00777 (E.D.N.Y., Feb. 12, 2021) is a class action by the Plaintiff and the Class who purchased or otherwise acquired Bluebird securities between May 11, 2020 and November 4, 2020 (the "Class Period"), seeking to recover damages caused by Defendants' violations of the Securities Exchange Act of 1934 (the "Exchange Act"). According to the complaint, on May 2020, in the midst of the COVID-19 pandemic, the Defendants announced that they expected to submit a U.S. Biologics Licensing Application ("BLA") to the U.S. Food and Drug Administration ("FDA") for LentiGlobin, a treatment for sickle cell disease ("SCD") in the second half of 2021. Throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, the Defendants allegedly made false and misleading statements and failed to disclose that: (i) data supporting bluebird's BLA submission for LentiGlobin for SCD was insufficient to demonstrate drug product comparability; (ii) Defendants downplayed the foreseeable impact of disruptions related to the COVID-19 pandemic on the Company's BLA submission schedule for LentiGlobin for SCD, particularly with respect to manufacturing; (iii) as a result of all the foregoing, it was foreseeable that the Company would not submit the BLA for LentiGlobin for SCD in the second half of 2021; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. On November 4, 2020, post-market, Bluebird disclosed that it would no longer apply for FDA approval of its LentiGlobin product as a treatment for SCD in the second half of 2021 as expected. On this news, the Defendants' stock price fell $9.72 per share, or 16.6%, to close at $48.83 per share on November 5, 2020, the suit says. Bluebird Bio, Inc. provides biotechnological products and services. The Company offers gene therapies for severe genetic disorders. [BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. James M. LoPiano, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlopiano@pomlaw.com -and- Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com BLUEBIRD BIO: Gainey McKenna Reminds Investors of April 13 Deadline ------------------------------------------------------------------- Gainey McKenna & Egleston on Feb. 16 disclosed that a class action lawsuit has been filed against bluebird bio, Inc. ("bluebird" or the "Company") (NASDAQ: BLUE) in the United States District Court for the Eastern District of New York on behalf of those who purchased or acquired the securities of bluebird between May 11, 2020 and November 4, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for investors under the federal securities laws. The Complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose that: (1) data supporting bluebird's U.S. Biologics Licensing Application ("BLA") submission for LentiGlobin for sickle cell disease ("SCD") was insufficient to demonstrate drug product comparability; (2) Defendants downplayed the foreseeable impact of disruptions related to the COVID-19 pandemic on the Company's BLA submission schedule for LentiGlobin for SCD, particularly with respect to manufacturing; (3) as a result of all the foregoing, it was foreseeable that the Company would not submit the BLA for LentiGlobin for SCD in the second half of 2021; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares of bluebird during the Class Period should contact the Firm prior to the April 13, 2021 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] BLUEBIRD BIO: Kehoe Law Firm Investigates Securities Claims ----------------------------------------------------------- Kehoe Law Firm, P.C. is investigating potential securities claims on behalf of investors of bluebird bio, Inc. ("bluebird" or the "Company") (NASDAQ: BLUE) to determine whether the Company engaged in securities fraud or other unlawful business practices. INVESTORS WHO PURCHASED, OR OTHERWISE ACQUIRED, BLUEBIRD SECURITIES BETWEEN MAY 11, 2020 AND NOVEMBER 4, 2020, BOTH DATES INCLUSIVE (THE "CLASS PERIOD"), AND SUFFERED LOSSES GREATER THAN $100,000 ARE ENCOURAGED TO COMPLETE KEHOE LAW FIRM'S SECURITIES CLASS ACTION QUESTIONNAIRE OR CONTACT MICHAEL YARNOFF, ESQ., (215) 792-6676, EXT. 804, MYARNOFF@KEHOELAWFIRM.COM, SECURITIES@KEHOELAWFIRM.COM, INFO@KEHOELAWFIRM.COM, TO DISCUSS THE SECURITIES INVESTIGATION OR POTENTIAL LEGAL CLAIMS. On February 12, 2021, a class action lawsuit was filed against bluebird in United States District Court, Eastern District of New York. Throughout the Class Period, according to the class action complaint, the bluebird Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. The bluebird Defendants, allegedly, made false and/or misleading statements and/or failed to disclose that (i) data supporting bluebird's U.S. Biologics Licensing Application ("BLA") submission for LentiGlobin for sickle cell disease ("SCD") was insufficient to demonstrate drug product comparability; (ii) Defendants downplayed the foreseeable impact of disruptions related to the COVID-19 pandemic on the Company's BLA submission schedule for LentiGlobin for SCD, particularly with respect to manufacturing; (iii) as a result of the foregoing, it was foreseeable that the Company would not submit the BLA for LentiGlobin for SCD in the second half of 2021; and (iv) as a result, bluebird's public statements were materially false and misleading at all relevant times. Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors from securities fraud, breaches of fiduciary duties, and corporate misconduct. Combined, the partners at Kehoe Law Firm have served as Lead Counsel or Co-Lead Counsel in cases that have recovered more than $10 billion on behalf of institutional and individual investors. This press release may constitute attorney advertising. [GN] BLUEBIRD BIO: Klein Law Reminds Investors of April 13 Deadline -------------------------------------------------------------- The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of bluebird bio, Inc. (NASDAQ: BLUE) alleging that the Company violated federal securities laws. Class Period: May 11, 2020 and November 4, 2020 Lead Plaintiff Deadline: April 13, 2021 Learn more about your recoverable losses in BLUE: http://www.kleinstocklaw.com/pslra-1/bluebird-bio-inc-loss-submission-form?id=13021&from=5 The filed complaint alleges that bluebird bio, Inc. made materially false and/or misleading statements and/or failed to disclose that: (i) data supporting bluebird's BLA submission for LentiGlobin for SCD was insufficient to demonstrate drug product comparability; (ii) Defendants downplayed the foreseeable impact of disruptions related to the COVID-19 pandemic on the Company's BLA submission schedule for LentiGlobin for SCD, particularly with respect to manufacturing; (iii) as a result of all the foregoing, it was foreseeable that the Company would not submit the BLA for LentiGlobin for SCD in the second half of 2021; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. Shareholders have until April 13, 2021 to petition the court for lead plaintiff status. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. For additional information about the BLUE lawsuit, please contact J. Klein, Esq. by telephone at 212-616-4899 or click the link above. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] BLUEBIRD BIO: Rosen Law Firm Reminds of April 13 Deadline --------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, on Feb. 15 announced the filing of a class action lawsuit on behalf of purchasers of the securities of bluebird bio, Inc. (NASDAQ: BLUE) between May 11, 2020 and November 4, 2020, inclusive (the "Class Period"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than April 13, 2021. SO WHAT: If you purchased bluebird securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the bluebird class action, go to http://www.rosenlegal.com/cases-register-2032.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. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than April 13, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience or resources. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. 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 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020 founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) data supporting bluebird's U.S. Biologics Licensing Application ("BLA") submission for LentiGlobin for sickle cell disease ("SCD") was insufficient to demonstrate drug product comparability; (2) defendants downplayed the foreseeable impact of disruptions related to the COVID-19 pandemic on the Company's BLA submission schedule for LentiGlobin for SCD, particularly with respect to manufacturing; (3) as a result of all the foregoing, it was foreseeable that the Company would not submit the BLA for LentiGlobin for SCD in the second half of 2021; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the bluebird class action, go to http://www.rosenlegal.com/cases-register-2032.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. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select 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. Attorney Advertising. Prior results do not guarantee a similar outcome. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] BLUEBIRD BIO: Schall Law Firm Reminds of April 13 Deadline ---------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on Feb. 15 announced the filing of a class action lawsuit against bluebird bio, Inc. ("bluebird" or "the Company") (NASDAQ: BLUE) for violations of §§10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between May 11, 2020 and November 4, 2020, inclusive (the "Class Period"), are encouraged to contact the firm before April 13, 2021. 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. Bluebird presented insufficient data to support its U.S. Biologics Licensing Application ("BLA") submission for LentiGlobin for sickle cell disease ("SCD"). The Company downplayed the risk of disruptions related to the COVID-19 pandemic to its BLA submission schedule for LentiGlobin for SCD, especially on the topic of manufacturing. 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 bluebird, 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. Contacts: The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] BNP PARIBAS: Claims in Second Amended Kashef Complaint Narrowed --------------------------------------------------------------- In the case, Entesar Osman Kashef, et al., Plaintiffs v. BNP Paribas SA, et al., Defendants, Case No. 16-cv-3228 (AJN) (S.D.N.Y.), Judge Alison J. Nathan of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendants' renewed motion to dismiss the Plaintiffs' Second Amended Complaint for failure to state a claim. The putative class action is brought on behalf of victims of the Sudanese government's campaign of human rights abuses from 1997 to 2009. The Plaintiffs bring various state law claims against Defendant financial institution and its subsidiaries for assisting the Sudanese government in avoiding U.S. sanctions, which the claim provided the Regime with funding used to perpetrate the atrocities. The Plaintiffs were victims of horrific human rights abuses undertaken by the Government of Sudan between 1997 and 2009, including "beatings, maiming, sexual assault, rape, infection with HIV, loss of property, displacement from their homes, and watching family members be killed." The Defendants are BNP Paribas S.A., a French financial institution, as well as several of its branches and subsidiaries, as well as individual defendants working for the bank ("BNPP"). Between 1992 and 1997, in response to the Government of Sudan's human rights abuses against its own people, the United States government took a series of steps aimed at stemming the abuses, including formal condemnation, designation as a state sponsor of terrorism, and eventually economic sanctions. In 2002, Congress passed the Sudan Peace Act, again condemning the ongoing atrocities in the Sudan and requiring the President to implement additional sanctions. Additional legislation and executive orders implemented further sanctions between 2004 and 2006. S Beginning in 1997 and continuing through 2007, BNPP became the primary bank of the Government of Sudan, through which it accessed U.S. financial markets and circumvented U.S. sanctions. BNPP created several schemes to avoid the sanctions, including removing information from financial documents identifying that a Sudanese entity was one of the parties involved in the financial transaction, and using satellite banks in the United States through which to funnel money. According to the Second Amended Complaint, Sudan's access to U.S. financial markets was critical to funding the government, including its continued atrocities against its people. BNPP's actions were investigated by numerous state and federal agencies in the United States, and in 2014, BNPP pled guilty to conspiring to violate the laws of the United States in connection with circumventing U.S. sanctions on behalf of Sudan, Iran, and Cuba. It also pled guilty to falsifying business records and conspiracy under New York law. The operative complaint alleges 20 state-law claims against the Defendants, including negligence per se, conspiracy to commit battery, aiding and abetting assault, and intentional infliction of emotional distress. The Defendants moved to dismiss the Second Amended Complaint in its entirety. On March 30, 2018, the Court granted Defendants' Motion to Dismiss. It determined that the Act of State Doctrine barred the Plaintiffs claims sounding in secondary liability, negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Court dismissed the remaining claims because they were either time-barred or because the Plaintiffs had failed to state a claim. The Plaintiffs appealed. The Second Circuit reversed the Court's decision, holding that the Plaintiffs' claims were not barred by the Act of State Doctrine nor were they untimely. The Court then ordered supplemental briefing on the remaining claims in the Defendants' Motion to Dismiss that were not addressed in its original opinion, including the issue of whether New York, Sudanese, or Swiss Law applies to the Plaintiffs' claims. In a prior Opinion & Order, the Court held that Swiss Law applies to the Plaintiffs' claims. The parties then conducted expert discovery on the meaning of Swiss law and submitted supplemental briefing on the issue of whether the Plaintiffs had stated a claim under Swiss Law. Judge Nathan concludes that the Plaintiffs have plausibly alleged that BNPP consciously cooperated with the Sudanese regime, either knew or should have known that its assistance was contributing to the Regime's human rights abuses, and that this assistance was the natural and adequate cause of the Plaintiffs' injuries. The Plaintiffs have therefore stated a claim for relief under the Article 50.1 of the Swiss Code of obligations. The following claims, therefore, survive: Conspiracy to Commit Battery, Aiding and Abetting Battery, Conspiracy to Commit Battery in Performance of a Public Duty or Authority, Aiding and Abetting Battery Committed in Performance of a Public Duty or Authority, Conspiracy to Commit Assault, Aiding and Abetting Assault, Conspiracy to Commit False Arrest and False Imprisonment, Aiding and Abetting False Arrest and False Imprisonment, Conspiracy to Commit Conversion, Aiding and Abetting Conversion, Conspiracy to Commit Wrongful Death, and Aiding and Abetting Wrongful Death Caused by Intentional Murder. For the reasons she stated, Judge Nathan granted in part and denied in part the Defendants motion to dismiss the Plaintiffs claims for failure to state a claim under Swiss law. This resolves Dkt. No. 65. Discovery in the case was postponed pending resolution of the instant motion. The Court will schedule an initial pretrial conference by subsequent order and provide instructions for submitting a proposed case management plan. A full-text copy of the Court's Feb. 16, 2021 Opinion & Order is available at https://tinyurl.com/5df6qefb from Leagle.com. CAPTIVA MVP: Court Refuses to Approve Data Privacy Settlement ------------------------------------------------------------- Kristin L. Bryan, Esq. -- kristin.bryan@squirepb.com -- of Squire Patton Boggs (US) LLP, in an article for The National Law Review, reports that CPW recently covered Tsao v. Captiva MVP Rest. Partners, LLC where the Eleventh Circuit aligned itself with others that "declined to find standing on an 'elevated risk of identity theft' theory where the plaintiffs failed to allege any actual misuse of class members' personal information." Well, Tsao is already having a significant impact on data breach litigations. A federal court issued a report and recommendation denying a plaintiff's motion for preliminary approval of a class action settlement reached with defendant. Hymes v. Earl Enters. Holdings, 2021 U.S. Dist. LEXIS 26534, (M.D. Fla. Feb. 10, 2021). Why? Based upon Tsao, the court found there were "substantial questions" regarding whether Plaintiffs in the case had standing. Because it is a threshold requirement that a named plaintiff in a putative class action proceeding in federal court meets the requirements of Article III standing, the court found it was unable to grant preliminary settlement approval. Read on below. There is a long-running Court of Appeals split regarding what injuries in the data breach context suffice for purposes of Article III standing. In data breach litigations, plaintiffs will often allege that they have been harmed by the mere disclosure of their personal information ("PI"). This is so even when plaintiffs have not had fraudulent charges placed on their account, been victims of identity theft, or suffered any other concrete harm. This is because, plaintiffs (and their lawyers) say, they are at an increased risk of future harm as a result of their PI being disclosed in a data breach. The Second, Third, Fourth, Eighth and Eleventh Circuit Court of Appeals have held, consistent with the Supreme Court's rulings in Lujan and Clapper, that plaintiffs bringing such claims lack Article III standing, an essential prerequisite to litigating in federal court. The Eleventh Circuit recently adopted this approach, holding in Tsao v. Captiva MVP Rest. Partners, LLC, that a plaintiff in a data breach litigation had failed to allege a concrete and particularized injury that was actual or imminent. 2021 U.S. App. LEXIS 3055 (11th Cir. Feb. 4, 2021). At the Eleventh Circuit, the Tsao plaintiff argued that he had standing because he "could suffer future injury from misuse of the personal information disclosed during the cyber-attack (though he has not yet), and this risk of misuse alone is enough to satisfy the standing requirement." Tsao, 2021 U.S. App. LEXIS 3055, at *9 (emphasis in original). The Tsao plaintiff also argued that he had standing because "he has already suffered some 'concrete, particularized' mitigation injuries -- for example, lost time, lost rewards points, and loss of access to accounts -- that are sufficient to confer standing." Id. The Eleventh Circuit rejected both arguments. As the Court stated, "[g]enerally speaking, the cases conferring standing after a data breach based on an increased risk of theft or misuse included at least some allegations of actual misuse or actual access to personal data." Id. at *14. Which brings us to Hymes. There, Plaintiffs alleged that Defendant (which operates several restaurant chains nationwide) failed to "exercise reasonable care in securing and safeguarding its customers' sensitive personal information (SPI), including the names, payment card numbers, payment card expiration dates, and payment card security codes." The Defendant had previously disclosed that approximately 2.15 million payment card numbers of customers were stolen from its restaurants, including some restaurants in California, and placed on the dark web for sale as a result of a data breach. Plaintiffs asserted the following claims against Defendant: breach of implied contract, negligence, negligence per se, unjust enrichment, breach of confidence, and violations of Florida and California consumer protection and privacy laws. Following litigation, the parties reached a settlement that included Defendant agreeing to establish a settlement fund of $650,000.00. Class members, consisting of those whose SPI had been disclosed in the data breach, were entitled to seek reimbursement for documented out of pocked expenses (up to $5,000, per class member) to be paid from the settlement fund. Plaintiff filed an unopposed motion for preliminary approval of the settlement, which the court refused. Why? As the court noted, Plaintiffs' alleged injuries track those of the plaintiff in Tsao -- loss of opportunities to use the cash back and rewards programs and of the credit card itself as a result of the data breach. The court faulted the parties for not addressing Plaintiffs' standing in seeking approval of the settlement, particularly as Plaintiffs' counsel in this case were also involved in the Tsao litigation. However, the court did not close the door completely on signing off on the settlement down the road. It invited the parties to submit supplemental briefing on the issues addressed in the court's decision (including whether Plaintiffs had standing in light of Tsao). Time will tell whether Plaintiffs in Hymes will be able to salvage their settlement and obtain preliminary court approval. More broadly, it can be expected that the Eleventh Circuit's adoption of a defendant-friendly standing standard in data breach litigations will continue to impact other pending and future filed cases. For this, and other developments in data privacy, CPW will be there. Stay tuned. [GN] CENTRAL CONSTRUCTION: Valentine Seeks Unpaid Overtime Wages ----------------------------------------------------------- The case, EFREN VALENTINE, individually and on behalf of others similarly situated, Plaintiff v. CENTRAL CONSTRUCTION MANAGEMENT LLC, EBRO DIQUE GROUP, LLC, GREGORY KALAMARAS, FRANCISCO GARCIA, and RAMON CALVO, JR., Defendants, Case No. 1:21-cv-01322 (S.D.N.Y., February 15, 2021) arises from the Defendants' alleged intentional and willful violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants as a construction worker at Central Construction and Ebro Dique Group from approximately July 16, 2019 until on or about January 26, 2021. The Plaintiff alleges that throughout his employment with the Defendants, he was required to work in excess of 40 hours a week without paying him appropriate overtime compensation. Moreover, the Defendants failed to maintain accurate and complete timesheets and payroll records, failed to provide their employees with accurate wage statements at the time of their payment of wages, and failed to provide them with a written notice at the time of hiring, the Plaintiff says. The Plaintiff brings this complaint as a collective action on behalf of himself and other similarly situated construction workers to recover all unpaid overtime wages, liquidated damages, pre- and post-judgment interest, litigations expenses, costs, and attorneys' fees, and other relief as the Court deems just and proper. The Corporate Defendants operate construction companies which perform a variety of projects in Manhatttan. The Individual Defendants possess operational control over the Corporate Defendants, possess ownership interests in the Corporate Defendants, and control significant functions of the Corporate Defendants. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Fax: (212) 317-1620 CERNER CORP: Settles Lawsuit Over Its Retirement Plan for $4MM -------------------------------------------------------------- The settlement covers all beneficiaries of Cerner's retirement plan as of Jan. 21, 2014, or roughly 26,000 people. Cerner Corp. has agreed to pay $4.05 million to settle a class action lawsuit over the way it managed its employee retirement program. The settlement, which requires approval from a federal judge, would resolve two lawsuits filed last year that were later combined. Both suits alleged that Cerner, the largest private employer based in Kansas City, mismanaged its 401(k) plan by choosing costly investment options and defaulting to its own stock to match employee contributions. The lawsuits, filed by current and former employees, contended the administrators of the program failed to take advantage of Cerner's enormous bargaining power to reduce its investment and record-keeping expenses. As part of the settlement, Cerner has agreed to change the way it administers the plan. Cerner, a health information technology company, has more than 28,000 employees worldwide. More than 13,000 work in the Kansas City area. Cerner had sought to force the case into arbitration, but both sides ultimately agreed to submit it to a neutral, third-party mediator. After several hours of mediation, they agreed to the settlement, according to court documents. Kristie Welder, an attorney for the plaintiffs, said she was unable to comment on the settlement. "We have no comment beyond the filing," she said. Cerner did not immediately return a request for comment. Cerner's retirement plan is among the largest in the United States as measured by assets and participants, according to court documents. The settlement covers all beneficiaries of Cerner's retirement plan as of Jan. 21, 2014, or roughly 26,000 people. [GN] CHARTER COMMUNICATIONS: Bids to Seal Docs in Harper Suit Denied --------------------------------------------------------------- In the case, LIONEL HARPER and DANIEL SINCLAIR, individually and on behalf of all others similarly situated and all aggrieved employees, Plaintiffs v. CHARTER COMMUNICATIONS, LLC, Defendant, Case No. 2:19-cv-00902 WBS DMC (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California denied Charter's and Plaintiffs' requests to seal documents. Plaintiffs Harper and Sinclair brought the putative class action against Defendant Charter alleging various violations of the California Labor and Business and Professions Code. Both Charter and the Plaintiffs have filed requests to seal documents in support of their filings related to Charter's Motion for Summary Judgment. Charter requests that the Court seals the following documents: 1. Documents related to the training provided to Account Executives, which are Exhibit A to the Declaration of Andrea Benner (Benner Declaration) in support of Charter's Motion; 2. Signed commission plan that applied to Plaintiff Harper during his employment with Charter, which is attached as Exhibit D to the Benner Declaration; 3. Signed commission plans that applied to Plaintiff Sinclair during his employment with Charter, which are attached as Exhibit F to the Benner Declaration; 4. The Synygy training Charter provided to Account Executives, which is attached as Exhibit G to the Benner Declaration; 5. Charter's Standards of Performance, which is attached as Exhibit H to the Benner Declaration; 6. The Oct. 19, 2015 corrective action issued to Plaintiff Sinclair, which is attached as Exhibit I to the Benner Declaration; 7. The April 4, 2016 corrective action issued to Plaintiff Sinclair, which is attached as Exhibit J to the Benner Declaration; 8. The Incident Investigation Report, which is attached as Exhibit K to the Benner Declaration; 9. The Jan. 5, 2018 written corrective action issued to Plaintiff Harper, which is attached as Exhibit M to the Benner Declaration; and 10. The Incident Investigation Report and further corrective action related to Plaintiff Harper's subpar performance, which is attached as Exhibit N to the Benner Declaration. The Defendant argues that the listed documents should be sealed because (1) Charter has designated the documents as confidential and subject to the parties' Stipulation and Protective Order; (2) the content of the documents includes confidential and proprietary information, including Charter's internal training documents and other employee policies, commission plans and other sales-related documents; (3) Charter has maintained such documents as confidential as part of its regular business practices; and (4) there is no clear public interest in publicly disclosing the information contained in these documents. Judge Shubb finds that the Court has previously pointed out that a confidentiality agreement between the parties does not per se constitute a compelling reason to seal documents that outweighs the interests of public disclosure and access. The fact that the assigned magistrate judge signed the stipulated protective order does not change this principle. Beyond its contention that the documents are subject to the parties' Stipulation and Protective Order, the Judge also finds that Charter offers the general assertion that the content of the documents includes confidential and proprietary information. However, Charter provides no further guidance as to what sensitive information these internal training documents, commission plans, or "other sales-related documents" contain that would merit an order sealing the documents from public view. It is not the Court's burden to parse this substantial amount of material to determine which portions contain sensitive information. The Judge therefore finds that Charter has not provided a compelling reason to shield the submitted documents from public scrutiny. Accordingly, he denied Charter's request to seal. The Plaintiffs request that the Court seals the following documents: 1. Business Account Executive job description, which is Exhibit 5 to the Soderstrom Declaration; 2. Account Executive job description, which is Exhibit 6 to the Soderstrom Declaration; 3. Charter's Aug. 22, 2017 Standards of Performance, which is Exhibit 8 to the Soderstrom Declaration; 4. Charter's July 2017 Timekeeping Policy, which is Exhibit 9 to the Soderstrom Declaration; 5. Charter's December 2016 BAE New Hire Training Participant Guide, which is Exhibit 10 to the Soderstrom Declaration; 6. Charter's January 2017 New Hire Training Participant Guide, which is Exhibit 11 to the Soderstrom Declaration; 7. Charter's January 2017 Account Executive New Hire Spectrum Sales Success Process, which is Exhibit 12 to the Soderstrom Declaration; 8. Charter's November 2014 Sales New Hire Participant Playbook, which is Exhibit 13 to the Soderstrom Declaration; 9. Excerpts of a spreadsheet showing Sinclair's commission payments, which is Exhibit 14 to the Soderstrom Declaration; 10. Charter's Oct. 2, 2017 Commission Plan Addendum with Amended Attachment A commissions schedule, which is Exhibit 16 to the Soderstrom Declaration; and 11. Harper's Salesforce Leads List Report, which is Exhibit 17 to the Soderstrom Declaration. Judge Shubb finds that the Plaintiffs offer almost exactly the same four reasons why these documents should be sealed as Charter. They merely add "Charter's actual and potential customers" as an example of proprietary information purportedly contained within the documents. Like Charter, the Plaintiffs provide the Court with 203 pages of documents with little guidance as to which portions contain sensitive information. Accordingly, for the same reasons he articulated, the Judge denied the Plaintiffs' request to seal. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/16065zxn from Leagle.com. CHARTER COMMUNICATIONS: Summary Judgment Bid in Harper Partly OK'd ------------------------------------------------------------------ In the case, LIONEL HARPER and DANIEL SINCLAIR, individually and on behalf of all others similarly situated and all aggrieved employees, Plaintiffs v. CHARTER COMMUNICATIONS, LLC, Defendant, Case No. 2:19-cv-00902 WBS DMC (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the District of California granted in part and denied in part the Defendant's motion for summary judgment or, in the alternative, summary adjudication. Plaintiffs Harper and Sinclair brought the putative class action against Defendant Charter, alleging various violations of the California Labor and Business and Professions Code. The Plaintiffs were employed by Charter as small/medium sized business Account Executives ("AEs") at Charter's Redding, California location. Harper worked for Charter from Sept. 18, 2017 to March 12, 2018, and Sinclair worked for Charter from Jan. 5, 2015 to April 4, 2017. Charter is a broadband connectivity company and cable operator serving business and residential customers under the Spectrum brand, among others. It utilizes AEs to sell its phone, internet, and television services directly to small- and medium-sized businesses in an assigned geographic area. Charter classifies its AEs as "exempt" employees. As salespersons, Charter AEs were eligible to earn commissions based on how many sales they made each month. The parties dispute whether Charter ever provided the Plaintiffs with a copy of Charter's commission plan or conveyed its terms to the Plaintiffs. On Sept. 14, 2018, Harper filed a written notice with the California Labor and Workforce Development Agency ("LWDA"), alleging that Charter had committed violations of the California Labor Code. Believing he was subject to an arbitration agreement with Charter, Harper then filed a demand for arbitration with JAMS on Nov. 19, 2018. The arbitrator subsequently issued a final award determining that none of Harper's claims were arbitrable. Mr. Harper then filed a complaint alleging the same violations of the California Labor Code against Charter in Shasta County Superior Court, on behalf of himself and all similarly situated individuals. Charter removed the case to the Court on May 17, 2019. On Dec. 13, 2019, Harper amended his complaint, adding Sinclair as a named Plaintiff pursuant to Rule 15(c). The Plaintiffs allege that Charter erroneously categorized them as exempt employees because Charter mistakenly categorized them as "outside salespersons." They claim that, as a result of this misclassification, Charter failed to pay them minimum wage in violation of California Labor Code Sections 1182.12, 1194, 1197, and 1194.4 (First Claim), failed to pay overtime wages in violation of California Labor Code Sections 510 and 1197 (Second Claim), failed to provide meal periods or provide premium wages in lieu thereof in violation of California Labor Code Sections 512 and 226.7 (Third Claim), and failed to provide rest breaks or pay premium wages in lieu thereof in violation of California Labor Code Sections 226.7 (Fourth Claim). The Plaintiffs further claim that Charter unlawfully calculated, deducted, and failed to pay commission wages under California Labor Code Sections 204, 221, 223, 224, and 2751 (Fifth Claim), failed to provide accurate wage statements in violation of California Labor Code Section 226 (Sixth Claim), failed to pay all wages owed upon termination in violation of California Labor Code Section 203 (Seventh Claim), failed to provide timely and complete copies of employment records in violation of California Labor Code Sections 226, 432, and 1198.5 (Eighth Claim), violated California's Unfair Competition Law ("UCL") under California Business and Professions Code Section 17200 (Ninth Claim), and violated the California Private Attorney General Act ("PAGA"), Cal. Labor Code Section 2698, et seq. (Tenth Claim). Charter now moves for summary judgment on all claims or, in the alternative, summary adjudication. Judge Shubb denied the Defendant's motion for summary judgment or, in the alternative, summary adjudication, as to Sinclair's First, Second, Third, Fourth, and Sixth Claims for damages, Harper's First, Second, Third, Fourth, Sixth, and Tenth Claims, as well as Plaintiffs' Fifth Claim for violations of Cal. Labor Code Section 204, 221, and 224, Seventh Claim, and Eighth Claim for violations of Sections 1198.5 and 226. Judge Shubb granted the Defendant's motion for summary judgment or, in the alternative, summary adjudication, as to Sinclair's First, Second, Third, Fourth, and Sixth Claims for statutory penalties, as well as the Plaintiffs' Fifth Claim for violations of Cal. Labor Code Sections 2751(b) and 223, and Eighth Claim for violations of Cal. Labor Code Section 432. Among other things, Judge Shubb finds that the equitable tolling of the statute of limitations applicable to the claims in Charter's original complaint to Nov. 19, 2018 (the date on which Harper filed his arbitration demand with JAMS) is appropriate. Because Sinclair's claims relate back to the claims contained in Harper's original complaint, the applicable date for determining whether Sinclair complied with the statute of limitations is Nov. 19, 2018. Accordingly, because the applicable statute of limitations for claims for damages under the Labor Code is three years, and Sinclair was still working for Charter on Nov. 19, 2015, the Judge can not grant summary judgment against Sinclair on his First through Fourth claims for damages on the grounds that his claims were not timely filed. As Sinclair acknowledges, however, he is time-barred from seeking penalties under his first four claims, as the last day he worked for Charter was April 4, 2017, and statutory penalties are subject to a one-year limitations period. The Judge therefore granted Charter's request for summary adjudication as to Sinclair's First, Second, Third, and Fourth Claims for statutory penalties. And because a genuine dispute of material fact exists as to whether Sinclair was properly classified as an outside salesperson, the Judge finds that a genuine dispute of material fact exists as to whether Charter's wage statements violated Section 226 by failing to include total hours worked prior to 2017. He therefore denied summary judgment as to Harper's Sixth Claim, and granted summary judgment in favor of Charter as to Sinclair's Sixth Claim for penalties. Judge Shubb also finds that both Harper and Sinclair have provided evidence sufficient evidence to create a disputed issue of material fact as to whether Charter paid them a lower commission wage than that to which they were entitled as part of their commission plans, while purporting to pay them the proper wage. A genuine of fact therefore exists as to whether Charter violated the terms of California Labor Code Section 223. He therefore granted summary judgment in favor of Charter as to the Plaintiffs' Fifth Claim for violation of California Labor Code Section 223. The Judge further finds that there is no documentary evidence he can rely on that conclusively shows that the Plaintiffs knowingly agreed to Charter's commission plan, acknowledged receipt of the plan, or were provided with a signed copy of the plan, and the testimony and declarations of the parties are in direct conflict. He therefore finds that a genuine issue of material fact exists as to whether Charter failed to provide the Plaintiffs with signed copies of their commission plans or failed to obtain a signed receipt from each Plaintiff in violation of Section 2751. Finally, as to Sinclair's claim under Section 226, Judge Shubb finds that the Plaintiffs have submitted evidence showing Charter's production of Sinclair's wage statements was incomplete and omitted at least 17 wage statements. There is therefore a genuine dispute of material fact as to whether Charter fully satisfied its obligations to Sinclair under Section 226(a). He denied Charter's motion for summary judgment as to the Plaintiffs' Eighth Claim for violations of California Labor Code Sections 226 and 1198.5. However, he granted summary adjudication in favor of Charter as to the Plaintiffs' claim for violation of California Labor Code Section 432. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/1rbo9s66 from Leagle.com. CHW GROUP: Adam Files TCPA Suit in N.D. Iowa -------------------------------------------- A class action lawsuit has been filed against CHW Group, Inc. The case is styled as William Adam, individually and on behalf of all others similarly situated v. CHW Group, Inc. doing business as: Choice Home Warranty, Case No. 1:21-cv-00019-LRR-MAR (N.D. Iowa, Feb. 18, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. CHW Group, Inc. -- https://www.choicehomewarranty.com/ -- provides home repair and maintenance warranties. It offers home protection, buyers and sellers, and real estate warranty.[BN] The Plaintiff is represented by: Eric David Puryear, Esq. PURYEAR LAW, PC 3719 Bridge Avenue, Suite 6 Davenport, IA 52807 Phone: (888) 919-3719 Fax: (866) 415-5032 Email: eric@puryearlaw.com CINCINNATI CAPITAL: Judgment on Pleadings Bid in Lee Partly OK'd ---------------------------------------------------------------- In the case, Owen V. Lee, et al., Plaintiffs v. Cincinnati Capital Corporation, Defendant, Case No. 19-12133 (E.D. Mich.), Judge Sean F. Cox of the U.S. District Court for the Eastern District of Michigan, Southern Division: (i) granted in part and denied in part the Defendant's Motion for Judgment on the Pleadings; and (ii) denied the Plaintiffs' Motion for Partial Summary Judgment. The case is a putative class action but a motion for class certification has not yet been filed or ruled upon. Thus, only the claims of the named Plaintiffs, Owen and Heather Lee, are at issue at this juncture. Plaintiffs Owen V. Lee and Heather Lee filed the lawsuit against Defendants Joseph Engelhart and Cincinnati Capital in state court. On July 22, 2019, the Defendants removed the action to federal court, based upon both diversity jurisdiction and federal-question jurisdiction. On Aug. 19, 2019, the Plaintiff's filed an amended complaint that included class action allegations--the Plaintiffs' "First Amended Class Action Complaint." In September of 2019, both the Defendants filed Motions to Dismiss, brought under Fed. R. Civ. P. 12(b)(6). The Court dismissed the claims against Defendant Engelhart. Defendant Cincinnati Capital has asserted the following counterclaims against Owen and Heather Lee: 1) Breach of Contract (Count I); 2) Promissory Estoppel (Count II); and 3) Unjust Enrichment (Count III). At this juncture, the operative Complaint is the Plaintiffs' Second Amended Class Action Complaint ("SAC"), and the only remaining Defendant is Cincinnati Capital. The Plaintiffs' SAC, filed on July 20, 2020, is the third complaint filed in the action. The following claims are asserted against Defendant: 1) "Violation of the Secondary Mortgage Loan Act ("SMLA"), Mich. Comp. Laws Ann. Section 493.51, et seq." (Count I); 2) "Unjust Enrichment/Restitution" (Count II); 3) "Violation of Truth-in-Lending Act ("TILA"), 15 U.S.C. Sections 1601, et seq." (Count III); and 4) "Violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. Sections 2601, et seq." (Count IV). The complaint is against the Defendants for violations of the SML, the TILA, the RESPA, and for Unjust Enrichment/Restitution under the laws of the State of Michigan, based upon the unjust collection and retention of payments, to which they were not entitled, made by the Lees and the Putative Class. The complaint alleges that the Defendants violated the SMLA when they conducted business with the Lees and the Putative Class despite being unlicensed under SMLA. The Defendants' collection of principal and interest mortgage payments without a license gives rise to a claim for Unjust Enrichment/Restitution as the law prohibits them from collecting such payments. Further, the Defendants violated various provisions of TILA and RESPA by failing to make certain disclosures or otherwise failing to provide certain information to the Lees and the Putative Class. The SAC asks the Court to "certify a class action of all persons impacted by Defendant's improper activity under SMLA, TILA, and/or RESPA, specifically, the mortgagors whose loans were purchased by Defendants and which were originally executed in favor of Main Street Bank." The Class Definition would include "all persons impacted by Defendants' improper activity under SMLA, Unjust Enrichment/Restitution, TILA, and RESPA, specifically, the mortgagors whose loans were purchased by Defendants and which were originated by Main Street Bank." Upon information and belief, the Class consists of members who acquired each of 230 loans, the Loans purchased by Defendants from the FDIC, and joinder of all these members is impracticable. Because the parties did not agree upon how the case should proceed, and could not agree upon a proposed scheduling order, the Court had the parties brief the issues and submit proposed scheduling orders. On July 17, 2020, it issued an Opinion & Order Granting Plaintiffs' Motion To Combine Class And Merits Discovery." In that same Opinion and Order, the Court denied the Defendant's cross-motion seeking to bifurcate discovery. On July 20, 2020, the Court issued the "Initial Scheduling Order" in the case. That order was modeled after the proposed scheduling order submitted by the Plaintiffs' counsel. Among other things, it provided that fact discovery would be completed by Oct. 30, 2020, and that the Plaintiffs' Motion for Class Certification would be filed March 22, 2021. Thus, at the suggestion and urging of the Plaintiffs, the Court's Initial Scheduling Order provided that the Plaintiffs would file their motion for class certification on March 22, 2021 and then, after the Court ruled on that motion, it Court would set a date for the filing of summary judgment motions. On July 20, 2020, the Plaintiffs filed their SAC. On Sept. 18, 2020, the Defendant filed a Motion for Judgment on the Pleadings. The Plaintiffs have not yet filed their Motion for Class Certification. Nevertheless, without seeking leave to do so, on Oct. 2, 2020, the Plaintiffs filed a Motion For Partial Summary Judgment, asking the Court to rule in favor of the named Plaintiffs (the Lees) as to liability only, and only as to one of the four counts. In its Motion for Judgment on the pleadings, the Defendant states that it seeks judgment in its favor as to all claims asserted against it. The Plaintiffs have now filed three different complaints in the case. The Defendant's Motion for Judgment on the Pleadings, brought under Fed. R. Civ. P. 12(c), challenges the Plaintiffs' operative complaint--their SAC. In responding to the Defendant's motion, however, the Plaintiffs made cursory and improper references about filing yet another amended complaint. Judge Cox opines that faced with the Defendant's Motion for Judgment on the Pleadings that challenges whether the Plaintiffs have included sufficient factual allegations to plausibly state a claim under the statutes at issue, the Plaintiffs have not filed a motion seeking leave to file an amended complaint, nor have they presented this Court with a proposed amended complaint. Hence, the Plaintiffs are not entitled to an advisory opinion from the Court informing them of the deficiencies of the complaint and then an opportunity to cure those deficiencies. Accordingly, he denies the Plaintiffs' improper requests to file another amended complaint and will evaluate the pending motion based on the operative complaint--the Plaintiffs' SAC. The Defendant's motion begins by challenging the SMLA and Unjust Enrichment counts, asserting that the Lees do not have a viable claim under the Michigan SMLA because the SMLA simply does not apply to the type of financial instrument at issue in the case--a home equity line of credit. Likewise, the Lees' purported unjust enrichment claim must fail because it is entirely derivative of the SMLA argument. The Judge holds that because the SMLA contains specific definitions and thresholds that must be met before it requires a license, he agrees with the Defendant that the Plaintiffs' SAC (the Lees' now third complaint in the action) does not contain sufficient factual allegations to plausibly allege a SMLA claim against the Defendant. Given this ruling, the Judge need not decide the second challenge to the SMLA count raised by the Defendant. And he declines to do so because it is an issue of first impression of whether Michigan's SMLA applies to HELOCs. The Judge grants judgment on the pleadings to the Defendant as to the SMLA Count, and the derivative Unjust Enrichment Count. Next, the Defendant asserts that the Plaintiffs' TILA count (Count III), fails for a number of reasons. It argues that it cannot be held liable under TILA as a matter of law, as either a creditor, servicer, or assignee. In its opening brief, the Defendant acknowledged that the only exception to Section 1641(e)'s limitation on assignee liability is Section 1641(g). Thus, it does not dispute that Section 1641(g) therefore requires an assignee "to notify the borrower in writing" of the assignment of a mortgage loan from the creditor to the assignee. And this appears to the be sole TILA claim that the Plaintiffs seek to pursue. In its reply brief, the Defendant states that this sole potentially viable TILA claim under 1641(g) is "subject to a strict one-year statute of limitations," and notes that it will raise a timeliness challenge at the summary-judgment phase of the case. Accordingly, as to Count III, the sole claim remaining in the action is the claim under Section 1641(g). In Count IV, the Plaintiffs assert a claim against the Defendant for violation of RESPA for its failure to adequately respond to their requests for information. The Defendant's motion contends that the Plaintiffs' RESPA count should be dismissed because the Lees have not sufficiently alleged: 1) that they sent any QWRs to Defendant; or 2) that Defendant's responses were deficient. Judge Cox (i) agrees that the Lees have failed to include sufficient facts to plausibly allege that they sent Defendant a written correspondence that could constitute a QWR, thereby triggering a duty to respond under RESPA; and (ii) finds that the Plaintiffs have not pleaded the facts necessary to plausibly suggest that the Defendant failed to adequately respond to their requests for information. Accordingly, the Defendant is entitled to judgment in its favor as to Count IV. For the reasons he stated, Judge Cox granted in part and denied in part the Defendant's Motion for Judgment on the Pleadings. He granted the motion to the extent that he ruled that the Defendant is entitled to judgment on the pleadings with respect to the SMLA claims asserted in Count I, the derivative unjust enrichment claims asserted in Count II, and the RESPA claims asserted in Count IV. With respect to the Plaintiffs' TILA claims asserted in Count III, the Judge ruled that the sole claim remaining is the Plaintiffs' claim under Section 1641(g) that the Defendant failed to notify the borrowers in writing of the assignment of a mortgage loan from the creditor to the assignee. Given these rulings, the Judge denied the Plaintiffs' motion seeking partial summary judgment as to their SMLA claim. A full-text copy of the Court's Feb. 16, 2021 Opinion & Order is available at https://tinyurl.com/4v8lhwa8 from Leagle.com. CLEANSPARK INC: Klein Law Reminds of March 22 Deadline ------------------------------------------------------ The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of Cleanspark, Inc. There is no cost to participate in the suit. If you suffered a loss, you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. Cleanspark, Inc. (NASDAQ:CLSK) Class Period: December 31, 2020 - January 14, 2021 Lead Plaintiff Deadline: March 22, 2021 Throughout the class period, Cleanspark, Inc. allegedly made materially false and/or misleading statements and/or failed to disclose that: (1) that the Company had overstated its customer and contract figures; (2) that several of the Company's recent acquisitions involved undisclosed related party transactions; and (3) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. Learn about your recoverable losses in CLSK: http://www.kleinstocklaw.com/pslra-1/cleanspark-inc-loss-submission-form?id=13006&from=1 Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. If you suffered a loss during the class period and wish to obtain additional information, please contact J. Klein, Esq. by telephone at 212-616-4899 or visit the webpages provided. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] CLOVER HEALTH: Klein Law Reminds of April 6 Deadline ---------------------------------------------------- The Klein Law Firm announces that a class action complaint have been filed on behalf of shareholders of Clover Health Investments, Corp. There is no cost to participate in the suit. If you suffered a loss, you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. Clover Health Investments, Corp. (NASDAQ:CLOV) Class Period: October 6, 2020 - February 3, 2021 Lead Plaintiff Deadline: April 6, 2021 During the class period, Clover Health Investments, Corp. allegedly made materially false and/or misleading statements and/or failed to disclose that: (i) Clover was the recipient of a Civil Investigative Demand from the DOJ; (ii) much of Clover's sales are driven by a major related party deal that Clover not only failed to disclose but took active steps to conceal; (iii) Clover's subsidiary Seek Insurance failed to disclose its relationship with Clover and misled consumers as to its purported independence; (iv) Clover's software was in fact rudimentary; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. Learn about your recoverable losses in CLOV: http://www.kleinstocklaw.com/pslra-1/clover-health-investments-corp-loss-submission-form?id=13006&from=1 Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. If you suffered a loss during the class period and wish to obtain additional information, please contact J. Klein, Esq. by telephone at 212-616-4899 or visit the webpages provided. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] CLOVER HEALTH: Proxy Statement Lacks Business Info, Kaul Alleges ---------------------------------------------------------------- BRINAL KAUL, Individually and on behalf of all others similarly situated v. CLOVER HEALTH INVESTMENTS, CORP. f/k/a SOCIAL CAPITAL HEDOSOPHIA HOLDINGS CORP. III, VIVEK GARIPALLI, JOSEPH WAGNER, CHAMATH PALIHAPITIYA, STEVEN TRIEU, IAN OSBORNE, JACQUELINE D. RESES, and JAMES RYANS, Case No. 3:21-cv-00101 (M.D. Tenn., Feb. 5, 2021) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded Clover securities between October 6, 2020 and February 4, 2021, inclusive (the Class Period), seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934 and/or purchased or otherwise acquired Clover securities pursuant or traceable to the Company's registration statement and prospectus issued in connection with the December 2020 Merger. The Defendant Clover purports to provide health insurance services. Clover is incorporated in Delaware with headquarters at 725 Cool Springs Boulevard, Suite 320, Franklin, Tennessee. Clover was taken public through a reverse merger with Social Capital Hedosophia Holdings Corp. III (IPOC), a Special Purpose Acquisition Company (the Business Combination). Prior to the Business Combination, IPOC traded on the New York Stock Exchange (NYSE) under the ticker IPOC. On October 6, 2020, Clover issued a press release announcing its intention to become a public company through a merger with IPOC. On December 11, 2020, the Company filed a proxy statement/prospectus for the purpose of soliciting approval of the merger at a meeting to be held on January 6, 2021. The proxy statement/prospectus made substantially similar statements as the Registration Statement. Allegedly, the statements contained in the proxy statement were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose tha Clover's was under active investigation by the Department of Justice for at least 12 issues ranging from kickbacks to marketing practices to undisclosed third-party deals. On January 8, 2021, Clover's common shares began trading on the NASDAQ under the ticker symbol "CLOV," closing at $15.90 per share, and on January 11, Clover's redeemable warrants began trading on the NASDAQ under the ticker symbol "CLOVW," closing at $3.36 per warrant. On February 5, 2021, before the market opened, the Company filed a Form 8-K disclosing that the SEC was conducting an "investigation and requesting document and data preservation for the period from January 1, 2020, to the present, relating to certain matters that are referenced in the [Hindenburg Research report]." On this news, Clover shares (CLOV) fell $0.53 per share, or 4.3% during intraday trading on February 5, 2021, and Clover warrants (CLOVW) fell $0.28 per warrant, or 8.2% during intraday trading on February 5, 2021, further damaging investors, the suit says. As a result of Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. The Plaintiff purchased or otherwise acquired Clover securities during the Class Period and/or purchased or otherwise acquired Clover securities pursuant or traceable to the Company’s registration statement and prospectus issued in connection with the December 2020 Merger and was economically damaged thereby.[BN] The Plaintiff is represented by: Paul Kent Bramlett, Esq. Robert Preston Bramlett, Esq. BRAMLETT LAW OFFICES P. O. Box 150734 Nashville, TN 37215-0734 Telephone: (615) 248-2828 Facsimile: (866) 816-4116 E-mail: PKNASHLAW@aol.com Robert@BramlettLawOffices.com - and - Laurence Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: lrosen@rosenlegal.com pkim@rosenlegal.com COMPASS INC: Maffei Suit Removed from Cal. State Ct. to C.D. Cal. ----------------------------------------------------------------- The class action lawsuit captioned as JOHN GREGORY MAFFEI, individually, and on behalf of others similarly situated v. COMPASS, INC., a Delaware corporation; COMPASS CALIFORNIA, INC., dba Compass, a Corporation, and DOES 1 through 10, inclusive, Case No. 20STCV49779 (Filed Dec. 31, 2020), was removed from the the Superior Court of California in and for the County of Los Angeles to the United States District Court for the Central District of California on Feb. 5, 2021. The California Central District Court Clerk assigned Case No. 2:21-cv-01072-JFW-MAA to the proceeding. The Plaintiff alleges that during his employment, the Defendants engaged in various practices that violate California law, including alleged breach of his operative Independent Contractor Agreement; fraudulent misrepresentations, which purportedly induced the him to enter into a contractual relationship with the Defendants; and failure to reimburse him for necessary expenses incurred in discharge of his duties, in violation of California Labor Code. The Plaintiff seeks compensatory and general damages, punitive and exemplary damages, prejudgment interest, declaratory relief, injunctive relief, restitutionary relief, costs of suit and reasonable attorneys' fees. Compass is an American licensed real estate broker that utilizes the Internet as a marketing medium with the use of real estate technology.[BN] The Defendants are represented by: Daniel F. Pyne, Esq. Elaisha Nandrajog, Esq. HOPKINS & CARLEY The Letitia Building 70 S First Street San Jose, CA 95113-2406 E-mail: dpyne@hopkinscarley.com enandrajog@hopkinscarley.com CONTINENTAL CASUALTY: Court Grants Bid to Dismiss Cafe Plaza Suit ----------------------------------------------------------------- In the case, CAFE PLAZA DE MESILLA INC., Plaintiff v. CONTINENTAL CASUALTY CO., Defendant, Case No. 2:20-cv-354-KWR-KRS (D.N.M.), Judge Kea W. Riggs of the U.S. District Court for the District of New Mexico granted Defendant Continental's Motion to Dismiss for Failure to State a Claim, filed on June 15, 2020. The Plaintiff is a New Mexico company operating as a restaurant and espresso bar in Mesilla, New Mexico. It brings the putative class action individually and on behalf of other members of a "nationwide" class against the Defendant, an Illinois insurance company that writes, sells, and issues insurance policies, including in New Mexico. The Complaint alleges that the Defendant issued an "all risk" insurance coverage to the Plaintiff with a policy period running from Feb. 11, 2020 to Feb. 11, 2021. The Plaintiff has not included a copy of the policy with the Amended Complaint. The Defendant attaches a copy to its motion to dismiss and asks the Court to take judicial notice of the Policy and other documents relevant to the motion. Because the Plaintiff has not opposed the request and the Court deems judicial notice of the documents appropriate in the instance, the Defendant's request is granted. The presence of COVID-19, a novel strain of coronavirus, has resulted in nationwide closure and suspension of businesses in efforts to slow the pandemic's spread. On March 11, 2020, New Mexico Governor Michelle Lujan Grisham issued an executive order in response to the increasing infection rates in the state, titled the "Order Declaring a State of Public Health Emergency and Invoking the Powers Provided by All the Hazard Emergency Management Act and the Emergency Licensing Act," declaring a public emergency. In the ensuing months, the Governor and Department of Health Cabinet Secretary Kathyleen Kunkel issued additional orders extending the original order and directing certain public safety action, including limiting public gatherings. The Governor and Kunkel subsequently issued further orders extending the requirements through April 30, 2020. On March 19, 2020, the Plaintiff posted an announcement on its official website advising customers that as of that day would be offering take-out services only and would be open from 9:00 a.m. to 1:30 p.m. On March 24th, the Plaintiff posted another message on Facebook and its website, notifying clientele that "In an effort to keep our valued clientele, staff and our families safe during the current COVID19 outbreak and to do our part in contributing to flatten the curve, we have decided to close the restaurant until further notice." The cafe appears to have remained closed until May 26th, 2020, when the restaurant advertised that it would be reopening for outdoor patio dining, with temporary hours running from 8:00 a.m. to 1:00 p.m. Thursday to Monday. On May 28th, the Plaintiff stated on Facebook that it would also be implementing curbside pickup services. On March 18, 2020, the Plaintiff filed an insurance claim for, among other things, lost business income following the onset of COVID-19 and the ensuing executive orders issued mandating suspension, closure, and limited operation of businesses. In a denial of claim letter dated April 14, 2020, the Defendant noted that the Plaintiff stated to it in a telephonic conversation that the Plaintiff closed its operations on March 19, 2020 in response to the Governor's orders but that none of its employees had reported sickness at that time. The Defendant concluded that the Plaintiff had not demonstrated that the suspension of activity was due to "direct physical loss of or damage to the property" as required by the Policy to trigger coverage. The Complaint contends that the denial of coverage was improper in light of four provisions in the Policy, specifically the "Business Income, Extra Expense, Civil Authority, and Sue and Labor provisions." The Policy does not contain any specific exclusions as to "viruses or communicable diseases," but does include exclusions for losses caused by "contamination by other than 'pollutants.'" The Plaintiff advances eight counts on its behalf and on behalf of a putative nationwide class; four counts for Breach of Contract (Counts I-IV), and four counts seeking declaratory relief (Counts V-VIII) that it incurred covered losses pursuant to the four referenced provisions in connection with New Mexico's closure orders arising from the COVID-19 pandemic. First, the Plaintiff has stated that it "does not intend to pursue its 'Sue and Labor' provision claim and will voluntarily dismiss this claim in cooperation with the Defendant." Therefore, Judge Riggs dismisses Counts IV and VIII, which relate to the Plaintiff's "Sue and Labor" claims. Second, the Plaintiff first alleges that there is coverage under the Business Income and Extra Expense provisions of the Policy. The Defendant moves to dismiss on the grounds that the Complaint does not allege any "direct physical loss of or damage to property" as is required for coverage under the Business Income, Civil Authority, and Extra Expense provision. Based on a plain language review of the policy at hand, the parties' briefs, and recent, comparable caselaw, although she sympathizes with the Plaintiff and the other similarly situated businesses, the Judge concludes that the motion to dismiss must be granted. Third, the parties dispute whether the Plaintiff's allegations constitute a "direct physical loss" of the property as required by the Business Income and Expense provisions. The Plaintiff finds fault with the Policy's failure to "define the phrase 'direct physical loss or damage to' property" and sets forth arguments interpreting the placement of the word "or" in "direct physical loss or damage to" and the Defendant's purportedly deliberate decision "not to include" the words "tangible" or "structural" as modifiers of "loss" and "damage. Upon a review of the plain, contemporary, and ordinary meaning of the words, Judge Riggs disagrees with the Plaintiff. Among other things, she finds that (i) the Plaintiff cites non-binding and factually distinct caselaw for the proposition that the loss of use of portions of the restaurant for their intended use in the face of these closure orders and the coronavirus qualifies as a "physical loss"; (ii) the Plaintiff has identified a recent case with substantially similar facts in which the Court found that the complaint at least pled sufficient facts to defeat the defendant's motion to dismiss as premature; and (iii) the Plaintiff's claim is based purely on economic loss as a result of the closure orders, which did not actually direct full closure of the property and is outside the parameters of the coverage at hand. Therefore, the Judge concludes that the Plaintiff has failed to meet its burden to show coverage is established under the provision of the Policy. Fourth, for similar reasons, the Judge determines that the facts alleged in the Complaint do not support recovery under the Civil Authority provisions. The Defendant posits that the Plaintiff is not entitled to this coverage because the closure orders were issued to minimize the spread of COVID-19 and not due to any direct physical loss or damage sustained at any adjacent property. The Judge agrees. Simply put, the Plaintiff has not plausibly alleged that the closure orders were issued for a purpose other than to prevent the spread of COVID-19, or that the orders caused a direct physical loss to neighboring properties, just as it has not plausibly pled direct physical damage to its own premises. Fifth, the Judge agrees with the Defendant that the Plaintiff was not prevented from accessing its premises within the plain meaning of the Policy's terms. None of the orders effectively prevented the Plaintiff from access to its business; the closure orders expressly exempted restaurants and food vendors from physical closure and permitted take-out and delivery services. The Plaintiff's circular argument regarding physical/non-physical access by employees is unclear, unconvincing, and misses the point. Consequently, it has failed to allege that access to its premises was prohibited by government order and that it is entitled to civil authority coverage. Sixth, having determined that the Plaintiff has not met its initial burden to demonstrate that it suffered a physical loss of or damage to its property covered by the Policy, the Juduge need not address the Plaintiff's additional arguments that the absence of a virus/pandemic exclusion is relevant. Finally, the Defendant asserts that the Plaintiff's counts seeking declaratory relief are duplicative of the breach of contract claims and should be dismissed. The Plaintiff effectively acknowledges this to be the case but suggests that the Court need not dismiss the claims at this time. The Judge opines that the Plaintiff is correct that the Court need not parse through these claims, but likewise it need not retain duplicative ones. Having ruled against the Plaintiff on its breach of contract claims, necessarily resolving all issues identified in the Plaintiff's declaratory judgment claims, the Judge also dismisses those claims (Counts V-VII) as duplicative. For the reasons she stated, Judge Riggs granted the Defendant's motion to dismiss. A separate judgment will be entered. A full-text copy of the Court's Feb. 16, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/ygfbuwfp from Leagle.com. DOORDASH INC: Saunders Suit Moved to San Francisco Superior Court ----------------------------------------------------------------- Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California granted the Plaintiff's motion to remand the case, KEVIN SAUNDERS, Plaintiff v. DOORDASH, INC., Defendant, Case No. 20-cv-05825-DMR (N.D. Cal.), to the Superior Court of the State of California for the County of San Francisco. The case is a putative class action alleging state law wage and hour claims on behalf of drivers who use the Defendant's platform to make deliveries for its customers. The case was initially filed in San Francisco County Superior Court. DoorDash customers order food from restaurants through the DoorDash app or website. DoorDash drivers pick up the food from the restaurant and deliver it to customers. Saunders, a DoorDash driver, alleges that DoorDash misclassifies him and other drivers as independent contractors rather than employees to avoid paying employee benefits and complying with other provisions of California employment law. The wage and hour claims in the case are derivative of the misclassification issue: if Saunders and the other drivers are employees rather than independent contractors, then they are entitled to receive at least minimum wage for all hours worked, in addition to other employee protections. In the original complaint, Saunders defined the putative class as "each individual whom DoorDash has employed as a Driver in California at any time since the date four years prior to the filing of the instant case and whom DoorDash has classified as an independent contractor." On Aug. 18, 2020, DoorDash removed the case, asserting that federal jurisdiction exists under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). After the case was removed, Saunders filed the first amended complaint on Sept. 14, 2020, which defines two subclasses. The first subclass is defined as "each individual DoorDash employed as a Driver in California at any time beginning on March 1, 2020, and whom DoorDash classified as an independent contractor during that time." The second subclass consists of DoorDash drivers who were terminated because they requested to opt out of DoorDash's arbitration agreement, which is allegedly permitted under the terms of their written agreement with DoorDash. The class period for the second subclass is four years prior to the filing of the case. On behalf of himself and the class, Saunders brings claims for (1) failure to pay overtime; (2) failure to pay minimum wage; (3) failure to pay wages upon termination; (4) failure to provide accurate, itemized paystubs; (5) failure to reimburse business expenses; (6) breach of contract; (7) wrongful termination in violation of public policy; and (8) violations of California's Unfair Competition Law ("UCL"), Business & Professions Code Section 17200, et seq. The Plaintiff now moves for remand. The Court held a hearing on Oct. 22, 2020. Following the hearing, the Court ordered the parties to engage in jurisdictional discovery. On Jan. 5, 2021, the parties filed a joint letter explaining their positions on the information obtained from discovery. Mr. Saunders moves to remand the case on the basis that (1) DoorDash has not established the amount in controversy requirement for CAFA jurisdiction; (2) the case qualifies for the home state exception to CAFA jurisdiction; and (3) this case should be remanded under CAFA's discretionary jurisdiction provision. Judge Ryu explains that under CAFA, 28 U.S.C. Section 1332(d), federal courts have jurisdiction over class actions in which the amount in controversy exceeds $5 million and diversity of citizenship exists between at least one plaintiff and one defendant. There are a number of exceptions to CAFA. Relevant in the case, CAFA's "home state controversy" exception requires a district court to decline to exercise jurisdiction "over a class in which two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed." Citing Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013), in the Ninth Circuit, once the removing party establishes federal jurisdiction under CAFA, the objecting party bears the burden to prove by a preponderance of the evidence that an exception applies. To meet this burden, the "moving party must provide `some facts in evidence from which the district court may make findings regarding class members' citizenship." A complete lack of evidence does not satisfy this standard." However, the burden of proof for the party seeking remand "should not be exceptionally difficult to bear." Judge Ryu concludes that Mondragon does not permit "guesswork," but "district courts are permitted to make reasonable inferences from facts in evidence." Given the available evidence and given that Saunders' burden to prove the applicability of the home state exception "should not be exceptionally difficult to bear," she finds that Saunders has shown by a preponderance of the evidence that at least two-thirds of the putative class members are California citizens. It is undisputed that the other requirements of the home state exception are met since DoorDash, the only Defendant, is a citizen of California. Accordingly, Judge Ryu finds that the home state exception applies in the case and remand is appropriate. She granted Saunders' motion. The Clerk is directed to remand the matter to the San Francisco County Superior Court and close the case. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/4lnbexfk from Leagle.com. DOSE OF COLORS: Jaquez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Dose of Colors, Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Dose of Colors, Inc., Case No. 1:21-cv-01451 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dose of Colors -- https://doseofcolors.com/ -- creates cruelty-free cosmetics that are user friendly, functional and always on trend.[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 FALONI LAW: Lugo Files FDCPA Suit in D. New Jersey -------------------------------------------------- A class action lawsuit has been filed against FALONI LAW GROUP, LLC, et al. The case is styled as Joseph Lugo, individually and on behalf of all others similarly situated v. FALONI LAW GROUP, LLC, FIRST PORTFOLIO VENTURES I, LLC, Case No. 2:21-cv-02921 (D.N.J., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Faloni Law Group, LLC -- https://falonilaw.com/ -- helps families with legal planning in New York and New Jersey.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com FIRST CREDIT: Faces Jones FDCPA Suit in New Jersey Federal Court ---------------------------------------------------------------- A class action lawsuit has been filed against First Credit Incorporated. The case is captioned as JONES v. FIRST CREDIT INCORPORATED, et al., Case No. 1:21-cv-01990-NLH-KMW (D.N.J., Feb. 5, 2021). The suit alleges violation of the Fair Debt Collection Practices Act involving consumer credit. The case is assigned to the Hon. Judge Noel L. Hillman. The Defendant is debt collection agency.[BN] The Plaintiff is represented by: Ben A. Kaplan, Esq. 280 Prospect Ave. 6G Hackensack, NJ 07601 Telephone: (201) 803-6611 Facsimile: (877) 827-3394 E-mail: ben@chulskykaplanlaw.com FIRSTCREDIT INC: Reynolds Files FDCPA Suit in N.D. Ohio ------------------------------------------------------- A class action lawsuit has been filed against FirstCredit Inc., et al. The case is styled as Dannella Reynolds, individually and on behalf of all others similarly situated v. FirstCredit Inc. and John Does 1-25, Case No. 5:21-cv-00395 (N.D. Ohio, Feb. 18, 2021). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. FirstCredit, Inc. -- http://www.revcare.com/-- is a collection agency located in Fairlawn, Ohio.[BN] The Plaintiff is represented by: Amichai E. Zukowsky, Esq. 23811 Chagrin Blvd., Ste. 160 Beachwood, OH 44122 Phone: (216) 800-5529 Fax: (216) 514-4987 Email: ami@zukowskylaw.com FISHER-PRICE: Poppe Baby Sleeper Suit Seeks to Certify Classes -------------------------------------------------------------- In the class action lawsuit captioned as Poppe v. Fisher Price, Inc. et al., Case No. 1:19-cv-00870 (W.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. certifying the statewide classes, and nationwide classes as follows: "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased any model of Fisher-Price Rock 'n Play Sleeper in [each state set forth herein] from October 1, 2009 until the date of notice. These states are as follows: the "New York Class," the "Arizona Class," the "Arkansas Class," the "California Class," the "Colorado Class," the "Florida Class," the "Iowa Class," the "New Jersey Class," the "Pennsylvania Class," the "Tennessee Class," the "Texas Class," and the "Washington Class;" "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased or owned any model of Fisher-Price Rock 'n Play Sleeper in the United States from October 1, 2009 until the date of notice (the "Nationwide Class"); and "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased any model of Fisher-Price Rock 'n Play Sleeper in the United States from October 1, 2009 until the date of notice (the "Nationwide Purchaser Class");" -- The Plaintiffs Alfaro, Mulvey, Barton, Nowlin, Flores, Kaden, Huey, Hanson, Kimmel, Nadel, Black, Shaffer, Drover, Pasternacki, and Willis move to certify the Statewide Classes under Rule 23(b)(3) for the various state law consumer protection, negligence, implied warranty, and unjust enrichment claims; and -- All Plaintiffs move to certify the Nationwide Class under Rule 23(b)(2). Should the Court find any class claim fails to satisfy Rule 23(b), the Plaintiffs Alfaro, Mulvey, Barton, Nowlin, Flores, Kaden, Huey, Hanson, Kimmel, Nadel, Black, Shaffer, Drover, Pasternacki, and Willis also move to certify a Nationwide Purchaser Class under Rule 23(c)(4) on the issue of whether Defendants misled consumers by marketing the Fisher- Price Rock 'n Play Sleeper as safe for infant sleep, including prolonged and overnight sleep, during the relevant period. 2. appointing the Proposed Class Representatives as Class Representatives as follows: Class Name Proposed Class Representative(s) New York Class Elizabeth Alfaro and Cassandra Mulvey Arizona Class Emily Barton Arkansas Class Melanie Nowlin California Class Karen Flores and Megan Kaden Colorado Class Daniel Pasternacki Florida Class Jena Huey Iowa Class Nancy Hanson New Jersey Class Joshua Nadel Pennsylvania Class Rebecca Drover Washington Class Katharine Shaffer Nationwide Class Elizabeth Alfaro, Cassandra Mulvey, Emily Barton, Melanie Nowlin, Karen Flores, Megan Kaden, Daniel Pasternacki, Jena Huey, Nancy Hanson, Joshua Nadel, Rebecca Rover, Josie Willis, Linda Black, Katherine Shaffer, Luke Cuddy, Megan Fieker, Kerry Madley, Jessie Poppe, Emily Simmonds, Samantha Jacoby, and Renee Wray Nationwide Purchaser Elizabeth Alfaro, Cassandra Class Mulvey, Emily Barton, Melanie Nowlin, Karen Flores, Megan Kaden, Daniel Pasternacki, Jena Huey, Nancy Hanson, Joshua Nadel, Rebecca Rover, Josie Willis, Linda Black, and Katherine Shaffer; and 3. appointing W. Daniel "Dee" Miles, III, Demet Basar, and Lydia Keaney Reynolds as Class Counsel. The Plaintiffs allege that the persistent and uniform marketing message portraying the Fisher-Price Rock 'n Play Sleeper as safe for infant sleep, including for overnight and prolonged sleep, was dangerously false, misleading, deceptive, and unfair. Moreover, there are more than 35 wrongful death actions pending against the Defendants, each with its own tragic story of the death of an infant. They continued to get reports of additional deaths and injuries (flat head and twisted neck syndromes) and they were repeatedly warned about the dangers posed by their product, the Plaintiffs add. The suit alleges violation of the Magnuson-Moss Warranty Act. Fisher-Price is an American company that produces educational toys for infants, toddlers, and children, headquartered in East Aurora, New York. Fisher-Price has been a subsidiary of Mattel since 1993. A copy of the Plaintiffs' motion to certify class dated Feb. 8, 2020 is available from PacerMonitor.com at https://bit.ly/3rUSCqU no extra charge.[CC] The Plaintiffs' Lead Counsel are: Demet Basar, Esq. W. Daniel "Dee" Miles, III, Esq. Lydia Keaney Reynolds, Esq. Leslie Pescia, Esq. James Eubank, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 218 Commerce Street Montgomery, Alabama 36104 Telephone: (334) 269-2343 Facsimile: (334) 954-7555 E-mail: Demet.Basar@BeasleyAllen.com Dee.Miles@BeasleyAllen.com Lydia.Reynolds@BeasleyAllen.com Leslie.Pescia@BeasleyAllen.com James.Eubank@BeasleyAllen.com The Plaintiffs' Liaison Counsel, are: Terrence M. Connors, Esq. Andrew M. Debbins, Esq. CONNORS LLP 1000 Liberty Building Buffalo, NY 14202 Telephone: (716) 852-5533 E-mail: tmc@connorsllp.com amd@connorsllp.com FISHER-PRICE: Willis Baby Sleeper Suit Seeks to Certify Classes --------------------------------------------------------------- In the class action lawsuit captioned as Willis v. Fisher-Price, Inc. et al., Case No. 3:19-cv-00670 (M.D. Tenn.), the Plaintiffs ask the Court to enter an order: 1. certifying the statewide classes, and nationwide classes as follows: "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased any model of Fisher-Price Rock 'n Play Sleeper in [each state set forth herein] from October 1, 2009 until the date of notice. These states are as follows: the "New York Class," the "Arizona Class," the "Arkansas Class," the "California Class," the "Colorado Class," the "Florida Class," the "Iowa Class," the "New Jersey Class," the "Pennsylvania Class," the "Tennessee Class," the "Texas Class," and the "Washington Class;" "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased or owned any model of Fisher-Price Rock 'n Play Sleeper in the United States from October 1, 2009 until the date of notice (the "Nationwide Class"); and "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased any model of Fisher-Price Rock 'n Play Sleeper in the United States from October 1, 2009 until the date of notice (the "Nationwide Purchaser Class");" -- The Plaintiffs Alfaro, Mulvey, Barton, Nowlin, Flores, Kaden, Huey, Hanson, Kimmel, Nadel, Black, Shaffer, Drover, Pasternacki, and Willis move to certify the Statewide Classes under Rule 23(b)(3) for the various state law consumer protection, negligence, implied warranty, and unjust enrichment claims; and -- All Plaintiffs move to certify the Nationwide Class under Rule 23(b)(2). Should the Court find any class claim fails to satisfy Rule 23(b), the Plaintiffs Alfaro, Mulvey, Barton, Nowlin, Flores, Kaden, Huey, Hanson, Kimmel, Nadel, Black, Shaffer, Drover, Pasternacki, and Willis also move to certify a Nationwide Purchaser Class under Rule 23(c)(4) on the issue of whether Defendants misled consumers by marketing the Fisher-Price Rock 'n Play Sleeper as safe for infant sleep, including prolonged and overnight sleep, during the relevant period. 2. appointing the Proposed Class Representatives as Class Representatives as follows: Class Name Proposed Class Representative(s) New York Class Elizabeth Alfaro and Cassandra Mulvey Arizona Class Emily Barton Arkansas Class Melanie Nowlin California Class Karen Flores and Megan Kaden Colorado Class Daniel Pasternacki Florida Class Jena Huey Iowa Class Nancy Hanson New Jersey Class Joshua Nadel Pennsylvania Class Rebecca Drover Washington Class Katharine Shaffer Nationwide Class Elizabeth Alfaro, Cassandra Mulvey, Emily Barton, Melanie Nowlin, Karen Flores, Megan Kaden, Daniel Pasternacki, Jena Huey, Nancy Hanson, Joshua Nadel, Rebecca Rover, Josie Willis, Linda Black, Katherine Shaffer, Luke Cuddy, Megan Fieker, Kerry Madley, Jessie Poppe, Emily Simmonds, Samantha Jacoby, and Renee Wray Nationwide Purchaser Elizabeth Alfaro, Cassandra Class Mulvey, Emily Barton, Melanie Nowlin, Karen Flores, Megan Kaden, Daniel Pasternacki, Jena Huey, Nancy Hanson, Joshua Nadel, Rebecca Rover, Josie Willis, Linda Black, and Katherine Shaffer; and 3. appointing W. Daniel "Dee" Miles, III, Demet Basar, and Lydia Keaney Reynolds as Class Counsel. The Plaintiffs allege that the persistent and uniform marketing message portraying the Fisher-Price Rock 'n Play Sleeper as safe for infant sleep, including for overnight and prolonged sleep, was dangerously false, misleading, deceptive and unfair. Moreover, there are more than 35 wrongful death actions pending against the Defendants, each with its own tragic story of the death of an infant. They continued to get reports of additional deaths and injuries (flat head and twisted neck syndromes) and they were repeatedly warned about the dangers posed by their product, the Plaintiffs add. The nature of suit states Torts -- Personal Property -- Other Fraud. Fisher-Price is an American company that produces educational toys for infants, toddlers, and children, headquartered in East Aurora, New York. Fisher-Price has been a subsidiary of Mattel since 1993. A copy of the Plaintiffs' motion to certify class dated Feb. 8, 2020 is available from PacerMonitor.com at https://bit.ly/2NAAeVn at no extra charge.[CC] The Plaintiffs' Lead Counsel are: Demet Basar, Esq. W. Daniel "Dee" Miles, III, Esq. Lydia Keaney Reynolds, Esq. Leslie Pescia, Esq. James Eubank, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 218 Commerce Street Montgomery, Alabama 36104 Telephone: (334) 269-2343 Facsimile: (334) 954-7555 E-mail: Demet.Basar@BeasleyAllen.com Dee.Miles@BeasleyAllen.com Lydia.Reynolds@BeasleyAllen.com Leslie.Pescia@BeasleyAllen.com James.Eubank@BeasleyAllen.com The Plaintiffs' Liaison Counsel, are: Terrence M. Connors, Esq. Andrew M. Debbins, Esq. CONNORS LLP 1000 Liberty Building Buffalo, NY 14202 Telephone: (716) 852-5533 E-mail: tmc@connorsllp.com amd@connorsllp.com FISHER-PRICE: Wray Baby Sleeper Suit Seeks to Certify Classes ------------------------------------------------------------- In the class action lawsuit captioned as Wray v. Fisher Price, Inc. et al., Case No. 1:19-cv-01067 (W.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. certifying the statewide classes, and nationwide classes as follows: "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased any model of Fisher-Price Rock 'n Play Sleeper in [each state set forth herein] from October 1, 2009 until the date of notice. These states are as follows: the "New York Class," the "Arizona Class," the "Arkansas Class," the "California Class," the "Colorado Class," the "Florida Class," the "Iowa Class," the "New Jersey Class," the "Pennsylvania Class," the "Tennessee Class," the "Texas Class," and the "Washington Class;" "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased or owned any model of Fisher-Price Rock 'n Play Sleeper in the United States from October 1, 2009 until the date of notice (the "Nationwide Class"); and "All persons, other than Mattel, Inc. and Fisher-Price, Inc., and their employees, who purchased any model of Fisher-Price Rock 'n Play Sleeper in the United States from October 1, 2009 until the date of notice (the "Nationwide Purchaser Class");" -- The Plaintiffs Alfaro, Mulvey, Barton, Nowlin, Flores, Kaden, Huey, Hanson, Kimmel, Nadel, Black, Shaffer, Drover, Pasternacki, and Willis move to certify the Statewide Classes under Rule 23(b)(3) for the various state law consumer protection, negligence, implied warranty, and unjust enrichment claims; and -- All Plaintiffs move to certify the Nationwide Class under Rule 23(b)(2). Should the Court find any class claim fails to satisfy Rule 23(b), the Plaintiffs Alfaro, Mulvey, Barton, Nowlin, Flores, Kaden, Huey, Hanson, Kimmel, Nadel, Black, Shaffer, Drover, Pasternacki, and Willis also move to certify a Nationwide Purchaser Class under Rule 23(c)(4) on the issue of whether Defendants misled consumers by marketing the Fisher-Price Rock 'n Play Sleeper as safe for infant sleep, including prolonged and overnight sleep, during the relevant period. 2. appointing the Proposed Class Representatives as Class Representatives as follows: Class Name Proposed Class Representative(s) New York Class Elizabeth Alfaro and Cassandra Mulvey Arizona Class Emily Barton Arkansas Class Melanie Nowlin California Class Karen Flores and Megan Kaden Colorado Class Daniel Pasternacki Florida Class Jena Huey Iowa Class Nancy Hanson New Jersey Class Joshua Nadel Pennsylvania Class Rebecca Drover Washington Class Katharine Shaffer Nationwide Class Elizabeth Alfaro, Cassandra Mulvey, Emily Barton, Melanie Nowlin, Karen Flores, Megan Kaden, Daniel Pasternacki, Jena Huey, Nancy Hanson, Joshua Nadel, Rebecca Rover, Josie Willis, Linda Black, Katherine Shaffer, Luke Cuddy, Megan Fieker, Kerry Madley, Jessie Poppe, Emily Simmonds, Samantha Jacoby, and Renee Wray Nationwide Purchaser Elizabeth Alfaro, Cassandra Class Mulvey, Emily Barton, Melanie Nowlin, Karen Flores, Megan Kaden, Daniel Pasternacki, Jena Huey, Nancy Hanson, Joshua Nadel, Rebecca Rover, Josie Willis, Linda Black, and Katherine Shaffer; and 3. appointing W. Daniel "Dee" Miles, III, Demet Basar, and Lydia Keaney Reynolds as Class Counsel. The Plaintiffs allege that the persistent and uniform marketing message portraying the Fisher-Price Rock 'n Play Sleeper as safe for infant sleep, including for overnight and prolonged sleep, was dangerously false, misleading, deceptive, and unfair. Moreover, there are more than 35 wrongful death actions pending against the Defendants, each with its own tragic story of the death of an infant. They continued to get reports of additional deaths and injuries (flat head and twisted neck syndromes) and they were repeatedly warned about the dangers posed by their product, the Plaintiffs add. The suit alleges violation of the Magnuson-Moss Warranty Act. Fisher-Price is an American company that produces educational toys for infants, toddlers, and children, headquartered in East Aurora, New York. Fisher-Price has been a subsidiary of Mattel since 1993. A copy of the Plaintiffs' motion to certify class dated Feb. 8, 2020 is available from PacerMonitor.com at https://bit.ly/3dkQ6qc no extra charge.[CC] The Plaintiffs' Lead Counsel are: Demet Basar, Esq. W. Daniel "Dee" Miles, III, Esq. Lydia Keaney Reynolds, Esq. Leslie Pescia, Esq. James Eubank, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 218 Commerce Street Montgomery, Alabama 36104 Telephone: (334) 269-2343 Facsimile: (334) 954-7555 E-mail: Demet.Basar@BeasleyAllen.com Dee.Miles@BeasleyAllen.com Lydia.Reynolds@BeasleyAllen.com Leslie.Pescia@BeasleyAllen.com James.Eubank@BeasleyAllen.com The Plaintiffs' Liaison Counsel, are: Terrence M. Connors, Esq. Andrew M. Debbins, Esq. CONNORS LLP 1000 Liberty Building Buffalo, NY 14202 Telephone: (716) 852-5533 E-mail: tmc@connorsllp.com amd@connorsllp.com FLORIDA: Unemployment Compensation System Class Action Pending -------------------------------------------------------------- Jim Saunders, writing for Florida News Service, reports that nearly a year after the COVID-19 pandemic began tossing people out of work, a circuit judge is again poised to consider a potential class-action lawsuit stemming from major problems in Florida's unemployment compensation system. Leon County Circuit Judge John Cooper is scheduled to hear arguments on Feb. 16 about whether he should dismiss the lawsuit filed against the Florida Department of Economic Opportunity and Deloitte Consulting, LLP, a contractor that helped put the state's CONNECT online unemployment system in place in 2013. Cooper in September dismissed an earlier version of the lawsuit, but gave the plaintiffs an opportunity to file a revised complaint. The case seeks damages and raises several arguments, including that the department and Deloitte were negligent and breached a fiduciary duty. "DEO (the department) breached its fiduciary duty to the hundreds of thousands of Floridians who now await their life-sustaining funds and encounter roadblock after roadblock to payment," said the revised lawsuit, filed Nov. 16 by plaintiffs' attorneys Gautier Kitchen and Marie Mattox. "The damages flowing from defendants' breach multiply daily as people lose homes, cars, savings and dignity." But in motions to dismiss the case, attorneys for the department and Deloitte said the plaintiffs are repeating arguments that were in the version of the case rejected by Cooper in September. They contend Cooper should also dismiss the latest version for a series of reasons: the constitutional separation of powers between courts and the executive branch of government; sovereign immunity, which helps shield government agencies from lawsuits; and a lack of a legal basis for showing a fiduciary duty. "Simply put, the (version of the case filed in November) is substantively indistinguishable from the one the court has already found to be deficient and provides no basis for the court to revisit its prior conclusions," Deloitte attorneys wrote in a Dec. 7 motion to dismiss the case. The CONNECT system was overwhelmed after the pandemic slammed into the state in March and forced businesses to shut down or dramatically scale back operations. The state scrambled to shore up the system, but many people who lost jobs remained frustrated as they tried to get benefits -- with Gov. Ron DeSantis even describing the system as a "jalopy." The plaintiffs filed the potential class-action lawsuit in April. Cooper in May rejected a preliminary injunction that plaintiffs sought to force the Department of Economic Opportunity to "fix" the system. Cooper's Sept. 30 order dismissing the case did not give detailed reasons, saying only that he "grants the motion to dismiss on the grounds argued by the defendants," while allowing plaintiffs to subsequently file the revised version. During a June hearing, Department of Economic Opportunity attorney Daniel Nordby argued, in part, that the lawsuit should be dismissed because of the constitutional separation of powers. He said decisions by the department "involve a great deal of discretion" that cannot be second-guessed by judges under the separation of powers. As of a Feb. 11 count, the unemployment system had processed more than 5.16 million claims since March 15, with 2.36 million found to be eligible, according to the Department of Economic Opportunity's website. The system had paid about $22.2 billion in benefits, with the most of that money flowing through the state from the federal government. [GN] GARDEN FRESH: Lopez-Aguilar Sues Over Collection of Biometrics -------------------------------------------------------------- CARLOS LOPEZ-AGUILAR, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. GARDEN FRESH FRUIT MARKET, INC., Case No. 21-L-00000100 (Ill. Cir., Lake Cty., Feb. 4, 2021) alleges that the Defendant has violated and continues to violate Biometric Information Privacy Act (BIPA) because it did not and continues not to properly inform the Plaintiff and others similarly situated in writing of the specific purpose and length of time for which their fingerprint(s) were being collected, stored, disseminated and used, as required by BIPA. According to the complaint, while most establishments and employers use conventional methods for tracking time worked (such as ID badge swipes or punch clocks), the Defendant, upon information and belief, mandated and required that employees have finger(s) scanned by a biometric timekeeping device. Unlike ID badges or time cards -- which can be changed or replaced if stolen or compromised -- biometrics are unique, permanent biometric identifiers associated with each employee. This exposes the Defendant's employees, including Plaintiff, to serious and irreversible privacy risks, the suit says. Recognizing the need to protect its citizens from situations like these, Illinois enacted the BIPA, specifically to regulate companies that collect and store Illinois citizens' biometrics. The Plaintiff contends that as an employee/worker of the Defendant, he was required to "clock in" and "clock out" of work shifts by having his fingerprint scanned by a biometric timeclock which identified each employee, including him. He adds that notwithstanding the clear and unequivocal requirements of the law, the Defendant disregards employees' statutorily protected privacy rights and unlawfully collects, stores, and uses employees' biometric data in violation of BIPA. The Plaintiff worked for Defendant at in Illinois. While doing so, Plaintiff was a citizen of Illinois. Garden Fresh offers grocery products. The Company provides fruit, meat, vegetable, salad, beverage, and dairy products. Garden Fresh Fruit Market operates in the State of Illinois.[BN] The Plaintiff is represented by: Brandon M. Wise, Esq. Paul A. Lesko, Esq. PEIFFER WOLF CARR KANE & CONWAY, APLC 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Telephone: (314) 833-4825 E-mail: bwise@peifferwolf.com plesko@peitterwolt.com GARDENS ALIVE: Williams Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Gardens Alive, Inc., et al. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Gardens Alive, Inc., LM Farms, LLC, Case No. 1:21-cv-01487 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Gardens Alive!, Inc. -- https://www.gardensalive.com/ -- is a privately owned multi-title catalog company founded in 1984. It sells garden and lawn supplies, specializing in organic products under its namesake catalog.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal GENERAL MOTORS: Pilgrim Allowed to File First Amended Complaint --------------------------------------------------------------- In the case, ESTATE OF WILLIAM D. PILGRIM, et al., Plaintiffs v. GENERAL MOTORS LLC, et al., Defendants, Case No. 2:20-CV-10562-TGB-DRG (E.D. Mich.), Judge Terrence G. Berg of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Plaintiff's motion for leave to file a First Amended Complaint. The Plaintiffs seek to represent a putative class of purchasers and lessees of certain General Motors vehicles. These vehicles allegedly suffer from valve defects that can lead to catastrophic engine failure. Their original Complaint was filed on March 3, 2020. The Complaint alleges 55 claims under federal law, state common law and state statutes on behalf of 42 named Plaintiffs, and it also proposes that the Plaintiffs represent a nationwide class and 20 state-specific sub-classes. Defendant GM filed a motion to dismiss in response. The Plaintiffs now seek to amend their Complaint. Specifically, the proposed First Amended Complaint contains the following changes: (i) additional factual underpinnings for state class claims; (ii) two new named Plaintiffs; and (iii) eight new claims specific to the California and Oklahoma sub-classes based on the same factual allegations regarding the Defendant's course of conduct originally pleaded. The motion has been fully briefed. Although it was originally scheduled for oral argument, Judge Berg concludes that it may be decided on the briefs alone. Defendant GM focuses on "futility of amendment," naming six grounds from its motion to dismiss and alleging that the Plaintiffs' proposed amendments would not cure any of those deficiencies. Judge Berg finds it unnecessary at this stage to delve into the specifics of each of these grounds because the probability that all the proposed amendments are futile or that none the claims in the amended complaint will survive a motion to dismiss is very low. He says this kind of large, complicated, and unwieldy class action against a major automobile manufacturer is unfortunately quite familiar to the Court and becoming all too common in the district. He plans to hear oral argument regarding any motion to dismiss, at which time he will fully address all of GM's contentions. Allowing amendment at this stage will only effectuate a more thorough review of GM's arguments for dismissal. GM notes that granting the motion will result in a "duplicative round of briefing." But that argument cuts in the Plaintiffs' favor. GM concedes that the core factual allegations in the proposed amended complaint are unchanged. Assuming it chooses to re-file its motion to dismiss, GM will not suffer any undue prejudice. It may easily and efficiently adjust its arguments as may be appropriate while simply restating those that may still apply. Judge Berg finds that granting the Plaintiff leave to file a first amended Complaint is appropriate. There is no evidence of undue delay, lack of notice, bad faith, repeated failure to cure deficiencies, or undue prejudice to Defendant. The factual and legal allegations in the proposed First Amended Complaint are largely the same as those in the original Complaint. The amendments proposed will allow the Court to more fully evaluate the Plaintiffs' contentions "on the merits" all at once, a significant advantage in these cases. Allowing amendment at this stage is also in line with the Circuit's practice of liberally granting leave to amend. For these reasons, Judge Berg granted the Plaintiff's motion for leave to file a First Amended Complaint, and accepted the Complaint attached to the motion as Exhibit 1 for filing. Because it is no longer responsive to the operative complaint, the Defendant's motion to dismiss is moot and therefore denied without prejudice. The Judge ordered the Defendant to respond to the First Amended Complaint within 21 days of the date of his Order, or by any date to which the parties mutually agree to stipulate, not later than 45 days from the date of his Order. A full-text copy of the Court's Feb. 16, 2021 Order is available at https://tinyurl.com/y2y9me78 from Leagle.com. GENERAL MOTORS: Sproles Files Suit in W.D. Virginia --------------------------------------------------- A class action lawsuit has been filed against General Motors, LLC. The case is styled as Christopher Sproles, individually and on behalf of all others similarly situated v. General Motors, LLC, Case No. 2:21-cv-00016-JPJ-PMS (W.D. Va., Feb. 18, 2021). The nature of suit is stated as Contract Product Liability. General Motors Company -- https://www.gm.com/ -- is an American multinational corporation headquartered in Detroit that designs, manufactures, markets, and distributes vehicles and vehicle parts, and sells financial services, with global headquarters in Detroit's Renaissance Center.[BN] The Plaintiffs are represented by: Edward Kyle McNew, Esq. Lisa Sarah Brook, Esq. MICHIE HAMLETT PLLC 500 Court Square, Suite 300 Charlottesville, VA 22902 Phone: (434) 951-7200 Fax: (434) 951-7243 Email: kmcnew@michiehamlett.com lbrook@michiehamlett.com - and - John Gregory Webb, Esq. MICHIEHAMLETT PLLC 310 4th Street NE, 2nd Floor Charlottesville, VA 22902 Phone: (434) 951-7200 Fax: (434) 951-7218 Email: gwebb@mhlrt.com GENERALI US: Dziagwa Suit Transferred to S.D. New York ------------------------------------------------------ The case styled as Val Dziagwa, individually and on behalf of all others similarly situated v. Generali U.S. Branch; Customized Service Administrators, Inc. doing business as: CSA Travel Protection and Insurance Services; Case No. 1:21-cv-00314, was transferred from the U.S. District Court for the District of Colorado, to the U.S. District Court for the Southern District of New York on Feb. 18, 2021. The District Court Clerk assigned Case No. 1:21-cv-01428-JGK to the proceeding. The nature of suit is stated as Insurance for Breach of Contract. Generali US Branch -- https://www.generaliusa.com/ -- is licensed as a domestic insurance/reinsurance company in all 50 states and territories for all major businesses.[BN] The Plaintiff is represented by: Benjamin Charles Wickert, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713-5549-078 Email: bwickert@raiznerlaw.com GILBERT H. WILD: Williams Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Gilbert H. Wild II, LLC. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Gilbert H. Wild II, LLC, Case No. 1:21-cv-01491 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Gilbert H. Wild -- https://www.gilberthwild.com/ -- is America's largest grower and online retailer of daylilies, iris, peonies and other premium perennials.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal GLOBAL APPAREL: Blind Users Can't Access Website, Nisbett Alleges ----------------------------------------------------------------- KAREEM NISBETT, Individually and on behalf of all other persons similarly situated v. GLOBAL APPAREL PARTNERS, INC., Case No. 1:21-cv-01019-ER (S.D.N.Y., Feb. 4, 2021) alleges that the Defendant failed to design, construct, maintain, and operate its Website, https://variantmalibu.com/, to be fully accessible to and independently usable by Plaintiff Nisbett and other blind or visually-impaired people. The Plaintiff contends that the Defendant denies full and equal access to its Website, and asserts claims under the Americans With Disabilities Act (ADA), New York State Human Rights Law (NYSHRL), and New York City Human Rights Law (NYCHRL) against the Defendant. Plaintiff Nisbett seeks a permanent injunction to cause the Defendant to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually-impaired consumers. Mr. Nisbett is a resident of the Bronx, New York, Bronx County. As a blind, visually-impaired handicapped person, he is a member of a protected class of individuals under Title III of the ADA. The Defendant is a seller of masks, mask filters, and masks sprays. The company focuses on selling custom knit made face masks, filters, and organic masks sprays. Through its Website, its sells face masks individually. The Defendant's Website is a commercial marketplace. Customers can purchase items through the Website for delivery anywhere in the United States. Through the Website, Defendant's customers are also able to learn about Defendant's products, including materials used, care instructions and learn about the refund policy.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Christopher H. Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10017-6705 Telephone: (212) 392-4772 E-mail: doug@lipskylowe.com chris@lipskylowe.com GOOGLE INC: Calif. Court Tosses Class Action Over Loot Boxes ------------------------------------------------------------ Natalie Whitehead, writing for Legal Gambling and the Law, reports that Google was slapped with a class action lawsuit in the state of California which alleged that the tech giant was offering gambling via video games that were being downloaded on the Google Playstore. The allegations claimed that these video games have loot boxes in them and allows unsuspecting users to start gambling via these loot boxes and exposed them to problem gambling. Loot boxes have caused a lot of controversy over the last few years and has debated in multiple countries around the world. Some countries like Belgium, the Netherlands and China consider loot boxes to be similar to gambling and have banned video gaming developers from using loot boxes in their games. However, some countries like the United States and the United Kingdom have yet to classify loot boxes as gambling. Loot boxes allow video game players to purchase unknown items in these loot boxes for real money and use these items to progress to the next level of the video game. Players have no idea what each loot box contains and are enticed to keep buying more loot boxes in an attempt to get special items that will allow them to quickly proceed to the next level. The lawyers who filed the class action lawsuit wanted Google to be held responsible for offering video games with loot boxes and facilitating gambling activities in children and adults, this isn't the first time a lawsuit has been issued with Apple also receiving one last year. COURT GRANTS MOTION TO DISMISS GOOGLE PLAY LAWSUIT Google filed a motion to dismiss the class action lawsuit claiming that Section 230 of the Communications Decency Act of 1996 gave it exemption from being liable to prosecution for offering video games with loot boxes from the Google Playstore. Google stated that they did not develop these video games in question or the controversial loot boxes. They only provided a platform for these games to be downloaded. Judge Beth Labson Freeman who presided over the hearing in the Northern District of California issued a motion to dismiss the lawsuit after hearing the arguments. The Judge said that exemption could be granted to Google based on Section 230 but also ruled that it may refer to loot boxes at a later stage and check whether they can be categorized as illegal gambling offerings. The plaintiffs were not happy with the ruling and claim that Google cannot be granted exemption under Section 230. [GN] GOOGLE INC: Faces Lawsuit Over Stadia 4K Game Quality ----------------------------------------------------- Brad Bennett at mobilesyrup.com reports that a class-action lawsuit has moved on to a New York federal court, claiming that Google oversold Stadia's power and the quality of its 4K subscription tier. The lawsuit, originally submitted in October 2020, nearly one year after the streaming platform's launch, argues that Google exaggerated the streaming quality and the display resolution of Stadia's games. The lawsuit claims that Google did this to boost its subscription numbers. To this date, Google has not disclosed how many subscribers Stadia currently has. The case adds that Google's official Stadia account deleted a tweet about Red Dead Redemption 2 claiming players didn't need high internet speeds to play the game in 4K/60fps. According to the lawsuit, the tech giant's removal of the tweet "shows that Google understood that it was intentionally misleading consumers and wanted to assure there was no direct false statements coming from Google regarding the Stadia service." Additionally, the lawsuit alleges Google "quietly" tweaked the About section on Stadia's website to "obscure the indication that Stadia gameplay was less than 4K only if a customer had a slower internet connection." "As a result of Google's actions, there are hundred [sic], if not thousands, of articles and reports across the United States and the world containing misleading statements originating from Google that consumers are making purchasing decisions based upon," the lawsuit argues. "Google has done nothing to correct the false information concerning the power and resolution of the games available on Stadia and does not disclose to consumers in the Google Stadia store the resolution of each of the games available for purchase." As it stands, Google has not yet commented on the lawsuit. However, the company did address the resolution controversy in 2019. At the time, Digital Foundry did a deep dive into Stadia's performance, noting that the service didn't live up to the 4K quality Google promised. In response, Google said this was done to "give developers the freedom of how to achieve the best image quality and framerate on Stadia." Should the lawsuit proceed, it seeks damages for anyone who purchased a Stadia Founder's Edition, Premiere Edition, or paid for a Stadia Pro subscription based on the understanding that Stadia would support all games in 4K. [GN] GOOGLE LLC: Vance BIPA Suit Stayed Until Resolution of IBM Suit --------------------------------------------------------------- Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted Google's motion to stay all proceedings in the case, STEVEN VANCE, et al., Plaintiffs v. GOOGLE LLC, a Delaware limited liability company, Defendant, Case No. 5:20-CV-04696-BLF (N.D. Cal.), until the resolution of Vance v. International Business Machines, Corporation, No. 1:20-CV-0577. On Jan. 24, 2020, Plaintiffs Vance and Tim Janecyk filed suit in the U.S. District Court for the Northern District of Illinois, alleging that IBM violated the Illinois Biometric Information Privacy Act ("BIPA"). BIPA prohibits private entities from collecting, capturing, obtaining, disclosing, redisclosing, disseminating or profiting from the biometric identifiers or information of an individual without providing written notice and without obtaining a written release from the impacted individual or his authorized representative. BIPA defines biometric identifiers as including a scan of an individual's facial geometry and biometric information as any information "based on an individual's biometric identifier used to identify an individual." BIPA creates a private right of action that allows a plaintiff to recover liquidated damages ranging from $1,000 to $5,000, attorney's fees, and injunctive relief. In the IBM action, it is alleged that in 2008, Vance uploaded photos of himself and his family members to Flickr from his computer in Illinois. Flickr subsequently made Vance's photos, as well as millions of other people's photos, available to IBM in a single downloadable dataset. IBM captured biometrics from these photographs by scanning the faces and extracting geometric data relating to the contours of the faces. It used the data to create its own dataset of "frontal-facing images of human faces." IBM included images from the IBM Dataset into a larger dataset it created known as the "Diversity in Faces" dataset ("DiF dataset"). Vance alleges IBM used the DiF dataset to profit "from the biometric identifiers and information of the Plaintiffs and the Class Members" in violation of BIPA, among other things. Vance brought seven causes of action against IBM: (1) violation of BIPA Section 14/15(a) by wrongfully possessing Vance's biometric identifiers; (2) violation of BIPA Section 14/15(b) by wrongfully collecting biometric identifiers; (3) violation of BIPA Section 14/15(c) by wrongfully profiting from biometric identifiers; (4) violation of BIPA Section 14/15(d) by wrongfully disclosing biometric identifiers; (5) violation of BIPA Section 14/15(e) by wrongfully failing to protect biometric identifiers from disclosure; (6) unjust enrichment; and (7) injunctive relief. On Sept. 15, 2020, the Northern District of Illinois dismissed Vance's causes of action under BIPA Section 14/15(a) and for injunctive relief and allowed the other claims to proceed. Discovery in the IBM action is set to close on July 28, 2021. In addition to the IBM action, Vance has filed three other class action BIPA suits. On July 14, 2020, he filed a BIPA class action against Microsoft Corp. in the Western District of Washington. The Microsoft action alleges that Microsoft Corporation obtained the DiF dataset from IBM and used biometric identifiers contained therein in violation of BIPA. On July 14, 2020, Microsoft filed a motion to dismiss, which, as of Feb. 8, 2021, has not yet been adjudicated. On July 14, 2020, Vance filed a BIPA class action suit against Amazon.com, Inc. in the Western District of Washington. As in the Microsoft action, Vance claims Amazon.com, Inc. obtained the DiF dataset from IBM and used biometric identifiers in violation of BIPA. Amazon.com filed a motion to dismiss, which, as of Feb. 8, 2021, has not yet been adjudicated. Finally, also on July 14, 2020, Vance filed a class action BIPA suit against FaceFirst, Inc. in the Central District of California. As in the Microsoft and Amazon actions, Vance claims FaceFirst obtained the DiF dataset from IBM and used biometric identifiers in violation of BIPA. Facefirst filed a motion to dismiss and a motion to stay, neither of which have been adjudicated as of Feb. 8, 2021. Neither Amazon.com, nor Microsoft has requested a stay in their respective action, but FaceFirst has requested a stay in the FaceFirst action. On July 14, 2020, Vance filed the instant suit against Google. He seeks to represent a class of "all Illinois residents" whose faces are in or depicted in the DiF dataset photo sharing service which it alleges was passed from IBM to Google in violation of BIPA. The complaint alleges four causes of action against Google: (1) violation of BIPA Section 14/15(b); (2) violation of BIPA Section 14/15(c); (3) unjust enrichment; and (4) injunctive relief. Google requests the Court judicially notice four documents filed in federal courts outside of the Northern District of California: (A) Vance's second amended class action complaint in the IBM action; (B) a print out of the docket in the IBM action; (C) Vance's class action complaint in the Amazon action; and (D) Vance's class action complaint in the Microsoft action. Vance requests the Court judicially notice documents filed in federal courts outside of the Northern District of California as well as six documents filed in state court in Cook County, Illinois: (A) Vance's class action complaint in the IBM action; (B) Vance's second amended class action complaint in the IBM action; (C) IBM's memorandum in support of its motion to dismiss Vance's complaint in the IBM action; (D) the Oct. 12, 2020 scheduling order in the IBM action; (E) Vance's class action complaint in the Microsoft action; (F) Vance's class action complaint in the Amazon action; (G) Vance's class action complaint in the FaceFirst action; (H) an Oct. 23, 2020 copy of the docket for the Microsoft action; (I) an Oct. 23, 2020 copy of the docket for the Amazon action; (J) the Oct. 21, 2020 scheduling order for the Microsoft action; and (K) which includes,but not limited to: (1) an order from Mutnick v. Clearview AI, Inc., et al., No. 1:20-CV-00512 (N.D. Ill May 19, 2020); and (2) Grabawska v. The Millard Group, LLC, No. 2017 CH 13730 (Cir. Ct. Cook Cty. Apr. 3, 2018) (Flynn, J.), Order Denying Stay. The parties have neither opposed the requests for judicial notice nor disputed the authenticity of the documents. Judge Freeman granted both requests for judicial notice. Citing Landis v. No. American Co., 299 U.S. 248, 254 (1936), Judge Freeman explains that district courts have the "discretionary power to stay proceedings." She now weighs the Landis factors: the possible damage to the non-moving party, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice. As to the first Landis factor, Judge Freeman finds that the possibility that a stay will cause Vance harm is marginal. Google has submitted sufficient evidence and argument to demonstrate that the harm to Vance is not significant enough to outweigh the other Landis factors. Because Vance is the plaintiff in both the instant case and in the IBM action, Google's request for a stay does not require that Vance's claims be litigated by another party. Any generalized risk of delayed litigation is minimized by the fact that the IBM action is moving quickly, with discovery set to end in July 2021, and therefore any delay will likely be minimal. Moreover, the Judge finds that Vance is currently actively engaged in discovery in the IBM action and Google is on notice of the need to preserve any additional evidence it may have. Google's assurances of evidence preservation are sufficient, and any failure to live up to the obligations it takes on will have significant negative effects on Google later in the litigation. While Vance contends that he will be harmed by the degradation of testimonial evidence, the Judge holds that he has not identified any witnesses or areas of testimony that need to be preserved, nor has he requested a limited discovery carve out from the proposed stay. She credits Vance's concern regarding an indefinite stay, however, and finds it appropriate to limit the scope of Google's request to one year from the date of the Order--or sooner should the IBM action reach a quicker conclusion. Turning to the second Landis factor, Google argues the instant case shares significant factual and legal questions with the IBM action, such as whether Vance's photos were included in the dataset allegedly used by Google and IBM, the nature of contractual agreements between Vance and IBM, whether IBM's actions violate BIPA, and whether Vance consented to the use of his photos. Vance responds that Google "overstates" the legal and factual overlap between the two cases, but concedes, there is undeniably some preliminary overlap between IBM and the case. Judge Freeman finds that this factor weighs in favor of staying the action. Although Google is not being asked to litigate on two fronts, it will nonetheless shoulder additional burdens if a stay is not granted. The differences between the IBM action and the action do not negate the presence of substantial overlapping factual and legal questions, which need not be litigated twice, causing burden to Google. The Judge also highlights that many of the overlapping legal issues pose significant constitutional questions, increasing the risk of inconsistent rulings and confusion. Finally, without a stay there will be significant overlap in the discovery in both cases, creating additional expenses. Because significant discovery and litigation could be rendered moot by the IBM action, and because parallel proceedings could create inconsistent and confusing outcomes, the potential hardship to Google weighs in favor of granting the stay. Judicial economy, which furthers the third Landis factor, is the primary basis courts consider when ruling on motions to stay. Vance argues that the divergent factual nature of the two actions requires "at most" informal discovery coordination. Google counters that judicial economy favors a stay because there are threshold questions across both cases, such as whether IBM collected Vance's biometric identifiers or information in violation of BIPA. Judge Freeman agrees with Google. The factual issues to be resolved in both cases are similar and predicated on the issues in the IBM action as Vance must first establish that IBM wrongfully acquired and used Vance's biometric information in violation of BIPA. In addition to the overlapping factual issues, there are overlapping constitutional questions raised by Google and IBM in their respective cases. In sum, although there are no dispositive motion deadlines set in the IBM action, a one-year stay is appropriate as it will allow the IBM parties to complete discovery and provide them with a meaningful amount of time to resolve some of the overlapping issues. Because trial in the instant action is currently set for February 2023, the parties will have ample time to complete discovery even in light of a one-year stay. Google concurrently filed its Motions to Dismiss and to Stay. It did not, however, indicate the order in which it preferred the Court consider the motions. The circumstances of the case counsel that Judge Freeman rules on the Motion to Stay first and terminates the Motion to Dismiss without prejudice to refiling after the stay if lifted. It appears likely that once the IBM Court rules on the overlapping legal and factual issues, the Plaintiffs will choose to amend the Complaint in this action in order to move forward rapidly upon lifting the stay. The Plaintiffs may identify additional theories or issues to litigate in this case with the benefit of the IBM action. It would be inefficient to use this Court's time to delve into the pleadings under these circumstances, particularly given that Google's Motion to Stay is broad. For these reasons, the pending Motion to Dismiss is terminated. For the foregoing reason, Judge Freeman finds the Landis factors weigh in favor of a stay. She granted Google's Motion to Stay and stayed the case until Feb. 12, 2022, or sooner should the IBM action be resolved before that date. The parties will submit a joint status report to the Court within 14 days of the resolution of the IBM Action or on Feb. 12, 2022, whichever is earlier. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/3fnjl7x9 from Leagle.com. GTS TRANSPORTATION: Equitable Claims in Plestsov Suit Dismissed --------------------------------------------------------------- In the case, ALEXEI PLESTSOV, DENIS NAZAROV, and ROMAN KALABAYDA, Plaintiffs v. GTS TRANSPORTATION CORP. and TOMAS STIRBYS, Defendants, Case No. 20 CV 1847 (N.D. Ill.), Judge Manish S. Shah of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part the Defendants' second motion to dismiss. Plaintiffs Kalabayda, Plestsov, and Nazarov worked as truck drivers for GTS, a company owned and operated by Tomas Stirbys. All three Plaintiffs had similar hiring experiences. Stirbys and another GTS employee interviewed Kalabayda. Stirbys orally offered Kalabayda a job, where he would be paid based on a percentage of the dollar amount of the freight/load confirmations from brokers and customers, minus fuel and other expenses. Stirbys orally stated other terms about control, like Kalabayda could only operate GTS trucks, could not work for another company, and had to comply with all of GTS's instructions for deliveries. Kalabayda was required to sign a document on the spot, which he did not understand due to his lack of English proficiency and legal knowledge. Kalabayda accepted the job offer. Later, on at least three occasions, Kalabayda learned from GTS brokers and staff that the dollar amount on the original freight/load confirmations differed from the confirmations he received, resulting in an underpayment of approximately 10%. In one instance, Kalabayda was able to verify the underpayment because he received an original confirmation from a broker and compared it to the confirmation GTS provided him for the same load. Consequently, the Plaintiffs allege that GTS forged the confirmations presented to Kalabayda, which lowered his pay, and that the total amount of underpayment is unknown because the original freight/load confirmations are in GTS' possession and control. A GTS employee who interviewed Kalabayda interviewed Plestsov, along with another GTS employee. At Stirbys's direction, the GTS employees orally offered Plestsov a job, where he would be paid a percentage of the dollar amount of the freight/load confirmations from brokers and customers, minus fuel and other expenses. One of the GTS employees orally stated the same terms about control, and Plestsov signed a document that he did not understand. Plestsov accepted the offer but eventually learned from other drivers, including Kalabayda, that GTS allegedly forged the freight/load confirmations, which lowered his pay by approximately 10%. Similarly, another GTS manager, at Stirbys's direction, orally offered Nazarov a truck driver position. Nazarov would be paid per mile, including layovers and extra stops, and subject to the same terms about control. Like the others, Nazarov signed a document that he did not understand and accepted the job offer. He alleges that he too was underpaid by approximately 10% because GTS paid him using a "zip code to zip code" formula instead of calculating the actual miles he drove. GTS also took deductions from the Plaintiffs' paychecks, which they never agreed to. GTS withheld a total of $17,096.90 from Kalabayda's pay for "escrow," "repairs," "claims," and a "ticket"; $3,797.20 from Plestsov's pay for "escrow," "repairs," and an "Uber"; and $520 for a "cash advance" and "insurance escrow" from Nazarov's pay. GTS never reimbursed Kalabayda and Plestsov for $52,000 and $17,181.52, respectively, for operational expenses, or Nazarov for a new GPS, tire gauge, and repair tools. Finally, GTS failed to pay Plestsov approximately $3,000.61 for his last two weeks at work and never paid Nazarov for any layovers and extra stops, as promised. It also returned the $1,000 it took for "escrow" at the time of Nazarov's hiring 24 weeks later. In total, the Plaintiffs allege that the Defendants owe at least $65,532.88 to Kalabayda, $29,734.74 to Plestsov, and $6,467.37 to Nazarov. The Plaintiffs broadly allege that the Defendants took advantage of immigrant workers, and that at Stirbys's direction, GTS doctored freight/load confirmations to lower their drivers' pay, took improper deductions, and misclassified drivers as independent contractors. They also allege that GTS failed to withhold payroll and social security taxes; provide health insurance for its drivers; or make contributions to unemployment insurance or workmen's compensation. The Defendants filed a motion to dismiss the Plaintiffs' first class action complaint based on lack of jurisdiction and failure to state a claim for equitable remedies. The Plaintiffs filed an amended complaint, realleging violations of the Illinois Wage Payment and Collection Act and in the alternative, unjust enrichment and quantum meruit. The Defendants now seek to dismiss both claims on the merits. First, the Defendants argue that the Plaintiffs' entire IWPCA claim "sounds in fraud," and therefore should be dismissed because the allegations fail to meet the heightened pleading requirements of Rule 9(b). But Judge Shah finds that the Plaintiffs allege wage violations that are independent of their allegations about doctored wages and fraudulent misclassification of employees. GTS failed to pay Nazarov for any layovers and extra stops or pay Plestsov his final paycheck. It took GTS 24 weeks to return "escrow" money it took from Nazarov. GTS also took random and authorized deductions from their paychecks, for expenses like "escrow" and "repairs," and never reimbursed Kalabayda and Plestsov for operational expenses, or Nazarov for truck equipment. None of these allegations involve fraudulent conduct, Judge Shah holds. Hence, the Plaintiffs successfully state IWPCA claims that are not subject to the heightened pleading standard for averments of fraud. Next, the Plaintiffs do aver that GTS forged freight/load confirmations, "doctored" logbooks, and systematically misclassified drivers as independent contractors in violation of the IWPCA's requirement that employers must pay their employees' wages in full. These allegations are acts of deception, Judge Shah finds. However, he says, just because the complaint includes averments of fraud does not mean that the Plaintiffs' IWPCA claim is premised on a fraudulent course of conduct that would trigger the heightened pleading standard under Rule 9(b). The Plaintiffs also replead unjust enrichment and quantum meruit in the alternative. Judge Shah previously dismissed these claims because the Plaintiffs incorporated their allegations of a valid agreement into their equitable claims. The amended complaint does it too. The Plaintiffs cannot show that their equitable claims fall outside the terms of the employee agreements because agreements existed between the parties, and agreements under the IWCPA are akin to breach of contract actions. Finally, the Plaintiffs argue that it is premature to dismiss their equitable claims and seek leave to amend their complaint to allege their equitable claims in the event the Court finds no valid employment agreement between the parties. Judge Shah holds that the Plaintiffs had their chance to clearly delineate between misconduct based on a valid agreement and misconduct that falls outside a contract. He denied their request. In light of the foregoing, Judge Shah granted in part and denied in part the Defendants' motion to dismiss. The Plaintiffs' equitable claims are dismissed with prejudice. The Defendants will answer the amended complaint by March 5, 2021, and the parties will file a joint status report with a proposed discovery schedule on March 12, 2021. A full-text copy of the Court's Feb. 12, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/3frnm75g from Leagle.com. HAIN CELESTIAL: Baby Products Contain Heavy Metals, Mays Suit Says ------------------------------------------------------------------ ALYSSA MAYS, individually and on behalf of all others similarly situated, Plaintiff v. HAIN CELESTIAL GROUP, INC., Defendant, Case No. 2:21-cv-00805 (E.D.N.Y., Feb. 12, 2021) is an action arising out of the Defendant's deceptive and misleading labeling of its Earth's Best baby food products (the "Product"). The Plaintiff alleges in the complaint that the Defendant failed to list heavy metals as an ingredient on the Products' labels, and failed to warn of the potential presence of heavy metals in the Products. The Defendant also failed to disclose that the ingredients of its supposedly organic Products contain inorganic arsenic. The Hain Celestial Group, Inc. is a natural and organic beverage, snack, specialty food, and personal care products company. The Company's product line include grocery store foods such as organic cookies, cooking oils, sugar free products, kosher foods, snacks, and frozen foods, as well as organic skin, hair, and body products. [BN] The Plaintiff is represented by: Gary E. Mason, Esq. MASON LIETZ & KLINGER LLP 5101 Wisconsin Avenue NW, Suite 305 Washington, DC 20016 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 E-mail: gmason@masonllp.com -and- Jonathan Shub, Esq. Kevin Laukaitis, Esq. SHUB LAW FORM LLC 134 Kings Highway E., 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 Facsimile: (856) 210-9088 E-mail: jshub@shublawyers.com klaukaitis@shublawyers.com -and- Gary M. Klinger, Esq. MASON LIETZ & KLINGER LLP 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 E-mail: gklinger@masonllp.com -and- Jeffrey S. Goldenberg, Esq. GOLDENBERG SCHNEIDER L.P.A. 4445 Lake Forest Drive, Suite 490 Cincinnati, OH 45242 Telephone: (513) 345-8297 Facsimile: (513) 345-8294 E-mail: jgoldenberg@gs-legal.com -and- Charles E. Schaffer, Esq. David C. Magagna Jr., Esq. LEVIN, SEDRAN & BERMAN, LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: cschaffer@lfsblaw.com dmagagna@lfsblaw.com HEARST MAGAZINE: Sanchez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Hearst Magazine Media, Inc. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. Hearst Magazine Media, Inc., Case No. 1:21-cv-01431 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hearst Magazine is part of Hearst -- https://www.hearst.com/ -- a global, diversified media, information and services company with more than 360 businesses.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal HOME DEPOT: Faces Gregorio Suit Over Sale of Herbicide Roundup -------------------------------------------------------------- MICHAEL GREGORIO v. HOME DEPOT U.S.A., INC., a Delaware corporation, Case No. CACE-21-002428 (Fla. Cir., Broward Cty., Feb. 4, 2021) is a class action complaint brought on behalf of the Plaintiff and on behalf of a class of similarly situated consumers to redress the unfair business practices employed by Defendant in connection with its sale of the glyphosate-based herbicide Roundup (TM) and its breach of contract with the Plaintiff and the class. According to the complaint, the Defendant's retail stores and website have sold and continue to sell various Roundup (TM) herbicide products directly to consumers despite the Defendant's knowledge Roundup (TM) has the potential to cause cancer in humans, and that there is an ongoing scientific debate as to whether Roundup (TM) can cause Non-Hodgkin's lymphoma ("NHL"). The Defendant has been aware that glyphosate -- the active ingredient in Roundup (TM) -- is a Class 2A herbicide, meaning the World Health Organization's International Agency for Research on Cancer ("IARC") has determined it is probably carcinogenic to humans. The Defendant has also known Roundup (TM) and other glyphosate-based herbicides have been banned by many countries, regions, and municipalities, including actions taken within Florida, because it may be dangerous to human health. Additionally, the Defendant is aware of the tens of thousands personal injury cases brought by individuals who have alleged Roundup (TM) exposure caused their cancer, the suit says. The Plaintiff contends that despite the Defendant's knowledge of Roundup (TM)'s potential carcinogenicity throughout the class period , the Defendant has sold and continues to sell Roundup (TM) at its retail locations and on its website without providing consumers with any additional information on its website, store shelves or at the point of sale about the products' potential health risks. Defendant, at the very least, should inform consumers there is an ongoing scientific dispute over its potential carcinogenicity, the Plaintiff adds. The Plaintiff, is an individual consumer over the age of 18, who resides in Broward County, Florida, and is a member of the alleged Class. Defendant Home Depot is the largest home improvement retailer in the United States and is engaged in the marketing, sale, and distribution of a product line of herbicide Roundup (TM), which contains the active ingredient glyphosate. All formulations of Roundup (TM) are manufactured by non-parties Monsanto Company, Bayer Corporation, and/or Bayer AG. "Roundup" refers to any and all Roundup (TM)-brand products and other herbicide products containing glyphosate that have been sold by Home Depot at any time during the class period . Roundup includes Roundup Ready-To-Use Weed & Grass KIIIer III; Roundup Ready-To-Use Weed & Grass KIIIer III with Comfort Wand; Roundup Ready-To-Use Weed & Grass KIIIer III Sure Shot Wand ; Roundup Ready-To-Use Weed & Grass KIIIer III Trigger Sprayer; and Roundup Ready-To-Use Weed & Grass KIIIer III with Pump 'N Go 2 Sprayer.[BN] The Plaintiff is represented by: Howard W . Rubinstein, Esq. THE LAW OFFICE OF HOWARD W. RUBINSTEIN 663 Bishops Lodge Rd Apt 3 Santa Fe, NM 87501 Telephone: (832) 715-2788 Facsimile: (561) 688-0630 E-mail : howardr@pdq .net HOUGHTON MIFFLIN: Bais Yaakov Appeals Case Dismissal to 2nd Cir. ---------------------------------------------------------------- Plaintiff Bais Yaakov of Spring Valley filed an appeal from court rulings entered in the lawsuit entitled BAIS YAAKOV OF SPRING VALLEY, on behalf of itself and all others similarly situated, Plaintiff v. EDUCATIONAL TESTING SERVICE, Defendant, Case No. 13-cv-4577, in the U.S. District Court for the Southern District of New York (White Plains). In 2008, Educational Testing Service (ETS) entered into an exclusive distribution agreement with Houghton Mifflin Harcourt Publishing Company (HMH), pursuant to which HMH obtained the exclusive right to distribute, market, and advertise Criterion, a web-based application that evaluates a student's writing skills and provides diagnostic feedback and a holistic score, in the K-12 school market in the United States. Plaintiff Bais Yaakov of Spring Valley brought an action against ETS alleging that ETS sent it an unsolicited fax advertisement for goods and services without the proper opt-out notices in violation of the Telephone Consumer Protection Act. The original complaint was filed on July 2, 2013, naming Houghton Mifflin Harcourt Publishers, Inc. and Laurel Kaczor as Defendants. On August 13, 2014, Plaintiff sought leave to file a motion to amend the complaint to add ETS as a Defendant. The Plaintiff spent some time arguing that the failure of Plaintiff to name ETS in the original complaint was a "mistake" within the meaning of Federal Rules of Civil Procedure Rule 15(c)(1)(C)(ii). Defendant, however, raised no argument to the contrary, and so the Court did not address the issue. On February 1, 2021, the Court granted Defendant's renewed motion for entry of judgment and to dismiss for lack of subject matter jurisdiction. Judgment was entered on February 2 for $12,000 plus applicable costs for Plaintiff, denying Plaintiff's request for injunctive relief, and dismissing the case as moot pursuant to Federal Rules of Civil Procedure Rule 12(b)(1); accordingly, the case was closed. The Plaintiff is seeking a review of the Court's Orders dated February 8, 2017, July 11, 2017, June 6, 2018, April 25, 2019, and July 8, 2020; Court's Motion Scheduling Order dated July 19, 2017; Court's Opinion and Order dated February 1, 2021; and Court's Judgment dated February 2, 2021. The appellate case is captioned as Bais Yaakov of Spring Valley v. Houghton Mifflin Harcourt Publishers, Inc., Case No. 21-399, in the United States Court of Appeals for the Second Circuit, February 18, 2021.[BN] Plaintiff-Appellant Bais Yaakov of Spring Valley, on behalf of itself and all others similarly situated, is represented by: Aytan Yehoshua Bellin, Esq. BELLIN & ASSOCIATES, LLC 50 Main Street, Suite 1000 White Plains, NY 10606 Telephone: (914) 358-5345 E-mail: aytan.bellin@bellinlaw.com Defendant-Appellee Educational Testing Service is represented by: Sharyl A. Reisman, Esq. JONES DAY 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939 E-mail: sareisman@jonesday.com HUHTAMAKI INC: Chavez Suit Removed from Cal. State Ct. to C.D. Cal. ------------------------------------------------------------------- The class action lawsuit captioned as Juan J. Chavez v. Huhtamaki, Inc. et al., Case No. 19STCV19491, was removed from the Superior Court of California for the County of Los Angeles to United States District Court for the Central District of California (Los Angeles) on Feb. 5, 2021. The California Central District Court Clerk assigned Case No. 2:21-cv-01073-ODW-JEM to the proceeding. The nature of suit states Civil Rights: Jobs. The case is assigned to the Hon. Judge Otis D. Wright, II. Huhtamaki is a global food packaging specialist, headquartered in Espoo, Finland. Its products include paper and plastic disposable tableware, such as cups, plates and containers for quick service restaurants, coffee shops, retail stores, caterers and vending operators.[BN] The Plaintiffs Juan J. Chavez and Raumundo Caldera are represented by: Kane Moon, Esq. Ani Martirosian, Esq. Howard Scott Leviant, Esq. MOON AND YANG APC 1055 West 7th Street Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 E-mail: kane.moon@moonyanglaw.com ani.martirosian@moonyanglaw.com scott.leviant@moonyanglaw.com The Defendant Huhtamaki, Inc. is represented by: Sarah Elana Ross, Esq. Alexandria Marie Witte, Esq. LITTLER MENDELSON PC 2049 Century Park East 5th Floor Los Angeles, CA 90067-3107 Telephone: (310) 553-0308 Facsimile: (310) 553-5583 E-mail: sross@littler.com awitte@littler.com ICEBOX BRANDS: Faces Lopez Employment Suit in Calif. State Court ---------------------------------------------------------------- A class action lawsuit has been filed against Icebox Brands, Inc. The case is captioned as Doris Lopez v. Icebox Brands, Inc., a California Corporation, Case No. 34-2021-00293902-CU-OE-GDS (Calif. Super., Sacramento Cty., Feb. 4, 2021). The suit arises from employment-related issues.[BN] The Plaintiff is represented by: Galen Tadashi Shimoda, Esq. SHIMODA LAW CORP. 9401 E Stockton Blvd Ste 120 Elk Grove, CA 95624-5050 Telephone: (916) 525-0716 Facsimile: (916) 760-3733 E-mail: attorney@shimodalaw.com IIWII GARDENS: Williams Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against IIWII Gardens, Inc. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. IIWII Gardens, Inc., Case No. 1:21-cv-01488 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. IIWII Gardens, Inc. grows hundreds of sun perennials, shade perennials, shrubs, groundcovers, roses, hedge plants and so much more.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal INOVIO PHARMACEUTICALS: Claims in McDermid Securities Suit Narrowed ------------------------------------------------------------------- In the case, PATRICK McDERMID, individually and on behalf of all others similarly situated, Plaintiff v. INOVIO PHARMACEUTICALS, INC., et al., Defendants, Civil Action No. 20-01402 (E.D. Pa.), Judge Gerald J. Pappert of the U.S. District Court for the Eastern District of Pennsylvania grants in part and denies in part the Defendants' motion to dismiss all claims in the Amended Consolidated Class Action Complaint for failure to state a claim. A putative class of shareholders alleges that Inovio and three individual Defendants made false or misleading statements about Inovio's COVID-19 vaccine in violation of the Securities Exchange Act of 1934 and SEC Rule 10b-5. Inovio is a biotechnology company focused on bringing to market DNA medicines to combat infectious diseases. In 2020, Inovio ramped up efforts to develop INO-4800, its vaccine candidate for COVID-19. Defendant J. Joseph Kim was Inovio's CEO and President and served as a member of the Board of Directors during the class period. Defendant Peter Kies was Inovio's CFO during the class period. Defendant Robert Juba, Jr. was the company's Vice President of Biological Manufacturing and Clinical Supply Management during the class period. The Plaintiffs claim Inovio and the individual Defendants made several false or misleading statements during the class period that artificially inflated Inovio's stock price. They allege that after making these false and misleading statements Inovio and the individual Defendants cashed in on Inovio's artificially high stock price by organizing several at-the-market stock offerings and selling individually held shares of the company. In February, March, April and May, Inovio raised more than $300 million from investors in at-the-market offerings, a process through which a company can incrementally place new shares into the market. The Plaintiffs claim Inovio fraudulently pumped up its stock price to maximize investments during this period, in part because it had no other material source of income and faced mounting research and development expenses. The Plaintiffs also allege that the individual Defendants were motivated to mislead investors on the success of Inovio's vaccine production because significant portions of their compensation were performance-based. Moreover, during the class period, Kim sold 100,000 shares of Inovio common stock for approximately $2,135,000. Similarly, Kies sold 70,000 shares for about $1,800,750. Neither Defendant had voluntarily sold any shares in the 18 months leading up to these sales. The Plaintiffs acknowledge that Kim and Kies allegedly sold their shares as part of Rule 10b5-1 trading plans, but claim these plans are not valid defenses to the fraud allegations because both men "had knowledge of, or recklessly disregarded, non-public, material adverse facts concerning the development status of INO-4800 at the time they created the trading plans." Like the at-the-market stock offerings, the Plaintiffs allege these sales support the individual Defendants' knowledge and intent to defraud. Finally, the Plaintiffs allege they suffered significant losses as a result of the Defendants' "scheme to deceive investors and the market." They provide data showing increases in Inovio's stock price around the time of each alleged false or misleading statement and subsequent declines around the time the true nature of these statements came to light. In Count One, the Plaintiffs' claim all the Defendants violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder by engaging in a scheme to inflate Inovio's stock price with false or misleading statements. In Count Two, they claim all the Defendants violated Section 20(a) of the Exchange Act as "controlling persons" at Inovio. Liability under Section 20(a) is derivative of an underlying violation of Section 10(b), so if any of the Plaintiffs' Section 10(b) claims fail, so will the corresponding Section 20(a) claim. The Defendants move to dismiss all claims in the Amended Consolidated Class Action Complaint for failure to state a claim. They claim that the Plaintiffs have failed to adequately plead falsity, scienter and loss causation for each of the alleged misstatements identified in the Amended Complaint. Judge Pappert grouped those alleged misstatements into three categories for purposes of analyzing the Defendants' Motion: (1) Kim's statements about Inovio constructing a vaccine in three hours; (2) statements about Inovio's progress toward producing one million vaccine doses in 2020; and (3) Inovio's claim that it was selected for inclusion in Operation Warp Speed. He finds that the Plaintiffs adequately plead claims only for the first two groups of statements. As to the first alleged misstatement, Judge Pappert finds that the Plaintiffs plead enough to satisfy the PSLRA's requirement to allege why the statements were misleading. The Plaintiffs allege that Kim misled investors by claiming Inovio constructed a vaccine when it had only designed one. And they allege that a vaccine construct is distinct from a design. By alleging the Defendants claimed to have achieved something they did not achieve and thereby instilling false confidence in investors, the Plaintiffs have satisfied their burden of alleging why Kim's statements were misleading. The Plaintiffs have plead enough facts to support a strong inference of scienter and loss causation. As the second alleged misstatement, the Judge finds that Kim's statements were inextricably linked to Inovio's current manufacturing capabilities. Although portions of the Defendants' statements were forward-looking, the Plaintiffs do not challenge those aspects; they take issue with the Defendants withholding material information about Inovio's current relationship with VGXI and its manufacturing capacity under present conditions. The Plaintiffs are also correct that, once the Defendants chose to speak about their various manufacturing deals and progress, they had a duty to include material information that would render those statements not misleading. At this stage, the Plaintiffs have done enough to establish a strong inference that the Defendants' acted with the requisite scienter when announcing their partnership with Ology, claiming to be on track to reach their goal of producing one million vaccines in 2020 and issuing the May prospectus. As to the third alleged misstatement, the Plaintiffs' contend that the Defendants led investors to believe that they had been chosen to receive government funding for their vaccine when they had been chosen only to participate in a government-backed study. But the Judge finds that the Defendants never claimed to be receiving vaccine funding and disclosed the fact that INO-4800 had been chosen for the NHP study in the same press release in which it broadly claimed to have been selected for Operation Warp Speed. The Plaintiffs do not explain how or why a reasonable investor with access to all this information would have thought Inovio would receive government funding for its vaccine. Even if the Defendants' claim about being selected for Operation Warp Speed was a misrepresentation, the subsequent disclosure rendered it immaterial and not misleading. Accordingly, the Judge dismisses the Plaintiffs' claims based on the Defendants' Operation Warp Speed press release. The Defendants seek dismissal of the Plaintiffs' Section 20(a) claims only on the grounds that these claims must fail if the Section 10(b) claims fail. Because he dismisses only the Section 10(b) claims related to the Defendants' April 30 and June 30, 2020 press releases, the Judge dismisses only the corresponding Section 20(a) claims. Finally, amendment of the Plaintiffs' claims involving the Defendants' April 30, 2020 and June 30, 2020 press releases would be futile, so Counts I and II are dismissed with prejudice as to those claims. An appropriate Order follows. A full-text copy of the Court's Feb. 16, 2021 Memorandum is available at https://tinyurl.com/2738xvrm from Leagle.com. INTERACTIVE LIFE: Jaquez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Interactive Life Forms, LLC. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Interactive Life Forms, LLC, Case No. 1:21-cv-01453 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Interactive Life Forms, LLC -- http://www.interactivelifeforms.com/ -- provides pleasure products. The Company offers its products in the United States.[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 IRHYTHM TECHNOLOGIES: Klein Law Firm Reminds of April 2 Deadline ---------------------------------------------------------------- The Klein Law Firm on Feb. 15 disclosed that a class action complaint has been filed on behalf of shareholders of iRhythm Technologies, Inc. (NASDAQ: IRTC) alleging that the Company violated federal securities laws. Class Period: August 4, 2020 and January 28, 2021 Lead Plaintiff Deadline: April 2, 2021 Learn more about your recoverable losses in IRTC: http://www.kleinstocklaw.com/pslra-1/irhythm-technologies-inc-loss-submission-form?id=12889&from=5 The filed complaint alleges that iRhythm Technologies, Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) iRhythm's business would suffer as a result of the CMS' rulemaking; (2) reimbursement rates would in fact plummet; (3) a lack of national pricing in the CMS rule and fee schedule would cause uncertainty and weakness in the Company's business; and (4) as a result of the foregoing, Defendants' public statements were materially false and misleading at all relevant times Shareholders have until April 2, 2021 to petition the court for lead plaintiff status. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. For additional information about the IRTC lawsuit, please contact J. Klein, Esq. by telephone at 212-616-4899 or click the link above. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] IRHYTHM TECHNOLOGIES: Klein Law Reminds of April 2 Deadline ----------------------------------------------------------- The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of iRhythm Technologies. There is no cost to participate in the suit. If you suffered a loss, you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. iRhythm Technologies, Inc. (NASDAQ:IRTC) Class Period: August 4, 2020 - January 28, 2021 Lead Plaintiff Deadline: April 2, 2021 The IRTC lawsuit alleges that iRhythm Technologies, Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) iRhythm's business would suffer as a result of the CMS' rulemaking; (2) reimbursement rates would in fact plummet; (3) a lack of national pricing in the CMS rule and fee schedule would cause uncertainty and weakness in the Company's business; and (4) as a result of the foregoing, Defendants' public statements were materially false and misleading at all relevant times Learn about your recoverable losses in IRTC: http://www.kleinstocklaw.com/pslra-1/irhythm-technologies-inc-loss-submission-form?id=13006&from=1 Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. If you suffered a loss during the class period and wish to obtain additional information, please contact J. Klein, Esq. by telephone at 212-616-4899 or visit the webpages provided. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] IT'S JUST LUNCH: Faces Class Action Over Alleged Fraud ------------------------------------------------------ Jennifer Kovaleski, writing for TheDenverChannel.com, reports that Elizabeth Young first saw ads for It's Just Lunch in airplane magazines. After not having luck with other online dating apps, Young, a 41-year-old school counselor, said she decided to write a check to It's Just Lunch Denver. It cost Young $2,700 for a lifetime membership and then a fee of roughly $90 per month. The dating service sells itself as an elite international matching service that has offices across the country, including in Denver. Class action lawsuit claims It's Just Lunch defrauded customers "What they say is 'It's Just Lunch is the world's No. 1 personal matchmaking service. It's personal, it's private, it's convenient, it's real.' They just forgot it's a scam," said Young, while reading the company's website. She saw the purchase as a major investment with the promise of handpicked dates. Young said the salesperson told her over the phone that she would have a few dates per month. Young said she was told, "We have so many great men I can't wait for you to meet." "I had this expectation and this excitement of meeting quality people who also invested what I did," she said. Young is one of two It's Just Lunch customers who spoke with Denver7, saying the company did not meet expectations. They're not alone, as the company has already settled one class action lawsuit and faces another. Class action lawsuit filed against the company John Balestriere is a New York-based attorney who filed a class-action lawsuit against It's Just Lunch and won. He said Young's story matches what his firm has heard from other clients. "A common trick they were taught was to be speaking to someone and at some point just turn over the clipboard and say, 'I'm sorry, I just have to stop you. I have three people who would be just perfect for you.' The idea of kind of luring people in," Balestriere said. As a part of the lawsuit and settlement agreement, It's Just Lunch agreed to pay nearly $5 million to impacted clients. The average customer received around $14. The law firm was also paid a fee of $1.5 million. "People who are signing up are busy and they have disposable income. They are very vulnerable," Balestriere said. The lawsuit called the dating service "a massive scheme to defraud tens of thousands of single professionals throughout the country." It claimed the company, "overcharged its clients" and "matches are driven entirely by monthly quota requirements." Balestriere said the most shocking thing his firm found was that in some cases, It's Just Lunch employees went on dates with female customers so that they "could at least have a date with a man." He said the company trains its employees to make the sale, and the lawsuit states the company "[r]outinely hires staff . . . who have no experience . . . whatsoever in the field of matchmaking." The suit resulted in a settlement in late 2019. "We frankly thought that was the end of it," Balestriere said. But it would end up being far from the end. "This is the worst financial decision I've ever made," Young said. Young was not a part of the settlement agreement. She said instead of getting the few dates per month the company verbally promised, she had four dates over three months. "So, mathematically, that's $3,000 for four dates," she said. And while Young does acknowledge the contract she signed only promised her one date per month, she said she believed what It's Just Lunch was selling. "I believe that the company really preys on people who -- like me, in the Denver area, especially during a pandemic -- really want connection," Young said. Another Denver client tells a similar story Joseph DeOliveira said he had a similar experience with the company. He was a single father also looking for love who said he fell for It's Just Lunch's sales pitch. "It was basically a waste of money and waste of time," DeOliveira said. "They told me that I was going to have multiple matches a month and that I was going to find people that were committed to a relationship." Instead, DeOliveira said he received "one or two dates for the thousands of dollars that I put in and it wasn't consistent." He said his matches weren't matches at all, and the women he went out with had nothing in common with him. "There were so many good reviews, I thought it was a good company," DeOliveira said. Young said she also believed those reviews and everything else she read. Both now question the accuracy of those good reviews and want to warn others trying to find love. "They are going to continue to scam people until they are brought to light," DeOliveira said. Law firm files another lawsuit against the company After Balestriere's firm settled in the original class-action lawsuit, the firm said new It's Just Lunch clients started reaching out to them with the same complaints. "It's Just Lunch is continuing to engage in very similar sounding misconduct," Balestriere said. The firm filed another class-action lawsuit against the company in November 2020, this time in California. The suit claims It's Just Lunch "continues to engage in similar misconduct" the original suit was supposed to stop. "I've been a lawyer and doing this stuff for over 20 years and I don't think I've ever seen it," Balestriere said. "They took advantage of people wanting a real relationship," said DeOliveira. It's Just Lunch responds It's Just Lunch Denver declined Denver7's request for an interview. In a lengthy statement, the company said, "The new claims in the California lawsuit are brought by two individuals. It is very disappointing and unfortunate that this matter is pending because these allegations are completely without merit. IJL intends to vigorously defend the new suit." It's Just Lunch Denver is a franchise of the company and said, "The satisfaction of our clients has been our number one priority" and that the company "cannot guarantee chemistry, long-term relationship or marriage." In It's Just Lunch Denver's statement, the company said DeOliveira "called our Denver office on February 10, 2021 requesting to continue his membership." DeOliveira confirmed to Denver7 he did reach out to the company but said in an email, "My only purpose was to inquire and confirm the facts I gave you in the interview and to express my displeasure with the service I was provided and to give them a chance to make it right." He went on to say, "I stand by what I said 100% that I believe IJL is a scam and I will not retract that statement unless I am proven wrong by their actions." [GN] JIANPU TECHNOLOGY: Bragar Eagel Reminds of April 19 Deadline ------------------------------------------------------------ Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, announces that a class action lawsuit has been filed in the United States District Court for the Southern District of New York on behalf of investors that purchased Jianpu Technology, Inc. (NYSE: JT) American Depositary Shares ("ADS") between May 29, 2018 and February 16, 2021, inclusive (the "Class Period"). Investors have until April 19, 2021 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On February 16, 2021, Jianpu announced the results of its review into "transactions carried out by the Credit Card Recommendation Business Unit" with third-party business entities. The Company concluded that previously reported revenue and associated expenses had been inflated due to "certain transactions [that] involved third-party agents (including both upstream agents and downstream suppliers) with undisclosed relationships and some transactions [that] lacked business substance." Jianpu stated that it "anticipates the total amount of overstated revenue for the fiscal years 2018 and 2019 to be approximately, RMB 90 million and RMB 164 million, respectively, representing approximately 4.5% and 10.1% of the total revenue previously reported." On this news, the Company's share price fell $0.60, or 13%, to close at $3.94 per share on February 16, 2021. The complaint, filed on February 17, 2021, alleges that throughout the Class Period defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, defendants failed to disclose to investors: (1) that certain of the Company's transactions carried out by the Credit Card Recommendation Business Unit involved undisclosed relationships or lacked business substance; (2) that, as a result, Jianpu's revenue and costs and expenses for fiscal 2018 and 2019 were overstated; (3) that there were material weaknesses in Jianpu's internal control over financial reporting; (4) that, as a result of the foregoing, the Company's fiscal 2018 Form 20-F was reasonably likely to be restated; and (5) that, as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased Jianpu ADS during the Class Period and suffered a loss, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker, Melissa Fortunato, or Marion Passmore by email at investigations@bespc.com, telephone at (212) 355-4648, or by [url="]filling+out+this+contact+form.[/url] There is no cost or obligation to you. About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit [url="]www.bespc.com[/url]. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] JR CITY PROPERTIES: Fails to Pay Overtime, Rodriguez Suit Claims ---------------------------------------------------------------- MARIO RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. JR CITY PROPERTIES, LLC, 97 BLEECKER, LLC, 39 BLEECKER LLC, 37 PATERSON LLC, 355 DANFORTH LLC, 6 POPLAR LLC, 18 POPLAR, LLC, 563 CENTRAL, LLC, 222 VAN HORNE LIMITED LIABILITY COMPANY, 1700 BERGENLINE LLC, 228 HANCOCK LLC, JUDITH SCIARRA, AND ROBERT NICK, Defendants, Case No. 2:21-cv-02562 (D.N.J., February 15, 2021) brings this complaint against the Defendant seeking equitable and legal relief for its alleged violations of the Fair Labor Standards Act, the New Jersey Wage and Hour Law, and the New Jersey Wage Payment Law. The Plaintiff was employed by the Defendants as a non-exempt handyman from in or around August 2017 until on or around March 1, 2018, and he was made a handyman and superintendent until his employment was terminated on or around October 31, 2019. The Plaintiff asserts that despite routine working more than 40 hours per week for the Defendants, he was not paid overtime compensation of one and one-half times his regular hourly rate of pay for all the hours he worked over 40 per week. Instead, he was compensated by the Defendants at the same hourly rate of pay for all hours he worked per week, including those in excess of 40 hours in a week, the Plaintiff adds. On behalf of himself and all others similarly situated employees, the Plaintiff seeks to recover all unpaid overtime wages, liquidated damages, reasonable attorneys' fees, interest, costs and disbursements, and other relief that is just and proper. The Corporate Defendants operates residential apartments buildings. They are joint employers who jointly managed, supervised, hired, fired, and controlled the Plaintiff's compensation. The Individual Defendants are officers, directors, shareholders and/or persons in control of all other Defendants, who exercises significant control over the companies' operations. [BN] The Plaintiff is represented by: Katherine Morales, Esq. KATZ MELINGER PLLC 280 Madison Ave., Suite 600 New York, NY 10016 Tel: (212) 460-0047 Fax: (212) 428-6811 E-mail: kymorales@katzmelinger.com JUUL LABS: School Boards Sue Over Unlawful Sales of E-Cigarettes ---------------------------------------------------------------- PEORIA PUBLIC SCHOOLS DISTRICT 150, HALL TOWNSHIP HIGH SCHOOL DISTRICT 502 MARION COMMUNITY SCHOOL DISTRICT 2, LA MOILLE COMMUNITY UNIT SCHOOL DISTRICT 303, Individually, and on behalf of others similarly situated v. JUUL LABS, INC., ALTRIA GROUP, INC., ALTRIA CLIENT SERVICES, INC., ALTRIA GROUP DISTRIBUTION COMPANY, NU MARK LLC, NU MARK INNOVATIONS, LTD. And ABC CORPORATIONS 1-100, Case No. 3:21-cv-00885 (N.D. Cal., Feb. 4, 2021) is a class action complaint seeking injunctive relief, abatement, and damages arising out of the injuries to their property, students, and employees caused by the Defendants' unlawful sales of e-cigarette. The Plaintiffs contend that the Defendants' marketing strategy, advertising, product design targets minors, especially teenagers, and, along with unlawful sales, will increase the likelihood that minors, like the students in their school will begin using e-cigarettes and become addicted to the Defendants' e-cigarette products and this will cause further harm to the Plaintiffs and other similarly situated. Allegedly, the Manufacturer Defendants' marketing campaigns hooked teens who had never tried traditional cigarettes on their e-cigarette products. Since 2008, cigarette smoking among Illinois high school seniors has decreased from 21% to 5% in 2018. E-cigarette use by high school seniors is higher than cigarette use was 10 years ago. Between 2016 to 2018, e-cigarette use in Illinois increased from 18.4% to 26.7% among high school seniors, a 45% increase; a 15% increase was seen among 8th grade students; and a 65% increase among 10th grade students. E-cigarettes put youth at risk for addiction and possibly worse asthma outcomes, yet almost 40% of 10th and 12th grade youth believe there is low or no risk of negative health effects. The Plaintiffs are school boards created by Article 10 of the Illinois School Code, 105. Peoria Public Schools District 150 is a public-school district, in Peoria, Peoria County, Illinois, with 12,867 students enrolled in 2019 ranging from kindergarten to twelfth grade. La Moille Community Unit School District No. 303 is a public-school district located in La Moille, Bureau County, Illinois, with 247 students enrolled in 2019 ranging from kindergarten to twelfth grade. Marion Community Unit No. 2 Schools is a public-school district located in Marion, Williamson County, Illinois with over 4,000 students enrolled in 2019 ranging from kindergarten to twelfth grade. Hall Community High School No. 502, also known as Spring Valley Hall, or HHS, is a public four-year high school, grades 9-12, with 437 students, located in Spring Valley, Bureau County, Illinois. HHS serves the communities and surrounding areas of Spring Valley, Bureau, Cherry, Dalzell, Ladd, and Seatonville. JUUL is a Delaware corporation, having its principal place of business in San Francisco, California. JUUL originally operated under the name PAX Labs, Inc. In 2017, it was renamed JUUL Labs, Inc. JUUL manufactures, designs, sells, markets, promotes and distributes JUUL e-cigarettes, JUUL pods and accessories.[BN] The Plaintiffs are represented by: Randi Kassan, Esq. Melissa Sims, Esq. Vicki Maniatis, Esq. SANDERS PHILLIPS GROSSMAN, LLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 741-5600 Facsimile: (516) 741-0128 E-mail: rkassan@thesandersfirm.com msims@thesandersfirm.com vmaniatis@thesandersfirm.com KRAFT HEINZ: Bagels Don't Contain Mozzarella Cheese, Suit Says -------------------------------------------------------------- Erin Marcinelli, individually and on behalf of all others similarly situated v. Kraft Heinz Foods Company, Case No. 7:21-cv-01075 (S.D.N.Y., Feb. 6, 2021) alleges that the Defendant's frozen pizza bagels representations are misleading because though it is labeled as containing mozzarella cheese, it actually contains a "Cheese Blend" of "Part-Skim Mozzarella Cheese" and "Modified Food Starch." Kraft Heinz manufactures, distributes, markets, labels and sells frozen pizza bagels under the Bagel Bites brand purporting to be made with real mozzarella cheese ("Product"). The relevant representations include "Made With Real Cheese," the "Real" dairy seal, "Mozzarella Cheese," "Mini Bagels With Mozzarella Cheese and Tomato Sauce," "Kosher Dairy" and "7g of Protein Per Serving." According to the complaint, reasonable consumers understand "pizza" to refer to a combination of tomato sauce, mozzarella cheese and wheat crust. In the context of a "pizza snack" where the crust is replaced with a bagel, consumers will still expect the other two elements -- tomato sauce and mozzarella cheese. The Defendant misrepresented the Product through affirmative statements, half-truths, and omissions, the suit says. The Plaintiff contends that the Defendant sold more of the Product and at higher prices than it would have in absence of this misconduct, resulting in additional profits at the expense of consumers. She adds that had she and the proposed class members known the truth, they would not have bought the Product or would have paid less for it. As a result of the false and misleading representations, the Product is sold at a premium price, approximately no less than no less than $10.99 for boxes of 72 bagel halves (56 OZ), excluding tax, compared to other similar products represented in a non-misleading way, and higher than it would be sold for absent the misleading representations, the Plaintiff adds.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cutter Mill Rd Ste 409 Great Neck, NY 11021-3104 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com KRG KINGS: Court Conditionally Certifies Class in McDonnell Suit ---------------------------------------------------------------- In the case, DARLENE McDONNELL, Plaintiff v. KRG KINGS LLC, KELLY OPERATIONS GROUP, LLC, Defendants, Case No. 2:20-CV-01060-CCW (W.D. Pa.), Judge Christy Criswell Wiegand of the U.S. District Court for the Western District of Pennsylvania granted the Plaintiff's Joint Motion to Approve Stipulation to Conditional Certification of the FLSA Collective. The Stipulation seeks to conditionally certify the case as a collective action pursuant to 29 U.S.C. Section 216(b) to include "all individuals who, during any week since July 16, 2017, have been employed as servers at Kings Family Restaurants and were paid an hourly wage below $7.25." Plaintiff McDonnell was employed as a server at the Kings Family Restaurant located in New Kensington, Pennsylvania, from 1991 until September 2019. She alleges that "in seeking to comply" with their minimum wage obligations under the Fair Labor Standards Act, the Defendants "purported to utilize a 'tip credit,'" pursuant to 29 U.S.C. Section 203(m), such that servers (including the Plaintiff) were paid "an hourly wage of $3.45 plus tips from customers." The Plaintiff further alleges that she and other servers were required to perform non-tip-generating work (including "rolling silverware; washing dishes, cleaning the ice cream bar, taking used dishes from the dining room to the back of the Restaurant, bringing clean dishes from the back of the restaurant to the dining room, cutting fruit, and cleaning the restaurant"), which she estimates amounted to "at least 30% of servers' working hours." In support of the Joint Motion to conditionally certify the collective action, the parties stipulate that there is a factual nexus between the manner in which the Defendants' alleged policy affected the Plaintiff and the Putative Collective Members. These common agreed to facts include, for example, the Plaintiff and the Putative Collective Members each worked as servers at King Family Restaurants, were classified as tipped employees for purposes of 29 U.S.C. Section 203(m)(2), were paid an hourly wage below $7.25, may have performed some amount of side work as part of their employment, and were classified as employees covered by the FLSA's minimum wage and overtime premium pay provisions. As such, the parties agree that the lenient modest factual showing standard to conditionally certify an FLSA collective for purposes of sending notice is satisfied. They further agree that the Plaintiff will not pursue her Pennsylvania Minimum Wage Act ("PMWA") claim as a class action claim under Federal Rule of Civil Procedure 23 but that the Plaintiff and any Putative Collective Members who join the case pursuant to 29 U.S.C. Section 216(b) will continue to assert PMWA claims, and the limitations period applicable to such PMWA claims is tolled as of July 16, 2017. Pursuant to the parties' Stipulation, Judge Wiegand is satisfied that that the Plaintiff and the members of the proposed collective action are similarly situated given the "lenient standard" set forth. Therefore, she ordered that the case is conditionally certified as a collective action under 29 U.S.C. Section 216(b) and will proceed as such until further order of the Court. The collective action will consist of the following: All individuals who, during any week since July 16, 2017, have been employed as servers at Kings Family Restaurants and were paid an hourly wage below $7.25. The Judge authorized the Notice of Collective Action and Consent Form filed as part of the Stipulation to be delivered or otherwise disseminated by mail. The parties will comply with the following schedule: a. No later than March 2, 2021, the Counsel for the Defendants will provide to the Collective Counsel in Excel (.xlsx) format the following information regarding all the Putative Collective Members: full names; last known mailing addresses with city, state, and zip code; and all known email addresses. b. No later than March 9, 2021, the Collective Counsel must send a copy of the Court-approved Notice and Consent Form, and postage paid return envelope to every Putative Collective Member by First Class U.S. Mail. c. No later than April 23, 2021, the Putative Collective Members will have until April 23, 2021 to return their signed Consent Forms to the Collective Counsel for filing with the Court. d. No later than April 27, 2021, the Collective Counsel will file with the Court all signed Consents to Join. e. No later than April 30, 2021, the Counsel for the parties must meet and confer and file a proposed discovery plan for the remainder of litigation. The Court will hold a telephonic status conference on May 4, 2021, at 9:00 a.m. The parties are not required to file confidential position letters in advance of the conference. In accordance with LCvR 16.2, the parties will file a completed ADR stipulation by March 2, 2021. The parties will complete ADR by May 11, 2021. A full-text copy of the Court's Feb. 16, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/53dazbmj from Leagle.com. LIBERTY HEALTCARE: Underpays Investigators, Williams Suit Claims ---------------------------------------------------------------- CRISTINE WILLIAMS, on behalf of herself and others similarly situated, Plaintiff v. LIBERTY HEALTHCARE CORPORATION and ADVANCE SOURCING CONCEPTS LLC, Defendants, Case No. 2:21-cv-00691 (E.D. Penn., February 15, 2021) is a class and collective action complaint brought against the Defendants seeking all available relief for their alleged willful violations of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. The Plaintiff has worked for the Defendants as an investigator from in or around April 2015 until in or around May 2018. According to the complaint, the Plaintiff regularly worked over 40 hours per week, approximately over 60 hours during a typical week. However, like the other similarly situated investigators, the Plaintiff did not receive any overtime pay for all hours she worked over 40 per week. The Plaintiff seeks all unpaid overtime wages and prejudgment interest, liquidated damages, litigation costs, expenses, and attorneys' fees, and other relief as the Court deems just and proper. The Corporate Defendants provide adult protective services. [BN] The Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Tel: (215) 884-2491 MCCLATCHY COMPANY: Sanchez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against The McClatchy Company, LLC. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. The McClatchy Company, LLC, Case No. 1:21-cv-01432 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The McClatchy Company, commonly referred to as simply McClatchy -- https://www.mcclatchy.com/ -- is an American publishing company incorporated under Delaware's General Corporation Law and based in Sacramento, California.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal MDL 2989: 41 Short Squeeze Class Suits Consolidated in N.D. Calif. ------------------------------------------------------------------ About 41 Actions are consolidated in MDL 2989 re: January 2021 Short Squeeze Trading Litigation in Northern District of California. The actions include: -- Hanna Kayali et al v. Robinhood Financial, LLC et al., Case No. 2:21-cv-00835 (C.D. Calif.); -- Josh Gossett et al v. Robinhood Financial, LLC et al., Case No. 2:21-cv-00837 (C.D. Calif.); -- Levi Cobos v. Robinhood Financial LLC et al., Case No. 2:21-cv-00843 (C.D. Calif.); -- Wieg v. Robinhood Financial LLC et al., Case No. 3:21-cv- 00693 (N.D. Calif.) -- Cezana v. Robinhood Financial LLC et al., Case No. 3:21- cv-00759 (N.D. Calif.); -- Cheng et al v. Ally Financial Inc. et al., Case No. 3:21- cv-00781 (N.D. Calif.), -- Curiel-Ruth v. Robinhood Securities LLC et al., Case No. 3:21-cv-00829 (N.D. Calif.); -- Moody et al v. Robinhood Financial, LLC et al., Case No. 3:21-cv-00861 (N.D. Calif.); -- Days v. Robinhood Markets, Inc. et al., Case No. 4:21-cv- 00696 (N.D. Calif.); -- Dalton v. Robinhood Securities, LLC et al., Case No. 4:21- cv-00697 (N.D. Calif.); -- KRASOWSKI et al v. Robinhood Financial LLC et al., Case No. 4:21-cv-00758 (N.D. Calif.); -- Krumenacker v. Robinhood Financial, LLC et al., Case No. 4:21-cv-00838 (N.D. Calif.); -- Feeney et al v. Robinhood Financial, LLC et al., Case No. 5:21-cv-00833 (N.D. Calif.); -- Nordeen et al v. Robinhood Financial LLC et al., Case No. 3:21-cv-00167 (S.D. Calif.); -- Daniels v. Robinhood Financial, LLC et al., Case No. 1:21- cv-00290 (D. Colo.); -- Ziegler v. Robinhood Financial LLC et al., Case No. 3:21- cv-00123 (D. Conn.); Fresa v. Robinhood Financial LLC et al., Case No. 3:21-cv- 00134 (D. Conn.); -- Diamond v. Robinhood Financial, LLC et al., Case No. 6:21- cv-00207 (M.D. Fla.); -- Schaff v. Robinhood Markets, Inc. et al., Case No. 8:21- cv-00216 (M.D. Fla.); -- Schaff v. TD Ameritrade, Inc.., Case No. 8:21-cv-00222 (M.D. Fla.); -- Perri et al v. Robinhood Markets, Inc. et al., Case No. 8:21-cv-00234 (M.D. Fla.); -- BAIRD v. ROBINHOOD FINANCIAL LLC et al., Case No. 4:21-cv- 00061 (N.D. Fla.); -- Courtney v. Robinhood Financial LLC et al., Case No. 0:21- cv-60220 (S.D. Fla.); -- Fray v. Robinhood Financial LLC et al., Case No. 0:21-cv- 60226 (S.D. Fla.); -- Juncadella v. Robinhood Financial LLC et al., Case No. 1:21-cv-20414 (S.D. Fla.); -- Scalia v. Robinhood Financial, LLC et al., Case No. 9:21- cv-80238 (S.D. Fla.); -- Gatz v. Robinhood Financial, LLC, Case No. 1:21-cv-00490 (N.D. Ill.); -- Kayali et al v. Robinhood Financial, LLC et al., Case No. 1:21-cv-00510 (N.D. Ill.); -- Lagmanson et al v. Robinhood Markets, Inc. et al., Case No. 1:21-cv-00541 (N.D. Ill.); -- Cherry v. Robinhood Financial LLC et al., Case No. 1:21- cv-00574 (N.D. Ill.); -- Hiscock v. TD Ameritrade, Inc.., Case No. 1:21-cv-00624 (N.D. Ill.); -- ZYBURA v. ROBINHOOD FINANCIAL LLC et al., Case No. 2:21- cv-01348 in (D.N.J.); -- MUNCY v. ROBINHOOD SECURITIES, LLC et al., Case No. 2:21- cv-01729 (D.N.J.); -- NOORZAIE v. ROBINHOOD MARKETS, INC. et al., Case No. 3:21- cv-01361 (D.N.J.); -- Dechirico et al v. Ally Financial Inc. et al., Case No. 1:21-cv-00677 (E.D.N.Y.); -- Nelson v. Robinhood Financial LLC et al., Case No. 1:21- cv-00777 (S.D.N.Y.); -- Williams v. Webull Financial LLC., Case No. 1:21-cv-00799 (S.D.N.Y.); -- MINNICK et al v. ROBINHOOD FINANCIAL LLC et al., Case No. 2:21-cv-00489 (E.D. Pa.); -- OMAHNE v. ROBINHOOD FINANCIAL, LLC., Case No. 3:21-cv- 00013 (W.D. Pa.); -- Ross et al v. Robinhood Financial, LLC et al., Case No. 4:21-cv-00292 (S.D. Tex.); -- Ng et al v. Robinhood Financial, LLC et al., Case No. 4:21-cv-00311 (S.D. Tex.); and -- Lavin v. Robinhood Financial LLC et al., Case No. 1:21-cv- 00115 (E.D. Va.). [BN] MENTED COSMETICS: Blind Users Can't Access Website, Slade Says -------------------------------------------------------------- LINDA SLADE, Individually and as the representative of a class of similarly situated persons v. MENTED COSMETICS, INC., Case No. 1:21-cv-01036 (S.D.N.Y., Feb. 5, 2021) alleges that the Mented failed to design, construct, maintain, and operate their Website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. According to the complaint, the Defendant is denying blind and visually-impaired persons throughout the United States with equal access to the goods and services Mented provides to their non-disabled customers through http//:www.Mentedcosmetics.com. The Defendant's denial of full and equal access to its Website, and therefore denial of its products and services offered, and in conjunction with its physical locations, is a violation of Plaintiff’s rights under the Americans with Disabilities Act, the suit says. The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read Website content using his computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision; others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. Mented Cosmetics controls and operates Mentedcosmetics.com. in New York State and throughout the United States. Mentedcosmetics.com is a commercial Website that offers products and services for online sale. The online store allows the user to take a Shade Quiz, browse and learn about cosmetics products, make purchases, and perform a variety of other functions.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Telephone: (917) 373-9128 E-mail: ShakedLawGroup@gmail.com MERIDIAN BIOSCIENCE: Pomerantz Law Announces Securities Class Suit ------------------------------------------------------------------ Pomerantz LLP is investigating claims on behalf of investors of Meridian Bioscience, Inc. ("Meridian" or the "Company") (NASDAQ: VIVO). Such investors are advised to contact Robert S. Willoughby at newaction@pomlaw.com or 888-476-6529, ext. 7980. The investigation concerns whether Meridian and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. On February 16, 2021, Meridian issued a press release "provid[ing] an update on its application for Emergency Use Authorization (EUA) with the U.S. Food and Drug Administration (FDA) for the SARS-CoV-2 molecular diagnostic test on its Revogene(R) platform." The press release advised investors that "[i]n its ongoing discussion with the FDA, late in the day on February 12, 2021, the Company received further correspondence requesting additional information on the SARS-CoV-2 molecular diagnostic test on its Revogene(R) platform" and "has elected to place shipments of the SARS-CoV-2 test kits on hold while it continues to work with the FDA." On this news, Meridian's stock price fell $3.70 per share, or 12.41%, to close at $26.12 per share on February 16, 2021. 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] MONARCH INVESTMENT: Turner Suit Stayed Pending Bid to Compel Ruling ------------------------------------------------------------------- In the case, DAVID TURNER, Plaintiff v. MONARCH INVESTMENT & MANAGEMENT GROUP, LLC., Defendant, Case No. 2:20-cv-3997 (S.D. Ohio), Magistrate Judge Elizabeth A. Preston Deavers of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted the Defendant's Motion to Stay pending ruling on the Defendant's Motion to Compel Arbitration and to Dismiss. Plaintiff Turner filed a Collective and Class Action Complaint on Aug. 6, 2020, against Defendant Monarch, seeking to collect allegedly unpaid overtime compensation and other unpaid compensation from Monarch under the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq., and the Ohio Minimum Fair Wage Standards Act, O.R.C. Chapter 4111. On Sept. 22, 2020, Monarch filed the Defendant's Motion to Compel Arbitration and to Dismiss, or in the Alternative Stay, This Action, generally arguing that the Plaintiff entered into an agreement to arbitrate any and all disputes he may have with Monarch, including the claims raised in the case. It argued that, as a result, the Court should dismiss the Plaintiff's case with prejudice, or in the alternative stay the case pending arbitration. The Motion to Compel has been fully briefed and will be decided by separate order. On Dec. 15, 2020, Monarch filed the subject Motion to Stay, generally arguing that until the Court resolves the threshold issue of whether this Court or arbitration is the appropriate forum for the Plaintiff's claims, it is most efficient and appropriate to pause discovery, motion practice, and any other further litigation. Specifically, it argues that it would be a waste of resources for the Court to oversee discovery only to then decide that the Plaintiff's claims are subject to arbitration, and that no discovery is necessary to answer whether the case is properly before the Court. Monarch also highlights that the case is at its "procedural infancy," and argues that a stay would not undermine any proceedings to date. It further argues the Plaintiff would not suffer undue prejudice from a stay, that a stay would simplify the issues in the case, and that a stay manifestly would reduce the litigation burden for all parties and the Court. The Plaintiff opposes Monarch's request, generally arguing that the Motion to Stay should be denied because it is not highly likely that the Motion to Compel will be granted, the Defendant has no compelling reason to stay the proceedings, a stay would unduly prejudice him, and a stay would not reduce the litigation burden or simplify the central issue in the case. In Reply, Monarch generally argues that the Plaintiff misstates the applicable standards governing the Court's consideration of a stay, needlessly rehashes arguments concerning Monarch's underlying Motion to Compel Arbitration, and offers no reasonable basis to disregard the arguments Monarch presented as to why a stay is an appropriate and prudent exercise of the Court's discretion. Judge Deavers finds that Monarch has demonstrated good cause for granting a stay of discovery pending resolution of the Motion to Compel. Monarch has met its burden of showing that it is entitled to a stay of discovery. The Judge finds there to be no risk of prejudice to the Plaintiff regarding the statute of limitations. She also is not moved by the Plaintiff's purely speculative suggestion that the "passage of time" would prejudice him. Accordingly, she rejects his arguments that he will be unduly prejudiced or tactically disadvantaged by a further stay of discovery. The Judge also agrees with Monarch that a further stay would simplify the issues in the case and reduce the burden of litigation on the parties and the Court. It does not serve the parties' or the Court's best interests to inject discovery issues into the case at this point, especially given the risk that at least some (if not all) of the "progress" made in discovery would be wasted should the Motion to Compel be granted. For the foregoing reasons, Judge Deavers finds that Monarch has carried its burden to show that a stay of discovery is appropriate under the circumstances presented in the case. She, therefore, concludes that a stay is warranted, pending resolution of the Defendant's Motion for Compel. She granted the Defendant's Motion to Stay. All discovery, motion practice, and further litigation in the case will continue to be stayed pending resolution of the Defendant's Motion to Compel. In the event that the Court denied the Motion to Compel, the Court will set a status conference by separate order so that the parties can discuss the tolling of the Plaintiff's claims and set a discovery schedule. A full-text copy of the Court's Feb. 12, 2021 Opinion & Order is available at https://tinyurl.com/19rsnjk5 from Leagle.com. MRS BPO: Milam Sues Over Unsolicited Phone Calls & Text Messages ---------------------------------------------------------------- Flavio Milam, individually and on behalf of all others similarly situated v. MRS BPO, LLC, Case No. 1:21-cv-00119-LY (W.D. Tex., Feb. 4, 2021) contends that the Defendant promotes and markets its merchandise, in part, by sending unsolicited phone calls and text messages to wireless phone users, in violation of the Telephone Consumer Protection Act. According to the complaint, on December 6, 2020, MRS BPO began sending the Plaintiff text messages to his cellular telephone ending in "9275", from (856) 245-2532 and other automated phone numbers. On December 15, 2020, the Defendant allegedly sent the Plaintiff collection calls from phone number 833-388-0571 seeking to collect a balance allegedly incurred for personal purposes from an MRS employee ID: ZB, about account number 287436404. The Plaintiff contends that the collection calls were confusing to the Plaintiffs and is likely to be misconstrued by the "least sophisticated consumer" since it is open to more than one reasonable interpretation, at least one of which is inaccurate. The Plaintiff appears pro se. MRS BPO is a debt collection agency.[BN] NAGOYA INC: Fails to Pay Overtime Pay, Jiang Suit Alleges --------------------------------------------------------- LICHUN JIANG, individually and on behalf of all others similarly situated, Plaintiff v. NAGOYA INC.; NEW NAGOYA, LLC; NEW NAGOYA, INC d/b/a NAGOYA SUSHI & HIBACHI; and WEI LIN, Defendants, Case No. 3:21-cv-00121-KHJ-MTP (D. Miss., Feb. 12, 2021) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Jiang was employed by the Defendants as cook. Nagoya Inc. owns and operates a restaurant in Madison, Mississippi. [BN] The Plaintiff is represented by: Nick Norris, Esq. WATSON & NORRIS, PLLC 1880 Lakeland Drive, Suite G Jackson, MS 39216 Telephone: (601) 253-1179 E-mail: nick@watsonnorris.com NATURE HILLS: Williams Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Nature Hills Nursery, Inc. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Nature Hills Nursery, Inc., Case No. 1:21-cv-01489 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Nature Hills Nursery -- https://www.naturehills.com/ -- is America's number 1 online plant nursery offering trees, shrubs & plants.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal NEPTUNE WELLNESS: Pomerantz Law Announces Securities Class Action ----------------------------------------------------------------- Pomerantz LLP is investigating claims on behalf of investors of Neptune Wellness Solutions Inc. ("Neptune" or the "Company") (NASDAQ: NEPT). Such investors are advised to contact Robert S. Willoughby at newaction@pomlaw.com or 888-476-6529, ext. 7980. The investigation concerns whether Neptune and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. On February 15, 2021, Neptune announced disappointing financial results for the third quarter of the Company's fiscal year 2021, missing analyst expectations. Among other results, Neptune reported third quarter revenues of CA$3.32 million and a net loss of CA$73.8 million, down 63.81% and over 1,000% year-over-year, respectively. Neptune attributed the net loss, in part, to a CA$35.6 million impairment of goodwill and a CA$2.1 million impairment of "property, plant and equipment and right-of-use assets related to the acquisition of SugarLeaf in July 2019," as well as accelerated amortization of CA$13.95 million "also related to the SugarLeaf acquisition." Additionally, the Company disclosed that its "[g]ross margin declined to a loss of 268.3%," which included a non-cash CA$7.39 million "write-down of inventory and deposits to reflect their net realizable value." On this news, Neptune's common share price fell $0.86 per share, or 30.71%, to close at $1.94 per share on February 16, 2021. 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] NESTLE USA: Coubaly Suit Alleges Child Labor and Trafficking ------------------------------------------------------------ ISSOUF COUBALY; SIDIKI BAMBA; TENIMBA DJAMOUTENE; OUDOU OUATTARA; OUSMANE OUATTARA; ISSOUF BAGAYOKO; AROUNA BALLO; and MOHAMED TRAORE, individually and on behalf of all others similarly situated, Plaintiffs v. NESTLE U.S.A.; CARGILL INCORPORATED; CARGILL COCOA; BARRY CALLEBAUT USA LLC; MARS, INCORPORATED; MARS WRIGLEY CONFECTIONARY; OLAM AMERICAS; INC.; HERSHEY COMPANY; MONDELEZ INTERNATIONAL, INC; and CORPORATE DOES 1-10, Defendants, Case No. 1:21-cv-00386 (D.D.C., Feb. 12, 2021) alleges violation of the Trafficking Victims Protection Reauthorization Act ("TVPRA"). The Plaintiffs allege in the complaint that the Defendants profited from the forced labor of children performing hazardous work harvesting cocoa for the Defendants. They further assert that the Defendants have engaged in various schemes to mislead the public by explicitly promising to "phase out" their use of forced child labor and ultimately stop, but the reality is they continue to profit from the labor of millions of children harvesting cocoa. Nestle USA, Inc. produces and distributes nutritious food and beverage products. The Company offers bakery, chocolates, confectionery, snacks, coffee, fruit and vegetable juices, ice creams, and frozen food products. [BN] The Plaintiffs are represented by: Terrence Collingsworth, Esq. INTERNATIONAL RIGHTS ADVOCATES 621 Maryland Ave NE Washington, D.C. 20002 Telephone: (202) 543-5811 E-mail: tc@iradvocates.org NEW HO WAH: Juracan Seeks Minimum, Overtime Wages Under FLSA, NYLL ------------------------------------------------------------------ HECTOR MIGUEL JURACAN QUINO, individually and on behalf of others similarly situated v. NEW HO WAH CHINESE TAKE OUT INC. (D/B/A NEW HO WAH), DONG LIU and ZHEN LIN, Case No. 1:21-cv-00648 (E.D.N.Y., Feb. 5, 2021), seeks unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law as well as the "spread of hours" and overtime wage orders of the New York Commissioner of Labor, including applicable liquidated damages, interest, attorneys' fees and costs. The Plaintiff contends that he was required to spend a considerable part of his work day performing non-tipped duties, including cooking rice, washing dishes, taking out the garbage, sweeping and mopping, twisting and tying up cardboard boxes, stocking deliveries, cleaning the bathroom, cleaning the windows and refilling the refrigerator with sodas ("non-tipped duties"). He adds that he worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay him, appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium, the Plaintiff alleges. Plaintiff Juracan was employed as a delivery worker, cook and ostensibly as a dishwasher at the Defendants' restaurant. The Defendants own, operate, or control a Chinese Restaurant, located at 42-01 Broadway, Long Island City, New York under the name "New Ho Wah".[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: faillace@employmentcompliance.com NEW YORK: 2nd Circuit Appeal Filed in Gulino Suit re Alford ----------------------------------------------------------- Defendant Board of Education of the City School District of the City of New York filed an appeal from the District Court's Judgment dated January 13, 2021, entered in the lawsuit styled GULINO, ET AL. v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Case No. 96-cv-8414, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the Plaintiffs, a group of African-American and Latino teachers in the New York City public school system, alleged that the Defendant, the Board of Education of the City School District of the City of New York, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., by requiring Plaintiffs to pass certain racially discriminatory standardized tests in order to obtain a license to teach in New York City public schools. Judge Constance Baker Motley, to whom the case was originally assigned, certified the plaintiff class on July 13, 2001, pursuant to Federal Rule of Civil Procedure 23(b)(2). On December 5, 2012, the Court decertified the Plaintiff class to the extent it sought damages and individualized injunctive relief in light of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). The class survived, however, to the extent Plaintiffs sought relief that may be awarded under Rule 23(b)(2), including a declaratory judgment regarding liability and class-wide injunctive relief. The Defendant seeks a review of the Court's Judgment dated January 13, 2021, classifying Allie Alford as a member of the Plaintiff class in this action, and holding that she is entitled to monetary and injunctive relief from Defendant as compensation for the injuries she suffered as a result of what the Court found to be the Defendant's discrimination. The appellate case is captioned as In re: New York City Board of Education, Case No. 21-359, in the United States Court of Appeals for the Second Circuit, February 18, 2021.[BN] Plaintiff-Appellee Allie Alford is represented by: Joshua S. Sohn, Esq. STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038 Telephone: (212) 806-1245 E-mail: jsohn@stroock.com Defendant-Appellant Board of Education of the City School District of the City of New York is represented by: James Edward Johnson, Esq. CORPORATION COUNSEL NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 356-2500 NIAGARA BOTTLING: Awarded $98K in Counsel Fees, Costs in Frompovicz ------------------------------------------------------------------- In the case, STANLEY F. FROMPOVICZ, Plaintiff v. NIAGARA BOTTLING, LLC, ICE RIVER SPRINGS WATER CO, INC., AND JAMES J. LAND, JR., Defendants, Civil Action No. 18-0054 (E.D. Pa.), Judge Wendy Beetlestone of the U.S. District Court for the Eastern District of Pennsylvania awarded: (i) Niagara $98,194.84 in attorneys' fees and $27.45 in costs; and (ii) Frompovicz $12,200 in attorneys' fees and $190.29 in costs. As detailed in an opinion and order dated Oct. 16, 2020, the Court granted Plaintiff Frompovicz and Defendant Niagara's motions to enforce against Defendant Land the parties' Settlement Agreement. The order also granted Frompovicz's and Niagara's requests for attorneys' fees and costs incurred in litigating that motion. Judge Beetleston determines the amount to be paid. The basis of Land's duty to pay the attorneys' fees and costs of Frompovicz and Niagara is the fee-shifting provision in the parties' Settlement Agreement. Pursuant to that agreement, "in any action to enforce the terms of the Agreement (the Enforcement Action), including any action to recover damages or indemnity for any violations therein, the prevailing party of the Enforcement Action will be entitled to recover reasonable attorneys' fees and disbursements in addition to costs of suit." There is no dispute that Frompovicz and Niagara were the prevailing parties in the underlying motion to enforce the Settlement Agreement. However, the parties disagree on what is encompassed by the language "any action to enforce the terms of this Agreement." Niagara requests fees from Feb. 24, 2020--when Land refused to execute and requested edits to the Settlement Agreement after the parties had reached a supposedly final agreement--through the filing of the petition for fees. Niagara's itemized request therefore includes time its attorneys spent in informal negotiations with Land as well as formal mediation before Magistrate Judge Lloret before the motion to enforce was filed on Aug. 11, 2020. Niagara argues that these were all direct actions to enforce the agreement. Likewise, although Frompovicz does not discuss the meaning of "any action," he requests fees beginning on March 6, 20202 through the filing of the request for fees. Land, on the other hand, contends that the only "action to enforce the terms of this Agreement" is the motion to enforce the settlement agreement. Consequently, he argues that neither party is entitled to fees incurred outside the preparation, filing, and litigation of said motion, including negotiation, mediation, and the drafting of the request for fees. Under the plain meaning of "any action to enforce the terms of this Agreement," in the context of the fee-shifting provision in the parties' Settlement Agreement, the action at issue is the motion to enforce the Settlement Agreement. Judge Beetlestone holds that while Niagara and Frompovicz were the prevailing parties on the motion to enforce, negotiation and mediation are attempts to avoid adversarial legal actions that do not typically produce a "prevailing party" nor "costs of suit." The Court's October 16, 2020 order, which granted the request for attorneys' fees "incurred in litigating this motion," confirms this understanding. On the other hand, Frompovicz and Niagara are entitled not only to attorneys' fees and costs associated with the preparation and filing of their motions to enforce the agreement, but also to recover the reasonable fees and costs incurred in preparing and filing their requests for costs and fees. The additional reasonable fees and costs incurred in the latter step are a necessary part of the enforcement action and therefore covered by the terms of the Settlement Agreement. Niagara requests $111,861.90 in attorneys' fees incurred in preparing and litigating the motion to enforce the Settlement Agreement, which is the product of 176 hours billed by three attorneys and one paralegal. It also requests $27.45 for the cost of delivering copies of its motion and briefs to Land. Finally, it requests $21,454.58 for the 34.5 hours the same legal team spent preparing and filing the request for fees. The Judge finds that when the parties entered the Settlement Agreement, including the fee-shifting provision, Land agreed to pay the attorneys' fees and costs of the opposing parties should they succeed in an enforcement action against him. In entering this agreement after years of complex litigation, he knew or should have known that he was agreeing to compensate experienced commercial litigation attorneys selected by the opposing parties at the reasonable rate charged for comparable disputes. Land does not challenge Niagara's evidence regarding the significant experience and professional accolades of the attorneys involved, nor offer a rationale for why the 2018 CLS fee schedule would be a more reasonable benchmark than the actual rates charged to Niagara. Accordingly, Niagara is entitled to reimbursement at the reasonable rate that it has paid its attorneys. There is a need, however, to reduce the compensable time spent on the enforcement action in that it was not reasonable under the circumstances, the Judge holds. She reduced $90,034.65 by 10%, or $9,003.47, to $81,031.18. She says the hours expended on a relatively straightforward motion seeking to enforce the Settlement Agreement were unreasonably excessive and duplicative. The Judge also reduced the additional $21,454.58 Niagara requests for preparing and filing the request for fees by 20%, to $17,163.66. She finds that the number hours spent on compiling the attorneys' fees documentation and related briefing--34.5 hours--is excessive in consideration of the simplicity of the issues involved and the administrative nature of compiling the attorneys' hours into a table. Moreover, Niagara derived a lesser pecuniary benefit from succeeding on the request for fees as it will ultimately be denied over 40% of the attorneys' fees requested. In sum, Niagara will be awarded $81,031.18 in attorney's fees incurred in litigating the motion to enforce the settlement agreement, $17,163.66 in attorney's fees incurred in preparing and filing its request for fees--a total of $98,194.84 in fees--and $27.45 in costs. Frompovicz requests attorneys' fees for 39.5 hours at a rate of $500 per hour, for a total of $19,750. Two attorneys worked on this matter on behalf of Frompovicz at the same hourly rate: David Stanoch incurred $10,250 in attorneys' fees for 20.5 hours billed between March 6, 2020 and Sept. 3, 2020, and Ken Grunfeld incurred $9,500 in fees for 19 hours billed between Aug. 25, 2020 and the filing of the petition for fees. In addition, Frompovicz requests $190.29 in reimbursement for out-of-pocket costs, including electronic research, copying, and mailing. Land does not challenge the hourly rate or the costs, but rather argues that the entire request should be denied because it is not supported by sufficient evidence. Based on the evidence provided, Judge Beetestone finds that Frompovicz's request is subject to two reductions. First, Frompovicz's request includes time spent on several non-compensable activities such as negotiation and mediation before the motion to enforce was filed on Aug. 11, 2020. However, the documentation provided for this period does not delineate how the 20.5 hours were spent and the attorney at issue has since left the firm. Absent time entries to analyze, the Court will exercise its discretion to reduce the 20.5 hours billed by Stanoch by 20% to 16.4 hours. Second, 11 hours must be struck from Grunfeld's time sheet as those hours relate to the refiling of the parties' briefs and exhibits. There are therefore only eight compensable hours for the time period between Aug. 25, 2020 and the filing of the request for attorneys' fees and costs. This leaves 24.4 cumulative billed hours between the two attorneys. As the rate and conservative number of hours are reasonable considering Frompovicz's ultimate success on the enforcement action and request for fees, Frompovicz will be awarded these hours at the requested rate of $500 per hour, for a total of $12,200, in addition to the uncontested $190.29 in costs. As set forth, Niagara is awarded $98,194.84 in attorneys' fees and $27.45 in costs. Frompovicz is awarded $12,200 in attorneys' fees and $190.29 in costs. An appropriate order follows. A full-text copy of the Court's Feb. 16, 2021 Memorandum Opinion is available at https://tinyurl.com/131gouz9 from Leagle.com. OATH INC: Sanchez Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Oath Inc. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. Oath Inc., Case No. 1:21-cv-01441 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Oath Inc. a subsidiary of Verizon Media -- https://www.verizonmedia.com/ -- provides advertisement solutions. The Company offers video, mobile, content marketing, insight, and publication services.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal ORTHOPEDIATRICS CORP: Rosen Law Investigates Securities Claims -------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, continues to investigate potential securities claims on behalf of shareholders of OrthoPediatrics Corp. (NASDAQ: KIDS) resulting from allegations that OrthoPediatrics may have issued materially misleading business information to the investing public. SO WHAT: If you purchased OrthoPediatrics securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to http://www.rosenlegal.com/cases-register-2015.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. WHAT IS THIS ABOUT: On December 2, 2020, Culper Research published a report entitled "OrthoPediatrics Corp. (KIDS): Even Channel Stuffing Can't Save This Company[.]" The report alleged that OrthoPediatrics has "engaged in a channel stuffing scheme that has systematically and significantly overstated revenues." On this news, the Company's stock price fell $5.40 per share, or 12%, to close at $39.35 per share on December 3, 2020. Then on December 14, 2020, Culper Research published a second report entitled "OrthoPediatrics Corp. (KIDS): Pleading the Fifth" in which it concluded that the Company "is a structurally broken business which has relied on nefarious tactics to inflate its reported revenues." WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience or resources. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. 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 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020 founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] PARDHAR LLC: Perkey Suit Seeks OT Premiums for Home Care Providers ------------------------------------------------------------------ COREY PERKEY, LYNDSAY ALLRED, SONYA GARCIA, and ANTHONY RAMSEY, Individually and on behalf of similarly situated current and former employees v. PARDHAR, LLC d/b/a HOMEWATCH CAREGIVERS, DUNCAN EMPLOYMENT AND RESIDENTIAL SERVICES, LLC, WESTCO LIFECARE SERVICES, LLC, NURTURING INDEPENDENCE, INC, BRANDIE MASTON, TRACY WALTER, JESSICA DUNCAN, and AARON DUNCAN, Individually, Case No. 3:21-cv-00037 (E.D. Tenn., Feb. 4, 2021) arises under the Fair Labor Standards Act of 1938 and Tennessee common law seeking to recover overtime premium. The Plaintiffs contend that the Defendants never paid them the overtime premium despite the Defendants' knowledge or requirement that each of their home care providers worked substantially more than forty hours in a given week. They add that in an intentional, willful, and concerted effort to avoid the costs of overtime wages, state/federal withholdings, workers' compensation protection, health insurance premiums, and other mandated costs employers ordinarily absorb, the Defendants used fraudulent practices to manipulate Plaintiffs' working hours, obfuscate the payment of overtime, and flat out lie regarding the withholding of certain benefits, such as insurance premiums and child support remittance. Each Plaintiff does work or has worked for Defendants as a home care provider. They performed their duties at the homes of the Defendants' clients. The Defendants WestCo, Nurturing Independence, and Homewatch are home care staffing agencies. Defendant Duncan LLC is a non-medical home care staffing agency.[BN] The Plaintiffs are represented by: Jesse D. Nelson, Esq. NELSON LAW GROUP, PLLC 10263 Kingston Pike Knoxville, TN 37922 Telephone: (865) 383-1053 E-mail: jesse@NLGattorneys.com PEACOCK TV: Sanchez Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Peacock TV LLC. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. Peacock TV LLC, Case No. 1:21-cv-01437 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Peacock -- https://www.peacocktv.com/ -- is an American over-the-top video streaming service owned and operated by the Television and Streaming division of NBCUniversal, a subsidiary of Comcast.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal PENUMBRA INC: Bernstein Liebhard Reminds of March 16 Deadline ------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion in a securities class action lawsuit that has been filed on behalf of investors who purchased or acquired the securities of Penumbra, Inc. ("Penumbra" or the "Company") (NYSE:PEN) from August 3, 2020 through December 15, 2020 (the "Class Period"). The lawsuit filed in the United States District for the Northern District of California alleges violations of the Securities Exchange Act of 1934. If you purchased Penumbra securities, and/or would like to discuss your legal rights and options please visit Penumbra Shareholder Class Action Lawsuit or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. The complaint alleges that during the Class Period defendants made false and/or misleading statements and/or failed to disclose: (1) that the Jet 7 Xtra Flex had known design defects that made it unsafe for its normal use; (2) that Penumbra did not adequately address the risk of the Jet 7 Xtra Flex causing serious injury and deaths, which had in fact already occurred; (3) that the Jet 7 Xtra Flex was likely to be recalled due to its safety issues; and (4) as a result, Penumbra's public statements were materially false and misleading at all relevant times. On December 8, 2020, Quintessential Capital Management ("QCM") published a report questioning the validity and independence of the scientific research supporting the Jet 7 Xtra Flex's safety, and accused the Company of using a fake author to publish studies regarding the purported safety and efficacy of its products. In response, Penumbra's stock price fell by 9%, $224.02 per share on December 7, 2020, to $204.70 per share on December 8, 2020, a decline of $19.95 per share. On December 15, 2020, after the markets closed, the Company issued a press release announcing that it was issuing an "urgent" recall of the Jet 7 Xtra Flex because the catheter "may become susceptible to distal tip damage during use" which could lead to injury or death. On a conference call held the same day, the Company's CEO acknowledged that the product's design "ma[de] the catheter susceptible to failure in certain scenarios" and that the Company's "steps to ensure the safe use of the product...were not able to fully address the risks." In response, Penumbra's stock price fell by 7%, from $188.82 per share on December 15, 2020 to $174.98 per share on December 16, 2020, a decline of $13.84 per share. If you wish to serve as lead plaintiff, you must move the Court no later than March 16, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Penumbra securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/penumbrainc-pen-shareholder-class-action-lawsuit-fraud-stock-345/apply/ or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Matthew E. Guarnero Bernstein Liebhard LLP https://www.bernlieb.com (877) 779-1414 MGuarnero@bernlieb.com [GN] PENUMBRA INC: Kahn Swick Reminds Investors of March 16 Deadline --------------------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors of pending deadline in the following securities class action lawsuit: Penumbra, Inc. (PEN) Class Period: 8/3/2020 - 12/15/2020 Lead Plaintiff Motion Deadline: March 16, 2021 SECURITIES FRAUD To learn more, visit https://www.ksfcounsel.com/cases/nyse-pen/ If you purchased shares of the above company and would like to discuss your legal rights and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner, Lewis Kahn, toll-free at 1-877-515-1850, via email (Lewis.Kahn@KSFcounsel.com), or via the case links above. If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About KSF KSF, whose partners include former Louisiana Attorney General Charles C. Foti, Jr., is one of the nation's premier boutique securities litigation law firms. KSF serves a variety of clients - including public institutional investors, hedge funds, money managers and retail investors – in seeking to recover investment losses due to corporate fraud and malfeasance by publicly traded companies. KSF has offices in New York, California and Louisiana. [GN] PICSART INC: Sanchez Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against PicsArt, Inc. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. PicsArt, Inc., Case No. 1:21-cv-01438 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. PicsArt -- https://picsart.com/ -- is a San Francisco, California and Yerevan, Armenia-based technology company that develops the PicsArt suite of online photo and video editing applications, with a social creative community.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal PILLPACK LLC: Class & Subclass in Williams TCPA Suit Certified -------------------------------------------------------------- In the case, AARON WILLIAMS, Plaintiff v. PILLPACK LLC, Defendant, Case No. C19-5282 TSZ (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, granted in part the Plaintiff's Motion for Class Certification. Defendant PillPack is a full-service pharmacy that delivers medications in multi-dose packaging to patients' homes. In March 2018, the Defendant engaged a company called Performance Media Strategies, Inc. to telemarket its services. The following month, it executed a PillPack Insertion Order ("Agreement"), hiring Performance Media as an independent contractor to generate live customer leads and transfer those leads to its call center ("Campaign"). Around that time, the Defendant was purportedly informed that the calls "would be placed using a prerecorded voice system which is sometimes described as an Avatar or an IVR (interactive voice response) system." The Defendant was also purportedly informed that a third party--a company called Prospects DM--would place the calls. Throughout the Campaign, from March 2018 to June 2019, Performance Media engaged Prospects DM to place calls and transfer them to Defendant's call center. Prospects DM obtained the called parties' contact information from three companies: Little Brook Media, Sharecare Inc., and Yodel Technologies LLC. Yodel obtained at least some of that contact information from a fourth company, Fluent Inc. Those companies collectively operate dozens of websites on which individuals may consent to be called by the companies or their "Marketing Partners." In March 2019, Plaintiff Williams received a prerecorded call advertising a pharmacy service on his cell phone and was transferred to the Defendant's call center. After the Plaintiff asked for the Defendant's name and address, he was transferred to its customer care line. The Plaintiff told the Defendant's employee to "please stop calling people with the automated phone call" and that "it's not appropriate to call people on their cell phones for marketing purposes." He also warned that the Defendant "is on notice that if he receives another phone call, he will sue." According to the Defendant, when the Plaintiff was transferred over to the customer care team, it lost the ability to track the Plaintiff. In April 2019, the Plaintiff received another call on his cell phone, which appeared to repeat the same prerecorded message he had received earlier. The Defendant maintains that the Plaintiff's number is associated with a person named Michael Morgan, who consented to receive calls to that number on one of Yodel's websites in April 2018. The Plaintiff testified that he did not enter or authorize anyone else to enter his cell number or the name Michael Morgan into that website. He also submitted evidence that he has used that cell number continuously since 2008, and that he registered the number on the National Do Not Call Registry ("DNC Registry") in late 2010. The Plaintiff filed a class action complaint against the Defendant, asserting two causes of action under the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. Section 227 et seq.: (1) a violation of Section 227(b)(1) for calls made using an automatic telephone dialing system ("ATDS") or an artificial or prerecorded voice and (2) a violation of Section 227(c) for calls placed to numbers listed on the DNC Registry. In July 2020, the Plaintiff filed the Motion for Class Certification. He seeks to certify a proposed class and transfers subclass as follows: a. Class: All persons or entities within the United States who between March 13, 2018 and June 16, 2019, received a non-emergency telephone call promoting goods or services on behalf of PillPack, LLC, as part of the PillPack Performance Media campaign: (i) to a cellular telephone number through the use of an automatic telephone dialing system or an artificial or prerecorded voice; or (ii) to a cellular or residential telephone number that had been registered on the national Do Not Call Registry for at least 31 days and who received more than one call as part of the PillPack Performance Media campaign within any twelvemonth period. b. Transfers Sub-Class: All Class members who were transferred at least once to a PillPack call center on the DNIS [Dialed Number Identification Service] 866-298-0058. The Court deferred ruling on the Motion, after requesting that the parties file supplemental briefing; and it granted the parties' motions to file supplemental evidence in support of, or in opposition to, the Motion. Judge Zilly finds that Rule 23(a)'s requirements--numerosity, commonality, typicality, and adequacy--are satisfied. Among other things, he concludes that resolving certain liability issues with respect to the Plaintiff's claims will not necessarily resolve such issues with respect to the claims of the proposed Class members whose contact information was obtained from Little Brook Media or Sharecare. If the Class is limited to the called parties whose contact information was obtained from Yodel or Fluent, like the Plaintiff, the Defendant's consent defense would presumably be the same or similar for all Class members. The therefore narrows the Plaintiff's proposed class definition to include only the called parties whose telephone number was obtained by Prospects DM from Yodel or Fluent. He appoints Plaintiff Aaron Williams to serve as the Class Representative. Judge Zilly also finds that Rule 23(b)(3)'s requirements--predominance and superiority--are satisfied. He concludes that the Plaintiff has identified several common issues that are susceptible to classwide proof, and which have the capacity to generate common answers that will drive the resolution of this action. The individualized issues raised by the Defendant do not threaten to overwhelm these common issues. To the extent Defendant develops evidence in support of its defenses, necessitating individual inquiry, the Court may take remedial action, including decertifying the Class. The Judge further concludes that a class action is superior to the other available methods for adjudicating the case. Finally, the Defendant does not challenge the appointment of the Plaintiff's counsel as the Class Counsel. After reviewing the counsels' qualifications and their ability to fairly and adequately represent the interests of the Class, Judge Zilly approves Terrell Marshall Law Group PLLC, Smith & Dietrich Law Offices PLLC, and Paronich Law PC as the Class Counsel. For the foregoing reasons, Judge Zilly granted in part the Plaintiff's Motion to Certify Class. Under Rule 23(c), he certified the following amended Class and Subclass: a. Class: All persons or entities within the United States, whose telephone number was obtained by Prospects DM from Yodel Technologies, LLC or Fluent, Inc., and who between March 13, 2018, and June 16, 2019, received a non-emergency telephone call promoting goods or services on behalf of PillPack, LLC, as part of the PillPack Performance Media campaign: (a) to a cellular telephone number through the use of an automatic telephone dialing system or an artificial or prerecorded voice; or (b) to a cellular or residential telephone number that had been registered on the national Do Not Call Registry for at least 31 days and who received more than one call as part of the PillPack Performance Media campaign within any twelvemonth period. b. Transfers Sub-Class: "All Class members who were transferred at least once to a PillPack call center on the Dialed Number Identification Service at:866-298-0058." Plaintiff Williams is appointed as the Class Representative, and Terrell Marshall Law Group PLLC, Smith & Dietrich Law Offices PLLC, and Paronich Law PC are appointed as the Class Counsel. The Judge denied the Plaintiff's Motion to Strike. The Clerk is directed to send a copy of the Order to all counsel of record. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/4sa3ha29 from Leagle.com. PREFERRED PHYSICIANS: Sharfman Sues Over Unsolicited Fax Ads ------------------------------------------------------------ MARC IRWIN SHARFMAN, M.D., P.A., individually and on behalf of all others similarly situated, Plaintiff v PREFERRED PHYSICIANS INSURANCE AGENCY, INC., Defendant, Case No. 121397508 (Fla. 13th Jud. Cir. Ct., February 15, 2021) brings this complaint against the Defendant to challenge its alleged unlawful practice of faxing unsolicited advertisements in violation of the Telephone Consumer Protection Act. The Plaintiff claims that the Defendant sent him an unsolicited facsimile commercial advertisement on or about December 9, 2020 using a telephone facsimile machine, computer or other device, in an attempt to promote its insurance brokerage services with newly reduced rate of Medical Malpractice coverage. Allegedly, the Defendant did not obtain the Plaintiff's "prior express invitation or permission" to receive fax advertisement. Purportedly, the Defendant faxed or caused to be faxed to at least fifty recipients' telephone facsimile machines at the same and/or unsolicited facsimiles without prior express invitation or permission, and without the compliant opt-out language as required by 47 U.S.C. Section 227(b)(1)(C) and 47 C.F.R. Section 64.1200(a)(4), thereby precluding the Defendant from successfully invoking the affirmative defense of established business relationship. The Defendant's unsolicited fax advertisement has caused damages to the Plaintiff and other similarly situated individuals by improperly and unlawfully converting their fax machines, toner, paper, to its own use in order send unsolicited fax advertisement, the suit says. The Plaintiff seeks an injunction prohibiting the Defendant from sending unsolicited fax advertisements, as well as statutory liquidated damages, pre-judgment interest, costs and reasonable attorneys' fees, and other relief as the Court may deem just and proper. Preferred Physicians Insurance Agency, Inc. provides insurance brokerage services. [BN] The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Tel: 847-368-1500 Fax: 847-368-1501 E-mail: rkelly@andersonwanca.com PROCTER & GAMBLE: Court Dismisses First Amended Davis Class Suit ---------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California, Oakland Division, dismissed the case, ANGELA DAVIS, DEANNA LOPEZ, and URSULA RILEY, individually and on behalf of all others similarly situated, Plaintiffs v. THE PROCTER & GAMBLE COMPANY, Defendant, Case No. 4:20-cv-03220-YGR (N.D. Cal.), with prejudice as to Plaintiffs Davis, Lopez, and Riley, and without prejudice as to the putative class. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the Plaintiffs and P&G stipulated that the claims of the named Plaintiffs, which are asserted in the First Amended Class Action Complaint, are dismissed with prejudice. The parties agreed to bear their own costs and fees. The stipulation will be without prejudice to the claims of the putative class members. The filing attorney certified that concurrence in the filing of the document has been obtained from each signatory, in accordance with Local Rule 5-1. A full-text copy of the Court's Feb. 16, 2021 Order is available at https://tinyurl.com/1d47n4zh from Leagle.com. AHDOOT & WOLFSON, PC, Robert R. Ahdoot -- rahdoot@ahdootwolfson.com -- Christopher E. Stiner -- cstiner@ahdootwolfson.com -- in Burbank, California, Attorneys for Plaintiffs SQUIRE PATTON BOGGS (US) LLP -- Eric J. Knapp -- eric.knapp@squirepb.com -- Alfredo W. Amoedo -- alfredo.amoedo@squirepb.com -- in San Francisco, California, Attorneys for Defendant The Procter & Gamble Company PROGRESSIVE ADVANCED: Must Pay Davis ACV Under Policy, Court Says ----------------------------------------------------------------- In the case, MARCHELL DAVIS, et al., Plaintiffs v. PROGRESSIVE ADVANCED INSURANCE COMPANY, et al., Defendants, Civil Action No. 19-5726 (E.D. Pa.), Magistrate Judge Timothy R. Rice of the U.S. District Court for the Eastern District of Pennsylvania held that the insurance policy obligates Progressive to pay actual cash value in the event of total loss, but the ACV does not include replacement costs. Plaintiffs Davis and Brandy Gress have sued Defendants Progressive Advanced and Progressive Specialty Insurance Co. for breaching their respective insurance policies by failing to pay the full costs of replacing their insured vehicles. The Plaintiffs' vehicles suffered a total loss. Progressive Specialty settled Davis' loss by paying her $23,569.02, the automobile's actual cash value ("ACV") plus sales tax reduced by the deductible. Likewise, Progressive Advanced settled Gress' total loss by paying her $4,482.67, the ACV plus sales tax less the deductible and salvage value. Neither settlement included regulatory fees. In Part IV of the Policy, Progressive provides it will pay for "sudden, direct and accidental loss to a covered auto." Part IV of the Policy features a section titled "Limits of Liability," which states "the limit of liability for loss to a covered auto" is the lowest of: 1) the ACV of the damaged property at the time of the loss less the applicable deductible; 2) the amount necessary to replace the damaged property less the applicable deductible; 3) the amount necessary to repair the damaged property to its pre-loss condition less the applicable deductible; or 4) the stated amount shown on the declarations page for that covered auto. This section states the ACV "is determined by the market value, age, and condition of the vehicle at the time the loss occurs." The Plaintiffs and Progressive each seek summary judgment. The Plaintiffs argue: 1) they are entitled to the ACV for a total loss to their vehicles; and 2) the ACV includes replacement costs such as mandatory title and registration fees. Progressive argues its Policy: 1) promises to pay only for "sudden, direct and accidental loss" to a covered auto; and 2) limits a covered loss to the vehicle's ACV, which does not include replacement costs. The pivotal question is whether the plain language of the Plaintiffs' policies require Progressive to pay the Plaintiffs the ACV, and if so, if the ACV includes mandatory title or registration-related fees. First, Progressive argues the Policy only obligates it to pay for a "sudden, direct and accidental loss." The Plaintiffs believe the Policy requires Progressive to pay the ACV in the event of a total loss. Judge Rice finds that the plain language of the Policy justifies the Plaintiffs' position. In Sylvester v. Depositors Ins. Co., No. 20-1322, 2020 WL 4934361, *4 (E.D. Pa. Aug. 24, 2020), at *4 (quoting Prudential Prop. & Cas. Ins. Co. v. Sartno, 903 A.2d 1170, 1174 (Pa. 2006)), the insurance policy provided the insurer will pay for the "loss" of the vehicle and limited the liability to the vehicle's ACV. The court in Sylvester found the policies unambiguously provide that the insurers must pay for loss to the vehicle, not the replacement cost. However, the court acknowledged that the insurer must pay the liability limit, which was the ACV, when the insured's damages exceed that limit. In Sylvester, the plaintiff did not demonstrate its loss exceeded the limit of liability. In the case, all parties agree that the losses were greater than the limit of liability, which was the ACV. Therefore, considering Sylvester's own language about when an insurer must pay its liability limit, Davis and Gress are entitled to the ACV. Next, the Plaintiffs contend that Progressive did not clearly define ACV in their Policy, and as a result, it should include the mandatory title and registration fees necessary to operate an automobile in Pennsylvania. Progressive challenges that the Policy specifies the method of calculating the ACV as "determined by the market value, age, and condition of the vehicle at the time the loss occurs," and does not include consideration of mandatory replacement fees such as title and registration fees. Judge Rice agrees. At issue is whether the Policy's language regarding the ACV is clear or ambiguous. If it is clear, then the Policy's language controls. If it is ambiguous, then the Plaintiffs' interpretation controls. He finds it is clear. The Policy unambiguously defines the ACV in stating how it is determined. Further, the Judge finds that no insurance policy provision should be treated as redundant if any reasonable meaning consistent with the other parts can be given to it. The Policy states that, when paying a liability limit, Progressive will pay the lower of 1) the ACV and 2) "the amount necessary to replace" the damaged property reduced by the deductible. The latter amount is the cost of replacement that "might cover costs of title and registration." If the Judge granted the Plaintiffs' interpretation of the Policy, he would be imputing those fees into the ACV and "negating any difference between the two," making the second option redundant. Because he must avoid redundant meanings in contract language, the Judge cannot impose the full breadth of replacement costs into the ACV. An appropriate Order accompanies the Opinion. A full-text copy of the Court's Feb. 12, 2021 Memorandum Opinion is available at https://tinyurl.com/2m9jdbpl from Leagle.com. PROVIDENCE ST. JOSEPH: Gregg Remanded to California Superior Court ------------------------------------------------------------------ Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California remanded the case, ANDREA GREGG, ET AL., Plaintiffs v. PROVIDENCE ST. JOSEPH HEALTH, ET AL., AND DOES 1-100, Defendants, Case No. 4:20-cv-03880-YGR (N.D. Cal.), to the Superior Court of the State of California for the County of San Francisco. Plaintiffs Gregg and Davidson bring the putative class action against Defendants Providence St. Joseph Health; Providence Health and Services; St. Joseph Health; St. Joseph Health System; St. Joseph Health Northern California, LLC; Queen of the Valley Medical Center; Santa Rosa Memorial Hospital; SRM Alliance Hospital Services d/b/a Petaluma Valley Hospital; St. Joseph Hospital of Eureka; and Redwood Memorial Hospital of Fortuna, for unlawful, unfair, and fraudulent business practices in violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200, and for intentional interference with contractual relations. The Plaintiffs seek damages, restitution, injunctive, and other relief, individually and on behalf of a proposed class. The Plaintiffs originally filed their complaint in the California Superior Court, County of San Francisco, on March 26, 2020. The Plaintiffs are individuals who sought or received medical services in relation to injuries sustained in separate car accidents. Gregg was injured in a car accident on November 2016 when she was read-ended. Davidson was injured in a car accident caused by a third party on June 2018. Both received medical services from Defendant Queen of the Valley Medical Center ("QVMC"). When admitted to QVMC, both provided information for their respective health insurance plans. Gregg's plan was with United Healthcare and Davidson was covered by both Medicare and a Kaiser Permanente supplemental insurance plan. The Plaintiffs allege that, rather than billing their health insurance plans, the Defendants asserted liens under the California Hospital Lien Act ("HLA"), California Civil Code sections 3045.1-3045.6, against their prospective civil recoveries from their tortfeasors. The Plaintiffs allege that, while the HLA limits a hospital's lien to 50% of the final judgment or settlement, Cal. Civ. Code Section 3045.4, it does not prohibit hospitals from pursuing patients for the balance of the retail amount. By sidestepping the patient's health care insurance and seeking the higher "retail" bill through an HLA lien, the hospital deprives the patient of the benefit of their health plan coverage. The Plaintiffs allege that QVMC refrained from billing their health insurance plans in order to assert HLA liens against potential tort recovery on their automobile accidents at "grossly inflated" retail rates. Both Gregg and Davidson learned QVMC did not submit bills to their health care plans when they received letters from QVMC administrators notifying them of the liens. They allege that the lien amounts exceeded the "reasonable and necessary" limitation in the HLA because the amounts were "in orders" higher than the amount QVMC would have accepted as payment in full had QVMC submitted bills to their health insurance plans. Based on the foregoing, the Plaintiffs allege that the Defendants intentionally interfered with their contracts and engaged in unfair and unlawful practices under the UCL. The Defendants removed the complaint from state court on the grounds that Plaintiff Davidson's claims are predicated on federal law and implicate federal questions under the Medicare Act. They contend that the allegations in the complaint rely on federal Medicare requirements since Davidson seeks to have Medicare pay for their services rather than the third-party responsible for the injuries that necessitated her treatment. Thus, the Defendants assert that Davidson essentially has made a claim for benefits under the Medicare Act that will require the Court to interpret, apply, and enforce federal Medicare laws and regulations, including those under the Medicare Secondary Payer ("MSP") rules found in 42 U.S.C. section 1395(y) and implementing regulations at 42 C.F.R. sections 422.1, et seq. Now before the Court are the Plaintiffs' motion to remand and the Defendants' motion to dismiss the complaint. Both motions are opposed. The Plaintiffs move to remand on the grounds that the claims do not arise under the Medicare Act but instead are based entirely on a violation of California statutory law, the Hospital Lien Act. Davidson alleges that the Defendants refused to bill her health care service plans (Medicare and Kaiser) and accept the plan's contracted rates, but instead asserted a lien at a grossly inflated "customary" rate against any damages award or settlement Davidson may receive. She contends the crux of the issue is whether defendants violated state law by asserting liens to charge rates that are not "reasonable and necessary" under the HLA. The Defendants counter that Davidson's claims actually arise under the Medicare Act and are a disguised claim for denial of Medicare benefits since each claim effectively alleges she was entitled to limit QVMC's lien to the amount it would have been reimbursed under Medicare. While on their face the factual scenarios appear similar, Judge Rogers finds that the allegations of the well-pleaded complaint focus not on the violation of the Medicare statute or regulations, but on the pure application of California law. Davidson does not allege that she was denied Medicare benefits, nor does she seek to recover them. Instead, she seeks to limit the state law liens filed by QVMC to their "reasonable and necessary" amount under state law, the measure of which would be the rates QVMC normally would have been able to recover from Davidson's health insurance coverage. The mere reference to Medicare rates does not convert the claim into one arising under the Medicare Act. The Defendants' argument that the claims are so intertwined with the Medicare Act that they would require interpretation of the statute and regulations to determine the lawfulness of the liens does not persuade. The parties are in agreement that the Medicare regulations and the Medicare Secondary Payer Manual ("MSP Manual") authorize and instruct hospital medical providers to seek recovery from a primary payer, including by means of a lien on a judgment or settlement. The MSP Manual expressly acknowledges that state law governs lien rights and specifically the right to file a lien for "full charges." No conflict with or interpretation of federal Medicare rules appears. In sum, Judge Rogers finds that the Defendants have failed to meet their burden to establish that the action falls within the "slim category" of state law claims "arising under" federal law for purposes of federal question jurisdiction. Having failed to establish that jurisdiction is proper, the case must be remanded. For these reasons, Judge Rogers granted the Plaintiffs' motion to remand, and denied as moot the motion to dismiss. She directed the Clerk of the Court to remand the action to the Superior Court of California, County of San Francisco. Her Order terminates Docket Number 15. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/ygqa7th6 from Leagle.com. QEP ENERGY: Blasi Files Suit in North Dakota -------------------------------------------- A class action lawsuit has been filed against QEP Energy Company. The case is styled as David A. Blasi, Paula J. Blasi, as Trustees of the Blasi Living Trust, on behalf of themselves and a class of similarly situated persons v. QEP Energy Company, Case No. 1:21-cv-01436-JMF (D.N.D., Feb. 18, 2021). The nature of suit is stated as Contract Product Liability for Breach of Contract. QEP Energy Company -- http://www.qepres.com/-- is an oil & energy company based out of Denver, Colorado.[BN] The Plaintiffs are represented by: Rex A Sharp, Esq. Gregory Bentz, Esq. Isaac Diel, Esq. SHARP LAW, LLP 5301 W. 75th Street Prairie Village, KS 66208 Phone: (913) 901-0505 Fax: (913) 901-0419 Email: rsharp@midwest-law.com gbentz@midwest-law.com idiel@midwest-law.com - and - Charles Thomas Schimmel, Esq. SHARP LAW, LLP 6900 College Blvd., Ste. 285 Overland Park, KS 66211 Phone: (913) 901-0505 Email: cschimmel@midwest-law.com - and - Michael S. Montgomery, Esq. MONTGOMERY & PENDER, P.C. 5630 34th Avenue So., Ste. 120 Fargo, ND 58104 Phone: (701) 281-8001 Email: mike@mplawnd.com QUANTUM GLOBAL: $175K Settlement in Taafua FCRA Suit Gets Final Nod ------------------------------------------------------------------- In the case, PANIANI TAAFUA, Plaintiff v. QUANTUM GLOBAL TECHNOLOGIES, LLC, Defendant, Case No. 18-cv-06602-VKD (N.D. Cal.), Magistrate Judge Virginia K. DeMarchi of the U.S. District Court for the Northern District to California, San Jose Division, grants the Plaintiff's motion for final approval of the class action settlement and grants his motion for his attorneys' fees and costs. Plaintiff Taafua filed the action for himself, and on behalf of a putative class, for alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. Section 1681b(b)(2)(A)(i)-(ii), based on a disclosure form used by his former employer, Quantum Global Technologies ("QGT"), that reportedly included an extraneous liability waiver. Mr. Taafua claims that QGT required him, and all prospective employees, to sign a standard company form authorizing QGT to obtain a consumer report from third party First Contact HR to verify an applicant's background and experience. Mr. Taafua contends that because QGT's form included a liability waiver, in addition to a disclosure concerning a consumer report, QGT violated the FCRA's stand-alone disclosure requirement, and as a result, QGT also never received proper authorizations for any reports it obtained using its standard form. Mr. Taafua claims that he was confused by the standard disclosure and authorization form and did not understand that QGT would be requesting a consumer report as defined in the FCRA. He further alleges that nonetheless, upon information and belief, [QGT] then secured a consumer report from First Contact HR. Several months after the Court held an initial case management conference, and before a noticed hearing on QGT's then-pending motion to transfer venue, the parties settled. The Court previously denied preliminary approval of a proposed class action settlement agreement that contemplated a release of claims in return for a total payment of $125,902. The parties subsequently agreed to an Amended Class Action Release and Settlement Agreement that provides for payment of $174,980 and a modified proposed distribution of those funds. On Aug. 14, 2020, the Court preliminarily approved the amended settlement, conditionally certified a Rule 23 class action, ordered notice to be given to the class, and set a final fairness hearing for Feb. 16, 2021. The proposed amended settlement covers the period Oct. 30, 2013 to Dec. 31, 2018, on behalf of the following class: "All individuals who applied for employment with and/or were employed by Defendant in the United States and were the subject of a consumer report that was procured by Defendant or caused to be procured by Defendant through third-party consumer reporting agency First Contact HR during the Class Period." The settlement is non-reversionary and contemplates a release of claims in return for a total payment of $174,980, from which $15,5922 in estimated administrator expenses, $41,967.33 in attorney's fees, $1,993.723 in costs, and a $3,500 service award will be deducted before the remaining $111,926.954 is distributed to the class, which has 1,040 members. The settlement contemplates that 13% of the Net Settlement Fund will be distributed to the class members whose claims fall outside the two-year statute of limitations period and 87% will be distributed among those whose claims are unquestionably timely. Individual payments will be made on a pro rata basis, depending on the number of reports that were obtained for a given class member. Any unclaimed funds will be given as a cy pres award to the Education Fund of the National Association of Consumer Advocates ("NACA"). Mr. Taafua reports that pursuant to the terms of the Amended Settlement Agreement, the settlement administrator, JND Legal Administration, sent notice to all 1,040 class members identified by QGT. Based on JND's report, it appears that ultimately nine notices were returned as undeliverable, with no forwarding address and for which JND was not able to obtain updated address information. JND states that as of Jan. 8, 2021, it received no objections to the settlement and only two requests for exclusion. Thus, it appears that there is a total settlement class of 1,038 individuals, of whom 1,029 are presumed to have successfully received notice of the settlement. An individual class member may be entitled to more or less money depending on the number of reports that were obtained for that individual and the period of time when the report(s) were procured. JND estimates that the average settlement payment is expected to be $107.10, with the lowest estimated payment being $20.70 and the highest estimated payment being $560.65. These estimates apparently are based on a Net Settlement Fund of $111,720.67. As noted, Mr. Taafua indicates that these numbers may be somewhat higher, inasmuch as the Net Settlement Fund will be slightly higher due to his counsel's lower-than-estimated costs. Mr. Taafua now moves pursuant to Rule 23 for final approval of the proposed settlement, including payment of his service award, as well as his attorneys' fees and costs. In their unopposed motion for fees and costs, Mr. Taafua's counsel seek $41,967.33 in fees and $1,993.72 in costs. Dkt. No. 53. With respect to the requested fees, the counsel avers that her firm spent a total of 152.40 hours in this litigation, resulting in a total lodestar of $74,727. Nevertheless, their fee request remains at $41,967.33, the same sum sought when Mr. Taafua sought preliminary approval of the parties' amended settlement. With respect to hourly rates, the rates requested are between $325 and $400 for associates, and $625 to $850 for partners. Mr. Taafua requests a service award of $3,500 for his time and effort in assisting counsel with the investigation of his claims, gathering information, and reviewing the settlement. QGT does not oppose Mr. Taafua's motion, and the Court has received no objections to the proposed settlement or counsel's requested fees and costs. The Court held a final fairness hearing on Feb. 16, 2021. Having considered the arguments of counsel and the papers submitted, Judge DeMarchi grants Mr. Taafua's motion for final approval of the class action settlement and grants his motion for his attorneys' fees and costs. He finds that (i) the settlement class satisfies Rules 23(a) and 23(b)(3), and the notice requirements of Rule 23(c)(2) have been met; (ii) the terms of the parties' proposed settlement is fair, adequate and reasonable under Rule 23(e); (iii) (iv) the attorney's fees and expenses were reasonably incurred; and (v) the requested $3,500 award is appropriate in view of the benefit Mr. Taafua helped obtain for the class. The parties and JND are directed to implement the terms of the Order and the class action settlement in accordance with the terms of the Amended Settlement Agreement. The Clerk of Court will enter judgment and close the file. A full-text copy of the Court's Feb. 16, 2021 Order is available at https://tinyurl.com/45ax534p from Leagle.com. QUANTUMSCAPE CORP: Kahn Swick Reminds Investors of March 8 Deadline ------------------------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors of pending deadline in the following securities class action lawsuit: QuantumScape Corporation (QS) Class Period: 11/27/2020 - 12/31/2020 Lead Plaintiff Motion Deadline: March 8, 2021 SECURITIES FRAUD To learn more, visit https://www.ksfcounsel.com/cases/nyse-qs/ If you purchased shares of the above company and would like to discuss your legal rights and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner, Lewis Kahn, toll-free at 1-877-515-1850, via email (Lewis.Kahn@KSFcounsel.com), or via the case links above. If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About KSF KSF, whose partners include former Louisiana Attorney General Charles C. Foti, Jr., is one of the nation's premier boutique securities litigation law firms. KSF serves a variety of clients - including public institutional investors, hedge funds, money managers and retail investors – in seeking to recover investment losses due to corporate fraud and malfeasance by publicly traded companies. KSF has offices in New York, California and Louisiana. Contact: Kahn Swick & Foti, LLC Lewis Kahn, Managing Partner lewis.kahn@ksfcounsel.com 1-877-515-1850 1100 Poydras St., Suite 3200 New Orleans, LA 70163 [GN] QUANTUMSCAPE CORP: Robbins LLP Reminds of March 8 Deadline ---------------------------------------------------------- Shareholder rights law firm Robbins LLP on Feb. 15 disclosed that a purchaser of QuantumScape Corporation (NYSE: QS) filed a class action complaint against the Company and its officers and directors for alleged violations of the Securities Exchange Act of 1934 between November 27, 2020 and December 31, 2020. QuantumScape develops battery technology for electric vehicles and other applications. QuantumScape Corporation (QS) Misled Shareholders by Overstating the Viability, Power, and Life of its Solid-State Battery According to the complaint, on November 27, 2020, QuantumScape went public via a business combination with Kensington Capital Acquisition Corp. A joint press release issued by QuantumScape and Kensington, characterized QuantumScape as "a leader in the development of next generation solid-state lithium-metal batteries for use in electric vehicles." Throughout the relevant period, QuantumScape touted the success of its battery technology. On January 4, 2021, Seeking Alpha published an article pointing to several risks with QuantumScape's solid-state batteries that make it "completely unacceptable for real world field electric vehicles." The article stated that the battery's power "will only last for 260 cycles or about 75,000 miles of aggressive driving." As solid-state batteries are temperature sensitive, "the power and cycle tests at 30 and 45 degrees above would have been significantly worse if run even a few degrees lower." The article further detailed significant challenges QuantumScape faces. On this new, QuantumScape's stock plummeted $34.49, or over 40%, to close at $49.96 per share on January 4, 2021. If you purchased shares of QuantumScape Corporation (QS) between November 27, 2020 and December 31, 2020, you have until March 8, 2021, to ask the court to appoint you lead plaintiff for the class. Contact us to learn more: Lauren Levi (800) 350-6003 llevi@robbinsllp.com Shareholder Information Form Robbins LLP is a nationally recognized leader in shareholder rights law. To be notified if a class action against QuantumScape settles or to receive free alerts about companies engaged in wrongdoing, sign up for Stock Watch today. Attorney Advertising. Past results do not guarantee a similar outcome. Contacts: Lauren Levi Robbins LLP 5040 Shoreham Place San Diego, CA 92122 llevi@robbinsllp.com (800) 350-6003 www.robbinsllp.com [GN] QUANTUMSCAPE CORP: Schall Law Firm Reminds of March 8 Deadline -------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on Feb. 16 announced the filing of a class-action lawsuit against QuantumScape Corporation ("QuantumScape" or "the Company") (NYSE:QS) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between December 8, 2020 and December 31, 2020, inclusive (the "Class Period"), are encouraged to contact the firm before March 8, 2021. 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. QuantumScape dramatically overstated the purported success of its solid-state batteries, including their battery power, life, and energy density. The Company was unlikely to scale its battery technology to the multi-layer cells necessary to run electric vehicles. 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 QuantumScape, 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. CONTACT: The Schall Law Firm Brian Schall, Esq. 310-301-3335 info@schallfirm.com www.schallfirm.com [GN] RAPID PASADENA: Faces Gomez Labor Suit in California State Court ---------------------------------------------------------------- The class action lawsuit captioned as Alexis Gomez v. Rapid Pasadena Services, LLC, et al., Case No. 19STCV30192, was removed from the California Superior Court for the County of Los Angeles to the united States District Court for the Central District of California (Los Angeles) on Feb. 4, 2020. The California Central District Court Clerk assigned Case No. 2:21-cv-01053-GW-AFM to the proceeding. The case alleges violation of labor-related laws and is assigned to the Hon. Judge George H. Wu.[BN] The Plaintiff is represented by: Nicholas Wolpe Stadmiller, Esq. Ronald W. Makarem, Esq. MAKAREM AND ASSOCIATES APLC 11601 Wilshire Boulevard Suite 2440 Los Angeles, CA 90025-1760 Telephone: (310) 312-0299 Facsimile: (310) 312-0296 E-mail: stadmiller@law-rm.com makarem@law-rm.com The Defendants Rapid Pasadena Services, LLC and Amazon.com Service, Inc., are represented by: Brian D. Fahy, Esq. Tuyet T. Nguyen, Esq. Max C. Fischer, Esq. MORGAN LEWIS AND BOCKIUS LLP 300 South Grand Avenue 22nd Floor Los Angeles, CA 90071-3132 Telephone: (213) 612-2500 Facsimile: (213) 612-2501 E-mail: brian.fahy@morganlewis.com tuyet.nguyen@morganlewis.com max.fischer@morganlewis.com SAN DIEGO GAS: Remand of Radcliff to California Super. Ct. Denied ----------------------------------------------------------------- Judge Marilyn L. Huff of the U.S. District Court for the Southern District of California denied the Plaintiff's motion to remand the case, DAVID RADCLIFF, individually and on behalf of all others similarly aggrieved, Plaintiffs v. SAN DIEGO GAS & ELECTRIC COMPANY, a California corporation; SEMPRA ENERGY, a California corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 3:20-cv-01555-H-MSB (S.D. Cal.), back to the Superior Court of the State of California for the County of San Diego. On Feb. 27, 2020, the Plaintiff filed a class action complaint against the Defendants, his former employers, in the California Superior Court, County of San Diego. In his complaint, the Plaintiff asserted several putative class action claims against them for their alleged: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure to provide rest periods; (5) failure to indemnify their employees for necessary business expenses; (6) failure to maintain their employment records; (7) failure to furnish accurate and itemized wage statements; (8) failure to pay wages in a timely manner to current employees; (9) failure to pay wages due at the end of employment; and (10) unfair and unlawful business practices. Additionally, the Plaintiff brought an eleventh cause of action under California's Private Attorneys General Act of 2004 ("PAGA"). With his PAGA action, he seeks recover civil penalties on behalf of employees who were similarly aggrieved by the Defendants. On Aug. 11, 2020, the Defendants removed the action to federal court on the grounds that Section 301 of the Labor-Management Relations Act ("LMRA") preempted the Plaintiff's overtime and meal period claims in part because he was subject to a collective bargaining agreement ("CBA") during the relevant periods of the lawsuit. On Sept. 25, 2020, the Defendants filed a motion to compel the arbitration of the Plaintiff's non-PAGA claims. The Court granted the Defendants' motion, compelled the Plaintiff to submit his non-PAGA claims to arbitration pursuant to the parties' arbitration agreement, and subsequently dismissed those claims without prejudice. The Court also declined to stay the proceedings on the Plaintiff's PAGA claim. With the instant motion, the Plaintiff asks the Court to remand his PAGA claim back to the state court where the action originated. The parties dispute whether the Court has original jurisdiction over the Plaintiff's PAGA claim and, therefore, whether remand is even authorized the first place. As the Plaintiff argues, the Court does not have original jurisdiction over his cause of action under PAGA. Therefore, he reasons, the Court should deny supplemental jurisdiction over his PAGA claim, the lone claim still pending before the Court, because his federal claims were dismissed by the Court early in the litigation. On the other hand, the Defendants argue that the Plaintiff's PAGA claim falls within the Court's federal question jurisdiction because it is preempted by Section 301 of the LMRA, making remand improper. As a threshold matter, the Plaintiff argues that his PAGA claims cannot be preempted under Section 301 of the LMRA because they are brought in a representative capacity to protect the public's rights under the California Labor Code. Thus, according to him, his PAGA action has nothing to do with any CBA that may apply to him. This distinction, according to Judge Huff, is not persuasive. She reasons, to determine whether a claim is preempted under the LMRA, courts look to the underlying character of the claim itself. The Plaintiff's PAGA claims for civil penalties are, in part, derivative of his own overtime and meal period claims. Thus, she determines that, if the Court has original jurisdiction over these predicate claims, it also has original jurisdiction over the Plaintiff's PAGA claim. To find otherwise would allow for the artful pleading of PAGA claims--premised on Labor Code violations -- to circumvent congressional intent regarding collective bargaining agreements and preemption. Next, the Plaintiff's PAGA claim seeks civil penalties in part for the Defendants' alleged violation of California Labor Code section 510, which regulates the payment of overtime wages. The Defendants argue that the Plaintiff's PAGA cause of action is preempted because he is subject to a CBA that is expressly exempted from section 510. Judge Huff holds that Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152 (9th Cir. 2019), made clear that if, like in the case, an employee is subject to a CBA satisfying section 514, his overtime claims under section 510 are preempted. The Plaintiff's concerns that Curtis was decided on a motion to dismiss rather than a motion to remand are unfounded because Curtis clearly stated that a civil complaint raising claims preempted by Section 301 raises a federal question that can be removed to a federal court. Accordingly, the Court has original jurisdiction over the Plaintiff's PAGA claim because the Defendants have satisfied their burden to show that the Plaintiff's underlying overtime claim is preempted by Section 301 of the LMRA. The Plaintiff's motion to remand is, therefore, denied on this basis. Finally, the Plaintiff seeks civil penalties under the PAGA for the Defendants' alleged violation of California Labor Code section 512, which governs meal periods. Like sections 510 and 514, section 512 also expressly exempts from its terms certain employees who are subject to qualifying CBAs. Judge Huff finds that the Defendants have satisfied their burden of showing that this exemption applies. First, the Defendants are both electrical and gas corporations. Second, as discussed, they have also shown that the Plaintiff is subject to a valid CBA. And third, the CBA contains express provisions satisfying each of the conditions set forth in section 512(e)(2). Additionally, the Judge sees no reason why Curtis should not be extended to preempt meal period claims made by an employee who falls within the exemption set forth in section 512(e), nor does the Plaintiff present any such reason. At bottom, both sections 512 and 514 have nearly identical exemptions that make the rights they confer negotiable. Accordingly, because the Defendants have shown that the exemption in section 512(e) applies in the case, the Plaintiff's meal period rights exist solely because of his CBA. As such, his PAGA action, which is predicated on these rights, is preempted by Section 301 of the LMRA and falls within the Court's original jurisdiction. The Plaintiff's motion to remand is, therefore, also denied on this basis. For these foregoing reasons, Judge Huff denied the Plaintiff's motion to remand. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/1w619sfu from Leagle.com. SCOTT CREDIT: Court Partly Grants Bid to Dismiss Toth Class Suit ---------------------------------------------------------------- In the case, JOANNA TOTH, individually and on behalf of all others similarly situated, Plaintiff v. SCOTT CREDIT UNION and DOES 1-100, Defendants, Case No. 20-CV-00306-SPM (S.D. Ill.), Judge Stephen P. McGlynn of the U.S. District Court for the Southern District of Illinois granted in part and denied in part the Defendants' Motion to Dismiss the Complaint. Plaintiff Toth filed a proposed class action Complaint alleging that Defendants, Scott Credit Union and Does 1-100 ("SCU"), charged SCU members fees that ran counter to SCU's own contracts and violated state and federal laws. SCU is a federally-chartered Illinois-based credit union with branches in Illinois and Missouri that offers its members checking accounts along with debit cards for transactions on the accounts. During the 10-year period prior to the filing of the suit, Toth had a checking account with SCU. She alleges that SCU assessed overdraft fees even though her account had sufficient funds to cover the transactions and that this practice is contrary to the express terms SCU contracted for with members. Toth further claims that SCU charged multiple NSF fees for one purchase when retailers re-submitted the same transaction, also contrary to the contract terms. Ms. Toth claims that these practices breached the terms of the contracts governing SCU's overdraft and NSF program and that it violated Regulation E of the Electronic Funds Transfer Act ("EFTA") because SCU failed to properly disclose these policies to customers. Additionally, Toth alleges that SCU breached the implied covenant of good faith and fair dealing and engaged in unfair and deceptive business practices in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"). She also asserts quasi-contract claims for equitable relief in the alternative to her breach of contract claim. SCU moves to dismiss the breach of contract claims, arguing that the Account Agreement and Opt-In Agreement, construed together, unambiguously state that SCU would use the available balance method in assessing overdraft fees. It also contends that multiple NSF fees were contemplated in the documents. SCU also moves to dismiss the Regulation E claim on the ground that it is untimely. It additionally moves to dismiss the implied covenant of good faith and fair dealing claims, quasi-contract claims, and ICFA claim on the grounds that they cannot be maintained where Toth has conceded that an express contract controls the parties' relationship. Judge McGlynn granted in part and denied in part SCU's Motion to Dismiss ("MTD"). He dismissed with prejudice Toth's (i) Count I claim for breach of contract on overdraft fees, (ii) Toth's Count II claim for breach of contract on NSF fees governed by the 2017 and 2019 Account Agreements, (iii) Count I and II claims for breach of implied covenant of good faith and fair dealing, (iv) Count V claim under EFTA, and (v) Count VI claim under ICFA. He dismissed without prejudice Toth's Count III and IV claims for unjust enrichment and "money had and received." Toth's breach of contract claims related to NSF fees governed by the 2013 Account Agreement may proceed. Among other things, Judge McGlynn finds that Toth's Complaint asserts that she entered into binding contracts with SCU and SCU failed in its performance of those contracts. Her claims for unjust enrichment and "money had and received" are not, by function of the way the Complaint is written, alternative theories where no express contract exists. Toth incorporated her breach of contract allegations into these equitable claims. Consequently, Toth's claims for unjust enrichment and "money had and received" are dismissed without prejudice and Toth is granted leave to replead if she can sufficiently allege that she meets the elements of a properly stated unjust enrichment claim and "money had and received" claim. As to Toth's breach of contract claims related to NSF fees governed by the 2013 Account Agreement, Judge McGlynn finds that the language in these provisions, taken together, gives warning to members that SCU cannot control merchant reprocessing of returned items, giving greater clarity to what qualifies as an item and what "per item" includes when SCU charges an NSF fee. The disclaimer itself shows that SCU now includes returned items reprocessing by the merchant as an item capable of triggering an NSF fee. So, in the context of the 2017 Account Agreement, SCU did not breach by charging its members an NSF fee every time a merchant presented an item for payment against insufficient available funds. Accordingly, relief is foreclosed and Toth's claim for breach is dismissed with prejudice for NSF breach claims governed by the 2017 and 2019 Account Agreements. The rest of SCU's motion to dismiss related to Toth's breach of contract claim regarding NSF fees governed by the 2013 Account Agreement is denied and that part of the claim may proceed. Plaintiff Toth has 14 days to file an amended complaint based on the Court's ruling. A full-text copy of the Court's Feb. 12, 2021 Memorandum & Order is available at https://tinyurl.com/y72d6n4v from Leagle.com. SMOKY MOUNTAIN: Jaquez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Smoky Mountain Knife Works, Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Smoky Mountain Knife Works, Inc., Case No. 1:21-cv-01446 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Smoky Mountain Knife Works -- https://www.smkw.com/ -- is a knife store offering folding knives, fixed knives, and all types of knives for sale, from Case, Buck, SOG, Benchmade, etc.[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 SONY INTERACTIVE: Faces DualSense Controller Drifting Class Action ------------------------------------------------------------------ Sony is joining other big names in the gaming industry in being on the receiving end of a lawsuit alleging its DualSense controllers are drifting due to a hardware defect. The newest class action has been filed by law firm Chimicles Schwartz Kriner & Donaldson-Smith LLP in the U.S. District Court for the Southern District of New York on behalf of named plaintiff Lmarc Turner and other affected consumers and claims that Sony is "selling defective DualSense controllers which suffer from joysticks that register movement without player input," according to court documents. The lawsuit explains further, "Specifically, the DualSense controllers that are used to operate the PS5 contain a defect that results in characters or gameplay moving on the screen without user command or manual operation of the joystick. This defect significantly interferes with gameplay and thus compromises the DualSense controller's core functionality." The gaming console launched in November of last year, and just two weeks after it hit the market, a video demonstrating the DualSense drift was posted on Reddit. This video was followed by several others. The latest lawsuit claims Sony is "aware of the DualSense being faulty due to complaints already filed, but also that consumers must pay the shipping fees to send a DualSense controller to Sony for repair even though they are still under warranty." It also states, "Customers are experiencing long wait times and having to deal with a maze of pre-recorded phone prompts before finally speaking with an agent concerning repairs for DualSense controller drift." Around the same time that DualSense began to take heat for its issues, Microsoft and Nintendo were fending off reports of their own game controller drifting issues, which both companies compelled plaintiffs to settle through arbitration. Turner has reportedly already written a letter to Sony informing the company he is opting out of resolving the litigation through arbitration, but it is unclear whether his wishes will be upheld. "Had Plaintiff been aware of the drift defect prior to purchasing his PS5, he otherwise would not have purchased the PS5, or would have paid substantially less for it," court documents state. Nintendo's Switch joysticks were also fundamentally flawed, according to an expert that evaluated them last fall, stating for the court, "As the steel brushes inside of the joystick move back and forth, they rub away the soft carbon material that makes up the pad, which changes its electrical resistance and leads the drifting phenomenon. The difference in surface hardness between the steel brush and the carbon pad results in excessive wear debris that collects on the steel brush tips. This transferred debris exacerbates the wear of the pad. The wear of the carbon (a known soft material) by the steel brushes (a known hard material) inevitably causes the joysticks to fail." It is unclear why there have been so many issues with flawed hardware across gaming consoles as of late. The Sony complaint is demanding a jury trial as well as monetary relief "for damages suffered, declaratory relief, and public injunctive relief. [GN] SORRENTO THERAPEUTICS: Zenoff Named Lead in Wasa Securities Suit ---------------------------------------------------------------- In the case, WASA MEDICAL HOLDINGS, individually and on behalf of all others similarly situated, Plaintiffs v. SORRENTO THERAPEUTICS, INC., HENRY JI, and MARK R. BRUNSWICK, Defendants, Case No. 20-cv-0966-AJB-DEB (S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California granted Movant Andrew Zenoff's motion for Lead Plaintiff and appointment of Lead Counsel. On May 26, 2020, the action was filed in the Court alleging violations of the Securities Exchange Act of 1934 on behalf of all investors who purchased or otherwise acquired Sorrento shares from May 15, 2020, through May 22, 2020. Specifically, the action alleges that the Defendants violated federal securities laws by making materially false and/or misleading statements, and failing to disclose material adverse facts relating to its announcement that the Company had discovered an antibody that had demonstrated 100% inhibition of SARS-CoV-2 virus infection. On June 11, 2020, Calvo v. Sorrento Therapeutics, Inc. et al., No. 20-cv-1066 ("Calvo Action") was filed in the District with similar allegations on behalf of investors who purchased Sorrento common stock during the same Class Period. The Wasa Action, together with the Calvo Action, seek to recover damages on behalf of Sorrento investors during the same Class Period. Presently before the Court are six motions to consolidate, appoint Lead Plaintiff, and appoint Lead Counsel from movants Dr. Dean Roller, the SRNE Investor Group, Mike Nguyen, Andrew Zenoff, Thomas Hammond, and Jing Li. Movants Dr. Roller, Nguyen, and Hammond do not oppose the motions, recognizing they do not have the largest financial interest in the litigation. Competing movants the SRNE Investor Group, Zenoff, and Li, however, filed oppositions to the motions. First, all the movants request that the Court consolidate the Wasa and Calvo Actions. Under the Exchange Act, 15 U.S.C. Section 78u-4, et seq., if multiple actions involving "substantially the same claim or claims" are filed with a court, the court tasked with selecting the Lead Plaintiff should postpone that selection "until after the decision on the motion to consolidate is rendered. As soon as practicable after such decision is rendered, the court will appoint the most adequate plaintiff as lead plaintiff for the consolidated actions in accordance with this paragraph. Judge Battaglia finds that the Wasa and the Calvo Actions assert claims against the same Defendants and involve common questions of law and fact. Both actions involve similar allegations on behalf of investors who purchased Sorrento common stock during the same Class Period. Thus, in the interest of judicial economy, consolidation is appropriate under Federal Rule of Civil Procedure 42. Accordingly, the Judge grants the parties' motions to consolidate. Next, Judge Battaglia addresses the motions for appointment of Lead Plaintiff. He explains that the PSLRA creates a rebuttable presumption that the most adequate plaintiff should be the plaintiff who: (1) has filed the complaint or brought the motion for appointment of lead counsel in response to the publication of notice, (2) has the "largest financial interest" in the relief sought by the class, and (3) otherwise satisfies the requirements of Federal Rule of Civil Procedure 23 ("Rule 23"). The presumption may be rebutted only upon proof that the presumptive lead plaintiff: (1) will not fairly and adequately protect the interests of the class or (2) is subject to "unique defenses" that render such plaintiff incapable of adequately representing the class. Under the PSLRA, a plaintiff who files a securities litigation class action must provide notice to class members via publication in a widely-circulated national business-oriented publication or wire service within 20 days of filing the complaint. In the case, all the movants timely moved for appointment as Lead Plaintiff, and therefore they all easily satisfy the procedural requirements necessary to serve as Lead Plaintiff. Next, pursuant to the PSLRA, the Court will be guided by a presumption that the most adequate lead plaintiff is the class member who has "the largest financial interest in the relief sought by the class." Based on the briefing submitted, it appears Li is the movant with the largest loss -- $454,341 -- Judge Battaglia finds. As such, Li has the largest financial interest at stake, and is the presumptive Lead Plaintiff. The next question to be addressed is whether Li also meets the Rule 23 requirements. If not, Judge Battaglia repeats the process with the movant with the next largest financial stake, until a typical and adequate Lead Plaintiff is ascertained. Because he concludes that Li does not satisfy the adequacy requirement, Judge Battaglia then considers whether the movant with the next largest financial stake, the SRNE Investor Group, satisfies Rule 23's requirements. He also concludes the group does not. Because he determined that the SRNE Investor Group does not meet the adequacy requirement of Rule 23, he must proceed to the movant with the next largest financial interest to determine whether that plaintiff satisfies the Rule 23 requirements. Judge Battaglia concludes that Zenoff has the next largest financial interest in the litigation and satisfies both Rule 23 requirements, making him the most appropriate movant to appoint as Lead Plaintiff. Zenoff's claimed loss is $195,500. While the amount is less than Li's financial interest, Zenoff's alleged monetary damage is nevertheless larger than the loss suffered by any of SRNE Investor Group's individual members. And, none of the competing movants mount a meaningful attack on Zenoff's typicality or adequacy to serve as Lead Plaintiff. His experience in investing in securities, coupled with his extensive background with leadership and management, makes him a suitable candidate for Lead Plaintiff. In conclusion, there is insufficient evidence to rebut the presumption of Zenoff as Lead Plaintiff. Finally, the PSLRA provides that the "most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class." Zenoff wishes to appoint Robbins Geller as Lead Counsel in the case. With more than 200 attorneys in offices nationwide, Robbins Geller has prosecuted numerous securities litigations and securities fraud class actions successfully on behalf of investors, including obtaining recoveries in excess of one billion dollars. Therefore, Judge Battaglia finds Robbins Geller has the resources and experience to effectively manage the class litigation. Thus, Robbins Geller is appointed as Lead Counsel. For the reasons he stated, Judge Battaglia granted Zenoff's motion for consolidation of related actions, appointment as Lead Plaintiff, and approval of selection of counsel in its entirety. He denied movants Dean Roller, the SRNE Investor Group, Mike Nguyen, Thomas Hammond, and Jing Li's motions to appoint Lead Plaintiff and to appoint Lead Counsel. Mike Nguyen's motion, Doc. No. 5, in the Calvo Action, Case. No. 20-cv-01066-AJB-DEB, is also denied. Judge Battaglia orderd as follows: 1) Pursuant to Federal Rule of Civil Procedure 42(a), Wasa Medical Holdings v. Sorrento Therapeutics, Inc. et al., 20-cv-00966-AJB-DEB, and Calvo v. Sorrento Therapeutics, Inc. et al., 20-cv-01066-AJB-DEB, and all related actions are consolidated for all purposes. The Order will apply to the Consolidated Action and to each case that relates to the same subject matter that is subsequently filed in the District or is transferred to the District and is consolidated with the Consolidated Action. 2) A Master File is established for this proceeding. The Master File will be Case No. 20-cv-00966-AJB-DEB. The Clerk of Court will file all pleadings in the Master File and note such filings on the Master Docket. 3) Every pleading in the Consolidated Action will bear the following caption: IN RE SORRENTO THERAPEUTICS, INC. SECURITIES LITIGATION, Case No. 20-cv-00966-AJB-DEB. 4) Pursuant to 15 U.S.C. Section 78u-4(a)(3)(B), Andrew Zenoff is appointed to serve as Lead Plaintiff in the Consolidated Action. 5) Pursuant to 15 U.S.C. Section 78u-4(a)(3)(B)(v), Andrew Zenoff's selection of Robbins Geller Rudman & Dowd LLP as Lead Counsel for the class is approved. The Lead Counsel will have the authority to speak for all the Plaintiffs and the class members in all matters regarding the litigation, including, but not limited to, pre-trial proceedings, motion practice, trial, and settlement. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/kdws9tpk from Leagle.com. SPRAGUE OPERATING: Cruz Suit Seeks Prevailing Wages for Drivers --------------------------------------------------------------- IVAN CRUZ and SEKHAR SAMAROO, individually and on behalf of all other persons similarly situated v. SPRAGUE OPERATING RESOURCES LLC, and STAR ENERGY TRANSPORTATION, INC., and/or any other entities that contracted or are affiliated with SPRAGUE OPERATING RESOURCES LLC or STAR ENERGY TRANSPORTATION, INC., Case No. 151242/2021 (N.Y. Sup., New York Cty., Feb. 4, 2021) seeks to recover prevailing wages and supplemental benefits that should have paid for the transportation and delivery of fossil fuel to government facilities throughout New York. This action is brought on behalf of the Plaintiffs and a class consisting of each and every other person who performed work as a Fuel Oil, Coal, Fuel Gas, Petroleum Product Chauffer, in connection with the transporting and delivering of fossil fuel to Government Buildings throughout New York in furtherance of contracts Sprague entered into for the transportation and delivery of fossil fuels to Government Buildings. The government facilities include public schools, fire and police stations, government office buildings, government operated vehicle storage and maintenance facilities, and courthouses (Government Buildings). The Plaintiffs contend that prevailing wage schedules published by the NYC Comptroller were made a part of the Sprague Contracts for the benefit of the Plaintiffs and the other members of the Putative Class. They alleges that Sprague breached these contracts by willfully failing to pay or ensure that the Plaintiffs and the other members of the Putative Class were paid the prevailing rates of wages and supplemental benefits for all labor performed transporting and delivering fuel oil, fuel gas, and other petroleum product to the Government Buildings. The Plaintiffs say that by reason of its breach of contract, Sprague is liable to them and the other members of the Putative Class in the amount to be determined at the trial, plus interest, costs, and attorneys' fees. Plaintiff Cruz is an individual residing in Queens, New York who has performed fossil fuel transport and delivery for one or both Defendants since 2015. Plaintiff Samaroo is an individual residing in Bronx, New York who performed fossil fuel transport and delivery for one or both Defendants since 2013. Star Energy is engaged in the fuel transport and delivery business. Sprague Operating Resources is engaged in the fossil fuel business.[BN] The Plaintiffs are represented by: Lloyd Ambinder, Esq. James Murphy, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street -- Seventh Floor New York, NY 10004 Telephone: 212-943-9080 - and - Innessa Melamed Huot, Esq. FARUQI & FARUQI, LLP 685 Third Avenue -- 26th Floor New York, NY 10017 Telephone: (212) 983-9330 SYNCHRONY FINANCIAL: Dismissal of Securities Suit Partly Affirmed ----------------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit affirms in part and reverses in part the district court's order dismissing the case, IN RE: SYNCHRONY FINANCIAL SECURITIES LITIGATION. STICHTING DEPOSITARY APG DEVELOPED MARKETS EQUITY POOL, STICHTING DEPOSITARY APG FIXED INCOME CREDITS POOL, Plaintiffs-Appellants, v. SYNCHRONY FINANCIAL, MARGARET M. KEANE, BRIAN D. DOUBLES, THOMAS M. QUINDLEN, DAVID MELITO, PAGET ALVES, ARTHUR COVIELLO, JR., WILLIAM GRAYLIN, ROY GUTHRIE, RICHARD HARTNACK, JEFFREY NAYLOR, LAUREL RICHIE, OLYMPIA SNOWE, BARCLAYS CAPITAL INC., MIZUHO SECURITIES USA LLC, MORGAN STANLEY & CO. LLC, TD SECURITIES (USA) LLC, BLAYLOCK VAN, LLC, CASTLEOAK SECURITIES, L.P., MISCHLER FINANCIAL GROUP, INC., R. SEELAUS & CO., INC., THE WILLIAMS CAPITAL GROUP, L.P., Defendants-Appellees, Case Nos. 20-1352, 20-1352-cv (2d Cir.). Plaintiffs-Appellants Stichting Depositary APG Developed Markets Equity Pool and Stichting Depositary APG Fixed Income Credits Pool were appointed Lead Plaintiffs in the putative class action against, inter alia, Synchrony. Stichting is allegedly one of the largest institutional investors in the world, and purchased shares of publicly traded Synchrony stock between Oct. 21, 2016 and Nov. 1, 2018. It also purchased Synchrony 3.95% bonds due 2027 ("Notes") traceable to Synchrony's Dec. 1, 2017 note offering. Defendant-Appellee Synchrony is a Delaware corporation that operates in the consumer financial services industry. For the relevant period, Margaret M. Keane was Synchrony's CEO and President, Brian D. Doubles was Synchrony's CFO and Executive VP, and Thomas M. Quindlen was another EVP and Synchrony's CEO of Retail Cards. All three, along with Synchrony, are Defendants to Stichting's Exchange Act claims ("Exchange Act Defendants"). Stichting brought its Securities Act claim against Keane, Doubles, and the following additional individuals: David Melito, Synchrony's Senior Vice President ("SVP"), Chief Accounting Officer ("CAO"), and Controller, and Paget Alves, Arthur Coviello, Jr., William Graylin, Roy Guthrie, Richard Hartnack, Jeffrey Naylor, Laurel Richie, and Olympia Snowe, all members of Synchrony's Board of Directors ("BOD"). It also named several financial institutions as defendants to the Securities Act claim. They were all allegedly involved with the Offering: Barclays Capital Inc.; Mizuho Securities USA LLC; Morgan Stanley & Co. LLC; TD Securities (USA) LLC; Blaylock Van, LLC; CastleOak Securities, L.P.; Mischler Financial Group, Inc.; R. Seelaus & Co., Inc.; and The Williams Capital Group, L.P. ("Securities Act Defendants"). Synchrony is the largest provider of private label credit cards ("PLCC") in the United States. A PLCC bears the name of a specific retailer (e.g., Sam's Club, Amazon, Lowe's) and can be used only for purchases with that retailer. Within the triangle of retailer, Synchrony, and consumers, each actor experiences different incentives and rewards. One of Synchrony's most important retail partners was Walmart. Indeed, Stichting alleges that Walmart was so significant to Synchrony's business that Synchrony maintained an office in Arkansas, near Walmart's headquarters. Between 2011 and 2016, Synchrony allegedly converted a number of Walmart PLCC-holders to Dual Cardholders, pursuant to its "low and grow" strategy. By 2016, the "low and grow" strategy began to backfire. Nevertheless, Synchrony representatives continued to publicly maintain that any changes to its underwriting standards were minimal. On April 28, 2017, Synchrony announced a 14% decline in annual net income. It attributed the loss to its poorly performing loan portfolio, citing higher net charge-off rates. Following the announcement, Synchrony's stock price dropped nearly 16%. Stichting brought claims under Section 10(b) of the Exchange Act and Rule 10b-5 of Securities and Exchange Commission ("SEC") regulations against the Exchange Act Defendants and Sections 20A and 20(a) of the Exchange Act against Keane, Doubles, and Quindlen. In addition to the officers' oral statements, Stichting alleges material misrepresentations in registration documents submitted to the SEC in 2016 and 2017 in connection with the Offering. Stichting cites Synchrony's assertions in its 2016 Form 10-K that it benefits from longstanding and collaborative relationships with partners, including some of the nation's leading retailers and manufacturers, and its practices align Synchrony's interests with those of its partners. Synchrony also stated that it had "stable asset quality," that the credit environment remained favorable during 2016, that it did not anticipate making "significant changes" to its underwriting standards, and net charge-off rates remained "relatively stable." These written statements underlie Synchrony's Securities Act claims, brought under Sections 11 and 15. The district court consolidated the instant action with two shareholder derivative actions, but later granted a motion by derivative Plaintiffs to separate the cases. Stichting then filed an amended complaint. The Defendants moved to dismiss the amended complaint pursuant to Federal Rules 9 and 12(b)(6). While the motion to dismiss was pending, Stichting filed a motion for a partial modification of the discovery stay on the case, pursuant to the PSLRA. The district court issued a ruling and order dismissing the case in its entirety and a text order dismissing the motion to modify the PSLRA discovery stay as moot. In its ruling and order on the motion to dismiss, the district court divided the allegations into statements made before and after April 28, 2017, the date when Synchrony first began disclosing disappointing returns resulting from its poorly performing credit portfolio. It explained that phrases like "stable asset quality," "relatively stable" net charge-off rates, and "disciplined" underwriting were not material misstatements that an investor could reasonably have relied upon when the total mix of public information disclosed contextualizing details about the underwriting changes. According to the district court, sufficient cautionary language existed elsewhere in the disclosures to make these purported "omissions" or "misstatements" immaterial. Moreover, on earnings calls, Synchrony officers repeatedly mentioned that Synchrony was "always making tweaks and refinements" to their underwriting standards, sufficiently contextualizing other adjectives like "consistent" or "disciplined." In any event, according to the district court, many of the cited phrases and adjectives constituted nothing more than inactionable puffery or opinion. The district court also explained that disclosures or admissions made after April 28, 2017 could not constitute evidence of earlier alleged misrepresentations because the Plaintiffs may not "proceed with allegations of fraud by hindsight." Stichting must do more than allege that the Defendants could not have actually believed that loan loss reserves were adequate because they later increased reserves. As for comments regarding Synchrony's relationships with retail partners, the district court concluded that all of them were not more than "vague statements of optimism or expressions of opinion." Because they were too general to create a duty to disclose or further update investors on the state of renegotiations with Walmart and other partners, Synchrony did not violate any duties by failing to explicitly warn investors that it was at risk of losing their Walmart contract. The district court construed Stichting's allegations on this matter as not more than alleging "lack of clairvoyance" as to the uncertain state of the Walmart contract renewal. Id. (internal quotation marks omitted). In doing so, the district court made no reference to the statements from the former employees or the WSJ articles set out in the amended complaint. The district court next disposed of the statements that Synchrony's interests were "completely aligned" with those of its retail partners as too vague to constitute a material misrepresentation when viewed with the total mix of public information, which admitted the consumer finance industry was competitive. Italso relied on portions of Walmart's complaint against Synchrony to debunk Stichting's theory that Walmart was unhappy with Synchrony for tightened underwriting standards; instead, it seemed that Walmart sued Synchrony for being too lax with its underwriting practices. Because the district court dismissed the purported misrepresentations on generality grounds, it did not reach the questions of scienter and loss causation. The district court then dismissed Stichting's Section 20A and 20(a) claims as dependent on plausibly alleging violations of Section 10(b) of the Exchange Act. Next, the district court turned to the Securities Act claims. Focusing on only the purported misstatements made in the Offering materials, it concluded that the "touting" of a "partner-centric model" was at best inactionable corporate puffery. It also concluded the Section 11 Securities Act claims were time-barred, as Synchrony began disclosing its problems on April 28, 2017 and Stichting filed its amended complaint filed on April 5, 2019—too late for Section 11's one-year statute of limitations. The district court dismissed the Section 15 claim because a plausibly alleged Section 11 claim was a prerequisite. It also denied leave to amend, concluding that amendment would be futile. Stichting filed a timely notice of appeal. The Second Circuit opines that securities fraud cases are often complex and costly, so the pleading standards for such cases are demanding. However, even securities plaintiffs need not prove their entire case within the confines of the complaint. Equally as important as concerns about facilitating overly burdensome and expensive discovery and litigation are concerns about prematurely dismissing cases where plaintiffs have plausibly alleged with particularity the existence of securities fraud. In applying Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act ("PSLRA"), the Second Circuit must be careful not to mistake heightened pleading standards for impossible ones. Although the district court conducted a sound analysis as to many of the instant allegations before dismissing the Plaintiffs' case, the Second Circuit opines that one set of allegations was materially distinct and should have survived. The Second Circuit holds that the district court properly dismissed several optimistic generalities about Synchrony's business operations as inactionable corporate puffery. But some of the Plaintiffs' allegations paint a more specific narrative. In relevant part, the Plaintiffs allege that, in early 2018, Synchrony representatives stated the company had received no "pushback" from its retail partners in the face of certain changes to the company's underwriting standards and credit portfolio. However, multiple former employees and the Wall Street Journal allegedly reported that Synchrony's relationship with its then-largest retail partner, Walmart, was swiftly deteriorating in 2017 because of those changes. The Plaintiffs thus plausibly alleged that Synchrony misrepresented facts pertaining to events that had already transpired, in violation of the Exchange Act, and those allegations sufficed to survive a motion to dismiss. As for the remaining allegations, the Second Circuit affirms their dismissal. The Second Circuit concludes that although it agrees with most of the district court's well-reasoned ruling, the fraud allegations premised on the statement about "pushback" from retail partners were stated with sufficient particularity to survive a motion to dismiss. Accordingly, it reinstates only the portion of the Exchange Act claims related to those allegations and otherwise affirms the dismissal of the other Exchange Act and Securities Act claims. It has considered Stichting's remaining arguments and finds them to be without merit. Accordingly, the Second Circuit affirms in part and reverses in part, and remands for further proceedings consistent with its Opinion. A full-text copy of the Court's Feb. 16, 2021 Opinion is available at https://tinyurl.com/5bsbz4fy from Leagle.com. SALVATORE J. GRAZIANO -- sgraziano@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, (Adam H. Wierzbowski, Kate W. Aufses, Matthew W. Traylor, on the brief), in New York City, for Plaintiffs-Appellants. William H. Narwold -- bnarwold@motleyrice.com -- Gregg S. Levin -- glevin@motleyrice.com -- Motley Rice LLC, in Hartford, Connecticut, and Mount Pleasant, South Carolina (on the brief), for Plaintiffs-Appellants. VICTOR L. HOU -- vhou@cgsh.com -- Cleary Gottlieb Steen & Hamilton LLP, (Jared Gerber -- jgerber@cgsh.com -- on the brief), in New York City, for Defendants-Appellees Synchrony Financial, Margaret M. Keane, Brian D. Doubles, Thomas M. Quindlen, David Melito, Paget Alves, Arthur Coviello, Jr., William Graylin, Roy Guthrie, Richard Hartnack, Jeffrey Naylor, Laurel Richie, and Olympia Snowe. James T. Shearin -- jtshearin@pullcom.com -- Pullman & Comley LLC, in Bridgeport, Connecticut (on the brief), for Defendants-Appellees Synchrony Financial, Margaret M. Keane, Brian D. Doubles, Thomas M. Quindlen, David Melito, Paget Alves, Arthur Coviello, Jr., William Graylin, Roy Guthrie, Richard Hartnack, Jeffrey Naylor, Laurel Richie, and Olympia Snowe. Adam S. Hakki -- ahakki@shearman.com -- Daniel C. Lewis -- daniel.lewis@shearman.com -- Shearman & Sterling LLP, (on the brief), in New York City, for Defendants-Appellees Barclays Capital Inc., Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, TD Securities (USA) LLC, Blaylock Van, LLC, CastleOak Securities, L.P., Mischler Financial Group, Inc., R. Seelaus & Co., Inc., and The Williams Capital Group, L.P. TENNESSEE WHOLESALE: Williams Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Tennessee Wholesale Nursery, LLC. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Tennessee Wholesale Nursery, LLC, Case No. 1:21-cv-01490 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tennessee Wholesale Nursery -- https://www.tennesseewholesalenursery.com/ -- offers real wholesale prices on quality nursery plants and woody perennial.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal TENNESSEE: Bid to Certify Class in Green Prisoners Suit Denied -------------------------------------------------------------- In the case, MARVIN GREEN, ANTHONY HERVEY, JAMES JONES, KENDRICK MERRITT, NATHANIEL WILMOTH, THOMAS PRUITT, and JEFFREY COFFEY, Plaintiffs v. TONY PARKER, F/N/U SELLERS, AND TAUREAN JAMES, Defendants, Case No. 2:20-cv-02781-JTF-atc (W.D. Tenn.), Judge John T. Fowlkes of the U.S. District Court for the Western District of Tennessee, Western Division: (1) denied the Plaintiffs' motion to certify case as class action; (2) denied the Plaintiffs' motion for reconsideration of the Court's Jan. 8, 2021 Order Dismissing Complaint Without Prejudice and Granting Leave To Amend; and (3) granted the Plaintiffs' motion for extension of time to amend complaint. Certification Motion In the Jan. 8, 2021 Order, the Court directed the Clerk to "remove 'Tennessee Prisoners' as Plaintiffs, as the matter was neither filed as, nor certified as, a class action." On Jan. 25, 2021, the Plaintiffs moved to certify the case as a class action because there are more than two Plaintiffs with all the same common facts. Their Certification Motion offers no basis for class certification, and the record itself suggests to the Court no plausible basis for certification. Judge Fowlkes finds that the Plaintiffs' Certification Motion falls far short of meeting Fed. R. Civ. P. 23(a)'s prerequisites to class certification, which renders unnecessary any discussion of Rule 23(b)(3)'s requirements. Their Certification Motion is denied. As to Rule 23(a) numerosity, the Plaintiffs' mere statement about there being "more than two plaintiffs" in the case is clearly inadequate to meet Rule 23(a)(1)'s numerosity prerequisite. As to Rule 23(a) commonality, the Plaintiffs do not demonstrate that their claims and those of any putative class share a common legal question that is capable of classwide resolution. In fact, they do not even explain what they refer to regarding "all the same facts." As to Rule 23(a) typicality, Judge Fowlkes is unable to determine whether the three named Plaintiffs' claims arise from the same occurrences as those of class members on whose behalf they purport to sue. Finally, as to Rule 23(a)'s adequacy of representation prong, the Certification Motion is completely silent as to the adequacy of representation prong and leaves the Court unable to conduct the mandated rigorous analysis. Reconsideration Motion The Jan. 8, 2021 Order ruled that Green failed to state a claim to relief for deprivation of prison employment and education. The Plaintiffs' Jan. 25, 2021 Reconsideration Motion argues that the Order misconstrued plaintiff factual allegations. It contends that the Section 1983 complaint in the case alleges deprivation of constitutional rights regarding jobs and education in society not in prison. Judge Fowlkes construes the Plaintiffs' Reconsideration Motion as an application pursuant to Fed. R. Civ. P. 60(b). Under Rule 60(b), a court may grant a party relief from a final judgment because of one of several defined reasons, including mistake or inadvertence, newly discovered evidence, fraud, if there is a defect in the judgment, or for any other reason justifying relief. As a prerequisite to relief under Rule 60(b), a party must establish that the facts of its case are within one of the enumerated reasons contained in Rule 60(b) that warrant relief from judgment. The Judge finds that the Plaintiffs' Reconsideration Motion does not fit within this framework. The Plaintiffs have not demonstrated mistake, inadvertence, newly discovered evidence, fraud, or defect in the Order. Their Reconsideration Motion's theory of a constitutional right to private employment is fatally flawed. As the Order found, the inability to participate in inmate transitional programs for education and employment does not violate the Constitution. Nothing in the Reconsideration Motion persuades the Court that the Order was incorrect about prisoners' constitutional rights to jobs, whether within or outside a jail. For all of these reasons, the Reconsideration Motion is denied. Extension Motion The Plaintiffs' Extension Motion seeks a stay of the filing of an amended complaint until disposition of the Reconsideration Motion. Given that the Order previously afforded leave to amend; the Plaintiffs are appearing pro se; and they demonstrated interest in clarifying the Order's ruling before proceeding to the next phase of prosecuting their claims, Judge Fowlkes finds good cause for extending their deadline to amend. He granted the Extension Motion. Any amendment must be filed within 21 days after the date of the order and must be filed under the terms set forth in the prior Order. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/125ui0fx from Leagle.com. TFC PARTNERS: Fails to Pay Wages for all Hours Worked, Jones Says ----------------------------------------------------------------- JAMES JONES, as an individual and on behalf of all others similarly situated v. TFC PARTNERS, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Case No. RG21087839 (Cal. Super., Alameda Cty., Feb. 4, 2021) seeks penalties and/or damages under the California Labor Code and the California Business & Professions Code, resulting from the Defendant's failure to provide off-duty meal and rest periods, failure to pay wages for all hours worked, failure to provide accurate itemized wage statements, and failure to maintain accurate time records. The Plaintiff contends that as a pattern and practice, the Defendants regularly required employees to work their meal periods without proper compensation and denied him and Class Members right to take proper meal periods as required by law. He adds that such a pattern, practice and uniform administration of corporate policy is unlawful and creates an entitlement to recovery by him and the Class in a civil action, for the unpaid balance of the unpaid premium compensation pursuant to the California Labor Code. The Plaintiff is a former employee of the Defendant. He was employed by the Defendant as a Concierge from March 29, 2020, to on December 31, 2020. Throughout his employment with the Defendant, he worked as a non-exempt employee. TFC Partners was founded in 2010. The company's line of business includes the arranging of transportation of freight and cargo.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. Mai Tulyathan, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 - and - Kelsey A. Webber, Esq. WEBBER LAW GROUP 333 University Ave, Suite 200 Sacramento, CA 95825 Telephone: (916) 588-0683 Kelsey.Webber@WebberLawGroup.com TV GUIDE: Sanchez Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against TV Guide Magazine, LLC. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. TV Guide Magazine, LLC, Case No. 1:21-cv-01439 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. TV Guide Magazine, LLC -- https://www.tvguidemagazine.com/ -- publishes and prints magazines. The Company publishes news, articles on celebrities, television shows, and other contents.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal TYSON FOODS: Schall Law Firm Reminds of April 5 Deadline -------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on Feb. 16 announced the filing of a class action lawsuit against Tyson Foods, Inc. ("Tyson" or "the Company") (NYSE:TSN) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between March 13, 2020 and December 15, 2020, inclusive (the "Class Period"), are encouraged to contact the firm before April 5, 2021. 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. Tyson knew that coronavirus was both highly contagious and spreading around the world. The Company failed to implement appropriate safety protocols for its employees. Based on this failure, the Company's employees spread coronavirus throughout its facilities. The Company's production was thereby hampered, including complete shutdowns at some facilities, causing financial harm. 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 Tyson, 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. CONTACT: The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] UBER TECHNOLOGIES: Hogan Lovells Attorneys Discuss Court Ruling --------------------------------------------------------------- Michael Hefter, Esq. -- michael.hefter@hoganlovells.com -- Ryan Philp, Esq. -- ryan.philp@hoganlovells.com -- William Regan, Esq. -- william.regan@hoganlovells.com -- and Jon Talotta, Esq., of Hogan Lovells, in an article for JDSupra, provided Quarterly Corporate / M&A Decisions Update for decisions in Q4 2020. This update is designed to highlight selected important M&A, corporate, and commercial court decisions on a quarterly basis. Brief summaries of each decision appear below with links to more robust discussions. In re Nine West LBO Sec. Litig., No. 20 MD. 2941 (S.D.N.Y. Dec. 4, 2020) Summary In 2014, Sycamore Partners Management LP (Sycamore) acquired The Jones Group (Jones) in a leveraged buyout. The merger provided for five different components: (1) Jones would merge with a Sycamore affiliate and become "Nine West Holdings" (Nine West); (2) Sycamore would contribute at least US$395 million in equity to Nine West; (3) Nine West would increase its debt from US$1 billion to US$1.2 billion; (4) Jones shareholders would receive US$15 per share; and (5) two high-end brands, along with another business unit, would be sold to other Sycamore affiliates for less than fair market value. The Jones board approved the merger unanimously. Before the deal closed, however, Sycamore changed the terms, contributing less equity and causing Nine West to incur more debt. Following the closing of the deal, several stockholders filed suit. Nine West created a special litigation committee (SLC) to investigate the claims; the SLC recommended the company not pursue the stockholder claims, which were subsequently settled. Four years after the merger closed, Nine West filed for bankruptcy. Nine West's litigation trustee and indenture trustee filed suit against the former officers and directors of Jones, alleging breach of fiduciary duties, aiding and abetting breach of fiduciary duty, fraudulent conveyance, unjust enrichment, and violations of state law, all in connection with the 2014 merger. Both the officers and directors moved to dismiss. The court granted in part and denied in part the motions. The court began its analysis by addressing several procedural arguments the defendants made. First, the court found that the litigation trustee was not a "Releasing Person" under the settlement, and thus the 2014 settlement of the stockholder derivative claims did not release any claims he had against the officers and directors. Second, the defendants argued that the litigation trustee's claims were barred by res judicata based on the 2014 litigation. The court disagreed, finding that the stockholder claims and the litigation trustee's claims pursued different interests. The 2014 stockholder claims alleged that the defendants sold the company for too little, while the litigation trustee alleged that the defendants distributed too much money to shareholders, thereby bankrupting the company. Therefore, the shareholders that brought the derivative claims did not represent the interests of the litigation trustee. Third, the court found that as a matter of applicable state law, the conclusion of the company's special litigation committee bore only on the stockholder claims, not claims asserted by the company or the litigation trustee. Moving on to the defendants' substantive arguments, the court denied the director defendants' motion to dismiss the claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty against the directors. The court considered whether the litigation trustee had rebutted the application of the business judgment rule by alleging either (1) that the majority of the board was interested in the transaction, or (2) the directors did not approve the transaction in good faith after a reasonable investigation. The court found that the litigation trustee failed to plead that the directors were interested in the transaction. However, the court concluded that the litigation trustee successfully pleaded that the directors failed to conduct a reasonable investigation into whether the 2014 transaction "as a whole" would render Nine West insolvent. Rejecting the argument that the director defendants had no obligation to investigate the impact of post-closing transactions that they would not be asked to authorize on Nine West's solvency, the court found that the litigation trustee adequately pleaded that the multiple steps of the LBO transaction "collapse into a single integrated plan" and that the harm -- potential insolvency -- was "foreseeable." The court also found evidence of recklessness, thereby precluding the application of the company's exculpatory clause. However, the court granted the non-director officers' motion to dismiss the fiduciary duty claims, finding that the litigation trustee failed to allege that the officers had the ability to halt the transaction. As for the remaining claims, the court also found that the fraudulent conveyance claims against the officers could go forward against certain officers, while the claims against others were time-barred. The officers' motion to dismiss the unjust enrichment claims was uncontested, and therefore the court dismissed those as well. AB Stable VIII LLC v. MAPS Hotels and Resorts One, LLC, No. 2020-0310-JTL (Del. Ch. Nov. 30, 2020) Summary On September 10, 2019, a subsidiary of a Chinese conglomerate (the Seller) agreed to sell its interests in Strategic Hotels & Resorts LLC, a company that owns fifteen luxury hotels, to Mirae Asset Financial Group (the Buyer), a Korean financial services company, for US$5.8 billion. Closing was to occur on April 17, 2020, but the Buyer declined to close, asserting that the pandemic constituted an MAE excusing the Buyer from performing and that the Seller had not satisfied its obligation to operate the business in the ordinary course, including because the Seller had taken extraordinary steps, such as shutting down hotels, in response to the pandemic. On April 27, 2020, the Seller sued in an attempt to force the sale, and the Buyer responded by filing for declaratory relief. The court rejected the Buyer's MAE argument, finding that the pandemic fell within a contractual MAE exclusion for "calamities" even though the exclusion did not cover pandemics expressly. Applying principles of contract interpretation, the court held that a plain reading of the exception for "calamities" encompassed the effects resulting from the COVID-19 pandemic with reference to certain dictionary definitions of the term, among other things. The court agreed with the Buyer, however, on the issue of whether the Seller had operated the target business in the ordinary course. The court found that the Seller had operated the business in an extraordinary manner that was not consistent with the Seller's past practice in response to the pandemic, thus violating the Seller's ordinary course covenant, satisfaction of which was a condition to closing. In so holding, the court rejected the Seller's argument that management must be afforded flexibility to engage in "ordinary responses to extraordinary events[,]" such that management should be deemed to have "operated in the ordinary course of business based on what is ordinary during a pandemic." The court also found that the Seller was not able to produce clean title insurance, as required in the contract, after failing to disclose numerous pending lawsuits. Pettry v. Gilead Sciences, Inc., C.A. No. 2020-0173-KSJM (Del. Ch. Nov. 24, 2020) Summary In 2001, Gilead received FDA approval for a life-saving HIV drug, Viread® (tenofovir disoproxil fumarate (TDF)). In late 2019 and early 2020, four sets of plaintiffs sent Gilead books and records demand under Section 220 of the Delaware General Corporate Law. The demands alleged that Gilead sought to protect the market for TDF by delaying market entry of generic versions of TDF and delaying the development of a safer substitute of TDF, tenofovir alafenamide (TAF). The plaintiffs sought to inspect documents relating to these allegations. After Gilead declined to provide documents in response to the demands, each of the plaintiffs filed suit. Gilead answered the complaints and requested that the court order the plaintiffs to coordinate their efforts, which the parties subsequently stipulated to do. Gilead moved for a protective order against discovery requests directed at it, which the court denied. The court held a trial on June 23, 2020 and the parties completed post-trial briefing on August 26, 2020. Based on all the evidence before it, the court ordered that Gilead produce certain categories of documents and pay the plaintiffs' attorneys fees. In Delaware, "[w]hen a stockholder seeks inspection for the purpose of investigating wrongdoing, the stockholder must demonstrate a credible basis to suspect possible wrongdoing." The "credible basis" standard imposes "the lowest possible burden of proof," which does not require a stockholder to prove that the wrongdoing "actually occurred," or "to show by a preponderance of the evidence that wrongdoing is probable." The court concluded that the plaintiffs met this standard, rejecting all of Gilead's arguments, which the court characterized as largely going to the merits of the dispute. Ultimately, the court found that the plaintiffs had put forward sufficient evidence to demonstrate that there was a "credible basis" to seek books and records from Gilead under Section 220. In addition, the court granted the plaintiffs leave to move for fee-shifting. In re Mindbody, Inc. Stockholders Litigation, No. 2019-0442-KSJM (Del. Ch. Oct. 2, 2020) Summary Richard Stollmeyer founded Mindbody, Inc. (Mindbody or the Company) in 2001 and became the Chairman of the board of directors and CEO of the company in 2004. In 2012, venture capital firm Institutional Venture Partners (IVP) purchased stock in Mindbody and, in 2014, IVP's general partner, Eric Liaw, was appointed to the Mindbody board of directors. Following two key acquisitions in 2018, Mindbody's stock price increased significantly. Before Mindbody went public in 2015, and again in 2017, Stollmeyer communicated with Vista Equity Partners (Vista) regarding the prospect of a take-private sale of Mindbody. Vista, however, "chose not to engage in buyout talks at that time because Mindbody stock was trading 'at an all-time high.'" In 2018, however, Vista changed its mind and expressed interest in acquiring Mindbody. Following the expression of interest, Mindbody management lowered the Company's guidance and, on the earnings call for Q4 2018, noted several challenges facing the Company. In response, Mindbody's stock price fell. Later in November 2018, Mindbody pursued a take-private transaction, forming a Transaction Committee that hired a financial advisor to select potential bidders, including Vista. After some price negotiation, on December 23, 2018, the board approved the sale to Vista, which was announced on December 24, 2018. Following the announcement of the transaction with Vista, the plaintiffs brought suit against Stollmeyer, Brett White, Mindbody's CFO and COO, and Liaw, alleging that they breached their fiduciary duties by "initiating, timing, and tilting the sales process in favor of Vista in their own self-interest" and by "failing to disclose all material information to Mindbody stockholders' in advance of the stockholder vote on the Merger." The shareholders asserted that each was conflicted because: (1) Stollmeyer was motivated by his desire to obtain liquidity and the prospect of future employment, (2) Liaw was motivated by IVP's desire to exit the investment, and (3) White was motivated by the prospect of future employment. The court declined to dismiss the claims against Stollmeyer and White. Applying enhanced scrutiny under Revlon, the court found that the plaintiffs sufficiently alleged that Stollmeyer was motivated by his own desire for liquidity and his own employment prospects, and that Stollmeyer purposely drove down the stock price and provided Vista with "information and timing advantages" throughout the sales process. In so holding, the court held that the formation of an independent committee to oversee the transaction, standing alone, was insufficient to overcome a pleading-stage inference of conflict. Similarly, the court concluded that the plaintiffs' adequately alleged that White either acted with gross negligence or reckless indifference throughout the sales process, including in altering Mindbody's forecasts and providing timing and informational advantages to Vista. With regard to Liaw, however, the plaintiffs' allegations that Liaw was motivated to liquidate IVP's investment were insufficient to allege a claim for breach of fiduciary duty. The court found the complaint lacked any allegations that Liaw was involved in lowering the Company's guidance or in providing Vista any advantages during the sales process. Finally, the court declined to find that a fully informed stockholder vote supported dismissal under Corwin. Based on the allegations against Stollmeyer, the court stated that "[g]enerally, where facts alleged make the paradigmatic Revlon claim reasonably conceivable, it will be difficult to show on a motion to dismiss that the stockholder vote was fully informed." Here, the court found that the allegations regarding Stollmeyer's alleged undisclosed conflicts were sufficient to defeat a Corwin defense at the pleading stage. In re Solera Insurance Coverage Appeals, No. 413, 2019 (Del. Oct. 23, 2020) Summary Solera Holdings, Inc. (Solera), a software company, carried excess D&O insurance policies, with coverage up to US$55 million, from three different insurers. The Delaware Superior Court previously found that the D&O insurance policies covered costs stemming from an appraisal action against Solera following Solera's acquisition by an affiliate of Vista Equity in 2016 for US$55.85 a share. After a full hearing, the trial court determined that fair value was US$53.95, less than what Solera's shareholders received in the acquisition. But Solera was ordered to pay US$38 million in pre-judgment interest, and incurred US$13 million in fees in connection with those proceedings. Solera sought to recover those amounts under its D&O policies. The D&O policy language at issue related to losses resulting from "any Securities Claim," a term specifically defined in the policy as "any actual or alleged violation" of a securities law. The court's analysis centered on whether an appraisal action could reasonably be described as stemming from a "violation" of a law or rule regulating securities and whether allegations of wrongdoing were required for a matter to be a "Securities Claim" under the D&O Policy. The trial court held that a "violation" did not require an allegation of wrongdoing, and thus a demand for appraisal - which "is an allegation that the company contravened" the right of shareholders to receive fair value - was a "Securities Claim" under the policy. Reversing that decision, the Delaware Supreme Court held that the plain meaning of "violation" indicates an element of wrongdoing and that the wrongdoing is largely irrelevant to an appraisal action. The statutory appraisal action, the court held, was designed to remedy a specific problem of individual shareholders withholding consent and blocking mergers by providing a method for such shareholders to obtain a neutral, "independent" assessment of fair value. The court acknowledged that there are cases in which courts look at indicators of unfairness in the sales process in ascertaining fair value, which could suggest that wrongdoing was an important consideration, but held that this inquiry only went to the weight of the corporation's evidence of fair value, but was not otherwise relevant to an appraisal action. In re Uber Technologies, Inc. Securities Litigation, No. GCG-19-579544 (Cal. Super. Ct. Nov. 16, 2020) Summary In 2018, the U.S. Supreme Court ruled in Cyan Inc. v. Beaver County Employees Retirement Fund that state and federal courts have concurrent jurisdiction over claims brought under the Securities Act of 1933. That decision led to a significant increase in securities class action lawsuits filed in state courts.. In response to the Cyan ruling, numerous corporations added a provision to their certificate of incorporation or charter requiring that any claims brought under the Securities Act be brought exclusively in federal court. If enforced, these provisions could limit or prevent plaintiffs from bringing securities class actions in state court under Cyan. In re Uber joins a growing list of cases in which these clauses have been tested and found to be enforceable. The plaintiffs in Uber brought Securities Act claims in California state court against Uber and certain officers, directors, and underwriters involved in Uber's IPO, alleging that Uber's offering documents omitted material facts necessary to make other statements not misleading. The plaintiffs filed similar claims in federal court, but violated the forum selection clause in Uber's charter by also bringing suit in state court. The charter provided that federal court "shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act." The court found that Uber's forum selection clause was enforceable and dismissed the complaint in its entirety, including with respect to the underwriter defendants, who were not parties to the charter. The court found that the forum selection clause did not violate the Securities Act's bar on removal to federal court, and did not violate Cyan because Cyan dealt with jurisdiction rather than the enforceability of a contractual forum selection clause. The court also found that the forum selection clause was not substantively unconscionable or otherwise unenforceable because Uber's stockholders were on notice of the terms of Uber's charter when they purchased Uber's stock, and that enforcing the forum selection clause was therefore within a reasonable buyer's expectations. The court agreed with the plaintiffs that the forum selection clause, which was located deep within Uber's governing documents, was procedurally unconscionable, but this finding was insufficient to invalidate the clause because the court found it was not substantively unconscionable, including because the clause did not eliminate or otherwise limit the plaintiffs' substantive rights under the Securities Act and only affected the forum in which those claims could be brought. Finally, the court dismissed the plaintiffs' claims against the underwriter defendants involved in Uber's IPO on the grounds that Uber's forum selection clause was broadly drafted to cover "any complaint" arising under the Securities Act. Travelport Ltd and others v WEX Inc; Olding and others v WEX Inc ([2020] EWHC 2670 (Comm)) (English High Court, Queen's Bench Division (Commercial Court)) Summary In this case, the first English commercial court dispute which was brought about by the COVID-19 pandemic, the court was asked, at a preliminary hearing, to construe Material Adverse Effect (MAE) provisions in a share purchase agreement (SPA). WEX Inc, a fintech providing corporate payments solutions, entered into an SPA to purchase 100 percent of the shares in eNett Ltd and Optal Ltd (together, the Target) for US$1.7 billion. The Target's business was providing virtual payment solutions, with 97 percent of its client base in the travel industry. The MAE provisions in the SPA at the center of the dispute operated such that, if conditions resulting from the pandemic caused a disproportionate effect on the Target's financial condition as compared to other participants in the Target's industry, WEX was not obliged to close. WEX alleged that a MAE had occurred due to the COVID-19 pandemic. The sellers, being the shareholders of the Target, alleged otherwise and brought an action seeking specific performance. The central question at the preliminary hearing was which "industry" the Target should be measured against for purposes of determining if the Target had suffered a disproportionate impact from the COVID-19 pandemic that could constitute an MAE. WEX contended that the term "industry" should be construed as referring to the business-to-business (B2B) payments industry, which is the broad industry the Target operates in. The Sellers contended that it was the travel payments industry (TPI), which comprises participants who deal in B2B payment products in the travel industry and is effectively a sector within the broader B2B payments industry. The court found that the word "industry" should be given its ordinary and natural meaning because in a heavily negotiated contract the court "must assume that all wording has been carefully scrutinized by lawyers and is used wittingly and advisedly." The court also considered Delaware law, particularly Akorn Inc v Fresenius Kabi AG, No. 2018-0300-JTL, 2018 WL 4719347 (Del. Ch. October 1, 2018), for guidance as to the purpose of MAE provisions in M&A agreements, which indicated that they operate to allocate market/industry risk to the buyer, and company-specific risk, to the seller. The court noted that foreign law was informative rather than binding, and that the parties were ultimately at liberty to allocate risks through an MAE clause through the language they chose. Given the dearth of English case law on MAE provisions, this was a significant decision, which illustrates the need for careful drafting of MAE provisions in M&A agreements. In its ruling, the court stated that the term "industry," in a sense, "helped no-one" and that "it may well be that one result of this case is that future drafters will do differently." [GN] UBS AG: Tel Aviv Court Tosses LIBOR Manipulation Class Action ------------------------------------------------------------- Erdinast, Ben Nathan, Toledano & Co, in an article for Lexology, reports that in a recent decision, the Tel Aviv District Court dismissed a class action filed against five foreign banks. Some of the foreign banks asked to dismiss a motion to certify a personal claim as a class action which was filed by "Hatzlacha" - The Movement for the Promotion of a Fair Society, that promotes proper civil enforcement of economic regulation and compliance in Israel. Hatzlacha sought to represent a group of banks, insurance firms, funds, and other financial institutions that had been directly injured by an alleged LIBOR manipulation, a rate-fixing scheme, in which several major banks manipulated the London Interbank Offered Rate (LIBOR), causing financial harm to many financial institutions worldwide. Two private investors that had investments in the allegedly injured financial institutions filed the motion as indirect victims of the LIBOR manipulation. The District Court ruled that the plaintiffs did not prove that they have a cause of action against the foreign banks. The Court ruled that there was no need for Hatzlacha to represent the financial institutions directly injured by the LIBOR manipulation. The Court stated that the financial institutions allegedly injured by the manipulation are able to file claims themselves, if they believe they have a cause of action, and there is no room for a private, indirect, plaintiff to step in. Furthermore, the court ruled that only the financial institutions themselves have a credible cause of action against the foreign banks, whereas private investors lack privity. The Court also ruled that private investors do not own financial instruments which were affected by the alleged LIBOR manipulation and in any case, such financial instruments are affected by many variables and are influenced by fluctuations in local and international economies. Accordingly, the interests of plaintiffs, as indirect injured parties, are remoted from the LIBOR rates. In light of the above, the Court dismissed the class action claims, ruling that both the direct and indirect injured parties do not have a credible cause of action against the foreign banks. C.A. 65546-02-18, Hazlacha V. USB AG and others [GN] UNITED AIRLINES: Pilots & Attendants Classes Certified in Ward Suit ------------------------------------------------------------------- In the case, CHARLES E. WARD, et al., Plaintiffs v. UNITED AIRLINES, INC., Defendant, Case No. 19-cv-03423-LB (N.D. Cal.), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, certifies the Plaintiffs' two proposed classes, California-based pilots and California-based flight attendants. The Plaintiffs are a retired pilot and two flight attendants who--on behalf of themselves and putative classes--sued their employer United Airlines, claiming that United violates California law by how it pays flight crew on "reserve" status. Reserve status means that the pilots and flight attendants are on call for flight assignments (in contrast to other flight crew who bid for and fly on assigned schedules). Employment and payment for all pilots and flight attendants are governed by negotiated provisions in collective bargaining agreements ("CBAs"). The CBAs compensate flight crew on reserve status based on the higher of (1) the time spent on flight-related activity or (2) a minimum guarantee. The Plaintiffs contend that this is illegal borrowing from flight time to compensate for on-call reserve time, in violation of the "no-borrowing" rule in Oman v. Delta Air Lines, Inc. 9 Cal. 5th 762, 781 (2020). They thus sued for recovery of allegedly unpaid wages based on (1) unjust enrichment (on a theory of quantum meruit/quasi-contract) for uncompensated hours (calculated by multiplying the hourly rate by the unpaid hours on on-call reserve status) (claim one), (2) unpaid minimum wages (for all hours on reserve status) under the California Labor Code (claim two), (3) unpaid contractual wages under the Labor Code (claim three), and (4) restitution of unpaid wages for unfair business practices (predicated on the Labor Code violations) under California's Unfair Competition Law (claim five). The complaint has a derivative claim for waiting-time penalties under the Labor Code (claim four) and claims for penalties under California's Private Attorneys General Act (PAGA) predicated on the minimum-wage, unpaid-contractual-wage, and waiting-time claims (claims six, seven, and eight). Based on the alleged failure to pay wages, the Plaintiffs moved to certify two classes under Federal Rule of Civil Procedure 23(b)(2) and (b)(3) for California-based pilots and California-based flight attendants: a. Pilot Class: "All pilots employed by United Airlines, Inc. at any time between April 2015 and the final judgment in this action (the Covered Time), who, at any time during the Covered Time were classified as a reserve pilot in any bid period in which they were also a California resident domiciled/home-based at a California airport, and who were compensated for that reserve bid period under a pay scenario that was not minimum page guarantee (e.g. MPG)." b. Flight Attendants Class: "All flight attendants employed by United Airlines, Inc. at any time between April of 2015 and the final judgment in this action (the Covered Time), who, at any time during the Covered Time were classified as a reserve flight attendant in any bid period in which they were also a California resident domiciled/home-based at a California airport, and who were compensated for that reserve bid period under any pay scenario that was not minimum pay guarantee (e.g. MPG)." Magistrate Judge Beeler certifies Rule 23(b)(2) and (b)(3) classes because the Plaintiffs have met all Rule 23 prerequisites. She finds that (i) United does not dispute numerosity; (ii) the Plaintiffs established a common question that predominates by challenging how United pays its reserve pilots and flight attendants; (iii) the named Plaintiffs' claims are typical of the classes' claims; and (iv) the named Plaintiffs' interests are aligned with class members because their claims are identical. She further finds that (i) the Plaintiffs established a common question that predominates by challenging United's alleged violation of Oman's no-borrowing rule when it pays the line-pay value instead of the minimum-guarantee value; (ii) the individualized factors do not affect the issue in the case: payment of line-pay value instead of the minimum-guarantee value, which can be determined from the pay statement; and (iii) the Plaintiffs here seek a single injunction or declaratory judgment barring United's continued payment of line-pay value instead of the minimum-guarantee value. For these reasons, Magistrate Judge Beeler certifies the Plaintiffs' two proposed classes--California-based pilots and California-based flight attendants--under Rules 23(b)(2) and (3). Her Order disposes of ECF No. 42. A full-text copy of the Court's Feb. 12, 2021 Order is available at https://tinyurl.com/34ner6to from Leagle.com. UNITED STATES: Banks Files Appeal in Martinez-Brooks Suit --------------------------------------------------------- Movant Frederick Banks filed an appeal from a court ruling entered in the lawsuit entitled DIANTHE MARTINEZ-BROOKS et al., Plaintiffs, v. D. EASTER & MICHAEL CARVAJAL, Defendants, Case No. 20-cv-569, in the U.S. District Court for the District of Connecticut (New Haven). As previously reported in the Class Action Reporter, on March 27, 2020, Congress gave federal prison officials an extraordinary tool to confront the extraordinary threat posed by the novel coronavirus within prison walls: the authority to transfer any federal inmate from prison to confinement in his or her home. A week later, the Attorney General of the United States urged the Director of the Bureau of Prisons ("BOP") to "maximize" the use of that tool as soon as possible, stating in an April 3 memorandum that given the speed with which the disease has spread through the general public, and the Bureau's profound obligation to protect the health and safety of all inmates, it is clear that time is of the essence. The Attorney General's memo was triggered by an outbreak of COVID-19, the disease caused by the novel coronavirus, at the Danbury Federal Correctional Institution ("FCI Danbury"), a low security prison in Danbury, Connecticut, and two other federal prisons; the memo directed the BOP to immediately review all inmates who have COVID-19 risk factors for potential placement in home confinement, "starting with inmates incarcerated at FCI Danbury and the other two facilities. On April 27, the inmates ("Petitioners") filed a petition for writ of habeas corpus under 28 U.S.C. Section 2241 against the Warden of FCI Danbury and the Director of the Bureau of Prisons ("Respondents"). They sought to represent a class consisting of all inmates in the men's prison and the two women's prisons making up FCI Danbury, as well as a "medically vulnerable" subclass consisting of those inmates with COVID-19 risk factors. They alleged that the only effective way to minimize the potential devastation from COVID-19 in BOP facilities generally and FCI Danbury in particular is to downsize immediately the incarcerated population and, for the prisoners who remain at the institution, to undertake aggressively the detection, prevention, and treatment measures that public health and medical experts have recommended, including effective social distancing. They further alleged that the Respondents were violating the Eighth Amendment by failing to use the BOP's available statutory authority to reduce the population of FCI Danbury to mitigate the severe risk posed by COVID-19, and by failing to take adequate safety measures to protect inmates during the outbreak. Mr. Banks, currently an inmate at FCI Oakdale, and who previously filed a pro se motion to extend certain orders from Whitted v. Easter (3:20-cv-569-MPS) to the inmates at FCI Oakdale, located in Louisiana, is filing this appeal for review of the District Court's Order dated January 6, 2021, returning his pro se motion submission as deficient. The appellate case is captioned as Martinez-Brooks v. Easter, Case No. 21-231, in the United States Court of Appeals for the Second Circuit, February 5, 2021.[BN] Movant-Appellant Frederick Banks appears pro se. Respondent-Appellee D. Easter, Warden of Federal Correctional Institution at Danbury, in their individual capacities, is represented by: Sandra Slack Glover, Esq. Nathaniel Michael Putnam, Esq. UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF CONNECTICUT Connecticut Financial Center 157 Church Street New Haven, CT 06510 - and - David Christopher Nelson, Esq. UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF CONNECTICUT 450 Main Street Hartford, CT 06103 Telephone: (203) 821-3700 UNITED STATES: Evans Brings Appeal to C.A.F.C. ---------------------------------------------- Plaintiff Star L. Evans filed an appeal from the Federal Circuit's Opinion and Order dated August 12, 2020, and Judgment dated August 13, 2020, entered in the lawsuit styled DANIEL HAGGART, KATHY HAGGART, ET AL., FOR THEMSELVES AND AS REPRESENTATIVES OF A CLASS OF SIMILARLY SITUATED PERSONS, Plaintiffs v. UNITED STATES, Defendant, Case No. 1:09-cv-00103-CFL, in the United States Court of Federal Claims. The origins of the dispute concern land in the state of Washington that was converted into a recreational train pursuant to Section 208 of the National Trails System Act Amendments of 1983. The Plaintiffs filed suit over a decade ago, alleging that the conversion constituted a taking of their property without just compensation. The court certified an initial class of over 500 members, which was subsequently split into six subclasses. In 2012, the court ruled on cross-motions for summary judgment, finding "the government liable to certain class members within Subclass Two and Categories A through D of Subclass Four" while also granting "the government summary judgment as to class claimants in Subclass Four, Category E." The Plaintiffs sought approval of a renewed notice to the class regarding the settlement, which the government opposed to the same grounds it had raised in its prior post-remand motions. The court held a fairness hearing on December 18, 2017 in Seattle, Washington, in which numerous class members participated. On January 26, 2018, the court approved the settlement agreement and entered a partial final judgment under Federal Rule of Civil Procedure 54(b), enabling the government to appeal the settlement approval immediately while reserving judgment on the matter of whether the Plaintiffs could recover statutory legal fees and costs beyond those already contained within the settlement agreement itself. Effectively, the court employed Rule 54(b) to bifurcate its approval of the settlement agreement from any determination regarding legal fees and costs outside the settlement agreement. On the government's subsequent appeal, the Federal Circuit affirmed this court's approval of the settlement on November 27, 2019 but declined to address the government's arguments regarding legal fees and costs on the jurisdictional ground that this court had not previously acted regarding them. The Federal Circuit's mandate was issued on January 21, 2020. On March 2, 2020, the Plaintiffs filed five separate motions, representing four different plaintiffs or groups of plaintiffs, seeking statutory legal fees and costs pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Following an additional round of motions practice in which the government sought to compel the production of retainer and fee agreements from class counsel, the government individually responded to each of the fee motions on June 22, 2020. The Plaintiffs filed replies on July 6, 2020. The appellate case is captioned as DANIEL HAGGART, KATHY HAGGART, Husband and Wife, For Themselves and As Representatives of a Class of Similarly Situated Persons, GORDON ARTHUR WOODLEY, Personal Counsel for Kittinger Deed Claimants, DENISE LYNN WOODLEY, WESTPOINT PROPERTIES, LLC, C/O FARAMARZ GHODDOUSSI, CLEVELAND SQUARE, LLC, RC TC MERIDIAN RIDGE, LLC, TWOSONS LLC, GRETCHEN CHAMBERS, WILLIAM AMES, DENNIS J. CRISPIN, DEBLOIS PROPERTIES, LLC, c/o David and Debra Deblois, Plaintiffs STAR L. EVANS, Plaintiff-Appellant MICHAEL B. JACOBSEN, FRANCES JANE LEE, SUSAN B. LONG, CLAUDIA MANSFIELD, FREDERICK P. MILLER, SUSAN L. MILLER, PBI ENTERPRISES, LLC, MICHAEL G. RUSSELL, ELANA RUSSELL, JAMES M. SATHER, KELLY J. SATHER, JAMES E. STRANG, D. MICHAEL YOUNG, JULIA H. YOUNG, MOLLY A. JACOBSEN, LESLIE MILSTEIN, ALISON L. WEBB, PATRICIA STRANG, Plaintiffs v. UNITED STATES, Defendant-Appellee, Case No. 21-1658, in the U.S. Court of Appeals for the Federal Circuit, February 17, 2021.[BN] Plaintiff-Appellant STAR L. EVANS is represented by: Mary Crego Peterson, Esq. Michael R. Scott, Esq. HILLIS CLARK MARTIN & PETERSON P.S. 999 Third Avenue, Suite 4600 Seattle, WA 98104 Telephone: (206) 623-1745 Facsimile: (206) 623-7789 E-mail: mary.peterson@hcmp.com michael.scott@hcmp.com Defendant-Appellee United States is represented by: Lucinda J. Bach, Esq. U. S. DEPARTMENT OF JUSTICE - (ENRD) 150 M Street, N.E. Washington, DC 20004 Telephone: (202) 616-9663 E-mail: lucinda.bach@usdoj.gov - and - Bruce Kenneth Trauben, Esq. U. S. DEPARTMENT OF JUSTICE - (ENRD) P.O. Box 7611 Washington, DC 20044-0663 Telephone: (202) 305-0238 Facsimile: (202) 305-0506 E-mail: bruce.trauben@usdoj.gov VIACOMCBS INC: Stockholder Class Action Over Merger Can Proceed --------------------------------------------------------------- John Barker, Esq., David Callaway, Esq., Cassandra Desjourdy, Esq., Anthony Fiotto, Esq., and Dylan Schweers, Esq., of Goodwin, in an article for JDSupra, report that on January 27, 2021, in In re CBS Corporation Stockholder Class Action and Derivative Litigation, the Delaware Court of Chancery partially denied a motion to dismiss in a class action suit brought by stockholders against ViacomCBS, CBS Board members and executives, National Amusements, Inc., and Shari Redstone. This case arises out of the 2019 merger between Viacom, Inc. ("Viacom") and CBS Corporation ("CBS"). Prior to the merger, both CBS and Viacom were controlled by National Amusements, Inc. ("NAI"), which was, and continues to be, controlled by Shari Redstone. As alleged in the complaint, after assuming control of NAI in 2016, Redstone made several attempts between 2016 and 2019 to merge Viacom and CBS. As a result of Redstone's second unsuccessful attempt to merge the two companies in 2018, a CBS special committee sued NAI and Redstone, among others, asserting breach of fiduciary duty claims. NAI and Redstone countersued CBS, and the litigation was ultimately settled in September 2018. Under the terms of the settlement, several CBS board members resigned and Redstone and NAI were prohibited from proposing a merger between CBS and Viacom for two years. However, just months later, Redstone and CBS's new President and Acting CEO, Joseph Ianniello, met to discuss a third merger attempt. As alleged in the complaint, Ianniello's compensation was increased soon thereafter. CBS and Viacom then engaged in a renewed set of negotiations and ultimately agreed to merge. When the merger was announced in August 2019, CBS's Class B stock price declined. Various CBS stockholders filed complaints in the Delaware Court of Chancery related to the merger without first serving a pre-suit demand on CBS, and those lawsuits were consolidated by the court. Plaintiffs' consolidated amended complaint asserts claims for breach of fiduciary duty, waste, and unjust enrichment against Redstone, NAI, Ianniello, CBS's directors, and others, primarily alleging that defendants "engineer[ed]" a merger between the two companies NAI controlled to "bail out Viacom," and provided inadequate consideration to CBS stockholders. Defendants moved to dismiss the complaint in its entirety and the court largely denied the motions. The court first held that plaintiffs' disclosure claims concerning CBS's proxy statement for the merger were not justiciable. Plaintiffs had alleged that the proxy statement contained material omissions, as a result of which CBS's stockholders were not given a full and fair opportunity to decide whether to sell their shares prior to the merger. The court held that plaintiffs improperly pleaded this claim as a class action, which is impermissible under Delaware Supreme Court precedent. The court also held that this claim was grounded in fraud and that plaintiffs failed to meet the heightened standard for pleading fraud. The court then turned to the fiduciary duty claims. The court declined to decide whether these claims were direct or derivative, and thus whether plaintiffs were required to comply with Court of Chancery Rule 23.1 and either make a pre-suit demand or plead demand futility. Assuming without deciding that the claims were derivative, the court held that the plaintiffs had sufficiently pleaded demand futility by alleging that a majority of the relevant board members faced a substantial likelihood of liability stemming from the merger. In conducting the demand futility analysis, the court analyzed the claims on a claim-by-claim basis, and concluded that each claim should be reviewed under the "entire fairness" standard, rather than the more deferential "business judgment" rule. The entire fairness standard looks at whether the transaction is fair in both process and price, while the business judgment rule simply asks whether a director acted in good faith as a reasonably prudent person acting in the best interests of the entity. The court concluded that the claims against NAI and Redstone were subject to the entire fairness standard because NAI and Redstone controlled CBS and "stood on both sides" of the merger. Whether or not a control person standing on both sides of a merger is alone sufficient to trigger more exacting entire fairness review, the court also found that NAI and Redstone "extracted a non-ratable benefit from the transaction," inasmuch as they were seeking to save Viacom. The court also concluded that the claims against the CBS board members should be reviewed under entire fairness because the complaint pleaded facts supporting a claim that they had "breached their fiduciary duty of loyalty by favoring NAI's interests over those of CBS's minority stockholders." The court similarly determined that the entire fairness standard applied to the claims against Ianniello, as he allegedly engaged in a "quid pro quo" with Redstone regarding his compensation. While noting that overcoming the entire fairness standard at the pleading stage "is typically a Sisyphean task for defendants," the court found that the complaint supported inferences of both unfair price and unfair dealings. Finally, the court found that plaintiffs had sufficiently pleaded claims related to Ianniello's compensation, ruling that there were sufficient allegations to support a claim that Ianniello was compensated not for his service to the company, but rather for his support of the merger. NINTH CIRCUIT AFFIRMS DISMISSAL WITH PREJUDICE OF SECURITIES CLASS ACTION AGAINST TESLA On January 26, 2021, in Wochos v. Tesla, Inc., the Ninth Circuit affirmed the lower court's dismissal with prejudice of a putative class action brought against Tesla, Inc., and two of its officers. On behalf of the putative class, plaintiff alleged that Tesla made a number of false and misleading statements in 2017 regarding its production capacity for the company's first mass-market electric car, known as the Model 3. According to the complaint, on May 3, 2017, Tesla announced 2017 production goals for the Model 3, estimating that at some point in 2017 it would produce 5,000 cars per week, which plaintiffs alleged Tesla knew it would not be able to meet. In the subsequent months, Tesla repeatedly reaffirmed that it was "on track" to meet its goal and that there were "no issues" preventing the company from achieving the goal, even though Tesla was allegedly aware of numerous obstacles, including problems creating the automatic assembly line necessary to manufacture the cars, as well as difficulties manufacturing the batteries. The United States District Court for the Northern District of California granted defendants' motion to dismiss with prejudice, finding that the plaintiffs had failed to plead a material misrepresentation that was outside the PSLRA's "safe harbor," under which forward-looking statements are not actionable if they are accompanied by meaningful cautionary language or made without actual knowledge of their falsity. The Ninth Circuit affirmed. The court emphasized that the definition of "forward-looking statement[s]" in SEC regulations specifically includes "plans and objectives" and "statement[s] of the assumptions" underlying such plans, and held that Tesla's statements announcing a goal of producing 5,000 cars per week were "unquestionably" within this category. Likewise, statements reflecting that the company was "on track" to meet this goal and that there were "no issues" that would prevent the goal's achievement were forward-looking. In particular, because any announcement of a goal "necessarily reflects an implicit assertion that the goal is achievable," such "on track" statements were "merely alternative ways of declaring or reaffirming the objective itself." Although the plaintiffs did not specifically challenge Tesla's cautionary statements, the court found that the statements were sufficiently meaningful to provide protection under the safe harbor. The court concluded that a few statements at issue in the complaint were not forward-looking, such as a statement that Tesla had "started the installation of Model 3 manufacturing equipment," but held that the complaint failed to plead sufficient facts to support an inference that those statements were false. Finally, the Ninth Circuit affirmed the district court's decision to deny leave to amend. Plaintiffs sought to add a new allegedly misleading statement by Tesla in August 2017 suggesting that the company was using an automated assembly line in July. The Ninth Circuit held that even if plaintiffs were able to plead falsity and scienter as to this statement, they would be unable to plead loss causation because an October 2017 article disclosed that automated assembly had not begun in July, and the disclosure had not been followed by a material drop in price. SECOND CIRCUIT AFFIRMS DISMISSAL OF SECURITIES ACTION AGAINST SPENCER CAPITAL AS PREDOMINANTLY FOREIGN On January 25, 2021, in Cavello Bay Reinsurance Ltd. v. Stein, the Second Circuit affirmed the lower court's dismissal of securities fraud claims against Spencer Capital Ltd. ("Spencer Capital") and owner Kenneth Shubin Stein, finding that the suit was predominantly foreign and therefore outside the scope of Section 10(b) of the Securities Exchange Act of 1934. Plaintiff Cavello Bay Reinsurance Ltd. ("Cavello Bay"), which is organized under Bermuda law, brought suit in the United States District Court for the Southern District of New York, alleging that Spencer Capital, a holding company also organized under Bermuda law, had violated § 10(b), Rule 10b-5 and § 20(a) of the Exchange Act, in connection with a private offering in which Cavello Bay had purchased restricted shares in Spencer Capital. According to the complaint, Spencer Capital misrepresented its fee arrangement with its portfolio manager, Spencer Management, when negotiating with Cavello Bay. Although Cavello Bay understood that fees paid to Spencer Management would be tied to financial gains from operational activities or returns on investment, fees were actually calculated based upon Spencer Capital's book value. As a result, Spencer Capital paid Spencer Management $4.4 million in fees from funds raised in the offering, despite the fact that it was operating at a loss. Defendants moved to dismiss on the basis that the lawsuit sought an impermissible extraterritorial application of the Exchange Act. The district court granted the motion. The Second Circuit affirmed. The court first assumed, without deciding, that the transaction was "domestic" because the subscription agreement at issue was executed in New York. Nevertheless, the court held that the transaction was "predominantly foreign" and therefore barred. The court emphasized that the claims at issue involved a private agreement between two Bermudan entities for shares that are not listed on a U.S. exchange or otherwise traded in the United States. The Court noted that although the subscription agreement required Cavello Bay to register the shares with the SEC in the event of resale, this restriction was a "mere contractual impediment to resale" and did not trigger a U.S. interest that Section 10(b) was meant to protect. The court also found that the parties' invocation of New York law in the subscription agreement was similarly insufficient to overcome the transaction's predominantly foreign nature. DELAWARE SUPREME COURT FINDS THAT FORMER SPECTRA ENERGY SHAREHOLDER HAS STANDING TO CHALLENGE VALIDITY OF MERGER PRICE BASED ON DERIVATIVE ACTION AGAINST TARGET ENTITY On January 22, 2021, in Morris v. Spectra Energy Partners (DE) GP, LP, the Delaware Supreme Court reversed the Court of Chancery's dismissal for lack of standing in a direct action brought against Spectra Energy Partners (DE) GP, LP ("Spectra GP"), the general partner of Spectra Energy Partners L.P. ("Spectra"). This case arises from the 2015 merger between Enbridge, Inc. ("Enbridge") and Spectra, and plaintiff Paul Morris's challenges to the fairness of the merger price, specifically alleging that the merger ratio, which established the price of the merger based upon the relative value of Spectra and Enbridge stock, inadequately valued his derivative claim against Spectra GP. Prior to the merger between Enbridge and Spectra, Spectra's parent company, Spectra Energy Corp., entered into a venture with a third-party entity regarding two long haul natural gas pipelines. The relevant assets were owned by Spectra, so the parties agreed to a "reverse dropdown" to sell the assets to Spectra Energy Corp. After the reverse dropdown was authorized, Plaintiff Morris, then a shareholder of Spectra, filed a class action derivative complaint against Spectra GP, alleging, among other things, that Spectra GP's conflicts committee who recommended approval of the "reverse dropdown" failed to comply with the partnership's good faith obligations. Plaintiff Morris's derivative action survived Spectra GP's initial motion to dismiss, but during the discovery phase of the litigation, Enbridge acquired Spectra Energy Corp. Thereafter, Enbridge offered a stock-for-stock buyout of Spectra's public unitholders. Morris's counsel then sent a letter to Spectra GP's conflicts committee asserting that Morris's derivative claim was worth more than $500 million and insisting that it be considered in calculating the merger exchange ratio. Spectra GP's conflicts committee ultimately assigned no value to the derivative claim and the transaction was approved. The court then dismissed the derivative claim pursuant to a stipulation by the parties. Morris filed this class action against Spectra GP, alleging that Spectra GP breached Spectra's limited partnership agreement and the implied covenant of good faith and fair dealing by failing to appropriately value his derivative claim in the merger exchange ratio. The Delaware Court of Chancery dismissed the claim, finding that Morris lacked standing under the test announced in In re Primedia, Inc. Shareholders Litigation. Under this test, to have standing to challenge a merger's consideration based upon the company's failure to adequately value existing derivative claims, a plaintiff must allege: (i) a derivative claim sufficient to withstand motion to dismiss scrutiny; (ii) that the claim's value is material in relation to the merger consideration; and (iii) that the claim is not reflected in the merger consideration and will not be pursued by the buyer. The Delaware Supreme Court reversed, finding that Plaintiff Morris did have standing to pursue his class action claims against Spectra GP. The court reasoned that, generally, a merger extinguishes standing for an equity holder's derivative claims on behalf of the target entity, but that such holders in certain circumstances have standing to challenge the validity of the merger itself through a direct challenge. To determine whether Morris had standing to challenge the merger, the court applied Primedia. The parties did not dispute that Morris's derivative claim was viable, as it had already survived a motion to dismiss. The parties also agreed that Enbridge did not plan to assert the claim and had assigned no value to it in the merger exchange ratio. Instead, the dispute centered around whether the claim was material to the merger value. The Delaware Supreme Court held that the lower court had, in evaluating materiality, improperly discounted Morris's claim to reflect a one-in-four chance of recovery and to reflect the public unitholders' proportionate share of that potential recovery. The Delaware Supreme Court faulted this approach for two reasons. First, it held that courts conducting a Primedia inquiry should apply the motion to dismiss standard and accept all factual allegations as true. The Court held that, particularly because Morris's initial complaint had previously survived a motion to dismiss, the lower court's application of a further litigation risk discount in assessing materiality was improper. Second, even if the lower court properly discounted the recovery to reflect the public unitholders' proportionate interest in a derivative recovery, the Delaware Supreme Court found that it should have compared this number to their proportional interest in the merger consideration. Under this calculation, the Court found that the derivative claim was material to the merger price. After holding that Morris had standing, the Delaware Supreme Court remanded to the Court of Chancery to address the defendant's argument that his complaint failed sufficiently to state a claim. THIRD CIRCUIT REVERSES FRAUD CONVICTIONS RELATED TO REGULATORY LOAN REPORTING REQUIREMENTS FOR "PAST DUE" LOANS On January 12, 2021, the Third Circuit reversed the 2018 convictions of four former Wilmington Trust executives in U.S. v. Harra, concluding that the company did not violate regulations that require banks to report "past due" loans. Prosecutors charged the bank and its executives with several counts of fraud, false statements, and conspiracy to commit fraud. Prior to the Great Recession, Wilmington Trust, a commercial real estate lender, issued short-term loans that typically financed construction projects. Those loans gave borrowers the option to make interest-only payments until the end of the loan period, at which point the borrower could elect to repay the principal sum, or extend or refinance the loan. In reporting "past due" loans to the SEC and Federal Reserve, it was the bank's internal practice not to classify extended or refinanced loans as "past due." Although the SEC and Federal Reserve published some limited guidance, there was no clear statutory or regulatory definition of when a loan should be reported as past due. As a result, defendants argued that the jury should be instructed that "to prove that any statement was false, the government must prove beyond a reasonable doubt that the statement was not true under any reasonable interpretation of the reporting standards." The trial court rejected defendants' argument and they were found guilty on all counts. The Third Circuit reversed, holding that it was the government's burden to prove that a statement was false under each objectively reasonable interpretation of "past due." The court held that the government failed to meet its burden to prove that the bank's classification of past due loans was unreasonable based on the bank's interpretation of regulatory guidance, and accordingly vacated defendants' convictions. [GN] WALGREENS CO: Forth Suit Transferred to N.D. Illinois ----------------------------------------------------- The case styled as Dorothy Forth, Lisa Bullard, Ricardo Gonzales, Cynthia Russo, International Brotherhood of Electrical Workers Local 38 Health and Welfare Fund, International Union of Operating Engineers Local 295-295C Welfare Fund, Steamfitters Fund Local 439, on behalf of themselves and all others similarly situated v. Walgreens, Co., Defendant; Leehar Distributors Missouri, LLC doing business as: CastiaRx, Movant; Case No. 4:21-mc-00014, was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of Illinois on Feb. 18, 2021. The District Court Clerk assigned Case No. 1:21-cv-00888 to the proceeding. The nature of suit is stated as Election Commission: Failure to Enforce Compliance. Walgreen Company, d/b/a Walgreens -- https://www.walgreens.com/ -- is an American company that operates as the second-largest pharmacy store chain in the United States behind CVS Health. It specializes in filling prescriptions, health and wellness products, health information, and photo services.[BN] The Plaintiffs are represented by: Michael J Flannery, Esq. CUNEO GILBERT & LADUCA LLP 7733 Forsyth Blvd., Suite 1675 St. Louis, MO 63105 Phone: (314) 226-1015 Email: mflannery@cuneolaw.com - and - Carey Alexander, Esq. Joseph P Guglielmo, Esq. SCOTT+SCOTT, ATTORNEYS AW LAW, LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Phone: (212) 223-6444 Email: calexander@scott-scott.com jguglielmo@scott-scott.com - and - Erin Green Comite, Esq. SCOTT+SCOTT, ATTORNEYS AW LAW, LLP 156 South Main Street P.o. Box 192 Colchester, CT 06415 Phone: (860) 537-5537 Email: ecomite@scott-scott.com The Defendant is represented by: Michael Leib, Esq. REED SMITH LLP - Chicago 10 S. Wacker Drive, Suite 4000 Chicago, IL 60606-7507 Phone: (312) 207-3928 Email: mleib@reedsmith.com The Movant is represented by: George B. Donnini, Esq. BUTZEL LONG 150 West Jefferson, Suite 100 Detroit, MI 48226 Phone: (313) 225-7000 Email: donnini@butzel.com WEDDERSPOON ORGANIC: Sanchez Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Wedderspoon Organic USA, LLC. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. Wedderspoon Organic USA, LLC, Case No. 1:21-cv-01434 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Wedderspoon -- https://wedderspoon.com/ -- offers raw Manuka that's brimming with living enzymes & potent chemical compounds and is a flavorful, nourishing superfood that supports whole body wellness.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal WELD COUNTY, CO: Settlement in Martinez Suit Wins Final Approval ---------------------------------------------------------------- In the case, JESUS MARTINEZ, and CHAD HUNTER, Plaintiffs, on their own and on behalf of a class of similarly situated persons v. STEVEN REAMS, Sheriff of Weld County, Colorado, in his official capacity, Defendant, Civil Case No. 20-cv-00977-PAB-SKC (D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for the District of Colorado granted the parties' Joint Motion for Final Approval of Class Action Settlement and Final Certification of the Proposed Class. On April 7, 2020, the Plaintiffs brought the case as a class action alleging that Defendant Sheriff Reams acted with deliberate indifference to the health of medically vulnerable persons in custody at the Weld County Jail ("WCJ") by failing to take necessary measures to prevent the spread of COVID-19. On April 7, 2020, the Plaintiffs filed a motion for a preliminary injunction. On April 30, 2020, the Court conducted a hearing on the Plaintiffs' preliminary injunction motion. On May 11, 2020, the Court issued a preliminary injunction that identified actions the Defendant had to take to protect medically vulnerable inmates at the WCJ. The preliminary injunction was extended several times and expired on Feb. 5, 2021. On Nov. 30, 2020, the parties filed a joint motion for preliminary approval of the class action settlement, certification of a class and appointment of the class counsel, and permission to post the class notice. The Court ordered the parties to file a supplemental brief on the issues of notice, the definition of the class, and where objections to the settlement should be mailed. Upon review of the parties' supplement, the Court preliminarily approved the proposed consent decree and final judgment, preliminarily certified the proposed class, appointed the Plaintiffs' attorneys as the class counsel, and set the case for a fairness hearing. On Feb. 11, 2021, the parties filed a joint motion for final approval of the class action settlement and certification of the proposed class. The Court held a fairness hearing on Feb. 12, 2021. At the fairness hearing, the Court indicated that it would grant the motion for final approval and would sign the proposed consent decree and final judgment. The class consists of "all present and future inmates housed within the Weld County Jail from April 7, 2020 through the COVID-19 Emergency End Date who are medically vulnerable." Medically vulnerable means inmates who, pursuant to CDC guidelines for correctional facilities like the WCJ which exist as of the date the proposed Consent Decree and Final Judgment was submitted to the Court, have one or more of the following conditions: are 65 years and older; have chronic lung disease including COPD; have moderate to severe asthma; have serious heart conditions such as heart failure, coronary artery disease or cardiomyopathies; have sickle cell disease; are immunocompromised; have severe obesity (e.g. BMI of 30 or higher); have diabetes; have chronic kidney disease and are undergoing dialysis; have liver disease; have cancer; are pregnant; or are former or current cigarette smokers. The COVID-19 Emergency End Date is the date on which Executive Order D 2020 205 issued by Colorado Governor Jared Polis, Declaring a Disaster Emergency Due to the Presence of Coronavirus Disease 2019 in Colorado, as subsequently amended or extended, expires and is not replaced by a similar Executive Order in light of the ongoing COVID-19 pandemic. There are no subclasses. Key terms of the consent decree include that: (1) WCJ will identify medically vulnerable inmates during booking, protect them during the remainder of the intake process to the extent possible, and provide them with a document stating their status; (2) WCJ will attempt to single-cell medically vulnerable inmates in the intake/transition units and will continue to limit their exposure in the general jail population; (3) WCJ will medically isolate COVID-19 positive inmates in a non-punitive environment; (4) WCJ will continue enhanced sanitation and will distribute masks to inmates; (5) healthcare professionals will monitor medically vulnerable inmates for COVID-19 symptoms and will provide testing to inmates consistent with CDC guidelines; (6) the Defendant will maintain modified arrest standards to reduce jail population and will advise Weld County police chiefs to be judicious with jail space on a regular basis; (7) every two weeks, WCJ will provide the Chief Judge for the Nineteenth Judicial District of Colorado and the Colorado Division of Adult Parole a list of all inmates housed at WCJ, with a request to the Chief Judge for a docket review for potential judicial action; (8) the Defendant will comply with data reporting requirements and the Plaintiffs' counsel will not make additional requests; (9) the Plaintiffs and the class will release claims for injunctive and declaratory relief arising from COVID-19 at the WCJ, but that does not include claims concerning conduct that occurs after the date the Consent Decree is entered, and it does not include any money damages claims; (10) the Defendant will pay the counsel for the Plaintiffs $122,387.60 in attorney's fees and costs; and (11) there is no admission of wrongdoing by the Defendant. Judge Brimmer granted the parties' Joint Motion for Final Approval of Class Action Settlement, and Final Certification of the Proposed Class. He denied as moot the Plaintiff's Motion for Class Certification. Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, and for the purposes of settlement only, the class is certified as follows: "All present and future inmates housed within the Weld County Jail from April 7, 2020 through the COVID-19 Emergency End Date who are medically vulnerable." Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Judge finds that the Consent Decree and Final Judgment is fair, reasonable, and adequate. Accordingly, he gives final approval to the Consent Decree and Final Judgment in all respects and authorizes and directs the parties to consummate the Consent Decree and Final Judgment in accordance with its terms and provisions. The parties and their counsel will fulfill their obligations and duties under the Consent Decree and Final Judgment. The Plaintiffs and all class members are permanently enjoined and barred from asserting, initiating, prosecuting, or continuing any of the claims released by the Consent Decree and Final Judgment. The Defendant will pay the Plaintiffs' counsel $122,387.60 in accordance with the procedures set forth in the Consent Decree and Final Judgment. Without affecting the finality of the Order, the Court retains jurisdiction to consider all further matters arising out of or connected with the Consent Decree and Final Judgment, including its implementation and enforcement. The judgment will be entered dismissing the case with prejudice. A full-text copy of the Court's Feb. 16, 2021 Order is available at https://tinyurl.com/1tnghyrk from Leagle.com. WESTCHESTER METAL: Suit Seeks Prevailing Wages Under FLSA, NYLL --------------------------------------------------------------- LUIS JIMENEZ BELLIARD, JOSE JIMENEZ BELLIARD, and ENMANUEL CASTILLO BAEZ, on behalf of themselves and all others similarly situated v. WESTCHESTER METAL WORKS INC., WESTCHESTER METAL WORKS II INC., OLIVEIRA FARMS INC., SUSANA OLIVEIRA, and DAVID OLIVEIRA, Case No. 7:21-cv-01056 (S.D.N.Y., Feb. 5, 2021) seeks to recover the wages Defendants allegedly failed to pay to the Plaintiffs in violation of the the Fair Labor Standards Act and and the New York Labor Law. According to the complaint, the Defendants paid Plaintiffs at the same hourly wage rate per hour worked, including hours worked over 40 per workweek, and failed to pay the Plaintiffs at the applicable prevailing wage rates with supplemental benefits for their work on public work projects. The Plaintiffs did not receive accurate wage statements accompanying each payment of their wages or wage notices when they were hired or whenever their rates of pay changed. Mr. Belliard is an individual who resides in Westchester, New York. The Defendants employed him as a welder from 2012 to April 2020. Mr. Baez is an individual who resides in Westchester, New York. The Defendants employed Baez as an iron worker from May 2013 to July 2020. The Plaintiffs worked as welders, painters, steel detailers, and iron workers for the Defendant. Westchester Metal Works is a fabricator and erector of miscellaneous metals and steel component for the construction industry. [BN] The Plaintiff is represented by: Louis Pechman, Esq. Vivianna Morales, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue New York, NY 10022 Telephone: (212) 583-9500 E-mail: pechman@pechmanlaw.com morales@pechmanlaw.com WHAM-O INC: Jaquez Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Wham-O, Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Wham-O, Inc., Case No. 1:21-cv-01449 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Wham-O Inc. -- https://wham-o.com/ -- is an American toy company based in Carson, California.[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 WOLFGANG'S STEAKHOUSE: $445K Settlement in Delijanin Gets Final Nod ------------------------------------------------------------------- In the case, ELVIR DELIJANIN, individually and on behalf of: others similarly situated, Plaintiff v. WOLFGANG'S STEAKHOUSE INC, et al., Defendants, Case No. 18-CV-7854 (LJL) (KHP) (S.D.N.Y.), Magistrate Judge Katharine H. Parker of the U.S. District Court for the Southern District of New York granted the Plaintiff's unopposed motion for: (i) Certification of the Settlement Class; (ii) Final Approval of the Class Action Settlement; and (iii) Approval of the FLSA Settlement. On Aug. 2, 2018, Plaintiff Delijanin commenced the action as a putative class action under Fed. R. Civ. P. 23 and as a putative collective action under the Fair Labor Standards Act ("FLSA"). The Plaintiff alleged the Defendants violated various provisions of the FLSA, 29 U.S.C. Section 201 et seq. and the New York Labor Law Article 6, Sections 190 et seq., and Article 19, Sections 650 et seq., by failing to pay the minimum wage and provide proper wage statements and notice to the Plaintiff and the Defendants' other similarly situated employees, seeking backpay, liquidated damages, and statutory damages. The parties' proposed settlement resolves all claims in the action. The Defendants filed an Answer on Oct. 29, 2018, disputing the material allegations and denying any liability in the proposed class and collective actions. The parties engaged in settlement negotiations, including private mediation, ultimately reaching a proposed class and collective settlement. The Settlement Agreement provides for a total settlement amount $445,000. The Class Member payments are to be paid from a "Gross Settlement Fund," which equals $445,000 less amounts approved by the Court for any service awards to the class representatives, attorneys' fees and costs awarded by the Court, and the settlement administrator's approved fees and costs. The settlement administrator will distribute settlement payments to the Class Members that did not opt out ("Active Class Members") pursuant to a formula set forth in Section 3.5 of the Settlement Agreement. Under the formula, the Active Class Members recover a payment reflecting the weeks they were employed during the class period. The Active Class Members will receive, on average, $475.59, with the highest amount being $1,236. However, the Gross Settlement Fund will be reduced by the various awards the Plaintiff seeks in his pending motions. Specifically, the Plaintiff seeks (1) service awards for the class representatives, comprised of himself and three other class representatives, totaling $30,000 in service awards; (2) payments for release of all claims to the same four individuals in addition to their service awards, also totaling $30,000; (3) a payment in the amount of $40,000 to ALS as the settlement administrator; (4) $148,333.33 (or one-third of the Gross Settlement Fund) in attorneys' fees; and (5) $7,383 in costs. On June 23, 2020, the Court conditionally certified the settlement class, preliminarily approved the collective settlement, authorized the issuance of notice to the Class Members and granted the parties' plan of allocation. It also set a fairness hearing date, which it subsequently adjourned, and held on Dec. 8, 2020. The Defendants provided the claims administrator, Advanced Litigation Strategies, LLC ("ALS"), with a list of the Class Members which included, to the extent maintained by the Defendants, the Class Members' names, employment dates, last known mailing addresses, phone numbers, and social security numbers. ALS determined that there were 421 unique Class Members in the class list, all of whom had available mailing addresses, and mailed them all Notice Packets via First Class Mail. In summary, including the initial and supplemental mailings, 407 out of 420 Class Members received notice, with 25 permitted opt outs and no objections. Having considered the Motion for Final Approval, the supporting declarations, the arguments presented at the fairness hearings, and the complete record in the matter, for good cause shown, Magistrate Judge Parker (i) certified the Class Action for the purposes of the settlement; and (ii) granted final approval of the settlement memorialized in the Settlement Agreement, as construed and modified by her Opinion and Order. Magistrate Judge Parker certified the Class and collective for purposes of settlement and approved the terms and conditions of the Settlement Agreement as construed and modified. The collective consists of all hourly, tipped, front-of-house employees of Defendants' New York City restaurants employed from Aug. 28, 2012 and June 23, 2020. The Gross Settlement Fund for payment to Active Class Members is $445,000. The Plaintiff's requests for (1) service awards totaling $30,000; (2) release payments totaling $30,000; (3) a payment in the amount of $40,000 to ALS, the settlement administrator; (4) $148,333.33 in attorneys' fees; and (5) $7,383 in costs are granted. Thus, the Judge Parker approved awards, totaling $255,716.33, which are to be deducted from the Gross Settlement Fund amount of $445,000. The parties will proceed with the administration of the settlement in accordance with the terms of the Settlement Agreement. Pursuant to Section 2.9 of the Settlement Agreement, the parties have additionally requested, and Judge Parker ordered settlement administrator ALS to distribute settlement checks to all the Active Class Members as listed in Exhibit A to the Order. Further, she ordered the dismissal of the entire case on the merits and with prejudice, with each side to bear its own attorneys' fees and costs except as set forth in her Opinion and Order. The Opinion and Order will serve as the final judgment of the Court in the litigation and will bind and have res judicata effect with respect to all the Active Class Members listed in Exhibit A. Without affecting the finality of the Order, the Court will retain jurisdiction over the case following the entry of this Order until completion of the terms contemplated by the Settlement Agreement. Pursuant to Section 4.2 of the Settlement Agreement, neither the Order, the Settlement Agreement, nor any other documents or information related to the settlement of the action will constitute, be construed to be, or be admissible in any proceeding as evidence (a) that any group of similarly situated or other employees exists to maintain a collective action under the FLSA, or a class action under Rule 23 of the Federal Rules of Civil Procedure or comparable state law or rules, (b) that any party has prevailed in the case, or (c) that Defendants or others have engaged in any wrongdoing. A full-text copy of the Court's Feb. 12, 2021 Opinion & Order is available at https://tinyurl.com/pvc501op from Leagle.com. WORLDWIND SERVICES: Lopez Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against WORLDWIND SERVICES, LLC. The case is styled as Amando Lopez, on behalf of all others similarly situated v. WORLDWIND SERVICES, LLC, Case No. BCV-21-100347 (Cal. Super. Ct., Kern Cty., Feb. 18, 2021). The case type is stated as "CV Other Employment - Civil Unlimited." World Wind Services LLC -- https://worldwindsolar.com/ -- operates as a renewable energy maintenance company. The Company offers electrical construction, light installations, tower wiring, medium voltage terminations and splicing, foundation grounding, transformer testing, mechanical completion, and scheduled maintenance services.[BN] The Plaintiff is represented by: Andranik Tsarukyan, Esq. REMEDY LAW GROUP LLP 610 E Providencia Ave Apt B, Burbank, CA 91501-2495 Phone: (818) 422-5941 Email: andy@remedylawgroup.com ZERO SKATEBOARDS: Sanchez Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Zero Skateboards LLC. The case is styled as Cristian Sanchez, on behalf of himself and all others similarly situated v. Zero Skateboards LLC, Case No. 1:21-cv-01430 (S.D.N.Y., Feb. 18, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Zero Skateboards -- https://zeroskateboards.com/ -- offers skateboard wheels and skateboard accessories namely curb wax, riser pads, bearings, grip tape and hardware.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 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. 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