/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210812.mbx C L A S S A C T I O N R E P O R T E R Thursday, August 12, 2021, Vol. 23, No. 155 Headlines ACTIVISION BLIZZARD: Klein Law Reminds of October 4 Deadline ARCHAELOGICAL INSTITUTE: Krassick Files Suit in W.D. Michigan ARKANSAS: Bid to Revisit Class Cert. Order in Criswell Suit Tossed ARRAY TECHNOLOGIES: Bragar Eagel Probes Firm Over Financial Report BEAD & TRIM: Duncan Files ADA Suit in E.D. New York BOTANI TRIMMINGS: Duncan Files ADA Suit in E.D. New York BROTHERS & SON: Class in Lopez-Gonzales Certified; Notice Approved CALIFORNIA: Judge Rules Against Charter Schools in Class Lawsuit CARRIER GLOBAL: Darnis Putative Class Suit Underway CAVALRY PORTFOLIO: Ruddy Suit Removed to W.D. North Carolina CLUB SINROCK: Begley Slams Tip Pooling, Seeks Minimum Wages CNET MEDIA: Bebber Files Suit in E.D. Michigan COHNREZNICK LLP: James Sues Over Data Breach, Seeks Damages COPART INC: Linscomb Seeks Unpaid Overtime, Hits Missed Breaks CORECIVIC INC: Court Stays Owino Suit Pending Rule 23(f) Appeal CORY REALTY: Kitchen/Resto Staff Seek Unpaid Overtime Wages CREDIT ACCEPTANCE: Putative Class Suit in Michigan Ongoing CREDIT CENTRAL: Court Denies Bid to Certify Class in Bauer Suit CULTURAL CARE: Maldonado Class Suit Over Unpaid Wages Dismissed CURA CANNABIS: Ex Owners of Subsidiary to Settle Mislabeling Suit CYTODYN INC: Bid to Appoint Lead Pltf. in Leronlimab Suit Pending DECORATIVE TRIMMINGS: Duncan Files ADA Suit in E.D. New York DELAWARE VALLEY COMFORT: Bunkley Suit to Recover Unpaid Overtime DIDI GLOBAL: Jiao Files IPO-related Securities Class Action DIEBOLD NIXDORF: New York Consolidated Class Suit Concluded EDISON INT'L: Bellwether Trial Related to Two Fires Vacated EDISON INT'L: Dismissal of Electric Transmission Suit Appealed EDISON INT'L: Oct. 26 Bellwether Jury Trial on Woolsey Fire Suit FEDERAL SIGNAL: Discovery Ongoing in Hearing Loss Litigation FMA ALLIANCE: Gillian Suit Removed to W.D. North Carolina FREMONT HILLS: Cormack Buying Fremont Property for $40.15 Million FUNCTIONAL ENDOCRINOLOGY: Pacheco Hits Fraudulent Practices GARDNER-GIBSON CHICAGO: Johnson Seeks to Recover Unpaid OT Wages GARRETT MOTION: Continues to Defend Consolidated Suit in New York GENENTECH INC: Williamson Suit Moved to San Mateo Cty. Super. Court GENERAC HOLDINGS: Rosen Law Discloses Securities Class Action GENERAL MOTORS: Lawsuit Alleges Airbag Failures Kill People GRANGE MUTUAL: Claims Not Liable for Water Pollution Coverage GRANITE CONSTRUCTION: Bid for Initial OK of Settlement Pending GREAT FROG: Duncan Files ADA Suit in E.D. New York HONG HOLDINGS: Does not Properly Pay Workers, Dilworth Says JOHNSON & JOHNSON: AWP Suit in New Jersey Ongoing JOHNSON & JOHNSON: Bid to Nix Talc-Related Suit in Illinois Pending JOHNSON & JOHNSON: Class Suits Over Benzene in Sunscreens Underway JOHNSON & JOHNSON: Court Junks Xarelto Related Class Suit JOHNSON & JOHNSON: Dismissal of ERISA-Related Class Suit Appealed MANSFIELD ENGINEERED: Shortchanges Workers' Wages, Kiser Says MASSACHUSETTS: Green Sues DOC for Unconstitutional, Illegal Conduct MEGA MUFFLER: Martinez Files Labor Class Action in NY MICROSOFT CORP: Ten-Month Claims Period Closes Sept. 23 MOORE INGRAM: Bid to Conditionally Certify Class in Russo Denied NATIONAL ENTERPRISES: Johnson Suit Removed to W.D. North Carolina OPKO HEALTH: Joint Bid to Withdraw & Dismiss Avraham Suit Granted OPKO HEALTH: Sharon Wants TASE Members to Provide Payment Info PIEDMONT LITHIUM: Kirby McInerney Reminds of September 21 Deadline PILGRIM'S PRIDE: Bid for Amended Judgment in Hogan Suit Pending PILGRIM'S PRIDE: Bid to Nix NMSIC Lead Putative Class Suit Pending PILGRIM'S PRIDE: Deal Reached with EUCP Indirect Purchaser Class PILGRIM'S PRIDE: Grower Litigation in Oklahoma Underway PILGRIM'S PRIDE: Settlement in Plant Workers' Suit Gets Initial OK PJ'S LAWN SERVICE: Fails to Pay Minimum and OT Wages, Osorio Says PROGRESSIVE CASUALTY: Lukasik Sues Over Deceptive Insurance Policy PROGRESSIVE CASUALTY: Sued for Depriving Employees Proper Wages QUANTUMSCAPE CORP: Bid to Junk Battery Technology Suit Pending RAVI ZACHARIAS: Faces Lawsuit for Ministry Funds Mismanagement RENEWABLE ENERGY: Bragar Eagel Probes Firm Over Financial Report S&P GLOBAL: Continues to Defend Class Actions in Australia SERVICE CORP: Moulton Seeks Review of Order Affirming Dismissal SERVICE CORP: Taylor Class Suit Underway in Florida SHAMROCK SALOON: $325K Class Deal in George Suit Wins Prelim. Okay SIMONE MARSTILLER: Class Suit Filed in M.D. Florida SOUTHWESTERN ENERGY: Final Hearing on Settlement OK Set for Oct. 21 STABLE ROAD: Milberg Coleman Reminds of September 13 Deadline STRIPE INC: Court Narrow Claims in Silver's 1st Amended Class Suit TEXTRON INC: Dismissal of IWA Forest Suit Under Appeal TIA JULIA: Hernandez Sues Over Unpaid Minimum and OT Wages TOWER IMAGING: Faces MCCI Suit Over Unsolicited Fax Ads TRUMP CORP: Denial of Arbitration Bid in Doe RICO Suit Affirmed UNITI GROUP: Court Enters Protective Order in Securities Suit UPONOR INC: Faces Matzdorf Suit Over Defective PEX VISA INC: Class Certification Bid in Interchange MDL Pending WEST VIRGINIA: Bids to Dismiss Case Over Foster Care System Granted WYNN RESORTS: Dismissal Bids in Ferris Securities Suit Partly OK'd ********* ACTIVISION BLIZZARD: Klein Law Reminds of October 4 Deadline ------------------------------------------------------------ The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of Activision Blizzard, Inc. (NASDAQ: ATVI) alleging that the Company violated federal securities laws. Class Period: August 4, 2016 and July 27, 2021 Lead Plaintiff Deadline: October 4, 2021 No obligation or cost to you. Learn more about your recoverable losses in ATVI: https://www.kleinstocklaw.com/pslra-1/activision-blizzard-inc-loss-submission-form-2?id=18314&from=5 Activision Blizzard, Inc. NEWS - ATVI NEWS CLASS ACTION CASE DETAILS: The filed complaint alleges that Activision Blizzard, Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) Activision Blizzard discriminated against women and minority employees; (2) Activision Blizzard fostered a pervasive "frat boy" workplace culture that continues to thrive; (3) numerous complaints about unlawful harassment, discrimination, and retaliation were made to human resources personnel and executives which went unaddressed; (4) the pervasive culture of harassment, discrimination, and retaliation would result in serious impairments to Activision Blizzard's operations; (5) as a result of the foregoing, the Company was at greater risk of regulatory and legal scrutiny and enforcement, including that which would have a material adverse effect; (6) Activision Blizzard failed to inform shareholders that the California Department of Fair Employment and Housing had been investigating Activision Blizzard for harassment and discrimination; and (7) as a result, Defendants' statements about Activision Blizzard's business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a loss in Activision Blizzard you have until October 4, 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. NO COST TO YOU: If you purchased Activision Blizzard securities during the relevant period, you may be entitled to compensation without payment of any out-of-pocket fees. HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information about the ATVI lawsuit, please contact J. Klein, Esq. by telephone at 212-616-4899 or click https://bit.ly/3lUqkNw. About Klein Law Firm J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. The Klein Law Firm is a boutique litigation firm with experience in a wide range of areas including securities law, corporate finance and commercial litigation. Since 2011, our experienced attorneys have achieved superior results for our clients with a personalized focus. 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] ARCHAELOGICAL INSTITUTE: Krassick Files Suit in W.D. Michigan ------------------------------------------------------------- A class action lawsuit has been filed against Archaeological Institute of America. The case is styled as Mary Krassick, individually and on behalf of herself and all others similarly situated v. Archaeological Institute of America, Case No. 2:21-cv-00180 (W.D. Mich., Aug. 5, 2021). The nature of suit is stated as Other Fraud. The Archaeological Institute of America -- https://www.archaeological.org/ -- is a North American nonprofit organization devoted to the promotion of public interest in archaeology, and the preservation of archaeological sites.[BN] The Plaintiff is represented by: Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Ave New York, NY 10019 Phone: (646) 837-7150 Email: pfraietta@bursor.com ARKANSAS: Bid to Revisit Class Cert. Order in Criswell Suit Tossed ------------------------------------------------------------------ In the case, PAUL CRISWELL, Plaintiff v. RODNEY WRIGHT, et al., Defendants, Case No. 4:21-cv-00537-JM-PSH (E.D. Ark.), Judge M. Moody, Jr., of the U.S. District Court for the Eastern District of Arkansas, Central Division, denied the Plaintiff's motion to reconsider an Order entered by Magistrate Judge Patricia S. Harris denying his motion proceed as a class action under Rule 23 of the Federal Rules of Civil Procedure. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." An action may be maintained as a class action only when all of the prerequisites of subdivision (a) are satisfied. The Plaintiff has the burden of showing that the claimed class should be certified and that the requirements set forth are met. The Plaintiff defines the class as "all inmates brought into the detention center from March 17 until present." However, Judge Moody finds that the Plaintiff provides no further information regarding the class and offers no evidence to support a finding that the class he seeks to certify is so numerous that joinder of all members is impracticable. The Plaintiff also fails to offer evidence to support a finding that issues common to the class predominate over issues that differ among individual members of the class. It is not yet clear what injury each proposed class member may have suffered, if any. In fact, the Judge finds that the Plaintiff has been ordered to amend his complaint to clarify his claims. Additionally, while the alleged lack of Covid precautions may be common to all class members, he says, the Prison Litigation Reform Act requires each prisoner to exhaust available administrative remedies before filing suit in federal court. That determination must be made with respect to each class member on an individual basis. Finally, the Judge holds that the Plaintiff has not shown that he can effectively represent the interests of other inmates as a pro se inmate. For these reasons, Judge Moody concludes that the Plaintiff has not met his burden to show that the class should be certified and his motion to reconsider is denied. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/sbrd8dyx from Leagle.com. ARRAY TECHNOLOGIES: Bragar Eagel Probes Firm Over Financial Report ------------------------------------------------------------------ Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, is investigating certain officers and directors of Array Technologies, Inc. (NASDAQ: ARRYon behalf of long-term stockholders. More information about each potential case can be found at the link provided. Array Technologies, Inc. (NASDAQ: ARRY) Bragar Eagel & Squire is investigating certain officers and directors of Array Technologies, Inc. following a class action complaint that was filed against Array on May 14, 2021. According to a complaint filed against the Company, Array's IPO Materials stated that one of the Company's strengths related to its management of costs. Specifically, the Offering Materials noted the Company's "[d]emonstrated ability to reduce the cost of our products while increasing profit margins" and that its "[r]igorous supply chain management [was] supported by a sophisticated enterprise resource planning ("ERP") system." With regard to strategy, the IPO Materials explained how the Company leveraged its global supply chain and economies of scale to reduce product cost. However, the Company failed to disclose the then-existing rise of costs related to certain supplies such as steel, as well as the Company's freight costs. On May 11, 2021, Array reported lower revenues year-over-year and lower margins. These dismal financial results included a 44% decrease in revenue for the prior year period, a 63% decrease in gross profit, a 69% decrease in adjusted EBITDA, and 71% decrease in adjusted income. The Company blamed increased steel and shipping costs, and noted, "continuing increases in prices of steel and freight costs will impact our margins in the second quarter and potentially subsequent quarters if prices do not normalize." To learn more about our investigation into Array go to: https://bespc.com/cases/ARRY About Bragar Eagel 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 www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] BEAD & TRIM: Duncan Files ADA Suit in E.D. New York --------------------------------------------------- A class action lawsuit has been filed against Bead & Trim, Inc. The case is styled as Eugene Duncan, for himself and on behalf of all other persons similarly situated v. Bead & Trim, Inc., Case No. 1:21-cv-04428 (E.D.N.Y., Aug. 6, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bead & Trim -- https://www.beadandtrim.com/ -- imports a wide range of garment trimmings & jewelry components.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawfirm.net BOTANI TRIMMINGS: Duncan Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Botani Trimmings, Inc. The case is styled as Eugene Duncan, for himself and on behalf of all other persons similarly situated v. Botani Trimmings, Inc., Case No. 1:21-cv-04431 (E.D.N.Y., Aug. 6, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Botani -- https://www.botanitrim.com/ -- is an international fashion trimming company that offers a vast array of buttons, zippers and fashion hardware of different shapes and sizes.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawfirm.net BROTHERS & SON: Class in Lopez-Gonzales Certified; Notice Approved ------------------------------------------------------------------ In the case, THERESA LOPEZ-GONZALES, KAYLEE LEDBETTER, BROOKLYN LEDBETTER, SHELBY BURNETT, JULIA SILVA, TREY MATHES, Plaintiffs v. JOSE RAMOS, et al., Defendants, Case No. 2:20-CV-061-Z (N.D. Tex.), Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, Amarillo Division: (i) granted in part the Plaintiffs' Renewed Motion for Collective Action Certification and Judicially Supervised Notice and Reply; and (ii) denied the Defendants' Motion to Strike Appendix. Before the Court is the Plaintiffs' Motion for Collective Action Certification and Judicially Supervised Notice under Section 216(b) of the Fair Labor Standards Act ("FLSA"). The Motion asks the Court to authorize the sending of notice to other similarly situated employees ("potential opt-in plaintiffs"). The Plaintiffs and the potential opt-in plaintiffs currently work or have worked for Brothers, a partnership doing business as The Plaza Restaurants, Jose Ramos, and Martin Ramos, at The Plaza Restaurant in Pampa, Texas. While employed as servers for the Defendants, the Plaintiffs and the potential opt-in plaintiffs were paid pursuant to a tip credit. The Plaintiffs allege that the Defendants pay their servers subminimum hourly wages. They further allege that the Defendants waived the tip credit defense because the Defendants (1) failed to inform the Plaintiffs and the potential opt-in plaintiffs of the tip credit pursuant to 29 U.S.C. Section 203(m); (2) did not allow the Plaintiffs and the potential opt-in plaintiffs to keep the tips they received; (3) required the Plaintiffs and the potential opt-in plaintiffs to perform non-tipped work in addition to tipped work; and (4) required the Plaintiffs and the potential opt-in plaintiffs to perform non-tipped work which, although related to tipped work, exceeded twenty percent of the time spent at work weekly. The Plaintiffs further allege that the Defendants required the Plaintiffs and the potential opt-in plaintiffs to share a portion of their tips with non-tipped employees. The Plaintiffs define the potential opt-in plaintiffs as follows: "All individuals who worked as a server at any of Defendants' restaurants located in Texas during the three (3) year period preceding the filing of this lawsuit and who were paid a direct cash wage of less than $7.25 per hour." The Plaintiffs request the Court to send notice of the Section 216 collective action because the potential opt-in plaintiffs performed similar work duties and were all subject to the same widespread company policies regardless of "any individualized factors or defenses the Defendants may attempt to raise." The Defendants raise several defenses -- namely, they aver that the Plaintiffs lack evidence of sufficiently similarly situated employees outside of a single location and evidence of a single decision, policy, or plan for employees outside of that location. They ask the Court to limit notice to the servers employed at restaurants owned and operated by Brothers if the Court decides to grant the Plaintiff's motion. Analysis The parties in the case disagree as to (1) whether the named Defendants are employers under FLSA's definition, (2) whether the named Plaintiffs and the potential opt-in plaintiffs are sufficiently similarly situated, and (3) the degree to which the Court should permit the Plaintiffs to send notice to the potential opt-in plaintiffs. A. Defendants Martin Ramos and Jose Ramos are employers as defined by the FLSA and are therefore correctly named Defendants. The Defendants have stated that as a threshold matter, the Plaintiff's Motion must be denied because Brothers and Son never employed Plaintiff or the Proposed Class Members." They note that lead Plaintiff, Theresa Lopez-Gonzales, and opt-in Plaintiffs, Kaylee Ledbetter, Brooklyn Ledbetter, Shelby Burnett, and Julia Silva4 are or were employed as servers at The Plaza Restaurant located in Pampa, Texas. Judge Kacsmaryk opines that wwhile Brothers and Son never employed Plaintiffs, he finds Jose and Martin Ramos are employers of the Plaintiffs, as defined by the FLSA. Jose and Martin Ramos also satisfy the "economic reality" test, as it is reasonable to conclude that as partners of Brothers, they (1) possessed the power to hire and fire Plaintiffs, (2) supervised and controlled Plaintiffs' work schedules or condition of employment, (3) determined the rate and method of payment, and (4) maintained the Plaintiffs' employment records. The Defendants do not dispute the Plaintiffs' naming of Jose and Martin Ramos as Defendants in the case. The Judge, therefore, finds that both Jose and Martin Ramos are employers under the FLSA's definition. He orders that Brothers and Son, a partnership that never employed Plaintiffs, will be dropped from the case. Instead, the suit will continue against only Jose and Martin Ramos. B. The Court will authorize notice to a narrowed collective. As Judge Kacsmaryk stated, the Plaintiffs bear the burden to establish that they and the potential opt-in plaintiffs are sufficiently similarly situated. This does not mean that the potential opt-in plaintiffs must be identically situated, but they must show "a demonstrated similarity" among the potential opt-in plaintiffs in a way where one proceeding is fair to all parties and does not result in unmanageable, individualized inquiries. To determine if the potential opt-in plaintiffs are sufficiently similar, the Judge considers all available evidence. First, he finds that the Plaintiffs fail to offer evidence of similarly situated employees outside of servers at The Plaza Restaurant in Pampa, Texas. He concludes that the submitted declarations contain persuasive evidence regarding the conditions at the Pampa location. But the Plaintiffs do not provide sufficient evidence or personal knowledge of sufficient similarly situated employees at other Plaza locations. Second, the Judge finds that the Plaintiffs fail to offer persuasive evidence of a single decision, policy, or plan encompassing servers at other Plaza Restaurants. The Plaintiffs are unable to meet the burden to show that severs at other locations are similarly situated because they lack evidence that each Plaza Restaurant operated within a universal policy. Neither do their submitted declarations satisfy the burden. The Plaintiffs are without sufficient evidence and personal knowledge of uniform pay practices at The Plaza Restaurants across the state. Furthermore, the Plaintiffs have not presented any evidence that they have even corresponded with employees at other locations. Third, the Judge holds that the Notice is limited to servers at The Plaza Restaurant in Pampa. Consequently, he finds that the proposed collective should be confined to servers at The Plaza Restaurant in Pampa, Texas, which is owned and operated by Jose Ramos and Martin Ramos as partners of Brothers. The declarations that the Plaintiffs and the other opted-in Plaintiffs submitted suggest that Defendants implemented policies that violated the FLSA at the Pampa location. Because thePlaintiffs worked at the Pampa location, they have personal knowledge of the practices there. The Judge therefore finds that the servers at the Pampa location are similarly situated with regard to the job requirements and pay policies that give rise to the allegations in the lawsuit. He therefore authorizes the sending of notice to these individuals. C. Proposed Notice Period First, Judge Kacsmaryk finds that the Plaintiffs have adequately alleged Defendants acted willfully in violating the FLSA and therefore extends the statute of limitations to three years. He says although he did not consider the Department of Labor report when determining whether servers outside of Pampa, Texas were sufficiently similar, the report is relevant in determining the Defendants' willfulness. Because the Defendants were previously investigated by the Department of Labor, they had actual notice that their actions were in violation of the FLSA. Any alleged violations that arose after the investigation would thus be willful. Second, the Judge opines that the statute of limitations is measured from Jan. 24, 2021, the date the Court rendered the Plaintiffs' original motion to certify moot and ordered both parties to submit a renewed motion and response. He decides to account for the Court's own delay in delivering the motion and the equitable tolling issues that may thus arise. The Judge therefore measures the limitations period from the date the Court rendered the Plaintiffs' original Motion to Certify moot and ordered both parties to submit a renewed motion and response. The period begins Jan. 24, 2018, and ends Jan. 24, 2021. D. Form of Notice Because the Defendants do not maintain a central electronic file containing the information requested by the Plaintiffs, they ask for a total of 20 business days to collect and disclose the requested information. Judge Kacsmaryk grants this request. The Defendants also move the Court to deny the Plaintiffs' request to create and maintain a proposed website, where they plan to post the content of the approved Notice and Consent Form. The Judge agrees with them. He opines that the public nature of the internet and the potential reputational harm to the Defendants is akin to "claim solicitation." Moreover, the Plaintiffs have not explained why the other forms of notice are inadequate. Conclusion For the reasons he stated, Judge Kacsmaryk granted in part the Plaintiffs' Renewed Motion for Collective Action Certification and Court-Authorized Notice in accordance with the Court's opinion. He denied the Defendants' Motion to Strike. Brothers and Son is dropped from the case. The Notice is authorized to be sent to: All individuals who worked as a server at The Plaza Restaurant in Pampa, Texas during the three-year period, from Jan. 24, 2018 to Jan. 24, 2021, and who were paid a direct cash wage of less than $7.25 per hour. By Aug. 16, 2021, the Defendants will provide the Plaintiffs' counsel with the names, last known home addresses, email addresses (both personal and work, where available), phone numbers, and date(s) of employment of potential opt-in plaintiffs who are part of the Court's defined collective. By Aug. 16, 2021, the Plaintiffs will meet and confer with the Defendants as to amending the contents and methods of delivery for the proposed Notice. By Aug. 23, 2021, the parties will file a Motion to Approve Notice, Opt-in Consent Form, and Delivery Methods for the Magistrate Judge's consideration. In the event the parties cannot agree on drafts and delivery methods, they will submit a single Notice and/or Opt-in Consent Form, indicating the language and delivery method(s) to which they agree, the language and delivery method(s) upon which they cannot agree, and the content and delivery method(s) each side proposes. Once the Magistrate Judge approves the Notice and Opt-in Consent Form, the Plaintiffs are authorized to issue notice to all the potential opt-in plaintiffs in accordance with court-authorized delivery methods. The Plaintiffs will not maintain a website to post Notice and Consent forms. A full-text copy of the Court's July 28, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/48982sms from Leagle.com. CALIFORNIA: Judge Rules Against Charter Schools in Class Lawsuit ---------------------------------------------------------------- Kristen Taketa at sandiegouniontribune.com reports that a California Superior Court judge ruled against hundreds of online and other non-classroom based charter schools in a class-action lawsuit, declaring that the state did not wrongfully deprive the schools of education funding during the pandemic. The ruling, handed down July 27, was a blow to the schools, which are called non-classroom-based charter schools because at least 20 percent of the learning occurs off campus, often online or at home. Three San Diego-based charter school networks - The Classical Academies, The Learning Choice Academy and Springs Charter Schools - and the parents of several enrolled and waitlisted students sued the state of California last fall, saying the state did not equitably fund their charter schools by accounting for the new students they enrolled during the last school year. The lawsuit was deemed a class-action petition representing about 300 non-classroom based charter schools across California that enrolled about 200,000 students, said Lee Rosenberg, attorney for the plaintiffs. Those schools took on about 25,000 new students last school year that weren't paid for by the state, he said. The state typically funds all public schools, including charter schools, on a per-student basis, which means the more students a school enrolls, the higher its state funding. Last year, because of the pandemic and related school closures, the state initially froze public school funding levels to stabilize schools' and districts' finances. Then state officials unfroze the funding and gave K-12 public schools funding for their existing and newly enrolled new students last year - except for non-classroom based charter schools, which provided mostly online, home school and non-traditional education services. Their funding remained frozen for existing students. State leaders chose not to fund new students at those non-classroom based charter schools because there is a history of fraud and abuse by some of those kinds of schools, the state attorney general wrote in a recent court filing. "The state determined that (non-classroom based charter schools) raised major concerns for fraud and abuse and inferior education and decided to limit the incentive for expanding that model of education during the pandemic while the state considered the underlying policy around (non-classroom based charter schools)," Attorney General Rob Bonta wrote in a June court filing signed by him and others in his office. During the pandemic last year, thousands of California students left their original school districts or charter schools and enrolled in non-classroom based charter schools, so much so that some charter schools reported waiting lists of thousands of students. Charter school leaders said many families knew these schools had years of experience and expertise serving students remotely, which school districts were being forced to learn to do quickly because of the pandemic. The lawsuit plaintiffs argued that was a key reason they deserved to be funded like the other districts for each new student. "Under the student defunding law, students' education funding remains at the public school that they depart - thus rewarding public school districts for not serving students they have failed to adequately serve," the complaint said. The funding freeze lasted for last school year. Plaintiffs argued that this harmed the education of students at non-classroom based charters because their schools were forced to spread the same amount of state money across more students. They said state school funding is supposed to follow the student, no matter which public school they choose. "We're obviously really disappointed. We've been fighting for almost a year now," Rosenberg said. "The state for the first time in its history, that we're aware of, decided not to fund the education of every single student in the state of California, and we just thought that was immoral and unacceptable." Sacramento Superior Court Judge James Arguelles ruled against the charter school plaintiffs because, he said, they failed to show that their students were deprived of an education last school year as a result of the lack of a funding increase. "Petitioners have not established that their (non-classroom based) students actually or effectively have been deprived of an education for any period during the 2020-21 fiscal year," Arguelles wrote. He also ruled against them because he didn't agree with their arguments that the state was bound by a contract to fund each of their students at a certain level. State attorneys had previously argued that there is no contract between the state and charter schools that prevents the state from changing how much it funds or does not fund charter schools. It's the state legislature's authority to decide how much public schools receive. Charter school advocates for months have fought the perception that non-classroom based charter schools are fraudulent. The California Charter Schools Association has argued that a few bad actors should not taint all non-classroom based charter schools, which provide an alternative model of education that many students can't get from their school districts. Rosenberg said his clients are contemplating next steps and whether to appeal Arguelles' decision. [GN] CARRIER GLOBAL: Darnis Putative Class Suit Underway --------------------------------------------------- Carrier Global Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative class action suit entitled, Geraud Darnis, et al. v. Raytheon Technologies Corporation, et al. On August 12, 2020, several former employees of United Technologies Corporation, ("UTC") or its subsidiaries filed a putative class action complaint in the United States District Court for the District of Connecticut against Raytheon Technologies Corporation, Carrier, Otis, the former members of the UTC Board of Directors and the members of the Carrier and Otis Boards of Directors (Geraud Darnis, et al. v. Raytheon Technologies Corporation, et al.). The Complaint challenges the method by which UTC equity awards were converted to UTC, Carrier and Otis equity awards following the Separation and the Distribution. The Complaint asserted that the defendants are liable for breach of certain equity compensation plans and for breach of fiduciary duty and also asserted claims under certain provisions of the Employee Retirement Income Security Act of 1974, as amended. Plaintiffs have withdrawn, with prejudice, their claims against Otis's and Carrier's current Boards of Directors. Carrier believes that the remaining claims against the Company are without merit. Carrier Global Corporation is a leading global provider of heating, ventilating, air conditioning ("HVAC"), refrigeration, and fire and security solutions. Carrier also provides a broad array of related building services, including audit, design, installation, system integration, repair, maintenance and monitoring. The company is based in Palm Beach, Florida. CAVALRY PORTFOLIO: Ruddy Suit Removed to W.D. North Carolina ------------------------------------------------------------ The case styled as Elizabeth Ruddy, Latoya Daniels, on behalf of themselves and others similarly situated v. Cavalry Portfolio Services, LLC, a Delaware Limited Liability Company, Case No. 21-CVS-1819 was removed from the Iredell County to the U.S. District Court for the Western District of North Carolina on Aug. 6, 2021. The District Court Clerk assigned Case No. 5:21-cv-00118-KDB-DSC to the proceeding. The nature of suit is stated as Consumer Credit. Cavalry Portfolio Services -- https://www.cavalryportfolioservices.com/ -- is a debt collection agency.[BN] The Plaintiffs are represented by: Patrick M. Wallace, Esq. Scott C. Harris, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: (919) 600-5000 Fax: (919) 600-5035 Email: pwallace@milberg.com sharris@milberg.com The Defendant is represented by: Jeffrey D. Patton, Esq. Lee D. Denton, Esq. SPILMAN THOMAS & BATTLE, PLLC 110 Oakwood Drive, Suite 500 Winston Salem, NC 27103 Phone: (336) 725-4710 Fax: (336) 725-4476 Email: jpatton@spilmanlaw.com ldenton@spilmanlaw.com CLUB SINROCK: Begley Slams Tip Pooling, Seeks Minimum Wages ----------------------------------------------------------- Laurel Begley, individually and on behalf of all others similarly situated, Plaintiff, v. Club Sinrock LLC, Rebeckah Lyons, Timothy Lyons and Does 1 through 10, inclusive, Defendant, Case No. 21-cv-01104, (D. Or., July 27, 2021), seeks damages, backpay, restitution, liquidated damages, prejudgment interest, post judgment interest, reasonable attorney's fees and costs and all other relief pursuant to the Fair Labor Standards Act. Defendants operate as "Club Sinrock," an adult-oriented entertainment facility located in Portland, Oregon where Begley worked as an exotic dancer. She was compensated exclusively through tips from customers and did not receive payment for any hours worked at their establishment. However, she was required to share their tips with other non-service employees who do not customarily receive tips, including the managers, disc jockeys, and the bouncers thus rendering her pay to fall below the mandated minimum wage rate. She was also denied overtime and wage statements, asserts the complaint. [BN] Plaintiff is represented by: Leigh Montgomery, Esq. ELLZEY & ASSOCIATES, PLLC 1105 Milford Street Houston, TX 77006 Telephone: (713) 554-2377 Fax: (888) 995-3335 Email: jarrett@ellzeylaw.com leigh@ellzeylaw.com - and - S. Amanda Marshall, Esq. S. AMANDA MARSHALL LLC 4545 SW Angel Avenue, Suite 104 Beaverton, OR 97005 Telephone: (503) 472-7190 Email: amanda@maclaw.com CNET MEDIA: Bebber Files Suit in E.D. Michigan ---------------------------------------------- A class action lawsuit has been filed against CNET Media, Inc. The case is styled as Richard Bebber, individually and on behalf of all others similarly situated v. CNET Media, Inc., Case No. 2:21-cv-11824-SFC-APP (E.D. Mich., Aug. 6, 2021). The nature of suit is stated as Other Fraud. CNET (short for "Computer Network") -- https://www.cnet.com/ -- is an American media website that publishes reviews, news, articles, blogs, podcasts, and videos on technology and consumer electronics globally.[BN] The Plaintiff is represented by: Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Ave New York, NY 10019 Phone: (646) 837-7150 Email: pfraietta@bursor.com COHNREZNICK LLP: James Sues Over Data Breach, Seeks Damages ----------------------------------------------------------- Davonna James, individually and on behalf of all others similarly situated, Plaintiffs, v. Cohnreznick LLP, Defendant, Case No. 21-cv-06544 (S.D. N.Y., August 2, 2021), seeks an award of compensatory, statutory, nominal and punitive damages, equitable relief requiring restitution and disgorgement of the revenues wrongfully retained, an award of reasonable attorneys' fees, costs and litigation expenses, as allowable by law, and such other and further relief resulting from negligence and for violation of the California Consumer Privacy Act. CohnReznick is a national professional services firm that provides accounting and tax services to businesses. On June 1, 2021, it began notifying customers of Genesis Corp. (one of the businesses it provides tax preparation services for) about a data breach that occurred sometime between February 26, 2021 and March 5, 2021, where the hacker obtained information of its potential customers and other individuals, including, but not limited to, their names, Social Security numbers, driver's license numbers, dates of birth and username/password information. James, a resident of Merced, California, received the Notice of Data Breach from CohnReznick around June 1, 2021. [BN] Plaintiff is represented by: M. Anderson Berry, Esq. Alex Sauerwein, Esq. CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORP. 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 777-7777 Facsimile: (916) 924-1829 Email: aberry@justice4you.com asauerwein@justice4you.com - and - Gary M. Klinger, Esq. MASON LIETZ & KLINGER LLP 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (202) 429-2290 Fax: (202) 429-2294 Email: gklinger@masonllp.com - and - Gary E. Mason, Esq. David K. Lietz, Esq. MASON LIETZ & KLINGER LLP 5101 Wisconsin Avenue NW, Suite 305 Washington, DC 20016 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 Email: dlietz@masonllp.com COPART INC: Linscomb Seeks Unpaid Overtime, Hits Missed Breaks -------------------------------------------------------------- Simone Linscomb, individually and on behalf of other members of the public similarly situated, Plaintiff, v. Copart, Inc. and Copart-Dallas, Inc. and Does 1 through 100, inclusive, Defendants, Case No. 21STCV2T096, (Cal. Super., July 25, 2021), seeks redress for failure to provide meal and rest breaks, failure to provide itemized wage statements, interest thereon at the statutory rate, actual damages, all wages due terminated employees, costs of suit, prejudgment interest and such other and further relief pursuant to the California Labor Code, Unfair Competition Law and applicable Industrial Welfare Commission wage orders. Copart first employed Linscomb as a customer service representative at their office in Sim Valley, California, then promoted her to dispatcher. Her employment ended in January 29, 2021. Lincomb claims to have worked over 8 hours in one workday and/or over 40 hours in one workweek without being provided all timely rest and meal periods. She claims to be denied her 30-minute duty-free meal period within the first five horns of work. Copart allegedly forced employees to forego timely, duty-free, 30-minute meal periods by assigning them more time-sensitive work than they could reasonably expect them to complete within the first five hours of work. Plaintiff claims to have performed work while clocked-out and Defendant failed to compensate her for this time. [BN] Plaintiff is represented by: David G. Spivak, Esq. Maralle Messrelian, Esq. Maya Cheaitani, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd, Suite 312 Encino, CA 91436 Telephone: (818) 582-3086 Facsimile: (818) 582-2561 Email: david@spivaklaw.com maialle@spivaklaw.com maya@spivaklaw.com CORECIVIC INC: Court Stays Owino Suit Pending Rule 23(f) Appeal --------------------------------------------------------------- In the case, SYLVESTER OWINO and JONATHAN GOMEZ, on behalf of themselves and all others similarly situated, Plaintiffs v. CORECIVIC, INC., a Maryland corporation, Defendant. CORECIVIC, INC., Counter-Claimant, v. SYLVESTER OWINO and JONATHAN GOMEZ, on behalf of themselves and all others similarly situated, Counter-Defendants, Case No. 17-CV-1112 JLS (NLS) (S.D. Cal.), Judge Janis L. Sammartino of the U.S. District Court for the Southern District of California grants in part and denies in part CoreCivic's Motion to Stay Proceedings Pending Appeal. On April 1, 2020, the Court issued the 59-page Order, denying without prejudice the Plaintiffs' motion for partial summary judgment, denying CoreCivic's motion for judgment on the pleadings, denying as moot the Plaintiffs' motion to exclude, and granting in part and denying in part the Plaintiffs' motion for class certification. The Court certified the Plaintiffs' proposed California and National Forced Labor Classes in their entirety and the Plaintiffs' proposed California Labor Law Class as to the causes of action for failure to pay minimum wage, failure to provide wage statements for actual damages, failure to pay compensation upon termination, and imposition of unlawful conditions of employment. On April 15, 2020, CoreCivic filed a motion seeking reconsideration of several portions of the Order. On Jan. 13, 2021, following briefing on the motion, the Court denied CoreCivic's motion. CoreCivic subsequently filed a Petition for Permission to Appeal under Federal Rule of Civil Procedure 23(f), which the Ninth Circuit granted. On May 7, 2021, CoreCivic filed the present Motion seeking a stay of the proceedings in full pending the appeal. The Plaintiffs oppose in part. Discussion CoreCivic seeks a stay of all proceedings in the Court pending its appeal, although, in its Reply, CoreCivic notes that it also has no objection to resolving the discovery dispute currently pending before Magistrate Judge Nita L. Stormes. In their Opposition, the Plaintiffs confirm that they only object to a stay as to limited ESI and detainee file discovery as well as the resolution of the pending discovery dispute, but otherwise support a stay of the proceedings. They indicate that they do not seek discovery at this time for all 24 facilities owned by CoreCivic, but only for its three California facilities. CoreCivic contends that the discovery requested by the Plaintiffs pending the appeal is not limited to CoreCivic's three California facilities. However, given that the Plaintiffs repeatedly and specifically request that the stay not extend to ESI and detainee files for CoreCivic's three California facilities, for purposes of the present Motion, Judge Sammartino considers only the issue of the California-focused discovery; any discovery focused on CoreCivic's out-of-state facilities will be subject to the stay of the remainder of the proceedings that all the Parties agree is warranted. I. Likelihood of Success on the Merits Although CoreCivic "need not demonstrate that it is more likely than not that it will win on the merits" of the appeal, it must show at least "'a reasonable probability' or 'fair prospect' of success." It is not enough that the chance of success on the merits be better than negligible." The Plaintiffs do not address the issue of likelihood of success on the merits, and CoreCivic addresses the issue only in a footnote in its Reply. Nonetheless, the fact remains that CoreCivic successfully petitioned the Ninth Circuit to hear its appeal. In its Petition, CoreCivic argued that the Court's Order presented two unsettled and fundamental legal issues concerning class actions and was manifestly erroneous. Citing Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005), the order granting CoreCivic's Petition does not address CoreCivic's likelihood of success. Nevertheless, the fact a petition is granted raises a "fair prospect" of success. Accordingly, CoreCivic has made the necessary showing of likelihood of success on the merits. II. Irreparable Injury to Movant It is a "bedrock requirement that stays must be denied to all petitioners who do not meet the applicable irreparable harm threshold, regardless of their showing on the other stay factors." To clear the threshold, CoreCivic must show "that an irreparable injury is the more probable or likely outcome." "Simply showing some possibility of irreparable injury" is not enough. CoreCivic argues that "the time and expense associated with conducting class discovery is so massive that it is illogical to force it now, when the Ninth Circuit could reverse class certification and eliminate entitlement to any class discovery." CoreCivic also argues that incurring fees and expenses only to have the classes decertified would result in irreparable financial injury that would far outweigh any harm to the Plaintiffs as a result of the stay. The Plaintiffs argue that CoreCivic would not be irreparably harmed absent a stay, as financial injury alone is not generally irreparable and, had CoreCivic complied with its discovery obligations, it would have substantially completed the California-focused discovery ordered more than 10 months ago that the Plaintiffs now seek. Judge Sammartino finds that CoreCivic has failed to establish that it is likely to suffer an irreparable injury absent a full stay of the proceedings. On the record presently before the Court, it is not clear that the California-focused discovery the Plaintiffs request would necessarily be irrelevant to their individual claims and therefore mooted by the pending appeal. Accordingly, the Judge is disinclined to find the incurrence of such discovery costs by CoreCivic to constitute irreparable harm. Furthermore, the Judge is disinclined to reward CoreCivic for delaying in complying with its discovery obligations. Based on the facts of the case, the Judge finds that CoreCivic has failed to show that it likely would be irreparably harmed by a refusal to stay the California-focused discovery. III. Substantial Injury to Other Parties The Plaintiffs submit that a stay of the proceedings in their entirety would substantially harm them, given that the action has been pending for four years and CoreCivic has not even begun collecting and producing documents foundational to both the claims of the Plaintiffs individually and the classes. In light of such concerns, and CoreCivic's inability to show the probability of irreparable injury absent a stay, Judge Sammartino cannot conclude that the balance of hardships tips sharply in CoreCivic's favor. Accordingly, she finds that the harm to the Plaintiffs and the class members outweighs CoreCivic's alleged harms. IV. Public Interest Finally, the Plaintiffs claim that the public interest would not be served by a complete stay, as the public has interests in both the efficient prosecution of their individual and class claims and holding CoreCivic accountable for its failures to comply with California and federal law. Again, CoreCivic does not address this issue, Judge Sammartino finds. In the case, the public has an interest in seeking to hold alleged corporate wrongdoers accountable, as well as in the proper enforcement of California's employment laws. These interests weigh against a full stay of the litigation. On the other hand, the Judge says, because the Parties agree that a stay of the bulk of the litigation pending the appeal is appropriate, permitting the California-focused discovery to proceed would not impede the public's "interest in efficient use of judicial resources." Accordingly, she concludes that the public interest lies with the Plaintiffs. Conclusion In sum, Judge Sammartino holds that the full stay requested by CoreCivic is not warranted because CoreCivic has failed to show that it is likely to suffer irreparable harm. She says, while CoreCivic has demonstrated some likelihood of success on the merits, the balance of harms weighs in the Plaintiffs', rather than CoreCivic's, favor, and the public interest favors permitting the California-focused discovery to proceed. Accordingly, while she grants in part CoreCivic's Motion, given the Parties' agreement that a stay of the majority of the proceedings pending appeal is appropriate, she denies its request to stay the California-focused discovery. Disposition For the foregoing reasons, Judge Sammartino grants in part and denies in part CoreCivic's Motion. Apart from the pending discovery dispute and any California-focused discovery consistent with Judge Stormes' resolution of said dispute, the Judge stays the matter pending resolution of CoreCivic's Rule 23(f) appeal. The Parties will file a joint status report, not to exceed 20 pages, within 21 days after the Ninth Circuit's mandate issues. The joint status report will include specific proposals as to how the Parties wish to proceed with the case at bar in light of the Ninth Circuit's order. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/32t4rf3f from Leagle.com. CORY REALTY: Kitchen/Resto Staff Seek Unpaid Overtime Wages ----------------------------------------------------------- Aureliano Bruno, Juan Bruno, Ignacio Cesario and Victorino Guzman, individually and on behalf of all others similarly situated, Plaintiff, v. Cory Realty, Inc., Anthony Robinson and Debra Salichs, Defendants, Case No. 21-cv-06391, (S.D. N.Y., July 27, 2021), seeks to recover damages for violations of New York State labor laws and the Fair Labor Standards Act, compensatory and liquidated damages, interest, attorneys' fees, costs and all other legal and equitable remedies. Defendants operate as Devin's Fish and Chips where Plaintiffs were employed as all-around restaurant/kitchen staff. They claim to have worked in excess of 40 hours per day without overtime premium, spread-of-hours premium and denied accurate wage statements. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Email: HFDalton6912@Gmail.com CREDIT ACCEPTANCE: Putative Class Suit in Michigan Ongoing ---------------------------------------------------------- Credit Acceptance Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative class action suit pending before the United States District Court for the Eastern District of Michigan, Southern Division. On October 2, 2020, a shareholder filed a putative class action complaint against the Company, its Chief Executive Officer and its Chief Financial Officer in the United States District Court for the Eastern District of Michigan, Southern Division, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, promulgated thereunder, based on alleged false and/or misleading statements or omissions regarding the Company and its business, and seeking class certification, unspecified damages plus interest and attorney and expert witness fees and other costs on behalf of a purported class consisting of all persons and entities (subject to specified exceptions) that purchased or otherwise acquired Credit Acceptance common stock from November 1, 2019 through August 28, 2020. On May 28, 2021, the court issued an opinion and order appointing lead plaintiff and lead counsel. On July 22, 2021, the lead plaintiffs filed an amended complaint asserting similar violations, seeking similar relief and expanding the putative class to include all persons and entities (subject to specified exceptions) that purchased or otherwise acquired Credit Acceptance common stock from May 4, 2018 through August 28, 2020. Credit Acceptance said, "We cannot predict the duration or outcome of this lawsuit at this time. As a result, we are unable to estimate the reasonably possible loss or range of reasonably possible loss arising from this lawsuit. The Company intends to vigorously defend itself in this matter." Credit Acceptance Corporation provides funding, receivables management, collection, sales training, and related services to automobile dealers. The Company provides indirect financing for buyers with limited access to traditional sources of consumer credit. Credit Acceptance operates in the United States. The company is based in Southfield, Michigan. CREDIT CENTRAL: Court Denies Bid to Certify Class in Bauer Suit --------------------------------------------------------------- In the case, In re: Ruther Mae Bauer, Chapter 7, Debtor. Ruther Mae Bauer Plaintiff v. Credit Central, LLC, Credit Central of Anderson, LLC, Credit Central of Tennessee, LLC, Credit Central of Texas, LLC, Credit Central South, LLC D/B/A Credit Central Loans and Taxes, Defendants, C/A No. 19-02441-DD, Adv. Pro. No. 20-80012-DD (D.S.C.), Judge David R. Duncan of the U.S. Bankruptcy Court for the District of South Carolina denied the Plaintiff's motion for certification of a plaintiff class. The Plaintiff entered into a loan agreement with the defendant Credit Central or a related entity on June 1, 2018. Each Defendant named in the case, as admitted in the Defendants' answer, does business as and uses the trade name "Credit Central Loans and Taxes" in their debt collection efforts. Each Defendant operates and is centralized at the headquarters located in Greenville, South Carolina. The Plaintiff filed her chapter 7 bankruptcy case on May 2, 2019, listing a debt to Credit Central Finance. She received a discharge on Aug. 13, 2019. The Plaintiff's discharge operates as an injunction pursuant to 11 U.S.C. Section 524 against collection of discharged debt. On Jan. 22, 2020, Credit Central Loans and Taxes sent letters to many Credit Central customers, including the Plaintiff, regarding a "settlement opportunity." The letter offers an opportunity to pay "65% of the outstanding balance" in return for a complete discharge of all debts. The Plaintiff sent the letter to her attorney shortly after receiving it. He advised her that the debt to Credit Central was discharged. The Plaintiff filed the adversary proceeding on Feb. 6, 2020, alleging in her third amended complaint violations of the discharge injunction under 11 U.S.C. Section 524 and seeking disgorgement pursuant to 11 U.S.C. Section 105. She did not pay any money to the Defendants in response to the letter and does not allege lost wages or other monetary damages. She alleges emotional distress damages. The Defendants ultimately answered contending that it did not know the Plaintiff filed for bankruptcy until the adversary proceeding was filed. They state that around Aug. 7, 2018, the Plaintiff made it aware of her intention to file bankruptcy and that she was represented by an attorney. Credit Central next states that it never received notice of the bankruptcy filing or the Plaintiff's discharge. Credit Central notes that she listed a variation of its name and an incomplete mailing address on her list of creditors and mailing matrix. It contends that prior to sending the letter, employees screened accounts to ensure that customers who were deceased, filed bankruptcy, or were represented by an attorney, were excluded from the mailing. The Defendants responded to the adversary proceeding with a motion to dismiss on March 5, 2020, requesting the enforcement of an arbitration clause. The Court denied the motion and the Defendants have a pending appeal. The Defendants' motion to stay pending appeal was denied. After the Defendants answered, the Court entered a scheduling order setting a 180-day discovery period. The scheduling order provided a deadline for motions to certify a class. A dispute arose concerning the Defendants' response to the Plaintiff's second set of interrogatories which resulted in the Plaintiff filing a motion to compel on March 2, 2021. Following a telephone conference, at which both parties participated, the Court entered a confidentiality and protective order on March 11, 2021, using a slightly modified form order frequently used in our United States District Court. Following the conclusion of discovery, the Plaintiff filed the motion on May 17, 2021, seeking certification of injunctive and monetary relief classes. Class Allegations & Analysis The Plaintiff alleges that the Defendants violated the discharge injunction by sending her and others the settlement letter. She asserts that the letter is an unlawful attempt to collect the discharged debts of herself and others similarly situated. The Plaintiff requests certification of both an injunctive relief class pursuant to Rule 23(b)(2) and a monetary relief class pursuant to Rule 23(b)(3), with Plaintiff serving as class representative for both. The Plaintiff proposes that the classes consist of all individuals who: (1) were customers of the Defendants; (2) filed a chapter 7 bankruptcy within the past five years; (3) listed a debt owed to Defendants; (4) were granted a discharge; and (5) received the settlement letter post-discharge. Before turning to Rule 23(b), Judge Duncan first considers whether the Plaintiff has satisfied all four elements of Rule 23(a). I. Fed. R. Civ. P. 23(a) The party requesting certification bears the burden of proving each element of Rule 23(a). Rule 23(a)(1) requires that a class be "so numerous that joinder of all members is impracticable." The Plaintiff states that 33,338 of the Defendants' customers filed for bankruptcy during the last five years, and that 5,426 of those who filed bankruptcy were located in South Carolina, Georgia, Louisiana, and parts of Texas. Judge Duncan holds that the Plaintiff fails to specify the number of customers that: (1) filed a chapter 7 bankruptcy; (2) listed a debt to Defendants; (3) received a discharge; and (4) received the settlement letter. She has not supplied any of this information under seal as permitted by the Protective Order. The Plaintiff argues that she had a limited ability to conduct discovery due to the Protective Order. She asserts that although Defendants produced certain information about customers filing bankruptcy, the Protective Order prevented her from further contacting them to identify which customers satisfied the proposed class criteria. The Judge finds that nothing in the Protective Order prevented the Plaintiff from using confidential information or from filing such information under seal. The Plaintiff had ample opportunity to conduct adequate discovery. It appears that the necessary questions were not asked. The Plaintiff also argues that the boilerplate language on the bottom of the settlement letter demonstrates that the Defendants sent this letter to customers who filed bankruptcy. The only evidence before the Court regarding the letter is an affidavit from the Defendants' employee, attached as Exhibit 1 to the Defendants' objection. The Plaintiff has failed in her proof that numerous potential class members exist and therefore has not established a class so numerous that joinder of all members is impracticable. Pursuant to Rule 23(a)(3), the Plaintiff must demonstrate that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." This will frequently "entail some overlap with the merits of the plaintiff's underlying claim." In the case, the Judge finds that the Plaintiff alleges that the Defendants violated the discharge injunction under Section 524 and requests relief under Section 105. The Plaintiff states that she filed a chapter 7 case, listed her debts to the Defendants, received a discharge, and subsequently received the settlement letter. She has not provided evidence that any other individuals meet the same criteria. Additionally, the Defendants assert that the Plaintiff failed to properly notify it of her bankruptcy filing and discharge and therefore cannot prevail on her own claims, much less represent a class. With respect to the Plaintiff's request to be the class representative, Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." Due to the failure to meet the other Rule 23(a) requirements, the Judge holds that no analysis of this provision is necessary. However, he says, the deposition of the Plaintiff by the Defendants clearly calls into question her familiarity with the proceeding and whether she can fairly and adequately protect the interests of the proposed classes. II. Fed. R. Civ. P. 23(b) The Plaintiff has failed to demonstrate the four requirements under Rule 23(a); thus, a Rule 23(b) analysis is unnecessary. Conclusion For the reasons he set forth, Judge Duncan denied the Plaintiff's motion for class certification. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/5f9zcs2j from Leagle.com. CULTURAL CARE: Maldonado Class Suit Over Unpaid Wages Dismissed --------------------------------------------------------------- In the case, FERNANDA MALDONADO and HEATHER LIEBER, on behalf of themselves and all others similarly situated v. CULTURAL CARE, INC., GORAN RANNEFORS, NATALIE JORDON, and JENS APPELKVIST, Civil Action No. 20-10326-RGS (D. Mass.), Judge Richard G. Stearns of the U.S. District Court for the District of Massachusetts denied the Plaintiffs' motion for class certification and dismissed the case in its entirety. Plaintiffs Maldonado and Lieber, purporting to represent a nationwide group of local childcare consultants (LCCs), filed the hybrid class action against Cultural Care, a company that places foreign au pairs with host families in the United States. Cultural Care is one of 15 State Department-approved organizations that places foreign au pairs with host families in the United States. It recruits, trains, places, and supervises the au pairs in exchange for fees from the host families. The State Department requires Cultural Care and similar agencies to use "local organizational representatives" -- LCCs -- to carry out many of its program requirements. LCCs work for Cultural Care as the primary contacts with the au pairs and their host families. Their duties include, among other things, "providing year-round support to au pairs and host families, hosting meetings, interviewing host families and welcoming au pairs to the community, and promoting the program." LCCs perform most of these activities, which require varying lengths of time, on their own schedule. Also, LCCs are on-call to address au pairs' or host families' concerns, such as mediating disputes that may arise between an au pair and a host. In the Amended Complaint, the Plaintiffs assert that Cultural Care misclassified LCCs as independent contractors and, in so doing, violated the minimum wage requirements of the federal Fair Labor Standards Act (FLSA) (Count I) and the wage laws of Massachusetts (Count II), New York (Count III), and California (Count IV). The parties have engaged in over six months of class discovery -- extended from its initial 60 days -- exchanging more than 15,000 pages of documents and data files, producing declarations from several LCCs, and deposing multiple witnesses. The Plaintiffs now move to conditionally certify a collective action under the FLSA, 29 U.S.C. paragraph 216(b), and to certify a class on the Massachusetts and California state law claims, Fed. R. Civ. P. 23. They also seek an order approving the proposed FLSA Notice and Consent Form and requiring the Defendants to provide them the names, addresses, email addresses and telephone numbers of all members of the FLSA Class. In support, the Plaintiffs have filed lengthy memoranda (including a reply brief) and six affidavits attaching hundreds of pages of exhibits. Similarly, the Defendants submitted an opposition, sur-reply, and over 600 pages of exhibits. Discussion Judge Stearns finds that in the Amended Complaint, the Plaintiffs defined the putative class as LCCs who "were misclassified as independent contractors and paid less than they were entitled to based on the hours they worked multiplied by the applicable state or federal minimum wages." The relevant period spans from Feb. 19, 2017, through Dec. 31, 2019. Lieber and Maldonado were each engaged as LCCs for approximately five months during the relevant period. Lieber worked for Cultural Care from October of 2015 until September of 2017, when she was suspended after being arrested on an unrelated matter in June of 2017. Maldanado worked for Cultural Care from June to December of 2019. The class allegations, however, do not relieve named Plaintiffs of an essential jurisdictional prerequisite -- namely, a showing of standing. In a putative class action under the FLSA, as in any other class action, the named plaintiff must individually fulfill the standing requirement at the time of filing before she may represent a class of employees. The Judge notes that according to the Plaintiffs' own testimony, even if they were classified as employees, they have not shown that they were paid below the minimum wage for any relevant pay period. The time that Lieber estimated for her LCC tasks amounted to fewer than eleven hours worked in each complete month at issue, which, based on her pay statements, comes to hourly compensation ranging from $24 to over $59 per hour. Maldonado, for her part, testified repeatedly that there was "no way to tell" how much time she spent working as an LCC for any given period or on any of her LCC activities, even when shown records documenting those activities. Although the Plaintiffs have submitted affidavits contesting this prior testimony, the Judge does not consider these accounts. He says, filing these affidavits after the close of class discovery suggests that the statements were made solely in an after-the-fact attempt to rehabilitate a failure to establish class standing. That the Plaintiffs "did state the amount of time those tasks took" in limited ways during their depositions does not, as they argue, resolve these inconsistencies. Given the unsatisfactory explanation of the Plaintiffs' inconsistent and damaging testimony, it is clear that neither Plaintiff is qualified as a class representative, and accordingly lacks standing to pursue the FLSA minimum wage claims. The case will, therefore, be dismissed. Order For the foregoing reasons, Judge Stearns denied the Plaintiffs' motion for class certification and dismissed the case in its entirety. A full-text copy of the Court's July 28, 2021 Memorandum & Order is available at https://tinyurl.com/2amuudyx from Leagle.com. CURA CANNABIS: Ex Owners of Subsidiary to Settle Mislabeling Suit ----------------------------------------------------------------- mjbizdaily.com reports that the former owners of Oregon-based Cura Cannabis, one of the subsidiaries now owned by Massachusetts-based multistate operator Curaleaf, agreed to pay more than $500,000 to settle a class action lawsuit over mislabeled marijuana vape cartridges. According to The Oregonian, the settlement stems from a case last year in which state regulators concluded that the Portland company had mislabeled 186,000 vape cartridges under its Select brand as 100% marijuana when in fact employees had cut the cannabis oil with additives. The business has already paid $110,000 to the state in penalties for the incident. The Oregonian said an attorney for Cura did not respond to a request for comment. Following the incident last year, Cura Cannabis - which also does business as Cura Partners – finalized an all-stock acquisition deal by Curaleaf, which was originally announced in 2019 and valued at nearly $1 billion. At the time of the sale in 2020, Cura was Oregon's "largest marijuana company," the Oregonian reported. Cura also settled a separate lawsuit earlier this month with a California investing consultant, Arcadia Capital, which claimed in a court filing that it was owed a portion of the acquisition deal price. The two sides reached an out-of-court settlement, and the terms were not disclosed. Curaleaf trades on the Canadian Securities Exchange under the ticker symbol CURA and on over-the-counter markets under the symbol CURLF. [GN] CYTODYN INC: Bid to Appoint Lead Pltf. in Leronlimab Suit Pending ----------------------------------------------------------------- CytoDyn Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on July 30, 2021, for the fiscal year ended May 31, 2021, that, that motions to appoint lead plaintiff in the putative class action suit related to leronlimab as a potential treatment for COVID-19. On March 17, 2021, a stockholder filed a putative class-action lawsuit in the U.S. District Court against the Company and certain current and former officers. The complaint generally alleges that the defendants made false and misleading statements regarding the viability of leronlimab as a potential treatment for COVID-19. The plaintiff seeks a ruling that this case may proceed as a class action, and seeks unspecified damages and attorneys' fees and costs. On April 9, 2021, a second stockholder filed a similar putative class-action lawsuit in the same court, which the plaintiff voluntarily dismissed without prejudice on July 23, 2021. Motions to appoint a lead plaintiff for the lawsuit are pending. The Company and the individual defendants deny any allegations of wrongdoing in the complaint and intend to vigorously defend the matter. CytoDyn said, "In light of the fact that this case is in its early stage, the number of plaintiffs are not known, and the claims do not specify an amount of damages, the Company cannot predict the ultimate outcome of the lawsuit and cannot reasonably estimate the potential loss or range of loss that the Company may incur." CytoDyn Inc., a biotechnology company, focuses on the clinical development and commercialization of humanized monoclonal antibodies for the treatment and prevention of human immunodeficiency virus infection. The Company is based in Vancouver, Washington. DECORATIVE TRIMMINGS: Duncan Files ADA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Decorative Trimmings LLC. The case is styled as Eugene Duncan, for himself and on behalf of all other persons similarly situated v. Decorative Trimmings LLC, Case No. 1:21-cv-04432-DG-TAM (E.D.N.Y., Aug. 6, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Decorative Trimmings LLC -- https://www.decorativetrimmings.com/ -- is a manufacturer and distributor of decorative trimming and narrow fabrics supplying the Crafts, Hobby, Home Decor, and Apparel Trades.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawfirm.net DELAWARE VALLEY COMFORT: Bunkley Suit to Recover Unpaid Overtime ---------------------------------------------------------------- Renee Bunkley, individually and on behalf of other similarly situated individuals, Plaintiff, v. Delaware Valley Comfort at Home, LLC, Defendant, Case No. 21-cv-03322 (E.D. Pa., July 27, 2021), seeks unpaid overtime, liquidated damages, attorney fees, costs and other relief for violations of the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act of 1968 and/or the Pennsylvania Wage Payment and Collection Law. Delaware Valley Comfort at Home provide companionship services to elderly and disabled clients who are located in nursing homes, group homes, mental health, facilities, assisted living communities, clients' homes, hospice and hospitals. Bunley worked for Delaware Valley as a home health worker. He claims to be mis-classified as an independent contractor, thus denied overtime pay despite regularly working more than forty hours in a workweek. [BN] Plaintiff is represented by: Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 Email: phil@bohrerbrady.com scott@bohrerbrady.com amcgowen@bohrerbrady.com - and - Kevin L. Lovitz, Esq. THE LOVITZ LAW FIRM, P.C. 1650 Market Street, 36th Floor Philadelphia, PA 19103 Tel: (215) 735-1996 Fax: (215) 735-1515 DIDI GLOBAL: Jiao Files IPO-related Securities Class Action ----------------------------------------------------------- XIAOBO JIAO, Individually and on behalf of all others similarly situated v. DIDI GLOBAL INC., WILL WEI CHENG, JEAN QING LIU, STEPHEN JINGSHI ZHU, ALAN YUE ZHUO, ZHIYI CHEN, MARTIN CHI PING LAU, KENTARO MATSUI, ADRIA PERICA, DANIEL YONG ZHANG, GOLDMAN SACHS (ASIA) L.L.C., MORGAN STANLEY & CO. LLC, J.P. MORGAN SECURITIES LLC, BOFA SECURITIES, INC., BARCLAYS CAPITAL INC., CHINA RENAISSANCE SECURITIES (HONG KONG) LIMITED, CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG SECURITIES LIMITED, CITIGROUP GLOBAL MARKETS INC., GUOTAI JUNAN SECURITIES (HONG KONG) LIMITED, HSBC SECURITIES (USA) INC., UBS SECURITIES LLC, BOCI ASIA LIMITED, BOCOM INTERNATIONAL SECURITIES LIMITED, CCB INTERNATIONAL CAPITAL LIMITED, CLSA LIMITED, CMB INTERNATIONAL CAPITAL LIMITED, FUTU INC., ICBC INTERNATIONAL SECURITIES LIMITED, MIZUHO SECURITIES USA LLC, TIGER BROKERS (NZ) LIMITED, COLLEEN A. DE VRIES, and COGENCY GLOBAL, INC., Case No. 2:21-cv-06113 (C.D. Cal., July 29, 2021) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded DiDi securities: (1) pursuant and/or traceable to the registration statement and related prospectus (Registration Statement) issued in connection with DiDi's June 30, 2021 initial public offering (IPO); and/or (2) seeking to recover compensable damages caused by Defendants' violations of the Securities Act of 1933 and violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, on June 10, 2021, DiDi (then-named Xiaoju Kuaizhi Inc.) filed with the SEC a registration statement on Form F-1, which in combination with subsequent amendments on Forms F-1/A and filed pursuant to Rule 424(b)(4), are collectively referred to as the Registration Statement and issued in connection with the IPO. On June 30, 2021, DiDi filed with the SEC the final prospectus for the IPO on Form 424B4, which forms part of the Registration Statement. In the IPO, DiDi sold 316,800,000 American Depositary Shares at $14 per share. The complaint alleges that the Registration Statement was negligently prepared and, as a result, contained untrue statements of material facts or omitted to state other facts necessary to make the statements made not misleading, and was not prepared in accordance with the rules and regulations governing its preparation. As a result of Defendants' wrongful acts and omissions, and the decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. Plaintiff purchased the Company's securities at artificially inflated prices pursuant to the IPO, asserts the complaint. Defendants Cheng, Liu, Zhu, Zhuo are corporate executives of Defendant DiDi, which purports to be a mobility technology platform, providing ride-hailing and other services primarily in the People's Republic of China and also internationally.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 Email: lrosen@rosenlegal.com DIEBOLD NIXDORF: New York Consolidated Class Suit Concluded ----------------------------------------------------------- Diebold Nixdorf, Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that in June 2021, the plaintiffs in the consolidated class action suit subsequently withdrew the appeal and, therefore, the litigation is now concluded. In July and August 2019, shareholders filed putative class action lawsuits alleging violations of federal securities laws in the United States District Court for the Southern District of New York and the Northern District of Ohio. The lawsuits collectively assert that the Company and three former officers (collectively, Defendants) made material misstatements regarding the Company's business and operations, causing the Company's common stock to be overvalued from February 14, 2017 to August 1, 2018. The lawsuits were consolidated before a single judge in the United States District Court for the Southern District of New York and lead plaintiff appointed. In March 2021, the judge granted Defendants' motion to dismiss and in April 2021 judgment was rendered in the Defendants' favor. Although the plaintiffs originally filed an appeal, in June 2021, the plaintiffs subsequently withdrew the appeal and, therefore, the litigation is now over, fully resolved in favor of the Company and its former officers. Diebold Nixdorf, Incorporated, incorporated on August 11, 1876, provides connected commerce services, software and technology. The Company's geographic segments include North America, Asia Pacific, Europe, Middle East and Africa, and Latin America. These segments sell and service financial self-service, retail solutions, and security systems. The Company provides connected commerce solutions to financial institutions. The company is based in North Canton, Ohio. EDISON INT'L: Bellwether Trial Related to Two Fires Vacated ----------------------------------------------------------- Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the bellwether jury trial previously scheduled for October 12, 2020 in the purported class actions suits related to the Thomas and Koenigstein Fires, was vacated due to the wide-spread disruption being caused by the COVID-19 pandemic. In December 2017, wind-driven wildfires impacted portions of Southern California Edison Company's (SCE's) service territory, causing loss of life, substantial damage to both residential and business properties, and service outages for SCE customers. The Ventura County Fire Department (VCFD) and the California Department of Forestry and Fire Protection (CAL FIRE) have determined that the largest of the 2017 fires originated on December 4, 2017, in the Anlauf Canyon area of Ventura County (the investigating agencies refer to this fire as the "Thomas Fire"), followed shortly thereafter by the Koenigstein Fire. According to CAL FIRE, the Thomas and Koenigstein Fires burned over 280,000 acres, destroyed or damages an estimated 1,343 structures and resulted in two fatalities. As of July 22, 2021, SCE was aware of at least currently pending 278 lawsuits, representing approximately 3,000 plaintiffs, related to the Thomas and Koenigstein Fires naming SCE as a defendant. One hundred forty-eight of the 278 lawsuits also name Edison International as a defendant based on its ownership and alleged control of SCE. At least four of the lawsuits were filed as purported class actions. The lawsuits, which have been filed in the superior courts of Ventura, Santa Barbara and Los Angeles Counties allege, among other things, negligence, inverse condemnation, trespass, private nuisance, and violations of the public utilities and health and safety codes. An initial trial for a limited number of plaintiffs, sometimes referred to as a bellwether trial, on certain fire only matters is currently scheduled for October 18, 2021. The bellwether trial date may be further delayed to provide SCE and certain of the individual plaintiffs in the Thomas and Koenigstein Fire litigation the opportunity to pursue settlements of claims under a program adopted to promote an efficient and orderly settlement process. Some individual plaintiffs have, and others may, opt to pursue trial outside of the settlement program. Seventy of the 278 pending lawsuits mentioned in the paragraph above allege that SCE has responsibility for the Thomas and/or Koenigstein Fires and that the Thomas and/or Koenigstein Fires proximately caused the Montecito Mudslides, resulting in the plaintiffs' claimed damages. Forty-Four of the 70 Montecito Mudslides lawsuits also name Edison International as a defendant based on its ownership and alleged control of SCE. In addition to other causes of action, some of the Montecito Mudslides lawsuits also allege personal injury and wrongful death. A bellwether jury trial previously scheduled for October 12, 2020 was vacated due to the wide-spread disruption being caused by the COVID-19 pandemic. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. Edison International, incorporated on April 20, 1987, is the holding company of Southern California Edison Company (SCE). EDISON INT'L: Dismissal of Electric Transmission Suit Appealed -------------------------------------------------------------- Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the plaintiff in the purported class action suit related to the alleged failure to maintain its electric transmission and distribution networks in compliance with safety regulations, has appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. In November 2018, a purported class action lawsuit alleging securities fraud and related claims was filed in federal court against Edison International, SCE and certain current and former officers of Edison International and SCE. The plaintiff alleges that Edison International and SCE made false and/or misleading statements in filings with the Securities and Exchange Commission by failing to disclose that SCE had allegedly failed to maintain its electric transmission and distribution networks in compliance with safety regulations, and that those alleged safety violations led to fires that occurred in 2017 and 2018, including the Thomas Fire and the Woolsey Fire. In April 2021, the court granted a motion to dismiss the lawsuit. The plaintiff has appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. Edison International, incorporated on April 20, 1987, is the holding company of Southern California Edison Company (SCE). EDISON INT'L: Oct. 26 Bellwether Jury Trial on Woolsey Fire Suit ---------------------------------------------------------------- Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that a bellwether jury trial in the Woolsey Fire related suit is currently scheduled for October 26, 2021. In December 2017, wind-driven wildfires impacted portions of Southern California Edison Company's (SCE's) service territory, causing loss of life, substantial damage to both residential and business properties, and service outages for SCE customers. The Ventura County Fire Department (VCFD) and the California Department of Forestry and Fire Protection (CAL FIRE) have determined that the largest of the 2017 fires originated on December 4, 2017, in the Anlauf Canyon area of Ventura County (the investigating agencies refer to this fire as the "Thomas Fire"), followed shortly thereafter by the Koenigstein Fire. According to CAL FIRE, the Thomas and Koenigstein Fires burned over 280,000 acres, destroyed or damages an estimated 1,343 structures and resulted in two fatalities. As of July 22, 2021, SCE was aware of at least 334 currently pending lawsuits, representing approximately 6,000 plaintiffs, related to the Woolsey Fire naming SCE as a defendant. One hundred forty of the 334 lawsuits also name Edison International as a defendant based on its ownership and alleged control of SCE. At least two of the lawsuits were filed as purported class actions. The lawsuits, which have been filed in the superior courts of Ventura and Los Angeles Counties allege, among other things, negligence, inverse condemnation, personal injury, wrongful death, trespass, private nuisance, and violations of the public utilities and health and safety codes. A bellwether jury trial is currently scheduled for October 26, 2021. The bellwether trial date may be further delayed to provide SCE and certain of the individual plaintiffs in the Woolsey Fire litigation the opportunity to pursue settlements of claims under a program adopted to promote an efficient and orderly settlement process. Some individual plaintiffs may opt to pursue trial outside of the settlement program. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. Edison International, incorporated on April 20, 1987, is the holding company of Southern California Edison Company (SCE). FEDERAL SIGNAL: Discovery Ongoing in Hearing Loss Litigation ------------------------------------------------------------ Federal Signal Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in a class action suit initiated by firefighters who claim that exposure to the Company's sirens has impaired their hearing and that the sirens are therefore defective. The Company has been sued for monetary damages by firefighters who claim that exposure to the Company's sirens has impaired their hearing and that the sirens are therefore defective. There were 33 cases filed during the period of 1999 through 2004, involving a total of 2,443 plaintiffs, in the Circuit Court of Cook County, Illinois. These cases involved more than 1,800 firefighter plaintiffs from locations outside of Chicago. In 2009, six additional cases were filed in Cook County, involving 299 Pennsylvania firefighter plaintiffs. During 2013, another case was filed in Cook County involving 74 Pennsylvania firefighter plaintiffs. The trial of the first 27 of these plaintiffs' claims occurred in 2008, whereby a Cook County jury returned a unanimous verdict in favor of the Company. An additional 40 Chicago firefighter plaintiffs were selected for trial in 2009. Plaintiffs' counsel later moved to reduce the number of plaintiffs from 40 to nine. The trial for these nine plaintiffs concluded with a verdict against the Company and for the plaintiffs in varying amounts totaling $0.4 million. The Company appealed this verdict. On September 13, 2012, the Illinois Appellate Court rejected this appeal. The Company thereafter filed a petition for rehearing with the Illinois Appellate Court, which was denied on February 7, 2013. The Company sought further review by filing a petition for leave to appeal with the Illinois Supreme Court on March 14, 2013. On May 29, 2013, the Illinois Supreme Court issued a summary order declining to accept review of this case. On July 1, 2013, the Company satisfied the judgments entered for these plaintiffs, which resulted in final dismissal of these cases. A third consolidated trial involving eight Chicago firefighter plaintiffs occurred during November 2011. The jury returned a unanimous verdict in favor of the Company at the conclusion of this trial. Following this trial, on March 12, 2012 the trial court entered an order certifying a class of the remaining Chicago Fire Department firefighter plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. The Company petitioned the Illinois Appellate Court for interlocutory appeal of this ruling. On May 17, 2012, the Illinois Appellate Court accepted the Company's petition. On June 8, 2012, plaintiffs moved to dismiss the appeal, agreeing with the Company that the trial court had erred in certifying a class action trial in this matter. Pursuant to plaintiffs' motion, the Illinois Appellate Court reversed the trial court's certification order. Thereafter, the trial court scheduled a fourth consolidated trial involving three firefighter plaintiffs, which began in December 2012. Prior to the start of this trial, the claims of two of the three firefighter plaintiffs were dismissed. On December 17, 2012, the jury entered a complete defense verdict for the Company. Following this defense verdict, plaintiffs again moved to certify a class of Chicago Fire Department plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. Over the Company's objection, the trial court granted plaintiffs' motion for class certification on March 11, 2013 and scheduled a class action trial to begin on June 10, 2013. The Company filed a petition for review with the Illinois Appellate Court on March 29, 2013 seeking reversal of the class certification order. On June 25, 2014, a unanimous three-judge panel of the First District Illinois Appellate Court issued its opinion reversing the class certification order of the trial court. Specifically, the Appellate Court determined that the trial court's ruling failed to satisfy the class-action requirements that the common issues of the firefighters' claims predominate over the individual issues and that there is an adequate representative for the class. During a status hearing on October 8, 2014, plaintiffs represented to the Court that they would again seek to certify a class of firefighters on the issue of whether the Company's sirens were defective and unreasonably dangerous. On January 12, 2015, plaintiffs filed motions to amend their complaints to add class action allegations with respect to Chicago firefighter plaintiffs, as well as the approximately 1,800 firefighter plaintiffs from locations outside of Chicago. On March 11, 2015, the trial court granted plaintiffs' motions to amend their complaints. On April 24, 2015, the cases were transferred to Cook County chancery court, which will decide all class certification issues. On March 23, 2018, plaintiffs filed a motion to certify as a class all firefighters from the Chicago Fire Department who have filed lawsuits in this matter. The court has not yet ruled on this motion as the parties continue to engage in discovery and other matters related to this motion. The Company intends to continue its objections to any attempt at certification. No further updates were provided in the Company's SEC report. Federal Signal Corporation, together with its subsidiaries, designs, manufactures, and supplies a suite of products and integrated solutions for municipal, governmental, industrial, and commercial customers in the United States, Canada, Europe, and internationally. It operates through two segments, Environmental Solutions Group and Safety and Security Systems Group. Federal Signal Corporation was founded in 1901 and is headquartered in Oak Brook, Illinois. FMA ALLIANCE: Gillian Suit Removed to W.D. North Carolina --------------------------------------------------------- The case styled as Damon Gillian, on behalf of himself and others so similarly situated v. FMA Alliance, Ltd., a Texas Limited Partnership, Case No. 21 CVS 10519 was removed from the Mecklenburg County Superior Court to the U.S. District Court for the Western District of North Carolina on Aug. 6, 2021. The District Court Clerk assigned Case No. 3:21-cv-00409-FDW-DCK to the proceeding. The nature of suit is stated as Consumer Credit. FMA Alliance, Ltd. -- https://www.fmaalliance.com/ -- is a privately-owned receivables management company originally formed in 1983 and headquartered in Houston, Texas.[BN] The Plaintiff is represented by: Scott C. Harris, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: (919) 600-5000 Fax: (919) 600-5035 Email: sharris@milberg.com The Defendant is represented by: Kendra Stark, Esq. GORDON REES SCULLY MANSUKHANI 421 Fayetteville Street, Suite 330 Raleigh, NC 27601 Phone: (919) 641-0465 Email: kstark@grsm.com FREMONT HILLS: Cormack Buying Fremont Property for $40.15 Million ----------------------------------------------------------------- Fremont Hills Development Corp. asks the U.S. Bankruptcy Court for the Northern District of California to authorize it to consummate the sale for a credit bid of $40 million and additional cash consideration of $150,000 to 2501 Cormack, LLC, of its real property consisting of the land and improvements located at 2501 Cormack Road, in Fremont, California 94539, along with all its rights (including contract rights), privileges and related personal property, which comprise the collateral pledged by the Debtor to Cormack and described in Section 1.2 of the Construction Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing recorded as Document No. 2018031447 on Feb. 9, 2018, with the Alameda County Recorder ("Construction DOT") in favor of Cormack's predecessors in interest. The Debtor commenced the Chapter 11 bankruptcy in hopes of refinancing its sizeable debts and construction loans associated with its development project for the Property, and has proposed a plan of reorganization in furtherance of that goal. The hearing to consider approval of the disclosure statement for the Plan is currently scheduled for Sept. 2, 2021 (which hearing is anticipated to take place concurrently with the hearing on the Motion). The success of the Plan hinges on securing the funding necessary to pay off certain debts, including the secured claim of Cormack. The Debtor would like to avoid a situation where, if the Plan is not confirmed, it has no fallback option to resolve the case. As such it has determined to put in place an alternative to the Plan that provides for the sale of its Property for the benefit of its estate and creditors. This option contemplates that the Proposed Sale will proceed in parallel with the Plan process so that no later than the time of the disclosure statement hearing (or possibly the confirmation hearing) either the Plan or the Proposed Sale will be approved. In the event the Plan cannot be confirmed, proves to be not viable, or is withdrawn, the Debtor has determined in its business judgment to sell the Property to the Buyer for a credit bid of $40 million and additional cash consideration of $150,000, free and clear of liens, claims, and interests, subject only to an option for the Debtor to purchase the Property within three months of closing the Proposed Sale in exchange for the payment in cash of a purchase price equal to the Consideration plus $500,000. Given the multitude of mechanic's liens and other claims asserted against the Property, the Debtor has determined in its business judgment that the Proposed Sale is the most viable, fair, and best alternative option available to maximize the value of the Property for the benefit of its estate and creditors should the Plan prove to be un workable. On April 2, 2021, Melissa M. Downing, MAI of Joseph J. Blake and Associates, Inc., re-appraised the Property and opined that the "as is" market value of the fee simple estate as of March 10, 2021, was $24.8 million, subject to the assumptions set forth in the appraisal. On Jan. 1, 2015, the Debtor entered into a loan agreement with Bay Area Investment Fund I, LLC ("BAI") for $40 million for the construction and development of the Property. BAI never recorded any lien against the Property to secure such indebtedness. On Jan. 31, 2018, Cormack’s predecessors in interest, Trez Capital (2016) Corp. and Parkview Financial Fund 2015, LP, unaware of BAI's loan to the Debtor, loaned the Debtor an additional $65 million under a construction loan agreement for the development of the Property ("Project') as a proposed mixed-use, multifamily residential and retail development of 297,790 square foot gross (252,662 square foot net rentable) on 12.62 acres in the Fremont foothills with frontage on Interstate 680. On Feb. 9, 2018, Trez and Parkview recorded the Construction DOT, perfecting their lien against the Property. Cormack has since succeeded to the interest of Trez and Parkview under the Loan and the Construction DOT. The Debtor subsequently defaulted on both the loans from BAI and Cormack. Cormack therefore recorded a notice of default and election to sell under the Construction DOT, as well as a notice of trustee's sale. On Feb. 2, 2021, BAI filed a civil suit in state court against Cormack that asserted that BAI held a senior lien on the Property and obtained a temporary restraining order barring Cormack from proceeding with the planned foreclosure sale. On Feb. 19, 2021, the state court denied BAI's preliminary injunction request and ruled in favor of Cormack, finding BAI had not shown it was likely to prevail on the merits. On Feb. 24, 2021, following the state court's denial of BAI's request for a preliminary injunction against Cormack's planned foreclosure sale of the Property, the Debtor filed another voluntary chapter 11 bankruptcy petition, commencing the present bankruptcy action. On March 10, 2021, the Debtor filed a stipulation with Cormack as Docket No. 39 ("First Stipulation") which provided Cormack with adequate protection and related relief. On July 15, 2021, the Debtor filed and served its amended Plan of Reorganization Dated July 14, 2021 [Proposed] as Docket No. 75. A hearing on the Debtor's disclosure statement submitted with the Plan is presently set for Sept. 2, 2021. On July 27, 2021, the Debtor filed a second stipulation with Cormack for adequate protection as Docket No. 79 ("Second Stipulation") setting forth its intent to sell the Property to Cormack should the Plan not be timely confirmed. Thus, in the event that the Plan is not timely confirmed, the Debtor has negotiated with Cormack for the sale of the Property as a backup plan to resolve this case for the benefit of the Debtor's estate and creditors. Should the disclosure statement not be approved, or, if approved at the September 2nd hearing, should the Plan not be confirmed at the Confirmation Hearing, the Debtor seeks authority to immediately sell the Property to Cormack along with all Assets associated with the Property in exchange for a credit bid by Cormack of $40 million plus an additional $150,000 in cash consideration. Pursuant to the terms of the Proposed Sale, the Debtor will also have the option to repurchase the Property in cash for $500,000 over Cormack's Purchase Price at any time within three months of the closing of the Proposed Sale. The option provides protection and value to the Debtor in the event it (or any party for that matter) believes the value of the Property is in fact in excess of $40.65 million. Several entities have asserted alleged liens and secured claims against the Property. With the exception of the Alameda County Tax Collector (which holds a lien for past due taxes), the Debtor seeks to sell the Property and associated Assets to Cormack free and clear of all liens, claims, encumbrances, and other interests of any persons or entities listed as claimants and lienholders in the Motion. BAI asserts that it holds a senior lien to that of Cormack against the Property as a secured lender. However, BAI never recorded a deed of trust on the Property to perfect any such lien. BAI did record a lis pendens against the Property, but that was on March 2, 2021 -- after the Debtor's Petition Date and in violation of the automatic stay. Accordingly, the lis pendens is void ab initio under well-established Ninth Circuit law. While BAI has no lien of record and is unsecured as a matter of law, in an abundance of caution the Motion seeks a sale of the Assets free and clear of any purported lien, claim or interest of BAI, including the void lis pendens. By way of the Motion, the Debtor seeks an order from the Court (i) authorizing the Debtor to consummate the Proposed Sale of the Property to the Buyer, pursuant to the terms as set forth; (ii) authorizing the sale of the Property free and clear of liens, claims, encumbrances and other interests of any persons or entities listed as claimants and lienholders and any other persons or entities with unknown liens, claims, encumbrances, or other interests against or in the Property pursuant to Bankruptcy Code section 363(f) (including any and all liens, claims, and interests purportedly held by BAI); (iii) granting the protections afforded by Section 363(m) to the Buyer; and (iv) granting related relief. Finally, the Debtor requests that the Sale Order provide that the provisions of the Federal Rule of Bankruptcy Procedure 6004(h), which would otherwise stay any order approving the sale of the Property to the Buyer, be waived. About Fremont Hills Development Corp. Fremont Hills Development Corporation sought protection under Chapter 11 of the Bankruptcy Code (Bankr. N.D. Calif. Case No. 21-50240) on Feb. 24, 2021, listing under $1 million in both assets and liabilities. Jae Ryu, chief financial officer, signed the petition. Judge Stephen L. Johnson oversees the case. Farsad Law Office, PC serves as the Debtor's legal counsel. FUNCTIONAL ENDOCRINOLOGY: Pacheco Hits Fraudulent Practices ----------------------------------------------------------- RICARDO PACHECO, JOY LANDIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. Functional Endocrinology of Ohio and Dr. Keith Ungar, D.C., Case No. CV21 950543 (Ct. of Common Pleas, July 28, 2021) is an action seeking compensatory damages for Defendants' fraudulent induced tests and dietary supplements. The complaint alleges that Functional Endocrinology, along with Defendant Ungar, solicits individuals under the false pretense of providing treatment for ailments including acid reflux, addictions, chronic fatigue, depression, and diabetes. Functional Endocrinology then has the individual become a "member" of their services. "Members" are then run through a series of individual tests to determine their specific chemical imbalances. The "Members" are then told to buy a series of dietary supplements, which have little or nothing to do with the ailments of the individuals. For running the tests and purchasing the dietary supplements, individuals are changed $10,000 or more for services and supplements. Defendants have reaped extreme profit margins from their tests and dietary supplements without regard to their effectiveness or appropriateness to their customer or "member" because they are fraudulently describing the purchase of dietary supplements as medical treatment, says the complaint. Functional Endocrinology claims to practice "functional medicine" which "examines core clinical imbalances that underline various disease conditions." Dr. Keith Ungar is a licensed Chiropractor in the State of Ohio but does not hold a license to practice medicine in Ohio or any other location. [BN] The Plaintiffs are represented by: David A. Freeburg, Esq. 6690 Beta Drive, Suite 320 Mayfield Village, OH 44143 Tel:(440) 421-9181 E-mail: David@freeburglaw.com GARDNER-GIBSON CHICAGO: Johnson Seeks to Recover Unpaid OT Wages ---------------------------------------------------------------- Anna Johnson, individually and on behalf of all others similarly situated, v. Gardner-Gibson Chicago, Inc., Defendant, Case No. 21-cv-04099, (N.D. Ill., August 2, 2021) seeks a declaratory judgment, monetary damages, liquidated damages, costs, and a reasonable attorneys' fee as a result of failing to pay proper overtime wages under the Fair Labor Standards Act, the minimum wage and overtime provisions of the Illinois Minimum Wage Law, the minimum wage and overtime provisions of the Chicago Minimum Wage and Paid Sick Leave Ordinance. Gardner-Gibson provides roof, driveway and waterproofing coatings, caulks, spackles and wallpaper adhesives where Johnson worked as a salaried Office Manager from 2000 until July of 2021. Defendant generally paid Johnson for each claim or estimate that she completed but did not pay her an overtime premium for hours worked over 40 in any week, asserts the complaint. [BN] Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy., Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com GARRETT MOTION: Continues to Defend Consolidated Suit in New York ----------------------------------------------------------------- Garrett Motion Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a consolidated putative class action suit currently pending in the United States District Court for the Southern District of New York. On September 25, 2020, a putative securities class action complaint was filed against Garrett Motion Inc. and certain current and former Garrett officers and directors, in the United States District Court for the Southern District of New York. The case bears the caption: Steven Husson, Individually and On Behalf of All Others Similarly Situated, v. Garrett Motion Inc., Olivier Rabiller, Alessandro Gili, Peter Bracke, Sean Deason, and Su Ping Lu, Case No. 1:20-cv-07992-JPC (SDNY). The Husson Action asserted claims under Sections 10(b) and 20(a) of the Exchange Act, for securities fraud and control person liability. On September 28, 2020, the plaintiff sought to voluntarily dismiss his claim against Garrett Motion Inc. in light of the Company's bankruptcy; this request was granted. On October 5, 2020, another putative securities class action complaint was filed against certain current and former Garrett officers and directors, in the United States District Court for the Southern District of New York. This case bears the caption: The Gabelli Asset Fund, The Gabelli Dividend & Income Trust, The Gabelli Value 25 Fund Inc., The Gabelli Equity Trust Inc., SM Investors LP and SM Investors II LP, on behalf of themselves and all others similarly situated, v. Su Ping Lu, Olivier Rabiller, Alessandro Gili, Peter Bracke, Sean Deason, Craig Balis, Thierry Mabru, Russell James, Carlos M. Cardoso, Maura J. Clark, Courtney M. Enghauser, Susan L. Main, Carsten Reinhardt, and Scott A. Tozier, Case No. 1:20-cv-08296-JPC (SDNY). The Gabelli Action also asserted claims under Sections 10(b) and 20(a) of the Exchange Act. On November 5, 2020, another putative securities class action complaint was filed against certain current and former Garrett officers and directors, in the United States District Court for the Southern District of New York. This case bears the caption: Joseph Froehlich, Individually and On Behalf of All Others Similarly Situated, v. Olivier Rabiller, Allesandro Gili, Peter Bracke, Sean Deason, and Su Ping Lu, Case No. 1:20-cv-09279-JPC (SDNY). The Froehlich Action also asserted claims under Sections 10(b) and 20(a) of the Exchange Act. All three actions are currently assigned to Judge John P. Cronan. Su Ping Lu filed a waiver of service in the Gabelli Action on November 10, 2020. On November 24, 2020, competing motions were filed seeking the appointment of lead plaintiff and lead counsel and the consolidation of the Husson, Gabelli, and Froehlich Actions. On December 8, 2020, counsel for the plaintiffs in the Gabelli Action – the Entwistle & Cappucci law firm – filed an unopposed stipulation and proposed order that would (1) appoint the plaintiffs in the Gabelli Action – the "Gabelli Entities" – the lead plaintiffs; (2) would appoint Entwistle & Cappucci as lead counsel for the plaintiff class; and (3) consolidate the Gabelli Action, the Husson Action, and the Froehlich Action (the "Consolidated D&O Action"). On January 21, 2021, the Court granted the motion to consolidate the actions and granted the Gabelli Entities' motions for appointment as lead plaintiff and for selection of lead counsel. On February 25, 2021, plaintiffs filed a Consolidated Amended Complaint for Violation of the Federal Securities Laws. The Company's insurer, AIG has accepted the defense, subject the customary reservation of rights. Based in Switzerland, Garrett Motion Inc. designs, manufactures and sells highly engineered turbocharger and electric-boosting technologies for light and commercial vehicle original equipment manufacturers and the global vehicle and independent aftermarket. GENENTECH INC: Williamson Suit Moved to San Mateo Cty. Super. Court ------------------------------------------------------------------- Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California remanded the case, ANDREW WILLIAMSON, et al., Plaintiffs v. GENENTECH, INC., et al., Defendants, Case No. 20-cv-06695-JSC (N.D. Cal.), to the Superior Court of the State of California for the County of San Mateo based on lack of subject matter jurisdiction. The Plaintiffs challenge Genentech's sale of prescription drusgs in single-dose vials under California's Unfair Competition Law (UCL), California Business and Professions Code Section 17200. The Court previously remanded the action for lack of subject matter jurisdiction because Plaintiff Williamson, who alleged that Genentech's use of single-dose vials resulted in waste, failed to demonstrate Article III standing as he had not alleged a concrete injury. Williamson then joined his insurer, Blue Cross Blue Shield of Kansas City as a plaintiff, and Genentech again removed the action to the Court under the Class Action Fairness Act. Genentech then moved to dismiss the Third Amended Complaint as preempted by federal law, barred by California's judicial-abstention doctrine, and for failure to state a claim. While that motion was under submission, Plaintiff Blue Cross Blue Shield of Kansas City filed a notice of voluntary dismissal leaving Mr. Williamson as the sole plaintiff. The Court thereafter issued an Order to Show Cause as to why the action should not again be remanded to state court because Mr. Williamson, the sole remaining plaintiff, still lacks Article III standing. Neither party responded to the Court's Order. Judge Corley explains that the Court previously held Mr. Williamson did not have standing because he had not alleged facts that supported an inference that the amount he paid for his Rituxan treatment would have been reduced if Genentech had offered lower dosage vials and therefore, he had not suffered a concrete injury. Mr. Williamson still admits -- as he did before -- that the amount of money he paid out-of-pocket would not have changed even if the amount of wasted medicine had been reduced. The Judge says, Mr. Williamson's attempt to save his claim by arguing that even if he cannot seek restitution he can seek injunctive relief under Section 17204 is unavailing. He states, injunctive relief is only available to "a person who has suffered injury in fact and has lost money or property as a result of the unfair competition." Mr. Williamson admits that he has not lost money or property as a result of Genentech's conduct. Further, Mr. Williamson has no standing to challenge the dosage amount Genentech offers for any drug other than Rituxan given that he alleges that he was prescribed and took only Rituxan and not one of the other three drugs challenged in this action. Accordingly, the action is remanded to the San Mateo County Superior Court based on lack of subject matter jurisdiction. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/4awc7etd from Leagle.com. GENERAC HOLDINGS: Rosen Law Discloses Securities Class Action ------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces it is investigating potential securities claims on behalf of shareholders of Generac Holdings Inc. (NYSE: GNRC) resulting from allegations that Generac may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Generac 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-2139.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 July 29, 2021, Generac recalled several generators models after multiple reports of fingers being injured in the machines, according to the Consumer Product Safety Commission (CPSC). According to the CPSC, "Generac has received eight reports of injuries, seven resulting in finger amputations and one in finger crushing." The generators were sold at major home improvement and hardware stores nationwide and online from June 2013 through June 2021. On this news, Generac's stock price fell $31.04 per share, or 7%, from its July 28, 2021 closing price over the next three trading days to close at $400.00 per share on August 2, 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, resources or any meaningful peer recognition. Be wise in selecting counsel. 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 4 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.[GN] GENERAL MOTORS: Lawsuit Alleges Airbag Failures Kill People ----------------------------------------------------------- A GM class action lawsuit alleges the sensing and diagnostic modules prevent the airbags and seat belt pretensioners from deploying in certain frontal crashes. According to the class action lawsuit, at least 1,298 people were killed or injured in frontal collisions in which the airbags failed to deploy in GM vehicles. The lawsuit alleges that statistic is based on information from the National Highway Traffic Safety Administration from 1999 to the present. According to the class action: "The "Class Vehicles" herein include all vehicles in the United States that contain the SDM [sensing and diagnostic module] Calibration Defect that were (1) manufactured, sold, distributed, or leased by Defendants or (2) manufactured, sold, distributed, or leased by Old GM and purchased or leased by Plaintiff or a Class member after July 10, 2009." The General Motors class action lawsuit was filed by plaintiffs Jamar Chism (2012 Chevrolet Traverse), Ashley DeGruy (2014 Chevrolet Equinox), Kissy Elliott (2014 Chevrolet Traverse), William Garrison (2014 Chevy Silverado), Matthew Mastracci (2014 Chevy Silverado), Arthur Ray (2010 GMC Sierra 2500), Mark Silver (2014 Chevrolet 1500 Express), and Kenith Yates (2014 Chevrolet Silverado LD). However, none of the plaintiffs allege their GM vehicles experienced any airbag or seat belt failures. But those plaintiffs allege millions of vehicles are dangerous to drive because the airbags and seat belt pretensioners can fail right when they are needed the most. The plaintiffs claim the airbag control units are defective, components GM refers to as sensing and diagnostic modules. The GM sensing and diagnostic module commands the airbags to deploy and the seat belts to tighten when the control unit senses a crash. The GM vehicles are allegedly equipped with airbag control unit software calibrated to prevent the airbags and seat belt pretensioners from deploying 45 milliseconds after a crash has begun. The lawsuit says this is a serious problem where a crash involves multiple impacts and the airbags fail to properly deploy. The lawsuit alleges occupants will never be protected in certain GM frontal crashes that involve multiple impacts. The class action provides an example where a vehicle first hits a curb and then veers and hits a tree, or a vehicle first hits a speed bump and then crashes into the vehicle in front of it. These are "concatenated" crashes which involve multiple inputs for the sensing and diagnostic modules to detect during a crash sequence. "In concatenated crashes, the first part of the incident (hitting a curb) sends the SDM into its "wake up" or "stand by" mode. The initial curb hit does not trigger the airbag or tighten the seatbelt, but the SDM "wakes up" to confirm whether further irregular signals will follow and indicate a need for the seatbelts or airbags." - GM class action lawsuit The GM airbags and seat belt pretensioners can allegedly only be triggered "within 45 milliseconds of a first, irregular signal. If a second signal occurs after 45 milliseconds, the SDM purposefully, by design, disregards signals that would otherwise trigger airbag deployment." This, according to the class action lawsuit, results in a "dead zone" beginning just 45 milliseconds into a crash after which occupants are completely vulnerable. General Motors has recalled millions of vehicles due to problems with the sensing and diagnostic modules, including a recall of 4 million vehicles in 2016. The modules also caused another recall of about 88,000 GMC vehicles in 2018. The GM class action lawsuit was filed in the U.S. District Court for the Eastern District of Michigan: Chism, et al., v. General Motors, LLC, et al. The plaintiffs are represented by the Miller Law Firm, P.C., Lieff Cabraser Heimann & Bernstein, LLP, Baron & Budd, P.C., and Birka-White Law Offices. [GN] GRANGE MUTUAL: Claims Not Liable for Water Pollution Coverage ------------------------------------------------------------- Law360 reports that Ohio insurer Grange Mutual Casualty Co. has asked a Georgia federal court to declare that it does not have to provide coverage in relation to alleged water pollution arising from the Peach State's large carpet manufacturing industry. [GN] GRANITE CONSTRUCTION: Bid for Initial OK of Settlement Pending -------------------------------------------------------------- Granite Construction Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the class representative in Police Retirement System of St. Louis v. Granite Construction Incorporated, et. al., filed a motion for preliminary approval of the settlement, which is still under review by the court. On August 13, 2019, a securities class action was filed in the United States District Court for the Northern District of California against the Company, James H. Roberts, our former President and Chief Executive Officer, and Jigisha Desai, our former Senior Vice President and Chief Financial Officer and current Executive Vice President and Chief Strategy Officer. An amended complaint was filed on February 20, 2020 that, among other things, added Laurel Krzeminski, the company's former Chief Financial Officer, as a defendant. The amended complaint is brought on behalf of an alleged class of persons or entities that acquired the company's common stock between April 30, 2018 and October 24, 2019, and alleges claims arising under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. After the filing of the amended complaint, this case was re-titled Police Retirement System of St. Louis v. Granite Construction Incorporated, et. al. The amended complaint seeks damages based on allegations that the defendants made false and/or misleading statements and failed to disclose material adverse facts in the Company's SEC filings about its business, operations and prospects. On May 20, 2020, the court denied, in part, the defendants' motion to dismiss the amended complaint. On January 21, 2021, the court granted Plaintiff’s motion for class certification. On October 23, 2019, a putative class action lawsuit, titled Nasseri v. Granite Construction Incorporated, et. al., was filed in the Superior Court of California, County of Santa Cruz against the Company, James H. Roberts, the company's former President and Chief Executive Officer, Laurel Krzeminski, the company's former Chief Financial Officer, and the then-serving Board of Directors on behalf of persons who acquired shares of Company common stock in the Company's June 2018 merger with Layne. The complaint asserts causes of action under the Securities Act of 1933 and alleges that the registration statement and prospectus were negligently prepared and included materially false and misleading statements and failed to disclose facts required to be disclosed. On August 10, 2020, the court sustained the company's demurrer dismissing the complaint with leave to amend. On September 16, 2020, the plaintiff filed an amended complaint. The company have filed a demurrer seeking to dismiss the amended complaint. On April 9, 2021, the court entered an order overruling the company's demurrer seeking to dismiss the amended complaint. On May 14, 2021, the plaintiff filed a motion for class certification. On July 26, 2021, the company filed a motion to stay the case pending the federal court’s review of the proposed settlement in Police Retirement System of St. Louis v. Granite Construction Incorporated, et al. On April 29, 2021, the company entered into a stipulation of settlement to settle Police Retirement System of St. Louis v. Granite Construction Incorporated, et al. The Settlement Agreement also settles claims alleged in Nasseri v. Granite Construction Incorporated, et al. The settlement is subject to court approval. Under the Settlement Agreement, the Company will pay or cause to be paid a total of $129 million in cash, $63 million of which it expects to be paid through insurance proceeds. The payment will be paid to a settlement fund that will be used to pay all settlement fees and expenses, attorneys' fees and expenses, and cash payments to members of the settlement class. The settlement class has agreed to release the company, the other defendants named in the lawsuits and certain of their respective related parties from any and all claims, rights, causes of action, liabilities, actions, suits, damages or demands of any kind whatsoever, that relate in any way to the purchase, acquisition, holding, sale or disposition of the company's common stock during the period between February 17, 2017 and October 24, 2019 that arose out of or are based upon or related to the facts alleged or the claims or allegations set forth in Police Retirement System of St. Louis v. Granite Construction Incorporated, et al. or relate in any way to any alleged violation of the Securities Act of 1933, the Securities Exchange Act of 1934, or any other state, federal or foreign jurisdiction's securities or other laws, any alleged misstatement, omission or disclosure (including in financial statements) or other alleged securities-related wrongdoing or misconduct, including all claims alleged in Nasseri v. Granite Construction Incorporated, et al. The Settlement Agreement contains no admission of liability, wrongdoing or responsibility by any of the parties. On April 30, 2021, the class representative filed a motion for preliminary approval of the settlement, which is still under review by the court. The plaintiff in Nasseri v. Granite Construction Incorporated, et al. has been permitted to intervene, although the court has denied his application to be appointed as additional lead plaintiff. Granite said, "If the court preliminarily approves the settlement, members of the settlement class will be provided notice of, and an opportunity to object to, the settlement at a fairness hearing to be held by the court to determine whether the settlement should be finally approved and whether the proposed order and final judgment should be entered. If the court approves the settlement, including the payment and release described above, and enters such order and final judgment, and such judgment is no longer subject to further appeal or other review, the settlement fund will be disbursed in accordance with a plan of allocation approved by the court and the release will be effective to all members of the settlement class." As a result of entering into the Settlement Agreement, we recorded a pre-tax charge of approximately $66 million in the quarter ended March 31, 2021. Granite Construction Incorporated is one of the largest diversified infrastructure companies in the United States, engaged in heavy-civil infrastructure projects including the construction of streets, roads, highways, mass transit facilities, airport infrastructure, bridges, trenchless and underground utilities, power-related facilities, water-related facilities, well drilling, utilities, tunnels, dams and other infrastructure-related projects, site preparation, mining services, and infrastructure services for residential development, energy development, commercial and industrial sites, and other facilities, as well as construction management professional services. The company had four reportable business segments: Transportation, Water, Specialty and Materials. The company is based in Watsonville, California. GREAT FROG: Duncan Files ADA Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against The Great Frog, LLC. The case is styled as Eugene Duncan, for himself and on behalf of all other persons similarly situated v. The Great Frog, LLC, Case No. 1:21-cv-04430 (E.D.N.Y., Aug. 6, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Great Frog -- https://www.thegreatfroglondon.com/ -- have been making original skull rings in its London workshop since 1972.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawfirm.net HONG HOLDINGS: Does not Properly Pay Workers, Dilworth Says ----------------------------------------------------------- Amia Dilworth, as an "aggrieved employee" on behalf of other "aggrieved employees," Plaintiff v. Hong Holdings, LLC and Does 1-50, inclusive, Defendants, Case No. 21STCV27447, (Cal. Super., July 27, 2021), seeks redress for failure to provide meal and rest breaks, failure to provide itemized wage statements, interest thereon at the statutory rate, actual damages, all wages due terminated employees, costs of suit, prejudgment interest and such other and further relief pursuant to the California Labor Code, Unfair Competition Law and applicable Industrial Welfare Commission wage orders. Dilworth was employed by Hong Holdings as an hourly-paid cashier in Los Angeles from approximately 2013 to February 23, 2018. [BN] Plaintiff is represented by: David G. Spivak, Esq. Caroline Tahmassian, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd, Suite 312 Encino, CA 91436 Telephone: (818) 582-3086 Facsimile: (818) 582-2561 Email: david@spivaklaw.com caroline@spivaklaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Telephone: (562)256-1047 Facsimile: (562)256-1006 Email: whaines@uelglaw.com JOHNSON & JOHNSON: AWP Suit in New Jersey Ongoing ------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended July 4, 2021, that the company continues to defend a putative Average Wholesale Price (AWP) related suit in New Jersey. Johnson & Johnson and several of its pharmaceutical subsidiaries (the J&J AWP Defendants), along with numerous other pharmaceutical companies, were named as defendants in a series of lawsuits in state and federal courts involving allegations that the pricing and marketing of certain pharmaceutical products amounted to fraudulent and otherwise actionable conduct because, among other things, the companies allegedly reported an inflated Average Wholesale Price (AWP) for the drugs at issue. Payors alleged that they used those AWPs in calculating provider reimbursement levels. The plaintiffs in these cases included three classes of private persons or entities that paid for any portion of the purchase of the drugs at issue based on AWP, and state government entities that made Medicaid payments for the drugs at issue based on AWP. Many of these cases, both federal actions and state actions removed to federal court, were consolidated for pre-trial purposes in a multi-district litigation in the United States District Court for the District of Massachusetts, where all claims against the J&J AWP Defendants were ultimately dismissed. The J&J AWP Defendants also prevailed in a case brought by the Commonwealth of Pennsylvania. Other AWP cases have been resolved through court order or settlement. The case brought by Illinois was settled after trial. In New Jersey, a putative class action based upon AWP allegations is pending against Centocor, Inc. and Ortho Biotech Inc. (both now Janssen Biotech, Inc.), Johnson & Johnson and ALZA Corporation. All other cases have been resolved. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Bid to Nix Talc-Related Suit in Illinois Pending ------------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended July 4, 2021, that the motion to dismiss filed by Johnson & Johnson Consumer, Inc. (JJCI) in the purported class action suit related to talc contained in Johnson's Baby Powder, is pending. In March 2018, a purported class action was filed in the Circuit Court Third Judicial District Madison County, Illinois against Johnson & Johnson Consumer, Inc., alleging violations of state consumer fraud statutes based on nondisclosure of alleged health risks associated with talc contained in Johnson's Baby Powder. The complaint seeks damages but does not allege personal injury. In October 2020, JJCI moved to dismiss the complaint. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Class Suits Over Benzene in Sunscreens Underway ------------------------------------------------------------------ Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended July 4, 2021, that various Johnson & Johnson entities continues to defend multiple putative class action suits related to the alleged benzene contamination of certain Neutrogena sunscreen products. Beginning in May 2021, multiple putative class actions were filed in state and federal courts (California, Florida, New York, and New Jersey) against various Johnson & Johnson entities alleging violations of state consumer fraud statutes based on nondisclosure of alleged benzene contamination of certain Neutrogena sunscreen products and the affirmative promotion of those products as "safe"; and, in at least one case, alleging a strict liability manufacturing defect and failure to warn claims, asserting that the named plaintiffs suffered unspecified injuries as a result of alleged exposure to benzene. In addition, in July 2021, a putative class action was filed in British Columbia, Canada, similarly challenging the non-disclosure of benzene contamination of certain Neutrogena and Aveeno sunscreen products. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Court Junks Xarelto Related Class Suit --------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended July 4, 2021, that the court granted the defendants' motion to dismiss the purported class action suit related to improper marketing and promotion of XARELTO(R) In August 2015, two third-party payors filed a purported class action in the United States District Court for the Eastern District of Louisiana against Janssen Research & Development, LLC, Janssen Ortho LLC, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc. and Johnson & Johnson (as well as certain Bayer entities), alleging that the defendants improperly marketed and promoted XARELTO(R) as safer and more effective than less expensive alternative medications while failing to fully disclose its risks. The complaint seeks damages. In November 2020, Defendants moved to dismiss the complaint. In July 2021, the Court granted the motion to dismiss. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Dismissal of ERISA-Related Class Suit Appealed ----------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended July 4, 2021, that plaintiffs' appeal in the class action suit related to the Employee Retirement Income Security Act of 1974 (ERISA), with the Third Circuit, is pending. In January 2019, two ERISA class action lawsuits were filed by participants in the Johnson & Johnson Savings Plan against Johnson & Johnson, its Pension and Benefits Committee, and certain named officers in the United States District Court for the District of New Jersey, alleging that the defendants breached their fiduciary duties by offering Johnson & Johnson stock as a Johnson & Johnson Savings Plan investment option when it was imprudent to do so because of failures to disclose alleged asbestos contamination in body powders containing talc, primarily JOHNSON'S(R) Baby Powder. Plaintiffs are seeking damages and injunctive relief. In September 2019, Defendants filed a motion to dismiss. In April 2020, the Court granted Defendants' motion but granted leave to amend. In June 2020, Plaintiffs filed an amended complaint, and in July 2020, Defendants moved to dismiss the amended complaint. As of October 2020, briefing on Defendants' motion was complete. In February 2021, the Court granted Defendants' motion, and granted Plaintiffs leave to amend. In April 2021, Plaintiffs informed the Court that they did not intend to file an amended complaint, and the Court dismissed the case with prejudice. In May 2021, Plaintiffs filed a notice of appeal with the Third Circuit. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. MANSFIELD ENGINEERED: Shortchanges Workers' Wages, Kiser Says ------------------------------------------------------------- Richard Kiser, individually and on behalf of all others similarly situated, Plaintiff, v. Mansfield Engineered Components, Inc., Defendant, Case No. 21-cv-01501 (N.D. Ohio, August 2, 2021), seeks to recover compensation, liquidated damages and attorneys' fees and costs pursuant to the provisions of the Fair Labor Standards Act of 1938, Ohio's Minimum Fair Wage Standards Act and the Ohio Prompt Pay Act. Mansfield Engineered Components designs and manufactures hinges for appliances such as refrigerators, ovens and washing machines where Kiser worked as an Assembly Line Worker from January of 2021 until June of 2021. He claims to be denied overtime for all hours worked in excess of 40 hours per workweek. Mansfield allegedly did not include bonuses that were paid when calculating regular rates for overtime. [BN] The Plaintiff is represented by: Robert E. DeRose, Esq. BARKAN MEIZLISH DEROSE WENTZ MCINERNEY PEIFER, LLP 4200 Regent Street, Suite 210 Columbus, OH 43219 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 Email: bderose@barkanmeizlish.com - and - Josh Sanford, Esq. Sean Short, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy., Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com MASSACHUSETTS: Green Sues DOC for Unconstitutional, Illegal Conduct ------------------------------------------------------------------- JULIAN GREEN, EUGENE IVEY, JAMES P. MCKENNA, and LISA NEWMAN-POLK, individually and on behalf of all others similarly situated v. MASSACHUSETTS DEPARTMENT OF CORRECTION, CAROL MICI, Commissioner of the Massachusetts Department of Correction, in her official capacity, SIRCHIE ACQUISITION CO. LLC, PREMIER BIOTECH, INC., Case No. 21-1713A (Suffolk Superior Ct., July 29, 2021) is an action seeking to redress Defendants' unconstitutional and illegal conduct. The complaint alleges that Defendant Massachusetts Department of Correction (DOC) uses fake drug tests on legal mail to interfere with incarcerated people's right to communicate with their counsel and punish them without due process. These tests are purportedly designed to detect synthetic cannabinoids and are manufactured and sold by Defendants Sirchie Acquisition Company, LLC and its sales agent Premier Biotech, Inc. When used to test for drugs sprayed on paper (such as legal mail), these tests are less accurate than witchcraft, phrenology, or simply picking a number out of a hat. Interactions with innocuous chemicals commonly found in paper frequently create false positives -- almost 80% of the time, according to one DOC official's estimate. Once a false positive has been generated, the DOC presents the incarcerated person with an untenable dilemma: they can either accept responsibility for a crime they did not commit and suffer the punishment; or they can request a laboratory test -- but be subjected to solitary confinement and loss of privileges while DOC waits for the test results, which can often take months. The complaint adds that Defendants Sirchie and Premier Biotech falsely promote their tests as accurate -- despite a staggering rate of false positives -- knowing that the DOC is using them to "test" legal mail and improperly punish incarcerated people based on the results. Even though the DOC knows that Sirchies tests are unreliable, it regularly accuses legal professionals across Massachusetts of sending drugs into prisons based on those tests. Plaintiffs Ivey and Green are individuals incarcerated by the DOC. Plaintiffs McKenna and Newman-Polk are attorneys who were falsely accused of trying to smuggle drugs into the prison on their legal mail. Defendant Carol Mici is the Commissioner of the Massachusetts DOC, an agency of the Commonwealth of Massachusetts responsible for overseeing the Massachusetts prison system. Defendant Premier Biotech advertises, distributes, and sells Defendant Sirchie's drug test products in Massachusetts. [BN] The Plaintiffs are represented by: Janet Herold, Esq. Benjamin Elga, Esq. Alice Buttrick, Esq. Justice Catalyst Law, Inc. 123 William St., 16th Floor New York, NY 10038 Tel: (518) 732-6703 E-mail: jherold@justicecatalyst.org belga@justicecatalyst.org abuttrick@j usticecatalyst.org - and - Ellen Leonida, Esq. Matthew Borden, Esq. Christman Rice, Esq. Amber Ashley James, Esq. BraunHagey & Borden LLP 351 California Street, 10th Floor San Francisco, CA 94104 Tel. & Fax: (415) 599-0210 E-mail: leonida@braunhagey.com borden@braunhagey.com rice@braunhagey.com james@braunhagey.com MEGA MUFFLER: Martinez Files Labor Class Action in NY ----------------------------------------------------- Juan Carlos Aguilar Martinez, on behalf of himself and all other persons similarly situated v. Mega Muffler Center, Corp. d/b/a Mega Muffler Auto Repair, and Nelson Rodriguez, Case No. 1:21-cv-06414 (S.D.N.Y., July 28, 2021) arises from the Defendants' violations of the Fair Labor Standards Act (FLSA). According to the complaint, during his employment by the defendants as a mechanic, Aguilar Martinez was working approximately 60 hours per week. During the period April 2019 through October 2019, Plaintiff was paid $500 in cash per week; during the period from November 2019 through April 2020, he was paid $600 in cash per week, and during the period from May 2020 through September 2020, he was paid $700 in cash per week. Plaintiff received the weekly amounts described for all hours worked each week, regardless of the exact number of hours worked in a given week. As a result, Plaintiff's effective rates of pay was below the statutory New York State minimum wage in effect at relevant times. In addition, the defendants failed to pay Plaintiff any overtime "bonus" for hours worked beyond 40 hours in a workweek, in violation of the FLSA, the New York Labor Law, and the supporting New York State Department of Labor regulations. Defendants also failed to provide Plaintiff with weekly records of his compensation and hours worked, in violation of the Wage Theft Prevention Act (WTPA), the complaint says. Defendant Rodriguez is an owner or part owner and principal of Defendant Mega Muffler, a company operating an auto repair shop in Bronx, New York. [BN] The Plaintiff is represented by: Michael Samuel, Esq. THE SAMUEL LAW FIRM 1441 Broadway, Suite 6085 New York, NY 10018 Tel:(212) 563-9884 E-mail: michael@samuelandstein.com MICROSOFT CORP: Ten-Month Claims Period Closes Sept. 23 ------------------------------------------------------- Microsoft Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on July 29, 2021, for the fiscal year ended June 30, 2021, that the ten-month claims period commenced on November 23, 2020 and will close on September 23, 2021. Antitrust and unfair competition class action lawsuits were filed against the company in British Columbia, Ontario, and Quebec, Canada. All three have been certified on behalf of Canadian indirect purchasers who acquired licenses for Microsoft operating system software and/or productivity application software between 1998 and 2010. The trial of the British Columbia action commenced in May 2016. Following a mediation, the parties agreed to a global settlement of all three Canadian actions and submitted the proposed settlement agreement to the courts in all three jurisdictions for approval. The final settlement and form of notice have been approved by the courts in British Columbia, Ontario, and Quebec. The ten-month claims period commenced on November 23, 2020 and will close on September 23, 2021. Microsoft Corporation develops, licenses, and supports software, services, devices, and solutions worldwide. The company was founded in 1975 and is headquartered in Redmond, Washington. MOORE INGRAM: Bid to Conditionally Certify Class in Russo Denied ---------------------------------------------------------------- In the case, JULIA RUSSO, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. MOORE INGRAM JOHNSON & STEELE, LLP, Defendant, Case No. 3:20-cv-00820 (M.D. Tenn.), Judge Aleta A. Trauger of the U.S. District Court for the Middle District of Tennessee, Nashville Division, issued an Order: (i) granting the Plaintiff's motion for leave to supplement her Motion to Facilitate Notice Pursuant to 29 U.S.C. Section 216(b); (ii) denying the Defendant's Motion to Strike/Disregard or, in the Alternative, Response in Opposition to Plaintiff's Supplement Regarding Motion to Facilitate Notice; and (iii) denying the Plaintiff's motion for conditional certification of a Fair Labor Standards Act collective action. The case is a wage and hour case brought as a collective action pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201, et seq., and as a putative class action under Tennessee common law. According to the Collective and Class Action Complaint, Moore Ingram is a full-service law firm that employs more than 60 attorneys and has a "dedicated staff of support personnel." It is a Georgia limited liability partnership and has offices in Georgia, Tennessee, Kentucky, Florida, and Pennsylvania. Russo was employed as a legal assistant by Moore Ingram from August 2018 until April 2020, at which time she began taking unpaid leave. Throughout her employment, the Plaintiff worked at Moore Ingram's Brentwood, Tennessee office, but she "communicated with other employees in other offices." The Plaintiff alleges that Moore Ingram "paid her a salary" for her work, and the Answer admits the truth of this statement. However, while Moore Ingram expressed to the Plaintiff her rate of pay in terms of an annual amount when she was initially hired, her paystubs "reflected the number of hours the Plaintiff was scheduled to work." Except when her rate of pay increased, she was paid the same amount in every paycheck, unless she had a day off for which she did not use paid time off. Thus, during one week when she worked four days instead of five due to unanticipated circumstances, she was paid four-fifths of her usual weekly pay for that week. The Complaint asserts that Moore Ingram "similarly paid salaries to other non-exempt Legal Assistants and other support staff and similarly failed to pay overtime compensation to those employees, who similarly performed overtime work." The Plaintiff claims that other non-attorney support staff employed by Moore Ingram were similarly situated to her in that: (A) they were non-exempt employees entitled under the FLSA to overtime compensation for overtime work, and were classified as such by the Defendant, (B) they were paid a salary, (C) they worked more than 40 hours in one or more workweeks, (D) the Defendant was aware of the overtime work, and (E) the Defendant did not pay them overtime compensation for the overtime work. Ms. Russo also claims that the non-payment of overtime to her and other non-exempt non-attorney employees of Moore Ingram was "pursuant to a common scheme" of "scheduling such employees to work certain hours per week, not recording the actual times worked by employees, and then paying as if the employees had worked exactly as scheduled, despite the Defendant knowing that employees regularly worked more than scheduled and more than 40 hours per week." The Plaintiff alleges that Moore Ingram's violation of the FLSA was "willful," particularly given that Moore Ingram advises its clients on how to comply with the FLSA, clearly knows how to do so, but did not itself practice what it preaches. Based on the allegations that the Defendant failed to properly pay her and other non-exempt employees overtime compensation, the Plaintiff asserts a claim against Moore Ingram for violation of the FLSA on her own behalf and on behalf of a putative "collective," made up of all other non-attorney support staff employees of Moore Ingram. Specifically, she asserts that (1) the FLSA requires that all covered employees be compensated for all hours worked in excess of 40 in one week at the rate of one and one-half times their regular rate of pay; (2) Moore Ingram is an "employer" as the term is defined by 29 U.S.C. Section 203(d) and subject to the FLSA's wage requirements; (3) Moore Ingram engaged in interstate commerce within the meaning of 29 U.S.C. Section 203; (4) Russo and the other members of the putative collective were non-exempt from the FLSA's requirements; (5) Russo and the other members of the putative collective worked more than forty hours in one or more workweeks without overtime compensation and are entitled to be paid overtime compensation, under 29 U.S.C. Section 207(a)(1) and 29 C.F.R. Section 778.112; and (6) Moore Ingram knowingly and willfully failed to pay overtime compensation to non-exempt employees who worked in excess of forty hours per workweek and failed to create and preserve records pertaining to the hours worked by its employees. The Plaintiff filed her Complaint on Sept. 24, 2020. On Jan. 15, 2021, in accordance with the Initial Case Management Order, the Plaintiff filed her Motion to Facilitate Notice, which effectively seeks conditional certification of an FLSA collective. In conjunction with her Motion, the Plaintiff also filed her own Declaration and that of Penelope Branson, an employee of the Plaintiff's counsel, a proposed form Notice of Collective Action Lawsuit, and proposed form Consent to Become Party Plaintiff. Now before the Court is Plaintiff Julia Russo's Motion to Facilitate Notice Pursuant to 29 U.S.C. Section 216(b), which Moore Ingram opposes, and in further support of which the Plaintiff filed a Reply. Nearly two months after the briefing on that motion was completed, Russo filed a document styled as a Supplement Regarding Plaintiff's Motion to Facilitate Notice, which she docketed as a motion. The Defendant's opposition to the Supplement, which was not docketed as a motion, is styled as its Motion to Strike/Disregard or, in the Alternative, Response in Opposition to Plaintiff's Supplement Regarding Motion to Facilitate Notice. Judge Trauger construes the Plaintiff's Supplement as a motion for leave to supplement. With her "Supplement," the Plaintiff introduced into evidence the entirety of the Defendant's Responses to Plaintiff's First Set of Discovery Requests; the Defendant's Form Time Sheet; the Plaintiff's paystubs for February 2019 and the first half of March 2019; and an Unemployment document completed by Moore Ingram, stating that the average number of hours worked by the Plaintiff per week was 40. The Plaintiff argues that, although discovery is not complete, this new information shows that (1) even though the Defendant did not keep track of its non-exempt employees' hours, it developed a form to be used for that purpose, and the Employee Manual includes a policy requiring non-exempt staff to keep track of their hours; (2) no legal assistants at the Brentwood office worked a fixed schedule different from the 8:30 a.m. to 5:00 p.m. that the Plaintiff was expected to work, which the Plaintiff believes confirms her belief that, anytime she saw other legal assistants working before 8:30 a.m., working through lunch, or working past 5:00 p.m., they were working overtime; (3) the Defendant's records confirm that it almost never paid overtime to support staff, as it identified only two legal assistants in its Marietta, Georgia office who were paid overtime in 2020 and none from 2017 through 2019; (4) the Defendant's "own documents" show that it expected its employees to work "almost exactly forty hours per week," not 37.5 hours. Discussion The motion concerns the first of the two phases. The Plaintiff argues generally that collective action certification is proper, because she has demonstrated through her Complaint and Declaration that Moore Ingram had a practice, "common to all of its Legal Assistants and other nonexempt hourly support staff," of paying its employees "based on a fiction that employees would work" a certain schedule, typically 8:30 a.m. until 5:00 p.m. with a one-hour lunch, and "paying such employees exactly 37.5 hours of compensation each and every week," despite the Defendant's actual knowledge that "employees would work beyond their scheduled hours" and sometimes more than forty hours per week, "and its desire to avoid having to pay overtime compensation when that occurred." In its Response in Opposition to the Motion to Facilitate Notice, the Defendant argues that the Plaintiff has failed to satisfy the admittedly lenient burden that applies at this stage of the proceedings, because she has failed to allege the existence of any single, company-wide policy in violation of the FLSA, a common theory unifying the proposed collective, or any other basis for finding that members of the proposed collective are similarly situated. Alternatively, it argues that, if the Court finds that conditional certification is warranted, the proposed scope of the collective should be substantially narrowed and the language of the proposed notice should be modified. In her Reply, the Plaintiff largely side-steps the Defendant's arguments and instead continues to argue that the Defendant's practice of scheduling employees to work 37.5 hours while actually expecting them to work forty hours per week is evidence of a common policy or practice in violation of the FLSA, that the Defendant both "admits" that it paid the Plaintiff a "salary" and that it classified her and other non-attorney employees as non-exempt, that the Defendant admits that it did not maintain records or keep track of its non-exempt employees' hours, and that it admittedly did not comply with its own requirement that employees keep a record of their hours. She also contends that the Defendant's factual arguments are internally inconsistent and unsupported and should generally be rejected. In construing the evidence presented by the Plaintiff, applying a lenient standard that requires only a modest factual showing, Judge Trauger cannot find that the Plaintiff has made the requisite "substantial allegations supported by declarations" that, if true, establish the existence of substantially similar employees who have been subjected to an FLSA violation. First, she finds that the Plaintiff's invocation of the "missing evidence rule" is misplaced. That rule simply has no application in the case. At this stage in the proceedings, the Plaintiff bears the burden of showing that the employees in the collective are similarly situated, and to do so she must "submit evidence establishing at least a colorable basis" for her claim that a class of similarly situated Plaintiffs who have suffered an FLSA violation exists. Second, the Judge finds that Russo has adequately alleged in the Complaint -- and presented supporting evidence of these allegations in her Declaration -- that she herself worked overtime and was not compensated for overtime work as required by the FLSA. However, the Complaint and the Plaintiff's Declaration contain no specific factual allegations, drawn from Russo's personal knowledge or otherwise, regarding the working conditions of Moore Ingram employees at any office other than the Brentwood office. In short, the Plaintiff's Declaration offers no actual evidence from which it might reasonably be inferred that the other employees whom she supposedly saw working outside their normally scheduled hours actually worked overtime for which they were not compensated. For these reasons, Judge Trauger finds that the Plaintiff has failed to satisfy her modest factual burden of showing that conditional certification is warranted. In reaching this conclusion, she has considered the Plaintiff's additional material submitted with her Supplement, even though it was arguably filed inappropriately, without leave of Court, and well outside the time for filing her motion for conditional certification. Conclusion Having taken the supplemental evidence into consideration, Judge Trauger grants what she construes as the Plaintiff's motion for leave to supplement her motion and denies the Defendant's Motion to Strike. Nonetheless, for the reasons she set forth, the Judge denies the Plaintiff's Motion to Facilitate Notice, which she construes as a motion for conditional certification of an FLSA collective action. An appropriate Order is filed therewith. A full-text copy of the Court's July 28, 2021 Memorandum is available at https://tinyurl.com/52e6m5n2 from Leagle.com. NATIONAL ENTERPRISES: Johnson Suit Removed to W.D. North Carolina ----------------------------------------------------------------- The case styled as Anita Johnson, on behalf of herself and others similarly situated v. National Enterprise Systems, Inc., an Ohio corporation, Case No. 21 CVS 51828 was removed from the Iredell County Civil Superior to the U.S. District Court for the Western District of North Carolina on Aug. 6, 2021. The District Court Clerk assigned Case No. 5:21-cv-00119-KDB-DCK to the proceeding. The nature of suit is stated as Consumer Credit. National Enterprise Systems, Inc. operates as a full-service debt collection agency.[BN] The Plaintiff is represented by: Scott C. Harris, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: (919) 600-5000 Fax: (919) 600-5035 Email: sharris@milberg.com The Defendant is represented by: Kendra Stark, Esq. GORDON REES SCULLY MANSUKHANI 421 Fayetteville Street, Suite 330 Raleigh, NC 27601 Phone: (919) 641-0465 Email: kstark@grsm.com OPKO HEALTH: Joint Bid to Withdraw & Dismiss Avraham Suit Granted ----------------------------------------------------------------- OPKO Health, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the Tel Aviv District Court granted the parties' joint motion to withdraw and dismissed the putative class action suit initiated by Dalia Avraham subject to the payment of NIS 45,000 (approximately USD $14,000) to the plaintiff's counsel and NIS 4,000 (approximately USD $1,200) to a plaintiff in the case within 60 days from the Court's judgment. On or about September 16, 2018, Dalia Avraham filed an Application for Approval of a Class Action in the Tel Aviv Israel District Court against the Company and Dr. Phillip Frost. This application was filed by a purported stockholder, both individually and on behalf of a putative class of the Company's stockholders. The Avraham Claim alleged a negligent and/or deliberate act related to the trade of the Company's shares on the TASE which was intended to or which in fact caused damage to the Company's investors based on the Company's decision to delist from the Tel Aviv Stock Exchange ("TASE") in April 2018 and its subsequent decision to continue to be listed on TASE. The Avraham Claim sought to declare the action to be a class action and an estimated NIS 20 million (approximately USD $6.1 million) in damages. On June 24, 2021, the Tel Aviv District Court granted the parties' joint motion to withdraw and dismissed the case, subject to the payment of NIS 45,000 (approximately USD $14,000.00) to the plaintiff's counsel and NIS 4,000 (approximately USD $1,200.00) to a plaintiff in the case within 60 days from the Court's judgment. OPKO Health, Inc., a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States, Ireland, Chile, Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was incorporated in 1991 and is headquartered in Miami, Florida. OPKO HEALTH: Sharon Wants TASE Members to Provide Payment Info -------------------------------------------------------------- OPKO Health, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that Idan Sharon notified the Company that he intends to file a motion and request the Court to order the members of the Tel Aviv Stock Exchange ("TASE") to provide the information required to allow distribution of payment to TASE class members, in accordance with the Settlement Agreement. On or about September 13, 2018, Idan Sharon filed an Application for Approval of a Class Action in the Tel Aviv Israel District Court against the Company and certain of its current and former executive officers, and certain members of its Board of Directors. This application was filed by a purported stockholder, both individually and on behalf of a putative class of the Company's stockholders, claiming that in connection with the facts and circumstances underlying the allegations in the SEC Complaint filed in 2018 and which case was settled, the Company engaged in fraudulent conduct and made false and misleading statements of material fact or omitted to state material facts necessary to make the statements made not misleading. The Sharon Claim sought both to declare the action a class action and monetary damages. The Tel Aviv District Court closed this case pending resolution of the U.S.-based class actions relating to the allegations in the SEC Complaint. The U.S. class action lawsuit has now been settled, and the damages granted in the settlement are for both NASDAQ and TASE class members. In July 2021, Sharon notified the Company that he intends to file a motion and request the Court to order the members of the TASE to provide the information required to allow distribution of payment to TASE class members, in accordance with the Settlement Agreement. OPKO Health, Inc., a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States, Ireland, Chile, Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was incorporated in 1991 and is headquartered in Miami, Florida. PIEDMONT LITHIUM: Kirby McInerney Reminds of September 21 Deadline ------------------------------------------------------------------ The law firm of Kirby McInerney LLP announces that a class action lawsuit has been filed in the U.S. District Court for the Eastern District of New York on behalf of those who acquired Piedmont Lithium Inc. f/k/a Piedmont Lithium Limited ("Piedmont" or the "Company") (NASDAQ: PLL) securities from March 16, 2018 through July 19, 2021, inclusive (the "Class Period"). Investors have until September 21, 2021 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On July 20, 2021, before market hours, Reuters reported that Piedmont "has not applied for a state mining permit or a necessary zoning variance in Gaston County, just west of Charlotte, despite telling investors since 2018 that it was on the verge of doing so." According to the article, a majority of the board of commissioners said, "they may block or delay the project because Piedmont has not told them what levels of dust, noise and vibrations will occur, nor how water and air quality would be affected." On this news, the Company's stock price declined by $12.56 per share, or approximately 19.9%, from $63.08 per share to close at $50.52 per share on July 20, 2021. The lawsuit alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (1) Piedmont has not, and would not, follow its stated steps or timeline to secure all proper and necessary permits; (2) Piedmont failed to inform relevant people and governmental authorities of its actual plans; (3) Piedmont failed to file proper applications with relevant governmental authorities (including state and local authorities); (4) Piedmont and its lithium business does not have strong local government support; and (5) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased or otherwise acquired Piedmont securities, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney LLP is a New York-based plaintiffs' law firm concentrating in securities, antitrust, whistleblower, and consumer litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney LLP's website: http://www.kmllp.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] PILGRIM'S PRIDE: Bid for Amended Judgment in Hogan Suit Pending --------------------------------------------------------------- Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 27, 2021, that Colorado Court's decision on the motion for the amended judgment filed in the putative class action suit initiated by Patrick Hogan, is currently pending. On October 10, 2016, Patrick Hogan, acting on behalf of himself and a putative class of persons who purchased shares of the company's (PPC's) stock between February 21, 2014 and October 6, 2016, filed a class action complaint in the U.S. District Court for the District of Colorado against PPC and its named executive officers. The complaint alleges, among other things, that PPC's SEC filings contained statements that were rendered materially false and misleading by PPC's failure to disclose that (1) PPC colluded with several of its industry peers to fix prices in the broiler-chicken market as alleged in the In re Broiler Chicken Antitrust Litigation, (2) its conduct constituted a violation of federal antitrust laws, (3) PPC's revenues during the class period were the result of illegal conduct and (4) that PPC lacked effective internal control over financial reporting. The complaint also states that PPC's industry was anticompetitive and seeks compensatory damages. On April 4, 2017, the Colorado Court appointed another stockholder, George James Fuller, as lead plaintiff. On May 11, 2017, the plaintiff filed an amended complaint, which extended the end date of the putative class period to November 17, 2017. PPC and the other defendants moved to dismiss on June 12, 2017, and the plaintiff filed its opposition on July 12, 2017. PPC and the other defendants filed their reply on August 1, 2017. On March 14, 2018, the Colorado Court dismissed the plaintiff's complaint without prejudice and issued final judgment in favor of PPC and the other defendants. On April 11, 2018, the plaintiff moved for reconsideration of the Colorado Court's decision and for permission to file a Second Amended Complaint. PPC and the other defendants filed a response to the plaintiff's motion on April 25, 2018. On November 19, 2018, the Colorado Court denied the plaintiff's motion for reconsideration and granted plaintiff leave to file a Second Amended Complaint. On June 8, 2020, the plaintiff filed a Second Amended Complaint against the same defendants, based in part on the Indictment (defined below). On July 31, 2020, defendants filed a motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Colorado Court granted the motion to dismiss on April 19, 2021 and issued judgment in favor of defendants. On May 17, 2021, the plaintiff filed a motion for amended judgment. PPC and the other defendants filed their opposition to the motion for amended judgment on June 7, 2021. The Colorado Court's decision on the motion for the amended judgment is currently pending. Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PILGRIM'S PRIDE: Bid to Nix NMSIC Lead Putative Class Suit Pending ------------------------------------------------------------------ Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 27, 2021, that the motion to dismiss the putative class action suit headed by the New Mexico State Investment Council ("NMSIC"), is pending. On July 6, 2020, United Food and Commercial Workers International Union Local 464A ("UFCW"), acting on behalf of itself and a putative class of persons who purchased shares of PPC stock between February 9, 2017 and June 3, 2020, filed a class action complaint in the Colorado Court against thee company (PPC), and Messrs. William Lovette, Jayson Penn, and Fabio Sandri. The complaint alleges, among other things, that PPC’s public statements regarding its business and the drivers behind its financial results were false and misleading due to the defendants' purported failure to disclose its participation in an antitrust conspiracy as alleged in the Broiler litigation and the Indictment. On September 4, 2020, UFCW and the NMSIC filed competing motions to be appointed lead plaintiff under the Private Litigation Securities Reform Act. On March 17, 2021, the court appointed NMSIC as lead plaintiff. On May 26, 2021, NMSIC filed an amended complaint, which shortened the end date of the putative class period to June 3, 2020. PPC and the other defendants moved to dismiss the amended complaint on July 19, 2021. NMSIC's opposition to the motions to dismiss is due on September 1, 2021. Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PILGRIM'S PRIDE: Deal Reached with EUCP Indirect Purchaser Class ---------------------------------------------------------------- Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 27, 2021, that the company and the putative End-User Consumer Indirect Purchaser Plaintiff Class ("EUCPs") jointly informed the Court that they had reached an agreement to settle all claims, subject to Court approval under Rule 23. Between September 2, 2016 and October 13, 2016, a series of purported federal class action lawsuits styled as In re Broiler Chicken Antitrust Litigation, Case No. 1:16-cv-08637 were filed with the U.S. District Court for the Northern District of Illinois against the company (PPC) and 19 other producers by and on behalf of direct and indirect purchasers of broiler chickens alleging violations of federal and state antitrust and unfair competition laws. The complaints seek, among other relief, treble damages for an alleged conspiracy among defendants to reduce output and increase prices of broiler chickens from the period of January 2008 to the present. The class plaintiffs have filed three consolidated amended complaints: one on behalf of direct purchasers ("the Direct Purchaser Plaintiff Class") and two on behalf of distinct groups of indirect purchasers. Between December 8, 2017 and July 9, 2021, 77 individual direct action complaints were filed with the Illinois Court by individual direct purchaser entities ("DAPs") naming PPC as a defendant, the allegations of which largely mirror those in the class action complaints. Subsequent amendments to certain complaints added allegations of price fixing and bid rigging on certain sales, which have been stayed by the Illinois Court pending resolution of the original supply reduction conspiracy. On June 17, 2021, the Illinois Court issued a revised scheduling order through trial, which contemplates the close of merits fact discovery for defendants and most plaintiffs on July 31, 2021, with additional discovery of subsequent DAPs proceeding in six month increments following consolidation of each DAP complaint. Expert discovery will proceed from August 31, 2021 through May 13, 2022 with summary judgment briefing beginning on June 10, 2022 and concluding on November 21, 2022. The Court has not yet set a trial date. On January 11, 2021, PPC announced that it had entered into an agreement to settle all claims made by the putative Direct Purchaser Plaintiff Class ("DPPs"), which the Illinois Court preliminarily approved February 25, 2021. As a result of this agreement, PPC recognized an expense of $75.0 million within Selling, general and administrative expense in the Consolidated Statements of Income for the year ended December 27, 2020. Pursuant to this agreement, PPC paid the DPPs this amount during the first quarter of 2021. On July 16, 2021, PPC and the putative End-User Consumer Indirect Purchaser Plaintiff Class ("EUCPs") jointly informed the Court that they had reached an agreement to settle all claims, subject to Court approval under Rule 23. The EUCPs will file a motion for preliminary, and ultimately final, approval of the proposed settlement in the near future. In addition, PPC has agreed in principle to settle all claims made by the putative Commercial and Institutional Indirect Purchaser Plaintiff Class ("CIIPPs"). PPC and CIIPPs are negotiating a long-form settlement agreement, which the Illinois Court will need to approve. Under the terms of these settlements, PPC has agreed to pay the EUCPs and CIIPPs an aggregate amount of $120.5 million to release all outstanding claims brought by such Classes. These settlements are subject to the execution of long-form settlement agreements with the respective parties and Illinois Court approval thereafter. As a result of these agreements, PPC recognized this expense within Selling, general and administrative expense in the Consolidated Statements of Income for the three and six months ended June 27, 2021. The settlements with the DPPs, EUCPs and CIIPPs do not cover the claims of the DAPs or other parties who have or will opt out of such settlements (collectively, the "Opt Outs"). PPC will therefore continue to litigate against such Opt Outs and will seek reasonable settlements where they are available. PPC has recognized an expense of $251.4 million to cover potential settlements with various Opt Outs. The amount accrued is an estimate that is subject to change. PPC recognized this expense within Selling, general and administrative expense in the Consolidated Statements of Income for the three and six months ended June 27, 2021. Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PILGRIM'S PRIDE: Grower Litigation in Oklahoma Underway ------------------------------------------------------- Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 27, 2021, that the company continues to defend a consolidated suit entitled, In re Broiler Chicken Grower Litigation, Case No. CIV-17-033-RJS. On January 27, 2017, a purported class action on behalf of broiler chicken farmers was brought against the company (PPC) and four other producers in the U.S. District Court for the Eastern District of Oklahoma alleging, among other things, a conspiracy to reduce competition for grower services and depress the price paid to growers. Plaintiffs allege violations of the Sherman Antitrust Act and the Packers and Stockyards Act and seek, among other relief, treble damages. The complaint was consolidated with a subsequently filed consolidated amended class action complaint styled as In re Broiler Chicken Grower Litigation, Case No. CIV-17-033-RJS (the "Grower Litigation"). The defendants (including PPC) jointly moved to dismiss the consolidated amended complaint on September 9, 2017 for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Oklahoma Court granted only certain other defendants' motions challenging jurisdiction. On January 6, 2020, the Oklahoma Court denied the pending Rule 12 motion, and lifted the stay on discovery. The case is currently in discovery. On October 6, 2020, the Oklahoma plaintiffs filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (the "JPML") seeking consolidation of a series of copycat complaints filed in September and October 2020 in the U.S. District Courts for the District of Colorado, the District of Kansas, and the Northern District of California. On December 15, 2020, the JPML ordered the transfer of all cases to the Oklahoma Court for consolidated or coordinated pretrial proceedings. On February 12, 2020, the Oklahoma Court entered a case management order in the multi-district litigation setting a February 1, 2022 deadline for the close of fact discovery. That order also set a deadline of September 15, 2022 for the filing of class certification motions, with deadlines of October 27, 2022 for opposition briefing and December 1, 2022 for reply briefing. Under the order, motions for summary judgment are to be filed on February 1, 2023, with oppositions and replies due March 22, 2023, and April 12, 2023, respectively. Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PILGRIM'S PRIDE: Settlement in Plant Workers' Suit Gets Initial OK ------------------------------------------------------------------ Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 27, 2021, that the U.S. District Court for the District of Maryland granted the motion for preliminary approval of settlement in the consolidated putative class action suit initiated by plant workers. Between August 30, 2019 and October 16, 2019, four purported class action lawsuits were filed in the U.S. District Court for the District of Maryland against the company (PPC) and a number of other chicken producers, as well as WMS Webber, Meng, Sahl and Company and Agri Stats. The plaintiffs seek to represent a nationwide class of processing plant production and maintenance workers ("Plant Workers"). They allege that the defendants conspired to fix and depress the compensation paid to Plant Workers in violation of the Sherman Act and seek damages from January 1, 2009 to the present. On November 12, 2019, the Maryland Court ordered the consolidation of the four cases for pretrial purposes. The defendants (including PPC) jointly moved to dismiss the consolidated complaint on November 22, 2019. Shortly thereafter, the plaintiffs informed the defendants and the Maryland Court that they would be amending their complaint, which they did on December 20, 2019. The consolidated amended complaint asserts largely similar allegations to the pleadings in the consolidated complaint, but was extended to include more class members and turkey processors as well as chicken processors. The defendants filed motions to dismiss the consolidated amended complaint on March 2, 2020. The Maryland Court dismissed PPC and a number of other defendants on September 16, 2020 without prejudice. The plaintiffs subsequently filed amended complaints on November 2, 2020 re-naming PPC and the other dismissed defendants. On June 14, 2021, PPC entered into a binding Settlement Agreement to settle all claims with the putative class for $29.0 million. As a result of this agreement, PPC recognized this expense within Selling, general and administrative expense in the Consolidated Statements of Income for the three and six months ended June 27, 2021. A motion for preliminary approval of the settlement was filed on July 16, 2021, which the Maryland Court granted on July 20, 2021. The settlement is still subject to final approval by the Maryland Court. Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PJ'S LAWN SERVICE: Fails to Pay Minimum and OT Wages, Osorio Says ----------------------------------------------------------------- Noe Gregorio Aquino Osorio, on behalf of himself and all other persons similarly situated v. PJ's Lawn Service Inc. d/b/a PJ's Lawn Service, and Peter Creegan, Case No. 1:21-cv-06413 (S.D.N.Y., July 28, 2021) is brought against the Defendants for their violations of the Fair Labor Standards Act (FLSA). According to the complaint, during his employment by the defendants as a landscaper from March through December 15 each year, Osorio was working approximately 64 hours per week. During 2017 and 2018, Plaintiff was paid $860 in cash per week during the spring and summer season; during 2019, he was paid $950 in cash per week during the spring and summer season; and during 2020 and 2021, he was paid $1,150 in cash per week during the spring and summer season. Plaintiff received the weekly amounts described for all hours worked each week, regardless of the exact number of hours worked in a given week. As a result, Plaintiff's effective rates of pay was below the statutory New York State minimum wage in effect at relevant times. In addition, the defendants failed to pay Plaintiff any overtime "bonus" for hours worked beyond 40 hours in a workweek, in violation of the FLSA, the New York Labor Law, and the supporting New York State Department of Labor regulations. Defendants' failure to pay Plaintiff the overtime bonus for overtime hours they each worked was willful and lacked a good faith basis, the complaint states. Defendant Creegan is an owner or part owner and principal of PJ's Lawn Service, an entity operating a landscaping service located in New York City. [BN] The Plaintiff is represented by: Michael Samuel, Esq. THE SAMUEL LAW FIRM 1441 Broadway, Suite 6085 New York, NY 10018 Tel: (212) 563-9884 E-mail: michael@samuelandstein.com PROGRESSIVE CASUALTY: Lukasik Sues Over Deceptive Insurance Policy ------------------------------------------------------------------ KEVIN LUKASIK, individually and on behalf of all others similarly situated v. PROGRESSIVE CASUALTY INSURANCE COMPANY, an Ohio corporation, Case No. 1:21-cv-00850-GLS-ML (N.D.N.Y., July 28, 2021) arises from Defendant's deceptive, fraudulent, and unfair scheme through which Defendant systematically undervalues total-loss vehicles in order to arbitrarily reduce the ultimate payment to insureds who make total loss claims. According to the complaint, in the event of a "total loss" to an insured vehicle -- i.e., where repair of the vehicle is impossible or uneconomical -- Defendant's uniform insurance policies with Plaintiff and all putative Class members promise to pay for the loss, limited to the actual cash value (ACV) of the vehicle. The complaint alleges that Defendant skirts its straightforward contractual obligation by directing its third-party vendor to systematically reduce the total loss evaluations. Specifically, Defendant's third-party vendor determines the ACV of an insured total loss vehicle by comparing the for-sale price of "comparable vehicles" in the relevant market. After the vendor determines the price for "comparable vehicles," however, Defendant instructs its vendor to apply an arbitrary, baseless, and illegal "projected sold adjustment" reduction to each comparable vehicle. This reduction artificially reduces the ACV calculation of the total-loss vehicle and, consequently, reduces the amount of Defendant's total loss payment to insureds. Defendant's deceptive, fraudulent, and unfair scheme violates the New York General Business Law and constitutes a breach of contract and breach of the covenant of good faith and fair dealing, says the complaint. Defedant is an Ohio company authorized to underwrite insurance in the State of New York, with its principal place of business being 6300 Wilson Mills Road, Cleveland, Ohio. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE First Avenue, Suite 705 Miami, FL 33132 Telephone: 305-479-2299 E-mail: ashamis@shamisgentile.com - and - Rachel Dapeer, Esq. DAPEER LAW, P.A. 20900 NE 30th Ave, Suite 417 Aventura, FL 33180 Telephone: 305-610-5223 E-mail: rachel@dapeer.com - and - Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave, Suite 417 Aventura, FL 33180 Telephone: 305-975-3320 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com PROGRESSIVE CASUALTY: Sued for Depriving Employees Proper Wages --------------------------------------------------------------- RYAN PALMER, On behalf of himself and all others similarly situated v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Case No. 1:21-cv-01470 (N.D. Ohio, July 28, 2021) is brought against the Defendant for willfully violating the Fair Labor Standards Act (FLSA) as well as the Ohio Constitution art. II, section 34a, the Ohio overtime compensation statute, and the Ohio Prompt Pay Act. According to the complaint, Plaintiff Palmer worked full-time for Defendant from November 2017 to June 2020. From November 2018 to the end of his tenure, he was assigned to Client Relationship Management (CRM). The complaint alleges that Defendant did not pay Plaintiff and the Ohio Class Members for all of the hours they were suffered or permitted to work. Rather, Defendant expected and required them to perform unpaid work before the start of their paid shifts. Commencing in, at the latest, January 2020, Defendant required CRM employees to prepare for their workdays before their scheduled start times. That meant and included starting and logging into CRM's toolbox of programs, computer networks, and web-based systems before the start of their paid shifts. This required process of starting up and logging into the toolbox of CRM programs, networks, and systems was integral and indispensable to the employees' principal activity of customer relationship management, and it directly benefitted Defendant. As a result of Defendant's requirements and pay policies, Plaintiff and the Ohio Class Members were deprived of pay for hours worked. Defendant is engaged in the sale and servicing of casualty insurance policies throughout the United States. [BN] The Plaintiff is represented by: Scott D. Perlmuter Tittle & Perlmuter 4106 Bridge Avenue Cleveland, OH 44113 216-308-1522 Fax: 888-604-9299 E-mail: scott@tittlelawfirm.com - and - Thomas A. Downie Tittle & Perlmuter 46 Chagrin Falls Plaza #104 Chagrin Falls, OH 44022 440-973-9000 E-mail: tom@chagrinlaw.com QUANTUMSCAPE CORP: Bid to Junk Battery Technology Suit Pending -------------------------------------------------------------- Quantumscape Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss the consolidated putative class action suit related to the company's battery technology, is pending. Between January 5, 2021 and May 4, 2021, four putative class action lawsuits were filed in the Northern District of California by purported purchasers of Company securities against the Company and its Chief Executive Officer or against the Company, certain members of management and the Board, and Volkswagen Group of America Investments, LLC (VGA). The court consolidated the actions and appointed a lead plaintiff and counsel. Lead plaintiff filed a consolidated complaint on June 21, 2021, which alleges a purported class that includes all persons who purchased or acquired our securities between November 27, 2020 and April 14, 2021. The consolidated complaint names the Company, its Chief Executive Officer, its Chief Financial Officer, and its Chief Technology Officer as defendants. The consolidated complaint alleges that the defendants purportedly made false and/or misleading statements and failed to disclose material adverse facts about the Company's business, operations, and prospects, including information regarding the Company's battery technology. Defendants' motion to dismiss the consolidated complaint is expected to be fully briefed and heard by the court in December 2021. Quantumscape Corporation develops next-generation battery technology for electric vehicles ("EVs") and other applications. The company is based in San Jose, California. RAVI ZACHARIAS: Faces Lawsuit for Ministry Funds Mismanagement -------------------------------------------------------------- Shelia Poole at The Atlanta Journal-Constitution reports that Derek Carrier, a tight end for the Las Vegas Raiders, and his wife, Dora, are suing Alpharetta-based Ravi Zacharias International Ministries and the wife of its founder for deceptive practices and misuse of funds after the couple donated thousands of dollars to the ministry to help defend Christianity. The complaint, filed in U.S. District Court in the Northern District of Georgia, alleges instead, Zacharias, who had an international following, used funds donated to the ministry to cover up and engage in sexual misconduct. The other defendants are RZIM Productions and Margaret Zacharias as the administrator of the estate. Ravi Zacharias, the 74-year-old head of a global ministry founded in 1984 and a bestselling author, died in May 2020. Guests at his memorial service in Atlanta included then-Vice President Mike Pence and Tim Tebow. A woman who answered the phone at RZIM said the ministry was unable to "comment at this time." On Jan. 21, 2020, the couple donated $30,000 to support the Christian apologetic ministry, its outreach, training, and other programming, according to the complaint. The "defendants held themselves out to be Christian apologetics charged with defending Christianity. Defendants further held themselves out to be pious followers of the Holy Gospel, maintaining a religious level of morality and following the teachings of Jesus Christ." Zacharias, according to the complaint, painted himself as a "devoted Christian who was living a Christian lifestyle in keeping with the Gospel of Jesus Christ and who was worthy of leading others in their Christian faith." Instead, Zacharias and the ministry "deceived faithful Christians, soliciting their financial support for its purported mission of Christian evangelism, apologetic defense of Christianity, and humanitarian efforts. Defendants bilked tens - if not hundreds - of millions of dollars from well-meaning donors who believed RZIM and Zacharias to be faith-filled Christian leaders. In fact, Zacharias was a prolific sexual predator who used his ministry and RZIM funds to perpetrate sexual and spiritual abuse against women," according to the lawsuit. An outside investigation by an Atlanta law firm commissioned by the international board of RZIM released a final report earlier this year that found credible evidence that Zacharias was involved in several incidents of unwanted touching, sexting, spiritual abuse and rape tied to two day spas he co-owned, and RZIM officials acknowledged the incidents could go beyond those spas. The investigation included a review of his electronic devices and found evidence of text- and email-based relationships with women, as well as more than 200 "selfie"-style photographs of women. The scope of the investigation did not specifically extend to the ministry's finances, although it revealed that four women received money from the discretionary fund from a humanitarian effort connected to the ministry. Investigators said they did not find evidence that anyone within RZIM or on the board knew of the misconduct. Atlanta attorney Mike McGlamry, one of the lawyers representing the plaintiffs, said there could be "thousands" more donors who come forth. "When people (such as the Carriers) have that much of a commitment to their faith, they expect and want that from others. Then to find out this is all a sham, it has a greater impact." The complaint seeks class-action certification, unspecified monetary damages, attorney fees and a jury trial. McGlamry said while he doesn't know for a fact, "I would expect the donations run the gamut from very small to very large." Its most recent 990 form, for 2014, showed RZIM had total revenue of $25.74 million. Ravi Zacharias' total compensation that year was more than $365,000. [GN] RENEWABLE ENERGY: Bragar Eagel Probes Firm Over Financial Report ---------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, is investigating certain officers and directors of Renewable Energy Group, Inc. (NASDAQ: REGI) on behalf of long-term stockholders. More information about each potential case can be found at the link provided. Renewable Energy Group, Inc. (NASDAQ: REGI) Bragar Eagel & Squire is investigating certain officers and directors of Renewable Energy Group, Inc. following a class action complaint that was filed against Renewable Energy on March 2, 2021. The complaint alleges that throughout the Class Period defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, defendants failed to disclose to investors: (1) that due to failures in the diesel additive system, petroleum diesel was not periodically added to certain loads by the Company and was instead added by the Company's customers; (2) that, as a result, Renewable Energy was not the proper claimant for certain BTC payments on biodiesel it sold between January 1, 2017 and September 30, 2020; (3) that, as a result, Renewable Energy's revenue and net income were overstated for certain periods; (4) that there was a material weakness in the Company's internal control over financial reporting related to the purchase and use of the petroleum diesel gallons when blending with biodiesel; 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. To learn more about our investigation into Renewable Energy go to: https://bespc.com/cases/REGI About Bragar Eagel 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 www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes.[GN] S&P GLOBAL: Continues to Defend Class Actions in Australia ---------------------------------------------------------- S&P Global Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend class action suits in Australia. A class action lawsuit was filed in Australia on August 7, 2020 against the Company and a subsidiary of the Company. A separate lawsuit was filed against the Company and a subsidiary of the Company in Australia on February 2, 2021 by two entities within the Basis Capital investment group. The lawsuits both relate to alleged investment losses in collateralized debt obligations rated by Ratings prior to the financial crisis. S&P Global said, "We can provide no assurance that we will not be obligated to pay significant amounts in order to resolve these matters on terms deemed acceptable." S&P Global Inc. a leading provider of transparent and independent ratings, benchmarks, analytics and data to the capital and commodity markets worldwide. The company is based in New York, New York. SERVICE CORP: Moulton Seeks Review of Order Affirming Dismissal --------------------------------------------------------------- Service Corporation International said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the plaintiff in Karen Moulton, Individually and on behalf of all others similarly situated v. Stewart Enterprises, Inc., Service Corporation International and others; Case No. 2013-5636; in the Civil District Court Parish of New Orleans, Louisiana, had applied to the Louisiana Supreme Court to review the dismissal. This case was filed as a class action in June 2013 against an SCI subsidiary in connection with SCI's acquisition of Stewart Enterprises, Inc. The plaintiffs allege that SCI aided and abetted breaches of fiduciary duties by Stewart Enterprises and its board of directors in negotiating the combination of Stewart Enterprises with a subsidiary of SCI. The plaintiffs seek damages concerning the combination. The company filed exceptions to the plaintiffs' complaint that were granted in June 2014. Thus, subject to appeals, SCI will no longer be party to the suit. The case has continued against the company's subsidiary Stewart Enterprises and its former individual directors. However, in October 2016, the court entered a judgment dismissing all of plaintiffs' claims. Plaintiffs have appealed the dismissal. On May 6, 2021, the Louisiana Court of Appeals affirmed the dismissal. Plaintiffs have applied to the Louisiana Supreme Court to review the dismissal. Service Corporation said, "Given the nature of this lawsuit, we are unable to reasonably estimate the possible loss or ranges of loss, if any." Service Corporation International is an American provider of funeral goods and services as well as cemetery property and services. It is headquartered in Neartown, Houston, Texas. SCI operates more than 1500 funeral homes and 400 cemeteries in 43 states, eight Canadian provinces, and Puerto Rico. SERVICE CORP: Taylor Class Suit Underway in Florida ---------------------------------------------------- Service Corporation International said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a class action suit entitled, Nancy Taylor, on behalf of herself and others similarly situated v. Service Corporation International and others, Case No. 20-cv-60709; in the United States District Court Southern District of Florida Fort Lauderdale Division. This case was filed in April 2020 as a Florida class action alleging that the allocation of prices among certain of the company's cremation service contracts and cremation merchandise contracts, and the related preneed trust funding, and the failure to disclose commissions paid and sales practices associated with the sale of third-party travel protection plans, violate the Florida Deceptive and Unfair Trade Practices Act and constitute unjust enrichment. Plaintiff seeks refunds, general, actual, compensatory and exemplary damages, civil penalties, interest, and attorney fees. Service Corporation said, "Given the nature of this lawsuit, we are unable to estimate a reasonably possible loss or range of loss, if any." No further updates were provided in the Company's SEC report. Service Corporation International is an American provider of funeral goods and services as well as cemetery property and services. It is headquartered in Neartown, Houston, Texas. SCI operates more than 1500 funeral homes and 400 cemeteries in 43 states, eight Canadian provinces, and Puerto Rico. SHAMROCK SALOON: $325K Class Deal in George Suit Wins Prelim. Okay ------------------------------------------------------------------ In the case, MEGHAN GEORGE, on behalf of herself and all others similarly situated, Plaintiff v. SHAMROCK SALOON II, LLC, d/b/a CALICO JACK'S CANTINA; BLITZ MARKETING, LLC; JOHN L SULLIVAN; and DOES 1 through 20, inclusive, and each of them, Defendants, Civil Action No. 17 Civ. 6663 (RA) (SLC) (S.D.N.Y.), Magistrate Judge Sarah L. Cave of the U.S. District Court for the Southern District of New York grants George's Motion for Preliminary Approval of Class Action Settlement. Plaintiff George, on behalf of herself and others similarly situated, sued Defendants Shamrock Saloon II LLC, doing business as Calico Jack's Cantina, Blitz Marketing, LLC, John L. Sullivan, and Does 1 through 20. George alleges that Defendants violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227, et seq., by using an automated telephone dialing system ("ATDS") to send promotional text messages to her and others without their consent. The Honorable Ronnie Abrams has certified a class of 67,630 individuals to whom the Defendants sent promotional text messages. On Sept. 1, 2017, George filed the Complaint on behalf of herself and a putative class of other individuals who had received the Defendants' text messages. Litigation was at times contentious, and the parties raised several discovery disputes with the Court. Discovery included the exchange of written documents between the parties, depositions, production of third-party records, and consultation with expert witnesses. On Feb. 14, 2020, the action was referred for mediation. On Jan. 22, 2021, after several extensions, George filed the Motion for Preliminary Approval. The Motion for Preliminary Approval includes: (i) a supporting memorandum of law; (ii) the Declaration of the Plaintiff's counsel (who is the Class Counsel) John P. Kristensen in support of the Motion for Preliminary Approval; (iii) a settlement agreement and release signed on Jan. 22, 2021 by George and her counsel, which includes as attachments the proposed settlement notice, a postcard notice to be mailed to the Class, and opt-out contact information; and (iv) George's Declaration in support of the Motion for Preliminary Approval. The Kristensen Declaration acknowledged that the Defendants had not yet executed the Partially Executed Settlement Agreement, but would be forthcoming, and would be filed as a supplement to the Motion for Preliminary Approval. On July 23, 2021, the parties filed the Settlement Agreement containing Defendant Sullivan's signature, on behalf of Calico Jack's, the Defendants' counsel's signature, as well as the signatures of George and her counsel. On Jan. 13, 2020, Judge Abrams certified the Class, which consists of "67,630 individuals (1) to whom the Defendants sent promotional text messages between March 26, 2015 and Sept. 1, 2017 using an ATDS and (2) from whom defendants cannot affirmatively show that they received prior express written consent to receive such text messages." The Settlement Agreement establishes a $325,000 total "Settlement Fund" to be paid by Calico Jack's for payment of the "Class Counsel's fees and costs an Incentive Award to George and the Settlement Administration costs." The Settlement Agreement includes the following injunctive relief for the Class Members: (i) Within three business days of Court approval, the Defendants will permanently delete all cellular telephone numbers belonging to the Class Members from its call lists, and will henceforth cease and desist, and forever refrain from transmitting, or causing the transmission of, any further promotional text messages to the Class Members. (ii) Any phone numbers maintained by Defendants will be scrubbed against the National Do Not Call Registry. If any telephone numbers are found to be listed on the National Do Not Call Registry and the Defendants cannot locate prior express written consent for the telephone numbers, the telephone numbers will be permanently deleted. (iii) The Defendants will update and improve [their] processes to ensure compliance with the TCPA. (iv) The Defendants' processes and procedures for TCPA compliance will be in writing. (v) The Defendants will ensure that any third party contracted for text messaging campaigns abides by the Defendants' updated and improved TCPA compliance processes. The Settlement Agreement provides for a $5,000 Incentive Award to George for serving as the class representative, and provides for payment of "reasonable" attorney's fees and reimbursement for costs to the Class Counsel from the Settlement Fund. The exact amount of the attorney's fees and costs is not established in the Settlement Agreement. In exchange for the relief described, George and the Class release Defendants from all claims or causes of action "that relate to or arise out of the Defendants' alleged use of equipment or methods to contact or attempt to contact the Class Members by text message to a cellular telephone and/or electronic mail during the Settlement Class Period, including but not limited to claims that relate to or arise out of the Defendants' use of an ATDS or 'artificial or prerecorded voice' as defined in the TCPA." The parties agree to appoint as the Claims Administrator Postlethwaite & Netterville ("P & N"), which will administer the settlement, distribute Class Notice, and maintain a settlement website. As set forth in the Kristensen Declaration, P & N "specializes in providing administrative services in class action litigation, and has extensive experience in administering consumer protection and privacy class action settlements." Under the Settlement Agreement, the Class Notice is to be disseminated by mail after using a reverse lookup to determine the Class Members' addresses from their telephone numbers, which are "the only contact information the [p]arties have for the Class Members." The Settlement Agreement also provides for the creation of the Website, and both the mailed Class Notice and the Website provide "the terms of the settlement, information regarding the allocation of attorneys' fees, and specific information regarding the date, time, and place of the final approval hearing." The Settlement Agreement permits members of the Class to opt-out of the Settlement or object to its terms. They may do so by submitting an opt-out request within 30 days of Class Notice. Members of the Class "who do not opt out and who wish to object to the Settlement may do so by filing with the Court and mailing to counsel for the parties, no later than 30 days after the Class Notice Date, a notice of objection and/or request to be heard at the Fairness Hearing." The objection must be signed and dated, and include: (i) the case information, (ii) the name and contact information of the individual objecting, (iii) an explanation of the basis for the objection, including any supporting documentation; and (iv) a list of other matters in which the individual interposed objections. An individual objecting may also request permission to speak at the Fairness Hearing by filing a "Notice of Intent to Appear" and mailing a copy to the counsel for George and the Defendants no later than 30 days after the Notice is mailed. Judge Cave finds, at least preliminarily, that the settlement is fair, reasonable, and adequate, it is appropriate to distribute the Class Notice. She says the content of the Class Notice and the proposed plan for its distribution provides the best notice practicable, satisfies the notice requirements of Rule 26(e), and satisfies all other legal and due process requirements. The Judge adopts the following settlement procedure: 1. P & N is appointed as the Claims Administrator and will be required to perform all of the duties of the Claims Administrator as set forth in the Settlement Agreement. 2. The Judge approves the procedures for the Class Members to participate in, opt out of, or object to the Settlement, as set forth in the Settlement Agreement and in George's Motion for Preliminary Approval. The Class Members will have 30 days from the date the Notice is mailed to opt out of the settlement or object to it. Any Class Member who wishes to speak at the Fairness Hearing must file a Notice of Intent to Appear by the same date. 3. On Nov. 16, 2021, at 10:00 a.m., the Court will hold the Fairness Hearing to determine whether to grant final approval of the Settlement Agreement. The Fairness Hearing will be held at the United States District Court for the Southern District of New York, 500 Pearl Street, Courtroom 18A, New York, New York. 4. George will file a Motion for Attorney's Fees and Costs and a Motion for Final Approval of Settlement at least 28 days before the Fairness Hearing, that is, by Oct. 19, 2021. 5. The Claims Administrator will file with the Court no later than 28 days before the Fairness Hearing proof that Class Notice was provided in accordance with the Settlement Agreement. 6. The parties will abide by all terms of the Settlement Agreement. For the reasons she stated, Judge Cave grants George's Motion for Preliminary Approval. She adopts George's proposed schedule of events related to the Fairness Hearing and will hold the hearing in-person on Nov. 16, 2021, at 10:00 a.m. in Courtroom 18A, 500 Pearl Street, in New York City. The Clerk of Court is respectfully directed to terminate ECF No. 128. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/4pzt26sx from Leagle.com. SIMONE MARSTILLER: Class Suit Filed in M.D. Florida --------------------------------------------------- A class action lawsuit has been filed against Simone Marstiller. The case is styled as W.B., by and through his father and legal guardian, David B.; A.W., by and through her mother and legal guardian, Brittany C.; on behalf of themselves and all others similarly situated v. Simone Marstiller, in her official capacity as Secretary for the Florida Agency for Health Care Administration, Case No. 3:21-cv-00771-MMH-PDB (M.D. Fla., Aug. 6, 2021). The nature of suit is stated as Other Civil Rights for the Civil Rights Act. Simone Marstiller is the Secretary of the Agency for Healthcare Administration appointed in February 2021 by Governor Ron DeSantis.[BN] The Plaintiffs are represented by: Joshua H. Norris, Esq. LAW OFFICE OF JOSHUA H. NORRIS, LLC One West Court Square, Suite 750 Decature, GA 30030 Phone: (404) 867-6188 Fax: (404) 393-9680 Email: brad@markslawfirm.net - and - Sarah Somers, Esq. NATIONAL HEALTH LAW PROGRAM 1512 E. Franklin St., Ste 110 Chapel Hill, NC 27514 Phone: (919) 968-6308 - and - Katherine DeBriere, Esq. FLORIDA HEALTH JUSTICE PROJECT 126 West Adams Street Jacksonville, FL 32202 Phone: (904) 356-8371 Fax: (904) 356-8780 Email: debriere@floridahealthjustice.org SOUTHWESTERN ENERGY: Final Hearing on Settlement OK Set for Oct. 21 ------------------------------------------------------------------- Southwestern Energy Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that the hearing of the final settlement approval of the settled class action suit initiated by St. Lucie County Fire District Firefighters' Pension Trust, is set for October 21, 2021 On October 17, 2016, the St. Lucie County Fire District Firefighters' Pension Trust filed a putative class action in the 61st District Court in Harris County, Texas, against the Company, certain of its former officers and current and former directors and the underwriters on behalf of itself and others that purchased certain depositary shares from the Company's January 2015 equity offering, alleging material misstatements and omissions in the registration statement for that offering. The Company removed the case to federal court, but after a decision by the United States Supreme Court in an unrelated case that these types of cases are not subject to removal, the federal court remanded the case to the Texas state court. The Texas trial court denied the Company's motion to dismiss, and in February 2020, the court of appeals declined to exercise discretion to reverse the trial court's decision. The Company filed a petition to review the trial court's decision with the Texas Supreme Court, and the Court requested a response from the plaintiff. The Court subsequently requested full briefing on the merits of the case. The Company carries insurance for the claims asserted against it and the officer and director defendants, and the carrier accepted coverage. On June 15, 2021, the parties agreed to a settlement of the case without any admission of liability. The Company's insurance carrier is fully funding the settlement amount. The trial court has issued an order preliminarily approving the settlement. A hearing on final approval of the settlement is set for October 21, 2021. Southwestern Energy Company, an independent energy company, engages in the exploration, development, and production of natural gas and oil in the United States. It operates through two segments, Exploration and Production, and Midstream. Southwestern Energy Company was founded in 1929 and is headquartered in Spring, Texas. STABLE ROAD: Milberg Coleman Reminds of September 13 Deadline ------------------------------------------------------------- Milberg Coleman Bryson Phillips Grossman ("Milberg"), a global law firm representing investors and consumers, announces that class action lawsuits have been filed on behalf of purchasers of Stable Road Acquisition Corp. securities during the period between October 7, 2020 and July 13, 2021 (the "Class Period"). The Stable Road class actions allege that Stable Road, its sponsor SRC-NI Holdings, LLC, Stable Road's senior executives, and Momentus Inc. and its former CEO, violated the Securities Exchange Act of 1934. There are two class actions pending in the Central District of California (Jensen v. Stable Road Acquisition Corp., No. 21-cv-05744, assigned to the Honorable Judge John F. Walter, and Hall v. Stable Road Acquisition Corp., No. 21-cv-05943). The actions allege that defendants materially misled investors about important facts relating to Stable Road's planned merger with Momentus, including making the materially false and misleading statements and/or failing to disclose that: (1) Momentus' 2019 test of its thruster technology was a failure; (2) the U.S. government had labelled Momentus' CEO, Mikhail Kokorich, a national security threat, which jeopardized his continued role at Momentus, and threatened Momentus' prospects; and (3) Stable Road did not conduct proper due diligence of Momentus and misrepresented those efforts. These misrepresentations and/or omissions caused Stable Road securities to trade at artificially inflated prices throughout the Class Period. On January 25, 2021, Momentus announced that defendant Kokorich resigned as Momentus' CEO to resolve the U.S. government's national security concerns. In reaction to this news, Stable Road stock fell almost 20% in three trading days, closing at $20.10 per share on January 27, 2021. Then, on July 13, 2021, the U.S. Securities and Exchange Commission ("SEC") charged Stable Road, its sponsor SRC-NI, its CEO Brian Kabot, Momentus and Kokorich for misleading investors about Momentus's technology, and about Kokorich's national security issues. According to the SEC, all parties other than Kokorich have settled with the SEC, for penalties of more than $8 million and other relief. On this news, the price of Stable Road Class A stock fell 10%, further damaging investors. Pursuant to the Private Securities Litigation Reform Act ("PSLRA), any member of the purported class can move to serve as lead plaintiff. A lead plaintiff makes important decisions about the case and oversees the litigation. Any interested investor must file a motion with the Court by no later than September 13, 2021. Your ability to share in any recovery does not require that you serve as lead plaintiff; if there is a recovery for the class and you are part of that class, you can recover by submitting the claim forms at that time, whether or not you are the lead plaintiff. About Milberg Coleman Bryson Phillips Grossman Established by members of Milberg Phillips Grossman LLP, Sanders Phillips Grossman LLC, Greg Coleman Law PC, and Whitfield Bryson LLP, Milberg represents plaintiffs in the areas of antitrust, securities, financial fraud, consumer protection, automobile emissions claims, defective drugs and devices, environmental litigation, financial and insurance litigation, and cyber law and security. Milberg has nearly 100 attorneys operating on three continents. The firm and its affiliates have recovered over $50 billion in verdicts and settlements.* Milberg offices are located in New York, London, California, Georgia, Mississippi, Washington, Tennessee, Florida, New Jersey, North Caroline, South Carolina, Kentucky, and Puerto Rico. [GN] STRIPE INC: Court Narrow Claims in Silver's 1st Amended Class Suit ------------------------------------------------------------------ In the case, JASEN SILVER ET AL., Plaintiffs v. STRIPE INC., Defendant, Case No. 4:20-cv-08196-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendant's motion to dismiss the Plaintiffs' First Amended Complaint. Plaintiffs Jasen Silver, Jill Lienhard, Patricia Tysinger, Victoria Waters, and Alaina Jones bring the amended class action complaint against Defendant Stripe alleging violations of various privacy laws. In their FAC, the Plaintiffs assert nine causes of action: (1) violation of the California Invasion of Privacy Act ("CIPA") under California Penal Code Section 631; (2) violation of CIPA under California Penal Code Section 635; (3) violation of the Florida Security of Communications Act ("FSCA"), Florida Statutes Section 934; (4) violation of Washington's Wiretap Act, Revised Code of Washington Section 9.73.030; (5) violation of the Utah Notice of Intent to Sell Nonpublic Personal Information Act, Utah Code Ann. Section 13-37-201; (6) invasion of privacy under California's constitution; (7) intrusion upon seclusion (California); (8) violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200, et seq.; and (9) unjust enrichment. Stripe violated various privacy laws by secretly tracking, collecting, and storing the personal data and web activity of visitors to merchants' website. It then created Stripe Elements, a software code that allows merchants to integrate Stripe's payment platform into their applications. Merchants that use Stripe Elements, in this case Instacart, as a payment platform do not usually contain any identifying information or identification to alert consumers that their transactions are being processed by Stripe. Specifically, there is no branding on the payment screens indicating that Stripe is involved, and other than by looking into the detailed coding of the website and the platform, consumers cannot tell that Stripe is obtaining or storing sensitive information, including financial information. Consequently, most users think that they are communicating directly with the merchant, when they are in fact communicating directly with Stripe. In addition to sensitive financial information, Stripe collects, stores, and uses the following information: the consumer's mouse movements and clicks; the consumer's keystrokes; the consumer's IP address and internet service provider; the geolocation of the consumer and his or her device; the consumer's device brand and model, browser, and operating system; the number of cards that have been used at the consumer's IP address; the number of declined cards the consumer had used with Stripe; a record of when the consumer's attempted purchases were declined; the name of the consumer's bank or card issuer; whether or not the consumer had sufficient funds for the transaction; the time of day the consumer makes the purchase; other processing codes returned by the consumer's bank, such as do not honor codes or those relating to stolen cards; and whether the consumer later disputes the charge. Stripe takes all the collected information, correlates all payments the consumer made across its entire platform, and then -- without informing the consumer -- provides much of it to its other merchants. Next, Stripe installs cookies on consumers' computers and mobile devices, "so that Stripe can track their purchasing behavior across its vast merchant network." Using this history, Stripe makes what is known as a "Risk Insights," which assigns a risk score to each consumer's transactions based on numerous factors. At no time does Stripe inform consumers who use Stripe Elements that any of the alleged conduct is taking place. Relevant in the case, the privacy policy contains three provisions. First it states that Instacart may share "information about you and your order with the other parties who help enable the service" and that "this includes the payment processing partner(s) that we use to validate and charge your credit card." No one disputes that Stripe is a payment processing partner. Second, it states that Instacart may "disclose the following categories of personal information to third parties for our commercial purposes: identifiers, demographic information, commercial information, relevant order information, internet activity, geolocation data, sensory information, and inferences." Third, the privacy policy expressly provides: "We, our partners, our advertisers, and third-party advertising networks use various technologies to collect information, including but not limited to cookies, pixels, scripts, and device identifiers Our partners, advertisers, and third-party advertising networks may use these technologies to collect information about your online activity over time and across different websites or online services." Having once considered a motion to dismiss, now before the Court is Stripe's motion to dismiss all causes of action of the revised FAC. Analysis A. Consideration of Consent is Appropriate The Plaintiffs' first four causes of action depend on consent. With respect to the Plaintiffs' first and second causes of action, Cal. Penal Code Section 631(a) prohibits wiretapping "without the consent of all parties to the communication," and Cal. Penal Code. Section 635 also depends on consent. Similarly, the Plaintiffs' third and fourth causes of action under the FSCA and Washington's Wiretap Act both require lack of consent. Thus, Judge Rogers' consideration of consent as to the Plaintiffs' first, second, third, and fourth causes of action is appropriate. B. Online Consent of Privacy Policy Judge Rogers finds that finds Instacart's privacy policy conspicuous and obvious for several reasons. First, the hyperlink to the privacy policy is displayed in a bright green font against a white background, which stands out from most of the surrounding text. Further, the hyperlink to the privacy policy is located close to the "place order" button, thus it is hard for a user placing an order to miss it. The bold font alerting consumers to the amount of the charge hold placed on their card calls additional attention to the area where Instacart's privacy policy is located. There is nothing about the text that makes it inconspicuous or nonobvious. The Court finds that a reasonably prudent user would have been aware of Instacart's privacy policy when placing an order. This finding comports with other courts that have found similar "sign-in wrap" agreements to be valid -- Meyer v. Uber Techs., Inc., 868 F.3d 66, 75-76 (2d. Cir. 2017) ("the existence of the terms was reasonably communicated to the user"); Peter v. DoorDash, Inc., 445 F.Supp.3d 580, 587 (N.D. Cal. 2020). Based thereon, the Judge finds that during checkout, the Plaintiffs were "provided with an opportunity to review the terms" of the privacy policy. They were required to take an affirmative step -- clicking the "Place Order" button -- to acknowledge that they were agreeing to the terms of the privacy policy. They were told the consequences that would follow from clicking the button, including their acceptance of the privacy policy. The Plaintiffs decided to place an order after being made aware of the privacy policy. Accordingly, the Judge finds that the Plaintiffs consented to Instacart's privacy policy each time they placed an order. C. Wiretap Claims: First, Second, Third, and Fourth Causes of Action Next, Judge Rogers considers whether the Plaintiffs' consent to the policy defeat their wiretap claims. Courts consistently hold that terms of service and privacy policies, like Instacart's privacy policy here, can establish consent to the alleged conduct challenged under various states wiretapping statutes and related claims. The Plaintiffs claim that the policy does not provide sufficient notice that Stripe would collect the information that it did. The Judge finds that the Plaintiffs consented to the collection of the data at-issue. The privacy policy clearly discloses the challenged conduct -- that third parties like Stripe may collect and use a consumer's sensitive data, including one's financial information and web activity. Accordingly, the Judge grants the motion to dismiss as to the Plaintiffs' wiretap claims (first, second, third, and fourth causes of action) based on their consent to the collection of the data. D. Utah's Notice of Intent to Sell Nonpublic Personal Information: Fifth Cause of Action Under Utah's Notice of Intent to Sell Nonpublic Personal Information Act, a commercial entity that enters into a "consumer transaction" with a consumer must give notice to the consumer before the entity discloses nonpublic information to a third-party. Utah Code Ann. Section 13-37-201(1). The statute defines a "consumer transaction" as "the use of nonpublic personal information in relation to a transaction with a person if the transaction is for primarily personal, family, or household purpose." Judge Rogers finds that the complaint, on its face, sufficiently alleges a claim under Utah's statute. She says, the Plaintiffs allege that Stripe qualifies as a business entity under the statute because Stripe conducts business in Utah. Further, the complaint sufficiently alleges that Stripe conducted "consumer transactions" with the Plaintiffs. The Judge finds that the complaint alleges sufficient facts to state a claim under the statute. However, Judge Rogers says class action relief is unavailable under the statute. Section 13-37-203(3) provides that "a person may not bring a class action" for violation of the statute. Thus, the Judge denies the motion to dismiss as to Ms. Alaina Jones individually, the Utah resident named in the complaint, but grants the motion as to the Utah Class. E. Invasion of Privacy and Intrusion Upon Seclusion: Sixth and Seventh Causes of Action The relevant question is whether the Plaintiffs would reasonably expect that a third party such as Stripe would disclose the Plaintiffs' data to other third parties. The Plaintiffs argue that Instacart's policy does not disclose Stripe's disclosure activities. Specifically, they claim that the policy does not disclose that Stripe would use their data to create and share risk profiles with their merchants. Stripe relies on the following notice in Instacart's policy to argue that there is proper notice of Stripe's disclosure practice Taking the Plaintiffs' allegations, as required at this stage of litigation, Judge Ramos finds that the Plaintiffs' allegations that Stripe compiled and disseminated the Plaintiffs' sensitive data precludes the Court from finding that the Plaintiffs have no reasonable expectation of privacy. Thus, the Plaintiffs' allegations are sufficient to survive a motion to dismiss. Accordingly, the Rogers denies the motion as to the Plaintiffs' sixth and seventh causes of action. F. UCL: Eighth Cause of Action The UCL prohibits "any unlawful, unfair or fraudulent business act or practice." The Plaintiffs assert a UCL claim under all three prongs: unlawful, unfair, and fraudulent. 1. Unlawful The Plaintiffs allege that Stripe's conduct is unlawful under the UCL because it violates: (i) CIPA Sections 631 and 635; (ii) the California Online Privacy Protection Act of 2003 ("CalOPPA"), Cal. Bus. & Prof. Code Section 22575, et seq.; and (iii) and the California Consumer Privacy Act of 2018 ("CCPA"), Cal. Bus. & Prof. Code Section 1798, et seq. With regards to the CIPA claims, Judge Rogers holds that the unlawful prong fails in light of the foregoing analysis. With the remainder of the laws cited, she says, the complaint does an inadequate job of explaining the specific violations of those statutes. Thus, the Plaintiffs' UCL claim under the unlawful prong fails. Accordingly, she grants the motion to dismiss as to the Plaintiffs' cause of action on this ground. 2. Fraudulent The "fraudulent" prong of the UCL "requires a showing that members of the public are likely to be deceived." The Plaintiffs must include an account of the time, place, and specific content of the false representations at issue. Judge Rogers holds that the Plaintiffs have not stated with sufficient particularity allegations to state a cause of action under the fraudulent prong of the UCL. Further, they do not and cannot show that Stripe had an affirmative duty to disclose its data collection practices. Thus, the Plaintiffs' UCL claim under the fraudulent prong also fails. Accordingly, she grants the motion as to the Plaintiffs' cause of action on this ground. 3. Unfair The Plaintiffs argue that Stripe's conduct is unfair under the UCL because Stripe intruded on communications that they reasonably believed to be private and then sold those communications to any of its customers and merchants that were ever involved in a transaction with them. They also argue that the nature of Stripe's conduct offends public policy. To the extent the Plaintiffs' claims relate to Stripe's disclosure of their information, and not Stripe's collection of such information, Judge Rogers finds that the complaint sufficiently alleges facts to state a claim under the unfair prong of the UCL. The Plaintiffs' claims fail, however, to the extent that they rely on Stripe's collection of the information. Accordingly, the Judge denies the motion as to the Plaintiffs' cause of action under the unfair prong of the UCL. G. Unjust Enrichment: Ninth Cause of Action To state a claim for unjust enrichment, the Plaintiff must allege receipt of a benefit and unjust retention of the benefit at the expense of another. To proceed on a theory based on fraud, the Plaintiff "chooses not to sue in tort, but instead to seek restitution on a quasi-contract theory (an election referred to at common law as waiving the tort and suing in assumpsit). In the case, however, Judge Rogers finds that the Plaintiffs did not "waive the tort," but, rather, chose to "sue in tort," by also proceeding with their tort and statutory claims. Under such circumstances, the Plaintiffs are not entitled to restitution under a quasi-contract theory. Moreover, this claim also fails in light of the Court's prior analysis as to fraud under the UCL. Accordingly, the Judge grants the motion to dismiss as to the Plaintiffs' unjust enrichment claims. Conclusion Based on the foregoing, Judge Rogers orders: a. the motion to dismiss as to the Plaintiffs' first, second, third, and fourth causes of action is granted without leave to amend; b. the motion to dismiss as to the Plaintiffs' fifth cause of action is denied as to Ms. Alaina Jones, and granted without leave to amend as to the Utah Class; c. the motion to dismiss as to the Plaintiffs' sixth and seventh causes of action is denied; d. the motion to dismiss as to the Plaintiffs' eighth cause of action is denied as to the UCL's unfair prong but granted without leave to amend as to the fraud and unlawful prongs; and e. the motion to dismiss as to the Plaintiff's ninth cause of action is granted without leave to amend. Stripe will file an answer to the Plaintiffs' amended complaint within 21 days from the date of the Order. The parties will appear for a Case Management Conference on Aug. 30, 2021 at 2:00 p.m. The Order terminates Docket Number 48. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/44363ncn from Leagle.com. TEXTRON INC: Dismissal of IWA Forest Suit Under Appeal ------------------------------------------------------ Textron Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended July 3, 2021, that the appeal on the order of dismissal of the class action suit headed by IWA Forest Industry Pension Fund, is pending. On August 22, 2019, a purported shareholder class action lawsuit was filed in the United States District Court in the Southern District of New York against Textron, its Chairman and Chief Executive Officer and its Chief Financial Officer. The suit, filed by Building Trades Pension Fund of Western Pennsylvania, alleges that the defendants violated the federal securities laws by making materially false and misleading statements and concealing material adverse facts related to the Arctic Cat acquisition and integration. The complaint seeks unspecified compensatory damages. On November 12, 2019, the Court appointed IWA Forest Industry Pension Fund (IWA) as the sole lead plaintiff in the case. On December 24, 2019, IWA filed an Amended Complaint in the now entitled In re Textron Inc. Securities Litigation. On February 14, 2020, IWA filed a Second Amended Complaint, and on March 6, 2020, Textron filed a motion to dismiss the Second Amended Complaint. On July 20, 2020, the Court granted Textron's motion to dismiss and closed the case. On August 18, 2020, plaintiffs filed a notice of appeal contesting the dismissal, which Textron has opposed. Oral argument before the Second Circuit Court of Appeals occurred on June 1, 2021, and the appeal remains pending as the parties await the appellate court's decision. Textron Inc. is one of the world's best known multi-industry companies, recognized for its powerful brands such as Bell, Cessna, Beechcraft, E-Z-GO, Arctic Cat and many more. The company leverages its global network of aircraft, defense, industrial and finance businesses to provide customers with innovative products and services. The company is based in Providence, Rhode Island. TIA JULIA: Hernandez Sues Over Unpaid Minimum and OT Wages ---------------------------------------------------------- MIREYA MELENDEZ HERNANDEZ, individually and on behalf of others similarly situated v. TIA JULIA FOOD CORP. (D/B/A TIA JULIA COMIDA TIPICA MEXICANA), ARTURO HERNANDEZ, and MARIA LOURDES XOGOYOTL, Case No. 1:21-cv-04262 (E.D.N.Y., July 29, 2021) is brought against the Defendants for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act. According to the complaint, Plaintiff Melendez worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that she worked. Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiff Melendez appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Furthermore, Defendants failed to pay Plaintiff Melendez the required "spread of hours" pay for any day in which she had to work over 10 hours a day. Defendants maintained a policy and practice of requiring Plaintiff Melendez and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, the complaint alleges. Plaintiff Melendez is a former employee of Defendants Tia Julia Food Corp., Arturo Hernandez, and Maria Lourdes Xogoyotl, owners and operators of a Mexican restaurant located in Elmhurst, NY under the name Tia Julia Comida Tipica Mexicana. [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 TOWER IMAGING: Faces MCCI Suit Over Unsolicited Fax Ads ------------------------------------------------------- MEDICAL & CHIROPRACTIC CLINIC, INC., individually and on behalf of all others similarly situated v. TOWER IMAGING, LLC, Case No. 131671332 filed in the 13th Judicial Circuit Court in Hillsborough County, Florida, on July 29, 2021, challenges Defendant's practice of faxing unsolicited advertisements in violation of the federal Telephone Consumer Protection Act (TCPA). According to the complaint, on April 1, 2020, Defendant sent Plaintiff an unsolicited fax advertisement that was received on Plaintiff's stand-alone fax machine over Plaintiff's subscribed fax line in violation of the TCPA (Fax). Defendant sent the Fax and other facsimile transmissions of unsolicited advertisements to Plaintiff and the Class. The Fax describes the commercial availability and/or quality of Defendant's property, goods or services, namely, Defendant's various radiology services. Unsolicited fax advertisements waste the recipient's valuable time that would have been spent on something else and it intrudes into the recipient's seclusion, violate the recipient's right to privacy, occupy fax lines, and prevent fax machines from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue wear and tear on the recipients' fax machines, and require time and additional labor to attempt to discern the source and purpose of the unsolicited message, adds the complaint. Plaintiff is a Florida corporation, while Defendant is a Florida limited liability company with its principal places of business in Tampa. [BN] The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: 847-368-1500 Fax: 847-368-1501 Email: rkelly@andersonwanca.com TRUMP CORP: Denial of Arbitration Bid in Doe RICO Suit Affirmed --------------------------------------------------------------- In the case, JANE DOE, LUKE LOE, RICHARD ROE, MARY MOE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees v. THE TRUMP CORPORATION, DONALD J. TRUMP, DONALD J. TRUMP, JR., ERIC TRUMP, IVANKA TRUMP, Defendants-Appellants, ACN OPPORTUNITY, LLC, Non-Party Appellant, Docket Nos. 20-1228-cv, 20-1278-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirms the district court's orders denying the Defendants' and ACN Opportunity, LLC's motions to compel arbitration. The case arises out of the Defendants-Appellants' allegedly fraudulent, misleading, and deceptive statements. The Plaintiffs-Appellees assert that, through these statements, the Defendants -- the Trump Corp., Donald J. Trump, and members of his family -- induced them to enter into business relationships with non-party appellant, ACN Opportunity, LLC. ACN is a "multi-level marketing" company that enlists individuals to work on its behalf as "Independent Business Owners." While allegedly accepting large, secret payments from ACN, the Defendants publicly represented that they were independent of the company and, as such, promoted ACN as a business opportunity that offered a reasonable probability of success, a claim that the Plaintiffs allege was knowingly, materially false. As a result, the Plaintiffs -- and many others like them -- entered into business relationships with ACN as Independent Business Owners and suffered significant monetary losses. Each of the Plaintiffs paid ACN a fee to enroll as an Independent Business Owner and agreed to submit any disputes that might arise between them to arbitration. The Plaintiffs brought suit in the U.S. District Court for the Southern District of New York in October 2018 against the Defendants, but not ACN. The complaint alleged racketeering and conspiracy to conduct a racketeering enterprise in violation of 18 U.S.C. Section 1962(c)-(d). It also asserted various state-law claims, including dissemination of untrue and misleading public statements in violation of California law, unfair competition in violation of California law, unfair and deceptive trade practices in violation of Maryland law, unfair and deceptive acts or practices in violation of Pennsylvania law, common-law fraud, and common-law negligent misrepresentation. After more than 10 months of litigation and the court's denial in part of a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), the Defendants moved to compel arbitration. Although not parties to the arbitration agreements between the Plaintiffs and ACN, the Defendants sought nevertheless to enforce these agreements against the Plaintiffs under principles of equitable estoppel. While the Defendants' motion to compel arbitration was pending, the Plaintiffs sought third-party discovery from ACN and served it with a subpoena duces tecum to that end. ACN objected to the production of documents and -- in response to the Plaintiffs' motion to compel discovery from it -- requested that the district court compel arbitration. The Defendants argued that the Plaintiffs had agreed to arbitrate any disputes arising out of, or related to, their IBO agreements and that the plaintiffs' claims were thus covered by the arbitration agreements. They also argued that principles of agency and estoppel allowed them -- despite being non-signatories to the IBO agreements -- to enforce the agreements to arbitrate against the Plaintiffs. The Defendants explicitly asserted that their motion to compel arbitration was timely. The district court (Lorna G. Schofield, Judge) denied the Defendants' and ACN's motions to compel arbitration. The Defendants and ACN appeal from those denials. The Defendants argue that the district court erred in denying their motion because (1) the question of arbitrability must be decided by the arbitrator; (2) they are entitled to enforce the arbitration agreement under principles of equitable estoppel; and (3) they did not waive their right to arbitration. ACN argues that the district court erred in denying its motion to compel arbitration because (1) the district court had an independent jurisdictional basis over its motion to compel; (2) the arbitrator, rather than the district court, should have decided the threshold question of arbitrability; and (3) ACN is entitled to enforce the arbitration agreement under the doctrine of equitable estoppel. The truth or falsity of the Plaintiffs' allegations is not before the Second Circuit. It neither expresses nor implies any views with respect to them. The only question before it is whether the case should be resolved before the district court or an arbitrator. Discussion I. The Trump Defendants' Motion to Compel Arbitration On appeal, the Defendants argue that the district court erred in denying their motion to compel arbitration for three reasons. First, they assert that under Contec Corp. v. Remote Sol. Co., 398 F.3d 205, 208 (2d Cir. 2005) the district court should have referred the questions of equitable estoppel and waiver to the arbitrator for resolution. Second, they argue that they are entitled to enforce the Plaintiffs' arbitration agreements with ACN under equitable estoppel principles. And third, they contend that the district court erred in concluding that the Defendants waived their right to arbitrate. The Second Circuit agrees with the district court that the Defendants may not compel the Plaintiffs to arbitrate this dispute based on equitable estoppel principles and affirms the district court's order on that basis. It therefore need not determine whether the Defendants waived their right to arbitration. 1. Contec The Defendants argue that the district court erred in denying their motion to compel arbitration on equitable estoppel and waiver grounds because Contec requires that those issues be referred to the arbitrator. The Plaintiffs assert, however, that the Defendants forfeited this argument by failing to make it before the district court. They further contend that -- even if this argument were preserved -- it lacks merit because (1) equitable estoppel is a non-delegable question of contract formation, and (2) the Plaintiffs did not enter into an arbitration agreement with the defendants consenting to arbitrate threshold questions of arbitrability. The Second Circuit holds that the Defendants did not adequately raise before the district court their argument that, under Contec, the issue of arbitrability was for the arbitrator to determine or, more broadly, that the questions of equitable estoppel and waiver should have been determined by an arbitrator. Nor did they assert that the district court lacked authority to resolve these issues. To the contrary, the Defendants briefed -- and asked the district court to resolve -- these questions and asked the district court to compel arbitration on equitable estoppel grounds. While the Second Circuit may exercise its discretion to consider forfeited arguments, the Defendants fail to present a compelling reason for its doing so. Although ACN did contend that the arbitrability of its dispute with the Plaintiffs should be resolved by the arbitrator, it never made such an argument on behalf of the defendants or suggested that the equitable estoppel and waiver issues implicated by the Defendants' motion to compel arbitration should be resolved by an arbitrator. This argument was waived. 2. Equitable Estoppel The Second Circuit now turns to the district court's determination that the Defendants are not entitled to compel the Plaintiffs to arbitrate their dispute under the doctrine of equitable estoppel. As a preliminary matter, the parties dispute whether the Court should apply North Carolina law or "federal common law" in order to resolve this question. Because both parties affirmatively relied on the Second Circuit's precedents before the district court, they have waived any argument regarding the applicability of North Carolina law. The Second Circuit therefore proceeds with the equitable estoppel inquiry as governed by Second Circuit precedent. In order to establish equitable estoppel in the present context so as to bind a signatory of a contract (in the case, the Plaintiffs) to arbitrate with one or more non-signatories (in the case, the Defendants), there must be a close relationship among the signatories and non-signatories such that it can reasonably be inferred that the signatories had knowledge of, and consented to, the extension of their agreement to arbitrate to the non-signatories. In the case, the Second Circuit finds that neither is nor was such a relationship. There was no corporate relationship between the defendants and ACN of which the Plaintiffs had knowledge, the Defendants do not own or control ACN, and the Defendants are not named in the IBO agreements between ACN and the Plaintiffs. For these reasons, the Defendants are not entitled to compel the Plaintiffs to arbitrate this dispute with them based on principles of equitable estoppel. The Second Circuit therefore affirms the district court's denial of the Defendants' motion to compel arbitration. II. ACN's Motion to Compel Arbitration On appeal, ACN argues that the district court erred in several respects in denying its motion to compel arbitration. First, ACN contends that the district court erred in concluding that it lacked jurisdiction to entertain the motion. Second, ACN argues that the district court erred in ruling that the discovery dispute did not fall within the scope of the arbitration agreement between it and the Plaintiffs because the arbitration agreement delegates threshold questions of arbitrability to the arbitrator and that question was therefore one for the arbitrator, not the court, to decide. Third, ACN argues that the doctrine of equitable estoppel bars the Plaintiffs from avoiding arbitration. Because the district court correctly concluded that it lacked jurisdiction to grant ACN's motion to compel and that issue alone is dispositive, the Second Circuit declines to address ACN's argument that the district court erred in resolving the threshold question of arbitrability. It also concludes that ACN forfeited its argument regarding equitable estoppel. 1. Jurisdiction The Second Circuit holds that the only dispute between ACN and the Plaintiffs is about discovery. ACN's characterization of the underlying litigation as a dispute between the Plaintiffs and ACN over their respective obligations and performance under the IBO agreements is inconsistent with the Plaintiffs' complaint and the claims asserted against the Defendants. The Second Circuit will not accept ACN's invitation to "dream up counterfactuals when actual litigation has defined the parties' controversy." Because there is no actual case or controversy between ACN and the Plaintiffs, the district court correctly denied ACN's motion to compel arbitration on the ground that it lacked subject-matter jurisdiction. 2. Equitable Estoppel ACN argues, in the alternative, that it is entitled to invoke equitable estoppel to compel the Plaintiffs to arbitrate their claims against the Defendants. The Plaintiffs counter that ACN forfeited this argument by failing to present it to the district court and that, in any event, ACN's equitable estoppel theory lacks merit because the law of equitable estoppel applies where a non-signatory seeks to enforce an arbitration agreement. The Second Circuit finds that in its request to compel arbitration, ACN never invoked the theory of equitable estoppel or mentioned it as a basis for compelling arbitration. Nor did ACN invoke any such argument when responding to the district court's questions regarding its motion to compel arbitration at the April 9, 2020, status conference. ACN nevertheless argues that it preserved this argument by "incorporating by reference the applicable facts and authorities set forth in the Defendants'" motion to compel arbitration. Such conclusory and generalized references to previously filed briefs are inadequate to preserve an issue for appeal. Even if ACN's generalized reference to the Defendants' briefing could preserve this argument for appeal, it would not suffice here because the Defendants argued only that they were entitled to equitable estoppel. The Defendants never argued that equitable estoppel barred the Plaintiffs from avoiding arbitration with ACN. Because ACN failed to raise this argument before the district court, ACN has forfeited it. Conclusion The Second Circuit has considered the Defendants' and ACN's remaining arguments on appeal and concludes that they are without merit. It concludes that the Defendants are not entitled to have the district court enforce the arbitration agreement under equitable estoppel principles or otherwise and that the district court lacked an independent jurisdictional basis over ACN's motion to compel. It therefore affirms the district court's orders denying the Defendants' and ACN's motions to compel arbitration. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/h6m5mpcs from Leagle.com. ROBERTA A. KAPLAN -- rkaplan@kaplanhecker.com -- Kaplan Hecker & Fink, LLP, New York, NY (John C. Quinn, Joshua Matz, Alexander J. Rodney -- arodney@kaplanhecker.com -- Raymond P. Tolentino, Michael Skocpol, Kaplan Hecker & Fink, LLP, New York, NY, and Andrew G. Celli -- acelli@ecbalaw.com -- Jr., O. Andrew F. Wilson, Emery Celli Brinckerhoff Abady Ward & Maazel LLP, in New York City, on the brief), for Plaintiffs-Appellees; THOMAS R. McCARTHY -- tom@consovoymccarthy.com -- (Tiffany H. Bates, on the brief), Consovoy McCarthy PLLC, in Arlington, Virginia, for Defendants-Appellants; BENJAMIN GLASSMAN -- benjamin.glassman@squirepb.com -- Squire Patton Boggs (US) LLP, Cincinnati, OH Benjamin Beaton, G. Luke Burton -- luke.burton@squirepb.com -- Squire Patton Boggs (US) LLP, Cincinnati, OH, and Stephanie E. Niehaus -- info@nelson.legal -- Nelson Law LLC, in New York City, on the brief), for Non-Party Appellant. UNITI GROUP: Court Enters Protective Order in Securities Suit ------------------------------------------------------------- Judge Brian S. Miller of the U.S. District Court for the Eastern District of Arkansas enters a Joint Stipulation and Protective Order in the case, In re UNITI GROUP INC. SECURITIES LITIGATION. This Document Relates To: ALL ACTIONS, Master File No. 4:19-cv-00756-BSM (E.D. Ark.). The Defendants and the Lead Plaintiffs in the actions, by and through their respective counsel, agree and stipulate, pursuant to Federal Rule of Civil Procedure 26(c), that the following Joint Stipulation and Protective Order will govern the disclosure, handling, and use of documents, testimony taken at depositions and transcripts thereof, deposition exhibits, interrogatory responses, admissions, and any other information and material produced or disclosed, whether voluntarily or in response to a request made pursuant to the Federal Rules of Civil Procedure, in discovery in the Litigation, because discovery in the Litigation may involve production of confidential, proprietary, competitively sensitive, or private information for which special protection from public disclosure, and from use for any purpose other than prosecuting or defending this Litigation, would be warranted. The Parties acknowledge that the Order does not confer blanket protections on all disclosures or documents produced in response to discovery and that the protection it affords extends only to the limited information or items that are entitled under applicable legal principles to treatment as confidential. All Discovery Material (including Confidential Discovery Material) will be used solely for purposes of the prosecution or defense of this Litigation and may not be used for any other purpose whatsoever. The attorneys of record for the Parties are responsible for employing reasonable measures, consistent with the Order, to control access to, duplication of and distribution of copies of Discovery Material marked "Confidential." If it comes to a Party's or a Non-Party's attention that information or items that it designated for protection do not qualify for protection, that Party or Non-Party must promptly notify all other parties that it is withdrawing the mistaken designation. The Producing Party may withdraw or modify any designation at any time. No person will disclose Confidential Discovery Material to any other person, except as provided in the Order. Every person or entity given access to Confidential Discovery Material, or information contained therein: (a) will not make copies, duplicates, extracts, summaries or descriptions of such material, or any portion thereof, except for use in connection with the Litigation, and each such copy is to be treated in accordance with the provisions of the Order; and (b) will be advised by the Party providing such access that the information is being disclosed pursuant and subject to the terms of the Order and may not be disclosed other than pursuant to such terms. A Party may object to the designation of Discovery Material as "Confidential," or a failure to so designate, at any time. The Objecting Party and the Producing Party will attempt in good faith to resolve all objections by agreement. If any objections cannot be resolved by agreement within seven days from when they are first made, the Objecting Party may submit the issue to the Court at any time. Any Discovery Material as to which such an issue is raised will continue to be treated as Confidential Discovery Material, until the Court's decision on the issue or the Producing Party withdraws such designation in writing, or, if the challenge is for a failure of a Party to designate Discovery Material as "Confidential," such Discovery Material will be treated at the level sought by the Objecting Party until the Court's decision on the issue or the Objecting Party withdraws such objection in writing. The provisions of the Order shall, absent written permission of the Producing Party or order of the Court, continue to be binding throughout and after the conclusion of the Litigation. Within 60 days after receiving notice of entry of an order, judgment or decree finally ending the Litigation, including, without limitation, any appeals therefrom, or the running of time to take such an appeal, if later, all persons having received Confidential Discovery Material shall, upon request of the Producing Party, make commercially reasonable efforts to identify and return or destroy all such Confidential Discovery Material. Any Non-Party from whom Discovery Material is or has been sought in the Litigation may obtain the protections of the Order by giving written notice to the Parties that it intends to be bound by the provisions of this Order and designating that its provision of Discovery Material is subject to the Order. No later than seven business days after a Receiving Party's receipt of written responses and/or Discovery Material provided or produced in response to a subpoena pursuant to Federal Rule of Civil Procedure 45, including written responses and objections, and any court filings related to the subpoena, that Receiving Party must make copies of such written responses and/or Discovery Material available to all other Parties. If a deposition, briefing deadline, or other relevant event is scheduled to take place within seven business days of the receipt of a production from a Non-Party, the Receiving Party will immediately notify the other Parties to this Litigation of its production and of when and how it will be provided. Any violation of the terms of the Order will be punishable by relief deemed appropriate by the Court. The Parties agree to meet and confer concerning any dispute between the Parties regarding the Order before seeking assistance from the Court. If they are unable to resolve the dispute, any Party may make an appropriate application to the Court for relief. A full-text copy of the Court's July 28, 2021 Protective Order is available at https://tinyurl.com/4u87bfh8 from Leagle.com. UPONOR INC: Faces Matzdorf Suit Over Defective PEX -------------------------------------------------- JOEL W. MATZDORF; MIKAYLA MATZDORF; DUANGDOW C. HOYORD; and LUKE T. HOYORD; individually and on behalf of all others similarly situated v. UPONOR, INC.; UPONOR NORTH AMERICA, INC.; DOES 1 through 100, inclusive, whose true names are unknown, Case No. 1:21-cv-02057 (D. Colo., July 29, 2021) is an action seeking damages over the Defendants' blue and red colored cross-linked polyethylene tubing (PEX), which suffers from design and/or manufacturing defects that cause premature damage, degradation, deterioration and failure (UPONOR PEX). The complaint alleges that the Uponor PEX in Plaintiffs' Homes is prematurely degrading, deteriorating and/or failing and suffers from micro-cracking. These defects cause the Uponor PEX to crack, fail to perform when put to their intended use, leak and reduce their normal useful life. Defendants failed to fully or adequately compensate property owners, including, but not limited to, Plaintiffs and members of the Class, who have been injured as a result of the defective Uponor PEX. Defendants failed to disclose this material information to Plaintiffs, members of the Class, and the public. Before designing, manufacturing, advertising/marketing, distributing and/or selling Uponor PEX, Defendants failed to take appropriate steps to ensure that its products were safe for their intended use, states the complaint. Defendants Uponor and Uponor North America designed, manufactured, marketed/advertised, sold and/or distributed Uponor PEX for use in residential water plumbing systems throughout the United States. [BN] The Plaintiffs are represented by: Michael C. Menghini, Esq. Penny J. Manship, Esq. BURG SIMPSON ELDREDGE HERSH JARDINE PC 8310 S. Valley Hwy, Suite 270 Englewood, CO 80210 Telephone: (303) 792-5595 Email: mmenghini@burgsimpson.com pmanship@burgsimpson.com VISA INC: Class Certification Bid in Interchange MDL Pending ------------------------------------------------------------ Visa Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2021, for the quarterly period ended June 30, 2021, that on December 18, 2020, the plaintiffs purporting to act on behalf of the putative Injunctive Relief Class moved for class certification. Visa Inc. operates as a payments technology company worldwide. The company facilitates commerce through the transfer of value and information among consumers, merchants, financial institutions, businesses, strategic partners, and government entities. Visa Inc. was incorporated in 2007 and is headquartered in San Francisco, California. WEST VIRGINIA: Bids to Dismiss Case Over Foster Care System Granted ------------------------------------------------------------------- Judge Thomas E. Johnston of the U.S. District Court for the Southern District of West Virginia, Huntington Division, grants the Defendants' motions to dismiss the case, JONATHAN R., et al., Plaintiffs v. JIM JUSTICE, et al., Defendants, Civil Action No. 3:19-cv-00710 (S.D. W.Va.). Pending before the Court is Defendants Jim Justice, Bill Crouch, Jeremiah Samples, Linda Watts, and the West Virginia Department of Health and Human Resources' Motion to Dismiss; the Defendants' Motion to Dismiss the Claims of Named Plaintiffs Chris K., Calvin K., and Carolina K.; the Defendants' Motion to Dismiss the Claims of Named Plaintiff Garrett M.; the Defendants' Motion to Clarify Plaintiffs' Proposed Class Definition and to Dismiss Named Plaintiff Gretchen C.; and the Defendants' Motion to Dismiss the Claims of Named Plaintiff Serena S. Also pending is Plaintiffs Jonathan R., Anastasia M., Serena S., Theo S., Garrett M., Gretchen C., Dennis R., Chris K., Calvin K., Carolina K., Karter W., and Ace L.'s Motion for Class Certification and Appointment of Class Counsel; the Plaintiffs' Motion for Extension of Time to Reply; the Defendants' Motion to Stay Discovery; the Defendants' Unopposed Motion to Exceed Page Limit; the Defendants' Motion for Leave to File Under Seal; the Defendants' Motion to Exclude Plaintiffs' Expert Testimony; the Plaintiffs' Unopposed Motion for Extension of Page Limit; the Plaintiffs' Motion to Exclude Defendants' Expert Testimony; and the Defendants' Motion for Leave to File Sur-Reply. The Plaintiffs filed the proposed class action on behalf of all children who are currently in or will be placed in the custody of West Virginia's foster care system. The proposed class consists of one General Class and three subclasses. The proposed Kinship Subclass consists of children who are or will be placed in kinship placements. The proposed ADA Subclass consists of children who have or will have physical, intellectual, cognitive, or mental health disabilities, and the proposed Aging Out Subclass consists of children aged 14 years and older who are eligible for transition planning but have not been provided the necessary case management and services. The 12 named Plaintiffs are children in the custody of West Virginia's Department of Health and Human Resources ("DHHR"). The Plaintiffs allege that West Virginia's foster care system has operated in a state of crisis for years and that the DHHR and the Bureau for Children and Families ("BCF") have failed to protect the children in their care. The Defendants, all sued in their official capacities, are Governor Jim Justice, Cabinet Secretary of the West Virginia DHHR Bill Crouch, Deputy Secretary of the DHHR Jeremiah Samples, Commissioner of the BCF Linda Watts, and the West Virginia DHHR. The Plaintiffs allege the Defendants are aware of the following systematic deficiencies within West Virginia's foster care system: a lack of foster care placements; an overwhelmed system that leads to inadequate, temporary, and overcrowded foster home placements; an overreliance on institutional care for children; a failure to ensure placement stability; a failure to track foster children; a failure to employ and retain a sufficient number of case workers; a failure to provide and develop services; a failure to engage in permanency planning; and a failure to properly plan for the children's future. They allege the Defendants have failed to address these issues, which has caused further harm to the children in their care. The Plaintiffs seek both declaratory and injunctive relief against the Defendants for these alleged systematic deficiencies. They seek injunctive relief which would require Defendants to implement the following reforms: a. With regard to all children in the General Class: i. Require DHHR to contract with an appropriate outside entity to complete a needs assessment of the state's provision of foster care placement and services no later than six months after judgement, to determine the full range and number of appropriate foster care placements and services for all children needing foster care placement, including the development of a plan, with timetables, within which such placements and services will be secured, and ensure that DHHR will comply with those timetables; ii. Require that DHHR ensure that all children who enter foster care placement receive within 30 days of entering care a complete and thorough evaluation of the child's needs, performed by a qualified individual, including whether the child has any physical and/or mental disabilities sufficient to be categorized as a child with disabilities under the ADA and that the child be re-evaluated as the child's needs and the information available to DHHR change; iii. Require that DHHR ensure that all children who enter foster care placement receive within 60 days of entering care an adequate and individualized written case plan for treatment, services, and supports to address the child's identified needs; describe a plan for reunification with the child's parents, for adoption, or for another permanent, family-like setting; describing any interim placements appropriate for the child while the child moves towards a permanent home-like setting; and describing the steps needed to keep the child safe during the child's time in DHHR's custody. iv. Require that DHHR ensure that all children whose case plan identifies a need for services and/or treatment timely receive those services and/or treatment; v. Require that DHHR will ensure that all children who are placed in foster care are placed in a safe home or facility and are adequately monitored in accordance with federal standards; vi. Require that DHHR will hire, employ, and retain an adequate number of qualified and appropriately trained caseworkers, and ensure that caseloads do not exceed 15 children per-worker for children in placement, with caseloads adjusted for caseworkers who carry mixed caseloads including children not in foster care custody; and vii. Require DHHR to develop an adequate statewide plan, to be approved by the Monitor referred to below, for recruiting and retaining foster and adoptive homes, including recruitment goals and timetables for achieving those goals, with which DHHR will comply. b. For all children in the Kinship Subclass: i. Require DHHR to develop an adequate statewide kinship placement plan, to be approved by the Monitor referred to below, for assessing, overseeing, and monitoring kinship homes, including training requirements and regular caseworker contact, and timetables for achieving those goals, with which DHHR will comply; ii. Require that DHHR will ensure caseworkers conduct background and safety assessments of kinship placements as required by reasonable professional standards; iii. Require that DHHR will ensure that kinship placements receive foster parent training as required by reasonable professional standards; iv. Require that DHHR will ensure that all children in kinship placements will receive foster care services to meet the child's needs, including, in as many instances as is required by reasonable professional standards, supportive services; and v. Require that DHHR will ensure all children who are placed in kinship placement receive permanency planning as required by reasonable professional standards. c. For all children in the ADA Subclass: i. Require that DHHR will ensure that all children with physical, mental, intellectual, or cognitive disabilities will receive foster care services in the most integrated setting appropriate to the child's needs, including, in as many instances as is required by reasonable professional standards, family foster homes with supportive services; ii. Require that DHHR ensure that an adequate array of community based therapeutic services are available to children with disabilities; and iii. Require that DHHR ensure that it develop an adequate array of community-based therapeutic foster homes and therapeutic placements to meet the needs of children with disabilities. d. For all children in the Aging Out Subclass: i. Require that DHHR, when a child turns 14 years old while in its custody and is not imminently likely to be reunified with family, adopted, or otherwise placed in a permanent family-like setting, will engage in transition planning to meet the health care, educational, employment, housing, and other social needs of the children in transitioning to adulthood; ii. Require that DHHR will ensure youth be placed in the least restrictive, most-family like setting possible with appropriate, necessary and individualized services; and iii. Prohibit DHHR from refusing to place a young person in a foster care placement because the child is 14 or older. The Plaintiffs also ask the Court to appoint a neutral monitor to oversee implementation of and compliance with these reforms. Discussion The Plaintiffs' Class Action Complaint alleges the following five causes of action: (1) violations of substantive due process under the United States Constitution; (2) violations of the First, Ninth, and Fourteenth Amendments to the United States Constitution; (3) violations of the Adoption Assistance and Child Welfare Act of 1980; (4) violations of the Americans with Disabilities Act; and (5) violations of the Rehabilitation Act. (ECF No. 1.) Defendants argue this Court lacks subject matter jurisdiction over Plaintiffs' claims and requested relief because they seek federal review and ongoing oversight over West Virginia state court decisions.2 (ECF No. 18 at 12.) Specifically, Defendants argue the principles of federalism and comity require this Court to abstain from oversight of West Virginia's child welfare system because its state courts have exclusive and continuous jurisdiction over such determinations. (Id. at 11.) Additionally, Defendants challenge all five counts of the Complaint for failure to state a claim and argue that the federal laws upon which Plaintiffs base their claims do not support the relief they seek. (Id.) Defendants also allege that named Plaintiffs Chris K., Calvin K., Carolina K., Garrett M., Gretchen C., and Serena S. are no longer in DHHR custody, are no longer in the putative class, and that their claims are now moot. First, Judge Johnston must address the threshold question of whether the six challenged Plaintiffs' claims present a justiciable claim or controversy. Then, he considers the Defendants' arguments related to abstention. Both questions must be decided before the Judge can address the merits of the Plaintiffs' claims. A. Mootness First, Judge Johnston addresses the Defendants' motions to dismiss named Plaintiffs Chris K., Calvin K., Carolina K., Garrett M., Gretchen C., and Serena S. He notes that there is no dispute that these six Plaintiffs are no longer in the custody of the DHHR or in the foster care system. He says the Plaintiffs' Complaint seeks injunctive and declaratory relief against the Defendants to prevent future harm to the children in their custody due to an alleged deficient child welfare system. Because these Plaintiffs have all left Defendants' legal or physical custody, they can neither be further harmed by the Defendants alleged illegal practices nor do they have a current claim for injunctive relief against Defendants arising from the operation of its child welfare system. With regard to these six Plaintiffs, they now "lack a legally cognizable interest in the out-come" of the case and no live controversy exists between the parties. Hence, these Plaintiffs' claims are moot. Accordingly, they are dismissed as parties to the action. B. Younger Abstention Next, the Defendants argue that abstention is appropriate under Younger v. Harris, 401 U.S. 37 (1971). In Younger and its progeny, the Supreme Court has reiterated "a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances." The reason for restraining federal courts from exercising hurisdiction in these types of actions is the notion of "comity." Although Younger involved state criminal proceedings, the Supreme Court has expanded its application to "noncriminal judicial proceedings when important state interests are involved." Younger abstention applies only to "three exceptional categories" of cases: (1) "parallel, pending state criminal proceedings"; (2) "state civil proceedings that are akin to criminal prosecutions"; and (3) "civil proceedings involving certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions." These three categories of cases define the scope of Younger. Judge Johnston opines that (i) the relief the Plaintiffs seek would interfere extensively with ongoing state court proceedings for each of the named Plaintiffs; (ii) there can be little dispute that the protection of abused and neglected children is a vital and important state interest; and (iii) the Plaintiffs have failed to prove that West Virginia's Circuit Courts prevent the presentation of these claims during the periodic review proceedings conducted as a part of these children's ongoing abuse and neglect proceedings. In addition, the Plaintiffs have made no showing that would allow the Court to conclude that any of these exceptions should be applied in the case. Accordingly, there is no basis to support the conclusion that Younger abstention is inappropriate. The Court is barred from consideration of the case under Younger and its progeny. Conclusion For the foregoing reasons, Judge Johnston grants the Defendants' five Motions to Dismiss. The following six named Plaintiffs are removed from the action: Serena S., Garrett M., Gretchen C., Chris K., Calvin K., and Carolina K. Further, it is ordered that the civil action is dismissed and retired from the docket of the Court. The Judge directs the Clerk to remove the matter from the Court's docket. He directs the Clerk to send a copy of the Order to the counsel of record and any unrepresented party. A full-text copy of the Court's July 28, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/4dr5ajzp from Leagle.com. WYNN RESORTS: Dismissal Bids in Ferris Securities Suit Partly OK'd ------------------------------------------------------------------ In the case, JOHN V. FERRIS, et al., Plaintiffs v. WYNN RESORTS LIMITED, et al., Defendants, Case No. 2:18-cv-00479-APG-DJA (D. Nev.), Judge Andrew P. Gordon of the U.S. District Court for the District of Nevada entered an order: (a) granting in part the Defendants' motion to dismiss; (b) granting in part Defendant Stephen Wynn's motion to dismiss; (c) granting in part Defendant Kimmarie Sinatra's motion to dismiss; (d) granting the Plaintiffs' motion for leave to file a surreply; and (e) granting the Defendants' motion for leave to file supplemental authority. The lawsuit is a securities fraud class-action suit against Wynn Resorts (the Company), Stephen Wynn, and several Company officers and board members. Wynn Resorts develops, owns, and operates resort casinos in Las Vegas, Macau, and Massachusetts. Stephen Wynn, the founder and former CEO and chairman of the board, resigned in 2018 after a Wall Street Journal article reported on allegations that he sexually assaulted and harassed several employees over the course of more than a decade. On the day of the article's publication, Company share prices dropped 10.12%. Lead Plaintiffs John V. Ferris and JoAnn M. Ferris and named Plaintiff Jeffrey Larsen allege that Company officers, board members, and other senior-level management knew about or recklessly disregarded the allegations of Wynn's misconduct and concealed them. The Plaintiffs allege that in concealing the misconduct, the Defendants made material misrepresentations or omissions in violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b), and Securities and Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. Section 240.10b-5. They also assert a control-person liability claim alleging that Wynn and certain other Defendants violated Section 20(a) of the Exchange Act. The alleged misrepresentations and omissions arise out of Wynn's alleged sexual misconduct, which the second amended complaint (SAC) alleges is a decades-long pattern. His alleged misconduct came to light when the Wall Street Journal published an article detailing several allegations against him. The Plaintiffs allege that the defendants made misrepresentations in response to that article, as well as in statements involving the Company's code of conduct, SEC filings, earnings calls, and in response to Elaine Wynn's cross claim in a lawsuit involving the Company and Kazuo Okada, a former beneficial shareholder of the Company. The SAC asserts claims against three groups of Defendants. The Individual Defendants are Stephen Wynn, Matthew Maddox (president and CEO), Kimmarie Sinatra (former executive vice president, general counsel, and secretary), Stephen Cootey (former CFO, senior vice president, and treasurer), and Craig Billings (CFO, principal accounting officer, and treasurer). The Director Defendants are John Hagenbuch, Ray Irani, Jay Johnson, Robert Miller, Patricia Mulroy, Clark Randt, Jr., Alvin Shoemaker, J. Edward Virtue, and D. Boone Wayson. Wynn Resorts is the corporate defendant. The Defendants move to dismiss the second amended complaint (SAC) on many grounds. Defendants Wynn and Kimmarie Sinatra each move separately to dismiss and join in the other Defendants' motion to dismiss. Defendant Stephen Cootey also joins in that motion to dismiss. Analysis I. Requests for Judicial Notice The Defendants request that Judge Gordon takes judicial notice of 29 exhibits, which they argue are either incorporated by reference into the SAC, public SEC filings, or matters of public record. Sinatra requests judicial notice of the April 30, 2019 MGC decision and order and 10 Form 4s filed with the SEC. The Plaintiffs do not oppose the Defendants' requests for judicial notice and note only that "judicial notice is limited to the existence and terms of the record." They state that the MGC order, the NGCB complaints, and the NGCB settlement are incorporated by reference into the SAC. A. Incorporation by Reference The Defendants argue that exhibits 3-5, 10-14, and 21 are quoted or referenced in the SAC. These exhibits include: (3) the April 30, 2019 MGC order, (4) a Jan. 28, 2019 Wynn Resorts press release, (5) a February 26, 2019 settlement between the NGCB and Wynn Resorts, (10) a March 28, 2016 Wynn Resorts press release, (11) an April 5, 2016 Wynn Resorts press release, (12) a Jan. 26, 2018 CNN Business article, (13) the March 28, 2016 Elaine Wynn cross claim filed in the Okada litigation in Nevada state court, (14) the WSJ article, and (21) the Wynn Resorts Code of Business Conduct and Ethics, amended as of Aug. 1, 2016. Judge Gordon finds that exhibits 3-5, 10-14, and 21 are extensively quoted or referenced in the SAC. He says, these documents are incorporated by reference into the SAC. Additionally, the Plaintiffs contend that the NGCB complaint, NGCB settlement, and NGCB Wynn complaint are incorporated by reference into the SAC. The SAC extensively references them, so the Judge considers them incorporated. B. Judicial Notice The Defendants propose two categories of documents that are judicially noticeable. First, they argue that exhibits 1, 4, 6, 10-12, 14, and 21 are public news articles, press releases, or trading information. Judge Gordon has already incorporated exhibits 4, 10-12, 14, and 21, so only exhibits 1 and 6 remain relevant for purposes of judicial notice. The Defendants have not clarified why they seek judicial notice of these documents, or what facts they request that the Judge judicially notices. They cite case law within the Ninth Circuit, but not Khoja or cases coming after Khoja, which "aimed to clarify when it is proper to take judicial notice of facts in documents." The Judge denies the Defendants' request as to those documents. Second, they argue that exhibits 14-20 and 22-27 were filed with the SEC and exhibits 2, 7-9, 13, and 28 are publicly filed court documents. Judge Gordon has incorporated exhibits 13 and 14 into the SAC, so I consider the remaining exhibits: 7-9, 15-20, 22-27, and 28. Again, he says, the Defendants do not explain why they seek judicial notice of these documents or what facts they want judicially noticed. The Jugde denies the Defendants' request for judicial notice as to these documents. For the same reason, he also denies Sinatra's request for judicial notice of the same type of documents. II. Motions to Dismiss A. Material Misrepresentations or Omissions The Defendants argue that the Plaintiffs failed to plead any actionable false statement because the alleged misrepresentations are inactionable puffery or are not pleaded with particularity. They primarily argue the Plaintiffs have not adequately alleged that the statements were false or misleading. There are seven categories of alleged misrepresentations or omissions, including (i) Wynn's and the Company's responses to the WSJ article; (ii) the Defendants made material misrepresentations in response to Elaine Wynn's cross claim; and (iii) the Company's code of conduct. Among other things, Judge Gordon holds that (i) the Plaintiffs have sufficiently alleged the falsity of Wynn's and the Company's responses to the WSJ article at this stage; (ii) the SAC has sufficiently pleaded the falsity of the Defendants made material misrepresentations in response to Elaine Wynn's cross claim; and (iii) the statements involving the code of conduct are not actionable because they are aspirational, and even if there were any affirmative misrepresentation, it could not be material. B. Whether the Post-Purchase Statements Are Actionable The Defendants argue that even if the statements in response to the WSJ article were false, they are not actionable because they were made after the Plaintiffs had purchased their shares in the Company. They argue that because reliance on a misstatement in connection with a purchase or sale of securities is an element of a Rule 10b-5 claim, actionable statements must occur before investors purchase the securities. The Plaintiffs respond that the post-purchase statements are actionable because they are suing "on behalf of a class of purchasers allegedly defrauded over a period of time by similar misrepresentations." They contend that the Company's "January 2018 denials continued the same theme as the 2016 Press Releases disputing the credibility of allegations of misconduct as being instigated by Elaine Wynn to gain an unfair edge in her divorce." Judge Gordon holds that at this early stage, the Plaintiffs have sufficiently alleged that the 2018 statements were part of a common scheme. They have alleged that the 2018 and 2016 statements deny some of the same misconduct allegations by portraying them as fabricated by Elaine Wynn. The issue raised by the Defendants may be more relevant at the class certification stage, and if so, it can be addressed at that time by naming an additional Plaintiff. But at this stage, the Judge denies the Defendants' motion to dismiss on this basis. C. Whether the Defendants Are the Maker of a Statement The Defendants next argue the SAC does not allege that any Individual Defendant was the maker of a statement under Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011), because the SAC does not allege with specificity that any Individual Defendant had ultimate authority over a statement. In Janus, the Supreme Court held that a person can be held liable under Section 10(b) of the Exchange Act only if he or she is the "maker of a statement." For purposes of the motions to dismiss, Judge Gordon finds that the SAC sufficiently alleges that Wynn, Sinatra, and Maddox made the Company's statements in the response to the cross claim and WSJ article, and Cootey also was a maker of the Company's statements in response to the cross claim. As to Wynn's statement in which he separately responded to the WSJ article, the SAC sufficiently alleges that Wynn made the statement, but it does not sufficiently allege that Sinatra and Maddox were makers of that statement. . For similar reasons, the Company is also liable as a maker of the other statements at issue. The Judge thus grants in part the Defendants' motions in that the SAC does not sufficiently allege that Sinatra and Maddox were makers of Wynn's response to the WSJ article, but he denies the motions with respect to the other statements. D. Scienter The Defendants argue that the Plaintiffs fail to plead scienter. The Plaintiffs "must prove that the defendant acted with scienter, a mental state embracing intent to deceive, manipulate, or defraud." Considering the allegations collectively, the Plaintiffs have pleaded a strong inference of scienter as to Wynn, Maddox, Sinatra, and Cootey. At this stage, the Plaintiffs have sufficiently alleged that Wynn, Maddox, Sinatra, and Cootey were aware of information contradicting their statements that denied misconduct allegations. The inference that these Defendants were aware of Wynn's alleged misconduct at the time of their statements is cogent and compelling. Less compelling are the defendants' preferred inferences: That Wynn, Sinatra, Maddox, and Cootey did not know about any alleged misconduct, even after they became aware of the Elaine Wynn cross claim, or that they simply did not know that these allegations needed to be disclosed despite years of experience as high-level casino executives and their status as qualifiers before gaming regulators. Similarly, Wynn's preferred inference does not prevail. He argues it is more plausible to infer that he "sought to resolve serious potential claims made against him in order to eliminate the distraction that allegations of that nature would necessarily entail, and so that he could continue about the business of running a successful company." It is at least as compelling to infer that he wanted to "eliminate the distraction" of allegations and "continue about the business of running" the Company, and in doing so, he sought to conceal and avoid disclosure of the allegations to eliminate distractions such as bad press, regulatory investigations, and civil lawsuits. Because the SAC alleges a strong inference of scienter as to Wynn, Sinatra, Maddox, and Cootey for the respective statements made by each of them, the Plaintiffs have adequately alleged the Company's scienter. Wynn was the CEO and chairman of the board; Sinatra was executive vice president, general counsel, and secretary of the board; Maddox was president; and Cootey was CFO, senior vice president, and treasurer. These senior positions are adequate to impute the scienter of these defendants to the Company. Judge Gordon thus denies the Defendants' motions to dismiss on scienter grounds. E. Loss Causation Finally, the Defendants argue that the Plaintiffs have not properly pleaded loss causation for several reasons. They primarily contend that the Plaintiffs' factual allegations are insufficient, the 2018 articles revealed misconduct allegations rather than fraud, and investors reacted to the impact of Wynn's alleged misconduct not to the Company's alleged fraud. The Plaintiffs respond that the Jan. 26, 2018 WSJ article and February 2018 announcement by the police regarding further allegations exposed the falsity of the Defendants' misrepresentations. Judge Gordon determines that the Plaintiffs have adequately pleaded loss causation. The SAC alleges that the WSJ article and the February 2018 police announcement reported on several allegations of Wynn's sexual misconduct, thus revealing the truth to the market, and stock prices dropped after each disclosure. The facts alleged in the SAC plausibly suggest that these showings can be made. Moreover, for purposes of the motions to dismiss, the Plaintiffs have plausibly alleged that the WSJ article and February announcement made the market aware of the Defendants' alleged cover-up of Wynn's alleged misconduct. The Judge denies the Defendants' motions to dismiss on this basis. F. Section 20(a) The Defendants move to dismiss the Section 20(a) claim because they argue that the Plaintiffs have not stated a primary claim under Section 10(b). Judge Gordon disagrees. The Defendants next argue that the Section 20(a) claims fail because the SAC insufficiently alleges that they controlled the Company's day-to-day operations during the class period. Similarly, Sinatra argues that the SAC fails to allege facts showing that she exercised actual power or control over any primary violator of Section 10(b), and she contends that she was a subordinate of the other defendants. The Plaintiffs respond that the SAC sufficiently alleges the Defendants' "ability to control the Company through their involvement in day-to-day affairs as officers." At this stage, the Plaintiffs have sufficiently pleaded the control person status of each remaining Individual Defendant: Wynn, Maddox, Sinatra, and Cootey. Wynn does not separately contest his control person status, but it is shown by allegations regarding his position as CEO and the "founder-led" nature of the Company. The SAC alleges that Sinatra, Maddox, and Cootey were officers involved in the Company's day-to-day affairs. Each was allegedly involved in preparing and making the alleged misrepresentations in this case. Sinatra contends that she was subordinate to the other defendants, but the Plaintiffs allege that she was a qualifier before the MGC, she participated in drafting Wynn's response to the WSJ article, and she had the ability to stop Wynn from changing the Company's sexual harassment policy to allow relationships between supervisors and employees. Judge Gordon thus denies the Defendants' motions to dismiss the control person liability claims. Summary Judge Gordon denies the motions with respect to statements made in response to Elaine Wynn's cross claim and the WSJ article. He grants the motions to dismiss as to statements regarding the code of conduct, the Company's full compliance with all applicable laws, regulatory and compliance risks, Wynn's unique skills and possible departure, and corporate culture and other topics. He also grants the motions to dismiss claims against Sinatra and Maddox with respect to Wynn's statement in response to the WSJ article because the Plaintiffs have not plausibly alleged they were makers of that statement. The Judge grants the Plaintiffs leave to amend only as to that statement by Wynn if they can adequately allege that Sinatra and Maddox were also makers of the statement. He does not grant the Plaintiffs leave to amend as to anything else. It is the second amended complaint. Judge Navarro's previous order identified deficiencies in alleging material misrepresentations, the Plaintiffs had an opportunity to provide further allegations if they had a basis to do so, and further amendment would be futile as to those statements. Conclusion Judge Gordon granted in part (i) the Defendants' motion to dismiss, (ii) Defendant Wynn's motion to dismiss, and (iii) Sinatra's motion to dismiss. These three motions are granted in part consistent with the Order. He granted (i) the Plaintiffs' motion for leave to file a surreply and (ii) the Defendants' motion for leave to file supplemental authority. The Plaintiffs may file an amended complaint by Sept. 3, 2021. A full-text copy of the Court's July 28, 2021 Order is available at https://tinyurl.com/yzkf239z from Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***