/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210920.mbx C L A S S A C T I O N R E P O R T E R Monday, September 20, 2021, Vol. 23, No. 182 Headlines 10000 INC: Web Site Not Accessible to Blind Users, Nisbett Alleges 31 EAST: Rene Sues Over Cooks' Unpaid Wages, Racial Discrimination 321 HENDERSON: Bid to Certify Class in Dockery RICO Suit Denied 321 HENDERSON: Court Grants Bids for Summary Judgment in RICO Suit 3M COMPANY: Davis Suit Alleges Complications From AFFF Products 3M COMPANY: Exposes Firefighters to Toxic Products, Thompson Says 3M COMPANY: Faces Scott Suit Over AFFF Products' Toxic Components 3M COMPANY: Lara Sues Over Toxic Exposure From AFFF Products 3M COMPANY: Romero Sues Over Injury Sustained From AFFF Products 3M COMPANY: Schroder Sues Over Harmful Effects of AFFF Products 6 SOUTH BROADWAY: Faces Rodriguez Wage-and-Hour Suit in S.D.N.Y. AAA GALVANIZING: Hancock BIPA Suit Removed to N.D. Illinois ADVANCE AUTO: Seeks Reconsideration on Partial Dismissal of Suit AERA ENERGY: Dickerson Wage-and-Hour Suit Goes to E.D. California AKAZOO S.A: Court Certifies Securities Class Suit ALLIANCE FOR HEALTH: Alvarado Appeals Suit Ruling to 2nd Cir. AMAZON.COM INC: W.D. Wash. Consolidates Hogan and Seberson Suits ANTHEM INC: Court Denies Bid to Strike Class Claims in Nixon Suit ATLANTIC COOLING: Fails to Pay Proper Wages, Daly Suit Alleges ATLANTIC CREDIT: Order Sustaining Demurrer to Monzon's Suit Flipped AXOS FINANCIAL: Bid to Nix Mandalevy Putative Class Suit Pending BAYSIDE INSURANCE: Ninth Cir. Affirms Summary Judgment in Moriarty BOEING CO: E.D. Texas Certifies Four Rule 23 Classes in Earl Suit BRINKER INT'L: Seeks Review of Court's Certification Orders CAPITAL BUILDING: Moreno Class Action Settlement Gets Final OK CARDINAL HEALTH: Bid to Nix 1199 SEIU Health Care Suit Pending CARDINAL HEALTH: Bid to Nix Indirect Purchasers Suit Pending CAREERSOURCE PALM: Fails to Provide Proper OT Wages, Hollis Says CASSAVA SCIENCES: Bernstein Liebhard Reminds of Oct. 26 Deadline CENTRA TECH: Rensel Renewed Bid for Class Certification OK'd CLEANSPARK INC: Bishins Class Action Underway in New York CONSOLIDATED EDISON: Ct. Enters Class Cert. Briefing Sched Order CORTEVA INC: Faces ERISA Suit Over Early Retirement Availment COSAN CONSTRUCTION: Underpays Construction Workers, Melendez Says COTY INC: Discovery in MLPF Suit Ongoing COTY INC: Garrett-Evans' Amended Complaint Dismissed COTY INC: Lewis Putative Class Suit Voluntarily Stayed DABELLA EXTERIORS: Court Enter Class Cert. Scheduling Order DELTA AIR: Lee Sues Over Race Discrimination, Sexual Harassment DOLLAR TREE: Coffee Mislabeling Consumer Class Suits Underway DOLLAR TREE: Smoked Almonds Related Class Suit Underway DOLLAR TREE: Zantac-Related Class Suits Dismissed DUARTE NURSERY: Lucero Sues Over Over Blind-Inaccessible Website ESKINA 214: Ortiz Suit Seeks Conditional Collective Status FAIRSHARE VACATION: Seeks Modification of Class Definition in Nolen FIA LIQUIDATION: Faces Brown Suit Over Illegal Phone Calls FIRST CHINESE: Guzman Appeals Suit Ruling to 2nd Cir. GENERAL MILLS: Burns Sues Over Misleading Fudge Brownie Mix GERON CORP: Discovery in IMbark-Related Suit Ongoing IDEANOMICS INC: Bid to Nix Putative Securities Class Suit Pending IDEANOMICS INC: Settlement in Principle Reached in Rudani Suit INTERARCH INC: McCann Seeks to Cetify Class of Plan Participants INVITATION HOMES: McCumber Suit Moved From D. Md. to N.D. Tex. IT WORKS MARKETING: Faces Suit Over Mislabeled Weigh Loss Products J. M. SMUCKER: Folgers Coffee Packaging-Related Suits Underway KANAWHA COUNTY, WV: Appeals Class Cert. Ruling in G.T. Class Suit KENNEDY ENDEAVORS: Maeda's "Sham" Deposition Testimony Stricken LANNETT CO: Appeals Class Cert. Ruling in Utesch Securities Suit LONDONBOY STATION: Mills Sues Over Salestaff's Unpaid Wages LOUISIANA: Giroir Files Bid for Class Certification LUCID GROUP: Merger Related Putative Class Suits Underway LYFT INC: Wins Bid for Summary Judgment in Independent Living Suit MDL 2836: Merck Appeals Ruling in Zetia Antitrust Suit MINIMO BATH: Brown Sues Over Illegal Phone Calls MITRE CORP: Klaskin Files ERISA Suit for Breach of Fiduciary Duties MOLEKULE INC: Sobel Sues Over Air Purifier Product's Deceptive Ad MOLINA HEALTHCARE: Faces Suit Over Unpaid Pathology Services MUDRICK CAPITAL: Bid for Preliminary Injunction in Bass Pending MUFG UNION: Kassab Seeks Class Cert. Bid Filing Extension NCB MANAGEMENT: Class Cert. Response Date Modified to Jan. 13, 2022 NET2SOURCE INC: Faces Keraachi Suit Over Contractors' Unpaid Wages NEW JERSEY: Bid for Writ of Habeas Corpus in Goodchild v. FCI Nixed NVIDIA CORP: Dismissal of Securities Class Suit Under Appeal OSI SYSTEMS: Longo Must File Class Certification Bid by Oct. 22 PAR ELECTRICAL: Bid to Remand Curley Suit to State Court Granted PERFORMANCE FOOD: Court Dismisses Perez Class Suit With Prejudice PETROQUEST ENERGY: Class Cert. Reply Deadline Extended to Nov. 8 PLBY GROUP: Scott Putative Class Suit Voluntarily Dismissed PROGENITY INC: Court Dismisses Securities Suit Without Prejudice PROGRESSIVE MGMT: Answer to Fernandez Complaint Due on Sept. 20 QUEST DIAGNOSTICS: Vargas Seeks to Certify Class & Subclass RESURGENT CAPITAL: Mack FDCPA Suit Dismissed Without Prejudice RIOT BLOCKCHAIN: Bid to Dismiss Takata Class Suit Still Pending ROBINHOOD FINANCIAL: Pinchasov Loses Class Certification Bid SANTA CLARA COUNTY, CA: Herships Can't Intervene in Chavez v. Jail SOFI TECHNOLOGIES: Appeal on Final Approval of Settlement Pending SOFI TECHNOLOGIES: Discovery in Juarez Putative Class Suit Ongoing SPARK NETWORKS: Dismissed from Cyber Security Related Suit SPECTRUM PHARMA: Wolf Haldenstein Reminds of November 1 Deadline STANTEC CONSULTING: Lopeman Sues Over Failure to Pay OT Wages TELIGENT INC: Continues to Defend Econazole Antitrust Litigation TELIGENT INC: Generic Drug Price-Fixing Suit Underway in Canada TELIGENT INC: Settlement Reached in Okla. Police Pension Fund Suit TEXAS: Court Denies Bid to Certify Inmates Class in Baughman v. DCJ TOTAL LIFE: Oct. 11 Extension of Class Cert. Filing Sought TRANS EXPRESS: $608K Class Deal in Pulliam Labor Suit Wins Final OK TRI-WIRE ENGINEERING: Esquilin Seeks to Certify FLSA Collective TRUCK INSURANCE: Final Approval of Class Settlement Sought TSR INC: Paskowitz Settlement Gets Final Approval TTE TECHNOLOGY: Joint Stipulation on Class Status Briefing Filed UNIT CORP: Deal Reached to Settle Chieftain Royalty Class Suit UNIT CORP: Settlement Deal Between Subsidiary & Cockerell Reached UNITED STATES: Brigida Suit Seeks Class Certification UNITED STATES: Nordby Appeals Case Dismissal Ruling UNITEDHEALTH GROUP: Court Tosses Sohmer Bid for Class Status VALLEY PROTEINS: Hollis Suit Seeks Rule 23 Class Certification WONDERFUL CITRUS: Peralta Bid for Attorney's Fees Tossed ZOSANO PHARMA: Consolidated Amended Carr Securities Suit Dismissed ********* 10000 INC: Web Site Not Accessible to Blind Users, Nisbett Alleges ------------------------------------------------------------------ KAREEM NISBETT, individually and on behalf of all other persons similarly situated, Plaintiff v. 10000, INC., d/b/a MAGIC MIND, Defendant, Case No. 1:21-cv-07425-AJN (S.D.N.Y., Sept. 3, 2021) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Website, www.magicmind.co, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. [BN] FUTURE LOOK, INC., d/b/a Elegatto is a men's accessory store based in California. [BN] The Plaintiff is represented by: Christopher H. Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10017-6705 Telephone: (212) 392-4772 E-mail: chris@lipskylowe.com 31 EAST: Rene Sues Over Cooks' Unpaid Wages, Racial Discrimination ------------------------------------------------------------------ CLAUDIO RENE individually and on behalf of others similarly situated, Plaintiff v. 31 EAST 21 EXPRESS INC., BEST THAI ON 8 CORP., RTC 18 CORP., 331 LEXINGTON RESTAURANT CORP. (All Doing Business As RHONG-TIAM EXPRESS), EXPRESS THAI ONE, INC., LUCKY THAI EXPRESS INC., PUN SAN LAAN INC, BEST THAI ON GRAMERCY INC., KARNCHANART SAE LOO, ANDY YANGEKSAKUL aka. ANDY YANG, MACHARVADEE PREMWONGSIRI and PUN SAN LAAN, Defendants, Case No. 1:21-cv-07435 (S.D.N.Y., Sept. 3, 2021) arises from the Defendants' alleged violation of the Fair Labor Standards Act, the New York State Labor Law, the New York City Human Rights Law, and the New York State Human Rights Law. According to the complaint, the Defendants failed to pay Plaintiff proper overtime compensation, failed to provide spread-of-hours payments, and failed to provide a wage notice and paystubs. The Plaintiff also brings this action to challenge Defendants' practice of national origin and ethnicity discrimination in the terms, conditions, and privileges of Plaintiff's employment in violation of the city law and state law. The Plaintiff has been employed by the Defendants to work as a cook within the last six years. He initially worked for the original owners and their owners and continued to work for the new owners upon the sale of the restaurant in 2019. The Defendants are corporations and their owners, which all own or owned Nana Thai Restaurant, which is a restaurant engaged in the business of serving food and drink to customers in Manhattan, New York.[BN] The Plaintiff is represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, NY 10007 Telephone: (212) 571-0700 Facsimile: (212) 505-2001 321 HENDERSON: Bid to Certify Class in Dockery RICO Suit Denied --------------------------------------------------------------- In the case, Dockery v. Heretick, et al., Civil Action No. 17-4114 (E.D. Pa.), Judge Chad F. Kenney of the U.S. District Court for the Eastern District of Pennsylvania denied the Plaintiff's Amended Motion for Class Certification. Procedural History In the civil Racketeer Influenced and Corrupt Organizations Act (RICO) case, Plaintiff Dockery alleges the existence of an unlawful scheme between companies who purchase future settlement annuity payments, an attorney who represented those companies in connection with such transactions, and other persons, to obtain annuities from unsophisticated annuitants on unfair terms. Plaintiff Dockery's left arm was severed in a piece of machinery in the 1980s. He brought a tort action against the manufacturer of that machine, which settled for an initial payment of $407,757 plus periodic payments for the rest of his life. Through this settlement, Dockery became the beneficiary of a Structured Settlement Annuity ("SSA"), which provided for monthly payments and specified payments every five years through 2034. Defendants Henderson, J.G. Wentworth Originations LLC, and Structured Settlement Purchaser John Doe Inc. 1-100 are companies that purchase SSA payment streams from annuity recipients ("Purchaser Defendants"). These Purchaser Defendants, as well as Seneca One Finance, Inc., purchased payment streams from SSAs issued to the Plaintiff and to the putative class members. Defendant Heretick, a Virginia attorney who serves in the Virginia House of Delegates, represented the Purchaser Defendants in connection with those purchases. Mr. Dockery filed the putative class action in September 2017, asserting 10 separate counts on behalf of himself and other beneficiaries who sold their annuities to the Purchaser Defendants for less than their present value. After a first round of motion to dismiss briefing and the filing of a RICO Case Statement, Judge Baylson, then the presiding Judge over this matter, granted the plaintiff leave to file an Amended Complaint. The Amended Complaint included a count alleging a RICO violation by Purchaser Defendants Seneca and Wentworth as well as attorney Heretick; three counts (counts II through IV) alleging a RICO violation against Heretick; an unjust enrichment claim; request for a constructive trust; and a breach of fiduciary duty claim. Dockery also filed a Revised RICO case statement. In response to the Court's order to amend Count I, the Plaintiff filed a Second Amended Complaint in March 2019 (SAC). The SAC specifies that Count I is pleaded against "all the Defendants" and clarifies that the Plaintiff is alleging three different "association-in-fact enterprises" ("Annuity Fraud Enterprises") between Heretick, each of the three Purchaser Defendants, and "additional persons, including but not limited to those persons identified as persons who falsely represented themselves to have provided independent advice to the sellers of SSA payments, and others who performed other services, including without limitation notarization services." The Court granted in part and denied in part the Defendants' motion to dismiss in a memorandum and order in May 2019. Specifically, the Court dismissed the unjust enrichment claim, breach of fiduciary duty claim, and claim seeking a constructive trust. Therefore, the remaining counts and the basis for seeking class certification are the RICO and conspiracy to violate RICO claims. Dockery then filed his first Motion for Class Certification under seal in March 2020, and deadlines were periodically stayed to continue discovery. The case was transferred to Judge Kenney in June 2020 after Judge Baylson recused himself from the case.In December 2020, Dockery requested leave to file an Amended Motion for Class Certification, which the Court granted. Discussion The Plaintiff alleges four claims on behalf of himself and others similarly situated. The first three allege violations of RICO pursuant to 18 U.S.C. Section 1962(c), and the fourth states a claim for conspiracy to violate RICO pursuant to Section 1962(d). The SAC alleges multiple enterprises engaged in the predicate act of mail fraud. Count I is based on three separate association-in-fact enterprises (referred to as "Annuity Fraud Enterprises") consisting of Heretick, a Purchaser Defendant, and "persons who falsely represented themselves to have provided independent advice to the sellers of SSA payments, and others who performed other services, including without limitation notarization services." Counts II through IV allege three separate enterprises consisting of the Purchaser Defendant (Defendant 321 Henderson, Defendant Wentworth, and former Defendant Seneca). In the conspiracy count of the SAC, the Plaintiff alleges a conspiracy consisting of Heretick, the Purchaser Defendants, and the additional persons who allegedly joined together to ensure the approval of SSA transfer petitions on favorable terms for the purchasers and in ways that would evade judicial detection. The Plaintiff seeks to certify a class consisting of all persons who: a. Were beneficiaries of one or more SSAs; b. Were parties to a proceeding in which Defendant Heretick represented JG Wentworth or 321 Henderson, Inc., sought judicial approval of a sale, by the beneficiary to one or the other of these two Defendants, of the beneficiary's right to a stream of payments from one or more SSAs, where i. the proceeding was filed and adjudicated in the Portsmouth, Virginia Circuit Court; ii. in which Defendant Heretick filed representations to the Court that the beneficiary had received independent advice when the basis for this representation was the fact that an Estoppel Letter had been issued by an Estoppel Lawyer relating to the transaction at issue in that proceeding; and iii. the petition for the sale was approved. Dockery also seeks to certify a subclass (which he calls the "Frequent Flyer" subclass), consisting of those class members who had Estoppel Letters in their file from any of the Estoppel Lawyers Robert Haley, Thomas Hassell, Geoffrey Hemphill, or Jad Sarsour, "with respect to each of whom it is clear that the 'client' made no independent choice to be represented by these attorneys, but instead Defendants chose the lawyers." A. Rule 23(b)(3) Requirements Because Dockery seeks certification under Rule 23(b)(3), he must show by the preponderance of the evidence that "questions of law or fact common to the class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Judge Kenney recognizes that the mere existence of individual issues do not defeat the predominance element. However, he finds that the numerous individual inquiries that proving class members' RICO claims would require -- including into interactions between lawyers and clients, with their attendant privilege issues -- for both liability and timeliness issues, individual issues necessarily predominate over any common to the class. Therefore, for this reason alone, the Judge holds that the class certification is not warranted. The Judge also finds that a class action is not superior because the number of individual inquiries that would be necessary in adjudicating the class action claim would render the class action unmanageable. Dockery asserts that the action would be manageable because "the proof will not center around the Plaintiff's individual experiences, but rather on the Defendant's program." As a general matter, that may be true for RICO claims, the Judge holds. But for this claim, where individual inquiries are necessary at minimum to determine the predicate act of mail fraud, the enterprise element, and the timeliness of the class' claims for every class member, any class action will quickly become unmanageable. Mr. Dockery's arguments do not persuade Judge Kenney otherwise. He asserts that the expense involved in litigating this RICO claim -- the four experts, thousands of pages of documents, and multiple depositions -- make it unrealistic to litigate on an individual basis because the costs of litigating vastly outweigh the potential recovery available. Thus, the Judge finds that the costs of litigating this RICO claim do not render a class action superior. His conclusion is further solidified by the fact that this particular RICO claim would involve numerous individual inquiries and attendant mini-trials if conducted as a class-action, which undermines Dockery's cost-saving argument. While the cost of prosecuting a claim may be extreme, and certain aspects of the cause of action may need to be proven in multiple cases, the Judge nonetheless concludes that a class action is not a superior method of adjudicating the RICO claims for the reasons he stated. B. Rule 23(a) Requirements In order for a class to be certified, the named plaintiff must also establish that all four prerequisites of Rule 23(a) are satisfied. Rule 23(a) provides: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) The class is so numerous that joinder of all members is impracticable [numerosity]; (2) There are questions of law or fact common to the class [commonality]; (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. First, Judge Kenney finds that there is enough evidence in the record to allow the Court to make a factual finding in support of numerosity. Second, because the Proposed Classes fail under the predominance inquiry, the Judge need not determine whether the lower threshold of commonality is met. Third, the Judge need not consider whether Dockery's claim is typical of the class. Finally, based on the factual scenario specific to Dockery, he is subject to a statute-of-limitations defense much stronger than members of the putative class who may have actually consulted with Estoppel Lawyers. To be sure, the other class members may be time-barred, but their likelihood of success is greater than Dockery's. For the reason, Dockery is not an adequate representative. Conclusion Because Mr. Dockery cannot satisfy each applicable requirement of Rule 23, his Amended Motion for Class Certification is denied. An appropriate order will follow. A full-text copy of the Court's Sept. 1, 2021 Memorandum is available at https://tinyurl.com/2t75chsy from Leagle.com. 321 HENDERSON: Court Grants Bids for Summary Judgment in RICO Suit ------------------------------------------------------------------ In the case, Dockery v. Heretick, et al., Civil Action No. 17-4114 (E.D. Pa.), Judge Chad F. Kenney of the U.S. District Court for the Eastern District of Pennsylvania grants the Defendants' Motions for Summary Judgment. Background In this civil Racketeer Influenced and Corrupt Organizations Act case, the Plaintiff alleges the existence of an unlawful scheme between companies who purchase future structured settlement annuity payments, an attorney who represented those companies in connection with such transactions, and other persons to obtain structured settlement payments from unsophisticated beneficiaries on unfair terms. Parties to a lawsuit sometimes use structured settlement annuities to settle their claims. Under such settlements, the plaintiff receives compensation over time instead of in a single lump sum at the time of the settlement. However, the plaintiffs who receive such annuities sometimes wish to receive some of their money before it is due to be paid. While their reasons vary, beneficiaries may want to use the money due to them to pursue an education, start a business, pay off a mortgage, or pay down debt. Companies like J.G. Wentworth S.S.C. Limited Partnership and 321 Henderson Receivables Origination ("Purchaser Defendants") are engaged in the business of providing immediate cash payments to beneficiaries of structured settlement annuities in exchange for the right to receive a beneficiary's future structured settlement annuity payments. Defendant Stephen Heretick is J.G. Wentworth's attorney. Until approximately 2009, the Purchaser Defendants required all purchasers nationwide to hire an attorney to review the transaction with them and sign a letter confirming they had provided advice. The Purchase Agreements involved in the case stated that the seller "must retain the services of an attorney and deliver an opinion of your attorney about the sale of assigned assets to us in a form acceptable to us." Wentworth referred to these letters as "Estoppel Letters." At the time of the policy change, Wentworth understood that some customers wanted to waive the option of receiving independent professional advice because they wanted to "move through the transaction as seamlessly as possible." Plaintiff Larry G. Dockery became a beneficiary of a structured settlement in 1989 after he lost his left arm in a work accident. He received an immediate payment of over $400,000, recuring monthly payments for 30 years of $1,200 a month, compounding annually, and increasing periodic lump sum payments. Mr. Dockery filed the putative class action in September 2017, asserting 10 separate counts on behalf of himself and other beneficiaries who sold their annuities to the Purchaser Defendants for less than their present value. After a first round of motion to dismiss briefing and the filing of a RICO Case Statement, Judge Baylson, then the presiding Judge over this matter, granted Dockery leave to file an Amended Complaint. The Amended Complaint included a count alleging a RICO violation by Purchaser Defendants Seneca and Wentworth as well as attorney Heretick; three counts (counts II through IV) alleging a RICO violation against Heretick; an unjust enrichment claim; request for a constructive trust; and a breach of fiduciary duty claim. Dockery also filed a Revised RICO case statement. In response to the Court's order to amend Count I, Dockery filed a Second Amended Complaint in March 2019 (SAC). The SAC specifies that Count I is pleaded against "all defendants" and clarifies that Dockery alleges three different "association-in-fact enterprises" ("Annuity Fraud Enterprises") between Heretick, each of the Purchaser Defendants, and "additional persons, including but not limited to those persons who falsely represented themselves to have provided independent advice to the sellers of SSA payments, and others who performed other services, including without limitation notarization services." The Court granted in part and denied in part the Defendants' motion to dismiss in a memorandum and order in May 2019. The remaining counts and the basis for seeking class certification were the RICO and conspiracy to violate RICO claims. Dockery then filed his first Motion for Class Certification under seal in March 2020, and deadlines were periodically stayed to continue discovery and because of the COVID-19 pandemic. The case was transferred to Judge Kenney in June 2020 after Judge Baylson recused himself from the case. Judge Kenney received briefing and heard argument on the Motion for Class Certification. He has also received briefing on the Purchaser Defendants' and Heretick's Motions for Summary Judgment. Judge Kenney denied class certification in a memorandum and order. Discussion The first three counts of the complaint assert violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) pursuant to 18 U.S.C. Section 1962(c), and the fourth alleges conspiracy to violate RICO pursuant to Section 1962(d). A violation of section 1962(c) requires "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." A plaintiff must also satisfy RICO's standing provision, which requires a plaintiff to be "injured in his business or property by reason of a RICO violation." To satisfy this requirement, a RICO plaintiff must prove an injury to his or her business or property constituting a "concrete financial loss" and that the defendant's RICO violations proximately caused his or her injury. The Defendants claim that summary judgment is proper on all counts. They argue that Dockery cannot demonstrate a legally viable RICO association-in-fact enterprise, prove the substantive elements of mail/wire fraud, or prove an injury to his business or property that was proximately caused by racketeering activity. And because the substantive RICO claims fail, the conspiracy to violate RICO claim must also fail. The Defendants also argue that Dockery's claims are barred by the statute of limitations, that he is judicially estopped from bringing them, and that his claims are barred by the doctrine of unclean hands. A. Counts I-IV, Violations of Section 1262(c) of the RICO Act Judge Kenney begins by addressing whether Dockery has shown a genuine dispute of material fact as to the elements of his RICO claim. 1. Racketeering Activity A RICO plaintiff must prove that defendants engaged in a pattern of "racketeering activity," i.e., "predicate acts." Mr. Dockery premises his evidence of mail fraud on the alleged misrepresentations that Heretick made on behalf of the Purchaser Defendants to the Portsmouth court. Specifically, he claims that the following statement Heretick made in the petitions he submitted to the Portsmouth court for his 2003 through 2009 transactions was false. Judge Kenney first holds that the transferor/payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer. As a general matter, advising someone to seek advice is not mutually exclusive with requiring someone to seek such advice in order to proceed with a transaction. Moreover, the disclosures in Dockery's purchase agreements demonstrate that Heretick's representation was not false. The statement is otherwise not a misrepresentation. As long as Dockery is advised to consult any of those types of professionals, he has been advised to seek "independent professional advice" within the meaning of the statute. Next, the Judge finds that Dockery "has received such advice reflected in the letter of his legal counsel." Heretick's statement in the petition that Dockery received "independent professional advice" was not a representation that Dockery had been advised by lawyers free from conflicts of interest. So, it was accordingly not a misrepresentation. Heretick's statement only reflects that Dockery was advised by lawyers. Because Dockery has failed to demonstrate a genuine dispute of material fact about the racketeering activity he alleges, summary judgment is warranted. 2. Injury by Reason of a RICO Violation While the inquiry may end because Dockery has failed to establish the element of racketeering activity, Jdge Kenney nonetheless address an independent reason that summary judgment is proper: Dockery's failure to demonstrate that his alleged injuries were proximately caused by Defendants' racketeering activity. To succeed on a RICO claim, a plaintiff must show that the RICO violation was the but for and proximate cause of a tangible injury to body or property. Dockery claims that he was injured by receiving a below-market rate for his sale. He argues that Heretick's misrepresentations in the petitions he filed with the Court proximately caused his injury because the Court relied on Heretick's misrepresentations to make its finding and approve the sale with an inappropriately high discount rate. Judge Kenny holds that the lack of evidence of third-party reliance is a fatal flaw. He explains that when a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiff's injuries." Nothing in the record shows that the alleged violation, Heretick lying to the Portsmouth court in his petitions, led directly to Dockery's transaction with allegedly unfair terms being approved. For the reasons he stated, Judge Kenney holds that Dockery has failed to demonstrate a genuine issue of material fact that the Court relied on Heretick's representations. Summary judgment to the Defendants on Dockery's RICO counts is therefore warranted on this ground, as well. B. Count V, Conspiracy to Violate RICO Count V of the SAC brings a claim against the Defendants for violation of 18 U.S.C. Section 1962(d) of RICO for conspiracy to violate Section 1962(c) of the statute. A Section 1962(d) claim based on a conspiracy to violate a separate section of the RICO Act fails as a matter of law if the substantive claim under the other subsection fails. Because Dockery's RICO claims under Section 1962(c) fail as described, his conspiracy to violate Section 1962(c) claim also fails. Conclusion Based on the foregoing, Judge Kenney concludes that Dockery has failed to demonstrate a genuine dispute of material fact for his RICO and conspiracy claims. Accordingly, summary judgment is granted to the Purchaser Defendants and Heretick. An appropriate order will follow. A full-text copy of the Court's Sept. 1, 2021 Memorandum is available at https://tinyurl.com/f9hbn8 from Leagle.com. 3M COMPANY: Davis Suit Alleges Complications From AFFF Products --------------------------------------------------------------- LINDA DAVIS, as Personal Representative/Administrator/Executor of the Estate of WILLIAM MAHLON DAVIS JR., deceased, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a GE Interlogix, Inc., Defendants, Case No. 2:21-cv-02971-RMG (D.S.C., September 15, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from personal injury and death resulting from the Decedent's alleged exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and firefighter trainees, including the Decedent, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. Due to inadequate warning, the Decedent was exposed to toxic chemicals and was diagnosed with kidney cancer and bladder cancer, the suit says. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 3M COMPANY: Exposes Firefighters to Toxic Products, Thompson Says ----------------------------------------------------------------- HENRY LLOYD THOMPSON, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a GE Interlogix, Inc., Defendants, Case No. 2:21-cv-02980-RMG (D.S.C., September 15, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The Plaintiff seeks to recover compensatory and punitive damages arising out of serious medical conditions and complications sustained as a direct result of his exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS at various locations during the course of his training and firefighting activities. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products. Further, the Defendants failed to warn public entities and firefighter trainees, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products, or firefighters employed by either civilian and/or military employers that use of and/or exposure to the Defendants' AFFF products containing PFAS and/or its precursors would pose a danger to human health. Due to inadequate warning, the Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition, the suit asserts. As a result of the Defendants' alleged omissions and misconduct, the Plaintiff was diagnosed with kidney and prostate cancer. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 3M COMPANY: Faces Scott Suit Over AFFF Products' Toxic Components ----------------------------------------------------------------- SAMUEL JOHNSON SCOTT SR., individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a GE Interlogix, Inc., Defendants, Case No. 2:21-cv-02976-RMG (D.S.C., September 15, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from the Defendants' failure to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS, which are highly toxic and carcinogenic chemicals. The Defendants' PFAS-containing AFFF products are dangerous as PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. Further, the Defendants failed to warn public entities, firefighter trainees who they knew would foreseeably come into contact with their AFFF products, or firefighters employed by either civilian and/or military employers that use of and/or exposure to the Defendants' AFFF products containing PFAS and/or its precursors would pose a danger to human health. Due to inadequate warning, the Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition. The Plaintiff relied on the Defendants' instructions as to the proper handling of the products, the suit says. As a result of the Defendants' alleged omissions and misconduct, the Plaintiff was diagnosed with prostate cancer due to his exposure to Defendants' PFAS-containing AFFF products during the course of his training and firefighting activities. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 3M COMPANY: Lara Sues Over Toxic Exposure From AFFF Products ------------------------------------------------------------ DIANA LARA, as Personal Representative/Administrator/Executor of the Estate of ERNESTO DURAZO JR., deceased, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a GE Interlogix, Inc., Defendants, Case No. 2:21-cv-02973-RMG (D.S.C., September 15, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities, military and/or civilian firefighters, including the Decedent, who they knew would foreseeably come into contact with their AFFF products. The Decedent used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. The Decedent relied on the Defendants' instructions as to the proper handling of the products, the suit says. As a result of the Defendants' alleged omissions and misconduct, the Decedent was diagnosed with kidney cancer. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 3M COMPANY: Romero Sues Over Injury Sustained From AFFF Products ---------------------------------------------------------------- RICARDO ROMERO JR., individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a GE Interlogix, Inc., Defendants, Case No. 2:21-cv-02981-RMG (D.S.C., September 15, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from personal injury sustained by the Plaintiff as a result of his alleged exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and firefighter trainees, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. Due to inadequate warning, the Plaintiff was exposed to toxic chemicals and was diagnosed with testicular cancer, the suit asserts. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 3M COMPANY: Schroder Sues Over Harmful Effects of AFFF Products --------------------------------------------------------------- PAUL JOHN SCHRODER, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a GE Interlogix, Inc., Defendants, Case No. 2:21-cv-02974-RMG (D.S.C., September 15, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from personal injuries sustained by the Plaintiff as a result of his alleged exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and firefighter trainees, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. Due to inadequate warning, the Plaintiff was exposed to toxic chemicals and was diagnosed with prostate cancer, the suit says. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 6 SOUTH BROADWAY: Faces Rodriguez Wage-and-Hour Suit in S.D.N.Y. ---------------------------------------------------------------- ISRAEL RODRIGUEZ, individually and on behalf of others similarly situated, Plaintiff v. 6 SOUTH BROADWAY CORP d/b/a RIVER CITY GRILLE and ROBERT MANZI, Defendants, Case No. 7:21-cv-07438 (S.D.N.Y., Sept. 3, 2021) arises from the Defendants' alleged violations of the Fair Labor Standards Act and the New York Labor Law by failing to pay overtime compensation, minimum wages and spread-of-hours pay; failing to provide a wage notice and pay stubs; and failing to timely pay Plaintiff for the last week of his employment. Mr. Rodriguez worked for the Defendants as a cook from approximately 2001 until March 21, 2021, when he resigned because the Defendants failed to pay him properly. 6 South Broadway Corp. owns and operates the restaurant "River City Grille" located in New York.[BN] The Plaintiff is represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, NY 10007 Telephone: (212) 571-0700 Facsimile: (212) 505-2001 AAA GALVANIZING: Hancock BIPA Suit Removed to N.D. Illinois ----------------------------------------------------------- The case styled JOHN HANCOCK, individually and on behalf of all others similarly situated v. AAA GALVANIZING - PEORIA, INC. and AZZ INC., Case No. 2021L000612, was removed from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois, Law Division, to the U.S. District Court for the Northern District of Illinois on September 15, 2021. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:21-cv-04890 to the proceeding. The case arises from the Defendants' alleged violations of the Biometric Information Privacy Act by: (1) failing to develop and/or make public a written policy to the Plaintiff and Class members; (2) collecting, capturing, obtaining and storing their biometric identifiers and/or information without informing them in writing and obtaining a written release; and (3) failing to store their biometric data using the reasonable standard of care within the Defendants' industry and/or in a manner that is the same as or more protective than the manner in which they store, transmit, and protect other confidential and sensitive information. AAA Galvanizing - Peoria, Inc. is a metal finisher based in Illinois. AZZ Inc. is an electric lighting equipment manufacturing company, headquartered in Fort Worth, Texas. [BN] The Defendants are represented by: William F. Dugan, Esq. Remy D. Snead, Esq. BAKER & MCKENZIE LLP 300 E. Randolph St., Suite 5000 Chicago, IL 60605 Telephone: (312) 861-8000 Facsimile: (312) 861-2899 E-mail: william.dugan@bakermckenzie.com remy.snead@bakermckenzie.com ADVANCE AUTO: Seeks Reconsideration on Partial Dismissal of Suit ---------------------------------------------------------------- Advance Auto Parts, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 24, 2021, for the quarterly period ended July 17, 2021, that the company moved for reconsideration of the order denying in part its motion to dismiss, is pending. On February 6, 2018, a putative class action on behalf of purchasers of the company's securities who purchased or otherwise acquired their securities between November 14, 2016 and August 15, 2017, inclusive was commenced against the company and certain of its current and former officers in the U.S. District Court for the District of Delaware. The plaintiff alleges that the defendants failed to disclose material adverse facts about the company's financial well-being, business relationships, and prospects during the alleged Class Period in violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. On February 7, 2020 the court granted in part and denied in part the company's motion to dismiss. The surviving claims are subject to discovery. On November 6, 2020, the court granted the plaintiff's motion for class certification. The company strongly dispute the allegations of the complaint and will continue to defend the case vigorously. On March 15, 2021, the company moved for reconsideration of the order denying in part its motion to dismiss. This motion is pending before the court. On February 17, 2021, a derivative complaint filed on April 29, 2020 in the U.S. District Court for the District of Delaware was dismissed with prejudice. A second derivative claim filed on August 13, 2020 in the Delaware Court of Chancery was voluntarily dismissed on March 30, 2021. Advance Auto Parts, Inc. provides automotive replacement parts, accessories, batteries, and maintenance items for domestic and imported cars, vans, sport utility vehicles, and light and heavy duty trucks. Advance Auto Parts, Inc. was founded in 1929 and is based in Raleigh, North Carolina. AERA ENERGY: Dickerson Wage-and-Hour Suit Goes to E.D. California ----------------------------------------------------------------- The case styled AARON DICKERSON, individually and on behalf of all others similarly situated v. AERA ENERGY, LLC and DOES 1 through 50, inclusive, Case No. BCV-21-101646, was removed from the Superior Court of the State of California County of Kern to the U.S. District Court for the Eastern District of California on September 16, 2021. The Clerk of Court for the Eastern District of California assigned Case No. 1:21-cv-01384-NONE-JLT to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California Business and Professions Code including failure to pay minimum wages, failure to pay overtime, failure to provide all mandated meal periods or pay additional wages in lieu thereof, failure to authorize and permit all mandated rest periods or pay additional wages in lieu thereof, failure to issue accurate wage statements, failure to timely pay wages due at termination, and unfair competition. Aera Energy, LLC is a natural gas, oil exploration and production company, headquartered in Bakersfield, California. [BN] The Defendant is represented by: Adam Levin, Esq. Jeremy Mittman, Esq. Stephen Franz, Esq. MITCHELL SILBERBERG & KNUPP LLP 2049 Century Park East, 18th Floor Los Angeles, CA 90067-3120 Telephone: (310) 312-2000 Facsimile: (310) 312-3100 AKAZOO S.A: Court Certifies Securities Class Suit ------------------------------------------------- In the class action lawsuit RE AKAZOO S.A. SECURITIES LITIGATION, Case No. 1:20-cv-01900-BMC (E.D.N.Y.), the Hon. Judge Brian M. Cogan entered final order and partial judgment as follows: -- Class Certification for Settlement Purposes The Court affirms its determinations in the Preliminary Approval Order certifying, for the purposes of the Settlement only, the Action as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class consisting of: "all persons or entities who or which: (I) purchased or otherwise acquired the publicly traded securities of Akazoo between January 24, 2019 and May 21, 2020, both dates inclusive, including but not limited to, those who purchased or acquired Akazoo securities pursuant to the private placement offering agreement, and were damaged thereby; (ii) held common stock of Modern Media Acquisition Corp. as of August 9, 2019, eligible to vote at MMAC’s August 28, 2019 special meeting, and were damaged thereby; and/or (iii) purchased or otherwise acquired Akazoo common stock pursuant or traceable to the Company's registration statement and prospectus issued in connection with the September 2019 merger of MMAC and Old Akazoo, and were damaged thereby." Excluded from the Settlement Class are the Susman Godfrey PIPE, SPAC, and Retail Investors, the Additional Settling Parties, EarlyBirdCapital, RSM US LLP, Grant Thornton, Deloitte, BDO, AGK Partners, the Akazoo Insurers, and Cowen Investments; Crowe; the Settling Defendants and their Immediate Family members; Zervos and his Immediate Family members; the past and current executive officers and directors of Akazoo; the past and current officers, directors and partners of Crowe; any trust of which Zervos or any Settling Defendant is the settlor or which is for the benefit of Zervos or any Settling Defendant; the legal representatives, heirs, predecessors, successors, affiliates, parents, subsidiaries, officers, directors, members, managers, partners, general partners, or assigns of any excluded person or entity; and any entity in which any of the above excluded persons have or had a majority ownership interest. -- Rule 11 Findings The Court finds and concludes that the Settling Parties and their respective counsel have complied in all respects with the requirements of Rule 11 of the Federal Rules of Civil Procedure in connection with the institution, prosecution, defense, and settlement of the Action. -- Termination of Settlement If the Settlement is terminated as provided in the Stipulation or the Effective Date of the Settlement otherwise fails to occur, this Final Judgment shall be vacated, rendered null and void and be of no further force and effect, except as otherwise provided by the Stipulation, and this Final Judgment shall be without prejudice to the rights of the Settling Parties, and the Settling Parties shall revert to their respective positions in the Class Actions as of immediately prior to the execution of the Stipulation, as provided in the Stipulation. -- Entry of Final Judgment There is no just reason for delay in the entry of this partial Final Judgment and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Akazoo S.A. operates as a music streaming company. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3lpqP0m at no extra charge.[CC] ALLIANCE FOR HEALTH: Alvarado Appeals Suit Ruling to 2nd Cir. ------------------------------------------------------------- Plaintiff Eugenia Barahona Alvarado took an appeal from an order entered in the lawsuit styled EUGENIA BARAHONA ALVARADO, individually and on behalf of all other persons similarly situated v. ALLIANCE FOR HEALTH, INC., Case No. 20-cv-3930, in the U.S. District Court for the Southern District of New York (New York City). Ms. Alvarado is a former home health aide, who brought a lawsuit in state court against her former employer alleging violation of New York State and New York City Labor Law, individually and on behalf of a putative class. As reported in the Class Action Reporter on June 15, 2021, Judge John G. Koeltl of the U.S. District Court for the Southern District of New York recertified the Remand Order entered on Feb. 18, 2021, for immediate appeal to the Court of Appeals for the Second Circuit. The Plaintiff had moved for a new order, certifying for interlocutory appeal, the Court's Opinion and Order, dated Feb. 18, 2021, denying her motion to remand. The Court previously issued an Order, on May 7, 2021, certifying the Remand Order for interlocutory appeal, pursuant to 28 U.S.C. Section 1292(b). By letter, dated May 26, 2021, the counsel for the Plaintiff informed the Court that the counsel failed to file the Plaintiff's application with the Court of Appeals within 10 days from the entry of the Certification Order, as required by 28 U.S.C. Section 1292(b). The counsel for the Plaintiff stated that this failure occurred because the deadline was incorrectly calendared by their firm, and counsel has offered further justifications for the oversight. Accordingly, Judge Koeltl granted the Plaintiff's request and recertified the Remand Order for immediate appeal to the Court of Appeals for the Second Circuit. He certified that the controlling question of law listed warrants immediate appeal pursuant to 28 U.S.C. Section 1292(b). The cases will remain stayed, pending a decision from the Court of Appeals, Judge Koeltl added. The appellate case is captioned as Alvarado v. Alliance for Health, Inc., Case No. 21-2107, in the United States Court of Appeals for the Second Circuit, filed on September 1, 2021.[BN] Plaintiff-Appellant Eugenia Barahona Alvarado, individually and on behalf of all other persons similarly situated, is represented by: LaDonna M. Lusher, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street New York, NY 10004 Telephone: (212) 943-9080 E-mail: llusher@vandallp.com Defendant-Appellee Alliance for Health, Inc. is represented by: Felice B. Ekelman, Esq. JACKSON LEWIS P.C. 666 3rd Avenue New York, NY 10017 Telephone: (212) 545-4005 E-mail: Felice.Ekelman@jacksonlewis.com AMAZON.COM INC: W.D. Wash. Consolidates Hogan and Seberson Suits ---------------------------------------------------------------- In the cases, ANGELA HOGAN, on behalf of herself and others similarly situated, Plaintiff v. AMAZON.COM, INC., Defendant; and ANDREA SEBERSON, Plaintiff v. AMAZON.COM, INC., Defendant, Case Nos. 2:21-cv-00996-RSM, 2:21-cv-01009-RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, entered a stipulated order for consolidation, filing of consolidated amended complaint, and schedule for answer or motion to dismiss. The proposed class actions ("Hogan and Seberson") each allege antitrust claims against Amazon based on alleged overcharges to consumers caused by Amazon allegedly tying a Seller's access to the "Buy Box" on the Amazon website to the Seller's purchase of Amazon's fulfillment services. The Plaintiffs in both Hogan and Seberson have identified their cases as related to two other proposed class actions pending before the Court, which have since been consolidated into a single case under the caption De Coster, et al. v. Amazon.com, Inc., 2:21-cv-693 ("De Coster"). On Aug. 5, 2021, the counsel for plaintiffs in De Coster filed motions to consolidate Hogan and Seberson into the De Coster Action. The Plaintiffs in Hogan and Seberson oppose consolidation with De Coster. Amazon has not taken a position on consolidation of Hogan and Seberson with De Coster. Briefing on the De Coster consolidation motion has now closed. Without regard to the Court's resolution of the pending motion to consolidate Hogan and Seberson into De Coster, the Plaintiffs and Amazon agree that consolidation of the Hogan and Seberson Actions is appropriate because the actions involve materially similar allegations. Further, because Amazon intends to file a motion to dismiss the Hogan and Seberson complaints, the parties have discussed and agreed upon a briefing schedule to govern Amazon's anticipated motion to dismiss. Based on the foregoing, the parties stipulate and agree as follows: a. If the Court denies the pending motions to consolidate Hogan and Seberson with De Coster, the Plaintiffs will file an amended class action complaint consolidating Hogan and Seberson within 14 days of entry of the Court's order denying the motions; b. Amazon will file its motion to dismiss (or answer) within 45 days after the Plaintiffs file their consolidated amended class action complaint; c. The Plaintiffs' opposition to any motion to dismiss by Amazon will be due 45 days after the filing of Amazon's motion to dismiss; and d. Amazon will have 30 days to file its reply brief on its motion to dismiss. Pursuant to the parties' stipulation, Judge Martinez so ordered. A full-text copy of the Court's Sept. 1, 2021 Order is available at https://tinyurl.com/5sh8xs36 from Leagle.com. ANTHEM INC: Court Denies Bid to Strike Class Claims in Nixon Suit ----------------------------------------------------------------- In the case, ROBERT NIXON, et al., Plaintiffs v. ANTHEM, INC., et al., Defendants, Civil No. 3:19-cv-00076-GFVT (E.D. Ky.), Judge Gregory F. Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky, Central Division, Frankfort, denied the Defendants' motion to strike the Plaintiffs' class allegations. Background The proposed class in the putative class action lawsuit alleges that Defendants Anthem, Inc. and Anthem UM improperly denied medical coverage for minimally invasive sacroiliac joint fusion surgery (MISIJF) by relying on internally created medical policy guidelines that classified the surgery as "investigational and not medically necessary" despite MISIJFs' approval by the FDA and widespread performance of the surgery across the United States. The Plaintiffs and the proposed class members are individuals who are or were covered by health plans administered by Anthem, Inc., the parent company of Co-Defendant Anthem UM Services, Inc. The Plaintiffs request certification of the class action and the following relief on behalf of themselves and others similarly situated: (1) an order that MISIJF is medically necessary instead of investigational and has been at all times within the appropriate limitations period; (2) an order or injunction requiring Defendants to reevaluate and reprocess the MISIJF claims of all class members using appropriate criteria; (3) an order or injunction requiring Defendants to notify all class members of the reevaluation and reprocessing of the MISIJF claims; (4) an order or injunction preventing Defendants from relying on other specific reasons or plan provisions not recited in their denial letters; (5) an accounting and disgorgement of profits from improperly denying MISIJF claims; (6) attorney's fees, costs, prejudgment and post judgment interest; and (7) any other equitable remedy the Court deems to be appropriate. The Complaint defines the class as the following: All persons covered under Anthem Plans, governed by ERISA, whether self-funded or fully insured, whose request(s) for minimally invasive sacroiliac joint fusion surgery were denied by Anthem and/or Anthem UM at any time during the applicable limitations period pursuant to Anthem's Medical Policy on Sacroiliac Joint Fusion, SURG.00127, on the bases that the surgery was investigational and/or not medically necessary. On Jan. 17, 2020, the Defendants filed a motion to dismiss for failure to state a claim. The Court denied in part and granted in part the Defendants' motion, finding that the Plaintiffs had failed to join certain necessary parties and giving the Plaintiffs 21 days to file an amended complaint joining those parties, and denying the Defendants' motion in all other respects. The Plaintiffs filed a Second Amended Complaint against the Defendants on Sept. 8, 2020. On Jan. 29, 2021, the Defendants moved to strike the proposed class allegations, arguing that they do not comport with the requirements of Rule 23(a), Rule 23(b), and Article III standing. The Plaintiffs argue in their response that it would be premature to completely strike the class allegations because no discovery has yet taken place. Discussion The Defendants make the following four arguments, each of which will be addressed in turn: (1) the Plaintiffs' proposed class definition is flawed; (2) the Plaintiffs cannot establish commonality; (3) the Plaintiffs cannot satisfy any provision of Rule 23(b); and (4) the Plaintiffs' putative class seeks to include individuals who lack standing to sue. A. Judge Van Tatenhove begins with the Defendants' final argument, which is the issue of whether the Plaintiff is seeking to include individuals in the putative class who lack standing to sue. A plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought. The Plaintiffs seek to certify and represent a class of all persons covered under Anthem Plans governed by ERISA who had their requests for MISIJF surgery during the applicable limitations period denied pursuant to SURG.00127 on the basis that the surgery was designated as investigational and/or not medically necessary. The Defendants argue that the Plaintiffs include in their putative class "individuals whose plans are administered by entities that the named Plaintiffs do not have standing to sue." Specifically, they argue that the class as currently defined would include "plans administrated by a host of 'other subsidiary corporations' that 'act as claim administrators for Anthem Plans in other states'" which is not permissible. Ultimately, given that the potential ERISA class representatives have established individual standing to sue, Judge Van Tatenhove holds that their constitutional standing requirements have been met. To the extent there is a question about the potential class representatives' ability to represent other members of the class, that is a Rule 23 question and not a question of standing. In the case, the question of whether the class representatives are suitable to represent the putative class of members of other plans to which they do not belong is not a standing issue, but is rather a Rule 23 issue that would more appropriately be addressed after the parties have had the opportunity to engage in discovery. Thus, the Judge declines to limit the class at this time as the Defendants request. B. The Defendants also argue that the Plaintiffs' class definition is flawed. Although not explicitly mandated, Rule 23(a) requires a class to be sufficiently definite "so that it is administratively feasible for the court to determine whether a particular individual is a member." Although each case is unique, two important elements form the contours of a putative class: "(1) identification of a particular group that was harmed during a particular time frame, in a particular location, in a particular way; and (2) an order defining the class such that its membership may be ascertained in some objective manner." "For a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria." The test at this pre-discovery stage is facial sufficiency. The Defendants argue that the Plaintiffs' proposed class definition is flawed because the appropriate scope of certification discovery cannot be determined. Specifically, they argue that the class as defined includes health plans with varying limitation periods and accrual rules, which would require individual inquiries into the rules and limitations of each plan. The need for individual inquiries, the Defendants argue, means that the Plaintiffs' proposed definition is not readily ascertainable. In response, the Plaintiffs make three arguments: (1) It is unnecessary to review the individual plans' contractual limitations periods because a three-year statute of limitations applies to this alleged ERISA violation under 29 U.S.C. Section 1113(2) because the Plaintiffs allege the Defendants have breached fiduciaries duties under 29 U.S.C. Sections 1104(a), 1105, and 1133; (2) even if there was an issue regarding statutes of limitations, it would be a merit-based issue that should be determined after the class is certified; and (3) if this class is certifiable under Rule 23(b)(2) ascertainability is not required. After review, Judge Van Tatenhove finds that the Plaintiffs' proposed definition is—at least on its face -- readily ascertainable by reference to objective criteria. The class is limited to individuals who (1) are covered by an ERISA-based plan administered by Anthem; (2) submitted a request for approval of MISIJF; and (3) had that request denied after review by Anthem UM based on SURG.00127 during the limitations period. Facts are important, and at this point, the Judge has only the pleadings before him. He says, at this early stage in the litigation, it cannot be said that it is "impossible to certify the class as alleged regardless of the facts plaintiffs may be able to prove through discovery." However, "class certification does not preclude a defense based on the statute of limitations as to one or more class members." Because he finds that the proposed class definition is, at least on its face, readily ascertainable, Judge Van Tatenhove need not address the Plaintiffs' argument regarding the need to prove ascertainability under Rule 23(b)(2) at this time. Discovery may ultimately demonstrate that the class cannot be certified or that the class definition needs to be revised. However, without any discovery or other detailed evidence before the Court, striking the Plaintiffs' class allegations on this ground would be premature. C. The Defendants next argue that the Plaintiffs' allegations fail to establish commonality, which is required under Rule 23(a). They argue that the Plaintiffs cannot satisfy the commonality requirement because (1) the standard of review turns on individualized inquiries; (2) the determination of whether denial of MISIJF violations a particular class member's plan requires individualized analysis of the terms of each plan; (3) factual questions about the state of medical science regarding MISIJF are not common to the class as a whole; and (4) the challenged medical policy has changed over time and is therefore not common to the class. The Plaintiffs respond to each of the Defendants' arguments, alleging that none of them stand. In order for a class to be certified, there must be "questions of law or fact common to the class." This is because, where there are common questions of law or fact, "the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion under Rule 23." The commonality requirement is not stringent. "To meet the commonality requirement of Rule 23(a)(2), a party need not convince the Court that the common question or questions are the predominant questions in the case, but only that common questions do exist." Judge Van Tatenhove finds that (i) the Defendants have failed to demonstrate that in cases where there is a uniform practice across plans, such as the Plaintiffs allege, different standards of review apply; (ii) he agrees with the Plaintiffs and finds at this stage in the litigation that the Defendant's commonality argument based on changing scientific knowledge is without merit; and (iii) the Defendants have failed at this stage to demonstrate that it would "be impossible to certify the class as alleged, regardless of the facts plaintiffs may be able to prove through discovery. Therefore, the Judge declines to grant the Defendants' motion to strike on the issue of commonality. D. The Defendants' final argument is that the Plaintiffs cannot satisfy any of the three Rule 23(b) provisions. Class certification requires the Plaintiffs to satisfy one of the provisions of Rule 23(b). They specifically argue that Rule 23(b)(1) is inapplicable to Plaintiffs' class action, Rule 23(b)(2) is not appropriate due to the need for "individualized consideration of each class member's claim," and Rule 23(b)(3) is not suitable because the Plaintiffs "cannot satisfy Rule 23(b)(3)'s predominance requirement." The Plaintiffs, in response, argue that they have sufficiently pled the requirements for all three provisions of Rule 23(b). However, at this pre-discovery stage in the litigation, Judge Van Tatenhove finds that the "Plaintiffs have not yet specified what subsection of Rule 23(b) the class should be certified under," and granting the Defendants' motion to strike at this early stage in the litigation would therefore be premature. Given the Sixth Circuit's general admonition to defer the certification determination until after discovery, as well as the Supreme Court's instruction that a class certification should be subjected to a "rigorous," fact-sensitive review, the Judge holds that it is appropriate to decline to strike the Plaintiffs' class allegations at this time. Hence, the Defendants' motion to strike the Plaintiffs' class allegations will be denied at this stage. Resolution of this issue is deferred until the Plaintiffs' motion for class certification and after class discovery has taken place. The Judge presently takes no position on the merits of such a motion. Order Accordingly, and being sufficiently advised, Judge Van Tatenhove denied the Defendants' Motion to Strike the Class Allegations. A full-text copy of the Court's Sept. 1, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/33f68648 from Leagle.com. ATLANTIC COOLING: Fails to Pay Proper Wages, Daly Suit Alleges -------------------------------------------------------------- RADFORD DALY; and NEIL SIMPSON, individually and on behalf of all others similarly situated, Plaintiffs v. ATLANTIC COOLING AND TECHNOLOGY SERVICES LLC; JOHNSON STAFFING INC.; and TELSTON JOHNSON, Defendants, Case No. 1:21-cv-07409 (S.D.N.Y., Sept. 3, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiffs were employed by the Defendants as laborers. Atlantic Cooling Technologies And Services LLC was founded in 1979. The company's line of business includes providing general contracting services such as constructing heavy construction projects. [BN] The Plaintiffs are represented by: Robert McCreanor, Esq. LAW OFFICE OF ROBERT D. MCCREANOR, P.L.L.C. 245 Saw Mill River Road, Suite 106 Hawthorne, NY 10532 Telephone: (845) 202 1833 E-mail: rmccreanor@rdmclegal.com ATLANTIC CREDIT: Order Sustaining Demurrer to Monzon's Suit Flipped ------------------------------------------------------------------- In the case, CARLOS MONZON, Plaintiff and Appellant v. ATLANTIC CREDIT & FINANCE, INC., Defendant and Respondent, Case No. B302501 (Cal. App.), the Court of Appeals of California for the Second District, Division Eight, reverses the trial court's judgment sustaining a demurrer to Appellant Monzon's complaint based on an interpretation of Penal Code section 632.71 that has since been rejected by the California Supreme Court. Procedural Background Mr. Monzon filed a putative class action against Atlantic Credit for allegedly recording telephone calls unlawfully. In his operative complaint, Monzon alleged that Atlantic Credit contacted him via his cellular telephone in an attempt to collect a debt owed by his mother. Atlantic Credit recorded the calls without informing Monzon or obtaining his consent. Mr. Monzon asserted a single cause of action for violation of section 632.7. Under section 632.7, "every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, will be punished." Atlantic Credit demurred on the basis that Monzon failed to allege facts sufficient to constitute a violation of section 632.7. According to Atlantic Credit, such a violation requires the defendant both (1) intercept or receive a telephone communication without consent and (2) record the communication without consent. Monzon, however, did not allege Atlantic Credit intercepted or received the relevant communications without his consent. In opposition, Monzon argued that section 632.7 prohibits recording a phone call without consent, regardless of whether the recording is done by a party to the conversation or an interloper. In other words, a defendant who records a phone call without consent violates section 632.7, even if the defendant did not intercept or receive the communication without consent. The trial court agreed with Atlantic Credit's interpretation of section 632.7 and, on that basis, sustained its demurrer without leave to amend. Monzon timely appealed. Discussion On appeal, Monzon argues the trial court erroneously concluded section 632.7 applies only to nonparties to a phone call. Atlantic Credit responds that the court's interpretation is consistent with the text and legislative history of section 632.7, and applying the statute to parties would lead to absurd results. It also argues the rule of lenity counsels against any alternative interpretation. While the appeal was pending, the California Supreme Court decided Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, which holds section 632.7 forbids parties and nonparties to a phone call transmitted to or from a cellular or cordless telephone from recording the conversation without the consent of the other party or parties. The Supreme Court, in other words, rejected Atlantic Credit and the trial court's interpretation of section 632.7. The high court also explicitly rejected many of the arguments Atlantic Credit asserts in its respondent's brief. The Court of Appeals opines that Smith is directly on point and determinative of this appeal. It says, Monzon's operative complaint alleges that Atlantic Credit received communications he made using a cellular telephone, and, without his consent, recorded them. Under Smith, such allegations are sufficient to constitute a violation of section 632.7. As such, the trial court erred in sustaining Atlantic Credit's demurrer. Disposition The judgment is reversed. Mr. Monzon is awarded his costs on appeal. A full-text copy of the Court's Sept. 1, 2021 Opinion is available at https://tinyurl.com/22mxvhvw from Leagle.com. Law Offices of Todd M. Friedman, Todd M. Friedman, Adrian R. Bacon, and Thomas E. Wheeler -- twheeler@fbtlaw.com -- for the Plaintiff and Appellant. Baker McKenzie LLP, Edward D. Totino -- edward.totino@bakermckenzie.com -- and Benjamin W. Turner -- twheeler@fbtlaw.com -- for the Defendant and Respondent. AXOS FINANCIAL: Bid to Nix Mandalevy Putative Class Suit Pending ---------------------------------------------------------------- Axos Financial, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 26, 2021, for the fiscal year ended June 30, 2021, that the motion to dismiss the putative class action lawsuit styled Mandalevy v. BofI Holding, Inc., et al., is pending. On April 3, 2017, the Company, its Chief Executive Officer and its Chief Financial Officer were named defendants in a putative class action lawsuit styled Mandalevy v. BofI Holding, Inc., et al, and brought in United States District Court for the Southern District of California. The Mandalevy Case seeks monetary damages and other relief on behalf of a putative class that has not been certified by the Court. The complaint in the Mandalevy Case alleges a class period that differs from that alleged in the First Class Action, and that the Company and other named defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by failing to disclose wrongful conduct that was alleged in a March 2017 media article. The Mandalevy Case has not been consolidated into the First Class Action. On December 7, 2018, the Court entered a final order granting the defendants' motion and dismissing the Mandalevy Case with prejudice. Subsequently, the plaintiff filed a notice of appeal and the Court took the matter under advisement. On November 3, 2020, the Court issued a ruling affirming in part and reversing in part the District Court's Order dismissing the Class Action Second Amended Complaint. The defendants filed a petition for rehearing en banc on November 17, 2020, which petition was denied on December 16, 2020. The defendants filed a motion to dismiss the remanded complaint on February 19, 2021. No further updates were provided in the Company's SEC report. Axos Financial, Inc. operates as the holding company for BofI Federal Bank that provides consumer and business banking products in the United States. The company offers deposits products, including consumer and business checking, demand, savings, and time deposit accounts. Axos Financial, Inc. was incorporated in 1999 and is based in San Diego, California. BAYSIDE INSURANCE: Ninth Cir. Affirms Summary Judgment in Moriarty ------------------------------------------------------------------ In the case, MICHELLE L. MORIARTY, Individually, as Successor-In-Interest to Heron D. Moriarty, Decedent, on Behalf of the Estate of Heron D. Moriarty, and on Behalf of the Class, Plaintiff-Appellant v. BAYSIDE INSURANCE ASSOCIATES, INC., a California Corporation, Defendant-Appellee, and AMERICAN GENERAL LIFE INSURANCE COMPANY, a Texas Corporation; DOES, 1 thru 20 Inclusive, Defendants, Case No. 20-56139 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the district court's grant of summary judgment to Defendant-Appellee Bayside. Bayside was Plaintiff-Appellant Moriarty's husband's insurance agent when he purchased a life insurance policy from American General Life Insurance Company ("AGLIC") in September 2012, with Moriarty as the sole beneficiary. The policy's premiums went unpaid for several months in 2016, and the policy lapsed due to those unpaid premiums nine days before Moriarty's husband died. Ms. Moriarty brought a putative class action against AGLIC and professional negligence and negligent misrepresentation claims against Bayside. She contends that Bayside owed her "a general and special duty of care to investigate the status of [the life insurance policy] and its potential forfeiture and to fully and promptly communicate what actions and steps could and should be taken to avoid termination of the Policy." She alleges that Bayside breached that duty with its handling of her email request for certain policy information that she sought so that she could pay the overdue policy premiums before the policy lapsed. Bayside responded with the information that Moriarty would need to make a payment and told Moriarty that it was "trying" to have a team follow up with AGLIC. It never followed up. The district court granted summary judgment to Bayside on the professional negligence claim, finding that Bayside did not owe the duty that Moriarty alleged. Later, the parties stipulated to the dismissal of Moriarty's negligent misrepresentation claim, as duty is an element of both claims. The district court then entered final judgment for Bayside under Federal Rule of Civil Procedure 54(b). The Ninth Circuit reviews the district court's grant of summary judgment de novo and affirms. It explains that in California, "whether a duty of care exists is a question of law for the court." In the usual case, insurance agents owe a limited duty to their clients, which is only to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured." Thus, in Kotlar v. Hartford Fire Insurance, 100 Cal.Rptr.2d 246 (Ct. App. 2000), the California Court of Appeal held that an insurance agent does not owe an insured a general duty to notify him of an insurer's intent to cancel his insurance policy due to nonpayment of premiums. California will impose a special duty beyond this limited duty "when -- but only when -- one of three things happens." First, California will impose a special duty when "the agent misrepresents the nature, extent or scope of the coverage being offered or provided." The Ninth Circuit finds that Moriarty does not allege that Bayside misrepresented the nature, extent, or scope of her husband's life insurance policy. Bayside answered Moriarty's email inquiry with correct information. And, Bayside did not induce Moriarty's husband to purchase the life insurance policy through affirmative misrepresentations. Second, the Ninth Circuit finds that California imposes a special duty to volunteer certain information regarding additional or different coverage when "there is a request or inquiry by the insured for a particular type or extent of coverage." This exception, it says, by its own terms, doesn't apply in the case. Third, California will impose a special duty when "the agent assumes an additional duty by either express agreement or by 'holding itself out' as having expertise in a given field of insurance being sought by the insured." In the case, Bayside did not enter into an express agreement with the Moriartys to tell them about the status of the life insurance policy. Its statement that it was "trying to have a team follow up on status" was not an express agreement to do so. Nor did Bayside hold itself out as a life insurance expert. Bayside does not specialize in the type of insurance at issue, and Moriarty does not otherwise show that Bayside held itself out as a life insurance expert. Ms. Moriarty also argues that Bayside owed her a duty because of their "special relationship." But Moriarty has not shown that Bayside was in a more "unique position" than the typical insurance agent to protect her or her husband from injury, the Ninth Circuit holds. Finally, Moriarty argues that the panel should impose an affirmative duty on Bayside under Rowland v. Christian, 443 P.2d 561 (Cal. 1968). But the California Supreme Court recently held in Brown v. USA Taekwondo, 483 P.3d 159, that "the multifactor test set forth in Rowland was not designed as a freestanding means of establishing duty, but instead as a means for deciding whether to limit a duty derived from other sources." Thus, as the district court found, Moriarty's professional negligence and negligent misrepresentation claims fail because she has not established an essential element -- duty. For these reasons, the Ninth Circuit affirms. A full-text copy of the Court's Sept. 7, 2021 Memorandum is available at https://tinyurl.com/r9ry2ukz from Leagle.com. BOEING CO: E.D. Texas Certifies Four Rule 23 Classes in Earl Suit ----------------------------------------------------------------- In the case, DAMONIE EARL, ET AL., Plaintiffs v. THE BOEING COMPANY, ET AL., Defendants, Civil Action No. 4:19-cv-507 (E.D. Tex.), Judge Amos L. Mazzant of the U.S. District Court for the Eastern District of Texas, Sherman Division, granted the Plaintiffs' Motion for Class Certification. According to the Court's Memorandum Opinion and Order, it all began in the nineties with a handshake. The then-chairmen of Boeing and Southwest Airlines shook hands to seal a significant deal between their companies. Boeing, a leading manufacturer of commercial airplanes, promised Southwest, a prominent commercial airline, that no airline would pay a lower price for Boeing's 737-series aircrafts than Southwest. In exchange, Southwest promised Boeing that Southwest's fleet would be made up exclusively of Boeing 737s. This symbiotic relationship between Boeing and Southwest has been integral to their businesses since the deal was struck. With Southwest's fleet due for a large-scale replacement at the end of the 2010s, Boeing and Southwest made a joint announcement in 2011: Boeing would release a new, more fuel-efficient 737 aircraft -- the 737 MAX 8 -- and Southwest would place an initial order for 300 MAX 8s. Southwest was involved in Boeing's development of the MAX 8. Early in the process, Southwest communicated its hope to Boeing that the MAX 8 would require, at most, "Level B" pilot training. Were the required training set at Level B or lower, MAX 8 pilots would only need to train on a digital device like a computer or tablet; training for a higher level would be more expensive and likely require use of a full-scale flight simulator. In May 2013, Southwest and Boeing entered into an agreement that Boeing would ensure the Federal Aviation Administration ("FAA") would approve a MAX 8 "pilot training differences program comprised of Training at no levels beyond Level B." With this program in place, Southwest would be able to integrate the operation of the MAX 8 seamlessly into its existing fleet. Under this agreement, if Boeing failed to secure FAA approval for the desired training requirement, Boeing would have to pay Southwest significant sums of money and cover the cost to train Southwest's pilots to operate the MAX 8. When assessing the ramifications of failing to meet this contractual condition, Mark Forkner, then a technical pilot for Boeing, concluded that Boeing's loss would be "so big, and the non-financial impacts so bad, that to try and determine a number was a waste of time." The consequences of failure were clear -- Boeing needed to secure the Level B pilot-training requirement. The drive to do so intensified in 2015 when the FAA informed Boeing that the company's pilots would be unable to operate all three versions of the 737 interchangeably. With Southwest's entire business model potentially in jeopardy, Southwest decided to fly MAX 8s and 737 NGs exclusively, predicating this strategy on ensuring the Level B training requirement as between the two aircrafts. At this point, Boeing and Southwest worked closely with each other to identify differences between the MAX 8 and the NG as a means to secure the Level B requirement. The companies communicated frequently about the MAX 8 in the wake of the FAA's announcement regarding the interchangeability of Boeing's fleet. During this time period, Southwest first encountered a new system Boeing included on the MAX 8: The Maneuvering Characteristic Augmentation System ("MCAS"). In an effort to make the MAX 8 more fuel-efficient, Boeing included larger, more powerful engines to the plane's chassis and positioned the engines closer to the aircraft's nose. The effects of this design change became apparent during testing. The shift in the aircraft's weight and weight distribution caused the MAX 8's nose to tilt upward during certain aerial maneuvers. Boeing developed and installed the MCAS to address the MAX 8's tendency to tilt upward due to weight distribution of the engines. If unaddressed, the difference between the MAX 8 and the NG would be significant enough to warrant a pilot-training requirement more strenuous than Level B. MCAS is a computer-controlled system that corrected this upward tilt by, among other things, "automatically pitching the nose of the airplane down as necessary." It worked as follows: The MCAS system received information from an angle-of-attack ("AoA") sensor located on the side of the aircraft's nose. The AoA is a critical metric during flight because it helps ensure the proper amount of air flows over and under the wings to provide sufficient lift, i.e., one of the four forces of flight that keeps aircraft airborne. When the AoA sensor detected an upward tilt in the airplane's nose that caused the AoA to climb too high, MCAS would activate and automatically adjust the nose downward to return the MAX 8 to aerodynamic equilibrium. Despite including this new feature in the MAX 8, Boeing did not list the addition of MCAS on the pilot checklists distributed to its customers, acting upon a recommendation Southwest made. In other words, Boeing gave "detailed manuals to MAX 8 pilots" without including information about this "new automated system" onboard. Boeing and Southwest's joint process to identify and eliminate differences between the MAX 8 and the NG continued for some time, culminating with Southwest's meeting with the FAA regarding the pilot-training requirement. The Plaintiffs allege that, at the meeting, Southwest emphasized "the lack of differences between the NG model and the MAX" and failed to mention at least one pertinent distinction between the aircrafts. Three months later, Southwest received word from the FAA that the MAX 8 had been validated at Level B—the same type rating as the NG, meaning that "Southwest pilots already trained on the 737 NG model would need only to complete a simple iPad course 'running under 3 hours,' with 'no special currency issues or formal checks of any sort identified by the regulators,' to be able to also fly the MAX." Following this validation, Boeing, through Forkner, began traversing the globe to achieve comparable approvals from aviation regulators in other countries, including Indonesia. A few months after FAA validation, Forkner and his Boeing colleague Patrik Gustavsson noticed an issue with MCAS. As it turned out, during the time in which Boeing and Southwest were identifying and eliminating differences between the MAX 8 and the NG, Boeing had made changes to the MCAS system. Despite coming across this information post-FAA-validation in the flight simulator and observing that MCAS was unexpectedly adjusting the MAX 8's nose downward, neither Forkner nor Gustavsson "told the FAA or any other regulators about the change to the MCAS and the dangers it posed." Around this same time, Boeing began delivering MAX 8s to Southwest. Notably, in October 2016, the Defendants released a marketing video stating, inter alia, that the Defendants "had 'simulated the kind of real-life conditions the MAX 8 will encounter on any given day,' and that because of their joint testing, there would be `no surprises' and `no secrets'" Then tragedy struck. On Oct. 29, 2018, the passengers and crew of Lion Air Flight 610 boarded a MAX 8 in Jakarta, Indonesia. Shortly after takeoff, an AoA sensor failed, which sent erroneous information to the plane's flight-control computer that indicated a stall was imminent. The perceived stall warning activated the aircraft's MCAS system, which began automatically adjusting the plane's nose downward to prevent the "imminent stall." The flight crew attempted to regain operational control of the MAX 8, but ultimately for naught. Lion Air Flight 610 fell from the sky into the Java Sea. No one aboard survived the crash. One week after the Lion Air crash, Forkner, now a technical pilot for Southwest, learned from his former colleagues at Boeing that the FAA would be publishing an advisory regarding the failure of the AoA sensor aboard Lion Air Flight 610's MAX 8. After discussion among Southwest management about the potential of preemptively grounding their MAX 8s, Southwest COO Mike Van de Ven decided that Southwest would continue to operate the MAX 8s in their fleet. Van de Ven made it clear that Southwest was to follow Boeing's instruction to the letter, no matter the instruction. As a result, Southwest's internal risk assessment of the MCAS system did not recommend grounding the MAX 8s because "its pilots were now informed about the MCAS and could manually override the system if necessary." This idea became the "central premise" of Defendants' response to the Lion Air crash—the MAX 8s' "existing procedures" adequately addressed the problem that led to the crash. In the weeks and months following the Lion Air crash, Boeing and Southwest began a joint campaign to ensure regulators, the media, and members of the public that, despite the crash, the MAX 8 was safe to operate. This effort included top-level corporate officials. For example, on Nov. 14, 2018, Boeing CEO Dennis Muilenburg gave a televised interview to Fox Business, during which he publicly stated, among other things, that "'all of the information that is needed to safely fly our airplanes' had been provided to pilots and that Boeing merely needed to 'point them back to existing flight procedures to handle this kind of situation.'" Muilenburg also repeatedly claimed "that 'existing flight procedures' were adequate to address the Lion Air crash and that information the pilots need was `part of the training manual.'" And though Southwest's MCAS risk assessment indicated the existence of a potential problem in the system, Southwest began internally disseminating information and talking points that bolstered what Muilenburg was representing publicly. In a specific instance of Defendants' coordinated response to the Lion Air crash, on Nov. 29, 2018, a Wall Street Journal reporter emailed Southwest regarding a story the outlet planned to run about the MAX 8. The email indicated the article "would say that Southwest had worked with Boeing to avoid 'simulator training for pilots.'" Within three hours of receiving this correspondence, Southwest reached out to Boeing to collaborate on a response to the reporter's email. Several of the Defendants' "communications employees and executives," including vice presidents at both companies, "spoke by phone" the next morning to do so. After consulting Boeing, Southwest eventually responded to the Wall Street Journal reporter's email. Then tragedy struck yet again. On March 10, 2019, the passengers and crew of Ethiopian Airlines Flight 302 boarded a MAX 8 in Addis Ababa, Ethiopia. Almost immediately after takeoff, the pilot indicated he was having problems controlling the aircraft. The onboard MCAS system began pitching the plane's nose up and down, which prevented the pilot from regaining control of the aircraft despite knowledge of MCAS's existence. Ethiopian Airlines Flight 302 ultimately fell from the sky into the earth below. No one aboard survived the crash. In the days after the Ethiopian Airlines crash, the Defendants continued to communicate with one another to coordinate public response. On March 13, 2019, the FAA indefinitely grounded all MAX 8 aircraft. On July 11, 2019, roughly four months after the FAA's grounding of the MAX 8, the initial complaint in this action was filed. On Oct. 9, 2020, the Court granted leave for the Plaintiffs to file the now-operative complaint. The Plaintiffs plead two causes of action, both arising under the Racketeer Influenced and Corrupt Organizations Act ("RICO"). They generally allege that, "by reason of and as a result of the conduct of Boeing and Southwest, and the pattern of racketeering activity engaged in on behalf of the Boeing-Southwest RICO enterprise, the Plaintiffs and the class members have been injured in their business and/or property." Throughout their pleadings, the Plaintiffs allege two theories of injury: (1) if the Plaintiffs had known the MAX 8 was fatally defective, the Plaintiffs would never have purchased tickets, so Plaintiffs want their money back; and (2) the Defendants' fraudulent misrepresentations and omissions allowed Defendant Southwest to overcharge the Plaintiffs for their tickets. Consequently, the Plaintiffs bring the suit on behalf of two putative classes, one consisting of Southwest ticket purchasers, the other consisting of American Airlines ticket purchasers. On Jan. 4, 2021, the Plaintiffs filed their Motion for Class Certification, currently before the Court. On Feb. 15, 2021, Southwest and Boeing filed their respective responses in opposition. On March 23, 2021, the Plaintiffs filed their reply. On April 6, 2021, Southwest and Boeing filed their respective sur-replies. And on April 26, 2021, the Court held a hearing on class certification. Judge Mazzant granted the Plaintiffs' Motion for Class Certification in accordance with his Opinion. Accordingly, he proceeds to "define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g)." Judge Mazzant certifies four separate classes under Federal Rule of Civil Procedure 23(a) and 23(b)(3). They are defined as follows: (1) Southwest Airlines purchasing class: All persons who conducted the transaction to purchase and bore the economic burden for a ticket for air travel within, to, or from the United States on a Southwest Airlines aircraft, except for such persons whose tickets were solely for flight segments (a) for which the MAX 8 aircraft was not scheduled for use as of the reservation date nor actually used or (b) that were not on MAX 8 routes as of the reservation date (i.e., routes that had not as of the time of the reservation included the use of a MAX 8 aircraft). (2) Southwest Airlines reimbursing class: All persons who did not conduct a transaction to purchase, but bore the economic burden for, a ticket for air travel within, to, or from the United States on a Southwest Airlines aircraft, except for such persons whose tickets were solely for flight segments (a) for which the MAX 8 aircraft was not scheduled for use as of the reservation date nor actually used or (b) that were not on MAX 8 routes as of the reservation date (i.e., routes that had not as of the time of the reservation included the use of a MAX 8 aircraft). (3) American Airlines purchasing class: All persons who conducted the transaction to purchase and bore the economic burden for a ticket for air travel within, to, or from the United States on an American Airlines aircraft, except for such persons whose tickets were solely for flight segments (a) for which the MAX 8 aircraft was not scheduled for use as of the reservation date nor actually used or (b) that were not on MAX 8 routes as of the reservation date (i.e., routes that had not as of the time of the reservation included the use of a MAX 8 aircraft). (4) American Airlines reimbursing class: All persons who did not conduct a transaction to purchase, but bore the economic burden for, a ticket for air travel within, to, or from the United States on an American Airlines aircraft, except for such persons whose tickets were solely for flight segments (a) for which the MAX 8 aircraft was not scheduled for use as of the reservation date nor actually used or (b) that were not on MAX 8 routes as of the reservation date (i.e., routes that had not as of the time of the reservation included the use of a MAX 8 aircraft). The following are excluded from the class definitions: Boeing and Southwest, their employees, officers, directors, legal representatives, successors, and wholly or partly owned subsidiaries or affiliates of Boeing and Southwest; class counsel and their employees and experts; and the judicial officers and their immediate family members and associated court staff formerly or currently assigned to this case. The class period is defined as Aug. 29, 2017, through March 13, 2019, inclusive. These dates represent the time period from when Southwest first took delivery of the MAX 8 until the date that the FAA grounded all MAX series aircraft. The two class claims are for (1) a RICO violation under 18 U.S.C. Section 1962(c), and (2) a RICO violation under 18 U.S.C. Section 1962(d). After considering the criteria of Rule 23(g)(1) and (g)(4), Judge Mazzant appoints Bathaee Dunne LLP and Dovel & Luner, LLP as the Co-Lead Class Counsel. He also appoints Capshaw Derieux LLP as the Class Counsel. If the Defendants elect not to appeal under Rule 23(f), once the time period in which the Defendants may appeal the Court's decision expires, the Plaintiffs will have 30 days to propose to the Court a method and form of individual notice for class members. Judge Mazzant also recognizes that the Plaintiffs, seeking two certify only two classes, have not had an opportunity to name class representatives for the Southwest Airlines purchasing class or the American Airlines purchasing class. If the Defendants elect not to appeal under Rule 23(f), once the time period in which Defendants may appeal the Court's decision expires, the Plaintiffs will amend their Motion for Class Certification to include named representatives for the Southwest and American Airlines purchasing classes within 30 days. A full-text copy of the Court's Sept. 3, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/3r7b5wze from Leagle.com. BRINKER INT'L: Seeks Review of Court's Certification Orders ----------------------------------------------------------- Brinker International, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 26, 2021, for the fiscal year ended June 30, 2021, that the company's Rule 23(f) petition in the Eleventh Circuit Court of Appeals seeking immediate discretionary review of the district court's certification orders. In fiscal 2018, the Company discovered malware at certain Chili's restaurants that may have resulted in unauthorized access or acquisition of customer payment card data. The Company was named as a defendant in a putative class action lawsuit in the United States District Court for the Middle District of Florida styled In re: Brinker Data Incident Litigation, Case No. 18-cv-00686-TJC-MCR relating to the cyber security incident. In the Litigation, plaintiffs assert various claims stemming from the cyber security incident at the Company's Chili's restaurants involving customer payment card information and seek monetary damages in excess of $5.0 million, injunctive and declaratory relief, and attorney's fees and costs. On April 14, 2021, the district court issued an order granting in part and deferring in part Plaintiffs' motion for class certification. The court certified a class on Plaintiffs' negligence claim and a separate class on Plaintiffs' California state Unfair Competition Law claims. On April 28, 2021, Brinker filed a Rule 23(f) petition in the Eleventh Circuit Court of Appeals seeking immediate discretionary review of the district court's certification orders. Brinker said, "We believe we have defenses and intend to continue defending the Litigation. As such, as of June 30, 2021, we have concluded that a loss, or range of loss, from this matter is not determinable, therefore, we have not recorded a liability related to the Litigation. We will continue to evaluate this matter based on new information as it becomes available." Brinker International, Inc., together with its subsidiaries, owns, develops, operates, and franchises casual dining restaurants in the United States and internationally. As of June 27, 2018, it owned, operated, or franchised 1,686 restaurants comprising 997 company-owned restaurants and 689 franchised restaurants under the Chili's Grill & Bar and Maggiano's Little Italy brand names. The company was founded in 1975 and is based in Dallas, Texas. CAPITAL BUILDING: Moreno Class Action Settlement Gets Final OK -------------------------------------------------------------- In the class action lawsuit captioned as EFREN MORENO, v. CAPITAL BUILDING MAINTENANCE & CLEANING SERVICES, INC., Case No. 4:19-cv-07087-DMR (N.D. Cal.), the Hon. Judge Donna M. Ryu entered an order granting the Plaintiff's motion for final approval and motion for attorneys' fees, costs, and incentive award. The Court said, "Class counsel is awarded $108,322.50 in fees and $7,687.04 in costs. Moreno is awarded $5,000 as an incentive award. Within 21 days after the distribution of settlement funds and payment of attorneys' fees, class counsel shall file a Post-Distribution Accounting in accordance with the Northern District's Procedural Guidance for Class Action Settlements, available at https://www.cand.uscourts.gov/forms/procedural-guidance-for-class-action-settlements. The Post-Distribution Accounting must contain all information listed in the Guidance, and shall be filed with the court and posted on the Settlement Website." On October 28, 2019, the Plaintiff Moreno filed a class and collective action complaint against Capital Building, alleging violations of the Fair Labor Standards Act ("FLSA"), the California Labor Code, and the California Unfair Competition Law ("UCL"). The Plaintiff filed a first amended complaint and a second amended complaint on December 27, 2019 and September 22, 2020, respectively. On December 4, 2020, Plaintiff filed a motion for preliminary approval of a class action settlement, which the court granted on May 5, 2021. The Defendant is a California corporation that provides various labor services throughout Northern California, including window washing, construction cleanup, floor maintenance, pressure washing, trash removal, and graffiti removal, among others. The Defendant's janitorial work is largely performed in tenant-occupied buildings while its construction cleanup work is done on construction sites, usually in buildings that are not currently tenant-occupied. The Plaintiff is a former unionized employee of Defendant. He and Defendant's other employees received an hourly wage rate negotiated by their representatives in the Northern District Council of Laborers. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3z7kZWl at no extra charge.[CC] CARDINAL HEALTH: Bid to Nix 1199 SEIU Health Care Suit Pending -------------------------------------------------------------- Cardinal Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 16, 2021, for the fiscal year ended June 30, 2021, that the motion to dismiss the purported class action suit headed by 1199 SEIU Health Care Employees Pension Fund, is pending. In August 2019, the Louisiana Sheriffs' Pension & Relief Fund (LSP&F) filed a purported class action complaint against Cardinal Health and certain current and former officers and employees in the United States District Court for the Southern District of Ohio purportedly on behalf of all purchasers of our common shares between March 2015 and May 2018. In June 2020, the court appointed 1199 SEIU Health Care Employees Pension Fund as lead plaintiff and a consolidated amended complaint was filed in September 2020. The amended complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 by making misrepresentations and omissions related to the acquisition integration of the Cordis business and inventory and supply chain problems within the Cordis business, and seeks to recover unspecified damages and equitable relief for the alleged misstatements and omissions. The complaint also alleges that one of the individual defendants violated Section 20A of the Exchange Act because he sold shares of Cardinal Health stock during the time period. In November 2020, the company filed a motion to dismiss the amended complaint. Cardinal said, "We believe that the claims asserted in this complaint are without merit and intend to vigorously defend against them." Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. Cardinal Health, Inc. was founded in 1979 and is headquartered in Dublin, Ohio. CARDINAL HEALTH: Bid to Nix Indirect Purchasers Suit Pending ------------------------------------------------------------ Cardinal Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 16, 2021, for the fiscal year ended June 30, 2021, that the motion to dismiss the class action suit initiated by indirect purchasers of generic drugs, such as hospitals and retail pharmacies, is pending. In December 2019, pharmaceutical distributors including the company were added as defendants in a civil class action lawsuit filed by indirect purchasers of generic drugs, such as hospitals and retail pharmacies. The indirect purchaser case is part of a multidistrict litigation consisting of multiple individual class action matters consolidated in the Eastern District of Pennsylvania. The indirect purchaser plaintiffs allege that pharmaceutical distributors encouraged manufacturers to increase prices, provided anti-competitive pricing information to manufacturers and improperly engaged in customer allocation. Cardinal said, "We have filed a motion to dismiss the complaints and we intend to vigorously defend ourselves." No further updates were provided in the Company's SEC report. Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. Cardinal Health, Inc. was founded in 1979 and is headquartered in Dublin, Ohio. CAREERSOURCE PALM: Fails to Provide Proper OT Wages, Hollis Says ---------------------------------------------------------------- ANDREW D. HOLLIS, on his own behalf and others similarly situated, Plaintiff v. CAREERSOURCE PALM BEACH COUNTY, INC., Florida, not-for-profit corporation; PALM BEACH WORKFORCE CONSORTIUM, Florida Independent Special District; and TIMOTHY MOSS, an individual, Defendants, Case No. 9:21-cv-81578 (S.D. Fla., Sept. 6, 2021) arises from the Defendants' failure to pay overtime compensation and other relief under the Fair Labor Standards Act. Mr. Hollis worked from December 4, 2018, until August 2020, for the Defendants, performing non-exempt work as a laborer and related activities in Palm Beach County, Florida. CareerSource Palm Beach County, Inc. is a not-for-profit Florida corporation which primarily engages in assisting area businesses recruit staff and help job seekers find employment. Palm Beach Workforce Consortium is a Florida Independent Special District, governmental agency and tax-exempt serving as the administrative entity for services offered to the public through CareerSource.[BN] The Plaintiff is represented by: Maguene D. Cadet, Esq. LAW OFFICE OF DIEUDONNE CADET, P.A. 2500 Quantum Lakes Dr. Ste 203 Boynton Beach, FL 33426-8323 Telephone: (561) 853-2212 Facsimile: (561) 853-2213 E-mail: maguene@dieudonnelaw.com CASSAVA SCIENCES: Bernstein Liebhard Reminds of Oct. 26 Deadline ---------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion in a securities class action lawsuit filed on behalf of investors who purchased or acquired the securities of Cassava Sciences, Inc. ("Cassava " or the "Company") (Nasdaq:SAVA) from September 14, 2020 through August 27, 2021 (the "Class Period"). The lawsuit filed in the United States District Court for the Western District of Texas alleges violations of the Securities Act of 1934. If you purchased Cassava securities, and/or would like to discuss your legal rights and options please visit Cassava Shareholder Class Action Lawsuit or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com According to the complaint, Cassava issued materially false and/or misleading statements and failed to disclose adverse facts pertaining to the quality and integrity of the scientific data supporting the company's claims of efficacy for its Alzheimer's drug (simufilam), which were known to, or recklessly disregarded by, the Defendants as follows: (a) that Cassava and senior management claimed that results from an interim analysis of simufilam demonstrated that patients' cognition and behavior scores both improved following six months of simufilam treatment, and; (b) that Cassava touted an FDA meeting they stated supported green-lighting a Phase 3 trial beginning in the second half of 2021. On August 24, 2021, a citizen petition was submitted to the FDA asking the FDA to halt all ongoing studies with simufilam while the agency verifies data the company has submitted so far. The petition raises serious concerns about the quality and integrity of the laboratory-based studies surrounding this drug candidate. The petition further identified "errors and anomalies" in the data "of a sufficient frequency and magnitude to strongly suggest scientific misconduct." On this news, the price of Cassava shares fell almost 32%, declining approximately $37 per share per share on August 24, 2021. On August 27, 2021, before the market opened, Quanterix Corp. ("Quanterix"), an independent company, issued a statement denying the Company's claims, stating that it "did not interpret the test results or prepare the data" touted by Cassava. On this news, the Company's share price fell $12.51, or 17.6%, to close at $58.34 per share on August 27, 2021, on unusually heavy trading volume. If you wish to serve as lead plaintiff, you must move the Court no later than October 26, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Cassava securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/cassavasciencesinc-sava-shareholder-class-action-lawsuit-fraud-stock-435/apply/ or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Rujul Patel Bernstein Liebhard LLP https://www.bernlieb.com (877) 779-1414 rpatel@bernlieb.com [GN] CENTRA TECH: Rensel Renewed Bid for Class Certification OK'd ------------------------------------------------------------ In the class action lawsuit captioned as Jacob Zowie Thomas Rensel and others, v. Centra Tech, Inc., Case No. 1:17-cv-24500-RNS (S.D. Fla.), the Hon. Judge Robert N. Scola, Jr. entered an order: 1. granting the Plaintiffs' renewed motion for class certification (ECF No. 239); 2. appointing Lead Plaintiffs Jacob Zowie Thomas Rensel and Wang Yun He, and proposed class representatives Chi Hao Poon, King Fung Poon, Jae J. Lee, and Mateusz Ganczarek as Class Representatives; and 3. appointing Levi & Korsinsky, LLP and Taylor-Copeland Law as Class Counsel. In this putative class action, the Plaintiffs allege that Centra Tech violated securities laws through its fraudulent and unlawful sale of cryptocurrencies. The Court initially denied the Plaintiffs' motion for class certification as untimely and for failure to satisfy the ascertainability requirement by not offering sufficient proof of administrative feasibility. (Order, ECF No. 235.) The Court also denied the Plaintiffs' renewed motion for class certification. (Order, ECF No. 258.). The Plaintiffs appealed this Court's order denying class certification. The Eleventh Circuit vacated this Court's order denying the Plaintiffs' initial motion for class certification and remanded for further proceedings. On remand, the Plaintiffs requested to proceed on their renewed motion for class certification (Renewed Mot. for Class Cert., ECF No. 239.) The Court held a hearing on the renewed motion on September 8, 2021. The Court has carefully considered the Eleventh Circuit's mandate, the parties' written submissions, the record, and the applicable law. the Court grants Plaintiffs' renewed motion for class certification. This litigation arises from Centra Tech's alleged fraudulent and unlawful sale of cryptocurrencies. The Plaintiffs Jacob Zowie Thomas Rensel, Wang Yun He, Chi Hao Poon, King Fung Poon, Jae J. Lee, and Mateusz Ganczarek are current and former owners of Centra Tech Tokens (CTR Tokens) purchased during Centra Tech's initial coin offering ("ICO") from July 23, 2017 through October 5, 2017. The Defendant Centra Tech is a company founded in May 2016 that purported to sell cryptocurrency. Centra Techmarketed the use of the Centra Wallet or a Centra Card forms of payment that would allow users to pay for everyday purchases with cryptocurrencies. Centra Tech falsely represented that the Centra Cards were purportedly backed up MasterCard and Visa. To raise funds to develop the marketed products, Centra Tech held an initial coin offering (ICO) between July 23, 2017 and April 20, 2018. The ICO involved the sale of "Centra Tech Tokens" or "CTR Tokens." Each token entitled the holder to certain rights related to Centra Tech, including a .08% of the "rewards of the network profit generated inside of the terms and conditions of the token." (Id. at ¶ 45.) Thus, although not marketed as a security, the CTR Tokens were securities similar to the stock sold at an initial public offering. To entice investors, Centra Tech enlisted the promotional services of two well-known celebrities, Floyd Mayweather, Jr. and DJ Khaled. Centra Tech also began an online promotional campaign involving regular blog posts touting the benefits of CTR Tokens. As a result of those marketing efforts, thousands of investors, including the Plaintiffs, participated in the ICO. Centra Tech raised $32 million as a result of the ICO. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3hzte7n at no extra charge.[CC] CLEANSPARK INC: Bishins Class Action Underway in New York ---------------------------------------------------------- CleanSpark, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a class action suit entitled, Bishins v. CleanSpark, Inc. et al. On January 20, 2021, Scott Bishins, individually, and on behalf of all others similarly situated, filed a class action complaint in the United States District Court for the Southern District of New York against the Company, its Chief Executive Officer, Zachary Bradford, and its Chief Financial Officer, Lori Love. The Class Complaint alleges that, between December 31, 2020 and January 14, 2021, the Company, Bradford, and Love "failed to disclose to investors: (1) that the Company had overstated its customer and contract figures; (2) that several of the Company's recent acquisitions involved undisclosed related party transactions; and (3) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis." The Class Complaint seeks: (a) certification of the Class, (b) an award of compensatory damages to the Class, and (c) an award of reasonable costs and expenses incurred by the Class in the litigation. To date, no class has been certified in the Class Action. CleanSpark said, "Although the ultimate outcome of the Class Action cannot be determined with certainty, the Company stands behind all of its prior statements and disclosures and believes that the claims raised in the Class Complaint are entirely without merit. The Company intends to both defend itself vigorously against these claims and to vigorously prosecute any counterclaims." CleanSpark, Inc., is in the business of acquiring, licensing and marketing patents and technology to create sustainable energy for its energy customers. The company is based in Woods Cross, Utah. CONSOLIDATED EDISON: Ct. Enters Class Cert. Briefing Sched Order ---------------------------------------------------------------- In the class action lawsuit captioned as RAVEN MOSES, STARAISHA MORRIS, DWAYNE DALE, ISMAIYL JONES, AYANNA BEACHAM, ANDRE MURRAY, VICTOR BALLAST, and LUIS SIMONE, individually and on behalf of all others similarly situated, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., GRIFFIN INDUSTRIES, LLC, GRIFFIN SECURITY SERVICES, MICHAEL SMITH, WINSTON SMITH, ANDREW MUNIZ, and AARON MUNIZ, Case No. 1:18-cv-01200-ALC-OTW (S.D.N.Y.), the Hon. Judge Andrew L. Carter, Jr., entered an order regarding class certification briefing schedule as follows: 1. The Plaintiffs' motion in support of class certification shall be filed on or before September 30, 2021. 2. The Defendants shall be permitted to take the depositions of the class representative plaintiffs, and up to three additional named and/or opt-in plaintiffs of their choosing, which shall be scheduled to take place on or before October 22, 2021. The Plaintiffs shall designate and identify to Defendants the class representative plaintiffs by September 16, 2021. 3. The Defendants shall designate the additional three opt-in plaintiffs to be deposed on or before September 23, 2021. The Plaintiffs will make all reasonable efforts to schedule the depositions of the class representative plaintiffs and additional named and/or opt-in plaintiffs on before October 22, 2021, and will agree to additional time for Defendants' opposition if needed to accommodate any scheduling delay, with the time for Plaintiffs' Reply moved back by a corresponding period in such event. 4. The Defendants' opposition(s) to Plaintiffs' motion for class certification shall be filed on or before November 15, 2021. 5. The Plaintiffs' repl(ies) in further support of their motion for class certification shall be filed on or before December 16, 2021. 6. This matter shall be heard at oral argument before the Court on January 12, 2022 or as soon thereafter is convenient for the Court's schedule. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3Cd8sCt at no extra charge.[CC] The Plaintiff is represented by: Betsy C. Manifold, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 1820 San Diego, CA 92101 Telephone: (619) 239-4699 E-mail: manifold@whafh.com - and - Taylor Graham, Esq. Brent E. Pelton, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-9700 Facsimile: (212) 385-0800 E-mail: pelton@peltongraham.com graham@peltongraham.com - and - George T. Peters, Esq. LAW OFFICE OF GEORGE T. PETERS, PLLC 2510 Valentine Avenue, 3rd Floor Bronx, NY 10458 Telephone: (929) 374-1200 E-mail: g.peters@myattys1.com The Defendant is represented by: Eli Z. Freedberg, Esq. Paul Piccigallo, Esq. LITTLER MENDELSON, P.C. 900 Third Avenue New York NY 10022 Telephone: (212) 583-2685 E-mail: ppiccigallo@littler.com efreedberg@littler.com - and - Michael R. DiChiara, Esq. KRAKOWER DICHIARA LLC 333 Bloomfield Avenue, Suite 202 Caldwell, NJ 07006 E-mail: md@kdlawllc.com Telephone: (201) 746-0303 CORTEVA INC: Faces ERISA Suit Over Early Retirement Availment ------------------------------------------------------------- ROBERT F. COCKERILL and CHRISTOPHER WILLIAM NEWTON, individually and on behalf of all others similarly situated, Plaintiffs v. CORTEVA, INC.; DUPONT SPECIALTY PRODUCTS USA, LLC, DUPONT DE NEMOURS, INC., E.I. DU PONT DE NEMOURS AND COMPANY, THE PENSION AND RETIREMENT PLAN, and THE ADMINISTRATIVE COMMITTEE, Defendants, Case No. 2:21-cv-03966 (E.D. Pa., Sept. 3, 2021) alleges violation of the Employee Retirement Income Security Act of 1974 ("ERISA"). The Plaintiffs allege in the complaint that the Defendants acted arbitrarily and capriciously in interpreting the Plan to extinguish their right to age into an Early Retirement or Rule of 85 unreduced early retirement under the Plan. The Plan terms, and communications related to the Plan, provide that a participant's Early Retirement, Optional Retirement or Rule of 85 unreduced early retirement are based on the length of service with the employer and the age at which they commence their benefit. Nothing in the Plan, the Summary Plan Description or any communications provides for any other interpretation and, in fact, state the contrary, says the suit. Allegedly, the Defendants wrongfully denied the Plaintiffs' claim for Optional Retirement benefits on the basis that Newton was not terminated for lack of work prior to the spin-off. The Defendants breached their fiduciary duties under ERISA Section 404 to the Plaintiffs and the Class by actively and repeatedly misinforming and omitting material information about their ability to age into an Early Retirement or Rule of 85 unreduced early retirement benefit under the Plan in the years and months leading up to the spin-off, the suit added. CORTEVA, INC. provides agricultural products. The Company offers seeds and crop protection products, as well as software solutions and digital services. [BN] The Plaintiff is represented by: Jaclyn Conover, Esq. Elizabeth Hopkins, Esq. Susan L. Meter, Esq. KANTOR & KANTOR 19839 Nordhoff Street Northridge, CA 91324 Telephone: (818) 886-1212 E-mail: jconover@kantorlaw.net ehopkins@kantorlaw.net smeter@kantorlaw.net -and- Edward S. Stone, Esq. EDWARD STONE LAW, P.C. 175 West Putnam Ave., 2nd Floor Greenwich, CT 06830 Telephone: (203) 504-8425 E-mail: eddie@edwardstonelaw.com COSAN CONSTRUCTION: Underpays Construction Workers, Melendez Says ----------------------------------------------------------------- HECTOR MELENDEZ, on behalf of himself and all others similarly situated, Plaintiff v. COSAN CONSTRUCTION CORP., COSAN NEW YORK INC., and TERENCE FERGUSON, individually, Defendants, Case No. 1:21-cv-07426 (S.D.N.Y., Sept. 3, 2021) arises from the Defendants' alleged violations of the Fair Labor Standards Act and the New York Labor Law for their failure to pay proper overtime, provide annual wage notices and wage statements, and unlawful retaliation. Mr. Melendez worked for the Defendants from October 2017 through August 13, 2021, as an construction laborer. Based in Mount Vernon, New York, Cosan Construction Corp. is a domestic business corporation engaged and operating in the construction industry.[BN] The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway 3rd Floor New York, NY 10007 Telephone: (212) 323-6980 COTY INC: Discovery in MLPF Suit Ongoing ---------------------------------------- Coty Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 26, 2021, for the fiscal year ended June 30, 2021, that discovery is ongoing in the class action and derivative suit entitled, Massachusetts Laborers' Pension Fund v. Harf et al., Case No. 2019-0336-AGB. A consolidated purported stockholder class action and derivative complaint concerning the tender offer by Cottage Holdco B.V. (the "Cottage Tender Offer") and the Schedule 14D-9 is pending against certain current and former directors of the Company, JAB Holding Company S.a r.l., JAB Holdings B.V., JAB Cosmetics B.V., and Cottage Holdco B.V. in the Court of Chancery of the State of Delaware. The Company was named as a nominal defendant. The case, which was filed on May 6, 2019, was captioned Massachusetts Laborers' Pension Fund v. Harf et al., Case No. 2019-0336-AGB. On June 14, 2019, plaintiffs in the consolidated action filed a Verified Amended Class Action and Derivative Complaint. After defendants responded to the Amended Complaint, on October 21, 2019, plaintiffs filed a Verified Second Amended Class Action and Derivative Complaint, alleging that the directors and JAB Holding Company S.a r.l., JAB Holdings B.V., JAB Cosmetics B.V., and Cottage Holdco B.V. breached their fiduciary duties to the Company's stockholders and breached the Stockholders Agreement. The Second Amended Complaint seeks, among other things, monetary relief. On November 21, 2019, the defendants moved to dismiss certain claims asserted in the Second Amended Complaint, and certain of the director defendants also answered the complaint. On May 7, 2020, plaintiffs stipulated to the dismissal without prejudice of JAB Holding Company S.a r.l. from the action. On August 17, 2020, the court denied the remaining motions to dismiss. The case is currently at the discovery stage. Coty Inc., together with its subsidiaries, manufactures, markets, distributes, and sells beauty products worldwide. It operates in three segments: Luxury, Consumer Beauty, and Professional Beauty. The company was founded in 1904 and is based in New York, New York. As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB Cosmetics B.V. COTY INC: Garrett-Evans' Amended Complaint Dismissed ---------------------------------------------------- Coty Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 26, 2021, for the fiscal year ended June 30, 2021, that the court in Crystal Garrett-Evans v. Coty Inc. et al., Case No. 1:20-cv-07277, had dismissed the amended complaint, holding that it failed to set forth a valid claim. A purported stockholder class action complaint, alleging violations of the U.S. securities laws in connection with the P&G beauty brands acquisition is pending against the Company as well as certain current and former officers of the Company in the U.S. District Court for the Southern District of New York. The case, which was filed on September 4, 2020, is captioned Crystal Garrett-Evans v. Coty Inc. et al., Case No. 1:20-cv-07277. On November 23, 2020, the court appointed the individual Susan Nock as lead plaintiff and the Rosen Firm as lead counsel. Plaintiff filed an amended complaint on January 22, 2021. The Amended Complaint asserts claims under the federal securities laws and seeks, among other things, monetary relief. On March 8, 2021, the Company filed a motion to dismiss the amended complaint, and on August 4, 2021 the court dismissed the amended complaint, holding that it failed to set forth a valid claim. Coty Inc., together with its subsidiaries, manufactures, markets, distributes, and sells beauty products worldwide. It operates in three segments: Luxury, Consumer Beauty, and Professional Beauty. The company was founded in 1904 and is based in New York, New York. As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB Cosmetics B.V. COTY INC: Lewis Putative Class Suit Voluntarily Stayed ------------------------------------------------------ Coty Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 26, 2021, for the fiscal year ended June 30, 2021, that purported stockholder class action and derivative suit entitled, Chris Lewis v. Becht et al., has been voluntarily stayed. A purported stockholder class action and derivative complaint, alleging violations of the U.S. securities laws in connection with the P&G beauty brands acquisition and the Kylie Brands transaction as well as claims for breach of fiduciary duties, unjust enrichment, abuse of control, gross mismanagement, and waste of corporate assets by certain current and former officers and directors of the Company, is pending in the U.S. District Court for the Southern District of New York. The case, which was filed on November 17, 2020, is captioned Chris Lewis v. Becht et al., Case No. 1:20-cv-09685. The Company was named as a nominal defendant. The plaintiff seeks, among other things, injunctive and/or monetary relief. This case remains at an early stage. Coty said, "This action was voluntarily stayed during the pendency of the motion to dismiss the Evans Action." Coty Inc., together with its subsidiaries, manufactures, markets, distributes, and sells beauty products worldwide. It operates in three segments: Luxury, Consumer Beauty, and Professional Beauty. The company was founded in 1904 and is based in New York, New York. As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB Cosmetics B.V. DABELLA EXTERIORS: Court Enter Class Cert. Scheduling Order ----------------------------------------------------------- In the class action lawsuit captioned as VICKI SHEKERYK v. DABELLA EXTERIORS, LLC, Case No. 2:21-cv-00933-JLR (W.D. Wash.), the Hon. Judge e James L. Robart entered Rule 16(B) and Rule 23(D)(2) scheduling order regarding class certification motion as follows: -- Deadline to complete discovery on December 8, 2021 class certification (not to be construed as a bifurcation of discovery). -- Deadline for Plaintiffs to file January 7, 2022 motion for class certification (noted on the fourth Friday after filing and service of the motion pursuant to Local Rules W.D. Wash. LCR 7(d)(3) unless the parties agree to different times for filing the response and reply memoranda): Dabella Exteriors is located in Hillsboro, Oregon, and is part of the residential building construction industry. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3kdhidy at no extra charge.[CC] DELTA AIR: Lee Sues Over Race Discrimination, Sexual Harassment --------------------------------------------------------------- ERIKA L. LEE, individually and on behalf of all others similarly situated, Plaintiff v. DELTA AIR LINES, INC., ASHLEY RANGEL, JOSEPH TUMPAP, et. al, Defendants, Case No. 2:21-CV-07414-CBM-GJS (C.D. Cal., September 15, 2021) is a class action against the Defendants for defamation per se, intentional interference with prospective economic advantage, breach of implied covenant of good faith and fair dealing, retaliation, discrimination, wrongful termination, whistle-blower retaliation, breach of express oral contract not to terminate employment without good cause, breach of implied-in-fact contract not to terminate employment without good cause, intentional infliction of emotional distress, hostile work environment/harassment, failure to engage/failure to reasonably accommodate, invasion of privacy, breach of contract, and violations of the California Labor Code, the Fair Employment and Housing Act, the Family and Medical Leave Act, and the California Business and Professions Code. Ms. Lee worked for the Defendants and was subjected to race discrimination and sexual harassment since 2018 until her termination on June 17, 2021. Delta Air Lines, Inc. is an airline company, headquartered in Atlanta, Georgia. The Plaintiff appears pro se.[BN] DOLLAR TREE: Coffee Mislabeling Consumer Class Suits Underway ------------------------------------------------------------- Dollar Tree, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 26, 2021, for the quarterly period ended July 31, 2021, that the company continues to defend consumer class action suits related to coffee mislabeling. In January and April 2021, state-wide consumer class actions were filed against the company by the same law firm in Georgia and Alabama, respectively, for breach of warranty based on the allegation that the coffee the company sold was mislabeled because the canisters did not contain enough coffee to make the number of cups of coffee stated on the label. Dollar Tree, Inc. operates discount variety retail stores. It operates through two segments, Dollar Tree and Family Dollar. The company was founded in 1986 and is headquartered in Chesapeake, Virginia. DOLLAR TREE: Smoked Almonds Related Class Suit Underway ------------------------------------------------------- Dollar Tree, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 26, 2021, for the quarterly period ended July 31, 2021, that the company continues to defend a consumer class action suit related to smoked almonds. In August 2020, a consumer class action was filed against the company in New York alleging Smoked Almonds sold by the company are mislabeled because the almonds do not go through a smoking process but rather acquire their smoky taste through the use of smoked flavoring. The legal claims include New York consumer protection laws, negligent misrepresentations, breach of warranties, fraud and unjust enrichment. Dollar Tree, Inc. operates discount variety retail stores. It operates through two segments, Dollar Tree and Family Dollar. The company was founded in 1986 and is headquartered in Chesapeake, Virginia. DOLLAR TREE: Zantac-Related Class Suits Dismissed ------------------------------------------------- Dollar Tree, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 26, 2021, for the quarterly period ended July 31, 2021, that the personal injury and consumer class actions related to Zantac have been dismissed. In late 2019 and early 2020, personal injury and consumer class actions were filed alleging that we sold Zantac containing a probable carcinogen. The lawsuits were dismissed in June 2021. The time for appealing the dismissal has not run. Dollar Tree, Inc. operates discount variety retail stores. It operates through two segments, Dollar Tree and Family Dollar. The company was founded in 1986 and is headquartered in Chesapeake, Virginia. DUARTE NURSERY: Lucero Sues Over Over Blind-Inaccessible Website ---------------------------------------------------------------- CHRISTOPHER LUCERO, individually and on behalf of all others similarly situated, Plaintiff v. DUARTE NURSERY INC., a California Corporation; and DOES 1 to 10, inclusive, Defendants, Case No. 2:21-at-00839 (E.D. Cal., Sept. 3, 2021) arises from the Defendant's failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by the Plaintiff and other blind or visually impaired people, in violation of the Americans With Disabilities Act. Mr. Lucero alleges that the Defendant has engaged in acts of intentional discrimination due to the inaccessibility of its Website, https://duartenursery.com, and seeks a permanent injunction to cause Defendant to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually impaired consumers. Duarte Nursery, Inc. is a family owned and operated nursery located near Modesto in the Central Valley of California.[BN] The Plaintiff is represented by: Thiago M. Coelho, Esq. Binyamin I. Manoucheri, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com binyamin@wilshirelawfirm.com jasmine@wilshirelawfirm.com ESKINA 214: Ortiz Suit Seeks Conditional Collective Status ----------------------------------------------------------- In the class action lawsuit captioned as RICARDO ORTIZ, HENRY FLORES, and MARIO FLORES, on behalf of themselves, FLSA Collective Plaintiffs and the Class, v. v. ESKINA 214 CORP. d/b/a CAFE TABACO & RON, ISMAEL GARCIA, and WILLIAM SEGURA, Case No. 1:21-cv-01537-ALC-KHP (S.D.N.Y.), the Plaintiff filed a motion for conditional collective certification and for court facilitation of notice pursuant to 29 u.s.c. section 216(b). A copy of the Plaintiff's motion dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3A7sduF at no extra charge.[CC] The Attorneys for Plaintiffs,FLSA Collective Plaintiffs and the Class, are: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 FAIRSHARE VACATION: Seeks Modification of Class Definition in Nolen ------------------------------------------------------------------- In the class action lawsuit captioned as CAROLYN NOLEN, WINDY KELLEY, CARA KELLEY, and PAULA LITTON, on behalf of themselves and all others similarly situated, v. FAIRSHARE VACATION OWNERS ASSOCIATION, Case No. 6:20-cv-00330-PGB-EJK (M.D. Fla.), the Defendant asks the Court to enter an order amending the class certification order in this case to modify the class definition. The Defendant contends that many members of the certified class, as it is currently defined, have time-barred claims. The current class definition is thus inconsistent with the law in this and other circuits, which is that a class should be defined so as to exclude persons with time-barred claims. The current class definition should be modified accordingly. The Defendant adds that the Court should modify the current class definition as follows (changes are in bold and strikethrough): All persons and entities who are citizens of the United States of America and who on or after February 25, 2017: owned a timeshare with a Property Interest (or the Use Rights therein) subject to the Fairshare Vacation Plan Use Management Trust." On July 12, 2021, this Court certified a Rule 23(b)(3) class. The class is currently defined as follows: "All persons and entities who are citizens of the United States of America and who on or after March 14, 2008: (1) purchased a timeshare with a Property Interest (or the Use Rights therein) subject to the Fairshare Vacation Plan Use Management Trust or (2) purchased (including upgrading or refinancing) a Property Interest (or the Use Rights therein) previously subject to the Fairshare Vacation Plan Use Management Trust." This Court certified a Rule 23(b)(3) class asserting a single claim for breach of fiduciary duty. To be sure, there are two surviving claims, in this case, a breach of fiduciary duty claim and a declaratory judgment claim. But a class seeking declaratory relief must be certified under Rule 23(b)(2), not Rule 23(b)(3). Because the Court certified a Rule 23(b)(3) class, only the named plaintiffs -- not the class as a whole -- can seek declaratory relief. The breach of fiduciary duty claim is thus the sole class claim. A copy of the Defendant's motion dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3nyAV1B at no extra charge.[CC] The Defendant is represented by: Kevin P. McCoy, Esq. Chris S. Coutroulis, Esq. D. Matthew Allen, Esq. Nathaniel G. Foell, Esq. CARLTON FIELDS, P.A. 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 E-mail: coutroulis@carltonfields.com kmccoy@carltonfields.com mallen@carltonfields.com nfoell@carltonfields.com lfuller@carltonfields.com kdelvalle@carltonfields.com hrectin@carltonfields.com devans@carltonfields.com FIA LIQUIDATION: Faces Brown Suit Over Illegal Phone Calls ---------------------------------------------------------- KHA'MARYA BROWN, individually and on behalf of all others similarly situated, Plaintiff v. FIA LIQUIDATION COMPANY, INC. f/k/a FIORELLA INSURANCE AGENCY, INC. Defendant, Case No. 21-004233-CI (Fla. Cir. Ct., Pinellas Cty., Sept. 6, 2021) arises from the engagement of the Defendant in telephonic sales calls to promote its products and goods to consumers without having secured prior express written consent as required by the Florida Telephone Solicitation Act. The Plaintiff never provided the Defendant with express written consent authorizing Defendant to transmit telephonic sales calls to his cellular telephone number utilizing an automated system for the selection or dialing of telephone numbers. The Defendant's telephonic sales call allegedly caused Plaintiff and the class members harm, including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance. FIA Liquidation Company, Inc., f/k/a Fiorella Insurance Agency, Inc., is an insurance company with headquarters in Palm City, Florida.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard Suite 1400 Ft. Lauderdale, FL 33301 E-mail: mhiraldo@hiraldolaw.com Telephone: (954) 400-4713 - and - Rachel N. Dapeer, Esq. DAPEER LAW, P.A. 20900 NE 30th Avenue, Ste. 417 Aventura, FL 333180 E-mail: rachel@dapeer.com Telephone: (305) 610-5223 FIRST CHINESE: Guzman Appeals Suit Ruling to 2nd Cir. ----------------------------------------------------- Plaintiffs Alvaro Ramirez Guzman filed an appeal from a court ruling entered in the lawsuit styled entitled ALVARO RAMIREZ GUZMAN, ET AL., Plaintiffs v. FIRST CHINESE PRESBYTERIAN COMMUNITY AFFAIRS HOME ATTENDANT CORPORATION, Defendant, Case No. 20-cv-3929, in the U.S. District Court for the Southern District of New York (New York City). The Plaintiffs are former home health aides, who brought a lawsuit in state court against their former employer First Chinese Presbyterian Community Affairs Home Attendant Corp. ("FCP") alleging violations of New York State and New York City Labor Law, individually and on behalf of a putative class. As reported in the Class Action Reporter on June 15, 2021, Judge John G. Koeltl of the U.S. District Court for the Southern District of New York recertified the Remand Order entered on Feb. 18, 2021, for immediate appeal to the Court of Appeals for the Second Circuit. The Plaintiffs have moved for a new order, certifying for interlocutory appeal, the Court's Opinion and Order, dated Feb. 18, 2021, denying their motion to remand. The Court previously issued an Order, on May 7, 2021, certifying the Remand Order for interlocutory appeal, pursuant to 28 U.S.C. Section 1292(b). By letter, dated May 26, 2021, the counsel for the Plaintiffs informed the Court that the counsel failed to file the Plaintiffs' application with the Court of Appeals within 10 days from the entry of the Certification Order, as required by 28 U.S.C. Section 1292(b). The counsel for the Plaintiffs stated that this failure occurred because the deadline was incorrectly calendared by their firm, and counsel has offered further justifications for the oversight. Accordingly, Judge Koeltl granted the Plaintiffs' request and recertified the Remand Order for immediate appeal to the Court of Appeals for the Second Circuit. He certified that the controlling question of law listed warrants immediate appeal pursuant to 28 U.S.C. Section 1292(b). The case will remain stayed, pending a decision from the Court of Appeals, Judge Koeltl added. The appellate case is captioned as Guzman v. The First Chinese Presbytarian Community Affairs Home Attendant Corporation, Case No. 21-2106, in the United States Court of Appeals for the Second Circuit, filed on September 1, 2021.[BN] Plaintiffs-Appellants Alvaro Ramirez Guzman, Elida Augustina Mejia Herrera, and Leticia Panama Rivas, individually and on behalf of all other persons similarly situated, are represented by: LaDonna M. Lusher, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street New York, NY 10004 Telephone: (212) 943-9080 E-mail: llusher@vandallp.com Defendant-Appellee The First Chinese Presbytarian Community Affairs Home Attendant Corporation is represented by: Douglas J. Klein, Esq. JACKSON LEWIS P.C. 666 3rd Avenue New York, NY 10017 Telephone: (212) 545-4000 E-mail: douglas.klein@jacksonlewis.com GENERAL MILLS: Burns Sues Over Misleading Fudge Brownie Mix ----------------------------------------------------------- DONNA BURNS, individually and on behalf of all others similarly situated, Plaintiff v. GENERAL MILLS SALES, INC., Defendant, Case No. 3:21-cv-01099 (S.D. Ill., Sept 3, 2021) alleges that the Defendant misrepresented the labeling in its dry mix identified as "Fudge Brownie Mix," under the Betty Crocker brand ("Product"). The Plaintiff alleges in the complaint that the Defendant's representation is misleading because it gives consumers the impression it contains a greater relative and absolute amount of the expected fudge ingredients than it does. The Product's representations are allegdly misleading because its common or usual name - "Fudge Brownie Mix" - fails to include a statement that the characterizing fudge ingredients - milkfat - are absent from the dry mix. Plaintiff would not have purchased the Product if she knew the representations were false and misleading. GENERAL MILLS SALES, INC. markets and sells food products. The Company offers cereals, yogurt, refrigerated dough, and baking products. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. Sheehan & Associates, P.C. 60 Cuttermill Rd Ste 409 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com GERON CORP: Discovery in IMbark-Related Suit Ongoing ---------------------------------------------------- Geron Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in the consolidated putative class action suit related to IMbark. Between January 23, 2020 and March 5, 2020, three putative securities class action lawsuits were filed against the company and certain of its officers. One of the lawsuits was voluntarily dismissed on March 19, 2020. The other two lawsuits, filed in the U.S. District Court for the Northern District of California, or the Northern District, were consolidated by the Court on May 14, 2020, and on August 20, 2020, the lead plaintiffs filed a consolidated class action complaint. The consolidated class action complaint alleges violations of the Securities Exchange Act of 1934, as amended, or the Exchange Act, in connection with allegedly false and misleading statements made by the company related to IMbark, the company's Phase 2 clinical trial designed to evaluate two dosing regimens of imetelstat (either 4.7 mg/kg or 9.4 mg/kg administered by intravenous infusion every three weeks) in relapsed/refractory myelofibrosis, during the period from March 19, 2018, to September 26, 2018. The consolidated class action complaint alleges, among other things, that the company violated Sections 10(b) and 20(a) of the Exchange Act and SEC Rule 10b-5 by failing to disclose facts related to the alleged failure of IMbark to meet the two primary endpoints of the trial, spleen response rate and Total Symptom Score, and that the company's stock price dropped when such information was disclosed. The plaintiffs in the consolidated class action complaint seek damages and interest, and an award of reasonable costs, including attorneys' fees. On October 22, 2020, lead plaintiffs filed an amended consolidated class action complaint. The company filed a motion to dismiss the amended consolidated class action complaint on November 23, 2020. On April 12, 2021, the Court granted in part and denied in part the company's motion to dismiss. The company's answer to the complaint was filed on May 13, 2021. Discovery has commenced, although the Court has not yet entered a case schedule or set a trial date. Geron Corporation is a biopharmaceutical company that currently supports the clinical stage development of a telomerase inhibitor, imetelstat, in hematologic myeloid malignancies, by Janssen Biotech, Inc. The company is based in Foster, California. IDEANOMICS INC: Bid to Nix Putative Securities Class Suit Pending ----------------------------------------------------------------- Ideanomics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss the consolidated purported securities class action suit entitled, In re Ideanomics, Inc. Securities Litigation, is pending. On June 28, 2020, a purported securities class action, captioned Lundy v. Ideanomics et al. Inc., was filed in the United State District Court for the Southern District of New York against the Company and certain current officers and directors of the Company. Additionally, on July 7, 2020, a purported securities class action captioned Kim v. Ideanomics, et al, was filed in the Southern District of New York against the Company and certain current officers and directors of the Company. Both cases alleged violations of Section 10(b) and 20(a) of the Securities Exchange Act of 1934 arising from certain purported misstatements by the Company beginning in June 2020 regarding its MEG division. On November 4, 2020, the Lundy and Kim actions were consolidated and is now titled "In re Ideanomics, Inc. Securities Litigation." In December 2020, the Court appointed Rene Aghajanian as lead plaintiff and an amended complaint was filed in February 2021, alleging violations of Section 10(b) and 20(a) of the Securities Exchange Act of 1934 arising from certain purported misstatements by the Company beginning in March 2020 regarding its MEG division. The defendants filed a motion to dismiss on May 6, 2021. Ideanomics said, "While the Company believes that this action is without merit, there can be no assurance that the Company will prevail. The Company cannot currently estimate the possible loss or range of losses, if any, that it may experience in connection with this litigation." Ideanomics, Inc. was incorporated in the State of Nevada on October 19, 2004. From 2010 through 2017, the Company's primary business activities were providing premium content video on demand (VOD) services, with primary operations in the People's Republic of China (PRC,) through its subsidiaries and variable interest entities (VIEs) under the brand name You-on-Demand (YOD). The Company closed the YOD business during 2019. The company is based in New York, New York. IDEANOMICS INC: Settlement in Principle Reached in Rudani Suit -------------------------------------------------------------- Ideanomics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that a settlement in principle has been reached in Rudani v. Ideanomics, et al. Inc., finalizing a settlement agreement and approval of the Court, for $5,000,000. In July 19, 2019, a purported class action, now captioned Rudani v. Ideanomics, et al. Inc., was filed in the United States District Court for the Southern District of New York against the Company and certain of its current and former officers and directors. The Amended Complaint alleges violations of Section 10(b) and 20(a) of the Securities Exchange Act of 1934. Among other things, the Amended Complaint alleges purported misstatements made by the Company in 2017 and 2018. As part of a mediation, the parties reached a settlement in principle, which is subject to finalizing a settlement agreement and approval of the Court, for $5.0 million. Ideanomics, Inc. was incorporated in the State of Nevada on October 19, 2004. From 2010 through 2017, the Company's primary business activities were providing premium content video on demand (VOD) services, with primary operations in the People's Republic of China (PRC,) through its subsidiaries and variable interest entities (VIEs) under the brand name You-on-Demand (YOD). The Company closed the YOD business during 2019. The company is based in New York, New York. INTERARCH INC: McCann Seeks to Cetify Class of Plan Participants ---------------------------------------------------------------- In the class action lawsuit captioned as JONATHAN MCCANN on behalf of himself and all others similarly situated, v. SHIRLEY S. HILL, VERNON W. HILL II, and INTERARCH, INC., INTERARCH, INC. PROFIT SHARING PLAN AND TRUST, Case No. 1:20-cv-06435-NLH-MJS (D.N.J.), the Plaintiff will move the Court on October 4, 2021 to enter an order: 1. certifying Counts I-V in this case as a class action under Rule 23(b)(1) and (b)(2) on behalf of the following Class: "All participants in the InterArch, Inc. Profit Sharing Plan at any time between March 6, 2018, to the present (except those who terminated without vesting) and the beneficiaries of any such participants;" Excluded from the Class are (1) Defendants, (2) any fiduciaries of the Plan, who are alleged to have engaged in prohibited transactions or breaches of corporate fiduciary duties, or who had decision-making or administrative authority relating to the administration, investment allocation, modification, funding, or interpretation of the Plan; 2. appointing him as the representative of the Class; 3. appointing R. Joseph Barton of Block & Leviton LLP and Adam Garner of The Garner Firm, Ltd. as Co-Lead Class Counsel; 4. preliminarily approving the Settlement Agreement and the Plan of Allocation; 5. approving the form of the Proposed Notice of Class Action Settlement; 6. appointing RG/2 Claims Administration as Settlement Administrator, and directing the Settlement Administrator to distribute the Class Notice; 6. setting a date for a fairness hearing on whether the proposed Settlement should be finally approved as fair, reasonable, and adequate as to the members of the Class, and for a hearing on whether Class Counsel's forthcoming motion for attorneys' fees, costs, and expenses should be approved; and 7. directing to facilitate the orderly resolution of the Ac tion, Plaintiff proposes deadlines for a schedule of events, including a date for the Final Approval Hearing that provides a sufficient amount of time for mailing of the Notice, for Class Members to file any objections to the Settlement, and for Class Counsel to respond to any objections. Interarch operates as an architectural and design firm. A copy of the Plaintiff's motion to certify class dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3tIW7TO at no extra charge.[CC] The Plaintiff is represented by: Adam Harrison Garner, Esq. Melanie J. Garner, Esq. THE GARNER FIRM, LTD. 1617 John F. Kennedy Blvd., Suite 550 Philadelphia, PA 19103 Telephone: (215) 645-5955 Facsimile: (215) 645-5960 E-mail: adam@garnerltd.com melanie@garnerltd.com - and - R. Joseph Barton, Esq. BLOCK & LEVITON LLP 1735 20th Street, NW Washington D.C. 20009 Telephone: (202) 734-7046 Facsimile: (617) 507-6020 E-mail: jbarton@blockleviton.com INVITATION HOMES: McCumber Suit Moved From D. Md. to N.D. Tex. -------------------------------------------------------------- The case styled FRANCINE McCUMBER, ERIN BIRD, MELISSA LYNCH, LA SHAY HARVEY, MARYAH MARCINIAK, BRIAN MAJKA, CHAD WHETMAN, TRACY WHITE, RACHEL OSBORN, TERESA KERR (f/k/a TERESA MARIE MOORE), individually and on behalf of all others similarly situated v. INVITATION HOMES, INC., Case No. 1:21-cv-00123, was transferred from the U.S. District Court for the District of Maryland to the U.S. District Court for the Northern District of Texas on September 15, 2021. The Clerk of Court for the Northern District of Texas assigned Case No. 3:21-cv-02194-B to the proceeding. The case arises from the Defendant's alleged policies and practices of charging its tenants additional late fees if tenants carry any accrued balance of unpaid late fees or other charges, even when the tenants timely pay the monthly rent itself, and regardless of whether the outstanding balance is minimal. Invitation Homes Inc. is an owner of single-family rental homes in the United States, headquartered in Dallas, Texas. [BN] The Plaintiffs are represented by: William N. Sinclair, Esq. SILVERMAN THOMPSON SLUTKIN & WHITE 201 N. Charles St., 26th Floor Baltimore, MD 21201 Telephone: (410) 385-2225 Facsimile: (410) 385-9116 E-mail: bsinclair@silvermanthompson.com - and – Craig M. Nicholas, Esq. Alex Tomasevic, Esq. Ethan T. Litney, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org elitney@nicholaslaw.org IT WORKS MARKETING: Faces Suit Over Mislabeled Weigh Loss Products ------------------------------------------------------------------ AILEEN BROOKS, individually and on behalf of others similarly situated, Plaintiff v. IT WORKS MARKETING, INC.; IT WORKS! GLOBAL, INC.; MARK PENTECOST; and PAUL NASSIF, Defendants, Case No. 2:21-at-00838 (E.D. Cal., Sept. 3, 2021) alleges that the Defendants engaged in a consistent, long-term effort to fraudulently market Thermofight as a safe and effective fat burner and rapid weight loss solution on its website and Amazon.com. According to the complaint, the Defendants manufacture, market, distribute, and sell Thermofight pills ("Thermofight"), a purported "thermogenic weigh loss formula" purchased by the Plaintiff. The Defendants' misrepresentations and omissions, deceive consumers into believing that Thermofight is a safe and effective rapid weight loss solution and fat burner, but the contrary it is not effective, says the suit. The Plaintiff would not have purchased Thermofight had not for the misrepresentations made by It Works on Defendants' website and the efficacy messages they conveyed, which were substantial factors in her purchase. It Works Marketing, Inc. is located in Palmetto, FL, United States and is part of the Health and Personal Care Stores Industry. [BN] The Plaintiff is represented by: Gregory S. Weston, Esq. THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (619) 343-2789 E-mail: greg@westonfirm.com J. M. SMUCKER: Folgers Coffee Packaging-Related Suits Underway -------------------------------------------------------------- The J. M. Smucker Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 26, 2021, for the quarterly period ended July 31, 2021, that the company continues to defend putative class action suits related to the packaging of Folgers coffee. The company is also a defendant in nine pending putative class action lawsuits filed in federal courts in California, Florida, Illinois, Missouri, Texas, Washington, and Washington D.C. The plaintiffs in those actions assert claims arising under various state laws for false advertising, consumer protection, deceptive and unfair trade practices, and similar statutes. Their claims are premised on allegations that we have misrepresented the number of servings that can be made from various canisters of Folgers coffee on the packaging for those products. Five of the lawsuits have been transferred to the United States District Court for the Western District of Missouri for coordinated pre-trial proceedings. J. M. Smucker said, "Similar claims have been asserted against certain retailers of our Folgers coffee products, and indemnity claims have been asserted by such retailers against the company. Various other potential plaintiffs have threatened to assert similar claims against us." The J. M. Smucker Company is a manufacturer and marketer of branded food and beverage products and pet food and pet snacks in North America. The Company's segments include U.S. Retail Coffee, U.S. Retail Consumer Foods, U.S. Retail Pet Foods, and International and Foodservice. The company was founded in 1897 and is headquartered in Orrville, Ohio. KANAWHA COUNTY, WV: Appeals Class Cert. Ruling in G.T. Class Suit ----------------------------------------------------------------- Defendant THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA filed an appeal from a court ruling entered in the lawsuit styled G.T., by his parents Michelle and Jamie T. On behalf of himself and all similarly situated individuals, et al., v. THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA, Case No. 2:20-cv-00057, in the United States District Court for the Southern District of West Virginia at Charleston. As reported in the Class Action Reporter on Aug. 27, 2021, the Hon. Judge Irene C. Berber entered an order: 1. granting in part and denying in part the Defendant's motion to strike; 2. denying the Defendant's motion to strike Dr. Elliot's supplemental declaration and supplemental report; 3. granting the Plaintiffs' motion for class certification; 4. certifying a class of: "All Kanawha County Schools students with disabilities who need behavior supports and have experienced disciplinary removals from any classroom;" and 5. appointing the Plaintiffs, including Lydia C. Milnes, Blaire L. Malkin, Lori Waller, Robin Hulshizer, Kirstin Scheffler, Karen Klass, Jaime Zucker, Ira A. Burnim, Lewis Bossing, and Shira Wakschlag, together with their respective firms and organizations, as class counsel. The Plaintiffs, G.T., K.M., and The Arc of West Virginia assert that Kanawha County Schools (KCS) does not provide adequate behavioral supports to students with disabilities who require such supports to succeed in the classroom. G.T. and K.M. are elementary school students in Kanawha County with Individualized Education Plans (IEPs). The Plaintiffs allege violations of the Individuals with Disabilities Education Act (IDEA), the Rehabilitation Act, the Americans with Disabilities Act, and of the West Virginia Human Rights Act. The Defendant now seeks a review of the order entered by Judge Berber. The appellate case is captioned as The Board of Education of the County of Kanawha v. G.T., Case No. 21-260, in the United States Court of Appeals for the Fourth Circuit, filed on Sept. 7, 2021.[BN] Defendant-Petitioner THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA is represented by: John Mark Adkins, Esq. William M. Lorensen, Esq. Gabriele Wohl, Esq. BOWLES RICE, LLP 600 Quarrier Street Charleston, WV 23501 Telephone: (304) 347-1100 - and - Richard Scott Boothby, Esq. BOWLES RICE, LLP 501 Avery Street, P. O. Box 49 Parkersburg, WV 26102-0048 Telephone: (304) 420-5535 Plaintiffs-Respondents G.T., by his parents Michelle and Jamie T. On behalf of himself and all similarly situated individuals, et al., are represented by: Ira A. Burnim, Esq. BAZELON CENTER FOR MENTAL HEALTH LAW 1090 Vermont Avenue, NW Washington, DC 20005 Telephone: (202) 467-5730 - and - Michael J. Farris, Esq. Renatta A. Gorski, Esq. Robin M. Hulshizer, Esq. Karen D. Klass, Esq. Kirstin Scheffler Do, Esq. Jaime Zucker, Esq. LATHAM & WATKINS, LLP 330 North Wabash Avenue Chicago, IL 60611 Telephone: (312) 876-7700 - and - Blaire L. Malkin, Esq. OFFICE OF THE UNITED STATES ATTORNEY 300 Virginia Street East P. O. Box 1713 Charleston, WV 25326-1713 Telephone: (304) 345-2200 - and - Lydia C. Milnes, Esq. MOUNTAIN STATE JUSTICE 1217 Quarrier Street Charleston, WV 25301-0000 Telephone: (304) 344-3144 - and - Erin Snyder, Esq. Lori May Waller, Esq. DISABILITY RIGHTS OF WEST VIRGINIA 1207 Quarrier Street Charleston, WV 25301 Telephone: (304) 346-0847 - and - Shira T. Wakschlag, Esq. THE ARC OF THE UNITED STATES, INC. 1825 K Street, NW Potomac, MD 20006 Telephone: (200) 534-3708 KENNEDY ENDEAVORS: Maeda's "Sham" Deposition Testimony Stricken --------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL MAEDA and RICK SMITH, individually and on behalf of all others similarly situated, et al., v. KENNEDY ENDEAVORS, INC., et al., Case No. 1:18-cv-00459-JAO-WRP (D. Haw.), the Hon. Judge Jill A. Otake entered an order granting Kennedy Endeavors' renewed motion to strike Plaintiff Michael Maeda's "Sham" Deposition Testimony filed on June 30, 2021. The Court said, "The Plaintiffs argue that the Defendant will not suffer prejudice if the Motion is denied because Defendant can address Maeda's testimony at trial. Putting aside that this is not the salient inquiry, a lack of prejudice does not warrant permitting improper errata to stand. "Equity dictates that the onus of explaining or correcting deposition testimony throughout the course of litigation should rest with the deponent who allegedly provided faulty testimony under oath[.]" Ashcraft, 2017 WL 5180421. The party obtaining deposition testimony should not be burdened with rebutting improper FRCP 30(e) changes through impeachment or other means. Hence, while the Court finds that Defendant would be prejudiced to some degree by a denial of this Motion, an absence of prejudice would not support the outcome urged by Plaintiffs." Kennedy Endeavors manufactures confectionery products. The Company offers candies, chewing gum, and other chocolate products. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3lso4ex at no extra charge.[CC] LANNETT CO: Appeals Class Cert. Ruling in Utesch Securities Suit ---------------------------------------------------------------- Defendants Lannett Co. Inc., et al., filed an appeal from a court ruling entered in the lawsuit styled JOHN UTESCH, et al., Plaintiffs v. LANNETT COMPANY, INC., ARTHUR P. BEDROSIAN, MARTIN P. GALVAN, Defendants, Case No. 2-16-cv-05932, in the United States District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter, the Eastern District of Pennsylvania granted the motion for class certification filed in the case. In thsi proposed securities fraud class action against Defendants Lannett, Bedrosian (Lannett's former CEO) and Galvan (its former CFO), Lead Plaintiff University of Puerto Rico Retirement System ("UPRRS") and Plaintiffs Ironworkers Locals 40, 361, and 417 Union Security Funds assert securities fraud claims under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 against all Defendants, and claims against the individual defendants under Section 20(a) of the Exchange Act. During the presented class period -- July 15, 2014, to Oct. 31, 2017 -- the Plaintiffs allege that they purchased Lannett's common stock at prices that were artificially inflated because of the Defendants' false and misleading statements concerning the pricing of generic drugs and investigations into price-fixing in the generic drug market. The Plaintiffs allege that anticompetitive conduct among Lannett's competitors caused price increases for five generic drugs, which together accounted for most of Lannett's total annual sales from 2013 to 2016. Lannett publicly disclosed that it received a subpoena and interrogatories from the Connecticut Attorney General in connection with an investigation of anti-competitive conduct in the generic drug industry at the start of the class period in July 2014, and grand jury subpoenas in connection with a federal investigation in November and December 2014. However, says the Plaintiffs, even as it began to be revealed during the Class Period that several of Lannett's competitors were implicated in illegal price-fixing and anti-competitive conduct, the Defendants assured investors that Lannett's past financial results were the product of competitive market forces; and, that the Company's pricing strategy and future results would not be impacted by regulatory scrutiny of anticompetitive conduct in the industry, or the threat of being implicated in any price-fixing or anticompetitive scheme. The Defendants now seek a review of the Court's order granting class certification. The appellate case is captioned as University of Puerto Rico Retirement System, et al. v. Lannett Co Inc., et al., Case No. 21-8041, in the United States Court of Appeals for the Third Circuit, filed on Aug. 26, 2021.[BN] Defendants-Petitioners LANNETT CO INC., ARTHUR BEDROSIAN, and MARTIN P. GALVAN are represented by: Jay P. Lefkowitz, Esq. Jordan D. Peterson, Esq. Matthew Solum, Esq. KIRKLAND & ELLIS 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Plaintiffs-Respondents UNIVERSITY OF PUERTO RICO RETIREMENT SYSTEM; and IRONWORKERS LOCALS 40, 361 AND 417 UNION SECURITY FUNDS, Individually and on Behalf of all Other Persons Similarly Situated, are represented by: Ian D. Berg, Esq. Takeo A. Kellar, Esq. ABRAHAM FRUCHTER & TWERSKY 11622 El Camino Real, Suite 100 San Diego, CA 92130 Telephone: (858) 764-2580 - and - Matthew Guarnero, Esq. Todd L. Kammerman, Esq. Lawrence D. Levit, Esq. Mitchell M. Twersky, Esq. ABRAHAM FRUCHTER & TWERSKY One Penn Plaza, Suite 2805 New York, NY 10119 Telephone: (212) 279-5050 - and - David M. Promisloff, Esq. David M. Promisloff, Esq. PROMISLOFF LAW 100 North 22nd Street, Unit 105 Philadelphia, PA 19103 Telephone: (215) 259-5156 - and - Eric J. Belfi, Esq. 275 Madison Avenue New York, NY 10016 Telephone: (212) 682-1818 - and - Edward T. Fisher, Esq. Francine F. Griesing, Esq. GRIESING LAW 1880 John F. Kennedy Boulevard, Suite 1800 Philadelphia, PA 19103 Telephone: (215) 501-7846 - and - J. Alexander Hood, II, Esq. Jeremy A. Lieberman, Esq. POMERANTZ 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-110 - and - Christopher J. Keller, Esq. LABATON SUCHAROW 140 Broadway, 34th Floor New York, NY 10005 Telephone: (212) 907-0853 LONDONBOY STATION: Mills Sues Over Salestaff's Unpaid Wages ----------------------------------------------------------- STEPHEN MILLS, on behalf of himself and others similarly situated, Plaintiff v. LONDONBOY STATION INC., AHMED KHALIL, and HASAN MOHAMMED, Defendants, Case No. 1:21-cv-07408 (S.D.N.Y., Sept. 3, 2021) arises from the Defendants' failure to pay minimum wages and overtime compensation pursuant to the Fair Labor Standards Act, the New York Labor Law and the New York State Wage Theft Prevention Act. The Plaintiff has been continuously employed by the Defendants as a salesperson from April 2018 through the present time. Londonboy Station Inc., owns and operates a retail clothing store in Bronx, New York.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 200 Park A venue - 17th Floor New York, NY 10166 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: info@jcpclaw.com LOUISIANA: Giroir Files Bid for Class Certification --------------------------------------------------- In the class action lawsuit captioned as JOEL GIROIR, on behalf of himself and all similarly situated individuals, v. JAMES LEBLANC, in his official capacity as Secretary of the Louisiana Department of Public Safety & Corrections; and THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, Case No. 3:21-cv-00108-JWD-SDJ (M.D. La.), the Plaintiff asks the Court to enter an order certifying a class defined as: "all persons who have been, or will be, sentenced to the custody of the DOC, and who were, or will be, entitled to release at the time of their sentencing, but who nevertheless remain in custody, now or in the future, for more than 48 hours past their sentencing dates." The Department of Public Safety and Corrections is a state law enforcement agency responsible for the incarceration of inmates and management of facilities at state prisons within the state of Louisiana. The agency is headquartered in Baton Rouge. A copy of the Plaintiff's motion to certify class dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/2XoW5o3 at no extra charge.[CC] The Plaintiff is represented by: Mercedes Montagnes, Esq. Nishi Kumar, Esq. Rebecca Ramaswamy, Esq. THE PROMISE OF JUSTICE INITIATIVE 1024 Elysian Fields Avenue New Orleans, LA 70117 Telephone: (504) 529-5955 Facsimile: (504) 595-8006 E-mail: mmontagnes@defendla.org - and - Sarah Grady, Esq. Stephen H. Weil, Esq. John Hazinski, Esq. LOEVY & LOEVY 311 N. Aberdeen Chicago, IL 60607 Telephone: (312) 243-5900 Facsimile: (312) 243-5902 E-mail: sarah@loevy.com - and - William Most, Esq. MOST & ASSOCIATES 201 St. Charles Avenue, Suite 114, #101 New Orleans, LA 70170 Telephone: (504) 509-5023 E-mail: williammost@gmail.com LUCID GROUP: Merger Related Putative Class Suits Underway --------------------------------------------------------- Lucid Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend two putative class action suits related to the merger. On July 23, 2021, subsequent to the fiscal quarter ended June 30, 2021, the fiscal quarter to which this Quarterly Report on Form 10-Q relates, Churchill Capital Corp IV (formerly known as Annetta Acquisition Corp. and now known as Lucid Group, Inc.), a Delaware corporation that is the company's predecessor, consummated the previously announced business combination (the "Business Combination") pursuant to that certain Agreement and Plan of Merger, dated as of February 22, 2021 by and among Churchill Capital Corp IV, Atieva, Inc., d/b/a Lucid Motors, an exempted company incorporated with limited liability under the laws of the Cayman Islands, and Air Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Churchill Capital Corp IV ("Merger Sub"). Pursuant to the Merger Agreement, following the approval by the Company's stockholders on July 23, 2021, Merger Sub was merged with and into Lucid with Lucid being the surviving company in the merger. Since April 18, 2021, four actions asserting claims under the federal securities laws have been filed in federal courts in Alabama, California, New Jersey and Indiana, including two putative class actions: Randy Phillips v. Churchill Capital Corporation IV, et al., 1:21-cv-00539-ACA (N.D. Ala., filed Apr. 18, 2021); Arec D. Simeri v. Churchill Capital Corporation IV, et al., 2:21-cv-04295 (C.D. Cal., filed May 24, 2021); Chris Arico v. Churchill Capital Corporation IV, et al., 1:21-cv-12355 (D.N.J., filed June 9, 2021); and Gregory Slabaugh v. Churchill Capital Corporation IV, et al., 1:21-cv-01652 (S.D. Ind., filed June 11, 2021). The complaints name Churchill, Atieva, Inc. (doing business as Lucid), Michael Klein, Jay Taragin, and Peter Rawlinson as defendants and generally allege violations of Sections 10(b) and 20(a) of the Exchange Act in connection with alleged false and misleading statements concerning Lucid's business plans and prospects, as well as the proposed merger between the Company and Lucid. The complaints generally seek compensatory and/or punitive damages. Lucid said, "We believe the claims are without merit and intend to defend ourselves vigorously." Lucid Group, Inc. is a blank check company formed under the laws of the State of Delaware on for the purpose of effecting a merger, share exchange, asset acquisition, stock purchase recapitalization, reorganization or other similar business combination with one or more businesses or entities. The company is based in Newark, California. LYFT INC: Wins Bid for Summary Judgment in Independent Living Suit ------------------------------------------------------------------ In the case, INDEPENDENT LIVING RESOURCE CENTER SAN FRANCISCO, a California non-profit corporation, JUDITH SMITH, an individual, JULIE FULLER, an individual, SASCHA BITTNER, an individual, TARA AYRES, an individual, and COMMUNITY RESOURCES FOR INDEPENDENT LIVING, a California non-profit corporation, Plaintiffs v. LYFT, INC., Defendant, Case No. C 19-01438 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California enters judgment in favor of Lyft. Background In the action under the Americans with Disabilities Act (ADA), 42 U.S.C. 12181, et seq., the issue is whether a rideshare platform company discriminates against motorized wheelchair users by failing to offer wheelchair-accessible rides. Plaintiffs Judith Smith, Julie Fuller, Sascha Bittner, and Tara Ayres are disabled, use motorized wheelchairs, and live in the Bay Area. Plaintiffs Independent Living Resource Center and Community Resources for Independent Living represent Bay Area-resident wheelchair users. Lyft operates a transportation service on an app-based platform, a service that matches riders with drivers. In March 2019, the Plaintiffs filed the instant complaint as a putative class action, alleging violations of the ADA and seeking injunctive and declaratory relief. The complaint explains that Lyft offered "wheelchair access" mode only within San Francisco, and with greater restrictions (e.g. limited hours) than its standard mode. The Plaintiffs seek an expansion of wheelchair access mode to Alameda and Contra Costa Counties, as well. Wheelchair means motorized wheelchair. Conventional wheelchairs that are foldable are already accommodated by Lyft in its standard mode. The relief requested would not require Lyft to purchase wheelchair-accessible vehicles (WAVs), but instead to modify its incentive structures to guarantee wheelchair-accessible rides on its platform. The Plaintiffs moved for class certification. A March 2020 order denied the Plaintiffs' motion without prejudice so that they could take another stab at defining the class. In September 2020, the Plaintiffs renewed their motion to certify a class, which was ultimately denied. Simultaneously, both sides cross-moved for summary judgment. The November 2020 summary judgment order denied the Defendant's motion and granted in part and denied in part the Plaintiffs' motion. That order held that without more specific evidence regarding, for example, how a different combination of these proposed methods would be implemented in the Bay Area, the supply of WAV drivers that could be deployed, or the financial costs of doing so, it is unclear whether the proposed modifications are reasonable. The Court will have to hold a trial on the main issue of whether the proposed modifications, specifically a rental model or a combination of the models, are reasonable. Three pretrial conferences proved necessary to sift through the parties' motions in limine and a bench trial commenced June 1, 2021. At the close of evidence, the parties submitted almost 300 proposed findings. Judge Alsup's findings of fact represent those necessary to address the main conclusions of law. For clarity and ease in presentation, his Order discusses some additional findings with his conclusions of law. All declaratory statements are findings. To the extent, however, that any proposed finding was expressly admitted by the responding party in the recent round of proposals and responses, the Order adopts the proposal (to the extent expressly admitted). The Order need not cite the record and does so only where it will likely assist the court of appeals, that is, as the exception and not as the rule. Analysis and Conclusions of Law The trial addressed the following question: Has the Defendant discriminated by refusing to adopt the Plaintiffs' proposed modification to the Defendant's policies, practices, or procedures? Judge Alsup's summary judgment order found that Section 12184(b)(2)(A)(ii) applies to Lyft as a private entity whose primary business involves transporting people, that the Plaintiffs are disabled within the meaning of the ADA, that they requested a modification, that a proposed modification appeared necessary, and that no fundamental alteration defense is available. At summary judgment, Judge Alsup's order held that the only issue remaining for trial would be reasonableness. Lyft now asks that the order revisits the fundamental alteration defense. Based on the record at trial, Judge Alsup's order declines to do so. He finds that WAV services would not fundamentally alter Lyft's business because WAVs are not a "new transportation service." Lyft already provides WAV services where compelled to do so by local governments and voluntarily in Los Angeles and San Francisco (on a pilot basis). Judge Alsup holds that a Section 12182(b)(2)(A)(ii) plaintiff is required to propose a concrete modification rather than merely propose that the district court order a defendant to undertake an iterative trial-and-error process to try to find a proposed modification. A concrete proposal need not outline every detail of the modification it proposes. But the devil's in the details. A proposal must have enough meat on its bones to allow a fact finder to rate it as "reasonable" (or not), as the statute requires. Judge Alsup presumes that the Plaintiffs are correct as to the "run of cases" standard. He need not make a final determination on the legal question, however. He says, even under this standard, the Plaintiffs have not shown a modification that would be reasonable in the run of cases and in any event, Lyft has shown the proposed modification would be unreasonable. Significantly, the phrase "in the run of case" underscores all the more that the statutory provision in question requires a concrete proposal, for otherwise the proposal could not be tested against the run of cases. Again, the Court has no concrete proposal from the Plaintiffs to test against the run of cases. This point is dispositive. The Plaintiffs propose that Lyft meet a performance standard but fail to show how it could be done, leaving it to Lyft and trial and error to figure it out. The closest the Plaintiffs come to a concrete proposed modification is to argue that Lyft itself generated an internal proposal in 2019 to roll out WAV service in three counties. Judge Alsup evaluates that internal proposal. He finds that the proposal contemplated 65 WAV rental vehicles and five partner W-2 WAVs ("65+5" proposal) at a then-estimated cost of $2.8 million (before any funds from the CPUC Access Fund). That proposal, however, was not a final plan and was never adopted. Turning to the specifics, Lyft showed at trial that the 2019 proposal would cost far more than $2.8 million and that offsets from the CPUC could not be sustained over time. To this, the Plaintiffs reply that Lyft should be ordered to undertake the program anyway and that through an iterative process of trial and error, the parties and the Court would eventually arrive at the most cost-effective combination of rental units versus W-2s. As Judge Alsup explains, however, Lyft showed at trial that the probable cost of an effective program meeting the performance standard for all three counties would rate as unreasonable. Since Judge Alsup has found that the proposal is unreasonable based upon its cost and administrative burden alone, he does not reach the element of effectiveness. He denied the relief and denied as moot Lyft's Rule 52(c) motion. Conclusion For the foregoing reasons, Judge Alsup concludes that the Plaintiffs have not carried their burden to prove that Lyft discriminated against disabled individuals in violation of the ADA. They have therefore established no entitlement to relief on their claim. Accordingly, judgment is entered in favor of Lyft. A full-text copy of the Court's Sept. 1, 2021 Findings of Fact & Conclusions is available at https://tinyurl.com/mw6ktb7e from Leagle.com. MDL 2836: Merck Appeals Ruling in Zetia Antitrust Suit ------------------------------------------------------ Defendants MERCK & COMPANY, INCORPORATED, et al., filed an appeal from a court ruling entered in the multi-district litigation captioned In re: ZETIA (EZETIMIBE) ANTITRUST LITIGATION, MDL No. 2:18-md-02836-RBS-DEM, in the United States District Court for the Eastern District of Virginia at Norfolk. As reported in the Class Action Reporter on Aug. 20, 2021, the U.S. Court of Appeals for the Fourth Circuit vacated the district court's class certification order and remanded for further proceedings. A group of pharmaceutical buyers brought the class action against two manufacturers who allegedly reached an anticompetitive settlement in a patent dispute. The Plaintiffs, on behalf of a small group of drug wholesalers that purchased Zetia directly from Merck, sued Merck and Glenmark under federal antitrust law, alleging that the two companies conspired to inflate the drug's price. The Plaintiffs' case drew parallels to the Supreme Court's decision in FTC v. Actavis, Inc., 570 U.S. 136 (2013), which concerned the anticompetitive settlement of a patent case. In Actavis, a brand-name manufacturer sued generic manufacturers for patent infringement. Under the parties' settlement agreement, the brand-name manufacturer agreed to a reverse payment in which it agreed to pay the generic manufacturers between $240 and $342 million to delay the launch of their generic products. The FTC then sued both parties, alleging that the reverse payment was anticompetitive and therefore in violation of federal antitrust law. The Supreme Court agreed, holding that a "large and unjustified" reverse payment made "in return for staying out of the market" may give rise to antitrust liability. In the case, the Plaintiffs allege that Merck made a "reverse payment" by giving up its right to sell a generic version of ezetimibe for the six-month period after Glenmark introduced its own generic. Because Glenmark was the first to seek FDA approval for a generic ezetimibe, it had the near-exclusive right to sell a generic for 180 days after launching it. The right is near-exclusive because the brandname manufacturer can market a competing generic, called an "authorized generic," by essentially rebranding its brand-name drug and selling it at a lower price point. Three entities sought to represent a class of all direct Zetia purchasers: FWK Holdings, LLC, Rochester Drug Co-Operative, Inc., and Cesar Castillo, Inc. The thirty-two absent class members are all sophisticated companies with purportedly large claims, including the "Big Three" wholesalers -- McKesson, AmerisourceBergen, and Cardinal Health -- "who account for 97% of all class purchases." The appellate case is captioned as Zetia (Ezetimibe) Antitrust Litigation v. FWK Holdings, LLC, Case No. 21-258, in the United States Court of Appeals for the Fourth Circuit, filed on Sep. 3, 2021.[BN] Defendants-Petitioners MERCK & COMPANY, INCORPORATED, MERCK SHARP & DOHME CORPORATION, SCHERING PLOUGH CORPORATION, SCHERING CORPORATION, MSP SINGAPORE CO. LLC, GLENMARK PHARMACEUTICALS, LTD., and GLENMARK GENERICS INC., USA are represented by: Daniel Rolf Adler, Esq. Theodore J. Boutrous, Jr., Esq. Christopher Dean Dusseault, Esq. Samuel Grant Liversidge, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7634 - and - Bradley Joseph Hamburger, Esq. BRADLEY HAMBURGER 333 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-7658 - and - Ashley Elizabeth Johnson, Esq. Veronica S. Moye, Esq. GIBSON, DUNN & CRUTCHER, LLP 2001 Ross Avenue Dallas, TX 75201-0000 Telephone: (214) 698-3111 - and - Stephen Edward Noona, Esq. KAUFMAN & CANOLES, PC P. O. Box 3037 Norfolk, VA 23514-3037 Telephone: (757) 624-3239 - and - Eric Jonathan Stock, Esq. GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166-0000 Telephone: (212) 351-2301 - and - Jennifer L. Eaton, Esq. VANDEVENTER BLACK, LLP 500 World Trade Center 101 West Main Street Norfolk, VA 23510 Telephone: (757) 446-8600 - and - R. Brendan Fee, Esq. Zachary M. Johns, Esq. Steven A. Reed, Esq. MORGAN LEWIS & BOCKIUS, LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5136 - and - Stacey Anne Mahoney, Esq. MORGAN LEWIS & BOCKIUS, LLP 101 Park Avenue New York, NY 10178 Telephone: (212) 309-6000 - and - Richard Hooper Ottinger, Esq. Dustin Mitchell Paul, Esq. VANDEVENTER BLACK, LLP 500 World Trade Center 101 West Main Street Norfolk, VA 23510 Telephone: (757) 446-8673 Plaintiffs-Respondents FWK HOLDINGS, LLC; CESAR CASTILLO, INC., individually and on behalf of all those similarly situated; and ROCHESTER DRUG COOPERATIVE, INC., on behalf of itself and all others similarly situated, are represented by: John Paul Bjork, Esq. David Paul Germaine, Esq. Matthew T. Slater, Esq. Paul E. Slater, Esq. Joseph Michael Vanek, Esq. SPERLING & SLATER, PC 55 West Monroe Street Chicago, IL 60603-0000 Telephone: (312) 641-3200 - and - Michael M. Buchman, Esq. Michelle C. Clerkin, Esq. MOTLEY RICE LLC 777 3rd Avenue New York, NY 10017 Telephone: (212) 577-0040 - and - James Arthur Cales, III, Esq. Alan Brody Rashkind, Esq. FURNISS, DAVIS, RASHKIND & SAUNDERS Smithfield Building, Koger Center West 6160 Kempsville Circle P. O. Box 12525 Norfolk, VA 23541-0525 Telephone: (757) 461-7100 - and - Sarah Elizabeth DeLoach, Esq. Karen Sharp Halbert, Esq. Debra Josephson, Esq. William R. Olson, Esq. Michael Lee Roberts, Esq. Stephanie Smith, Esq. ROBERTS LAW FIRM, PA 20 Rahling Circle P. O. Box 241790 Little Rock, AR 72223-0000 Telephone: (501) 821-5575 - and - Donna M. Evans, Esq. Sharon K. Robertson, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 88 Pine Street New York, NY 10005 Telephone: (212) 838-7797 - and - Lori Ann Fanning, Esq. Marvin Alan Miller, Esq. Matthew Eric Van Tine, Esq. MILLER LAW LLC 115 South LaSalle Street Chicago, IL 60603 Telephone: (312) 332-3400 - and - Michael Andrew Glasser, Esq. Marc Christian Greco, Esq. Kip Andrew Harbison, Esq. William Hanes Monroe, Jr., Esq. GLASSER & GLASSER Crown Center 580 East Main Street Norfolk, VA 23510-0000 Telephone: (757) 625-6787 - and - Kristen Anne Johnson, Esq. Hannah Schwarzschild, Esq. Thomas M. Sobol, Esq. Bradley Joseph Vettraino, Esq. HAGENS, BERMAN, SOBOL, SHAPIRO, LLP 55 Cambridge Parkway Cambridge, MA 02142 Telephone: (617) 482-3700 - and - Joseph H. Meltzer, Esq. Terence Scott Ziegler, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087-0000 Telephone: (610) 667-7706 - and - John D. Radice, Esq. RADICE LAW FIRM PC 475 Wall Street Princeton, NJ 08540 Telephone: (646) 245-8502 - and - Steve Shadowen, Esq. Matthew Charles Weiner, Esq. HILLIARD & SHADOWEN LLP 1135 West 6th Street Austin, TX 78703 Telephone: (855) 344-3298 - and - Jayne Arnold Goldstein, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH 1625 North Commerce Parkway Fort Lauderdale, FL 33326 Telephone: (954) 515-01253 - and - Linda P. Nussbaum, Esq. NUSSBAUM LAW GROUP P.C. 1211 Avenue of the Americas New York, NY 10036 Telephone: (917) 438-9102 - and = Bradley Joseph Demuth, Esq. FARUQI & FARUQI, LLP 685 3rd Avenue New York, NY 10017 Telephone: (212) 983-9330 - and - Peter Russell Kohn, Esq. Joseph Thomas Lukens, Esq. FARUQI & FARUQI, LLP 101 Greenwood Avenue Jenkintown, PA 19046 Telephone: (215) 277-5770 - and - Kevin Landau, Esq. Archana Tamoshunas, Esq. Barry Steven Taus, Esq. TAUS, CEBULASH & LANDAU LLP 80 Maiden Lane New York, NY 10038 Telephone: (212) 931-0704 - and - Ellen Toporoff Noteware, Esq. David Francis Sorensen, Esq. Nicholas Urban, Esq. BERGER & MONTAGUE, PC 1818 Market Street Philadelphia, PA 19103 Telephone: (215) 875-3051 MINIMO BATH: Brown Sues Over Illegal Phone Calls ------------------------------------------------ KHA'MARYA BROWN, individually and on behalf of all, others similarly situated, Plaintiff v. MINIMO BATH & BODY, LLC, Defendant, Case No. 21-004232-CI (Fla. Cir. Ct., Pinellas Cty., Sept. 6, 2021) arises from the engagement of the Defendant in telephonic sales calls to promote its products and goods to consumers without having secured prior express written consent as required by the Florida Telephone Solicitation Act. The Plaintiff never provided the Defendant with express written consent authorizing Defendant to transmit telephonic sales calls to his cellular telephone number utilizing an automated system for the selection or dialing of telephone numbers. The Defendant's telephonic sales call allegedly caused Plaintiff and the class members harm, including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance. The Plaintiff is, and at all times relevant hereto was, a citizen and resident of Pinellas County, Florida. Minimo Bath & Body, LLC is a cosmetics company with primary place of business and headquarters in Houston, Texas.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard Suite 1400 Ft. Lauderdale, FL 33301 E-mail: mhiraldo@hiraldolaw.com Telephone: (954) 400-4713 - and - Rachel N. Dapeer, Esq. DAPEER LAW, P.A. 20900 NE 30th Avenue, Ste. 417 Aventura, FL 333180 E-mail: rachel@dapeer.com Telephone: (305) 610-5223 MITRE CORP: Klaskin Files ERISA Suit for Breach of Fiduciary Duties ------------------------------------------------------------------- JILL KLASKIN, Individually and on Behalf of The MITRE Corporation Tax Sheltered Annuity Plan and Qualified Retirement Plan and All Others Similarly Situated, Plaintiffs v. THE MITRE CORPORATION, MITRE BOARD OF TRUSTEES, JASON PROVIDAKES, ALFRED GRASSO, WILSON WANG, JEAN MILBRANDT, MARK KONTOS, DONALD M. KERR, MIKE ROGERS, GEORGE CAMPBELL JR., LANCE R. COLLINS, NICHOLAS M. DONOFRIO, DAVID FUBINI, GEORGE C. HALVORSON, PAUL G. KAMINSKI, YVETTE MELÉNDEZ, CATHY E. MINEHAN, JOHN NOSEWORTHY, ADALIO T. SANCHEZ RODNEY E. SLATER, JAN TIGHE, and JOHN DOES 1-20, Defendants, Case No. 1:21-cv-11452 (D. Mass., Sept. 3, 2021) is brought by the Plaintiff for breach of fiduciary duty pursuant to Sections 409 and 502 of the Employee Retirement Income Security Act of 1974 against MITRE and the other fiduciaries of the Tax Sheltered Annuity Plan and Qualified Retirement Plan (collectively, the "Plans" or the "MITRE Retirement Program"). According to the complaint, the Defendants breached their fiduciary duties by failing to manage and operate the Plans in a prudent manner or in the best interests of the Plans or participants. The Defendants failed to utilize a prudent process or methodology when selecting and monitoring the investment options for the Plans, added the suit. The Defendants' mismanagement of the Plans allegedly constitutes a breach of the fiduciary duties of prudence, in violation of 29 U.S.C. Section 1104. Based on this conduct, Plaintiff asserts claims against Defendants for breach of the fiduciary duties, co-fiduciary liability and failure to monitor fiduciaries. Plaintiff Jill Klaskin resides in Alexandria, Virginia and was a participant in the MITRE Retirement Program from September 4, 2015 to December 31, 2020, the class period. MITRE describes itself as a not-for-profit organization working in the public interest across governments, industry, and academia, and maintains one of its two principal locations in Bedford, Massachusetts.[BN] The Plaintiff is represented by: Jason M. Leviton, Esq. BLOCK & LEVITON LLP 260 Franklin Street, Suite 1860 Boston, MA 02110 Telephone: (617) 398-5600 Facsimile: (617) 507-6020 E-mail: jason@blockleviton.com - and - Samuel H. Rudman, Esq. Evan J. Kaufman, Esq. 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com ekaufman@rgrdlaw.com - and - Sarah E. Delaney, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 420 Lexington Avenue, Suite 1832 New York, NY 10170 Telephone: (212) 432-5100 E-mail: sdelaney@rgrdlaw.com MOLEKULE INC: Sobel Sues Over Air Purifier Product's Deceptive Ad ----------------------------------------------------------------- Barbara Sobel, individually and on behalf of all others similarly situated, Plaintiff v. Molekule, Inc., Defendant, Case No. 1:21-cv-04992-ARR-LB (E.D.N.Y., Sept. 5, 2021) arises from the Defendant's alleged false, deceptive, and misleading claims of its air purifiers under the Molekule brand in violation of the New York General Business Law and the Magnuson Moss Warranty Act. The Defendant claims its Photo Electrochemical Oxidation (PECO)-based air purifiers are superior to the High Efficiency Particulate Air (HEPA)-based devices. Ms. Sobel alleges that none of the claims are accurate since the Defendant does not possess any scientific support for its superiority claims vis-a-vis HEPA filters. She added that the Defendant's statements touting the abilities of the PECO technology are misleading, because even though Defendant claims its underlying technology can do these things, its devices are unable to. The Plaintiff bought the product, the Molekule Air, at Best Buy in Queens, New York. Molekule Inc. manufactures air pollution control equipment. The Company offers indoor air purification systems that breaks down harmful microscopic pollutants like allergens, mold, bacteria, viruses, and airborne chemicals. Molekule serves customers in the United States.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 409 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com MOLINA HEALTHCARE: Faces Suit Over Unpaid Pathology Services ------------------------------------------------------------ COMPREHENSIVE PATHOLOGY ASSOCIATES P.A., individually and on behalf of all others similarly situated, Plaintiff v. MOLINA HEALTHCARE OF FLORIDA, INC., Defendant, Case No. 134055882 (Fla. Cir., Miami-Dade Cty., Sept. 3, 2021) alleges that the Defendant failed to pay, in whole or in part, the submitted claims for professional pathology services provided by the Plaintiff and Class Members since approximately August 1, 2020. According to the complaint, the Defendant requested, impliedly or otherwise, the that Plaintiff and Class Members provide pathology related services to its Medicaid HMO subscribers. The professional component of clinical pathology services that the Plaintiff and Class Members provided to the Defendant's Medicaid HMO subscribers consisted of physician care services, including but not limited to clinical laboratory examinations, including the oversight and interpretation thereof to the Defendant's Medicaid HMO subscribers provided or supervised by the Plaintiff and Class Members. The Plaintiff and Class Members submitted claims to the Defendant for the services provided to the Defendant's Medicaid HMO subscribers and sought no less than AHCA's published professional fees for same. The Defendant has allegedly failed to pay for thousands of dollars in claims for the professional component of clinical pathology services rendered to Defendant's Medicaid HMO subscribers. The Plaintiff has notified the Defendant of the unpaid claims and demanded payment of said claims. Molina Healthcare of Florida, Inc. operates as an insurance company. The Company offers life and health insurance products and services. [BN] The Plaintiff is represented by: Patrick S. Montoya, Esq. Markus M. Kamber, Esq. COLSON HICKS EIDSON 255 Alhambra Circle, PH Coral Gables, FL 33134 Telephone: (305) 476-7400 Facsimile: (305) 476-7444 MUDRICK CAPITAL: Bid for Preliminary Injunction in Bass Pending --------------------------------------------------------------- Mudrick Capital Acquisition Corporation II (MUDS) said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on August 15, 2021, that the company awaits the court's decision on the motion for preliminary injunction filed in the putative class action suit initiated by Lawrence Bass. On August 10, 2021, Lawrence Bass, a purported MUDS stockholder, filed a putative class action complaint in the Delaware Court of Chancery against MUDS and the MUDS Board, alleging that: (i) MUDS and the MUDS Board have violated Section 242(b)(2) of the DGCL by denying holders of Class A common stock a separate class vote in connection with the charter proposal and (ii) the MUDS Board breached its fiduciary duties as a result of the alleged DGCL violation and the related filing of an allegedly misleading and incomplete definitive proxy statement insofar as it describes the vote to effectuate the charter proposal. Simultaneously, Mr. Bass also filed: (i) a motion to expedite; and (ii) a motion for preliminary injunction, which seeks to prevent the Board from conducting the vote on the charter proposal at the special meeting. The Court of Chancery has scheduled a hearing on the motion for preliminary injunction, to be held on August 20, 2021. Mudrick Capital Acquisition Corporation II operates as a blank check company. The Company aims to acquire one and more businesses and assets, via a merger, capital stock exchange, asset acquisition, stock purchase, and reorganization. MUFG UNION: Kassab Seeks Class Cert. Bid Filing Extension --------------------------------------------------------- In the class action lawsuit captioned as JOANDARK KASSAB, individually, and as a trustee of the Kassab Family 2014 Trust, and All Others Similarly Situated, v. MUFG UNION BANK, N.A., Case No. 3:20-cv-02422-WQH-BGS (S.D. Cal.), the Plaintiff asks the Court to enter an order extending the deadline to file its motion for class certification and complete fact discovery by 60 days as follows: Event Date -- Motion For Class Certification November 20, 2021 -- Fact Discovery Cutoff December 18, 2021 -- Designation of Experts January 18, 2022 -- Rebuttal Expert Designation December 2, 2022 -- FRCP 26(a)(2)(D) Disclosure February 2, 2022 Provisions -- FRCP 26(a)(2)(D) March 3, 2022 -- Expert Discovery Cut-Off April 18, 2022 The Plaintiff contends that the proposed schedule adjustment seeks to minimize substantial delays in the discovery schedule while the Parties continue to engage in good faith discovery efforts. His proposed schedule is consistent with the Parties' proposed schedule set forth in the Joint Stipulation, the Plaintiff adds. MUFG Union Bank is an American full-service bank with 398 branches in California, Washington and Oregon which is wholly owned by MUFG Bank. A copy of the Plaintiff's motion dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3zbUVJq at no extra charge.[CC] The Plaintiff is represented by: Manfred P. Muecke, Esq. MANFRED, APC 1350 Columbia Street, Suite 603 San Diego, CA 92101 Telephone: (619) 550-4005 E-mail: mmuecke@manfredapc.com - and - Todd D. Carpenter, Esq. Scott G. Braden, Esq. CARLSON LYNCH LLP 1350 Columbia Street, Suite 603 San Diego, CA 92101 Telephone: (619) 762-1910 E-mail: tcarpenter@carlsonlynch.com sbraden@carlsonlynch.com NCB MANAGEMENT: Class Cert. Response Date Modified to Jan. 13, 2022 ------------------------------------------------------------------- In the class action lawsuit captioned as Chandler v. NCB Management Services Inc., et al., Case No. 1:20-cv-03587 (E.D.N.Y.), the Hon. Judge Pamela K. Chen entered an order: 1. granting motion for extension of time to complete discovery; and 2. modifying response to motion for Rule 23 class certification due date from Jan. 23, 2022 to Jan. 13, 2022. The suit alleges violation of the Fair Debt Collection Practices Act involving consumer credit. NCB is a national accounts receivable management company and debt buyer.[CC] NET2SOURCE INC: Faces Keraachi Suit Over Contractors' Unpaid Wages ------------------------------------------------------------------ MOSTAFA KERAACHI, individually and on behalf of all others similarly situated, Plaintiff v. NET2SOURCE INC., XCEL ENERGY SERVICES INC., and DOES 1 through 50, inclusive, Defendants, Case No. 21GDCV01171 (Cal. Super., Los Angeles Cty., September 15, 2021) is a class action against the Defendants for violations of the California Labor Code and the California Business and Professions Code including failure to provide employment records, failure to pay overtime and double time, failure to provide rest and meal periods, failure to pay minimum wage, failure to keep accurate payroll records and provide itemized wage statements, failure to pay reporting time wages, failure to pay split shift wages, failure to pay all wages earned on time, failure to pay all wages earned upon discharge or resignation, failure to reimburse business-related expenses, and failure to provide notice of paid sick time and accrual. The Plaintiff worked for the Defendants as a scheduling contractor from on or about February 4, 2020 until on or about June 4, 2021. Net2source Inc. is a global workforce solutions company, headquartered in Somerset, New Jersey. Xcel Energy Services Inc. is a provider of electric energy services, headquartered in Minneapolis, Minnesota. [BN] The Plaintiff is represented by: Haig B. Kazandjian, Esq. Cathy Gonzalez, Esq. Kevin P. Crough, Esq. HAIG B. KAZANDJIAN LAWYERS, APC 801 North Brand Boulevard, Suite 970 Glendale, CA 91203 Telephone: (818) 696-2306 Facsimile: (818) 696-2307 E-mail: haig@hbklawyers.com cathy@hbklawyers.com kevin@hbklawyers.com NEW JERSEY: Bid for Writ of Habeas Corpus in Goodchild v. FCI Nixed ------------------------------------------------------------------- In the case, PETER GOODCHILD, ELIEZER SOTO CONCEPCION, JOAN ABREU-FELIZ and MICHAEL WINANS, individually and on behalf of all others similarly situated, Petitioners v. DAVID E. ORTIZ, Respondent, Civil Action No. 21-790 (RMB) (D.N.J.), Judge Renee Marie Bumb of the U.S. District Court for the District of New Jersey, Camden Vicinage, dismisses in part and denies in part a petition for writ of habeas corpus. The matter comes before the Court upon Petitioners Peter Goodchild, Eliezer Soto-Concepcion, Joan Abreu-Feliz, and Michael Winans' (collectively "Petitioners") petition for writ of habeas corpus under 28 U.S.C. Section 22411, filed as a putative class action. For the reasons discussed in this Opinion, the Court dismisses the petition in part for lack of jurisdiction and denies the petition in part on the merits. Background The Petitioners are federal prisoners who are confined in the minimum security camp within the Federal Correctional Institution in Fort Dix, New Jersey ("FCI Fort Dix") who were present during outbreaks of COVID-19 in the facility in 2020 and 2021. In summary of the petition, reply brief, and emergency supplemental petition, the Petitioners allege that the Respondent was deliberately indifferent to their health because maintaining six feet social distance was impossible in the Camp, inmates did not have enough soap or masks during the first outbreak, BOP did not use all available buildings to provide for social distancing of inmates, outdoor recreation was suspended even though being outdoors was the safest environment to avoid transmission of the virus, lack of testing and timely quarantining of COVID-19 positive inmates allowed the virus to spread, all nonemergent medical care was delayed and emergency care was not readily available, infected inmates were transferred from FCI Elkton to FCI Fort Dix and caused a second wave of infections in the low security compound, staff violated PPE and mask mandates, and delays or mistakes caused by understaffing over the holidays in December 2020 and January 2021, caused another wave of infections in the Camp. The Petitioners seek to represent a class of similarly situated individuals in the Camp who are at heightened risk, based on their ages and/or medical conditions, to a severe case of the virus or death, and that release from confinement under 28 U.S.C. Section 2241 is the only remedy to the Eighth Amendment violation caused by the Defendants' deliberate indifference to the spread of COVID-19 in the Camp. They further allege that the arbitrary decision to release to home confinement only those inmates who served at least 50% of their sentences, or have eighteen months or less remaining on their sentences and have served more than 25% of their sentences, constitutes deliberate indifference to their health, and relies on an unreasonable statutory interpretation of the CARES Act. In addition, the Petitioners seek declaratory judgment that their Eighth Amendment right to be free of cruel and unusual punishment was violated by their conditions of confinement, and they seek appointment of a special master to determine the number of inmates the Camp can accommodate with social distancing in place to protect against the spread of the virus. Finally, they seek to enlarge their custody to home confinement pending final resolution of their claims. The Respondent, in its Answer, challenges subject matter jurisdiction under 28 U.S.C. Section 2241, and alternatively argues that Petitioners' claims fail on the merits. The Respondent presented a counterstatement of facts rather than admitting or denying each allegation in the petition, and submitted a number of BOP documents that demonstrate the actions taken by the BOP to prevent spread of COVID-19 in BOP facilities. In their reply brief, the Petitioners do not contest the existence of these policies, but allege inadequacies and violation of the policies. The Petitioners filed an emergency supplemental petition in April 2021, because inmates were suddenly crowded into the A-wing of the Camp. They assert there was no reason to crowd 153 inmates into one wing, sharing only six showers. They allege that less than 50% of staff had been vaccinated and less than 30% of inmates had received both doses of the vaccine. The Petitioners renewed their request for the Court to order the BOP to release all those in the Camp who are eligible for release to home confinement under the CARES Act, absent the time-served requirement imposed by the BOP in contradiction to the Attorney General's guidance. In response to the Petitioners' emergency supplemental petition, the Respondent describes the latest conditions in the Camp, including the reason for movement of inmates into the A-wing on April 28, 2021. The BOP policy that resulted in the movement of inmates on April 28, 2021, "Module 6 Inmate Movement" was implemented on Nov. 3, 2020. Pursuant to Module 6, on April 28, 2021, the B-wing was designated "as a quarantine cohort used for minimum-security voluntary-surrender inmates and transfer quarantine and inmates transferring into the institution." The arriving inmates, who tested negative and were asymptomatic, would enter this quarantine and would eventually test out. On May 19, 2021, the B-wing cohort concluded, and it was expected that the Camp would soon revert back to approximately 45% capacity in each wing. At that time, there were no infections in the A-wing, and the vaccine had been offered to all eligible inmates and staff. In April 2021, legal and social visits and outdoor recreation resumed, with restrictions including physical distancing, sanitation, COVID-19 screening and mask requirements. The Respondent argues that the vaccine obviates the need for home confinement. Furthermore, he contends the Court lacks jurisdiction to consider the Petitioners' CARES Act claims, which Respondent asserts falls under the Administrative Procedures Act ("APA"), where judicial review is unavailable for decisions committed to agency discretion under 5 U.S.C. Section 701(a)(2). Discussion A. Habeas Jurisdiction Under 28 U.S.C. Section 2241 The Petitioners assert jurisdiction under 28 U.S.C. Section 2241 for two types of claims; first, conditions of confinement in the FCI Fort Dix Camp violate the Eighth Amendment, and the only adequate remedy is release; and second, that the BOP misinterpreted the CARES Act by denying their early release to home confinement based on percentage of time-served. "The plaintiff has the burden of persuasion to convince the court it has jurisdiction." "A claim may be dismissed under Rule 12(b)(1) only if it 'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction.'" 1. Eighth Amendment conditions of confinement claim In support of their petition, the Petitioners argue that Respondent has been deliberately indifferent to their health by confining them in a locked dormitory with other inmates infected with COVID-19, despite Respondent's ability to release them to home confinement under the CARES Act. They contend that their immediate release is the only remedy for the Eighth Amendment violation because Respondent's mitigation policies have failed, and, therefore, habeas jurisdiction is appropriate. Judge Bumb opines that it is clear that the Petitioners have alternatives to the extraordinary remedy of releasing convicted prisoners before expiration of their sentences, based solely on their conditions of confinement. Although six feet social distance is not possible in the Camp, there was other injunctive relief that could have reduced the spread of COVID-19, including more expansive testing requirements, strict enforcement of the mask requirement, and use of empty buildings for greater social distancing (not sought by the Petitioners). Further, insofar as the Petitioners alleged they received inadequate medical care, the Judge holds that prospective injunctive relief is available to prisoners. Thus, in addition to the mitigation efforts already in place, injunctive relief could have remedied the alleged Eighth Amendment violation. In addition, Judge Bumb holds that convicted prisoners may seek compassionate release via a reduction in sentence from their sentencing courts, based on extraordinary circumstances. Further, she opines that although the Petitioners challenge the manner in which the BOP has exercised its discretion under the CARES Act, it remains another avenue for release from alleged unconstitutional conditions. These alternative remedies address important public safety and rehabilitation factors that do not come into play when a court grants habeas relief based solely on conditions of confinement. Release of convicted prisoners without consideration of these factors should be limited to extraordinary situations where no other remedy is available. For these reasons, the Judge does not find jurisdiction under Section 2241 under the circumstances presented. 2. Challenge to the BOP's Statutory Interpretation of the CARES Act The Petitioners challenge the BOP's statutory interpretation of the CARES Act, asserting the BOP's time-served eligibility requirement is contrary to the Attorney General's memoranda providing guidance for extended release to home confinement under 18 U.S.C. Section 3624(c)(2). The Respondent contends that the protection from the vaccine obviates the need for transfer to home confinement under the CARES Act. Moreover, courts lack jurisdiction to review BOP's discretionary decisions regarding home confinement. The Administrative Procedure Act, pursuant to 5 U.S.C. Section 701(a)(2), does not provide a basis for review of BOP determinations under the CARES Act because CARES Act determinations are committed to agency discretion. Judge Bumb explains that the Attorney General, in his April 3, 2020 memorandum, found that emergency conditions related to the COVID-19 pandemic materially affected the functioning of the Bureau of Prisons, thus triggering the home confinement authority in the CARES Act. The Attorney General provided eligibility guidance for the BOP, but the statute unambiguously places discretion to determine when it is appropriate to exceed a federal prisoner's maximum term of home confinement with the Director of the Bureau of Prisons, not the Attorney General. Moreover, in his March 26, 2020 memorandum, the Attorney General stated the list of factors to consider was non-exhaustive and discretionary. In the April 3, 2020 memorandum, the Attorney General urged the BOP to maximize transfers to home confinement for appropriate prisoners, but did not alter the previous guidance on eligibility, leaving discretion with the BOP. For these reasons, the Judge holds that the Petitioners' challenge to the BOP's statutory interpretation fails, and she denies habeas relief on this basis. B. Additional Assertions of Jurisdiction Judge Bumb liberally construes the petition as raising claims under the APA, challenging the BOP's denial of extended home confinement to Petitioners under the CARES Act as arbitrary and capricious. Judge Bumb holds that Section 701(a) precludes judicial review. The plain language of 18 U.S.C. Section 3625 specifies that the judicial review provisions of the APA, 5 U.S.C. Section 701-706, do not apply to 'any determination, decision, or order' made pursuant to 18 U.S.C. Sections 3621-3624." Extended home confinement under the CARES Act falls under Section 3624(c), and is thus exempted from judicial review. Furthermore, the determination of when extended home confinement is appropriate is committed to the discretion of the Director of the Bureau of Prisons by the express language of the CARES Act. Therefore, judicial review under the Administrative Procedure Act is unavailable for this additional reason. In any event, the Judge holds that BOP's determination was not arbitrary, the BOP considered the Petitioners for CARES Act early release based on their individual characteristics, and exercised the discretion afforded to the Director of the BOP to prioritize for release those who had served greater percentages of their sentences. The Petitioners also assert jurisdiction under 28 U.S.C. Section 1331, solely for the purpose of seeking appointment of a special master to determine how many inmates FCI Fort Dix can house in the Camp while maintaining six feet social distance between inmates during the pandemic. Because she concludes, in the alternative merits discussion of the Petitioners' Eighth Amendment claim, that the Eighth Amendment does not require FCI Fort Dix to provide six feet distance between inmates, Judge Bumb need not split this claim from the habeas petition to open a civil rights action under 28 U.S.C. Section 1331. C. Alternative Merits Analysis of Eighth Amendment Claim Judge Bumb addresses the merits of the Eighth Amendment conditions of confinement claims in the alternative to dismissal for lack of jurisdiction. The Petitioners allege the Respondent was deliberately indifferent to their health, in violation of the Eighth Amendment, based on the failure to prevent the spread of COVID-19 in the FCI Fort Dix Camp, and based on BOP's failure to transfer them to extended home confinement under the CARES Act. The Petitioners point to various instances where BOP policies were not enforced, for instance inadequate soap supplies early in the pandemic, staff not wearing PPE, and understaffing over the winter holidays that slowed identification and isolation of sick inmates. These alleged instances were not so widespread as to constitute deliberate indifference by the Respondent. Judge Bumb cannot conclude that the Respondent was deliberately indifferent to the Petitioners' health risks because FCI Fort Dix adopted and implemented, albeit imperfectly during difficult times, the CDC guidance for managing the spread of COVID-19 in a detention facility that housed inmates in a dormitory-style setting. The Petitioners raise a second Eighth Amendment claim. Given the inability to provide the ideal conditions for preventing spread of COVID-19 in the FCI Fort Dix Camp, the Respondent was deliberately indifferent by refusing to release them to extended home confinement under the CARES Act, based on considerations other than public safety, such as percentage of their sentences served. Finally, as the Respondent acknowledged in answer to the petition, the Attorney General's April 3, 2020 memorandum calls for discretionary and individualized determinations of eligibility. The individual and discretionary nature of review for eligibility implies that inmates will not be categorically excluded based on the amount of time-served as the BOP continues to review inmates for eligibility. Although courts cannot review the BOP's discretionary CARES Act determinations, administrative review is available to inmates through the BOP's administrative remedy program. Conclusion For the reasons she discussed, Judge Bumb finds that the Court lacks jurisdiction under 28 U.S.C. Section 2241 to provide habeas relief on the Petitioners' Eighth Amendment conditions of confinement claim, and dismisses the claim under Federal Rule of Civil procedure 12(b)(1). Alternatively, the Judge finds that the Respondent was not deliberately indifferent to the Petitioners' health in violation of the Eighth Amendment. The Judge holds that the Court also lacks jurisdiction over the Petitioners' APA claims, and alternatively finds that the Respondent's denial of early release under the CARES Act was not arbitrary and capricious. The Judge finds jurisdiction over the Petitioners' Section 2241 habeas claim that Respondent misinterpreted the CARES Act, but denies the claim on the merits. An appropriate Order follows. A full-text copy of the Court's Sept. 1, 2021 Opinion is available at https://tinyurl.com/356jawhh from Leagle.com. Peter Goodchild, Eliezer Soto Concepcion, Joan Abreu-Feliz, Michael Winans, Joint Base MDL, NJ, Petitioners pro se. John T. Stinson, Jr., Jane Dattilo, John Andrew Ruymann, Assistant United States Attorneys United States Department of Justice, Office of the U.S. Attorney, in Camden, New Jersey, Attorneys for Respondent. NVIDIA CORP: Dismissal of Securities Class Suit Under Appeal ------------------------------------------------------------ NVIDIA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 20, 2021, for the quarterly period ended August 1, 2021, that plaintiffs filed an appeal from the judgment in the United States Court of Appeals for the Ninth Circuit, case number 21-15604. The plaintiffs in the putative securities class action lawsuit, captioned 4:18-cv-07669-HSG, initially filed on December 21, 2018 in the United States District Court for the Northern District of California, and titled In Re NVIDIA Corporation Securities Litigation, filed an amended complaint on May 13, 2020. The amended complaint asserted that NVIDIA and certain NVIDIA executives violated Section 10(b) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and SEC Rule 10b-5, by making materially false or misleading statements related to channel inventory and the impact of cryptocurrency mining on GPU demand between May 10, 2017 and November 14, 2018. Plaintiffs also alleged that the NVIDIA executives who they named as defendants violated Section 20(a) of the Exchange Act. Plaintiffs sought class certification, an award of unspecified compensatory damages, an award of reasonable costs and expenses, including attorneys' fees and expert fees, and further relief as the Court may deem just and proper. On March 2, 2021, the district court granted NVIDIA's motion to dismiss the complaint without leave to amend, entered judgment in favor of NVIDIA and closed the case. On August 11, 2021, plaintiffs filed an appeal from judgment in the United States Court of Appeals for the Ninth Circuit, case number 21-15604. NVIDIA Corporation operates as a visual computing company worldwide. It operates in two segments, GPU and Tegra Processor. The company was founded in 1993 and is headquartered in Santa Clara, California. OSI SYSTEMS: Longo Must File Class Certification Bid by Oct. 22 --------------------------------------------------------------- In the class action lawsuit captioned as Cory Longo, et al., v. OSI Systems, Inc., et al., Case No. 2:17-cv-08841-FMO-S (C.D. Cal.), the Hon. Judge Fernando M. Olguin entered an order on notice of settlement and requirements regarding preliminary approval that: 1. All pending deadlines and proceedings are vacated. 2. Plaintiffs shall file a Motion for Class Certification and Preliminary Approval of Settlement Agreement no later than October 22, 2021. Defendants are encouraged to also file a brief in support of the motion for preliminary approval. 3. The Plaintiffs are advised that the court will not grant the Motion unless it includes a discussion of the Rule 23(e) of the Federal Rules of Civil Procedure requirements, including but not limited to evidentiary support. OSI Systems is an American company based in California that develops and markets security and inspection systems such as airport security X-ray machines and metal detectors, medical monitoring and anesthesia systems, and optoelectronic devices. A copy of the civil minutes -- general dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/2VKKDCA at no extra charge.[CC] PAR ELECTRICAL: Bid to Remand Curley Suit to State Court Granted ---------------------------------------------------------------- In the case, KOREY CURLEY, on behalf of himself and other similarly situated aggrieved employees, Plaintiffs v. PAR ELECTRICAL CONTRACTORS, INC., a Missouri corporation; and DOES 1 through 10, inclusive, Defendants, Case No. 21-cv-01200-GPC (S.D. Cal.). Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California granted the Plaintiff's Motion to Remand to State Court. Background On May 4, 2021, the Plaintiff filed a Class Action Complaint against the Defendant in San Diego Superior Court, alleging causes of action for: (1) failure to pay minimum, regular, and overtime wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure to provide accurate itemized wage statements; (5) failure to pay wages timely to terminated employees; (6) failure to maintain accurate records; (7) violations of unfair competition law; and civil penalties under the Private Attorneys General Act ("PAGA") for the first through the sixth causes of action. The Plaintiff's Complaint sought to certify nine subclasses, applying some, but not all, of the causes of action to each. Members of the Plaintiff Class were identified as non-exempt electrical installation employees in the State of California employed "at any time prior to the filing of the complaint until the time of trial." On June 30, 2021, the Defendant filed a Notice of Removal alleging that this Court has jurisdiction pursuant to 28 U.S.C. Section 1332(d), the Class Action Fairness Act of 2005 ("CAFA"). The Defendant's Notice of Removal alleged an amount in controversy based on its calculations of potential damages under the Plaintiff's second, third, and fourth causes of action. Under the second and third causes of action (violations of California Labor Code Section 226.7 concerning meal and rest periods), the Defendants calculated potential damages of $15,336,992 by estimating that the proposed class consisted of 748 individuals and assuming each of the 748 individuals suffered the same violation rate as the Plaintiff, i.e., one missed meal break and one missed rest break every week for fifty weeks a year. Notice at Procedure 6(b)(1)(B). The request is granted despite the fact that Defendants failed to properly file a motion to extend time. Under the fourth cause of action, the Defendant used the maximum statutory penalty of $4,000 multiplied by the estimated class of 748 putative class members to arrive at potential damages of $2,992,000. Applying these estimates, the Defendants allege damages exceeded CAFA's statutory minimum of $5 million. Discussion A defendant seeking to remove a case from a state court to a federal court must file a notice of removal in the federal forum "containing a short and plain statement of the grounds for removal." Federal courts have jurisdiction over class actions as defined under CAFA if there is a class of over 100 members, minimal diversity exists between the plaintiff and defendant, and the amount in controversy exceeds $5 million. Under CAFA, "the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdiction." a. Class Size and Minimal Diversity CAFA requires a class of over 100 members. The Plaintiff's Complaint estimates that there are over 100 individuals in the class. Further, the Plaintiff does not contest the Defendant's estimate of the proposed class size at 748 employees. As such, Curiel finds that CAFA's class size requirement is met. The removing party has the burden of pleading minimal diversity. A party's allegation of minimal diversity may be based on information and belief. In its notice of removal, the Defendant alleges that the Plaintiff is, and was at the time of the action's commencement, a resident and citizen of California. It alleges that it is a citizen of Missouri, with its principal place of business in Kansas City, Missouri. The Plaintiff's Motion protests that the Defendant asserted without evidence that the Plaintiff is a citizen of California, and argues that there are "scant allegations" that PAR facilities in Missouri would be sufficient to make Defendant a Missouri citizen. However, Judge Curiel finds that the Motion does not suggest where the Plaintiff would be a citizen, if not California, nor does it offer an alternative state where the Defendant would be a citizen. The Judge interprets the Plaintiff's attack on minimal diversity as a facial challenge, not a factual one. A facial challenge "accepts the truth of the removing party's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction." In the case, the Plaintiff does not allege that he is not a citizen of California, nor that the Defendant is not a citizen of Missouri, as might be expected in a factual challenge. Instead, the Plaintiff contests the sufficiency of Defendant's assertions by pointing to a lack of evidence. That is the essence of a facial challenge, which is foreclosed under the Supreme Court's holding in Dart Cherokee. Under a facial challenge, the removing defendant is not required to present evidence in support of its allegation of minimal diversity. Therefore, the Defendant's jurisdictional allegations, which provided a short and plain statement of the parties' citizenships based on information and belief, satisfied the Defendant's burden of pleading minimal diversity. b. Amount in Controversy As with the issue of minimal diversity, the removing party's burden depends on whether the jurisdictional attack is facial or factual. If the amount in controversy is unclear or ambiguous from the face of the state court complaint, the removing defendant under a factual attack bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional threshold. The Plaintiff's state court complaint does not give a specific amount in controversy. Nor does the Plaintiff's complaint allege a specific number of individuals in the class, other than an estimate that the class would have over 100 individuals. The Plaintiff's Motion to Remand mounts a factual attack on the Defendant's allegations, contesting, inter alia, that each absent class member worked 50 workweeks or that the violation rate is 100%. It is therefore the Defendant's burden to support its jurisdictional allegations with competent proof by a preponderance of the evidence. Judge Curiel finds that the Defendant provides no specific evidence to support its assumption that all members of the class are also members of the subclasses identified by the Plaintiff. He finds this an unreasonable assumption that does not satisfy the Defendant's burden of proving the amount in controversy by a preponderance of the evidence. He says, simply pointing to the Plaintiff's assertions of a "uniform" policy is too slender a reed, without more, to support the Defendant's allegations that every member of the class suffered injuries every week that member worked, thus adding up to over $5 million in potential liability. While the Notice of Removal alleges an amount ($18,328,992) significantly higher than CAFA's $5 million threshold, and therefore it is possible that a reduced violation rate could still result in a sufficient amount in controversy, "it is not the Court's job to perform the mathematical calculations to justify it. That is the Defendant's burden." The Judge holds that even if he were to assume the Defendant's burden to modulate the alleged $15,336,992, the Defendant has "failed to provide any information which would enable the Court to calculate more conservative estimates." Based on the lack of evidence put forth by the Defendant to support its calculations of the amount in controversy, the Judge concludes that the Defendant has failed to demonstrate by a preponderance of the evidence that the amount in controversy exceeds $5 million as required under CAFA. Conclusion Based on the foregoing, Judge Curiel granted the Plaintiff's Motion to Remand to State Court. A full-text copy of the Court's Sept. 1, 2021 Order is available at https://tinyurl.com/shcfceh4 from Leagle.com. PERFORMANCE FOOD: Court Dismisses Perez Class Suit With Prejudice ----------------------------------------------------------------- Judge John A. Kronstadt of the U.S. District Court for the Central District of California dismissed with prejudice the case, JORGE PEREZ, on behalf of himself, all others similarly situated, and the general public, Plaintiff v. PERFORMANCE FOOD GROUP, INC., a Colorado corporation; VISTAR TRANSPORTATION, LLC, a Delaware limited liability company; ROMA FOOD ENTERPRISES, INC., a California corporation; and DOES 1-50, inclusive, Defendants, Case No. 2:17-CV-00357-JAK-SK (C.D. Cal.). The Plaintiff's Motion for Final Approval of Class Action Settlement and Plaintiff's Motion for an Award of (1) Attorney's Fees to Class Counsel, and (2) Enhancement to Plaintiff, was reviewed and granted. Therefore, Judge Kronstadt approved the Settlement Agreement entered by the parties. The Court retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of this order and the Settlement. It also retains jurisdiction over all parties and the Class as to all matters concerning disbursement of unclaimed settlement funds and related matters. The Parties and the Settlement Administrator will comply with all obligations under the Settlement Agreement. The proposed service award of $5,000 is fair reasonable and adequate, and will be paid to Jorge Perez from the Settlement Fund. The Class Counsel is awarded attorney's fees of $258,333.33, and will be reimbursed for their litigation costs of $30,390.57, which will all be paid from the Settlement Fund. The Settlement Administrator, Simpluris, Inc., is awarded settlement administration expenses in the amount of $9,000, which will be paid from the Settlement Fund. The action is dismissed with prejudice. A full-text copy of the Court's Sept. 1, 2021 Judgment is available at https://tinyurl.com/rjm5njxs from Leagle.com. PETROQUEST ENERGY: Class Cert. Reply Deadline Extended to Nov. 8 ---------------------------------------------------------------- In the class action lawsuit captioned as Hoog, et al., v. PetroQuest Energy, LLC, et al., Case No. 6:16-cv-00463 (E.D. Okla.), the Hon. Judge Ronald A. White entered an order granting joint motion to extend class certification reply deadline to Nov. 8, 2021. The nature of suit states Diversity -- Breach of Contract. PetroQuest operates as an energy company. The Company specializes in exploration, development, acquisition, and production of oil.[CC] PLBY GROUP: Scott Putative Class Suit Voluntarily Dismissed ----------------------------------------------------------- PLBY Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that the purported class action lawsuit initiated by Lathario Scott has been voluntarily dismissed. On January 19, 2021, Lathario Scott filed a purported class action lawsuit against Playboy Enterprises Inc. in Los Angeles Superior Court. Scott alleged that Playboy used software to track his and purported class members' electronic communications on Playboy's website (http://www.playboy.com/),including their mouse movements and clicks, information inputted into the site and content viewed on the site, and that such actions violated the Florida Security of Communications Act. Scott sought to certify a class of persons residing in the State of Florida who visited Playboy's website and whose electronic communications were tracked without their consent. Plaintiff sought declaratory and injunctive relief, as well as compensatory, statutory and other damages. On March 18, 2021, the case was removed to the United States District Court for the Central District of California. On June 9, 2021, the plaintiff voluntarily dismissed his claim. PLBY Group, Inc. is an American global media and lifestyle company founded by Hugh Hefner to oversee Playboy magazine and related assets. It is currently headquartered in Los Angeles, California. PROGENITY INC: Court Dismisses Securities Suit Without Prejudice ---------------------------------------------------------------- In the case, IN RE PROGENITY, INC. SECURITIES LITIGATION, Case No. 20-cv-1683-CAB-AHG (S.D. Cal.), Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California granted the Defendants' motion to dismiss the Plaintiffs' first amended class action complaint. Background The consolidated class action alleges violations of Sections 11 and 15 of the Securities Act of 1933 arising out of alleged false and misleading statements contained in the Registration Statement filed in connection with the June 2020 initial public offering ("IPO") of shares of common stock of Progenity. The first amended class action complaint ("FAC") alleges various securities violations by three groups of Defendants: (1) Progenity; (2) Harry Stylli, Eric d'Esparbes, Jeffrey Alter, John Bigalke, Jeffrey Ferrell, Brian L. Kotzin, Samuel Nussbaum, and Lynne Powell ("Individual Defendants"); and (3) Piper Sandler & Co., Wells Fargo Securities, LLC, Robert W. Baird & Co. Incorporated, Raymond James & Associates, Inc., and BTIG, LLC ("Underwriter Defendants"). Progenity is a biotechnology company based in San Diego, California that develops and commercializes molecular testing products and precision medicine applications, including "in vitro molecular tests designed to assist parents in making informed decisions related to family planning, pregnancy, and complex disease diagnosis." At the time of the IPO, Progenity's two most successful products were its Innatal and Preparent tests, which screen for fetal chromosomal conditions and mutations that cause genetic diseases, respectively. At all relevant times, Stylli served as Progenity's CEO and Chairman of the Board of Directors, and d'Esparbes served as Progenity's CFO. Alter, Bigalke, Ferrell, Kotzin, Nussbaum, and Powell served as members of Progenity's Board of Directors. All Individual Defendants signed (or authorized the signing of) the Registration Statement issued in connection with Progenity's IPO, "reviewed and helped prepare the Registration Statement," and "participated in the solicitation and sale of Progenity's common stock to investors in the IPO for their own financial benefit and the financial benefit of Progenity." Piper Sandler, Wells Fargo, Baird, Raymond James, and BTIG are financial services companies that acted as underwriters for Progenity's IPO. The Underwriter Defendants collectively "sold more than 6.6 million Progenity shares in the IPO at $15 per share and shared $7 million in underwriting discounts and commissions." According to the FAC, the Underwriter Defendants failed to "conduct adequate due diligence in connection with the IPO and the preparation of the Registration Statement," thereby leading to the class harm. Lead Plaintiffs Lin Shen, Lingjun Lin, and Fusheng Lin bring the action on behalf of a putative class of investors who purchased or otherwise acquired Progenity common stock pursuant and/or traceable to the Registration Statement issued in connection with Progenity's IPO. On Dec. 3, 2020, the Court consolidated two related securities class actions against Progenity and appointed Lin Shen, Lingjun Lin, and Fusheng Lin as Lead Plaintiffs. The Plaintiffs subsequently filed the FAC on Feb. 4, 2021, alleging violations of Sections 11 and 15 of the Securities Act of 1933. On April 5, 2021, the Defendants moved to dismiss the FAC. They argue that the FAC should be dismissed for (1) failure to plead a materially false or misleading statement or omission under Section 11 of the Securities Act of 1933; (2) failure to plead a violation of Items 303 and 105 of the U.S. Securities and Exchange Commission Regulation S-K; and (3) failure to plead control person liability under Section 15 of the Securities Act. Request for Judicial Notice The Defendants request that the Court takes judicial notice of six exhibits: Excerpts from Progenity's Form 424B4 Prospectus, filed with the SEC on June 22, 2020; a copy of Progenity stock prices from June 19, 2020 to April 5, 2021, as obtained from Yahoo! Finance (Ex. B); Progenity's Form 10-Q, filed with the SEC on Aug. 14, 2020 (Ex. C); excerpts from the Financial Accounting Standards Board's (FASB) Accounting Standards Codification (ASC) 105 and 450 (Ex. D); and "excerpts" from ASC 606. The Plaintiffs oppose the Defendants' request as to Exhibit D because ASC 450 "is mentioned nowhere in the FAC and does not otherwise 'form the basis' of the Plaintiffs' allegations." The Plaintiffs also oppose the Defendants' request as to Exhibit E because it is not an actual copy of ASC 606 but rather an editorial secondary source "providing 'interpretation and analysis' of the FASB Codification." Judge Bencivengo takes judicial notice of Progenity's Form 424B4 Prospectus, filed with the SEC on June 22, 2020, and of Progenity's Form 10-Q, filed with the SEC on Aug. 14, 2020, in their entirety as both matters of public record and as documents forming the basis of the Plaintiffs' claims. She also takes judicial notice of Progenity's stock price history in Exhibit B, although that history does not affect the Court's analysis for purposes of the present motion. Finally, the Judge takes judicial notice of ASC 105, ASC 450, and ASC 606 as publicly available materials taken from a "source whose accuracy cannot reasonably be questioned," the FASB. However, the same cannot be said for the Defendants' Exhibit E, which appears to be an editorial overview of ASC 606 rather than the accounting standard itself. Thus, the Judge declines to take judicial notice of Exhibit E. Discussion A. Section 11 Claim The Plaintiffs' first cause of action is brought against all the Defendants for alleged violations of Section 11 of the Securities Act of 1933. Section 11 imposes liability where a registration statement "contain[s] an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading." Therefore, to prevail on a Section 11 claim, the plaintiff must demonstrate "(1) that the registration statement contained an omission or misrepresentation, and (2) that the omission or misrepresentation was material, that is, it would have misled a reasonable investor about the nature of his or her investment." The Plaintiffs' Section 11 claim is based on four allegedly material omissions from Progenity's Registration Statement: (1) that Progenity had overbilled government payors for Preparent tests and would be required to refund them at least $10.3 million; (2) that Progenity was experiencing a trend of decreasing test volume; (3) that Progenity was experiencing a trend of decreasing average selling prices for tests; and (4) that Progenity was experiencing a trend of decreasing revenues. The Plaintiffs identify various statements in the Registration Statement that they allege were consequently "materially false and misleading when made" because of Defendants' failure to disclose the foregoing facts. They claim that these omissions also violate Items 105 and 303 of Regulation S-K, which they argue constitutes another basis for liability under Section 11. 1. $10.3 Million Refund Liability to Government Payors First, the Plaintiffs claim that the Defendants violated Section 11 by failing to disclose that Progenity would "imminently have to accrue and refund $10.3 million" for overbilling government payors for Preparent tests. According to them, the failure to disclose this information made Progenity's previously issued financial statements (concerning revenue, accrued expenses, current and future liabilities, and other financial metrics) reproduced in the Registration Statement misleading because they do not account for the $10.3 million liability and revenue reversal. In sum, Judge Bencivengo holds that liability under Section 11 "only attaches for misrepresenting or omitting information that was available when the offering materials became effective." The $10.3 million liability accrual reported in Progenity's second quarter 2020 Form 10-Q did not exist when the Registration Statement became effective. Accordingly, to the extent that the Plaintiffs' Section 11 claim is premised on an alleged omission of the $10.3 million refund liability, it is dismissed without prejudice. 2. Negative Trends in Test Volume, Average Price, and Revenue Next, the Plaintiffs claim that the Defendants violated Section 11 by failing to disclose Progenity's negative trends in test volume, average selling price, and revenue. They claim that "these material facts existed at the time of the IPO, were necessary to make the statements in the Registration Statement not misleading, and were required to be included in the Registration Statement but were negligently omitted." Judge Bencivengo holds that the Plaintiffs have not established that the Defendants made any false statement or omitted to state a material fact necessary to make the other statements in the Registration Statement not misleading. To the extent that the Plaintiffs' Section 11 claim is premised on an alleged omission of Progenity's negative trend in test volume, it is dismissed without prejudice. The Judge also holds that the Plaintiffs have not adequately pleaded that Defendants were required to disclose the alleged negative trend in Progenity's ASP in order to make the other statements in the Registration Statement not misleading. Accordingly, to the extent that the Plaintiffs' Section 11 claim is premised on an alleged omission of Progenity's negative trend in ASP, it is also dismissed without prejudice. Lastly, the Judge holds that the Plaintiffs have not established that the Defendants omitted to state a material fact necessary to make other statements in the Registration Statement not misleading. She holds that to the extent that the Plaintiffs' Section 11 claim is premised on an alleged omission of Progenity's negative trend in revenue, it is dismissed without prejudice. 3. Items 105 and 303 Disclosure Obligations The Plaintiffs also claim that the Defendants violated Section 11 by failing to meet their disclosure obligations under Items 303 and 105 of SEC Regulation S-K. First, Judge Bencivengo holds that the Plaintiffs have failed to show that the Defendants omitted a known material trend from the Registration Statement that was not adequately captured by the disclosure of declining test volume and revenue data. She dismissed the Plaintiffs' Section 11 claim predicated on Item 303 violations without prejudice. Second, the Judge finds that the Plaintiffs' Item 105 claim fails for the same reason -- the Plaintiffs have not established that the liability existed at the time the Registration Statement took effect. Because the liability did not exist, the Defendants could not have reasonably known about it, and they could not have discussed it in the Registration Statement as a material factor making an investment in Progenity "speculative or risky." Moreover, the Defendants made various statements in the Registration Statement disclosing the possibility that payors could seek refunds of amounts paid. Accordingly, the Plaintiffs' Section 11 claim predicated on Item 105 violations is dismissed without prejudice. B. Section 15 Claim The Plaintiffs' second cause of action is brought against the Individual Defendants for alleged violations of Section 15 of the Securities Act of 1933. Section 15 imposes joint and several liability upon every person who controls any person liable under Section 11. 15 U.S.C. Section 770. For the reasons she stated, Judge Bencivengo holds that the Plaintiffs fail to adequately plead a Section 11 violation. Accordingly, she grants the motion to dismiss the Plaintiffs' Section 15 claim, and the Plaintiffs' second cause of action is dismissed without prejudice. Conclusion For the reasons she set forth, Judge Bencivengo granted the Defendant's motion to dismiss the FAC, and the Plaintiff's claims are dismissed without prejudice. The Plaintiffs may file a second amended complaint no later than 21 calendar days following the date of the Order. Should the Plaintiffs choose to file a second amended complaint, it must be filed in compliance with Local Civil Rule 15.1(c). If the Plaintiffs choose not to file an amended complaint by the above deadline, the Clerk of Court will close the case. A full-text copy of the Court's Sept. 1, 2021 Order is available at https://tinyurl.com/fezwrwhs from Leagle.com. PROGRESSIVE MGMT: Answer to Fernandez Complaint Due on Sept. 20 --------------------------------------------------------------- In the case, HECTOR FERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff v. PROGRESSIVE MANAGEMENT SYSTEMS; EMERGENCY AND ACUTE CARE MEDICAL CORP., Defendant, Case No. 3:21-cv-00841-BEN-RBB (S.D. Cal.), Judge Roger T. Benitez of the U.S. District Court for the Southern District of California grants the parties' Joint Motion for Additional Time to Respond to the Complaint. Background Plaintiff Fernandez, individually and on behalf of all others similarly situated, brings the action, alleging violation of various fair debt collection laws against Defendant R.M. Galicia, Inc., a California corporation doing business as Progressive Management Systems ("PMS"), and Emergency and Acute Care Medical Corp., a California corporation. On April 30, 2021, the Plaintiff filed the instance Class Action Complaint for violations of the (1) Federal Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et seq.; (2) Rosenthal Fair Debt Collection Practices Act, CAL. CIV. Section 1788 et seq.; (3) California Unfair Competition Law, CAL. BUS. & PROF CODE Section 17200, et seq.; and (4) California Consumers Legal Remedies Act. On July 28, 2021, the Plaintiff served PMS. PMS' deadline to respond to the Complaint was due on Aug. 18, 2021. On Aug. 18, 2021, the Plaintiff and PMS filed the Joint Motion, seeking an extension of time for PMS to respond to the Complaint in order to allow PMS to complete an internal investigation of the Plaintiff's claims and explore potential early settlement. On Sept. 1, 2021, the Plaintiff and PMS filed a second Joint Motion. Legal Standard Rule 12 of the Federal Rules of Civil Procedure requires a defendant to file a responsive pleading within either (1) 21 days of being served with the summons and complaint or (2) 60 days after the request for a waiver was sent. Pursuant to the Local Rules, "extensions of time for answering, or moving to dismiss a complaint will only be secured by obtaining the approval of a judicial officer, who will base the decision on a showing of good case." Thus, "in the Southern District, court approval is required for any extension of time to answer or move to dismiss the complaint." Order Judge Benitez finds good cause exists to justify the requested extension. Thus, he retroactively grants PMS a 30-day extension of time to respond to Monday, Sept. 20, 2021. A full-text copy of the Court's Sept. 1, 2021 Order is available at https://tinyurl.com/tpxbykbf from Leagle.com. QUEST DIAGNOSTICS: Vargas Seeks to Certify Class & Subclass ----------------------------------------------------------- In the class action lawsuit captioned as JULIAN VARGAS, ANNE WEST, and AMERICAN COUNCIL OF THE BLIND, individually on behalf of themselves and all others similarly situated, v. QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC., QUEST DIAGNOSTICS HOLDINGS, INC., QUEST DIAGNOSTICS INCORPORATED; and DOES 1-10, inclusive, Case No. 2:19-cv-08108-DMG-MRW (C.D. Cal.), the Plaintiff Julian Vargas asks the Court to enter an order: 1. certifying the following nationwide class, and subclass; -- nationwide class "All legally blind individuals who visited a Quest patient service center in the United States between January 1, 2018, through December 31, 2019 (the "Class Period"), and were denied full and equal enjoyment of the services, facilities, privileges, advantages, or accommodations due to Quest's failure to make its e- check-in self-service kiosks independently accessible to legally blind individuals. -- California subclass "All legally blind individuals who visited a Quest patient service center in California during the Class Period and were denied full and equal enjoyment of the services, facilities, privileges, advantages, or accommodations due to Quest's failure to make its e- check-in self-service kiosks independently accessible to legally blind individuals." 2. appointing him as the class representative for the nationwide class and for the California subclass; 3. appointing the law firms of Nye, Stirling, Hale & Miller, LLP and Handley, Farah & Anderson, PLLC as class counsel; and 4. setting such further proceedings regarding notice to the class and subclass as necessary. Quest Diagnostics is an American clinical laboratory. A Fortune 500 company, Quest operates in the United States, Puerto Rico, Mexico, and Brazil. Quest also maintains collaborative agreements with various hospitals and clinics across the globe. A copy of the Plaintiff's motion to certify class dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3lsf5dk at no extra charge.[CC] The Attorneys for Plaintiffs Julian Vargas, American Council of the Blind, and the Proposed Class, are: Jonathan D. Miller, Esq. Alison M. Bernal, Esq. Benjamin J. Sweet, Esq. NYE, STIRLING, HALE & MILLER, LLP 33 West Mission Street, Suite 201 Santa Barbara, CA 93101 Telephone: (805) 963-2345 E-mail: jonathan@nshmlaw.com alison@nshmlaw.com ben@nshmlaw.com - and - Matthew K. Handley, Esq. HANDLEY FARAH & ANDERSON PLLC 777 6th Street NW Washington, DC 20001 Telephone: (202) 559-2411 E-mail: mhandley@hfajustice.com RESURGENT CAPITAL: Mack FDCPA Suit Dismissed Without Prejudice -------------------------------------------------------------- In the case, YVONNE MACK, individually and on behalf of all others similarly situated, Plaintiff v. RESURGENT CAPITAL SERVICES, L.P., and LVNV FUNDING, LLC, Defendants, Case No. 18 C 6300 (N.D. Ill.), Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendants' motion to dismiss and dismisses the case without prejudice. Plaintiff Mack defaulted on a consumer debt acquired by Defendant LVNV Funding, LLC and serviced by Defendant Resurgent. After she disputed her debt in response to an initial collection letter, she received another form letter from Resurgent that included language as to how to dispute the validity of the debt. Mack contends that this second form letter violated Sections 1692e and 1692f of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692, et seq., because, by repeating the validation language, the second letter used false or deceptive means to collect or attempt to collect her debt. The Court certified the following class pursuant to Federal Rule of Civil Procedure 23(b)(3): All persons in the State of Illinois who, between Sept. 14, 2017 and Sept. 14, 2018, sought validation of a debt within forty-five days of the mailing of an initial collection letter from Defendants Resurgent Capital Services, L.P. or LVNV Funding, LLC or their agents, and in response received a form letter that included a Section 1692g validation notice. The Defendants now move to dismiss the case pursuant to Rule 12(b)(1), arguing that Mack's complaint does not include sufficient allegations of an injury in fact to support Article III standing. Mack argues that not only did the June 18 letter cause her confusion and stress but that it also caused her to take detrimental action, namely, to spend time and money to send another letter disputing her debt and requesting validation. Because the parties have engaged in discovery, however, Judge Ellis treats the Defendants' motion as one for summary judgment under Rule 56. Judge Ellis finds that the Plaintiffs' actions do not rise to the level of detriment the Seventh Circuit has required for standing in FDCPA cases, particularly because the June 18 letter's inclusion of a second validation notice did not adversely affect any interests Congress sought to protect through the FDCPA and instead effectively provided Mack with another opportunity to dispute her debt if she had failed to properly do so upon receipt of the first letter. Had Mack taken some action related to her debt management choices, for example, "paid something she did not owe, or paid a debt with interest running at a low rate when the money could have been used to pay a debt with interest running at a higher rate," she could show concrete harm. Ms. Mack's injury -- spending time and money in an attempt to clear up her confusion concerning whether she had validly disputed the debt-- is analogous to injuries arising from consultations with lawyers or filing suit, which the Seventh Circuit has held do not amount to concrete harm. If anything, the Judge holds, the time and expense to which Mack went to ensure she properly disputed the debt, while potentially inconvenient, furthered her interests. Therefore, Judge Ellis finds that Mack did not suffer a concrete harm and so lacks Article III standing. Because this means the Court lacks subject matter jurisdiction and, more importantly, that federal jurisdiction never attached, the Judge will vacate the Court's certification of the putative class. Conclusion For the foregoing reasons, Judge Ellis grants the Defendants' motion to dismiss. She dismisses the case without prejudice because the named class representative lacks standing. Because the Court lacks subject matter jurisdiction, the Judge vacates its Feb. 3, 2020 order certifying a class under Rule 23(b)(3). The Judge directs the Clerk to enter judgment and terminates the case. A full-text copy of the Court's Sept. 1, 2021 Opinion & Order is available at https://tinyurl.com/3ksd8edb from Leagle.com. RIOT BLOCKCHAIN: Bid to Dismiss Takata Class Suit Still Pending --------------------------------------------------------------- Riot Blockchain, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 23, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss filed in the consolidated putative class action suit entitled, Takata v. Riot Blockchain Inc., et al., is pending. On February 17, 2018, Creighton Takata filed an action asserting putative class action claims on behalf of the Company's stockholders in the United District Court for the District of New Jersey, Takata v. Riot Blockchain Inc., et al., Case No. 3: 18-cv-02293. The complaint asserts violations of federal securities laws under Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934 on behalf of a putative class of stockholders that purchased stock from November 13, 2017 through February 15, 2018. The complaint alleges that the Company and certain of its officers and directors made, caused to be made, or failed to correct false and/or misleading statements in press releases and public filings regarding its business plan in connection with its cryptocurrency business. The complaint requests damages in unspecified amounts, costs and fees of bringing the action, and other unspecified relief. On April 18, 2018, Joseph J. Klapper, Jr., filed a complaint against Riot Blockchain, Inc., and certain of its officers and directors in the United District Court for the District of New Jersey (Klapper v. Riot Blockchain Inc., et al., Case No. 3: 18-cv-8031). The complaint contained substantially similar allegations and the same claims as those filed by Mr. Takata, and requests damages in unspecified amounts, costs and fees of bringing the action, and other unspecified relief. On November 6, 2018, the court in the Takata action issued an order consolidating Takata with Klapper into a single putative class action. The court also appointed Dr. Stanley Golovac as Lead Plaintiff and Motely Rice as Lead Counsel of the consolidated class action. Lead Plaintiff filed a consolidated complaint on January 15, 2019. Defendants filed motions to dismiss on March 18, 2019. In lieu of opposing defendants' motions to dismiss, Lead Plaintiff filed another amended complaint on May 9, 2019. Defendants filed multiple motions to dismiss the amended complaint starting on September 3, 2019. On April 30, 2020, the court granted the motions to dismiss, which resulted in the dismissal of all claims without prejudice. On December 24, 2020, Lead Plaintiff filed another amended complaint. Defendants filed multiple motions to dismiss the amended complaint starting on February 8, 2021, which have been fully briefed. Riot said, "Because this litigation is still at this early stage, we cannot reasonably estimate the likelihood of an unfavorable outcome or the magnitude of such an outcome, if any." Riot Blockchain, Inc. operates as a digital currency company. The Company focuses on buying cryptocurrency and blockchain businesses, as well as supports blockchain technology companies. Riot Blockchain also maintains its existing biotechnology business segments. The company is based in Castle Rock, Colorado. ROBINHOOD FINANCIAL: Pinchasov Loses Class Certification Bid ------------------------------------------------------------ In the class action lawsuit captioned as SHTERNA PINCHASOV v. ROBINHOOD FINANCIAL LLC, Case No. 1:20-cv-24897-CMA (S.D. Fla.), the Hon. Judge Cecilia M. Altonaga entered an order denying the Plaintiff Pinchasov's motion for class certification of: "all former and current customers of [Defendant] in the United States and its territories who were affected by entering a trade during a halt at any time within 4 years preceding the filing of this lawsuit." Because the Plaintiff has not briefed the Court with the correct law, she has failed to meet her burden of proof in establishing the propriety of class certification. Plaintiff is not entitled to the extraordinary remedy of class certification, says Judge Altonaga. In her class action complaint, the Plaintiff asserts a claim of breach of fiduciary duty against the Defendant, alleging the Defendant had a duty to inform its customers about stock halts or prevent them from placing trades during stock halts. Robinhood Financial operates as an institutional brokerage company. The Company provides online and mobile application-based discount stock brokerage. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3Eet5QN at no extra charge.[CC] SANTA CLARA COUNTY, CA: Herships Can't Intervene in Chavez v. Jail ------------------------------------------------------------------ In the case, BRIAN CHAVEZ, et al., Plaintiffs v. COUNTY OF SANTA CLARA, Defendant, Case No. 15-cv-05277-RMI (N.D. Cal.), Magistrate Judge Robert M. Illman of the U.S. District Court for the Northern District of California, Eureka Division, denied Howard Herships' Motion to Intervene, and denied as moot his Motion for Civil Contempt. Background The case involves a certain class of Plaintiffs (persons who were, or will be, county jail inmates during certain time periods) and the County of Santa Clara regarding: The provision of constitutional medical, dental, and mental health care; the unnecessary or excessive use of force against jail inmates; the excessive use of solitary confinement; and discrimination against inmates with certain non-mobility disabilities. The case was certified as a class action in September of 2016, the matter was settled in October of 2018, the Consent Decree and Remedial Plan were entered in March of 2019, and the case was thereafter administratively closed, while the court retained limited jurisdiction for a limited period of time for enforcement purposes. Mr. Herships claims that he was incarcerated at the Santa Clara County Jail from January of 2020 until March of 2020, and that during this period, he was denied access to his hearing aids and his diabetic medication prior to meal consumption. Mr. Herships further contends that the County of Santa Clara is ignoring the Consent Decree and Remedial Plan by not providing class action notice inside the jails; he also contends (without much explanation) that the class counsel should be removed from this case and replaced by a "referral to the Northern District Pro Bono Panel." Mr. Herships' Motion purports to be brought on behalf of himself, as well as others in his situation (which he refers to as the other "absent class members."). His other motion seeks a finding of civil contempt against the County of Santa Clara for a litany of reasons including: The alleged denial of hearing aids and diabetes medication; an injury that Mr. Herships contends he suffered inside a vehicle operated by the jail during transport; and, the purported denial of certain notices to himself and other "absent class members." Further, Mr. Herships expresses generalized dissatisfaction with the class counsel by speculating that "the Prison Law Office agrees to allow the County of Santa Clara not to provide Notice so that they do not have to monitor the (sic) take any calls or respond to the absent class members or take any enforcement action and they can simple (sic) get paid some $200,000 per year for doing nothing!" Meanwhile, Mr. Herships has already presented all of these claims, among many others, in a parallel lawsuit that is now pending in this court before Judge Donato -- Herships v. Smith et al., Case No. 3:20-cv-07208-JB (Filed October 15, 2020). Mr. Herships' Amended Complaint in Herships v. Smith et al., therefore, alleges about the lack of notice to himself and other "absent class members" in the Santa Clara County Jails, about being deprived of his hearing aids, about the episode wherein he claims he was injured in a jail transport van, and about being denied timely access to his diabetes medications. Analysis Under Fed. R. Civ. P. 24(a) a party must be granted leave to intervene when that party is given an unconditional right to do so by statute, or when that party claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter would impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. Alternatively, as for permissible intervention, the "court may permit anyone to intervene who has a claim or defense that shares with the main action a common question of law or fact." District courts consider several factors in determining whether to grant permissive intervention, and are "given broad discretion to make this determination." Judge Illman finds that Mr. Herships does not satisfy the criteria for either mandatory or permissive intervention. With respect to intervention as of right, acknowledging that Mr. Herships "claims an interest relating to the property or transaction that is the subject of the action," he has failed to show that disposing of the action would, as a practical matter, impair or impede his ability to protect his interest. This is so for two reasons: First, he has failed to show that his interest cannot be adequately protected by class counsel in this case; and second, the existence of his currently-pending parallel case through which he presents, inter alia, the same issues about which he complains in his Motion to Intervene makes it clear that the denial of his request to intervene in this case will have no effect at all on his ability to vindicate those same interests in his currently-pending parallel case. Nor has Mr. Herships indicated why the class counsel, by whom he is already represented in this case, will be unable to protect his interests as a class member. Thus, for these reasons, Mr. Herships is not entitled to intervene as a matter of right. Judge Illman also will not permit Mr. Herships to intervene as a discretionary matter. He says, it is true that he "has a claim or defense that shares with the main action a common question of law or fact." However, the Judge must also consider several other factors to evaluate whether to grant permissive intervention. These factors include "whether the intervenor's interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit." In the case, Judge Illman finds that Mr. Herships' interests are adequately represented by other parties, that his inclusion in the action has the potential to prolong or unduly delay the litigation, and that Mr. Herships has not shown that his experience and knowledge exceeds that of the existing parties, potential experts, and other witnesses such that his intervention would "significantly contribute to full development of the underlying factual issues in the suit." For all of these reasons, the Judge finds that Mr. Herships should not be permitted to intervene. Conclusion Therefore, Mr. Herships' Motion to Intervene is denied and his Motion for Civil Contempt is denied as moot. A full-text copy of the Court's Sept. 1, 2021 Order is available at https://tinyurl.com/2rruhxjn from Leagle.com. SOFI TECHNOLOGIES: Appeal on Final Approval of Settlement Pending ------------------------------------------------------------------ SoFi Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that the appeal on the final order approving the settlement in the putative class action suit filed against Galileo Financial Technologies, Inc., a company subsidiary, is pending. Galileo Financial Technologies, Inc. the company's wholly-owned subsidiary that it acquired in May 2020, is a defendant in a putative class action involving service disruption for customers of Galileo's largest client stemming from Galileo's system experiencing technology platform downtime. The parties have entered into a class action settlement agreement to resolve the claims in the action. In May 2021, the United States District Court Northern District of California granted a motion for final approval of the class action settlement. As of June 30, 2021, the company estimated a contingent liability associated with this litigation of $1,750, which decreased from the amount recorded as of December 31, 2020 due to lower-than-anticipated claims. The contingent liability was presented within accounts payable, accruals and other liabilities in the Unaudited Condensed Consolidated Balance Sheets, and represents Galileo's maximum exposure to loss on the litigation. Other assets as of June 30, 2021 included $1,750 for the expected insurance recovery on the expected settlement. In June 2021, an appeal was filed to the final order approving the settlement in the United States Court of Appeals for the Ninth Circuit by a pro se putative class member. That appeal is pending. SoFi Technologies, Inc. is a member-centric, one-stop shop for digital financial services that allows members to borrow, save, spend, invest and protect their money. The company's mission is to help its members achieve financial independence in order to realize their ambitions. The company is based in San Francisco, California. SOFI TECHNOLOGIES: Discovery in Juarez Putative Class Suit Ongoing ------------------------------------------------------------------ SoFi Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in the putative class action suit entitled, Juarez v. Social Finance, Inc. et al., Civil Action No. 4:20-cv-03386-HSG Juarez et al v. SoFi Lending Corp. SoFi Lending Corp. and SoFi are defendants in a putative class action, captioned as Juarez v. Social Finance, Inc. et al., Civil Action No. 4:20-cv-03386-HSG, filed against them in the United States District Court for the Northern District of California in May 2020. Plaintiffs, who are conditional permanent residents or Deferred Access for Childhood Arrival ("DACA") holders, allege that the SoFi Defendants engaged in unlawful lending discrimination in violation of 42 U.S.C. Section 1981 and California Civil Code, Section 51, et seq., through policies and practices by making such categories of applicants ineligible for loans or eligible only with a co-signer who is a United States citizen or lawful permanent resident. Plaintiffs further allege that the SoFi Defendants violated the Fair Credit Reporting Act, by accessing the credit reports of non-United States citizen loan applicants who hold green cards with a validity period of less than two years without a permissible purpose. As relief, Plaintiffs seek, on behalf of themselves and a purported class of similarly-situated non-United States citizen loan applicants, a declaratory judgment that the challenged policies and practices violate federal and state law, an injunction against future violations, actual and statutory damages, exemplary and punitive damages, and attorneys' fees. The SoFi Defendants filed a motion to, among other things, dismiss Plaintiffs' claims for failure to state a claim, and/or compel arbitration. By order dated April 12, 2021, the court dismissed Plaintiffs' California Civil Code, Section 51 claim without prejudice, and denied the SoFi Defendants' motion to dismiss the remaining counts. The matter is now in discovery. SoFi said, "We cannot reasonably estimate an amount of loss or range of possible loss associated with this matter." SoFi Technologies, Inc. is a member-centric, one-stop shop for digital financial services that allows members to borrow, save, spend, invest and protect their money. The company's mission is to help its members achieve financial independence in order to realize their ambitions. The company is based in San Francisco, California. SPARK NETWORKS: Dismissed from Cyber Security Related Suit ---------------------------------------------------------- Spark Networks SE said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 23, 2021, for the quarterly period ended June 30, 2021, that the plaintiffs in the putative class action suit related to the 2020 security incident voluntarily dismissed the Company from the case and the stay was lifted. On July 22, 2020, a putative class action was filed against the Company and Zoosk in the U.S. District Court for the Northern District of California by individuals claiming to be Zoosk users whose information was affected by the 2020 security incident disclosed by Zoosk. The complaint, as subsequently amended, asserts that by reason of the Zoosk security incident Spark and Zoosk violated the California Consumer Privacy Act ("CCPA"), the California Unfair Competition Law (UCL), and common-law obligations. Based on these assertions, the complaint seeks statutory damages, compensatory damages, punitive damages, attorneys' fees, and injunctive relief. On December 14, 2020, plaintiffs voluntarily withdrew their claim under the CCPA. On January 30, 2021, the district court granted in part, and denied in part, Zoosk's motion to dismiss the remainder of the complaint for failure to state a claim by dismissing the UCL claim but allowing the common-law claim to go forward. The Court held in abeyance the Company's motion to dismiss itself on jurisdictional grounds and for failure to state a claim. The court granted plaintiffs limited jurisdictional discovery as to the Company. Zoosk answered the portion of the complaint that asserts the one remaining common-law claim by denying its material allegations and asserting a number of affirmative defenses. The Court stayed the case pending resolution of the jurisdictional discovery. On May 6, 2021, plaintiffs voluntarily dismissed the Company from the case and the stay was lifted. Zoosk and plaintiffs are currently engaged in discovery and the case is scheduled for trial commencing September 12, 2022. Spark Networks SE operates online dating sites and mobile applications. It focuses on catering professionals and highly-educated singles with serious relationship intentions in North America and other international markets. The company operates its dating platforms under the EliteSingles, SilverSingles, JDate, Christian Mingle, eDarling, JSwipe, and Attractive World brands. The company is headquartered in Berlin, Germany. SPECTRUM PHARMA: Wolf Haldenstein Reminds of November 1 Deadline ---------------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP on Sept. 8 disclosed that a federal securities class action lawsuit has been filed in the United States District Court for the District of Nevada on behalf of persons and entities that purchased or otherwise acquired Spectrum Pharmaceuticals, Inc. ("Spectrum" or the "Company") (NASDAQ: SPPI) securities between December 27, 2018 and August 5, 2021, inclusive (the "Class Period"). All investors who purchased and incurred losses are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information concerning the action or join the case on our website, www.whafh.com. If you have incurred losses in the shares of Spectrum Pharmaceuticals, Inc., you may, no later than November 1, 2021, request that the Court appoint you lead plaintiff of the proposed class. Please contact Wolf Haldenstein to learn more about your rights as an investor in Spectrum Pharmaceuticals, Inc. The filed 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 that: -- the ROLONTIS manufacturing facility maintained deficient controls and/or procedures; -- the foregoing deficiencies decreased the likelihood that the FDA would approve the ROLONTIS BLA in its current form; -- Spectrum had therefore materially overstated the ROLONTIS BLA's approval prospects; and -- 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. In December 2018, Spectrum submitted a Biologics License Application ("BLA") to the U.S. Food and Drug Administration ("FDA") for ROLONTIS as a treatment for chemotherapy-induced neutropenia. On August 6, 2021, Spectrum announced that it had received a Complete Response Letter ("CRL") from the FDA regarding the BLA, citing deficiencies related to manufacturing and requiring a re-inspection of the Company's manufacturing facility. On this news, Spectrum's stock price fell $0.70 per share, or nearly 22%, to close at $2.55 per share on August 6, 2021. Wolf Haldenstein has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please immediately contact Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com. Contact: Wolf Haldenstein Adler Freeman & Herz LLP Patrick Donovan, Esq. Gregory Stone, Director of Case and Financial Analysis Email: gstone@whafh.com, donovan@whafh.com or classmember@whafh.com Tel: (800) 575-0735 or (212) 545-4774 This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] STANTEC CONSULTING: Lopeman Sues Over Failure to Pay OT Wages ------------------------------------------------------------- Frank Lopeman, On behalf of himself and those similarly situated, Plaintiff v. Stantec Consulting Services Inc.; Doe Corporation 1-10; Doe Individuals 1-10, Defendants, Case No. 1:21-cv-02386 (D. Colo., Sept. 3, 2021) seeks redress for violations of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act, and for unjust enrichment resulting from Stantec Consulting's denial of overtime wages to employees designated by Defendant as "hourly exempt" employees. Mr. Lopeman worked for Stantec Consulting in Columbus, Ohio, as a construction services field manager from July 2003 to March 27, 2020. Stantec Consulting Services Inc. provides consulting services to governments and business across the United States and around the world.[BN] The Plaintiff is represented by: Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Nathan Spencer, Esq. BILLER & KIMBLE, LLC 8044 Montgomery Road, Suite 515 Cincinnati, OH 45236 Telephone: (513) 715-8711 Facsimile: (614) 340-4620 E-mail: abiller@billerkimble.com akimble@billerkimble.com nspencer@billerkimble.com - and - Jason E. Dawicke, Esq. DAWICKE LAW, LLC P.O. Box 21354 Columbus, OH 43221 Telephone: (614) 477-7301 Facsimile: (888) 858-3063 E-mail: jdawicke@dawickelaw.com TELIGENT INC: Continues to Defend Econazole Antitrust Litigation ---------------------------------------------------------------- Teligent, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend antitrust litigation related to the pricing of econazole nitrate pharmaceutical products. To date, thirteen putative class action antitrust lawsuits have been filed against the Company along with co-defendants, including Taro Pharmaceuticals U.S.A., Inc. and Perrigo New York Inc., regarding the pricing of generic pharmaceuticals, including econazole nitrate. The class plaintiffs seek to represent nationwide or state classes consisting of persons who directly purchased, indirectly purchased, paid and/or reimbursed patients for the purchase of generic pharmaceuticals from as early as July 1, 2009 until the time the defendants' allegedly unlawful conduct ceased or will cease. The class plaintiffs seek treble damages for alleged overcharges during the alleged period of conspiracy, and certain of the class plaintiffs also seek injunctive relief against the defendants. The actions have been consolidated by the Judicial Panel on Multidistrict Litigation to the U.S. District Court, Eastern District of Pennsylvania for pre-trial proceedings as part of the In re Generic Pharmaceuticals Pricing Antitrust Litigation matter. On October 16, 2018 the court dismissed the class plaintiffs' claims against the Company with leave to replead. On December 21, 2018 the class plaintiffs filed amended complaints, which the Company moved to dismiss on February 21, 2019. On December 19, 2019 certain class plaintiffs filed a further complaint that included additional claims against the Company based on the Company's sales of fluocinolone acetonide. On October 16, 2020 and October 21, 2020, class plaintiffs amended or moved to amend their complaints to add additional allegations, mooting the motion to dismiss. No further updates were provided in the Company's SEC report. Teligent, Inc., a specialty generic pharmaceutical company, develops, manufactures, markets, and sells generic topical, branded generic, and generic injectable pharmaceutical products in the United States and Canada. The company was formerly known as IGI Laboratories, Inc. and changed its name to Teligent, Inc. in October 2015. Teligent, Inc. was founded in 1977 and is based in Buena, New Jersey. TELIGENT INC: Generic Drug Price-Fixing Suit Underway in Canada --------------------------------------------------------------- Teligent, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that the company and its Canadian subsidiary, Teligent Canada, are defendants in a putative class action suit related to alleged generic drug price-fixing. In addition, on June 3, 2020, a putative class action lawsuit was filed in the Federal Court of Canada against the Company and its Canadian subsidiary, Teligent Canada, along with over fifty other pharmaceutical defendant companies. The Canadian lawsuit alleges that the generic drug manufacturer defendants conspired to allocate the Canadian market and customers, fix prices and maintain the supply of generic drugs in Canada to artificially maintain market share and higher generic drug prices in violation of Canada's Competition Act. In terms of the Company and Teligent Canada, without limiting the general allegation of a general conspiracy over the generic drug market, the lawsuit specifically asserts allegations in relation to econzaole dating back to September 2013 and continuing to the present. The representative individual plaintiff seeks to represent a class comprised of all persons and entities in Canada who, from January 1, 2012 to the present, purchased generic drugs in the private sector (i.e., purchases made by individuals out-of-pocket and by individuals and businesses through private drug plans). The plaintiff is alleging aggregate damages of CDN$2.75 billion for harm caused to class members being charged increased prices as a result of the alleged conspiracy. The Canadian lawsuit is at a very early stage and the Company is unable to form a judgment at this time as to whether an unfavorable outcome is probable or remote or to provide an estimate of the amount or range of potential loss. The Company believes this lawsuit is without merit and it intends to vigorously defend against the claim. No further updates were provided in the Company's SEC report. Teligent, Inc., a specialty generic pharmaceutical company, develops, manufactures, markets, and sells generic topical, branded generic, and generic injectable pharmaceutical products in the United States and Canada. The company was formerly known as IGI Laboratories, Inc. and changed its name to Teligent, Inc. in October 2015. Teligent, Inc. was founded in 1977 and is based in Buena, New Jersey. TELIGENT INC: Settlement Reached in Okla. Police Pension Fund Suit ------------------------------------------------------------------ Teligent, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that a settlement has been reached in the class action suit initiated by Oklahoma Police Pension Fund and Retirement System. On April 15, 2019 a federal class action was filed the Oklahoma Police Pension Fund and Retirement System against the Company and certain individual defendants in the U.S. District Court, Southern District of New York. The lawsuit was brought on behalf of persons or entities who purchased or otherwise acquired publicly-traded Teligent, Inc. securities from March 7, 2017 through November 6, 2017. The complaint alleges that defendants made false or misleading statements regarding the Company's business, operational, and compliance policies in violation of U.S. securities laws. The plaintiff seeks to recover compensable damages. On June 17, 2020, the court, deeming pre-motion letters as a motion to dismiss, granted in part and denied in part the Company's motion to dismiss. On Wednesday, May 5, 2021, the parties reached a settlement in principal to resolve this dispute and no additional accrual was required to be recognized, as the company had satisfied its self-insurance retention. No further updates were provided in the Company's SEC report. Teligent, Inc., a specialty generic pharmaceutical company, develops, manufactures, markets, and sells generic topical, branded generic, and generic injectable pharmaceutical products in the United States and Canada. The company was formerly known as IGI Laboratories, Inc. and changed its name to Teligent, Inc. in October 2015. Teligent, Inc. was founded in 1977 and is based in Buena, New Jersey. TEXAS: Court Denies Bid to Certify Inmates Class in Baughman v. DCJ ------------------------------------------------------------------- In the case, STEVEN KURT BAUGHMAN, #528637, Plaintiff v. JIMMY BOWMAN, et al., Defendants, Case No. 6:20-cv-560-JDK-KNM (E.D. Tex.), Judge Jeremy D. Kernodle of the U.S. District Court for the Eastern District of Texas, Tyler Division, denied the Plaintiff's motion for certification as a class action and motion to appoint class counsel. Plaintiff Baughman, a Texas Department of Criminal Justice inmate proceeding pro se, brings the civil rights lawsuit under 42 U.S.C. Section 1983. The case was referred to U.S. Magistrate Judge K. Nicole Mitchell pursuant to 28 U.S.C. Section 636. Before the Court are the Plaintiff's motion for certification as a class action and motion to appoint class counsel. On July 22, 2021, Judge Mitchell issued a Report and Recommendation recommending that the Court deny the motions. Following an extension of time, the Plaintiff timely objected. In his objections, the Plaintiff cites a variety of cases that are not binding authority in this circuit. He also argues that his case could become moot if class certification is not granted because the possibility exists that he will be transferred to a different prison unit. Such argument, according to Judge Kernodle, is pure speculation. Contrary to the Plaintiff's contention, the Judge holds that the Court is not required to certify a class simply because a class exists in a separate case. Further, the Plaintiff has not shown that he can fairly and adequately represent the interests of the class--especially in light of his pro se status. While the Plaintiff does request the appointment of class counsel, the Judge notes that there is no automatic right to counsel in a Section 1983 proceeding. A district court is not required to appoint counsel in the absence of 'exceptional circumstances' which are dependent on the type and complexity of the case and the abilities of the individual pursuing that case." Simply because the Plaintiff is seeking class certification does not entitle him to appointed counsel. The Judge has reviewed the Plaintiff's amended complaint and has determined that the case is not unduly complicated requiring the appointment of counsel at this time. For the reasons stated in Judge Mitchell's Report, Judge Kernodle finds that class certification in the case is unnecessary. Having conducted a de novo review of the record in the case and the Magistrate Judge's Report, Judge Kernodle has determined that the Report of the Magistrate Judge is correct, and Judge Kernodle holds that the Plaintiff's objections are without merit. Accordingly, he adopts the Report of the Magistrate Judge as the opinion of the District Court. The Plaintiff's motion for class certification and motion for appointment of class counsel are denied. A full-text copy of the Court's Sept. 1, 2021 Order is available at https://tinyurl.com/yv974j2p from Leagle.com. TOTAL LIFE: Oct. 11 Extension of Class Cert. Filing Sought ---------------------------------------------------------- In the class action lawsuit captioned as ASHLEY MILLER, individually and on behalf of all others similarly situated, v. TOTAL LIFE CHANGES, LLC, Case No. 1:21-cv-00095-JRH-BKE (S.D. Ga.), the Plaintiff Ashley Miller and Defendant Total Life ask the Court to enter an order for an extension of time of four weeks, through and including October 11, 2021, by which the Plaintiff must file their motion for class certification. TLC offers health, wellness, and beauty products. A copy of the Parties' motion dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3nuGgad at no extra charge.[CC] The Plaintiff is represented by: Chloe A. Raimey, Esq. NICHOLAS KASTER, PLLP 4700 IDS Center 80 South 8th Street Minneapolis, MN 55402 - and - J.F. BEASLEY, LLC P.O. Box 309 Watkinsville, GA 30677 - and - FISH LAW FIRM, P.C. 200 East Fifth Avenue Suite 123 Naperville, IL 60563 The Defendant is represented by: Travis Martin Cashbaugh, Esq. FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway, Suite 1600 Atlanta, GA 30339 Telephone: (770) 818-0000 Facsimile: (770) 937-9960 TRANS EXPRESS: $608K Class Deal in Pulliam Labor Suit Wins Final OK ------------------------------------------------------------------- In the case, MARSHALL PULLIAM, PARSHOO BADLU, and SEAN ROBINSON, individually and on behalf of all others similarly situated, Plaintiffs v. TRANS EXPRESS, INC.; NATIONAL EXPRESS LLC; and NATIONAL EXPRESS TRANSIT CORPORATION, Defendants, Civil Action No. 1:19-cv-4038 (E.D.N.Y.), Magistrate Judge Ramon E. Reyes, Jr., of the U.S. District Court for the Eastern District of New York entered Final Order approving the parties' Class Action Settlement and attorneys' fees. Named Plaintiffs Marshall Pulliam, Parshoo Badlu, and Sean Robinson seek final approval of a settlement between Named Plaintiffs and Defendants Trans Express Inc., National Express-LLC, and National Express Transit Corp. The settlement encompasses a Rule 23 Class. The case alleges violations of the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). After mediation with an experienced mediator (Stephen Sonnenberg) and multiple settlement conferences, the Plaintiffs and the Defendants reached a classwide settlement agreement for $607,500. On April 13, 2021, the Court granted preliminary approval. Notice was properly given under the Class Action Fairness Act (28 U.S.C. Section 1715), but neither the Attorney General nor any state attorney general has objected to the settlement. Notice was mailed to the Class consistent with the terms in the Settlement Agreement. The Settlement Administrator reports that the Notice reached over 95% of those class members (995 out of 1043). The Notice adequately advised the Class Members that they could submit a written exclusion request or object to the Settlement, and how to do so. None of the Class Members timely excluded themselves and none objected. Based upon a thorough review of the record, Judge Reyes grants final approval of the Settlement Agreement made and entered into on Jan. 8, 2021, by and between the Plaintiffs, individually and on behalf of the Class, and the Defendants. The Judge finds that the terms of the proposed class action Settlement as set forth in the Parties' Settlement Agreement, are fair, reasonable and adequate and comply after considering the factors set forth in Rule 23(e)(2) of the Federal Rules of Civil Procedure. For purposes of settlement only, there will be one Class, defined as follows: All persons employed by Defendant Trans Express, Inc. in either a bus driver or dispatcher job in any workweek from July 12, 2013 through March 9, 2021 [30 days from the signing of the Settlement Agreement]. For purposes of settlement only, Judge Reyes certifies the class pursuant to Federal Rule of Civil Procedure ("FRCP") 23. All individuals encompassed within the above definition are eligible to participate in the Settlement. The Parties agreed to settle the case for a Gross Settlement Fund of up to $607,500. Pursuant to the terms of the Settlement Agreement, the "Net Settlement Fund" means the remainder of the Gross Settlement Fund after deductions for: (i) Court-approved attorneys' fees of $170,000 and costs not to exceed $25,000, as described in Section 14 of the Settlement Agreement; (ii) any payroll taxes owed by Defendants; and (iii) Court-approved Enhancement Awards to Named Plaintiffs as described in Section 3 of the Settlement Agreement. The Class Members will receive their portion of the Net Settlement Fund to be determined on a pro rata basis based on formula set forth in the Settlement Agreement. As a result, Judge Reyes approves the release of all wage and hour claims (both state, local, and federal) in the manner defined in the Settlement Agreement: "Release. This Settlement releases all claims of Plaintiffs and all Class Members who do not timely opt out: (a) for worked but unpaid time; (b) for unpaid or underpaid overtime; (c) for spread of hours pay; and (d) for any other claims concerning requirements for wage statement, wage notices, or payroll practices and procedures. Collectively, all such claims arising between July 12, 2013 and the date of final approval of this Settlement -- whether under New York Labor Law, under other state or local law, or under the Fair Labor Standards Act (FLSA) -- will be defined as the Covered Claims. Those Covered Claims are released against Trans Express Inc., National Express LLC, and National Express Transit Corp. and all of their past and present parent companies, subsidiaries, affiliates, directors, officers, agents, attorneys, investors and employees, as well as against any benefit plans sponsored by any such entities. Collectively, all of those persons and entities will be defined as the Released Parties. For the [325] class members who are included on Exhibit A to the complaint in Secretary of Labor, United States Department of Labor v. Trans Express, Inc. (No. 1:19-cv-01423), this release encompasses all claims except their claims under the FLSA being pressed in that case." Judge Reyes awards the Class Counsel a total of $170,100, representing 28% of the Gross Settlement Amount. Separately, the Judge awards reimbursement to the Class Counsel in an amount not to exceed $25,000, which includes $13,000 for the Settlement Administrator RG/2, to be paid from the Gross Settlement Fund for costs and expenses incurred by Class Counsel in litigating the matter. Any amounts allocated to Class Members who do not cash their Settlement Checks within the 180-day check cashing period will be placed in a cy pres account for the benefit of the non-profit organization Habitat for Humanity. Judge Reyes awards Enhancement Awards to be paid out of the Gross Settlement Fund as follows: $15,000 to Mr. Pulliam, $10,000 to Mr. Robinson, and $10,000 to Mr. Badlu. These Enhancement Awards are reasonable and are awarded in recognition of the services they each rendered on behalf of the Class and allocated in accordance with the level of involvement of each of the above referenced individuals. The action will be and is dismissed on the merits with prejudice. All the Class Members are permanently barred from prosecuting against the Released Parties any and all Covered Claims as set forth in Section 7 of the Settlement Agreement with one exception: This dismissal does not encompass the FLSA claims currently being litigated by the United States Department of Labor for the 325 class members who are included on Exhibit A to the Complaint in Secretary of Labor, United States Department of Labor v. Trans Express, Inc. (No. 1:19-cv-01423). Though the Court retains jurisdiction over the action to effectuate the terms of the Settlement Agreement, including the binding effect of the releases set forth in the Settlement Agreement as to both the Named Plaintiffs and Class, the judgment is a Final Judgment in accordance with the Settlement Agreement. The parties will abide by all terms of the Settlement Agreement and the Order. A full-text copy of the Court's Sept. 1, 2021 Final Order is available at https://tinyurl.com/wvdfb3xb from Leagle.com. TRI-WIRE ENGINEERING: Esquilin Seeks to Certify FLSA Collective --------------------------------------------------------------- In the class action lawsuit captioned as JORGE ESQUILIN, JAVIER RODRIGUEZ, HARRY CHARCALIS, and DARREN COUTURIER, individually and on behalf of all persons similarly situated, v. TRI-WIRE ENGINEERING SOLUTIONS, INC.; COMCAST CORPORATION; and COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, Case No. 1:21-cv-10752-PBS (D. Mass.), Plaintiffs Jorge Esquilin, Javier Rodriguez, Harry Charcalis, and Darren Couturier ask the Court pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. section 216(b), to enter an order conditionally certifying an FLSA collective composed of, and facilitating the sending of written notices to: "all current and former non-exempt employees employed by Tri-Wire Engineering Solutions, Inc., working as cable installation technicians throughout the United States during the time period from three years prior to the date that the Court issues an Order granting Conditional Certification and the present (the "FLSA Collective")." TriWire provides installation, construction, maintenance and other technical support services to cable and telecommunications companies. Comcast is an American multinational telecommunications conglomerate headquartered in Philadelphia, Pennsylvania. A copy of the Plaintiffs' motion to certify class dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3nx9THS at no extra charge.[CC] The Attorneys for the Plaintiffs and the Proposed Classes, are: Camille Fundora Rodriguez, Esq. Shanon J. Carson, Esq. Lane L. Vines, Esq. Daniel F. Thornton, Esq. Stacy Savett, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: scarson@bm.net crodriguez@bm.net lvines@bm.net dthornton@bm.net stasavett@bm.net - and - Carolyn H. Cottrell, Esq. Ori Edelstein, Esq. Michelle S. Lim, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com oedelstein@schneiderwallace.com mlim@schneiderwallace.com - and - Jason M. Leviton, Esq. BLOCK & LEVITON LLP 260 Franklin Street, Suite 1860 Boston, MA 02110 Telephone: (617) 398-5600 Facsimile: (617) 507-6020 E-mail: jason@blockleviton.com TRUCK INSURANCE: Final Approval of Class Settlement Sought ---------------------------------------------------------- In the class action lawsuit captioned as Sonoma Sol, LLLP, an Arizona limited liability limited partnership; Chris and Jessica Adamski, husband and wife, v. Truck Insurance Exchange, a foreign entity; Farmers Insurance Exchange, a foreign entity; Fire Insurance Exchange, a foreign entity; Mid-Century Insurance Company, a foreign entity; and Farmers Insurance Company of Arizona, a foreign entity, Case No. 2:20-cv-00069-DJH (D. Ariz.), the Plaintiffs ask the Court to enter an order granting final approval of the proposed class settlement (the Proposed Settlement) of all claims alleged in two consolidated actions against Defendants Truck Insurance Exchange, Farmers Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers Insurance Company of Arizona, through the certification of a single settlement class of Arizona policyowners who have submitted claims for losses under specified commercial and residential property insurance policies issued and administered by Farmers. The Plaintiffs move the Court for final approval of the Proposed Settlement, including its provisions governing Farmers' agreement to indemnify the Settlement Class against any claim for fees up to $500,000, litigation expenses up to $20,000, and service awards up to $10,000. Plaintiffs do so now, in advance of the September 24, 2021, opt-out and objection deadline, so that members of the Settlement Class can make their decision on a fully informed basis. The Plaintiffs also contemplate filing a reply brief in support of this motion at least 14 days before the Final Hearing, addressing any objection to Court approval that may be lodged by a member of the Settlement Class. Under Tritschler v. Allstate Ins. Co., an insurance company making an "actual cash" ("ACV") payment to an Arizona insured must include payment for all costs likely required to be incurred in repairing or replacing the covered property -- including an amount for "general contractors' overhead and profit" ("O&P") -- regardless of whether the insured ultimately repairs or replaces the property so as to qualify for payment on a replacement cost value ("RCV") basis. And 17 Lukes v. Am. Fam. Mut. Ins. Co., an insurer that desires to limit its obligations under a policy contrary to Tritschler must do so in terms which "clearly and distinctly describe 19 the nature of the exclusion." The Plaintiffs in the Actions challenge the contractual authority for Farmers' exclusion 21 of O&P from their ACV payments. In the first-filed Sonoma Sol action, Farmers relied on the common language of a standardized endorsement attached to certain commercial 23 insurance policies issued by Farmers (the "Commercial Insurance Policies"). In the Adamski action, Farmers relied on common language inserted directly into the terms of certain standardized residential insurance policies issued by Farmers (the "Residential Insurance Policies"). In both instances, Farmers asserted a contractual right to exclude O&P from the ACV payment unless and until that expense was "incurred and paid" by the policyowner. And in both instances, Plaintiffs contend that Farmers did not do so effectively, because (a) the language used by Farmers did not "clearly and distinctly" say so, and (b) the Arizona Standard Fire Policy does not permit such diminishment in ACV payments. -- Summary of the Common Class Claims In the Sonoma Sol action, Farmers' purported justification for withholding O&P from Sonoma Sol's ACV payment is based on the language of a standardized form of endorsement (the "Endorsement") attached to the Commercial Insurance Policies. Sonoma Sol contends that the Endorsement does not "clearly and distinctly" abrogate Farmers' obligation to pay O&P under Tritschler because it makes no reference to ACV payments, but instead by its terms applies only to the RCV provisions of the Policy. -- Summary of the Proposed Class Settlement The Proposed Settlement Class is defined as: "all Persons who submitted an Insurance Claim for Covered Damage during the Class Period under a Commercial Insurance Policy or a Residential Insurance Policy issued by a Defendant." "Insurance Claim" is defined as a claim submitted to Farmers by an insured under a Commercial Insurance Policy or Residential Insurance Policy for the repair of direct physical damage to an insured structure located within the State of Arizona. "Covered Damage" means: (a) direct physical damage to a structure located within the State of Arizona, (b) resulting from a peril that occurred during the Class Period, (c) for which an Insurance Claim was made under a Commercial Insurance Policy or a Residential Insurance Policy, (d) which Insurance Claim was determined by Farmers to be covered under the terms of that Commercial Insurance Policy or Residential Insurance Policy, (e) which resulted in one or more payment(s) by or on behalf of Farmers for said direct physical damage, and (f) the Insurance Claim was deemed "closed" by Farmers on or before April 7, 2021. The proposed Settlement Class is thus by definition narrowly defined to include only those policyholders under the specified policy forms issued only by the named Farmers entities and only as to closed Arizona "Covered Damage" claims adjusted thereunder. -- The Court Should Approve Farmers' Payment of the Requested Amounts of Attorneys' Fees and Litigation Expenses Plaintiffs' Counsel are entitled to a common fund fee award to compensate them for the benefits they generated on behalf of the Settlement Class. Truck Insurance Exchange operates as an insurance firm. A copy of the Plaintiffs' motion dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3k9h46R at no extra charge.[CC] The Plaintiffs are represented by: Andrew S. Friedman, Esq. Francis J. Balint, Jr., Esq. William F. King, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT, PC 2325 East Camelback Road, Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 E-mail: afriedman@bffb.com fbalint@bffb.com bking@bffb.com - and - Michael N. Poli, Esq. Lawrence R. Moon, Esq. POLI, MOON & ZANE, PLLC 2999 North 44th Street, Suite 325 Phoenix, AZ 85018 Telephone: (602) 857-8180 Facsimile: (602) 857-7333 E-mail: mpoli@pmzlaw.com lmoon@pmzlaw.com TSR INC: Paskowitz Settlement Gets Final Approval ------------------------------------------------- TSR, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 23, 2021, for the fiscal year ended May 31, 2021, that the Court in the class action suit initiated by Susan Paskowitz, issued a final order and judgment approving all material terms in the Stipulation. On October 16, 2018, the Company was served with a complaint filed on October 11, 2018 in the Supreme Court of the State of New York, Queens County, by Susan Paskowitz, a stockholder of the Company, against the Company; Joseph F. Hughes and Winifred M. Hughes; former directors Christopher Hughes, Raymond A. Roel, Brian J. Mangan, Regina Dowd, James J. Hill, William Kelly, and Eric Stein; as well as stockholders Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC. The complaint purported to be a class action lawsuit asserting claims on behalf of all minority stockholders of the Company. Ms. Paskowitz alleged the following: the sale by Joseph F. Hughes and Winifred M. Hughes of an aggregate of 819,491 shares of the Company's common stock ("controlling interest") to Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC was in breach of Joseph F. Hughes' and Winifred M. Hughes' fiduciary duties and to the detriment of the Company's minority stockholders; the former members of the Board of Directors of the Company named in the complaint breached their fiduciary duties by failing to immediately adopt a rights plan that would have prevented Joseph F. Hughes and Winifred M. Hughes from selling their shares and preserved a higher premium for all stockholders; Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC Zeff, QAR, and Fintech are "partners" and constitute a "group." Ms. Paskowitz also asserted that Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC aided and abetted Joseph F. Hughes' and Winifred M. Hughes' conduct, and ultimately sought to buy out the remaining shares of the Company at an unfair price. On June 14, 2019, Ms. Paskowitz filed an amended complaint in the Stockholder Litigation in the Supreme Court of the State of New York, Queens County with the court against the former members of the Board of Directors and Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC, which asserted substantially similar allegations to those contained in the October 11, 2018 complaint, but omitted Regina Dowd, Joseph F. Hughes and Winifred M. Hughes as defendants. In addition to the former members of the Board of Directors named in the original complaint, the amended complaint named former directors Ira Cohen, Joseph Pennacchio, and William Kelly as defendants. The amended complaint also asserted a derivative claim purportedly on behalf of the Company against the named former members of the Board of Directors. The amended complaint sought declaratory judgment and unspecified monetary damages. The complaint requested: (1) a declaration from the court that the former members of the Board of Directors named in the complaint breached their fiduciary duties by failing to timely adopt a stockholder rights plan, which resulted in the loss of the ability to auction the Company off to the highest bidder without interference from Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC; (2) damages derivatively on behalf of the Company for unspecified harm caused by the named Directors' alleged breaches of fiduciary duties; (3) damages and equitable relief derivatively on behalf of the Company for the named Directors' alleged failure to adopt proper corporate governance practices; and (4) damages and injunctive relief against Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC based on their knowing dissemination of false or misleading public statements concerning their status as a group. The complaint did not assign any monetary values to alleged damages. On July 15, 2019, the Company filed an answer to the amended complaint in the Stockholder Litigation and cross-claims against Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC for breaches of their fiduciary duties, aiding and abetting breaches of fiduciary duties, and indemnification and contribution based on their misappropriation of material nonpublic information and their failure to disclose complete and accurate information in SEC filings concerning their group actions to attempt a creeping takeover of the Company, which was thereafter amended on July 26, 2019. On December 21, 2018, the Company filed a complaint in the United States District Court, Southern District of New York, against Zeff Capital, L.P., Zeff Holding Company, LLC, Daniel Zeff, QAR Industries, Inc., Robert Fitzgerald, Fintech Consulting LLC, and Tajuddin Haslani for violations of the disclosure and anti-fraud requirements of the federal securities laws under Sections 13(d) and 14(a) of the Securities Exchange Act of 1934, and the related rules and regulations promulgated by the SEC, for failing to disclose to the Company and its stockholders their formation of a group and the group's intention to seize control of the Company. The complaint requested that the court, among other things, declare that the defendants have solicited proxies without filing timely, accurate and complete reports on Schedule 13D and Schedule 14A in violation of Sections 13(d) and 14(a) of the Exchange Act, direct the defendants to file with the SEC complete and accurate disclosures, enjoin the defendants from voting any of their shares prior to such time as complete and accurate disclosures have been filed, and enjoin the defendants from further violations of the Exchange Act with respect to the securities of the Company. On January 7, 2019, Ms. Paskowitz filed a related action against Zeff Capital, L.P., Zeff Holding Company, LLC, Daniel Zeff, QAR Industries, Inc., Robert Fitzgerald, Fintech Consulting LLC, and Tajuddin Haslani in the Southern District of New York, which asserted claims against them for breach of fiduciary duty and under federal securities laws similar to those asserted in the Company's action. Although the Company is not a party to Ms. Paskowitz's action, the court has determined to treat the Company's and Ms. Paskowitz's respective actions as related. On August 7, 2019, following the Company's initial rescheduling of the 2018 Annual Meeting for September 13, 2019 and the filing of Preliminary Proxy Statements by the Company and Zeff Capital, L.P., Zeff Capital, L.P. filed a complaint in the Delaware Court of Chancery against the Company seeking an order requiring the Company to hold its next annual meeting of stockholders on or around September 13, 2019, and obligating the Company to elect Class I and Class III directors at that annual meeting. On August 13, 2019, the Company filed a motion for preliminary injunction in the SDNY Action in advance of the Company's 2018 Annual Meeting originally scheduled for September 13, 2019, and requested leave to file a motion for expedited discovery. The Court denied the Company's motion for preliminary injunction but ordered Zeff to "make clear that the second set of directors" described by Zeff in its preliminary proxy statement "is contingent upon the resolution of a proceeding in Delaware Chancery Court." On August 30, 2019, the Company entered into a settlement and release agreement (the "Settlement Agreement") with Zeff Capital, L.P., Zeff Holding Company, LLC, Daniel Zeff, QAR Industries, Inc., Robert Fitzgerald, Fintech Consulting LLC and Tajuddin Haslani with respect to the proxy contest pertaining to the election of directors at the 2018 Annual Meeting, which was held on October 22, 2019. Pursuant to the Settlement Agreement, the parties agreed to forever settle and resolve any and all disputes between the parties, including without limitation disputes arising out of or relating to the following litigations: (i) The complaint relating to alleged breaches of fiduciary duties filed on November 1, 2018 by Fintech Consulting LLC against the Company in the Delaware Court of Chancery, which was previously dismissed voluntarily; (ii) The complaint for declaratory and injunctive relief for violations of the federal securities laws filed on December 21, 2018 by the Company against the Investor Parties in the United States District Court in the Southern District of New York; (iii) Cross-claims relating to alleged breaches of fiduciary duties and for indemnification and contribution filed on July 26, 2019 by the Company against the Investor Parties in New York Supreme Court, Queens County; and (iv) The complaint to compel annual meeting of stockholders filed on August 7, 2019 by Zeff Capital, L.P. against the Company in the Delaware Court of Chancery. No party admitted any liability by entering into the Settlement Agreement. The Settlement Agreement did not resolve the Stockholder Litigation filed by Susan Paskowitz against the Company, Joseph F. Hughes, Winifred M. Hughes and certain former directors of the Company in the Supreme Court of the State of New York on October 11, 2018. Concurrently with the Settlement Agreement, the parties entered into a share repurchase agreement which provided for the purchase by the Company and Christopher Hughes, the Company's former President and Chief Executive Officer, of the shares of the Company's Common Stock held by the Investor Parties (the "Repurchase"). The Settlement Agreement also contemplated that, if the Repurchase was completed, the Company would make a settlement payment to the Investor Parties at the closing of the Repurchase in an amount of approximately $1,500,000. However, the Repurchase and Settlement Payment were not completed by the deadline of December 30, 2019. Pursuant to the Settlement Agreement, (1) the Company agreed to adopt an amendment to the Company's Amended and Restated By-Laws, dated April 9, 2015, providing that stockholders of the Company owning at least forty percent (40%) of the issued and outstanding Common Stock may request a special meeting of stockholders; (2) the Investor Parties agreed not to take any action to call or otherwise cause a special meeting of stockholders to occur prior to December 30, 2019 (unless the Company had failed to hold the 2018 Annual Meeting); (3) the Company agreed to amend and restate the Company's Rights Agreement, dated August 29, 2018 (the "Amended Rights Agreement"), to confirm that a Distribution Date (as defined in the Amended Rights Agreement) shall not occur as a result of any request by any of the Investor Parties for a special meeting; (4) the Company agreed that prior to the earlier of (A) the completion of the Repurchase and the payment of the Settlement Payment and (B) January 1, 2020, the Board of Directors shall not consist of more than seven (7) directors. Pursuant to the terms of the Settlement Agreement, the two nominees for director made by Zeff Capital, L.P. were elected as directors at the Company's 2018 Annual Meeting held on October 22, 2019. Please see the Compan's current Report on Form 8-K filed with the SEC on October 21, 2019 for more information about the background of the election of directors at the Company's 2018 Annual Meeting. Pursuant to the terms of the Settlement Agreement, inasmuch as the Repurchase was not completed and the Settlement Payment was not made by December 30, 2019, the members of the Board of Directors (other than the two directors who were nominated by Zeff Capital, L.P. and elected as directors at the 2018 Annual Meeting) resigned from the Board effective 5:00 p.m. Eastern Time on December 30, 2019. Immediately thereafter, the two remaining directors appointed Robert Fitzgerald to the Board of Directors. Please see the Company's Current Report on Form 8-K filed with the SEC on December 31, 2019 for more information about the background and the appointment of Robert Fitzgerald. The foregoing is not a complete description of the terms of the Settlement Agreement and the Share Repurchase Agreement. For a further description of the terms of the Settlement Agreement and the Share Repurchase Agreement, including copies of the Settlement Agreement and Share Repurchase Agreement, please see the Company's Current Report on Form 8-K filed by the Company with the SEC on September 3, 2019. On October 21, 2019, the Company entered into a Memorandum of Understanding with Susan Paskowitz providing for the settlement of the Stockholder Litigation filed by Ms. Paskowitz on October 11, 2018. The MOU provides for the settlement of the claims by Ms. Paskowitz that (1) the members of the Board named in the original complaint allegedly breached their fiduciary duties by failing to immediately adopt a rights plan that would have prevented the sale by Joseph F. Hughes and Winifred M. Hughes of an aggregate of 819,491 shares of the Company's common stock to the Investor Parties; (2) the members of the Board named in the amended complaint allegedly breached their fiduciary duties and failed to adopt proper corporate governance practices; and (3) the Investor Parties acted as "partners" and constituted a "group" in their purchase of shares from Joseph F. Hughes and Winifred M. Hughes and knowingly disseminated false or misleading public statements concerning their status as a group. Pursuant to the terms of the MOU, the Company will (1) implement certain corporate governance reforms described in the MOU within 30 days of a final order and judgment entered by the court, and keep these corporate governance reforms in place for 5 years from the time of the final order and judgment; and (2) acknowledge that the plaintiff, Ms. Paskowitz, and her counsel provided a substantial benefit to the Company and its stockholders through the prosecution of the Stockholder Litigation and other related actions filed by Ms. Paskowitz described above. On December 16, 2019, the Company entered into a Stipulation and Agreement of Settlement with Susan Paskowitz in the Stockholder Litigation, which retained the terms and conditions of settlement of the Stockholder Litigation contained in the MOU described in the preceding paragraph, with the addition that the Company will pay to plaintiff's counsel an award of attorneys' fees and reimbursement of expenses in the amount of $260,000. The Stockholder Litigation Settlement does not contain any admission of liability, wrongdoing or responsibility by any of the parties, and provides for mutual releases by all parties. Each stockholder of the Company is a member of the plaintiff class unless such stockholder opts out of the class. The Stipulation is independent of the Settlement Agreement and Repurchase Agreement that the Company had entered into with the Investor Parties. On December 24, 2019, Ms. Paskowitz moved for preliminary approval of the Stipulation. On May 21, 2020, the Court entered an order preliminarily approving the Stipulation. The Court conducted a settlement hearing on April 20, 2021 to consider final approval of the Stipulation. On May 25, 2021, the Court issued a final order and judgment approving all material terms in the Stipulation. Pursuant to the terms of the final order, the Court fully and finally approved the settlement set forth in the Stipulation and dismissed the Stockholder Litigation with prejudice. The settlement payment was paid by the Company's insurance provider under its insurance policy. TSR, Inc. provides contract computer programming services in the New York metropolitan area, New England, and the Mid-Atlantic region. TSR, Inc. was founded in 1969 and is based in Hauppauge, New York. TTE TECHNOLOGY: Joint Stipulation on Class Status Briefing Filed ---------------------------------------------------------------- In the class action lawsuit captioned as MARK PACANA, PAUL FISKRATTI, and WAYNE LEWALD, individually and on behalf of all others similarly situated, v. TTE TECHNOLOGY, INC., dba TCL NORTH AMERICA, Case No. 3:20-cv-02857-EMC (N.D. Cal.), the Parties ask the Court to enter an order granting their joint stipulation that: 1. the opposition and reply deadlines populated by the ECF system, and theOctober 14, 2021 hearing date on Plaintiffs' motion for class certification, are stricken; 2. pursuant to the amended case management and pretrial order, Defendant's opposition to Plaintiffs' motion for class certification shall remain due on October 8, 2021, and Plaintiffs' reply in support of same shall remain due November 5, 2021; and 3. the hearing on Plaintiffs' motion for class certification shall be Thursday, December 9, 2021 at 1:30 p.m., or the next available date convenient for the Court. TTE designs and markets televisions. A copy of the Parties's motion dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3nyUNlo at no extra charge.[CC] The Plaintiffs are represented by: Alex R. Straus, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PPLC 280 S. Beverly Drive, Suit PH Beverly Hills, CA 90212 Telephone: (865) 247-0080 E-mail: alex@milberg.com - and - Charles J Crueger, Esq. Ben Kaplan, Esq. (pro hac vice) CRUEGER DICKINSON LLC 4532 North Oakland Avenue Whitefish Bay, WI 53211 Telephone: (414) 210-3868 E-mail: cjc@cruegerdickinson.com bak@cruegerdickinson.com - and - MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC Greg F. Coleman, Esq. Adam Edwards, Esq. First Horizon Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: gcoleman@milberg.com aedwards@milberg.com - and - Luke P. Hudock, Esq. HUDOCK LAW GROUP, S.C. P.O. Box 83 Muskego, WI 53150 Telephone: (414) 526-4906 E-mail: lphudock@law-hlg.com The Defendant is represented by: Isabelle L. Ord, Esq. Elizabeth C. Callahan, Esq. DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105-2933 Telephone: (415) 836-2500 Facsimile: (415) 836-2501 E-mail: isabelle.ord@us.dlapiper.com elizabeth.callahan@us.dlapiper.com - and - Christopher M. Young, esq. Alexander E. Wolf, esq. DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619).699-2700 Facsimile: (619) 699-2701 E-mail: christopher.young@us.dlapiper.com alexander.wolf@us.dlapiper.com UNIT CORP: Deal Reached to Settle Chieftain Royalty Class Suit -------------------------------------------------------------- Unit Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that an agreement to settle the class action suit entitled, Chieftain Royalty Company vs. Unit Petroleum Company, has been reached. On November 3, 2016, a putative class action lawsuit was filed against Unit Petroleum Company (UPC) styled Chieftain Royalty Company v. Unit Petroleum Company in LeFlore County, Oklahoma. The plaintiff alleges that UPC breached its duty to pay royalties on natural gas used for fuel off the lease premises. The lawsuit seeks actual and punitive damages, an accounting, injunctive relief, and attorney's fees. Plaintiff is seeking relief on behalf of Oklahoma citizens who are or were royalty owners in the company's Oklahoma wells. In August 2020, UPC reached an agreement to settle these class actions. Under the settlement, UPC agreed to recognize class proof of claims in the amount of $15.75 million for Cockerell Oil Properties, Ltd. vs. Unit Petroleum Company, and $29.25 million in Chieftain Royalty Company vs. Unit Petroleum Company. This settlement is subject to certain conditions, including approval by the United States Bankruptcy Court for the Southern District of Texas, Houston Division in Case No. 20-32740 under the caption In re Unit Corporation, et al. Under the Plan, these settlements will be treated as allowed general unsecured claims against UPC. And, in accordance with the Plan, the settlement amounts will be satisfied by distribution of the plaintiffs' proportionate share of New Common Stock. No further updates were provided in the Company's SEC report. Unit Corporation, together with its subsidiaries, engages in the exploration, acquisition, development, and production of oil and natural gas properties in the United States. It operates through three segments: Oil and Natural Gas, Contract Drilling, and Mid-Stream. Unit Corp was founded in 1963 and is headquartered in Tulsa, Oklahoma. UNIT CORP: Settlement Deal Between Subsidiary & Cockerell Reached ----------------------------------------------------------------- Unit Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2021, for the quarterly period ended June 30, 2021, that an agreement to settle the class action suit entitled, Cockerell Oil Properties, Ltd., v. Unit Petroleum Company, has been reached. On March 11, 2016, a putative class action lawsuit was filed against Unit Petroleum Company (UPC) styled Cockerell Oil Properties, Ltd., v. Unit Petroleum Company in LeFlore County, Oklahoma. The company removed the case to federal court in the Eastern District of Oklahoma. The plaintiff alleges that UPC wrongfully failed to pay interest with respect to late paid oil and gas proceeds under Oklahoma's Production Revenue Standards Act. The lawsuit seeks actual and punitive damages, an accounting, disgorgement, injunctive relief, and attorney fees. Plaintiff is seeking relief on behalf of royalty and working interest owners in the company's Oklahoma wells. In August 2020, UPC reached an agreement to settle these class actions. Under the settlement, UPC agreed to recognize class proof of claims in the amount of $15.75 million for Cockerell Oil Properties, Ltd. vs. Unit Petroleum Company, and $29.25 million in Chieftain Royalty Company vs. Unit Petroleum Company. This settlement is subject to certain conditions, including approval by the United States Bankruptcy Court for the Southern District of Texas, Houston Division in Case No. 20-32740 under the caption In re Unit Corporation, et al. Under the Plan, these settlements will be treated as allowed general unsecured claims against UPC. And, in accordance with the Plan, the settlement amounts will be satisfied by distribution of the plaintiffs' proportionate share of New Common Stock. No further updates were provided in the Company's SEC report. Unit Corporation, together with its subsidiaries, engages in the exploration, acquisition, development, and production of oil and natural gas properties in the United States. It operates through three segments: Oil and Natural Gas, Contract Drilling, and Mid-Stream. Unit Corp was founded in 1963 and is headquartered in Tulsa, Oklahoma. UNITED STATES: Brigida Suit Seeks Class Certification ----------------------------------------------------- In the class action lawsuit captioned as ANDREW J. BRIGIDA; MATTHEW L. DOUGLAS-COOK, v. PETE BUTTIGIEG, Secretary, U.S. Department of Transportation, Case No. 1:16-cv-02227-DLF (D.D.C.), the Plaintiffs ask the Court to enter an order: 1. granting their motion for class certification; 2. appointing them as Class Representatives; and 3. appointing MSLF and Curry, Pearson & Wooten as class counsel. All members of the proposed Class: (1) participated in the FAA-partnered Air Traffic-Collegiate Training Initiative; (2) met the FAA's pre-qualification requirements for air traffic control specialist ("ATCS") applicants; (3) had their pre-employment test results eliminated from consideration; (4) failed a new biographical employment screening test; and (5) have never been offered employment for an ATCS position. They were similarly situated and suffered the same harm, at the same time, for the same reasons. Over 1,000 individuals attended a Federal Aviation Administration ("FAA")-designed college program for training air traffic controllers, and passed an FAA pre-employment aptitude test, but had their career hopes shattered when the FAA purged their successful test results to subject them to a racially motivated biographical screening mechanism, which they "failed." The Plaintiffs Andrew Brigida and Matthew Douglas-Cook, victims of the FAA's racial prejudice, bring this action pursuant to Title VII, and seek to represent the Class of similarly situated 2014 applicants. The Plaintiffs further propose that this case be bifurcated, with issues of liability, and injunctive and declaratory relief addressed in phase one. Other common remedial issues, such as common elements of back pay, would be addressed in the second phase. The parties and the Court could then determine how to resolve any individual issues that may remain, whether through a claims process, subclasses, Teamsters hearings, or otherwise. A copy of the Plaintiffs' motion to certify class dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3hyo4c2 at no extra charge.[CC] The Attorneys for Plaintiffs and Putative Class Counsel, are: Zhonette M. Brown, Esq. William E. Trachman, Esq. David McDonald, D.C., Esq. Corey Bartkus, Esq. MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, CO 80227 Telephone: (303) 292-2021 E-mail: zhonette@mslegal.org wtrachman@mslegal.org dmcdonald@mslegal.org corey@mslegal.org - and - Michael W Pearson, Esq. CURRY, PEARSON & WOOTEN, PLC 814 West Roosevelt Phoenix, AZ 85007 Telephone: (602) 258-1000 E-mail: mpearson@azlaw.com The Defendant is represented by: Michael Leon Drezner, Esq. Galen Nicholas Thorp Rebecca Cutri-Kohart U.S. DEPARTMENT OF JUSTICE E-mail: Michael.L.Drezner@usdoj.gov galen.thorp@usdoj.gov Rebecca.cutri-kohart@usdoj.gov UNITED STATES: Nordby Appeals Case Dismissal Ruling --------------------------------------------------- Plaintiff EVAN H. NORDBY filed an appeal from a court ruling entered in the lawsuit styled EVAN H. NORDBY v. SOCIAL SECURITY ADMINISTRATION, Case No. DE-4324-19-0012-I-1, in the U.S. Merit Systems Protection Board. According to the complaint, on September 28, 2018, Mr. Nordby, an Army Reservist and former Administrative Law Judge, filed this suit alleging the agency had violated 38 U.S.C. Section 4311(a), a provision of the Uniformed Services Employment and Reemployment Rights Act (USERRA), in denying his claim for payment of differential pay under 5 U.S.C. Section 5338 when he was called to active duty as a reservist. He also moved for certification of a class action of similarly situated agency employees. On May 28, 2021, the Court issued an order dismissing the suit for failure to state a claim upon which relief may be granted. Mr. Nordby now seeks a review of that order. The appellate case is captioned as EVAN H. NORDBY, Petitioner v. SOCIAL SECURITY ADMINISTRATION, Respondent, Case No. 21-2280, in the United States Court of Appeals for the Federal Circuit, filed on Sep. 3, 2021.[BN] Plaintiff-Appellant EVAN H. NORDBY is represented by: Toby J. Marshall, Esq. Adrienne D. McEntee, Esq. 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: tmarshall@terrellmarshall.com amcentee@terrellmarshall.com UNITEDHEALTH GROUP: Court Tosses Sohmer Bid for Class Status ------------------------------------------------------------ In the class action lawsuit captioned as Samantha Sohmer and Kathy L. Fellgren, v. UnitedHealth Group Inc., United Healthcare Services, Inc., United HealthCare Insurance Company, Optum, Inc., and OptumRx, Inc., Case No. 0:18-cv-03191-JNE-BRT (D. Minn.), the Hon. Judge Joan N. Ericksen entered an order denying Sohmer's motion for class certification. This is a putative class action brought by Samantha Sohmer and Kathy L. Fellgren against the Defendants. Sohmer alleged that she received prescription drug benefits through a group health plan administered and managed by Defendants and that Defendants caused her to be overcharged for prescription drugs in violation of the plan. Sohmer asserted a claim under sectiin 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974. UnitedHealth Group Incorporated is an American multinational managed healthcare and insurance company based in Minnetonka, Minnesota. It offers health care products and insurance services. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3tEwTpw at no extra charge.[CC] The Plaintiff appeared Sohmer is represented by: Mathew P. Jasinski, Esq. MOTLEY RICE, LLC 20 Church St. Hartford, CT 06103 Telephone: (860) 218-2725 - and - Amanda M. Williams, Esq. GUSTAFSON GLUEK, PLLC 120 S. 6th St. Minneapolis, MN, 55402 Telephone: (612) 333-8844 - and - Robert A. Izard, Esq. IZARD, KINDALL & RAABE, LLP 29 South Main Street, Suite 305 West Hartford, CT 06107. Telephone: (860) 493-6292 - and - Ron Kilgard, Esq. KELLER ROHRBACK, LLP 3101 N Central Ave No. 1400 Phoenix, AZ 85012 Teleohone: (602) 248-0088 - and - Erin Green Comite, Esq. SCOTT+SCOTT, LLP Telephone: (860) 537-5537 The Defendant is represented by: Steven J. Wells, Esq. Michelle S. Grant, Esq. Caitlin L.D. Hull, Esq. DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402-1498 Telephone: (612) 340-2600 VALLEY PROTEINS: Hollis Suit Seeks Rule 23 Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as CHRISTOPHER HOLLIS, HERMAN PURVIS, and VERAKA STURDIVANT, on behalf of themselves and all others similarly situated, v. VALLEY PROTEINS, INC., Case No. 3:21-cv-00112-FDW-DSC (W.D.N.C.), the Plaintiffs Christopher Hollis, Herman Purvis, and Veraka Sturdivant ask the Court to enter an order: 1. certifying this action as a class action under Rule 23(a) and (b)(3) for the North Carolina Wage and Hour Act claims; 2. appointing them as class representatives; 3. appointing The Law Offices of Gilda A. Hernandez, PLLC as class counsel; 4. approving the proposed notice of this action and attached forms; 5. directing the Defendant to produce the names, last known mailing addresses, last-known cell phone numbers, email addresses, work locations, shift assignments, employee ID numbers, and dates of employment of all putative plaintiffs within 15 days of the Order; and 6. directing them to distribute the Notice and forms via first class mail, email, and text message to all members of the certified class, with a reminder mailing to be sent 45-days after the initial mailing to all non-responding putative plaintiffs. Valley Proteins provides rendering and recycling of animal by-products. A copy of the Plaintiffs' motion to certify class dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3C777gu at no extra charge.[CC] The Plaintiffs are represented by: Gilda A. Hernandez, Esq. Charlotte Smith, Esq. THE LAW OFFICES OF GILDA A. HERNANDEZ, PLLC 1020 Southhill Dr., Ste. 130 Cary, NC 27513 Telephone: (919) 741-8693 Facsimile: (919) 869-1853 E-mail: ghernandez@gildahernandezlaw.com csmith@gildahernandezlaw.com The Defendants are represented by: Andrew J. Henson, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 1001 Haxall Point, Suite 1500 Richmond, VA 23219 Telephone: (804) 697-1390 Facsimile: (804) 697-1339 E-mail: andrew.henson@troutman.com - and - Ashley Z. Hager, Esq. Emily E. Schifter, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP Bank of America Plaza 600 Peachtree Street, NE, Suite 3000 Atlanta, GA 30308 Telephone: (404) 885-3000 Facsimile: (404) 885-3900 E-mail: ashley.hager@troutman.com emily.schifer@troutman.com WONDERFUL CITRUS: Peralta Bid for Attorney's Fees Tossed -------------------------------------------------------- In the class action lawsuit captioned as MARCELINA PERALTA and RIGOBERTO MONJARAZ, v. WONDERFUL CITRUS PACKING LLC, Case No. :15-cv-00263-TLN-JLT (E.D. Cal.), the Hon. Judge Troy L. Nunley entered an order denying the Plaintiffs' motion for Attorney Fees. The Plaintiffs contend they are entitled to costs in the amount of $1,932.06 and attorneys' fees in the amount of $87,000 as the prevailing party. Specifically, Plaintiffs argue they are prevailing parties because Defendant exercised the safe harbor provision in section 226.2 by paying more than $2,325,700 to 27,351 agricultural workers "[i]n order to avoid all the liabilities threatened by this lawsuit." Although ultimately disposed of on summary judgment, Plaintiffs contend they achieved their "principal litigation goal in substance" in the instant action when Defendant made these payments. The Defendant argues Plaintiffs are not the prevailing party because they failed to achieve class certification or succeed on any of their claims against Defendant. Rather, the Defendant argues it is the prevailing party, and therefore entitled to its costs, because 17 succeeded on all claims at summary judgment. In the alternative, Defendant contends Plaintiffs' attorneys' fees are unreasonable. Despite the judgment in Defendant's favor, Defendant is unable to recover its costs under section 1194. This wage and hour case arises from a dispute over Defendant's failure to pay piece rate employees minimum wages under California law for time spent engaged in various non-piece work activities. The Plaintiffs filed the operative Second Amended Complaint on December 17, 2015. On December 2, 2016, Defendant elected to make payments under California Labor Code section 226.2(b)(1)(B) to 27,351 agricultural workers, including Plaintiffs, which granted Defendant an affirmative defense against Plaintiffs' claims in this action. Despite these payments, the Plaintiffs moved for class certification on June 1, 2017. The Court denied Plaintiffs' motion on January 3, 2019. The Defendant filed an unopposed motion for summary judgment on its affirmative defense under section 226.2 on July 16, 2019. The Court granted Defendant's motion and entered judgment on October 7, 2020. The Plaintiffs filed the instant motion for attorneys' fees on November 4, 2020. A copy of the Court's order dated Sept. 10, 2021 is available from PacerMonitor.com at https://bit.ly/2VNw69i at no extra charge.[CC] ZOSANO PHARMA: Consolidated Amended Carr Securities Suit Dismissed ------------------------------------------------------------------ In the case, DANIELLE CARR, Plaintiff v. ZOSANO PHARMA CORPORATION, et al., Defendants, Case No. 20-cv-07625-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California grants the Defendants' motion to dismiss the Plaintiffs' Consolidated Amended Class Action Complaint. Background The case is a securities-fraud class action brought by co-lead Plaintiffs Tuk Doss and Hosam Alqurashi against Defendants Zosano and three of the company's current or former CEOs: Steven Lo, John Walker, and Konstantinos Alataris. The Plaintiffs allege that, from Feb. 13, 2017, through Oct. 20, 2020, the Defendants made a series of misleading statements about the likelihood of regulatory approval by the U.S. Food and Drug Administration ("FDA") of the company's principal product, Qtrypta, and that these statements violate Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 as well as Securities Exchange Commission ("SEC") Rule 10b-5. Plaintiffs Danielle Carr and Rob Becerra filed class-action complaints against the Defendants in late October and early November 2020, respectively. In late December 2020, seven Plaintiffs filed motions to consolidate the two actions, to appoint a lead plaintiff, and to approve lead counsel in the case. Pursuant to a stipulation from Plaintiffs Doss and Alqurashi, the Court consolidated the cases, appointed Messrs. Doss and Alqurashi as the Co-Lead Plaintiffs, and approved their selected law firms as the Co-Lead Counsel in the case. The Plaintiffs filed their Consolidated Amended Class Action Complaint on March 30, 2021. The gravamen of the complaint is that the Defendants, throughout the Class Period, "made materially false and/or misleading statements regarding the Qtrypta clinical trials and the drug's pathway and timing for regulatory approval." The complaint further alleges that the Defendants were "motivated to issue misstatements regarding the Company's potential for obtaining FDA approval of Qtrypta for financial reasons." As noted, the Plaintiffs brought claims under Sections 10(b) and 20(a) of the Exchange Act and SEC Rule 10b-5. The Defendants moved to dismiss the complaint on May 14, 2021. The Plaintiffs responded by opposing the motion on June 14, 2021. The Defendants filed a reply on July 6, 2021. Judge Chen held a hearing on the motion to dismiss on July 22, 2021. Discussion The Defendants' motion to dismiss the Consolidated Amended Class Action Complaint argues that the Plaintiffs fail to state a claim under Section 10(b) and Rule 10b-5, as well as Section 20(a), for two main reasons. First, they contend that "none of the allegedly false or misleading statements identified" in the complaint are actionable, as they were truthful "predictions about Qtrypta's regulatory pathway" and so not false or misleading for purposes of the PSLRA. Second, the Defendants assert that "the Complaint fails to raise a strong inference of scienter on the part of any of the Defendants." Specifically, they argue that "the type of scienter theory underlying" the complaint is implausible as a matter of law based on the Ninth Circuit's decision in Endologix. Even if that case is not dispositive, the Defendants continue, the complaint fails to allege "who at Zosano knew about" the purported problems in the clinical studies, "when they learned about them," "how they learned about them, and why -- even if they had such knowledge -- the omissions were material enough to render any of the challenged statements false or misleading." Additionally, Zosano points out that "the Complaint contains none of the hallmarks of a potentially viable securities fraud claim," such as "allegations attributed to confidential witnesses," "insider stock sales," or "motivation for personal financial gain." The Plaintiffs respond to each of these arguments in turn. Judge Chen is doubtful that the Plaintiffs have adequately alleged that the Defendants' statements were materially misleading with sufficient particularity. As the Defendants point out, the statements identified as fraudulent and/or misleading in the complaint "fall into two general categories": (1) "statements about the efficacy and long-term safety studies," where "Zosano disclosed that the studies reported positive results," and (2) "Zosano's public statements regarding Qtrypta's pathway to FDA approval." The Judge holds that the Defendants plausibly argue that neither category contains an actionable misrepresentation, as the Plaintiffs do not challenge Defendants' characterizations of the ZOTRIP and safety studies as promising, nor do they dispute that those studies were sufficient to filing an NDA. Instead, the Plaintiffs suggest that the Defendants omitted important clinical data -- namely those concerning the very problems that the FDA later identified in rejecting the Qtrypta NDA -- when touting the results of Zosano's various clinical studies. But the "Plaintiffs nowhere allege who at Zosano learned about issues (1) and (2), how they learned it, when they learned it, or even if the allegedly non-disclosed issues arose before any particular Challenged Statement was made." Given the heightened pleading standards of Rule 9(b) and the PSLRA, the complaint's lack of specificity appears problematic for the Plaintiffs. However, the Judge need not decide that issue since he concludes that the Plaintiffs have failed to plead scienter and that their claims under Section 10(b) and Rule 10b-5, as well as under Section 20(a), necessarily fail as a result. In sum, Judge Chen holds that the Plaintiffs have not "stated with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." With respect to scienter, the complaint alleges little more than "that the FDA ultimately found the data material, coupled with the Plaintiffs' conclusory allegation that the Defendants must have seen it coming." Thus, comparing "the malicious and innocent inferences cognizable from the facts pled in the complaint," the Judge cannot conclude that "the malicious inference is at least as compelling as any opposing innocent inference." Whether viewed individually or collectively, the Plaintiffs' allegations amount to "an assertion of fraud by hindsight," which is insufficient under the PSLRA. As the Plaintiffs' claim under Section 10(b) and Rule 10b-5 is unavailing for failure to plead scienter, their claim under Section 20(a) necessarily also fails. The Defendants' motion to dismiss will therefore be granted. Conclusion For the reasons given, Judge Chen grants the Defendants' motion to dismiss the Plaintiffs' Consolidated Amended Class Action Complaint on the ground that the complaint fails to plead scienter. Moreover, the specificity required to establish the Defendants' fraudulent misrepresentation or omission under the PSLRA appears to be lacking, as well. Although the Plaintiffs' case seems questionable, the Judge cannot yet conclude that amendment would necessarily be futile. The Plaintiffs are thus given leave to amend. Judge Chen observes, however, that the Plaintiffs' current allegations fall far short of the mark for adequately alleging scienter under the PSLRA and that any amended complaint must set forth considerably stronger evidence of the Defendants' illicit state of mind if it is to survive another motion to dismiss. The Plaintiffs have 30 days from the date of the Order to file an amended complaint. The Order disposes of Docket No. 71. A full-text copy of the Court's Sept. 1, 2021 Order is available at https://tinyurl.com/h7p2p2sf 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 ***