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              C L A S S   A C T I O N   R E P O R T E R

              Tuesday, October 5, 2021, Vol. 23, No. 193

                            Headlines

1ST CHOICE: Direct Support Professionals Get Conditional Status
AMERICAN AIRLINES: Court Narrows Claims in 3rd Amended Fields Suit
ANGIE'S LIST: Court Narrows Claims in Pro Water's 2nd Amended Suit
ARIZONA: Order Compelling Docs Production in Toomey v. ADOA Upheld
ASSET CAMPUS: Court Dismisses Vo Amended Complaint

BASTROP ENERGY: White Suit Remanded to Harris County State Court
BAYADA HOME: Wins Summary Judgment Bid in Higgins FLSA-PMWA Suit
BLUEMERCURY INC: Bethel Seeks to Certify Class of Store Managers
CALIFORNIA: Show Cause Order Issued in Ashker Suit v. PBSP & KVSP
CHARTER COMMUNICATIONS: Wlimore Suit Removed to D. Connecticut

CHEROKEE NATION: Utah Court Orders Elizabeth to Amend Complaint
CORVIAS MGMT-ARMY: Court Resolves Discovery Disputes in Addi Suit
COSTA DEL MAR: Smith's Class Settlement Wins Partial Final Approval
DESERT STATES: Koch Suit Wins Class Certification
DRIVELINE RETAIL: Wins Summary Judgment in McGlenn Data Breach Suit

EVENTIDE CREDIT: Martorello's Bid to Dismiss Duggan Suit Denied
FAIR COLLECTIONS: Court Dismisses Epps FDCPA Suit With Prejudice
FEDCAP REHABILITATION: King Bid for Collective Status Nixed as Moot
FPC ALDERSON: Asplund Suit Seeks to Certify Class of Inmates
FPC ALDERSON: Wiggins Suit Seeks to Certify Class of Inmates

FPC ALDERSON: Workman Suit Seeks to Certify Class of Inmates
GEICO CASUALTY: Davis Suit Seeks to Certify Ohio Insured Class
GREGORY STEPHEN: Court Certifies Class of BBI Participants
HEBRON TECHNOLOGY: Consolidated 2nd Amended Securities Suit Tossed
HUTCHINSON CORRECTIONAL: Hughes Seeks to Certify Prisoner Class

INNOVATIVE TECHNOLOGY: Labaton Named Lead Counsel in Plymouth Suit
JUUL LABS: Faces Rootstown Suit Over Youth E-Cigarette Crisis
KENSINGTON REDWOOD: Tolosa Parties to Address Jurisdictional Issue
LVNV FUNDING: Snyder Files FDCPA Suit in S.D. New York
MARC JONES: Loses Bid to Dismiss Stemke Amended Complaint

MCLANE/SUNEAST INC: Ordaz Suit Removed to C.D. California
MDL 2641: Alarcon Suit Moved From IVC Filters MDL to C.D. Calif.
MDL 2682: Bid to Compel Docs Production in Antitrust Suit Denied
MDL 2918: California Court Narrows Claims in HDD SAs Antitrust Suit
MDL 2972: Court Enters Case Management Order in Data Breach Suit

MEDALLIA INC: Bushansky Files Suit Over Sale to Thomas Bravo
MICHIGAN STATE: Court Grants in Part Bid to Dismiss Balow Suit
NATIONAL COLLEGIATE: Court Narrows Claims in Johnson Class Suit
NATIONAL OILWELL: Ramirez Sues Over Failure to Provide Compensation
NATIONSTAR MORTGAGE: Contreras Suit Seeks to Certify Classes

ORANGE CRUSH: Phakhailathvone Files Suit in Cal. Super. Ct.
OREGON: Dunlap v. Agriculture Dept. Stayed Pending Ruling in Miller
PACESETTER PERSONNEL: Villarino Suit Loses FLSA Class Status Bid
POLARITYTE INC: Faces Richfield Suit Over 9.52% Stock Price Drop
QUESADILLAS DONA MATY: Does not Properly Pay Workers, Flores Says

REAL ESTATE HEAVEN: Stipulation to Extend Class Cert Deadlines OK'd
ROCKETREACH LLC: Loses Bid to Dismiss Krause's Class Complaint
SMART MORTGAGE: Can Compel Arbitration in Noe Unpaid Wages Suit
SOUTHERN NEW HAMPSHIRE: Wright's $1.25MM Settlement Wins Final Nod
SPARC GROUP: Seger-Zawacki Files Suit in Cal. Super. Ct.

STA MANAGEMENT: Mata's State Law Claim Suit Dismissed W/o Prejudice
STATE FARM: Court Grants Pete's Bid for Leave to Amend Complaint
SYMMETRY ENERGY: CRI Bid to Certify Class Due July 21, 2022
SYSTEMS & SERVICES: Tran Sues Over False and Inaccurate Statements
T-MOBILE USA: Feinberg Sues Over Failure to Secure PII

THOMAS VILSACK: Wins Bid to Stay Dunlap Class Suit
TRADITIONAL LOGISTICS: Daniels Suit Seeks to Certify Class Action
TRAVELEX INSURANCE: $3.2MM Class Deal in Anderson Suit Has Final OK
UNITED NATIONS: Fourth Circuit Affirms Dismissal of Ogunjobi Suit
UNITED STATES: Denial of Attys.' Fees, Costs in Athey Suit Affirmed

UNITED STATES: New York Court Dismisses Cabrera Prisoners Suit
UNITED STATES: Retaliation Claim in Maloney v. State Dep't Tossed
VIPKIDS INT'L: New York Court Denies Meehan's Bid to Remand Suit
WAKEMED: North Carolina District Court Dismisses Elrod Class Suit
WATERTOWN SPRECHERS: Bid to Decertify Class Due February 4, 2022

WELLS FARGO: Cora Seeks Initial OK of Class Settlement
WELLS FARGO: Reed Suit Moved From E.D. Michigan to C.D. California
WOOD GROUP: Iannotti Seeks Conditional Status of Day Rate Workers
Y Z COMMERCE: Doyle Files TCPA Suit in D. New Jersey

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1ST CHOICE: Direct Support Professionals Get Conditional Status
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In the class action lawsuit captioned as Monisha Fuller, on behalf
of herself and all others similarly situated, v. 1st Choice Family
Services, Inc., Case No. 2:21-cv-02771-MHW-KAJ (S.D. Ohio), the
Hon. Judge Michael H. Watson entered an order granting Plaintiffs
motion for conditional certification of:  

   "All current and former Direct Support Professionals who were
   employed by Defendant as independent contractors and who
   worked 40 or more hours in any workweek at any time during
   the period of May 25, 2018 to the present."

The Court said, "The Defendant makes no argument that Plaintiff's
proposed class definition is defective, and neither does the Court
see any glaring defects. However, the Court directs the parties to
confer and submit a joint proposed class definition, notice, and
distribution plan within fourteen days. The Court suggests the
parties use Plaintiffs proposed class definition as a starting
point for discussion."

Monisha Fuller sues 1st Choice Family Services under the Fair Labor
Standards Act and analogous state laws.

The Defendant is an Ohio corporation that provides in-home support
services including cooking, cleaning, and administering medication
to developmentally disabled individuals.

The Defendant hired Plaintiff as a Direct Support Professional
("DSP") in November 2020 to provide in-home services. The Defendant
classified Plaintiff and all DSPs as independent contractors.

In spite of this label, Plaintiff alleges that DSPs are actually
employees for the following reasons: DSPs provide services directly
to Defendant’s clients; DSPs generate revenue for Defendant;
Defendant gives each DSP a weekly work schedule and DSPs are unable
to set their own schedule; DSPs who could not work a shift were
required to call Defendant and request time off; Defendant gave the
DSPs specific tasks to perform for each client; DSPs were not
required to have any unique or specialized skills; any training
necessary to perform the DSP job duties was provided by Defendant;
Defendant provided the only specialized tools necessary for the
job; and various other reasons.

According to the Plaintiff, because DSPs were misclassified as
independent contractors, they were not properly paid for all hours
worked in excess of 40 hours per week.

A copy of the Court's order dated Sept. 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3l7bQJp at no extra charge.[CC]

AMERICAN AIRLINES: Court Narrows Claims in 3rd Amended Fields Suit
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In the case, ANDRE FIELDS, et al. Plaintiffs v. AMERICAN AIRLINES,
INC., et al., Defendants, Civil Action No. 19-903-KSM (E.D. Pa.),
Judge Karen S. Marston of the U.S. District Court for the Eastern
District of Pennsylvania granted in part and denied in part the
Defendants' motion to dismiss the third amended complaint in its
entirety.

Background

Plaintiffs Andre Fields, Kendall Green, and Andre Roundtree bring
employment discrimination and civil conspiracy claims under state
and federal law against their employer, Defendant American
Airlines. American Airlines operates out of 10 hubs in the United
States, including one at the Philadelphia International Airport
("PHL"). Although American's national workforce is predominantly
Caucasian, the airline's PHL workforce is 70% African American.

Plaintiffs Fields, Green, and Roundtree are African American men,
each of whom has worked as a fleet service agent for American
Airlines at PHL for more than 15 years. In their third amended
complaint, the Plaintiffs identify numerous employment practices
that they contend discriminate against them and the rest of the
primarily African American workforce at American's PHL location.

In particular, the Plaintiffs point to the company's practice of
top filling airplane lavatory tanks and allege overt racial
discrimination in how managers dole out work assignments and pursue
disciplinary actions, the existence of highly offensive racial
statements and carvings in employee-only areas, and the placement
of a stuffed gorilla in the employee break room.

The Plaintiffs filed their complaint in the case on March 4, 2019.
On Feb. 24, 2020, the case was reassigned from the Honorable
Cynthia M. Rufe to the Honorable Karen Spencer Marston. At the time
of the transfer, the Plaintiffs had twice amended the complaint,
with American Airlines filing motions to dismiss each time.

On March 16, 2020, the Court held a Rule 16 conference, and issued
a Scheduling Order which allowed the Plaintiffs to file yet another
amended complaint for the limited purpose of adding "their
Pennsylvania Human Relations Act ("PHRA") claims and the Union as a
party."

One week later, the Plaintiffs filed the third amended complaint,
the operative complaint in the matter, in which they added claims
under the PHRA but declined to add the Union as a party.

In sum, the third amended complaint asserts counts for: (i) race
discrimination (harassment/hostile work environment) in violation
of Section 1981, Title VII, and the PHRA; (ii) race discrimination
(disparate treatment) in violation of Section 1981, Title VII, and
the PHRA; (iii) race discrimination (retaliation) in violation of
Section 1981, Title VII, and the PHRA; (iv) race discrimination
(disparate impact) in violation of Title VII and the PHRA; (v) race
discrimination (disparate treatment) in violation of Title VI; (vi)
civil conspiracy with the Union to tortiously interfere with
business relations; and (vii) civil conspiracy with the Union to
violate the Racketeer Influenced and Corrupt Organizations Act
(RICO).

The Defendants now move to dismiss the third amended complaint in
its entirety, arguing that the Plaintiffs are precluded from
bringing any claims based on top filling, that the discrimination
claims fail to state claims upon which relief can be granted, and
that the Court lacks subject matter jurisdiction over the civil
conspiracy claims.

American Airlines argues that the third amended complaint should be
dismissed in its entirety because: (1) all claims related to top
filling are barred by res judicata, (2) Counts I through V fail to
state claims for discrimination as a matter of law, and (3) the
Court lacks jurisdiction over the civil conspiracy claims in Counts
VI and VII and in the alternative, those counts fail to state
claims for tortious interference with business relations or for
violations of the RICO Act.

A. Top Filling Allegations

First, the Defendants argue that the Plaintiffs' claims for race
discrimination based on top filling are precluded under the
doctrine of res judicata, because they are "virtually identical to
the allegations in the Plaintiffs' past complaints originally filed
in 2015, which they brought against the same party, and that were
dismissed with prejudice."

Judge Marston agrees. She holds that to the extent that the
Plaintiffs' claims are based on American Airlines' top filling
practices, they are barred by the doctrine of res judicata, and she
grants American's motion to dismiss with prejudice. The Judge
emphasizes however that res judicata does not prohibit the
Plaintiffs from asserting claims based on other, unrelated
discriminatory conduct that occurred after the state court case was
decided in 2017. Nor will she prohibit the Plaintiffs from
referring, within reason, to the top filling practice as relevant
background information for the Plaintiffs' discrimination claims.

Having dismissed the claims based on top filling, Judge Marston
considers whether each count in the third amended complaint
survives based on the remaining allegations.

B. Discrimination Counts

In Counts I through III, the Plaintiffs bring hostile work
environment, disparate treatment, and retaliation claims under
Section 1981, Title VII, and the PHRA. In Count IV, they raise a
claim for disparate impact under Title VII and the PHRA. And in
Count V, the Plaintiffs contend that American Airlines'
discriminatory practices violate Title VI.

1. Count I: Hostile Work Environment

Viewing these allegations collectively, Judge Marston finds that
the Plaintiffs have plausibly pled a claim for hostile work
environment. Whether these allegations are true and whether they
amount to 'pervasiveness' or 'severity' are questions to be
answered after discovery.

2. Count II: Disparate Treatment

American Airlines argues that Count II fails because the Plaintiffs
have not alleged any conduct that rises to the level of an adverse
employment action, and even if they had, these "facially neutral
actions" do not give rise to an inference of discrimination.

Judge Marston holds that the allegations are sufficient at the
motion to dismiss stage to allege adverse employment actions
related to the conditions and nature of the Plaintiffs' employment.
She also finds that the allegations are sufficient at the motion to
dismiss stage to suggest that the heavier work assignments and
accelerated discipline that the Plaintiffs received occurred "under
circumstances that could give rise to an inference of intentional
discrimination." Hence, the motion to dismiss Count II is denied.

Judge Marston grants American's motion to dismiss Count III.
However, she cannot find that the Plaintiffs are foreclosed from
asserting any facts which would give rise to a claim for
retaliation. Hence, Count III is dismissed without prejudice.

Because the Plaintiffs have failed to allege any facts to support
their conclusory assertion that American Airlines' policies have a
disparate impact on African American employees, the motion to
dismiss is granted as to Count IV as well. However, because she
cannot find that the Plaintiffs are foreclosed from asserting any
facts which would give rise to a claim for disparate impact, the
Judge dismissed Count IV without prejudice.

Finally, because she finds as a matter of law that there is no
"logical nexus" between the alleged discrimination and American's
mail delivery contracts with the U.S. Postal Service, Judge Marston
also grants American's motion to dismiss Count V. Count V is
dismissed with prejudice.

C. Civil Conspiracy Counts

Finally, in Counts VI and VII, the Plaintiffs bring civil
conspiracy claims under state and federal law. They contend that
American Airlines and the Union have conspired to extort union
funds by failing to properly back fill job assignments when
employees are deployed on union business. They claim that this
conspiracy tortiously interferes with their business relationships
with the Union and violates the RICO. American Airlines argues that
the Court lacks jurisdiction to consider these claims because they
"constitute 'minor disputes' under the Railway Labor Act, 45 U.S.C.
Section 151 over which the applicable System Board has exclusive
jurisdiction."

Judge Marston finds that Counts VI and VII are preempted by the
RLA's mandatory grievance and arbitration provisions, and that no
recognized exception applies. Hence, Counts VI and VII are
dismissed with prejudice. Judge Marston finds that (i) the
Plaintiffs have not alleged any facts suggesting that they
attempted to exhaust the grievance and arbitration procedures; (ii)
there are no allegations that the Plaintiffs have complained to
American Airlines or their Union officials about the deployment
process, that they have attempted to pursue the grievance process
and been ignored or rejected, or that other facts exist which
suggest predisposition or prejudice by the Board, such that
pursuing administrative procedures would be futile; and (iii) the
case is not one where "the employer is joined in a DFR (duty of
fair representation) claim against the union."

Conclusion

In sum, Judge Marston denied the Defendants' motion as to Counts I
and II, except for any allegations related to top filling. The
motion is granted as to Counts III through VII. Counts III and IV
are dismissed without prejudice, and the Plaintiffs may file an
amended complaint if they can cure the deficiencies identified in
the Memorandum. Counts V through VII are dismissed with prejudice
because either amendment would be futile or the Court lacks
jurisdiction. An appropriate order follows.

A full-text copy of the Court's Sept. 22, 2021 Memorandum is
available at https://tinyurl.com/2bmem6eu from Leagle.com.


ANGIE'S LIST: Court Narrows Claims in Pro Water's 2nd Amended Suit
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In the case, PRO WATER SOLUTIONS, INC., et al., Plaintiffs v.
ANGIE'S LIST, INC., et al., Defendants, Case No. 2:19-cv-08704-ODW
(SSx) (C.D. Cal.), Judge Otis D. Wright, II, of the U.S. District
Court for the Central District of California grants in part and
denies in part the Defendants' Motion to Dismiss the Plaintiff's
Second Amended Complaint.

Background

Plaintiff Pro Water brings the putative class action against
Defendants Angie's List ("Angie's List") and Angi Homeservices Inc.
("Angi") on behalf of itself and others who used Angie's List's
website to promote their businesses. The Defendants removed the
case from the Los Angeles Superior Court to the Central District on
the basis of Class Action Fairness Act jurisdiction.


Pro Water is in the business of providing water treatment services,
and the case arises from its efforts to market its services through
the use of advertising and lead generation services provided by
Angie's List and non-party HomeAdvisor, Inc., respectively.

Angie's List operates a website homeowners and others use to
locate, evaluate, contact, hire, and rate businesses for various
contracting jobs.  Pro Water was a registered business, or service
provider, with Angie's List from 2011 to 2019. Angie's List
requires Pro Water and other service providers who list with it to
sign a Service Provider User Agreement ("SPUA") and the Angie's
List Privacy Policy as a condition of being listed. Pro Water also
pays Angie's List a fee to advertise its services on the Angie's
List website by way of customer discounts, or "Coupons," and
similar offerings. Pro Water signs an annual Advertising Agreement
which sets the terms and rates for its advertising on Angie's List
for the year.

Like Angie's List, HomeAdvisor connects service providers with
customers, albeit by way of a somewhat different business model.
Whereas service providers engaging Angie's List pay a fee to have
their ads displayed on the Angie's List website in hopes of
convincing customers to reach out to the service providers,
HomeAdvisor's business model works in reverse. HomeAdvisor asks its
customers to fill out an online questionnaire, and it uses the
results of that questionnaire to match the potential customer with
service providers. HomeAdvisor then sends the contact information
of potential customers directly to service providers. The service
provider pays HomeAdvisor a fee for each lead HomeAdvisor sends the
service provider. Once the service provider receives the lead, it
falls to the service provider to reach out to the customer and
initiate the business relationship.

Until recently, Angie's List and HomeAdvisor were two separate
companies. After a series of corporate transactions in 2017, both
Angie's List and HomeAdvisor became subsidiaries of a newly created
corporate entity, Defendant Angi. As a result, "Angie's List and
HomeAdvisor, companies that were former competitors, are now under
the common ownership of Angi."

In addition to both being owned by the same parent company, Angie's
List and HomeAdvisor have combined their operations in a particular
way Pro Water alleges results in it and other service providers
being charged twice to reach the same customer. Currently, when a
potential customer seeks services through Angie's List, Angie's
List presents the customer with a questionnaire to determine that
customer's service needs. Angie's List does two things with the
questionnaire results: one, it uses them to present the customer
with suitable service provider options from its own database, and
two -- crucially -- it sends the results of the questionnaire to
HomeAdvisor.

HomeAdvisor then uses the results of that questionnaire to transmit
the customer's information to its subscribed service providers.
Some of these providers are also Angie's List advertisers, like Pro
Water, and some are not. Once the service providers receive
customer contact information from HomeAdvisor, the service
providers are free to reach out to the potential customers to offer
their services.

Pro Water alleges that as result of this scheme, it pays Angie's
List once to advertise to potential customers, and then it pays
HomeAdvisor a lead fee for the contact information of those very
same customers. Pro Water alleges harm in two senses: first, that
Angie's List and HomeAdvisor "double charged" it, and second, that
their practice rendered its ads on Angie's List "virtually
worthless."

Separately, Pro Water alleges that when it decided to end its
subscription with Angie's List, Angie's List removed Pro Water's
information from its website before Pro Water's subscription had
expired and charged Pro Water for an additional month without
listing Pro Water on its website.  Pro Water disputed the charge,
which led to Angie's List threatening to send the debt to
third-party collectors unless Pro Water paid the bill.

Finally, Pro Water alleges that, although the parties' Advertising
Agreement contains a term limiting Pro Water's time for bringing
actions against Angie's List to 120 days, this term is
unconscionable and unenforceable.

Based on the foregoing, Pro Water asserts five causes of action, on
behalf of itself and a putative class and subclasses, against
Angie's List and Angi for: (1) breach of contract; (2) breach of
implied warranty; (3) fraudulent misrepresentation; (4) violation
of California's Unfair Competition Law, California Business and
Professions Code sections 17200-17210 ("UCL"); and (5) declaratory
relief. Now, Angie's List and Angi move to dismiss the SAC under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim.

Discussion

The Defendants move to dismiss Pro Water's SAC for failure to plead
facts sufficient to support any claim.

A. First Claim: Breach of Contract

The Defendants move to dismiss Pro Water's first claim for breach
of contract. Regarding choice of law, the parties do not argue that
there are any substantial differences between California contract
law and Indiana contract law that would materially affect the
outcome of the claim. As there is no conflict between the laws,
there is no conflict with a fundamental policy of California, and
accordingly, Judge Wright applies Indiana law to the breach of
contract claim.

The Defendants' first contract breach is based on Angie's List
relationship with HomeAdvisor and the fees and loss of value Pro
Water incurred as a result. Their second contract breach has
nothing to do with HomeAdvisor and is based solely on Angie's List
failure to list Pro Water as a service provider on its website in
its final month, despite Pro Water having paid it to do so. Pro
Water acknowledges these two breaches constitute two separate and
distinct subclaims. Accordingly, for the purpose of the Order,
Judge Wright bifurcates analysis of the breach of contract claim.

1. First Contract and Breach: Pro Water's Ads and Angie's List's
Relationship with HomeAdvisor

The first alleged breach arises from Angie's List sharing the
results of its questionnaire with HomeAdvisor, to Pro Water's
detriment. Judge Wright concludes that these allegations fail to
constitute a breach of contract. Moreover, Pro Water's attempt to
save its allegations by way of an integration clause is unavailing.
Finally, beneath these concerns lies a fundamental causation
problem which renders the claim incurable.

For these reasons, the breach of contract claim based on sharing
information with HomeAdvisor is ill-pleaded and will be dismissed.
Moreover, Judge Wright finds that any amendment of this aspect of
the breach of contract claim would be futile. The Court's Order on
the Motion to Dismiss the FAC made clear the deficiencies in Pro
Water's allegations. Pro Water attempted to overcome these
deficiencies by alleging new terms and theories in the SAC. But as
the foregoing discussion reveals, Pro Water's multifaceted attempt
fails, and for largely the same reasons as before. The distinction
between sharing Pro Water's information and sharing customer
information adds another layer of implausibility to the claim,
which, at this point, appears insurmountable. Accordingly, this
aspect of the breach of contract claim will be dismissed without
leave to amend.  

2. Second Contract and Breach: Final Month Listing Charge

Separately, Pro Water maintains its allegation that Angie's List
removed Pro Water's advertisement from its website before Pro
Water's subscription had expired, and it charged Pro Water for an
additional month without listing Pro Water on its website. This
aspect of the contract claim is sufficiently pleaded, Judge Wright
holds. Pro Water alleges that it paid Angie's List a monthly fee to
be listed on its website, and that Pro Water did not get the
benefit of what it paid for because Angie's List did not list Pro
Water on its website. This constitutes a plausible contract claim,
and the Motion to Dismiss is denied to this extent.

The Defendants argue that any contract claim, including this one,
is foreclosed by the term in the Advertising Agreements limiting
Pro Water's time for bringing suit to 120 days.  Pro Water argues
that (1) the limitation is an unconscionable contract term, and (2)
even if it is not, Pro Water filed its claims within the 120-day
period.

Judge Wright finds that Pro Water has a plausible claim that the
120-day limitation period is unconscionable. The contract term at
issue limits Pro Water's time for bringing a lawsuit without
placing any limitations on Angie's List. This asymmetry, the Judge
says, along with the imbalance in bargaining power between Angie's
List and Pro Water, presents sufficient hallmarks of
unconscionability to withstand a pleading attack. Thus, at this
pleading stage, Pro Water's contract claim is not necessarily
time-barred. The Judge reaches this conclusion without addressing
whether Pro Water indeed did file suit within the 120-day period.

Summary

In summary, as to the breach of contract claim, Judge Wright grants
the Defendants' Motion to Dismiss without leave to amend to the
extent the claim is based on any sharing of information or
coordination with HomeAdvisor. He denies the Motion to the extent
the breach of contract claim is based on the final month listing
charge.

B. Second Claim: Breach of Implied Warranty

The Defendants move to dismiss Pro Water's second claim for breach
of implied warranty. The parties do not argue that there is any
material difference between California's and Indiana's respective
laws for implied warranty claims. Because there is no apparent
conflict between the laws, there is no apparent conflict with a
fundamental policy of California, and accordingly, Judge Wright
applies Indiana law to the breach of implied warranty claim.

Pro Water's SAC cites to Indiana Pattern Jury Instructions 2517 and
2519. These instructions are for causes of action based on the
Indiana Uniform Commercial Code ("IUCC"), suggesting that the
second claim arises from the IUCC. Reflecting this suggestion, the
Defendants argue that in Indiana, implied warranty claims arise
from and are governed by the IUCC, and that, under the IUCC, the
implied warranty only applies to transactions in goods. Pro Water
does not dispute this legal principle and instead argues that the
advertising services Angie's List provides qualify as a "good"
under the IUCC.

Judge Wright grants the Defendants' Motion as to the second claim
without leave to amend. First, the Judge finds that an Angie's List
ad itself exists digitally (if it exists at all), and moving a
paper copy of the ad does not move the ad itself. Just as the
ability to copy a website does not make it movable for purposes of
the IUCC, the ability to print ad onto paper does not make the ad
movable. Second, other than the printable ad itself, Pro Water has
not pointed to any other "good" Angie's List sold it as part of
their business relationship. As Pro Water cannot identify any
goods, the Judge finds that amendment of this claim would be
futile.

C. Third Claim: Fraudulent Misrepresentation Claim

The Defendants move to dismiss Pro Water's third claim for
fraudulent misrepresentation. The Court previously dismissed this
claim because (1) Pro Water had not alleged facts supporting the
tort of fraud as independent from the Defendants' alleged breaches
of contract; and (2) Pro Water had failed to allege a false
misrepresentation.  

Pro Water has agreed to withdraw its claim for fraudulent
misrepresentation. "The bottom line," the counsel urges, "is that,
in getting up to speed on Indiana law, it appears that the
Plaintiff's fraud claims are more appropriately pled as
constructive fraud." The counsel asks for leave to file a Third
Amended Complaint adding a claim for constructive fraud.

Judge Wright finds unavailing the counsel's assertion that the
nuances of Indiana law alerted him to the viability of a
constructive fraud claim. Moreover, because Indiana constructive
fraud hews so closely to California fraud by omission or
concealment under LiMandri, the Judge finds that any attempt to
recast the fraud claim under the Indiana constructive fraud
standard would be no more than a re-statement and a re-hashing of
the fraud claim that the Court has already twice decided was
deficient. Thus, any attempt to amend this claim would be futile,
and Judge Wright grants the Defendants' Motion as to the third
claim without leave to amend.

D. Fourth Claim: UCL

The Defendants move to dismiss Pro Water's fourth claim for
violations of the California UCL. Preliminarily, Jude Wright notes
that this claim is asserted by California Plaintiffs only. He finds
that the UCL claim is sufficiently pleaded under the 'unfair'
prong. Pro Water has plausibly alleged that it was dishonest and
unfair of Angie's List to conduct its business in this way without
offering any sort of discount or concession to Pro Water. Given
this conclusion, enforcing Indiana law would deprive Pro Water of a
viable claim under the California UCL. Therefore, the Judge denies
the Defendants' Motion as to the fourth claim.

E. Fifth Claim: Declaratory Relief

By way of its fifth claim, Pro Water seeks a declaration that the
provision in the Advertising Agreements requiring it to bring its
claims against Angie's List within 120 days or else forfeit them is
unconscionable and unenforceable. The Defendants move to dismiss
the fifth claim on the grounds that the 120-day limitation is valid
and enforceable.

The parties do not argue that there is any material difference
between California's and Indiana's respective laws for declaratory
relief claims or unconscionability. As there is no apparent
conflict between the laws, there is no apparent conflict with a
fundamental policy of California, and accordingly, Judge Wright
applies Indiana law to the declaratory relief claim.

The Judge grants the Defendants' Motion with respect to the fifth
claim. In the interest of judicial economy, the preferred course of
action is to dismiss the declaratory relief claim and allow the
issue of the limitations period to be litigated in the context of
Pro Water's other viable claims if and when the issue arises. A
declaration of unconscionability would partially address the
parties' controversy without actually terminating it. This is
impermissible. Conversely, Pro Water's pending claims will
satisfactorily resolve the limitations period issue.

Because this issue will be litigated (or will not come up at all)
in the context of Pro Water's remaining viable claims, any attempt
to amend or re-state this claim would lead to the same result. This
means amendment would be futile, and the fifth claim is accordingly
dismissed without leave to amend.

F. Leave to Add Causes of Action

As part of its opposition, Pro Water requests leave to add a claim
for constructive fraud and a claim for money had and received. For
reasons already discussed, Judge Wright denies leave to add a claim
for constructive fraud.

For similar reasons, the Judge denies leave to add a claim for
money had and received. California also recognizes the common count
of money had and received, and Pro Water has offered no explanation
why it did not assert this claim earlier in the proceedings. Due to
the obvious similarity between the California and Indiana versions
of the claims, the Judge views with some suspicion the counsel's
averment that weeks of poring over the nuances of Indiana law were
required to determine that a claim for money had and received was
viable.  

Moreover, adding a claim for money had and received would be futile
because a facial review of the proposed claim reveals that it is
without merit. If Indiana law applies, the claim fails because in
Indiana, "the existence of an express contract precludes recovery
under the theory of money had and received." In the case, Pro Water
has alleged an express contract governing how much money Pro Water
was to send Angie's List and the types of services Angie's List was
to provide Pro Water as consideration. Under Indiana law, the
existence of this contract bars Pro Water's claim for money had and
received based on Pro Water's contractual payments to Angie's List.


Thus, under either California or Indiana law, adding a claim for
money had and received would be futile, and leave to amend is also
denied on this basis.

Conclusion

In summary, Judge Wright grants in part and denies in part the
Defendants' Motion. To the extent it arises from Angie's List's
sharing of customer or service provider information, the first
claim is dismissed. The second, third, and fifth causes of action
are dismissed. No leave to amend is granted. The remaining viable
causes of action are (1) the first claim for breach of contract to
the extent it arises from Pro Water's final month payment, and (2)
the fourth claim for violation of the California UCL. The
Defendants have 21 days from the date of the Order to answer.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/cppanhc from Leagle.com.


ARIZONA: Order Compelling Docs Production in Toomey v. ADOA Upheld
------------------------------------------------------------------
In the case, Russell B. Toomey, Plaintiff v. State of Arizona, et
al., Defendants, Case No. CV-19-00035-TUC-RM (LAB) (D. Ariz.),
Judge Rosemary Marquez of the U.S. District Court for the District
of Arizona affirmed the Magistrate Judge's order granting the
Plaintiff's Second Motion to Compel Production of Documents.

I. Background

Plaintiff Dr. Russell B. Toomey is a transgender male who is
employed as an Associate Professor at the University of Arizona.
His health insurance -- a self-funded plan controlled by the
Arizona Department of Administration ("ADOA") -- categorically
excludes "gender reassignment surgery" from coverage.

The Plaintiff brings the class action lawsuit alleging that the
exclusion of gender reassignment surgery is sex discrimination
under Title VII of the Civil Rights Act and a violation of the
Fourteenth Amendment Equal Protection Clause. One of the disputed
factual questions in the case is "whether the decision to exclude
gender reassignment surgery in the Plan was actually motivated by a
legitimate governmental interest."

The Plaintiff served the Defendants with his first set of Requests
for Production on Dec. 8, 2020. Requests for Production One, Three,
and Nine sought documents and information concerning the Plan's
exclusion of gender reassignment surgery and the decision-making
behind the exclusion. The State Defendants withheld 85 documents as
attorney-client privileged.

II. Plaintiff's Motion to Compel

The Plaintiff seeks to compel disclosure of the 85 documents that
the State Defendants have withheld based on their assertion of the
attorney-client privilege. The Plaintiff contends that the State
Defendants waived the attorney-client privilege with respect to
those documents: (1) "by asserting and relying on legal advice as a
defense to the charge that discriminatory intent motivated the
Defendants' decision to maintain the Exclusion," and (2) by
voluntarily disclosing the substance of the legal advice.  
In support of his first argument, the Plaintiff argues that the
State Defendants placed the legal advice they received regarding
the legality of the exclusion for gender reassignment surgery at
issue by asserting it in their Responses to his First, Fourth, and
Seventh Interrogatories, as well as during the depositions of
former Director of ADOC Benefits Service Division Marie Isaacson
and ADOA Plan Administration Manager Scott Bender.

The Plaintiff's First Interrogatory asked the Defendants to
identify the reasons why the Plan excludes coverage for gender
reassignment surgery. The State Defendants responded, in relevant
part, that the Plan excludes gender reassignment surgery "because
the State concluded, under the law, that it was not legally
required" to provide such coverage.

The Plaintiff's Fourth Interrogatory asked Defendants to identify
all persons involved in making decisions related to the exclusion
of gender reassignment surgery. The State Defendants' Response
identified three attorneys for the State; the Plaintiff thus argues
that the attorneys were central to the decision-making regarding
the exclusion.

The Plaintiff's Seventh Interrogatory asked Defendants to produce
any documents that the Defendants relied on relating to the
exclusion. The State Defendants' Response listed two memoranda --
one from Marie Isaacson to Mike Liburdi, dated Aug. 3, 2016
regarding "Affordable Care Act Section 1557," and another from
outside legal counsel Fennemore Craig, P.C. to Marie Isaacson dated
July 20, 2016, regarding "Summary and Implications of Section 1557
and Transgender Coverage Requirements" -- both of which the
Defendants asserted were covered by the attorney-client privilege.
Marie Isaacson and Scott Bender testified during their depositions
that the decision to exclude gender reassignment surgery from
coverage under the Plan was based on what the Plan was legally
required to cover. The Plaintiff argues that these Interrogatory
Responses and deposition testimony amount to an assertion of legal
advice as a defense to his charge that the exclusion of coverage
for gender reassignment surgery was motivated by discriminatory
intent.

Next, the Plaintiff argues that Defendants waived the
attorney-client privilege by voluntarily disclosing the substance
of the legal advice they received regarding the exclusion of gender
reassignment surgery to the Governor's Office in 2016 and during
the deposition of Marie Isaacson.

III. Magistrate Judge Bowman's Order

In her Order granting the Plaintiff's Motion to Compel, Magistrate
Judge Bowman finds that the State Defendants implicitly waived the
attorney-client privilege with respect to the withheld documents by
relying upon the legal advice they received regarding exclusion of
coverage for gender reassignment surgery as "evidence that they
harbored no discriminatory intent" in maintaining the exclusion.
The Order rejects the Defendants' argument that they did not raise
an "advice of counsel defense" as unsupported by the record, namely
the Interrogatory Responses and deposition testimony discussed
above.

The Order concludes that the Plaintiff cannot realistically dispute
the Defendants' claimed reason for maintaining the exclusion of
coverage for gender reassignment surgery without access to the
legal advice that Defendants relied upon in making that decision,
and that "fairness" thus mandates that the Plaintiff be able to
review the substance of that advice. Because the Order finds that
Defendants waived the attorney-client privilege by relying on the
advice of legal counsel as a defense to the charge of
discriminatory intent, it does not reach the merits of the
Plaintiff's alternate arguments involving witness deposition
testimony or disclosure of the documents to the Governor's Office.

IV. State Defendants' Appeal of the Order

On appeal, the State Defendants object to the Order on four
grounds: (1) they did not assert or imply an "advice of counsel"
defense through Interrogatory Responses or deposition testimony;
(2) neither Marie Isaacson nor Scott Bender have authority to waive
the attorney-client privilege; (3) compelling disclosure of the
privileged documents violates public policy; and (4) the Order is
unclear and ambiguous.

First, the State Defendants argue that they never asserted -- in
their Answer, Interrogatory Responses, or deposition testimony --
that they relied on the advice of counsel in deciding to maintain
the Plan's exclusion of coverage for gender reassignment surgery,
and that the Order "reads too much into" their Interrogatory
Responses. Second, they argue that the deposition testimony of
Marie Isaacson and Scott Bender could not waive the attorney-client
privilege because neither witness had the authority to speak on
behalf of the State Defendants. Third, the Defendants argue that
compelling production of the documents would violate public policy
because State officials should be encouraged to consult with
counsel in developing policies and thus allowing the State to
engage in privileged communications with legal counsel is "uniquely
important." Lastly, they contend that the Order is "unclear and
ambiguous" because it does not specify which documents it compelled
them to produce.

V. Analysis

Judge Marquez holds that the record supports affirming Magistrate
Judge Bowman's Order compelling production of the withheld
documents. Her review of the record reveals that, despite the State
Defendants' protestations to the contrary, the State Defendants'
Interrogatory Responses indicate that they relied on the advice of
legal counsel in deciding to maintain the exclusion of coverage for
gender reassignment surgery. She says, this constitutes an
affirmative act placing the privileged materials at issue.  
Furthermore, as Judge Bowman concluded, the Plaintiff is unable to
adequately respond to this defense without viewing the withheld
documents. Without disclosure of the withheld documents, Judge
Marquez holds that the Plaintiff cannot fully respond to
Defendants' argument that their reason for maintaining the
exclusion was lawful and non-discriminatory because it was based on
legal advice. As such, fairness mandates that the documents be
disclosed. While she acknowledges that the public policy underlying
the attorney-client privilege serves to protect the State's ability
to engage in privileged communications with its lawyers, the Judge
holds that that interest does not overcome the Plaintiff's right to
fully litigate the merits of the action.

VI. Order

Accordingly, Judge Marquez denied the Defendant's Appeal of the
Order. The Judge affirmed Magistrate Judge Bowman's Order granting
the Plaintiff's Motion to Compel.

Within 14 days of the date of the Order, the Defendants will
produce all documents related to their decision-making regarding
the exclusion of coverage for gender reassignment surgery as
requested in the Plaintiff's Requests for Production One, Three,
and Nine, including legal advice that may have informed that
decision-making. The Defendants need not produce documents that
relate solely to their defense in the instant litigation.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/xvrat5xc from Leagle.com.


ASSET CAMPUS: Court Dismisses Vo Amended Complaint
--------------------------------------------------
In the class action lawsuit captioned as VIVIAN VO and HEAVEN LE,
on behalf of themselves and all others similarly situated, v. ASSET
CAMPUS USA LLC, and LEON COUNTY EDUCATIONAL FACILITIES AUTHORITY,
Case No. 4:20-cv-00447-MW-MJF (N.D. Fla.), the Hon. Judge Mark E.
Walker entered an order granting the Defendants motion to dismiss
Plaintiffs' amended complaint for lack of standing.

The Court said, the Plaintiff Vo has not demonstrated an injury in
fact to satisfy standing and Plaintiff Le has not demonstrated that
her injury was caused by Defendant Asset. Further, this Court lacks
subject matter jurisdiction over Plaintiff Le's claim against
Defendant LCEFA. This Court is dismissing the claims without
prejudice, rather than remanding the claims to state court, because
the Plaintiffs originally filed this action in federal court."

This case arises out of the continued enforcement of an apartment
leasing agreement during a global pandemic. Plaintiffs filed an
amended complaint alleging claims under Florida law against
Defendants, Asset Campus USA, LLC and Leon County Educational
Facilities Authority (LCEFA).

The Plaintiffs bring this action against Defendants on behalf of
themselves and a putative class of "all persons who leased and/or
guaranteed student housing apartments in Florida” managed by
Defendant Asset.

A copy of the Court's order dated Sept. 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3mjVuwB at no extra charge.[CC]

BASTROP ENERGY: White Suit Remanded to Harris County State Court
----------------------------------------------------------------
Judge Lee H. Rosenthal of the U.S. District Court for the Southern
District of Texas, Houston Division, grants the Plaintiffs' motion
to remand the case, ROBERT WHITE, et al., Plaintiffs v. BASTROP
ENERGY PARTNERS LP, et al., Defendants, Civil Action No. H-21-870
(S.D. Tex.).

Background

In February 2021, Winter Storm Uri caused days of below-freezing
temperatures throughout Texas and other states. Texas has a
separate state electrical power generation and distribution grid,
directed by the Electric Reliability Council of Texas (ERCOT). The
grid froze and failed to generate or deliver electricity to Texas.

In March 2021, Robert White and more than 100 individuals residing
in Texas sued over 100 power generation and power transmission or
distribution companies operating in and out of Texas, in state
court in Harris County, Texas. The Plaintiffs alleged that they
suffered "loss of life and/or personal injuries, damages to their
property and/or other losses during the February 2021 cold
weather." They alleged that they "incurred property damages,
substantial interference with the use and enjoyment of property,
out of pocket losses, medical expenses in the past and future, lost
wages and lost future earning capacity, extreme mental anguish and
suffering, and other injuries and damages." The recovery sought
included actual, consequential, and punitive damages, and
attorneys' fees.

The Plaintiffs asserted Texas state-law claims for negligence and
gross negligence, breach of contract, product liability and strict
liability based on an abnormally dangerous activity, fraud,
negligent misrepresentation, civil conspiracy, breach of a
continuing duty to warn, and breach of express and implied
warranties. All the claims arose from the alleged failure to
prepare the grid for freezing temperatures and the failure to let
consumers know of the potential for power interruption.

The Plaintiffs identified two groups of Defendants: the Power
Generators, which own and operate power generation facilities and
contract with the Power Distributors, and the Power Distributors,
which transmit and distribute the generated power through lines
that in turn deliver electricity to indirect (transmission and
subtransmission) customers and then to primary and secondary
customers. ERCOT, the Plaintiffs alleged, does not generate or
transmit power, but instead schedules and manages the flow of
electricity through the grid.

The Plaintiffs based the lawsuit on the Power Generators' and the
Power Distributors' "individual and collective failures to
implement long known and recommended measures to weatherize their
power generating facilities/stations and equipment to protect
against foreseeable cold weather to avoid a catastrophe just like
Texas suffered in February 2021 and because of their individual and
collective operational failures during the February 2021 cold
weather."

The Plaintiffs alleged negligence and gross negligence from the
following "individual and collective" failures by both sets of
defendants: to comply with safety standards, customs, and practices
to weatherize facilities and equipment to prevent this kind of
disaster; to supervise the facilities and equipment to make sure
they were weatherized; to properly train workers to be sure they
weatherized the facilities and equipment; and to protect Texans
from power loss during an extreme winter storm by weatherizing.

The Plaintiffs alleged negligence and gross negligence specifically
against the Power Distributors for failing to "make all reasonable
efforts to prevent interruptions of service," and to "make
reasonable provisions to manage emergencies resulting from failure
of service," in violation of 16 Tex. Admin. Code Section 25.52.

They alleged the following product and strict liability defects
against the Power Generators: Defective design, manufacture,
assembly, inspection, and testing "from a stability and safety
standpoint, so the facilities would not freeze up in cold weather
conditions," defects that, with defective maintenance, "failed to
prepare the facilities to function and provide power to consumers
in cold weather conditions"; that "failed to provide a safety
mechanism to prevent failure in cold weather conditions"; and that
failed to "weatherize the facilities to protect against cold
weather conditions and provide continuous electrical power." The
Plaintiffs added alleged failures to implement government agencies'
suggestions to weatherize power generation facilities, making the
facilities inherently dangerous, and alleged failures to test and
inspect to ensure that the facilities could "withstand and continue
to produce electric power in cold weather conditions." The alleged
safer alternative design: "simply weatherizing."

As to both groups of Defendants, the Plaintiffs alleged strict
liability based on the abnormally dangerous activity of
manufacturing and supplying electricity, exposing the public and
the plaintiffs to "a high degree of risk of serious injury and harm
if their power generation facilities malfunctioned and/or failed to
operate as occurred in February 2021."

The Plaintiffs alleged similar breach of warranty, negligent
misrepresentation, and fraud claims against both the Power
Generator and the Power Distribution defendants. These allegations
are based on claims that the two groups of Defendants made various
representations about their ability to provide electric power
without mentioning that power could be interrupted during extended
below-freezing temperatures. As to the fraud claims, the Plaintiffs
alleged that the representations were made with knowledge of their
falsity and the intent to induce the Plaintiffs to rely on them in
receiving electric power. Similarly, the duty to warn allegations
against both sets of Defendants is based on the failure to warn
that a long freeze could interrupt service. The fraud claims
alleged that the defendants made the representations knowing they
were false; the negligence claims alleged that the defendants knew
or reasonably should have known that the representations were
false.

The Plaintiffs alleged a breach of a continuing duty to warn them
of "potential weather-related issues that could likely affect the
character and quality of the electric power they were providing and
cause an interruption in service," issues that the Defendants
"knew, should have known, or should have discovered" because they
"were the result of their design, testing, manufacturing,
marketing, transmitting and/or delivering of the electric power."
They also alleged breach of express and implied warranties by both
sets of defendants, based on "material affirmative
representations," by "advertisements, pamphlets, and otherwise,"
that the Plaintiffs "could safely and reliably use their electric
power service," made when the Defendants knew, or should have known
that their only purpose was to provide safe and reliable electric
power. And the Plaintiffs allege that the defendants' acts and
omissions amounted to a civil conspiracy.

The counts do not specify the acts or omissions, or the role of the
various Defendants, beyond the references to failures to
"weatherize" against prolonged freezing temperatures. Whether the
claims are sufficiently pleaded is the subject of a motion to
dismiss, but the threshold question is whether the Court has
federal removal jurisdiction under CAFA. The Plaintiffs have moved
to remand, the Defendants responded, and the Plaintiffs replied.
The Court heard argument on the motions.

Discussion

The issue in this multi-plaintiff, multi-defendant removed
state-court action is whether the single event exclusion or the
local controversy exception to the Class Action Fairness Act, 28
U.S.C. Section 1332, applies.

First, Judge Rosenthal holds that the complaint in the case shows
independent, but connected, Defendants' actions and omissions in
failing to prepare their electrical generation and distribution
facilities for sustained subfreezing conditions. Those
"contextually related" acts and omissions allegedly resulted in a
single occurrence during the February 2021 storm -- the Texas
electrical power grid failure -- that allegedly injured all the
Plaintiffs.

There is no dispute that the other requirements for a mass action
are met; there is minimal diversity, there are more than 100
Plaintiffs, and the amount in controversy exceeds $5 million. But
because the Plaintiffs' injuries all arise from a single
harm-causing event, the mass-action exclusion to CAFA removal
applies. Remand is required.

Second, Judge Rosenthal holds that either requires remand. He says
there is no core out-of-state Defendant whose conduct clearly
"forms a significant basis of the Plaintiffs' claims." If anything,
the pleadings show the opposite. The Texas power grid is a
Texas-specific grid, generating electricity for, and delivering it
to, Texas consumers. The ERCOT grid is only in Texas. The
Plaintiffs are all in Texas. At least 45 defendants are in state.
Three of those Defendants are major power distributors, claiming to
be the exclusive transmission and distribution provider in all, or
the majority of, their service territories.

While the Plaintiffs' pleadings could provide more detail on the
comparative conduct of the Defendants and the relief sought from
specific defendants, the Plaintiffs need only show that the local
controversy exception applies "with reasonable certainty." This
showing does not require the Court to ignore common sense
indications about the local nature of the controversy. In the case,
it similarly defies common sense to say that a suit by Texas
residents against those purportedly responsible for injuring them
through the failure of the Texas-specific electric grid is not a
"local controversy."

The Plaintiffs seek significant relief from at least one in-state
Defendant, whose alleged failure to winterize provided a
significant basis for the power-failure injuries the Plaintiffs
assert. The statutory requirements for the exception are met.
Remand on the basis of the local controversy exception is
required.

Conclusion

Judge Rosenthal concludes that it was not an easy or obvious case.
But at the end of the day, remand is required under both the single
event exclusion and the local controversy exception. And at the end
of the day, this makes sense, the Judge holds. Texas made its power
grid state specific. The claims arise under Texas law, on behalf of
Texas Plaintiffs, for the actions and omissions of a large number
of Texas (and a few other) Defendants, about a system designed to
be a Texas system. It is the Texas courts that should decide these
claims. Judge Rosenthal grants the motion to remand.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/uw2ftafb from Leagle.com.


BAYADA HOME: Wins Summary Judgment Bid in Higgins FLSA-PMWA Suit
----------------------------------------------------------------
In the case, STEPHANIE HIGGINS, for herself and all others
similarly situated, et al., Plaintiffs v. BAYADA HOME HEALTH CARE,
INC., Defendant, Civil No. 3:16-CV-02382 (M.D. Pa.), Judge Jennifer
P. Wilson of the U.S. District Court for the Middle District of
Pennsylvania grants Bayada's motion for summary judgment and denies
its uncontested motion for oral argument on the motion.

Background

The complaint is an alleged unpaid overtime wages case brought by
Plaintiff Higgins, on behalf of herself and all others similarly
situated, who was formerly employed as a registered nurse by
Defendant Bayada. Higgins alleges that, inter alia, she was not
paid overtime wages to which she was otherwise entitled in
violation of the Fair Labor Standards Act ("FLSA") and the
Pennsylvania Minimum Wage Act ("PMWA").

The Plaintiffs are former "clinicians" employed by Bayada,
consisting of "Registered Nurses, Physical Therapists, Occupational
Therapists, Speech Language Pathologists, and Medical Social
Workers." Bayada is a non-profit company that provides a range of
clinical care and support services for patients within their homes.
Higgins represents a conditionally certified class of Plaintiffs
who allege that Bayada illegally classified clinicians as overtime
exempt under the FLSA, and improperly denied them overtime pay. The
other named Plaintiffs represent putative classes under numerous
related state laws based on the same claims.

Ms. Higgins initiated the action by filing a collective and class
action complaint against Bayada on behalf of herself and all others
similarly situated on Nov. 30, 2016. On May 11, 2018, the court
granted Higgins' motion for conditional certification and notice
under 29 U.S.C. Section 216(b), giving FLSA collective members 75
days from the notice mailing date to opt-in to the litigation. On
Oct. 11, 2018, Higgins sought leave to amend the complaint to add
additional named Plaintiffs and assert state law Rule 23 class
claims under the overtime laws of New Jersey, Massachusetts,
Maryland, Colorado, Arizona, and North Carolina.

On Dec. 2, 2019, the Court granted Higgins' motion to amend. That
same day, Higgins filed an amended complaint which included
additional named Plaintiffs, Meghan Taneyhill, Shiela Levesque,
Margaret Magee, Sherri Kramer, Shelly Neal, and Yvette Marshall,
and six state law minimum wage claims in states where Bayada
operates. Thereafter, Bayada timely filed an answer to the amended
complaint. On Dec. 3, 2019, the matter was reassigned to Judge
Wilson.

On Jan. 28, 2020, Bayada requested leave to file an early motion
for summary judgment, which was granted by the Court on May 15,
2020. Bayada filed the instant motion for summary judgment on Sept.
25, 2020. Higgins filed a brief in opposition, an answer to the
Defendants' statement of facts, and an additional statement of
material facts. Bayada timely filed a reply brief. In addition,
Bayada filed an unopposed motion for oral argument on the motion
for summary judgment. Thus, the motion for summary judgment is now
ripe for review.

Discussion

The parties do not dispute the material facts regarding Bayada's
compensation structure. Bayada argues that its compensation
structure is valid as a matter of law under the FLSA. Specifically,
it seeks summary judgment regarding a central issue in the case:
"Whether Bayada's compensation structure -- which provides
clinicians with a weekly guaranteed salary and the ability to earn
additional compensation for work in excess of their expected
productivity -- satisfies the `salary basis' requirement under the
FLSA and the PMWA where the clinicians' accrued PTO is used in
limited circumstances to offset expected productivity shortfalls,
but where the clinicians' weekly guaranteed salary, when combined
with such PTO, is not in fact reduced in workweeks with
productivity shortfalls." Bayada argues that because no court has
found this "salary plus" compensation structure to violate the law,
and because Bayada appropriately and equally applied this structure
to its clinicians, the Plaintiffs cannot demonstrate that summary
judgment is inappropriate in the case.

The Plaintiffs contend that Bayada has gone to great lengths to
disguise its compensation structure as a salary, when in fact every
task that a clinician performs is measured by some point value
assigned by Bayada corresponding to the amount of time that Bayada
believes the task should take. When a clinician earns more points
than their expectation for the week, they are paid more; when a
clinician earns fewer points than their expectation for the week,
they are paid less than their guaranteed salary and their PTO is
reduced to make up the difference. The Plaintiffs contend that
forcing clinicians to "pay back" their earned PTO for failing to
satisfy the arbitrary metrics assigned by Bayada is inconsistent
with a salaried employee's payment scheme. Accordingly, the
Plaintiffs claim that Bayada has not met its burden to prove that a
claimed exemption applies to the clinicians.

The dispute in the case centers on whether Bayada's practice of
deducting PTO from clinicians' leave banks when they do not meet
their weekly productivity point expectation constitutes an improper
deduction which would cause Bayada to lose the professional
employee exemption for its clinicians.

Judge Wilson notes that the Third Circuit has not had the
opportunity to consider this issue. However, courts that have
considered this issue have found that fringe benefits, such as PTO,
to which employees are not otherwise entitled, are separate and
distinct from an employees' salary. The Department of Labor ("DOL")
has issued opinion letters which corroborate this conclusion.
Accordingly, deductions from a leave bank, such as PTO, when an
employee is absent from work do not affect the employer's ability
to claim an exemption.

In addition, several cases interpreting employer policies similar
to that at issue in the case have found that the policies do not
violate the FLSA. Judge Wilson notes that the Plaintiffs have cited
two cases, Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832
(6th Cir. 2002) and Oral v. Aydin Corp., No. 98-cv-6394, 2001 U.S.
Dist. LEXIS 20625 (E.D. Pa. Oct. 31, 2001), in support of their
position that they were actually hourly employees, rather than
salaried. The Judge finds that neither of these cases alter the
outcome of thie case. Elwell involved home health care nurses who
were paid on a fee basis, and also received hourly compensation for
visits that lasted more than two hours. The Plaintiffs' reliance on
Elwell is misplaced, and indeed appears to support the validity of
Bayada's compensation structure. Likewise, Oral is inapplicable to
the case because it was decided based on the now-defunct Supreme
Court opinion in Auer v. Robbins, 519 U.S. 452, 458 (1997) (holding
that the FLSA grants the Secretary broad authority to define and
delimit scope of FLSA exemptions).

Finally, the fact that Bayada based its bonus payments and point
system on an hourly wage metric does not defeat the salary basis
test. In addition, the regulations allow a salary basis employee to
earn additional compensation, which "may be paid on any basis.
Thus, Bayada does not lose its exemption merely because its
employees' earnings are computed on an hourly basis. In addition,
the Plaintiffs have not alleged, and the court does not discern,
that the reasonable relationship test has not been satisfied.
Therefore, Judge Wilson finds that Bayada's computation of its
employees' earnings on an hourly basis does not void its
exemption.

Bayada maintained a practice of not reducing clinicians' weekly
compensation below their guaranteed amount even if they did not
meet their productivity points expectation and even if the employee
did not have any remaining PTO. An employee's guaranteed weekly
compensation was only subject to reduction in the event that an
employee was absent for an entire day of work and lacked sufficient
PTO to cover the absence -- a practice which is wholly consistent
with the FLSA's requirements and the regulations. Bayada's practice
is corroborated by the Plaintiffs' pay stubs and the Plaintiffs
have not produced any evidence that Bayada deviated from this
practice in any instance.

Bayada's practice was to reduce clinicians' available PTO when the
clinician failed to meet their expected weekly productivity point
figure. While a failure to meet a points expectation is not an
absence from work, Judge Wilson finds that the effect of falling
below the point expectation can be construed as equivalent to an
absence. Bayada expected its employees to earn a certain number of
points per week. A failure to meet these expectations may be
accompanied by a decrease in fringe benefits, provided that the
employer in no event reduces an employee's salary. Bayada provided
ample opportunity for clinicians to make up missing points and
offered counseling and coaching opportunities for clinicians that
consistently fell below their weekly productivity metrics. For
clinicians who were unable to consistently meet their productivity
metrics, they could request a reduction in their weekly point
expectation, subject to a corresponding decrease in salary.

Whether Bayada fostered, permitted, or turned a blind eye to a
belief, culture, or perception among clinicians that their weekly
compensation may be reduced in instances where they lacked PTO and
fell below their expected productivity points is no longer relevant
for the court's consideration. Judge Wilson is simply concerned
with whether Bayada maintained an actual practice of reducing
clinicians' salaries once they fell below their weekly expected
productivity points and did not have any remaining PTO to
supplement. In the case, it is clear from the record that Bayada
did not maintain such a practice. Therefore, the Judge finds that
Bayada's compensation structure fits within the FLSA's salary basis
test and qualifies for the professional employee exemption from
overtime pay. Summary judgment is accordingly appropriate and will
be granted.

Conclusion

For the foregoing reasons, Judge Wilson grants the motion for
summary judgment and denies the motion for oral argument. An
appropriate order will be issued.

A full-text copy of the Court's Sept. 22, 2021 Memorandum is
available at https://tinyurl.com/7mydejmh from Leagle.com.


BLUEMERCURY INC: Bethel Seeks to Certify Class of Store Managers
----------------------------------------------------------------
In the class action lawsuit captioned as LESLIE BETHEL, on her
behalf of herself and all others similarly situated, v.
BLUEMERCURY, INC., a Delaware corporation, Case No.
1:21-cv-02743-KPF (S.D.N.Y.), the Plaintiffs ask the Court to enter
an order:

     1. conditionally certifying the FLSA Collective, defined as:
     
       "All non-exempt, hourly Store Managers employed by
Defendant,
        Bluemercury, Inc., at any location in the United States for

        the three years preceding the filing of this action."

     2. directing that a Court-authorized notice of this lawsuit
        be sent to the proposed Fair Labor Standards Act (FLSA)
        collective;

     3. directing Bluemercury to produce, within 14 days of the
        Court's Order granting this Motion, a computer-readable
        data file containing the names, job titles, dates of
        employment, last known mailing addresses, last known email

        addresses, and last-known telephone numbers;

     4. directing Bluemercury to produce Social Security numbers
        for putative collective members for whom a notice is
        returned as undeliverable;

     5. authorizing the issuance of Plaintiffs' proposed notice to

        all putative collective members;

     6. directing that notice and the Consent to Join form be sent

        by e-mail and U.S. Mail;

     7. requiring the Defendant to post the notice in all
        Bluemercury locations;

     8. setting the notice period at 90 days; and

     9. authorizing the Plaintiffs to mail a reminder notice and
        send a reminder e-mail to all FLSA collective action
        members who have not yet opted-in to this matter within 45

        days of the issuance of the first notice.

The Plaintiff, Leslie Bethel, and Opt-In Plaintiffs Katherine
McCloskey Henriksen, Leyna B. Hanson, Gustavo Espinoza, and Lourdes
Lima assert that Defendant had a uniform, common and widespread
policy pursuant to which Store Managers (SMs) nationwide worked
overtime hours off-the-clock without compensation, in violation of
the FLSA). Bluemercury is a chain of American beauty stores founded
in 1999 by Marla Malcolm Beck and Barry Beck in Georgetown,
Washington, D.C. The stores sell cosmetics, as well as in-store
facials and spa treatments.

A copy of the Plaintiffs' motion to certify class dated Sept. 24,
2021 is available from PacerMonitor.com at https://bit.ly/3iuXRLZ
at no extra charge.[CC]

The Attorneys for Plaintiffs, the proposed FLSA Collective, are:

          Camar R. Jones, Esq.
          Michael J. Palitz, Esq.
          SHAVITZ LAW GROUP, P.A.
          951 Yamato Road, Suite 285
          Boca Raton, FL 33431
          Telephone: 561-447-8888
          Facsimile: 561-447-8831
          E-mail: cjones@shavitzlaw.com
                  mpalitz@shavitzlaw.com

CALIFORNIA: Show Cause Order Issued in Ashker Suit v. PBSP & KVSP
-----------------------------------------------------------------
In the case, TODD ASHKER, Plaintiff v. C. PFEIFFER, et al.,
Defendants, Case No. 1:21-cv-00423-NONE-EPG (PC) (E.D. Cal.),
Magistrate Judge Erica P. Grosjean of the U.S. District Court for
the Eastern District of California requires the Plaintiff to show
cause why sanctions, up to and including dismissal, should not
issue, given his failure to comply with the Court's screening order
and to prosecute the case.

Plaintiff Ashker is a state inmate proceeding pro se in this
breach-of-contract and civil rights action pursuant to 42 U.S.C.
Section 1983. The operative complaint is the first amended
complaint (FAC), originally filed Sept. 2, 2020, which was
transferred to this district on March 15, 2021 from the Northern
District of California. While the FAC contains allegations arising
from two prisons, Pelican Bay State Prison (PBSP) and Kern Valley
State Prison (KVSP), the Northern District of California initially
transferred claims concerning the Plaintiff's treatment by
Defendants Warden C. Pfeiffer, Sgt. A. Alafa, Officer Hightower,
Officer Manuel Ortiz, Captain Hammer, Lt. Speidel, and Associate
Warden Stebbins, who are prison officials at KVSP, after the
Plaintiff filed a class-action lawsuit concerning the conditions at
PBSP.

The Court screened the FAC on April 30, 2021, finding that it
failed to state any cognizable claim. Specifically, the Court noted
that the 132-page FAC violated Rule 8 of the Federal Rules of Civil
Procedure because it did not include a short and plain statement of
a claim but presented an extended chronology of seemingly disparate
events and included allegations against defendants who were not
before the Court. Moreover, the Court concluded that the Plaintiff
had misjoined parties under Rule 20 by including many disparate
events at different times and places, with matters further being
confused by the Plaintiff's ambiguous allegations as to what
defendant was being sued under which claim.

The Plaintiff was given a choice on how to proceed. The Plaintiff
could file an amended complaint if he believed that additional true
factual allegations would state cognizable claims. Alternatively,
the Plaintiff could choose to stand on his complaint subject to the
Court issuing findings and recommendations to a district judge
consistent with the order. The Court gave him 60 days from the date
of service of the order to file a second amended complaint or
notify it that he wished to stand on his first amended complaint.

The Plaintiff sought a 45-day extension of the deadline for him to
respond to the Court's order. He stated that he had filed a motion,
which had since been fully briefed, in the Northern District of
California to reconsider its order transferring certain claims to
this district. He asserted that a ruling on the motion could
effectively moot the Court's screening order. Additionally, the
Plaintiff stated that he has a permanent disability impacting his
right hand and wrist, which he uses to write, and that he has
limited access to the law library, which conditions have prevented
him from researching his response to the Court's screening order.
On July 8, 2021, the Court granted the motion, setting a 45-day
deadline from the date that the Plaintiff was served with the
Northern District of California's ruling on the motion for
reconsideration.

On July 23, 2021, the Northern District of California denied the
Plaintiff's motion for reconsideration and further transferred
other claims against additional KVSP Defendants Ralph Diaz, Sandra
Alfaro, and Connie Gipson, "whom the Plaintiff added in the First
Amended Complaint alleging they were also involved in the same
incidents as the other KVSP defendants."

Upon review of the new claims, the Court issued an order on July
29, 2021, modifying the April 30, 2021 screening order, concluding
that the new claims suffer the same flaws identified in this
Court's initial screening order. It directed Plaintiff to, within
45 days of service of the order, either file either a second
amended complaint or notify the Court in writing that he wished to
stand on his first amended complaint. The Court warned the
Plaintiff that "failure to comply with this order may result in the
dismissal of the action." The 45-day deadline in the order has
expired, and the Plaintiff has not complied with the order.

Accordingly, Judge Grosjean orders that within 14 days, the
Plaintiff will file a written response to the Order to show cause
(1) stating whether the Plaintiff intends to prosecute the action
and (2) explaining his failure to comply with the Court's July 29,
2021 order. Alternatively, the Judge will discharge the show cause
order, if within 14 days from the date of service of the Order, the
Plaintiff: files a second amended complaint no longer than 30
pages; or notifies the Court in writing that he wants to stand on
his first amended complaint.

The Plaintiff is cautioned that failure to respond to this order as
set forth above may result in the Court issuing findings and
recommendations to dismiss the case for failure to comply with a
court order and failure to prosecute the action.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/27usywba from Leagle.com.


CHARTER COMMUNICATIONS: Wlimore Suit Removed to D. Connecticut
--------------------------------------------------------------
The case styled as Beverly Wlimore, for and on behalf of herself
and other persons similarly situated v. Charter Communications also
known as: Spectrum Reach, Charter Communications, LLC, Spectrum
Reach, LLC, Case No. 1:19-cv-09353 was removed from the United
States District Court for the Southern District of New York to the
United States District Court for the District of Connecticut on
Sept. 20, 2021.

The District Court Clerk assigned Case No. 3:21-cv-01271-AVC to the
proceeding.

The nature of suit is stated as Jobs Civil Rights.

Charter Communications, Inc. -- http://corporate.charter.com/-- is
an American telecommunications and mass media company with services
branded as Spectrum.[BN]

The Defendant is represented by:

          Michael C. D'Agostino, Esq.
          MORGAN LEWIS & BOCKIUS LLP
          One State St.
          Hartford, CT 06103-3178
          Phone: (860) 240-2700
          Fax: (860) 240-2800
          Email: michael.dagostino@morganlewis.com



CHEROKEE NATION: Utah Court Orders Elizabeth to Amend Complaint
---------------------------------------------------------------
In the case, HRH QUEEN SHEIKA AMBASSADOR PRIO DR. MRS. S.
ALEXANDRIA MARY ELIZABETH S.A.N.T.E. BEN DAVID BIN AL MAKTOUM,
Plaintiff v. CHEROKEE NATION, et al., Defendant, Case No.
2:21-cv-00426-JNP-JCB (D. Utah), Magistrate Judge Jared C. Bennett
of the U.S. District Court for the District of Utah ordered the
Plaintiff to amend her complaint.

The case was referred to Judge Bennett under 28 U.S.C. Section
636(b)(1)(B). As an initial matter, Judge Bennett notes that pro se
Plaintiff HRH Queen Sheika Ambassador Prio Dr. Mrs. S. Alexandria
Mary Elizabeth S.A.N.T.E. Ben David Bin Al Maktoum ("Plaintiff")
has been permitted to proceed in forma pauperis in the case under
28 U.S.C. Section 1915 ("IFP Statute"). Before the Court is the
review of the Plaintiff's complaint under the authority of the IFP
Statute.

Judge Bennett explains that whenever the court authorizes a party
to proceed without payment of fees under the IFP Statute, the court
is required to "dismiss the case at any time if the court
determines that the action fails to state a claim on which relief
may be granted." In determining whether a complaint fails to state
a claim for relief under the IFP Statute, the court employs the
same standard used for analyzing motions to dismiss for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Under that standard,
the court "looks for plausibility in the complaint." Additionally,
Fed. R. Civ. P. 8 is incorporated into the court's Rule 12(b)(6)
analysis. Rule 8(a)(2) requires that a complaint contain "a short
and plain statement of the claim showing that the pleader is
entitled to relief."

In analyzing the Plaintiff's complaint, Judge Bennett is mindful
that she is proceeding pro se and that "a pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers."
However, it is not "the proper function of the district court to
assume the role of advocate for the pro se litigant," and Judge
Bennett "will not supply additional facts, nor will he construct a
legal theory for a pro se plaintiff that assumes facts that have
not been pleaded."

Under the foregoing standards, and even when Judge Bennett
liberally construes the Plaintiff's complaint, he concludes that
the complaint fails to satisfy the minimum pleading requirements of
Rule 8(a)(2). He finds that although the Plaintiff alleges that the
nature of her case is "Civil Rights - Class Action," she alleges
causes of action that are not legally cognizable. Indeed, the
Plaintiff's asserted causes of action are: (1) "Internet with
Electronics, including Apps & their contents"; (2) "Electronic
(Phone & Computer[,] Texts, etc."; and (3) "Voice - Phone calls
also other." The court is unable to find any legally recognized
cause of action that comports with those allegations. Additionally,
the Plaintiff's complaint is entirely devoid of any factual
allegations. Without any factual allegations, Judge Bennett cannot
conclusively determine whether the Plaintiff has any plausible
claims for relief.

For those reasons, and pursuant to the standards for dismissal
under Rule 12(b)(6), Judge Bennett concludes that the Plaintiff's
complaint fails to state claims upon which relief can be granted.
At the same time, the Judge recognizes that "dismissal of a pro se
complaint for failure to state a claim is proper only where it is
obvious that the Plaintiff cannot prevail on the facts she has
alleged and it would be futile to give her an opportunity to
amend.

Accordingly, the Plaintiff is provided with an opportunity to amend
her complaint. The Plaintiff must file an amended complaint that
complies with the requirements set forth in the referenced
authorities by Oct. 19, 2021. Failure to do so will result in the
Court recommending dismissal of the action.

A full-text copy of the Court's Sept. 21, 2021 Memorandum Decision
& Order is available at https://tinyurl.com/c5ymv66v from
Leagle.com.


CORVIAS MGMT-ARMY: Court Resolves Discovery Disputes in Addi Suit
-----------------------------------------------------------------
In the case, Joseph Addi, et al. v. Corvias Management-Army, LLC,
et al., Case No. 1:19-cv-03253-ELH (D. Md.), Magistrate Judge J.
Mark Coulson of the U.S. District Court for the District of
Maryland orders the Defendants to review their privilege logs and
those of their retained consultants, and produce any documents not
previously produced consistent with the Court's guidance.

Background

The putative class action involves claims by members of the
military and their families that the housing provided to them at
Fort Meade was substandard in that it contained mold which, in
turn, caused health problems. The Defendants are Corvias and Meade
Communities, LLC who managed the properties as part of the U.S.
Army's Military Housing Privatization Initiative ("MHPI") whereby
the U.S. Army contracted with private property management companies
to manage and maintain housing at Fort Meade and other bases around
the country. The case has been referred to Judge Coulson by Judge
Hollander for discovery and all related scheduling.

The lawsuit is not the first such case alleging mold-related
injuries filed against MHPI providers like the Defendants. Similar
cases with similar claims have been filed in various other state
and federal courts -- e.g., Federico, et al. v. Lincoln Military
Housing, LLC, et al., No. 12-CV-80 (E.D.Va. 2012); Venvertloh v.
Lincoln Mil. Housing, LLC, et al., No. 18-00008 (E.D.Va. 2018);
Charvat v. Lincoln Mil. Prop. Mgmt, No. 37-2018-00002360 (San Diego
Cnty. Sup. Ct. (2018); Pate v. Hunt Southern Group, LLC, No. 18-46
(S.D. Miss. 2018). Such claims also attracted understandable media
attention, including stories by The Military Times and Reuters. The
Reuters' story included interviews with eight families from Fort
Meade, although it is unknown whether any of those families are
named Plaintiffs or potential members of the class.

According to the Defendants, beginning in the Fall of 2018, some of
those who would ultimately become named Plaintiffs in the suit
began to make complaints to the Defendants and others, including
the Army Inspector General, the Garrison Commander of Fort Meade,
and the Senate Armed Services Committee. Congressional hearings
were held in early 2019. The suit was filed in the Fall of 2019.

Against this backdrop, the Defendants indicate that they hired
Holland & Knight in the Fall of 2018 given the potential for
litigation similar to what was unfolding in other jurisdictions.
Holland & Knight, in turn, hired TRC, ServPro and Black & Veatch as
consulting experts to assist Holland & Knight in its assessment of
the Defendants' legal risk related to mold in the military housing
units Defendants managed at Fort Meade by inspecting and collecting
data from those units.

Specifically, TRC was hired to visibly inspect the housing units
for mold to assess the scope of the problem. ServPro was hired to
consult with respect to the scope of potential remediation. Black &
Veatch was hired presumably to assess the feasibility and logistics
of undertaking such an effort. Holland & Knight also hired Aegis
Project Controls to compile and aggregate the raw data collected
for Holland & Knight by TRC, ServPro and Black & Veatch. Aegis
created and updated a master spreadsheet compiling this data for
Holland & Knight's use in advising the Defendants.

Eventually, however, the Defendants asked TRC, ServPro, Black &
Veatch and Aegis to wear a second hat. In addition to their
consulting expert role in gathering data for Holland & Knight's
use, TRC, ServPro, Black & Veatch and Aegis also got involved in
scheduling and performing the mold inspections and remediation
taking place at Fort Meade beginning in March of 2019. That is, TRC
performed inspections of the units so that ServPro could then
perform the remediation, with the entire project being coordinated
by Black & Veatch and, to a lesser extent, Aegis (for the Spring
and Summer of 2019). Nonetheless, TRC, ServPro, Black & Veatch and
Aegis also periodically continued providing expert consulting
services to Holland & Knight.

This dual role as both consulting litigation experts and
schedulers/inspectors/remediators has led to a dispute as to
whether and how to treat information generated by and exchanged
between TRC, ServPro, Black & Veatch, Aegis, Holland & Knight, and
Defendant Corvias for purposes of both the attorney-client
privilege and the work product doctrine. The parties also dispute
the meaning and effect of certain provisions of their agreed-to
Electronically-Stored Information ("ESI") Protocol with regard to
exceptions to the privilege log requirement that would otherwise
attend to documents withheld on that basis.

In order to address the dispute, on Sept. 2, 2021, in the context
of addressing other discovery disputes, the Court directed the
parties to each file a position statement with supporting authority
and to each choose 20 documents from the Defendants' privilege log
for in camera review. This they have done.

Analysis

The challenged documents largely implicate the work product
doctrine. If TRC, ServPro, Black & Veatch and Aegis had remained
solely in their original role of retained consulting experts, the
analysis would be straightforward: Their gathering, analysis and
reporting of technical information to assist Holland & Knight in
its representation of Defendants, and the surrounding
communications, would be protected from disclosure absent a showing
of substantial need and inability to obtain the information from
another source without undue hardship. However, the analysis is
more complicated once TRC, ServPro, Black & Veatch and Aegis take
on the additional role as the entities scheduling and undertaking
the actual inspection and remediation program and, in so doing,
becoming fact witnesses for whom no protection would apply as to
those activities.

Judge Coulson turns his attention to the documents respectively
selected by the parties for in camera review. Together with the
guidance provided, the Defendants are instructed to use the Court's
comments in reviewing their privilege log and producing such
documents as being outside the articulated protections.

a. Plaintiffs' Selections

i. Clawback documents

Judge Coulson concludes as follows: Document 1 should largely
escape clawback except for the "forwarding" portion if the Court is
correct in its conclusion that such portion reflects TRC asking for
guidance from Defendants and counsel as to how to proceed regarding
lost air samples in its capacity as Holland & Knight's consulting
expert. The remainder of the email, however, is not protected as it
concerns communications between TRC employees and its testing lab
regarding certain lost samples at a time when TRC was acting beyond
simply its consulting expert capacity and assisting in coordinating
the actual remediation efforts. If this portion has not been
previously produced, it should not be clawed back.

Document 2 also escapes clawback as it concerns sending raw
information to the Defendants for inclusion in reporting at a time
when ServPro had added its direct role in the remediation to its
consulting role and appears to the Court as acting more in the
former than the latter.

Documents 3 and 4 should be returned as they seem to concern the
collection of data done on behalf of Holland and Knight so that it
could advise Defendants. Document 3 references data being tracked
by Aegis, acting as Holland & Knight's consultant. While the data
itself is not protected (and, the Court assumes, has been
produced), Aegis' decisions on how it will collect, report and use
the data on behalf of Holland & Knight are protected. Document 4
also appears to the Court to be data being collected on behalf of
Holland and Knight previous to the consulting experts' significant
expansion of its role in the actual remediation. Of course, the
dates of the various inspections should already be available to
Plaintiffs in other documents produced.

Finally, Document 5 should be produced as it is from August of
2019, well into the actual remediation and is between those
performing and coordinating that work, rather than data being
collected at the direction of Holland & Knight or Aegis.

ii. ServPro, TRC and Black and Veatch documents (Documents 6-20)

As indicated in their correspondence dated Sept. 15, 2021, which
was submitted after the Plaintiffs prepared their list of documents
review, the Defendants should de-designate and produce any
documents reflecting communications concerning Aegis' role in
distribution of schedules to inspection and remediation vendors
during the Spring and Summer of 2019. Additionally, to the extent
these consultants were simply providing operational information to
Defendant Corvias for its normal business operations (except to the
extent the information primarily related to a strategic litigation
purpose directed by Holland & Knight), such documents are not
protected. Collectively, these conclusions by the Court would
appear to deny protection to SPP 4, SPP 26, SPP 31, SPP 35, SPP 58,
BVP 7, BVP 12, BVP 56, BVP 61, BVP 106, and BVP 177.

As to the remainder, the Plaintiffs argue that these documents are
not protected because "whether or not counsel directed the work,
whether or not counsel created a spreadsheet or other documents,
and whether or not these communications reference that spreadsheet,
if the communications or documents contain the results of the
inspections and remediations, they are not privileged and should be
produced, particularly as the spreadsheet was populated not by
attorneys or the Aegis consultant, but rather by the 'independent'
third-party vendors doing the inspections and performing the
remediations."

Judge Coulson disagrees. He says, while it is true that the data
itself is not protected and should be produced, the particular
subset of that data that Holland & Knight chooses to collect from
this larger data universe to advise its client and formulate the
defense, the format in which it chooses to maintain it and report
it, or the conclusions it is seeking to draw from it, are all its
work product when forwarded by its retained consultants, either
directly or through Aegis. In that role, the retained consultants
are not acting as third-party vendors doing the inspections and
performing the remediations, but rather forwarding to Holland &
Knight that part of the data deemed important by Holland & Knight.
Stated otherwise, so long as the universe of data collected by
these third-parties has been produced, documents that speak to the
subset of that data being requested, communicated, reported, or
used by Holland & Knight or its agent, Aegis, remain protected as
work product.

b. Defendants' Selections

After carefully reviewing the Defendants' submission, Judge Coulson
concludes that the privileges and protections claimed over the
sampling of documents provided is justified unless the Defendants
determine that they should be produced in accordance with the
guidance above. That does not appear to be the case based on the
Court's review, but the Court will rely on the Defendants' greater
familiarity with the documents and their underlying circumstances
to verify the Court's conclusion.

c. The Parties' Dispute Regarding Obligations Under the Agreed-to
ESI Protocol

The parties dispute the extent to which Defendants are required to
prepare a privilege log for documents withheld for privilege based
on Section V.B of their agreed-to ESI Protocol. The Plaintiffs
argue that this provision only excuses the privilege log
requirement for information generated after the lawsuit's initial
filing date (Nov. 12, 2019), and that Section V.B(2) and (3)'s
delimiter "in connection with the Litigation" is further support
for that position. The Defendants respond that if interpreted as
urged by the Plaintiffs, V.B(2) and (3) become superfluous in light
of V.B(1), which already establishes a comprehensive category for
information generated after the lawsuit's initial filing, such that
"in connection with the Litigation" must be read to expand the safe
harbor contained in V.B(1).

Judge Coulson comes to a third conclusion. He agrees that Sections
V.B(2) and (3)'s "in connection with the Litigation" language
potentially expands the safe harbor to a period of time before the
filing of the initial complaint if those provisions are to have
meaning. However, the Judge also agrees with the Plaintiffs that
such expanded period is not synonymous with the period when
litigation was reasonably anticipated, which is so broad as to
swallow the provision. Instead, the Judge concludes that "in
connection with the Litigation" refers to this lawsuit by these
named Plaintiffs (or any one of them) or, in the case of the Class,
a specifically articulated reference to this lawsuit which,
theoretically, could have occurred before the Nov. 12, 2019. That
is, the safe harbor does not include privileged communications
about some litigation or the potential for future litigation, but
only to this Litigation.

To be clear, such communications would also need to be relevant and
responsive to trigger a privilege log obligation. Additionally,
nothing in Judge Coulson's analysis is meant to define when
litigation was or should have been reasonably anticipated for
purposes of attorney-client or work product protection, or
preservation obligations. Rather, his analysis is meant solely for
interpreting Section V.B's "in connection with the Litigation"
language as it pertains to excusing the privilege log requirement
that would otherwise apply.

Conclusion

In light of the foregoing, Judge Coulson concludes that the
Defendants should review their privilege logs (and those of their
retained consultants) and produce any documents not previously
produced consistent with the Court's guidance. This production
should take place within 10 days of the Order. Additionally, the
Defendants should create a privilege log for any documents not
previously logged that are relevant, responsive, and consistent
with the Court's interpretation of the parties' ESI protocol within
14 days of the Order.

A full-text copy of the Court's Sept. 21, 2021 Memorandum & Order
is available at https://tinyurl.com/cubwasd9 from Leagle.com.


COSTA DEL MAR: Smith's Class Settlement Wins Partial Final Approval
-------------------------------------------------------------------
In the case, TROY SMITH, individually and on behalf of all others
similarly situated, BRENDAN C. HANEY, individually and on behalf of
all others similarly situated, and GERALD E. REED, IV, individually
and on behalf of all others similarly situated, Plaintiffs v. COSTA
DEL MAR, INC., a Florida corporation, Defendant, Case No.
3:18-cv-1011-TJC-JRK (M.D. Fla.), Judge Timothy J. Corrigan of the
U.S. District Court for the Middle District of Florida,
Jacksonville Division, granted in part, deferred in part, and
denied in part:

    (i) the Class Counsel's Unopposed Motion for Attorneys' Fees
        and Expenses and Conditional Request for Incentive Awards
        to Class Representatives; and

   (ii) the Plaintiffs' Motion for Final Approval of Class Action
        Settlement.

After several years of litigation and extensive negotiation, three
class action cases against Defendant Costa Del Mar have culminated
in the settlement that is now before the Court for final approval.
The Plaintiffs in the three lawsuits that have been resolved
through the consolidated settlement allege that Costa charged
unlawful fees and related upcharges for repairs to and purchase of
Costa sunglasses.

For the purposes of settlement only and under Federal Rules of
Civil Procedure 23(a) and 23(b)(3), the Court certified the
litigation as a class action on behalf of the following classes:
(1) Florida Purchase Class, or all citizens of Florida who
purchased Costa plano sunglasses from July 28, 2013 to Jan. 31,
2018; (2) Florida Repair Class, or all citizens of Florida who
purchased Costa plano sunglasses before Jan. 1, 2018, and were
charged a fee by Costa from July 28, 2012 through the date of the
Court's final Order, to repair or replace their sunglasses damaged
by accident, normal wear and tear, or misuse; (3) Nationwide Repair
Class, or all United States citizens, excluding Floridians, who
purchased Costa plano sunglasses before Jan. 1, 2018, and were
charged a repair fee from April 3, 2015 through the date of the
Court's final Order, to repair or replace their Costa plano
sunglasses damaged by accident, normal wear and tear, or misuse;
and (4) Warranty Class, or all United States citizens who purchased
non-prescription Costa sunglasses before Jan. 1, 2016, and paid a
warranty fee to Costa for repair or replacement of their sunglasses
damaged by a manufacturer's defect from Aug. 20, 2013 through the
date of the Court's Final Order. The Class Counsel estimates that
combined, the classes include 2.1 million claims.

Costa has agreed to establish a settlement fund of $40 million. As
contemplated by the settlement agreement, the fund is meant to
compensate class members with Costa product vouchers, provide
incentive awards to the three named Plaintiffs, pay the Class
Counsel for the approved attorneys' fees, expenses, and costs,
cover costs of the notice program and claims administration, and
fulfill a possible cy pres payment. Estimated voucher amounts range
from $8.99 to $22.99 per claim, depending on the class to which a
claimant belongs. Vouchers are non-personalized, transferrable,
stackable, and expire in two years, with Costa covering associated
shipping, handling, processing charges, and sales tax for class
members, and vouchers may be redeemed for items on Costa's
website.

The settlement also sets forth injunctive relief; Costa has
modified its product packaging and marketing materials to eliminate
"nominal fee" and "Lifetime Warranty" language. Additionally, as
part of the agreement, the Class Counsel agreed to make, and Costa
agreed not to oppose, an application for an attorneys' fees award
of thirty percent of the settlement fund, approximately $12
million. The settlement provides that "any reduction by the Court
in the amount of Attorneys' Fees, Costs, and Expenses to be awarded
to the Plaintiffs' Class Counsel will inure to the benefit of the
Class."  

The Court originally granted preliminary approval to the Amended
and Restated Settlement Agreement on Sept. 3, 2020. Upon review of
the parties' submissions at the preliminary approval stage, the
Court was satisfied that the settlement was not a coupon
settlement. Additionally, the parties submitted a joint statement
regarding the impact of Johnson v. NPAS Solutions, LLC, 975 F.3d
1244 (11th Cir. 2020) on this case. The Court then changed the
deadline for the motion for attorneys' fees to ensure adequate time
for class members to object to the motion, as required by Johnson.

Following preliminary approval, the settlement administrator
carried out the notice program. As of Feb. 26, 2021, notices had
been delivered via postcards or email to 939,400 of the 939,479
class members to whom the settlement administrator sent notice -- a
ninety-nine and a half percent deliverable rate.

Currently pending in the case are: the Class Counsel's Unopposed
Motion for Attorneys' Fees and Expenses and Conditional Request for
Incentive Awards to Class Representatives; John W. Davis's
Objection to Proposed Settlement and Objections to Evidence; the
Objection of Austin Valls; Mitchell George Miorelli's Objection to
Class Action Settlement and Motion to Strike or Exclude Declaration
of Thomas Scott; and the Plaintiffs' Motion for Final Approval of
Class Action Settlement. The Plaintiffs filed a Response to the
Objections filed by John W. Davis, Mitchell George Miorelli, and
Austin Valls and a Response to the Objections to Evidence Filed by
Objector Davis and the Motion to Strike Filed by Objector Miorelli.
Objector Valls filed a Response to Class Counsel's Motion for
Attorneys' Fees and Expenses.

The Court held a final approval hearing on April 20, 2021, the
record of which is incorporated by reference. Since that time, the
parties have apprised the Court of recent related case law by
filing notices of supplemental authority.

The settlement generated eight requests for exclusion and six
objections, four of which were filed with the Court and were
therefore procedurally valid. Three Objectors in particular -- John
W. Davis, Mitchell George Miorelli, and Austin Valls -- filed
lengthy objections and appeared at the final approval hearing.

Objectors take issue with the settlement for numerous reasons.
Objector Davis belongs to the Florida Purchase Class, the Florida
Repair Class, and the Warranty Class. Davis avers that he does not
intend to seek money for his personal efforts but reserves the
right to seek attorneys' fees if his objection "confers a
substantial benefit on the class." He argues that this settlement
is a coupon settlement and must therefore adhere to the mandates of
CAFA, including a lodestar-based attorneys' fees award without a
multiplier. He also claims that attorneys' fees should be tied to
the number of vouchers redeemed under CAFA, that the requested
$10,000 service award for named Plaintiffs is improper, and that
the settlement agreement provision limiting Objectors' counsel from
retaining fees is unenforceable as against public policy.
Additionally, in his Objections to Evidence, Davis claims that
Boedeker, who provided an affidavit regarding the value of
injunctive relief, makes unwarranted assumptions leading to an
extremely inflated estimate, and that the testimony of Thomas E.
Scott, a former judge, who provided an affidavit saying the
settlement was reasonable, should be stricken because "his opinion
is not the proper subject of expert testimony" and because he did
not analyze the settlement as a coupon settlement.

Objector Valls is a Nationwide Repair Class member. Similar to
Davis, Valls argues that this is a coupon settlement more about a
"marketing campaign than a disgorgement of ill-gotten gains." He
also argues that the provision of the agreement saying that
Objectors' counsel cannot recover fees should be void and that the
cy pres should go to a charity aligned with the interests of the
class and should cover all unexhausted funds instead of only $1
million.

Objector Miorelli argues many of the same points, including that
the settlement is a coupon settlement, that the value of the
settlement is far less than Class Counsel claims, that the
requested attorneys' fees violate CAFA and are excessive, and that
the provision of the settlement barring fees for Objectors is
unenforceable. He also objects on the basis that the settlement is
collusive under In re Bluetooth Headset Products Liability
Litigation, that the cy pres award is inappropriate, and that the
Court does not have enough information about the Class Counsel's
purported costs. Miorelli also submitted a Motion to Strike or
Exclude the Declaration of Thomas Scott, in which he argues that
Scott's testimony includes impermissible legal conclusions, factual
statements without foundation, and unreliable, unhelpful opinions.


In the Motion for Final Approval, the Plaintiffs discuss why the
settlement is fair, adequate, and reasonable, maintain that the
settlement is not a coupon settlement, and argue that even if it
were a coupon settlement, the requested fees would still be
reasonable based on a lodestar calculation and an appropriate
multiplier. The Plaintiffs chose to file a joint response to the
objections of Davis, Valls, and Miorelli.

Discussion

First, Judge Corrigan affirms the Court's determinations in the
Preliminary Approval Order designating Troy Smith, Brendan C.
Haney, and Gerald E. Reed, IV as the representatives of the
settlement classes and appointing Peter P. Hargitai of Holland &
Knight, LLP, as the settlement Class Counsel.

Second, upon review of the notice materials and of Azari's
Declaration regarding the notice program, Judge Corrigan is
satisfied with the way in which the notice program was carried out.
He says, the class notice fully complied with Rule 23(c)(2)(B) and
due process, constituted the best notice practicable under the
circumstances, and was sufficient notice to all persons entitled to
notice of the settlement of the lawsuit.

Third, Judge Corrigan holds that close analysis of each of the
Bennett factors supports approval of the settlement under Rule 23.
Citing Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.
1984), the Eleventh Circuit has instructed district courts to
consider: (1) the likelihood of success at trial; (2) the range of
possible recovery; (3) the point on or below the range of possible
recovery at which a settlement is fair, adequate and reasonable;
(4) the complexity, expense and duration of litigation; (5) the
substance and amount of opposition to the settlement; and (6) the
stage of proceedings at which the settlement was achieved.

Fourth, with respect to the attorneys' fees and costs, as of
February 2021, the Class Counsel had incurred $2,615,374 in
attorneys' fees and $641,154.87 in expenses, totaling
$3,256,528.87. Judge Corrigan finds that an $8 million attorneys'
fees award means the Court would apply a multiplier of
approximately 2.8, which is appropriate, plus expenses and costs
included in the $8 million total. He says, there is a $4 million
difference between the attorneys' fees request of $12 million and
the Court's decision to award $8 million. Under the settlement
agreement, if that $4 million goes to attorneys' fees, Costa
actually pays the $4 million in full to the Class Counsel.

Having now reduced attorneys' fees by $4 million, those funds do
not revert to Costa; instead, under the settlement agreement, they
inure to the benefit of the class assumedly through increased
voucher amounts. But that means Costa will only pay a portion of
the $4 million because not all class members will redeem their
vouchers. Judge Corrigan intends to reduce attorneys' fees for the
Class Counsel but increase the value of the settlement to the class
by $4 million. He defers ruling on how the $4 million will be
handled and asks that the Class Counsel confer with Costa's counsel
and file additional briefing on this discrete issue.

Finally, the Class Counsel originally sought service awards of
$10,000 for each of the three named Plaintiffs. The Class Counsel
has revised its request and asks for service awards only if Johnson
is vacated. Johnson has not been vacated at this time, so the Court
cannot approve service awards. The Eleventh Circuit, however, has
yet to issue a mandate in Johnson, and a petition for en banc
rehearing remains pending. Thus, the Court will retain jurisdiction
to allow the Class Counsel to renew the request for a service award
in the event that Johnson is reversed.

Conclusion

Accordingly, Judge Corrigan granted in part, deferred in part, and
denied in part the Class Counsel's Unopposed Motion for Attorneys'
Fees and Expenses and Conditional Request for Incentive Awards to
Class Representatives, as stated. The parties will file additional
briefing as instructed no later than Oct. 20, 2021. If they so
choose, Objectors may respond to the additional briefing no later
than Nov. 10, 2021.

The Plaintiffs' Motion for Final Approval of Class Action
Settlement is granted in part, deferred in part, and denied in
part, as stated.

Judge Corrigan denied Objector Mitchell George Miorelli's Motion to
Strike or Exclude Declaration of Thomas Scott.

The objections of John W. Davis, Austin Valls, and Mitchell George
Miorelli have been considered as stated.

It is not the Court's final order; the final order will be entered
after the Court receives the additional briefing.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/3adhc8hs from Leagle.com.


DESERT STATES: Koch Suit Wins Class Certification
-------------------------------------------------
In the class action lawsuit captioned as Robert Koch v. Desert
States Employers & UFCW Unions Pension Plan, et al., Case No.
2:20-cv-02187-DJH (D. Ariz.), the Hon. Judge Diane J. Humetewa
entered an order:

   1. certifying the following classes under Fed. R. Civ. P.
      23(b)(3) and appointing Plaintiff Robert Koch as class
      representative and Martin & Bonnett, PLLC as Class
      Counsel:

      -- Actuarial Class

         "All Plan participants (and their surviving spouses and
         eligible beneficiaries) whose benefits files were
         produced by Defendants and who are identified on the
         Plan of Allocation and who did not commence receipt of
         benefits until after the Plan's Normal Retirement Date
         and who did not receive an actuarial increase or
         retroactive benefit payment with interest to account
         for the delay in receipt of their normal retirement
         benefits that were not subject to suspension;"

      -- Suspension Class

         "All Plan participants (and their surviving spouses and
         eligible beneficiaries) whose benefits files were
         produced by Defendants and who are identified on the
         Plan of Allocation who had accrued benefits under the
         Plan or predecessor plans prior to adoption of the 1991
         Intermountain Plan Amendment or the 1998 Plan Amendment
         and/or Heinz Amendments"

   2. preliminarily approving the settlement as set forth in the
      Settlement Agreement and the Plan of Allocation submitted
      with the Settlement Agreement as being fair, reasonable,
      and adequate to the Class Members and finds that it is
      likely to grant Final Approval to the Settlement;

   3. preliminarily approving the Plan of Allocation of the
      Settlement Agreement;

   4. approving, as to form and content, the Class Notice;

   5. granting the motion for preliminary certification of
      settlement lass, appointment of settlement class
      representatives and class counsel, and preliminary
      approval of Proposed Class Settlement; and

   6. setting a final approval Hearing at 10:30 a.m. on November
      30, 2021, in Courtroom 605, Sandra Day O’Connor United
      States Courthouse, 401 W. Washington Street, Phoenix,
      Arizona.

In 2018, the Plaintiff filed a class action lawsuit to remedy
alleged violations of the Employee Retirement Income Security Act
of 1974 ("ERISA") by the Defendants Desert States Employers and
UFCW Unions Pension Plan, and its fiduciary Trustees.

In that lawsuit, the Plaintiffs alleged that these violations
resulted in the forfeiture and underpayment of pension benefits to
Plaintiff and hundreds of putative class members.

The Plaintiff alleged that when he commenced benefits at age 65 and
later learned that the "normal retirement age" under the Plan was
age 62, the Defendants violated ERISA by failing and refusing to
actuarially increase his monthly pension benefits to account for
the three years of normal retirement benefits he was entitled to
but did not receive between ages 62 and 65 and by failing to
properly disclose the right to increased benefits for retirement
after age 62.

A copy of the Court's order dated Sept. 23, 2021 is available from
PacerMonitor.com at https://bit.ly/2Yld0Za at no extra charge.[CC]

DRIVELINE RETAIL: Wins Summary Judgment in McGlenn Data Breach Suit
-------------------------------------------------------------------
In the case, LYNN McGLENN, Plaintiff v. DRIVELINE RETAIL
MERCHANDISING, INC., Defendant, Case No. 18-cv-2097 (C.D. Ill.),
Judge Sue E. Myerscough of the U.S. District Court for the Central
District of Illinois, Springfield Division, grants Defendant
Driveline's Motion for Summary Judgment.

Background

On Jan. 25, 2017, Driveline and thousands of its employees became
the victims of a criminal phishing attack. An unknown individual
("perpetrator"), disguised as the Chief Financial Officer ("CFO")
of Driveline, sent an e-mail to a Driveline employee who worked in
the payroll department. The perpetrator asked the employee to send
all of Driveline's employees' 2016 W-2s. The employee responded to
the email and sent the 2016 W-2s of 15,878 employees to the
perpetrator. These 15,878 W-2s contained social security numbers,
names, home addresses, and wage information for employees who
worked at and received wages from Driveline during the time period
of Jan. 1 2016 to Dec. 31, 2016. Driveline admits that this
information is irretrievably lost, to be used against its employees
forever.

When Driveline realized that the email had been a phishing attack,
it notified the Federal Bureau of Investigation ("FBI"). Driveline
also provided the IRS with the names and Social Security numbers
("SSNs") of the affected employees so the IRS could impose
appropriate controls to prevent the filing of fraudulent returns.
Driveline notified the appropriate governmental authorities of all
fifty states, Guam, and Puerto Rico of the Disclosure.

Effective Jan. 31, 2017, Driveline retained the services of
AllClear ID, a credit and identity theft prevention monitoring
service, to protect the employees whose personal identifying
information ("PII") was involved in the Disclosure. All affected
employees were automatically enrolled in the base protection,
called "AllClear ID Identity Repair." Any employee suspecting
identity theft could file a claim, and AllClear ID would provide
identity and credit remediation services. Additionally, employees
were given the opportunity to enroll for free for one year of
enhanced services, called "AllClear Credit Monitoring." To obtain
the enhanced services, the employees had to contact AllClear ID and
set up their individual accounts.

Driveline waited to notify employees of the Disclosure until the
FBI gave Driveline the "green light." On Feb. 14, 2017, after the
FBI notified Driveline that issuing notice would not hinder the
FBI's investigation, AllClear ID mailed a letter and supporting
materials on behalf of Driveline to all the employees involved in
the Disclosure.

Ms. McGlenn's PII was part of the Disclosure. She received the
Disclosure notification letter, but McGlenn did not enroll in the
free enhanced credit monitoring offered by Driveline through
AllClear ID. Some Driveline employees involved in the Disclosure
received letters from the IRS requiring them to present to an IRS
office in person before filing their 2016 taxes, but McGlenn did
not receive such a letter. McGlenn does not claim that anyone
attempted to file a fraudulent tax return using her PII.

Ms. McGlenn, however, did experience some fraudulent activity on
her financial accounts after the Disclosure. Six months after the
Disclosure, someone tried to activate a Capital One credit card on
an account opened in her name. Capital One received a credit card
application that included McGlenn's former married name (Lynn
Watts), her telephone number, her date of birth, address, and SSN
on or about July 20, 2017. A man attempted to activate the Capital
One account via telephone by providing McGlenn's former name, her
telephone number, and her date of birth. McGlenn's W-2 does not
contain her date of birth. Nor did the Disclosure reveal her
telephone number or former last names. Driveline never even knew
McGlenn's former married name (Watts) because when she applied for
a job with Driveline, she was already married to Mr. McGlenn.

In December 2017, 11 months after the Disclosure, someone used
McGlenn's Charlotte Metro Credit Union debit card to incur a
$252.79 charge. McGlenn confirmed that the information at issue in
the debit card charge, which included her credit union account
number, credit union name, credit card numbers, and debit card
numbers, were not part of the Driveline Disclosure.

Ms. McGlenn also acknowledged that her data was stolen during the
Equifax data breach. As clarified in McGlenn's response, Equifax
provided notice of the breach in September 2017, but the breach
itself occurred between May 2017 and July 2017. McGlenn assumes
that the Equifax data breach disclosed her SSN, her past and
present address, her date of birth, other names she has used in the
past, and the identities of her banks, lending institutions, and
past and present credit card issuers. Equifax, like Driveline,
offered free credit monitoring. McGlenn declined both offers
because she was already using Credit Karma.

Ms. McGlenn also highlights reports by the IRS and FBI warning
about certain frauds prior to the Disclosure. Driveline does not
dispute the facts surrounding these reports, but Driveline argues
that they are immaterial because there is no evidence that
Driveline had received, was aware of, or should have been aware of
these reports.

Ms. McGlenn also alleges additional facts regarding the training,
or lack of training, that Driveline provided its employees,
including that (i) before Jan. 25, 2017, Susan Merciel, the
Driveline Payroll Department Manager who released Driveline
Employees' W-2s, had no training from Driveline that would have
aided her in spotting a phishing email, and (ii) before Jan. 25,
2017, Ms. Merciel had not been trained or advised by Driveline that
W-2 phishing emails were being perpetrated on payroll departments.

While Driveline does not dispute these facts, Driveline argues that
the facts are immaterial to its Motion for Summary Judgment because
Driveline argues it does not owe a duty to its employees to
safeguard their PII.

The Complaint for the action was originally brought by Shirley
Lavender, individually and on behalf of all others similarly
situated, against Driveline. However, Plaintiff Lavender filed a
Motion for Leave to Substitute Class Representative and for Leave
to File an Amended Class Action Complaint in Accordance with the
Substitution. On Sept. 6, 2019, the Court granted Plaintiff
Lavender's Motion for Leave to Substitute.

On Sept. 10, 2019, Plaintiff McGlenn was substituted as Plaintiff
in the case when she filed an Amended Complaint. McGlenn has filed
claims for negligence (Count I), invasion of privacy (Count II),
breach of implied contract (Count III), breach of fiduciary duty
(Count IV), violation of Illinois Personal Information Protection
Act ("IPIPA") (Count V), and violation of Illinois Consumer Fraud
and Deceptive Business Practices Act ("ICFA") (Count VI) against
Driveline.

Ms. McGlenn seeks a mandatory injunction directing Driveline to
adequately safeguard the PII of employees by implementing improved
security procedures and measures and to provide adequate notice to
each employee relating to the full nature and extent of the
Disclosure and ordering Driveline to pay an award of monetary
damages. On Jan. 19, 2021, the Court denied McGlenn's Renewed
Motion for Class Certification.

Driveline filed the Motion for Summary Judgment on Dec. 14, 2020,
and moves for summary judgment on all of McGlenn's individual
claims. McGlenn filed a response on Jan. 15, 2021, in which she
agreed summary judgment was appropriate for her invasion of privacy
claim, but otherwise opposed summary judgment. Driveline filed its
reply on Jan. 29, 2021.

Discussion

Driveline argues that it is entitled to summary judgment on all of
the claims brought by McGlenn (negligence (Count I), invasion of
privacy (Count II), breach of implied contract (Count III), breach
of fiduciary duty (Count IV), violation of Illinois Personal
Information Protection Act ("IPIPA") (Count V), and violation of
Illinois Consumer Fraud and Deceptive Business Practices Act
("ICFA") (Count VI)).

Ms. McGlenn agrees that her invasion of privacy claim (Count II) is
subject to summary judgment. Accordingly, Judge Myerscough grants
summary judgment for Driveline on this claim. Further, the Judge
agrees with Driveline that summary judgment is appropriate on
McGlenn's remaining claims.

A. Driveline is Entitled to Summary Judgment on McGlenn's Illinois
Common Law Tort Claims.

As an initial matter, Judge Myerscough finds that McGlenn has
waived any arguments that Illinois law does not apply. McGlenn has
previously argued that Illinois law applies to her common law
claims. While Driveline has previously questioned whether the law
of Illinois or North Carolina (the state of McGlenn's residence and
where she worked while employed by Driveline) applies, its Motion
for Summary Judgment assumes that Illinois law does apply. It is
not clear from the facts of this case that Illinois law would
necessarily apply given that neither McGlenn nor Driveline are
Illinois residents and any harm to McGlenn did not occur in
Illinois. Nonetheless, McGlenn did not raise the choice-of-law
issue in her response, and Judge Meyerscough finds that the
argument is now waived.

Applying Illinois law, Driveline argues that McGlenn cannot succeed
on her negligence claim because Driveline does not have a duty
under Illinois law to safeguard McGlenn's PII. It argues that
McGlenn cannot succeed on her breach of fiduciary duty claim
because she has not established that Driveline owed her a fiduciary
duty. Driveline also argues that the economic loss doctrine bars
recovery of any tort damages.

First, Judge Myerscough finds that the 2017 amendments to PIPA do
not change the result. While Driveline qualifies as a "data
collector" under the broad definition of the act, Driveline's duty
under this provision is expressly limited to Illinois residents.
McGlenn is not an Illinois resident -- she is a North Carolina
resident. McGlenn has not responded to Driveline's argument that
PIPA does not protect non-Illinois residents, nor has she otherwise
attempted to explain how this provision could be interpreted to
create a duty to safeguard a non-resident's PII. Accordingly, the
Judge finds that Driveline is entitled to summary judgment on
McGlenn's negligence claim because Driveline did not owe a duty
under Illinois law to safeguard McGlenn's PII.

Second, McGlenn argues that she put trust in Driveline to safeguard
her PII and that, as her employer, Driveline had superiority and
influence. But, Judge Myerscough holds that it is not enough that
superiority and influence generally exists in the relationship. The
superiority and influence must result from the trust and
confidence. McGlenn trusted Driveline with her PII because it was
required as a condition of employment. Moreover, McGlenn has not
explained how Driveline gained dominance or "undue influence" over
McGlenn because of the information McGlenn provided. The
"dominance" that existed was typical for the type of relationship
(employer-employee) that McGlenn and Driveline had. Accordingly,
the Judge finds that Driveline is entitled to summary judgment on
McGlenn's breach of fiduciary duty claim.

Third, Judge Myerscough finds that Driveline is entitled to summary
judgment on its tort claims due to an absence of duty. The Judge
declines to also determine whether the economic loss doctrine would
bar McGlenn's claims.

B. Ms. McGlenn Has Not Shown Sufficient Evidence That Driveline
Proximately Caused Her Present Injuries For Her Tort or Contract
Claims.

Driveline next argues that McGlenn cannot succeed on any of her
common law claims -- including her breach of implied contract claim
-- because she has not established proximate cause that the
Disclosure caused her present injuries, and an increased risk of
future harm alone is insufficient to show damages. McGlenn does not
dispute that, under Illinois law, an increased risk of future harm
alone is insufficient to show damages. Accordingly, standing alone,
McGlenn's allegation that she is at an increased risk of future
identity theft is insufficient to show damages.

Nonetheless, McGlenn argues that she has suffered two incidents of
identity theft that qualify as present injuries: First, six months
after receiving the notice of the data breach from Driveline, the
Plaintiff was alerted that someone used her PII to open a new
credit card account with Capital One. Second, approximately eleven
months after the breach, a fraudulent charge of $252.79 was made on
her debit card.

However, Judge Myerscough agrees that McGlenn has not shown that
Driveline caused these present injuries. She says, data breaches
have become increasingly common. McGlenn has not presented any
evidence that Driveline's Disclosure was involved in her incidents
of identity theft beyond the fact that Driveline's Disclosure
happened prior to these incidents. Understandably, neither McGlenn
nor Driveline has been able to determine who committed the identity
thefts and determine where they got the information used. But,
especially in light of the fact that Driveline's Disclosure did not
provide all the information used to commit the incidents of
identity theft, McGlenn needed to present some evidence of
causation other than temporal proximity for a reasonable jury to
find Driveline responsible for her injuries. Any finding in
McGlenn's favor would be merely speculative.

Because McGlenn's only remaining alleged harm is her alleged
increased risk of future identity theft, which she concedes is
insufficient on its own to entitle her to damages, Driveline is
entitled to summary judgment on McGlenn's tort and contract claims
under Illinois law.

C. Driveline is Entitled to Summary Judgment on McGlenn's Statutory
Claims.

McGlenn also claims that Driveline violated the Illinois Personal
Information Protection Act ("PIPA") and the Illinois Consumer Fraud
and Deceptive Business Practices Act ("ICFA"). Driveline argues
that it met the Notice requirements of PIPA and, therefore, McGlenn
cannot prove a violation of PIPA. In her response, McGlenn
clarifies that the basis of her PIPA claim is not the notice
requirements but, rather, the 2017 amendments.

As Judge Myerscough stated, these amendments require that a data
collector that "maintains or stores records that contain personal
information concerning an Illinois resident will implement and
maintain reasonable security measures to protect those records from
unauthorized access, acquisition, destruction, use, modification,
or disclosure." However, McGlenn fails to respond to Driveline's
other argument regarding PIPA: McGlenn is a North Carolina
resident. Even if McGlenn can show that Driveline failed to
"implement and maintain reasonable security measures to protect"
her PII from disclosure, she will not have shown a PIPA violation
because she is not an Illinois resident.

Driveline is also entitled to summary judgment for McGlenn's final
claim: A violation ICFA. McGlenn argues that Driveline violated
ICFA because a violation of PIPA "constitutes an unlawful practice
under the Consumer Fraud and Deceptive Business Practices Act."
However, because she finds that Driveline did not violated PIPA as
to McGlenn, Judge Myerscough holds that McGlenn also cannot show a
violation of ICFA. Accordingly, the Judge finds that Driveline is
entitled to summary judgment on McGlenn's Illinois statutory claims
as well.

Conclusion

For the reasons she set forth, Judge Myerscough grants the
Defendant's Motion for Summary Judgment. She directs the Clerk to
enter judgment in favor of Defendant Driveline. The Order
terminates the case.

A full-text copy of the Court's Sept. 21, 2021 Order & Opinion is
available at https://tinyurl.com/9kefcjz from Leagle.com.


EVENTIDE CREDIT: Martorello's Bid to Dismiss Duggan Suit Denied
---------------------------------------------------------------
In the case, DANA DUGGAN, individually and on behalf of persons
similarly situated, Plaintiff v. MATT MARTORELLO and EVENTIDE
CREDIT ACQUISITIONS, LLC, Defendants, Civil Action No. 18-12277-JGD
(D. Mass.), Magistrate Judge Judith Gail Dein of the U.S. District
Court for the District of Massachusetts denied Martorello's Motion
to Dismiss Plaintiff's Second Amended Class Action Complaint.

Background

Plaintiff Duggan, a Massachusetts resident, has brought the
putative class action against Defendants Martorello and his
company, Eventide, alleging that the Defendants engaged in an
internet-based predatory lending scheme in which they charged
Duggan and other consumers unconscionably high interest rates,
often exceeding 500%, for short-term loans. According to Duggan,
Martorello and Eventide sought to evade state and federal laws
prohibiting such usurious lending practices by partnering with the
Lac Vieux Desert Bank of Lake Superior Chippewa Indians ("LVD" or
the "Tribe") to set up a lending entity.

Under this so-called "rent-a-tribe" scheme, LVD, through a company
known as Big Picture Loans, LLC, allegedly acted as the nominal
lender while Martorello and Eventide operated and exercised actual
control over the lending business under the cloak of the Tribe's
sovereign immunity. The Plaintiff claims that this arrangement
enabled the defendants to carry out a fraudulent criminal
enterprise and enrich themselves by taking advantage of the
privileges and immunities available to Native American tribes.

By her Second Amended Class Action Complaint, Duggan has asserted
claims against Martorello and Eventide for violations of
Massachusetts lending, licensing and consumer protection laws,
violations of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. Sections 1961 et seq. ("RICO"), unjust enrichment
and declaratory judgment. Additionally, Duggan is seeking to
certify a class and a subclass of similarly situated borrowers
residing in Massachusetts and in other states around the country.

The matter is before the court on Martorello's Motion to Dismiss,
as supplemented by separate briefing in which Martorello argues
that he is entitled to dismissal pursuant to the doctrine of
judicial estoppel. JUdge Dein will issue a separate Memorandum of
Decision and Order addressing the arguments raised by Martorello in
his original motion to dismiss. The instant Memorandum of Decision
and Order addresses Martorello's assertion that judicial estoppel
warrants the dismissal of the action because Duggan's participation
in a nationwide class action settlement in the matter of Renee
Galloway, et al. v. James Williams, Jr. et al., No. 3:19-cv-470
(E.D. Va.) ("Galloway III") is inconsistent with her claims against
the Defendants in the case.

Discussion

A. Judicial Estoppel

Mr. Martorello has moved to dismiss the action pursuant to the
doctrine of judicial estoppel. As a general matter, the doctrine of
judicial estoppel prevents a litigant from pressing a claim that is
inconsistent with a position taken by that litigant either in a
prior legal proceeding or in an earlier phase of the same legal
proceeding. The primary purpose of the doctrine "is to safeguard
the integrity of the courts by preventing parties from improperly
manipulating the machinery of the judicial system." "Consequently,
the 'guiding principle of judicial estoppel' is that it should
apply 'when a litigant is playing fast and loose with the courts,
and when intentional selfcontradiction is being used as a means of
obtaining unfair advantage in a forum provided for suitors seeking
justice.'"

While "the contours of the doctrine are hazy, and there is no
mechanical test for determining its applicability," the First
Circuit has determined that, "at a minimum, two conditions must be
satisfied before judicial estoppel can attach. First, the estopping
position and the estopped position must be directly inconsistent,
that is, mutually exclusive. Second, the responsible party must
have succeeded in persuading a court to accept its prior position."
Additionally, "while it is not a formal element of a claim of
judicial estoppel, courts frequently consider a third factor:
Absent an estoppel, would the party asserting the inconsistent
position derive an unfair advantage? Relatedly, courts often
inquire as to whether judicial acceptance of a party's initial
position conferred a benefit on that party."

Judge Dein holds that in a prototypical case, judicial estoppel
applies when 'a party has adopted one position, secured a favorable
decision, and then taken a contradictory position in search of
legal advantage.' Applying these principles to the instant case
compels the conclusion that the doctrine of judicial estoppel does
not apply.

B. Application of the Doctrine to the Instant Case

a. Absence of Inconsistent Positions

The first inquiry the Court must make in determining whether
judicial estoppel applies is whether Duggan did, in fact, take one
or more positions in Galloway III that are "directly inconsistent"
with her positions in the instant case. Martorello contends that
when she entered into the Galloway III Settlement Agreement, Duggan
took two positions that contradict her claims in the action.

Judge Dein disagrees and finds that there is no direct conflict
between Duggan's positions in Galloway III and her positions in the
case. Martorello's assertion that by entering into the Settlement
Agreement, Duggan effectively agreed that Big Picture Loans and
Ascension could resume their lending activities, in violation of
Massachusetts law, is at odds with the plain language of the
Agreement. Additionally, there is nothing inconsistent about
Duggan's decision to enter into an agreement under which some
alleged wrongdoers agree to disgorge their ill-gotten gains by
disclaiming their interests in an allegedly illegal business while
continuing to pursue her claims against the majority owner of the
business as well as the business itself. Therefore, Martorello has
failed to satisfy the first requirement needed to apply judicial
estoppel.

b. Adoption of Duggan's Position

In addition to showing a direct inconsistency between a party's
prior position and the one she currently espouses, "the party
proposing an application of judicial estoppel must show that the
relevant court actually accepted the other party's earlier
representation."

Judge Dein holds that the Galloway III court approved the
Settlement Agreement after finding that it was "fair, reasonable,
and adequate in that it accords significant benefits to the class
members."  In doing so, the court neither accepted nor "implied any
judicial endorsement of either party's claims or theories." More
significantly, there is no indication that the court viewed the
settlement as a recognition by Duggan and the other Plaintiffs of
the legality of the alleged lending scheme, as Martorello argues in
support of his motion. The Settlement Agreement specifically
provides that nothing therein "should be construed as an admission
or stipulation by Plaintiffs and Class Counsel regarding the
Released Parties' defenses, including the disputed issues of
sovereign immunity, the application of state law, and/or the
legality of the subject lending practices."

Furthermore, as described supra, in its decision approving the
Settlement Agreement, the Galloway III court expressly acknowledged
"Class Counsel's belief in the strength of their case" against the
Defendants based on the allegedly illegal predatory lending scheme.
Thus, there is nothing in the record to suggest that Duggan
persuaded the Galloway III court to accept a position that is
inconsistent with her claims and allegations in the present
litigation.

c. Equitable Considerations

The First Circuit generally does not require a showing of unfair
advantage where the first two elements of the test for judicial
estoppel are present. "Where unfair advantage exists, however, it
is a powerful factor in favor of applying the doctrine."

In the case, Judge Dein holds that Martorello has not shown, and
the Judge cannot determine, how Duggan's participation in the
Galloway III settlement and her execution of the Settlement
Agreement will give her an unfair advantage over the defendants in
the instant case. Accordingly, the record does not support the
conclusion that Duggan is "playing fast and loose with the courts."
There is no evidence of an inconsistency, much less evidence of an
intent to manipulate or mislead the courts, there is simply no
basis for applying the extraordinary remedy of judicial estoppel.
The Defendant's motion to dismiss on this basis must be denied.

Conclusion

For all the reasons she detailed, Judge Dein concludes that
Martorello has failed to establish that Duggan has taken any
positions in this case that are directly inconsistent with the
positions she took in Galloway III, that Duggan persuaded the
Galloway III court to accept a position that is at odds with her
claims in the instant litigation, or that Duggan will obtain an
unfair advantage if Martorello's motion to dismiss is denied.
Therefore, Martorello's motion to dismiss Duggan's claims in the
action on the basis of judicial estoppel is denied.

A full-text copy of the Court's Sept. 21, 2021 Memorandum of
Decision & Order is available at https://tinyurl.com/4995378j from
Leagle.com.


FAIR COLLECTIONS: Court Dismisses Epps FDCPA Suit With Prejudice
----------------------------------------------------------------
In the case, KRISTYN EPPS, individually and on behalf of others
similarly situated, Plaintiffs v. FAIR COLLECTIONS & OUTSOURCING,
INC. and JOHN DOES 1-25, Defendants, Civil Action No. 7:20-cv-00176
(W.D. Va.), Judge Elizabeth K. Dillon of the U.S. District Court
for the Western District of Virginia, Roanoke Division, grants
Defendant Fair Collections' motion to dismiss the Plaintiff's
amended complaint for failure to state a claim on which relief may
be granted with prejudice.

Prior to March 25, 2019, Epps incurred an obligation, which she
alleges is a debt, to Home Properties, L.P. The debt arose from
Epps's early termination of a lease on a property she used as her
personal residence. Home Properties contracted with Defendant Fair
Collections to collect Epps's debt.

On March 25, 2019, Fair Collections sent Epps a letter regarding
the debt she owed to Home Properties.

On March 20, 2020, Epps filed a class action suit against Fair
Collections on behalf of herself and others who received a similar
settlement letter, which complaint was later amended. She alleges
that Fair Collections violated the Fair Debt Collection Practices
Act ("FDCPA"), 15 U.S.C. Section 1692e. Specifically, Epps claims
that the statement "settled in full" is false and misleading in
violation of 15 U.S.C. Section 1692e(10) because the statement
indicates the contrary propositions that her debt was both paid in
full and settled for a discount less than the full debt. Further,
Epps alleges that the statement "settled in full" misrepresents the
character, amount, or legal status of her debt in violation of 15
U.S.C. Section 1692e(2)(A). Epps demands a jury trial and seeks
statutory and actual damages, as well as attorney's fees.

On April 4, 2020, Fair Collections filed its first motion to
dismiss for failure to state a claim arguing, in part, that Epps
failed to establish that her debt was covered by the FDCPA because
she did not plead facts to indicate that the debt was for personal,
family, or household uses. The court granted the motion to dismiss
without prejudice. Epps, with leave of court, filed an amended
complaint pleading that the debt was personal.

Fair Collections then filed a second motion to dismiss. It argues
that: (1) the FDCPA does not apply to the letter at issue because
Fair Collections was not attempting to collect a debt; (2) the
letter was not material to Epps's decision to pay her debt because
she paid the debt before she received the letter; and (3) the term
"settled in full" would not deceive the least sophisticated
consumer.

In response, Epps argues that: (1) the letter at issue stated it
was "an attempt to collect a debt"; (2) the letter was material to
Epps as it relates to credit reporting; and (3) the phrase "settled
in full" would confuse the least sophisticated consumer in this
context.

Discussion

The FDCPA is designed to "eliminate abusive debt collection
practices by debt collectors." Accordingly, the FDCPA provides that
"a debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any
debt." "The use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer,"and the "false representation of the
character, amount, or legal status of any debt," are violations of
the FDCPA.

When applying the least sophisticated consumer test, the Court must
consider allegedly false or misleading language "in the context of
the entirety of the documents on which the language appeared."
"Given the objective nature of this inquiry, a district court's
application of the least sophisticated consumer test ordinarily
presents a question of law."

In Cosio v. AFNI Inc., No. CV-19-05230-PHX-DLR, 2020 WL 836546, at
*1 (D. Ariz. Feb. 20, 2020), the Court held that a letter stating a
debt was "settled in full" "would not mislead or deceive even the
least sophisticated debtor and did not misstate the character,
amount, or legal status of the debt." The letter at issue was
titled "DISCOUNTED PAYMENT OFFER" and explained that the debt
collector "would accept 60% of the current balance, $95.92, to
resolve the balance." Moreover, the letter stated "once you pay
this discounted amount, your account will be closed." The Court
reasoned that even "a consumer with a basic level of understanding
and a willingness to read with care would have understood the
entirety of the letter to mean that, in exchange for a payment of
$95.92, the debt collector would resolve and close the account."

Ms. Epps argues that Cosio is distinguishable from the instant case
because the letter in Cosio did not include the FDCPA disclaimer
included in the case. The FDCPA disclaimer in Epps's letter states,
"This communication is an attempt to collect a debt by a debt
collector." However, Judge Dillon holds that even with this
disclaimer, the least sophisticated consumer would be able to
understand the meaning of "settled in full" within the context of
this settlement letter. First, the title of the letter, "NOTICE OF
SETTLEMENT IN FULL," indicates that the letter is providing notice
of a settlement. Second, the chart at the top of the letter clearly
states the principal amount of the debt ($1,544.52), the amount
paid to Fair Collections ($1,000), and the account balance ($0).
Even the least sophisticated consumer would understand that his or
her debt was settled because the account balance owed on the debt
is $0.

Ms. Epps also argues that the term "settled in full" is
contradictory. Epps notes that "'settled' means paying something
for less than the amount owed, and 'in full' suggests exactly the
opposite -- paying off a debt fully and completely." Judge Dillon
finds the argument unpersuasive. She says, Epps misleadingly reads
the word "settled" and "in full" in isolation when the words must
be read together and in the context of the entire letter. When the
words are read together, the least sophisticated consumer would
understand the term "settled in full" to mean that the debt was
settled and the full amount of the settlement was paid. A contrary
interpretation is unreasonable, particularly given that the letter
indicates that the balance owed on the debt is $0. Thus, even with
the FDCPA disclaimer, the term "settled in full" is neither false
nor misleading.

Given this ruling, no additional amendments would enable the
Plaintiff to state a claim, so the case will be dismissed with
prejudice.

Conclusion

For the reasons she stated, Judge Dillon grants the Defendant's
motion to dismiss, and an appropriate order will be entered.

A full-text copy of the Court's Sept. 21, 2021 Memorandum Opinion
is available at https://tinyurl.com/nvsmym7c from Leagle.com.


FEDCAP REHABILITATION: King Bid for Collective Status Nixed as Moot
-------------------------------------------------------------------
In the class action lawsuit captioned as King v. Fedcap
Rehabilitation Services, Inc., et al., Case No. 1:20-cv-01784-VSB
(S.D.N.Y.), the Hon. Judge Vernon S. Broderkick entered an order:

   1. denying as moot the Plaintiff's initial motion for
      conditional collective certification; and

   2. adopting the parties' proposed briefing schedule for
      Plaintiff's amended motion:

      -- Plaintiff's moving brief:     October 8, 2021

      -- Defendants' opposition:       November 12, 2021

      -- Plaintiff's reply:            December 3, 2021

Fedcap Rehabilitation is a Manhattan-based not-for-profit
organization that provides vocational training and employment
resources to those who face barriers to employment such as people
with all kinds of disabilities and employment-related barriers.

A copy of the Court's order dated Sept. 23, 2021 is available from
PacerMonitor.com at https://bit.ly/2Y98mNz at no extra charge.[CC]

The Plaintiff is represented by:

          C.K. Lee, Esq.
          LEE LITIGATION GROUP, PLLC
          148 West 24 th Street, Eighth Floor
          New York, NY 10011
          Telephone: (212) 465-1180
          Facsimile: (212) 465-1181
          E-mail: info@leelitigation.com

FPC ALDERSON: Asplund Suit Seeks to Certify Class of Inmates
------------------------------------------------------------
In the class action lawsuit captioned as Janette M. Asplund v.
Warden Carver and BOP Director Carvajal, Case No. 1:21-cv-00541
(S.D.W.Va.), the Plaintiff asks the Court to enter an order
granting class certification and appointing class counsel.

The class certification is on behalf of the vulnerable inmates of
FPC Alderson who qualify for compassionate release of the CARES
ACT, elderly inmates that qualify for home confinement, and other
inmates who are living in unsafe conditions at FPC Alderson. The
inmates that are living in unsafe conditions with subclasses being
vulnerable inmates and another subclass, as to make up the entire
population of over 650 inmates, the suit says.

The class contends that their Eighth Amendment rights are being
violated by way of substantial risk of serious illness or death,
constituting irreparable harm.

The Federal Prison Camp, Alderson is a minimum-security United
States federal prison for female inmates in West Virginia. It is
operated by the Federal Bureau of Prisons, a division of the United
States Department of Justice. FPC Alderson is in two West Virginia
counties, near the town of Alderson.

A copy of the Plaintiff's motion to certify class dated Sept. 23,
2021 is available from PacerMonitor.com at https://bit.ly/2WE4eot
at no extra charge.[CC]

FPC ALDERSON: Wiggins Suit Seeks to Certify Class of Inmates
------------------------------------------------------------
In the class action lawsuit captioned as Kanika T. Wiggins v.
Warden Carver and BOP Director Carvajal, Case No. 1:21-cv-00534
(S.D.W.Va.), the Plaintiff asks the Court to enter an order
granting class certification and appointing class counsel.

The class certification is on behalf of the vulnerable inmates of
FPC Alderson who qualify for compassionate release of the CARES
ACT, elderly inmates that qualify for home confinement, and other
inmates who are living in unsafe conditions at FPC Alderson. The
inmates that are living in unsafe conditions with subclasses being
vulnerable inmates and another subclass, as to make up the entire
population of over 650 inmates, the suit says.

The class contends that their Eighth Amendment rights are being
violated by way of substantial risk of serious illness or death,
constituting irreparable harm.

The Federal Prison Camp, Alderson is a minimum-security United
States federal prison for female inmates in West Virginia. It is
operated by the Federal Bureau of Prisons, a division of the United
States Department of Justice. FPC Alderson is in two West Virginia
counties, near the town of Alderson.

A copy of the Plaintiff's motion to certify class dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/3l4wzxF
at no extra charge.[CC]

FPC ALDERSON: Workman Suit Seeks to Certify Class of Inmates
------------------------------------------------------------
In the class action lawsuit captioned as Misty Workman v. Warden
Carver and BOP Director Carvajal, Case No. 1:21-cv-00535
(S.D.W.Va.), the Plaintiff asks the Court to enter an order
granting class certification and appointing class counsel.

The class certification is on behalf of the vulnerable inmates of
FPC Alderson who qualify for compassionate release of the CARES
ACT, elderly inmates that qualify for home confinement, and other
inmates who are living in unsafe conditions at FPC Alderson. The
inmates that are living in unsafe conditions with subclasses being
vulnerable inmates and another subclass, as to make up the entire
population of over 650 inmates, the suit says.

The class contends that their Eighth Amendment rights are being
violated by way of substantial risk of serious illness or death,
constituting irreparable harm.

The Federal Prison Camp, Alderson is a minimum-security United
States federal prison for female inmates in West Virginia. It is
operated by the Federal Bureau of Prisons, a division of the United
States Department of Justice. FPC Alderson is in two West Virginia
counties, near the town of Alderson.

A copy of the Plaintiff's motion to certify class dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/3uC8CRx
at no extra charge.[CC]



GEICO CASUALTY: Davis Suit Seeks to Certify Ohio Insured Class
--------------------------------------------------------------
In the class action lawsuit captioned as JANET DAVIS, ANGEL
RANDALL, ALMA LEE RESENDEZ, MANDY PHELAN, and TREY ROBERTS, on
behalf of all other similarly situated, v. GEICO CASUALTY COMPANY,
a foreign corporation, GEICO ADVANTAGE INSURANCE COMPANY, a foreign
corporation, and GEICO CHOICE INSURANCE COMPANY, a foreign
corporation, and GEICO GENERAL INSURANCE COMPANY, a foreign
corporation, and GEICO SECURE INSURANCE COMPANY, a foreign
corporation, Case No. 2:19-cv-02477-EAS-EPD (S.D. Ohio), the
Plaintiffs ask the Court to enter an order under Federal Rule of
Civil Procedure 23:

   1. certifying a Class of:

      "All Ohio residents insured under a GEICO private-
      passenger auto property damage policy who (1) submitted a
      first-party property damage claim from January 1, 2009
      through August 1, 2020 that was (2) determined by GEICO to
      be a covered total-loss claim, and where (3) GEICO's
      total-loss claim payment(s) did not include ACV Sales Tax
      and/or Transfer Fees;"

   2. appointing them as Class representatives and their counsel
      as Class Counsel; and

   3. directing the parties to submit a Notice plan under Fed.
      R. Civ. P. 23(c).

This case involves a straightforward breach of contract claim: the
Defendants promised to pay their insureds the actual cash value
("ACV") of their vehicles in the event of a total loss. ACV is
defined to include "replacement cost" and thus includes costs
necessary to replace the vehicle. Such necessary costs include
Sales Tax and title and registration transfer fees, which are
mandatory costs imposed by the State of Ohio at a flat rate.

In the Third Amended Complaint, the Defendants systematically
underpaid Plaintiffs and thousands of other Class Members amounts
Defendants owed for Sales Tax and/or Transfer Fees.

GEICO provides private-passenger auto coverage to insureds in Ohio.


A copy of the Plaintiffs' motion to certify class dated Sept. 23,
2021 is available from PacerMonitor.com at https://bit.ly/3A7VZP2
at no extra charge.[CC]

The Plaintiffs are represented by:

          Jacob L. Phillips, Esq.
          Edmund A. Normand, Esq.
          NORMAND PLLC
          Post Office Box 1400036
          Orlando, FL 32814-0036
          Telephone: (407) 603-6031
          E-mail: jacob.phillips@normandpllc.com
                  ed@ednormand.com

               - and -

          Daniel R. Karon, Esq.
          Beau D. Hollowell, Esq.
          KARON LLC
          700 W. St. Clair Ave., Suite 200
          Cleveland, OH 44113
          Telephone: (216) 622-1851
          E-mail: dkaron@karonllc.com
                  bhollowell@karonllc.com

               - and -

          Christopher Hall, Esq.
          HALL & LAMPROS LLP
          400 Galleria Parkway, Suite 1150
          Atlanta, GA 30309
          Telephone: (404) 876-8100
          E-mail: chall@hallandlampros.com

               - and -

          Bradley W. Pratt, Esq.
          PRATT CLAY LLC
          4401 Northside Parkway, Suite 520
          Atlanta, GA 30327
          Telephone: (404) 949-8118
          E-mail: bradley@prattclay.com

               - and -

          Andrew Shamis, Esq.
          Joshua Moyer, Esq.
          SHAMIS & GENTILE, P.A.
          14 N.E 1 Ave Ste. 1205
          Miami, FL 33132
          Telephone: (305) 479-2299
          E-mail: ashamis@shamisgentile.com
                  jmoyer@shamisgentile.com

               - and -

          Scott Edelsberg, Esq.
          Christopher Gold, Esq.
          EDELSBERG LAW, P.A.
          19495 Biscayne Blvd. No. 607
          Aventura, FL 33180
          Telephone: (305) 975-3320
          E-mail: Scott@edelsberglaw.com

               - and -

          Rachel Dapeer, Esq.
          DAPEER LAW, P.A.
          300 S. Biscayne Blvd. No. 2704
          Miami, FL 33131
          E-mail: rachel@dapeer.com

GREGORY STEPHEN: Court Certifies Class of BBI Participants
----------------------------------------------------------
In the class action lawsuit captioned as JOHN DOE, and all others
similarly situated, v. GREGORY SCOTT STEPHEN, BARNSTORMERS
BASKETBALL, INC. d/b/a BARNSTORMERS BASKETBALL OF IOWA, AMATEUR
ATHLETIC UNION OF THE UNITED STATES, INC., and ADIDAS AMERICA,
INC., Case No. 3:20-cv-00005-JAJ-SHL (S.D. Iowa), the Hon. Judge
John J. Jarvey entered an order:

   a. granting Plaintiff's renewed motion for class
      certification;

   b. certifying a class of:

      "All past or present Barnstormer Basketball, Inc.
      participants who:

      1. were affiliated with a Barnstormer Basketball, Inc.
         team at any point in time between 2005 and April 5,
         2018 while Greg Stephen was involved with the
         organization; and

      2. fell victim to Greg Stephen’s illicit acts of secretly
         procuring nude images and/or recordings of minors;

   c. designating the named plaintiff as the class
      representative and that the following attorney is  
      appointed as lead counsel for the class:

              Guy Cook, Esq.
              GREFE & SIDNEY PLC
              500 E. Court Avenue, Suite 200
              Des Moines, IA 50309

   d. directing the Plaintiff to file a proposed notice that
      meet the requirements of Rule 23(c)(2)(B) no later than
      October 8, 2021; and

   e. directing the Defendant to file any response to
      Plaintiff's proposed notice by Friday, October 15, 2021.

The Court said, "Because Plaintiff identifies a common, class-wide
failure by BBI to have adequate policies and procedures in place to
protect participants from predators like Stephen, judicial economy
supports adjudicating these claims together. Proceeding as a
single, class action on common issues also eliminates the risk of
inconsistent outcomes. After considering the four factors, the
Court concludes that superiority is satisfied."

BBI is an Iowa, nonprofit organization. Jamie Johnson founded BBI
in 2004 and serves as the director. BBI has several club basketball
teams for youth athletes ranging from 4th grade to 11th grade. BBI
hosts yearly tryouts to select youth athletes for its teams. The
BBI teams travel to various tournaments across the country to
compete against other club teams.

Johnson met Gregory Stephen in 2005 at a youth basketball
tournament. Stephen was coaching his own youth boys’ basketball
club at the time, the Iowa Mavericks. Johnson asked Stephen to join
BBI to coach and help run the program, and Stephen agreed. Stephen
worked in this capacity with BBI from approximately 2005 to 2018,
apart from an absence while he pursued a coaching job at Upper Iowa
University when he was terminated after a criminal investigation
into him commenced.

During the course of the criminal investigation into Stephen,
police discovered over 400 sexually explicit photographs of minor
boys on Stephen's hard drive. Law enforcement discovered three
different categories of visual depictions of minors on Stephen's
electronic devices: 1) minors who were secretly recorded with
recording devices placed in bathrooms, 2) minors who photographed
or recorded themselves engaged in sexually explicit activities and
who were induced or persuaded by Stephen to send these images, and
3) visual depictions of unconscious minor boys taken by Stephen.
Stephen was indicted and pleaded guilty to five counts of sexual
exploitation of a minor, one count of possession of child
pornography, and one count of transporting child pornography.

A copy of the Court's order dated Sept. 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3A7T354 at no extra charge.[CC]

HEBRON TECHNOLOGY: Consolidated 2nd Amended Securities Suit Tossed
------------------------------------------------------------------
In the case, IN RE HEBRON TECHNOLOGY CO., LTD. SECURITIES
LITIGATION, Case No. 20 Civ. 4420 (PAE) (S.D.N.Y.), Judge Paul A.
Engelmayer of the U.S. District Court for the Southern District of
New York grants Hebron's motion to dismiss the Consolidated Second
Amended Complaint for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6).

Background

In the putative class action, Lead Plaintiff Edward A. Dahlke and
Plaintiff Michael Clynes claim that a Chinese holding company's
failure to disclose alleged related party dealings violated federal
securities law. Their SAC claims that Hebron and two of its
officers, Individual Defendants Anyuan Sun and Changjuan Liang
misrepresented and omitted material information in public
statements by failing to identify three transactions as related
party transactions. They allege violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and the corresponding
rule of the Securities and Exchange Commission ("SEC"), 17 C.F.R.
Section 240.10b-5.

The Consolidated Second Amended Complaint ("SAC") alleges that the
Defendants made misleading statements, and omitted material
information, in their public statements regarding three alleged
related party transactions between December 2019 and May 2020.
These are: (i) the Loong Fang PIPE Transaction; (ii) the Beijing
Hengpu Acquisition; and (iii) the Nami Holding (Cayman)
Acquisition.

In support of its claims that the three transactions were related
party transactions, the SAC relies on (1) a June 3, 2020 research
report issued by a short-seller, Grizzly Research, which disclosed
the purportedly related-party nature of the transactions, and (2)
counsel's investigation. This investigation, the SAC states,
consisted of reviewing (a) Hebron's regulatory filings with the
SEC; (b) Hebron's press releases and media reports; (c) Chinese
corporate, legal, and regulatory filings, and media coverage; and
(d) other publicly available information.

The SAC alleges that Hebron made material false statements and
omitted material information in connection with the following
statements during the Class Period. First, on April 24, 2020,
Hebron filed its 2019 Annual Report. It was signed by Individual
Defendant Sun. Hebron also included certifications pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002 ("SOX
Certifications"), signed by Sun and Liang. Second, on May 1, 2020,
Hebron filed a Form 6-K with the SEC, signed by Sun, with a press
release announcing the Loong Fang PIPE Transaction. The press
release stated that Hebron had "sold to two private investors" and
"entered into an SPA with the two private investors." The SAC
alleges that these statements were materially false and misleading
because the Form 6-K did not disclose that the transaction was a
related party transaction.

Third, on May 22, 2020, Hebron filed a Form 6-K with the SEC,
signed by Sun, with a press release announcing the Nami Holding
(Cayman) Acquisition. The Form 6-K quoted Sun describing the
benefits that Nami Holding (Cayman) would provide to Hebron's
financial advisory service. The SAC alleges that these statements
were materially false and/or misleading because the Form 6-K did
not disclose that Nami Holding (Cayman), Li, Shanghai Nami, and
Huiying Financial were related parties, and that the acquisition
was therefore a related party transaction.

On June 3, 2020, the final day of the Class Period, Siegfried
Eggert, the CEO of Grizzly Research, a short-selling firm,
presented, online, excerpts of—and published the entire --
Grizzly Report. The Grizzly Report alleged that the Loong Fang PIPE
Transaction, the Beijing Hengpu Acquisition, and the Nami Holding
(Cayman) Acquisition were all related party transactions. That day,
Hebron's share price fell by $8.26, or almost 37%, and closed at
$14.29 per share. The following day, June 4, 2020, the share price
fell by another $2.51, or almost 18%, and closed at $11.78 per
share.

On June 9, 2020, Clynes filed the original complaint in the action.
On Aug. 7, 2020, Dahlke filed a motion to consolidate his claims
with Clynes' and to be appointed lead plaintiff. On Aug. 10, 2020,
Clynes moved for his appointment as lead plaintiff. On Aug. 26,
2020, Clynes and Dahlke filed memoranda of law and declarations in
support of their motions and in opposition to the other's motion.
On Sept. 2 and 4, 2020, respectively, Clynes and Dahlke filed
replies. On Sept. 16, 2020, the Court consolidated the cases,
granted Dahlke's motion to serve as lead plaintiff, and denied
Clynes's motion.

On Nov. 20, 2020, the Plaintiffs filed a Consolidated Amended
Complaint. On Dec. 21, 2020, Hebron filed a motion to dismiss, a
memorandum of law in support, and the declaration of Matthew Tharp.
On Dec. 22, 2020, the Court ordered the Plaintiffs to file any
amended complaint by Jan. 20, 2021. On Jan. 20, 2021, the
Plaintiffs filed the SAC. On Feb. 19, 2021, Hebron filed its motion
to dismiss. On March 12, 2021, the Plaintiffs filed their
memorandum of law in opposition to that motion. On March 19, 2021,
Hebron filed its reply.

Discussion

The SAC brings claims under Sections 10(b) of the Exchange Act and
Rule 10b-5 against all the Defendants, and under Section 20(a) of
the Exchange Act against the Individual Defendants. These claims
all are based on Hebron's failure to disclose that three
transactions -- the Loong Fang PIPE Transaction, the Beijing Hengpu
Acquisition, and Nami Holding (Cayman) Acquisition transactions --
were related party transactions. In each case, the Plaintiffs'
theory as to why the transaction was a related party transaction is
that Hebron and another party to the transaction were under common
control (e.g., by Liu).

In moving to dismiss the Section 10(b) claims, Hebron argues the
SAC does not adequately plead an actionable misstatement or
omission, scienter, and loss causation. And because there is not a
viable Section 10(b) claim, Hebron argues, the derivative Section
20(a) claim must also be dismissed.

A. The SAC's Section 10(b) claims

Judge Engelmayer first considers the Defendants' argument that the
SAC fails to adequately plead an actionable misstatement or
omission. In this analysis, the Judge first addresses two threshold
issues -- the standards governing when parties to a transaction are
related, and the Defendants' argument that dismissal is required
because the SAC relies on a short-seller's report -- and then
evaluates, transaction by transaction, whether the SAC adequately
pleads a failure to disclose that Hebron's counterparty was
related. The Court then considers defendants' argument that the SAC
does not adequately plead scienter.

Judge Engelmayer finds the SAC deficient in both respects, as it
fails to adequately plead (1) an actionable statement or omission
and (2) scienter. Considering all facts alleged, the SAC does not
"give rise to a strong inference," that the defendants were
reckless in not disclosing that the transactions at issue involved
related parties. On the contrary, the Judge finds that the SAC
falls far short of pleading that Hebron's decision not to so
characterize these transactions bespoke fraudulent intent.

Judge Engelmayer accordingly holds that the SAC fails to state a
claim under Section 10(b) and Rule 10b-5, because it does not
adequately plead either an actionable misstatement or omission or
the defendants' scienter. He therefore dismisses the SAC's Section
10(b) claims against all the Defendants.

B. Section 20(a) claims

In light of the dismissal of the Section 10(b) claims, dismissal is
also warranted of the SAC's claims against the Individual
Defendants under Section 20(a) of the Exchange Act. That is
because, to state a claim under Section 20(a), a complaint must
adequately allege "a primary violation by the controlled person."
Because the SAC has not done so, Judge Engelmayer opines that its
Section 20(a) claims must also be dismissed.

C. Leave to Replead

The Plaintiffs seek leave, in the event of dismissal, to file yet
another amended complaint. Judge Engelmayer denies this
application, and dismisses the SAC with prejudice, for two
independent reasons. First, where the problems with a claim are
"substantive" rather the result of an "inadequately or inartfully
pleaded" complaint, an opportunity to replead would be futile and
should be denied. That is so as to the deficiencies here, for the
reasons noted. Second, the Plaintiffs have had two opportunities to
amend, and were notified before filing the SAC that it would be
their last opportunity to amend. No additional opportunity is
warranted.

Conclusion

For the foregoing reasons, Judge Engelmayer dismisses the SAC in
its entirety. The dismissal is with prejudice as to all claims. The
Clerk of Court is respectfully directed to terminate the motions
pending at dockets 34 and 39, and to close the case.

A full-text copy of the Court's Sept. 22, 2021 Opinion & Order is
available at https://tinyurl.com/4bkfdj8x from Leagle.com.


HUTCHINSON CORRECTIONAL: Hughes Seeks to Certify Prisoner Class
----------------------------------------------------------------
In the class action lawsuit captioned as Charley James Hughes, Jr.
v. Dan Schnurr, Jr., Case No. 5:21-cv-03222-SAC (D. Kan.), the
Plaintiff asks the Court to enter an order certifying a class.

The Plaintiff contends that there are more than 200 Prisoners
housed in Hutchinson Correctional Facility (HCF) Central Unit that
will be affected by his action. He adds that due to their
incarceration and restrictions placed upon them by the Defendants
that joinder of all members in impracticable.

HCF is a state prison operated by the Kansas Department of
Corrections located in Hutchinson, Kansas. The prison was
originally known as the Kansas State Industrial Reformatory and
designed to house younger offenders.

A copy of the Plaintiff's motion to certify class dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/2Y3Fg25
at no extra charge.

The Plaintiff appears po se.[CC]

INNOVATIVE TECHNOLOGY: Labaton Named Lead Counsel in Plymouth Suit
------------------------------------------------------------------
In the case, PLYMOUTH COUNTY RETIREMENT ASSOCIATION, Plaintiff v.
INNOVATIVE TECHNOLOGY, INC., ATI INTERMEDIATE HOLDINGS, LLC, JIM
FUSARO, NIPUL PATEL, TROY ALSTEAD, ORLANDO D. ASHFORD, FRANK
CANNOVA, RON P. CORIO, BRAD FORTH, PETER JONNA, JASON LEE, ATI
INVESTMENT PARENT, LLC, OAKTREE ATI INVESTORS, L.P., OAKTREE POWER
OPPORTUNITIES FUND IV, L.P., OAKTREE POWER OPPORTUNITIES FUND IV
(PARALLEL), L.P., GOLDMAN SACHS & CO. LLC, J.P. MORGAN SECURITIES
LLC, GUGGENHEIM SECURITIES, LLC, CREDIT SUISSE SECURITIES (USA)
LLC, BARCLAYS CAPITAL INC., UBS SECURITIES LLC, COWEN AND COMPANY,
LLC, OPPENHEIMER & CO. INC., JOHNSON RICE & COMPANY L.L.C., ROTH
CAPITAL PARTNERS, LLC, PIPER SANDLER & CO., MUFG SECURITIES
AMERICAS INC., NOMURA SECURITIES INTERNATIONAL, INC., MORGAN
STANLEY & CO. LLC, Defendants, Case No. 21 Civ. 4390 (VM)
(S.D.N.Y.), Judge Victor Marrero of the U.S. District Court for the
Southern District of New York appoints the Institutional Investor
Group as the Lead Plaintiff, and appoints Labaton Sucharow LLP as
the Lead Counsel.

Background

Before the Court are four pending motions from (1) Discovery Global
Opportunity Master Fund Ltd., (2) the Plymouth County Retirement
Association ("PCRA") and the Carpenters Pension Trust Fund for
Northern California ("Northern California Carpenters," and
collectively with PCRA, the "Institutional Investor Group" or
"IIG"), (3) Erste Asset Management GmbH ("Erste AM"), and (4) the
Public Employees Retirement Association of New Mexico ("PERA"),
requesting appointment as lead plaintiff and lead counsel under the
Private Securities Litigation Reform Act ("PSLRA").

After all motions were filed, the Discovery Fund filed a notice of
non-opposition to the competing motions, in recognition that the
Discovery Fund did not suffer the greatest financial loss. The
Institutional Investor Group and PERA filed briefs opposing Erste
AM's appointment as lead plaintiff.

The claims in the class-action suit arise out of alleged violations
of the federal securities laws by Array Technologies, Inc. and
several individual defendants between Oct. 14, 2020, and May 11,
2021. Array manufactures ground-mounting systems used in solar
energy projects and is one of the world's largest producers in that
field. The Complaint alleges that Array failed to disclose, during
several public offerings, that it was experiencing issues with
rising steel and freight costs that had materially adverse impacts
on its operations. These rising steel and freight costs allegedly
caused Array to miss profit expectations and to revise its
full-year projections.

The two complaints filed on May 14, 2021, and June 30, 2021, by
Plaintiffs PCRA and Julian Keippel, individually and on behalf of
others similarly situated, allege that Array's conduct during the
Class Period violated Sections 11, 12(a)(2), and 15 of the
Securities Act of 1933, as well as Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder. Upon a previous review of the complaints and other
papers filed in both actions, the Court found that the two cases
involve the same or substantially similar underlying conduct,
claims, and parties such that consolidation is appropriate. Having
determined that consolidation is appropriate, the Court must
appoint the "most adequate plaintiff" to be lead plaintiff.

Discussion

A. Appointment of Lead Plaintiff

1. All Movants Filed Timely Motions

Although all the Movants filed their respective lead plaintiff
motions within the PSLRA's 60-day deadline, the Institutional
Investor Group argues that Erste AM's motion is ineligible for
consideration because Erste AM failed to file a sworn certification
in compliance with 15 U.S.C. Section 78u-4(a)(2)(A). Erste AM
explained that it has employed an e-signature practice that
requires uploading an "original pdf" of the certification to a
website that in turn generates a report on whether the document was
actually signed.

Judge Marrero finds that regardless of whether Erste AM's
certification was signed, Erste AM's motion is eligible for
consideration. There is a "dispute as to whether the certification
requirement of the PSLRA applies to candidates for lead plaintiffs
who did not file a complaint, as Section 78u-4(a)(2)(A) is titled
'Certification filed with Complaint.'" Since the issue remains
unsettled, the Judge finds that the existence or adequacy of
certifications, in compliance with 15 U.S.C. Section
78u-4(a)(2)(A), is not a determinative factor for appointing a lead
plaintiff.

2. Erste AM Suffered the Greatest Financial Loss

According to the Movants' papers submitted to the Court, Erste AM
claims the greatest financial loss ($4,979,096.66). This amount
outpaces the losses suffered by each of the other three Movants:
the Institutional Investor Group ($1,517,965), the Discovery Fund
($1,296,458), and PERA ($1,202,806).

Given that Erste AM's alleged losses are more than double the other
Movant's losses, Judge Marrero finds that Erste AM has the largest
financial interest in the litigation. Given that determination, and
that Erste AM has chosen competent counsel, the Judge finds that
Erste AM is the presumptively most adequate lead plaintiff.

3. Erste AM is Subject to Unique Defenses

The Institutional Investor Group and PERA argue that Erste AM's
status as presumptive lead plaintiff is rebuttable on the basis
that Erste AM's certification is deficient and thus subject to
"unique defenses that render it incapable of adequately
representing the class." It argues that Erste AM has failed to
establish its authority, financial interest, or eligibility to be
lead plaintiff. PERA more specifically argues that Erste AM lacks
standing to bring a securities claim.

Judge Marreo agrees that Erste AM is subject to unique defenses
regarding its standing to sue in the action, due to issues
concerning when the claims were assigned to Erste AM. For Erste AM
to have standing as lead plaintiff it must have a property right or
ownership interest in the claims alleged against Array. The Judge
holds that since Erste AM did not have standing to bring any other
claims as of May 14, 2021, he finds that Erste AM would be subject
to a unique standing defense that makes Erste AM unfit to
adequately represent the Class. The Judge also finds that Erste AM
has not established it has standing to sue on behalf of Erste 566.
Erste AM has failed even to establish any barriers that prevented
Erste 566 from bring the securities claims for the shares that
Erste 566 bought and sold.

4. The Institutional Investor Group Can Adequately Represent the
Class

Having concluded that Erste AM is subject to unique defenses that
render it unfit to be appointed lead plaintiff, Judge Marreo finds
that the Institutional Investor Group has the second greatest
financial interest in the action and is therefore the next
presumptively most adequate lead plaintiff. He also finds that the
Institutional Investor Group would likely satisfy the class action
requirements of Rule 23.

B. Lead Counsel

The Institutional Investor Group has selected Labaton Sucharow as
lead counsel, a representative of which has submitted a resume
setting forth the firm's attorneys and relevant experience. Judge
Marreo is persuaded that Labaton Sucharow can capably represent the
class, given the firm's experience in litigating class action
lawsuits. Accordingly, the Judge approves the Institutional
Investor Group's selection of Labaton Sucharow as its choice of
lead counsel.

Conclusion

For the reasons he stated, Judge Marreo granted the motions of the
Institutional Investor Group for appointment of lead plaintiff for
the proposed class in the action and for appointment of Labaton
Sucharow LLP as lead counsel for the class.

The Judge denied the motions of Discovery Global, Erste AM, PERA
for appointment as lead plaintiff and for lead counsel.

A full-text copy of the Court's Sept. 21, 2021 Decision & Order is
available at https://tinyurl.com/6uwfzppx from Leagle.com.


JUUL LABS: Faces Rootstown Suit Over Youth E-Cigarette Crisis
-------------------------------------------------------------
ROOTSTOWN LOCAL SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07519 (N.D. Cal., September 27, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.

According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.

Rootstown Local Schools is a unified school district with its
offices located at 440 State Route 44 in Rootstown, Ohio.

JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.

Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.

Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.

Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.

Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]

The Plaintiff is represented by:                                   
                                  
         
         James Frantz, Esq.
         William B. Shinoff, Esq.
         FRANTZ LAW GROUP, APLC
         402 W. Broadway, Ste. 860
         San Diego, CA 92101
         Telephone: (619) 233-5945
         Facsimile: (619) 525-7672
         E-mail: jpf@frantzlawgroup.com
                 wshinoff@frantzlawgroup.com

KENSINGTON REDWOOD: Tolosa Parties to Address Jurisdictional Issue
------------------------------------------------------------------
In the case, EMILY TOLOSA, Plaintiff v. KENSINGTON REDWOOD CITY
LLC, et al., Defendants, Case No. 21-cv-05564-MMC (N.D. Cal.),
Judge Maxine M. Chesney of the U.S. District Court for the Northern
District of California affords the parties leave to address a
jurisdictional issue not addressed in the parties' respective
filings, specifically, whether diversity of citizenship exists.

Before the Court is Tolosa's Motion to Remand Action to State
Court, filed Aug. 19, 2021. Defendant Kensington Senior Living, LLC
("KSL") has filed opposition, to which Tolosa has replied.

In the action, Tolosa asserts state law claims arising from her
employment by defendants KSL and Kensington Redwood City LLC
("KRC") at a "senior care facility" in San Mateo, California.
Tolosa seeks to proceed on her own behalf and on behalf of a
putative class.

In its Notice of Removal, KSL asserts jurisdiction exists over
Tolosa's claims under the Class Action Fairness Act ("CAFA"). Under
CAFA, a district court has jurisdiction over a class action where
the amount in controversy exceeds $5 million and the parties are
minimally diverse. Tolosa, in her motion to remand, has disputed
KSL's showing as to the requisite amount in controversy. Although
Tolosa has not addressed KSL's showing as to diversity of
citizenship, such showing appears deficient in two respects, Judge
Chesney holds.

First, KSL has made no showing as to KRC's citizenship. Although
KRC apparently had not been served at the time of removal, and
Tolosa has not, subsequent to the removal, filed proof of service
on KRC, "the existence of diversity is determined from the fact of
citizenship of the parties named and not from the fact of service."
Second, KSL, although stating it is "organized" under "the laws of
the State of Virginia," has not indicated "the State where it has
its principal place of business," and, consequently, KSL has not
established diversity under CAFA.

Accordingly, Judge Chesney affords the parties leave to file
supplemental briefing, solely for purposes of addressing the
question of diversity of citizenship:

      1. KSL's supplemental brief (not exceeding five pages in
length, exclusive of exhibits) was due Oct. 1, 2021.

      2. No later than Oct. 15, 2021, Tolosa will file any
supplemental responsive brief, not to exceed five pages in length,
exclusive of exhibits.

      3. The hearing on Tolosa's motion to remand is continued to
Nov. 5, 2021, at 9:00 a.m.

      4. In light of the foregoing, the Case Management Conference
is continued from Oct. 22, 2021, to Dec. 10, 2021, at 10:30 a.m. A
Joint Case Management Statement will be filed no later than Dec. 3,
2021.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/fudhtfny from Leagle.com.


LVNV FUNDING: Snyder Files FDCPA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against LVNV Funding LLC, et
al. The case is styled as Heather Snyder, individually and on
behalf of all others similarly situated v. LVNV Funding LLC,
Sequium Asset Solutions, LLC, Case No. 7:21-cv-07794-CS (S.D.N.Y.,
Sept. 17, 2021).

The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.

LVNV Funding LLC -- https://www.lvnvfunding.com/ -- is a company
that buys charged-off accounts from companies like credit card
issuers and personal loan lenders.[BN]

The Plaintiff is represented by:

          Tamir Saland, Esq.
          STEIN SAKS
          285 Passaic Street
          Hackensack, NJ 07601
          Phone: (201) 282-6500
          Fax: (201) 282-6501
          Email: tsaland@steinsakslegal.com


MARC JONES: Loses Bid to Dismiss Stemke Amended Complaint
----------------------------------------------------------
In the class action lawsuit captioned as CHARLENE STEMKE,
individually and on behalf of all others similarly situated, v.
MARC JONES CONSTRUCTION, LLC, a Louisiana company d/b/a Sunpro,
Case No. 5:21-cv-00274-JSM-PRL (M.D. Fla.), the Hon. Judge James S.
Moody, Jr. entered an order that:

   1. The Defendant's motion to dismiss the Plaintiff's amended
      complaint is denied.

   2. The Defendant shall file an answer to the Amended
      Complaint within 14 days of this Order.

The Court said, "The allegations in the Amended Complaint are not
so facially defective to allow the Court to deny certification
without permitting Plaintiff to take discovery to try to satisfy
the requirements of Rule 23. Sunpro is free to renew the arguments
once Plaintiff moves for class certification."

The Plaintiff's amended class action complaint alleges violations
of the Telephone Consumer Protection Act ("TCPA"). The following
facts are taken from the Amended Complaint and assumed to be true
at this stage.

The Plaintiff Charlene Stemke lives in Ocala, Florida. The
Defendant Marc Jones Construction, LLC d/b/a Sunpro is a rooftop
solar provider that solicits solar installations on properties
throughout the United States.

Sunpro engages in telemarketing to consumers in order to solicit
its solar energy solutions. Sunpro places calls to individuals
without their consent. These "cold calls" include calling
individuals who have registered on the National Do Not Call
Registry ("DNC"), who have never provided their phone number to
Sunpro, and who never consented to receive phone calls from
Sunpro.

Marc Jones is located in Mandeville, Louisana and is part of the
building equipment contractors industry.

A copy of the Court's order dated Sept. 23, 2021 is available from
PacerMonitor.com at https://bit.ly/2ZPBXwh at no extra charge.[CC]

MCLANE/SUNEAST INC: Ordaz Suit Removed to C.D. California
---------------------------------------------------------
The case is styled as Jose Ordaz, on behalf of himself, all others
similarly situated, and the general public v. McLane/Suneast, Inc.,
a Texas corporation; McLane Foodservice, Inc., a Texas corporation;
McLane Foodservice Distribution, Inc., a North Carolina
corporation; McLane Company, Inc., a Texas corporation; McLane
Beverage Distribution, Inc., a Texas corporation; DOES 1-50,
inclusive; Case No. CIVSB2108567 was removed from the San
Bernardino County Superior Court to the United States District
Court for the Central District of California on Sept. 17, 2021.

The District Court Clerk assigned Case No. 5:21-cv-01591-VAP-SHK to
the proceeding.

The nature of suit is stated as Other Labor.

McLane Company, Inc. -- https://www.mclaneco.com/ -- is one of the
largest supply chain services leaders, providing grocery and
foodservice supply chain solutions for convenience stores, mass
merchants, drug stores and chain restaurants throughout the United
States.[BN]

The Plaintiff is represented by:

          David G. Spivak, Esq.
          Maralle Messrelian, Esq.
          Maya Cheaitani, Esq.
          THE SPIVAK LAW FIRM
          16530 Ventura Blvd, Ste. 203
          Encino, CA 91436
          Phone: (213) 725-9094
          Fax: (213) 634-2485
          Email: david@spivaklaw.com
                 maralle@spivaklaw.com
                 maya@spivaklaw.com

The Defendants are represented by:

          David A Wimmer, Esq.
          Emily Grace Camastra, Esq.
          SWERDLOW FLORENCE SANCHEZ SWERDLOW AND WIMMER ALC
          9401 Wilshire Boulevard Suite 828
          Beverly Hills, CA 90212-2921
          Phone: (310) 288-3980
          Fax: (310) 733-1727
          Email: dwimmer@swerdlowlaw.com
                 ecamastra@swerdlowlaw.com

               - and -

          Sylvia Jihae Kim, Esq.
          BAKER AND HOSTETLER LLP
          600 Montgomery Street Suite 3100
          San Francisco, CA 94111
          Phone: (415) 659-2600
          Fax: (415) 659-2601
          Email: sjkim@bakerlaw.com

               - and -

          Amy E Beverlin, Esq.
          Matthew Charles Kane, Esq.
          BAKER AND HOSTETLER LLP
          11601 Wilshire Boulevard Suite 1400
          Los Angeles, CA 90025
          Phone: (310) 820-8800
          Fax: (310) 820-8859
          Email: abeverlin@bakerlaw.com
                 mkane@bakerlaw.com


MDL 2641: Alarcon Suit Moved From IVC Filters MDL to C.D. Calif.
----------------------------------------------------------------
In the case, IN RE: Bard IVC Filters Products Liability Litigation.
Maria Alarcon, an individual, Plaintiff v. C. R. Bard, Inc., a New
Jersey corporation; and Bard Peripheral Vascular, Inc., an Arizona
corporation, Defendants, MDL No. 15-02641-PHX-DGC, Case No.
CV-17-00197-PHX-DGC (D. Ariz.), Judge David G. Campbell of the U.S.
District Court for the District of Arizona ordered the Clerk of the
District to transfer Alarcon v. C. R. Bard, Inc., Case No.
CV-17-00197, to the U.S. District Court for the Central District of
California, Los Angeles Division, for further proceedings.

The multidistrict litigation proceeding ("MDL") involves personal
injury cases brought against Defendants C. R. Bard, Inc. and Bard
Peripheral Vascular, Inc. (collectively, "Bard"). Bard manufactures
and markets medical devices, including inferior vena cava ("IVC")
filters. The MDL Plaintiffs received implants of Bard IVC filters
and claim they are defective and caused the Plaintiffs to suffer
serious injury or death.

The MDL Plaintiffs allege that Bard filters are more dangerous than
other IVC filters because they have higher risks of tilting,
perforating the IVC, or fracturing and migrating to vital organs.
THe Plaintiffs further allege that Bard failed to warn patients and
physicians about these higher risks. The Defendants dispute these
allegations, contending that Bard filters are safe and effective,
that their complication rates are low and comparable to those of
other IVC filters, and that the medical community is aware of the
risks associated with IVC filters.

The master complaint contains 17 state law claims: manufacturing
defect (Counts I and V); failure to warn (Counts II and VII);
design defect (Counts III and IV); failure to recall (Count VI);
misrepresentation (Counts VIII and XII); negligence per se (Count
IX); breach of warranty (Counts X and XI); concealment (Count
XIII); consumer fraud and deceptive trade practices (Count XIV);
loss of consortium (Count XV); and wrongful death and survival
(Counts XVI and XVII). The Plaintiffs seek both compensatory and
punitive damages.

The primary orders governing pretrial management of the MDL are a
series of CMOs, along with certain amendments. To date, the Court
has issued 49 Case Management Orders ("CMOs").

CMO 1, entered Oct. 30, 2015, appointed Co-Lead/Liaison Counsel for
the Plaintiffs to manage the litigation on behalf of Plaintiffs,
and set out the responsibilities of Lead Counsel. The Plaintiffs'
Lead Counsel has changed since the inception of the MDL. Mr. Ramon
Lopez, of Lopez McHugh, LLP, in Newport Beach, California, and Mr.
Mark O'Connor, of Beus Gilbert PLLC, in Phoenix, Arizona, are now
the Lead Counsel for the Plaintiffs. Mr. Richard North of Nelson
Mullins Riley & Scarborough, LLP, in Atlanta, Georgia, is the
Defendants' Lead Counsel.

The MDL was transferred to the Court in August 2015 when 22 cases
had been filed. More than 8,000 cases had been filed when the MDL
closed on May 31, 2019.

Thousands of cases pending in the MDL have settled. The remaining
cases no longer benefit from centralized proceedings. Since August
2019, the Court has suggested the remand of more than 100 cases
that were transferred to the MDL by the United States Judicial
Panel for Multidistrict Litigation, and has transferred to
appropriate districts more than 2,500 cases that were directly
filed in the MDL.

The Court erroneously dismissed one case, Alarcon as duplicative.
The Clerk's Office has reopened the case. The counsel for Plaintiff
Alarcon has informed the Court that the case has not settled and
remains pending.

Judge Campbell explains that not all MDL cases were transferred to
the Court by the Panel. Pursuant to ("CMO 4"), many cases were
filed directly in the MDL through use of a short form complaint.
The Plaintiffs were required to identify in the short form
complaint the district where venue would be proper absent direct
filing in the MDL. CMO 4 provides that, upon the MDL's closure,
each pending direct-filed case will be transferred to the district
identified in the short form complaint.

Plaintiff Alarcon's short-form complaint states that she is a
California resident and that she resided there at the time of her
implant and alleged injuries. The complaint identifies the Central
District of California, Los Angeles Division, as the District and
Division in which venue would be proper absent direct filing.

Pursuant to 28 U.S.C. Section 1404(a), Judge Campbell will transfer
the Plaintiff's case to that District and Division. The Defendants'
right to challenge venue and personal jurisdiction upon transfer is
preserved. The Clerk of the District is directed to transfer
Alarcon to the Central District of California, Los Angeles
Division, for further proceedings.

A full-text copy of the Court's Sept. 22, 2021 Transfer Order is
available at https://tinyurl.com/2j9uz29w from Leagle.com.


MDL 2682: Bid to Compel Docs Production in Antitrust Suit Denied
----------------------------------------------------------------
In the case, IN RE: DIISOCYANATES ANTITRUST LITIGATION. This
Document Relates to: All Cases, Master Docket Misc. No. 18-1001,
MDL No. 2862 (W.D. Pa.), Judge Donetta W. Ambrose of the U.S.
District Court for the Western District of Pennsylvania denied the
Plaintiffs' Motion to Compel Foreign Defendant, Wanhua Chemical
Group Co., Ltd., to Produce Documents and Information Related to
Subsidiaries, Wanhua Chemical US Holding Inc. and Wanhua Chemical
US Operations LLC.

Background

The multi-district litigation stems from an alleged conspiracy to
reduce supply and increase price for methylene diphenyl
diisocyanate ("MDI") and toluene diisocyanate ("TDI"), precursor
ingredients for the manufacture of polyurethane foam and
thermoplastic polyurethanes.

The Plaintiffs have filed a Motion to Compel Foreign Defendant,
Wanhua Chemical Group Co., Ltd. ("Wanhua China"), to Produce
Documents and Information Related to Subsidaries, Wanhua Chemical
US Holding Inc. ("Holding") and Wanhua Chemical US Operations LLC
("Operations"). Specifically, they seek an order compelling Wanhua
China to respond to Plaintiffs' Interrogatory Nos. 3 and 5 and
Request for Production Nos. 6, 10,3 13, and 26 as it relates to
Holding and Operations suggesting that the responses are relevant
to the question of personal jurisdiction over Wanhua China and that
such discovery is proportional. Wanhua China has filed a Brief in
Opposition to Plaintiffs' Motion. The Motion is now ripe for
review.

On March 9, 2020, the Court issued an order permitting limited
jurisdictional discovery from the foreign Defendants, including
Wanhua China. During this period, the Plaintiffs filed a Motion to
Compel Wanhua to answer jurisdictional discovery requests from the
same set of discovery at issue here today.

On Dec. 18, 2020, the Motion was granted in part and denied in
part. The only request in dispute at that time that was relevant to
the subsidiaries, Holding and Operations, was Interrogatory No. 1.
Therein, the Plaintiffs requested that Wanhua China identify all of
its related entities located in and/or having conducted,
advertised, promoted, or solicited any business in the United
States; the amount of ownership in the same; and the nature of the
business.

Judge Ambrose held, inter alia, that Interrogatory No. 1 as stated
was overreaching but that a relevant and proportionate response
would include the identification of Holding and Operations because
"Holding and Operations were formed to evaluate, design, construct,
and operate an MDI production plant in the U.S." Therefore, she
ordered Wanhua China to respond to Interrogatory No. 1 as it
relates to Holding and Operations.

At a status conference after the ruling, the Plaintiffs expressed
that they intended Holdings and Operation to be included in all of
the discovery requests and not limited to Interrogatory No. 1. In
response, Judge Ambrose stated that her order as it related to
Holding and Operations only dealt with Interrogatory No. 1.

Thereafter, the Plaintiffs contacted Wanhua China to request
supplemental responses to 18 of the previous jurisdictional
discovery requests in relation to Holding and Operations. Wanhua
China agreed to respond to five of the prior discovery requests as
it relates to Holding and Operations. The Plaintiffs now seek to
compel responses to six of the prior discovery requests as they
relates to Holding and Operation.

Discussion

The Plaintiffs argue that responses to Interrogatory Nos. 3 and 5
and Request for Production Nos. 6, 10, 13, and 26 as it relates to
Holding and Operations are reasonable and proportionate. T

The requests provide as follows:

      a. Interrogatory No. 3: Identify any of Your Employees who
have also worked for or received any benefits from any Related
Entity or other Entity identified in Your responses to
Interrogatory Nos. 1 and 2, including the name of the Employee; the
years that the Employee worked for You; the years that the Employee
work for or received benefits from the Related Entity or other
Entity; and the positions that the Employee held with You and with
the Related Entity or other Entity.

      b. Interrogatory No. 5: Identify any of Your Employees that
have had any supervisory, managerial or other oversight
responsibilities over the activities of any Related Entity or other
Entity identified in Your response to Interrogatory Nos. 1 and 2.
      c. Request No. 6: All Documents that relate to Your
development or preparation with any Related entity located in
and/or having conducted, advertised, promoted or solicited business
in the United States of any joint business plans concerning,
without limitation, manufacturing, sales, production, distribution,
marketing or budgeting related to Class Products.

      d. Request No. 10: Documents sufficient ot identify any of
Your present or former officers, directors or Employees who were
also an officer, director or Employee of a Related Entity located
in and/or having conducted, advertised, promoted or solicited
business in the United States, either concurrently or during
separate time periods.

      e. Request No. 13: Documents related to Your knowledge or
participation in the hiring, firing, promotion, discipline,
demotion or other personnel decision or action with respect to any
past or Employee of any Related Entity located in or having
conducted, advertised, promoted, or solicited business in the
United States.

      f. Request No. 26: All Documents relating to any advice,
supervision or control by You with respect to any Related Entity in
the United States, including, but not limited to, Documents
reflecting the extent to which You were informed regarding the
day-to-day business operations of any Related Entity located in or
having conducted, advertised, promoted, or solicited business in
the United States.

In support of their argument, the Plaintiffs do not address each
discovery request separately. Rather, they make two general
arguments: 1) The information sought relative to Holding and
Operations is relevant; and 2) The requested discovery is
reasonable and proportionate. As to relevance, the Plaintiffs more
specifically argue that discovery sought goes to "core information"
as it relates to jurisdiction because they concern Wanhua China's
relationship to and control over domestic entities. With regard to
reasonableness and proportionality, the Plaintiffs focus on the
small number of requests they are now seeking and suggest that
because Wanhua China has already agreed to answer some requests it
should not be burdensome to answer these other requests.

In response, Wanhua China first argues that the Plaintiffs have
failed to meet their burden as the disputed discovery requests are
not within the scope of Rule 26(b)(1) because they are not relevant
to Plaintiff's claims. More specifically, Wanhua China suggests
that because the MDI plants were never constructed, neither Holding
nor Operations manufactured or sold MDI or TDI so their actions
could not have given rise to the Plaintiffs' conspiracy claim to
fix MDI and TDI prices through "lockstep price increases." Nor
could they have implemented an agreement "to limit production of
MDI and TDI." Rather, Wanhua China submits they did the exact
opposite by spending over $100 million dollars to expand production
in the United States.

Additionally, Wanhua China argues the Plaintiffs have failed to
meet their burden as the discovery requests are not proportionate
because they impose a substantial burden that outweighs the
benefits. To that end, Wanhua China points out that it has already
agreed to answer requests related to ownership interests,
distribution or transfer of cash or assets, and shared assets as it
relates to Holding and Operations. The remaining requests, Wanhua
China submits, go beyond the scope of reasonable discovery because
they seek disproportionately wide-ranging information.

Upon careful consideration of the arguments of the parties and
looking at the discovery requests at issue, Judge Ambrose finds
that, while the discovery requests may be relevant, they are
overbroad, overreach, and are not proportional to the needs of the
case as stated. That is not to say, however, that responses to
significantly more limited and focused requests should not be made.
To that end, the Judge is ordering the parties to meet and confer
within the next three weeks to discuss more proportionate and
specifically focused discovery requests as they relate to Holding
and Operations in relation to Interrogatory Nos. 3 and 5 and
Requests for Production Nos. 6, 13 and 26 only.

The parties are reminded that jurisdictional discovery is at issue,
not merits discovery. With that said, Judge Ambrose is hopeful that
the parties can now reach an agreement and will not need further
court intervention. If the parties cannot reach an agreement on
more proportionate and specifically focused and limited requests as
they relate to Holding and Operations, however, the parties may
file a new motion with the Court. Therein, the parties must
delineate the newly specifically focused discovery request
(pertaining to Interrogatory Nos. 3 and 5 and Requests for
Production Nos. 6, 13, and 26 only) and the specific reason(s) each
request is proportionate.

Disposition

Upon consideration of the Plaintiffs' Motion to Compel, Judge
Ambrose denied the Motion.

A full-text copy of the Court's Sept. 21, 2021 Opinion & Order is
available at https://tinyurl.com/4rrusdbt from Leagle.com.


MDL 2918: California Court Narrows Claims in HDD SAs Antitrust Suit
-------------------------------------------------------------------
In the case, IN RE: HARD DISK DRIVE SUSPENSION ASSEMBLIES ANTITRUST
LITIGATION. This Document Relates to: END-USER ACTIONS and RESELLER
ACTIONS, Case No. 19-md-02918-MMC (N.D. Cal.), Judge Maxine M.
Chesney of the U.S. District Court for the Northern District of
California granted in part and denied in part the Defendants'
Motion, filed Jan. 29, 2021, to Dismiss:

   (1) End-Users' Second Amended Consolidated Class Action
       Complaint; and

   (2) Reseller Plaintiffs' Second Amended Consolidated Class
       Action Complaint.
The Plaintiffs, in their respective operative complaints,
specifically, the End-User Plaintiffs' Second Amended Consolidated
Class Action Complaint ("End-User SAC") and the Reseller
Plaintiffs' Second Consolidated Amended Complaint ("Reseller SAC"),
assert state law claims based on their allegations that defendants
engaged in a conspiracy to fix the prices of "hard disk drive
('HDD') suspension assemblies" ("SAs").

The Plaintiffs allege "HDDs use magnetism to write, retrieve and
store vast amounts of information electronically," and are
"comprised of, among other things, spinning magnetic disks and
magnetic heads that fly over the disks, reading and writing the
information contained on the disks." The Plaintiffs further allege
SAs "hold the magnetic heads in position over the disks," and,
consequently, are "essential to the functioning of HDDs."

According to the Plaintiffs, the Defendants manufacture and sell
SAs to "HDD manufacturers, primarily Seagate, Western Digital and
Toshiba," which, in turn, sell HDDs directly to customers or sell
them to companies that incorporate HDDs into other products, such
as desktop and laptop customers.

The End-User Plaintiffs, comprising 62 individuals, allege they
purchased one or more HDDs, and/or one or more products containing
an HDD, such as a "HP Pavilion G6 notebook computer." The Reseller
Plaintiffs, comprising four companies and one individual, allege
they purchased "for resale" products "containing HDD suspension
assemblies," such as "Seagate and Western Digital hard drives" or
an "MSI computer." In both cases, the Plaintiffs allege they paid
"inflated prices" because the prices defendants charged HDD
manufacturers were "passed on" to the Plaintiffs through the chain
of distribution.

Based on these allegations, the End-User Plaintiffs and the
Reseller Plaintiffs, on their own behalf and on behalf of putative
class members, assert the following claims under the laws of
various states: (1) First Claim for Relief, titled "Violation of
State Antitrust Statutes," (2) Second Claim for Relief, titled
"Violation of State Consumer Protection Statutes," and (3) Third
Claim for Relief, titled "Unjust Enrichment."

Before the Court is the Defendants' Motion to Dismiss (1) the
End-User SAC and (2) the Reseller SAC. The End-User Plaintiffs and
the Reseller Plaintiffs have filed separate oppositions, and the
Defendants have filed a single reply.

Discussion

The Defendants argue each claim asserted by the End-User Plaintiffs
and the Reseller Plaintiffs is subject to dismissal for lack of
standing and failure to state a claim.

A. Article III Standing

To satisfy Article III's standing requirements, a "plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that it is
likely to be redressed by a favorable judicial decision."

The Defendants contend the Plaintiffs' individual claims are
subject to dismissal, pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure, for failure to allege sufficient facts to
support a finding that the claimed injury, payment of inflated
prices, can be fairly traced to the Defendants. Additionally, the
Defendants argue, some of the claims the Plaintiffs Seek to assert
on behalf of putative class members are subject to dismissal for
lack of an injury in fact.

Judge Chesney holds that the Plaintiffs' individual claims are not
subject to dismissal for lack of Article III standing. Among other
things, the Judge finds that (i) the Defendants have cited no case
setting a particular threshold percentage a plaintiff must meet to
establish standing to challenge an alleged price-fixing conspiracy,
and no such case appears to exist; and (ii) although the named
plaintiffs and putative class members may have purchased different
products containing SAs, the Judge finds such distinctions do not
warrant dismissal of the class claims for lack of standing.
Accordingly, the Plaintiffs' class claims are not subject to
dismissal for lack of Article III standing.

B. Failure To State A Claim

The Defendants argue the Plaintiffs' claims, for several reasons,
are subject to dismissal for failure to state a claim, pursuant to
Rule 12(b)(6).

1. First Claim for Relief

As noted, the First Claim for Relief in each SAC asserts violations
of state antitrust statutes. The Reseller Plaintiffs assert such
claims under the laws of California, Michigan, Minnesota, New York,
and North Carolina. The End-User Plaintiffs assert claims under the
laws of those five states, and, in addition, under the laws of
Arizona, the District of Columbia, Hawaii, Iowa, Kansas, Maine,
Maryland, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico,
North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah,
Vermont, West Virginia, and Wisconsin.

a. Retroactivity

The Defendants argue that, to the extent the End-User Plaintiffs'
First Claim for Relief is based on violations of antitrust statutes
enacted by Maryland and Rhode Island, the First Claim for Relief is
subject to dismissal for the asserted reason the statutes "only
allow the Attorney General to bring suit on behalf of indirect
purchasers." In opposition, the End-User Plaintiffs note that
Maryland and Rhode Island have statutes that allow indirect
purchasers to bring suit on their own behalf. In reply, the
Defendants, implicitly acknowledging that indirect purchasers may
now bring claims under Rhode Island and Maryland statutes, observe
the End-User Plaintiffs have not argued the statutes allowing such
claims apply retroactively.

Judge Chesney finds that (i) as the End-User Plaintiffs allege the
"Class Period" ended in "May 2016," a date preceding the referenced
amendment, the End-User Plaintiffs' claim under the Maryland
Antitrust Act ("MAA") is subject to dismissal; and the (ii) the
End-User Plaintiffs' claim under the Rhode Island Antitrust Act
("RIAA") is not subject to dismissal.

b. Antitrust Standing

The Defendants argue all of the state antitrust claims are subject
to dismissal for failure to allege sufficient facts to demonstrate
"antitrust standing." Judge Chesney holds that all AGS factors
weigh in favor of finding antitrust standing exists. She thus finds
the End-User Plaintiffs' and the Reseller Plaintiffs' respective
First Claims for Relief are not subject to dismissal for lack of
antitrust standing.

c. Application of State Antitrust Statutes to Interstate Sales

The Defendants argue that, to the extent the End-User Plaintiffs'
First Claim for Relief is based on violations of antitrust statutes
enacted by Mississippi, Tennessee, and Wisconsin, and the End-User
Plaintiffs' and Reseller Plaintiffs' respective First Claims for
Relief are based on violations of an antirust statute enacted by
North Carolina, the claims are subject to dismissal for the
asserted reason that the antitrust statutes enacted by those four
states "do not apply to the interstate sales alleged."
Judge Chesney holds that (i) the End-User Plaintiffs' claim under
the Mississippi Antitrust Act ("MSAA") is subject to dismissal;
(ii) the Plaintiffs' respective claims under Section 75-2.1 of the
North Carolina General Statues are not subject to dismissal; (iii)
the End-User Plaintiffs' claim under the Tennessee Trade Practices
Act ("TTPA") is not subject to dismissal; and (iv) the  End-User
Plaintiffs' claim under the Wisconsin Antitrust Act ("WAA") is not
subject to dismissal.

2. Second Claim for Relief

As noted, the Second Claim for Relief, in each SAC, asserts
violations of state consumer protection statutes. The Reseller
Plaintiffs assert claims under the laws of California, New York,
and North Carolina. The End-User Plaintiffs assert claims under the
laws of those three states, and, in addition, under the laws of
Arkansas, the District of Columbia, Florida, Hawaii, Massachusetts,
Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Mexico, North Dakota, Oregon, Rhode Island, South
Carolina, South Dakota, Utah, Vermont, and Virginia.

a. AGS Factors

The Defendants argue that, to the extent the End-User Plaintiffs'
Second Claim for Relief is based on violations of consumer
protection statutes enacted by Arkansas, Florida, Nebraska, and
Vermont, and the End-User Plaintiffs' and the Reseller Plaintiffs'
respective Second Claims for Relief are based on violations of
consumer protection statutes enacted by California, New York, and
North Carolina, the claims are subject to dismissal on the asserted
ground that those seven states "either apply the AGS factors or
have standing requirements comparable to the AGS analysis
sufficient to bar the Plaintiffs' claims."

Assuming, arguendo, each of the referenced seven states requires an
indirect purchaser seeking relief under a consumer protection
statute to demonstrate antitrust standing under the AGS factors or
comparable factors, Judge Chesney finds, for the reasons set forth
with respect to the Plaintiffs' statutory antitrust claims, the
Plaintiffs have sufficiently pleaded antitrust standing.
Accordingly, none of the Plaintiffs' claims alleging violations of
consumer protection statutes is subject to dismissal for lack of
antitrust standing.

b. Unconscionable Conduct

The Defendants argue that, to the extent the End-User Plaintiffs'
Second Claim for Relief is based on violations of consumer
protection statutes enacted by Arkansas and New Mexico, the claims,
which are based solely on the Defendants' having engaged in a
price-fixing conspiracy, are subject to dismissal for failure to
allege any "unconscionable conduct" by the Defendants.

Judge Chesney holds that (i) the End-User's claim under the
Arkansas Deceptive Trade Practices Act ("ADTPA") is not subject to
dismissal for failure to allege an unconscionable act; and (ii) the
End-User Plaintiff's claim under the New Mexico Unfair Practices
Act ("NMUPA") is subject to dismissal.

c. Rule 9(b)

The Defendants argue that, to the extent the End-User Plaintiffs'
Second Claim for Relief is based on violations of consumer
protection statutes enacted by Florida, Michigan, and Minnesota,
the claims are subject to dismissal for the asserted reason those
statutes only apply to claims "based in fraud" and the End-User
Plaintiffs have not complied with the heightened pleading
requirements of Rule 9(b).

Judge Chesney holds that (i) the End-User Plaintiffs' claim under
the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") is
not subject to dismissal under Rule 9(b); (ii) the End-User
Plaintiff's claim under the Michigan Consumer Protection Act
("MCPA") is subject to dismissal; and (iii) except to the extent
such claim is based on price fixing, the End-User Plaintiff's claim
under the Minnesota Consumer Fraud Act ("MCFA") is subject to
dismissal.

d. Application of Statutes to Interstate Sales

The Defendants argue that, to the extent the End-User Plaintiffs'
Second Claim for Relief is based on violations of consumer
protection statutes enacted by Massachusetts and New Hampshire, and
the End-User Plaintiffs' and the Reseller Plaintiffs' respective
Second Claims for Relief are based on violations of a consumer
protection statute enacted by North Carolina, the claims are
subject to dismissal for the asserted reason that the consumer
protection statutes enacted by those three states "do not reach the
interstate sales alleged."

Judge Chesney finds that (i) the End-User Plaintiff's claim under
Chapter 93A of the General Laws of Massachusetts is not subject to
dismissal; (ii) as the End-User SAC lacks any allegation that a
defendant engaged in any trade or commerce in New Hampshire, the
End-User's claim under the New Hampshire's Consumer Protection Act
("NHCPA") is subject to dismissal; and (iii) the End-User
Plaintiffs' and the Reseller Plaintiffs' respective claims under
the North Carolina Unfair Trade Practices Act ("NCUTPA") are not
subject to dismissal.

e. Lack of Enumerated Violation

The Defendants argue that, to the extent End-User Plaintiffs'
Second Claim for Relief is based on violations of consumer
protection statutes enacted by Arkansas, Nevada, Oregon, Rhode
Island, South Dakota, Utah, and Virginia, the claim is subject to
dismissal on the asserted ground that the statutes in those states
"are limited in coverage to specified enumerated conduct" that does
not include the conduct on which End-User Plaintiffs base their
claims.

Judge Chesney holds that (i) the End-User Plaintiffs' ADTPA claim
is not subject to dismissal; (ii) the End-User Plaintiffs' Nevada
Deceptive Trade Practices Act ("NDTPA") claim is subject to
dismissal to the extent it is based on omissions and
misrepresentations, but not to the extent it is based on price
fixing; (iii) the End-User Plaintiffs' Oregon Unlawful Trade
Practices Act ("OUTPA") claim is subject to dismissal; (iv) the
End-User's Rhode Island Unfair Trade Practices and Consumer
Protection Act ("RIUTPCPA") claim is subject to dismissal to the
extent it is based on omissions and misrepresentations, but not to
the extent it is based on price fixing; (v) the End-User
Plaintiffs' South Dakota Deceptive Trade Practices and Consumer
Protection Act ("SDDTPCPA") claim is subject to dismissal; (v) the
End-User Plaintiffs' Utah Consumer Sales Practices Act ("UCSPA")
claim is subject to dismissal; (vi) the End-User Plaintiffs' Utah
Consumer Sales Practices Act ("UCSPA") claim is subject to
dismissal; and (vii) the End-User Plaintiffs' Virginia Consumer
Protection Act ("VCPA") claim is subject to dismissal.

f. Reliance

The Defendants contend the End-User Plaintiffs' claims under the
ADTPA, i.e., the consumer protection statute enacted by Arkansas,
as well as the End-User Plaintiffs' and the Reseller Plaintiffs'
respective claims under a consumer protection statute enacted by
California, are subject to dismissal for failure to plead
reliance.

Judge Chesney holds that (i) the End-User Plaintiffs' ADTPA claim
is not subject to dismissal for failure to allege reliance; and
(ii) the End-User Plaintiffs' and the Reseller Plaintiffs'
respective California's Unfair Competition Law ("UCL") claims are
subject to dismissal to the extent based on misrepresentations and
omissions, but not to the extent based on price fixing.

g. Applicability of Missouri Statute to Indirect Purchasers

The Defendants contend the End-User Plaintiffs' claim under the
consumer protection statute enacted by Missouri does not encompass
price-fixing claims brought by indirect purchasers. The Missouri
Merchandising Practices Act ("MMPA") prohibits "any deception,
fraud, false pretense, false promise, misrepresentation, unfair
practice or the concealment, suppression, or omission of any
material fact in connection with the sale or advertisement of any
merchandise in trade or commerce in or from the state of
Missouri."

Judge Chesney holds that the policy set forth in the harmonization
statute represents the Missouri legislature's determination that
antitrust claims asserted under Missouri law be harmonized with
federal authority, and the Judge agrees with the district courts
that have found such stated policy would be undermined by allowing
an indirect purchaser to bring an otherwise barred antitrust claim
under the guise of a general consumer protection statute.
Accordingly, the End-User Plaintiffs' MMPA claim is subject to
dismissal.

h. Class Action Bar

The Defendants argue that the End-User Plaintiffs' claims under
consumer protection statutes enacted by Montana and South Carolina
cannot be brought on behalf of a class. In so arguing, they rely on
statutes enacted by those states that prohibit class actions.

Judge Chesney holds that (i) the End-User Plaintiffs' Montana
Consumer Protection Act ("MCPA") class claims are not subject to
dismissal; and (ii) the End-User Plaintiffs' South Carolina Unfair
Trade Practices Act ("SCUTPA") class claims are not subject to
dismissal.

3. Third Claim for Relief

As noted, the Third Claim for Relief in each SAC asserts claims for
"unjust enrichment." The Reseller Plaintiffs assert their claims
under the laws of California, Michigan, Minnesota, New York, and
North Carolina. The End-User Plaintiffs assert claims under the
laws of those five states, and, in addition, under the laws of
Arizona, Arkansas, the District of Columbia, Florida, Hawaii, Iowa,
Kansas, Maine, Maryland, Massachusetts, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota,
Oregon, Rhode Island, South Carolina, South Dakota, Tennessee,
Utah, Vermont, Virginia, West Virginia and Wisconsin.

The Defendants argue certain of the unjust enrichment claims are
subject to dismissal, for several reasons, which Judge Chesney next
considers in turn.

a. Unjust Enrichment Not Recognized As Cause of Action

The Defendants first argue unjust enrichment is not a recognized
cause of action. As the authorities cited by the Defendants address
only California law and Mississippi law, Judge Chesney Court
understands the argument pertains only to those two states. She
holds that (i) the End-User Plaintiffs' and the Reseller
Plaintiffs' respective unjust enrichment claims under California
law are subject to dismissal and (ii) the End-User Plaintiffs'
unjust enrichment claim under Mississippi law is subject to
dismissal.

b. Lack of Illinois Brick Repealer Statute

The Defendants argue unjust enrichment claims that are "nothing
more than an attempted end-run around Illinois Brick's prohibition"
should be dismissed. Although they do not expressly identify the
particular unjust enrichment claims they believe fail as a result
of Illinois Brick, Judge Chesney construes the argument to be
directed to claims brought under Missouri and Virginia law, those
being the only states as to which, in earlier sections of the
motion to dismiss, the Defendants argue Illinois Brick bars the
Plaintiffs from pursuing state law claims based on alleged price
fixing. She finds that the End-User Plaintiffs' unjust enrichment
claims under Missouri law and Virginia law are subject to
dismissal.

c. No Direct Benefit Conferred/Lack of Privity

The Defendants argue unjust enrichment claims should be dismissed
where "the purchasers are 'too attenuated,' not in privity with the
defendant, or where the Plaintiffs have conferred no benefit
directly on the Defendants." Judge Chesney understands the
Defendants' argument to be directed at unjust enrichment claims
asserted under the laws of Arizona, Florida, Kansas, Maine,
Michigan, New York, North Carolina, and North Dakota.

She finds that (i) the End-User Plaintiffs' unjust enrichment claim
under Arizona law is not subject to dismissal; (ii) the End-User
Plaintiffs' unjust enrichment claim under Florida law is subject to
dismissal; (iii) the End-User Plaintiff's unjust enrichment claim
under Kansas law is not subject to dismissal; (iv) the End-User
Plaintiffs' unjust enrichment claim under Maine law is not subject
to dismissal; (v) the End-User Plaintiffs' and the Reseller
Plaintiffs' respective unjust enrichment claims under Michigan law
are not subject to dismissal; (vi) the End-User Plaintiffs' and the
Reseller Plaintiffs' respective unjust enrichment claims under New
York law are not subject to dismissal; (vi) the End-User
Plaintiffs' and the Reseller Plaintiffs' respective unjust
enrichment claims under North Carolina law are subject to
dismissal; and (vii) the End-User Plaintiffs' unjust enrichment
claim under North Dakota law is subject to dismissal.

d. Lack of Viable Antitrust or Consumer Protection Claim

Lastly, the Defendants argue that, as to any given state, to the
extent the Plaintiffs' price-fixing claims and consumer protection
claims have been dismissed, i.e., the only remaining claim under
the laws of that state is an unjust enrichment claim based on price
fixing, such claim likewise should be dismissed. At this point, in
light of the Court's findings set forth, Judge Chesney addresses
such argument only as it pertains to the unjust enrichment claim
brought by the End-User Plaintiffs under Maryland law.

As discussed, the End-User Plaintiffs' claim under the MAA is
subject to dismissal because, at the time of the alleged
price-fixing conspiracy, Maryland barred state antitrust claims by
indirect purchasers, and, for the reasons set forth with respect to
dismissal of the End-User Plaintiffs' unjust enrichment claims
under Missouri and Virginia law, Judge Chesney finds the End-User
Plaintiffs' unjust enrichment claim under Maryland law likewise
fails; specifically, the Judge finds allowing such claim to proceed
would undermine then-existing Maryland state policy. Accordingly,
the End-User Plaintiffs' unjust enrichment claim under Maryland law
is subject to dismissal.

Conclusion

For the reasons she stated, Judge Chesney granted in part and
denied in part the Defendants' motion to dismiss the SAC.

To the extent the End-User Plaintiffs' First Claim for Relief is
brought under the laws of Maryland and Mississippi, the motion is
granted. To the extent the End-User Plaintiffs' Second Claim for
Relief is brought under the laws of Michigan, Missouri, New
Hampshire, New Mexico, Oregon, South Dakota, Utah, and Virginia,
the motion is granted.

To the extent the End-User Plaintiffs' and the Reseller Plaintiffs'
respective Second Claims for Relief are brought under the law of
California and are based on alleged omissions or
misrepresentations, the motion is granted. To the extent End-User
Plaintiffs' Second Claim for Relief is brought under the laws of
Minnesota, Nevada, and Rhode Island and is based on alleged
omissions or misrepresentations, the motion is granted. To the
extent End-User Plaintiffs' Third Claim for Relief is brought under
the laws of Florida, Maryland, Mississippi, Missouri, North Dakota,
and Virginia, the motion is granted. To the extent the End-User
Plaintiffs' and the Reseller Plaintiffs' respective Third Claims
for Relief are brought under the laws of California and North
Carolina, the motion is granted. In all other respects, the motion
is denied.

The instant actions will proceed on the remaining claims in the
SACs. In the event, however, the End-User Plaintiffs and/or the
Reseller Plaintiffs wish to file a Third Amended Complaint for
purposes of curing any of the deficiencies, such amended pleading
will be filed no later than Oct. 22, 2021; the Plaintiffs may not,
however, add any new claims or new Defendants without first
obtaining leave of Court.

A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/9aketu54 from Leagle.com.


MDL 2972: Court Enters Case Management Order in Data Breach Suit
----------------------------------------------------------------
In the class action lawsuit RE: BLACKBAUD, INC., CUSTOMER DATA
BREACH LITIGATION, MDL No. 2972, Case No. 3:21-cv-02461-JMC
(D.S.C.), the Hon. Judge J. Michelle Childs entered a case
management order:

               Even                           Deadline

  -- Phase I- discovery                     November 30, 2021

  -- Phase II- class certification          January 31, 2022
     discovery

  -- Plaintiffs' motion for class           March 12, 2022
     certification

  -- Defendants' response to class          April 22, 2022
     certification

  -- Phase III-fact discovery               April 30, 2022
     supporting dispositive motions

  -- Hearing on class certification         May 2022
                                            (date to be
                                            determined)

  -- Initial expert reports                 May 16, 2022

  -- Rebuttal expert reports                June 6, 2022

  -- Phase IV-expert discovery              July 8, 2022

  -- Daubert motions                        July 29, 2022

  -- Response to Daubert motions            August 28, 2022

  -- Dispositive motions                    September 1, 2022

  -- Phase V-all remaining discovery        September 30, 2022

  -- Response to dispositive motions        September 30, 2022

  -- Hearing on dispositive/Dauber          October 2022 (date
     motions                                to be determined)

     Mediation                             November 15, 2022

Blackbaud is a cloud computing provider.

A copy of the Court's order dated Sept. 22, 2021 is available from
PacerMonitor.com at https://bit.ly/3B5hmBZ at no extra charge.[CC]

MEDALLIA INC: Bushansky Files Suit Over Sale to Thomas Bravo
------------------------------------------------------------
Stephen Bushansky, individually and on behalf of all others
similarly situated, Plaintiff, v. Medallia, Inc., Leslie J.
Kilgore, Stanley J. Meresman, Steven C. Walske, Robert Bernshtyn,
Mitchell K. Dauerman, Amy E. Pressman, Borge Hald, Douglas M.
Leone, Leslie J. Stretch and James D. White, Defendants, Case No.
21-cv-07336 (N.D. Cal., September 21, 2021), seeks to enjoin
defendants and all persons acting in concert with them from
proceeding with, consummating or closing the acquisition of
Medallia by affiliates of Thoma Bravo, L.P. through their
subsidiaries Project Metal Parent, LLC and Project Metal Merger
Sub, Inc.  The lawsuit further seeks rescissory damages, costs of
this action, including reasonable allowance for plaintiff's
attorneys' and experts' fees and such other and further relief
under the Securities Exchange Act of 1934.

Under the terms of the merger agreement, each Medallia stockholder
will receive $34.00 in cash for each share of Medallia common stock
they own. The proposed transaction is valued at approximately $6.4
billion.

Bushansky alleges that the proxy statement filed in connection with
the transaction failed to provide company stockholders with
information concerning Medallia's financial projections, and the
data and inputs underlying the financial valuation analyses that
support the fairness opinion provided by its financial advisors,
Morgan Stanley & Co. LLC, BofA Securities, Inc. and Wells Fargo
Securities.

Medallia provides software-as-a-service customer experience
management and employee engagement software to hospitality, retail,
financial services, high-tech, and business-to-business companies
internationally. Medallia's common stock trades on the New York
Stock Exchange under the ticker symbol "MDLA."

Bushansky is, and is and has been a continuous stockholder of
Medallia. [BN]

Plaintiff is represented by:

      Joel E. Elkins, Esq.
      WEISSLAW LLP
      9107 Wilshire Blvd., Suite 450
      Beverly Hills, CA 90210
      Telephone: (310) 208-2800
      Facsimile: (310) 209-2348.
      Email: jelkins@weisslawllp.com

             - and -

      Richard A. Acocelli, Esq.
      1500 Broadway, 16th Floor
      New York, NY 10036
      Telephone: (212) 682-3025
      Facsimile: (212) 682-3010

MICHIGAN STATE: Court Grants in Part Bid to Dismiss Balow Suit
--------------------------------------------------------------
In the case, SOPHIA BALOW, et al., Plaintiffs v. MICHIGAN STATE
UNIVERSITY, et al., Defendants, Case No. 1:21-cv-44 (W.D. Mich.),
Judge Hala Y. Jarbou of the U.S. District Court for the Western
District of Michigan, Southern Division:

    (i) grants in part the Defendants' motion to dismiss the
        complaint; and

   (ii) denies the Plaintiffs' motion for leave to amend their
        complaint.

Background

Michigan State University (MSU) decided to end support for its
men's and women's varsity swimming and diving programs after the
end of the 2020-2021 season. The Plaintiffs were members of MSU's
varsity women's swimming and diving team when MSU made that
decision. They claim that MSU discriminates against women, in
violation of Title IX, 20 U.S.C. Section 1681 et seq.

Specifically, in Count I of their complaint, the Plaintiffs claim
that MSU provides "fewer and poorer athletic participation
opportunities" for women than it does for men. In Count II, they
claim that MSU has not allocated financial assistance to male and
female athletes on an equal basis. In Count III, the Plaintiffs
claim that MSU has not allocated other benefits to male and female
athletes on an equal basis. In Count IV, they claim that Defendants
discriminated against them in violation of Michigan's
Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws Section
37.2101, et seq.

The Plaintiffs believe that the elimination of their team would
exacerbate some of these problems. They brought the action against
MSU, MSU's Board of Trustees, MSU President Samuel L. Stanley, Jr.,
and MSU's Director of Athletics, Bill Beekman. Among other forms of
relief, the Plaintiffs asked the Court for a preliminary injunction
requiring MSU to maintain its varsity women's swimming and diving
team for the duration of the lawsuit. The Court denied that
request.

According to the complaint, MSU is a member of the NCAA Big Ten
Conference, and its sports teams participate in Division I, the
highest level of intercollegiate competition. For the 2020-2021
academic year, MSU sponsored multiple men's and women's sports
teams, including: baseball, men's and women's basketball, men's and
women's cross country, football, men's and women's golf,
gymnastics, men's ice hockey, rowing, softball, men's and women's
soccer, men's and women's swimming and diving, men's and women's
tennis, men's and women's track and field, volleyball, and
wrestling.

In October 2020, the school announced that it would not sponsor the
men's and women's diving teams after the 2020-2021 season. The
Plaintiffs do not mention the elimination of the men's team in
their complaint, but they acknowledged it in their preliminary
injunction briefing.

The Plaintiffs allege that there were 38 members of the women's
team as of January 2021. They do not allege any details about the
men's team, but the Defendants' evidence presented in opposition to
the preliminary injunction indicated that there were 33 members on
the women's team and 29 members on the men's team in the 2019-2020
season; thus, if the numbers remained consistent for the 2020-2021
season, eliminating both teams would result in a net loss of
approximately four opportunities for women.

Before the Court are the Defendants' motion to dismiss the
complaint for failure to state a claim and the Plaintiffs' motion
for leave to file an amended complaint.

Analysis

A. Counts I-III (Title IX): Individual Defendants

The Defendants argue, and the Plaintiffs agree, that "Title IX does
not permit claims against individuals." Accordingly, Judge Jarbou
will dismiss Defendants Beekman and Stanley as Defendants to Counts
I to III.

B. Count I (Title IX): Participation Opportunities

As detailed in the Court's opinion on the Plaintiffs' motion for a
preliminary injunction, and as pled in the Plaintiffs' complaint,
data released by MSU under the Equity in Athletics Disclosure Act
(EADA), 20 U.S.C. Section 1092(g), suggest that MSU had a
participation gap of 25 opportunities for women in the 2018-2019
year, the most recent year for which EADA data was publicly
available when the Plaintiffs filed their complaint. According to
the Plaintiffs' more recent response to the motion to dismiss, the
2019-2020 EADA data now available indicate that eliminating the
men's and women's swimming and diving teams will result in a total
participation gap of 19 opportunities for women. However, the
Plaintiffs also allege that MSU has improperly "padded" the rosters
of its women's teams.

The Defendants responded to the Plaintiffs' motion for a
preliminary injunction with affidavits undermining the Plaintiffs'
assertions of roster padding. And after considering all the
evidence available to the Court at that stage, the Court was not
persuaded that the Plaintiffs had demonstrated a sufficient
likelihood of success to warrant an injunction. The Defendants now
ask the Court to apply that analysis to the complaint and find that
the Plaintiffs do not state a viable claim in Count I.

Judge Jarbou finds that the Defendants' evidence from the
preliminary injunction proceedings does not establish that the
Plaintiffs fail to state a claim in Count I. Reliance on affidavits
is more appropriate for a summary judgment motion than for a motion
to dismiss the complaint. The Judge declines to convert the
Defendants' motion to dismiss into one for summary judgment.

C. Count II (Title IX): Financial Assistance

In Count II of the complaint, the Plaintiffs allege that the
Defendants "fail to provide female student athletes with an equal
allocation of athletic financial assistance." Specifically, the
allege that, "according to the 2018-2019 EADA data, MSU is
depriving female student athletes in scholarships by $467,047." In
their proposed amended complaint, the Plaintiffs allege that EADA
data shows that "MSU is depriving female student athletes in
scholarships by $1,194,798.00."

This number apparently represents the total difference between the
"financial aid" actually awarded to "female athletes" and the
"financial aid" to which they were "entitled" from the 2003-2004
season to the 2019-2020 season. The Plaintiffs apparently define
the amount to which they are "entitled" as the percentage of total
financial aid that equates to the percentage of athletes who are
women. For instance, in 2019-2020, 50% of MSU's athletes were
women, but these women allegedly received only 43.2% of the
financial aid awarded to all athletes.

1. Standing

The Defendants argue that the Plaintiffs lack standing under
Article III of the Constitution to assert a claim for unequal
financial assistance. Judge Jarbou holds that the Plaintiffs'
allegations fail to satisfy the injury requirement; thus, they lack
standing to assert the claim in Count II.

2. Failure to State a Claim

Even if the Plaintiffs' allegations are adequate to satisfy the low
threshold for standing, Judge Jarbou holds that they are not
adequate to state a claim of discrimination. She says, the
Plaintiffs have not alleged facts from which to plausibly infer
that they personally suffered discrimination with respect to
scholarships and other forms of financial assistance. Without more
detailed allegations, the Judge cannot infer more than the "mere
possibility" of discrimination against them individually or as
representatives of a larger class. Thus, Count II fails to state a
claim in both the complaint and the proposed amended complaint.

D. Count III (Title IX): Allocation of Athletic Benefits

In Count III, the Plaintiffs assert that MSU "fails to provide
equal athletic benefits in some or all of the categories set forth
in the Regulations and the Policy Interpretation.

Judge Jarbou finds that the Plaintiffs' initial complaint contains
no facts to support these allegations. Their proposed amended
complaint provides some details. Their proposed amended complaint
provides some details. Their additional allegations do not suffice
to state a discrimination claim. The Plaintiffs focus on a few
differences between a handful of "priority" teams at MSU and other
teams. As with Count II, the Plaintiffs' allegations do not permit
the Court to infer more than the mere possibility of sex
discrimination. Moreover, they do not allege facts indicating that
the disparate treatment harmed them personally, by denying them
"equal athletic opportunity." Accordingly, Judge Jarbou will deny
the Plaintiffs' motion for leave to amend because their proposed
amendments would not survive a motion to dismiss.

E. Count IV (ELCRA)

The ELCRA prohibits discrimination by "educational institutions"
because of sex. Mich. Comp. Laws Section 37.2402(b).

1. Immunity

Judge Jarbou states that the Plaintiffs cannot bring such a claim
against MSU and its Board of Trustees because those entities are
entitled to sovereign immunity. Regardless of the form of relief
requested, the states and their departments are immune under the
Eleventh Amendment from suit in the federal courts, unless the
state has waived immunity or Congress has expressly abrogated
Eleventh Amendment immunity by statute. Thus, the Juduge will
dismiss MSU and its Board of Trustees as defendants to Count IV.

2. Individual Liability

That leaves Defendants Stanley and Beekman as the remaining
Defendants to Count IV. The Defendants contend that the ELCRA does
not permit individual liability because it applies to "educational
institutions." It does not expressly apply to individuals. The
Plaintiffs respond that the definition of "educational institution"
includes "an agent of an educational institution," Mich. Comp. Laws
Section 37.2401, which could include an individual. However,
Defendants note that, unlike Article 2 of the ELCRA, which
prohibits a "person" from discriminating against individuals with
respect to employment, the prohibition in Article 4 includes only
educational institutions and their agents. It does not refer to
"persons" or individuals.

Judge Jarbou declines to exercise supplemental jurisdiction over
the ELCRA claim in Count IV. She is not aware of a case applying
the ELCRA to the type of discrimination in athletic opportunities
and benefits alleged in the case. Also, the two types of claims now
have different defendants. The institutional defendants are the
only remaining defendants to the Title IX claims and the individual
defendants are the only remaining defendants to the ELCRA claim.
Different theories of liability against different, but closely
related, defendants based on the same set of facts poses a
significant risk of jury confusion if the case were to proceed to
trial.

Conclusion

For the reasons stated, Judge Jarbou grants the Defendants' motion
to dismiss in part. She dismisses Defendants Stanley and Beekman as
Defendants to Counts I, II and III. She dismisses Counts II and III
of the complaint for failure to state a claim. The Judge dismisses
Defendants MSU and its Board of Trustees as Defendants to Count IV
because they are immune from suit for that claim. Also, the Judge
declines to exercise supplemental jurisdiction over Count IV going
forward. In addition, Judge Jarbou denies the Plaintiffs' motion
for leave to amend their complaint.

Count I will proceed against Defendants MSU and its Board of
Trustees.

An order will enter consistent with the Opinion.

A full-text copy of the Court's Sept. 22, 2021 Opinion is available
at https://tinyurl.com/mbw82463 from Leagle.com.


NATIONAL COLLEGIATE: Court Narrows Claims in Johnson Class Suit
---------------------------------------------------------------
In the case, RALPH "TREY" JOHNSON, ET AL., individually and on
behalf of all persons similarly situated v. THE NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, ET AL., Civil Action No. 19-5230 (E.D. Pa.),
Judge John R. Padova of the U.S. District Court for the Eastern
District of Pennsylvania granted in part and denied in part the
Defendants' motion to dismiss.

Defendants National Collegiate Athletic Association ("NCAA") and
Non Attended School Defendants ("NASD") moved to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1).

Background

The Plaintiffs, student athletes at five of the Defendant colleges
and universities, contend that student athletes who engage in NCAA
Division 1 ("D1") interscholastic athletic activity for their
colleges and universities are employees who should be paid for the
time they spend related to those athletic activities. Plaintiffs,
Ralph "Trey" Johnson, Stephanie Kerkeles, Nicholas Labella, Claudia
Ruiz, Jacob Willebeek-Lemair, and Alexa Cooke, assert claims on
behalf of themselves, a Fair Labor Standards Act ("FLSA")
collective, and three state classes against the colleges and
universities they attend (or attended) (Attended Schools
Defendants" or "ASD"), the NCAA, 20 additional named D1
universities ("NASD"), and a putative Defendant class made up of
125 NCAA D1 colleges and universities.

The First Amended Complaint asserts claims for violations of the
FLSA, 29 U.S.C. Section 200 et seq.; the Pennsylvania Minimum Wage
Act, 43 Pa. Stat. Section 333.101 et seq. (the "PMWA"); the New
York Labor Law, N.Y. Lab. Law Section 191 et seq. ("NYLL"); and the
Connecticut Minimum Wage Act, Conn. Gen. Stat. Ann. Section 31-58
et seq. ("CMWA"). The Complaint also asserts three common law
unjust enrichment claims.

The Complaint asserts that the Plaintiffs are the employees of the
Defendants, including the NCAA and NASD, and it asserts eight
claims for relief, seeking payment of wages for the time the
Plaintiffs spent engaged in activities connected to NCAA sports.
Count I asserts claims pursuant to the FLSA on behalf of the
Plaintiffs and the proposed FLSA collective against all Defendants
and the proposed Defendant class for failure to pay them minimum
wages as employees. The Plaintiffs and the members of the proposed
FLSA Collective seek unpaid minimum wages, an equal amount as
liquidated damages, attorneys' fees, and costs in connection with
Count I.

Count II asserts claims on behalf of Plaintiffs Johnson and Cooke
and the proposed Pennsylvania class against 14 colleges and
universities located in Pennsylvania ("Pennsylvania-based
Defendants") for violating the PMWA by failing to pay them minimum
wages for the hours they spent on activities relating to NCAA D1
sports. Plaintiffs Johnson, Cooke, and the proposed Pennsylvania
class seek unpaid wages, attorneys' fees, and costs in connection
with Count II.

Count III asserts a claim for unjust enrichment on behalf of
Plaintiffs Johnson, Cooke, and the proposed Pennsylvania class
against the Pennsylvania-based Defendants for benefiting from the
unpaid labor of Plaintiffs Johnson, Cooke, and the proposed
Pennsylvania class. Plaintiffs Johnson, Cooke, and the proposed
Pennsylvania class seek judgment in an amount equal to the benefits
unjustly retained by the Pennsylvania-based Defendants in
connection with Count III.

Count IV asserts a claim on behalf of Plaintiffs Kerkeles, Labella,
Willebeek-Lemair, and the proposed New York class against eighteen
colleges and universities located in New York ("New York-based
Defendants") for failure to pay them minimum wages under the NYLL.
Plaintiffs Kerkeles, Labella, Willebeek-Lemair, and the proposed
New York class seek recovery of unpaid wages, liquidated damages,
attorneys' fees, and costs in connection with Count IV.

Count V asserts a claim on behalf of Plaintiffs Kerkeles, Labella,
Willebeek-Lemair, and the proposed New York class against the New
York-based Defendants for failure to pay them wages for all of the
hours they spent on NCAA D1 sports in violation of the NYLL.
Plaintiffs Kerkeles, Labella, Willebeek-Lemair, and the proposed
New York class seek the total amount of their unpaid straight-time
wages, liquidated damages, attorneys' fees, costs, and interest in
connection with Count V.

Count VI asserts a claim on behalf of Plaintiffs Kerkeles, Labella,
Willebeek-Lemair and the proposed New York class against the New
York-based Defendants for unjust enrichment for benefiting from
their uncompensated labor. Plaintiffs Kerkeles, Labella,
Willebeek-Lemair, and the proposed New York class seek judgment in
an amount equal to the benefits unjustly retained by the New
York-based Defendants in connection with Count VI.

Count VII asserts a claim on behalf of Plaintiff Ruiz and the
members of the proposed Connecticut class against five universities
located in Connecticut ("Connecticut-based Defendants") for
violating the CMWA by failing to pay them minimum wages for any and
all hours that they allowed Plaintiff Ruiz and the proposed
Connecticut class to work in connection with NCAA sports. Plaintiff
Ruiz and the members of the proposed Connecticut class seek payment
of unpaid wages, liquidated damages, attorneys' fees, and costs in
connection with Count VII.

Count VIII asserts a claim on behalf of Plaintiff Ruiz and the
members of the proposed Connecticut class against the
Connecticut-based Defendants for unjust enrichment for inducing
them to perform work while failing to properly compensate them.
Plaintiff Ruiz and the proposed Connecticut class seek judgment in
the amount of the benefits unjustly retained by the
Connecticut-based Defendants in connection with Count VIII.

The Attended Schools Defendants brought a Motion to Dismiss the
Complaint as against them on the ground that it did not plausibly
allege that they employed Plaintiffs, a requirement for liability
under the FLSA. The Court denied that Motion on Aug. 25, 2021,
concluding that the Complaint plausibly alleges that the Plaintiffs
are employees of the ASD for purposes of the FLSA.

The NCAA and the NASD have moved to dismiss all claims against them
for lack of Article III standing on the ground that the Complaint
does not plausibly allege that they are also employers of the
Plaintiffs, specifically that the Complaint does not plausibly
allege that they are joint employers of Plaintiffs with the ASD.

Discussion

In Count I of the Complaint, the Plaintiffs seek the payment of
minimum wages from the Defendants, including the NCAA and the NASD,
for the hours they spent in connection with NCAA D1 intercollegiate
athletics pursuant to Section 206 of the FLSA. The minimum wage
provision at issue requires that the Plaintiffs prove that they are
'employees.' The Moving Defendants argue in their Motion to Dismiss
that the Plaintiffs have failed to meet their burden of
establishing "'the irreducible constitutional minimum' of Article
III standing" because they are not employees of the Moving
Defendants.

To establish standing under Article 3, the Plaintiffs must
establish the following three elements: First, the plaintiff must
have suffered an injury in fact—an invasion of a legally
protected interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the conduct
complained of -- the injury has to be fairly traceable to the
challenged action of the defendant, and not the result of the
independent action of some third party not before the court. Third,
it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.

The Moving Defendants argue that any injury suffered by the
Plaintiffs is not "fairly traceable" to them because they are not
their employers.

Judge Padova states that the FLSA defines the term "employee" as
"any individual employed by an employer." The Third Circuit has
noted that "this statutory definition is necessarily broad to
effectuate the remedial purposes of the Act," citing Safarian v.
Am. DG Energy Inc., 622 F. App'x 149, 151 (3d Cir. 2015). Two
different entities can be joint employers of the same individual if
they both have significant control over that employee. Thus, Judge
Padova can grant the Moving Defendants' Motion to Dismiss for lack
of subject matter jurisdiction only if the Complaint does not
plausibly allege that the Moving Defendants are the Plaintiffs'
joint employers.

A. The NCAA as a Regulatory Body

The Moving Defendants argue that the NCAA cannot be a joint
employer of the Plaintiffs because it merely regulates their
participation in intercollegiate athletics. The Moving Defendants
rely on Dawson v. National Collegiate Athletic Association, 932
F.3d 905 (9th Cir. 2019), in which the U.S. Court of Appeals for
the Ninth Circuit affirmed a lower court decision holding that
college student athletes who play football for schools in the NCAA
D1 Football Bowl Subdivision are not employees of the NCAA and the
PAC-12 Conference for purposes of the FLSA and California labor
law.

While the Moving Defendants urge the Court to simply adopt and
apply Dawson's analysis and conclusion in the instant case, Judge
Padova finds that the complaint in Dawson is not identical to the
Complaint in the case and, accordingly, he must engage in his own
independent analysis of the instant Complaint.

a. The Joint Employer Test

The Moving Defendants argue that the Complaint fails to plausibly
allege that the NCAA and the NASD are joint employers of the
Plaintiffs under the four-factor test originally developed by the
Ninth Circuit in Bonnette v. California Health and Welfare Agency,
704 F.2d 1465 (9th Cir. 1983), and subsequently adopted in part by
the Third Circuit in In re Enterprise Rent-A-Car, 683 F.3d 462 (3d
Cir. 2012).

The Third Circuit announced in Enterprise Rent-A-Car that courts
should use the following four factors, referred to as the
Enterprise test, when determining whether two entities are joint
employers of the same individual or individuals: 1) the alleged
employer's authority to hire and fire the relevant employees; 2)
the alleged employer's authority to promulgate work rules and
assignments and to set the employees' conditions of employment:
compensation, benefits, and work schedules, including the rate and
method of payment; 3) the alleged employer's involvement in
day-to-day employee supervision, including employee discipline; and
4) the alleged employer's actual control of employee records, such
as payroll, insurance, or taxes.

Judge Padova thus reviews the factual allegations in the Complaint
to determine whether they satisfy these factors with respect to
both the NCAA and the NASD.

1. The NCAA's and NASD's authority to hire and fire Plaintiffs

Judge Padova concludes that the Complaint plausibly alleges that
the NCAA exercises significant control over the hiring and firing
of student athletes, including the Plaintiffs, such that the
Complaint satisfies the first factor of the Enterprise test with
respect to the NCAA. The Judge also concludes that the allegations
are not sufficient to plausibly allege that the NASD exercise
significant control over the hiring and firing of student athletes,
including the Plaintiffs. He therefore concludes that the factual
allegations of the Complaint fail to satisfy the first factor of
the Enterprise test with respect to the NASD.

2. The NCAA's and NASD's authority to promulgate work rules and set
Plaintiffs' compensation, benefits, and work schedules

Judge Padova concludes that the Complaint plausibly alleges that
the NCAA has the "authority to promulgate work rules and
assignments and to set the Plaintiffs' conditions of employment,"
such that the Complaint satisfies the second factor of the
Enterprise test with respect to the NCAA.

Judge Padova also concludes that the allegations, which pertain
solely to the agreement of the NCAA member schools not to pay wages
to student athletes, those schools' obligations with respect to the
enforcement of that agreement, and the possibility that a school
could be involved in investigating and imposing discipline with
respect to the violation of that agreement and other infractions of
the D1 Bylaws, are not sufficient to plausibly allege that the NASD
themselves promulgate work rules and assignments and/or set the
conditions of participation for student athletes in NCAA
intercollegiate athletics.

Judge Padova, therefore, concludes that the Complaint fails to
satisfy the second factor of the Enterprise test with respect to
the NASD.

3. The NCAA's and NASD's involvement in the day-to-day supervision
of Plaintiffs

Judge Padova concludes that the Complaint plausibly alleges that
the NCAA is involved in the day-to-day supervision, including
discipline, of student athletes who participate in NCAA sports,
including the Plaintiffs. He further concludes that the factual
allegations of the Complaint satisfy the third factor of the
Enterprise test with respect to the NCAA.

However, Judge Padova finds that the Complaint does not allege that
representatives of any of the NASD are members of the Committee on
Infractions or of the Infractions Appeal Committee. He concludes
that the allegations, which pertain to the participation of some
NCAA D1 member schools in the NCAA D1 Committee on Infractions and
the D1 Infractions Appeal Committee, and the obligation of D1
member schools to cooperate in NCAA enforcement investigations, are
not sufficient to plausibly allege that the NASD are involved in
the day-to-day supervision, including discipline, of student
athletes, including the Plaintiffs, who participate in NCAA
sports.

Judge Padova thus concludes that the factual allegations of the
Complaint fail to satisfy the third factor of the Enterprise test
with respect to the NASD.

4. The NCAA's and NASD's control of Plaintiffs' records

Judge Padova concludes that the Complaint plausibly alleges that
the NCAA controls records of student athletes involved in NCAA
sports, including the Plaintiffs, such that the factual allegations
of the Complaint satisfy the fourth factor of the Enterprise test
with respect to the NCAA.

However, Judge Padova finds that the Amended Complaint does not
allege that the NASD individually maintain any records of student
athletes that do not attend their schools. Moreover,the Plaintiffs
do not argue that the Complaint satisfies the fourth factor of the
Enterprise test with respect to the NASD. The Judge concludes,
accordingly, that the Complaint fails to satisfy the fourth factor
of the Enterprise test with respect to the NASD.

As he has concluded that the facts alleged in the Complaint satisfy
all four factors of the Enterprise test as to the NCAA, Judge
Padova further concludes that the Complaint plausibly alleges that
the NCAA is a joint employer of the Plaintiffs for purposes of the
FLSA and, accordingly, that the Plaintiffs have standing to sue the
NCAA. Therefore, he denies the Motion to Dismiss as to the NCAA.

In contrast, Judge Padova has concluded that the facts alleged in
the Complaint do not satisfy any of the four factors of the
Enterprise test as to the NASD. Accordingly, application of that
test does not support a conclusion that the NASD are joint
employers of the Plaintiffs. The Plaintiffs also argue, however,
that the Complaint plausibly alleges that the NASD are joint
employers of Plaintiffs under a "Sports League Joint Employment"
theory that was developed and applied by the United States Court of
Appeals for the Fifth Circuit in North American Soccer League v.
NLRB, 613 F.2d 1379 (5th Cir. 1980). Judge Padova will therefore
consider whether the NASD can be considered joint employers under
this alternative theory.

B. The Sports League Joint Employment Theory

The Plaintiffs argue that the Complaint alleges that the NCAA and
its member schools operate sufficiently similarly to the League and
its member clubs that it plausibly alleges that the NASD are joint
employers of the Plaintiffs. They argue that the Complaint alleges
that NCAA D1 member schools grant enforcement authority to the NCAA
over a wide range of subjects that directly impact student
athletes' working conditions and that active D1 member schools have
voting privileges to make the NCAA's rules.

The Plaintiffs also assert that the NCAA's Bylaws address
"recruitment, eligibility, hours of participation, duration of
eligibility and discipline." They also rely on the allegations that
as many as 24 NCAA D1 member schools may have representatives on
the D1 Committee on Infractions and that five D1 member schools may
have representatives on the D1 Infractions Appeal Committee (along
with members of the public and representatives from conferences).

Judge Padova concludes that the same is true in the case before the
Court. The Complaint in the case does not allege that the president
of the NCAA is selected by and paid by the member schools, that any
of the NASD are members of the NCAA D1 Committee on Infractions or
the D1 Infractions Appeal Committee, or that any of the NASD are
involved in day-to-day decision making in the NCAA D1.

Judge Padova concludes, accordingly, that the Complaint does not
plausibly allege that the NASD are joint employers of te Plaintiffs
under the "Sports League Joint Employment Theory" described in
North American Soccer League. Based on this conclusion and the
Court's prior analysis under the Enterprise test, the Judge further
concludes that the Complaint does not plausibly allege that the
NASD are joint employers of the Plaintiffs and, accordingly, that
the Plaintiffs lack standing to sue the NASD for violations of the
FLSA. He thus grants the instant Motion to Dismiss as to the
Plaintiffs' FLSA claim in Count I of the Complaint as against the
NASD.

C. Plaintiffs' State Statutory Law Claims

Counts II through VIII assert claims under state statutory and
common law. The Moving Defendants ask the Court to dismiss the
Plaintiffs' "state law wage claims," i.e., their claims under the
PMWA, the NYLL, and the CMWA, because those "claims are analyzed
under the same standards as the Plaintiffs' FLSA claims." The PMWA,
the NYLL and the CMWA all define the term employer similarly to the
FLSA.

Because he has determined that the Complaint does not plausibly
allege that the NASD are joint employers of the Plaintiffs for
purposes of the FLSA and that the Plaintiffs thus lack standing to
sue the NASD under the FLSA, Judge Padova also concludes that the
Complaint does not plausibly allege that the NASD are joint
employers of the Plaintiffs for purposes of the PMWA, the NYLL, and
the CMWA and that the Plaintiffs lack standing to sue the NASD for
the violations of those statutes alleged in Counts II, IV, V, and
VII.

Consequently, Judge Padova grants the Motion to Dismiss with
respect to the Plaintiffs' state statutory law claims as follows:
(1) he grants the Motion as to the Plaintiffs' claims brought
pursuant to the PMWA in Count II of the Complaint as against the
Pennsylvania-based Defendants identified in footnote two, with the
exception of Attended School Defendants Lafayette College and
Villanova University; (2) he grants the Motion as to the
Plaintiffs' claims brought pursuant to the NYLL in Counts IV and V
of the Complaint as against the New York-based Defendants
identified in footnote three, with the exception of Attended
Schools Defendants Cornell University and Fordham University; and
(3) he grants the Motion as to the Plaintiffs' claim brought
pursuant to the CMWA in Count VII of the Complaint as against the
Connecticut-based Defendants identified in footnote four, with the
exception of Attended School Defendant Sacred Heart University.

Conclusion

For the foregoing reasons, Judge Padova denies the Motion to
Dismiss as to the NCAA and grants the Motion to Dismiss as to the
NASD. Accordingly, he dismisses Count I as against the following
Non Attended School Defendants with prejudice: Bucknell University,
Duquesne University, Fairleigh Dickinson University, La Salle
University, Lehigh University, Monmouth University, Princeton
University, Rider University, Robert Morris University, Seton Hall
University, Saint Francis University, Saint Joseph's University,
Saint Peter's University, the University of Delaware, Pennsylvania
State University, the University of Pittsburgh, Rutgers State
University of New Jersey, and Temple University.

As the Plaintiffs have indicated their intent to file a Second
Amended Complaint adding as Named Plaintiffs individuals who
participated in NCAA intercollegiate athletics at the University of
Pennsylvania and Drexel University, and which will assert claims
against those two universities as Attended Schools Defendants,
Judge Padova dismisses Count I of the Complaint as against the
University of Pennsylvania and Drexel University without prejudice
to the Plaintiffs' assertion of that claim against them as Attended
Schools Defendants in the Second Amended Complaint.

Judge Padova also dismiss Counts II, IV, V, and VII as against the
Non Attended School Defendants as follows: Count II is dismissed as
against the Pennsylvania-based Defendants identified in footnote
two, with the exception of Attended School Defendants Lafayette
College and Villanova University; Counts IV and V are dismissed as
against the New York-based Defendants identified in footnote three,
with the exception of Attended School Defendants Cornell University
and Fordham University; Count VII is dismissed as against the
Connecticut-based Defendants identified in footnote four, with the
exception of Attended School Defendant Sacred Heart University.

An appropriate order follows.

A full-text copy of the Court's Sept. 22, 2021 Memorandum is
available at https://tinyurl.com/4z3y4cxs from Leagle.com.


NATIONAL OILWELL: Ramirez Sues Over Failure to Provide Compensation
-------------------------------------------------------------------
Andrew Ramirez, on behalf of himself and all others similarly
situated v. NATIONAL OILWELL VARCO, LP., a Delaware Limited
Partnership, and DOES 1 through 50 inclusive, Case No.
30-2021-01221911-CU-OE-CXC (Cal. Super. Ct., Orange Cty., Sept. 17,
2021), seeks relief against the Defendant for failure to provide
meal periods; failure to provide rest periods; failure to provide
accurate wage statements, and failure to pay wages upon ending
employment of terminated or resigned employees. Plaintiff further
seeks equitable remedies in the form of declaratory relief and
relief under Business and Professions Code section 17200 et seq.
for unfair business practices.

The Defendant and each of them failed to compensate the employees
properly for all the time they have actually worked, in violation
of the various applicable Wage Orders, regulations and statutes,
and the Defendant: willfully failed and refused, and continues to
fail and refuse to pay compensation for all hours worked, including
meal and rest period premium compensation to the Plaintiff Class
Members; and willfully failed and refused, and continues to fail
and refuse to pay due and owing wages promptly upon termination of
employment to Plaintiff and Plaintiff Class Members, says the
complaint.

The Plaintiff was employed by the Defendant from March 11, 2019
through September 23, 2020.

NATIONAL OILWELL VARCO, LP. is a California Limited Partnership
doing business in the state of California.[BN]

The Plaintiff is represented by:

          Jake D. Finkel, Esq.
          Alexander Perez, Esq.
          LAW OFFICES OF JAKE D. FINKEL
          3470 Wilshire Blvd, Suite 830
          Los Angeles, CA 90010
          Mailing: 8605 Santa Monica Blvd., PMB 63688
          West Hollywood, CA 90069-4109
          Phone: 213.787.7411
          Facsimile: 323.916.0521
          Email: jake@lawfinkel.com
                 alex@lawfinkel.com


NATIONSTAR MORTGAGE: Contreras Suit Seeks to Certify Classes
------------------------------------------------------------
In the class action lawsuit captioned as EUGENIO AND ROSA
CONTRERAS, WILLIAM PHILLIPS, TERESA BARNEY, KEITH AND TERESA
MARCEL, SHERLIE CHARLOT, and JENNIE MILLER, on behalf of themselves
and all others similarly situated, v. NATIONSTAR MORTGAGE LLC, a
Delaware Limited Liability Company; SOLUTIONSTAR HOLDINGS LLC
(N/K/A XOME HOLDINGS LLC), a Delaware Limited Liability Company;
and SOLUTIONSTAR FIELD SERVICES LLC, a Delaware Limited Liability
Company, Case No. 2:16-cv-00302-MCE-JDP (E.D. Cal.), the Plaintiffs
ask the Court to enter an order:

   1. appointing them as class representatives and for their
      counsel;

   2. appointing the attorneys of the firms Keller Rohrback
      L.L.P. and Hagens Berman Sobol Shapiro L.L.P. as class
      counsel pursuant to Fed. R. Civ. P. 23(g); and

   3. certifying the following classes:

      A. Inspection Fee Classes

         The Plaintiffs seek certification of five inspection
         fee classes: a national RICO damages class, the
         "National Inspection Fee Class"; a subclass of that
         class, the "National Inspection Fee Mark-Up Subclass";
         and three state-wide classes asserted under state law,
         the "California, Florida, and Oregon Inspection Fee
         Classes."

         1. As to the National Inspection Fee Class, Plaintiffs
            Eugenio and Rosa Contreras, William National
            Inspection Fee Class and Subclass Phillips, Teresa
            Barney, Keith and Teresa Marcel, and Sherlie Charlot
            seek damages under RICO on behalf of the following
            class:

            All Nationstar customers in the United States whose
            mortgage contracts for residential properties use
            the Fannie Mae/Freddie Mac uniform instrument or the
            Federal Housing Administration model forms, and who,
            according to Nationstar's records, between February
            1, 2014 and October 31, 2016, were billed for one or
            more property inspections for property inspections
            automatically ordered by Nationstar as a result of a
            late payment of their mortgage.

            The National Inspection Fee Mark-Up Subclass
            consists of members of the National Inspection Fee
            Class who were not only billed Nationstar's standard
            property inspection fee, but were also billed the
            undisclosed six-dollar mark-up, defined as:

            All members of National Inspection Fee Class who,
            according to Nationstar's records, between February
            1, 2014 and October 31, 2016, were assessed a six-
            dollar mark-up for one or more property inspections
            for property inspections automatically ordered by
            Nationstar as a result of a late payment of their
            mortgage.

            The subclass representatives are Plaintiffs Sherlie
            Charlot and Keith and Teresa Marcel.

         2. State Inspection Fee Classes: California, Florida,
            Oregon

            The state-wide inspection fee classes are brought
            under each state’s relevant consumer protection law.

            The classes are narrower than the National
            Inspection Fee Class in that they concern
            residential property located in the states of
            California, Florida and Oregon, but broader in that
            Plaintiffs seek not only damages, but an injunction,
            and the class period is considerably longer. The
            class definitions are as follows:

            a. The California Inspection Fee Class

               All Nationstar customers in the United States
               whose residential properties securing their
               loans serviced by Nationstar are located in
               California and whose mortgage contracts use
               the Fannie Mae/Freddie Mac uniform instrument or
               the Federal Housing Administration model forms
               and who, according to Nationstar's records,
               between February 12, 2012 and the present, were
               billed for one or more property inspections for
               property inspections automatically ordered by
               Nationstar as a result of a late payment of their
               mortgage.

               The class representatives are Plaintiffs Eugenio
               and Rosa Contreras.

            b. The Florida Inspection Fee Class

               All Nationstar customers in the United States
               whose residential properties securing their
               loans serviced by Nationstar are located in
               Florida and whose mortgage contracts use the
               Fannie Mae/Freddie Mac uniform instrument or the
               Federal Housing Administration model
               forms and who, according to Nationstar's records,
               between February 12, 2012 and the present, were
               billed for one or more property inspections for
               property inspections automatically ordered by
               Nationstar as a result of a late payment of their
               mortgage.

               The class representative is Plaintiff Sherlie
               Charlot.

            c. The Oregon Inspection Fee Class All Nationstar
               customers in the United States whose residential
               properties securing their loans serviced by
               Nationstar are located in Oregon and whose
               mortgage contracts use the Fannie Mae/Freddie Mac
               uniform instrument or the Federal Housing
               Administration model forms and who, according to
               Nationstar's records, between February 12, 2015
               and the present, were billed for one or more
               property inspections for property inspections
               automatically ordered by Nationstar as a result
               of a late payment of their mortgage.

               The class representative is Plaintiff Teresa
               Barney.

      B. Pay-to-Pay Classes

         The Plaintiffs seek certification of four classes: the
         "National Pay-to-Pay Class," and three state-wide
         classes, the "California, Illinois, and Florida Pay-to-
         Pay Classes."

         1. National Pay-to-Pay Class

            As to the national class, Plaintiffs Eugenio and
            Rosa Contreras, William Phillips, Teresa Barney,
            Keith and Teresa Marcel, Sherlie Charlot, and Jennie
            Miller seek damages for breach of contract for:

            National Pay-to-Pay Class All Nationstar customers
            in the United States with residential properties
            securing their loans and whose mortgage contracts
            use the Fannie Mae/Freddie Mac uniform instrument or
            the Federal Housing Administration model forms and
            who were charged one or more fees in order to make
            an online or telephonic payment to their Nationstar
            account between February 12, 2013 and the present.

         2. State Pay-to-Pay Classes: California, Florida, and
            Illinois

            The state-wide pay-to-pay classes are brought under
            the relevant consumer protection laws of California,
            Florida and Illinois. These classes concern
            residential property located only in the three
            states, and seek not only damages, but also an
            injunction, and the class period is therefore
            considerably longer.

            a. The California Pay-to-Pay Class

               All Nationstar customers in the United States
               whose residential properties securing their loans
               serviced by Nationstar are located in California
               and whose mortgage contracts use the Fannie
               Mae/Freddie Mac uniform instrument or the Federal
               Housing Administration model forms and who were
               charged one or more fees in order to make an
               online or telephonic payment to their Nationstar
               account between February 12, 2012 and the
               present.

               The class representatives are Plaintiffs Eugenio
               and Rosa Contreras.

            b. The Florida Pay-to-Pay Class

               All Nationstar customers in the United States
               whose residential properties securing their loans
               serviced by Nationstar are located in Florida and
               whose mortgage contracts use the Fannie
               Mae/Freddie Mac uniform instrument or the Federal
               Housing Administration model forms and who were
               charged one or more fees in order to make an
               online or telephonic payment to their Nationstar
               account between February 12, 2012 and the
               present.

               The class representative is Plaintiff Sherlie
               Charlot.

            c. The Illinois Pay-to-Pay Class

               All Nationstar customers in the United States
               whose residential properties securing their loans
               serviced by Nationstar are located in Illinois
               and whose mortgage contracts use the Fannie
               Mae/Freddie Mac uniform instrument or the Federal
               Housing Administration model forms and who were
               charged one or more fees in order to make an
               online or telephonic payment to their Nationstar
               account between February 12, 2013 and the
               present.

               The class representative is Plaintiff Jennie
               Miller.

A copy of the Plaintiffs' motion to certify classes dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/3Fdro6o
at no extra charge.[CC]

The Plaintiffs are represented by:

          Laura R. Gerber, Esq.
          Dean Kawamoto, Esq.
          Derek W. Loeser, Esq.
          Rachel E. Morowitz, Esq.
          Gretchen S. Obrist, Esq.
          KELLER ROHRBACK L.L.P.
          1201 Third Ave, Suite 3200
          Seattle, WA 98101
          Telephone: (206) 623-1900
          E-mail: lgerber@kellerrohrback.com
                  dkawamoto@kellerrohrback.com
                  dloeser@kellerrohrback.com
                  rmorowitz@kellerrohrback.com
                  gobrist@kellerrohrback.com

               - and -

          Thomas E. Loeser, Esq.
          Nick Styant-Browne, Esq.
          HAGENS BERMAN SOBOL SHAPIRO L.L.P.
          1301 Second Avenue, Suite 2000
          Seattle, WA 98101
          Telehpone: (206) 623-7292
          E-mail: toml@hbsslaw.com
                  nick@hbsslaw.com

ORANGE CRUSH: Phakhailathvone Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Orange Crush
Athletics Corporation, et al. The case is styled as Khamtanh
Phakhailathvone, and on behalf of all others similarly situated v.
Orange Crush Athletics Corporation, Nortech Waste, Inc., Western
States Waste, LLC, Does 1-10, Case No. 34-2021-00308178-CU-OE-GDS
(Cal. Super. Ct., Sacramento Cty., Sept. 17, 2021).

The case type is stated as "Other Employment – Civil Unlimited."

Orange Crush Social Athletic Club --
https://www.orangecrushsac.com/ -- is a non-profit (501)(c)(3)
organization dedicated to the academic and social development of
inner city youth.[BN]

The Plaintiff is represented by:

          Kane Moon, Esq.
          MOON & YANG, APC
          1055 W 7th St Ste 1880
          Los Angeles, CA 90017-2529
          Phone: (213) 232-3128
          Fax: (213) 232-3125
          Email: kane.moon@moonyanglaw.com



OREGON: Dunlap v. Agriculture Dept. Stayed Pending Ruling in Miller
-------------------------------------------------------------------
In the case, KATHRYN DUNLAP; JAMES DUNLAP v. THOMAS J. VILSACK;
ZACH DUCHENEAUX, Defendants, Civ. No. 2:21-cv-00942-SU (D. Or.),
Magistrate Judge Patricia Sullivan of the U.S. District Court for
the District of Oregon, Pendleton Division, granted the Defendants'
Motion to Stay.

The lawsuit is stayed pending resolution of related class action
litigation in the U.S. District Court for the Northern District of
Texas -- Miller v. Vilsack, 4:21-cv-595.

In March 2021, Congress enacted the American Rescue Plan Act of
2021 ("ARPA"). Section 1005 of the ARPA directs the Secretary of
Agriculture to "provide a payment in an amount of up to 120% of the
outstanding indebtedness of each socially disadvantaged farmer or
rancher as of Jan. 1, 2021." Under Section 1005, "farmers and
ranchers who are Black, American Indian/Alaskan Native, Hispanic,
Asian, and Hawaiian/Pacific Islander are eligible for loan
assistance, regardless of whether they have suffered any racial
discrimination in obtaining loans, farming, or elsewhere," and
"farmers and ranchers who are white are ineligible for loan
assistance, regardless of their individual circumstances."

Plaintiffs Kathryn and James Dunlap are white farmers in Baker
City, Oregon, who hold eligible farm loans under Section 1005 and
"would be eligible for assistance on these loans under Section 1005
if they identified as a member of any other racial group," but
"because they identify as white, Plaintiffs are categorically
excluded from loan assistance."

The Plaintiffs challenge the lawfulness of Section 1005, bringing
claims for violation of their right to equal protection under the
Due Process Clause of the Fifth Amendment and for violation of the
Administrative Procedures Act ("APA"). The Plaintiffs seek (1) a
declaratory judgment that the "socially disadvantaged" provisions
of Section 1005 violate the Fifth Amendment and are not otherwise
in accordance with the law under the APA; (2) preliminary and
permanent injunctions prohibiting Defendants from enforcing the
"socially disadvantaged" provisions of Section 1005 and requiring
Defendants to offer loan assistance to all farmers and ranchers
with qualifying farm loans; (3) alternatively, an injunction
prohibiting the enforcement of Section 1005 in its entirety and
enjoining Defendants from distributing any loan assistance under
Section 1005; (4) an award of costs and attorney fees; and (5)
nominal damages.

The Plaintiffs are not the only litigants to challenge Section
1005, nor were they the first to do so. One of those related cases,
Miller v. Vilsack, 4:21-cv-595, is a class action pending in the
Northern District of Texas. The court in Miller has certified a
class under Federal Rule of Civil Procedure 23(b)(2) and enjoined
the Defendants from administering Section 1005's loan program.

The Plaintiffs are members of the certified class in Miller, which
includes:

     1. All farmers and ranchers in the United States who are
encountering, or who will encounter, racial discrimination from the
United States Department of Agriculture on account of section 1005
of the American Rescue Plan Act.

     2. All farmers and ranchers in the United States who are
currently excluded from the definition of socially disadvantaged
farmer or rancher, as defined in 7 U.S.C. Section 2279(a)(5)-(6)
and as interpreted by the Department of Agriculture.

The Defendants move to stay the case pending resolution of the
class action in Miller. They argue that, as the Plaintiffs are
members of the class certified in Miller, the Defendants will be
bound by any relief granted to the class, should the class prevail
in its Fifth Amendment claim. The Defendants also contend that
permitting the case to proceed separate from the class action would
be unnecessarily duplicative and would risk inconsistent results.
In addition, Miller, and other courts, have issued nationwide
injunctions prohibiting Defendants from implementing the challenged
provisions of Section 1005, thereby maintaining the status quo
between the parties. Accordingly, the Plaintiffs already have the
benefit of the injunctive relief they seek in the present case.

The Plaintiffs object that granting the stay will deprive them of
the opportunity to litigate their claims in the forum of their
choice with the counsel of their choice. They also object that they
have no control over the speed of the Miller litigation and that it
may take years to resolve their claims. They also object that they
have presented an APA claim, which is not present in the Miller
case. Similar arguments have been raised by the plaintiffs in the
parallel district court cases and most courts analyzing Defendants'
similar motions for stay pending resolution of the class action
have granted a stay.

Judge Sullivan joins the majority of other district courts who have
considered the issue and concludes that the interests of judicial
efficiency weigh in favor of a stay. First, she holds that the
requested stay would not unduly prejudice the Plaintiffs, nor would
it present tactical disadvantages to them. The Plaintiffs belong to
the class certified in the Miller case, which involves the same
defendants, general claims, and request for relief as in the
present case. The Miller court ascertained that the class counsel
"will adequately represent the interests of the class members
similarly situated in zealously pursuing the requested relief."

If the Plaintiffs do not feel they are adequately represented by
the class, they may attempt to opt out of the class and move to
lift the stay. Similarly, if Miller is significantly delayed, or
the class is decertified, or the class abandons the claims focusing
on Section 1005, the Plaintiffs may move to lift the stay in this
Court. A stay will avoid unnecessary, duplicative government action
and allow for efficient, consistent litigation.

After weighing all the relevant factors, Judge Sullivan concludes
that a stay is warranted.

For these reasons, Judge Sullivan granted the Defendant's Motion to
Stay, and stayed the case pending resolution of the class challenge
to Section 1005 in Miller or until order of the Court. The
Defendants are ordered to file a status report every 90 days on the
progress of the Miller litigation.

A full-text copy of the Court's Sept. 21, 2021 Opinion & Order is
available at https://tinyurl.com/ybay2hjt from Leagle.com.


PACESETTER PERSONNEL: Villarino Suit Loses FLSA Class Status Bid
----------------------------------------------------------------
In the class action lawsuit captioned as SHANE VILLARINO, LAURA J.
JOHNSON, JEFFERY MONDY, and JEROME GUNN, on behalf of themselves
and all others similarly situated, v. PACESETTER PERSONNEL SERVICE,
INC., a Texas profit corporation; PACESETTER PERSONNEL SERVICE OF
FLORIDA, INC., a Florida profit corporation, and FLORIDA STAFFING
SERVICE, INC., a Florida profit corporation, Case No.
0:20-cv-60192-AHS (S.D. Fla.), the Hon. Judge Raag Singhal entered
an order denying the Plaintiffs' renewed expedited motion for
conditional class certification of Fair Labor Standards Act (FLSA)
collective action and to permit notice.

The Court said, "The conflicting declarations and absence of a
common scheme or policy would necessarily involve resolutions of
tens of thousands of individual claims. This would not serve the
interests of judicial economy that are the underlying rationale for
a collective action. Mancuso v. Fla. Metro. Univ., Inc., 2010 WL
3702511 (S.D. Fla. Sept. 16, 2010); Robinson v. Dolgencorp, Inc.,
2006 WL 3360944 (M.D. Fla. Nov. 13, 2006) ("existence of a common
policy or plan is relevant to the Court's exercise of discretion in
granting conditional certification because the underlying rationale
for granting a collective action is to preserve judicial
economy").

The Court previously granted conditional class certification but
only for employees who worked from Defendants' Fort Lauderdale,
Florida location.

This is an action brought by four named Plaintiffs for unpaid
overtime and minimum wages under the FLSA and Florida's Minimum
Wage Act (FMWA). The Plaintiffs also seek damages for violations of
the Florida Labor Pool Act (FLPA). In addition to the four named
Plaintiffs, approximately 154 "opt-in Plaintiffs" have submitted
Notices of Consent to Join the action as parties.

A copy of the Court's order dated Sept. 23, 2021 is available from
PacerMonitor.com at https://bit.ly/2WGMGbi at no extra charge.[CC]


POLARITYTE INC: Faces Richfield Suit Over 9.52% Stock Price Drop
----------------------------------------------------------------
MARC RICHFIELD, Individually and On Behalf of All Others Similarly
Situated, v. POLARITYTE, INC., DAVID B. SEABURG, JACOB ALEXANDER
PATTERSON, and RICHARD HAGUE, Case No. 2:21-cv-00561-DAO (D. Utah,
Sept. 24, 2021) is a federal securities class action on behalf of a
class consisting of all persons other than the Defendants who
purchased or otherwise acquired PolarityTE securities between April
30, 2020 and August 23, 2021, both dates inclusive seeking to
recover damages caused by the Defendants' violations of the federal
securities laws and to pursue remedies under the Securities
Exchange Act of 1934, against the Company and certain of its top
officials.

According to the complaint, on April 30, 2020, PolarityTE issued a
press release announcing that the Company had decided to pursue a
plan to submit an Investigational New Drug Application ("IND") and
thereafter a Biologics License Application ("BLA") to the U.S. Food
and Drug Administration ("FDA") for SkinTE.

On July 23, 2021, PolarityTE submitted an IND to the FDA seeking
authorization to commence a clinical trial to evaluate SkinTE for
the proposed indication of treatment of chronic cutaneous ulcers
(the "SkinTE IND").

Throughout the Class Period, theg Defendants made materially false
and misleading statements regarding the Company's business,
operational and compliance policies. Specifically, the Defendants
made false and/or misleading statements and/or failed to disclose
that the SkinTE IND was deficient with respect to certain
Chemistry, Manufacturing, and Control items.

On August 24, 2021, PolarityTE issued a press release "providing an
update regarding correspondence from the U.S. Food and Drug
Administration (FDA) related to its Investigational New Drug
Application (IND) for SkinTE (TM) with a proposed indication for
chronic cutaneous ulcers, which was filed on July 23, 2021. The FDA
provided feedback that certain Chemistry, Manufacturing, and
Control (CMC) items need to be addressed prior to proceeding with a
pivotal study. As a result, the study proposed in the IND has been
placed on clinical hold. In accordance with standard practice and
regulations, the FDA has advised that it will issue a clinical hold
letter providing details on the basis for the hold to the Company
by September 21, 2021."

On this news, PolarityTE's stock price fell $0.08 per share, or
9.52%, to close at $0.76 per share on August 24, 2021.

As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages.

The Plaintiff acquired PolarityTE securities at artificially
inflated prices during the Class Period and was damaged upon the
revelation of the alleged corrective disclosures.

PolarityTE, a biotechnology company, develops and commercializes a
range of regenerative tissue products and biomaterials for the
fields of medicine, biomedical engineering, and material sciences
in the United States.

The Company operates through two segments, Regenerative Medicine
Products and Contract Services. It offers SkinTE, a tissue product
used to repair, reconstruction, replacement, and supplementation of
skin in patients for the treatment of acute or chronic wounds,
burns, surgical reconstruction events, scar revision, or removal of
dysfunctional skin grafts, as well as contract research services.

The Individual Defendants are officers of the company.[BN]

The Plaintiff is represented by:

          Jon V. Harper, Esq.
          HARPER LAW, PLC
          P.O. Box 581468
          Salt Lake City, Utah 84158
          Telephone: (801) 910-4357
          E-mail: jharper@jonharperlaw.com

               - and -

          Jeremy A. Lieberman, Esq.
          J. Alexander Hood II, Esq.
          POMERANTZ LLP
          600 Third Avenue, 20th Floor
          New York, NY 10016
          Telephone: (212) 661-1100
          Facsimile: (212) 661-8665
          E-mail: jalieberman@pomlaw.com
                  ahood@pomlaw.com

QUESADILLAS DONA MATY: Does not Properly Pay Workers, Flores Says
------------------------------------------------------------------
Micaela Casimiro Flores, individually and on behalf of others
similarly situated, Plaintiff, v. Quesadillas Dona Maty Corp. and
Matilde Herrera, Defendants, Case No. 21-cv-07947 (S.D. N.Y.,
September 23, 2021), seeks to recover unpaid minimum and overtime
wages and spread-of-hours pay pursuant to the Fair Labor Standards
Act of 1938 and New York Labor Law, including applicable liquidated
damages, interest, attorneys' fees and costs.

Defendants own, operate, or control a Mexican restaurant in New
York under the name "Quesadilla Dona Maty," where Flores was
employed as a food preparer. She claims to have generally worked in
excess of 40 hours a week without overtime for hours in excess of
40 hours per workweek and denied spread-of-hours premium for
workdays exceeding 10 hours. She also claims to have never received
wage statements and appropriate minimum wage. [BN]

Plaintiff is represented by:

      Michael Faillace, Esq.
      MICHAEL FAILLACE & ASSOCIATES, P.C.
      60 East 42nd Street, Suite 4510
      New York, NY 10165
      Tel: (212) 317-1200
      Facsimile: (212) 317-1620
      Email: michael@faillacelaw.com


REAL ESTATE HEAVEN: Stipulation to Extend Class Cert Deadlines OK'd
-------------------------------------------------------------------
In the class action lawsuit captioned as Cynthia Becker v. Real
Estate Heaven International, Inc., Case No. 2:21-cv-02578 (C.D.
Cal.), the Hon. Judge Mark C. Scarsi entered an order granting
stipulation to extend class certification deadlines as follows:

   -- Non-Expert Discovery Cut-Off:       January 3, 2022

   -- Deadline to File a Motion for       October 25, 2021
      Class Certification:

   -- Hearing on Motion for Class         December 20, 2021
      Certification:

   -- Opposition:                         November 15, 2021

   -- Reply:                              December 6, 2021

The suit involves restrictions of use of telephone equipment.

Real Estate specializes in the sale of residential homes.[CC]

ROCKETREACH LLC: Loses Bid to Dismiss Krause's Class Complaint
--------------------------------------------------------------
Judge Elaine E. Bucklo of the U.S. District Court for the Northern
District of Illinois, Eastern Division, denied the Defendant's
motion to dismiss the case, Aimee Krause, individually and on
behalf of all others similarly situated, Plaintiff v. RocketReach,
LLC, a Wyoming limited liability company, Defendant, Case No. 21 CV
1938 (N.D. Ill.).

Background

The class action complaint in the case alleges that Defendant
RocketReach, which owns and operates a website offering paid
subscription access to "the world's largest and most accurate
database of emails and direct dials," violates the Illinois Right
of Publicity Act, IRPA, 765 ILCS 1075/10, by using the Plaintiff's
and the class members' identities for a commercial purpose without
their consent. Specifically, the Defendant allegedly encourages
prospective customers to perform free "people searches" on its
website by typing in a searched individual's first and last name.
The result of such a search is a preview page featuring the
searched individual's full name along with certain uniquely
identifying information, including location, work history, and
education.

The goal of this "preview" page is allegedly twofold: first, it
shows the potential customer that the Defendant's database contains
information about the specific searched--for individual; and
second, it offers a paid subscription service that allows customers
to access additional information not only about the individual
featured in the preview, but also about every individual in
defendant's database. In other words, the Defendant uses the
Plaintiff's and the class members' identities not to sell
information about those individuals, but rather to sell a
subscription service. And because the Defendant does so without
obtaining their prior written consent, it violates the IRPA.

The Defendant moves to dismiss the complaint on four broad grounds:
That the conduct the Plaintiff alleges falls within one or more of
the IRPA's exemptions; that the First Amendment protects the
Defendant's publications and bars the Plaintiff's claims; that the
Defendant is immune from liability under the Communications Decency
Act; and that the Plaintiff's claim runs afoul of the "dormant"
Commerce Clause.

Discussion

The Plaintiff alleges that RocketReach violates the provision of
the IRPA that states, "a person may not use an individual's
identity for commercial purposes during the individual's lifetime
without having obtained previous written consent." To state a claim
under this provision, the Plaintiff must plead (1) the
appropriation of her identity, (2) without her consent, (3) for the
Defendant's commercial benefit.

The Defendant does not meaningfully contend that the Plaintiff
fails to allege each of these elements. In a footnote, it suggests
that the Plaintiff has not adequately alleged "use" of her identity
because she does not assert that anyone performed a search of the
Defendant's database using her name. But the Plaintiff alleges
plainly that the "Defendant used her and the putative class
members' identities on its Marketing Pages, which display the
individuals found within its records that match searched—for
names, alongside uniquely identifying information such as each
person's location, employer name, job title, and links to social
media profiles. This information serves to identify such
individuals to a reasonable audience." Additionally, the complaint
illustrates the alleged use of her name with an image of what
appears to be the result of a search for "Aimee Krause." Nothing
more is required at this stage

IRPA Exemptions

The bulk of the Defendant's argument is not directed to the
elements of the Plaintiff's claim but rather asserts that her claim
fails because it is based on conduct that falls within one or more
of the exemptions the statute contemplates. The argument, however,
according to Judge Bucklo is in the nature of an affirmative
defense, and it does not support dismissal unless the complaint
itself facially establishes each element of the defense. That is
not the case in the case, and in fact, the Defendant's effort to
squeeze the Plaintiff's allegations into the framework of its
affirmative defenses misconstrues the nature of her claim.

First Amendment

The Defendant's arguments grounded in the First Amendment fare no
better, Judge Bucklo opines. "Because the degree of protection
afforded by the First Amendment depends on whether the activity
sought to be regulated constitutes commercial or non-commercial
speech," the Defendant begins by insisting that its database is
merely a "directory" that "does not propose a commercial
transaction" and is entitled to full First Amendment protection. As
she noted, however, Judge Bucklo holds that the Plaintiff's IRPA
claim does not challenge her inclusion in defendant's "directory,"
but rather asserts that the Defendant's use of her identity without
her consent to entice customers to purchase its subscription
service is prohibited by the statute. Her allegations not only
describe "a textbook example under the IRPA of using a person's
identity for a commercial purpose," they also satisfy the
constitutional test for commercial speech.

Communications Decency Act

Nor Judge Bucklo is persuaded that the Plaintiff's claim is barred
by the Communications Decency Act, which provides that "no provider
or user of an interactive computer service will be treated as the
publisher or speaker of any information provided by another
information content provider." The complaint's description of the
Defendant's website is inconsistent with the inference that it
functions as a "passive conduit." The allegations, on their face,
do not establish that the Communications Decency Act shields the
Defendants from liability under the IRPA.

"Dormant" Commerce Clause

The Defendant's final argument is that the Plaintiff's claim runs
afoul of the "dormant" Commerce Clause, which "precludes states and
municipalities from erecting obstacles to interstate commerce even
where Congress has not regulated." The Defendant argues that
applying the IRPA to bar its use of the Plaintiff's and the class
members' identities "burdens RocketReach's ability to engage in
interstate commerce in a way that is wholly out of proportion to
the de minimis state interest in suppressing those results." But
this plainly is not an argument that can be resolved on the
pleadings, Judge Bucklo holds. In other words, the analysis
necessarily involves a balancing test. The complaint simply does
not plead the kinds of facts necessary to determine whether the
interests served by application of the IRPA to the claim here
outweigh the burden, if any, on interstate commerce.

Conclusion

For the foregoing reasons, the motion to dismiss is denied.

A full-text copy of the Court's Sept. 21, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/kx8snc4c from
Leagle.com.


SMART MORTGAGE: Can Compel Arbitration in Noe Unpaid Wages Suit
---------------------------------------------------------------
In the case, BRIAN NOE, et al., Plaintiffs v. SMART MORTGAGE
CENTERS, INC., et al., Defendants, Case No. 21 CV 1668 (N.D. Ill.),
Judge Manish S. Shah of the U.S. District Court for the Northern
District of Illinois, Eastern Division, granted in part and denied
in part the Defendants' motion to compel arbitration.

Background

Plaintiffs Brian Noe and Eileen Pruitt worked as loan officers for
Smart Mortgage Centers. They filed the lawsuit against Smart and
two of its officers, alleging that the Defendants failed to pay
them minimum and overtime wages and deducted money from their
commissions in violation of the Fair Labor Standards Act, the
Illinois Minimum Wage Act, and Illinois's Wage Payment Collection
Act.

As inside sales loan officers for Smart, Noe and Pruitt sold
residential mortgage loans to borrowers from inside the company's
offices. Noe had the job for six years; Pruitt worked for Smart for
less than a year. Both Plaintiffs signed written employment
contracts, which are largely identical. These contracts include a
choice of law provision selecting Illinois law; and a provision
requiring that certain disputes be arbitrated at Smart's
discretion.

The contracts include a provision authorizing Smart to make certain
deductions from amounts due the loan officer, a compensation plan,
and a rider addressing the officer's status under federal and state
minimum wage and overtime laws. Noe and Pruitt were paid on
commission alone. From the Plaintiffs' commissions, Smart deducted
costs for filing and penalties for alleged billing, processing, and
data entry errors. The Plaintiffs routinely worked more than forty
hours in a workweek, but Smart failed to track their hours or to
pay them minimum and overtime wages.

The Plaintiffs filed the lawsuit against Smart seeking unpaid
minimum and overtime wages and other damages under the FLSA and
Illinois's Minimum Wage Act and Wage Payment and Collection Act.
They want to represent two classes of similarly situated loan
officers. The Plaintiffs also named as defendants Richard and Brian
Birk, the president and vice president of Smart. The Birks are not
parties to the contracts.

Analysis

A. The Arbitration Agreement is Enforceable

The Plaintiffs refuse to proceed to arbitration, and so the issues
are the enforceability and scope of the arbitration clause in
Pruitt's and Noe's contracts. Arbitration agreements are
enforceable "save upon such grounds as exist at law or in equity
for the revocation of any contract." The Plaintiffs contend that
the arbitration clause can't be enforced because it is
unconscionable. According to Noe and Pruitt, the provision is
impermissibly vague since it doesn't spell out the cost, timing, or
manner of arbitration, allows defendants to choose when and whether
to arbitrate, and was "designed to unfairly surprise." The
Plaintiffs also object to an application of the provision that
would bar them from asserting class action claims.

Judge Shah opines that the Plaintiffs' arguments for
unconscionability mostly turn on a misunderstanding about what the
Defendants are seeking. Noe and Pruitt are convinced that the
Defendants want to bar class action claims by requiring them to
arbitrate on an individual basis, but that's not the issue. The
Judge says, no class has been certified in the case, and the
Defendants are trying to compel the Plaintiffs -- Noe and Pruitt --
to arbitrate their claims, not to enforce a class action waiver.

The Plaintiffs' other arguments for unconscionability don't add up,
Judge Shah opines. He says, the provision isn't procedurally
unconscionable because Noe and Pruitt have not alleged a lack of
bargaining power or shown why the provision was difficult to
understand. True, the clause is short on detail, but that doesn't
mean that the Plaintiffs weren't aware that they were agreeing to
arbitrate issues that might arise with their employer. Concerning
the substance of the provision, Smart may choose whether to
arbitrate certain claims, but the agreement does not give it
control over the process. Neither the vagueness of the arbitration
procedures nor the discretion given to Smart constitutes terms that
are "inordinately one-sided."

Hence, Judge Shah holds that the arbitration agreement is not
impermissibly vague or unconscionable, and is enforceable.

B. The Arbitration Agreement Covers Plaintiffs' Claims Against
Smart

The Plaintiffs' contracts include an enforceable arbitration
clause. The question now is whether their claims against Smart fall
within the scope of that agreement. Noe and Pruitt say no for two
reasons: First, because their disputes arise under federal and
state statutes, not the employment contracts; second, because the
Plaintiffs are asserting class action claims, and the agreement is
silent as to such claims.

Judge Shah concludes that the agreement is enforceable, the
Plaintiffs' claims against Smart fall within the scope of the
arbitration clause, and the Defendants' motion to compel is granted
as to the claims against Smart. The Judge opines that Noe and
Pruitt signed a broad arbitration clause and their statutory claims
are inextricably linked to the subject matter of the contracts --
their employment by Smart. The issues underlying the Plaintiffs'
statutory claims are all addressed in the contracts. Noe and
Pruitt's minimum and overtime wage claims are disputes that arise
under their agreement because they concern the wages Smart owed the
Plaintiffs as Smart's employees. Similarly, their claims under the
Illinois Wage Payment Collection Act are arbitrable because they
are grounded on the commission payment scheme created by the
employment contracts. Noe and Pruitt agreed to arbitrate disputes
arising under their agreements; their claims center on matters that
the contracts clearly addressed, and so the lawsuit against Smart
falls within the scope of the arbitration provision and is subject
to arbitration.

Plaintiffs Noe and Pruitt also make arguments about the procedures
of arbitration, but these questions are not necessarily for me to
answer. Again, the parties have not fully addressed whether the
contracts' provision for arbitration at the election of Smart sets
a limit on the type of arbitration or if the choice between binding
and nonbinding arbitration amounts to a procedural issue, one that
"grows out of the dispute and bears on its final disposition" and
is presumptively for an arbitrator to decide.

C. The Non-Party Defendants Cannot Compel Arbitration

Judge Shah opines that the arbitration clause is enforceable
against the parties to the contracts: Noe, Pruitt, and Smart.
Non-parties -- Richard and Brian Birk, officers of Smart -- have
also moved to compel arbitration of the Plaintiffs' claims against
them. In Illinois, generally only the parties to an arbitration
agreement can compel arbitration. The Birks say they can compel the
Plaintiffs to arbitrate because Noe and Pruitt allege
"substantially independent and concerted misconduct by both" Smart
and the Birks, and, alternatively, because the Birks are the agents
of a principal (Smart) that is a party to the arbitration
agreement.

Judge Shah holds that both agency and equitable estoppel are
Illinois doctrines under which a non-signatory can enforce an
arbitration agreement. He says, the Defendants' agency argument is
undeveloped, and it fails because they have not offered evidence
that Smart had control and authority over the Birks' work. The
complaint describes Richard Birk as the president of Smart, and
Brian Birk as vice president, and Richard signed each of the
contracts at issue in his official capacity. But job titles and
signatures alone do not show the required elements; without showing
control and authority, the Birks cannot qualify for the agency
exception.

The Defendants' estoppel argument also fails. To prove estoppel,
the Defendants needed to show that Noe and Pruitt induced the Birks
to rely to their detriment on statements or conduct made by
plaintiffs. The Plaintiffs' agreements with Smart did not include
any representations that would induce the Birks to rely on the
arbitration provision, and the Defendants have not identified
evidence that they detrimentally relied on the Plaintiffs'
representations (for good reason, given the procedural posture of
the case). The Birks were not parties to the arbitration agreement
with Noe and Pruitt and have not shown why they have the right to
compel the Plaintiffs to arbitrate claims against them.

For the reasons, the motion to compel is denied as to the
Plaintiffs' claims against Richard and Brian Birk.

Conclusion

Judge Shah granted in part and denied in part the Defendants'
motion to compel arbitration. The Plaintiffs must arbitrate their
claims with Smart and the case is stayed with respect to those
claims pending arbitration. Smart, Noe, and Pruitt will file a
report on the status of arbitration proceedings on Oct. 12, 2021,
and if any party believes additional motion practice is necessary
to settle the scope of arbitration, an appropriate motion should be
filed by Oct. 12, 2021. The Plaintiffs are not compelled to
arbitrate their claims against Richard and Brian Birk. The Birks
will file an answer by Oct. 12, 2021.

A full-text copy of the Court's Sept. 21, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/4mpw3wsr from
Leagle.com.


SOUTHERN NEW HAMPSHIRE: Wright's $1.25MM Settlement Wins Final Nod
------------------------------------------------------------------
In the case, Briana Wright v. Southern New Hampshire University,
Civil No. 20-cv-609-LM (D.N.H.), Judge Landya McCafferty of the
U.S. District Court for the District of New Hampshire grants the
Motion for Final Approval of the Class Action Settlement and the
settlement class' Motion for Attorneys' Fees, Costs, Expenses, and
Incentive Award.

Plaintiff Wright brought the class action on her own behalf and on
behalf of a proposed class of students and former students of
defendant Southern New Hampshire University ("SNHU") who paid
tuition and fees for in-person educational services during SNHU's
spring 2020 semester. On Jan. 25, 2021, following intensive,
non-collusive, arm's-length negotiations and substantial exchange
of information, the parties reached an agreement to settle their
dispute, subject to the court's approval.

On March 3, 2021, Plaintiff Wright filed a Motion for Preliminary
Approval of Class Action Settlement. On March 12, 2021, the parties
served the Class Action Fairness Act ("CAFA") notice required by 28
U.S.C. Section 1715.

On April 26, 2021, the Court issued an order granting the Motion
for Preliminary Approval of Class Action Settlement. In that order,
the Court conducted a rigorous and searching analysis of whether it
would likely be able to certify the class for the purposes of
settlement and find that the proposed settlement is fair,
reasonable, and adequate. The Court preliminarily certified the
proposed class for settlement purposes, provisionally appointed
Wright as the class representative and her counsel of record,
Bursor & Fisher, P.A., as the class counsel, and preliminarily
approved the proposed settlement.

On May 17, 2021, the Settlement Administrator sent the Notice of
Proposed Settlement of Class Action to the settlement class members
as ordered.

On July 29, 2021, the Court held a fairness hearing regarding the
parties' proposed class action settlement. At the Court's
invitation, on Aug. 12, 2021, the class counsel filed a
supplemental memorandum in support of the settlement class's motion
for award of attorney fees.

Having considered the settlement class's Motion for Final Approval
of the Class Settlement and the statements made at the fairness
hearing, Judge McCafferty now grants final approval of the parties'
proposed settlement agreement.

For purposes of settlement only, pursuant to Rule 23(a) and (b)(3)
of the Federal Rules of Civil Procedure, the Judge further
certifies the action as a class action, composed of the following
individuals: "All students and former students of Defendant SNHU
who paid, or on whose behalf payment was made to the Defendant in
connection with its Spring 2020 Semester for tuition and fees for
in-person educational services, and whose tuition and fees have not
been refunded."

Judge McCafferty finally approves the terms of the parties'
settlement agreement and the plan of allocation, the material terms
of which include, but are not limited to, the following:

      A. The Defendant will pay $1.25 million into a Settlement
Fund to be held in escrow pending disbursement to class members;

      B. The Class counsel will receive attorneys' fees of
$416,666.66 from the Settlement Fund;

      C. The Settlement administration costs incurred by the
Settlement Administrator, JND Legal Administration LLC, will be
deducted from the Settlement Fund;

      D. Plaintiff Wright will receive an incentive award in the
amount of $5,000 for her contributions to the litigation and
services to the settlement class, including incurring the risks and
burdens of litigation on behalf of the class members;

      E. Class members who do not elect to exclude themselves from
the settlement will automatically receive a pro rata cash payment
from the remaining Settlement Fund as a percentage of the total
amount of tuition and fees they paid to SNHU in connection with its
spring 2020 semester, without needing to submit a claim form, as
set forth in the parties' settlement agreement; and

      F. The settlement class members who did not exclude
themselves are bound by the terms of the parties' settlement
agreement, including all releases therein, and their claims are
dismissed with prejudice.

The Order is binding on all settlement class members other than
those, if any, who either validly and timely excluded themselves
from the settlement class and the settlement agreement, or whose
late exclusion was or will be agreed to by the parties.

The action is dismissed with prejudice as to all other issues and
as to all parties and claims.

As of the date 10 days after the Order issues, the Released Parties
will be released and forever discharged by all settlement class
members (except those individuals, if any, who validly excluded
themselves or will exclude themselves from the settlement class and
the settlement agreement) from any and all Claim, known or unknown,
arising out of any facts, transactions, events, matters,
occurrences, acts, disclosures, statements, representations,
omissions or failures to act regarding SNHU's actions or decisions
in respect to the Spring 2020 academic term.

The Court retains continuing and exclusive jurisdiction over the
parties and the administration of the settlement agreement only
with respect to the distribution of the Settlement Fund.

In conclusion, Judge McCafferty grants the settlement class' Motion
for Final Approval of the Class Action Settlement and the
settlement class' Motion for Attorneys' Fees, Costs, Expenses, and
Incentive Award. All pending motions, if any, are denied as moot.
The Clerk's office is directed to enter judgment and close the
case.

A full-text copy of the Court's Sept. 22, 2021 Final Order is
available at https://tinyurl.com/vj4k9h5 from Leagle.com.


SPARC GROUP: Seger-Zawacki Files Suit in Cal. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against Sparc Group LLC, et
al. The case is styled as Alison Seger-Zawacki, and on behalf of
all others similarly situated v. Sparc Group LLC, Eddie Bauer LLC,
Case No. 34-2021-00308184-CU-BT-GDS (Cal. Super. Ct., Sacramento
Cty., Sept. 17, 2021).

The case type is stated as "Business Tort Civil - Unlimited."

SPARC Group LLC -- https://www.sparcgroup.com/ -- is a fashion
industry leader that designs, sources, manufactures, distributes
and markets women's, men's and kids apparel.[BN]

The Plaintiff is represented by:

          Daniel M. Hattis, Esq.
          HATTIS & LUKAS
          400 108th Ave. NE, Suite 500
          Bellevue, WA 98004
          Phone: (425) 233-8628
          Fax: (425) 412-7171
          Email: dan@hattislaw.com


STA MANAGEMENT: Mata's State Law Claim Suit Dismissed W/o Prejudice
-------------------------------------------------------------------
In the case, JESUS MATA, individually and on behalf of similarly
situated persons, Plaintiff v. STA MANAGEMENT, LLC d/b/a "Domino's
Pizza" and AMER ASMAR, et al., Defendants, Case No. 19-11662 (E.D.
Mich.), Judge Nancy G. Edmunds of the U.S. District Court for the
Eastern District of Michigan, Southern Division, dismissed without
prejudice the Plaintiff's state law claim found in Count II of his
amended complaint.

The lawsuit is a Fair Labor Standards Act ("FLSA") case brought as
an "opt in" collective action in which Plaintiff Mata alleges that
Defendants failed to pay their delivery drivers minimum wage. The
Plaintiff's motion for FLSA conditional certification and notice
pursuant to 29 U.S.C. Section 216(b) was recently granted by the
Court. The Plaintiff also brings a claim under Michigan minimum
wage law in the lawsuit. The Plaintiff's motion for class
certification of that claim under Federal Rule of Civil Procedure
23(b)(3) is pending before the Court. The Court previously entered
an order in this matter, ordering Plaintiff to show cause in
writing why the Court should not decline to exercise supplemental
jurisdiction over his state claim. The Plaintiff has now responded
to the Court's order. He asks the Court to retain jurisdiction over
the claim.

Judge Edmunds explains that courts may decline to exercise
supplemental jurisdiction over a state law claim if: (1) the claim
raises a novel or complex issue of State law, (2) the claim
substantially predominates over the claim or claims over which the
district court has original jurisdiction, (3) the district court
has dismissed all claims over which it has original jurisdiction,
or (4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.

The Supreme Court has recognized the likelihood of jury confusion
as an appropriate factor to be considered under Section 1367(c).
When deciding whether to exercise supplemental jurisdiction over a
plaintiff's state law claims, courts consider and weigh "the values
of judicial economy, convenience, fairness, and comity." They have
"broad discretion" in making this determination.

As the Court noted in its order to show cause, while a FLSA
collective action and a state law class action can "coexist," there
are significant differences between the two. Those differences
include the scope of relief available; that a potential plaintiff
must opt-in to a FLSA collective action, Section 216(b), while
putative members of a class action may opt out of the class, Fed.
R. Civ. P. 23(c)(2)(B); and that the FLSA's "similarly situated"
requirement is less stringent than Rule 23(b)(3)'s requirement that
common questions predominate for a class to be certified.

The Plaintiff states "the only significant additional requirement
in state law" relates to the tip credit exemption, but Judge
Edmunds finds that he does not elaborate further on his previous
contention that Michigan law provides additional claims and
remedies for wage and reimbursement abuses. And both cases the
Plaintiff provides as examples of instances in which federal courts
in this state exercised supplemental jurisdiction over a Michigan
wage claim in a FLSA action and made determinations related to
Michigan minimum wage law claims arose in the context of a motion
to dismiss for failure to state a claim.

In sum, Judge Edmunds finds the Plaintiff's argument regarding
efficiency is outweighed by the concerns regarding the differences
between the federal and state claims which may complicate the case
and give rise to a risk of jury confusion. Even though convenience
may weigh in favor of exercising supplemental jurisdiction, the
Judge holds that considerations of judicial economy and comity
weigh in favor of declining to exercise that jurisdiction. And it
would not be unfair to the Plaintiff to dismiss his state law claim
because the dismissal is without prejudice and he can bring his
state law claim in state court. The Judge therefore declines to
exercise supplemental jurisdiction over the Plaintiff's Michigan
minimum wage claim.

Accordingly, the Plaintiff's state law claim found in Count II of
his amended complaint is dismissed without prejudice. The
Plaintiff's motion for Rule 23 class certification of his state law
claim is denied as moot.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/2kchpt8c from Leagle.com.


STATE FARM: Court Grants Pete's Bid for Leave to Amend Complaint
----------------------------------------------------------------
In the case, EILEEN PETE, on behalf of herself and all others
similarly situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, Defendant, Case No. 4:21-cv-00056 KGB (E.D.
Ark.), Judge Kristine G. Baker of the U.S. District Court for the
Eastern District of Arkansas, Central Division:

    (i) denies as moot Defendant State Farm's motion to dismiss
        Ms. Pete's first amended class-action complaint; and

   (ii) grants Ms. Pete's motion for leave to amend complaint.

Background

Ms. Pete brought her class-action complaint and first amended
class-action complaint in the Circuit Court of Conway County,
Arkansas. State Farm removed the case to the Court pursuant to the
Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Sections
1332(d) and 1453, and pursuant to 28 U.S.C. Sections 1332(a), 1367,
1441, and 1446.

Ms. Pete asserts the following facts in her operative complaint,
unless otherwise noted. State Farm sold insurance policy No.
2398864F2304E to Ms. Pete. The policy provided underinsured
motorist coverage that provided that if Ms. Pete was involved in an
automobile accident with an underinsured or uninsured motorist,
State Farm would pay any and all damages, including reasonable
medical expenses, in accordance with Arkansas law. Ms. Pete paid
all premiums for the policy.

On Dec. 28, 2019, Ms. Pete was stopped for traffic on the westbound
off-ramp of Interstate 40, at the intersection of Highway 9 in
Conway County, Arkansas, when she was rear ended by a vehicle being
operated by Robert Whisenant. The collision resulted in property
damage to both vehicles and personal injury to Ms. Pete.

Under the terms of Ms. Pete's policy with State Farm, Mr. Whisenant
was an underinsured motorist when his alleged negligence directly
and proximately caused Ms. Pete personal injuries and damages. Ms.
Pete asserts that State farm has a duty to pay benefits in a sum
consistent with her damages under the policy because her damages
are in excess of the amount of Mr. Whisenant's policy limits of
$25,000. Ms. Pete provided State Farm with proof of loss under
Arkansas Code Annotated Section 23-89-209 and made a claim for
underinsured motorist coverage under her policy.

Ms. Pete contends that State Farm has denied sufficient payment on
her claim for underinsured motorist coverage due to its valuing the
medical expenses at twice the amount that Medicare would pay rather
than valuing her claim in accordance with Arkansas law. She further
asserts that, "based on good faith knowledge and belief, State
Farm's practice of discounting reasonable medical expenses by
refusing to pay any amount in excess of twice the Medicare rate has
been uniformly applied to the Defendant's Arkansas customers." Ms.
Pete claims that State Farm's "discounting practice" violates
Arkansas insurance laws in several ways.

In her operative complaint, Ms. Pete raises claims on her own
behalf and on behalf of all others similarly situated. She asserts
claims for: (1) breach of contract; (2) unjust enrichment; and (3)
tort of bad faith.

State Farm moves to dismiss the operative complaint. It argues that
Ms. Pete's claim fails to state a claim for breach of contract
because: (1) Ms. Pete has failed to allege facts to establish that
she is entitled to underinsured motorist benefits; (2) Ms. Pete
fails to allege a breach of the policy by State Farm; and (3) Ms.
Pete alleges no facts establishing that valuing her medical
expenses at twice Medicare, if that occurred, would breach State
Farm's duty under the policy. State Farm also contends that Ms.
Pete has failed to state claims for unjust enrichment and for bad
faith.

Ms. Pete responded to State Farm's motion, and State Farm replied
to the response. She also filed a motion for leave to amend her
complaint.

Discussion

I. Futility

Ms. Pete provides a copy of her proposed second amended complaint.
Judge Baker has reviewed her proposed second amended complaint and
compared it to the operative complaint. Ms. Pete's proposed second
amended complaint pleads the same three causes of action as the
operative complaint: (1) breach of contract; (2) unjust enrichment;
and (3) tort of bad faith. Her proposed amendments add factual
allegations that are missing from her operative complaint. These
allegations provide additional context to Ms. Pete's claims. In
addition, Ms. Pete's proposed amendments add an allegation that
State Farm has no defense to explain their "willful misconduct of
'skimming off the top,' which it knew was a violation of Arkansas
law." Her proposed second amended complaint seeks declaratory and
injunctive relief as well as punitive damages.

In response to the motion for leave to amend, State Farm maintains
that granting the motion to amend would be futile because Ms.
Pete's proposed second amended complaint does not correct the
alleged deficiencies in her operative complaint. It asserts that
the proposed second amended complaint's claims for declaratory and
injunctive relief are subject to dismissal "based on the same
flawed theories as Plaintiff's other claims" and also on the
grounds that Ms. Pete "lacks standing to seek such relief." It
asserts that, if the Court permits Ms. Pete to file her second
amended complaint, it will file a motion to dismiss the second
amended complaint under Rule 12 of the Federal Rules of Civil
Procedure.

Judge Baker rejects State Farm's assertion that permitting Ms. Pete
to file the proposed second amended complaint would be futile.

A. Breach of Contract

State Farm argues that Ms. Pete has not stated a claim for breach
of contract because (1) Ms. Pete fails to allege facts to establish
that she is entitled to underinsured motorist benefits; (2) Ms.
Pete fails to allege a breach of the policy by State Farm; and (3)
Ms. Pete alleges no facts to establish that valuing her medical
expenses at twice Medicare, if that occurred, would breach State
Farm's duty under the policy.

First, Judge Baker holds that Ms. Pete has alleged sufficient facts
to establish that she is entitled to underinsured motorist benefits
under the policy she purchased from State Farm. In her operative
complaint, Ms. Pete alleges that State Farm sold her an insurance
policy that provided underinsured motorist coverage that was in
full force at the time of her motor vehicle accident involving an
underinsured motorist.

Next, Judge Baker finds that Ms. Pete has pled sufficient facts in
her proposed second amended complaint to assert that she and State
Farm have failed to agree on the amount of compensatory damages she
is entitled to recover under the policy. Again, in her proposed
second amended complaint, Ms. Pete alleges that she incurred
medical bills in the amount of $23,532.75 and that State Farm, in
evaluating her underinsured motorist claim, discounted her medical
bills to $13,381.23.

Judge Baker also finds that the facts Ms. Pete pleads in her
proposed second amended complaint, accepted as true, are sufficient
at this stage to state a claim for breach of contract that is
plausible on its face. The Judge finds that granting Ms. Pete's
motion to file a second amended complaint would not be futile as to
her breach of contract claim.

B. Unjust Enrichment

State Farm next asserts that Ms. Pete cannot state claims for
unjust enrichment because Ms. Pete has not alleged facts supporting
her "conclusory allegation that State Farm failed to properly value
and pay her reasonable medical expenses" It argues that Ms. Pete
does not plead "any additional facts" and "makes no effort to
remedy the legal defects" concerning her unjust enrichment claim in
the proposed second amended complaint.

Judge Baker holds that Ms. Pete's assertions are sufficient, at
this stage, to allege that State Farm retained money to which it
may not have been entitled and has unjustly enriched itself at the
expense of Ms. Pete and other potential class members. The Judge
also rejects the arguments that Ms. Pete's motion for leave to
amend is futile as to her unjust enrichment claim against State
Farm.

C. Bad Faith

State Farm contends that Ms. Pete's claim for bad faith is "based
on the same conduct that forms the basis of her other flawed
claims" and because the allegations "do not establish 'affirmative
misconduct,' the bad faith claim also fails." It also asserts that
the allegations in Ms. Pete's complaint "fall far short of the
rigorous standard set by Arkansas law for bad faith claims." State
Farm argues that Ms. Pete does not plead "any additional facts"
concerning her bad faith claim in the proposed second amended
complaint and she "makes no effort to remedy the legal defects" to
her unjust enrichment claim.

Taking the allegations in the operative and proposed second amended
complaint as true, Judge Baker holds that Ms. Pete has sufficiently
pled that State Farm has engaged in dishonest, malicious, or
oppressive conduct in order to avoid an obligation. The Judge
rejects State Farm's assertion of futility on Ms. Pete's bad faith
claim.

For these reasons, Judge Baker, in accordance with the liberal
amendment policy of Federal Rule of Civil Procedure 15(a), finds
that granting Ms. Pete's motion for leave to amend would not be
futile. She grants Ms. Pete's motion for leave to amend complaint
and directs Ms. Pete to file her proposed second amended complaint
within 14 days of the entry of the Order.

II. Motion To Dismiss

On Jan. 29, 2021, State Farm filed a motion to dismiss asserting
that Ms. Pete's complaint fails to establish a prima facie case for
any of her asserted causes of action. In response, Ms. Pete asserts
that the Court must accept the allegations in the operative
complaint as true and construe the operative complaint and all
reasonable inferences arising from it in her favor. Ms. Pete
contends that she has stated sufficient facts in her operative
complaint upon which relief can be granted and, therefore, State
Farm's motion to dismiss should be denied.

Judge Baker explains that as a general proposition, if a defendant
files a Motion to Dismiss, and the plaintiff later files an Amended
Complaint, the amended pleading renders the defendant's motion to
dismiss moot," citing Oniyah v. St. Cloud State Univ., 655
F.Supp.2d 948, 958 (D. Minn. 2009) (citing Pure Country, Inc. v.
Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) ("If
anything, plaintiff's motion to amend the complaint rendered moot
defendant's motion to dismiss the original complaint."); Standard
Chlorine of Del., Inc. v. Sinibaldi, 821 F.Supp. 232, 239-40 (D.
Del. 1992) (finding that plaintiff's filing of an amended complaint
rendered defendant's motion to dismiss moot)).

Judge Baker holds that under Eighth Circuit precedent, the Court's
granting of Ms. Pete's motion for leave to amend renders moot State
Farm's previously filed motion to dismiss. Accordingly, the Judge
denies as moot State Farm's pending motion to dismiss.
Judge Baker recognizes that State Farm's arguments for dismissing
Ms. Pete's claims might remain the same in response to Ms. Pete's
proposed second amended complaint as they were in response to her
operative complaint given State Farm's representation that "if the
Court does decide to grant leave to the Plaintiff to file the
second amended complaint, State Farm will present its arguments as
to the deficiencies of the second amended complaint, including the
newly-asserted claim for declaratory and injunctive relief, by way
of a fully-developed Rule 12 Motion." Should State Farm seek to
dismiss Ms. Pete's second amended complaint, State Farm must file a
separate motion responsive to the second amended complaint.

Conclusion

Judge Baker grants Ms. Pete's motion for leave to amend complaint.
She directs Ms. Pete to file her second amended complaint within 14
days from the entry of the Order. The Judge denies as moot State
Farm's motion to dismiss Ms. Pete's operative complaint.

A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/52buzdcf from Leagle.com.


SYMMETRY ENERGY: CRI Bid to Certify Class Due July 21, 2022
-----------------------------------------------------------
In the class action lawsuit captioned as CERTIFIED ROSES, INC.,
Individually and on Behalf of All Others Similarly Situation, ET
AL. v. SYMMETRY ENERGY SOLUTIONS, Case No. 2:21-cv-00133-JRG-RSP
(E.D. Tex.), the Hon. Judge Roy S. Payne entered an order that the
following schedule of deadlines is in effect until further order of
the Court:

   -- January 26, 2023       Motion to Certify Class Hearing --
                             9:00 a.m. in Marshall, Texas before
                             Judge Roy Payne

   -- January 11, 2023       Prehearing Conference -- 1:30 p.m.
                             in Marshall, Texas before Judge Roy
                             Payne

   -- December 9, 2022       Response to Dispositive Motions
                             (including Daubert Motions).
                             Responses to dispositive motions
                             filed prior to the dispositive
                             motion deadline, including Daubert
                             Motions, shall be due in accordance
                             with Local Rule CV-7(e). Motions
                             for Summary Judgment shall comply
                             with Local Rule CV-56.

   -- November 10, 2022      Deadline for Filing Dispositive
                             Motions and any other motions that
                             may require a hearing; including
                             Daubert motions.

   -- November 10, 2022      Defendants' Sur-Reply to
                             Plaintiff's Motion to
                             Certify Class

   -- October 31, 2022       Mediation to be completed

   -- October 21, 2022       Plaintiff's Reply to Defendants'
                             Response to Plaintiff's Motion to
                             Certify Class

   -- September 21, 2022     Defendants' Response to Plaintiff's
                             Motion to Certify Class

   -- July 21, 2022          Plaintiffs' Motion to Certify Class

   -- October 21, 2022       Plaintiff's Reply to Defendants'
                             Response to Plaintiff's Motion to
                             Certify Class

   -- September 21, 2022     Defendants' Response to Plaintiff's
                             Motion to Certify Class

Symmetry Energy is a leading energy supplier providing over 1
trillion cubic feet of natural gas to more than 100,000 customers
in over 30 states.

A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/3ipDOOY at no extra charge.[CC]

SYSTEMS & SERVICES: Tran Sues Over False and Inaccurate Statements
------------------------------------------------------------------
Chuong Tran, on behalf of himself and all others similarly situated
v. SYSTEMS & SERVICES TECHNOLOGIES, INC.; EQUIFAX INFORMATION
SERVICES, LLC; EXPERIAN INFORMATION SOLUTIONS, INC. AND TRANS
UNION, LLC, Case No. 1:21-cv-04953 (N.D. Ill., Sept. 17, 2021), is
brought under the Fair Debt Collection Practices Act, pursuant to
the Fair Credit Reporting Act.

According to Defendant SST, Plaintiff incurred a debt, originally
for a BorrowersFirst consumer credit account. The Plaintiff used
the Account primarily for personal, family, and household
purchases. The Plaintiff did not make payments on the Account when
due and it went into default. BorrowersFirst charged off the
Account. SST subsequently began collecting the Account.

On April 30, 2021, SST communicated credit information regarding
the Account to the TransUnion consumer reporting agency, including
an account number, the original creditor, and a balance. SST
communicated a balance of $14,001. SST sent a letter to the
Plaintiff on July 3, 2021 (the "Letter"), attempting to collect the
Account. The Letter stated that the total balance due was
$9,762.80. The Plaintiff had not made any payments on the Account.
Either the credit information communicated to TransUnion--that the
account balance on April 30, 2021 was $14,001.00--or the credit
information communicated to the Plaintiff in the Letter--that the
account balance was $9,762.80--was false; both amounts cannot be
correct as the account balance cannot decrease over time in absence
of any payments. SST communicated credit information which it knew
or should have known to be false, in violation of the FDCPA, when
it communicated varying balances on an debt to TransUnion and to
the Plaintiff.

The Letter also listed late charges in the amount of $190. SST
cannot charge a late fee as the debt has been charged off and
accelerated. The Plaintiff was confused by the additional late
charges to the balance because late charges could not accrue on the
Account. The unsophisticated consumer would be confused by the
inclusion of a late fee because late charges could not accrue on
the account. In fact, late charges were never going to be assessed
on the Account as the Account had already been accelerated. SST
violated of the FDCPA when it charged late fees when it could not
charge late fees on the Account. Equifax, Experian, and TransUnion
blindly relied on information provided by a furnisher it knew or
should have known to be violating federal law with respect to its
credit reporting policies and failed to conduct its own
reinvestigation. The information being reported by Equifax,
Experian, and TransUnion is not accurate, says the complaint.

The Plaintiff is a resident of the State of Illinois, from who
Defendant, SST attempted to collect a delinquent consumer debt owed
for a Borrowers First consumer credit account.

Systems & Services Technologies, Inc. is engaged in the business of
a collection agency.[BN]

The Plaintiff is represented by:

          Michael Wood, Esq.
          Celetha Chatman, Esq.
          COMMUNITY LAWYERS, LLC
          980 N. Michigan Ave, Suite 1400
          Chicago, IL 60611
          Phone: (312) 757-1880
          Fax: (312) 265-3227
          Email: cchatman@communitylawyersgroup.com


T-MOBILE USA: Feinberg Sues Over Failure to Secure PII
------------------------------------------------------
David H. Feinberg, Lisa M. Jackson, and Lakisatha D. King,
individually, and on behalf of all others similarly situated v.
T-MOBILE USA, INC. and Does 1 through 100, inclusive, and each of
them, Case No. 2:21-cv-07531-JAK-PD (C.D. Cal., Sept. 20, 2021), is
brought against the Defendants by failing to implement reasonable
safeguards to ensure the Plaintiffs' and Class members' personal
identifying information ("PII") was adequately protected.

According to the complaint, the Defendants and each of them have
admitted they are the subject of a yet another massive data breach
that affected millions of its customers. The stolen customer PII
the hackers have sold and continue to market for sale is believed
to include: customers' names, addresses, social security numbers,
drivers' license information, phone numbers, dates of birth,
security PINs, phone numbers, and, for some customers, unique IMSI
and IMEI numbers (embedded in customer mobile devices that identify
the device and the SIM card that ties that customer's device to a
telephone number)—all going back as far as the mid-1990s. As a
result of the Data Breach and because the stolen data is being
active marketed for sale, numerous entities are suggesting that
affected consumers take steps to protect their identities.

T-Mobile was aware or should have been aware of its obligations to
protect its customers' PII and privacy before and during the Data
Breach yet failed to take reasonable steps to protect customers
from unauthorized access. The Plaintiffs and Class members have
suffered and will continue to suffer harm because of the Data
Breach. The Plaintiffs and Class members face an imminent and
substantial risk of injury of identity theft and related
cyber-crimes due to the Data Breach.

The Plaintiffs and Class Member customers have failed to receive
the value of the T- Mobile services for which they paid and/or
would have paid less had they known that T-Mobile was failing to
use reasonable security measures to secure their data. T-Mobile
requires its customers to provide a significant amount of highly
personal and confidential PII to purchase its good and services.
Defendant collects, stores, and uses this data to maximize profits
while failing to encrypt or protect it properly. T-Mobile has legal
duties to protect its customers' PII by implementing reasonable
security features. This duty is further defined by federal and
state guidelines and industry norms.

The Defendants and each of them breached their duties by failing to
implement reasonable safeguards to ensure the Plaintiffs' and Class
members' PII was adequately protected. As a direct and proximate
result of this breach of duty, the Data Breach occurred, and the
Plaintiffs and Class members were harmed. The Plaintiffs and Class
members did not consent to having their PII disclosed to any
third-party, much less a malicious hacker who would sell it to
criminals on the dark web, says the complaint.

The Plaintiffs are residents of the State of California, County of
Los Angeles, and San Bernardino and were customers of the
Defendants and each of them.

T-MOBILE USA, INC. and Does 1 through 100, inclusive, and each of
them, were corporations and/or other business entities form unknown
conducting business in the State of California, County of Los
Angeles.[BN]

The Plaintiffs are represented by:

          Sanford A. Kassel, Esq.
          Gavin P. Kassel, Esq.
          SANFORD A. KASSEL, A Professional Law Corporation
          Wells Fargo Bank Building, Suite 207
          334 West Third Street
          San Bernardino, CA 92401
          Phone: (909) 884-6451
          Fax: (909) 885-8032
          Email: office@skassellaw.com
                 gavin@skassellaw.com
                 sandy@skassellaw.com


THOMAS VILSACK: Wins Bid to Stay Dunlap Class Suit
--------------------------------------------------
In the class action lawsuit captioned as KATHRYN DUNLAP and JAMES
DUNLAP, v. THOMAS J. VILSACK and ZACH DUCHENEAUX, Case No.
2:21-cv-00942-SU (D. Or.), the Hon. Judge Patricia Sullivan entered
an order:

   1. granting the Defendant's motion to stay;

   2. staying case pending resolution of the class challenge to
      Section 1005 in Miller v. Vilsack, Case No. 4:21-cv-0595-O
      (N.D. Tex.) or until order of this Court; and

   3. directing the Defendants to file a status report every 90
      days on the progress of the Miller litigation.

The Court joins the majority of other district courts who have
considered the issue and concludes that the interests of judicial
efficiency weigh in favor of a stay.

First, the requested stay would not unduly prejudice Plaintiffs,
nor would it present tactical disadvantages to Plaintiffs. The
Plaintiffs belong to the class certified in the Miller case, which
involves the same defendants, general claims, and request for
relief as in the present case. The Miller court ascertained that
class counsel "will adequately represent the interests of class
members similarly situated in zealously pursuing the requested
relief," the Court says.

If Plaintiffs do not feel they are adequately represented by the
class, they may attempt to opt out of the class and move to
lift the stay. Similarly, if Miller is significantly delayed, or
the class is decertified, or the class abandons the claims focusing
on Section 1005, Plaintiffs may move to lift the stay in this
Court. A stay will avoid unnecessary, duplicative government action
and allow for efficient, consistent litigation. After weighing all
the relevant factors, the Court concludes that a stay is
warranted.

A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/3l0QNZ1 at no extra charge.[CC]

TRADITIONAL LOGISTICS: Daniels Suit Seeks to Certify Class Action
-----------------------------------------------------------------
In the class action lawsuit captioned as SAMUEL DANIELS and LETICIA
ANDERSON, on behalf of themselves and a class of others similarly
situated, v. TRADITIONAL LOGISTICS AND CARTAGE, LLC, et al., Case
No. 4:20-cv-00869-RK (W.D. Mo.), the Plaintiffs ask the Court to
enter an order:

   1. certifying this case as a class action;

   2. defining two classes as: (a) "All Black/African-American
      Casual Drivers who were employed by Defendant TLC at its
      Kansas City, Missouri facility between May 2018 and the
      present"; and (b) "All Black/African-American Casual
      Drivers who were employed by Defendant TLC at its Kansas
      City Missouri facility between May 2019 and the present."

   3. appointing them as class representatives;

   4. appointing M. Katherine Paulus and Joshua P. Wunderlich as
      class counsel; and

   5. granting such other relief as this Court deems just and
      proper.

This case is about a company that makes hollow, insincere attempts
to meet its legal obligations to prevent discrimination in the
workplace, which -- when coupled with its practice of unfettered
managerial discretion -- has resulted in a demonstrable pattern or
practice of discriminatory treatment towards an entire cohort of
its Black employees.

A copy of the Plaintiffs' motion to certify class dated Sept. 24,
2021 is available from PacerMonitor.com at https://bit.ly/2Yghsbe
at no extra charge.[CC]

The Plaintiffs are represented by:

          Joshua P. Wunderlich, Esq.
          M. Katherine Paulus, Esq.
          Joshua P. Wunderlich, Esq.
          CORNERSTONE LAW FIRM
          5821 NW 72nd Street
          Kansas City, MO 64151
          Telephone (816) 581-4040
          E-mail: m.paulus@cornerstonefirm.com
                  j.wunderlich@cornerstonefirm.com

The Defendants are represented by:

          Thomas E. Rice, Esq.
          David M. Eisenberg, Esq.
          John L. Kellogg, Esq.
          Teresa E. Hurla, Esq.
          Nicholas S. Ruble. Esq.
          BAKER STERCHI COWDEN & RICE LLC
          2400 Pershing Road, Suite 500
          Kansas City, MO 64108
          E-mail: rice@bscr-law.com
                  eisenberg@bscr-law.com
                  jkellogg@bscr-law.com
                  thurla@bscr-law.com
                  nruble@bscr-law.com

TRAVELEX INSURANCE: $3.2MM Class Deal in Anderson Suit Has Final OK
-------------------------------------------------------------------
In the case, MICHELLE ANDERSON, an individual, on behalf of herself
and all others similarly situated, Plaintiff v. TRAVELEX INSURANCE
SERVICES INC. and TRANSAMERICA CASUALTY INSURANCE COMPANY,
Defendants, Case No. 8:18-CV-362 (D. Neb.), Judge John M. Gerrard
of the U.S. District Court for the District of Nebraska granted the
Plaintiff's Motion for Final Approval of Class Action Settlement
and the Plaintiff's Motion for Approval of Attorney's Fees,
Expenses and Service Award.

Background

The action was filed on July 30, 2018. The Plaintiff charged the
Defendants with, generally speaking, wrongfully retaining premiums
for illusory insurance coverage. The Defendants moved to dismiss
some or all of the Plaintiff's claims on two separate occasions,
but the Court denied each motion. The Defendants also moved for
certification of an interlocutory appeal, but the Court denied that
motion as well. After that, the parties went to mediation. A few
months later, the parties advised the Court that they had reached a
settlement.

The Plaintiffs filed an unopposed motion, pursuant to Fed. R. Civ.
P. 23(b) & (e), to certify the settlement class, preliminarily
approve the settlement agreement, and approve the form and manner
of notice to the class. The Court granted that motion, finding,
among other things, that the action could be maintained as a class
action; the prerequisites to class certification under Rule 23(a)
had been satisfied; and certification of the settlement class was
superior to other available methods for the fair and efficient
resolution of this controversy, satisfying Rule 23(b)(3).

The Court designated a class representative, appointed settlement
class counsel and a claims administrator, and scheduled a fairness
hearing. And it reviewed the forms of notice submitted by the
parties, approved them as to form, and approved their plan for
directing notice to the class members, finding it provided the best
notice practicable under the circumstances and was in compliance
with Rule 23 and the requirements of due process.

Notice was sent to identify class members, setting a deadline for
the class members to request exclusion from the class or object to
the settlement. Notices were also sent as required by 28 U.S.C.
Section 1715. Neither the claims administrator nor the Court
received any objection that the proposed settlement was unfair to
the settlement class. Accordingly, the Plaintiffs filed the present
motions. A fairness hearing was held, at which no objecting class
members or other objectors appeared.

Discussion

Judge Gerrard finds that the settlement agreement is fair,
reasonable, and adequate within the meaning of Rule 23(e)(2), and
will approve it.

With respect to the attorneys' fees and expenses, Judge Gerrard is
aware that the separate negotiation of attorney fees may present an
opportunity for abuse. But he finds no basis to suspect any type of
abuse or collusion. He also notes that the potential award of fees
and expenses was disclosed in the notices to class members,
including the amount, and no objections to the amount of the fees
and costs were received. Given the time and skill necessary to
litigate the case, including an appeal, and the result obtained in
a contingency-fee case, Judge Gerrard finds that the requested
attorney's fees and non-taxable costs are reasonable, and will
grant them.

Finally, the class representative seeks a service award of $6,500.
It is within the Court's discretion to award service awards to a
plaintiff who served as a class representative, considering the
actions he took to protect the class's interests, the degree to
which the class has benefitted from those actions, and the amount
of time and effort she expended in pursuing the litigation. There
has been no objection to the service award proposed here, and Judge
Gerrard finds that it is fair, reasonable, and properly based in
the benefit to the class members generated by the litigation. He
will approve the award.

Disposition

In light of the foregoing, Judge Gerrard granted the Plaintiff's
Motion for Final Approval of Class Action Settlement and the
Plaintiff's Motion for Approval of Attorney's Fees, Expenses and
Service Award.

The Plaintiff's counsel are awarded total attorney's fees in the
amount of $1,079,166.67, or one-third of the total $3,237,500 gross
settlement fund amount. Her counsel is also awarded $48,789.03 in
reimbursement of litigation expenses they incurred and disbursed in
prosecuting this litigation.

The settlement agreement is approved in all respects, and the
parties are directed to perform and satisfy the terms and
conditions of the settlement agreement.

The distribution plan for the net settlement fund set forth in the
settlement agreement provides a fair and reasonable basis upon
which to allocate the proceeds of the settlement fund, and that
distribution plan is approved.

Upon the effective date, the Plaintiff and the settlement class
members who have not timely and properly opted out and excluded
themselves from the settlement will be permanently barred and
enjoined from filing, commencing, prosecuting, intervening in, or
participating in (individually or in a representative capacity) any
lawsuit, action, or proceeding in any jurisdiction asserting or
based upon any claims or causes of action released in the
settlement and this memorandum and order and accompanying judgment,
and from soliciting or encouraging any other class members to
participate in any such lawsuit, action, or proceeding.

Pursuant to Rule 23, Judge Gerrard finally certified Michelle
Anderson as the class representative and Shanon J. Carson, Peter R.
Kahana, Lane L. Vines, Y. Michael Twersky, and John G. Albanese of
Berger Montague PC as the settlement class counsel.

Michelle Anderson is awarded $6,500 for her service as the class
representative.

The settlement administrator may be paid from the settlement fund
its actual fees and costs incurred, up to $199,500, for notice and
settlement administration services.

The case is dismissed with prejudice, parties to bear their own
costs except as provided in the settlement agreement and other
orders of the Court.

A separate judgment will be entered.

A full-text copy of the Court's Sept. 22, 2021 Memorandum & Order
is available at https://tinyurl.com/3xc4utsd from Leagle.com.


UNITED NATIONS: Fourth Circuit Affirms Dismissal of Ogunjobi Suit
-----------------------------------------------------------------
In the case, ADESIJUOLA OGUNJOBI, Plaintiff-Appellant, and TOKS
BANC CORP; TOKS; 5 WORLD MARKETS CORPORATION; WORLD MARKETS
TRANSFER AGENCY CORPORATION; GLOBAL PROSPERITY CORPORATION; UNITED
STATES OF AMERICA; THE PEOPLE'S REPUBLIC OF CHINA; ORGANIZATION OF
THE PETROLEUM EXPORTING COUNTRIES (OPEC); TREASURY DEPARTMENT OF
THE UNITED STATES; FEDERAL RESERVE BOARD OF THE UNITED STATES;
FEDERAL RESERVE BANK OF RICHMOND; INTERNATIONAL OLYMPIC COMMITTEE;
ASSOCIATION OF TENNIS PROFESSIONALS; WOMEN'S TENNIS PROFESSIONALS;
INTERNATIONAL TENNIS FEDERATION; NATIONAL FOOTBALL LEAGUE; NATIONAL
BASKETBALL ASSOCIATION; MAJOR LEAGUE BASEBALL; MAJOR LEAGUE SOCCER;
CHARLES, PRINCE OF WALES; IDRIS ELBA, Actor, Singer, Producer;
SABRINA DHOWRE ELBA, Fashion Model; DAK PRESCOTT, Quarterback;
DALLAS COWBOYS; BRIAN ALLEN, Offensive Lineman; LOS ANGELES RAMS;
MADONNA LOUISE CICCONE, Singer, Songwriter; DEMOCRATIC PARTY;
REPUBLICAN PARTY; MEMBERS OF THE CLASS AND SUBCLASSES, and those
similarly situated; COMMONWEALTH OF VIRGINIA; DONALD J. TRUMP;
MELANIA TRUMP; THE CINCINNATI INSURANCE COMPANY, Plaintiffs v.
UNITED NATIONS; WORLD HEALTH ORGANIZATION; CENTERS FOR DISEASE
CONTROL AND PREVENTION, Defendants-Appellees, Case No. 21-1694 (4th
Cir.), the U.S. Court of Appeals for the Fourth Circuit affirms the
district court's order dismissing Ogunjobi's civil complaint for
failure to state a claim.

Mr. Ogunjobi appeals the district court's order dismissing for
failure to state a claim his civil complaint in which he sought to
file a class action against the United Nations, the World Health
Organization, and the Centers for Disease Control and Prevention
based on his contention that COVID-19 is a hoax.

The Fourth Circuit has reviewed the record and finds that his
claims are frivolous. Accordingly, it affirms the district court's
order. The Fourth Circuit grants Ogunjobi's motions to amend and
denies his motions for an expedited decision and a stay pending
appeal. The Fourth Circuit dispenses with oral argument because the
facts and legal contentions are adequately presented in the
materials before it and argument would not aid the decisional
process.

A full-text copy of the Court's Sept. 21, 2021 Opinion is available
at https://tinyurl.com/2atkhezy from Leagle.com.

Adesijuola Ogunjobi, Appellant appears Pro Se.


UNITED STATES: Denial of Attys.' Fees, Costs in Athey Suit Affirmed
-------------------------------------------------------------------
In the case, ROBERT M. ATHEY, MICHAEL R. CLAYTON, THELMA R. CURRY,
RICHARD S. DROSKE, RALPH L. FULLWOOD, PAUL D. ISING, CHARLES A.
MILBRANDT, TROY E. PAGE, Plaintiffs-Appellants v. UNITED STATES,
Defendant-Appellee, Case No. 2020-2291 (Fed. Cir.), the U.S. Court
of Appeals for the Federal Circuit affirms the U.S. Court of
Federal Claims' denial of the Plaintiffs' motion for attorney fees
based on two provisions of the Equal Access to Justice Act, 28
U.S.C. Section 2412(b) and (d).

Background

The appeal originated from a class action lawsuit in the U.S. Court
of Federal Claims filed in April 1999 -- Archuleta v. United
States, No. 99-205C, ECF No. 1 (Fed. Cl. Apr. 7, 1999). The
plaintiffs in Archuleta alleged that several federal agencies had
underpaid the former-employee plaintiffs for their unused leave,
which is typically paid as a lump sum at the end of their
employment. Among other complaints, the Archuleta plaintiffs
alleged that the agencies had improperly failed to include Cost of
Living Adjustments (COLAs) and locality pay increases in their
payments.

Five months after the complaint was filed, the Office of Personnel
Management finalized a regulation making clear that federal
agencies should include COLAs and other applicable pay in the
lump-sum payment. After this regulation was promulgated, 17 of the
18 government agencies involved settled with the former-employee
plaintiffs, agreeing to the COLAs and locality increases. The
United States Department of Veterans Affairs (VA) was the lone
holdout. The former VA employees who were plaintiffs in Archuleta
were severed into a new case at the Court of Federal Claims, thus
becoming the Athey plaintiffs ("Plaintiffs") -- Athey v. United
States, No. 99-2051C, ECF No. 2 (Fed. Cl. June 21, 2006).

The Athey litigation then proceeded for several years. In 2007, the
Court of Federal Claims granted the Government's motion to dismiss
from the case the Plaintiffs' claims to night premium pay, weekend
additional pay, and Sunday pay after Oct. 1, 1997 -- Athey v.
United States (Athey I), 78 Fed. Cl. 157, 161-64 (2007). The trial
court also excluded all registered nurses from the class. Several
years later, in 2015, the trial court granted the Government's
motion for summary judgment that the Plaintiffs were not entitled
to interest under the Back Pay Act, 5 U.S.C. Section 5596 -- Athey
v. United States (Athey II), 123 Fed. Cl. 42 (2015). Finally, in
2017, the parties reached a settlement in which the Government
agreed to pay the lump-sum adjustments owed due to the COLAs and
locality increases for the 3,231 former VA employees in the
Plaintiffs' class.

The Plaintiffs then appealed the trial court's grant of the
Government's motion to dismiss with respect to their claims for
evening and weekend pay as well as the court's granting of summary
judgment that they were not entitled to interest under the Back Pay
Act. The Federal Circuit affirmed those determinations -- Athey v.
United States (Athey III), 908 F.3d 696 (Fed. Cir. 2018).

Thereafter, on Jan. 13, 2020, the Plaintiffs sought fees at the
trial court pursuant to the Equal Access to Justice Act (EAJA),
which allows for costs and attorney fees to be awarded in suits
against the United States in certain situations. They specifically
sought fees under 28 U.S.C. Section 2412(b) and (d)(1)(A).

Section 2412(b) was intended to subject the United States to the
same common law or statutory exceptions to the American Rule of
attorney fees that other private parties would be subject to, such
as the exceptions of "bad faith," "common fund," and "common
benefit." Before the trial court, the Plaintiffs argued they were
entitled to fees under Section 2412(b) based on the common law
exceptions of "common fund" and "bad faith." They also argued under
Section 2412(d)(1)(A) that they were entitled to fees because the
position of the United States was not substantially justified.

The trial court denied the Plaintiffs' motion for fees -- Athey v.
United States (Athey IV), 149 Fed. Cl. 497 (2020). With regard to
Section 2412(b), the trial court determined that the "common fund"
exception to the American Rule allows a plaintiff's counsel to
recover its fee from the common fund awarded to a plaintiffs class
in certain circumstances, but it does not impose additional fees on
a defendant. Accordingly, the trial court denied the Plaintiffs'
attempts to extract an additional award from the Government in a
way not permitted by the "common fund" doctrine. It also denied the
Plaintiffs' motion for fees under Section 2412(d) because, in the
trial court's judgment, the overall position of the United States
was substantially justified.

The Plaintiffs appeal.

Discussion

I.

The Federal Circuit begins with the Plaintiffs' request for
attorney fees under EAJA Section 2412(b). The trial court denied
the Plaintiffs' motion for fees because the common-law theory they
invoked for applying Section 2412(b) -- the common fund exception
to the American Rule -- does not apply to impose "an additional
award" against a defendant, but instead allows for fees and
expenses to be recovered from the common fund.

On appeal, the Plaintiffs interpret Section 2412(b) as a
fee-shifting statute that operates independently of the common law
and the "common fund" doctrine. They propose that their
interpretation is supported by the legislative history and
precedent interpreting Section 2412(b) and other fee-shifting
statutes.

The Federal Circuit disagrees with the Plaintiffs' interpretation.
First, it says, the Plaintiffs' theory that Section 2412(b) stands
alone to supplant the common law cannot be squared with the
statute's plain language, which requires a predicate basis for
shifting fees in either "the common law or under the terms of any
statute which specifically provides for such an award. Second, the
legislative history does not support the Plaintiffs'
interpretation. Finally, the precedent relied on by the Plaintiffs
does not support their interpretation of Section 2412(b).

Because the Plaintiffs misapply the predicate common-law exception
upon which the Plaintiffs based their Section 2412(b) fees motion,
the Federal Circuit affirms the trial court's denial of fees on
this basis.

II.

The Federal Circuit turns next to the Plaintiffs' request for fees
under Section 2412(d)(1)(A). The trial court denied the Plaintiffs'
motion after determining the Government's position to have been
"substantially justified. "On appeal, the Plaintiffs ask the
Federal Circuit to reweigh the trial court's determination,
discounting the issues Plaintiffs consider to have been "minor" or
"peripheral" and focusing only on what the Plaintiffs call the
"singular position'" of the Government -- i.e., the position
regarding the issues on which Plaintiffs ultimately prevailed.

The Federal Circuit declines the Plaintiffs' request to reweigh the
trial court's determination based on its view of the entire record,
a determination that is reviewed with a significant amount of
deference under the abuse of discretion standard. First, it finds
that the Plaintiffs identify no such "serious error in judgment" by
the trial court and instead simply ask that the Federal Circuit
assigns more weight to the particular issues on which they
prevailed. It exercises its judicial restraint and declines this
invitation.

Second, the Federal Circuit finds that the Plaintiffs failed to
raise their argument on the Government's narrative regarding
previous settlement offers at a time when the Government could have
responded, either at the Federal Circuit or at the trial court. And
in any case, this issue only relates to the COLAs and locality pay
issues on which the Plaintiffs were successful, but it in no way
diminishes the trial court's view of the importance of the
"multiple key issues" that it relied on in finding the Government's
position to have been "substantially justified." Therefore, even if
the Federal Circuit were to credit the Plaintiffs' reply argument,
the Plaintiffs still fail to show the trial court abused its
discretion.

Conclusion

The Court of Federal Claims properly denied the Plaintiffs' motion
for fees under EAJA Section 2412(b) as improperly applying the
legal theory on which they based their motion for fees (the "common
fund" exception), and the Federal Circuit finds no abuse in
discretion in the trial court's weighing of the Government's
"overall position" under Section 2412(d) and its conclusion that
the Government was "substantially justified." The Federal Circuit
therefore affirms.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/5khnef9k from Leagle.com.

IRA MARK LECHNER, Ira M. Lechner, Esq., in Washington, D.C., argued
for the Plaintiffs-Appellants.

BRYAN MICHAEL BYRD, Commercial Litigation Branch, Civil Division,
United States Department of Justice, in Washington, D.C., argued
for the Defendant-Appellee. Also represented by REGINALD THOMAS
BLADES, JR., JEFFREY B. CLARK, 4ROBERT EDWARD KIRSCHMAN, JR.


UNITED STATES: New York Court Dismisses Cabrera Prisoners Suit
--------------------------------------------------------------
Judge Laura Taylor Swain of the U.S. District Court for the
Southern District of New York dismissed the case, JOSE FRANCISCO
GUZMAN CABRERA, Plaintiff v. UNITED STATES OF AMERICA; U.S.
DISTRICT COURT, SOUTHERN DISTRICT OF NY; CHIEF JUDGE COLEEN
McMAHON; U.S. DEPARTMENT OF JUSTICE; NY GOVERNOR ANDREW CUOMO,
Defendants, Case No. 21-CV-4154 (LTS) (S.D.N.Y.).

Background

The Plaintiff styles the complaint as a class action on behalf of
himself and other prisoners at Essex County Correctional Facility
(ECCF) in New Jersey. By order dated Sept. 17, 2021, the Court
severed the Plaintiff's claims against New Jersey Governor Phil
Murphy, the County of Essex, New Jersey, ECCF Warden Cirello, CFG
Medical Services, and the U.S. Marshals Service in New Jersey,
which principally challenged the conditions of Plaintiff's
confinement in New Jersey, and transferred those claims to the U.S.
District Court for the District of New Jersey.

The Plaintiff alleges the following in the complaint. The
Defendants exploited "the Covid-19 crisis" to deprive te Plaintiff
of constitutional rights under the First, Fourth, Fifth, Sixth,
Eighth, Thirteenth, and Fourteenth Amendments. Former Chief Judge
Colleen McMahon, sued as Coleen McMahon, "signed the
unconstitutional blanket ends of justice standing order that the
other defendants used to conspire to deprive the Plaintiff of
constitutional rights." Defendant U.S. District Court for the
Southern District of New York "employs other Defendants within this
complaint." The U.S. Department of Justice "conspired with other
Defendants to deprive the Plaintiff of constitutional rights."
Former Governor Andrew Cuomo "created the Covid-19 emergency orders
that were used by the Defendants to deprive the Plaintiff of
constitutional rights."

The Plaintiff contends that the "'Standing orders' in response to
Covid-19 to take away speedy trial guarantees of the Sixth
Amendment and the Speedy Trial Act, 18 U.S.C. Section 3161(h)" are
unconstitutional, among other reasons, because the exclusion of
time is not justified with reference to the specific factual
circumstances in the particular case. He appears to bring this
claim against Judge Colleen McMahon, who, in her capacity as Chief
Judge, issued the Court's standing order, and against the U.S.
District Court for the Southern District of New York.

The Plaintiff contends that under New Jersey bill S2519, which was
recently signed into law, certain prisoners incarcerated pursuant
to state court judgments in New Jersey have been awarded additional
credit for time served during the Covid-19 public health emergency.
He argues that failure to offer such relief to federal prisoners
creates a "sentence disparity as people who have virtually the same
circumstances are receiving drastically different sentences."

The Plaintiff seeks declaratory and injunctive relief, including
orders (1) ending Standing Order M10-468, entered by then-Chief
Judge McMahon, (2) awarding him jail time credit of four days for
each day served during the Covid-19 public health emergency, and
(3) dismissing his criminal proceedings due to alleged violations
of his right to a speedy trial. He also seeks damages.

The Plaintiff, who is currently incarcerated at Essex County
Correctional Facility (ECCF) in New Jersey, brings the pro se
action under the Court's federal question jurisdiction. His
criminal proceedings are pending in this district, United States of
America v. Rodriguez Lopez, ECF 1:18-CR-0868-02 (SHS) (S.D.N.Y.).
By order dated Sept. 17, 2021, the Court granted the Plaintiff's
request to proceed without prepayment of fees, that is, in forma
pauperis (IFP).

Discussion

The Prison Litigation Reform Act requires that federal courts
screen complaints brought by prisoners who seek relief against a
governmental entity or an officer or employee of a governmental
entity. The Court must dismiss a prisoner's IFP complaint, or any
portion of the complaint, that is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. It must
also dismiss a complaint if the court lacks subject matter
jurisdiction.

A. Class Action Status

The Plaintiff, who is proceeding pro se, styles this complaint as a
class action. Because pro se means to appear for one's self, a
person may not appear on another person's behalf in the other's
cause. Judge Swain therefore construes the complaint as asserting
claims solely on behalf of the named Plaintiff, who is the only one
who has signed the complaint.

B. Claims against United States, District Court, and Department of
Justice

The Plaintiff styles his claims against the United States, the U.S.
District Court for the Southern District of New York, and the U.S.
Department of Justice primarily as arising under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) ("Bivens is
the federal analog to suits brought against state officials under
Section 1983."). The purpose of an implied Bivens action "is to
deter individual federal officers from committing constitutional
violations." Because of this, a Bivens claim will lie only against
an individual in a personal capacity, and not against a federal
agency or against federal officials in their official capacities.

Judge Swain holds that the Plaintiff's claims against the United
States, the U.S. District Court for the Southern District of New
York, and the U.S. Department of Justice are therefore dismissed
with prejudice based on sovereign immunity.

C. Judicial Immunity

Judges are absolutely immune from suit for damages for any actions
taken within the scope of their judicial responsibilities. Judicial
immunity does not apply when the judge takes action "outside" her
judicial capacity, or when the judge takes action that, although
judicial in nature, is taken "in absence of jurisdiction." But "the
scope of a judge's jurisdiction must be construed broadly where the
issue is the immunity of the judge."

Judge Swain holds that issuing standing orders is within the scope
of former Chief Judge McMahon's authority and jurisdiction, and she
is therefore absolutely immune from suit for any claim arising from
adoption of Standing Order M10-468. Hence, the Plaintiff's claims
against Judge McMahon are therefore dismissed with prejudice based
on absolute judicial immunity.

D. Claims Against New York Former Governor Andrew Cuomo

The Plaintiff appears to challenge former Governor Cuomo's
executive order suspending N.Y. Crim. Proc. Law Section 30.30. On
March 20, 2020, Governor Cuomo issued Executive Order 202.8,
suspending the speedy trial limitations of Section 30.30 of the
Criminal Procedure Law. 9 NYCRR 8.202.8. The suspension was
continued by subsequent executive orders, including Executive Order
202.48. By Executive Order 202.60, issued Sept. 4, 2020, Governor
Cuomo modified the suspension of Section 30.30 of the Criminal
Procedure law to require that speedy trial time limitations remain
suspended in a jurisdiction until such time as petit criminal
juries are reconvened in that jurisdiction.'

The Plaintiff alleges that he is a federal detainee and does not
indicate that he has pending state criminal proceedings or that
this suspension affected him personally.

Because the Plaintiff alleges that he is a federal pretrial
detainee and does not plead facts showing that he has an injury
traceable to the Executive Order governing state criminal
proceedings, he has failed to demonstrate that he has standing to
challenge it. Judge Swain therefore dismisses the Plaintiff's
claims against former Governor Cuomo.

E. Request for Jail Time Credits and Dismissal of Criminal
Proceedings

The Plaintiff seeks both the award of additional jail credits
toward any sentence he may ultimately receive and to challenge the
legality of his current criminal proceedings in light of his
constitutional right to a speedy trial. A civil rights action,
however, cannot be used to challenge the fact or length of a
prisoner's detention. Instead, a claim that would necessarily
impugn or challenge the fact or length of a prisoner's detention
must be raised either in a motion in the criminal proceedings or in
a petition for a writ of habeas corpus.

Judge Swain dismisses the Plaintiff's claim, which seeks additional
jail credits toward any eventual sentence, in this civil rights
action. Moreover, insofar as the Plaintiff asks the Court to
dismiss his pending federal criminal proceedings, the Judge will
not intervene. And, because the defects in the Plaintiff's
complaint cannot be cured with an amendment, the Judge declines to
grant Plaintiff leave to amend his complaint.

Conclusion

Judge Swain dismissed the Plaintiff's complaint, filed IFP under 28
U.S.C. Section 1915(a)(1), pursuant to 28 U.S.C. Section
1915(e)(2)(B)(ii), (iii). She certifies under 28 U.S.C. Section
1915(a)(3) that any appeal from the Order would not be taken in
good faith, and therefore IFP status is denied for the purpose of
an appeal.

The Clerk of Court is directed to mail a copy of the Order to the
Plaintiff and note service on the docket.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/594seu2u from Leagle.com.


UNITED STATES: Retaliation Claim in Maloney v. State Dep't Tossed
-----------------------------------------------------------------
In the case, ANGELA MALONEY, Plaintiff v. ANTONY BLINKEN,
Secretary, U.S. Department of State, Defendant, Civil Action No.
20-2516 (ABJ) (D.D.C.), Judge Amy Berman Jackson of the U.S.
District Court for the District of Columbia granted the Defendant's
partial motion to dismiss.

Background

On Sept. 8, 2020, Plaintiff Maloney filed the employment
discrimination and retaliation action under the Rehabilitation Act
of 1973, 29 U.S.C. Sections 791, 794 et seq. Her claims arise out
of her five-year appointment with the United States Department of
State as an entry-level Foreign Service Officer ("FSO") career
candidate, during which time she developed a number of hand and
wrist disabilities.

The Plaintiff was employed by the State Department as an
entry-level FSO career candidate on the Political Affairs track
between April 8, 2015, and July 4, 2020. According to the State
Department's Foreign Affairs Manual, an entry-level FSO candidate
has five years to "achieve" tenure or face mandatory separation
from the Service. The State Department's Commissioning and Tenure
Board evaluates entry-level FSO candidates for tenure for the first
time after 36 months of employment, but according to the
Department's Foreign Affairs Handbook, FAH, the decision can be
deferred up to two times.

In early 2016, during an assignment to Chennai, India, that
involved visa adjudication, the Plaintiff "developed flexor
tenosynovitis among other medical conditions as a result of the
repetitive hand motions necessary" to the role. She also suffers
from bilateral carpal tunnel syndrome, which together with her
other hand and wrist conditions, limits her ability to lift, write,
type, and grasp. According to the Plaintiff, these issues are
exacerbated by the repetitive typing motions requiring of visa
processing, which led her to take medical leave between February
2018 and October 2018, and again between February 2019 and her
separation from the State Department in July 2020.

On April 9, 2018, the Plaintiff filed a class action lawsuit
against the Defendant, alleging disability discrimination. Shortly
thereafter, in the summer of 2018, the Plaintiff first qualified
for a review for tenure. The Board notified her in an email dated
Aug. 15, 2018, that it was deferring the decision on her tenure to
a second review the following year. The Plaintiff does not
challenge that decision in the lawsuit.

During the 2019 performance evaluation cycle, the Plaintiff was
again considered by the Board for tenure, and in June, the decision
was again deferred, this time for six months in accordance with FAH
subsection 2246.3.

On Aug. 30, 2019, the Plaintiff filed an administrative complaint
with the State Department's Office of Civil Rights ("OCR"). She
alleged that on May 17 and June 7, 2019, she was discriminated
against for her physical disabilities ("chronic tenosynovitis,
ganglion cyst") and retaliated against for engaging in prior
protected activity and opposing discriminatory policies. It was
acknowledged on Sept. 3, 2019.

On June 19, 2020, the Board completed its third and final tenure
review, and it made, for the first time, the "decision not to grant
the Plaintiff tenure," which required that she separate from the
State Department within 30 days. On Aug. 21, 2020, the Plaintiff
filed a second complaint with the OCR -- this time concerning the
June 2020 denial of recommendation for tenure that resulted in her
termination.

On Sept. 8, 2020, the Plaintiff filed the instant lawsuit, alleging
in Count I that the agency failed to accommodate her disability and
engage in the interactive process when she lost career
opportunities, including "being denied tenure," and in Count II
that the Defendant retaliated against her when "she was denied
tenure and other career opportunities," and "denied accommodations
and denied a good-faith interactive process." The Plaintiff seeks
compensatory damages, including for emotional distress and lost
wages and benefits.

The Defendant filed a partial motion to dismiss, asking the Court
to dismiss Count II -- the Plaintiff's claim for retaliation -- on
two grounds: (1) that she failed to exhaust her administrative
remedies with respect to the 2020 denial of tenure before she filed
the instant complaint, and (2) that she failed to state a plausible
retaliation claim based on the deferrals of the tenure decision
because a deferral is not an actionable adverse employment action,
and the complaint does not allege facts that give rise to an
inference of any causal connection between the Plaintiff's
protected activities and the deferrals.

Now that the matter is fully briefed, the only issue for the Court
to resolve is whether Count II states a claim that the 2019
decision to defer the tenure review was retaliatory.

Analysis

I. The claim for denial of tenure in 2020 has not yet been
exhausted.

Before a plaintiff can bring a claim for retaliation under the
Rehabilitation Act, however, she must exhaust her available
administrative remedies. According to the D.C. Circuit, "the
required recourse to administrative review has special prominence
with respect to the claims of federal employees," like the
Plaintiff in the case. Failure to exhaust administrative remedies
is an affirmative defense.

As the Defendant has established, and as the Plaintiff does not
dispute, to the extent that the Plaintiff seeks to challenge the
Defendant's denial of tenure, specifically the decision by the
Board in the spring of 2020 which resulted in her mandatory
separation from the Foreign Service, she has not exhausted her
administrative remedies.

The Plaintiff's August 2019 complaint, which preceded the decision
denying tenure by nearly eleven months, only challenged the Summer
2019 Board's deferral of any decision on her tenure. The Plaintiff
filed a second OCR complaint on Aug. 21, 2020, two months after the
Board denied tenure, see 2020 OCR Complaint, so those proceedings
were still pending when plaintiff filed the lawsuit one month later
on Sept. 8, 2020. At that point, it was well short of the date the
second OCR complaint could be considered exhausted.

Therefore, to the extent that Count II of the complaint appears to
challenge the denial of tenure, that aspect of the claim will be
dismissed on exhaustion grounds.

II. The complaint fails to state a claim based on the 2019 deferral
of the tenure decision.

A. Plaintiff engaged in protected activity.

To support a claim of retaliation, a plaintiff must show that she
engaged in a statutorily protected activity, such as filing a
formal complaint with an agency. The Defendant does not dispute
that the Plaintiff engaged in protected activity with the filing of
the class action lawsuit in 2018 and the 2019 OCR complaint
regarding the Summer 2019 Board Decision.

B. Deferring a tenure decision is not an adverse employment action
that can support a retaliation claim.

The Plaintiff alleges that the Defendant retaliated against her by
"denying a recommendation for tenure during the 2019 evaluation
cycle solely because her rater and reviewer concluded that she had
not accrued sufficient time on the job." The Defendant moves to
dismiss on the grounds that deferral of a tenure decision does not
constitute a materially adverse employment action that can support
a retaliation claim, and circuit precedent requires that the motion
be granted.

Judge Jackson grants the Defendant's motion to dismiss Count II
because the Plaintiff has failed to plausibly allege that she
suffered a materially adverse employment action when the Board
deferred a decision on tenure in 2019. While a decision denying
tenure could be considered a materially adverse action, because it
automatically triggers termination proceedings, a deferral
eliminates the possibility of a denial and simply calls for a
subsequent review, maintaining the employment status quo in the
interim. Even viewing the evidence in the light most favorable to
the Plaintiff, the 2019 deferral cannot be considered adverse.

To the extent the Plaintiff is suggesting that the deferral
implicitly cast her job performance in a negative light, the D.C.
Circuit has cautioned that even explicit "job-related constructive
criticism" would not necessarily meet the standard of an adverse
action. Even if the deferral left the Plaintiff uncertain about her
future employment status at the State Department, the relevant
inquiry is whether the complaint tied that uncertainty to any
tangible harm. An employee can make out a case for retaliation
based on changes in a performance review when it is tied to
"financial harms," but the Plaintiff has not alleged that the
Summer 2019 Board Decision negatively affected her compensation as
a FSO career candidate as she awaited the next tenure review.

C. The complaint does not allege any facts showing a causal
connection between the protected activity and challenged action.

If Judge Jackson were to conclude that the deferral was materially
adverse, she finds that the Plaintiff would have to allege
sufficient facts to support a plausible inference that a
retaliatory motive was the "but-for" cause of the Board's decision
to defer a decision on tenure for another six months. A plaintiff
alleging retaliation faces a relatively low hurdle at the motion to
dismiss stage," but causation is "evaluated on the specific facts
of each case," and in the case, the complaint falls short.

Without any facts in the complaint alleging that the members of the
Board had knowledge of the Plaintiff's protected activity or that
there was temporal proximity between those activities and the
challenged actions, Judge Jackson holds that the Plaintiff has not
alleged the causal connection needed to state a claim of
retaliation.

Conclusion

For these reasons, Judge Jackson granted the Defendant's partial
motion to dismiss and Count II are dismissed. A separate order will
be issued.

A full-text copy of the Court's Sept. 22, 2021 Memorandum Opinion
is available at https://tinyurl.com/pfeccyud from Leagle.com.


VIPKIDS INT'L: New York Court Denies Meehan's Bid to Remand Suit
----------------------------------------------------------------
In the case, KEVIN J. MEEHAN, Plaintiff v. VIPKID; VIPKIDS
INTERNATIONAL, INC., aka VIPKID, aka VIPKID INTERNATIONAL, INC;
BEIJING DAMI TECHNOLOGY CO., LTD., aka BEIJING DA MI TECHNOLOGY
CO., LTD., aka VIPKID; BEIJING DAMI FUTURE TECHNOLOGY CO., LTD.,
aka BEIJING DA MI FUTURE TECHNOLOGY CO., LTD.; TENCENT HOLDINGS
LTD.; CLOUD & SMART INDUSTRIES, TENCENT HOLDINGS LTD., aka CLOUD &
SMART INDUSTRIES AT TENCENT HOLDING LTD.; TENCENT AMERICA LLC;
TENCENT CLOUD LLC; CHINA RENAISSANCE HOLDINGS LTD., aka CHINA
RENAISSANCE SECURITIES, aka CHINA RENAISSANCE; SEQUOIA CAPITAL
OPERATIONS LLC; VIPKID HK LIMITED; VIPKID CLASS HK LIMITED; and VIP
TEACH INC., Defendant, Case No. 20-CV-6370(JS)(AKT)(E.D.N.Y.),
Judge Joanna Seybert of the U.S. District Court for the Eastern
District of New York denied the Plaintiff's Remand Motion.

Background

Plaintiff Meehan, individually and on behalf of all others
similarly situated, commenced the putative class and collective
action in New York State court against the VIPKid Defendants, the
Tencent Defendants, and others, claiming the Defendants, who are
allegedly related to or in affiliation with each other, violated
provisions of the New York Labor Law and the Federal Labor
Standards Act, inter alia.  Pursuant to the Class Action Fairness
Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d), Defendant VIPKid
International removed this action to the Eastern District of New
York. The Plaintiff moved to remand the action back to state
court.

The Defendants are affiliated with or responsible for operating
VIPKid, an online education platform which facilitates the
instruction of English language skills by teachers from the United
States and Canada to students in China." According to the
Plaintiff's Complaint, VIPKid's operation connects approximately
700,000 students with more than 100,000 teachers; the VIPKid
enterprise is New York-based and its services are provided by
entities domiciled in New York; and the Plaintiff is a New York
resident who contracted with VIPKid to teach English to children in
China. The Plaintiff worked for VIPKid for four years but was
denied advancement opportunities and was terminated after
complaining about conditions of his employment.

The Plaintiff initiated the action in State Court on Nov. 13, 2020;
it was removed to the Court on Dec. 30, 2020 by Defendant VIPKids
Int'l. Various Defendants moved for pre-motion conferences "PMCs")
in anticipation of filing dismissal motions. In opposing the PMCs,
the Plaintiff indicated he was seeking remand of the action back to
State Court; he attached his Remand Motion to his opposition. To
efficiently and expeditiously manage the action, the Court denied
the various PMCs "as premature and without prejudice to renew
pending the final determination of the Remand Motion" and
established a briefing schedule for the Remand Motion.

On May 5, 2021, the Court referred the fully-briefed Remand Motion
to Magistrate Judge Tomlinson. On Aug. 27, 2021, the Magistrate
Judge issued her R&R, recommending: (1) finding the Defendants have
met their burden for establishing that CAFA jurisdiction exists;
(2) finding the Plaintiff has failed to establish any exceptions to
CAFA jurisdiction exist; and (3) declining to abstain from
exercising jurisdiction over the action pursuant to Burford v. Sun
Oil, 319 U.S. 315 (1943) or Railroad Commissioner of Texas V.
Pullman, 312 U.S. 496 (1941) . In sum, Magistrate Judge Tomlinson
recommends the Court denies the Plaintiff's Remand Motion.

Discussion

As an initial matter, Judge Seybert observes that the Plaintiff's
Objection is far from the exemplar of clarity; indeed, it appears
internally inconsistent. She finds that the Plaintiff's single
purported objection is focused upon the Magistrate Judge's finding
of numerosity for CAFA jurisdictional purposes, i.e., that "there
is reasonable probability that the class size is greater than 100,
which is all that CAFA requires." However, that finding, she says,
was based upon the facts alleged in the Plaintiff's Complaint,
together with a declaration submitted by the Defendants "which
states that since 2016, VIPKid HK contracted with more than 200,000
teachers to provide English language services to Children in
China."

Moreover, in making her numerosity finding, Magistrate Judge
Tomlinson specifically rejected the Plaintiff's challenge to CAFA
jurisdiction because he "proffers no evidentiary support
contradicting Defendants' factual statement concerning this
number," specifically highlighting "this argument also contradicts
the Complaint". In the case, to the extent the Plaintiff's
numerosity argument is an objection, it is no more than a rehashing
of his original argument, which the Magistrate Judge properly
rejected. As such, the CAFA jurisdiction analysis is reviewed for
clear error; Judge Seybert finds none.

The Plaintiff does not advance any other grounds for objecting to
the R&R. The Court is not required to review the factual findings
or legal conclusions of the magistrate judge as to which no proper
objections are made. In any event, while the Plaintiff contends
that his allegations could equally support a putative class of
greater than or less than 100, he nonetheless "does not contest the
Court's finding that there is a reasonable probability that the
class size is greater than 100, to the extent that the finding
relies on VIPKID social media presence." Nor, in the end, does the
Plaintiff challenge Magistrate Judge Tomlinson's ultimate
recommendation.

Conclusion

Accordingly, in the absence of clear error, Judge Seybert overruled
the Plaintiff's Objection, adopted the R&R in its entirety, and
denied the Plaintiff's Remand Motion.

A full-text copy of the Court's Sept. 21, 2021 Adoption Order is
available at https://tinyurl.com/4c998mtz from Leagle.com.

Lakshmi Gopal, Esq., Muciri PLLC, in New York City, for the
Plaintiff.

Andrew P. Marks, Esq. -- amarks@dorflaw.com -- Dorf & Nelson LLP,
Rye, in New York City, for VIPKid Defendants.

Jay P. Pomerantz, Esq., Katherine Anne Marshall, Esq., Fenwick &
West LLP, in Mountain View, California.

Richard Francis Hans, Esq. -- richard.hans@dlapiper.com -- Neal F.
Kronley, Esq. -- neal.kronley@dlapiper.com -- DLA Piper LLP, in New
York City, for Tencent Defendants.


WAKEMED: North Carolina District Court Dismisses Elrod Class Suit
-----------------------------------------------------------------
In the case, PEGGY ELROD; YVONNE BERTOLO; JANINE PALMER; JUSTIN
PALMER; and ALL SIMILARLY SITUATED PERSONS WITHIN THE PROPOSED
CLASS, Plaintiffs v. WAKEMED; WAKEMED SPECIALTY PHYSICIANS, LLC
D/B/A WAKEMED PHYSICIAN PRACTICES; WAKEMED SPECIALISTS GROUP, LLC
D/B/A WAKEMED PHYSICIAN PRACTICES; ARGOS HEALTH, INC.; ALLSTATE
PROPERTY AND CASUALTY INSURANCE COMPANY; PENNSYLVANIA NATIONAL
MUTUAL INSURANCE COMPANY; UNKNOWN DEFENDANTS 1 THROUGH 25,
Defendants, Case No. 5:20-CV-413-FL (E.D.N.C.), Judge Louise W.
Flanagan of the U.S. District Court for the Eastern District of
North Carolina, Western Division, granted the Defendants' motions
to dismiss.

Background

The Plaintiffs commenced the action in Wake County Superior Court
on July 2, 2020, asserting common law claims seeking to set aside
agreements for assignment of insurance benefits they executed at a
hospital emergency room operated by Defendants WakeMed, WakeMed
Specialty Physicians, LLC, and WakeMed Specialists Group, LLC
(collectively, "Defendant WakeMed"). WakeMed filed a notice of
removal in this court on July 28, 2020, on the basis that the
complaint raises a substantial question as to the proper
interpretation of federal law, including, the Emergency Medical
Treatment and Labor Act, 42 U.S.C. Section 1395dd, as well as
statutes and regulations governing Medicare, 42 U.S.C. Section 1395
et seq.

The Plaintiffs filed the operative amended complaint on Nov. 20,
2020, asserting the following claims: 1) declaratory judgment
against all the Defendants; 2) breach of fiduciary duty against
Defendant WakeMed; and 3) fraud, conversion, and unfair and
deceptive trade practices against Defendants Argos Health, Inc. and
WakeMed.

As for relief, the Plaintiffs seek to "rescind or for the Court to
set aside or strike the contractual provisions complained of within
a general consent form at issue." They also seek to have the Court
impose a constructive trust upon Defendants WakeMed and Argos "to
be funded with the monies and insurance proceeds improperly
collected from the Plaintiffs and proposed class members, such
amounts to be returned to the Plaintiffs and the proposed class
members, with interest." The Plaintiffs seek certification as a
class action, compensatory, trebled, and punitive damages, as well
as interest and fees.

Defendants Allstate Property and Casualty Insurance Co. and
Pennsylvania National Mutual Insurance Co. filed their instant
motions to dismiss, seeking dismissal for lack of jurisdiction and
failure to state a claim. Defendant Argos filed its instant motions
to dismiss for failure to state a claim, and Defendant WakeMed
seeks dismissal on the same basis and for lack of jurisdiction. In
support of that part of its motion to dismiss for lack of
jurisdiction, WakeMed relies upon an affidavit of Liz Watson who is
"revenue cycle" director for WakeMed.

The Plaintiffs responded in opposition to the motions to dismiss by
Defendants Allstate and Penn National, relying upon a Medicare
claim detail, as well as correspondence between Argos, the
Insurance Defendants, and the Plaintiffs. The Plaintiffs responded
in opposition to Defendant WakeMed's motion to dismiss, relying
upon correspondence from two doctors who treated Plaintiff Justin
Palmer. The Plaintiffs responded in opposition to Defendant Argos'
motion to dismiss. Shortly thereafter WakeMed and Argos replied.

Following submission of the instant motions in April 2021, the
Plaintiffs filed a surreply and Defendant WakeMed filed a
sur-surreply, with leave of court. Finally, the Plaintiffs filed
the instant motion for leave to file a sur-sur-surreply on Aug. 3,
2021, accompanied by a proposed sur-sur-surreply.

A. Defendants WakeMed and Argos

a. Declaratory Judgment

The Plaintiffs seek a declaration that certain provisions in the
general consent forms are "illegal, void, and against public policy
as a matter of law." In particular, they challenge and seek to
strike or rescind the provisions in the general consent forms under
the heading "Irrevocable Assignment of Insurance Benefits," which
purport to "assign and authorize direct payment of all surgical and
medical benefits" to Defendant WakeMed, including as pertinent
here, "medpay" benefits in automobile insurance policies
("assignment of benefits").

The general consent manifests mutual assent by each Plaintiff to
its terms, including the assignment of benefits, through their
signature to the attestation at the conclusion of the form. In
addition, the terms of the assignment of benefits are clear and
unambiguous, in that each Plaintiff agrees to "assign and authorize
direct payment of all surgical and medical benefits," defined to
include "medpay" benefits. Thus, "there is no reason it should not
be valid," where it assigns a claim for payment using language akin
to other assignments upheld as valid under North Carolina law.
Therefore, the general consent, including the assignment of
benefits, is a valid and enforceable contract, on its face.

The Plaintiff, nonetheless, asserts that the assignment of benefits
is invalid and unenforceable on multiple grounds.

i. Consideration

The Plaintiffs assert that there is a lack of consideration for the
assignment of benefits. Consideration, as element of an enforceable
contract, "consists of some benefit or advantage to the promisor,
or some loss or detriment to the promisee." There is consideration
if the promisee, in return for the promise, does anything legal
which he is not bound to do, or refrains from doing anything which
he has a right to do, whether there is any actual loss or detriment
to him or actual benefit to the promisor or not."

The Plaintiffs argue that Defendant WakeMed already has a duty
under the Emergency Medical Treatment and Labor Act to "provide
emergency treatment" such that it has provided no consideration for
the assignment of benefits. The general consent, however,
encompasses services that are broader in scope than what is
required by the Emergency Medical Treatment and Labor Act, Judge
Flanagan finds. She says, it extends beyond the narrow requirements
of the Emergency Medical Treatment and Labor Act.

In addition, and in the alternative, Judge Flanagan finds that the
assignment of benefits is supported by consideration in the form of
the procedures and methods by which Defendant WakeMed provides for
billing and collection of payment from third parties, which
Defendant WakeMed does not have a duty to employ. This includes the
provision that defendant WakeMed "will seek direct payment from any
potential insurer or other payment source," and "as necessary, to
endorse benefit checks made payable to" the patient.

In sum, the Plaintiffs' argument that the assignment of benefits
lacks consideration fails as a matter of law.

ii. Medicare

The Plaintiffs argue that the assignment of benefits is invalid and
unenforceable, as a matter of law, because it "is strictly
forbidden under Medicare and federal law," at least as it applies
to plaintiffs Bertolo and Elrod.

However, Judge Flanagan finds that the Plaintiffs' argument fails
as a matter of law. As an initial matter, Medicare does not forbid
a provider such as WakeMed from contracting with a patient to
obtain an assignment of benefits, as WakeMed received from the
Plaintiffs here. If anything, it encourages the practice, by
requiring providers to collect payments first from other insurers
before obtaining payment from Medicare.

The Plaintiffs also suggest that a Medicare regulation, 42 C.F.R.
Section 405.415, setting forth "requirements of the private
contract," supports treatment of the general consent form as a
private contract under Section 1395a(b)(1). However, that
regulation merely tracks the language of the statute in enumerating
the components that must be present for a private contract, e.g.,
Section 405.415(e) and Section 1395a(b)(1)(B)(i), none of which are
reasonably inferable from the plain terms of the general consent in
the case.

In sum, Judge Flanagan holds that the Plaintiffs' claim that the
assignment of benefits is illegal fails as a matter of law.

iii. Unconscionability

The Plaintiffs argue that the assignments of benefits are void
because of unconscionability, in light of their terms and the
emergency circumstances in which they were executed.

A party asserting that a contract is unconscionable must prove both
procedural and substantive unconscionability." Procedural
unconscionability involves bargaining naughtiness in the form of
unfair surprise, lack of meaningful choice, and an inequality of
bargaining power." "Substantive unconscionability, on the other
hand, refers to harsh, one-sided, and oppressive contract terms."

Judge Flanagan holds that the Plaintiffs fail to allege facts
permitting an inference of unconscionability. In particular, they
have not alleged any substantive unconscionability, because the
assignment of benefits is valid in substance, it performs functions
permitted by law, and it is consistent with the purposes of
Medicare, based on the foregoing analysis of its substantive
terms.

In any event, Judge Flanagan finds that the Plaintiffs also have
not alleged sufficiently procedural unconscionability to tip the
sliding scale in their favor to state a claim based upon
unconscionability. Procedural circumstances upon presentation in
the emergency room, as alleged by the Plaintiffs are the same that
would have been experienced by patients executing the prior general
consent form, which the Plaintiffs allege was "valid," despite the
same setting.

Moreover, Judge Flanagan says the Plaintiffs have not alleged
sufficiently "bargaining naughtiness in the form of unfair
surprise," where the assignment of benefits is included in the
context of other related provisions for payment collection and
guaranties.

In sum, the Plaintiffs' claim based upon unconscionability fails as
a matter of law.

iv. Additional Invalidity Grounds

The Plaintiffs assert several additional grounds for invalidating
the assignment of benefits, including mistake, fraud, undue
influence, and diminished mental capacity. None of these grounds,
however, are supported by the allegations in the complaint, Judge
Flanagan holds. She finds that the Plaintiffs have not alleged
facts sufficient to permit a reasonable inference of unilateral
mistake through fraud, undue influence, or duress. They do not
allege conditions that rendered them incompetent to make or
communicate important decisions concerning themselves, or family,
in the case of Janine Palmer.

In sum, the Plaintiffs fail to state a claim for declaratory
judgment on the basis that the assignment of benefits is invalid,
illegal, void, or otherwise subject to rescission on the basis of
mistake, fraud, undue influence, duress, or diminished capacity.
Therefore, the Plaintiffs' claim for declaratory judgment must be
dismissed for failure to state a claim upon which relief can be
granted.

b. Breach of Fiduciary Duty

The Plaintiffs assert a claim for breach of fiduciary duty against
Defendant WakeMed, on the basis that they had a physician-patient
fiduciary relationship, which Defendant WakeMed allegedly breached
by obtaining the Plaintiffs' signatures on the general consents.
The Plaintiffs have alleged that Defendant WakeMed and the
Plaintiffs maintained a fiduciary relationship, at the point where
they presented themselves for emergency medical treatment and
consented to such treatment.

Judge Flanagan finds that because the assignment of benefits is
akin to a form for insurance information or for payment for medical
treatment, Defendant WakeMed did not breach a fiduciary duty by
including it within the general consent and failing to draw further
attention to it or to explain its terms to plaintiffs. Therefore,
the Plaintiffs' breach of fiduciary duty claim fails as a matter of
law.

c. Conversion

The Plaintiffs assert a conversion claim against defendants WakeMed
and Argos. Conversion is "an unauthorized assumption and exercise
of the right of ownership over goods or personal chattels belonging
to another, to the alteration of their condition or the exclusion
of an owner's rights."

In the case, where the Plaintiffs claims challenging the validity
of the assignment of benefits fail as a matter of law, the
Plaintiffs cannot establish the "unauthorized" element of the tort
of conversion. Accordingly, their conversion claim is dismissed.

d. Unfair and Deceptive Trade Practices

The Plaintiffs assert an unfair and deceptive trade practices claim
against Defendants WakeMed and Argos. North Carolina law declares
as unlawful "unfair methods of competition in or affecting
commerce, and unfair or deceptive acts or practices in or affecting
commerce."

Judge Flanagan holds that the Plaintiffs' unfair and deceptive
trade practices claim fails for two reasons. First, courts
"differentiate between contract and deceptive trade practice
claims, and relegate claims regarding the existence of an
agreement, the terms contained in an agreement, and the
interpretation of an agreement to the arena of contract law."
Second, where the Plaintiffs' claims based in fraud and contract
invalidity claims fail as a matter of law, the Plaintiffs unfair
and deceptive trade practices asserted based upon the same
underlying conduct also must be dismissed.

In sum, the Plaintiffs fail to state a claim upon which relief can
be granted. Therefore, Judge Flanagan grants the motions to dismiss
by Defendants WakeMed and Argos, pursuant to Rule 12(b)(6), and the
Plaintiffs' claims against them are dismissed.

B. Defendants Allstate and Penn National

Dismissal of Defendants Allstate and Penn National is warranted for
two reasons. First, the facts alleged do not "show that there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment." Second, where the Plaintiffs'
declaratory judgment claim fails as a matter of law, for the
reasons stated above, and where Defendants Allstate and Penn
National have not brought a claim for separate relief in the form
of a declaratory judgment in their favor, the declaratory judgment
claim properly is dismissed for failure to state a claim upon which
relief can be granted.

Conclusion

Based on the foregoing, Judge Flanagan granted the Defendants'
motions to dismiss. The Plaintiffs' claims against Defendants
WakeMed and Argos are dismissed pursuant to Rule 12(b)(6). The
Plaintiffs' claims against Defendants Allstate and Penn National
are dismissed pursuant to Rule 12(b)(1) and 12(b)(6). The
Plaintiffs' motion for leave to file sur-sur-sureply is granted.
The clerk is directed to close the case.

A full-text copy of the Court's Sept. 22, 2021 Order is available
at https://tinyurl.com/wsr4b4rn from Leagle.com.


WATERTOWN SPRECHERS: Bid to Decertify Class Due February 4, 2022
----------------------------------------------------------------
In the class action lawsuit captioned as YEA BRUSKE and TAMSYN
BRUSKE, on behalf of themselves and all others similarly situated,
v. CAPITOL WATERTOWN SPRECHERS, LLC, Case No. 3:19-cv-00851-wmcv
(W.D. Wisc.), the Hon. Judge Stephen L. Crocker entered an amended
scheduling order as follows:

-- Disclosure of all experts:     To be decided by the parties.

-- Motion to decertify            February 4, 2022
   the class:

-- Deadline for filing            July 22, 2022
   dispositive motions:

-- Discovery cutoff:              December 9, 2022

-- Settlement Letters:            December 9, 2022

-- Rule 26(a)(3) Disclosures      December 16, 2022
   and motions in limine:

-- Objections:                    January 6, 2023

-- Final Pretrial Conference:     January 17, 2023 at 4:00 p.m.

-- Jury Selection and Trial:      February 6, 2023 at 9:00 a.m.

A copy of the Court's order dated Sept. 22, 2021 is available from
PacerMonitor.com at https://bit.ly/3ouvkKi at no extra charge.[CC]



WELLS FARGO: Cora Seeks Initial OK of Class Settlement
------------------------------------------------------
In the class action lawsuit captioned as TONIKA NADINE CORA,
individually, and on behalf of all others similarly situated, v.
WELLS FARGO BANK, N.A., a national association; WELLS FARGO &
COMPANY, a Delaware Corporatio, Case No. 5:19-cv-00109-TJH-SP (C.D.
Cal.), the Plaintiff asks the Court to enter an order:

   1. granting preliminary approval of the terms of the
      Agreement as fair, reasonable and adequate under Rule
      23(e) of the Federal Rules of Civil Procedure, including
      the amount of the settlement; the amount of distributions
      to class members; the procedure for giving notice to class
      members; the procedure for opting out of the settlement;
      and the amounts allocated to the service payment and
      attorney's fees and costs;

   2. preliminarily certifying for settlement purposes the
      Settlement Class and the Fair Labor Standards Act (FLSA)
      Settlement Collective described in the Agreement;

   3. appointing her as representative for the Settlement Class;

   4. appointing Moon & Yang, APC as counsel for the Settlement
      Class;

   5. approving the use of Rust Consulting as the settlement
      administrator;

   6. directing that notice issue to members of the Settlement
      Class as provided in the Agreement; and

   7. scheduling a final approval and fairness hearing on a date
      approximately 130 days after preliminary approval (March
      14, 2022 is proposed, assuming a preliminary approval
      order issues shortly after October 25, 2021) to consider
      whether the Agreement should be finally approved as fair,
      reasonable and adequate under Rule 23(e) of the Federal
      Rules of Civil Procedure and to rule on the motion for
      attorney's fees, costs and service payment submitted by
      Plaintiff.

Wells Fargo operates as a bank.

A copy of the Plaintiff's motion dated Sept. 22, 2021 is available
from PacerMonitor.com at https://bit.ly/3mjtiKj at no extra
charge.[CC]

The Plaintiff is represented by:

          Kane Moon, Esq.
          H. Scott Leviant, Esq.
          MOON & YANG, APC
          1055 W. Seventh St., Suite 1880
          Los Angeles, CA 90017
          Telephone: (213) 232-3128
          Facsimile: (213) 232-3125
          E-mail: kane.moon@moonyanglaw.com
                  scott.leviant@moonyanglaw.com

WELLS FARGO: Reed Suit Moved From E.D. Michigan to C.D. California
------------------------------------------------------------------
Judge Stephen J. Murphy, III, of the U.S. District Court for the
Eastern District of Michigan, Southern Division, transfers the
case, ARELIOUS REED, Plaintiff v. WELLS FARGO BANK, N.A.,
Defendant, Case No. 2:21-cv-12146 (E.D. Mich.), to the U.S.
District Court for the Central District of California.

The Plaintiff recently sued the Defendant for several claims that
arose from his participation in the Defendant's Guaranteed
Automobile Protection service. The Plaintiff appeared to claim that
he wanted to opt out of a class action that was pending in the
Central District of California.

Judge Murphy explains that venue for a civil action in federal
court is proper in the "district in which any defendant resides" or
the "district in which a substantial part of the events or
omissions giving rise to the claim occurred." For venue purposes,
he says, a corporation is a resident in the district where it "is
subject to the court's personal jurisdiction with respect to the
civil action in question."

When venue is improper, the Court may, in the interests of justice,
transfer the case to a district where it could have been brought.
To that end, the Court may sua sponte transfer a case based on
improper venue.

In the case, the complaint alleged that the Defendant resides in
Allentown, Pennsylvania. But, based on the Court's review of public
records, the information is incorrect; the Defendant resides in San
Francisco, California. San Francisco is in the Northern District of
California.

Besides the Defendant's residence, Judge Murphy finds that the
interest of justice favors the Central District of California,
which is where most of the relevant events appeared to have
occurred. For one, the Central District is where Defendant bought
and serviced the automobile loans under the Guaranteed Automobile
Protection service. For another, the Central District is where the
Defendant is litigating a class action lawsuit involving the
Guaranteed Automobile Protection service. And no events occurred in
the Eastern District of Michigan because the Plaintiff bought the
automobile at issue through a Lincoln dealer in Florida.

Because a substantial part of the events that gave rise to the
claim occurred in the Central District of California, not the
Eastern District of Michigan, the Judge will, in the interest of
justice, exercise his discretion and transfer the case to that
district for further consideration.

Judge Murphy's transfer order does not resolve the Plaintiff's
application to proceed in forma pauperis.

The Clerk of the Court must transfer the case to the U.S. District
Court for the Central District of California.

A full-text copy of the Court's Sept. 21, 2021 Order is available
at https://tinyurl.com/3tzc4ryd from Leagle.com.


WOOD GROUP: Iannotti Seeks Conditional Status of Day Rate Workers
-----------------------------------------------------------------
In the class action lawsuit captioned as CHRIS IANNOTTI,
individually and on behalf of all others similarly situated, v.
WOOD GROUP MUSTANG, Case No. 3:20-cv-00958-DWD (S.D. Ill.), the
Plaintiff asks the Court to enter an order granting conditional
certification of a Fair Labor Standards Act (FLSA) collective
pursuant to 29 U.S.C. section 216(b) and court-authorized notice of
this action against Wood Group.

Specifically, Iannotti seeks conditional certification for the
following FLSA class:

   "All employees Wood Group paid according to its day rate pay
    plan in the past three years (the "Day Rate Workers")."

It is undisputed that these Day Rate Workers were (1) employees of
Wood Group; (2) paid a day-rate; (3) without overtime compensation.
Any arguments regarding whether these Day Rate Workers were exempt
is a merits-based argument that is inappropriate for this initial
conditional certification stage, the lawsuit says.

Wood Group is "one of the world's leading consulting and
engineering companies operating across Energy and the Built
Environment." Wood Group operates in more than "60 countries" and
employs over 40,000 professionals.

In an effort to side-step federal overtime requirements, Wood Group
pays these Day Rate Workers a day rate with no overtime
compensation. Wood Group required these employees to work well in
excess of 40 hours per week.

A copy of the Plaintiff's motion to certify class dated Sept. 24,
2021 is available from PacerMonitor.com at https://bit.ly/3uBV08O
at no extra charge.[CC]

The Plaintiff is represented by:

          Michael A. Josephson, Esq.
          Andrew W. Dunlap, Esq.
          Carl A. Fitz, Esq.
          JOSEPHSON DUNLAP, LLP
          11 Greenway Plaza, Suite 3050
          Houston, TX 77046
          Telephone: (713) 352-1100
          Facsimile: (713) 352-3300
          E-mail: mjosephson@mybackwages.com
                  adunlap@mybackwages.com
                  cfitz@mybackwages.com

               - and -

          Richard J. (Rex) Burch, Esq.
          BRUCKNER BURCH PLLC
          8 Greenway Plaza, Suite 1500
          Houston, TX 77046
          Telephone: (713) 877-8788
          Facsimile: (713) 877-8065
          E-mail: rburch@brucknerburch.com

Y Z COMMERCE: Doyle Files TCPA Suit in D. New Jersey
----------------------------------------------------
A class action lawsuit has been filed against American Technology
Services, LLC. The case is styled as Robert Doyle, individually,
and all others similarly situated v. Y Z COMMERCE LLC,
CREDITFIX.COM, Case No. 2:21-cv-17257-JMV-LDW (D.N.J., Sept. 17,
2021).

The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.

CreditFix -- https://www.creditfix.com/ -- is a nationwide consumer
advocacy firm dedicated to removing inaccurate and outdated
information from credit reports to build consumer credit.[BN]

The Plaintiff appears pro se.



                            *********

S U B S C R I P T I O N   I N F O R M A T I O N

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Copyright 2021. All rights reserved. ISSN 1525-2272.

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