/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/211007.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 7, 2021, Vol. 23, No. 195 Headlines 4E BRAND: Court Partly Grants Bid to Dismiss Pepe Class Suit ACT INC: Recent 1st Circuit Opinion Addresses Strategies for Suit ACTIVISION BLIZZARD: Gross Law Firm Announces Class Action ADS-MYERS INC: Dismissal of Barrios' Claims in Quiroz Suit Denied AETNA INC: Faces Class Suit Over Alleged Discriminatory Policies AFNI INC: Northern District of Illinois Dismisses Chisom FDCPA Suit AGING IN PLACE: Ray Seeks to Recover Unpaid Overtime Compensation ALAMEDA COUNTY, CA: Settlement Could Improve Health Care at Jails ALBERTSONS COMPANIES: Dewse Sues Over Unlawful Labor Practices ALLIED MEDICAL: Court Enters Scheduling Order in Weisgold Suit AMAZON.COM: Vincenzeti Sues Over Unpaid Minimum and Overtime Wages AMPLIFY ENERGY: Gutierrez Files Suit in C.D. California ANHEUSER-BUSCH: Faces Class Suit Over Cacti Misleading Label Info ANNOVIS BIO: Klein Law Firm Reminds of October 18 Deadline ANTERO RESOURCES: Case Schedule in Grissom Suit Extended APPHARVEST INC: Glancy Prongay Discloses Securities Class Action APPHARVEST INC: Robbins Geller Reminds of November 23 Deadline APPLE INC: Settles AppleCare Extended Warranty Class Action ARTSANA USA: Faces Jimenez Suit Over Defective Booster Seats ATI PHYSICAL: Faruqi & Faruqi Reminds of October 15 Deadline BARNEY'S COLLEGE: Garcia Sues Over Unpaid Minimum, Overtime Wages BAYOU STEEL: Court Certifies Class of Employees in Fleming Suit BIRCH RESOURCES: Johnston Seeks to Recover Unpaid Overtime Wages BLACKSTONE CONSULTING: Court Denies Bid to Stay Scott Suit BOB'S DISCOUNT: Argenbright Sues Over Goof Proof Protection Plan BOSTON BEER: Faruqi & Faruqi Reminds of November 15 Deadline CARSON CLARKE: Deltona Transformer Files Suit in Fla. Cir. Ct. CASSAVA SCIENCES: Faruqi & Faruqi Reminds of October 26 Deadline CASSAVA SCIENCES: Johnson Fistel Reminds of October 26 Deadline CENTRAL CALIFORNIA: $375K Class Deal in Urena Suit Wins Final Nod CHARTER COMMUNICATIONS: Bid to Dismiss Hogans TCPA Suit Denied CHRISTUS SPOHN: Olvera Sues Over Unpaid Straight-Time Compensation CINCINNATI INSURANCE: Troy's Consolidated Amended Suit Dismissed CITIZENS ARTS CLUB: Siliki Sues Over Unpaid Compensations CONSTELLIS INTEGRATED: Hines Appeals Case Dismissal to 9th Cir. CONVERGENT OUTSOURCING: Filing of Class Cert Bid Due Feb. 25, 2022 CORECIVIC INC: Settles Securities Class Action Lawsuit CPT GROUP: Announces Proposed Settlement in a Class Action CVS PHARMACY: Court Dismisses Fuog Class Suit With Leave to Amend DELAWARE NORTH: Morand-Doxzon Appeals Partly OK'd Class Cert. Bid DEVON ENERGY: Ct. Enters Class Certification Scheduling Order DILLY KEY: Ramos Sues Over Failure to Pay Minimum, Overtime Wages DOLLAR GENERAL: Hauger Sues Over Mislabeled Graham Crackers DOLLAR GENERAL: Pays $1.8M to End Infants' False Ad Lawsuit DYNCORP INT'L: Court Denies Bid to Certify Class in Del Fierro Suit EARGO INC: Glancy Prongay Discloses Securities Class Action EDEN CREAMERY: Court Tosses Kamal Bid for Voluntary Dismissal EDUCATIONAL COMMISSION: Issue-Class Cert. in Russell Suit Vacated ENCORE FLIGHT: Hajihassani Sues Over Shady Flight Training Course EQT CORPORATION: Asbury Class Suit Remains Stayed FASTENAL CO: Jackson Must Seek for Prelim. Approval of Class Deal FORD MOTOR: "Death Wobble" Class Action Partly Dismissed GANNETT CO: Kentucky Court Dismisses Love FLSA Suit With Prejudice GARDNER TRUCKING: Leuzinger Suit Consolidated With Castro Suit GENERAL MOTORS: Hit With Lawsuit Over Alleged Airbag Failures GEO GROUP: Gets Class Action Over Alleged Drop of Stock Prices GOOGLE LLC: California Court Narrows Claims in Best Carpet Suit GRAMMER INDUSTRIES: Court Narrows Claims in Walton Class Suit GRAND VIEW: Attorneys Assist Tenants to Fill Out Claim Forms GREG STEPHEN: Judge OKs Class Action Lawsuit Over Sexual Abuse INNOVAGE HOLDING: Glancy Prongay Discloses Securities Class Action JPMORGAN CHASE: To Pay $15.7 Million to Settle Spoofing Class Suit KENNEDY ENDEAVORS: Maeda's Bid to Exclude Butler Testimony Denied KNOX COUNTY, TX: Must Enforce Mask Rule in Schools, Judge Rules KONINKLIJKE PHILIPS: Court Stays Norman Suit Pending JPML Ruling KONINKLIJKE PHILIPS: Penderghest Sues Over Defective Ventilators KONINKLIJKE PHILLIPS: Faruqi & Faruqi Reminds of Oct. 15 Deadline LOANCARE LLC: McClellan Sues Over Mortgage Servicing Practices LONGFIN CORP: Malik Securities Class Suit Terminated as of Aug. 11 LUZERNE COUNTY, PA: Kids for Cash Scandal Lawsuit Ongoing M AND E PIZZA: Little Sues Over Drivers' Unreimbursed Expenses MASTER BUILDERS: Court Approves Settlement Deal in D'Aquin Suit MDL 1869: BNSF Railway Brings Appeal to D.C. Cir. MOHAWK INDUSTRIES: To File More Briefing on Remand Bid in Cruz Suit NAT'L COLLEGIATE: Denies Motion to Dismiss College Athletes' Suit NATHANIEL WOODS: Bid to Quash Writ of Garnishment in Bell Denied NATIONSTAR MORTGAGE: Court Partly Excludes McNamee's Expert Report NATIONWIDE AGRIBUSINESS: Smith Sues Over Vehicle's Unpaid Sales Tax NATROL LLC: Vitello Appeals Summary Judgment Ruling to 8th Cir. NATURE'S BOUNTY: Baines Sues Over Mislabeled Fish Oil Supplements NATURECHEM INC: Bid for Summary Judgment Junked w/o Prejudice NEW YORK, NY: Class Action Over Sealed Arrest Records Pending NEW YORK: Second Circuit Appeal Filed in Gulino Suit re Serreti NEWLINK GENETICS: Attorneys' Fees & Expenses Awarded in Nguyen Suit NOVO NORDISK: Inks $100M Settlement Over Insulin Pricing Class Suit OLAM SPICES: Class Settlement in Beltran Suit Wins Prelim. Approval ORGAIN LLC: New York Court Dismisses Jones' 1st Amended Class Suit PERI & SONS: Bid to Consolidate Guzman With PAGA Action Denied POLARITYTE INC: Pomerantz Law Reminds of November 23 Deadline PORTFOLIO RECOVERY: New Jersey Court Narrows Claims in North Suit S.C. JOHNSON: Rivera Class Suit Dismissed With Leave to Amend SABOR TROPICAL: Ramirez Sues Over Delivery Workers' Unpaid Wages SOUTH CENTRAL: Hearing on Class Action Suit for Students Delayed ST. ELIZABETH: Obtains Favorable Ruling in Vaccine Rule Lawsuit STATE FARM: New Jersey Court Dismisses Fox's Amended Class Suit TAWKIFY INC: Stanfield Appeals Summary Judgment Ruling to 9th Cir. TRAVELERS INDEMNITY: Poughkeepsie Suit Dismissed With Prejudice TRIHEALTH INC: Court Dismisses Forman's Amended Class Complaint UNITED AIRLINES: Faces Employee Discrimination Lawsuit in Texas VELVET YOGURT: Faces Perez Suit Over Failure to Pay Proper Wages VERSACE BERTONI: Fails to Pay Proper Overtime Wages, Barboza Says WAITR HOLDINGS: Wins Partial Summary Judgment in Bobby's Suit WASHINGTON, DC: Female Officers Accuse of Discrimination in Lawsuit [*] Andalucia Supreme Court Orders Into Pending Class Actions [*] Class Action Lawsuit Launched on Behalf of Indigenous Mothers ********* 4E BRAND: Court Partly Grants Bid to Dismiss Pepe Class Suit ------------------------------------------------------------ In the case, KATHERINE PEPE, PATRICIA DONADIO, JUNE VONDERCHEK, and JOSEPH SANDERS on behalf of themselves and all others similarly situated, Plaintiffs v. 4E BRAND NORTH AMERICA, LLC, Defendant, Case No. 20 CV 6494 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendant's motion to dismiss the consolidated class action complaint pursuant to Rule 12(b)(6). Specifically, Plaintiffs Pepe, Donadio, and Vonderchek's claims for breach of express warranty and violations of New York's General Business Law Sections 349 and 350 will proceed. Plaintiff Sanders' claims for breach of express warranty, breach of implied warranty of fitness and merchantability, and violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56: 8-1 et seq., may also proceed. All other claims are dismissed. The Defendant's time to file an answer was Oct. 6, 2021. A telephone conference is scheduled for Oct. 22, 2021, at 2:30 p.m., at which time the Court will issue a bench ruling explaining the basis for its decision. The conference will also serve as an initial conference in the matter. All the counsel will use the following information to connect by telephone: Dial-In Number: (888) 363-4749 (toll free) or (215) 446-3662 Access Code: 1703567 By Oct. 15, 2021, the counsel will file on the ECF docket their proposed Civil Case Discovery Plan and Scheduling Order, a blank copy of which will be attached to the Notice of Initial Conference. The Notice will be separately docketed. The Clerk is instructed to terminate the motion. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/3atkhc83 from Leagle.com. ACT INC: Recent 1st Circuit Opinion Addresses Strategies for Suit ----------------------------------------------------------------- On August 30, 2021, the U.S. Court of Appeals for the First Circuit issued a decision in Bais Yaakov of Spring Valley v. ACT, Inc. that addresses how plaintiffs can satisfy the predominance requirement in federal class actions. (The opinion ("Op.") is available here). The decision held that on the facts of this case, the plaintiff could not establish predominance because individualized proof would be required on at least one element of the claim. The decision follows on the heels of an earlier decision where the First Circuit ruled against plaintiffs on a predominance dispute. In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018). These two cases create a high bar for plaintiffs to overcome defendants' submission of declarations or other evidence substantiating an actual need to litigate an issue using individualized evidence. Bais Yaakov arose under the Telephone Consumer Protection Act (TCPA). The TCPA prohibits sending advertisements by fax, unless the advertisement was either 1) sent pursuant to prior express permission or invitation of the recipient; or 2) the advertisement meets certain formatting requirements, including the presence of an opt-out notice in the advertisement. See 47 U.S.C. Sec 227(a)(5), 227(b)(1)(C). The statute provides for penalties of up to $1,500 per violation, which can quickly add up given the usually high volume of fax advertisements. 47 U.S.C. Sec 227(b)(3). Plaintiff, a small private high school, sent a request form to ACT in order to permit students' ACT test scores to be reported to the school. Op. at 3. The school provided its fax number on the form and checked a box stating that the school wanted to receive SAT and ACT publications. Id. Seven years later, ACT sent three faxes to Bais Yaakov. Id. Two of the faxes promoted registration to take the ACT, while the third invited the school to sign up as an ACT test administration venue. Id. at 3-4. Bais Yaakov then brought a TCPA suit against ACT on behalf of a putative class of approximately 7,000 schools. Id. at 4. Bais Yaakov alleged that ACT sent approximately 28,000 faxes that transgressed the TCPA. Id. The district court denied Bais Yaakov's motion for class certification. Id. at 8. The court concluded that determining whether the faxes were sent with the prior express permission of the recipients would require individualized examination of the class members' individual communications with ACT. Id. at 7. Thus, common issues would not predominate and the class could not be certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. Op. at 7. The court reached this conclusion in large part based on declarations (submitted by ACT) from seventy-eight putative class members stating that they provided ACT with their fax numbers, that they received communications via fax that were integral to their relationship with ACT, and that they would have given permission to send such information via fax. Id. at 20-21. Bais Yaakov appealed and the First Circuit affirmed the denial of class certification. The court held that the predominance inquiry turned on whether "the record reasonably shows that some putative class members" gave ACT permission to send the faxes and, if so, whether "there is a fair and efficient method for culling those consenting recipients from the class." Id. at 16. The court emphasized the importance of the declarations from the seventy-eight putative class members, which highlighted the differing positions of different putative class members regarding whether they had given ACT permission to send faxes. Id. at 20-21. The court concluded that, based on this evidence, the district court did not abuse its discretion in holding that there would be putative class members that consented to the faxes. Id. at 24. The First Circuit further held that Bais Yaakov raised no argument that there was a feasible way to cull those members from the class. Id. at 24-25. In a concurring opinion, Circuit Judge Barron addressed the implications of the court's decision on plaintiffs' ability to satisfy the predominance requirement more generally. In light of the First Circuit's decision and its earlier, similar decision in In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018), some commentators have questioned whether plaintiffs could ever satisfy the predominance requirement if the defendant merely contends that it needs to challenge class members' testimony on an individual basis. Judge Barron's concurrence pushes back against that argument and identifies potential situations where he might hold that a plaintiff can establish predominance even though the defendant contends that individual proof is required. He contends that Asacol and Bais Yaakov do not establish a per se rule that predominance cannot be satisfied whenever a defendant announces an intent to contest class members' testimony individually. Op. at 40. Rather, in Judge Barron's view, the court must make a "predictive assessment" of how the case would actually be litigated. Id. at 41. In making that assessment, the concurrence says that the court must look at whether such litigation would actually result in inefficiency (such as a large number of class members needing to testify about individual issues) or unfairness (such as infringing defendants' rights to present individualized evidence in order to avoid inefficiency). Id. After Asacol, many commentators viewed the First Circuit as a difficult place for class action plaintiffs to win class certification. The Bais Yaakov decision will likely reinforce that view. ACT effectively used declarations from putative class members to establish that different class members were differently situated regarding an element of the claim and to illustrate that individualized proof would be required on that element. By observing that courts should not just rest on defendants' word that individualized issues defeat predominance, the concurring opinion further highlights how important it is for defendants to supplement their class certification evidence with declarations or other supporting evidence, where appropriate. Whether and if plaintiffs can successfully rebut an argument against certification that is supported with such evidence remains to be seen in future cases. But the First Circuit's decisions so far suggest that where defendants' evidence demonstrates a real need for individualized assessments, the predominance standard is difficult for class action plaintiffs to satisfy. [GN] ACTIVISION BLIZZARD: Gross Law Firm Announces Class Action ---------------------------------------------------------- The securities litigation law firm of The Gross Law Firm issues the following notice on behalf of shareholders in the following publicly traded companies. Shareholders who purchased shares in the following companies during the dates listed are encouraged to contact the firm regarding possible Lead Plaintiff appointment. Appointment as Lead Plaintiff is not required to partake in any recovery. Activision Blizzard, Inc. (NASDAQ:ATVI) Investors Affected: August 4, 2016 - July 27, 2021 A class action has commenced on behalf of certain shareholders in Activision Blizzard, Inc. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Activision Blizzard discriminated against women and minority employees; (2) Activision Blizzard fostered a pervasive "frat boy" workplace culture that continues to thrive; (3) numerous complaints about unlawful harassment, discrimination, and retaliation were made to human resources personnel and executives which went unaddressed; (4) the pervasive culture of harassment, discrimination, and retaliation would result in serious impairments to Activision Blizzard's operations; (5) as a result of the foregoing, the Company was at greater risk of regulatory and legal scrutiny and enforcement, including that which would have a material adverse effect; (6) Activision Blizzard failed to inform shareholders that the California Department of Fair Employment and Housing had been investigating Activision Blizzard for harassment and discrimination; and (7) as a result, Defendants' statements about Activision Blizzard's business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. Shareholders may find more information at https://securitiesclasslaw.com/securities/activision-blizzard-inc-loss-submission-form/?id=19872&from=1 Yalla Group Limited (NYSE:YALA) Investors Affected: September 30, 2020 - August 9, 2021 A class action has commenced on behalf of certain shareholders in Yalla Group Limited. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: the Company overstated its user metrics and revenue and, as a result, the Company's public statements were materially false and misleading at all relevant times. Shareholders may find more information at https://securitiesclasslaw.com/securities/yalla-group-limited-loss-submission-form/?id=19872&from=1 Annovis Bio, Inc. (NYSE American:ANVS) Investors Affected: May 21, 2021 - July 28, 2021 A class action has commenced on behalf of certain shareholders in Annovis Bio, Inc. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Annovis's ANVS401 (Posiphen), an orally administrated drug which purportedly inhibited the synthesis of neurotoxic proteins that are the main cause of neurodegeneration, did not show statistically significant results across two patient populations as to factors such as orientation, judgement, and problem solving; and (2) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. Shareholders may find more information at https://securitiesclasslaw.com/securities/annovis-bio-inc-loss-submission-form/?id=19872&from=1 The Gross Law Firm is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: The Gross Law Firm 15 West 38th Street, 12th floor New York, NY, 10018 Email: dg@securitiesclasslaw.com Phone: (212) 537-9430 Fax: (833) 862-7770 [GN] ADS-MYERS INC: Dismissal of Barrios' Claims in Quiroz Suit Denied ----------------------------------------------------------------- In the case, JENNY QUIROZ, et al., Plaintiffs v. ADS-MYERS, INC., et al., Defendants, Case No. 20-cv-01755-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California denied ADS' motion to dismiss the claims of named Plaintiff Brayan Barrios. Two motions are pending in the putative class action lawsuit against Defendants ADS-MYERS and Karoline Myers (collectively, ADS) for alleged violations of federal and California state wage and hour laws. ADS asked to compel arbitration of named Plaintiff Quiroz's claims pursuant to an arbitration agreement in an employment contract. That motion raised contract formation questions requiring a bench trial. The Court will file shortly the findings of fact and conclusions of law for the bench trial. Judge Donato's Order resolves ADS's motion to dismiss the claims of named Plaintiff Barrios under Federal Rule of Civil Procedure 12(b)(1). Barrios is not said to have signed a contract with an arbitration agreement, and so the arbitration order will affect only Quiroz and her claims. The thrust of ADS' motion is that Barrios lacks standing to sue because he was never an ADS employee. Judge Donato denies the motion. His reason for the denial is straightforward. The second amended complaint (SAC) alleges that Barrios was "employed" by ADS as a janitor, that he was a "non-exempt employee," and that he "regularly worked more than eight (8) hours in a workday" and "more than 40 hours per workweek" for ADS. ADS proffered evidence indicating that it has no records of employing Barrios. It responded with representations that he will be able to demonstrate an employment relationship with ADS. This is a quintessential dispute of fact that the Court declines to resolve in the Rule 12(b) context. Judge Donato says, this outcome is particularly warranted under Rule 12(b)(1) when, as in the case, "the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action." The better course of action is a motion for summary judgment based on a well-developed factual record. Consequently, the motion is denied without prejudice. ADS may file a summary judgment motion as developments warrant. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/93ydzbvk from Leagle.com. AETNA INC: Faces Class Suit Over Alleged Discriminatory Policies ---------------------------------------------------------------- Heather Landi at fiercehealthcare.com reports that insurance giant Aetna has been hit with a class-action lawsuit over mental health parity as the demand for behavioral health services ramps up during the COVID-19 pandemic. The complaint, which was filed in U.S. District Court in the Central District of California, alleges that Aetna illegally denied claims for mental health residential treatment services. In 2019, the plaintiff, who has an Aetna insurance plan through his employer, Fox Entertainment Group, enrolled his 16-year-old son who has autism spectrum disorder in a mental health residential treatment center located in Utah, according to the complaint. Aetna denied the plaintiff's claim for reimbursement for his son's treatment at the residential facility. The complaint alleges that Aetna imposes a set of internally developed criteria to determine which residential treatment facilities receive coverage that are far more restrictive than generally accepted professional standards to "minimize the number of claims accepted and thereby maximizing Aetna's own profits," according to the lawsuit. "Unfortunately, in administering the Aetna Plans, Aetna treats mental health as less important than physical health," the plaintiff said in the complaint. According to Aetna's letter to the plaintiff, as cited in the complaint, the insurer said it was denying coverage because the facility is not accredited by an agency such as The Joint Commission, the Committee on Accreditation of Rehabilitation Facilities, the American Osteopathic Association's Healthcare Facilities Accreditation Program or the Council on Accreditation. Aetna also said the mental health residential treatment center is not covered under the terms of the plan because a behavioral provider is not actively on duty 24 hours per day for 7 days a week and the patient is not treated by a psychiatrist at least once per week but on an as-needed basis. "This class action claims that Aetna is not following the law because it is imposing more stringent standards for mental health providers to receive coverage than for some hospitalizations," attorney Brian Adesman, who is representing the plaintiff, told Fierce Healthcare. "The standards they are using and the requirements for mental health facilities don't exist for surgical benefits or physical health benefits. Our client appealed it, and each time Aetna came back and said you don't meet the requirements and refused to cover the cost," he said. The complaint is brought by attorneys Adesman, Omar Qureshi and L. David Russell. In a statement provided to Fierce Healthcare, an Aetna spokesman said, "While we're not commenting on this pending litigation at this time, we take mental wellbeing very seriously. It is an enterprise priority that drives partnerships with organizations, providers and employers to improve mental health care nationwide." The spokesman added, "Aetna was an early advocate of the passage of the Mental Health Parity and Addiction Equity Act (MHPAEA) in 2008, as well as legislative efforts that predate MHPAEA. We view the law as a landmark achievement for mental health. We will continue to be a strong advocate of the law and for comprehensive access to mental health resources that are covered by our health plans." In the complaint, the plaintiff alleges that having more stringent standards for mental health treatment coverage violates the Mental Health Parity and Addiction Equity Act of 2008, also called the Parity Act, and the Employee Retirement Income Security Act (ERISA). The Parity Act aims to block insurers from hindering access to behavioral health. While the Parity Act does not require health care plans to cover mental health services, if a plan chooses to cover mental health services, such coverage must be provided "at parity" with medical and surgical benefits, Adesman said. "Our class action seeks to remedy that and asks Aetna to create more fair standards that are at parity with physical health standards and reprocess all the [plaintiff's] claims they denied for mental health," the complaint said. The complaint does not specify how much the plaintiff spent in out-of-pocket medical costs for the mental health residential treatment center as a result of Aetna's denial of coverage. So far, the plaintiff is the only class representative named in the complaint but Adesman said the class-action lawsuit could be amended to add other Aetna plan members who have been denied coverage for mental health treatment. As of September 30, 2018, Aetna had approximately 22.1 million medical members and a "great number of these medical members belonged to Aetna Plans and were denied coverage for all or a portion of residential treatment for mental health disorders," representing "a substantial number" of proposed class members, the complaint states. UnitedHealthcare also was hit with a lawsuit from state and federal regulators over mental health parity. The insurer will pay a hefty settlement, to the tune of $15.6 million, to settle federal and state investigations, the Department of Labor announced in August. The settlement includes $13.6 million in payments to members for wrongfully denied claims as well as just over $2 million in penalties and lawyers fees, DOL said. An investigation by DOL's Employee Benefits Security Administration found that UnitedHealth would reduce reimbursement rates for out-of-network behavioral health services and would flag members who were undergoing mental health treatment for utilization reviews. "Insurance companies are not above the law and profits can't come before people," Adesman said. The number of people looking for help to cope with anxiety and depression has skyrocketed in 2020. "People are in need of mental health services more than ever as the COVID-19 pandemic has only exacerbated this trend. It's time for insurance companies to take their fiduciary duties seriously," Adesman said. [GN] AFNI INC: Northern District of Illinois Dismisses Chisom FDCPA Suit ------------------------------------------------------------------- In the case, CHERYL CHISOM, on behalf of herself and all others similarly situated, Plaintiff v. AFNI, INC., Defendant, Case No. 20-cv-06565 (N.D. Ill.), Judge John Robert Blakey of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants Afni's motion to dismiss. Background The Plaintiff incurred an alleged debt for residential cable services provided by Comcast. When she failed to pay on the account, the alleged debt went into default. Defendant Afni attempted to collect the alleged debt and sent a collection letter to the Plaintiff on Oct. 19, 2020. When Afni mailed the Letter, neither it nor COMCAST could sue the Plaintiff to collect the alleged debt because the statute of limitations on the debt had run. Additionally, at the time Afni mailed the Letter, no judgment had been entered on the alleged debt. Afni thus could not have obtained a copy of a judgment with respect to the alleged debt and mailed it to her as represented in the Letter. The Plaintiff claims that Defendant's conflicting statements confused her. While the Letter referenced the possibility of obtaining and mailing a copy of a judgment on the debt, the Letter also stated that neither the Defendant nor COMCAST could legally sue her to collect the alleged debt, implying that no judgment could be obtained. THe Defendant's reference to a judgment made her believe either that a judgment with respect to the alleged debt had already been entered or that Afni or COMCAST was in the process of obtaining a judgment or could obtain a judgment in the future. The Plaintiff alleges that she was also confused by Defendant's statement in the Letter warning her that if she failed to pay the debt, the Defendant could continue credit reporting "for as long as the law permits this reporting." She did not know that if she disputed the debt within 30 days, the law required the Defendant to stop credit reporting and verify the debt. She claims that the Defendant's statement overshadowed any disclosure of her right to dispute the alleged debt within the 30-day validation period. Finally, the Plaintiff asserts she was confused by the Defendant's statements regarding how to "renew" the alleged debt. The Defendant failed to explain what "renew the debt" meant, and the Plaintiff did not understand that by making or attempting to make a payment on the alleged debt, she would restart the statute of limitations on the debt and authorize Defendant or COMCAST to sue her on the alleged debt. The Plaintiff did not believe she owed the alleged debt discussed in the Letter, and, had she not been confused by Afni's statements, she would have opted to dispute or verify it; instead, because the Defendant's statements confused her, Plaintiff did not dispute or verify the alleged debt as was her right. The Plaintiff sued on behalf of a putative class claiming the Defendant violated Section 1692 of the FDCPA. More specifically, in her single count, the Plaintiff alleges that the Defendant violated Sections 1692e, 1692e(2)(A), 1692e(5), 1692e(10), and 1692f of the FDCPA when it stated it could obtain a copy of a judgment with respect to the alleged debt and mail it to the Plaintiff, when the Defendant knew it could not legally do so. The Plaintiff also alleges that the Defendant violated sections 1692e(2)(A) and 1692g(b) of the FDCPA when it stated that it could report the alleged debt to a credit reporting agency for as long as the law permits, when in fact she could have stopped the Defendant's credit reporting by disputing the debt within 30 days. The Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the Plaintiff lacks standing to sue, and under Rule 12(b)(6), arguing that her allegations fail to state a claim for violation of the FDCPA. Discussion The FDCPA prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." The Plaintiff invokes Sections 1692e(2)(A), (5), and (10). She alleges that Afni: represented that "it could obtain a copy of a judgment and mail it to her when it knew it could not legally do so,"; and "misrepresented the legal status of an alleged debt and threatened an action it did not intend to take" and legally could not take. The Plaintiff alleges that the Defendant stated that upon written request it would obtain a copy of a judgment and mail it to Plaintiff, when it knew no such judgment existed or was legally possible to obtain. The Plaintiff also claims the Defendant violated Section 1692f, which prohibits a debt collector from using "unfair or unconscionable means to collect or attempt to collect any debt." In connection with this section, the Plaintiff again relies upon Afni's statement that it would obtain a copy of a judgment and mail it to her when it knew it was legally impossible for it do so. The Plaintiff also alleges that a judgment was neither applicable, nor legally available, because the statute of limitations had run on the alleged debt. The Defendant moves to dismiss both for lack of standing and for failure to state a claim upon which relief may be granted. A. Defendant's Rule 12(b)(1) Motion to Dismiss for Lack of Standing The Defendant first argues that the Plaintiff lacks Article III standing because she did not sufficiently plead any concrete injury in fact and instead alleged a bare procedural violation of the FDCPA. The Plaintiff disagrees, arguing that the confusing and misleading content of the Letter caused her to forego her right to seek verification of the debt, which sufficiently establishes a concrete injury in fact. Judge Blakey finds that the Plaintiff alleges that she did not believe she owed the alleged debt and would have disputed the debt or sought verification of the debt had she not been confused by the language in the Defendant's Letter. Thus, the Plaintiff alleges more than just a procedural violation; she alleges that the Defendant's confusing language harmed "the concrete interest that the statute protected" -- namely, her right to dispute or verify her supposed debts to avoid the use of abusive debt collection practices. Article III's "strictures are met not only when a plaintiff complains of being deprived of some benefit, but also when a plaintiff complains that she was deprived of a chance to obtain a benefit." An informational injury -- withholding information when a statute requires its disclosure -- satisfies Article III "if the plaintiff establishes that concealing information impaired her ability to use it for a substantive purpose that the statute envisioned." By pleading that her confusion led her to forego her statutory right to dispute the alleged debt, Judge Blakey holds that the Plaintiff has alleged a concrete injury in fact, and he declines to dismiss her amended complaint for lack of standing. B. Defendant's Rule 12(b)(6) Motion to Dismiss Any Claim under Sections 1692e and 1692f The Plaintiff alleges that the Defendant violated Section 1692e and Section 1692f of the FDCPA, claiming the Defendant's contradicting statements regarding the possible attainment of a judgment with respect to the alleged debt were unfair and misleading. The Defendant moves to dismiss the Plaintiff's claim in its entirety, arguing that the Plaintiff has failed to state a claim for violation of either section; Defendant argues that her claim, whether based in Section 1692e or Section 1692f, is implausible and predicated on a bizarre and idiosyncratic reading of the Defendant's Letter, which it claims is patently not confusing to the unsophisticated consumer. Judge Blakey finds the Letter plainly and clearly not misleading or unfair on its face. As a result, any claim for violation of Sections 1692e or 1692f fails, and the Judge grants the Defendant's motion to dismiss with respect to both claims. C. Defendant's Rule 12(b)(6) Motion to Dismiss Any Claim under Section 1692g(b) The Plaintiff also alleges that the Defendant overshadowed its disclosure of the Plaintiff's right to dispute the alleged debt, in violation of Section 1692g(b), when the Defendant stated it would report the debt "for as long as the law permits" if she failed to pay. The Defendant argues that any claim under Section 1692g(b) fails because the statement did not overshadow the disclosure but simply warned the Plaintiff of the potential consequences of not paying the alleged debt. Judge Blakey finds that the Defendant's letter stated that it would continue credit reporting "for as long as the law permits" if Plaintiff failed to pay but also clearly stated that Plaintiff had 30 days to dispute the debt. He says, the Defendant's Letter did not demand immediate payment and thus did not overshadow the amount of time remaining in the verification period. As a result, the Judge finds that the Plaintiff cannot state an overshadowing claim based upon the challenged language. To the extent she has intended to allege a separate claim for violation of Section 1692g(b), her claim fails, and the Judge grants the Defendant's motion to dismiss any claim under this section. Conclusion For the reasons he explained, Judge Blakey grants the Defendant's motion to dismiss for failure to state a claim and directs the Clerk to enter judgment of dismissal. The civil case is terminated. A full-text copy of the Court's Sept. 24, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/ztsx9pz5 from Leagle.com. AGING IN PLACE: Ray Seeks to Recover Unpaid Overtime Compensation ----------------------------------------------------------------- Andrea Ray and Hannah Inman, individually and on behalf of all others similarly situated v. Aging in Place LLC, and Sherri McMeans, Individually, Case No. 4:21-cv-00715-WBG (W.D. Mo., Oct. 4, 2021), is brought under the Fair Labor Standards Act to seek unpaid overtime compensation. According to the complaint, the Defendants misclassified Plaintiffs as independent-contractors and failed to pay them overtime compensation under the FLSA. The Defendants improperly classified Plaintiffs and other Care Givers and improperly withheld overtime compensation from Plaintiffs and all other Care Givers. All Care Givers are similarly situated and are all subject to Defendants' policy and practice that designated and/or treated them as independent contractors and fail to compensate them for overtime hours worked in excess of 40 per week. The Plaintiffs regularly worked in excess of 40 hours per week, but they were not compensated at a rate of at least one and one half times her regular rate for hours worked in excess of 40 in a workweek, says the complaint. The Plaintiffs worked for Defendants as Care Givers. The Defendants are a provider of Home Care for disabled and physically challenged individuals by providing various service through its Care Givers.[BN] The Plaintiffs are represented by: Barry R. Grissom, Esq. Jacob D. Miller, Esq. GRISSOM MILLER LAW FIRM, LLC 1600 Genessee Street, Suite 460 Kansas City, MO 64102 Phone: 816.336.1213 Fax: 816.384.1623 Email: barry@grissommiller.com jake@grissommiller.com ALAMEDA COUNTY, CA: Settlement Could Improve Health Care at Jails ----------------------------------------------------------------- localnewsmatters.org reports that U.S. Magistrate Judge Nathanael Cousins preliminarily approved a settlement in a federal class action lawsuit against Alameda County over mental health care at Santa Rita Jail in Dublin and at any other Alameda County jail. Cousins approved the settlement preliminarily at a virtual hearing before attorneys for both sides. "I am inclined to approve the settlement," Cousins told the attorneys and others present at the hearing. The judge also agreed to extend the date for the final approval to Jan. 19. The hearing for the final approval was previously set for Dec. 15. The extended time will give attorneys more time to educate the jail's incarcerated people on the agreement and more time for people to raise objections to the settlement if they choose to. "This has been an extensive process that will make our jail safer for staff and those in custody while addressing the specific needs of our population." Sgt. Ray Kelly, Alameda County Sheriff's Office The settlement will require sweeping changes at the jail, not only for people with psychiatric disabilities but for incarcerated people in general. Changes will be made over the next two years and the agreement will be in effect for six years, depending on the progress made. Besides mental health care, changes will be made to out-of-cell time, ADA accommodations at the jail for people with mental health disabilities, use of force, discharge planning and among other things suicide prevention. Recent suicides at the jail prompted the lawsuit. Nineteen people died by suicide since 2014 and 31 more died at the jail from other causes. Fifty deaths are a lot for a jail with a population the size of Santa Rita, attorneys for the incarcerated people at Santa Rita said. Attorney Jeff Bornstein, one of the attorneys representing the jail's inmates, said significant changes need to be made and they are underway. Already, a lot fewer people are in restrictive housing, he said. But, he said, "We have a long way to go." "We're cautiously optimistic," he said. Beyond minimum standards The goal is to make things right at the jail rather than simply meeting the minimum requirements for the treatment of the incarcerated people there, Bornstein said. He said it would be great if people with mental illness didn't have to go to jail at all. A big issue addressed in the agreement is how incarcerated people are treated when they are released. In the past, they have been turned out onto the streets. Under the settlement, former inmates with serious mental health issues will get a "warm handoff" to community-based providers who can help secure needed resources for them when they are released. Besides the provision of adequate mental health care, the agreement calls for adequate out-of-cell time each day, including increasing out-of-cell time in the first three months of the agreement. The agreement also calls for measures to prevent suicide and self-harm among incarcerated people, including limiting the use of safety cells -- a small room with nothing but a grate in the floor. The county will be building suicide-resistant cells as part of the agreement and limiting the use of and hopefully phasing out safety cells, Bornstein said. In all, seven major changes are in store for incarcerated people at the jail. Progress at the jail will be monitored by joint neutral experts and attorneys. "Our agency is in full support and agreement," Alameda County Sheriff's Office spokesman Sgt. Ray Kelly said. "This has been an extensive process that will make our jail safer for staff and those in custody while addressing the specific needs of our population. "The agreement will bring much needed improvements and resources to our criminal justice system in Alameda County," he said. [GN] ALBERTSONS COMPANIES: Dewse Sues Over Unlawful Labor Practices -------------------------------------------------------------- ALLISON DEWSE, an individual, on behalf of herself, and on behalf of others similarly situated, Plaintiff v. ALBERTSONS COMPANIES, INC., a Delaware corporation, and DOES 1-100, inclusive; Defendants, Case No. 37-2021-00040943-CU-OE-CTL (Cal. Super., San Diego Cty., Sept. 24, 2021) arises from the Defendants' failure to pay proper overtime wages, failure to timely pay wages when due, failure to provide accurate itemized wage statements, failure to reimburse expenses, and for underpaid wages, in violation of the California's Labor Code. Ms. Dewse was employed by the Defendant as a non-exempt, full-time employee, specializing in cake decoration at a Vons grocery store in El Cajon, California, from approximately December 2019 through November 2020. Albertsons Companies, Inc. is an American grocery company founded and headquartered in Boise, Idaho.[BN] The Plaintiff is represented by: Craig M. Nicholas, Esq. Shaun Markley, Esq. Jake Schulte, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org smarkley@nicholaslaw.org jschulte@nicholaslaw.org - and - Noam Glick, Esq. GLICK LAW GROUP, PC 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 382-3400 Facsimile: (619) 393-0154 E-mail: noam@glicklawgroup.com ALLIED MEDICAL: Court Enters Scheduling Order in Weisgold Suit -------------------------------------------------------------- In the class action lawsuit captioned as DEAN E. WEISGOLD, P.C., a Pennsylvania Corporation, individually and on behalf of all others similarly situated, v. ALLIED MEDICAL ASSOCIATES P.C., DR. BRYAN H. EHRLICH, and JOHN DOES 1-2, Case No. 2:21-cv-01664-KSM (E.D. Pa.), the Court entered a scheduling order as follows: 1. Counsel shall participate in a settlement conference to be scheduled by Magistrate Judge Marilyn Heffley in November 2021, if practicable. 2. All motions to amend the pleadings and to join or add additional parties shall be filed no later than September 23, 2021. 3. All fact discovery shall be completed no later than February 10, 2022. The parties shall submit a letter the Court identifying the dates that they have set aside for depositions by no later than September 23, 2021. 4. Counsel for each party shall serve upon counsel for every other party the information referred to in Federal Rule of Civil Procedure 26(a)(2)(B) by expert report or answer to expert interrogatory no later than March 10, 2022. If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, counsel shall serve the information on counsel for every other party no later than April 11, 2022. Expert depositions, if any, shall be concluded no later than May 11, 2022. 5. Any party expecting to offer opinion testimony from lay witnesses pursuant to Federal Rule of Evidence 701 with respect to the issues of liability and damages shall, at the time required for submission of information and/or reports for expert witnesses on liability and damages set forth in the preceding paragraph, serve opposing parties with concise details and/or documents covering the lay opinions of the Rule 701 witnesses, including the identity of each witness offering the expert opinion, the substance and the basis for each opinion. 6. Plaintiff shall file his motion for class certification no later than June 13, 2022. 7. Defendant shall file its response to the plaintiff's motion for class certification by June 1, 2022. 8. Plaintiff shall file his reply to the defendant's response by July 15, 2022. 9. Motions for summary judgment shall be filed no later than October 31, 2022. A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3iB6mVO at no extra charge.[CC] AMAZON.COM: Vincenzeti Sues Over Unpaid Minimum and Overtime Wages ------------------------------------------------------------------ Jennifer Vincenzeti, and those similarly situated v. AMAZON.COM SERVICES LLC, Case No. 1:21-cv-02681 (D. Colo., Oct. 1, 2021), arises from the Defendant's illegal policy of forcing warehouse workers to work off the clock before and after their shifts with no compensation. Each day, Plaintiff would be forced to work between two to five minutes before she could clock in and begin getting compensated. During this uncompensated time, she was required to get her badge and meet with a Shift Assistant to receive her job duties for the day. Amazon ensured Plaintiff and those similarly situated complied with this off the clock work policy by implementing policies that would punish employees for clocking in early or out late. If an employee clocked in early or out late too often, it would result in eventual termination. This off the clock work left Plaintiff and those similarly situated unpaid for hourly contract wages and minimum wages. In addition, because many employees were clocked in for 40 hours a week or just shy of 12 hours in a day, this off the clock work often resulted in unpaid overtime, including for the Plaintiff, says the complaint. The Plaintiff worked for Amazon at two Colorado Springs warehouses from October 2018 to December 2020. Amazon operates a sprawling international online retail shopping business that allows customers to order goods online and have those orders fulfilled and delivered through Amazon's expansive fulfillment network.[BN] The Plaintiff is represented by: Alexander N. Hood, Esq. David H. Seligman, Esq. Brianne M. Power, Esq. Towards Justice PO Box 371680, PMB 44465 Denver, CO 80237-5680 Phone: 720-441-2236 Email: alex@towardsjustice.org david@towardsjustice.org brianne@towardsjustice.org - and - Brian D. Gonzales, Esq. THE LAW OFFICES OF BRIAN D. GONZALES, PLLC 2580 East Harmony Road, Suite 201 Fort Collins, CO 80528 Phone: (970) 214-0562 Email: BGonzales@ColoradoWageLaw.com AMPLIFY ENERGY: Gutierrez Files Suit in C.D. California ------------------------------------------------------- A class action lawsuit has been filed against Amplify Energy Corporation, et al. The case is styled as Peter Moses Gutierrez, Jr., individually and on behalf of all others similarly situated v. Amplify Energy Corporation, Beta Operating Company, LLC, Doe Corps 1-100, Case No. 8:21-cv-01628-DOC-JDE (C.D. Cal., Oct. 4, 2021). The nature of suit is stated as Torts to Land. Amplify Energy Corp -- https://www.amplifyenergy.com/home/default.aspx -- is an oil company based in Houston, Texas.[BN] The Plaintiff is represented by: Alex R. Straus, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 280 South Beverly Drive, Penthouse Suite Beverly Hills, CA 90212 Phone: (914) 471-1894 Fax: (919) 600-5035 Email: astraus@milberg.com ANHEUSER-BUSCH: Faces Class Suit Over Cacti Misleading Label Info ----------------------------------------------------------------- Nolan Strong, writing for All Hiphop, reports that Travis Scott's Cacti brand of spiked seltzer with Anheuser-Busch has landed the beverage giant and hot water. A disgruntled fan is filing a class-action lawsuit against Anheuser-Busch over the product's labeling, which the woman says is misleading. Rebecca Read has issues with Cacti's claims that the product is "made with 100% Blue Agave from Mexico." Read says she bought Cacti in June and July of 2021, thinking it would contain agave spirits because it is labeled as "Agave Spiked Seltzer." She was disappointed to learn that the product was an "agave sweetener" and not the real thing. Read said she chose to purchase Cacti, even though it was more expensive than other spiked seltzer water on the shelves, because she assumed she was getting the real thing -- a sliver of Blue Agave -- which is used to make tequila. As a result, Read claims she was beaten out of her money because the product was worth less than what she would have paid if Cacti did not make false and misleading statements about the spiked seltzer. For the uninitiated, agave is a plant native to arid and semi-arid regions of the Americas, particularly Mexico. The Weber Blue Agave plant is the base for making tequila. The popularity of the drink has skyrocketed in the United States in recent years. Consumption in the U.S. has risen by more than 30% between 2015 and 2020. As such, demand for 100% Blue Agave plant products has exploded. Agave-based spirits are the third-largest spirits category in the U.S., following vodka and whiskey. According to Rebecca Read, state and federal relation regulations require the front label of Cacti to identify the product as something other than "Agave Spiked Seltzer." "The Product lacks any Agave spirits and instead uses 'Agave syrup,' a sweetener derived from the Agave plant, as shown in the fine print ingredient list on the back of the Product," according to Read's complaint. "Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers. Had Plaintiff and proposed class members known the truth, they would not have bought the Product or would have paid less for it." Rebecca Read and her lawyers are hoping to have her complaint certified as a class-action lawsuit, since Cacti has been sold to consumers nationwide. Rebecca Read is being represented by Spencer Sheehan of Sheehan & Associates, P.C. in Great Neck, New York. [GN] ANNOVIS BIO: Klein Law Firm Reminds of October 18 Deadline ---------------------------------------------------------- The Klein Law Firm on Sept. 27 disclosed that a class action complaint has been filed on behalf of shareholders of Annovis Bio, Inc. (NYSE: ANVS) alleging that the Company violated federal securities laws. Class Period: May 21, 2021 and July 28, 2021 Lead Plaintiff Deadline: October 18, 2021 No obligation or cost to you. Learn more about your recoverable losses in ANVS: https://www.kleinstocklaw.com/pslra-1/annovis-bio-inc-loss-submission-form?id=19885&from=5 Annovis Bio, Inc. NEWS - ANVS NEWS CLASS ACTION CASE DETAILS: The filed complaint alleges that Annovis Bio, Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) Annovis's ANVS401 (Posiphen), an orally administrated drug which purportedly inhibited the synthesis of neurotoxic proteins that are the main cause of neurodegeneration, did not show statistically significant results across two patient populations as to factors such as orientation, judgement, and problem solving; and (2) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a loss in Annovis Bio you have until October 18, 2021 to petition the court for lead plaintiff status. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. NO COST TO YOU: If you purchased Annovis Bio securities during the relevant period, you may be entitled to compensation without payment of any out-of-pocket fees. HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information about the ANVS lawsuit, please contact J. Klein, Esq. by telephone at 212-616-4899 or click this link. About Klein Law Firm J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. The Klein Law Firm is a boutique litigation firm with experience in a wide range of areas including securities law, corporate finance and commercial litigation. Since 2011, our experienced attorneys have achieved superior results for our clients with a personalized focus. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] ANTERO RESOURCES: Case Schedule in Grissom Suit Extended -------------------------------------------------------- In the class action lawsuit captioned as ELAINE GRISSOM, et al., v. ANTERO RESOURCES CORPORATION, Case No. 2:20-cv-02028-EAS-EPD (S.D. Ohio), the Hon. Judge Elizabeth A. Preston Deavers entered an order granting the Plaintiffs' motion to extend case schedule as follows: Deadline Date -- Fact discovery completion Nov. 9, 2021 -- Plaintiffs' motion for class Nov. 9, 2021 certification with expert report(s) in support of class certification -- Expert discovery of Plaintiffs' Jan. 11, 2022 expert(s) in support of class certification -- Defendant's opposition to Jan. 21, 2022 motion for class certification with expert report(s) in opposition to class certification -- Expert discovery of Defendant's Feb. 21, 2022 expert(s) in opposition of class certification complete; class certification expert discovery closes -- Plaintiffs' reply in support March 7, 2022 of class certification with rebuttal expert report(s) in support of class certification -- Plaintiffs to make settlement May 24, 2022 demand -- Defendant to respond to Plaintiffs' June 21, 2022 settlement demand -- Case is referred to mediation July 2022 Antero Resources is a company engaged in hydrocarbon exploration. It is organized in Delaware and headquartered in Denver, Colorado. The company's reserves are entirely in the Appalachian Basin and are extracted using hydraulic fracturing. A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3Aes6g9 at no extra charge.[CC] APPHARVEST INC: Glancy Prongay Discloses Securities Class Action ---------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM"), announces that it has filed a class action lawsuit in the United States District Court for the Southern District of New York captioned Ragan v. AppHarvest, Inc., et al., (Case No. 21-cv-07985) on behalf of persons and entities that purchased or otherwise acquired AppHarvest, Inc. ("AppHarvest" or the "Company") (NASDAQ: APPH) securities between May 17, 2021 and August 10, 2021, inclusive (the "Class Period"). Plaintiff pursues claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). If you suffered a loss on your AppHarvest investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/appharvest-inc/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com or visit our website at www.glancylaw.com to learn more about your rights. AppHarvest is a sustainable food company that operates applied technology greenhouses to produce fresh, chemical-free, non-GMO fruits, vegetables, and related products. On August 11, 2021, before the market opened, AppHarvest announced its second quarter financial results, reporting a $32.0 million net loss. The Company also lowered its full year sales guidance to a range of $7 million to $9 million, from a prior range of $20 million to $25 million. AppHarvest attributed the lower than expected results to "operational headwinds with the full ramp up to full production at the company's first CEA facility, including labor and productivity challenges related to the training and development of the new workforce and historically low market prices for tomatoes." On this news, the Company's share price fell $3.46, or approximately 29%, to close at $8.51 per share on August 11, 2021, on unusually heavy trading volume. Throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that AppHarvest lacked sufficient training for its recently expanded labor force; (2) that, as a result, the Company could not produce Grade No. 1 tomatoes consistently; (3) that, as a result, the Company's financial results would be adversely impacted; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. [GN] APPHARVEST INC: Robbins Geller Reminds of November 23 Deadline -------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP announces that purchasers of AppHarvest, Inc. (NASDAQ: APPH) securities between May 17, 2021 and August 10, 2021, inclusive (the "Class Period") have until November 23, 2021 to seek appointment as lead plaintiff in the AppHarvest class action lawsuit. The AppHarvest class action lawsuit charges AppHarvest and certain of its top executives with violations of the Securities Exchange Act of 1934. The AppHarvest class action lawsuit was commenced on September 24, 2021 in the Southern District of New York and is captioned Ragan v. AppHarvest, Inc., No. 21-cv-07985. If you wish to serve as lead plaintiff of the AppHarvest class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the AppHarvest class action lawsuit must be filed with the court no later than November 23, 2021. CASE ALLEGATIONS: The AppHarvest class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) AppHarvest lacked sufficient training for its recently expanded labor force; (ii) as a result, AppHarvest could not produce Grade No. 1 tomatoes consistently; (iii) consequently, AppHarvest's financial results would be adversely impacted; and (iv) as such, defendants' positive statements about AppHarvest's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On August 11, 2021, AppHarvest announced its second quarter 2021 financial results, reporting a $32.0 million net loss. AppHarvest also lowered its full year sales guidance to a range of $7 million to $9 million, from a prior range of $20 million to $25 million. AppHarvest attributed the lower than expected results to "operational headwinds with the ramp up to full production at the company's first CEA facility, including labor and productivity challenges related to the training and development of the new workforce and historically low market prices for tomatoes." On this news, AppHarvest's share price fell approximately 29%, damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased AppHarvest securities during the Class Period to seek appointment as lead plaintiff in the AppHarvest class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the AppHarvest class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the AppHarvest class action lawsuit. An investor's ability to share in any potential future recovery of the AppHarvest class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9 offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest U.S. law firm representing investors in securities class actions. Robbins Geller attorneys have obtained many of the largest shareholder recoveries in history, including the largest securities class action recovery ever -- $7.2 billion -- in In re Enron Corp. Sec. Litig. The 2020 ISS Securities Class Action Services Top 50 Report ranked Robbins Geller first for recovering $1.6 billion for investors last year, more than double the amount recovered by any other securities plaintiffs' firm. Please visit http://www.rgrdlaw.comfor more information. [GN] APPLE INC: Settles AppleCare Extended Warranty Class Action ----------------------------------------------------------- Bestgamingpro reports that however, as customers receive their new iPads, a recurring problem is coming to light once again. When the iPad mini's rear camera is aimed at the top in portrait orientation, the display on the right updates faster than the left. The left side will now update ahead of the right side when viewed upside down. The Verge's Dieter Bohn captured the issue well with a slow-motion video posted to Twitter. The visible judder is evident as half of the screen updates while the other half lags behind. It's not yet clear whether the fault is with the LCD panel, display controllers, or a software/firmware problem. Because the display controllers are on the side rather than at the bottom or top of the screen, it's possible that display signals are reaching half of the screen faster, resulting in a hardware design issue. It will be up to the consumer to decide if the jelly scrolling issue is sufficient reason to abandon the iPad mini. Obviously, little visual flaws like this are more alarming for some individuals than others. A lot of people may discover something is wrong but then their brains acclimate and they can ignore it after a few hours. [GN] ARTSANA USA: Faces Jimenez Suit Over Defective Booster Seats ------------------------------------------------------------ AMANDA JIMENEZ, individually and on behalf of all others similarly situated, Plaintiff v. ARTSANA USA, INC., Defendant, Case No. 7:21-cv-07933 (S.D.N.Y., Sept. 23, 2021) is a class action against the Defendant for breach of express and implied warranty, unjust enrichment, fraud, and violations of New York consumer protection laws. According to the complaint, the Defendant has committed unfair or deceptive acts and practices to consumers, including the Plaintiff, by making false representations and omissions on the label and in the advertising of its Chicco-brand booster seats. Allegedly, the products are not safe for use or suitable for children as small as 30 pounds, and do not pass any side-impact testing or offer side-impact protection. The fraudulent actions of Defendant caused damage to Plaintiff and members of the Class, who are entitled to damages and other legal and equitable relief as a result, the suit says. Artsana USA, Inc. provides baby related products. The Company offers everything from baby gear to nursing, toys, apparel, shoes, and baby care products.[BN] The Plaintiff is represented by: Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: aleslie@bursor.com - and - L. Timothy Fisher, Esq. Sean L. Litteral, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com slitteral@bursor.com - and - Antonio Vozzolo, Esq. Andrea Clisura, Esq. VOZZOLO LLC 345 Route 17 South Upper Saddle River, NJ 07458 Telephone: (201) 630-8820 Facsimile: (201) 604-8400 E-mail: avozzolo@vozzolo.com aclisura@vozzolo.com ATI PHYSICAL: Faruqi & Faruqi Reminds of October 15 Deadline ------------------------------------------------------------ Faruqi & Faruqi, LLP, a leading national securities law firm, is investigating potential claims against ATI Physical Therapy, Inc. ("ATI" or the "Company") (NYSE: ATIP) and reminds investors of the October 15, 2021 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you suffered losses exceeding $50,000 investing in ATI stock or options between April 1, 2021 and July 23, 2021 and would like to discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You may also click here for additional information: www.faruqilaw.com/ATIP. Cannot view this image? Visit: https://orders.newsfilecorp.com/files/6455/97660_2b8a253334e7cbaa_001.jpg There is no cost or obligation to you. Faruqi & Faruqi is a leading minority and Woman-owned national securities law firm with offices in New York, Delaware, Pennsylvania, California and Georgia. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that: (1) that ATI was experiencing attrition among its physical therapists; (2) that ATI faced increasing competition for clinicians in the labor market; (3) that, as a result of the foregoing, the Company faced difficulties retaining therapists and incurred increased labor costs; (4) that, as a result of the labor shortage, the Company would open fewer new clinics; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On July 26, 2021, before the market opened, ATI reported its financial results for second quarter 2021, the period in which the Business Combination was completed. Among other things, ATI reported that "the acceleration of attrition among [its] therapists in the second quarter and continuing into the third quarter, combined with the intensifying competition for clinicians in the labor market, prevented us from being able to meet the demand we have and increased our labor costs." Though ATI was implementing certain remedial actions, the Company reduced its fiscal 2021 forecast due to the foregoing factors. On this news, the Company's share price fell $3.62, or 43%, to close at $4.72 per share on July 26, 2021, on unusually heavy trading volume. The share price continued to decline the next trading session by as much as 19%. As a result, FVAC investors who could have voted against the Business Combination and redeemed their shares at $10.00 per share suffered a loss of $5.28 per share. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding ATI's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] BARNEY'S COLLEGE: Garcia Sues Over Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- Jonathan Garcia and Oscar individually, and on behalf of all other aggrieved employees, and the general public v. BARNEY'S COLLEGE, INC., a California corporation; BARNEY'S PIEDMONT, INC., a California Corporation; BARNEY'S SAN FRANCISCO, INC., a California corporation; BARNEY'S SAN VICENTE, INC., a California corporation; BARNEY'S SOLANO, INC., a California corporation; BARNEYS BRENTWOOD, INC., a California corporation; BARNEYS SHATTUCK, INCORPORATED., a California corporation; BARNEY'S STEINER, LLC, a California limited liability company; and DOES 1 through 25, inclusive, Case No. RG21113350 (Cal. Super. Ct., Alameda Cty., Sept. 21, 2021), is brought to challenge the Defendants' employment practices with respect to their non-exempt, hourly workers employed in the State of California at Defendants' restaurant locations, based on the Defendants' policy and practice of failing, among other things, to provide legally compliant meal and rest breaks, denying earned wages, including overtime pay, and failing to reimburse business expenses from April 6, 2020 to the present. The Defendants' compensation scheme did not fully compensate Plaintiffs with at least minimum wages and/or designated rates for all hours worked and overtime compensation for all overtime hours worked. The Defendants failed to provide Plaintiffs with timely and adequate off-duty meal periods and meal period compensation in violation of Labor Code, says the complaint. The Plaintiffs were employed by Defendants as a server and as a dishwasher and busser. The Defendants own a restaurant under the name Barney's.[BN] The Plaintiffs are represented by: Michael H. Boyamian, Esq. Heather M. Zermeno, Esq. BOYAMIAN LAW, INC. 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203-1922 Phone: 818.547.5300 Facsimile: 818.547.5678 Email: michael@boyamianlaw.com heather@boyamianlaw.com - and - Robert Drexler, Esq. Molly A. DeSario, Esq. CAPSTONE LAW, APC Jonathan Lee, SBN 267146 1875 Century Park East, Suite 1000 Los Angeles, California 90067 Phone: (310) 556-4811 Fax: 310-943-0396 Email: robert.drexler@capstonelawyers.com molly.desario@capstonelawyers.com jonathan.lee@capstonelawyers.com BAYOU STEEL: Court Certifies Class of Employees in Fleming Suit --------------------------------------------------------------- In the class action lawsuit captioned as TROY FLEMING, ET AL., v. BAYOU STEEL BD HOLDINGS II LLC, ET AL., Case No. 2:20-cv-01476-CJB-KWR (E.D. La.), the Hon. Judge Carl J. Barbier entered an order: 1. granting the motion for class certification filed by the Plaintiffs; 2. certifying a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, to be defined as: "All former employees of the Bayou Steel Entities who (i) had their home base at or principally worked at, received assignments from, or reported to, the Bayou Steel Entities' facilities in LaPlace, Louisiana; (ii) whose employment was terminated without cause on, or within 30 days of, September 30, 2019 as a result of a "mass layoff" or "plant closing" within the meaning of 29 U.S.C. section 2101(a)(2) and (a)(3); (iii) who are "affected employees" within the meaning of 29 U.S.C. § 2101(a)(5); and (iv) who were not provided advanced notice required by the Worker Adjustment and Retraining Notification (WARN) Act;" Bayou Steel Entities is defined as "Bayou Steel BD Holdings, L.L.C. dba Bayou Steel Group fka BD Long Products, LLC, BD Bayou Steel Investment, LLC, BD LaPlace, LLC fka Arcelormittal LaPlace, LLC;" 3. appointing Plaintiffs Troy Fleming, Jarrod Nabor, Davarian Ursin, Charles Ziegeler, and Ronnie Millet as Class Representatives; 4. appointing Plaintiffs' counsel: Fishman Haygood, L.L.P. 201 Saint Charles Avenue, 46th Floor New Orleans, LA 70170 Telephone: (504) 586-5252 - and - Peiffer Wolf Carr & Kane, APLC 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Telephone: (314) 833-4825 - and - O'Bell Law Firm, LLC 3500 North Hullen Street, Metairie, LA 70002 Telephone: (504) 456-8677 - and - The Lambert Firm, PLC 701 Magazine Street New Orleans, LA 70130 Telephone: (504) 581-1750 - and - Womble Bond Dickinson (US) LLP 1313 North Market Street, Suite 1200 Wilmington, DE 19801 Telephone: (312) 252-4320 - and - Randal L. Gaines, Esq. 7 Turnberry Drive LaPlace, LA 70068 Telephone: (225) 647-3383; 5. approving the form and manner of Notice; and 6. reserving all rights and defenses to all claims in this litigation for the Defendants, including their defenses that they are not subject to the WARN Act and that there was no WARN Act violation. A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3uHvwa9 at no extra charge.[CC] BIRCH RESOURCES: Johnston Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------------- MICHAEL DWAIN JOHNSTON, Individually and for Others Similarly Situated v. BIRCH RESOURCES, LLC, Case No. 4:21-cv-03101 (S.D. Tex., Sept. 23, 2021) arises from the Defendant's failure to pay overtime wages and other damages under the Fair Labor Standards Act. Mr. Johnston was employed by the Defendant as a health, safety, and environmental (HSE) advisor starting October of 2018 until September 2021 in Big Springs, Texas. Birch Resources is a privately held energy and power company with assets in the Permian Basin.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77005 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com rschreiber@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com BLACKSTONE CONSULTING: Court Denies Bid to Stay Scott Suit ---------------------------------------------------------- In the case, PENNY SCOTT, Plaintiff v. BLACKSTONE CONSULTING, INC., Defendant, Case No. 21cv1470-MMA-KSC (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California denies the parties' joint motion to stay the action without prejudice. Plaintiff Scott brings the putative wage and hour class action against Defendant Blackstone. The parties now jointly move to stay the action, asserting that they "are actively seeking to confirm a private mediator in March 2022" and have "agreed that to focus on an informal exchange of information/documents and an early mediation, the case should be stayed in all respects for at least six months, except that Plaintiff will file a Motion to Remand." The parties further request that the Court "continue the Oct. 13, 2021 Case Management and ENE Conferences by at least six months, including the Confidential ENE Statements, Rule 26(a) disclosures, and the Joint Discovery Plan, to allow the Parties to participate in an early mediation." In light of the parties' joint motion, the assigned magistrate judge vacated the previously scheduled Early Neutral Evaluation conference and will instead convene a telephonic status conference with counsel in November. Accordingly, the formal commencement of discovery is effectively stayed pursuant to this District's Civil Local Rules and the applicable Federal Rules of Civil Procedure. Meanwhile, the parties indicate that the Plaintiff intends to file a motion seeking to remand the action to state court. Based on this representation and the anticipated motion practice, Judge Anello holds that a stay of the action in its entirety would not be appropriate. Accordingly, he denies the parties' joint motion without prejudice to renewing their request in the event the Plaintiff declines to file a motion to remand. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/y83j7a3k from Leagle.com. BOB'S DISCOUNT: Argenbright Sues Over Goof Proof Protection Plan ---------------------------------------------------------------- Gina Argenbright, individually and on behalf of all others similarly situated v. Bob's Discount Furniture, LLC and Guardian Protection Products, Inc., Case No. 1:21-cv-05082 (N.D. Ill., Sept. 26, 2021) alleges that representations of Defendant Bob's of "Goof Proof Protection" were false and misleading with respect to what the plans would cover, in violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, the Illinois Service Contract Act, and the Magnuson Moss Warranty Act. Bob's Discount Furniture, LLC markets, promotes, and sells insurance under the guise of "service contracts," referred to as "Goof Proof Protection", and administered by Guardian Protection Products, Inc. in connection with its sale of furniture. The complaint contends that Defendant Bob's misrepresented and/or omitted the attributes and qualities of the Goof Proof plans. Specifically, Defendant Guardian intentionally denied claims based on their manuals which contained information on how accidental damage could be recharacterized as attributable to wear-and-tear and other causes for which consumers would not receive coverage, says the complaint.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 409 Great Neck, NY 11021-3104 Telephone: (516) 268-7080 Facsimile: (516) 234-7800 E-mail: spencer@spencersheehan.com BOSTON BEER: Faruqi & Faruqi Reminds of November 15 Deadline ------------------------------------------------------------ Faruqi & Faruqi, LLP, a leading national securities law firm, is investigating potential claims against The Boston Beer Company, Inc. ("Boston Beer" or the "Company") (NYSE: SAM) and reminds investors of the November 15, 2021 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you suffered losses exceeding $50,000 investing in Boston Beer stock or options between April 22, 2021 and September 8, 2021 and would like to discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You may also click here for additional information: www.faruqilaw.com/SAM. Cannot view this image? Visit: https://orders.newsfilecorp.com/files/6455/97676_7fe8882214babbaf_001.jpg There is no cost or obligation to you. Faruqi & Faruqi is a leading minority and Woman-owned national securities law firm with offices in New York, Delaware, Pennsylvania, California and Georgia. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose: (1) that Boston Beer's hard seltzer sales were decelerating; (2) that, as a result, Boston Beer was reasonably likely to incur inventory write-offs; (3) that the Company was reasonably likely to incur shortfall fees payable to third party brewers; (4) that, as a result of the foregoing, Boston Beer's financial results would be adversely impacted; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On July 22, 2021, after the market closed, Boston Beer reduced its full year 2021 guidance, expecting earnings per share between $18 and $22, down from a prior range of $22 and $26. The Company cited softer-than-expected sales in the hard seltzer category and overall beer industry and also stated that it had "overestimated the growth of the hard seltzer category in the second quarter." On this news, the Company's share price fell $246.54, or 26%, to close at $701.00 per share on July 23, 2021, on unusually heavy trading volume. On September 8, 2021, after the market closed, Boston Beer withdrew its 2021 financial guidance, citing decelerating sales of hard seltzer products. The Company also stated that it "expects to incur hard seltzer-related inventory write-offs, shortfall fees payable to 3rd party brewers, and other costs" for the remainder of fiscal 2021. On this news, the Company's share price fell $21.09, or 3.7%, to close at $538.31 per share on September 9, 2021, on unusually heavy trading volume. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding Boston Beer's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] CARSON CLARKE: Deltona Transformer Files Suit in Fla. Cir. Ct. -------------------------------------------------------------- A class action lawsuit has been filed against Carson Clarke, et al. The case is styled as Deltona Transformer Corporation, Plaintiff; Evin Dtyon, individually on behalf of all similarly situated shareholders of Deltran Operations USA, Inc., Deltran Operations USA, Inc., Party Plaintiff v. CARSON CLARKE, Defendant; CHASE CLARKE, MICHAEL PRELEC JR., DELTRAN OPERATIONS USA INC., A FLORIDA CORPORATION (NOMINAL DEFENDANT), Party Defendant, Case No. 2021-11378-CIDL (Fla. Cir. Ct., Volusia Cty., Sept. 21, 2021). The nature of suit is stated as SHAREHOLDER DERIVATION.[BN] The Plaintiff is represented by: Eric C. Christu, Esq. 525 OKEECHOBEE BLVD., STE. 1100 CASSAVA SCIENCES: Faruqi & Faruqi Reminds of October 26 Deadline ---------------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, is investigating potential claims against Cassava Sciences, Inc. ("Cassava" or the "Company") (NASDAQ: SAVA) and reminds investors of the October 26, 2021 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you suffered losses exceeding $50,000 investing in Cassava stock or options between September 14, 2020 and August 27, 2021 and would like to discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You may also click here for additional information: www.faruqilaw.com/SAVA. There is no cost or obligation to you. Faruqi & Faruqi is a leading minority and Woman-owned national securities law firm with offices in New York, Delaware, Pennsylvania, California and Georgia. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that Cassava: (1) deceived the investing public regarding Cassava's prospects and business; (2) artificially inflated the price of Cassava common stock; (3) permitted Cassava to cash in by selling $200 million of Cassava common stock at fraud-inflated prices; and (4) caused Plaintiff and other members of the Class to purchase Cassava common stock at artificially inflated prices. On August 25, 2021, before the market opened, Cassava issued a response to the petition, claiming that the allegations regarding scientific integrity are false and misleading. Among other things, the Company claimed that the clinical data, which the citizen petition stated had been reanalyzed to show simufilam was effective, had been generated by Quanterix Corp. ("Quanterix"), an independent company, suggesting that the reanalysis was valid. On this news, the Company's share price fell $36.97, or 32%, to close at $80.86 per share on August 25, 2021, on unusually heavy trading volume. On August 27, 2021, before the market opened, Quanterix issued a statement denying the Company's claims, stating that it "did not interpret the test results or prepare the data" touted by Cassava. The same day, Cassava responded to Quanterix's statement, stating that "Quanterix'[s] sole responsibility with regard to this clinical study was to perform sample testing, specifically, to measure levels of p-tau in plasma samples collected from study subjects." On this news, the Company's share price fell $12.51, or 17.6%, to close at $58.34 per share on August 27, 2021, on unusually heavy trading volume. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding Cassava's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] CASSAVA SCIENCES: Johnson Fistel Reminds of October 26 Deadline --------------------------------------------------------------- Shareholder rights law firm Johnson Fistel, LLP on Sept. 25 disclosed that purchasers of Cassava Sciences, Inc. ("Cassava" or the "Company") (NASDAQ: SAVA) between September 14, 2020 and August 27, 2021, have until October 26, 2021, to file a lead plaintiff motion. According to the filed complaint: (a) the quality and integrity of the scientific data supporting Cassava's claims for simufilam's, a small molecule drug designed to treat Alzheimer's disease, efficacy had been overstated; (b) the scientific data supporting Cassava's claims for simufilam's efficacy were biased; and (c) as a result of the foregoing, Defendants' positive statements during the Class Period about the Company's business metrics and financial prospects and the likelihood of Food and Drug Administration approval were false and misleading and lacked a reasonable basis. A lead plaintiff will act on behalf of all other class members in directing the Casava class-action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class-action lawsuit. An investor's ability to share any potential future recovery of the Casava class action lawsuit is not dependent upon serving as lead plaintiff. If you suffered a substantial loss and are interested in learning more about being a lead plaintiff, please contact Jim Baker(jimb@johnsonfistel.com) by email or phone at 619-814-4471. If emailing, please include a phone number. About Johnson Fistel, LLP Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. For more information about the firm and its attorneys, please visit http://www.johnsonfistel.com.Attorney advertising. Past results do not guarantee future outcomes. Contact: Johnson Fistel, LLP Jim Baker, 619-814-4471 jimb@johnsonfistel.com [GN] CENTRAL CALIFORNIA: $375K Class Deal in Urena Suit Wins Final Nod ----------------------------------------------------------------- In the case, JOSE URENA, an individual, on behalf of himself and others similarly situated, Plaintiff v. CENTRAL CALIFORNIA ALMOND GROWERS ASSN., Defendants, Case No. 1:18-cv-00517-NONE-EPG (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California issued an order adopting in part the findings and recommendations that the Plaintiffs' motion for final approval of the class-action settlement and motion for attorneys' fees and costs be granted. Plaintiff Urena commenced the class-action lawsuit by filing a complaint against his former employer, Defendant Central California Almond Growers Assn., on April 13, 2018. The action proceeds on the Plaintiff's first amended complaint against the Defendant for federal and state wage-and-hour claims. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and Local Rule 302. On June 24, 2021, the assigned magistrate judge issued supplemental findings and recommendations recommending that the Plaintiff's motion for final approval of the class-action settlement and motion for attorneys' fees and costs be granted. Those findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within 14 days after service. No objections have been filed, and the deadline to do so has expired. In accordance with the provisions of 28 U.S.C. Section 636 (b)(1)(C), Judge Drozd has conducted a de novo review of the case. He finds that the magistrate judge's initial findings and recommendations, issued on March 12, 2021, reviewed the proposed settlement under the factors set forth in the Ninth Circuit's decision in Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003). On June 1, 2021, the Ninth Circuit issued its decision in Briseno v. Henderson, 998 F.3d 1014 (9th Cir. 2021), in which the Ninth Circuit concluded that courts reviewing proposed settlement agreements cannot ignore the factors set forth in Federal Rule of Civil Procedure 23(e)(2), which was revised after Staton was decided. The magistrate judge vacated the findings and recommendations in light of the decision in Briseno and issued supplemental findings and recommendations on June 24, 2021, which considered the Rule 23 factors. On Aug. 17, 2021, the Ninth Circuit issued a decision in Kim v. Allison, 8 F.4th 1170, 1178-79 (9th Cir. 2021), which further clarified that district courts must also consider the Staton factors -- which it called the Churchill factors -- along with the revised ones set forth in Rule 23(e)(2). The initial findings and recommendations analyzed the settlement under the Staton or Churchill factors, and the revised findings and recommendations analyzed the settlement under the revised Rule 23(e)(2). The conclusion the magistrate judge reached was the same both times. Judge Drozd adopts the analysis of the Staton factors from the magistrate judge's initial findings and recommendations and the Rule 23(e)(2) analysis from the supplemental findings and recommendations. In sum, he concludes that the proposed settlement is fair, reasonable, and adequate, and is approvable. Accordingly, Judge Drozd adopted in part the findings and recommendations issued on June 24, 2021. He granted the Plaintiff's motion for final approval of the settlement agreement, as modified as follows: (i) Maximum Settlement Fund: $375,000, (ii) Class Representative Enhancements: $3,000, (iii) Class Counsel's Fees: $109,374, (iv) Class Counsel's Costs: $16,542.51, (v) PAGA Payment: $11,250 (75% of $15,000), (vi) Settlement Administration Costs: $10,441.45. Net Settlement Amount: $224,391.04 Approval of the settlement class is granted and defined as: "All who are employed or have been employed by Defendant, in the State of California, and who have worked one or more shifts as a nonexempt hourly agricultural employee, as defined by the California Labor Code, Industrial Welfare Commission Wage Order 8-2001, and 29 U.S.C. Section 1892(3) from April 13, 2014 through April 30, 2019." The Plaintiff's request for a class representative enhancement payment is granted, as modified, in the amount of $3,000. The Counsel's motion for attorneys' fees is granted, as modified, in the amount of $109,375. The Counsel's request for costs is granted, in the amount of $16,542.51. Within 90 days of the initial payments to the class members being made, the parties are ordered to file a joint status report concerning (1) the remaining amount in the net settlement; (2) the feasibility of a waterfall payment structure; and (3) alternate proposed cy pres recipients. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/2t6njffn from Leagle.com. CHARTER COMMUNICATIONS: Bid to Dismiss Hogans TCPA Suit Denied -------------------------------------------------------------- In the case, HOGANS, individually and on behalf of all others similarly situated, Plaintiff v. CHARTER COMMUNICATIONS, INC., d/b/a SPECTRUM, Defendant, Case No. 5:20-CV-566-D (E.D.N.C.), Judge James C. Dever, II, of the U.S. District Court for the Eastern District of North Carolina, Western Division, denies Charter's motions to dismiss and to strike Hogans' class allegations. Background On Oct. 27, 2020, Tiffanie Hogans filed a complaint against Charter alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. Section 227 ("TCPA"). Hogans also seeks class certification. Ms. Hogans is a resident of Fayetteville, North Carolina. Charter is a telecommunications and mass media corporation headquartered in Stamford, Connecticut. It offers its services in North Carolina under the "Spectrum" brand. In January 2020, Hogans obtained a new cell phone number. About the same time, Hogans began receiving unsolicited calls and voice mail messages from Charter, though she is not a Charter customer. The calls came from various numbers. Some, if not all, of the calls and voice mail messages were intended for a recipient other than Hogans. Hogans attempted to return Charter's calls to explain that the calls were made to a wrong number, but she Was unable to speak with a Charter representative. Additionally, Hogans received numerous text messages from Charter. She twice replied "STOP" to these text messages and both times received a reply text message confirming she would receive no further text messages. However, Hogans received additional text messages. In total, Hogans received approximately 50 phone calls, 50 text messages, and 10 voice mail messages. Ms. Hogans seeks relief for herself for the time period beginning in January 2020. She seeks to represent and obtain relief for three classes for the time period from Oct. 26, 2016, through the date of class certification. On Oct. 27, 2020, Hogans filed suit against Charter alleging TCPA violations. On Jan. 11, 2021, Charter moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and to strike Hogan's class allegations and filed a memorandum in support. On Feb. 15, 2021, Hogans responded in opposition to Charter's motion. On March 8, 2021, Charter replied. Discussion I. Motion to Dismiss A. Charter cites Creasy v. Charter Communications, Inc., 489 F.Supp.3d 499 (E.D. La. 2020), and argues collateral estoppel bars Hogans's claims. The doctrine of "collateral estoppel" or "issue preclusion" is a subset of the res judicata genre. Applying collateral estoppel forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate." In Creasy, the court held that it lacked subject-matter jurisdiction over the plaintiffs' claims due to the Supreme Court's decision in AAPC. Because the Creasy court's holding was essential to granting Charter's motion to dismiss and because Hogans had a full and fair opportunity to litigate subject-matter jurisdiction in that case, Charter argues that collateral estoppel applies. Ms. Hogans responds that because the United States Court of Appeals for the Fourth Circuit had severed the government-debt exception from 42 U.S.C. Section 227(b)(1)(A)(iii) when Hogans received the phone calls, voice mail messages, and text messages at issue, the remedied robocall ban was already in effect as to her claims. Judge Dever finds that Charter has failed to demonstrate the elements necessary for collateral estoppel to apply. The issue "previously litigated" in Creasy is not "identical" to the issue Hogans raises in the case. Thus, collateral estoppel does not bar Hogans's claims. B. Charter contends the court lacks subject-matter jurisdiction over Hogans' claims because her complaint does not allege a justiciable case or controversy arising under the Constitution or a federal statute. Specifically, Charter contends that the Supreme Court's decision in AAPC deprives the court of subject-matter jurisdiction. Hogans disagrees. Judge Dever holds that Charter's arguments do not implicate the Court's subject-matter jurisdiction but rather whether Hogans has stated a claim upon which the Court can grant relief. Under 28 U.S.C. Section 1331, a federal court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." A claim generally arises under federal law when federal law creates the cause of action. Ms. Hogans' complaint properly invokes the court's subject-matter jurisdiction under 28 U.S.C. Section 1331 and 47 U.S.C. Section 227(b)(3). Section 227(b)(3) creates a private cause of action for litigants seeking redress for violations of section 227. Accordingly, the private cause of action in section 227(b)(3) arises under federal law and confers federal question jurisdiction to hear disputes between private litigants over TCPA violations. Ms. Hogans invokes the section 227(b)(3) private cause of action to allege that Charter violated 47 U.S.C. Section 227(b)(1)(A)(iii). Section 227(b)(1)(A)(iii) contains the elements that Hogans must plead to allege a valid violation of the TCPA's robocall ban. It is a separate provision from the section 227(b)(3) grant of jurisdiction, and it "does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Whether Hogans has pleaded facts occurring within a time period in which the statute is enforceable is a question of the factual and legal sufficiency of Hogans's complaint, not subject-matter jurisdiction. For these reasons, Judge Dever holds that the Court has subject-matter jurisdiction over the case and denies Charter's motion to dismiss for lack of subject-matter jurisdiction. C. Next, Judge Dever addresses AAPC's effect on Hogans' claims and whether Hogans has stated a claim under section 227(b)(1)(A)(iii) upon which the Court can grant relief. Charter argues that because section 227(b)(1)(A)(iii) was unconstitutional when Hogans received the cell phone calls, voice mail messages, and text messages at issue, Charter could not have violated that provision. According to Charter, the Court's remedy in AAPC -- invalidating the government-debt exception to cure the constitutional deficiency in section 227(b)(1)(A)(iii) -- only applies prospectively. Hogans disagrees, arguing the Court's remedial decision in AAPC applies retroactively. Judge Dever explains that the Supreme Court's decision in Barr v. American Association of Political Consultants, Inc., 140 S.Ct. 2335 (2020) (AAPC), does not expressly or effectively defeat Hogans's individual or putative class claims. In AAPC, the Supreme Court granted certiorari to address a two-part question: "Whether the government-debt exception to the TCPA's automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute." Justice Kavanaugh announced the Court's judgment in a fractured plurality opinion. Six Justices concluded that the general robocall ban, when coupled with the government-debt exception, violated the First Amendment. To remedy that violation, seven Justices voted to sever the government-debt exception from the TCPA rather than invalidate the general robocall ban in its entirety. Because AAPC applies retroactively, Judge Dever says, the general robocall ban applied during the time period when Hogans alleges that Charter sent her and members of her putative classes the unwanted calls, voice mail messages, and text messages at issue. Thus, under AAPC, Hogans has plausibly alleged that Charter violated the TCPA. Accordingly, the Judge denies Charter's motion to dismiss under Rule 12(b)(6). Even if the Supreme Court or the Fourth Circuit ultimately determines that AAPC only applies prospectively, Judge Hogan holds that it would not doom Hogans' claims. Instead, Hogans' claims and the claims of her putative class members would be limited to those arising on or after July 1, 2019. D. Charter contends the Court should dismiss Hogans' claims under the first-to-file rule and cites Creasy in support. Hogans, however, has dismissed her claims in Creasy, and Charter has advised this court that her doing so "renders Charter's argument for dismissal under the first-to-file doctrine inapplicable." Although Charter contends that the doctrine may still apply due to "other first-filed TCPA class actions against Charter," it has not specifically identified those already pending cases. Thus, Judge Dever declines to apply the first-to-file rule. II. Motion to Strike Charter argues that the Court should strike Hogans' class allegations. Rule 23 provides that "at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action." Although "a court need not wait until class certification is sought to determine whether a party complies with Rule 23," courts ordinarily allow for pre-certification discovery and "rarely make a class determination at the pleading stage." Judge Dever has reviewed the record, the arguments, and the governing law. He denies Charter's motion to strike Hogans' class allegations. The Judge finds that Hogans' complaint plausibly fits within Rule 23(b)(3). As for predominance, common issues of law and fact predominate "where the same evidence would resolve the question of liability for all class members." As for superiority, the Plaintiffs must be able to demonstrate that proceeding as a class "is superior to other available methods for fairly and efficiently adjudicating the controversy." Conclusion In sum, Judge Dever denies the Defendant's motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) and denies their motion to strike. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/37t9nk34 from Leagle.com. CHRISTUS SPOHN: Olvera Sues Over Unpaid Straight-Time Compensation ------------------------------------------------------------------ Scott Olvera, individually and on behalf of all others similarly situated v. CHRISTUS SPOHN HEALTH SYSTEM CORPORATION, Case No. 2:21-cv-00232 (S.D. Tex., Oct. 1, 2021), is brought under the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. and the Portal-to-Portal Act, and as a Rule 23 class action asserting state law claims for unpaid straight-time compensation owed at a contractual hourly rate. The complaint alleges that the Plaintiff and class members did not receive bona fide meal break periods. Instead, they were required and permitted to work off-the-clock for the Defendant during their meal break periods and were not paid for such time. Notwithstanding Defendant's practice of requiring nurses to be available for work and to in fact work throughout their meal periods, Defendant deducted 30 minutes or 1 hour from the total time worked by nurses each shift so as to account for these hypothetical meal periods, thereby enabling the Defendant to receive the benefit of an additional thirty minutes or one hour of unpaid work for each shift worked by class members. Defendant's practice of failing to relieve nurses of their duties during meal periods, while simultaneously using timekeeping software to automatically deduct thirty minutes or one hour from the total time paid per shift (on the pretext of accounting for meal periods which nurses were not in fact free to take without constant interruption), had the effect of depriving nurses of overtime compensation due to them under the FLSA in the weeks in which they worked more than 40 hours in a week, and of depriving them of straight-time compensation at their contractual hourly rate in weeks in which they worked fewer than 40 hours in a week. On information and belief, all of Christus' non-exempt, direct patient care nurses were subjected to these illegal pay practices, says the complaint. The Plaintiff and class members worked as hourly paid Licensed Vocational Nurses, hourly paid Registered Nurses, and as hourly paid Certified Nurse Assistants at the Defendant's medical facility. Christus offers a full continuum of care, from temporary respite care, to long-term skilled nursing, to hospice services.[BN] The Plaintiff is represented by: Ricardo J. Prieto, Esq. Melinda Arbuckle, Esq. Taneska Jones, Esq. SHELLIST | LAZARZ | SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Phone: (713) 621-2277 Facsimile: (713) 621-0993 Email: rprieto@eeoc.net marbuckle@eeoc.net tjones@eeoc.net CINCINNATI INSURANCE: Troy's Consolidated Amended Suit Dismissed ---------------------------------------------------------------- In the case, TROY STACY ENTERPRISES INC., SWEARINGEN SMILES LLC, ELEISHA J. NICKOLES DDS, REEDS JEWELERS OF NIAGARA FALLS, INC., BURNING BROTHERS BREWING LLC, CHICAGO MAGIC LOUNGE LLC, AND CDC CATERING, INC. T/A BROOKSIDE MANOR, individually and on behalf of all others similarly situated, Plaintiffs v. THE CINCINNATI INSURANCE COMPANY, THE CINCINNATI CASUALTY COMPANY, THE CINCINNATI INDEMNITY COMPANY, AND CINCINNATI FINANCIAL CORPORATION, Defendants. This Documents Relates to: All actions, Master Case No. 1:20-cv-312 (S.D. Ohio), Judge Matthew W. McFarland of the U.S. District Court for the Southern District of Ohio, Western Division, Cincinnati, grants the Defendants' motion to dismiss and denies as moot their motion to stay. Background These consolidated actions arise from business closures related to the COVID-19 pandemic and the resulting economic shutdowns. After the Court consolidated these claims, the Plaintiffs filed a Consolidated Amended Class Action Complaint. The Plaintiffs, like so many of the rest of us the past year and a half, have endured significant burdens because of the SARS-CoV-2 virus, commonly known as novel coronavirus, and the disease it causes, COVID-19. Among the pandemic's many other consequences, interruptions in commerce have caused businesses significant losses in profits. In these consolidated actions, seven Plaintiff businesses seek insurance coverage from their insurer for "direct physical loss or damage" to their property. The Plaintiffs hail from mostly different states and run mostly different kinds of businesses. Though they run different kinds of businesses, the Plaintiffs have all been forced to reduce or suspend their operations due to the COVID-19 pandemic. The virus has allegedly contaminated their properties. People who have been present on insured property have tested positive for COVID-19. Since the virus poses a threat to people's health, the businesses have had to disinfect and reconfigure their commercial spaces. And, in response to the COVID-19 pandemic, the Plaintiffs' state and local governments ordered extensive shutdowns. In short, because of COVID-19 and the resulting shutdown orders, the Plaintiffs could not run their businesses as they normally would. The Plaintiffs all had insurance policies with Cincinnati. In those policies, Cincinnati agreed to provide coverage for lost "Business Income": "We will pay for the actual loss of Business Income ... you sustain due to the necessary suspension of your operations during the period of restoration. The suspension must be caused by direct loss to property at a premises caused by or resulting from any Covered Cause of Loss." The Plaintiffs sought coverage under the "Business Income," "Extra Expense," and "Civil Authority" provisions. The Defendants (collectively, "Cincinnati") denied coverage. These lawsuits followed. The Court consolidated them in January 2021. The Plaintiffs bring four claims for breach of contract, seeking business income coverage, civil authority coverage, extra expense coverage, and sue-and-labor coverage. They also bring four claims for declaratory judgment under the same four coverage provisions. Now before the Court are motions to dismiss and to stay filed by Cincinnati. Law and Analysis I. Conflicts of Law Cincinnati appears to concede that the laws of Pennsylvania, New York, Ohio, Illinois, Minnesota, and West Virginia "potentially apply" but cites mostly Ohio law. Yet it revises this position in its Reply and maintains that Ohio law controls. The Plaintiffs assert that the various states' laws apply, noting that some states handle contractual ambiguities differently and that Pennsylvania and West Virginia apply the reasonable expectations doctrine. When the parties have not designated which state's law applies, the court considers the place of contracting, the place where the parties negotiated the contract, the place of performance, the location of the subject matter of the contract, and the residence and place of incorporation and place of business of the parties. Judge McFarland finds evidence tending to show that the Plaintiffs contracted and negotiated their insurance policies in their own states with local agencies. Those factors cut in favor of applying the law of each Plaintiff's state of residence. Next is the place of performance; in insurance cases, the place where an insurance policy is performed is the place where the insurance benefits are (or would be) paid. In the case, that would be the address of the insured businesses as reflected in the declarations page of their respective insurance policies -- in other words, the state where each Plaintiff resides. As for the location of the subject matter, that factor can be "quite important" in insurance cases. And, in the case, these Plaintiffs bought insurance policies to protect goods located in their states of residence. That tilts the balance in favor of applying the law of each Plaintiff's state of residence. Since the first four factors weigh in favor of applying the laws of the various states represented in the case, including the particularly weighty subject-matter factor, Judge McFarland need not reach the final factor. He considers the applicable state laws of Pennsylvania, New York, Ohio, Illinois, Minnesota, and West Virginia, as they relate to each Plaintiff. II. Business Income Coverage These contractual disputes are over whether the presence and contamination of SARS-CoV-2 on insured property or the resulting governmental shutdown orders constitute "direct accidental physical loss or accidental physical damage." The parties agree that business income coverage depends on the answer to that question. All of the state laws involved in the case hold to the traditional principles of contract interpretation. A court's primary goal in construing a written contract is to give effect to the parties' intent. The Plaintiffs allege that the virus contaminated their insured properties. They also claim that government-mandated shutdowns imposed physical limits on their properties. Their theory is that the presence of the virus and the resulting economic shutdowns caused physical loss to covered property. Judge McFarland holds that (i) Brookside Manor (Pennsylvania) cannot plausibly allege "direct physical loss" or entitlement to business income coverage; (ii) Reeds Jewelers (New York) has not stated a claim for business income coverage; (iii) the Ohio Plaintiffs fail to plausibly raise a claim for business income coverage; (iv) Chicago Magic Lounge (Illinois) fails to articulate a claim for business income coverage under their policy; (v) Burning Brothers (Minnesota) fails to state a claim for business income coverage; (vi) Nickoles Virginia) too fails to plausibly allege entitlement to business income coverage; and (vii) the Plaintiffs have not stated a claim for business income coverage. III. Civil Authority Coverage Cincinnati owes the Plaintiffs "Civil Authority" coverage in the event that a "Covered Cause of Loss causes damage to property other than Covered Property" and an "action of civil authority prohibits access" to the insured property. Other conditions also apply, including that "access to the area immediately surrounding the damaged property is prohibited by civil authority as a result of the damage." Civil authority coverage thus requires at least three things. First, something must cause damage to property other than the insured property. Second, a civil authority must prohibit access to the insured location. Third, a civil authority must also prohibit access to the area surrounding the "damaged property." The Plaintiffs allege that they are each located in the proximity of hospitals where COVID-19 was present. The presence of the virus and the disease, they allege, caused "physical damage" at those properties. But for the same reasons that viral contamination of the insured property does not constitute direct physical loss or damage, the virus or the disease at neighboring property does not either. Without "damage to property," there can be no civil authority coverage. Since the Plaintiffs have not plausibly alleged "damage to property" -- a necessary element to civil authority coverage -- they fail to state a claim for such coverage. IV. Extra Expense Coverage The policies require Cincinnati to pay the extra expenses an insured sustains during a "period of restoration." (E.g., Craft & Vinyl Policy, Doc. 61-1, Pg. ID 3012.) "Extra Expense" refers to necessary expenses an insured incurs during the "period of restoration" that the insured would not have sustained "if there had been no direct `loss' to property caused by or resulting from a Covered Cause of Loss." (Id.) Extra Expense coverage is thus tethered, like Business Income coverage, to a direct loss. As there was no direct loss here, Plaintiffs have not plausibly alleged entitlement to Extra Expense coverage. V. Sue and Labor Coverage The policies contain a section entitled "Duties in the Event of Loss or Damage." It provides that, in the event of "loss" to insured property, an insured "must see that a list of duties are done in order for coverage for apply." The Plaintiffs characterize this section as providing for "Sue and Labor" coverage. Cincinnati argues that the Sue and Labor provision is not even coverage, but a condition of the policies; and, even if it was coverage, it would not apply here because there is no covered loss. Cincinnati is correct, Judge McFarland finds. First, the "Duties" section is preconditioned on the event of a "loss." As there is no loss, this section does not apply. Second, the "Duties" section does not describe coverage -- rather, it lays out an insured's obligations to ensure that separate coverage applies. Third, nothing in the "Duties" section sets forth a duty for Cincinnati to pay. For these reasons, the Plaintiffs have failed to state a claim for Sue and Labor coverage. Conclusion Judge McFarland concludes that the Plaintiffs have weathered more than their fair share of the unfortunate circumstances that the COVID-19 pandemic has caused. For the reasons stated, however, nothing in their insurance policies plausibly provides for the coverage they seek. Accordingly, Judge McFarland grants the motion to dismiss and denies the motion to stay as moot. Judge McFarland terminates the following cases: (1) Troy Stacy Enterprises, Inc., et al. v. Cincinnati Insurance Company, et al., 1:20-cv-312; (2) Swearingen Smiles LLC, et al v. Cincinnati Insurance Company, et al., 1:20-cv-517; (3) Reeds Jewelers of Niagara Falls, Inc. v. Cincinnati Insurance Company, 1:20-cv-649; and (4) Burning Brothers Brewing LLC, et al. v. Cincinnati Insurance Company, 1:20-cv-920. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/3j5b9e53 from Leagle.com. CITIZENS ARTS CLUB: Siliki Sues Over Unpaid Compensations --------------------------------------------------------- Flavien Siliki, on behalf of himself and all others similarly situated v. CITIZENS ARTS CLUB, INC. d/b/a/ NORWOOD; ALAN LINN, individually and as an Officer, Director, and/or Principal of NORWOOD, Case No. 1:21-cv-08162 (S.D.N.Y., Oct. 2, 2021), is brought to contend that the Defendants violated the Fair Labor Standards Act, the New York Labor Law, the New York Codes, Rules and Regulations ("NYCRR"); by knowingly requiring, suffering, or permitting the Plaintiff and other members of the putative FLSA Collective to be misclassified as independent contractors and theft of wages. The Plaintiff brings this action pursuant to the NYLL and the NYCRR for (i) incorrectly paid wages; (ii) untimely paid wages; (iii) unpaid minimum wages; (iv) unpaid "spread of hours" pay for each day worked in excess of ten (10) hours; (v) improper wage statements and notices pursuant to the NYLL, and is entitled to recover: (a) unpaid tips/gratuities; (b) unpaid minimum wages; (c) unpaid, deducted, and incorrectly paid wages; (d) unpaid "spread of hours" pay; (e) unpaid "call-in" pay; (f) liquidated damages; (g) penalties; (h)interest; (i) attorneys' fees and costs; and (j) such other and further relief as this Court finds necessary and proper, says the complaint. The Plaintiff was employed by the Defendants as an Evening General Manger. Norwood is a privately-owned business organized under the laws of the State of New York.[BN] The Plaintiff is represented by: Fred V. Charles, Esq. 1612 Central Avenue Far Rockaway, NY 11691 Phone: (646) 494-2662 CONSTELLIS INTEGRATED: Hines Appeals Case Dismissal to 9th Cir. --------------------------------------------------------------- Plaintiff Delvin Hines filed an appeal from a court ruling entered in the lawsuit entitled Delvin Hines, an individual, on behalf of himself and all others similarly situated, Plaintiff v. Constellis Integrated Risk Management Services, a Delaware corporation, Centerra Services International, Inc., a Delaware corporation, Centerra Group, LLC, a forfeited Delaware limited liability company and Michael Chandless, an individual, Defendants, Case No. 2:20-cv-06782-JWH-PLA, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, this lawsuit was transferred from the Los Angeles Superior Court with the assigned Case No. 20STCV20377 to the United States District Court for the Central District of California on July 29, 2020. The Plaintiff, on behalf of himself and all other similarly situated employees, brings this action pursuant to the California Labor Code seeking, inter alia, overtime wages, minimum wages premium wages for missed meal and rest periods, penalties and reasonable attorneys' fees and costs. Mr. Hines now seeks a review of the Court's Order and Judgment dated Aug. 24, 2021, granting Defendants' motion to dismiss the second amended complaint. The appellate case is captioned as Delvin Hines v. Constellis Integrated Risk, et al., Case No. 21-56048, in the United States Court of Appeals for the Ninth Circuit, filed on Sept. 24, 2021. The briefing schedule in the Appellate Case states that: -- Appellant Delvin Hines Mediation Questionnaire was due on Oct. 1, 2021; -- Appellant Delvin Hines opening brief is due on Nov. 22, 2021; -- Appellees Centerra Group, LLC, Centerra Services International, Inc. and Constellis Integrated Risk Management Services answering brief is due on Dec. 22, 2021; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant DELVIN HINES, an individual, on behalf of himself and all others similarly situated, is represented by: Diego Aviles, Esq. BIBIYAN LAW GROUP, PC 8484 Wilshire Boulevard, Suite 500 Beverly Hills, CA 90211 Telephone: (310) 438-5555 E-mail: diego@tomorrowlaw.com Defendants-Appellees CONSTELLIS INTEGRATED RISK MANAGEMENT SERVICES, a Delaware corporation; CENTERRA SERVICES INTERNATIONAL, INC., a Delaware corporation; and CENTERRA GROUP, LLC, a forfeited Delaware limited liability company, are represented by: Sabrina Alexis Beldner, Esq. MCGUIREWOODS LLP 1800 Century Park East, 8th Floor Los Angeles, CA 90067 Telephone: (310) 956-3419 E-mail: sbeldner@mcguirewoods.com - and - Sylvia Kim, Esq. BAKER & HOSTETLER, LLP 600 Montgomery Street, Suite 3100 San Francisco, CA 94111 Telephone: (415) 659-2618 CONVERGENT OUTSOURCING: Filing of Class Cert Bid Due Feb. 25, 2022 ------------------------------------------------------------------ In the class action lawsuit captioned as LUCINDA SOUFFRANT, individually and on behalf of all others similarly situated, v. CONVERGENT OUTSOURCING, INC. and JOHN DOES 1-25, Case No. 3:21-cv-00631-TJC-PDB (M.D. Fla.), the Court entered a case management and scheduling order as follows: -- Deadline for providing mandatory September 27, 2021 initial disclosures. -- Deadline for moving to join a October 25, 2021 party or amend the pleadings. -- Deadline for disclosing expert reports. Plaintiff: October 25, 2021 Defendant: December 17, 2021 Rebuttal: January 28, 2022 -- Deadline to file class February 25, 2022 certification motions. -- Mediation Deadline: June 30, 2022 Mediator: James R. Betts Address: 710 S. Boulevard Tampa, FL 33606 Telephone: (813) 254-3302 -- Deadline for completing July 29, 2022 discovery and filing motions to compel. -- Deadline for filing dispositive August 31, 2022 and Daubert motions (Responses due 21 days after service unless otherwise ordered; summary judgment replies (limited to 7 pages) permitted 14 days after service of a response) -- Deadline for filing the joint January 19, 2023 final pretrial statement and all other motions including motions in limine. -- Date and time of the final January 25, 2023 pretrial conference. Trial Term Begins February 6, 2023 A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3uKLkbX at no extra charge.[CC] CORECIVIC INC: Settles Securities Class Action Lawsuit ------------------------------------------------------ Private prison company CoreCivic, formerly known as the Corrections Corporation of America (CCA), has settled a shareholder action for $56 million. Claim forms are due November 19, and Chicago Clearing Corporation (CCC) is already preparing claims for institutional investors. The class action complaint, first filed in August of 2016, followed the announcement by the Department of Justice that the government would end its use of private prisons, including those operated by CCA. Deputy Attorney General Sally Yates stated that "time has shown that [private prisons] compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department's Office of Inspector General, they do not maintain the same level of safety and security." After this announcement, the price of CCA common stock dropped 39.45% in a single day. (For full historical context, the Trump administration soon revoked this Obama administration initiative. The Biden admin has revived it, and the Great Wheel continues to spin: for now clockwise, tomorrow counterclockwise; on and on and back and forth it goes . . . . ) CCC has been tracking this litigation since it was first filed on August 23, 2016. It is one of thousands of complaints we have tracked in the past 15 years, and one of over 130 settlements with claim filing deadlines due in this year alone. Chicago Clearing Corporation has either filed or will file claims in every one of these cases. We have participated in nearly every class action securities suit since 2006. With the team at CCC on your side, you not only keep up with the flow, but you have the piece of mind knowing that we have filed millions of claims in well over 1000 settlements. We have the expertise, the diligence, the vast experience to steward any and every claim from the date a settlement is announced through the final distribution. Give us a call today, and we'll get started.[GN] CPT GROUP: Announces Proposed Settlement in a Class Action ---------------------------------------------------------- CPT Group, Inc., announces a proposed settlement in a class action lawsuit called Dominique Morrison v. Ross Stores, Inc., N.D. Cal., Case No. 4:18-cv-02671-YGR (the "Settlement"). This notice provides a summary of your rights and options. What is this about? Plaintiff Dominique Morrison claims that the thread count on cotton/polyester sheets imported and supplied by AQ Textiles, LLC and sold by Ross ("Ross" or "Defendant") was false or deceptive. Ross stands by its advertising and denies it did anything wrong. The Court has not decided which side is right. Instead, the parties have decided to settle this case. Who is affected? You are a Class Member if you purchased polyester-cotton blend ("Chief Value Cotton" or "CVC") sheet sets supplied by AQ to Ross and sold by Ross between May 7, 2014, and November 29, 2021. What does the Settlement provide? The Settlement provides injunctive relief. Injunctive Relief: Pursuant to the settlement Ross requires AQ to certify in writing on an annual basis that the polyester/cotton sheets it supplies to Ross comply with the actual thread count pursuant to industry standard ASTM D3775, as officially interpreted and amended from time to time, or any successor industry standard for textile thread count, and to report in writing on an annual basis as to whether there are any known investigations by any outside entity or pending claims or lawsuits regarding AQ's representation regarding thread count. Ross will also require AQ to supply a passing test report for thread count for each new style of polyester/cotton sheets that it supplies to Ross. What are my options? You can do nothing, exclude yourself, or object to the Settlement. Do Nothing: If you do nothing, you will give up your right to sue or continue to sue Ross for the claims in this case.[GN] CVS PHARMACY: Court Dismisses Fuog Class Suit With Leave to Amend ----------------------------------------------------------------- In the case, EDITH FUOG, Plaintiff v. CVS PHARMACY, INC., et al., Defendants, C.A. No. 20-337 WES (D.R.I.), Judge William E. Smith of the U.S. District Court for the District of Rhode Island granted the Defendant's Motion to Dismiss. Background In the putative class action, the Plaintiff alleges three counts against Defendants CVS Pharmacy, Inc. and Caremark PHC, L.L.C. ("CVS"): First, unlawful discrimination under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section 12182(a); second, unlawful discrimination under the Rehabilitation Act, 29 U.S.C. Section 794(a); and third, unlawful discrimination under the Affordable Care Act ("ACA"), 42 U.S.C. Section 18116(a). The Plaintiff seeks to assert these claims on behalf of herself and a class that includes, with certain limitations, all United States residents who: 1) were issued prescriptions for opioid medication for chronic pain, pain associated with a cancer diagnosis or treatment, palliative or nursing home care, or sickle cell anemia; and 2) were unable to get their prescriptions filled, filled as written, or filled without also submitting non-opioid prescriptions or purchasing other products. The Plaintiff suffers from chronic pain after recovering from, inter alia, breast cancer and a rare bacterial infection. She has been treated by a physician since 2013 and has been prescribed prescription opioid medications since 2014. Starting in 2017, pharmacists at multiple CVS locations in Florida refused to fill her opioid prescriptions, sometimes telling her that her opioid prescriptions could not be filled, or that the medication was not in stock. At one point, a pharmacist allegedly yelled at her in front of other customers while refusing to fulfill her prescriptions. The Plaintiff contends that CVS has recently implemented a series of policies and practices "to comply with federal mandates and the CDC Guideline for opioid prescriptions." Though she has not seen such policies, she contends that CVS uses "internal checklists, databases and data analytics to screen opioid prescriptions." She claims that these policies have resulted in the Plaintiff and others being "flagged or otherwise included on a list or database as potentially abusing opioid medication," and that CVS or CVS pharmacists require "that opioid prescriptions not be filled unless accompanied with one or more prescriptions for non-opioid medication." The Plaintiff also claims that CVS or CVS pharmacists have adopted or may adopt a requirement "that opioid prescriptions not be filled unless and until the person seeking the prescription provide[s] comprehensive medical records." Finally, she alleges that CVS has a policy which limits the dosage and duration of opioid prescriptions that it will fill. The Plaintiff contends that her difficulties getting CVS to fill her prescriptions stem from these polices and that they amount to discrimination under the ADA and related statutes. Discussion A. Standing The Defendants first contest the Plaintiff's standing, asserting that some of CVS's alleged policies were never applied to her. They claim the Plaintiff never "alleged that a pharmacist refused to fill an opioid prescription because she did not also present a prescription for non-opioid medication," and that no "CVS pharmacist ever requested that Ms. Fuog provide medical records or refused to fill her opioid prescriptions because she did not provide them." Judge Smith finds that CVS pharmacists refused to fulfill the Plaintiff's prescriptions on multiple occasions and in various CVS locations. Taking the facts pled by the Plaintiff as true, CVS' own pharmacists repeatedly refused to fulfill her prescriptions while referencing changed policies, lack of stock, and various other reasons. The Defendants' attempt to distinguish the Plaintiff's experiences from these policies is unpersuasive. The Plaintiff has encountered significant barriers impeding her access, and so she has standing on this basis. The Defendants also argue that the Plaintiff's claims against Caremark PHC, L.L.C., which provides prescription benefit management services, should be dismissed because the Complaint contains no factual allegations that specifically involved Caremark PHC. Pharmacy benefit managers ("PBMs") are "private businesses that contract with health plan sponsors to help administer the prescription drug benefits that health plan sponsors provide to their members." But, as the Plaintiff points out, CVS' own website notes Caremark PHC's involvement in CVS' efforts to prevent opioid abuse. Further, she alleges that beginning in January 2019, her insurance company stopped paying for her prescription opioid medication. There is therefore a sufficient link between Caremark PHC and CVS to find standing as to Caremark. B. Failure to State a Claim i. Discrimination on the Basis of Disability For their part, CVS Defendants argue that not all those who have been prescribed opioids are disabled within the meaning of the ADA. Thus, the policies described in the Complaint are facially neutral, applying to the disabled and non-disabled alike. In response, the Plaintiff contends that "all users of prescription opioid medication are `disabled' within the meaning of the ADA, RA, and ACA," because "their pain condition renders them disabled or because those seeking opioids for pain conditions 'may be regarded' as disabled within the meaning of the statute." Judge Smith holds that the Plaintiff's argument fails. Of course, many people with chronic pain who need prescription opioid medication are disabled, as many courts have found. Therefore, not all of those with chronic pain are disabled within the meaning of the ADA. Moreover, if chronic pain patients are not per se disabled, the Plaintiff's argument is even further afield for acute pain patients who require opioid prescriptions. The ADA's interpretive guidelines provide that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza." As these guidelines illustrate, many patients who require a prescription for opioids for a short period of time but suffer no long-term impact to their physical health are not disabled within the meaning of the relevant statutes. Because the challenged polices apply equally to disabled and non-disabled individuals, Judge Smith holds that the Plaintiff has not alleged any facts supporting a facial theory of intentional discrimination. The Plaintiff therefore can only proceed on alternate theories: disparate impact under the meaningful access standard, or a failure to provide a necessary and reasonable accommodation. ii. Disparate Impact Judge Smith finds that the Complaint gives the Court no basis to assess or even estimate what portions of those affected by CVS' alleged policies are disabled within the meaning of the ADA. As he explained, some number, but not all or perhaps even most of those with opioid prescriptions are disabled within the meaning of the ADA. Without some well-pleaded facts to support the degree of the disparate impact alleged, Plaintiff's meaningful access theory must fail. There may well be cases where it is difficult to draw the line between a permissibly increased likelihood that a disabled individual is affected by a facially neutral policy, and "systemically excluding people with disabilities." No court can draw that line in the dark on the basis of possibility and conjecture. iii. Reasonable Accommodation The Plaintiff's final theory concerns a lack of a reasonable accommodation. In promising "the full and equal enjoyment of the goods and services" of privately operated public accommodations, Title III of the ADA requires "reasonable modifications" as "necessary to afford such goods and services to individuals with disabilities." To establish a prima facie reasonable accommodation claim, a plaintiff must show that the requested modification is both "reasonable" and "necessary" to accommodate the plaintiff's disability. Judge Smith finds that while the Plaintiff has complained to CVS about its policies, it is not clear that she ever identified or proposed a modification to them or clarified with CVS whether there were any additional steps she could take to comply. Given that the Plaintiff has not alleged that she has requested reasonable accommodations from CVS, and that the accommodations asserted here would likely amount to ending CVS's policy altogether, she has failed to state a claim against CVS under the reasonable accommodation theory. Conclusion With all this said, Judge Smith is sympathetic to the plight of the Plaintiff and those similarly situated. Nevertheless, for the reasons given, he granted the Defendant's Motion to Dismiss. Because amendment to cure the deficiencies in the complaint would not be futile, the action is dismissed with leave to amend the complaint. If the Plaintiff choses to do so, the amended complaint must be filed within 30 days of the Order. A full-text copy of the Court's Sept. 24, 2021 Memorandum & Order is available at https://tinyurl.com/4s4bkce8 from Leagle.com. DELAWARE NORTH: Morand-Doxzon Appeals Partly OK'd Class Cert. Bid ----------------------------------------------------------------- Plaintiffs Melissa Morand-Doxzon, et al., filed an appeal from a court ruling entered in the lawsuit entitled MELISSA MORAND-DOXZON, on behalf of herself, all others similarly situated, and on behalf of the general public, v. DELAWARE NORTH COMPANIES SPORTSERVICE, INC; CALIFORNIA SPORTSERVICE INC.; and DOES 1-100, Case No. 3:20-cv-01258-DMS-BLM, in the U.S. District Court for the Southern District of California, San Diego. As reported in the Class Action Reporter on Sep. 17, 2021, the Hon. Judge Dana M. Sabraw entered an order granting in part and denying in part plaintiff's motion for class certification. The Plaintiffs in this case allege that during their employment, the Defendants "have not paid for all time worked while the Non-Exempt Employees are performing work and/or are subject to [Defendants'] control." The Court found that individualized questions about (1) the actual duration of each employee's individual meal and rest periods, (2) how long it took each employee to undergo security screening upon reentering the ballpark during break times, and (3) whether employees were disciplined for breaks exceeding ten- and thirty-minute durations predominate over common questions regarding Defendants' written policies. Accordingly, the Court denied certification of the proposed Meal Period and Rest Period Subclasses. The Plaintiffs seek a review of of Judge Sabraw's order. The appellate case is captioned as Melissa Morand-Doxzon, et al. v. Delaware North Companies Sport, et al., Case No. 21-80101, in the United States Court of Appeals for the Ninth Circuit, filed on Sep. 24, 2021.[BN] Plaintiffs-Petitioners MELISSA MORAND-DOXZON and ROSS GERACI, on behalf of themselves and all others similarly situated, and on behalf of the general public, are represented by: David Mara, Esq. Jill Marie Vecchi, Esq. MARA LAW FIRM PC 2650 Camino Del Rio North, Suite 205 San Diego, CA 92108 Telephone: (619) 234-2833 E-mail: dmara@maralawfirm.com jvecchi@maralawfirm.com Defendants-Respondents DELAWARE NORTH COMPANIES SPORTSERVICE, INC., CALIFORNIA SPORTSERVICE, INC., and SAN DIEGO SPORTSERVICE, INC. are represented by: Jonathan L. Brophy, Esq. Jon D. Meer, Esq. Bethany Pelliconi, Esq. SEYFARTH SHAW, LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 201-1532 E-mail: jbrophy@seyfarth.com jmeer@seyfarth.com bpelliconi@seyfarth.com - and - Peter Choi, Esq. SEYFARTH SHAW LLP 601 South Figueroa Street, Suite 3300 Los Angeles, CA 90017 Telephone: (213) 270-9660 DEVON ENERGY: Ct. Enters Class Certification Scheduling Order ------------------------------------------------------------- In the class action lawsuit captioned as COOK CHILDREN'S HEALTH FOUNDATION a/k/a W.I. COOK FOUNDATION, INC., on behalf of itself and a class of similarly situated persons, v. DEVON ENERGY CORPORATION and DEVON ENERGY PRODUCTION COMPANY, L.P., Case No. 4:21-cv-00454-ALM (E.D. Tex.), the Hon. Judge Amos L. Mazzant entered a scheduling order as follows: -- October 6, 2021 Deadline for motions to transfer. -- January 13, 2022 Deadline for Plaintiff to file amended pleadings. (A motion for leave to amend is required.) -- January 13, 2022 Deadline to add parties. -- February 3, 2022 Deadline for Defendants' final amended pleadings. (A motion for leave to amend is required.) -- September 15, 2022 Date by which the parties shall notify the Court of the name, address, and telephone number of the agreed-upon mediator, or request that the Court select a mediator, if they are unable to agree on one. -- November 1, 2022 Mediation must occur by this date. -- July 13, 2022 Deadline to complete discovery regarding class certification issues. -- August 3, 2022 Deadline for Plaintiff's Disclosure of Expert Testimony -- August 3, 2022 Plaintiff's Motion for Class Certification Due -- September 2, 2022 Deadline for Defendant's Disclosure of Expert Testimony -- September 2, 2022 Deadline for Defendants' Response regarding Class Certification -- September 23, 2022 Deadline for Plaintiff's Reply in Support of Motion for Class Certification -- October 28, 2022 Hearing on motions for class certification A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3Fogk6v at no extra charge.[CC] DILLY KEY: Ramos Sues Over Failure to Pay Minimum, Overtime Wages ----------------------------------------------------------------- Felipe Ramos, on behalf of himself and all others similarly situated v. DILLY KEY RESTAURANT HOLDING, LLC, Case No. 4:21-cv-10097-XXXX (S.D. Fla., Oct. 4, 2021), is brought under the Fair Labor Standards Act for the Defendant's failure to pay servers and bartenders minimum and overtime wages. The Defendant violated federal minimum wage law because it failed to compensate restaurant servers and bartenders for certain hours worked during shifts. The Defendant further required servers and bartenders to perform off-the-clock work that often caused overtime wage violations which are not referenced on the Defendant's time records. Defendant also violated the minimum wage requirements under federal law because it compensated restaurant servers and bartenders at the reduced "tip credit" wage notwithstanding that servers and bartenders were required to spend more than 20% of their shifts performing non-tipped duties and responsibilities. As a result, the Plaintiff, and similarly situated restaurant servers and bartenders have been denied federally mandated minimum and overtime wages in one or more workweeks during the relevant time period, says the complaint. The Plaintiff worked for the Defendant as a server from March 2017 until June 4, 2021. The Defendant owns, operates and controls multiple restaurants located in Key Largo, Florida, known to the public as Senor Frijoles, Sundowners, and Cactus Jacks.[BN] The Plaintiff is represented by: Jordan Richards, Esq. Jake Blumstein, Esq. USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC 805 E. Broward Blvd. Suite 301 Fort Lauderdale, Florida 33301 Phone: (954) 871-0050 Email: Jordan@jordanrichardspllc.com Jake@jordanrichardspllc.com DOLLAR GENERAL: Hauger Sues Over Mislabeled Graham Crackers ----------------------------------------------------------- Dawn Hauger, individually and on behalf of all others similarly situated v. Dollar General Corporation, Case No. 1:21-cv-01270 (C.D. Ill., Sept. 23, 2021) arises from the Defendant's alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and the Magnuson Moss Warranty Act. According to the complaint, the Defendant's front label representations of the crackers under the Clover Valley brand include "Honey Graham Crackers," a dripping honey dipper, "Made With Real Honey," "Contains 8g of whole grain per serving," and "No high fructose corny syrup." Reasonable consumers, including the Plaintiff, expect a food identified by the name of a whole grain flour will contain mainly whole grain flour, and more whole grain flour than if the food was merely labeled, "Crackers." However, the ingredient allegedly list reveals "Enriched Wheat Flour" is the predominant flour, indicated by its listing ahead of "Graham Flour." The representations further convey that honey is the primary and/or a significant source as a sweetener even though the product is sweetened primarily with sugar and contains a miniscule amount of honey, says the suit. Dollar General Corporation is an American chain of variety stores headquartered in Goodlettsville, Tennessee.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 409 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com DOLLAR GENERAL: Pays $1.8M to End Infants' False Ad Lawsuit ----------------------------------------------------------- Anna Bradley-Smith at topclassactions.com reports that dollar General and consumers have reached a $1.8 million settlement ending a class action lawsuit that alleged that the company inflated the price of infant's acetaminophen. With proof of purchase, consumers are entitled to an unlimited number of refunds of $1.70 per infants' product. According to the class action lawsuit filed in 2020 by lead plaintiff David Levy, Dolgencorp LLC, Dollar General's parent company, violated state and federal consumer laws by overcharging parents for its DG Infants' Pain and Fever Relief medication and labeling the product in a way that makes it seem to be specially formulated. In fact, Levy says the medicine is the same as the DG Children's Pain and Fever Relief, but Dollar General charges three times as much for it. The Dollar General pain relievers for infants and children are both liquid and contain the same 160 mg of acetaminophen per dose, and call for the same dosage amount, Levy's class action lawsuit says. The infants' medicine is packaged in a 2-ounce bottle, and the children's in an 8-ounce bottle. "[The products] are interchangeable, and are therefore suitable for infants and children, adjusting the dosage based only on the weight and age of the child," Levy argued. Claims in Dollar General Infant Acetaminophen Settlement Dollar General reached the $1.8 million settlement with Levy and other Class Members earlier this year, and it has now been submitted for final approval. Under the terms of the settlement, Class Members can receive an unlimited number of partial refunds of $1.70 per infants' product with proof of purchase, or $1.70 per infants' product up to a maximum of $5.10 without proof of purchase. The company has agreed that it will only sell the DG Health Infants' Acetaminophen if it states that it is the same as the cheaper DG Health Children's Acetaminophen. Also under the agreement, Levy will receive $5,000 as the Class representative and counsel will get $610,000. Consumers have made similar false advertising claims about Equate acetaminophen for infants sold by Walmart, Kroger Co.'s store brand of infant acetaminophen, as well as Rite Aid's infant pain reliever. Did you purchase Dollar General infant's acetaminophen? Will you take part in this settlement? Let us know in the comments section! Levy is represented by Rachel Dapeer of Dapeer Law PA, Andrew J. Shamis of Shamis & Gentile PA, Scott Edelsberg of Edelsberg Law PA and Melissa S. Weiner of Pearson Simon & Warshaw LLP. The Dollar General Infant's Acetaminophen Class Action Lawsuit is David Levy, et al. v. DolGenCorp LLC, et al., Case No. 3:20-cv-01037, in the U.S. District Court for the Middle District of Florida. [GN] DYNCORP INT'L: Court Denies Bid to Certify Class in Del Fierro Suit ------------------------------------------------------------------- In the case, RAMON DEL FIERRO, Plaintiff v. DYNCORP INTERNATIONAL LLC, Defendants, Case No. CV 19-07091DDP (JCx) (C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California denies Del Fierro's Motion for Class Certification without prejudice. Background The Plaintiff worked for Defendant Dyncorp at the Point Mugu Naval Air Station from December 2016 to July 2019. He alleges, on behalf of a putative class, that Dyncorp violated California Labor Code Section 226 by failing to provide wage statements that accurately identified the applicable rate of pay and hours worked for certain "shift premiums." The Plaintiff now seeks to certify a class comprised of "all current and former California non-exempt employees of Defendant DynCorp International, LLC who were paid any shift premium wages (including certification premiums) at any time from Aug. 14, 2018, through the date that the class is certified." Dyncorp points out, and the Plaintiff does not dispute, that although he was employed at Point Mugu during the relevant class period, fewer than 8% of the putative class members worked at the same base. The remaining eighty-plus percent of the prospective class members worked at several other facilities across California, including seven other U.S. military bases: Naval Air Weapons Station China Lake; National Training Center/Fort Irwin; Naval Air Facility El Centro; Marine Corps Air Station Miramar; Naval Air Station Lemoore; Joint Forces Training Base Los Alamitos; and Mather Air Force Base. The parties differ as to what effect, if any, this range of work locations has on class certification questions. Discussion Certain of the Rule 23 factors, such as numerosity and commonality, are not in dispute. The crux of the certification question presently before the Court, however, is whether the Plaintiff has satisfied the predominance, superiority, and, to a lesser degree, typicality requirements, notwithstanding the fact that putative class members are spread across eight separate military bases. The Plaintiff alleges, on behalf of the putative class, violations of California Labor Code Sectio 226(a)(9). That state law provision, however, only applies within a federal enclave if (1) the enclave was established after the enactment of Section 226(a)(9) or (2) Section 226(a)(9) represents only a minor change to the "basic state law" in effect at the time the enclave was established. Thus, as the Plaintiff appears to concede, it will be necessary in the case to determine (1) whether each of the bases at issue here is a federal enclave, (2) when that workplace became a federal enclave, (3) what state law was in force at the time the enclave was established, and (4) the extent to which Section 226(a)(9) alters that pre-existing state law. The Plaintiff nevertheless contends that these questions are irrelevant at this stage of proceedings. As an initial matter, however, Judge Pregerson holds that questions as to the applicability of the federal enclave doctrine are not "merits" questions in the traditional sense, and speak less to Dyncorp's actions or liability than to the Plaintiff's and the class members' standing to bring state law claims in the first instance. He says, although courts do, in the exercise of discretion, sometimes defer questions of standing until after class certification, courts typically do so only where certification is "logically antecedent" to questions of standing, such as in cases involving application of multiple states' laws, where certification would cure any lack of standing. It is not such a case. Certification of the proposed class would not resolve any questions related to standing, which depend instead on federal enclave analyses. Furthermore, Judge Pregerson finds that to the extent standing issues qualify as "merits" issues, he cannot simply ignore those issues at this stage, as the Plaintiff would suggest. To the contrary, he says, the Court "is required to examine the merits of the underlying claim" to the extent necessary to determine whether common questions exist. Nor would an analysis of the federal enclave issues require a "mini-trial" in the case, where all of the facts regarding the establishment of an enclave would appear to be matters of public record beyond dispute. Having made virtually no attempt to show whether the federal enclave doctrine applies uniformly to the putative class members, Judge Pregerson holds that the Plaintiff has failed to satisfy his burden to demonstrate that questions common to the class predominate or that a class action is the most efficient way to resolve class members' claims. For similar reasons, the Plaintiff has not established that his claims are typical of those of absent class members. This is not to say however, that the mere existence of federal enclave questions necessitates the conclusion, as Dyncorp suggests, that individual questions predominate in the case, Judge Pregerson finds. First, even though resolution of the remaining federal enclave questions may require a separate analysis for each of the seven remaining military bases, these analyses would not require an individualized inquiry as to the status of each or any particular class member. Furthermore, the Plaintiff "need only show that common questions `predominate' over individual questions, not that common questions exist to the complete exclusion of individual questions." To the extent that base-specific, as opposed to class member-specific, inquiries qualify as "individual" questions, Judge Pregerson cannot determine on the current briefing whether such questions are sufficiently complex to predominate over the common questions in the case. It may be, for example, that there is a relatively straightforward answer to the question whether some or all of the bases at issues here are federal enclaves, and/or whether Section 226(a)(9) applies to those enclaves. As stated, however, the Plaintiff has made no attempt to make such a showing. Conclusion For the reasons he stated, Judge Pregerson denied the Plaintiff's Motion to Certify Class without prejudice. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/55rybvzv from Leagle.com. EARGO INC: Glancy Prongay Discloses Securities Class Action ----------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM"), a national investor rights law firm, continues its investigation on behalf of Eargo, Inc. ("Eargo" or the "Company") (NASDAQ: EAR) investors concerning the Company and its officers' possible violations of the federal securities laws. If you suffered a loss on your Eargo investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/eargo-inc/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On September 22, 2021, after the market closed, Eargo revealed that "it is the target of a criminal investigation by the U.S. Department of Justice (the 'DOJ') related to insurance reimbursement claims the Company has submitted on behalf of customers covered by federal employee health plans." Moreover, the DOJ is the "principal contact related to the subject matter of the [ongoing] audit" of Eargo by an insurance company that is the Company's largest third-party payor. As a result, Eargo withdrew its full year financial guidance. On this news, the Company's share price fell $14.81 per share, or 68.34%, to close at $6.86 per share on September 23, 2021, thereby injuring investors. Whistleblower Notice: Persons with non-public information regarding Eargo should consider their options to aid the investigation or take advantage of the SEC Whistleblower Program. Under the program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Charles H. Linehan at 310-201-9150 or 888-773-9224 or email shareholders@glancylaw.com. About GPM Glancy Prongay & Murray LLP is a premier law firm representing investors and consumers in securities litigation and other complex class action litigation. ISS Securities Class Action Services has consistently ranked GPM in its annual SCAS Top 50 Report. In 2018, GPM was ranked a top five law firm in number of securities class action settlements, and a top six law firm for total dollar size of settlements. With four offices across the country, GPM's nearly 40 attorneys have won groundbreaking rulings and recovered billions of dollars for investors and consumers in securities, antitrust, consumer, and employment class actions. GPM's lawyers have handled cases covering a wide spectrum of corporate misconduct including cases involving financial restatements, internal control weaknesses, earnings management, fraudulent earnings guidance and forward looking statements, auditor misconduct, insider trading, violations of FDA regulations, actions resulting in FDA and DOJ investigations, and many other forms of corporate misconduct. GPM's attorneys have worked on securities cases relating to nearly all industries and sectors in the financial markets, including, energy, consumer discretionary, consumer staples, real estate and REITs, financial, insurance, information technology, health care, biotech, cryptocurrency, medical devices, and many more. GPM's past successes have been widely covered by leading news and industry publications such as The Wall Street Journal, The Financial Times, Bloomberg Businessweek, Reuters, the Associated Press, Barron's, Investor's Business Daily, Forbes, and Money. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. View source version on businesswire.com: https://www.businesswire.com/news/home/20210924005552/en/ [GN] EDEN CREAMERY: Court Tosses Kamal Bid for Voluntary Dismissal -------------------------------------------------------------- In the class action lawsuit captioned as YOUSSIF KAMAL, GILLIAN NEELY, RICHARD LICHTEN, SUSAN COX, NICK TOVAR, MICHELE KINMAN, ASHLEY PETEFISH, and TERRI BROWN, on their own behalf and on behalf of all others similarly situated, v. EDEN CREAMERY, LLC, dba HALO TOP CREAMERY; and JUSTIN T. WOOLVERTON, Case No. 3:18-cv-01298-TWR-AGS (S.D. Cal.), the Hon. Judge Todd W. Robinson entered an order denying the Plaintiffs' motion for voluntary dismissal to the extent it seeks dismissal without prejudice. The Court finds that any dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) must be with prejudice. No later than 21 days from the date this Order is electronically docketed, the Plaintiff shall file a notice indicating whether they (1) accept dismissal of their individual claims with prejudice pursuant to Rule 41(a)(2), or (2) choose to continue litigating this action in this Court. Should Plaintiffs fail timely to file the ordered notice, the Court will dismiss Plaintiffs' individual claims with prejudice pursuant to Rule 41(a)(2) and Civil Local Rule 83.1(a). A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3BgOgQe at no extra charge.[CC] EDUCATIONAL COMMISSION: Issue-Class Cert. in Russell Suit Vacated ----------------------------------------------------------------- In the case, MONIQUE RUSSELL; JASMINE RIGGINS; ELSA M. POWELL; and DESIRE EVANS v. EDUCATIONAL COMMISSION FOR FOREIGN MEDICAL GRADUATES, Appellant, Case No. 20-2128 (3d Cir.), the U.S. Court of Appeals for the Third Circuit vacates the District Court's issue-class certification and remands for further proceedings. Background Graduates of foreign medical schools who wish to be accepted to a United States medical-residency program must have graduated from a recognized foreign institution, demonstrated English-language proficiency, and passed the first two steps of the United States Medical Licensing Examination. Defendant-Appellant Educational Commission for Foreign Medical Graduates is a Philadelphia-based nonprofit that certifies that such graduates have satisfied those requirements. The Commission carries out this function in two ways. First, it administers the English-language and medical examinations the foreign medical school graduates must pass. Second, the Commission verifies, using primary sources, that the applicant received a medical degree from a qualifying institution. As the central certification agency for graduates of foreign medical schools, the Commission also investigates what it calls "irregular behavior." In early 1992, a man named Oluwafemi Charles Igberase applied to the Commission for certification. He eventually passed the medical-licensing and English-language examinations and was issued the Commission's certification. But no residency program accepted him. In 1996, Igberase applied to the Commission for certification for yet a third time. In this application, Igberase ditched his first two names and invented another one: "John Nosa Akoda." As he had twice before, Igberase (as Akoda) eventually passed the medical-licensing and English-language examinations and received the Commission's certification. After receiving the certification as "Akoda," Igberase applied for and was admitted to a residency program in New Jersey. But in August 2000, the residency program learned that the social security number Akoda used in his application belonged to Igberase. The residency program informed the Commission of the inconsistency, provisionally suspended the doctor it knew as Akoda, and, after an internal investigation, in November 2000, dismissed him. Once it learned of Akoda's possible misuse of Igberase's social security number, the Commission launched its own investigation. Despite the official's reservations, Igberase (as Akoda) was admitted to Howard's residency program. He successfully completed the program in 2011. After completing the program, he applied for and received a Maryland medical license using fake identification documents. That same year, he became a member of the medical staff at Prince George's Hospital Center and began seeing patients there. In June 2016, law enforcement officials executed search warrants at Igberase's residence, medical office, and vehicle. They found fraudulent or altered immigration documents, medical diplomas, medical transcripts, letters of recommendation, and birth certificates. On Nov. 15, 2016, Igberase signed a plea agreement. In it, he pleaded guilty to misuse of a social security account number to fraudulently obtain a Maryland medical license and admitted that "Akoda" was a pseudonym. The Commission subsequently invalidated Akoda's foreign-doctor certification, and the Maryland Board of Physicians revoked his medical license. The named Plaintiffs are Monique Russell, Jasmine Riggins, Elsa Powell, and Desire Evans. Each received medical treatment from the doctor known as "Akoda," who was certified by the Commission in 1997. Igberase performed unplanned emergency cesarean-section surgery on Russell and Riggins and delivered Evans's and Powell's children. These Plaintiffs also seek to represent a class of similarly situated individuals who likewise received medical treatment from "Akoda." But the Plaintiffs (the Appellees) did not sue Igberase. Instead, they sued the Commission, and asserted claims of negligent infliction of emotional distress arising out of the Commission's certification of Igberase as "Akoda." Eventually, the district court certified a class of "All patients examined or treated in any manner by Oluwafemi Charles Igberase (also known as Charles J. Akoda) beginning with his enrollment in a postgraduate medical education program at Howard University in 2007." But the district court did not certify the class under any subsection of Rule 23(b). Instead, the court certified the class as an "issue class" pursuant to Rule 23(c)(4). The court certified the class with respect to these issues: (1) whether the Commission undertook or otherwise owed a duty to class members. (2) whether the Commission breached any duty that it owed to class members. (3) whether the Commission undertook or otherwise owed a duty to hospitals and state medical boards, such that it may be held liable to class members pursuant to the Restatement (Second) of Torts Section 324A. (4) whether the defendant breached any duty that it owed to hospitals and state medical boards. In short, the particular issues the district court certified for class treatment concern only the duty and breach elements of the Plaintiffs' claim. The district court therefore left for individualized proceedings whether each Plaintiff was injured; whether the Commission's breach of the relevant duty (if it had a duty that was breached) actually and proximately caused those injuries; whether those injuries are due a particular amount of damages; and whether the Commission could raise any affirmative defense, including, presumably, whether each Plaintiff's consent to medical treatment by Igberase breaks the causal chain. In the wake of the Rule 23(c)(4) certification, the Commission successfully petitioned for leave to appeal under Rule 23(f). The Third Circuit must decide whether that certification was proper. Discussion The case presents the question whether the District Court abused its discretion when it certified an "issue class" pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure. The Third Circuit holds that it did. According to Rule 23(c)(4), "when appropriate, an action may be brought or maintained as a class action with respect to particular issues." For "an action" to be "brought or maintained as a class action," the party seeking class status must satisfy Rule 23 and all its requirements, citing Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Further, in Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011), the Third Circuit enumerated a "non-exclusive list of factors" relevant to assessing whether the certification of an issue class under Rule 23(c)(4) is "appropriate." So when a party seeks to certify "particular issues" for class treatment, the district court must ask three questions. First, does the proposed issue class satisfy Rule 23(a)'s requirements? Second, does the proposed issue class fit within one of Rule 23(b)'s categories? Third, if it does, is it "appropriate" to certify this as an issue class? In the case, lacking clear guidance, the District Court failed to determine whether the issues identified for class treatment fit within one of Rule 23(b)'s categories and then failed to explicitly consider a few of the Gates factors. Conclusion For these reasons, the Third Circuit vacates the District Court's Order certifying for aggregate treatment the duty and breach elements of the Plaintiffs' negligent infliction of emotional distress claim, and remands for further proceedings consistent with its Opinion. A full-text copy of the Court's Sept. 24, 2021 Opinion is available at https://tinyurl.com/544mh9zv from Leagle.com. William R. Peterson, [ARGUED] Morgan, Lewis & Bockius, 1000 Louisiana Street, Suite 4000, in Houston, Texas 77002. Matthew D. Klayman, Brian W. Shaffer, Morgan Lewis & Bockius, 1701 Market Street, in Philadelphia, Pennsylvania 19103, Counsel for the Appellant. Nicholas M. Centrella -- ncentrella@conradobrien.com -- Robin S. Weiss Conrad O'Brien, 1500 Market Street West Tower, Suite 3900, in Philadelphia, Pennsylvania 19102. Brent P. Ceryes -- bceryes@sfspa.com -- Schochor Federico & Staton, 1211 Saint Paul Street, in Baltimore, Maryland 21202. Brenda Harkavy Patrick A. Thronson -- pthronson@JJSjustice.com -- [ARGUED] Janet Janet & Suggs, 4 Reservoir Circle, Suite 200, in Baltimore, Maryland 21208. Scott L. Nelson, Public Citizen Litigation Group, 1600 20th Street, N.W., in Washington, D.C. 20009. Paul M. Vettori -- pvettori@lawpga.eom -- Law Offices of Peter G. Angelos, 100 North Charles Street One Charles Center, 22nd Floor, in Baltimore, Maryland 21201. Cory L. Zajdel, Z Law, 2345 York Road, Suite B-13, in Timonium, Maryland 21093, Counsel for the Appellee. Diana Huang, American Medical Association, 25 Massachusetts Avenue, N.W., Suite 600, in Washington, D.C. 20001. Leonard A. Nelson, American Medical Association, 330 North Wabash Avenue, Suite 39300, in Chicago, Illinois 60611, Counsel for Amicus American Medical Association, Association of American Medical Colleges, and Pennsylvania Medical Society in support of the Appellant. Gilbert Dickey, McGuireWoods, 201 North Tryon Street, Suite 3000, in Charlotte, North Carolina 28202. Matthew A. Fitzgerald -- mfitzgerald@mcguirewoods.com -- McGuireWoods, 800 East Canal Street, Gateway Plaza, in Richmond, Virginia 23219, Counsel for Amicus Chamber of Commerce in support of the Appellant. ENCORE FLIGHT: Hajihassani Sues Over Shady Flight Training Course ----------------------------------------------------------------- EBRAHIM HAJIHASSANI, individually and on behalf of all others similarly situated, Plaintiff v. ENCORE FLIGHT CORPORATION d/b/a ENCORE FLIGHT ACADEMY, Defendant, Case No. 2:21-cv-07695 (C.D. Cal., Sept. 27, 2021) seeks to recover damages, injunctive relief, and any other available legal or equitable remedies, resulting from the unlawful and deceptive business practices of the Defendant with regard to its practice of deceptive and misleading representations and/or omissions regarding concealed financing terms in its flight training course agreements. Encore Flight Corporation, d/b/a Encore Flight Academy, is a flight school in Los Angeles, California. On March 31, 2021, the Plaintiff enrolled in a flight training course with Defendant for personal, family, and household purposes. That same day, Plaintiff entered into a written agreement for Defendant's flight training course, which was a consumer credit transaction within the meaning of The Truth in Lending Act. According to the Plaintiff, he was misled and deceived and suffered economic injury due to Defendant's representations and omissions in the contract, which included an unconscionable financing provision and lacked transparency regarding the financing terms involved in the transaction with Defendant.[BN] The Plaintiff is represented by: Abbas Kazerounian, Esq. Mona Amini, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com mona@kazlg.com EQT CORPORATION: Asbury Class Suit Remains Stayed ------------------------------------------------- In the class action lawsuit captioned as PATRICIA ASBURY, et al., v. EQT CORPORATION, et al., Case No. 2:18-cv-01005-CB (W.D. Pa.), the Hon. Judge Cathy Bissoon entered an order stating that: -- case is and shall remain stayed and administratively closed for the duration of time it takes for the parties and/or the Court to formulate an appropriate class definition, and to determine the provision of class notice; -- consistent with the above, the Plaintiff's Motion for class treatment is granted; and -- Defendants' Motion to strike Plaintiffs' experts is denied. Should the parties reach an agreement regarding some, but not all, of the above, they shall file a joint notice indicating the areas of agreement; explaining where they disagree; and providing competing proposals, along with legal briefs in support of their respective positions. If no agreement can be reached, they shall, by the date indicated, submit competing proposals, and legal briefs in support thereof; and the Court summarily will adopt the side's proposals that are most reasonable and consistent with the law, the Court says. In light of the established rulings and parameters, the Court believes that this case would benefit from another round of mediation. Should the parties agree, the Court is amenable to having notice and settlement approval be approached through that means. The Court, moreover, is willing to suspend the parties' filing requirements while the prospect is explored and/or completed, the Court adds. A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3Ddnmt0 at no extra charge.[CC] FASTENAL CO: Jackson Must Seek for Prelim. Approval of Class Deal ----------------------------------------------------------------- In the case, MIESHIA MARIE JACKSON, Plaintiff v. FASTENAL COMPANY, Defendant, Case No. 1:20-cv-00345-NONE-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California discharged the Sept. 23, 2021 order to show cause and ordered the Plaintiff to file a motion for preliminary approval of the class action settlement. On Jan. 21, 2020, Plaintiff Jackson, on behalf of herself and all others similarly situated, filed the action in the Stanislaus County Superior Court against Fastenal alleging violations of California labor law. On March 4, 2020, the Defendant removed the action to the Eastern District of California. On May 28, 2020, the Court issued a phased scheduling order. On Dec. 23, 2020, pursuant to the parties' stipulation, the Court modified the scheduling order and extended the deadline for the Plaintiff to file a motion for class certification until Sept. 13, 2021. On Sept. 23, 2021, because the deadline to file the motion for class certification had expired and no motion was filed, the Court issued an order to show cause why this action should not be dismissed. On Sept. 23, 2021, the Plaintiff filed a notice of settlement and response to the order to show cause. The filing indicates that the parties reached settlement of the action through mediation around March 1, 2021; that on Aug. 27, 2021, the parties circulated a long-form settlement agreement for signatures; that on Sept. 20, 2021, the long-form agreement was fully executed; and that pursuant to the agreement, the Defendant will be stipulating to the certification of the class for settlement purposes, and thus the Plaintiff no longer needed to file a contested class certification motion. The Plaintiff apologizes to the Court for any delay in notifying the Court of the settlement. She further requests that all deadlines and hearings be vacated until the Court determines whether to approve the settlement; and that a hearing on the forthcoming preliminary approval motion be set for the Court's first available date in November of 2021, "preferably in front of the Magistrate, as the Parties have agreed, subject to Court approval, to have settlement approval proceed in front of the Magistrate." Judge Boone holds that the order to show cause will be discharged. The Judge does not find it necessary to vacate any dates in the matter as the only deadlines set in the previous scheduling orders were for pre-certification discovery, and for the filing of the motion for class certification. The parties are informed they may notice a hearing before Judge Boone without reserving or clearing a hearing date, provided the notice of motion and hearing date comply with Local Rule 230. The Court will set a deadline for the filing of the motion for preliminary approval. Accordingly, Judge Boone discharged the Sept. 23, 2021 order to show cause. The Plaintiff will file a motion for preliminary approval of the class action settlement within 30 days of entry of the Order. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/w6d3vw7p from Leagle.com. FORD MOTOR: "Death Wobble" Class Action Partly Dismissed -------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Ford "death wobble" lawsuit has been partly dismissed after F-250 and F-350 truck owners alleged violent shaking occurs when driving. The class action lawsuit alleges the wobble causes drivers to lose control of the trucks because of problems with the damper brackets, ball joints, control arms, shocks, struts and track bar bushings. The Ford "death wobble" lawsuit was first filed in June 2019 and Ford filed a motion to dismiss a few months later. The plaintiffs then filed their first amended lawsuit and Ford filed a second motion to dismiss, which the court granted and denied in part. The plaintiffs then filed a consolidated amended lawsuit which caused Ford to file another motion to dismiss. Of the previous plaintiffs one survived, and he is now joined by 13 new plaintiffs from 10 states who assert 36 claims about F-250 and F-350 trucks. According to the Ford "death wobble" lawsuit, the trucks shake violently when they hit bumps or grooves in the roads when driving above 50 mph, but slowing the trucks down stop the wobbles. The class action alleges more than 1,000 Ford "death wobble" complaints have been filed with the government between 2005 and 2019. Motion to Dismiss the Ford "Death Wobble" Lawsuit Ford allegedly violates two express warranties provided to truck owners, but the automaker argues no breach of warranties occurred because no plaintiff alleges they were refused a free repair by a Ford dealer. Additionally, no plaintiff experienced multiple unsuccessful repair attempts when the warranties applied. According to Ford, the claims should be dismissed for plaintiffs in three states, and the judge agreed to dismiss warranty claims brought by two plaintiffs. Ford also argues express warranty claims of two plaintiffs should be dismissed because their trucks were successfully repaired. The judge dismissed the claims because one plaintiff who had the truck repaired has never complained the "death wobble" has reoccurred since repairs were performed. And although the plaintiff says "they are terrified that the new steering damper is only a temporary remedial measure for the Death Wobble," the judge says the plaintiff has no evidence for that belief. Another plaintiff had his express warranty claim dismissed because his truck hasn't had any problems since Ford made repairs. Other claims against Ford were dismissed because the warranties had already expired when owners brought the trucks to dealerships. The judge did allow a Magnuson-Moss Warranty Act claim to proceed, at least for now, and a few plaintiffs saw their warranty claims viable, but two plaintiffs saw their implied warranty claims tossed. The judge ruled at this stage he is unable to determine whether a nationwide class can be sustained in this case, so Ford's motion to dismiss the claim is dismissed, for now. The judge also dismissed certain fraud-based claims while allowing others to move forward at this stage of the lawsuit. The Ford "death wobble" lawsuit was filed in the U.S. District Court for the Southern District of California - Lessin, et al., v. Ford Motor Company, et al. The plaintiff is represented by McCune Wright Arevalo, and Sohn & Associates. [GN] GANNETT CO: Kentucky Court Dismisses Love FLSA Suit With Prejudice ------------------------------------------------------------------ Judge Benjamin Beaton of the U.S. District Court for the Western District of Kentucky, Louisville Division, dismisses with prejudice the case, NICOLE LOVE, individually and on behalf of those similarly situated, Plaintiff v. GANNETT CO. INC., GANNETT SATELLITE INFORMATION NETWORK, LLC, AND GCOE, LLC, Defendants, Case No. 3:19-cv-296-BJB-RSE (W.D. Ky.). Three of Gannett's former call-center employees sued Gannett, raising several claims of unfair labor practices under state and federal law. They invoked the "collective action" provision of the Fair Labor Standards Act. Under the FLSA, Congress authorized plaintiffs to sue "for and in behalf of himself and other employees similarly situated." After more than two years of litigation, two amended complaints, and an order granting conditional certification of an FLSA collective, the lone remaining named Plaintiff, Nicole Love, asks the Court to approve the parties' settlement agreement and dismiss the case with prejudice. Initially, Judge Beaton opines that the hard-fought litigation in the case leaves little doubt about the existence of a bona fide dispute. Gannett has denied the allegations of FLSA violations at each turn. And Gannett continues to deny FLSA violations in the proposed settlement agreement itself. The proposed settlement plainly resolves a bona fide dispute. Next, Judge Beaton holds that the settlement is a fair, reasonable, and adequate resolution of the dispute. He finds that (i) absent evidence of fraud or collusion, the Court may presume none exists; (ii) no one doubts that "continuing to litigate this case would result in greater expense for both parties and increase the duration of the litigation"; (iii) the parties have engaged in substantial investigation of the claims and enough discovery to ensure that "the issues are well understood by both sides"; (iv) some questions certainly persist regarding who would prevail if the parties litigated the case to judgment; (v) the class counsel and the named Plaintiff representing the collective both support the settlement; (vi) no absent class members exist in the opt-in collective action; and (vii) the agreement promotes the "strong public interest in encouraging settlement" because it "reflects a reasonable compromise over issues actually disputed." Judge Beaton also holds that the settlement proceeds will be distributed equitably. As explained in the motion, "each FLSA Collective Member will be assigned a specific settlement amount based on the number of weeks he or she worked for the Defendants during the Collective Period." The Judge agrees that this formula makes good sense in light of the work and violations alleged in the case, and therefore "ensures that the Net Settlement Amount is distributed fairly to the FLSA Collective Members." In addition, the service award for the named plaintiff is reasonable, Judge Beaton opines. He says, the proposed settlement provides $5,000 to Love for her services. Due to the substantial benefit this settlement brings to those who opt in to the collective, the risk undertaken by Love in helping to lead the litigation, and the approximately 20 hours (and perhaps more) of time Love invested as the lead plaintiff in guiding the case, the Judge agrees that this is a reasonable sum. The requested attorneys' fees are also reasonable, Judge Beaton finds. He opines that the requested fees are sufficiently reasonable to support the fee award proposed as part of the settlement. He grants the requested attorneys' fees ($200,000) and litigation expenses ($20,023.97), with the balance of the amount originally laid out in the settlement agreement ($260,000 - $220,023.97 = $39,976.03) added to the net settlement fund for distribution to the opt-in plaintiffs. Notice is the final item implicated by the motion. At the fairness hearing, the counsel indicated that they had not yet sent prospective opt-in plaintiffs the notice form previously approved by the Court. Due to the Court's special role in the litigation, Judge Beaton asks that the counsel file a revised proposed notice of settlement in the docket within 30 days of his order so that the Court can ensure the notice sufficiently advises potential collective members of their right to funds and their other rights and obligations under the settlement. In light of the foregoing, Judge Beaton grants the unopposed motion for settlement approval and, contingent on approval the parties' submission of the requested notice, dismisses the case with prejudice. A full-text copy of the Court's Sept. 24, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/235575mj from Leagle.com. GARDNER TRUCKING: Leuzinger Suit Consolidated With Castro Suit -------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California consolidates the case, KASPER LEUZINGER, Plaintiff v. GARDNER TRUCKING, INC. AND CRST EXPEDITED, INC., Defendants, Case No. 21-CV-4952-YGR (N.D. Cal.), with Castro v. Gardner Trucking, Inc., 20-CV-5473-YGR. On June 28, 2021, Plaintiff Leuzinger filed the putative class action against Gardner Trucking, Inc., and CRST Expedited, Inc., alleging violations of the California Labor Code, the Fair Labor Standards Act, and California's Unfair Competition Law. Defendant CRST Expedited, Inc., doing business as CRST The Transport Solution, Inc. -- Dedicated West, formerly known as Gardner Trucking, Inc., has moved to dismiss or stay the action based on the first-to-file rule in light of the earlier filed related action, the Castro action, also pending before the Court. The Plaintiff subsequently moved to consolidate the action with the Castro action. In arguing for the application of the first-to-file rule, the Defendant submits that Castro was the first filed action, both actions "cover virtually the same putative class and claims against the same defendant," and the issues are similar "because both class actions involve the Defendant's alleged failures to comply with overlapping sections of the California Labor Code and FLSA against nonexempt employees." While the Plaintiff responds, inter alia, that the first-to-file rule does not apply to matters before the same court and the same judge, the Defendant counters that the rule applies to actions filed in the same district. The Defendant's rebuttal, however, does not address the present situation in which the actions at issue are pending before the same judge. Because both actions at issue are pending before her, Judge Rogers holds that application of the first-to-file rule is not appropriate. Therefore, she denies the motion to dismiss or stay the action in light of the Castro action. Moreover, for the same reasons submitted by the Defendant in support of its own motion, Judge Rogers grants the motion to consolidate the action with the Castro action. The Judge is not persuaded that the filing of the present action constitutes venue shopping or that consolidation would cause unnecessary delay, confusion, or prejudice, as alleged by defendant. In fact, given the overlapping issues, economies are gained by consolidation. To the extent that the schedule needs to be adjusted, the parties may request to be placed on a case management calendar. The Clerk of Court will consolidate the action with Case No. 20-CV-5473-YGR and administratively close the case. The Order terminates Docket Numbers 12 and 17. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/t69s7dp9 from Leagle.com. GENERAL MOTORS: Hit With Lawsuit Over Alleged Airbag Failures ------------------------------------------------------------- A class-action lawsuit has been filed against GM Canada alleging the automaker knowingly delivered vehicles equipped with faulty airbag sensing and diagnostic modules. According to Car Complaints, the lawsuit alleges the airbag sensing and diagnostic modules in certain GM Canada vehicles have software calibration defect that prevents the airbags and seatbelt pre-tensioners from working in the event of a crash. Specifically, the suit says the software is calibrated to deploy the airbags and pre-tensioners 45 milliseconds after a crash has begun, but claims the typical crash duration of a front vehicle-to-barrier collision lasts about 80-150 milliseconds. The plaintiff in the suit purchased a 2005 Chevy Silverado 2500 in April of 2005, which they say contains this faulty software. The plaintiff also says GM Canada knowingly delivered vehicles with this defect and that it maintains they are safe despite receiving customer complaints about the alleged issue. Four plaintiffs in the U.S. District Court for the Eastern District of New Jersey filed an almost identical lawsuit against GM in August. Like this Canadian suit, the filing alleges affected vehicles do not deploy the airbags in a timely manner in the event of a crash and may fail to deploy altogether in certain instances. That suit also said more than 800 complaints have been filed with the U.S. federal government regarding airbag failures in front-end crashes in GM vehicles, which date back to 1999. The plaintiffs in the American suit are looking for GM to issue a recall for all affected vehicles to repair or replace the SDM, or offer a buyback for all affected vehicles. The Canadian suit claims a long list of GM vehicles spanning the 1994 to 2014 model years contain this defect, including the 1999-2014 GMC Yukon, 1994-2014 Chevy Tahoe, 1998-2014 Chevy Silverado and 2004-2014 Cadillac SRX, among many others. [GN] GEO GROUP: Gets Class Action Over Alleged Drop of Stock Prices -------------------------------------------------------------- GEO Group Inc., a for-profit prison company, convinced a federal judge in Florida to shave down most claims in a proposed class action alleging it misled investors by downplaying the risks associated with lawsuits the company faced over its facilities' conditions, leading to a stock drop. [GN] GOOGLE LLC: California Court Narrows Claims in Best Carpet Suit --------------------------------------------------------------- In the case, BEST CARPET VALUES, INC., et al., Plaintiffs v. GOOGLE LLC, Defendant, Case No. 5:20-cv-04700-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, granted in part and denied in part Google's motion to dismiss the complaint without leave to amend. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Google moved to dismiss the complaint without leave to amend. The Plaintiffs filed an opposition. Background Plaintiffs Best Carpet Values, Inc. and Thomas D. Rutledge initiated the putative class action suit, asserting claims against Defendant Google for implied-in-law contract and unjust enrichment; trespass to chattels; and unfair and unlawful conduct in violation of California Business and Profession Code Section 17200. The Plaintiffs are owners of active U.S.-based websites. Plaintiff Best Carpet owns bestcarpetvalue.com and Plaintiff Rutledge owns thomasrutledgelaw.com. A website is a digital document built with software and housed on a computer called a "web server." A webserver is owned or controlled in part by the website's owner. Commercial websites typically have a unique "domain name" or "URL" (Uniform Resource Locator) address which enables an internet user to find the webserver on which the website resides. All websites have at least one page, called a homepage. The Plaintiffs allege that "by rights of ownership -- and under the First Amendment -- website owners are entitled to control the content and information displayed on their websites' web pages, including any advertisements, without interference." Once a website is "published" and becomes "active," Internet users can reach a website by entering the website's domain name into an internet "browser" program such as Google Chrome, Mozilla Firefox or Microsoft Edge. Google operates several internet related businesses that provide a variety of internet related products and services. Among other things, Google (1) makes and controls Android mobile phone software, including the Android operating system, which allows users to wirelessly access the internet; (2) owns and operates the world's most used internet browser, Google Chrome, and the world's most-used internet search engine, google.com; and (3) owns the world's largest internet advertising network, offering products serving every aspect of that industry, including Google Ads (for clients advertising on Google's search results pages), AdSense (matching buyers and sellers of display advertising on websites), and AdX (for buyers and sellers of premium, high-end website display ads). Android phone users can search the internet by either (1) opening a browser, such as Chrome, by clicking the Chrome icon on one of their Android home screens; or (2) using Google's Search App, which is incorporated into nearly every Android phone. Android users searching the internet are able to retrieve virtually the same search results, whether they use Search App or Chrome. Before March of 2018, the Search App icon "" appeared in the suite of Google apps that Google installs on Android phones, and many Android users had to click on the Search App icon to use the App. In late March of 2018, Google updated its Search App software by placing the Search App's search bar at the top of the first page of most Android home screens. This software update eliminated the need for Android users to click an icon before conducting an internet search using Google's Search App. The Search App search bar bears Google's "" logo. Between March of 2018 and April of 2020 ("Class Period"), virtually all of the approximately 50 million Android phone users in America have used the Search App's search bar to search the internet. During the Class Period, "most websites retrieved via Search App, when activated by an Android user's touching and toggling of their phone's screen, had Google's unlawful ads superimposed on their homepages or other 'landing' pages.'" More specifically, Google superimposed a leaderboard ad at the bottom of homepages that consisted of Google's logo, the phrase "VIEW 15 RELATED PAGES," and a pop-up button. Once a user engaged Best Carpet's website by toggling its homepage, however, Google's Search App activated and superimposed Google's leaderboard ad on top of Best Carpet's website. The result was that Google's leaderboard, "VIEW 15 RELATED PAGES," covered Best Carpet's invitation to users to view its "Cove Base" products. If a user were to click on the pop-up button (encircled triangle) in the leaderboard, the Search App superimposed two half-page "banner" ads that blocked 80% of what was previously viewable, and shadowed the remaining 20%. The two half-page banner ads were for Best Carpet's direct competitors. Technically, the superimposed "banner" ads appeared on the copy of Best Carpet's website that was reproduced on the user's screen. Best Carpet considers that copy its property. Each banner ad contained a link that, if clicked, redirected the users from Best Carpet's homepage to its competitor's web page. Google's ads intruded on website owners' limited space and created distractions that undermined every web page's central purpose. They also "compelled" business owners in nearly every conceivable industry to advertise for others, including competitors. Google's ad could also be misperceived by Android users as endorsements of unaffiliated businesses and people. The Related Pages banner ads often included ads for the host website's competitors and links to news stories about the host website's owner, including negative news articles. The purpose of the March 2018 software update was to generate profit and Google succeeded in doing so. Google updated its Search App on or about April 22, 2020 to discontinue (at least temporarily) the conduct alleged in the Complaint. The Plaintiffs estimate that for those two years, Google obtained over $2 billion of non-consensual free advertising. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Google moves to dismiss the complaint without leave to amend. The Plaintiffs filed an opposition and Google filed a reply. Discussion The Plaintiffs assert three claims on behalf of themselves, a Class, a Georgia Subclass, and a California Subclass. A. Trespass to Chattels Claim Trespass to chattels lies where an intentional interference with the possession of personal property has caused injury. There are two potential chattels: The computers hosting the Plaintiffs' websites and the copies of the Plaintiffs' websites appearing on users' screens. Google contends the trespass to chattels claim fails as a matter of law as to both potential types of chattel because its Search App does not cause physical injury (i.e., intrusion, interference or harm) to any tangible property. In making this argument, Google implicitly acknowledges that the computers hosting the Plaintiffs' websites are tangible property, but contends that the Search App does not interact with those computers, much less damage them. As for the copies of the Plaintiffs' websites appearing on users' screens, Google contends that they are not tangible property, and therefore cannot be the subject of a trespass claim. In response, the Plaintiffs contend that tangible and intangible property alike can be the subject of a trespass to chattels claim, and that they are alleging an injury to their intangible property, namely their websites. Google allegedly injured their websites because the superimposed ads impaired the website's "condition, quality, or value." Judge Davila holds that a website is a form of intangible property subject to the tort of trespass to chattels, the next issue is whether Plaintiffs have alleged an injury. Although the Plaintiffs are not alleging physical harm to their websites, they do allege functional harm or disruption. Specifically, the Plaintiffs allege that "by obscuring and blocking the contents of their website homepages when viewed on Android's Search App, Google's ads substantially interfered with and impaired the websites' published output and exposed the website owners to unwanted risks of lost advertising revenues and lost sales to competitors, thereby materially reducing the websites' value and utility to the website owners. The Defendant's unauthorized interferences proximately caused the Plaintiffs actual damage by impairing the condition, quality and value of their websites. The Plaintiffs seek damages equal to the diminished market value of their websites and a permanent injunction requiring Google to disable the ad-generating feature of its Search App on every Android phone on which it is installed and preventing Google from installing any similar feature in the future. And, although Google's ad may not have disabled or deactivated the "Cove Base" product link, Judge Davila holds that it nevertheless allegedly impaired the functionality of the website: An Android phone user cannot engage a link that cannot be seen. At the pleading stage, the alleged decrease in functionality of the Plaintiffs' website is sufficient to plausibly state a cognizable injury for a trespass to chattels claim. B. Implied Contract/Unjust Enrichment Claim The Plaintiffs also assert a claim labeled "Implied Contract/Unjust Enrichment." Google contends that the Implied Contract/Unjust Enrichment claim should be dismissed because it is preempted by section 301 of the Copyright Act. Google reasons that the Plaintiffs' demand to be paid inevitably depends on their ability to control how copies of their websites are displayed on different users' devices, and any right to control the way the websites appear must be grounded in the principles of copyright law. Judge Davila explains that copyright preemption applies to claims that are "asserted to prevent nothing more than the reproduction, performance, distribution, or display of" the Plaintiff's copyrightable property. Section 301 of the Copyright Act preempts a state law claim when two conditions are satisfied: (1) the work involved falls within the general subject matter of the Copyright Act as specified by sections 102 and 103; and (2) the rights that the plaintiff asserts under state law are equivalent to those protected by the Act in section 106 in works of authorship that are fixed in a tangible medium of expression. The first condition is satisfied because websites and the manner in which they are displayed fall within the subject matter of copyright. The "subject matter" of the Plaintiffs' claim necessarily concerns both their websites and the advertisements. The Plaintiffs allege that it is the placement of the ads "on top" of their websites that give rise to their right to damages. As stated previously, websites fall within the subject matter of copyright. Therefore, the first part of the preemption test is satisfied. Turning to the second condition, the Second Circuit has instructed that section 301 preemption "only applies to those state law rights that 'may be abridged by an act which, in and of itself, would infringe one of the exclusive rights' provided by federal copyright law.'" Judge Davila finds that the Plaintiffs' implied-in-law contract/unjust enrichment claim is a state claim with extra elements "instead of or in addition to" the acts giving rise to a copyright infringement claim. An implied-in-law contract claim "is a common law obligation implied by law based on the equities of a particular case." Unjust enrichment claims are not categorically preempted by the Copyright Act. California law recognizes a right to disgorgement of profits resulting from unjust enrichment, even where an individual has not suffered a corresponding loss." C. Section 17200 Claim The Plaintiffs allege the Android Search App violates Section 17200 of California's Unfair Competition Law ("UCL"), which prohibits business practices that are "unlawful, unfair, or fraudulent." They bring their claim under only the first two prongs: Unlawful and unfair. As to the unlawful business practices prong, the Plaintiffs allege that the "Defendant placed nonconsensual advertisements on their websites without compensation in violation of the common law doctrines of implied-in-law contract and unjust enrichment, and by trespassing on the Plaintiffs' websites in violation of the common law prohibition against trespass to chattels." As to the unfair business practices prong, the Plaintiffs allege that Google's conduct is "immoral, unethical, oppressive, unscrupulous, unconscionable and substantially injurious to them." The Plaintiffs also allege that Google's conduct is contrary to public policy as well as the common law, and the harm it caused (and threatens to continue to cause) outweighs its utility, if any. Judge Davila holds that the Plaintiffs' UCL claim, as pled under the unlawful prong, survives because the trespass to chattels and the breach of implied contract/unjust enrichment may serve as the predicate for the claim. The Judge also holds that the Plaintiffs are not consumers of the product that has caused the alleged injury, the Google Search App. In the context of the case, the consumers are Android phone users who search the Internet for content. Hence, the UCL claim, as pled under the unfair prong, is dismissed. D. First Amendment Defense Finally, Google argues that the First Amendment prohibits the Plaintiffs' attempts to control what information is displayed to users when they access the Plaintiffs' websites. In response, the Plaintiffs contend that their First Amendment rights as website publishers are paramount and that Google has no right to force its own messages onto their websites. The First Amendment states that "Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." The First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say. The Free Speech Clause of the First Amendment "can serve as a defense in state tort suits. In the context of the Internet, courts have recognized that search-engine results may constitute speech protected by the First Amendment. Thus, a company such as Google cannot be compelled to place ads in "prominent places" on its search engine results. The Plaintiffs complain that after users see Google's search results and then choose to link to their proprietary websites, the users see unpaid-for Google ads on their webpages that entice and redirect those users to Best Carpet's competitors' or naysayers' websites in order to generate profits for Google. Furthermore, the First Amendment defense is not absolute. The Plaintiffs allege that Google's leaderboard and banner ads are commercial speech that misleadingly imply that they endorse Google's ads or were compensated by Google for placing the ads. Therefore, if the Plaintiffs prevail in this suit, Google can be enjoined from tethering similar ads to their websites in the future. Relatedly, Google argues that Android users' have a "right to hear" -- the right to receive information -- that is "no less protected by the First Amendment than Google's right to speak. However, this right is "a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom." In the case, it is the Android users who are the recipients of the advertising, not Google. The "right to hear" does not provide Google a defense against the Plaintiffs' claims. Conclusion Judge Davila granted Google's motion to dismiss as to the UCL claim under the unfair prong and denied in all other respects. The UCL claim under the unfair prong is dismissed without leave to amend. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/4sjskmyc from Leagle.com. GRAMMER INDUSTRIES: Court Narrows Claims in Walton Class Suit ------------------------------------------------------------- In the class action lawsuit captioned as DARREN WALTON, on behalf of those similarly situated, v. GRAMMER INDUSTRIES INC, Case No. 2:20-cv-12298-TGB-RSW (E.D. Mich.), the Hon. Judge Terrence G. Berg entered an order granting in part and denying in part the Defendant's Motion to dismiss. The court will grant Defendant Grammer's motion to dismiss Count One, Count Two, and Count Three. The Court will deny Defendant's Motion to Dismiss Count Four. The Court concludes that the Article III standing inquiry is logically subsumed within the class certification question. The Court further concludes that, because Plaintiff has failed to adequately allege that Grammer had knowledge of the defect, Plaintiff has not stated a claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law. For the same reason, Plaintiff has not sufficiently alleged that the fraudulent concealment doctrine should toll the statute of limitations as to Plaintiff's claims for breach of an implied warranty and violation of the Magnuson-Moss Warranty Act. The Court further concludes that Plaintiff has alleged a plausible unjust enrichment claim. If Plaintiff believes he can revive his dismissed claims by filing an Amended Complaint addressing the deficiencies identified in this Order, he may request leave to do so. Any such request should be made within 45 days of the date of this Order, Judge Berg says. This case arises out of an allegedly defective part incorporated into car seat headrests used in Chrysler vehicles. The headrests are made with a safety feature that causes them to spring forward to protect the occupant’s head and neck in the event of a sudden rear-end impact. A component within the headrest is allegedly made of "cheap" plastic, wears out easily, and when it fails the headrest can spring forward unexpectedly and potentially injure the driver or passenger. The complaint by Plaintiff generally alleges that Defendant Grammer Industries manufactured and sold these headrests for integration into certain vehicles manufactured by nonparty Chrysler. The Plaintiff alleges four causes of action: (1) violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"); (2) violation of the Magnuson-Moss Warranty Act ("MMWA"); (3) breach of the implied warranty of merchantability; and (4) unjust enrichment. A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3Bkoaf6 at no extra charge.[CC] GRAND VIEW: Attorneys Assist Tenants to Fill Out Claim Forms ------------------------------------------------------------ KSBY reports that attorneys met with former Grand View Apartments tenants on Sept. 26 to help fill out claim forms. This comes as legal teams believe there are about 250 tenants eligible to receive compensation. The assistance took place at the Paso Robles Downtown City Park from 2 p.m. to 4:30 p.m. Law officials encouraged all tenants will to provide documentation of their residency in order to fill out the claim forms, which could be a copy of their lease, canceled checks or receipts from apartment management, a utility bill or mail received at Grand View. "We had rodents that lived among us, we had cockroaches, we had bed bugs, there was extreme mold in the departments and just bad plumbing," described Francisco Ramirez, a former tenant at Grand View Apartments. Attorneys representing former residents of the Grand View reached a $4 million settlement after filing a lawsuit over the living conditions at the complex. The 54-unit complex on Spring Street was infested with roaches and bedbugs and tenants said their complaints about water leaks, flooding, broken windows, sewage backups, malfunctioning appliances, and a lack of functioning smoke detectors, among other issues, were not properly addressed. In 2019, the San Luis Obispo Legal Assistance Foundation (SLOLAF) and attorney Allen Hutkin of the Hutkin Law Firm filed a class-action lawsuit against the apartment complex owners on the renters' behalf. After a judge ordered the owners to stop collecting rent from the tenants, the property was sold and everyone had to move out. SLOLAF, People's Self-Help Housing, Paso Robles Housing Authority, and the Housing Authority of San Luis Obispo assisted in finding new housing for most of the tenants. The new owners renovated the property, which is now called Vista Robles. Now, anyone who lived at the apartment complex during that time can submit a claim to receive part of that $4 million settlement. [GN] GREG STEPHEN: Judge OKs Class Action Lawsuit Over Sexual Abuse -------------------------------------------------------------- kmch.com reports that a federal judge has approved a class action lawsuit filed by a former player against a former coach from Monticello. 44-year old Greg Stephen was sentenced to 180 years in federal prison two years ago. He pleaded guilty to five counts of sexual exploitation of a child and one count each of possession of child pornography and transportation of child pornography. Stephen admitted to possessing nude photos and videos of 400 boys, including former players and their friends. The lawsuit accuses Stephen of intruding on the privacy of more than 400 boys by secretly or deceptively recording them undressing, showering and performing sexually explicit acts from 2005 to 2018. In addition to suing Stephen, the former player is suing the Barnstormers, the team sponsor Adidas and the Amateur Athletic Union. The judge ruled that all present and former members of the Iowa Barnstormers youth basketball program can join the lawsuit. The civil trial is scheduled for January 10th in U.S. District Court in Davenport. [GN] INNOVAGE HOLDING: Glancy Prongay Discloses Securities Class Action ------------------------------------------------------------------ Glancy Prongay & Murray LLP ("GPM"), a national investor rights law firm, continues its investigation on behalf of InnovAge Holding Corp. ("InnovAge" or the "Company") (NASDAQ: INNV) investors concerning the Company and its officers' possible violations of the federal securities laws. If you suffered a loss on your InnovAge investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/innovage-holding-corp/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On September 21, 2021, after the market closed, InnovAge revealed that the Centers for Medicare and Medicaid Services ("CMS") had "determined to freeze new enrollments at [the Company's] Sacramento center based on deficiencies detected in [a recent] audit." The Company stated that these "deficiencies relate to failures to provide covered services, provide accessible and adequate services, manage participants' medical situations, and oversee use of specialists, among others." On this news, the Company's stock price fell $2.90, or nearly 25%, to close at $8.75 per share on September 22, 2021, thereby injuring investors. Whistleblower Notice: Persons with non-public information regarding InnovAge should consider their options to aid the investigation or take advantage of the SEC Whistleblower Program. Under the program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Charles H. Linehan at 310-201-9150 or 888-773-9224 or email shareholders@glancylaw.com. About GPM Glancy Prongay & Murray LLP is a premier law firm representing investors and consumers in securities litigation and other complex class action litigation. ISS Securities Class Action Services has consistently ranked GPM in its annual SCAS Top 50 Report. In 2018, GPM was ranked a top five law firm in number of securities class action settlements, and a top six law firm for total dollar size of settlements. With four offices across the country, GPM's nearly 40 attorneys have won groundbreaking rulings and recovered billions of dollars for investors and consumers in securities, antitrust, consumer, and employment class actions. GPM's lawyers have handled cases covering a wide spectrum of corporate misconduct including cases involving financial restatements, internal control weaknesses, earnings management, fraudulent earnings guidance and forward looking statements, auditor misconduct, insider trading, violations of FDA regulations, actions resulting in FDA and DOJ investigations, and many other forms of corporate misconduct. GPM's attorneys have worked on securities cases relating to nearly all industries and sectors in the financial markets, including, energy, consumer discretionary, consumer staples, real estate and REITs, financial, insurance, information technology, health care, biotech, cryptocurrency, medical devices, and many more. GPM's past successes have been widely covered by leading news and industry publications such as The Wall Street Journal, The Financial Times, Bloomberg Businessweek, Reuters, the Associated Press, Barron's, Investor's Business Daily, Forbes, and Money. [GN] JPMORGAN CHASE: To Pay $15.7 Million to Settle Spoofing Class Suit ------------------------------------------------------------------ Chris Prentice and Jonathan Stempel at insurancejournal.com reports that JPMorgan Chase & Co. agreed to pay $15.7 million in cash to settle a class action lawsuit by investors who accused the largest U.S. bank of intentionally manipulating prices of U.S. Treasury futures and options. The settlement disclosed stemmed from sprawling U.S. government investigations into illegal trading in futures and precious metals markets, known as spoofing. JPMorgan did not admit wrongdoing in agreeing to the settlement, which covers traders in Treasury futures and options from April 2008 to January 2016 and requires approval by a federal judge in Manhattan. Last September, JPMorgan entered a deferred prosecution agreement and agreed to pay $920 million, including a $436 million criminal fine, to settle U.S. government probes into spoofing in Treasuries and precious metals. The bank also agreed to self-report future violations. Spoofing is a practice in which traders place orders they intend to cancel, hoping to move prices to benefit their market positions. The Justice Department has employed sophisticated data analysis tools to spot potential spoofing that it could not previously detect. The $15.7 million payout would recover less than one-third of the estimated classwide damages, a court filing shows. Lawyers for the traders plan to seek up to one-third of the settlement, or about $5.2 million, to cover legal fees. [GN] KENNEDY ENDEAVORS: Maeda's Bid to Exclude Butler Testimony Denied ----------------------------------------------------------------- In the case, MICHAEL MAEDA and RICK SMITH, individually and on behalf of all others similarly situated, et al., Plaintiffs v. KENNEDY ENDEAVORS, INC., et al., Defendants, Civil No. 18-00459 JAO-WRP (D. Haw.), Judge Jill A. Otake of the U.S. District Court for the District of Hawaii denies the Plaintiffs' Renewed Motion to Exclude Testimony of Defendant's Expert Sarah Butler. Background The action arises out of the sale and marketing of Defendant Kennedy's Hawaiian Kettle Style Potato Chips in Original, Luau BBQ, and Sweet Maui Onion flavors (collectively, "Hawaiian Snacks"). Plaintiffs Maeda and Smith allege that they purchased certain varieties of these snacks due to false and deceptive labeling, packaging, and advertising, which misled them into believing that the snacks are made in Hawai'i from local ingredients. Mr. Maeda and formerly named Plaintiff Iliana Sanchez commenced the action on Oct. 12, 2018 in the Hawai'i Circuit Court of the First Circuit. Defendant Pinnacle Foods Inc. subsequently removed the action on Nov. 23, 2018. On May 10, 2019, the Court issued an Order Granting in Part and Denying in Part Defendant Pinnacle Foods Inc.'s Motion to Dismiss Plaintiffs' Class Action Complaint, which (1) dismissed Sanchez's claims for lack of personal jurisdiction; (2) dismissed with prejudice the "Made in Hawaii" claim; (3) dismissed with leave to amend the Hawai'i Revised Statutes ("HRS") Chapter 480, California consumer protection, breach of warranty, and fraud/intentional misrepresentation claims; (4) denied the Motion to Dismiss as to the jurisdictional challenges to the unnamed non-resident class members; and (5) denied the Motion to Dismiss as to the Hawai'i false advertising, negligent misrepresentation, quasi-contract/unjust enrichment/restitution claims, and the request for injunctive relief ("Maeda I"). The Court granted the Plaintiffs until June 10, 2019 to file an amended pleading in conformance with the Order. The Plaintiffs timely filed a first amended complaint, adding Smith and a Hawai'i Uniform Deceptive Trade Practices Act ("UDTPA") claim. The Court struck that filing for violating the Order but allowed Plaintiffs to file another first amended complaint that conformed with the Order. Maeda subsequently filed a corrected First Amended Class Action Complaint ("FAC"). Mr. Maeda then filed a Motion for Leave to File Second Amended Class Action Complaint. The Magistrate Judge granted the motion for good cause, noting the lack of opposition. On July 17, 2019, the Plaintiffs filed their Second Amended Class Action Complaint ("SAC"). The Plaintiffs maintain that although the Hawaiian Snacks are manufactured in Algona, Washington, the Defendant markets them in such a manner as to mislead consumers into believing that they were manufactured in Hawai'i. The SAC asserts the following claims: (1) violation of Hawaii's Unfair Deceptive Acts or Practices Statute ("UDAP"), HRS Chapter 480 (Count 1); (2) violation of Hawaii's false advertising law, HRS Section 708-871 (Count 2); (3) violation of UDTPA, HRS Chapter 481A (Count 3); (4) violation of California's Consumers Legal Remedies Act ("CLRA"), Cal. Civil Code Section 1750 (Count 4); (5) violation of California's unfair competition law ("UCL"), Cal. Bus. & Pros. Code Section 17200 (Count 5); (6) violation of California's false advertising law ("FAL"), Cal. Bus. & Pros. Code Section 17500 (Count 6); (7) common law fraud/intentional misrepresentation (Count 7); (8) negligent misrepresentation (Count 8); and (9) quasi-contract/unjust enrichment/restitution (Count 9). The three proposed classes identified by the Plaintiffs are as follows: a. Hawai'i Class: All persons, who, within the relevant statute of limitations period, purchased any of the Hawaiian Snacks, in the State of Hawai'i. b. California Class: All persons, who, within the relevant statute of limitations period, purchased any of the Hawaiian Snacks, in the State of California. c. California Consumer Subclass: All persons, who, within the relevant statute of limitations period, purchased any of the Hawaiian Snacks for personal, family, or household purposes, in the State of California. The class periods span from Oct. 12, 2012, to Dec. 31, 2019. In their prayer for relief, the Plaintiffs request: a declaration that Defendant's conduct violates the law, injunctive and other equitable relief, restitution, damages, punitive damages, treble damages, attorneys' fees and costs, and pre- and post-judgment interest. On July 31, 2019, the Defendant filed a Motion to Dismiss the Plaintiffs' Second Amended Class Action Complaint Filed on July 17, 2019. On Sept. 19, 2019, the Court granted in part and denied in part the motion ("Maeda II"). It dismissed the California consumer protection claims (Counts 4 to 6) and dismissed with leave to amend the UDTPA claim (Count 3). The Court declined to dismiss the UDAP (Count 1), Hawai'i false advertising (Count 2), fraud/intentional misrepresentation (Count 7), negligent misrepresentation (Count 8), and quasi-contract/unjust enrichment (Count 9) claims, and denied the Defendant's standing challenge regarding unpurchased Hawaiian Snacks. The Plaintiffs did not amend the SAC even though the Court permitted them to do so. Therefore, the Plaintiffs' UDAP, Hawai'i false advertising, fraud/intentional misrepresentation, negligent misrepresentation, and quasi-contract/unjust enrichment claims remain. On Nov. 30, 2020, the Plaintiffs filed a Motion for Class Certification. On Feb. 22, 2021, the Defendant filed three motions -- Motion to Strike Plaintiff Michael Maeda's "Sham" Deposition Testimony; Motion to Exclude the Testimony of Plaintiffs' Expert J. Michael Dennis; and Motion to Exclude the Testimony of Plaintiffs' Expert Stefan Boedeker. On April 2, 2021, the Plaintiffs filed three motions -- Motion to Exclude Testimony of Defendant's Expert Sarah Butler; Motion to Strike ECF No. 118-20; and Motion to Exclude Testimony of Defendant's Expert Andrew Y. Lemon. On June 23, 2021, the Court denied the foregoing motions. On June 30, 2021, the Defendant filed a Renewed Motion to Strike Plaintiff Michael Maeda's "Sham" Deposition Testimony and the Plaintiffs filed an Ex Parte Motion to Stay Pending Rule 23(f) Petition. The Court denied the Ex Parte Motion to Stay. On July 16, 2021, the parties filed the motions that are the subject of the Order: (1) the Plaintiffs' Renewed Motion to Exclude Testimony of Defendant's Expert Sarah Butler; (2) the Plaintiffs' Renewed Motion to Exclude Testimony of Defendant's Expert Andrew Y. Lemon; and (3) the Defendant's Motion to Exclude Plaintiffs' Expert Stefan Boedeker. They filed oppositions on Aug. 2, 2021 and replies on Aug. 9, 2021. The Court held a hearing on Sept. 22, 2021. Discussion A. Defense Expert Sarah Butler The Plaintiffs move to exclude Sarah Butler's testimony on relevance grounds. They argue that while Butler attempted to measure the importance of the attribute "Manufacturing Location" and its relative importance, she did not measure the importance of the belief that the Hawaiian Snacks are from Hawai'i, which is the relevant test for materiality. The Defendant counters that Butler in fact conducted a two-part consumer survey: (1) a MaxDiff exercise that measured how important the manufacturing location of kettle style chips was to consumers in comparison to other "important purchase drivers" and (2) a revised referendum exercise ("RRE") that measured whether a consumer's belief that the chips were made in Hawai'i influenced purchasing decisions. Judge Otake denies the Plaintiffs' motion to exclude to the extent it seeks exclusion on relevance grounds. She finds that (i) the Plaintiffs' failure to discuss or challenge the RRE in the motion; (ii) the Plaintiffs' relevance argument necessarily fails, whether applied to the MaxDiff, the RRE, or both; and (iii) the Plaintiffs clearly disagree with Butler's conclusions, but the Court's role in evaluating relevance is limited to whether Butler's testimony would assist a jury, not whether she is correct. And Even if she were to find merit in the Plaintiffs' criticisms of the MaxDiff, Judge Otake finds that the challenges pertain to "methodology, survey design, reliability, and critique of conclusions,' and therefore 'go to the weight of the survey rather than its admissibility.' She accordingly denies the Plaintiffs' motion to exclude. B. Plaintiffs' Expert Stefan Boedeker The Defendant moves to exclude Boedeker on the bases that the Court already rejected his damages model in denying class certification and his conjoint methodology is flawed. Because the Plaintiffs withdrew Boedeker as an expert with respect to individual damages and they will not rely on his report or call him as a witness (assuming the case proceeds only as to the Plaintiffs), the motion is denied as moot. C. Defense Expert Dr. Andrew Y. Lemon The Plaintiffs ask the Court to exclude key findings numbers 8 and 9 from Dr. Andrew Y. Lemon's report. These findings address Boedeker's conjoint analysis, among other things. Because the Plaintiffs have withdrawn Boedeker as an expert regarding individual damages, Dr. Lemon will have no reason to address Boedeker's findings. The Plaintiffs' motion to exclude is therefore denied as moot. Conclusion In accordance with the foregoing, Judge Otake denies the Plaintiffs' Renewed Motion to Exclude Testimony of Defendant's Expert Sarah Butler. She denies as moot the Plaintiffs' Renewed Motion to Exclude Testimony of Defendant's Expert Andrew Y. Lemon and the Defendant's Motion to Exclude Plaintiffs' Expert Stefan Boedeker. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/2hpdda7s from Leagle.com. KNOX COUNTY, TX: Must Enforce Mask Rule in Schools, Judge Rules --------------------------------------------------------------- Alexandra E. Petri, writing for The New York Times, reports that two federal judges in Tennessee have dealt blows to Gov. Bill Lee's executive order that allows families to opt out of school mask mandates, ruling in separate cases on Sept. 24 that local districts could require face coverings to protect children with disabilities while legal challenges progress through the courts. It was the third time in the past two weeks that a judge had suspended the governor's order after parents of special education students filed lawsuits charging the order violates the Americans with Disabilities Act. Earlier in September, the Knox County Board of Education had voted against requiring masks in its schools, bucking guidance from local and federal health officials. The following day, families who have children with disabilities filed a class-action lawsuit, arguing that the school board's decision did not create a safe, in-person learning environment for children during the coronavirus pandemic. On Sept. 24, US District Judge J. Ronnie Greer, of the Eastern District of Tennessee, ruled that schools in Knox County must enforce a mask rule in order to help protect children with health problems while the lawsuit is pending. He prohibited the governor from imposing his order until the legal battle is settled. A similar decision was handed down by US District Judge Waverly Crenshaw, of the Middle District of Tennessee, who said on Sept. 24 that schools in Williamson County and in the Franklin Special School District can enforce mask mandates, also blocking the governor's order. Both school systems implemented strict mask policies through at least January to combat surging infections in their districts, but Lee's order, issued Aug. 16, forced the school officials to amend their rules to let students forgo masks, no questions asked. Once again, parents of special education students filed a lawsuit, arguing that letting some students ignore the mask rules violated the rights of special education children. A third federal judge, this time in the western part of the state, indefinitely blocked the governor's order in Shelby County, saying it was an impediment to children with health problems from safely going to school during the coronavirus pandemic. Lee's order is set to expire Oct. 5, and he told reporters that he has not yet decided whether to renew it. [GN] KONINKLIJKE PHILIPS: Court Stays Norman Suit Pending JPML Ruling ---------------------------------------------------------------- In the case, JAMES H. NORMAN, individually and on behalf of all others similarly situated, Plaintiff v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA, LLC; and PHILIPS RS NORTH AMERICA, LLC, Defendants, Case No. CV 121-131 (S.D. Ga.), Judge J. Randal Hall of the U.S. District Court for the Southern District of Georgia, Augusta Division, granted the Philips Defendants' motion to stay proceedings pending a decision by the Judicial Panel on Multidistrict Litigation. Background The Plaintiff filed the class action suit against the named Defendants alleging numerous claims involving recalled medical devices. The Philips Defendants represent that there are "more than 60 other lawsuits making similar allegations concerning the recall and asserting similar claims" that have been filed and that similar suits continue to be filed across the country. Due to this, a plaintiff in another case filed a motion for transfer and coordination or consolidation with the JPML, requesting to centralize all of the suits, including this one. Before the Court is the Philips Defendants' motion to stay proceedings pending a decision by the JPML. Discussion The Philips Defendants have set forth strong arguments about the benefits of a stay in the case. A stay will save judicial resources because the multidistrict litigation could avoid duplicative pretrial practices and promote judicial economy by consolidating discovery efforts. Further, they argue that since the JPML briefing was completed in August 2021, a decision will probably be made soon, so the stay will "likely be very brief and will not prejudice Plaintiffs." The Philips Defendants have conferred with opposing counsel who indicated the Plaintiffs do not oppose the motion; however, they do intend to file an amended complaint and a waiver of summons for Defendant Koninklijke Philips N.V., which they ask to not be precluded by any stay. Judge Hall is satisfied that since the case is still in its preliminary stages, a stay pending the JPML decision would conserve judicial resources and be in the best interest of the Parties. Accordingly, the matter is stayed pending the ruling of the JPML. The stay will not prevent the Plaintiffs from filing an amended complaint or a waiver of summons. Conclusion Based on the foregoing, Judge Hall granted the Philips Defendants' motion to stay and directed the Clerk is directed to stay all proceedings in the case. The Parties will file an update with the Court within seven days of a decision by the JPML as to the motion for transfer and coordination or consolidation. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/3mhmj3uw from Leagle.com. KONINKLIJKE PHILIPS: Penderghest Sues Over Defective Ventilators ---------------------------------------------------------------- TIFFANY HOOD-PENDERGHEST, LISA FLAX, and BRIAN VARDARO, on behalf of themselves and all others similarly situated v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA LLC; and PHILIPS RS NORTH AMERICA LLC, Case No. 21-17401 (D.N.J., Sept. 23, 2021) is a class action seeking to recover damages based on Philips' breach of express warranty, breach of implied warranties, misrepresentations, omissions, and breaches of state consumer protection laws in connection with its manufacture, marketing and sales of Continuous Positive Airway Pressure (CPAP) and Bi-Level Positive Airway Pressure (Bi-Level PAP) devices and mechanical ventilators containing polyester-based polyurethane sound abatement foam (PE-PUR foam). On June 14, 2021, Philips recalled its CPAP, Bi-Level PAP, and mechanical ventilator devices containing PE-PUR Foam via a recall notice. Philips recommended that patients using the recalled CPAP and Bi-Level PAP devices immediately discontinue using their devices and that patients using the recalled ventilators for life-sustaining therapy consult with their physicians regarding alternative ventilator options. The Plaintiffs did not learn of the Recall until weeks after it was issued, says the suit. The Plaintiffs seek medical monitoring damages for users of Philips' devices identified in the Recall Notice, who are at risk of suffering from serious injury, including irritation, inflammatory response, headache, asthma, adverse effects to other organs and toxic carcinogenic affects. Koninklijke Philips NV is a health technology company focused on improving people's health across the health continuum from healthy living and prevention, to diagnosis, treatment, and home care. The Company offers products and services in diagnostic imaging, image-guided therapy, patient monitoring and health informatics, as well as in consumer health and home care.[BN] The Plaintiffs are represented by: Simon B. Paris, Esq. Patrick Howard, Esq. SALTZ MONGELUZZI & BENDESKY, PC 1650 Market Street, 52nd Floor One Liberty Place Philadelphia, PA 19103 Telephone: (215) 496-8282 Facsimile: (215) 754-4443 E-mail: sparis@smbb.com phoward@smbb.com - and - Francesco P. Trapani, Esq. KREHER & TRAPANI LLP Two Penn Center Plaza, Suite 900 1500 JFK Boulevard Philadelphia, PA 19102 Telephone: (215) 907-7289 Facsimile: (215) 907-7287 E-mail: frank@krehertrapani.com KONINKLIJKE PHILLIPS: Faruqi & Faruqi Reminds of Oct. 15 Deadline ----------------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, is investigating potential claims against Koninklijke Phillips NV ("Koninklijke" or the "Company") (NYSE: PHG) and reminds investors of the October 15, 2021 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you suffered losses exceeding $50,000 investing in Koninklijke stock or options between February 25, 2020 and June 11, 2021 and would like to discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You may also click here for additional information: www.faruqilaw.com/PHG. Cannot view this image? Visit: https://orders.newsfilecorp.com/files/6455/97669_4800ebec349fc89a_001.jpg There is no cost or obligation to you. Faruqi & Faruqi is a leading minority and Woman-owned national securities law firm with offices in New York, Delaware, Pennsylvania, California and Georgia. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that: (1) Philips had deficient product manufacturing controls or procedures; (2) as a result, the Company's Bi-Level PAP and CPAP devices and mechanical ventilators were manufactured using hazardous materials; (3) accordingly, the Company's sales revenues from the foregoing products were unsustainable; (4) the foregoing also subjected the Company to a substantial risk of a product recall, in addition to potential legal and/or regulatory action; and (5) as a result, the Company's public statements were materially false and misleading at all relevant times. On June 14, 2021, Philips issued a voluntary recall of certain of its Bi-Level PAP and CPAP devices, as well as mechanical ventilators, after finding that the sound abatement foam used in the devices can degrade and become toxic, potentially causing cancer. On this news, Philips' stock price fell $2.25 per share, or 3.98%, to close at $54.25 per share on June 14, 2021. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding Koninklijke's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] LOANCARE LLC: McClellan Sues Over Mortgage Servicing Practices -------------------------------------------------------------- RYAN MCCLELLAN, AMBER GOINS, DORIS KANE, and JOSEPH KANE, on behalf of themselves and others similarly situated, Plaintiffs v. LOANCARE, LLC, Defendant, Case No. 2:21-cv-00546 (E.D. Va., Sept. 27, 2021) arises from the Defendant's illegal servicing practices and inaccurate credit reporting in violation of the Real Estate Settlement Procedures Act and the Fair Credit Reporting Act. The Plaintiffs' class claim involves LoanCare's systemic refusal to provide Plaintiffs and other class members with certain account records upon request, including servicing notes. The Plaintiffs also dispute LoanCare's inaccurate reporting with the credit bureaus. After LoanCare received notification of Plaintiffs' disputes, it failed to conduct an adequate investigation or correct its inaccurate reporting, says the suit. The Plaintiffs were mortgage borrowers and LoanCare was the servicer of the mortgage. LoanCare, LLC is a mortgage loan servicing company.[BN] The Plaintiffs are represented by: Leonard A. Bennett, Esq. Drew D. Sarrett, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 763 J. Clyde Morris Blvd., Suite 1-A Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: lenbennett@clalegal.com drew@clalegal.com - and - Kristi C. Kelly, Esq. Andrew J. Guzzo, Esq. Casey S. Nash, Esq. Pat McNichol, Esq. KELLY GUZZO, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Telephone: (703) 424-7572 Facsimile: (703) 591-0167 E-mail: kkelly@kellyguzzo.com aguzzo@kellyguzzo.com casey@kellyguzzo.com at@kellyguzzo.com LONGFIN CORP: Malik Securities Class Suit Terminated as of Aug. 11 ------------------------------------------------------------------ Judge Denise Cote of the U.S. District Court for the Southern District of New York terminated the case, MOHAMMAD MALIK, Plaintiff v. LONGFIN CORP., et al., Defendants, Case No. 18cv4953 (DLC) (S.D.N.Y.), as of Aug. 11, 2020. On Aug. 11, 2020, the Court entered final judgment in the consolidated case In Re Longfin Corp. Securities Class Action Litigation, 1:18-cv-02933-DLC, of which the captioned action was a member case. The Clerk of Court is directed to close the case. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/485yf9fz from Leagle.com. LUZERNE COUNTY, PA: Kids for Cash Scandal Lawsuit Ongoing --------------------------------------------------------- Stacy Lange, writing for The News Station, reports that the infamous Kids for Cash scandal will again play out in a courtroom in our area. A federal judge in Wilkes-Barre is scheduled to hear testimony in a long-awaited civil hearing against the two judges at the center of the scandal. Testimonies were set to start on September 27, 2021. Ten years ago, former Luzerne County Judge Mark Ciavarella was part of a high-profile corruption trial now infamously known as "Kids for Cash." Ciavarella is still locked up and won't be in the courtroom when the civil part of the case moves forward. RELATED: No compassionate release for Ciavarella It's unclear whether his co-defendant and fellow former Judge Michael Conahan will be there - he was released from prison last year due to COVID-19 concerns. Plaintiffs in a class-action lawsuit against the two judges have been waiting since 2009 to have their testimony heard. More than 300 people are scheduled to take the stand during the hearing that could last for weeks at the federal courthouse in Wilkes-Barre. "Kids for Cash" got its name because of the judges' arrangement to send juvenile defendants to for-profit detention centers for kickbacks of cash. Prosecutors said the pair made close to $3 million in the scheme. Now -- the plaintiffs in the civil case can argue for financial damages. The hundreds of plaintiffs are former juvenile defendants sentenced by the judges and their parents. Many of those plaintiffs have already settled with the two other defendants in the Kids for Cash case. [GN] M AND E PIZZA: Little Sues Over Drivers' Unreimbursed Expenses -------------------------------------------------------------- JENNIFER LITTLE, individually and on behalf of similarly situated persons v. M and E Pizza, LLC and EDWARD W. TREACY III, Case No. 1:21-cv-01651-CCC (M.D. Pa., Sep. 27, 2021) is a collective action under the Fair Labor Standards Act to recover unpaid minimum wages and overtime hours owed to the Plaintiff and similarly situated employees employed by the Defendants at their Domino's stores. The complaint alleges that the Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of rermbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, Defendants use a flawed method to determine reimbursement rates that provide such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks. The Plaintiff was employed by Defendants from October 2004 to July 2020 as a delivery driver at Defendants' Domino's store located in York, Pennsylvania. The Defendants operate numerous Domino's Pizza franchise stores.[BN] The Plaintiff is represented by: Patrick Howard, Esq. SALTZ MONGELUZZI & BENDESKY, P.C. 120 Gibraltar Road, Suite 218 Horsham, PA 19044 Telephone: (215) 496-8282 Facsimile: (215) 754-4443 MASTER BUILDERS: Court Approves Settlement Deal in D'Aquin Suit --------------------------------------------------------------- In the class action lawsuit captioned as KEVIN D'AQUIN, ET AL., MASTER BUILDERS & CONTRACTORS, LLC, ET AL., Case No. 2:21-cv-00126-CJB-KWR (E.D. La.), the Hon. Judge Carl J. Barbier entered an order: 1. granting the joint motion for court approval of settlement agreement and dismissal; 2. approving the Parties' settlement and directing consummation of its terms and provisions; 3. dismissing without prejudice the claims asserted by Plaintiffs in their representative capacity; 4. dismissing with prejudice the claims asserted by Plaintiffs in their individual capacity; and 5. denying the pending motion to certify class as moot. A copy of the Court's order dated Sept. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3a9Uvt3 at no extra charge.[CC] MDL 1869: BNSF Railway Brings Appeal to D.C. Cir. ------------------------------------------------- Defendants BNSF Railway Company, et al., filed an appeal from a court ruling entered in the multi-district litigation captioned IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION - MDL 1869, in the U.S. District Court for the District of Columbia. As previously reported in the Class Action Reporter, the case involves a putative class of over 16,000 shippers allegedly harmed by a price-fixing conspiracy among the nation's largest freight railroads. The lawsuit arises out of 18 antitrust actions consolidated by the Multidistrict Litigation Panel. The Defendants are the four largest freight railroads in the United States: BNSF Railway Company; CSX Transportation, Inc.; Norfolk Southern Railway Company; and Union Pacific Railroad Co. The Plaintiffs, who are their customers, allege that the railroads conspired to fix rate-based fuel surcharges. Railroads impose fuel surcharges -- additional charges above the base shipping price -- when the price of fuel rises above a certain trigger price. Rate-based surcharges are calculated as a percentage of the base shipping price. Following consolidation, the action was divided into one case involving direct purchasers and another involving indirect purchasers. All the Plaintiffs alleged that the railroads violated section 1 of the Sherman Act by conspiring to fix prices. The direct purchasers sought treble damages under section 4 of the Clayton Act, and the district court held that they stated a claim, In re Rail Freight Surcharge Antitrust Litig. The indirect purchasers sought injunctive relief under section 16 of the Clayton Act, and raised various state-law claims. The district court held that the state claims were preempted by federal law, but it declined to dismiss the federal claims. The Defendants now seek a review of the Court's Opinion and Order dated Feb. 19, 2021, denying Defendants' Motion to Exclude Interline-Related Communications from Consideration for Class Certification or Any Other Purpose Prohibited by 49 U.S.C. Section 10706 and Defendants' Motion and Memorandum of Law Regarding the Interpretation and Application of 49 U.S.C. Section 1070. The appellate case is captioned as In re: BNSF Railway Company, et al., Case No. 21-8002, in the United States Court of Appeals for the District of Columbia Circuit, filed on Aug. 19, 2021.[BN] MOHAWK INDUSTRIES: To File More Briefing on Remand Bid in Cruz Suit ------------------------------------------------------------------- In the case, NICO CRUZ, individually and on behalf of other members of the general public similarly situated, Plaintiff v. MOHAWK INDUSTRIES, INC., et al., Defendants, Case No. 1:20-cv-01510-NONE-EPG (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California issued an order granting the Defendants leave to file supplemental briefing concerning motion to remand. Plaintiff Cruz filed a putative class-action complaint in the Fresno County Superior Court against Defendants Mohawk Industries, Inc., Daltile Services, Inc., Dal-Tile Services, Inc., and Dal-Tile Corporation on Sept. 14, 2020. The Defendants removed the action to the Court on Oct. 23, 2020, invoking federal jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"). On Nov. 23, 2020, the Plaintiff filed a motion to remand. The Defendants filed an opposition and a request for judicial notice on Dec. 30, 2020. The Plaintiff did not file a reply brief. Judge Drozd has conducted a preliminary analysis and is inclined to grant the Plaintiff's motion to remand. He says, the Defendants have established by a preponderance of the evidence, that the amount in controversy with respect to the Plaintiff's first, second, third, fourth (as to unpaid wages and liquidated damages), and ninth causes of action are, cumulatively, $4,109,869. The Defendants' calculations for Plaintiff's fourth (as to penalties), fifth, and seventh causes of action assume a 100% violation rate. That assumption is impermissible given the Plaintiff's pattern-and-practice allegations and the Defendants' failure to provide a rationale for such a violation rate. In addition, Judge Dorzd holds that the Defendants have not met their burden of showing that the Court should assume the Plaintiff will be entitled to an additional 35% for attorneys' fees. They are attempting to show the amount in controversy based not on a potential settlement but on what the prospective class might receive if successful on the merits. Thus, noting that the Plaintiff's counsel has asked to be awarded a portion of a settlement fund as attorneys' fees does not meet the Defendants' evidentiary burden in this regard. Judge Drozd also holds that the Defendants do not provide proposed amounts in controversy as to the Plaintiff's sixth, eighth and tenth causes of action, and they have requested an order granting leave to file supplemental briefing if helpful to the court. The Court "has broad discretion to allow parties to supplement the record." Judge Drozd finds that the interests of justice will be served by permitting the supplemental filing in this instance. The Defendants may file supplemental briefing concerning only the above-mentioned causes of action and issues within 30 days. The Plaintiff may file a reply brief concerning only the supplemental briefing within 14 days thereafter. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/yy3c3pyj from Leagle.com. NAT'L COLLEGIATE: Denies Motion to Dismiss College Athletes' Suit ----------------------------------------------------------------- Michael McCann, writing for Yahoo!Sports, reports that in a recent ruling that advances the prospect of college athletes gaining recognition as employees, Pennsylvania federal judge John Padova denied the NCAA's motion to dismiss a lawsuit brought by Ralph "Trey" Johnson and five other current and former athletes. Judge Padova issued the denial in Johnson v. NCAA on Sept. 22. In August he denied a motion to dismiss filed by those players' five schools (Villanova, Fordham, Sacred Heart, Cornell and Lafayette). Those schools and the NCAA are co-defendants in a case that could eventually become certified as a class action. A 173-page amended complaint filed on Sept. 23 expanded the roster to 14 current and former players who are suing (seven women and seven men). Correspondingly, the list of attended school defendants was enlarged to add Duke, Notre Dame, Oregon, Arizona, Penn, Purdue, Tulane, Marist and Drexel. The NCAA insists these players lack standing to sue since the NCAA doesn't employ them. Judge Padova disagreed. He found the players' arguments "plausible" and thus legally sufficient to advance past a motion to dismiss. To that point, the players contend they are employees under both state law and the Fair Labor Standards Act, a federal law that guarantees minimum wage and overtime pay. The FLSA is separate from the National Labor Relations Act, which was invoked by Northwestern football players in their unsuccessful effort in the mid-2010s to be declared employees. The NCAA's core argument rests in precedent. In Dawson v. NCAA (2019), the U.S. Court of Appeals for the Ninth Circuit held that college football players at PAC-12 schools weren't FLSA employees of either the NCAA or PAC-12. Those football players, the Ninth Circuit reasoned, lacked an expectation of compensation. The NCAA also functions as regulator of college sports, not an employer of those who compete in college sports. The NCAA also draws from Callahan v. City of Chicago (2017), which involved a taxi driver claiming that because the city's taxi regulations were "so extensive," the city "must be treated as her employer." The U.S. Court of Appeals for the Seventh Circuit disagreed, reasoning that such an outcome would nonsensically "produce multiple employers for every worker -- for the United States, the State of Illinois, Cook County and other governmental bodies permit taxi drivers to work in the same sense as Chicago does." In other words, the government permitting people to work in a particular occupation doesn't convert the government into their employer. Analogously, the NCAA allowing college athletes to play intercollegiate sports doesn't convert the NCAA into their employer. Judge Padova downplayed those two cases. First, neither is from the federal circuit (the Third) governing Judge Padova's judicial district. Those rulings are thus persuasive authority, not binding precedent. Second, the judge emphasized how Dawson and Johnson are "not identical" and each features distinguishable arguments and facts. Third, he underscored that Callahan involved the City of Chicago as a defendant whereas the NCAA "is not a governmental entity." The relevant legal test, Judge Padova identified, is from In re Enterprise Rent-A-Car, a case from the U.S. Court of Appeals for the Third Circuit in 2012. In re Enterprise involved branch managers of a national chain arguing that the parent company was their joint employer under the FLSA. The Third Circuit identified four factors for determining if two entities are joint employers of the same person. The first factor is whether the defendant has authority to hire and fire the workers. Judge Padova found the NCAA possesses substantial employer-like powers, including in ways that resemble the authority to hire and fire. For instance, NCAA bylaws tightly restrict the recruiting process, such as by limiting the number of telephone calls and communications with recruits as well as forbidding inducements. The bylaws also constrict scholarships. In addition, they contemplate penalties for non-complying member schools and -- the judge stressed -- "require member schools to suspend or fire student athletes who are determined to be ineligible to play by NCAA Enforcement Staff." The second factor is authority to promulgate work rules and set workers' compensation, benefits and work schedules. Here again Judge Padova eyed the NCAA as functioning akin to an employer. NCAA bylaws govern eligibility, permissible and non-permissible benefits, and oversee athletes and schools adhering to what are known as "Countable Athletically Related Activities" or "CARA." CARA limits the number of hours college athletes can spend on sports, though some athletes contend they often exceed those hours. Most relevant here, the NCAA exercises authority by punishing schools which fail to follow CARA rules and related scheduling obligations. The third factor is involvement in day-to-day supervision. Judge Padova saw several ways the NCAA exercises such control. Among them: setting parameters for how member schools can discipline athletes; establishing specific grounds for when schools can reduce or cancel scholarships; and detailing procedures for reviews and appeals. The fourth factor is NCAA control of players' records. Judge Padova noted that the NCAA possesses record-keeping control through its eligibility center. Member schools must share various pieces of information with the center, including when a program is the target of an NCAA investigation. While Judge Padova declined to dismiss the FLSA claims against the NCAA, he did dismiss those claims against 20 additional named Division I universities, which none of the six players attended. Those schools include Princeton, Penn State, Pittsburgh, Rutgers and Temple. The case also involves unjust enrichment claims that remain in play against the different groups of defendants. A day after Judge Padova's ruling, the five attended schools (Villanova, Fordham, Sacred Heart, Cornell and Lafayette) filed a motion for leave to file an "interlocutory appeal." Such an appeal is a challenge to a pretrial ruling before the case has been decided on the merits. Interlocutory appeals seldom succeed, however, since appellate courts typically want the entire case resolved first. Here, the five schools (who were joined by the NCAA in their motion to dismiss brief) maintain that when Judge Padova denied their motion, he wrongly relied on U.S. Supreme Court Justice Brett Kavanaugh's concurrence in NCAA v. Alston. That often-discussed concurrence blasted NCAA rules limiting athlete compensation. The schools stress that Justice Kavanaugh's viewpoints should be regarded as dicta (that is, commentary non-essential to the holding) and not the law -- only the majority opinion, as authored by Justice Neil Gorsuch, governs. The schools also insist that Judge Padova failed to adequately consider Berger v. NCAA, a Seventh Circuit case from 2016 that found college athletes are amateurs, not employees. Moving forward, the players, as represented by attorneys Paul McDonald, Michael Willemin, Renan Varghese and others, still have a long road ahead before prevailing. Plus, any jury trial victory would almost certainly be appealed to the Third Circuit. However, as the case progresses, the attorneys can extract more evidence from the NCAA and demand sworn testimony on sensitive topics. Fresh off a 9-0 defeat in Alston, it will be worth watching whether the NCAA chooses to play the long legal game in Johnson or whether it "voluntarily" reforms college athletes' rights. [GN] NATHANIEL WOODS: Bid to Quash Writ of Garnishment in Bell Denied ---------------------------------------------------------------- In the case, KENNETH D. BELL, Plaintiff v. NATHANIEL WOODS, Defendant, Case No. 5:20-mc-10-JSM-PRL (M.D. Fla.), Magistrate Judge Philip R. Lammens of the U.S. District Court for the Middle District of Florida, Ocala Division, denied Woods' motion to dissolve writ of garnishment and motion to quash writ of garnishment. The case is before the Court for consideration of two motions filed by Defendant Woods: (1) motion to dissolve writ of garnishment; and (2) motion to quash writ of garnishment. Both motions pertain to the writs of garnishment recently issued in the case. Mr. Woods seeks to quash or dissolve the writs and contends that the Plaintiff has no right to enforce them because the foreign judgment in the case was assigned to another party. He also asserts a collateral challenge to the class action judgment that was registered in the Court to initiate the case. Judge Lammens holds that the procedure for dissolution of writs of garnishment is governed by Florida Statutes Section 77.047. Meanwhile, the case is also governed by the Court's Local Rules, and the Defendant's motions lack the certification required by Rule 3.01(g). Judge Lammens says that Local Rule 3.01(g) provides that "before filing any motion in a civil action, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, or to certify a class, the movant must confer with the opposing party in a good faith effort to resolve the motion." There is no exception for motions for dissolution of writs of garnishment or for motions to quash a writ of garnishment. Accordingly, Judge Lammens denied the Defendant's motions without prejudice for failure to comply with Local Rule 3.01(g). If the Defendant wishes to re-file his motions, he may do so within 14 days of the entry date of the Order, provided that he has fully complied with both the letter and spirit of Local Rule 3.01(g). A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/kwu6urcm from Leagle.com. NATIONSTAR MORTGAGE: Court Partly Excludes McNamee's Expert Report ------------------------------------------------------------------ In the case, CHARLES D. McNAMEE, Plaintiffs v. NATIONSTAR MORTGAGE LLC, Defendant, Case No. 14-1948 (S.D. Ohio), Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted in part and denied in part Nationstar's Motion in Limine to Exclude Plaintiff's Expert Report and Testimony. Background Plaintiff McNamee brought the class action complaint against Nationstar on Oct. 17, 2014, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"). The complaint sought class certification, a finding that Nationstar's conduct violated the FDCPA, and a civil judgment for statutory damages, costs, and attorney's fees. The Plaintiff claims that Nationstar improperly sent him, and those similarly situated, mailings related to mortgages that had been discharged in bankruptcy. Relevant to the instant Motion, these mailings included Mortgage Loan Statements, Nationstar sent the Plaintiff every month beginning in January 2013. The first page of the Mortgage Loan Statement contains a significant amount of information including, but not limited to: a statement date, a payment due date, a loan number, the principal and interest balance, the escrow amount, the lender paid expenses, the amount due, and the interest rate. At the end of the first page is a section labeled "Important Messages." The section contains the following language: "This statement is sent for informational purposes only and is not intended as an attempt to collect, assess, or recover a discharged debt from you, or as a, or demand for payment from, any individual protected by the United States Bankruptcy Code. If this account is active or has been discharged in a bankruptcy proceeding, be advised this communication is for information purposes only and is not an attempt to collect a debt. Please note, however Nationstar reserves the right to exercise its legal rights, including but not limited to foreclosure of its lien interest, only against the property securing the original obligation." Among other things, the parties dispute whether these Mortgage Loan Statements were sent in connection with an attempt to collect a debt. More specifically, they dispute whether the language quoted is deceptive and/or misleading within the meaning of Section 1692e of the FDCPA. Nationstar filed a partial Motion to Dismiss along with its Answer on Jan. 12, 2015. The Court granted Nationstar's Motion and dismissed Count II for failure to state a claim on Sept. 4, 2015. Thereafter, on July 28, 2017, the Plaintiff moved for class certification. After that Motion was fully briefed, the Court held a hearing on March 29, 2020. The next day, the Court granted the Plaintiff's Motion and certified four classes. Following the conclusion of discovery, each party moved for summary judgment. After holding oral argument on Nov. 24, 2020, the Court denied the Plaintiff's Motion and granted in part the Defendant's. In so ruling, and as relevant to the instant Motion, the Court determined that whether the Mortgage Loan Statements were deceptive and/or misleading was a disputed question of fact that must be left to a jury." Following its ruling, on March 4, 2021, the Court issued an Order setting a trial date and settlement conference, as well as associated deadlines for disclosures, witness lists, designation of deposition portions, exhibits, and trial motions. That Order was subsequently amended on June 16, 2021. In the interim, the Plaintiff moved to extend the deadline for expert disclosures by 35 days. The Court granted the Plaintiff's Motion, continuing trial and other deadlines to ensure there was no harm to the Defendant from the Plaintiff's requested extension. Accordingly, the trial date was reset to Oct. 25, 2021, with a settlement conference set for Sept. 15, 2021. Prior to the settlement conference, the Defendant raised an issue with the Court regarding the Plaintiff's expert, Dr. Martin Saperstein. Dr. Saperstein was engaged by the Plaintiff to aid in proving that the Disclaimer Language would mislead or confuse the reasonable unsophisticated consumer. In the course of his engagement, Dr. Saperstein conducted a 1000-person online survey. The Defendant represents that upon reviewing Dr. Saperstein's report, its own expert realized the report, and accompanying survey, did not include the Disclaimer Language. Rather, the survey conducted by Dr. Saperstein was "predicated upon the survey participant's review" of an entirely different Mortgage Loan Statement, with entirely different disclaimer language. Given this mistake, the Defendant represented it planned to file a motion to exclude this report as irrelevant, and any subsequent supplemental report as untimely. Upon receiving notice of this error, the Plaintiff directed Dr. Saperstein to conduct a corrective survey and report. The Plaintiff's counsel provided the Defendant's counsel with the Corrective Report on Aug. 18, 2021. The Defendants filed the instant Motion that same day. In its Motion, the Defendant ask the Court to "strike the Plaintiff's current expert disclosure and report and, pursuant to Fed. R. Civ. P. 37(c)(1), any new expert disclosure and report produced by the Plaintiff." It also requests that the Court awards it fees and expenses incurred in preparing its rebuttal expert report and the instant Motion. Regarding the Plaintiff's current expert disclosure and report -- as prepared by Dr. Saperstein -- the Defendant argues that because it "uses the wrong mortgage statement, it flunks the Daubert test's requirement that an expert opinion be relevant to a material issue in the case." Accordingly, the Defendant contends, that this "expert report and any testimony based on it should be excluded under Rule 702 of the Federal Rules of Evidence." Furthermore, it asserts that the Corrective Report fails to comply with Fed. R. Civ. P. 26(a)(2)(B), as it is not a proper supplementation. Should the Court determine the supplement is proper, the Defendant alternatively argues that the Corrective Report remains untimely, and the Plaintiff has not shown either "substantial justification" or "harmlessness," pursuant to Rule 26. For his part, the Plaintiff acknowledges the error in Dr. Saperstein's original report. Accordingly, the Plaintiff has withdrawn this report and analysis as expert-based evidence in the case. However, the Plaintiff argues that the data underlying Dr. Saperstein's original report, separate from the expert analysis, "should not be excluded under Daubert." Furthermore, the Plaintiff contends that Corrective Report is a proper supplementation under Fed. R. Civ. P. 26(e), and therefore, should not be excluded. In reply, the Defendant maintains its arguments that Dr. Saperstein's original report, including the corresponding data, is irrelevant and that the Corrective Report should be excluded as an improper supplement. Additionally, it argues that because the Plaintiff had access to the Disclaimer Language from the outset of the case, their failure properly to include it in Dr. Saperstein's original report is not substantially justified and harmful. The Defendant's Motion to Exclude is now fully briefed and ripe for the Court's consideration. Discussion A. Dr. Saperstein's Original Report Judge Marbley opines that there is no debate that Dr. Saperstein's original report relies on the incorrect Mortgage Loan Statement and is therefore, irrelevant. He says, while the Plaintiff does not dispute this contention, he does argue that the survey data underlying Dr. Saperstein's original report provides potentially useful information, and is therefore relevant. Specifically, he alleges that this underlying data shows survey participants' perception of a non-bankruptcy Mortgage Loan Statement, albeit not the one at issue in the case. The Plaintiff's argument, however, is misplaced. The data is just as irrelevant as Dr. Saperstein's analysis of it. As the Court detailed when ruling on the parties' summary judgment motions, Judge Marbley holds that the relevant inquiry in the case is "whether, to the least sophisticated consumer, the Mortgage Loan Statements at issue are 'materially false or misleading.'" The question is not whether any Mortgage Loan Statement language is false or misleading; it is whether this specific Mortgage Loan Statement language is false or misleading. The survey respondents' perception of this other Mortgage Loan Statement language does not have any bearing on how those same respondents perceived the Mortgage Loan Statement at issue. Said differently, Judge Marbley opines that there is no connection between the Survey respondents' perception of this other Mortgage Loan Statement language, and the disputed factual issue on which Dr. Saperstein is expected to testify. Accordingly, because Dr. Saperstein's original report and the data underlying it cannot assist the trier of fact to understand the evidence or to determine a fact in issue, they are irrelevant. As a result, the Defendant's request to exclude this evidence is granted. B. The Corrective Report Judge Marbley finds that the Corrective Report falls within the bounds of a proper supplement under Rule 26(e). In substance, the Corrective Report and accompanying survey correct the deficiency in the original survey and report, by relying on the correct Mortgage Loan Statement language. The course of this litigation has not yet concluded: The original report, albeit inaccurate, was produced at the appointed time; the Corrective Report was produced before the deadline for pretrial disclosures; and the Defendants still have the opportunity to depose Dr. Saperstein should they wish to, as the trial date is still a month away. As such, the Defendant can cure the surprise, to the extent there is any. Furthermore, allowing this evidence will not disrupt trial, as any curative measures are not substantial. Indeed, this evidence is important because none of the Plaintiff's other experts addresses the alleged misleading nature of the Mortgage Loan Statement language. Thus, even if the Corrective Report is not treated as a supplement, the resulting prejudice to the Defendant is limited and the Court would not exclude the corrective report under Rule 37(c)(1) because the violation is ultimately harmless. Accordingly, Judge Marbley denied the Defendant's request to exclude the Corrective Report, and any corresponding testimony. C. Fees Judge Marbley addresses the Defendant's request that the Court awards it fees and expenses incurred in preparing its rebuttal expert report and the instant Motion. Notably, in neither its Motion nor Reply brief, does the Defendant make a substantive argument in support of its request for fees. An award of fees under Rule 37(c)(1) is discretionary. Furthermore, such an award is only appropriate where the non-moving party failed to properly supplement. That did not occur in the case, Judge Marbley opines. As detailed, the Corrective Report was a timely and appropriate supplement. Accordingly, the Defendant's request for fees and expenses is denied. Conclusion For the foregoing reasons, Judge Marbley granted in part and denied in part Defendant Nationstar's Motion in Limine to Exclude. A full-text copy of the Court's Sept. 24, 2021 Opinion & Order is available at https://tinyurl.com/nxwr97bp from Leagle.com. NATIONWIDE AGRIBUSINESS: Smith Sues Over Vehicle's Unpaid Sales Tax ------------------------------------------------------------------- Abra Smith, individually and on behalf of all others similarly situated v. Nationwide Agribusiness Insurance Company, an Iowa Corporation, Case No. CV 21 953473 (Ohio Ct. Com. Pl., Cuyahoga Cty., Sept. 24, 2021) is a class action lawsuit by Plaintiff who was the named insured under a Nationwide automobile policy for private passenger auto physical damage, pursuant to which Defendant was required to pay the applicable sales tax for a damaged or stolen vehicle as part of a payment of loss. The Plaintiff and all Class Members made a claim determined by Nationwide to be a first-party loss under the insurance policy and determined by Nationwide to be a covered claim. According to the complaint, upon the loss to the insured vehicles, Plaintiff and every Class Member were owed the sales tax as part of their loss payment. However, Defendant allegedly failed to include sales tax in making the loss claim payments. Nationwide Agribusiness Insurance Company operates as an insurance company. The Company provides agricultural insurance services throughout the United States.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Rachel Dapeer, Esq. DAPEER LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (305) 610-5223 E-mail: rachel@dapeer.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 E-mail: scott@edelsberglaw.com - and - Edmund A. Normand, Esq. Jacob L. Phillips, Esq. Post Office Box 1400036 Orlando, FL 32814-0036 Telephone: (407) 603-6031 E-mail: ed@ednormand.com jacob.phillips@normandpllc.com NATROL LLC: Vitello Appeals Summary Judgment Ruling to 8th Cir. --------------------------------------------------------------- Plaintiff Christine Vitello filed an appeal from a court ruling entered in the lawsuit styled CHRISTINE VITELLO, Plaintiff v. NATROL, LLC, Defendant, Case No. 4:18-cv-00915-SEP, in the U.S. District Court for the Eastern District of Missouri - St. Louis. As reported in the Class Action Reporter on Sept. 9, 2021, Judge Sarah E. Pitlyk of the Eastern District of Missouri, Eastern Division, granted Defendant Natrol's motion for summary judgment. Plaintiff Vitello brings this action individually and on behalf of others similarly situated, alleging Defendant Natrol violated the Missouri Merchandising Practices Act (MMPA) and that Natrol is liable to purchasers of its product, Cognium, for unjust enrichment. Cognium is a "nutraceutical" that, according to Natrol's advertising, improves memory and concentration for consumers who ingest it twice daily over a period of four weeks. According to Cognium's packaging, the nutraceutical is "powered" by Cera-Q, a natural protein found in silkworm cocoons. In her Amended Complaint, Vitello alleges that Natrol advertised that nine clinical studies supported its efficacy, when in fact two of those studies had been discredited. Ms. Vitello suffers from attention-deficit disorder (ADD), and she had been taking Adderall to treat her ADD since 2004. In June 2017, she stopped taking Adderall and began taking Cognium, hoping "Cognium would be a better alternative to Adderall." Vitello claims she took Cognium according to the directions provided by Natrol but did not experience any improvement in her memory, concentration, or cognition. She contends that she would not have purchased Cognium had Natrol not made the representations concerning the product's allegedly proven results. Ms. Vitello had sought damages as well as establishment of a Missouri consumer subclass under the MMPA and a nationwide class under the doctrine of unjust enrichment. The Plaintiff now seeks a review of the Court's order granting Defendant Natrol's motion for summary judgment. The appellate case is captioned as Christine Vitello v. Natrol, LLC, Case No. 21-3150, in the United States Court of Appeals for the Eighth Circuit, filed on Sept. 24, 2021. The briefing schedule in the Appellate Case states that: -- Transcript is due on or before November 3, 2021; -- Appendix is due on November 15, 2021; -- BRIEF APPELLANT, Christine Vitello is due on November 15, 2021; and -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant.[BN] Plaintiff-Appellant Christine Vitello, on behalf of herself and others similarly situated, is represented by: Jonathan Edward Fortman, Esq. LAW OFFICE OF JONATHAN E. FORTMAN, LLC 250 Saint Catherine Street Florissant, MO 63031 Telephone: (314) 522-2312 E-mail: jef@fortmanlaw.com Defendant-Appellee Natrol, LLC, a Delaware corporation, is represented by: Steven J. Alagna, Esq. Alicia E. Olszeski, Esq. BRYAN & CAVE 3600 One Metropolitan Square 211 N. Broadway Saint Louis, MO 63102-2186 Telephone: (314) 259-2000 E-mail: ali.olszeski@bclplaw.com - and - Jacob A. Kramer, Esq. BRYAN & CAVE 1155 F Street, N.W. Washington, DC 20004 Telephone: (202) 508-6000 E-mail: jake.kramer@bclplaw.com NATURE'S BOUNTY: Baines Sues Over Mislabeled Fish Oil Supplements ----------------------------------------------------------------- MASHON BAINES on behalf of herself and all others similarly situated, Plaintiff v. NATURE'S BOUNTY (NY), INC. and THE BOUNTIFUL COMPANY (NY) Defendants, Case No. 1:21-cv-05330 (E.D.N.Y., Sept. 24, 2021) is a class action on behalf of a nationwide and New York class of consumers, seeking redress for Defendants' deceptive practices associated with the advertising, labeling and sale of its Nature's Bounty 1400 mg. Fish Oil. According to the complaint, the Defendants manufacture, label and sell a product which they claim to be 1400 mg. of Fish Oil containing of 647 mg. of Eicosapentaenoic Acid (EPA) and 253 mg. of Docosahexaenoic Acid (DHA) -- the essential omega-3 fatty acids that naturally occur in fish. However, contrary to what is represented on the label, the product is not fish oil, nor does it contain a single milligram of EPA or DHA. Throughout the applicable class period, the Defendants falsely represented the fundamental nature of their product, and as a result of this false and misleading labeling, were able to sell these products to tens of thousands of unsuspecting consumers throughout New York and the United States, asserts the complaint. Nature's Bounty Inc., is a New York Corporation with its principal place of business in Ronkonkoma, New York. Nature's Bounty is the flagship brand of The Bountiful Company, a manufacturer, marketer and seller of vitamins, minerals, herbal and other specialty supplements.[BN] The Plaintiff is represented by: Laurence D. King, Esq. Maia C. Kats, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 E-mail: lking@kaplanfox.com mkats@kaplanfox.com - and - Michael D. Braun, Esq. KUZYK LAW, LLP 1999 Avenue of the Stars, Suite 1100 Los Angeles, CA 90067 Telephone: (213) 401-4100 Facsimile: (213) 401-0311 E-mail: mdb@kuzykclassactions.com NATURECHEM INC: Bid for Summary Judgment Junked w/o Prejudice ------------------------------------------------------------- In the class action lawsuit captioned as RONNIE BREECE, GERALD CHAPPELL, PATRICK MAY, and GARY MORAN, individually and on behalf of all others similarly situated, v. NATURECHEM, INC., Case No. 3:19-cv-02552-JMC (D.S.C.), the Hon. Judge J Michelle Childs entered an order denying Defendant's motion for summary judgment without prejudice. The Court said, "Summary judgment is premature at this time "because a per diem either can be excluded from, or included in, a regular wage depending on myriad factors and purposes, [making] a case-specific factual inquiry necessary." Baouch v. Werner Enterprises, Inc., 908 F.3d 1107, 1115 (8th Cir. 2018) (citing Berry v. Excel Group, Inc., 288 F.3d 252, 254 (5th Cir. 2002)). The reasonableness of the per diem payments is a fact-based inquiry set forth on a "case-by-case basis." The Defendant relies on the United States General Services Administration standards pursuant to 41 CFR subtitle F to aver that the per diem payments are reasonable as a matter of law. However, these standards alone cannot establish reasonableness, and discovery in the record is incomplete. The Defendant has not responded to Plaintiffs' discovery requests, no depositions have been taken, and discovery has been stayed based on Defendant's Motion. Cognizant of the posture of this action and the factual inquiry required to determine reasonableness of the per diem payments, the court finds that Defendant's Motion for Summary Judgment is premature at this time." The Plaintiffs brought this action on behalf of themselves and all similarly situated current and/or former employees of Defendant NaturChem, Inc., alleging Defendant willfully violated the Fair Labor Standards Act ("FLSA"), and other applicable rules, regulations, statutes, and ordinances. The Plaintiffs Ronnie Breece, Gerald Chappell, Patrick May, and Gary Moran were employed by Defendant as spray technicians and would travel to Defendant's customers' locations and perform landscaping duties across the United States. The Plaintiffs contend they were scheduled to work, and regularly worked, in excess of 40 hours per week, sometimes working as many as 70 hours in one week. The Plaintiffs allege Defendant paid "their straight hourly or salaried rates of pay for all hours worked up to, and including, 40 hours," and then paid them "a sub-minimum wage overtime rate of $4.50-$5.00 per hour -- a rate it called "Chinese overtime -- for all hours in excess of 40 in one workweek." NaturChem is a South Carolina corporation specializing in vegetation management. A copy of the Court's order dated Sept. 27, 2021 is available from PacerMonitor.com at https://bit.ly/3AcyLrc at no extra charge.[CC] NEW YORK, NY: Class Action Over Sealed Arrest Records Pending ------------------------------------------------------------- New York Daily News reports that a class-action lawsuit brought by public defenders in the Bronx asks a court to bar the NYPD from access to its own records of arrests in cases that were later sealed by the courts. And I'm not just talking about cases merely being made confidential, but being essentially erased. That's a very bad idea. Arrest records -- photos, files, statements, videos -- are sealed when an arrest results in other than a conviction or guilty plea. There are good reasons for this. "Sealing" means the record is rendered invisible to public record searches, so as not to affect a person's chances with prospective employers, landlords, schools or public benefits. However, arrest records may still be accessed by police for a proper purpose under limited circumstances. Why? Because sealing of criminal records does not always equate to a determination of innocence, and there are a number of legitimate reasons for cops to know the records exist. District Attorneys may dismiss a criminal violent gang because of a frightened witness or reluctant victims in domestic violence cases. A defendant who is sentenced to attend a program as an alternative to prison will have a sealed record if they complete the program. Plea bargains are frequently offered to defendants, which result in dismissal and sealing. District attorneys can move to dismiss a perfectly legitimate arrest simply for policy reasons, resulting in the record being sealed. If the city loses this lawsuit, all these sealed records could become completely invisible to police. We wouldn't even be able to know they exist. We would be meeting "the perpetual first offender" because the NYPD's own records of their other arrests, sometimes dozens, will not show up in our systems. It's not hard for me to think of dangerous scenarios unfolding. Think of the undercover officer who will not know the target he is meeting to buy an illegal gun from has been arrested in three prior shootings because the records are sealed. Think of the sexual predator who has been arrested for twice for molesting a child and the cases were sealed because parents did not want their children to go through the trauma of testifying in open court. Two years later, when he emerges as a possible suspect in the kidnapping and murder of another child, all a detective sees is a person who's never had a brush with the law because the records are now invisible. Consider the scores of domestic violence cases where a spouse has been beaten and then too afraid to testify so the charges are dropped and the case is sealed. Domestic violence officers may not know to flag that victim for follow-up visits if there is no record of the case. Worse, the next time the victim is assaulted, those officers may have no indication that it is actually the third time, not the first. And what about our own efforts at police discipline? Let's say a police officer made an arrest and it was later dismissed and then sealed. Now let's say a complaint against the arresting officer. Our own Internal Affairs detectives would be barred from access the records of the arrest -- including body camera video -- to begin an investigation to determine whether the officer was abusive or made false a statement. Is that wise? The public defenders argue that the logical approach in all these instances would be for the NYPD petition the court for an order to unseal the records. But in this lawsuit, the plaintiffs also argue that police shouldn't be allowed to see that a sealed record exists -- so how would we know to ask a court to grant access? There are more mundane, yet legally required functions that would be affected. The City Council has passed 23 laws mandating the NYPD to report to them quarterly on the number of arrests made on certain kinds of quality of life offenses including arrests for drug offenses, and certain hate crimes. Some of these charges, for example, turnstile-jumping in the subways, are routinely dismissed by district attorneys as a matter of policy. The numbers of arrests we reported would be inaccurate because our own records in cases that district attorneys decided not to prosecute would simply be off-limits. A number of recently enacted laws allow for people convicted of crimes who have kept out of trouble for 10 years to apply to have their criminal records sealed. Those laws are written to include access to those sealed records for police, sheriffs, child welfare agencies, courts and others with a legitimate need in certain cases to access those records. That makes good sense. What is taking place today is that a handful of plaintiffs want to push the courts to stretch the bounds of the original intent of the sealing laws far beyond what anyone contemplated when the law was passed in 1976. This would be a serious setback for public safety. [GN] NEW YORK: Second Circuit Appeal Filed in Gulino Suit re Serreti --------------------------------------------------------------- Defendant Board of Education of the City School District of the City of New York filed an appeal from the District Court's Judgment dated August 18, 2021, entered in the lawsuit styled GULINO, ET AL. v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Case No. 96-cv-8414, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the Plaintiffs, a group of African-American and Latino teachers in the New York City public school system, alleged that the Defendant, the Board of Education of the City School District of the City of New York, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., by requiring Plaintiffs to pass certain racially discriminatory standardized tests in order to obtain a license to teach in New York City public schools. Judge Constance Baker Motley, to whom the case was originally assigned, certified the plaintiff class on July 13, 2001, pursuant to Federal Rule of Civil Procedure 23(b)(2). On December 5, 2012, the Court decertified the Plaintiff class to the extent it sought damages and individualized injunctive relief in light of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). The class survived, however, to the extent Plaintiffs sought relief that may be awarded under Rule 23(b)(2), including a declaratory judgment regarding liability and class-wide injunctive relief. The Defendant seeks a review of the Court's Judgment, classifying Denny Serreti as a member of the Plaintiff class in this action, and holding that the Plaintiff is entitled to monetary and injunctive relief from Defendant as compensation for the injuries she suffered as a result of what the Court found to be the Defendant's discrimination. The appellate case is captioned as In re: New York City Board of Education, Case No. 21-2423, in the United States Court of Appeals for the Second Circuit, filed on Sep. 24, 2021.[BN] Defendant-Appellant Board of Education of the City School District of the City of New York is represented by: Georgia Mary Pestana, Esq. INTERIM CORPORATION COUNSEL NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 356-2400 Plaintiff-Appellee Denny Serreti is represented by: Joshua S. Sohn, Esq. STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038 Telephone: (212) 806-1245 E-mail: jsohn@stroock.com NEWLINK GENETICS: Attorneys' Fees & Expenses Awarded in Nguyen Suit ------------------------------------------------------------------- In the case, MICHAEL NGUYEN and KELLY NGUYEN, Individually And On Behalf of All Others Similarly Situated, Plaintiffs v. NEWLINK GENETICS CORPORATION, CHARLES J. LINK, JR., and NICHOLAS N. VAHANIAN, Defendants, Case No. 1:16-CV-3545-AJN-OTW (S.D.N.Y.), Judge Alison J. Nathan of the U.S. District Court for the Southern District of New York issues an order awarding attorneys' fees and litigation expenses, and award to the Lead Plaintiff. The matter came before the Court on Sept. 22, 2021, on the Motion of Lead for An Award of Attorneys' Fees, Reimbursement of Litigation Expenses, and Award to Lead Plaintiff. Judge Nathan, having considered all papers filed and proceedings conducted therein, having found the Settlement of the Litigation to be fair, reasonable and adequate, and otherwise being fully informed in the premises, and good cause appearing therefore, awards attorneys' fees of 33.2153% of the Settlement Amount, plus expenses in the amount of $51,239.46, together with the interest earned on both amounts for the same time period and at the same rate as that earned on the Settlement Fund until paid. The awarded attorneys' fees and expenses, and interest earned thereon, will be paid to the Lead Counsel once 70% of the Net Settlement Fund has been distributed and subject to the terms, conditions, and obligations of the Stipulation, which terms, conditions, and obligations are incorporated therein. Pursuant to 15 U.S.C. Section 78u-4(a)(4), Judge Nathan awards $5,000 to Lead Plaintiff Michael Nguyen for the time he spent directly related to its representation of the Class. Any appeal or any challenge affecting the Court's approval regarding the Fee Motion will in no way disturb or affect the finality of the Judgment entered with respect to the Settlement. In the event that the Settlement is terminated or does not become Final or the Effective Date does not occur in accordance with the terms of the Stipulation, the Order will be rendered null and void to the extent provided in the Stipulation and will be vacated in accordance with the Stipulation. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/3hs28emn from Leagle.com. NOVO NORDISK: Inks $100M Settlement Over Insulin Pricing Class Suit ------------------------------------------------------------------- Kevin Dunleavy at fiercepharma.com reports that after Novo Nordisk allegedly told investors it was resistant to industrywide insulin pricing pressures, some shareholders brought a class action lawsuit claiming they were misled. In a federal district court in New Jersey, Novo Nordisk agreed to a $100 million settlement with those disgruntled investors. The Danish drugmaker cut the deal while maintaining that the move was not an admission of wrongdoing. Novo Nordisk said the claims were without merit and that it was settling to "avoid the burden, inherent risk and expense of further litigation," the Danish diabetes specialist said in a statement. The deal stems from a 2017 lawsuit filed by purchasers of American Depository Receipts, which are equity securities created to simplify foreign investing for U.S. investors. The plaintiffs had demanded approximately $1.75 billion in compensation for losses incurred from February of 2015 to February of 2017. During that period, insulin makers came under fire for their climbing prices, even as sales were falling. For many years, insulin makers have had to compete against one another by offering bigger and bigger rebates. The dynamic caused patients to pay more for their medicines even as drugmakers reported flat or declining net sales. In a court filing, plaintiffs said that while other companies told investors that their insulin-related revenues would diminish as a result of pricing pressures, Novo Nordisk executives assured investors that the company was not subject to the same pressures and that its sales and profits would continue to grow. The news comes during a year in which Novo Nordisk's fortunes have risen thanks to its diabetes standouts Ozempic and Rybelsus and excitement over its new drug Wegovy, hailed as a potential game-changer in combatting obesity. [GN] OLAM SPICES: Class Settlement in Beltran Suit Wins Prelim. Approval ------------------------------------------------------------------- In the case, THOMAS BELTRAN, et al., Plaintiffs v. OLAM SPICES AND VEGETABLES, AND GRANTING PLAINTIFFS' MOTION INC., Defendant, Case No. 1:18-cv-01676-NONE-SAB (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted the joint motion for preliminary approval of the class action and collective action settlement, filed April 13, 2020. On April 13, 2020, a motion for preliminary approval of a class and collective action settlement was filed in the action. The motion was referred to a United States magistrate judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and Local Rule 302. On June 2, 2020, the assigned magistrate judge issued findings and recommendations, finding that there were deficiencies in the motion for preliminary approval that precluded a finding that it was a fair, adequate, and reasonable settlement of the claims and recommending denial of the motion. After the parties filed objections and supplemental briefing, the matter was re-referred to the magistrate judge. On June 4, 2021, the magistrate judge filed a supplemental findings and recommendations recommending that the motion for preliminary approval of the class action and collective action settlement be approved. The findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within fourteen days from the date of service. The period for filing objections has passed and no objections have been filed. In accordance with the provisions of 28 U.S.C. Section 636(b)(1)(C), Judge Drozd has conducted a de novo review of the case. Having carefully reviewed the entire file, he finds the findings and recommendations to be supported by the record and by proper analysis. Judge Drozd has already expressed hesitation regarding the proposed incentive payments and attorneys' fees in the proposed settlement of the case. He says, the magistrate judge correctly noted that preliminary approval of the fees will require additional support at final approval. Accordingly, Judge Drozd adopted the findings and recommendations issued on June 4, 2021. He granted the joint motion for preliminary approval of the class action and collective action settlement, filed April 13, 2020. For the purposes of settlement, the following Rule 23 class is conditionally certified: "All persons who were employed by Olam West Coast, Inc. (Defendant) in a position that Defendant classified as non-exempt and/or hourly non-exempt and worked in that capacity at Defendant's Fresno, Firebaugh, Hanford, Lemoore, Gilroy and/or Williams facilities in California and for which Class Members and FLSA Members were paid on a non-exempt basis (Covered Position), at any time during the period from July 7, 2011 to September 22, 2021 (Settled Period), or the estates of such individuals." For the purposes of settlement, the following collective action is conditionally certified: "All persons who were employed by Olam West Coast, Inc. (Defendant) at Defendant's Fresno, Firebaugh, Hanford, Lemoore, Gilroy, and/or Williams locations in one or more positions which were classified as non-exempt and/or hourly non-exempt at any time during the period from July 7, 2011 to September 22, 2021 (FLSA Members)." Plaintiffs Thomas Beltran, Mario Martinez, Mario Claudia Obeso Cota, Juan Rivera, and Alexander Solorio are appointed as the representatives of the class action. Edwin Aiwazian, Arby Aiwazian, and Joanna Ghosh of Lawyers for Justice, PC are appointed as the class counsel. Simpluris, Inc., is appointed as the settlement administrator. The Rule 23 class action notice, FLSA collective action notice, Rule 23 class action request for exclusion, and FLSA collective action opt in forms are approved, The matter is referred back to the magistrate judge to set a date for a final-approval hearing and other scheduling matters. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/ea46s3j7 from Leagle.com. ORGAIN LLC: New York Court Dismisses Jones' 1st Amended Class Suit ------------------------------------------------------------------ In the case, TRACEY JONES, individually and on behalf of all others similarly situated, Plaintiff v. ORGAIN, LLC, Defendant, Case No. 20 CV 8463 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York granted the Defendant's motion to dismiss. The Defendant moved to dismiss the Plaintiff's first amended complaint ("FAC") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Background Plaintiff Tracey Jones brings the putative class action against Defendant Orgain, alleging claims for violation of Sections 349 and 350 of New York's General Business Law ("GBL"), negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability, violation of the Magnuson Moss Warranty Act ("MMWA"), 15 U.S.C. Section 2301, fraud, and unjust enrichment. The Plaintiff alleges the Defendant "manufactures, distributes, markets, labels and sells milk protein shakes," including a "Clean Protein, Grass Fed Protein Shake, Vanilla Bean Flavor." She claims that although the product is labeled as "Vanilla Bean Flavor," suggesting the product contains real vanilla, the product does not disclose that it contains artificial vanilla flavoring. She further alleges the product's ingredient list on the side of the packaging lists neither vanilla, vanillin, nor "artificial" vanilla or flavor. It does list as an ingredient "natural flavors." According to the Plaintiff, this makes unclear the source of the vanilla flavoring used in the product. The Plaintiff alleges the product's labeling is misleading in two respects. First, the Plaintiff alleges use of the phrase "Vanilla Bean Flavor" on the packaging is misleading because laboratory analysis of the product indicates it actually only contains "a trace or de minimis amount of vanilla, boosted by synthetic vanillin from wood pulp or petroleum derivatives." According to the Plaintiff, the lack of qualifying terms regarding "Vanilla Bean Flavor" -- such as if the packaging indicated the product contained artificial vanilla flavor -- is likely to mislead reasonable consumers. Second, the Plaintiff alleges the "description of the Product as 'Clean'" is misleading, because consumers associate use of the word "Clean" with products that "are free from artificial ingredients and other ingredients consumers find undesirable," such as "synthetic, artificial ingredients which can have a detrimental effect on health." According to the Plaintiff, the product contains the following artificial and synthetic ingredients: sodium polyphosphate, tricalcium phosphate, magnesium phosphate, potassium citrate, potassium chloride, cellulose, and gellan gum. The Plaintiff claims she had expected a vanilla taste from the product, she expected such vanilla taste would come exclusively or predominantly from vanilla beans or vanilla extract, she did not expect the product to taste of vanillin from artificial vanilla flavors, and she expected the product would not contain "synthetic, artificial ingredients which could pose risks to health." She further claims she would have either declined to purchase the product or would have paid less for it had the product not included the allegedly deceptive labeling. Now pending is the Defendant's motion to dismiss the FAC. Discussion I. New York General Business Law Claims The Defendant argues the Plaintiff fails to state a claim under GBL Sections 349 and 350 because she has not plausibly alleged a reasonable consumer would find the product's labeling materially deceptive or misleading. Judge Briccetti agrees. First, he holds that the Plaintiff fails plausibly to allege the product's labeling was deceptive. Nowhere on the packaging does defendant promise that the product is flavored with vanilla from an exclusive source or even mainly from a certain source. The front label simply indicates the beverage is vanilla flavored. The Plaintiff also presents no allegations that would show her argument regarding the taste of vanilla is anything but a subjective one, not shared by the reasonable consumer. Accordingly, the Plaintiff fails plausibly to plead the packaging is misleading or deceptive because the product does not taste like vanilla. The Plaintiff's argument that use of the word "Clean" on the front of the packaging is misleading because the product contains processed, synthetic, or artificial ingredients is also unpersuasive, Judge Briccetti finds. He says, the Plaintiff fails plausibly to allege the product packaging made any statement or representation that it contained no processed, synthetic, or artificial ingredients. Indeed, she cannot; although the back of the packaging does state "No Artificial Sweeteners," nowhere on the labeling does defendant make a sweeping representation that the product contains no processed, synthetic, or artificial ingredients. Considering the context of the packaging as a whole, the Judge concludes the Plaintiff does not plausibly allege use of the term "Clean" is likely to mislead a reasonable consumer acting reasonably under the circumstances. Accordingly, the Plaintiff's claims under GBL Sections 349 and 350 must be dismissed II. Plaintiff's Other Claims Because the Plaintiff has failed plausibly to allege her claims under GBL Sections 349 and 350, Judge Briccetti holds that the Plaintiff's claims for negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability, violation of the MMWA, fraud, and unjust enrichment also fail. These causes of action are "all premised on the same contention: Defendant's labeling of the Product is materially misleading." Because, the Plaintiff fails plausibly to plead the product's packaging is misleading or deceptive, the Plaintiff's other claims must also be dismissed. Conclusion In light of the foregoing, Judge Briccetti granted the motion to dismiss. The Clerk is instructed to terminate the motion and close the case. A full-text copy of the Court's Sept. 24, 2021 Opinion & Order is available at https://tinyurl.com/4dcytxaw from Leagle.com. PERI & SONS: Bid to Consolidate Guzman With PAGA Action Denied -------------------------------------------------------------- In the case, LORENA SUAREZ GUZMAN, Plaintiff v. PERI & SONS FARMS OF CALIFORNIA, LLC, et al., Defendants, Case No. 1:21-cv-00348-NONE-SKO (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California denied the Defendants' renewed motion to consolidate the instant action with the PAGA action. The Plaintiff filed a class action complaint against Defendants Peri & Sons and Roy Estrada in the Imperial County Superior Court, alleging violations of applicable Industrial Welfare Commission ("IWC") Wage Orders, California Labor Code sections 201, 202, 226, 226.7, 510, 512, 1194, 1197, and the California Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200, et seq., on Aug. 31, 2020. The Defendants removed the action to the to the U.S. District Court for the Southern District of California on Oct. 2, 2020, asserting federal diversity jurisdiction and jurisdiction under the Class Action Fairness Act ("CAFA"). The case was transferred to the Court after the Defendants' motion to change venue was granted on March 8, 2021. The Plaintiff filed a representative action under the California Labor Code Private Attorney Generals Act ("PAGA"), California Labor Code Section 2698 et seq., against the Defendants in the Imperial County Superior Court ("PAGA action") on Oct. 8, 2020. The Defendants renewed their motion to consolidate the instant action with the PAGA action on April 30, 2021. The matter was referred to the assigned magistrate judge for the preparation of findings and recommendations on May 4, 2021. The magistrate judge issued findings and a recommendation on Aug. 2, 2021, recommending that the Defendant's motion to consolidate be denied on the ground that the Court lacks jurisdiction over the case sought to be consolidated with this one. The findings and recommendation provided that any party could file objections thereto within 21 days. To date, no objections have been filed. In accordance with the provisions of 28 U.S.C. Section 636 (b)(1)(C), Judge Drozd has conducted a de novo review of the case. Having carefully reviewed the entire file, he finds that the findings and recommendation are supported by the record and proper analysis. Accordingly, Judge Drozd adopted in full the findings and recommendation issued Aug. 2, 2021. He denied the motion to consolidate. A full-text copy of the Court's Sept. 22, 2021 Order is available at https://tinyurl.com/yrdrkpy4 from Leagle.com. POLARITYTE INC: Pomerantz Law Reminds of November 23 Deadline ------------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against PolarityTE, Inc. ("PolarityTE" or the "Company") (NASDAQ: PTE) and certain of its officers. The class action, filed in the United States District Court for the District of Utah, and docketed under 21-cv-00561, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired PolarityTE securities between April 30, 2020 and August 23, 2021, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased PolarityTE securities during the Class Period, you have until November 23, 2021 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. 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, reconstruct, replace, and supplement 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. 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 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"). The complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the SkinTE IND was deficient with respect to certain Chemistry, Manufacturing, and Control items; (ii) as a result, it was unlikely that the FDA would approve the SkinTE IND in its current form; (iii) accordingly, the Company had materially overstated the likelihood that the SkinTE IND would obtain FDA approval; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. On August 24, 2021, PolarityTE issued a press release "provid[ing] an update regarding correspondence from the U.S. Food and Drug Administration (FDA) related to its Investigational New Drug Application (IND) for SkinTE(R) 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 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. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com[GN] PORTFOLIO RECOVERY: New Jersey Court Narrows Claims in North Suit ----------------------------------------------------------------- In the case, TODD M. NORTH, individually and on behalf of all others similarly situated, Plaintiff v. PORTFOLIO RECOVERY ASSOCIATES, LLC; and JOHN DOES 1 to 10, Defendants, Case No. 2:20-cv-20190 (BRM) (JSA) (D.N.J.), Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey granted in part and denied in part the Defendant's Motion for Judgment on the Pleadings. Before the Court is Defendant Portfolio Recovery Associates, LLC's ("Defendant") Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff Todd M. North ("Plaintiff") opposes the Motion. Background The case arises from the Defendant's attempts to collect a debt owed by the Plaintiff. On Aug. 6, 2019, the Plaintiff filed a putative class-action Complaint in the Superior Court of New Jersey, Law Division, Essex County asserting three claims against the Defendant for violations of the New Jersey Consumer Finance Licensing Act, N.J. Stat. Ann. Section 17:11C, et seq., the New Jersey Consumer Fraud Act, N.J. Stat. Ann. Section 56:8, et seq. ("CFA"), and unjust enrichment. The Plaintiff defines the class and subclass as: a. Class: All natural persons with addresses in the State of New Jersey who are listed as the borrower or purchaser in an account assigned to Portfolio Recovery Associates, LLC, or any of its sister or parent entities, at any time prior to the date the respective entity obtained a license to engage in business as a sales finance company or a consumer lender pursuant to the CFLA, at N.J.S.A. 17:11C-3. b. Subclass: All members of the Class who paid any money or from whom Portfolio Recovery Associates, LLC, or any of its sister or parent entities, directly or indirectly through its agents, collected any money on the assigned account. The Plaintiff alleges that, "sometime prior to the date" the Complaint was filed, the "Defendant allegedly purchased and attempted to take assignment of a WebBank/Fingerhut account that had been extended to the Plaintiff." The WebBank/Fingerhut Account was used for personal, family, or household purposes. Thereafter, the Plaintiff defaulted on the WebBank/Fingerhut Account and Defendant purchased a pool of defaulted consumer accounts, including the WebBank/Fingerhut Account. On March 30, 2015, the WebBank/Fingerhut Account was placed with the Defendant. The Defendant commenced collection activities against the Plaintiff, when it was not properly licensed to do so, by causing the Plaintiff to make payments towards the WebBank/Fingerhut Account on May 18, 2015, June 16, 2015, and July 16, 2015. To date, and upon information and belief, the Plaintiff alleges approximately $391 was wrongfully collected by the Defendant. According to the Plaintiff, "as a result of the Defendant's unlawful actions, the Plaintiff suffered an ascertainable loss, specifically the amount the Plaintiff paid towards the WebBank/Fingerhut Account." "During the six years prior to the date when the Plaintiff's Complaint was filed, numerous New Jersey consumers made payments to the Defendant for accounts assigned to it when it was not properly licensed." On Sept. 13, 2019, the Defendant first removed the action to federal court on grounds of diversity jurisdiction pursuant to 28 U.S.C. Section 1332, which provides federal courts with jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000 and is between citizens of different States." On Oct. 2, 2019, the Plaintiff moved to remand the action to state court. On May 6, 2020, the Court granted the Plaintiff's motion to remand, citing the amount in controversy requirement had not been satisfied. On Dec. 22, 2020, the Defendant, for the second time, removed this action to federal court, alleging the Court has jurisdiction pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d)(11) ("CAFA") and arguing, inter alia, (1) CAFA's jurisdictional requirements have been satisfied; and (2) removal is timely. On Jan. 21, 2021, the Plaintiff filed a motion to remand arguing, inter alia, (1) the Defendant's notice of removal is untimely as it was filed more than 30 days after it was aware the Court had CAFA jurisdiction; and (2) the Court lacks jurisdiction over this matter pursuant to the Rooker-Feldman doctrine. On Feb. 16, 2021, the Defendant filed an opposition to the motion to remand. On Feb. 22, 2021, the Plaintiff filed a reply in support of the motion to remand. On Feb. 26, 2021, the Defendant filed a motion for leave to file a sur-reply in opposition to the motion to remand, which, on March 30, 2021, the Court granted. On April 9, 2021, the Defendant filed a Motion for Judgment on the Pleadings arguing, inter alia, (1) the Plaintiff's Complaint fails to state any viable cause of action and (2) any cause of action against the Defendant is barred by the entire controversy doctrine and/or res judicata. On May 3, 2021, the Plaintiff filed an Opposition arguing, inter alia, (1) the Plaintiff stated viable claims against the Defendant; and (2) the entire controversy doctrine and/or res judicata are not applicable. On May 10, 2021, the Defendant filed a Reply. On Aug. 30, 2021, the Court found the Defendant's removal timely and denied the Plaintiff's motion to remand the action to the Superior Court of New Jersey. The Defendant's Motion for Judgment on the Pleadings is now properly before the Court. Discussion The Defendant argues the Plaintiff's Complaint fails to allege any viable causes of action against it, and therefore, the Complaint should be dismissed with prejudice. Specifically, the Defendant argues: (1) the Complaint fails to state a claim for declaratory judgment or injunctive relief because the Plaintiff does not have a private cause of action to enforce the Licensing Act; (2) the CFA does not apply to the Defendant; and (3) no viable unjust enrichment claim exists against the Defendant. Finally, the Defendant argues any cause of action against the Defendant is barred by the entire controversy doctrine and/or res judicata. A. The Licensing Act The Defendant contends the Plaintiff's claim under the Licensing Act must be dismissed because, as the Plaintiff does not appear to dispute, courts in this district have held that there is no private right of action for violations of the Licensing Act. Further, the Defendant contends the Plaintiff cannot seek to "circumvent the lack of a private right of action to enforce the Licensing Act by seeking declaratory relief under the Uniform Declaratory Judgments Act, N.J. Stat. Ann. 2A:16-62. Judge Martinotti agrees. To be sure, because the Licensing Act does not contain a private right of action, he says, the Plaintiff cannot seek to enforce the Licensing Act directly or indirectly through the Uniform Declaratory Judgments Act. The Judge sees no reason to depart from those decisions, and the Plaintiff's Licensing Act claim is dismissed with prejudice. Accordingly, the Defendant's Motion for Judgment on the Pleadings as to the Licensing Act claim is granted with prejudice. B. The CFA The Defendant maintains the Plaintiff has failed to state a claim under the CFA. Specifically, Defendant contends the CFA is inapplicable to his claim because the CFA does not cover the debt collection conduct of a defendant debt buyer, such as the Defendant, which purchases a consumer's defaulted and non-performing debt obligation from a third-party, because the debt buyer (i.e., the Defendant) did not itself sell merchandise or real estate to the plaintiff-consumer nor is it involved with a continuing performance of the debt. Further, the Defendant claims the Plaintiff failed to meet the heightened pleading standard set by Fed. R. Civ. P. 9(b) applicable to fraud claims. The Plaintiff opposes arguing, inter alia, "since the CFA applies to a sale of credit, an assignee of the credit contract is also subject to the CFA." Therefore, according to the Plaintiff, the CFA is applicable to a buyer of debt, like the Defendant. He also contends the Complaint advises the Defendant of the basis for the CFA claim with "sufficiently particularity required by Rule 9(b)." Taken together and accepting the Plaintiff's pleadings as true as is required at this stage of the litigation, Judge Martinotti finds that the Plaintiff has asserted allegations that may establish a claim for CFA liability based on the Plaintiff's allegation Defendant engaged in "unconscionable commercial practices." Indeed, the New Jersey Supreme Court has stated that "unconscionability is an 'amorphous concept obviously designed to establish a broad business ethic.'" Where an alleged CFA violation consists of an "unconscionable commercial practice," the standard for unconscionability is a "lack of good faith, honesty in fact and observance of fair dealing." Turning to whether the Plaintiff's allegations meet Rule 9(b)'s particularity standard, Judge Martinotti finds that the Plaintiff has adequately plead fraud claims against the Defendant by alleging that, among other things, after the WebBank/Fingerhut Account was placed with the Defendant on March 30, 2015, the Defendant wrongfully caused the Plaintiff to make payments toward the WebBank/Fingerhut Account on May 18, 2015, June 16, 2015, and July 16, 2015, even though the Defendant was not properly authorized to collect on the debt. The Judge finds the Plaintiff has included the factual basis for the allegations of fraud with sufficient specificity to put the Defendant on notice of the "precise misconduct with which it is charged." Accordingly, the Defendant's Motion for Judgment on the Pleadings as to the CFA claim is denied without prejudice. C. Unjust Enrichment The Defendant argues the Plaintiff's unjust enrichment claim fails for a variety of reasons, including: (1) where the underlying tort claims are dismissed, the unjust enrichment claim must be dismissed because "New Jersey does not recognize unjust enrichment as a solely independent[] cause of action"; (2) "the existence of an express contract on the same subject matter wholly precludes the awarding of relief under an alternative theory of unjust enrichment"; and (3) the Plaintiff cannot plead the required elements of unjust enrichment. The Plaintiff opposes, arguing, among other things, there are "factual issues" as to whether "(i) if it has any rights to any contract with the Plaintiff and (ii) even if there is an assignment whether it is legally enforceable since [Defendant] was unlicensed when it was allegedly made." Judge Martinotti agrees with the Defendant that the claim should be dismissed for failure to state a claim but not for the precise reason the Defendant argued. He holds that the Complaint makes clear the Plaintiff did not expect anything in return for the $391. Therefore, the Plaintiff insufficiently pleads a claim for unjust enrichment under New Jersey law. Accordingly, the Defendant's Motion for Judgment on the Pleadings as to the unjust enrichment claim is granted without prejudice. D. Entire Controversy doctrine and/or res judicata Judge Martinotti now turns to the Defendant's contention the Court lacks jurisdiction over this matter pursuant to the entire controversy doctrine and/or res judicata. Specifically, according to the Defendant, both the entire controversy doctrine and res judicata "require dismissal of the claims in the Plaintiff's Complaint arising out of the Defendant's collection actions in a state court." The Plaintiff opposes arguing, among other things, "without a prior action identified neither defense of the entire controversy doctrine or res judicata can be established" to bar the Plaintiff's claims. Judge Martinotti finds the entire controversy doctrine is inapplicable in the case because there is no evidence of a final judgment entered in state court. In fact, he says, the Defendant contends "the Complaint is devoid of any allegation that it ever filed a civil collection complaint against the Plaintiff." The Third Circuit has held that, as a species of res judicata, the entire controversy doctrine is inapplicable prior to the entry of a final judgment, citing Rycoline, 109 F.3d at 889; see Youssef v. Department of Health & Senior Svcs., 423 F. App'x 221, 223 (3d Cir. 2011). If no final judgment has been entered in the state court, then there is no prior judgment. Therefore, because there is no evidence of a prior final judgment on the merits, and the Defendant is unable to point to one, Judge Martinotti must deny the application of the entire controversy doctrine and res judicata. Conclusion For the reasons he set forth, Judge Martinotti granted in part and denied in part the Defendant's Motion for Judgment on the Pleadings. An appropriate order follows. A full-text copy of the Court's Sept. 24, 2021 Opinion is available at https://tinyurl.com/2hkvc63s from Leagle.com. S.C. JOHNSON: Rivera Class Suit Dismissed With Leave to Amend ------------------------------------------------------------- In the case, CARMEN RIVERA, LETISHA WILLIAMS, LISA MACK, ROSEMARY VAVITSAS, Plaintiffs v. S.C. JOHNSON & SON, INC., Defendant, Case No. 20-CV-3588 (RA) (S.D.N.Y.), Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York granted the Defendant's motion to dismiss. Background The Plaintiffs Carmen Rivera bring the putative class action against Defendant S.C. Johnson asserting violations of the New York General Business Law's prohibition on deceptive marketing. The Plaintiffs allege that S.C. Johnson's labeling of its Windex cleaning products as "Non-Toxic" is misleading to consumers because those products contain ingredients that may be harmful to humans, pets, or the environment. The Plaintiffs are each citizens of New York who purchased one of the following cleaning products in that state in 2019 or 2020: Windex Original Non-Toxic Formula, Windex Vinegar Non-Toxic Formula, and Windex Ammonia-Free Non-Toxic Formula. Defendant S.C Johnson is a Wisconsin corporation that "manufactures, distributes, markets, labels, and sells cleaning solutions under its popular 'Windex' brand." The Company prominently labels a number of its Windex products as consisting of a "Non-Toxic Formula," in particular the following four: "Original Non-Toxic Formula, Vinegar Non-Toxic Formula, Ammonia-Free Non-Toxic Formula and Multi-Surface Non-Toxic Formula." In each case, the label at the top of the bottle reads "NON-TOXIC FORMULA" in capital letters. The Plaintiffs allege that this labeling scheme is part of the Company's efforts to "market and sell the Products as environmentally-friendly alternatives to traditional window and glass cleaning products," and that they purchased the Products "in reliance on the representations that they were non-toxic," "because they wanted to avoid harm caused by harsh chemicals." The Plaintiffs would buy the Products again "if assured they did not contain components which were toxic and had harsh physical and environmental effects." According to the Plaintiffs, "the Products' 'non-toxic' claims signify to reasonable consumers that the Products will not be harmful to people (including small children), common pets or the environment." The National Advertising Division of the Council of Better Business Bureaus Inc. has found, based on an investigation into the Products' use of the phrase "non-toxic," that "the term 'non-toxic' as used by the Products signifies to reasonable consumers" that those Products will not cause "harm," meaning "various types of temporary physical illness, such as vomiting, rash, and gastrointestinal upset." Based on this understanding of "toxic," the Plaintiffs allege that the Products contain several ingredients that are inconsistent with "the Products' claims of being 'non-toxic.'" These allegedly harmful ingredients include "acetic acid, alkylbenzene sulfonate, ammonium hydroxide, benzyl benzoate, fragrance components, isopropanolamine, lactic acid, lauramine oxide, propylene glycol, sodium hydroxide, sodium petroleum sulfonate, sodium xylene sulfronate, [and] 2-(hexyloxy)-ethanol." Each of the four Products contains one or more of these ingredients in different combinations. The Complaint alleges that these ingredients are capable of causing certain harmful effects at their "in-use concentrations" in the Products. As for the remaining ingredients, they allege that each, at its in-use concentration, causes some form of skin irritation such as erythema, desquamation, drying of the skin, or fissuring. The Plaintiffs further allege that S.C. Johnson "has sold more of the Products and at higher prices per unit than it would have" had it not falsely represented its Products as "non-toxic," but that their value in fact was "materially less" than that represented by the Company.According to the Complaint, the "false and misleading label" allows S.C. Johnson to sell the "Products at a premium price, approximately $3.17 for containers of 23 OZ, compared to other similar products represented in a non-misleading way." Had they "known the truth," the Plaintiffs allege, "they would not have bought the Products or would have paid less for them." Former Plaintiff Katherine Shimanovsky initiated this action on behalf of herself and all others similarly situated on May 7, 2020. The Company moved to dismiss on Sept. 8, 2020, principally arguing that Ms. Shimanovsky lacked standing to sue over products that she never purchased. The Plaintiffs responded by filing the operative Complaint, which no longer lists Ms. Shimanovsky as a plaintiff. The Plaintiffs now seek to represent a class consisting of "all purchasers of the Products in New York from Oct. 16, 2014 to time of judgment. They seek class-wide injunctive relief based on Rule 23(b)(2) in addition to monetary relief based on Rule 23(b)(3). The Complaint asserts three causes of action: 1) violation of New York General Business Law ("GBL") Section 349; 2) violation of New York GBL Section 350; and 3) unjust enrichment. S.C. Johnson subsequently filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), along with a request for judicial notice in support of that motion. The request for judicial notice encompasses the Company's publicly available ingredient lists for each of the four Products, the Merriam-Webster.com entry for "toxic," and the "Green Guides Statement of Basis and Purpose" published by the Federal Trade Commission ("FTC"). Discussion I. Whether Plaintiffs State a Claim Under the New York General Business Law The Plaintiffs' first two causes of action arise under Sections 349 and 350 of the New York GBL. Section 349 prohibits "deceptive acts or practices in the conduct of any business, trade or commerce," whereas Section 350 prohibits "false advertising in the conduct of any business, trade or commerce." To assert a claim under either section, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice." S.C. Johnson argues that the Complaint fails to satisfy the second and third elements of a GBL claim because the "Non-Toxic" labels are not misleading as a matter of law and because the Plaintiffs have failed to properly allege any cognizable injury. Judge Abrams' view, although the Plaintiffs have plausibly alleged that a reasonable consumer might share their understanding of the meaning of "non-toxic," they have not adequately alleged that the product is actually toxic, even according to their own definition. The Judge is not persuaded that the Plaintiffs' allegations as to how a reasonable consumer would interpret "Non-Toxic" are implausible, let alone contrary to the dictionary definition. The Plaintiffs' allegations of how a reasonable consumer would interpret the challenged labels are not necessarily inconsistent with the dictionary definition of "toxic." The independent substantiation of a reasonable consumer's understanding of "non-toxic" helps nudge the claims "across the line from conceivable to plausible." The Plaintiffs' claims still fail, however, because the Complaint does not adequately allege that the Products are toxic, even according to the Plaintiffs' own definition, Judge Abrams opines. The question raised by the motion is whether the Plaintiffs have plausibly alleged that the Products are actually, in their current form, capable of causing harm. In Judge Abrams' view, without more factual content about the makeup of the Products or any evidence that these Products have caused harm in the real world, the Complaint pleads facts that are "merely consistent with a defendant's liability," thereby "stopping short of the line between possibility and plausibility of entitlement to relief." First, even if the precise specifications of the Products are in the Company's exclusive control, information about the effect of those ingredients in their current concentrations is not. Second, the Plaintiffs might have attempted to analyze the Products, which are widely available. Finally, the Plaintiffs could have consulted with experts in the field who might have been able to provide even minimal support for their bald assertion that "the ingredients' likely concentrations or percentages by weight" are sufficient to cause harm. For these reasons, Judge Abrams concludes that the Plaintiffs have not met that obligation, and their GBL claims are accordingly dismissed without prejudice. The Plaintiffs will be granted leave to replead, should they have a good-faith basis to correct the deficiencies identified. To state a claim, an amended complaint will have to do some combination of the following: Substantiate the Plaintiffs' claims that the in-use concentration of the potentially harmful ingredients in the Products are sufficient to cause harm, demonstrate that the Products have actually caused some of the harms Plaintiffs say they can cause, and/or significantly strengthen the Plaintiffs' allegations that the information necessary to state a claim is exclusively in the Defendant's control. B. Allegations of Injury Although the analysis could end there, Judge Abrams proceeds to address the Company's remaining arguments for dismissal, as they may be relevant in the event that the Plaintiffs choose to amend the Complaint. The Company contends that the Plaintiffs have failed to plausibly allege an injury cognizable under GBL Sections 349 and 350. Although the allegations would benefit from more factual support -- as to the amount of premium that a Non-Toxic cleaner may enjoy as compared to a similar cleaning product that makes no such representation, for example -- Judge Abrams finds that they suffice to plausibly allege injury at the pleading stage. These allegations are comparable to what numerous other judges in this district have deemed adequate to survive a motion to dismiss. Finding the Complaint's allegations sufficient to plead injury under the GBL, Judge Abrams declines to dismiss the Plaintiffs' claims on that basis. III. Issues of Article III Standing The Company also argues that the "Plaintiffs lack standing to bring this action because they sue over a Product they never purchased and allege far too speculative an injury to seek injunctive relief." Judge Abrams notes as an initial matter that the Complaint does contain allegations that the Plaintiffs purchased three of the four products, and that the Plaintiffs seek monetary as well as injunctive relief. As a result, even if the Judge were to accept both of the Company's arguments about Article III standing, that would not be a sufficient basis to dismiss the entire action pursuant to Fed. R. Civ. P. 12(b)(1). Judge Abrams holds that because the Plaintiffs lack standing to pursue injunctive relief, on their own behalf or on behalf of a class, he dismisses all claims for injunctive relief pursuant to Rule 12(b)(1) with prejudice. He cannot conceive of a scenario in which these Plaintiffs would again be deceived by the Products' allegedly misleading representations, let alone what kind of injunctive relief would prevent such deception. Judge Abrams also holds that the fact that the Plaintiffs did not purchase Windex Multi-Surface Cleaner does not furnish a basis to dismiss the claims involving that product. Conclusion For the foregoing reasons, Judge Abrams granted S.C. Johnson's motion to dismiss. The Complaint is dismissed without prejudice, except with respect to the Plaintiffs' prayers for injunctive relief, which are dismissed with prejudice. The Plaintiffs may file an amended complaint that corrects the deficiencies identified above, should they have a good-faith basis to do so. Any amended complaint is due within three weeks of the date of the Order, although to the extent the Plaintiffs need a brief extension of time to investigate, they may request it. The post-discovery conference previously scheduled for Oct. 1, 2021 is adjourned sine die. The Clerk of Court is respectfully directed to amend the caption, and to terminate the motion pending at Dkt. 27. A full-text copy of the Court's Sept. 24, 2021 Opinion & Order is available at https://tinyurl.com/4v74j3xr from Leagle.com. SABOR TROPICAL: Ramirez Sues Over Delivery Workers' Unpaid Wages ---------------------------------------------------------------- ENRIQUE HERNANDEZ RAMIREZ, individually and on behalf of others similarly situated, Plaintiff v. SABOR TROPICAL RESTAURANT CORP. (D/B/A SABOR TROPICAL), DIANELBA EUSTATE SANTOS, and JOSE EUSTATE SANTOS, Defendants, Case No. 1:21-cv-08019 (S.D.N.Y., Sept. 27, 2021) arises from the Defendants' failure to pay minimum and overtime wages, failure to provide a written wage notice, failure to furnish accurate wage statements, failure to reimburse business-related expenses, and failure to pay on a regular weekly basis, all in violation of the Fair Labor Standards Act and the New York Labor Law. The Defendants own, operate, or control a Dominican restaurant, located in New York under the name "Sabor Tropical." Plaintiff Hernandez was employed as a delivery worker at the restaurant from approximately September 2020 until September 4, 2021. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 SOUTH CENTRAL: Hearing on Class Action Suit for Students Delayed ---------------------------------------------------------------- Greg Sapp at thexradio.com reports that the State Department of Public Health has changed language in revised health guidelines for schools which has caused lawsuits against the South Central and Odin School Districts that were scheduled for hearings to be delayed. WJBD Radio in Salem reports the attorney for students in both school districts seeking class action status on behalf of all students not to wear masks unless they are quarantined by public health officials asked for a continuance to refile the lawsuits as a result. Thomas DeVore had been successful in getting the mask ban lifted for students in the Carlyle School District and individual students in several other school districts before State Public Health Officials revised the guidance in their emergency public health order. The attorney for the Odin School District, Christian Miller, sited the revised guidance in his answer to DeVore's lawsuit. Miller says the new guidance requires all teachers, staff, and visitors to pre-school to 12 grade facilities to wear a mask while indoors regardless of vaccination status. As a result, Miller says the temporary restraining order lacks legal support under the Public Health Act. Before the change, DeVore argued successfully that the masks are designed to prevent the spread of illness and there was no health regulation to require healthy students to wear masks. The South Central Lawsuit was brought by Elaine Owens as the guardian of two students and the Odin lawsuit by Ashley Holland as a parent of a student. [GN] ST. ELIZABETH: Obtains Favorable Ruling in Vaccine Rule Lawsuit --------------------------------------------------------------- Kake.com reports that a federal judge has ruled that a Ohio healthcare provider could require its employees get vaccinated against COVID-19 or risk losing their job. It is considered to be the first ruling of its kind for a private employer in America. The employees of St. Elizabeth Healthcare were unable to show the judge that their individual liberties were being violated by the vaccine requirement of the hospital operator, which has the right to set the employment terms, said U.S. District Judge David Bunning in Covington, Kentucky. The employees need to be vaccinated by Oct. 1. The widespread availability of vaccines in the United States helped to reduce infections in the spring and early summer but the Delta variant has led to a new spike in cases and hospitalizations. The person who represented the employees, Alan Statman, said that the group is looking at its next steps. Bunning's ruling is the first involving a request for an injunction against a private employer's COVID-19 vaccine mandate, said Mark Guilfoyle, a lawyer who represented St. Elizabeth. Also on Sept. 24, the Biden Administration spelled out plans to require federal contractors to get vaccinated, which will apply to tens of millions of Americans. Employer vaccine requirements have spawned numerous lawsuits, although most are still in the initial stages and the ones that have proceeded to a judge have been tossed. A federal judge in June dismissed a lawsuit against Houston Methodist Hospital under Texas wrongful termination law. The class action on behalf of St. Elizabeth employees was based in part worries that the vaccine wasn't as effective as it could be, among other claims. Bunning said that their suspicions couldn't override the law. "If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant -- the right to seek other employment," wrote Bunning. [GN] STATE FARM: New Jersey Court Dismisses Fox's Amended Class Suit --------------------------------------------------------------- In the case, KEVIN FOX, individually and on behalf of a class of similarly situated persons, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant, Case No. 2:20-cv-18131 (BRM) (ESK) (D.N.J.), Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey granted State Farm's Motion to Dismiss Plaintiff Fox's Amended Complaint. Background The action concerns a dispute over insurance coverage. At all times relevant to the Amended Complaint, the Plaintiff was the owner of real property located at 16 Falcon Run, Kinnelon, New Jersey 07405. The Property was insured under a policy issued by State Farm. On April 13, 2020, the Property suffered damage from a covered event under the Policy. The Plaintiff reported the occurrence to State Farm, which opened a claim file, but he was not satisfied with State Farm's handling of the claim and hired North Jersey Public Adjusters Inc. to adjust the claim on his behalf. On May 6, 2020, North Jersey emailed a construction cost estimate to State Farm with a replacement cost of $145,816.88. On July 8, 2020, State Farm responded to the estimate and stated the Plaintiff's estimate from North Jersey included items that exceeded the scope of repairs pertaining to the loss, but did not specify which items were considered beyond the scope of repairs. In its response, State Farm included its own estimate, which indicated a replacement cost for the Property of $28,536.76. The Plaintiff claims State Farm's estimate used "a format and methodology that significantly differed from the North Jersey estimate, such that it was, as a practical matter, virtually impossible for the Plaintiff or his adjuster to determine how and to what extent State Farm was claiming a difference in the 'scope' of the necessary repairs." On July 17, 2020, North Jersey sent State Farm an email with an Agreement for Submission to Appraisers attached. On July 20, 2020, State Farm sent North Jersey a letter refusing to submit to an appraisal of the claim. On July 21, 2020, North Jersey sent State Farm estimates from Plaintiff's contractor, American Eagle Ext. LLC, totaling about $88,000. The American Eagle invoices represented the Property's repair using construction methods inferior to what the Plaintiff was entitled "in an effort to compromise his demand" and resolve the dispute over the amount of loss. On July 29, 2020, North Jersey sent State Farm an email attempting to comply with State Farm's demand for a detailed itemization, even though, according to the Plaintiff, State Farm had no basis for making such a demand which placed unauthorized preconditions on Plaintiff's right to appraisal. On Aug. 7, 2020, State Farm again refused to submit to appraisal because appraisal "does not apply to disputes as to the extent of damage, the scope of work required, the cause of damage, or other coverage questions." That is, State Farm refused to comply with the Plaintiff's demand for appraisal because his contractor proposed to fix the Property's damaged roof by replacing all of it, whereas State Farm's contractor would fix the roof by only replacing the damaged portions. The Plaintiff and State Farm agreed the Property's roof had been damaged, was in need of repair, the occurrence resulting in the damaged roof was a covered event, and the repair of the roof was a covered item under the Policy. They disagreed over what method to use to repair the roof, which resulted in a failure to agree on the cost of the job. The Plaintiff further asserts State Farm mischaracterized the dispute as relating to the extent of coverage and scope of work required to repair the damage to the Property and contends the actual dispute stems from a failure to agree on the value of the loss. As a result, the Plaintiff alleges State Farm "has deviated from the statutory appraisal requirement." Upon information and belief, the Plaintiff alleges State Farm has engaged in the above conduct "with such frequency as to indicate a general business practice," which violates N.J. Stat. Ann. Section 17:29-4. On Nov. 3, 2020, the Plaintiff filed a Complaint in the Superior Court of New Jersey, Law Division, Morris County. State Farm received notice of the Plaintiff's Complaint on Nov. 4, 2020 and removed the action to the Court on Dec. 4, 2020. On Dec. 28, 2020, State Farm filed a motion to dismiss the Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On Feb. 11, 2021, the Court administratively terminated State Farm's initial Motion to Dismiss and directed the Plaintiff to address the deficiencies noted in State Farm's Motion and Reply in an amended complaint. On March 5, 2021, the Plaintiff filed the Amended Complaint currently before the Court alleging Declaratory Judgment/Reformation (Count One), Breach of Contract (Count Two), Breach of Covenants (Count Three), and Consumer Fraud (Count Four) against State Farm. The Plaintiff's Amended Complaint also asserts class action allegations for Declaratory Judgment/Reformation on behalf of Class A1 (Count Five), Breach of Contract on behalf of Subclass A-12 (Count Six), Breach of Contract on behalf of Subclass A-2 (Count Seven), Breach of Covenants on behalf of Subclass A-2 (Count Eight), and Consumer Fraud on behalf of Subclass A-2 (Count Nine). On April 2, 2021, State Farm filed a Motion to Dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On April 5, 2021, the Plaintiff opposed the Motion, and on April 26, 2021, State Farm replied. Discussion State Farm argues the Plaintiff's individual claims under Counts One, Two, Three, and Four each fail to state a claim, which renders Plaintiff's class action claims subject to dismissal under Federal Rule of Civil Procedure 12(b)(6). The Plaintiff argues each of his individual claims properly state a claim. A. Count One: Declaratory Judgment or Reformation of the Policy The Plaintiff alleges he is entitled to reformation of the Policy's appraisal provision because "the belief of the parties that all of the provisions were in compliance with New Jersey law constituted a mutual mistake of fact." He asserts State Farm relied on the approval of the Commissioner of the New Jersey Department of Banking and Insurance ("DOBI") that the provisions of his policy complied with New Jersey, but the Policy's provisions did not comply with N.J. Stat. Ann. Section 17:36-5.20 because the Policy did not provide the Plaintiff "with substantially equivalent or more favorable terms than those contained in N.J. Stat. Ann. Section 17:36-5.20." Accordingly, the Plaintiff asks the Court to declare the appraisal provision contained in HW-2130 of the Policy "does not provide substantially equivalent or more favorable terms than those contained in N.J. Stat. Ann. Section 17:36-5.20" and reform the Policy's language by replacing its appraisal provision with the standard appraisal language found in N.J. Stat. Ann. Section 17:36-5.20. State Farm contends the Plaintiff fails to state a claim under Count One because (1) he cannot challenge the DOBI Commissioner's approval of Form HW-2130 and (2) he has not alleged a mutual mistake of fact. The Plaintiff argues N.J. Stat. Ann. Section 17:36-5.20 gives the DOBI Commissioner power to approve forms for expanding rights granted under that statute, but "never for the purposes of abridging them." Judge Martinotti opines that the Plaintiff has not established a mutual mistake of fact between the parties that would justify reformation of the Policy. Among other things, the Judge finds that (i) the Plaintiff offers no argument as to how the appraisal provision in HW-2130 deviates from N.J. Stat. Ann. Section 17:36-5.20 such that the DOBI, viewing the Policy in its entirety, could find HW-2130 is not substantially or equivalent to or more favorable to the insured; and (ii) the Plaintiff does not allege the existence of a prior agreement between the parties that would justify reformation on basis of mutual mistake, as the Policy was the only agreement between the parties. Accordingly, the Plaintiff's claim for Declaratory Judgment or Reformation of the Policy under Count One is dismissed. B. Count Two: Breach of Contract The Plaintiff alleges State Farm "breached the terms of the contract of insurance, both as originally written and, to the extent that the relief sought in Count One above is granted, as reformed by the Court." Specifically, he contends State Farm breached the insurance contract when it "demanded the Plaintiff provide an itemization of disputed issues" and "mischaracterized disagreements over the cost of repairs as disputes over 'scope.'" State Farm argues it could not have breached the Policy by requesting an itemization required by the Policy because the Plaintiff's claim for reformation fails as a matter of law, and even if it didn't, the Plaintiff's breach of contract claim would still fail because he was not harmed by the itemization requirement. Further, State Farm argues its choice to decline to appraise the issues under the Policy that are not appraisable in the first place does not constitute breach. Judge Martinotti dismissed the Plaintiff's breach of contract claim under Count Two. He finds that reformation is improper because there is no prior agreement that could serve as the basis of mutual mistake as required by New Jersey law. State Farm merely enforced the Policy by requiring Plaintiff to provide an itemization of disputed issues. Therefore, Plaintiff has not adequately alleged that State Farm breached the Policy by requiring the Plaintiff to provide an itemization of issues in dispute. The Judge further finds that the Plaintiff does not offer a competing theory of causation and merely argues State Farm mischaracterized issues of cost to avoid the appraisal process. Therefore, because the parties' dispute centered on the Policy's coverage and the cause of the damage, the Plaintiff has not properly alleged that State Farm breached the appraisal provision of the Policy by denying Plaintiff's demand for appraisal. C. Count Three: Breach of the Covenant of Good Faith and Fair Dealing In Count Three, the Plaintiff alleges if "State Farm is found not to have violated the express terms of the insurance contract, it has nevertheless acted tortiously and in bad faith, and has breached the covenants of good faith and fair dealing." State Farm argues this claim should be dismissed "because it is duplicative and fails to satisfy the pleading requirements for a bad faith claim." The Plaintiff argues his claim for breach of the implied covenant of good faith and fair dealing "does not put it in danger of a duplication of damages." Judge Martinotti finds that the Plaintiff's allegations underlying his breach of the implied covenant of good faith claim are based upon the same conduct as his allegations underlying his breach of contract claim. For clarity, the Plaintiff's main allegations under his breach of contract claim are that State Farm breached the Policy by requiring him to provide an itemization of disputed issues and by mischaracterizing disagreements over the cost of repairs as disputes over the Policy's scope, which are repeated in his allegations underlying his claim for breach of the implied covenant of good faith and fair dealing because the Plaintiff's claim for breach of the implied covenant of good faith and fair dealing is duplicative of his breach of contract claim, the Plaintiff fails to state a claim under Count Three. Accordingly, the Plaintiff's claim for breach of the implied covenant of good faith and fair dealing under Count Three is dismissed. D. Count Four: Violation of the New Jersey Consumer Fraud Act The Plaintiff alleges State Farm's refusal to submit his claim to appraisal "constituted an unconscionable commercial practice, deception, fraud, false pretense, false promise, and misrepresentation" which violates the New Jersey Consumer Fraud Act ("CFA"), N.J. Stat. Ann. Section 56:8-1, et seq. He points toward State Farm's demand that Plaintiff provide an itemization of disputed issues and mischaracterization of disagreements over the cost of repairs as examples of violations. State Farm argues the CFA does not apply to claims arising from the denial of insurance benefits, and even if it did, the Plaintiff fails to state a claim under the CFA. The Plaintiff contends that while the Supreme Court of New Jersey has not decided whether the CFA applied to fraudulent conduct in the servicing of policies, the Third Circuit has predicted the New Jersey Supreme Court would find the CFA applicable when an insurance company is alleged to have fraudulently performed an insurance contract with an insured. Since the Plaintiff is seeking damages under the CFA arising from State Farm's denial of his appraisal benefit, Judge Martinotti holds that CFA is not applicable. Even if the CFA applied to State Farm's denial of the Plaintiff's demand for appraisal, the Plaintiff fails to state a claim under the CFA. The Plaintiff provides vague allegations to support his CFA claim that do not satisfy Rule 9(b)'s heightened pleading requirements. These conclusory allegations do not satisfy Rule 8's lower pleading standards, let alone Rule 9(b)'s heightened pleading requirements. Therefore, the Plaintiff's claim for violation of the CFA under Count Four is dismissed. E. Plaintiff's Class Action Allegations In addition to the Plaintiff's individual claims, he asserts class action claims on behalf of "all State Farm fire insurance policyholders insured for property located in New Jersey, whose policy includes endorsement HW-2130." State Farm argues the Plaintiff's class claims should be dismissed because his individual claims fail. Judge Martinotti finds that the Plaintiff does not offer any argument in opposition on this issue, but generally asserts State Farm's Motion "should be denied in its entirety, and as to all counts." At this stage in the litigation, the class Plaintiff seeks to establish has not been certified. When, a court dismisses a named plaintiff's individual allegations, the plaintiff's class allegations will also be dismissed. Accordingly, because he has dismissed each of the Plaintiff's individual claims and because the Plaintiff's purported class has not yet been certified, Judge Martinotti dismissed the Plaintiff's class allegations. Conclusion For the reasons he set forth, Judge Martinotti granted State Farm's Motion to Dismiss Plaintiff's Amended Complaint, and dismissed the Plaintiff's Amended Complaint. An appropriate order will follow. A full-text copy of the Court's Sept. 24, 2021 Opinion is available at https://tinyurl.com/yj39urmd from Leagle.com. TAWKIFY INC: Stanfield Appeals Summary Judgment Ruling to 9th Cir. ------------------------------------------------------------------ Plaintiff Jeremy Stanfield filed an appeal from a court ruling entered in the lawsuit entitled JEREMY STANFIELD, Plaintiff v. TAWKIFY, INC., Defendant, Case No. 3:20-cv-07000-WHA, in the U.S. District Court for the Northern District of California, San Francisco. Tawkify is a dating website. Mr. Stanfield had paid $3,700 to Tawkify to arrange six dates, two of which occurred but not to his satisfaction. He sought to cancel the contract and demanded a full refund. After obtaining only a partial refund, Stanfield filed this lawsuit, anchoring his claims in California's Dating Services Contract Act. Then he received a full refund. Tawkify sought to compel arbitration of the matter. Judge William Alsup denied the Defendant's motion to compel arbitration. On Sep. 15, 2021, the Court entered summary judgment in favor of Defendant. The Plaintiff seeks a review of this ruling. The appellate case is captioned as Jeremy Stanfield v. Tawkify, Inc., Case No. 21-16570, in the United States Court of Appeals for the Ninth Circuit, filed on Sept. 24, 2021. The briefing schedule in the Appellate Case states that: -- Appellant Jeremy Stanfield Mediation Questionnaire was due on Oct. 1, 2021; -- Transcript shall be ordered by Oct. 25, 2021; -- Transcript is due on Nov. 23, 2021; -- Appellant Jeremy Stanfield opening brief is due on Jan. 3, 2022; -- Appellee Tawkify, Inc. answering brief is due on Feb. 3, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant JEREMY STANFIELD, on behalf of himself and all others similarly situated, is represented by: Elliot Jason Conn, Esq. CONN LAW, PC 354 Pine Street, 5th Floor San Francisco, CA 94104 Telephone: (415) 417-2780 E-mail: elliot@connlawpc.com - and - Monique Olivier, Esq. Christian Schreiber, Esq. OLIVIER SCHREIBER & CHAO LLP 201 Filbert Street, Suite 201 San Francisco, CA 94133 Telephone: (415) 484-0980 E-mail: monique@osclegal.com christian@osclegal.com Defendant-Appellee TAWKIFY, INC. is represented by: Jahmy S. Graham, Esq. Priscilla Szeto, Esq. NELSON MULLINS RILEY & SCARBOROUGH LLP 19191 South Vermont Avenue Torrance, CA 90502 Telephone: (424) 221-7400 E-mail: jahmy.graham@nelsonmullins.com priscilla.szeto@nelsonmullins.com TRAVELERS INDEMNITY: Poughkeepsie Suit Dismissed With Prejudice --------------------------------------------------------------- In the case, POUGHKEEPSIE WATERFRONT DEVELOPMENT, LLC, Plaintiff v. THE TRAVELERS INDEMNITY COMPANY OF AMERICA, et al., Defendants, Case No. 20-CV-4890 (KMK) (S.D.N.Y.), Judge Kenneth M. Karas of the U.S. District Court for the Southern District of New York grants the Defendants' Motion to Dismiss. Poughkeepsie brings the case as a proposed class action on behalf of itself and all others similarly situated, against the Travelers Indemnity Company of America and the Travelers Companies, Inc. for breach of contract claims and declaratory judgment under the Business Income and Civil Authority provisions of an insurance policy issued by the Defendants for its property located at 176 Rinaldi Boulevard, in Poughkeepsie, New York for losses related to the COVID-19 pandemic and government orders issued in connection with it. The Plaintiff submitted a claim for coverage under the Policy, which the Defendants denied. Before the Court is the Defendants' Motion to Dismiss. For the reasons articulated in the Court's recent decision in the related case, WM Bang LLC, et al. v. Travelers Casualty Insurance Company of America, No. 20-CV-4540, 2021 WL 4150844 (S.D.N.Y. Sept. 13, 2021), Judge Karas grants the Defendants' Motion To Dismiss. First, Judge Karas finds that the Plaintiff has failed to state a claim for Business Income, Extra Expense, or Extended Business Income coverage because the Complaint does not plead facts to support an essential requirement to trigger coverage under the Policy: The existence of "direct physical loss of or damage to property at the described premises" which is "caused by or resulting from a Covered Cause of Loss." Second, the Complaint fails to allege facts that would establish the critical elements for Civil Authority coverage, including that the Orders prohibited access to the Plaintiff's Property and that the Orders were issued in response to prior direct physical loss of or damage to property other than the insured premises that was caused by a Covered Cause of Loss. Third and finally, even if the Plaintiff could establish "direct physical loss of or damage to property," which it has not done, the alleged loss was not caused by or resulted from a Covered Cause of Loss, as required by the Policy. In fact, the Policy contains an explicit exclusion of property coverage for "loss or damage caused by or resulting from any virus that induces or is capable of inducing physical distress, illness or disease." Based on this identical Virus Exclusion, the Court and others have concluded that coverage on the Policy was precluded. Because the Complaint does not plead facts sufficient to support the Plaintiff's entitlement to coverage under the Policy, the breach of contract claim fails as a matter of law, and the Plaintiff is not entitled to declaratory relief. For the foregoing reasons, Judge Karas granted the Defendant's Motion and dismissed the Complaint with prejudice. The Clerk of Court is respectfully directed to terminate the pending Motion and close the case. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/vn3hrd2r from Leagle.com. TRIHEALTH INC: Court Dismisses Forman's Amended Class Complaint --------------------------------------------------------------- In the case, DANIELLE FORMAN, et al., Plaintiffs v. TRIHEALTH, INC., and the TRIHEALTH 401(K) RETIREMENT SAVINGS PLAN RETIREMENT COMMITTEE, Defendants, Case No. 1:19-cv-613 (S.D. Ohio), Judge Matthew W. McFarland of the U.S. District Court for the Southern District of Ohio, Western Division, Cincinnati, granted Defendant TriHealth's Motion to Dismiss Plaintiffs' Amended Class Action Complaint. Background The Plaintiffs contend that Defendants TriHealth, Inc. and the TriHealth 401(k) Retirement Savings Plan Retirement Committee breached their duties of prudence and loyalty to the Plaintiffs in administering their retirement savings plan, a defined contribution plan. The Plan is sizeable, having more than 10,000 participants since 2013. n 2013, its assets exceeded $100 million, and in 2017, its assets exceeded $457 million. The Plan offered "about 25 different investment choices to its participants." According to the Plaintiffs, the Defendants breached their fiduciary duties in two ways: permitting the Plan to incur high administrative fees and offering and failing to remove underperforming funds with higher fees when there were other, similar funds that charged lower fees and achieved higher returns. Indeed, the Plaintiffs allege that "for every year between 2013 and 2017, the administrative fees charged to Plan participants are greater than the fees of more than 90% of comparable 401(k) plans, when fees are calculated as cost per participant or when fees are calculated as a percent of total assets." The Plaintiffs base this allegation on a benchmarking analysis used to analyze the fees over the identified period. They alleged that the Plan's fees were "excessive when compared with other comparable 401K plans offered by other sponsors that had similar numbers of plan participants, and similar amounts of money under management." These excessive fees thus led to lower net returns as compared to other comparable 401K plans. The Plaintiffs argued that the Plan's fees could have been reduced many times by simply "electing a different share class offered by the same issuer, or substantially identical fund from a different issuer." The Plaintiffs initially challenge 17 of the mutual funds offered in the Plan. According to them, the issuers of these 17 mutual funds "offered different share classes that charged lower fees, and had materially better rates of return. The holders of different share classes held the same investments, and were subject to the same restrictions concerning deposits and withdrawals." Indeed, the Plaintiffs allege the "only difference between share classes was that the lower-cost share classes were available only to Plans that had larger investments -- but in all cases, the Plan with more than $200 million in assets, was large enough to qualify for the lower cost share class." The Plaintiffs included a chart showing the 17 fund and share classes, the fee (measured by basis points), and the three-year annualized return as compared with the "Lower Cost Available Share Class," its fees, and three-year annualized returns. This chart reflects that the Plan's fee was higher for each fund than the "lower cost" fund, and similarly shows that the Plan's three-year annualized return was less than the "lower cost" fund -- by less than one percent, and for many, by less than half a percent. It is not clear in the chart precisely which years are included in this three-year annualized number, and it also does not identify the annual returns in any way. The Plaintiffs continue that the remaining shares of the Plan's investment funds "were materially more expensive, and the fees' net return materially worse, than available alternatives in the same investment style." This chart similarly reflects that the Plan's fee was higher for each fund than the "lower cost" fund, and similarly shows that the Plan's three-year annualized return was less than the identified "lower cost" fund -- by no more than just over two percentage points for two funds and less than one percentage point for most. The Plaintiffs contend they had "no knowledge of defendant's process for selecting investments and monitoring them to ensure they remained prudent. They also had no knowledge of how the fees charged to and paid by TriHealth Plan participants compared to any other funds." The Plaintiffs also had no information pertaining to less expensive and better-performing investment options the Defendants did not offer, as the Defendants did not provide any "comparative information to permit the Plaintiffs to evaluate the Defendants' investment options." Thus, according to the Plaintiffs, "by selecting and retaining the Plan's unreasonably expensive cost investments while failing to adequately investigate the use of lower cost share classes, offered by the same investment companies, or superior, lower-cost mutual funds from other fund companies that were readily available to the Plan," they lost millions of dollars "through unreasonable fees and poorly performing investments." The Plaintiffs further allege that the Defendants failed to employ a prudent and loyal process by failing to critically or objectively evaluate the cost and performance of the Plan's investments and fees in comparison to other investment options. The Defendants selected and retained for years as Plan investment options mutual funds with high expenses relative to other investment options that were readily available to the Plan at all relevant times. Finally, the Plaintiffs maintain that the Defendants failed to engage in a prudent process for monitoring the Plan's investments and removing imprudent ones within a reasonable period. This resulted in the Plan continuing to offer unreasonably expensive funds and share classes compared to equivalent and/or comparable low-cost alternatives that were available to the Plan. Through these actions and omissions, the Defendants failed to discharge its duties with respect to the Plan in violation of its fiduciary duty of loyalty under 29 USC 1104(a)(1)(A). The case is before the Court on TriHealth's Motion to Dismiss. The Plaintiffs filed their Response in Opposition, to which the Defendant filed a Reply. Subsequently, the parties filed numerous Notices of Supplemental Authority for the Court's consideration. Analysis The Defendants move to dismiss the Amended Complaint for failure to state a claim, making two arguments. First, they argue that the Plaintiffs' claims are barred by the applicable statute of limitations, and second, that the Plaintiffs failed to adequately plead their breach of the duty of prudence and loyalty claims such that dismissal is required. A. The Extraneous Documents Filed by Defendants Before addressing the Defendants' substantive arguments, Judge McFarland must first address whether it can consider the extraneous documents filed by the Defendants in support of their Motion to Dismiss, which they contend are properly before the Court because the documents are either referenced in the Complaint or integral to the Plaintiffs' claims. The Plaintiffs disagree. The Defendants rely on these extraneous documents primarily to support their argument that the Plaintiffs' claims are barred by the statute of limitations. However, Judge McFarland holds that these documents are no longer relevant to that analysis. Although the Defendants cite to Exhibits G and H in support of their failure to state a claim argument, they do so in support of the proposition that Defendants documented and disclosed their decision-making process to the Plaintiffs. But, at this juncture, it is not the Court's role to bless the Plan or the Defendants' processes associated with it. As such, this argument is not relevant to the adjudication of the Defendants' arguments, and the Court need not consider them. Accordingly, McFarland has decided the Motion without consideration of these extraneous documents and thus need not decide whether such documents are properly before the Court. B. Statute of Limitations The Defendants' first argument is that the Plaintiffs' claim is time-barred. They argue that the Plaintiffs' claims are time-barred under the three-year statute of limitations of subsection (2) because the Plaintiffs had "actual knowledge" of the Plan's offerings, performance, and fees -- the "relevant facts and information supporting their claims" -- since at least March 2013. Judge McFarland holds that nothing in the Amended Complaint reflects the Plaintiffs' receipt or review of any disclosures. And Defendants do not contend Plaintiffs actually reviewed the disclosures. Indeed, the Defendants base their arguments solely on the disclosure being sufficient to establish actual knowledge. But Intel Corp. Inv. Policy Comm. v. Sulyma, 140 S.Ct. 768 (2020) makes clear that disclosure is insufficient to satisfy the "actual knowledge" requirement -- a defendant must show that a plaintiff was actually aware of that relevant information. Because statute of limitations is an affirmative defense, thus placing the burden of proof and persuasion on a defendant, award of judgment on this basis is generally inappropriate at the motion to dismiss stage. The Defendants have not argued, nor do the pleadings show, that the Plaintiffs were actually aware of the information allegedly disclosed to them. Accordingly, at this preliminary juncture, Judge McFarland cannot conclude that the Plaintiffs' claims are barred by Section 1113(2). C. Failure to State a Claim The Defendants next argue that the Court should dismiss the Plaintiffs' Amended Complaint because the Plaintiffs have not alleged sufficient facts to plausibly state a claim for which they would be entitled to relief. The Plaintiffs allege that the Defendants breached their duty of prudence and their duty of loyalty. First, Judge McFarland holds that the Plaintiffs have failed to identify a meaningful benchmark and have not alleged sufficient underperformance to demonstrate that the funds they have identified were imprudently retained by the Defendants. The facts as plead do not permit an inference supporting a plausible claim that the Defendants behaved imprudently. Second, Judge McFarland holds that the Plaintiffs fail to sufficiently allege a breach of loyalty claim. They do not assert any allegations of self-dealing, nor do they sufficiently allege facts to show that Defendants' actions were for their own benefit, or for the benefit of someone else other than the beneficiaries. Indeed, their allegations pertaining to the breach of the duty of loyalty primarily reincorporate their breach of the duty of prudence allegations. This is plainly insufficient. Conclusion For the reasons he discussed, Judge McFarland granted the Defendants' Motion to Dismiss. The facts as pled do not raise a plausible inference that the Defendants breached their fiduciary duties. A full-text copy of the Court's Sept. 24, 2021 Order is available at https://tinyurl.com/ynt22ecx from Leagle.com. UNITED AIRLINES: Faces Employee Discrimination Lawsuit in Texas --------------------------------------------------------------- mustreadalaska.com reports that six United Airlines employees filed a federal lawsuit in Texas that claims the airlines is discriminating against employees who ask for a religious or medical exemptions from the company's Covid-19 vaccine mandate. The class action lawsuit asked for a temporary restraining order or a preliminary injunction. "United's actions have left Plaintiffs with the impossible choice of either taking the COVID-19 vaccine, at the expense of their religious beliefs and their health, or losing their livelihoods. In doing so, United has violated Title VII and the ADA by failing to engage in the interactive process and provide reasonable accommodations, and also by retaliating against employees who engaged in protected activity," the lawsuit contends. Two of the plaintiffs are captains who were denied his request for a religious exemption. At least one of them also wanted a medical exemption but the online system for claiming an exemption only allowed for one or the other. The same with a jet mechanic, who wanted to declare both exemptions. "Because United stated that it was no longer accepting requests through its online accommodation request system on August 31, 2021, which was the only formal mechanism United offered its employees to submit an accommodation request, Mr. Castillo made the unilateral decision to request these accommodations through his supervisor. A United Human Resources representative has now informed Mr. Castillo through his supervisor that the religious accommodation request is untimely, but that Mr. Castillo may submit his medical request. Mr. Castillo's religious accommodation request has thus been administratively denied," the lawsuit says. A station operations representative with United requested a religious accommodation from United's vaccine mandate, to which United responded by offering only an indefinite period of unpaid leave as a "reasonable accommodation." According to United's rules, employees must receive their first dose of vaccine by Sept. 27 or face termination. The lawsuit also notes that United no longer requires deep cleaning of its aircraft after each flight, as it did at the beginning of the pandemic, instead burdening employees with having to submit to a medical procedure -- a shot -- in order to try to ensure a safe environment. United flies to and from Anchorage and places like Chicago, Denver, San Antonio, Houston, Los Angeles, Pittsburgh, Cleveland, and many other major airline hubs. [GN] VELVET YOGURT: Faces Perez Suit Over Failure to Pay Proper Wages ---------------------------------------------------------------- MAYTE PEREZ, an individual, on behalf of herself and others similarly situated, Plaintiff v. VELVET YOGURT, INC. d/b/a ACTIVE CULTURE, a California corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 30-2021-01221399-CU-OE-CXC (Cal. Super., Orange Cty., Sept. 15, 2021) arises from the Defendants' failure to pay all wages, failure to pay overtime wages, failure to provide meal periods or compensation, failure to permit rest periods or provide compensation, failure to provide accurate itemized wage statements, waiting time penalties, failure to reimburse business expenses, and for violation of the Unfair Competition Law. The Plaintiff was employed by the Defendant as a non-exempt employee. Velvet Yogurt, Inc., d/b/a Active Culture, is a corporation doing business throughout the State of California, with its principal place of business in Orange County.[BN] The Plaintiff is represented by: Jose R. Garay, Esq. JOSE GARAY, APLC 249 E. Ocean Blvd. #814 Long Beach, CA 90802 Telephone: (949) 208-3400 Facsimile: (562) 590-8400 E-mail: jose@garaylaw.com - and - Daniel J. Hyun, Esq. Shelly D. Song, Esq. LAW OFFICE OF DANIEL J. HYUN 1100 West Town and Country Road, Suite 1250 Orange, CA 92868 Telephone: (949) 596-4782 Facsimile: (949) 528-2596 E-mail: dh@danielhyunlaw.com ss@danielhyunlaw.com VERSACE BERTONI: Fails to Pay Proper Overtime Wages, Barboza Says ----------------------------------------------------------------- CESAR GUSTAVO BARBOZA, and other similarly situated individuals, Plaintiff v. VERSACE BERTONI GELATO LLC d/b/a KONOS; GV AVENTURA LLC d/b/a KONOS; GV SUNNYISLES LLC d/b/a KONOS; and STEFANO VERSACE, Defendants, Case No. 1:21-cv-23437 (S.D. Fla., Sept. 24, 2021) is a class action seeking to recover money damages for unpaid overtime wages pursuant to the Fair Labor Standards Act. According to the complaint, between June 10, 2019, and July 17, 2020, Plaintiff worked in excess of 40 hours in a workweek without being compensated at the rate of not less than one- and one-half times the regular rate at which he was employed. He was employed as a production worker and pizza maker, performing the same or similar duties as that of those other similarly situated production workers and pizza makers whom Plaintiff observed working in excess of 40 hours per week without overtime compensation. The Corporate Defendants are engaged in providing food items and services in Miami-Dade County, Florida.[BN] The Plaintiff is represented by: Tanesha Walls Blye, Esq. Aron Smukler, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: tblye@saenzanderson.com asmukler@saenzanderson.com msaenz@saenzanderson.com WAITR HOLDINGS: Wins Partial Summary Judgment in Bobby's Suit ------------------------------------------------------------- In the case, BOBBY'S COUNTRY COOKIN', LLC, v. WAITR HOLDINGS, INC., Civil Action No. 2:19-CV-00552 (W.D. La.), Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana, Lake Charles Division, granted in part and denied in part Waitr's Motion for Partial Summary Judgment. Background Before the Court is the Motion for Partial Summary Judgment filed by Defendant Waitr. An Opposition was filed by Plaintiffs Bobby's, Casa Manana, Inc., Que Pasa Taqueria, LLC, and Casa Tu Sulphur, LLC, on Sept. 15, 2021. A Reply was filed by Waitr on Sept. 22, 2021. On April 30, 2019, Bobby's filed a Class Action Complaint individually, and on behalf of all persons or entities nationwide who are similarly situated. Bobby's Complaint alleged breach of contract (Count I), violation of the duty of good faith and fair dealing in the breach of contract (Count II); and unjust enrichment (Count III). Waitr operates an online food and delivery platform contracting with restaurant partners to be part of its network of restaurants from which customers place orders for delivery of food. Waitr drivers pick up orders from a restaurant partner and deliver it to the customer. The customer's payment is then processed through an online payment system that automatically pays the restaurant and remits a Service Transaction Fee ("STF") to Waitr. Bobby's entered into a Master Service Agreement ("MSA") with Waitr on July 27, 2017. The STF was 10% of the transaction amount. The STF was increased by Waitr to 15% on Aug. 13, 2018. Casa Manana entered into a Subscription Service Agreement ("SSA") with Waitr on Oct. 15, 2015. The STF was initially 3.5%, but was increased by Waitr on Nov. 1, 2017 to 15%, and increased again on June 20, 2020 to 25%. Que Pasa entered into a SSA with Waitr on Feb. 10, 2016. The STF was initially 3.5%, but was increased by Waitr on Nov. 1, 2017 to 15%, and increased again on June 24, 2020 to 25%. Casa Tu entered into a SSA with Waitr on Feb. 10, 2016. The STF was initially 3.5%, but was increased by Waitr on Nov. 1, 2017 to 15%, and increased again on Oct. 12, 2019 to 20%. Beginning in the fall of 2017, Waitr sent written notification to the Plaintiffs of their intention to increase the STF to 15%. Written notification sent to Bobby's, Casa Manana, Que Pasa, and Casa Tu, and are attached to the Declaration of Mark Killebrew. On March 19, 2020, a First Amended and Supplemental Class Action Complaint was filed by Bobby's, which added Casa Manana, Que Pasa and Casa Tu. In this amended complaint, Plaintiffs proposed two classes: (1) The Service Transaction Fee Increase Class, and (2) The Agreement Termination Class. In addition to the previous three counts, Plaintiffs added Count IV and Count V, alleging breach of duty and good faith and unjust enrichment on behalf of The Agreement Termination Class. The pending Motion for Partial Summary Judgment addresses the claims against Waitr on behalf of The Service Transaction Fee Increase Class. Discussion Count I (breach of contract), Count II (bad faith breach of contract), and Count III (unjust enrichment) are at issue in the Motion for Partial Summary Judgment regarding The Service Transaction Fee ("STF") Increase Class. A. Breach of Contract Waitr maintains that after the STF increase notifications were sent to the Plaintiffs, none of the Plaintiffs raised an objection until the Class Action Complaint was filed on April 30, 2018. It argues that Bobby's continued receiving and fulfilling orders through the Waitr platform with 15% STF through June 25, 2019. Waitr also maintains that Casa Manana, Casa Tu and Que Pasa continued to accept and fulfill orders from Waitr's food platform until July 19, 2019. It therefore argues that due to the Plaintiffs' silence and acquiescence after being notified of the STF increase, the Plaintiffs agreed to the increased STF and are estopped from alleging breach of contract. According to the arguments of the Plaintiffs, the specific language of the MSA and the SSAs required a modification of the agreement to be in writing and signed by both parties. Since this did not occur, the Plaintiffs argue that their agreements with Waitr were not modified by Waitr's Written Notification to the Plaintiffs. Judge Doughty disagrees with Waitr. He says the wording of the contracts is clear and unambiguous. The contract requires a writing signed by both parties to amend it. The contracts cannot be amended orally or by silence. Even if Waitr is correct that a written contract with a merger clause can be amended by silence and/or acquiescence, there is still a material issue of fact as to whether there was any intent by Plaintiffs to modify the contracts by silence. Although the Plaintiffs do not contest the fact that they continued to use Waitr and to pay the increased STF, they certainly do not admit that they had any intent to modify or amend the contracts. Therefore, Judge Doughty holds that the Plaintiffs' argument that parol evidence cannot be admitted to modify a contract that has an integration clause and a merger clause, has merit. Waitr will not be allowed to introduce evidence of any modification of the contracts by silence, oral agreement, or acquiescence. Waitr's Motion for Partial Summary Judgment is denied as to Count I and II. B. Unjust Enrichment In Count III, the Plaintiffs claim unjust enrichment. Waitr is entitled to summary judgment on Count III because the availability of another remedy at law (the existence of contracts) bars the claim. One of the required elements of a claim for unjust enrichment is that the Plaintiff does not have any other remedy at law. Conclusion For the reasons he set forth, Judge Doughty granted in part and denied in part Waitr's Motion for Partial Summary Judgment. The Motion is denied as to Count I and Count II and is granted as to Count III. A full-text copy of the Court's Sept. 24, 2021 Memorandum Ruling Order is available at https://tinyurl.com/5bfv3ad2 from Leagle.com. WASHINGTON, DC: Female Officers Accuse of Discrimination in Lawsuit ------------------------------------------------------------------- Rachel Pilgrim at theroot.com reports that Black women have to carefully navigate the workplace to avoid the Angry Black Woman trope when speaking up about injustice. This much is true for the former and current Black women officers who filed a class-action lawsuit against the Metropolitan Police Department in Washington, D.C. According to CNN, the lawsuit alleges that the women experienced racial and sexual discrimination, intimidation and a hostile, corrupt workplace. "We were labeled as troublemakers, angry Black women, and I'm here to say that we are not angry Black women," Tabatha Knight, one of the 10 plaintiffs, at news conference, said. "We are tired women and no one should have to endure what we did." CNN reports that Knight along with former officers Sinobia Brinkley, Kia Mitchell, and Regenna Grier, say they were forced out of the department. Among the rest of the plaintiffs are the current assistant police chief Chanel Dickerson and a former officer and 2019 "Officer of the Year" Tiara Brown. NBC News affiliate News4 Washington reports that each plaintiff had their multiple complaints of harassment, misconduct and inappropriate behavior ignored by both their superiors and the department's Equal Employment Opportunity division, which handles these complaints. In some instances, the women say they experienced systemic retaliation for speaking up. From News4: [block quote] Several MPD EEO investigators say they were forced to record all EEO interviews, and the EEO manager would play the tapes for management officers accused of discrimination before the investigators had a chance to speak with them, according to the lawsuit. "Even worse, the investigative reports of claims of racism and sexism were often altered and fraudulently modified to exonerate management personnel. In four years, the MPD EEO Department did not substantiate a single claim of race or gender discrimination," the firm said. [end block quotes] The women are seeking $100 million in compensatory damages, according to CNN, and requesting a special master to oversee and restructure the department's EEO division and personnel practices. The suit also includes many of the troubling experiences the officers experienced. Former officer Mitchell says she complained about a white officer pulling out his penis to urinate in a bottle while in a van with her and other male officers. CNN reports that the officer was not disciplined and was promoted to lieutenant later on. The suit also claims that she and former officer Brinkley experienced retaliation after they complained about riding in a flea-infested vehicle. Officer Leslie Clark, who is still on the force, reported a fellow officer who allegedly showed her a picture of a gun he said he was going to use to assassinate former first lady Michelle Obama. The lawsuit states that after her complaint, her husband, another fellow officer, had to start responding to her calls for backup because other officers would not show up. Another egregious story came from former Officer Knight, who testified before the City Council last year that MPD managers were allegedly changing arrest and crime records to reflect more serious crimes, News4 reports. Their attorneys claim MPD management refused to transfer all the women from abusive superiors or discipline the alleged offenders. "They have all reported up the chain of command. Some have testified to the City Council. Most have reached out to the mayor's office and they have been disbelieved ignored and set aside," lead attorney Pam Keith, according to News4. The filing accuses MPD chiefs of police of removing the Black women officers from assignments and interfering with their work schedules after they complained. Allegedly, EEO officials also referred the complainants to the Internal Affairs Division to be investigated, News4 reports. The MPD issued the following statement, according to both CNN and News4: "While we cannot discuss the specific allegations due to pending litigation, the Metropolitan Police Department is committed to treating all members fairly and equitably throughout our organization. We take these allegations seriously and we will be reviewing them thoroughly and responding accordingly." CNN reports the state's attorney general's office said they have not been served yet and cannot make a comment. [GN] [*] Andalucia Supreme Court Orders Into Pending Class Actions ------------------------------------------------------------- EuroWeekly reports that THE ANDALUCIA Supreme Court has ordered a report into the number of class action cases currently pending trial. The report was ordered by the Andalucia Supreme Court president, Lorenzo del Rio, following concerns that class action cases were clogging up courts in Andalucia and preventing other cases being heard. Mr del Rio has asked the presidents of four sections of the Sevilla criminal court to send him a report on how many class action cases have already been processed by their courts. He has also asked the presidents to tell him how many defendants there are in each case, which will be used to determine how long a case is expected to take. There are reportedly currently more than 170 cases pending trial at the Sevilla criminal court. The number of cases waiting to be heard in Sevilla has caused concerns of delays in the courts and that the workload is causing judges to leave and move to other areas of Spain. Officials are also introducing new measures to move more cases through the courts in Andalucia. The measures include the creation of a new criminal court section as well as the expansion of judges in the current criminal courts so that they will have a total of six judges each, which would allow these sections to be divided up to hold more trials in court. [GN] [*] Class Action Lawsuit Launched on Behalf of Indigenous Mothers ----------------------------------------------------------------- slatervecchio.com reports that this September, a class action lawsuit was started in BC on behalf of mothers who had their newborns taken from them due to a 'birth alert'. A 'birth alert' occurs when a social worker tags pregnant women, so that child protection authorities appear in the hospital as the child is being born. In almost 1/3 of cases, the newborn is taken from the mother due to "speculative child protection concerns". The lawsuit claims that this practice often occurs without evidence and is based on discriminatory assumptions about the mother. The National Inquiry into Missing and Murdered Indigenous Women and Girls report noted that this birth alert practice occurs predominantly to marginalized individuals, including Indigenous mothers. The report furthers that these birth alerts are "racist, discriminatory and a gross violation of human rights". British Columbia had stopped the formal process of birth alerts a couple of years ago, but these alerts have been found to have a long-lasting effect on both mothers and children. Further, in cases surrounding abuse, assault, and systemic mistreatment, there is no limitation date. This means that if an individual was abused by the state 30 years ago, they can still file a lawsuit. The Ministry of Children and Family Development stated that there were around 444 birth alerts in BC from January 2018 until August 2019. Out of these 444 alerts, 257 of them, around 58%, dealt with Indigenous mothers. Unfortunately, most of these mothers aren't told they're subject to a birth alert, which can increase stress and trauma. The results of a Freedom of Information request showed that the BC Ministry of Attorney General concluded that hospital alerts that involve the disclosure of information without parental consent, are illegal in British Columbia law, and may even be unconstitutional on a federal level. This decision, along with the National Inquiry into Missing and Murdered Indigenous Women and Girls report, were the two main reasons that BC decided to end its hospital alert system in September 2019. The goal of the class action lawsuit is to seek justice for individuals that have been negatively impacted and targeted by this system, along with creating a precedent that can be used in future cases regarding the mistreatment of marginalized groups of people. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***