/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/211018.mbx C L A S S A C T I O N R E P O R T E R Monday, October 18, 2021, Vol. 23, No. 202 Headlines ABC PHONES: Anderson Suit Seeks Proper and Timely Wages AETNA INC: Faces Class Action in Calif. Over Denied Claims AMAZON.COM INC: Former Warehouse Worker Files Class Action AMERICAN HONDA: Briefing Schedule for Class Certification Sought AMERICARE INC: Appeals Class Cert. Ruling in Guzman Labor Suit ANDR SERVICES: Fails to Pay Proper Wages, Cervantes Suit Says APPHARVEST INC: Glancy Prongay Reminds of November 23 Deadline APPLETON RENTAL: Allen Sues Over Leasing Agents' Unpaid Overtime AQUA METALS: Hampton Settlement Gets Initial Nod ARROW SENIOR: Loses Bid to Junk Olin-Marquez Suit ASPEN HOME: Extension of Time to File Class Status Bid Sought AVEANNA HEALTHCARE: Court Enters Scheduling Order in Purvis Suit BARCLAYS PLC: Settles Mexican Bond Antitrust Litigation BEER BARN: Grove Suit Seeks to Certify Class of Exotic Dancers BRISTOL-MYERS: Entwistle & Cappucci Files Securities Class Action BROOKDALE SENIOR: Court Enters Case Management Plan & Trial Order CAMBER ENERGY: Rosen Law Firm Investigates Securities Claims CANADA: Deadline Set to Join Settlement of Sexual Misconduct Suit COSTCO WHOLESALE: Settlement in CWS Suit Gets Initial Nod CUYAHOGA COUNTY, OH: Beck, et al. Seek to Certify Class Action DAIMLER AG: Court Narrows Claims in Callen Class Suit DAVID STANLEY: Solberg Bid to Certify Class Stricken w/o Prejudice DEMAR LOGISTICS: Anaya Hits Undisclosed Biometrics Data Retention DEPUY INTERNATIONAL: Settlement Approved in Hip Implant Class Suit DMY TECHNOLOGY: Franchi Sues for Breach of Fiduciary Duties DOMINION ENERGY: Seeks Deadline Extension to Respond to Notice DONALD TRUMP: Files Lawsuit to Get His Twitter Account Back DP HOSPITALITY: Faces Barrales Wage-and-Hour Suit in S.D.N.Y. DUNES FOOD GROUP: Gomez Seeks Unpaid Overtime, Spread-of-Hours Pay EVANSTON, IL: Court Dismisses James Class Suit Without Prejudice FERRELLGAS INC: Class Status Bid Filing Extended to Nov. 8 FRONTIER COMMUNICATIONS: Dockery Seeks Conditional Certification GOOGLE LLC: UK's CAT Allows Class Action to Proceed GRAND CANYON UNIVERSITY: Little Seeks to Certify Class GREENSKY SECURITIES: Deadline for $27.5M GreenSky Settlement Set GYM STORE: Faces Crumwell Suit Over Blind-Inaccessible Website HARVEST HOSPITALITIES: Resto Staff Sues to Recover Unpaid Wages HYZON MOTORS: Faces Kauffmann Suit Over Share Price Drop HYZON MOTORS: Howard G. Smith Reminds of November 29 Deadline HYZON MOTORS: Thornton Law Firm Reminds of Nov. 29 Deadline KAPSCH TRAFFICCOM: Court Denies Bid to Certify Class in Outzen Suit KONINKLIJKE PHILIPS: Cantrelle Sues Over Defective Ventilators LINK GROUP: Faces Class Action in UK Over Woodford Imbroglio LONGEVERON INC: Bernstein Liebhard Reminds of Nov. 12 Deadline MACROGENICS INC: District of Maryland Dismisses Amended CPERS Suit MACROGENICS INC: Maryland Judge Dismisses Securities Class Action MALDEN, MA: Court Provisionally Decertifies Owens FLSA Class MARY WATANABE: Smith Files Suit in N.D. California MEDALLIA INC: Thoma Bravo Merger Deal Lacks Info, Finger Says NANO-X IMAGING: Robbins Geller Reminds of Dec. 6 Deadline NANO-X IMAGING: Rosen Law Firm Reminds of December 6 Deadline NANO-X IMAGING: Schall Law Firm Reminds of December 6 Deadline NECTAR PETIT: Suit Alleges 'No Preservatives' Claim Misleading NEW BRUNSWICK: Class Action Over Centre's Mistreatment Can Proceed NEW YORK LIFE: Linhart Sues Over Illegal Insurance Termination NEW YORK: Judge Sotomayor Allows School Vaccine Mandate NORWAY MAPLE: Anguiano Sues Over Failure to Pay Proper Wages PFIZER INC: Seeley Sues Over Unapproved Varenicline-Containing Drug PHH MORTGAGE: Thacker Suit Removed to N.D. West Virginia PHOENIX FINANCIAL: Moore Files FDCPA Suit in S.D. Ohio QUALCOMM INC: Class Certification Order in Stromberg Suit Vacated ROFX.NET: Birmingham Files Suit Over Fraudulent Investment Scheme S.K.F. INTERNATIONAL: Crumwell Files ADA Suit in S.D. New York SAN FRANCISCO, CA: Court Approves Settlement in Zayas Suit SAN JOSE, CA: Bid to Throw Out Police Brutality Class Suit Rejected SELECTQUOTE INC: West Palm Sues Over Misrepresentations & Omissions SIRIUS XM HOLDINGS: Obie Files Suit in Fla. Cir. Ct. SIX FLAGS: November 24 Settlement Claim Form Deadline Set SUMMIT COMMUNITY: Beavers Files FDCPA Suit in W.D. Virginia TACONIC PLASTICS: Residents Offered $23.5M to Settle PFOA Lawsuit TARGET CORP: Seeks Ninth Circuit Review in Bowen Labor Suit TD AMERITRADE: Appeals Class Cert. Approval in Bartle Class Suit TENNESSEE: Illegally Jailed Minors Elligble For Settlement TILRAY INC: New York Judge Tosses Securities Class Action UNITED ENERGY: Used Schemes to Evade OT Obligations, Suit Says UNITED PARCEL: Cornell Files Suit in Cal. Super. Ct. UNITED SERVICES: Bid to Compel Appraisal in Thompson Suit Denied UNITED STATES: Class Action Over Plant's Radioactive Material Fails UNITED STATES: Summary Judgment Bid in Byrnes v. DOJ Partly OK'd UNITED STATES: Summary Judgment Ruling in Doe v. ATF Appealed UNITEDHEALTHCARE: Faces Suit Over Unreimbursed Medical Expenses VALVE CORP: Class Action Over Loot Boxes Moved for Class Cert. VIRGINIA MASON: Court Certifies Employment Class Action Lawsuit VITALITE HEALTH: Suit Involving Mental Health Centre Certified WELLA OPERATIONS: Duncan Files ADA Suit in E.D. New York WHEATLEIGH CORP: Massachusetts Court Certifies Class in Mongue Suit WILLIAMS-SONOMA INC: Barrientos FCRA Suit Removed to N.D. Illinois ZOOMINFO TECHNOLOGIES: Faces Suit Over Use of Customers' Info ********* ABC PHONES: Anderson Suit Seeks Proper and Timely Wages ------------------------------------------------------- Andrew Anderson, individually and on behalf of all others similarly situated, Plaintiffs, v. ABC Phones of North Carolina, Inc. and ABC Phones of NC Management, Inc., Defendants, Case No. 21-cv-08118 (S.D. N.Y., September 30, 2021), seeks to recover applicable minimum wage and spread of hours pay for working shifts of over ten hours, and redress for failure to properly pay wages within seven calendar days after the end of the week in which these wages were earned pursuant to the Fair Labor Standards Act and New York Labor laws. Headquartered in Raleigh, North Carolina, Defendants sell Verizon phone products and accessories at their "Victra" stores throughout the United States. They operate approximately 14 stores throughout the United States and employs over 100 people in New York where Anderson was employed at various Victra stores in New York as an hourly employee from April 2021 to September 1, 2021. Victra allegedly failed to pay Anderson his wages earned from June 1, 2021 through June 7, 2021 by June 14, 2021 and was underpaid for the period of June 1, 2021 through June 7, 2021. [BN] Plaintiff is represented by: Brian S. Schaffer, Esq. Dana M. Cimera, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, New York 10005 Telephone: (212) 300-0375 AETNA INC: Faces Class Action in Calif. Over Denied Claims ---------------------------------------------------------- Alan Goforth, writing for benefitsPRO, reports that the demand for behavioral health services is soaring during the pandemic, and consumers are beginning to challenge decisions by insurance providers. A class-action lawsuit 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, enrolled his 16-year-old son with autism spectrum disorder in a mental health residential treatment center in Utah. 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. 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. The Parity Act aims to block insurers from hindering access to behavioral health. Although the Parity Act does not require health care plans to cover mental health services, if a plan chooses to do so, such coverage must be provided at parity with medical and surgical benefits. "Unfortunately, in administering the Aetna plans, Aetna treats mental health as less important than physical health," the plaintiff said in the complaint. Aetna said in a letter that 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. "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." 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 well-being very seriously. It is an enterprise priority that drives partnerships with organizations, providers and employers to improve mental health care nationwide. "Aetna was an early advocate of the passage of the Mental Health Parity and Addiction Equity Act 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." [GN] AMAZON.COM INC: Former Warehouse Worker Files Class Action ---------------------------------------------------------- Towards Justice on Oct. 5 disclosed that on Friday, October 1, 2021, former Amazon Colorado warehouse worker Jennfier Vincenzetti filed a class action complaint in federal court in Denver. The complaint alleges that Amazon failed to pay its thousands of warehouse workers in Colorado for time Amazon required them to be onsite, on duty, but off the clock. At the height of the pandemic, the complaint alleges that Amazon implemented mandatory COVID-19 health screenings that had to be completed before its warehouse workers could enter the warehouses, clock-in, and proceed to work. The complaint alleges that this was part of Amazon's effort to appear like it was protecting workers while also refusing to bear the costs of protecting workers. According to the complaint, the screenings resulted in warehouse workers, including Ms. Vincenzetti, typically waiting in line, off the clock and uncompensated, for 20 to 60 minutes per day. "During the pandemic, Amazon's warehouses remained open as essential services and I kept working as an essential worker. There were constant quarantines, and my coworkers and I feared exposure on a daily basis. During this time of unprecedented demand for Amazon's services, the least Amazon could do is pay us for this time spent in COVID screenings, which were necessary to keep their pandemic-fueled supply lines uninterrupted by sick workers," said Plaintiff Jennfier Vincenzetti. Ms. Vincenzetti is represented in the case by Towards Justice, a Denver-based non-profit legal organization, and The Law Offices of Brian D. Gonzales, PLLC. Last year, Amazon's annual revenue increased 38% to $386 billion, an increase of over $100 billion versus the prior year. Yet, during the pandemic more than 20,000 Amazon workers have contracted COVID-19, and there have been numerous allegations that Amazon's workplace practices put workers at risk, including a lawsuit brought by New York's Attorney General. An Amazon warehouse worker in Colorado also recently filed a complaint with the Colorado Department of Labor and Employment under Colorado's Public Health Emergency Whistleblower Law, which alleged that Amazon illegally retaliated against a Colorado warehouse worker who spoke up with pandemic related concerns. That complaint is available here. "The core of Amazon's workplace safety and health violations in warehouses derive from its harsh productivity quotas that force workers to work at a breakneck and dangerous pace even if it increases the risk of spread of COVID-19. Meanwhile, Amazon's mandatory health screenings all happen when Amazon is refusing to pay its warehouse workers. In other words, Amazon appears fine making efforts to keep its workers safe, so long as the workers are the ones footing the bill. This case is an effort by courageous workers to make sure Amazon, one of the most profitable companies in the world, bears the costs of keeping its workers safe," said David Seligman, Executive Director of Towards Justice. [GN] AMERICAN HONDA: Briefing Schedule for Class Certification Sought ---------------------------------------------------------------- In the class action lawsuit captioned as MARY QUACKENBUSH, GHERI SUELEN, ANNE PELLETTIERI, MARISSA FEENEY and CARYN PRASSE, individually and on behalf of all others similarly situated, v. AMERICAN HONDA MOTOR CO., INC. and HONDA MOTOR COMPANY, LTD., a Japanese Corporation, Case No. 3:20-cv-05599-WHA (N.D. Cal.), the parties submits stipulation and proposed order to clarify the briefing schedule for Plaintiffs' motion for class certification. 1. Defendants' Response to Plaintiffs' Motion for Class Certification is due on October 29, 2021. 2. Plaintiffs' Reply in Support of the Motion for Class Certification is due on November 19, 2021. 3. The December 2, 2021 hearing date for Plaintiff's Motion for Class Certification remains unchanged. American Honda develops and manufactures automobiles. A copy of the Defendants' motion dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/3v7KGFD at no extra charge.[CC] The Plaintiffs are represented by: Marc L. Godino, Esq. Lionel Z. Glancy, Esq. Danielle L. Manning, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park E, Ste. 2100 Los Angeles, CA 90067-2722 Telephone: (310) 201-9150 E-mail: mgodino@glancylaw.com - and - Mark S. Greenstone, Esq. GREENSTONE LAW APC Greenstone Law APC 1925 Century Park E., Ste.2100 Los Angeles, CA 90067-2722 Telephone: (310) 201-9156 Facsimile: (310) 201-9160 E-mail: mgreenstone@greenstonelaw.com The Defendants are represented by: William A. Delgado, Esq. Lauren Hudecki, Esq David Ramirez-Galvez, Esq DTO LAW 601 South Figueroa Street, Suite 2130 Los Angeles, CA 90017 Telephone: (213) 335-6999 Facsimile: (213) 335-7802 E-mail: wdelgado@dtolaw.com lhudecki@dtolaw.com dramirezgalvez@dtolaw.com AMERICARE INC: Appeals Class Cert. Ruling in Guzman Labor Suit -------------------------------------------------------------- Defendants Americare, Inc., et al., filed an appeal from a court ruling entered in the lawsuit entitled LAURY VASQUEZ GUZMAN, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs v. AMERICARE, INC., MARTIN KLEINMAN and JOHN DOES #1-10, Defendants, Case No. 24877-2018E, in the Supreme Court of the State of New York, Bronx County. As previously reported in the Class Action Reporter, the Plaintiff alleges that the Defendants failed to pay her and the members of the putative class the statutory minimum wage for all hours worked in violation of New York Labor Law; that the Defendants failed to pay her and the members of the putative class all wages due, including minimum wages and overtime wages, as well as wages under the NY Home Care Worker Wage Parity Act, for the hours they each worked for the Defendants, and that by withholding wages and overtime payments for time worked after 40 hours in one week from the Plaintiff and the members of the putative class, pursuant to New York Labor Law, the Defendants made unlawful deductions in wages owed to Plaintiffs; that the Defendants failed to pay her and the members of the putative class compensation at the required overtime compensation rates for all hours worked in excess of 40 hours per workweek, in violation of the Labor Law and its regulations; that the Defendants failed to pay her and the members of the putative class additional compensation of one hour's pay at the basic New York minimum hourly wage rate for each day that the interval between the beginning and end of their workday was greater than 10 hours (spread-of-hours pay), as required by the Labor Law and its implementing regulations; and that she and the putative class members furnished labor to the Defendants in furtherance of the Defendants' performance of government contracts, but the Defendants willfully paid the Plaintiff and the putative class members less than the prevailing rates of wages and benefits to which the Plaintiff and the putative class members were entitled pursuant to New York Public Health Law. The Defendants now appeal the Court's September 14, 2021 Order in its entirety, which granted Plaintiff Laury Vasquez Guzman's motion for class certification and approved the scope of notice to be provided to the class. The Order is an ancillary publication order issued in connection with the Decision and Order of the Honorable Edgar G. Walker, dated April 13, 2021, vacating the June 24, 2020 Decision and Order of the Honorable Donald A. Miles, and denying Defendants' motion to dismiss and granting Plaintiff's motion for class certification as well as the Decision and Order of Honorable Edgar G. Walker, dated September 3, 2021, which denied Defendants' motion for a stay pending their appeal in the First Judicial Department of the April 13, 2021 Order and denied Defendants' motion to renew and reargue Plaintiff's motion to renew and reargue Defendants' motion to dismiss and her class certification motion. The appellate case is captioned as LAURY VASQUEZ GUZMAN, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs v. AMERICARE, INC., MARTIN KLEINMAN and JOHN DOES #1-10, Defendants, Case No. 2021-03551, in the Supreme Court of the State of New York Appellate Division, First Judicial Department, filed on Sep. 29, 2021. The Defendants also appeal from the September 3, 2021 Order under Appellate Division Case No. 2021-03366.[BN] Defendants-Appellants AMERICARE, Inc., MARTIN KLEINMAN, and JOHN DOES #1-10 are represented by: Kevin J. O'Connor, Esq. PECKAR & ABRAMSON, P.C. 1325 Avenue of the Americas, 10th Floor New York, NY 10019 Telephone: (212) 382-0909 Facsimile: (212) 382-3456 E-mail: koconnor@pecklaw.com ANDR SERVICES: Fails to Pay Proper Wages, Cervantes Suit Says ------------------------------------------------------------- DANIEL CERVANTES, ISMAEL GARCIA BRIAGUEZ, JOSE MIGUEL FLORES, EUSTACHIO GONZALES, LUIS TENELANDA BACULIMA and JORGE TENESACA, individually and on behalf of others similarly situated, Plaintiffs v. ANDR SERVICES GROUP INC. (D/B/A ANDR CONSTRUCTION), DPC NEW YORK INC. (d/b/a DP CONSULTING), DP CONSULTING CORP. (d/b/a DP CONSULTING), PATRICIO ANDRADE, OSCAR VERA, THOMAS PEPE and JOE GRAJA, Defendants, Case No. 1:21-cv-08099 (S.D.N.Y., Sept. 29, 2021) seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act and the New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. The complaint alleges that the Defendants failed to pay appropriate minimum wages and overtime compensation, failed to provide written wage notices and wage statements, failed to reimburse equipment costs and expenses, and failed to pay wages on a timely basis. The Plaintiffs were employed as construction workers, scaffold workers, mechanics, brick layers, demolition workers and restoration workers by the Defendants to work at construction projects in Manhattan, New York for ANDR Construction. The Defendants own, operate, or control two construction companies in New York.[BN] The Plaintiffs are 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 APPHARVEST INC: Glancy Prongay Reminds of November 23 Deadline -------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming November 23, 2021 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who 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"). 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 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. If you purchased or otherwise acquired AppHarvest securities during the Class Period, you may move the Court no later than November 23, 2021 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Glancy Prongay & Murray LLP, Los Angeles Charles Linehan, 310-201-9150 or 888-773-9224 shareholders@glancylaw.com www.glancylaw.com [GN] APPLETON RENTAL: Allen Sues Over Leasing Agents' Unpaid Overtime ---------------------------------------------------------------- NATALIE ALLEN, on behalf of herself and all others similarly situated v. APPLETON RENTAL HOMES LLC, Case No. 21-cv-1128 (E.D. Wis., Sept. 29, 2021) is a collective and class action brought pursuant to the Fair Labor Standards Act and Wisconsin's Wage Payment and Collection Laws for unpaid overtime compensation, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief. Ms. Allen was hired by the Defendant as a leasing agent from August 2015 until September 2021 working primarily at Defendant's Milwaukee, Wisconsin location. Appleton Rental Homes LLC is a privately-owned housing company.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com AQUA METALS: Hampton Settlement Gets Initial Nod ------------------------------------------------ In the class action lawsuit captioned as ARLIS HAMPTON, et al., v. AQUA METALS, INC., et al., Case No. 4:17-cv-07142-HSG (N.D. Cal.), the Hon. Judge entered an order: 1. granting the Plaintiffs' motion for preliminary approval of class action settlement; and 2. directing the parties to stipulate to a schedule of dates for each event listed below, which shall be submitted to the Court within seven days of the date of this Order. The Court finds that the proposed notice process is "reasonably calculated, under all the circumstances, to apprise all class members of the proposed settlement." The Court also finds that the content of the proposed Notice describes the information required by Federal Rule of Civil Procedure 23. The parties have attached a copy of their proposed class notice, which includes the proposed Notice that will be mailed to the class members. On March 29, 2018, the Court consolidated three related class actions then pending in the Northern District of California into one class action lawsuit entitled In re Aqua Metals, Inc. Securities Litigation, Case No. 4:17-cv-07142. On May 23, 2018, the Court appointed the Plymouth County Group as Lead Plaintiff for the Class and approved Lead Plaintiff’s choice of the law firms of Berman Tabacco and Levi & Korsinsky, LLP as Lead Counsel in the class action. Lead Plaintiff then filed a Consolidated Complaint for Violations of Securities Laws alleging claims under the Securities and Exchange Act of 1934 and the Securities Act of 1933 on July 20, 2018. Specifically, the Consolidated Complaint asserted the following claims on behalf of investors who purchased or otherwise acquired Aqua Metals common stock between May 19, 2016 and November 9, 2017. Aqua Metals provides recycling facilities. A copy of the Court's order dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/3p0OWpm at no extra charge.[CC] ARROW SENIOR: Loses Bid to Junk Olin-Marquez Suit ------------------------------------------------- In the class action lawsuit captioned as KENDALL OLIN-MARQUEZ, v. ARROW SENIOR LIVING MANAGEMENT, LLC, Case No. 2:21-cv-00996-EAS-CMV (S.D. Ohio), the Hon. Judge Chelsey M. Vascura entered an order: 1. granting the Defendant's motion for leave to file third amended collective and class action complaint; 2. directing the Plaintiff to file Third Amended Complaint; 3. denying without prejudice to refiling Plaintiff's motion for conditional class certification; -- Defense counsel represented that it will extend the exiting tolling agreement to address statute-of- limitations concerns. 4. denying without prejudice Defendant's motion to dismiss for lack of jurisdiction and its Motion to Stay Briefing, to re-filing to challenge Plaintiff's Third Amended. -- Defendant's Answer or other responsive pleading to Plaintiff's Third Amended Complaint is due on or before october 19, 2021; 5. directing the parties to confer and submit a renewed Rule 26(f) Report, if appropriate within 14 days of the Court's resolution of the Defendant's forthcoming Motion to Dismiss or forthcoming Plaintiff's Motion for conditional class certification, whichever is later; 6. Defendant's Answer or other responsive pleading to Plaintiff's Third Amended Complaint is due on or before october 19, 2021; and 7. directing the parties to confer and submit a renewed Rule 26(f) Report, if appropriate within 14 days of the Court's resolution of Defendant's forthcoming Motion to Dismiss or forthcoming Plaintiff's Motion for Conditional Class Certification, whichever is later. The Defendant intends to make a voluntary payment directly to members of the putative class within the next 30-90 days and agrees to inform Plaintiff's counsel before making any such payments. The Plaintiff may move for emergency injunctive relief to enjoin Defendant from making these payments to avoid confusion, says Judge Vascura. Arrow Senior is located in Saint Charles, Missouri, and is part of the Lessors of Real Estate Industry. A copy of the Court's order dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/3lBTh05 at no extra charge.[CC] ASPEN HOME: Extension of Time to File Class Status Bid Sought ------------------------------------------------------------- In the class action lawsuit captioned as NANCY EDER individually and on behalf of all others similarly situated, v. ASPEN HOME IMPROVEMENTS, INC., a Pennsylvania Corporation, ASPEN ROOFING INC., a Florida corporation, and RING MARKETING GROUP INC., a Florida corporation, Case No. 8:20-cv-01306-SDM-JSS (M.D. Fla.), the Parties ask the Court to enter an order vacating the previously entered deadlines for conducting discovery and filing a motion for class certification. The Parties propose a sixty-day extension of Defendant's proposed deadlines, as follows: a. Deadline for completing Class certification discovery, from November 11, 2021, to December 31, 2021. b. Deadline for moving for class certification from December 1, 2021, to January 31, 2022. The parties participated in a court-ordered mediation on September 15, 2021. The parties are engaged in continued settlement discussions and seek additional time to continue these settlement discussions and to complete focused discovery. The parties jointly request this relief and no party would be prejudiced. On April 8, 2021, the Parties filed the Case Management Report. The Parties proposed different deadlines in the CMR related to class certification discovery and the filing of a motion for class certification. On May 14, 2021, a Case Management and Scheduling Order was entered. The Order states that "The parties must conform to the deadlines proposed in the case management report." However, the Court did not identify which deadline was applicable. The Parties respectfully request relief from the previously imposed deadlines in order to continue exploring resolution of this matter. The Parties will be attending a continued mediation on November 18, 2021. Aspen Home is a window installation contractor serving the Lancaster, Pennsylvania. A copy of the Parties motion dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/3iUFkZF at no extra charge.[CC] The Plaintiff is represented by: Seth M. Lehrman, Esq. DWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 E-mail: seth@epllc.com - and - Ignacio J. Hiraldo, Esq. Florida Bar No. 0056031 IJH LAW 1200 Brickell Ave Suite 1950 Miami, FL 33131 Telephone: 786-496-4469 E-mail: ijhiraldo@ijhlaw.com The Defendants are represented by: Eric S. Adams, Esq. Christopher F. Hamilton, Esq. SHUTTS & BOWEN LLP 4301 W. Boy Scout Blvd., Suite 300 Tampa, FL 33607 Telephone: (813) 229-8900 Facsimile: (813) 229-8901 E-mail: eadams@shutts.com ldeleary@shutts.com chamilton@shutts.com doneal@shutts.com AVEANNA HEALTHCARE: Court Enters Scheduling Order in Purvis Suit ---------------------------------------------------------------- In the class action lawsuit captioned as TEAIRRA PURVIS, individually, on behalf of her minor child, J.A., and on behalf of all others similarly situated, and ARAMAH JOHNSON, and on behalf of all others similarly situated, v. AVEANNA HEALTHCARE, LLC, Case No. 1:20-cv-02277-LMM (N.D. Ga.), the Hon. Judge Leigh Martin May entered a scheduling order as follows: Event Date -- Answer October 27, 2021 -- Opening of Fact Discovery November 10, 2021 -- Conclusion of Fact Discovery -- Motion for Class March 10, 2022 Certification -- Opposition to Motion for January 25, 2022 Class Certification -- Reply in Support of Class February 24, 2022 Certification -- Merits Expert Reports March 27, 2022 (Plaintiffs and Defendant) Aveanna provides home health services to adults, children and their families. A copy of the Court's order dated Oct. 6, 2021 is available from PacerMonitor.com at https://bit.ly/3aHNjEV at no extra charge.[CC] BARCLAYS PLC: Settles Mexican Bond Antitrust Litigation ------------------------------------------------------- Dennis O'Toole, writing for Chicago Clearing, report that JPMorgan and Barclays have settled an antitrust litigation over allegations they took part in a price-fixing scheme of Mexican Governement bonds that were issued the Mexican government through the Bank of Mexico, also know as Banxico. The settlement notice lists three major counts: -- First, Defendants allegedly rigged MGB primary market auctions through collusive bidding and information sharing to control the flow of MGB supply . . . -- Second, Defendants allegedly sold newly issued MGBs purchased at auction into the secondary market at artificially high, price-fixed terms . . . -- Third, Defendants allegedly agreed to fix the "bid-ask spread" artificially wider when offering to buy or sell MGBs in secondary market trading with Plaintiffs and the Class . . . Thee result, according to the plaintiffs, is that class members ended up paying more for newly issued MGBs than they otherwise would have. They further allege the defendants pulled-off their scheme through various secret back-channels including through interbank chatrooms, telephone calls, and in-person meetings. Many who read the financial news, and indeed, everyone who participated in early antitrust cases such as the GSE Bonds, LIBOR, and FX litigations, among others, are familiar with these kinds of allegations by now. They are also familiar with the exceedingly complicated nature of antitrust litigation. In this settlement, over 1,100 unique ISINs qualify -- and the class period spans 11 years. The team at Chicago Clearing has filed claims in every single financial antitrust litigation settlement. For example we filed tens of thousands of claims in the recent GSE Bonds litigation, and that case had over 60,000 eligible bonds. We will not be daunted by the mere 1,100 identifiers in this case, nor will we be troubled by retrieving old trade data from any system, format, or trading platform. Chicago Clearing Corporation helps investors in three key ways: -- We help you keep up with the flow of every new class action that appears, including every last detail for each case. -- We help you file timely, comprehensive claims for each and every eligible account for your firm and for all your clients. -- We help you forget about claim filing so you can focus on the real work of investing. So if the idea of looking up hundreds upon hundreds of ISINs, some of which may have been purchased in 2006, leaves you cold, then call us today at 312-204-6970. We'd be happy to help. Full list of defendants: Banco Bilbao Vizcaya Argentaria, S.A., BBVA Securities, Inc., BBVA Compass Bancshares, Inc., BBVA Bancomer S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer, Grupo Financiero BBVA Bancomer, S.A. de C.V., Banco Santander S.A., Santander Investment Securities, Inc., Santander Holdings USA, Inc., Banco Santander (Mexico) S.A. Institución de Banca Múltiple, Grupo Financiero Santander Mexico, Santander Investment Bolsa, Sociedad de Valores, S.A.U., Bank of America N.A., Bank of America Corporation, BankAmerica International Financial Corporation, Bank of America Mexico, S.A., Institución de Banca Múltiple, Grupo Financiero Bank of America, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Inc., Barclays Bank Mexico, S.A., Barclays Bank PLC, Barclays Capital Securities Limited, Grupo Financiero Barclays Mexico, S.A. [GN] Case Name: Mexican Government Bonds Antitrust Litigation Settlement Fund: $20,700,000 (Settling defendants: Barclays: $5.7 million; JPMorgan $15 million. For full list of defendants, more of whom may settle in the future, see bottom of this post.) Claim Filing Deadline: November 29, 2021 Class Period: 1/1/2006 -- 4/19/2017 Eligible bonds: Over 1100 BEER BARN: Grove Suit Seeks to Certify Class of Exotic Dancers -------------------------------------------------------------- In the class action lawsuit captioned as ANDREA GROVE, individually and on behalf of all others similarly situated, v. BEER BARN CORPORATION, R & L B CORPORATION d/b/a IOWA PLAYHOUSE, RONALD BERGERON MICHAEL BERGERON, AND LYNDA BERGERON, Case No. 1:20-cv-00027-SMR-SHL (S.D. Iowa), the Plaintiff asks the Court to enter an order certifying a class of: "all individuals who worked as exotic dancers at Iowa Playhouse at any time within the three years prior to the filing of this lawsuit, who were misclassified as independent contractors and who were subject to unlawful fees and tip-outs, in violation of the Iowa Wage Payment Collection Law ("IWPCL"), (the "Iowa Class")." The Plaintiff has brought this case against Defendants Beer Barn Corporation, R & L B Corporation d/b/a Iowa Playhouse, Ronald Bergeron, Michael Bergeron and Lynda, alleging that the Defendants misclassified her and other exotic dancers as independent contractors under the FLSA and Iowa Code section 91A, and, as a result, failed to pay them the legally required minimum wage compensation, and made unlawful deductions from their pay in the form of fees and tip-outs. A copy of the Plaintiff's motion to certify class dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/3ayJfGY at no extra charge.[CC] The Plaintiff is represented by: Olena Savytsk, Esq. Harold Lichten, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: hlichten@llrlaw.com osavytska@llrlaw.com - and - Nate Willems, Esq. RUSH & NICHOLSON P.L.C. P.O. Box 637 Cedar Rapids, IA 52406 Telephone: 319-363-5209 Facsimile: 319-363-6664 E-mail: nate@rushnicholson.com BRISTOL-MYERS: Entwistle & Cappucci Files Securities Class Action ----------------------------------------------------------------- Entwistle & Cappucci LLP ("Entwistle & Cappucci") on Oct. 6 announced that its ongoing investigation has led to the filing of a class action complaint against Bristol-Myers Squibb Company ("Bristol Myers") and several of its senior executives. The case was filed in the United States District Court for the Southern District of New York, Case No. 1:21-cv-8255. The action was brought on behalf of all former Celgene Corporation ("Celgene") (NASDAQ: CELG) shareholders that received Contingent Value Rights ("CVRs") in exchange for their Celgene shares pursuant to Bristol Myers' $74 billion acquisition of Celgene on November 20, 2019, and who were damaged thereby (the "Class"). The action arises from Bristol Myers' alleged subversion of the FDA approval process for the purpose of avoiding a $6.4 billion payment to CVR holders. By Bristol Myers' own design, the CVR payout required approval of three blockbuster therapies, including the cancer therapy Liso-cel, by specified dates ("Milestones"). From the outset of the Merger, Bristol Myers allegedly knew it would not take diligent efforts to obtain FDA approval for Liso-cel by the Milestone date of December 31, 2020. Accordingly, the statements in the Joint Proxy concerning the efforts Bristol Myers would make to meet the Milestones, the likelihood that the Milestones would be met and the purported value of the CVRs were materially false and misleading when made. The complaint asserts claims under Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder. A copy of the complaint may be found on Entwistle & Cappucci's website. If you wish to serve as a lead plaintiff in this matter, you must file a motion with the Court no later than December 6, 2021. Any member of the proposed Class may move the Court to serve as a lead plaintiff through counsel of their choice, or they may choose to do nothing and remain a member of the Class. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact: Robert N. Cappucci, Esq. of Entwistle & Cappucci at (212) 894-7200 or via e-mail at rcappucci@entwistle-law.com. About Entwistle & Cappucci Entwistle & Cappucci is a national law firm providing exceptional legal representation to clients in the most complex and challenging legal matters. Our practice encompasses all areas of litigation, corporate transactions, bankruptcy, insurance, corporate investigations and white-collar defense. Our clients include public and private corporations, major hedge funds, public pension funds, governmental entities, leading institutional investors, domestic and foreign financial services companies, emerging business enterprises and individual entrepreneurs. CONTACT: Entwistle & Cappucci LLP www.entwistle-law.com Robert N. Cappucci, Esq. (rcappucci@entwistle-law.com) Telephone: (212) 894-7200 [GN] BROOKDALE SENIOR: Court Enters Case Management Plan & Trial Order ----------------------------------------------------------------- In the class action lawsuit captioned as FAMILY HEALTH PHYSICAL MEDICINE, v. BROOKDALE SENIOR LIVING, INC., Case No. 5:21-cv-00997-SL (N.D. Ohio), the Hon. Judge Sara Lioi entered a case management plan and trial order as follows: -- Deadline to Add Parties or Amend December 15, 2021 Pleadings: -- Deadline for Completing Rule 23 May 5, 2022 Discovery: -- Deadline for Plaintiffs to May 2, 2022 Identify Expert(s) and Provide Reports Regarding Class Certification Issues: -- Deadline for Completing April 1, 2022 Depositions of Plaintiffs' Class Experts: -- Deadline for Defendant to May 20, 2022 Identify Expert(s) and Provide Reports Regarding Class Certification Issues: -- Deadline for Completing April 1, 2022 Depositions of Defendant's Class Experts: -- Deadline for Plaintiff's July 15, 2022 Motion for Class Certification: -- Deadline for Defendant's August 5, 2022 Opposition to Plaintiffs' Class Certification Motion: -- Deadline for Plaintiffs' August 19,2022 Reply Brief: -- Hearing regarding Class August 30, 2022 Certification Issues: at 11:00 a.m. -- Deadline for Completing April 1, 2022 Non-Expert Discovery: -- Deadline for Completing April 29, 2022 Expert Discovery: -- Deadline for Filing May 30, 2022 Dispositive Motions: -- Deadline for Filing July 20, 2022 Opposition to Dispositive Motions: -- Deadline for Filing Replies July 1, 2022 to Responses: Brookdale Senior Living owns and operates senior living communities and retirement communities across the United States. A copy of the Court's order dated Oct. 6, 2021 is available from PacerMonitor.com at https://bit.ly/3p2NWBe at no extra charge.[CC] CAMBER ENERGY: Rosen Law Firm Investigates Securities Claims ------------------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, on Oct. 6 announced an investigation of potential securities claims on behalf of shareholders of Camber Energy, Inc. (NYSE American: CEI) resulting from allegations that Camber may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Camber securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to http://www.rosenlegal.com/cases-register-2170.htmlorcall Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On October 5, 2021, market analyst Kerrisdale Capital published a report entitled "Camber Energy, Inc. (CEI): What If They Made a Whole Company Out of Red Flags?" The report stated that the Company "has failed to file financial statements with the SEC since September 2020, is in danger of having its stock delisted next month, and just fired its accounting firm in September." The report alleged that Camber only has one real asset, a 73% stake in an OTC-traded company, Viking Energy Group, Inc., with negative book value and a going-concern warning that recently violated the maximum-leverage covenant on one of its loans. The report further alleged that the company's "'ESG Clean Energy' technology license is a joke." Finally, the report also alleged that "the most fascinating part of the CEI boondoggle actually has to do with something far more basic: how many shares are there, and why has dilution been spiraling out of control?" and that the "market is badly mistaken about Camber's share count and ignorant of [Camber's] terrifying capital structure," estimating the Company's "fully diluted share count is roughly triple the widely reported number." On this news, Camber's share price fell $1.56, or 50%, on October 5, 2021, damaging investors. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Attorney Advertising. Prior results do not guarantee a similar outcome. SOURCE: Rosen Law Firm Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] CANADA: Deadline Set to Join Settlement of Sexual Misconduct Suit ----------------------------------------------------------------- Current and former employees of the Department of National Defence (DND), staff of the Non-Public Funds, Canadian Forces (NPF), and current and former members of the Canadian Armed Forces (CAF) who were affected by sexual misconduct in the military workplace have until November 24 to submit a claim as part of the CAF-DND sexual misconduct class action settlement. Sexual misconduct is defined as: Sexual harassment; Sexual assault; and/or Discrimination on the grounds of sex, gender, gender identity or sexual orientation. Anyone who believes they have a claim must apply before November 24 The class action secretariat has made more details available. If you have questions about whether the conduct that you experienced during your service or employment is covered by the settlement, or to learn more about the settlement and submit a claim, visit the class action website at www.caf-dndsexualmisconductclassaction.ca or call 1-888-626-2611. If you need legal advice concerning a possible claim in the settlement, you are entitled to receive it free of charge from class counsel as part of the settlement. Contact information for class counsel across Canada is on the class action website. If you are aware of others who may be eligible, please share this information with them. Moving forward, PSAC will continue to participate in the ongoing external review being conducted by Mme Justice Louise Arbour and we will keep members up to date when new information is available. [GN] COSTCO WHOLESALE: Settlement in CWS Suit Gets Initial Nod --------------------------------------------------------- In the class action lawsuit captioned as Commissioners of Public Works of the City of Charleston (d.b.a. Charleston Water System), Individually and on Behalf of All Others Similarly Situated, v. Costco Wholesale Corporation, CVS Health Corporation, Kimberly-Clark Corporation, The Proctor & Gamble Company, Target Corporation, Walgreen Co., and Wal-Mart, Inc., Case No. 2:21-cv-00042-RMG (D.S.C.), the Hon. Judge Richard Mark Gergel entered an order granting the Plaintiff's motion for preliminary approval of class action settlement. The Court hereby certifies a conditional settlement class as follows: "All STP Operators in the United States whose systems were in operation between January 6, 2018 and the date of preliminary approval;" Excluded from the Settlement Class are counsel of record (and their respective law firms) for any of the Parties, employees of Kimberly-Clark, and any judge presiding over this action and their staff, and all members of their immediate families. In this putative class action, the Plaintiff alleges that Defendants design, market, manufacture, distribute, and/or sell wipes labeled as "flushable" which are not actually flushable. These wipes allegedly damage sewer systems across the country. The Plaintiff brings claims for nuisance, trespass, strict products liability -- defective design, strict products liability -- failure to warn, and negligence. The Plaintiff's original and Amended Complaint seek -- in addition to reasonable attorney’s fees and costs for class counsel -- prospective injunctive. Costco Wholesale Corporation is an American multinational corporation which operates a chain of membership-only big-box retail stores. As of 2020, Costco was the fifth largest retailer in the world, and the world's largest retailer of choice and prime beef, organic foods, rotisserie chicken, and wine as of 2016. A copy of the Court's order dated Oct. 4, 2021 is available from PacerMonitor.com at https://bit.ly/3Dzm37L at no extra charge.[CC] CUYAHOGA COUNTY, OH: Beck, et al. Seek to Certify Class Action -------------------------------------------------------------- In the class action lawsuit captioned as SHAVANDA BECK, et al., v. COUNTY OF CUYAHOGA, Case No. 1:19-cv-00818-CAB (N.D. Ohio), the Plaintiffs Shavanda Beck, Tracy D. Reia, Revell Whitney, and Melchezidek K. Muhammad ask the Court to enter an order certifying the case as a class action pursuant to Fed. R. Civ. P. 23. Cuyahoga County is located in the northeastern part of the U.S. state of Ohio on the southern shore of Lake Erie, across the U.S.-Canada maritime border. A copy of the Plaintiffs' motion dated Oct. 6, 2021 is available from PacerMonitor.com at https://bit.ly/3mY5UlA at no extra charge.[CC] The Plaintiffs are represented by: Horace F. Consolo, Esq. Frank Consolo, Esq. CONSOLO LAW FIRM CO., LPA 627 West St. Clair Avenue Cleveland, OH 44113 Telephone: (216) 696-5400 Facsimile: (216) 696-2610 E-mail: fconsolo@consololaw.com hconsolo@consololaw.co DAIMLER AG: Court Narrows Claims in Callen Class Suit ----------------------------------------------------- In the class action lawsuit captioned as TERI CALLEN on behalf of herself and all others similarly situated formerly known as Teri Kimball-Callen Stomski, v. DAIMLER AG, et al., Case No. 1:19-cv-01411-TWT (N.D. Ga.), the Hon. Judge Thomas W. Thrash entered an order granting in part and denying in part the Defendants' motion to dismiss as follows: The motion is granted with respect to the following claims, which are dismissed: -- Breach of Express Warranty (Count One); -- Breach of Implied Warranty (Count Two); -- Equitable and Injunctive Relief (Count Three) as to the Plaintiffs' allegations on behalf of a putative national class; -- Violation of the Magnuson-Moss Warranty Act (Count Four); -- Unjust Enrichment (Count Five); -- Fraud and Suppression (Count Six) as to (1) Plaintiff Finkenauer's fraudulent concealment claim, (2) Plaintiff Collier's fraudulent concealment claim, (3) Plaintiff Scudder's fraudulent concealment claim, (4) Plaintiff Acunto's fraudulent concealment claim, and (5) Plaintiff Hunter's fraudulent concealment claim; -- Violation of South Carolina Unfair Trade Practices Act (Count Seven); -- Violation of Ohio Consumer Sales Practices Act (Count Nine) as to Plaintiff Burton's class action allegations; -- Violation of Oregon Unlawful Trade Practices Act (Count 10); -- Violation of New Jersey Consumer Fraud Act (Count 12); -- Violation of Georgia Uniform Deceptive Trade Practices Act (Count 16) -- Violation of Missouri Merchandising Practices Act (Count 18); -- Violation of California Unfair Competition Law (Count 19) as to Plaintiff Hunter's omission claim; and -- Violation of California Consumers Legal Remedies Act (Count 21) as to Plaintiff Hunter's omission claim The motion is denied with respect to the following claims: -- Violation of California Unfair Competition Law (Count 19) as to Plaintiff Hunter's affirmative misrepresentation claim; -- Violation of California False Advertising Law (Count 20); -- Violation of California Consumers Legal Remedies Act (Count 21) as to Plaintiff Hunter's affirmative misrepresentation; and -- Violation of New York General Business Law (Count 24). The Plaintiffs are 13 individuals who bring this putative class action against Defendants Daimler AG and Mercedes Benz USA, LLC for breach of warranty and deceptive trade practices involving the interior wood trim of the Defendants' vehicles. Daimler AG is a German multinational automotive corporation headquartered in Stuttgart, Baden-Württemberg, Germany. It is one of the world's leading car and truck manufacturers. Daimler-Benz was formed with the merger of Benz & Cie. and Daimler Motoren Gesellschaft in 1926. A copy of the Court's order dated Oct. 4, 2021 is available from PacerMonitor.com at https://bit.ly/3lwwq6d at no extra charge.[CC] DAVID STANLEY: Solberg Bid to Certify Class Stricken w/o Prejudice ------------------------------------------------------------------ In the class action lawsuit captioned as JUSTIN SOLBERG, individually and on behalf of all others similarly situated, v. DAVID STANLEY CHEVROLET, INC., an Oklahoma Corporation, Case No. CIV-19-01096-JD (W.D. Okla.), the Hon. Judge Jodi W.Dishman entered an order striking the Plaintiff's motion for class certification without prejudice to refiling, if necessary, on a briefing schedule to be determined by the Court following its ruling on Defendant's first motion for partial summary judgment Concerning automatic telephone dialing systems. A copy of the Court's order dated Oct. 6, 2021 is available from PacerMonitor.com at https://bit.ly/3BL5rcH at no extra charge.[CC] DEMAR LOGISTICS: Anaya Hits Undisclosed Biometrics Data Retention ----------------------------------------------------------------- Alexis Anaya, on behalf of himself and other persons similarly situated Plaintiff, v. Demar Logistics, Inc. and Accurate Personnel, LLC, Defendants, Case No. 2021L001044 (Ill. Cir., September 30, 2021), seeks an injunction requiring Defendants to cease all unlawful activity related to the capture, collection, storage and use of biometrics. The complaint also seeks statutory damages together with costs and reasonable attorneys' fees for violation of the Illinois Biometric Information Privacy Act. The complaint alleges that Defendants required Plaintiff and others workers to provide their personalized biometric indicators and biometric information. Specifically, they collected and stored fingerprints and required them to clock-in and clock-out by scanning their fingerprints into a fingerprint-scanning machine. Anaya says that he has not been notified where his fingerprints are being stored, for how long will they be stored and what might happen to this information. [BN] Plaintiff is represented by: Roberto Luis Costales, Esq. William H. Beaumont, Esq. BEAUMONT COSTALES LLC 107 W. Van Buren, Suite 209 Chicago, IL 60605 Telephone: (773) 831-8000 Email: rlc@beaumontcostales.com whb@beaumontcostales.com DEPUY INTERNATIONAL: Settlement Approved in Hip Implant Class Suit ------------------------------------------------------------------ A settlement has been approved in a class action relating to certain DePuy ASR metal on metal hip implants ("ASR Implants"), which were voluntarily recalled in August 2010. The settlement, which is not an admission of liability from the defendants, was approved by the Ontario Superior Court of Justice, and provides for the creation of a $15.5 million CDN settlement fund that will be used to pay compensation to eligible Class Members as well as legal fees and other deductions. The certified ASR Class includes all persons resident in Canada other than British Columbia or Quubec who underwent the surgical implantation of the ASR(TM) XL Acetabular Hip System or ASR(TM) Hip Resurfacing System in a surgery occurring in Canada. Class Members who had their implants prematurely revised, as that term is defined in the settlement, or did not have a revision but who meet specific other requirements under the Claims Protocol, may be able to seek compensation. The court-approved Notice informing Class Members about the settlement, Claims Deadline, and contact details for lawyers representing the Class can be found here: https://www.depuyasrclassaction.ca/. The Claims Deadline is March 14, 2022. [GN] DMY TECHNOLOGY: Franchi Sues for Breach of Fiduciary Duties ----------------------------------------------------------- ANTHONY FRANCHI, on behalf of himself and all other similarly situated stockholders of dMY TECHNOLOGY GROUP, INC. IV, Plaintiff v. dMY TECHNOLOGY GROUP, INC. IV, NICCOLO DE MASI, HARRY L. YOU, DARLA K. ANDERSON, FRANCESCA LUTHI, and CHARLES E. WERT, Defendants, Case No. 2021-0841 (Del. Ch., Sept. 30, 2021) asserts a claim against dMY Technology and its board of directors for breach of fiduciary duty in connection with a Delaware General Corporation Law violation. dMY Technology is a dual-class special purpose acquisition company -- a publicly traded, non-operational shell company formed exclusively to raise capital and then acquire a private company. On July 7, 2021, the Company announced that it had entered into an Agreement and Plan of Merger to acquire Planet Labs Inc. If the Company closes the proposed merger, the Class B Common Stockholders' shares will convert into Class A Common Stock worth approximately $86.25 million -- instantly providing dMY Sponsor with over a 344,800% return on its $25,000 investment. Under DGCL Section 242(b)(2), holders of a class of stock are entitled to a separate class vote on an amendment to a certificate of incorporation that increases or decreases the amount of authorized shares of that class. Section 242(b)(2) permits a corporation to opt out of the requirement of a separate class vote for changes in authorized shares by expressly providing in its charter that a change in the authorized shares of a class requires the approval of the "holders of a majority of the stock of the corporation entitled to vote irrespective of [Section 242(b)(2)]." In its current Charter, the Company allegedly does not have such an opt out provision, and accordingly, the Class A Common Stockholders are entitled to a separate class vote on the Share Increase Amendment. The Plaintiff contends that the board wrongfully plans to conduct the stockholder vote on the Share Increase Amendment by aggregating the votes of all outstanding shares of common stock -- i.e., by having the Class A Common Stockholders and Sponsor Shares vote together -- without also conducting a separate class vote on the Share Increase Amendment. The Plaintiff therefore seeks to enjoin the vote unless and until Defendants are required to submit approval of the Share Increase Amendment and the Amended Charter to a separate vote of Class A Common Stockholders, as required by the DGCL.[BN] The Plaintiff is represented by: Andrew E. Blumberg, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 500 Delaware Avenue, Suite 901 Wilmington, DE 19801 Telephone: (302) 364-3601 - and - Mark Lebovitch, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 - and - Steven J. Purcell, Esq. Douglas E. Julie, Esq. Robert H. Lefkowitz, Esq. Anisha Mirchandani, Esq. PURCELL JULIE & LEFKOWITZ LLP 200 Park Avenue, Suite 1700 New York, NY 10166 Telephone: (212) 725-1000 - and - Jeremy Friedman, Esq. David Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 DOMINION ENERGY: Seeks Deadline Extension to Respond to Notice --------------------------------------------------------------- In the class action lawsuit captioned as CHRISTOPHER SZIBER, Individually and for Others Similarly Situated, v. DOMINION ENERGY, INC., Case No. 3:20-cv-00117-JAG (E.D. Va.), the Parties ask the Court to enter an order extending Dominion's deadline to respond to the Plaintiff's motion for corrective notice and extended tolling to November 2, 2021 and extending Plaintiff's deadline for filing a Reply to November 8, 2021. If the parties are unable to reach a resolution, Dominion reserves the right to oppose Plaintiff's Motion, the Parties say. Dominion is an American power and energy company headquartered in Richmond, Virginia. A copy of the Parties motion dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/2YDzvZf at no extra charge.[CC] The Plaintiff is represented by: Andrew Dunlap, Esq. Michael A. Josephson, Esq. Richard M. Shreiber, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com rschreiber@mybackwages.com adunlap@mybackwages.com The Defendant is represented by: Bret G. Daniel, Esq. Jimmy F. Robinson, Jr., Esq. J. Clay Rollins, Esq. Bret G. Daniel, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 901 East Byrd Street, Suite 1300 Riverfront Plaza, West Tower Richmond, VA 23219 Telephone: (804) 663-2330 Facsimile: (855) 843-1809 E-mail: jimmy.robinson@ogletreedeakins.com clay.rollins@ogletreedeakins.com bret.daniel@ogletreedeakins.com DONALD TRUMP: Files Lawsuit to Get His Twitter Account Back ----------------------------------------------------------- Chas Danner at nymag.com reports that permanently un-tweeted ex-president Donald Trump has filed a lawsuit asking a federal judge to force Twitter to reinstate his account, marking yet another legal volley in the former president's quest to regain his major social-media accounts after they were taken offline in the aftermath of the Capitol riot. In a complaint filed in the Southern District of Florida, Trump's attorneys sought a preliminary injunction against Twitter and the company's CEO, Jack Dorsey, arguing that the private firm's decision to ban Trump from its social-media platform violated both his First Amendment rights and a new Florida social-media law (which a federal judge blocked in July before it could go into effect). Complaint came two months after Trump filed some legally dubious class-action lawsuits against Twitter, Facebook, Google, and the companies' executives, and less than two weeks after Trump's lawyers suggested in another lawsuit that the experience of using Twitter was so mind-altering and addictive that it had rendered the former president incapable of accepting the company's terms of service. The injunction Trump's legal team requested would temporarily allow him to tweet again while his other lawsuit against the company proceeds. ("This won't work," former federal prosecutor and CNN legal analyst Elie Honig tweeted in response to news of the lawsuit.) Among a litany of claims in the new complaint, Trump's attorneys argued that Twitter had been "coerced by members of the United States Congress" into "censoring" him and alleged that the company unfairly "exercises a degree of power and control over political discourse in this country that is immeasurable, historically unprecedented, and profoundly dangerous to open democratic debate." In March, Trump insisted during an interview on Fox News that Twitter had become "very boring" in his absence and claimed he preferred sending out press releases to tweeting, anyway. Though the Trump Team repeatedly said that the former president would introduce his own revolutionary social-media platform, what they launched instead in May was a sad, simple, Twitter-esque blog on Trump's website. The blog, From the Desk of Donald J. Trump, barely lasted a month after it apparently attracted more ridicule than readers. As that abandoned endeavor and Trump's ongoing efforts to make Twitter take him back reveal, the former president clearly believes there's no substitute for the @realDonaldTrump thing.[GN] DP HOSPITALITY: Faces Barrales Wage-and-Hour Suit in S.D.N.Y. ------------------------------------------------------------- CARLOS BARRALES, DIEGO DEL CASTILLO, and LINO MENDOZA CASTRO, individually and on behalf of others similarly situated, Plaintiffs v. DP Hospitality Group LLC (D/B/A BROOKLYN CHOP HOUSE), STRATIS MORFAGON and Philip Oliver Bondon, Defendants, Case No. 1:21-cv-08079 (S.D.N.Y., Sept. 29, 2021) seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act and the New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. The complaint alleges that the Defendants failed to pay appropriate minimum wages and overtime compensation, failed to provide written wage notices and wage statements, failed to reimburse equipment costs and expenses, and have unlawfully misappropriated a portion of Plaintiffs' tips that have been received from customers. The Plaintiffs have been employed as food runners at the restaurant located in New York. The Defendants own, operate, or control a Steak house/Chinese restaurant in New York.[BN] The Plaintiffs are 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 DUNES FOOD GROUP: Gomez Seeks Unpaid Overtime, Spread-of-Hours Pay ------------------------------------------------------------------ Jesus Martinez Gomez, individually and on behalf of others similarly situated, Plaintiff, v. Dunes Food Group, Inc. and Akbarali B Himani, Defendants, Case No. 21-cv-08051 (S.D. N.Y., September 28, 2021), seeks to recover unpaid minimum and overtime wages and spread-of-hours pay pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control a deli located in New York under the name "Delice Cafe and Catering," where Gomez was employed as dishwasher and cook's helper. He claims to have generally worked in excess of 40 hours a week without overtime pay and denied spread-of-hours premium for workdays exceeding 10 hours. Gomez also claims to have never received wage statements and appropriate minimum wage. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Facsimile: (212) 317-1620 Email: michael@faillacelaw.com EVANSTON, IL: Court Dismisses James Class Suit Without Prejudice ---------------------------------------------------------------- In the case, VERZELL JAMES, on behalf of himself and all others similarly situated, Plaintiff v. CITY OF EVANSTON, et al., Defendants, Case No. 20-cv-00551 (N.D. Ill.), Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois, Eastern Division: (i) granted the Defendants' motions to dismiss and dismissed Verzell James' complaint without prejudice; and (ii) denied as moot the Defendants' joint motion to strike class allegations. Background Mr. James resides at a property he owns in the City of Evanston, Illinois. In early 2018, Evanston passed an ordinance that granted a zoning exemption to the Morton Grove-Niles Water Commission allowing it to construct a water pumping station at a property neighboring James's home. James claims that Evanston and the Commission sought to avoid public scrutiny of their plans to construct the water pumping station and therefore declined to abide by proper zoning procedures in obtaining approval of the project. Alleging that the Defendants pursued the course of action because the affected community was predominantly African-American, James filed the present putative class action. Mr. James' complaint contains five counts asserting claims on behalf of himself and either a proposed class of all residents living within 1000 feet of the 2525 Church Street property or a proposed subclass of all African-American residents living within 1000 feet of that property. In Count I, James asserts a claim under 42 U.S.C. Section 1985(3), alleging that the Defendants conspired to deprive him and the proposed class of their rights to equal protection of the law by working together to wrongfully obtain a municipal use exemption for the IPS because the affected residents were African-American or lived in close proximity and associated with African Americans. Count II asserts claims against each Defendant under 42 U.S.C. Section 1982 for violating James's and the proposed subclass members' rights to hold property on an equal basis with white persons. Counts III and IV assert claims against Evanston under 42 U.S.C. Section 1983 for depriving James and the proposed class members of their procedural and substantive due process rights. Finally, Count V sets forth a claim against the Defendants for discriminating against James and the proposed subclass in violation of the Illinois Civil Rights Act, 740 ILCS 23/5. The Defendants have filed separate motions to dismiss, along with a joint motion to strike class allegations. Discussion Each Defendant has separately moved to dismiss James' complaint and jointly moved to strike his class allegations. Both Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6) and Evanston also seeks dismissal under Rule 12(b)(1). Because the Defendants' motions to dismiss, taken together, challenge all claims set forth in James's complaint, if they are granted in their entireties, the motion to strike class allegations will be moot. Thus, Judge Wood begins by addressing the motions to dismiss. I. Ripeness Evanston has moved under Rule 12(b)(1) to dismiss James' entire complaint, arguing that the Court lacks jurisdiction due to his failure to exhaust the state-law remedies available to address his alleged constitutional deprivations. Judge Wood opines that James' failure to exhaust state remedies goes to the merits of his procedural due process claim and does not furnish a basis for dismissal on ripeness grounds. Evanston's Rule 12(b)(1) motion is therefore denied. II. Federal Claims Together, the Defendants' Rule 12(b)(6) motions seek dismissal of all claims brought against them under 42 U.S.C. Sections 1982, 1983, and 1985(3). To survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" This pleading standard does not necessarily require a complaint to contain detailed factual allegations. Rather, "a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." First, Judge Wood finds that nwhere in James' complaint does he take issue with the building or structure in which the IPS is housed or otherwise make any allegations suggesting that it is noncompliant with the requirements of an Open Space district. Without any facts demonstrating that the structure housing the IPS was nonconforming, the Judge holds that James cannot plead the inapplicability of the municipal use exemption by relying on the second sentence of the ordinance. Instead, under the unambiguous meaning of the municipal use exemption, she finds that the IPS would be a permitted use at 2525 Church Street so long as it is found to be a proprietary function operated by Evanston. However, the Judge cannot definitively decide the issue at this stage because there remain too many factual issues concerning whether Evanston is, in fact, operating a proprietary function at 2525 Church Street. Judge Wood opines that t is not clear whether the IPS or the System should be deemed to be the relevant proprietary function. If the former, then James' allegation that Evanston did not operate the IPS defeats any argument that the Defendants have about the applicability of the municipal use exemption. If the latter, there remain issues of fact concerning Evanston's role in operating the IPS. For now, the Judge holds that it suffices to say that the applicability of the municipal use exemption is at least debatable. Thus, the Defendants cannot obtain dismissal of all the federal claims by arguing that the municipal use exemption plainly applies to the IPS. The Judge therefore proceeds to address each of James' federal claims in turn. In sum, Judge Wood holds that the allegations that supposedly reveal Evanston's racially discriminatory purpose only would show that Evanston sought to fast-track the approval process for the IPS with minimal public scrutiny. Again, such allegations do not suffice to connect Evanston's lack of transparency to the affected residents' race. Therefore, James has failed to allege adequately that his and the subclass members' race was the but-for cause of the Defendants' decision to seek a municipal use exemption to construct the IPS at 2525 Church Street. For that reason, his Section 1982 claim is dismissed. Mr. James' civil conspiracy claim also fails for two reasons: Dirst, he fails to allege adequately that Defendants acted with a single plan known to both Evanston and the Commission; and second, he has not pleaded adequately that Defendants sought to deprive him and members of the class of their equal protection rights because of their race. Therefore, James' Section 1985(3) claim is dismissed. Judge Wood further finds that the allegations of the complaint fail to establish a protected property interest. And in any case, Evanston provided constitutionally sufficient notice and opportunity to be heard. Consequently, James has failed to state a procedural due process claim. Having failed to plead a violation of a fundamental right, James must demonstrate that Evanston's zoning decision was either arbitrary or irrational. James does not attempt to challenge Evanston's decision to place the IPS at 2525 Church Street as not rationally related to a legitimate government interest. And indeed, Evanston's approval of land within its city limits for the placement of the IPS was rationally related to its legitimate interest, especially since Evanston stood to benefit financially as the supplier of the water being pumped by the IPS. Instead, James argues that it was irrational for Evanston to approve a municipal use exemption for the IPS since it knew that the exemption was facially inapplicable. But a municipality's alleged misinterpretation of its own ordinance does not, by itself, implicate substantive due process. James' substantive due process claim is therefore dismissed. III. State-Law Claim Mr. James' complaint also asserts a state-law claim for violation of the Illinois Civil Rights Act, 740 ILCS 23/5. Having dismissed the federal claims over which the Court had original jurisdiction, it is within Judge Wood's discretion to decline to exercise supplemental jurisdiction over the remaining state-law claim. She finds that James has failed to show that any of the circumstances that can rebut the presumption are applicable. Hence, the Judge relinquishes jurisdiction over his state-law claim. Conclusion For the foregoing reasons, Judge Wood granted the Defendants' motions to dismiss and dismissed without prejudice James' complaint. Accordingly, the Defendants' joint motion to strike is denied as moot. The Defendants argue that the dismissal should be with prejudice, Judge Wood disagrees. She opines that a plaintiff "whose original complaint has been dismissed under Rule 12(b)(6) should be given at least one opportunity to try and amend [his] complaint before the entire action is dismissed." Because she cannot conclude that granting James leave to amend would be futile, the federal claims are dismissed without prejudice. A full-text copy of the Court's Sept. 29, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/mrfac3y8 from Leagle.com. FERRELLGAS INC: Class Status Bid Filing Extended to Nov. 8 ---------------------------------------------------------- In the class action lawsuit captioned as CHRIS BONSANGUE, on behalf of himself and other similarly situated drivers, v. FERRELLGAS, INC.; FERRELLGAS, L.P.; BLUE RHINO LLC; and DOES 1 to 100, inclusive, Case No. 2:20-cv-11169-FMO-RAO (C.D. Cal.), the Hon. Judge Fernando M. Olguin entered an order continuing the deadline for Plaintiff to file the motion for class certification and preliminary approval of settlement agreement to November 8, 2021. Ferrellgas is an American supplier of propane founded 82 years ago in Atchison, Kansas by A.C. Ferrell. The company is based outside of Kansas City in the suburbs of Liberty, Missouri and Overland Park, Kansas. Blue Rhino provides grill cylinder exchange in the United States. The Company operates displays at retail locations in the United States and Puerto Rico. A copy of the Court's order dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/3mTw0pY at no extra charge.[CC] The Plaintiff is represented by: Joseph Lavi, Esq. Vincent C. Granberry, Esq. Courtney M. Miller, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Boulevard, Suite 200 Beverly Hills, California 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 E-mail: jlavi@lelawfirm.com vgranberry@lelawfirm.com cmiller@lelawfirm.com The Defendant is represented by: Nicky Jatana, Esq. Connie L. Chen, Esq. JACKSON LEWIS P.C. 725 South Figueroa Street, Suite 2500 Los Angeles, CA 90017-5408 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 E-mail: Nicky.Jatana@jacksonlewis.com Connie.Chen@jacksonlewis.com FRONTIER COMMUNICATIONS: Dockery Seeks Conditional Certification ---------------------------------------------------------------- In the class action lawsuit captioned as SHANON DOCKERY, on behalf of herself and all employees similarly situated, v. FRONTIER COMMUNICATIONS, CORPORATION, A Delaware Corporation; CITIZENS TELECOM SERVICES COMPANY, LLC., a Delaware corporation; and DOES 1-100 inclusive, Case No. 2:21-cv-00416-TLN-CKD (E.D. Cal.), the Plaintiff asks the Court to enter an order: 1. granting conditional certification; 2. approving the Notice Plan and requested 60-day opt in period; 3. require Frontier to produce the employee contact information to the Plaintiff within 10 days after an Order granting this motion; 4. approving the Plaintiff's proposed form of Notice and direct that it be mailed and emailed to all identified Customer Service Representatives who worked for Frontier during the operative time frame, with a reminder email and postcard sent 35 days after the initial mailing; and 5. requiring Frontier to post the notice in its payroll system. A copy of the Plaintiff asks the Court to enter an order dated Oct. 5, 2021 is available from PacerMonitor.com at https://bit.ly/3iYlZGW at no extra charge.[CC] The Plaintiff is represented by: Christina A. Humphrey, Esq. CHRISTINA HUMPHREY LAW, P.C. 591 Telegraph Canyon Rd, #376 Chula Vista, CA 91910 Telephone: (805) 618-2924 Facsimile: (805) 618-2939 E-mail: christina@chumphreylaw.com - and - James A. Clark, Esq. Renee P. Ortega, Esq. Ariel A. Pytel, Esq. TOWER LEGAL GROUP, P.C. 11335 Gold Express Drive, Ste. 105 Gold River, CA 95670 Telephone: (916) 233-2008 E-mail: james.clark@towerlegalgroup.com GOOGLE LLC: UK's CAT Allows Class Action to Proceed --------------------------------------------------- Olivia Rafferty, writing for Global Competition, reports that the UK's Competition Appeal Tribunal has ruled that a class action claim against Google can proceed in the UK and will include the technology company's businesses in the US and Ireland. [GN] GRAND CANYON UNIVERSITY: Little Seeks to Certify Class ------------------------------------------------------ In the class action lawsuit captioned as Carson Little, individually and on behalf of all others similarly situated, v. Grand Canyon University, Case No. 2:20-cv-00795-SMB (D. Ariz.), the Plaintiff asks the Court to enter an order: a. granting class certification of the class defined as: "All students enrolled in on-campus classes at Grand Canyon University for the Spring 2020 semester and who were charged fees for services, facilities, resources, activities, and/or events that were not provided, in whole or in part, during the Spring 2020 semester;" b. appointing him as class representative for the class; and c. appointing his counsel as class counsel, d. disallowing further briefing on this motion, except to address the narrowed class definition. On September 20, 2021, this Court entered an Order denying Plaintiff's motion for class certification and appointment of class representative and Class Counsel without prejudice. In so doing, the Court determined that Plaintiff was not a member of the class as originally defined since the Plaintiff did not pay his own fees. The Court also determined that the class was overbroad in that it would have included parties who paid fees on behalf of students but did not have any direct contracts with the University. Based on those two determinations, the Court concluded that the class definition was overbroad and declined to consider Plaintiff's remaining arguments. In March 2020 -- about halfway through the Spring 2020 semester -- GCU directed its students to leave campus, due to the COVID-pandemic. Specifically, on March 21, 2020, GCU instructed students "to leave campus as soon as possible," excepting only those international students who could not return home or students with special circumstances. In directing the students to leave campus, GCU admitted "it would be difficult to provide the necessary services and protect large numbers of students living on our campus in such a scenario [involving stay-at-home orders]. As such, we find it necessary to further reduce the density of people on campus in order to keep students, faculty and staff as safe as possible as we transition to an online learning environment for our ground campus during final four weeks of the semester." Despite directing its students to leave campus -- and admitting its inability to safely provide campus services as a result of the COVID-19 pandemic -- GCU refused to reimburse students for the pro-rated, unused portion of fees paid, proportionate to the amount of time that remained in the Spring 2020 semester when GCU shut its campus down, the lawsuit says. Grand Canyon University is a private Christian university located in Phoenix, Arizona. A copy of the Plaintiff's motion dated Oct. 6, 2021 is available from PacerMonitor.com at https://bit.ly/3FM7kse at no extra charge.[CC] The Plaintiff is represented by: Adam J. Levitt, Esq. Amy E. Keller, Esq. Laura E. Reasons, Esq. DI CELLO LEVITT GUTZLER LLC Ten North Dearborn Street, Sixth Floor Chicago, IL 60602 Telephone: (312) 214-7900 E-mail: alevitt@dicellolevitt.com akeller@dicellolevitt.com lreasons@dicellolevitt.com - and - Matthew S. Miller,Esq. MATTHEW S. MILLER LLC 77 West Wacker Drive, Suite 4500 Chicago, Illinois 60601 Telephone: (312) 741-1085 E-mail: mmiller@msmillerlaw.com - and - Robert D. Ryan, Esq. LAW OFFICES OF ROBERT D. RYAN, P.L.C. 343 West Roosevelt Street, Suite 220 Phoenix, AZ 85003 Telephone.: (602) 256-2333 E-mail: rob@robertdryan.com The Defendant is represented by: Sean P. Healy, Esq. Kathryn Honecker, Esq. Jon P. Kardassakis, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012 Telephone: (602) 385-1040 E-mail: Sean.Healy@lewisbrisbois.com Kathryn.Honecker@lewisbrisbois.com Jon.Kardassakis@lewisbrisbois.com GREENSKY SECURITIES: Deadline for $27.5M GreenSky Settlement Set ---------------------------------------------------------------- Dennis O'Toole at chicagoclearing.com reports that Case Name: GreenSky Class Period: 5/24/2018 - 11/12/2018 Settlement Fund: $27,500,000 Claim Filing Deadline: 10/9/2021 Symbol: GSKY GreenSky, a financial services firm based in Atlanta Georgia, has settled a class action securities suit for $27.5 million. The deadline is right around the corner - October 9. Purchasers of Class A common stock traceable to the company's May 25, 2018 IPO or during the class period are eligible to participate. Chicago Clearing Corporation (CCC) has been preparing claims in this litigation since the settlement notice first arrived in July. Call us today at 312-204-6970, and we'll get started on a claim in this litigation -- and in any other litigation affecting your portfolio or your clients' portfolios. About this case What is GreenSky? Well, it depends on who you ask. In some of its promotional material they state that they "paperless solutions and financial services to businesses of all sizes," which is cool -- CCC provides solutions too! Wikipedia claims that GreenSky "provides technology to banks and merchants to make loans to consumers for home improvement, solar, healthcare and other purposes" which is more specific but trails off into vague. This question, "what is GreenSky and what does it do?" is in fact the basis of the plaintiff's complaint -- it was not clear, they claim, in the company's offering documents. The name GreenSky implies environmentally friendly energy technologies, which according to the class action complaint is how the company began: "GreenSky has traditionally catered to home improvement and solar energy businesses. GreenSky charged its solar panel merchants substantially higher transaction fees relative to other merchants. GreenSky typically charged its solar panel merchants a 14% transaction fee, while charging other merchants a 7% transaction fee on average. GreenSky has begun to expand its reach in the elective healthcare market, in which it charges lower-than-average transaction fees. GreenSky has simultaneously begun phasing out of its relationships with solar panel merchants. The Offering Documents failed to disclose the substantial change in the composition of GreenSky's merchant business mix and the resulting diminution in transaction-fee revenue." Plaintiffs alleged that the offering documents and other statements were "false and misleading because [they] characterize[d] GreenSky's fee revenue model as 'strong' and 'recurring' even as the Company was winding down its solar panel business and ramping up its activity in the elective healthcare market. . . . Though the IPO took place [on May 28, 2018] after the strategic decision to move away from solar and focus on healthcare, the financial effects of that shift were not disclosed in the Offering Documents. On November 6, 2018 [after the company released its financial results], GreenSky's stock price plummeted to $9.28 per share, sharply down from the IPO price of $23.00 per share and post-offering high of $26.77 per share." Defendants deny "each and all" of the allegations. How CCC Can Help CCC has tracked this litigation since the case was first filed in 2018. We track all litigations throughout the federal court system, post settlement information as soon as it appears, file timely and comprehensive claims, respond to every communication from the administrators, reconcile deficiencies and, when necessary, contest rejections, allocate funds in a manner that best serves you and your clients. . . . and then do it again and again and again for every complaint filed, every settlement, and every distribution. Best of all, we present all of this information to you-- thousands of cases, hundreds of complaints and settlements each year -- on a smart, intuitive, and easy to use client portal. Call us today at 312-204-6970, and discover how we are a smart solution for all your financial settlement recovery opportunities. [GN] GYM STORE: Faces Crumwell Suit Over Blind-Inaccessible Website -------------------------------------------------------------- DENISE CRUMWELL, on behalf of herself and all other persons similarly situated v. GYM STORE, INC. Case No. 1:21-cv-08126-LGS (S.D.N.Y., Sept. 30, 2021) arises from the Defendants' failure to design, construct, maintain, and operate its website https://www.gymstore.com to be fully accessible to, and independently usable by, the Plaintiff and other blind or visually impaired people in violation of the Americans with Disabilities Act. Ms. Crumwell alleges that the Defendant has engaged in acts of intentional discrimination due to the inaccessibility of its website, and seeks a permanent injunction to cause Defendant to change its corporate policies, practices, and procedures so that its website will become and remain accessible to blind and visually impaired consumers. Gym Store, Inc. was founded in 2009. The company's line of business includes the retail sale of sporting goods, sporting equipment, bicycles, and bicycle parts and accessories.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Michael@gottlieb.legal Jeffrey@gottlieb.legal Dana@gottlieb.legal HARVEST HOSPITALITIES: Resto Staff Sues to Recover Unpaid Wages --------------------------------------------------------------- Claudio Morales, Jamie Sutton, Jasmine Cooley, Megan Boyer and Jessica Jordan, individually and on behalf of all others similarly situated, Plaintiff, v. Harvest Hospitalities, Inc., Sattar Shaik, Harvest Associates Incorporated, Harvest Pasadena, Inc., Harvest-Gambrills, Inc., Harvest of Towson, Harvest Kent Island, Inc., Harvest Salisbury, Inc., Harvest Ocean City, Inc., Harvest Olney, Inc., Harvest Manassas Mall, Inc., Harvest Manassas, Inc., Harvest 493, Inc., Harvest 591, Inc. and Harvest 575, Inc., Defendants, Case No. 21-cv-02482, (D. Md., September 28, 2021), seeks unpaid overtime compensation owed, liquidated damages, billed, unpaid and unreimbursed expenses, pre- and post-judgment interest as well as litigation costs and reasonable attorneys' fees incurred and such further relief under the Maryland Wage and Hour Law, the Maryland Wage Payment Collection Law, the Virginia Minimum Wage Act, Virginia Wage Payment Act and the common law of contract. Harvest Hospitality is a restaurant chain owned by Sattar Shaik operating over twenty "IHOP" restaurants in Maryland and nearby states. Plaintiffs were hourly employees who worked in the various IHOP restaurants, some of which worked as servers. They claim to have regularly worked more than 40 hours in workweeks but were not paid overtime. IHOP allegedly falsified employees' time records in order to reduce their pay. The complaint further alleges that IHOP required its servers to claim more in tips than they actually received, so that they would not have to supplement their non-tipped wages to satisfy the minimum wage. Servers were also required to work in a non-server, non-tipped capacity such as cleaning dishes, cleaning bathrooms, cleaning silverware where they were paid only the tipped minimum wage but without getting any tips, which amounted to work below the minimum wage, adds the complaint. [BN] Plaintiff is represented by: Brian J. Markovitz, Esq. JOSEPH, GREENWALD & LAAKE, P.A. 6404 Ivy Lane, Suite 400 Greenbelt, MD 20770 Phone: (301) 220-2200 Fax: (240) 553-1747 Email: bmarkovitz@jgllaw.com - and Joseph H. Chivers, Esq. THE EMPLOYMENT RIGHTS GROUP LLC First & Market Building 100 First Avenue, Suite 650 Pittsburgh, PA 15222 Tel: (412) 227-0763 Fax: (412) 774-1994 Email: jwc@employmentrightsgroup.com - and - Jeffrey W. Chivers, Esq. CHIVERS LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel.: (718) 210-9826 Fax: (212) 202-5097 Email: jwc@chivers.com HYZON MOTORS: Faces Kauffmann Suit Over Share Price Drop -------------------------------------------------------- JAN KAUFFMANN, Individually and on behalf of all others similarly situated, Plaintiff v. HYZON MOTORS INC. f/k/a DECARBONIZATION PLUS ACQUISITION CORPORATION, ERIK ANDERSON, PETER HASKOPOULOS, CRAIG KNIGHT, and MARK GORDON, Defendants, Case No. 6:21-cv-06612 (W.D.N.Y., Sept. 30, 2021) is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired the publicly traded securities of Hyzon between February 9, 2021 and September 27, 2021, both dates inclusive, seeking to recover compensable 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. Hyzon purports to be a leader in fuel cell electric mobility with an exclusive focus on the commercial vehicle market, and a near-term focus on back to base (captive fleet) operations. On May 21, 2021, the Company filed with the Securities and Exchange Commission a Proxy Statement on Schedule 14A regarding Hyzon's deals and delivery schedule. Allegedly, the Proxy Statement was materially false and/or misleading because it misrepresented and failed to disclose the adverse facts pertaining to the Company's business, operational and financial results, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statement and/or failed to disclose that: (1) Hyzon was misrepresenting the nature of its "customer" contracts and severely embellished its "deals" and "partnerships" with customers; (2) Hyzon could not deliver its announced vehicles in 2021, on its stated timeline; and (3) as a result, Defendants' public statement was materially false and/or misleading at all relevant times, adds the complaint. On this news, Hyzon shares fell $2.58 per share, or 28%, to close at $6.63 per share on September 28, 2021, damaging investors. As a result of Defendants' alleged wrongful acts and omissions, and the decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, the complaint asserts.[BN] The Plaintiff is represented by: Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com HYZON MOTORS: Howard G. Smith Reminds of November 29 Deadline ------------------------------------------------------------- Law Offices of Howard G. Smith reminds investors of the upcoming November 29, 2021 deadline to file a lead plaintiff motion in the case filed on behalf of investors who purchased Hyzon Motors Inc. f/k/a Decarbonization Plus Acquisition Corporation ("Hyzon" or the "Company") (NASDAQ: HYZN), securities between February 9, 2021 and September 27, 2021, inclusive (the "Class Period"). Investors suffering losses on their Hyzon investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com. On September 28, 2021, Blue Orca Capital published a report alleging, among other things, that "channel checks reveal . . . that Hiringa was not actually a customer, but a 'channel partner' assisting Hyzon in marketing vehicles to real end customers in New Zealand." Though the Hyzon claims that "Hiringa will account for 24% of the Company's projected deliveries in 2021," the report alleged that "Hiringa stated point blank that no deliveries would be taken in 2021," so Blue Orca "expect[s] a major guidance miss." Moreover, multiple executives left Hyzon because they "became uncomfortable with how Hyzon was presenting customer orders to investors" as it felt "a bit like unfortunately what Nikola was doing." On this news, the Company's share price fell $2.58, or 28%, to close at $6.63 per share on September 28, 2021, thereby injuring investors. The complaint filed alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (1) Hyzon was misrepresenting the nature of its "customer" contracts and severely embellished its "deals" and "partnerships" with customers; (2) Hyzon could not deliver its announced vehicles in 2021, on its stated timeline; and (3) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased or otherwise acquired Hyzon securities during the Class Period, you may move the Court no later than November 29, 2021 to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Law Offices of Howard G. Smith Howard G. Smith, Esquire 215-638-4847 888-638-4847 howardsmith@howardsmithlaw.com www.howardsmithlaw.com [GN] HYZON MOTORS: Thornton Law Firm Reminds of Nov. 29 Deadline ----------------------------------------------------------- The Thornton Law Firm alerts investors that a class action lawsuit has been filed on behalf of investors of Hyzon Motors Inc. (NASDAQ:HYZN). The case is currently in the lead plaintiff stage. Investors who purchased HYZN stock or other securities between February 9, 2021 and September 27, 2021 may contact the Thornton Law Firm's investor protection team by visiting www.tenlaw.com/cases/Hyzon for more information. Investors may also email investors@tenlaw.com or call 617-531-3917. FOR MORE INFORMATION: www.tenlaw.com/cases/Hyzon The case alleges that Hyzon and its senior executives made misleading statements to investors and failed to disclose that: (i) Hyzon was misrepresenting the nature of its "customer" contracts and severely embellished its "deals" and "partnerships" with customers; and (ii) Hyzon could not deliver its announced vehicles in 2021 on its stated timeline. Interested Hyzon investors have until November 29, 2021 to retain counsel and apply to be a lead plaintiff if they are interested to do so. A lead plaintiff acts on behalf of all other investor class members in managing the class action. Investors do not need to be a lead plaintiff in order to be a class member. If investors choose to take no action, they can remain an absent class member. The class has not yet been certified. Until certification occurs, investors are not represented by an attorney. Thornton Law Firm is not currently representing a plaintiff who filed a complaint but is investigating the case on behalf of investors interested in being a lead plaintiff. FOR MORE INFORMATION: www.tenlaw.com/cases/Hyzon Thornton Law Firm's securities attorneys are highly experienced in representing investors in recovering damages caused by violations of the securities laws. Its attorneys have established track records litigating securities cases in courts throughout the country and recovering losses on behalf of investors. This may be considered Attorney Advertising in some jurisdictions. Prior results do not guarantee or predict a similar outcome with respect to any future matter. CONTACT: Thornton Law Firm LLP 1 Lincoln Street State Street Financial Center Boston, MA 02111 www.tenlaw.com/cases/Hyzon [GN] KAPSCH TRAFFICCOM: Court Denies Bid to Certify Class in Outzen Suit ------------------------------------------------------------------- In the case, MONIQUE OUTZEN individually and on behalf of all others similarly situated, ROBERT ARDAIOLO individually and on behalf of all others similarly situated, and MELISSA BARKER an individual, on behalf of herself and all others similarly situated, Plaintiffs v. KAPSCH TRAFFICCOM USA, INC., and GILA, LLC, Defendants, Case No. 1:20-cv-01286-TWP-MJD (S.D. Ind.), Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, denies the Plaintiffs' Amended Motion for Class Certification and grants the Defendants' Motion for Leave to File Notice of Supplemental Authority. Background The matter is before the Court on an Amended Motion for Class Certification filed by Plaintiffs Monique Outzen, Robert Ardaiolo, and Melissa Barke, all individually and on behalf of all others similarly situated. Outzen and Ardaiolo filed their eight-claim putative class action complaint against Defendants Kapsch and Gila, and the Court eventually consolidated their case with a similar one brought by Barker, noting that both involved common questions about similar factual allegations. Later, the Court denied the Defendants' Joint Motion to Dismiss Outzen and Ardaiolo's Complaint. Meanwhile, the Plaintiffs -- after Barker was brought into the case -- filed the amended Motion at bar. RiverLink is a collaborative tolling system instituted by Indiana and Kentucky to build, maintain, and improve multiple bridges spanning the Ohio River that connect both Indiana and Kentucky. Kapsch was awarded the contract to act as the Toll Services Provider ("TSP") for RiverLink and later hired Gila to act as its agent to, among other things, provide a "Back Office System" and create a "Customer Service Center." RiverLink uses all-electronic tolling, meaning that tolls are collected one of two non-traditional ways under Business Rules adopted by the States. Section 135 Ind. Admin. Code 4-1-1 defines Business Rules as "a set of policies and procedures established from time to time by the tolling body pursuant to a toll policy agreement of the states' parties that defines how the toll transactions will be processed." Thus, RiverLink users can create Registered Vehicle Accounts ("RVAs") that automatically debit accounts when sensors detect their provided transponders traversing the bridges. Relevant to the action -- for motorists without RVAs, or for those with RVAs carrying inadequate balances to pay a toll -- cameras photograph license plate information of the passing cars and Unregistered Vehicle Accounts ("UVAs") are created. The owners of these vehicles, as identified by the Indiana Bureau of Motor Vehicles ("IN BMV") or Kentucky Motor Vehicle Licensing ("KY MVL"), will receive an invoice for the unpaid toll, known as a "1st Toll Notice," through the mail. If the invoice goes unpaid for 35 days, drivers are to be mailed a "2nd Toll Notice," which this time includes an additional $5 administrative fee/penalty. If the 2nd Toll Notice is not paid within twenty days, drivers will receive a "Violation Notice," which includes the unpaid toll, a $5 administrative fee/penalty from the 2nd Toll Notice, and an additional $20 fee/penalty. In particular, "if owner fails to pay 1st Toll Notice, the 2nd Toll Notice is sent within seven days of the initial invoice due day, adding the 2nd Unregistered Video Account Invoice Administration fee to the second invoice. New payment due date is 20 days from generation of second invoice." If the driver does not pay the Violation Notice within 30 days, they will be sent a "Collection Notice," which, in addition to all the charges outlined in the Violation Notice, includes an additional $30 collections penalty/fee. This notice will assess a violation invoice administration fee per violation invoice, totaling the cumulative, combined amount of tolls and fees, and requiring payment within 30 Calendar Days of violation notice generation. Finally, if a Collection Notice is not paid, additional fees may be assessed, collection efforts (including litigation) may be instituted, and a hold may be placed on the vehicle's registration with the IN BMV or KY MVL, which can only be lifted upon full payment of the penalty/fee. Unfortunately, the Defendants did not follow this protocol, and instead have consistently mailed 1st Toll Notices with a due date of 30 days after the invoice date, which is earlier than contemplated by the Business Rules (35 days after generation date). Additionally, they have assessed fees and penalties on some customers before a 1st Toll Notice was even sent at all. For their parts, after Outzen and Barker used the bridges as UVA customers, they received 2nd Toll Notices—but never 1st Toll Notices -- and were charged $5 administrative fees/penalties. Plaintiffs Outzen and Barker, accordingly, were never afforded the appropriate windows to pay their tolls without fees. Unlike Outzen and Barker, however, Ardaiolo was provided a 1st Toll Notice after using the bridge. But that notice did not comply with the requirement to give him the requisite thirty-five days to pay his toll, and Ardaiolo later also received a 2nd Toll Notice (including the additional $5 fee). To avoid incurring additional penalties and fees, Outzen, Barker, and Ardaiolo all paid the full amount due pursuant to their respective 2nd Toll Notices. Meanwhile, the Defendants and the States identified some of these widespread issues and started the ongoing process of planning for remediation, which resulted in the suspension of some fees and penalties as well as the furnishment of refunds to affected customers. The States, however, have not yet globally signed off on the plans. To this end, the Defendants have offered all contested fees or penalties charged to Outzen and Barker as refunds. These offers, however, have remained rebuffed. The Plaintiffs eventually sued the Defendants for unjust enrichment (Count I), money had and received (Count II), fraud (Count III), violation of the Indiana Deceptive Consumer Sales Act ("IDCSA") (Count IV), deception or intentional misrepresentation (Count V), negligence (including negligent misrepresentation and negligence per se) (Count VI), constructive fraud (Count VII), and breach of fiduciary duty (Count VIII), for alleged violations stemming from their operation of the electronic toll collection system over the Ohio River bridges. Later, the Court denied Defendants' Motion to Dismiss after the Plaintiffs filed the Amended Motion for Class Certification. The Defendants filed a Motion for Leave to File Notice of Supplemental Authority. Discussion A. Choice of Law At the outset, the Defendants maintain that "before analyzing the Plaintiffs' claims to determine whether they meet Rule 23's exacting standard, the Court must first conduct a choice-of-law analysis for each claim, and for each Plaintiff (including each putative class member)."After conducting this analysis, the Defendants argue, the Court will discover "the impracticability of resolving this matter through class proceedings." In a case within federal diversity jurisdiction, a federal district court applies the choice of law rules of the forum state. Accordingly, Judge Pratt applies Indiana's choice of law rules. For the same reasons she has found that Indiana "has the most significant relationship with the action," she would reach the same result if applying the "most intimate contacts rule" in relation to the equitable claims if they were to be considered "quasi-contractual" in nature. B. Class Certification The Plaintiffs maintain that despite the Defendants' contention, they "have not implemented a refund program to address the 'missing invoices' and unlawful fees at issue in the litigation." To them, the "Defendants cannot be trusted to administer any refund plan now after they have been sued" when they have "provided Class Members with literally false information, concealed their wrongful conduct for years, and still deny liability." With these multi-class arguments, Judge Pratt moves on to class-particular contentions. 1. Damages Class The Plaintiffs propose that the Court certify a "Damages Class" that includes "all individuals and entities who paid administrative fees, violation fees, collections fees, and/or penalties arising from use of the Riverlink Connect Tolling System using Unregistered Video Accounts." They maintain that certification is appropriate because "Defendants used tolling software parameters and deceptive form letters to convince Damages Class Members to pay unlawful fees while misrepresenting to those Damages Class Members that the fees were owed under Indiana law." The Defendants, however, contend that, "as an initial matter, the Court should not certify the Plaintiffs' Damages Class because Plaintiffs cannot maintain a cognizable claim for relief for an alleged breach of the Business Rules entered into between the States and the Defendants." Even so, they continue, certification should be denied because "(1) the Plaintiffs' Damages Class includes many members who did not suffer any injury; and (2) individual questions will predominate over any common issue of fact or law." Judge Pratt agrees with the Plaintiffs: Because only those individuals who paid fees and/or penalties -- in addition to their tolls—are contemplated as Class Members in the Damages Class, this class, broadly speaking, does not "include hundreds of thousands (if not millions) of individuals who have suffered no injury. But, the Damages Class suffers from separate concerns regarding inclusivity of membership. The Judge finds that it is clear that "each class member actually paid any fees assessed to them under the RiverLink system": the Damages Class is constrained, as discussed above, to those who actually paid fees/penalties, not those who were merely assessed them or who paid only tolls. But she finds that it matters, crucially, "when each class member actually paid any fees assessed to them under the RiverLink system." Moreover, this concern "suggests not only that individual questions predominate at this stage of the litigation, but also that it would be difficult to manage the litigation as a class. Finally, this concern implicates Rule 23's ascertainability requirement that "class definitions generally need to identify a particular group, harmed during a particular time frame, in a particular location, in a particular way." For the reasons, Judge Pratt will deny the Plaintiffs' request to certify its proposed Damages Class. 2. Damages Subclass The Plaintiffs also request that the Court certify a "Damages Subclass" consisting of "all individuals and entities who paid administrative fees, violation fees, collections fees, and/or penalties for failure to timely pay a Toll Notice that was never printed and mailed by Defendant." Certification is warranted, the Plaintiffs contend, when the "Defendants used form letters to convince all Damages Subclass Members to pay fee and penalties for failing to pay toll notices that Defendants never mailed to them." The Defendants respond that the Damages Subclass cannot meet the demands of either Rule 23(a) or Rule 23(b). Judge Pratt holds that these Plaintiffs are "part of the class and possess the same interest and suffer the same injury as the class members," and she is "satisfied that they will keep the interests of the entire class at the forefront. However, the Judge finds that the circumstances of any late fee payment," on an individual level, will dominate the Court's attention if the Damages Subclass were certified because identifying properly situated members would be "a complex, highly individualized task, and cannot be reduced to the application of a set of simple, objective criteria." Moreover, this class too is plagued by Rule 23's ascertainability requirement "that classes be defined clearly and based on objective criteria. Because individualized concerns predominate, Judge Pratt will deny the Plaintiffs' request to certify the Damages Subclass as well. 3. Issue Class Finally, the Plaintiffs ask the Court to certify an "Issue Class." As to all individuals and entities who are assessed administrative fees, violation fees, collections fees, and/or penalties arising from their use of the Riverlink Connect Tolling System using Unregistered Video Accounts, whether the Defendants may lawfully assess administrative fees, violation fees, collections fees, and/or penalties against UVA Customers when the Defendants (1) set the 1st Toll Notice due date for less than 35 days after the date of the notice's generation; and/or (2) failed to mail the requisite prior notice to the UVA Customer as described in the Business Rules. The Plaintiffs contend that the Court should certify this class because the "Defendants used tolling software parameters and form letters to charge Issue Class Members fees and penalties without first providing Issue Class Members proper notice and time to pay their toll notices." But the Defendants maintain that the Plaintiffs, in addition to failing to even argue "how certification of the Issue Class meets Rule 23's standards," have not carried their burden for certifying the Issue Class for "additional reasons." Judge Pratt holds that she can reject this certification request in short order: The putative class is even broader than the others denied because it pulls in all individuals and entities ever "assessed" -- not just those who paid -- fees and/or penalties from use of RiverLink. If the other proposed classes were overly broad, the Court need not explicate at length as to why this class falters on the same premise. Moreover, with no Damages Class certified, the Court will not "likely need to decide this issue during litigation." For these reasons, the Judge will deny certification of the Issue Class. Conclusion For the reasons she described, Judge Pratt denies the Plaintiffs' Amended Motion for Class Certification and grants the Defendants' Motion for Leave to File Notice of Supplemental Authority. A full-text copy of the Court's Sept. 29, 2021 Order is available at https://tinyurl.com/yk9usa7k from Leagle.com. KONINKLIJKE PHILIPS: Cantrelle Sues Over Defective Ventilators -------------------------------------------------------------- Edward Cantrelle and Thomas and Reba Hixson, on behalf of themselves and all others similarly situated, Plaintiff, v. Koninklijke Philips N.V., Philips North America LLC and Philips RS North America, LLC, Defendants, Case No. 21-cv-01805 (E.D. La., September 30, 2021), seeks injunctive and declaratory relief, compensatory, actual, statutory, consequential, punitive and/or any other form of damages, restitution, disgorgement and/or other equitable relief, costs of this action, including reasonable attorneys' fees, and, where applicable, expert fees, prejudgment and post judgment interest, award of such other and further relief resulting from breach of implied warranty and for violation of the Louisiana Unfair Trade Practices and Consumer Protection Law. Philips recalled its Bi-Level Positive Airway Pressure, Continuous Positive Airway Pressure (CPAP) and mechanical ventilator devices involving an estimated 3 million to 4 million devices globally. Said products contained polyester based polyurethane foam that degrades and can be inhaled by the users, causing health risks, including respiratory issues and cancer. Edward Cantrelle and the Hixsons used their Dreamstation Auto CPAP device to treat a health condition. Because of the defect, they claim to be facing the risk of possible exposure to off-gassed or degraded polyurethane foam in the devices. [BN] Plaintiff is represented by: Gerald E. Meunier, Esq. M. Palmer Lambert, Esq. Claire E. Berg, Esq. GAINSBURGH, BENJAMIN, DAVID, MEUNIER & WARSHAUER L.L.C. 2800 Entergy Centre 1100 Poydras Street New Orleans, LA 70163 Phone: (504) 522-2304 Fax: (504) 528-9973 Email: gmenuier@gainben.com plambert@gainsben.com cberg@gainsben.com LINK GROUP: Faces Class Action in UK Over Woodford Imbroglio ------------------------------------------------------------ afr.com reports that Link Group is facing a British class action involving more than 11,000 claimants, as investors in a GBP3.7 billion ($6.9 billion) fund managed by fallen financial superstar Neil Woodford push to get more of their money back. English solicitors Leigh Day filed a claim on behalf of an initial group of 100 investors in Woodford Equity Income Fund (WEIF), which Link administered through its British subsidiary Link Fund Solutions (LFS), but said it had more than 100 times that number of clients ready to join in. Neil Woodford is casting a long shadow over Link. ASX-listed Link has signalled it will contest the claims, which are likely to take some years to roll through the courts. The company is also under scrutiny from the British regulator, the Financial Conduct Authority. The FCA said in May it expected its investigation to wrap up by the year's end. An adverse finding could mean hefty fines and could increase the risk from the class action. LFS was forced to shut the WEIF two years ago with GBP3.7 billion still trapped inside it, and has been gradually trying to recoup and repay investors. It had frozen the WEIF five months earlier, as investors bolted for the exit following revelations of just how illiquid many of the holdings were in the underperforming fund. A court case looks set to revolve around how much LFS knew and supported Mr. Woodford's efforts to massage the liquidity of the fund, and whether this was a breach of statutory fiduciary duty. "The claims made by Leigh Day on behalf of investors are that Link was in breach of FCA rules in the way it managed and monitored the fund, and this ultimately led to the fund's collapse, causing ordinary investors loss and damage," Leigh Day said in a statement. GBP2.54 billion returned to investors Link said in a statement of its own that LFS had not yet been served with any papers, and the company would "vigorously defend itself against any proceedings". LFS "considers that it has acted at all times in accordance with applicable rules, as well as in the best interests of all investors, and it will continue to do so", the statement said. Link has returned GBP2.54 billion to investors, and as at July 30 the shuttered fund still had just under GBP124 million of assets that could eventually be distributed. LFS told investors in early August it would realize these remaining assets when it could maximize their value, and hoped to wrap up the process during 2022. Link became involved in Mr. Woodford's high-profile retail investment funds in 2017, when it bought Capita Asset Services and rebranded it as Link Fund Solutions. The WEIF took big bets on unlisted, illiquid start-ups, which became an increasingly predominant part of the portfolio. By mid-2018, Link already knew that only about 21 per cent of the open-ended fund could be cashed out in a week, and 25 per cent would take up to a year to offload - well above the FCA's regulatory limit of 10 per cent. Mr Woodford got some of the illiquid companies to reclassify themselves as being pre-IPO, and also listed some shares on the low-trading Guernsey Stock Exchange. He also swapped some illiquid shares for stock in his publicly traded Patient Income Fund. Former FCA boss Andrew Bailey has accused Link of only belatedly revealing these tactics to the regulator, and described the moves as technically within the law but "on the wrong side of the spirit of it". Link has said the WEIF's efforts to increase liquidity were "in line with the investment objectives and strategy of the fund". [GN] LONGEVERON INC: Bernstein Liebhard Reminds of Nov. 12 Deadline -------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion no later than November 12, 2021 in a securities class action lawsuit that has been filed on behalf of investors who purchased or acquired the securities of Longeveron Inc. ("Longeveron" or the "Company") (NASDAQ: LGVN) from February 9, 2021 through August 12, 2021 (the "Class Period"). The lawsuit filed in the United States District Court for the Southern District of Florida alleges violations of the Securities Act of 1934. If you purchased Longeveron securities, and/or would like to discuss your legal rights and options please visit Longeveron Inc. Shareholder Class Action Lawsuit or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com According to the complaint, Longeveron's Offering Documents were negligently prepared and, as a result, contained untrue statements of material fact or omitted to state other facts necessary to make the statements made not misleading and were not prepared in accordance with the rules and regulations governing their preparation. Further, the Company issued materially false and/or misleading statements and failed to disclose adverse facts pertaining to Longeveron's business, operations, and compliance policies. Longeveron and the Offering Documents made false and/or misleading statements and/or failed to disclose that: (i) Lomecel-B was not as effective in treating aging frailty as Defendants had led investors to believe; (ii) accordingly, Lomecel-B's clinical and commercial prospects with respect to aging frailty were overstated; and (iii) as a result, the Offering Documents and Defendants' public statements throughout the Class Period were materially false and/or misleading and failed to state information required to be stated therein. On August 13, 2021, Longeveron issued two press releases, one announcing topline results of the Phase 2b Aging Frailty Trial, and a second providing a corporate update and reporting the Company's financial results for the second quarter of 2021. Both press releases disclosed, among other results, that Lomecel-B had "not achiev[ed] . . . statistical significance for the pairwise comparison to placebo" with respect to the primary efficacy endpoint. On this news, Longeveron's stock price fell $1.51 per share, or 27.91%, to close at $3.90 per share on August 13, 2021, representing a total decline of 61% from the Offering price. As of the time the complaint was filed, Longeveron's stock price continues to trade below the $10.00 per share Offering price, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than November 12, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Longeveron securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/longeveroninc-lgvn-shareholder-class-action-lawsuit-fraud-stock-439/ or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Rujul Patel Bernstein Liebhard LLP https://www.bernlieb.com (877) 779-1414 rpatel@bernlieb.com [GN] MACROGENICS INC: District of Maryland Dismisses Amended CPERS Suit ------------------------------------------------------------------ In the case, EMPLOYEES' RETIREMENT SYSTEM OF THE CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE, Plaintiff v. MACROGENICS, INC., et al., Defendants, Case No. GJH-19-2713 (D. Md.), Judge George J. Hazel of the U.S. District Court for the District of Maryland, Southern Division, granted the Defendants' Motion to Dismiss Lead Plaintiff's Amended Complaint for Failure to State a Claim pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). Background The lawsuit is a securities fraud case arising from the Defendants' statements regarding the clinical trials of their cancer treatment product, "Margetuximab." Lead Plaintiff Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge ("CPERS") brings the putative class action against Defendants MacroGenics, CEO and President Scott Koenig, and CFO and Treasurer James Karrels, for purported violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934; and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933. MacroGenics is a clinical-stage biopharmaceutical company that trades on the NASDAQ under the symbol "MGNX." It is developing Margetuximab, a treatment for patients with certain metastatic breast cancers. The Plaintiffs are individuals who purchased common stock in MacroGenics between Feb. 6, 2019 and June 4, 2019. During the relevant time, MacroGenics was developing Margetuximab. Margetuximab is an antibody developed for patients who had previously undergone cancer treatments but had achieved only sub-optimal results. Margetuximab is the first of MacroGenics' product candidates to be tested in a Phase III clinical trial and is a "critically important product" to MacroGenics. The Class Period extends from MacroGenics' Feb. 6, 2019 release of initial data until June 4, 2019, when MacroGenics presented at the annual meeting of the American Society of Clinical Oncologists ("ASCO Conference"). The Plaintiff alleges that MacroGenics conducted an initial analysis of the SOPHIA data and then began to "selectively" and "misleadingly" release positive aspects of the study while suppressing negative aspects during the Class Period. Over the next two days after the ASCO Conference, the price of MacroGenics stock fell more than 21% from trading at $18.71 on June 3, 2019 to closing at $14.66 on June 5, 2019. This drop was also a decline of 43% of the stock's Class Period high on Feb. 6, 2019 and of 27% from its February 2019 Offering price. The Plaintiff alleges Defendants made false and misleading representations and omissions in statements about Margetuximab during the Class Period. It alleges that these wrongful statements and omissions caused them to buy MacroGenics stock at "artificially inflated prices" and to suffer losses after the "full truth" about the study emerged. Former Lead Plaintiff Todd Hill commenced the action by filing the original Complaint on Sept. 13, 2019. On Nov. 12, 2019, CPERS filed a Motion to Appoint itself as Lead Plaintiff, which was granted on Aug. 17, 2020. The Plaintiff filed the Amended Complaint on Oct. 16, 2020, alleging five claims. The Plaintiff's first two claims allege violations of Sections 10(b) and 20(a) of the Exchange Act against MacroGenics, Defendant Koenig, and Defendant Karrels. It also alleged claims of strict liability and negligence in connection with MacroGenics' February 2019 Offering under Sections 11, 12(a)(2), and 15 of the Securities Act. The Plaintiff asserts that the Court has jurisdiction over the subject matter of these claims pursuant to 28 U.S.C. Section 1331 and Section 27 of the Exchange Act and Section 22 of the Securities The Defendants filed their Motion to Dismiss on Nov. 30, 2020. The Plaintiffs filed a Response in Opposition on Jan. 29, 2021. The Defendants filed a Reply on Feb. 26, 2021. Discussion A. Exchange Act Claims 1. Count I: Section 10(b) of the Exchange Act The Plaintiff's First Count alleges that Defendants violated Section 10(b) of the Exchange Act and Rule 10b-5. The Defendants contend that the Plaintiff has failed to allege any materially false or misleading statements or omissions and that the Plaintiff has failed to allege facts giving rise to an inference of scienter, as required by the PSLRA. Judge Hazel finds that the Plaintiff has not alleged actionable misrepresentations or omissions nor has alleged facts supporting an inference of scienter. First, he opines that because the Defendants had no "duty" to simultaneously disclose OS results while reporting on their PFS results, the statements contained are not actionable. Second, looking at the "total mix" of information available to investors, the Judge cannot say that these statements were materially false or misleading. Therefore, they are not actionable. Third, it is not sufficiently clear that, even assuming that the Defendants had full access and knowledge of the OS data and associated Kaplan-Meier curves, failure had become a "near certainty" for Margetuximab such that MacroGenics' repeated cautionary statements were materially misleading. Thus, the cautionary statements and risk warnings are not actionable. Finally, even if the Plaintiff's allegations were true, it does not follow that the "Defendant acted with the required state of mind" to defraud investors. Because the Plaintiff does not meet the heavy burden to establish scienter, Count I is dismissed. 2. Count II: Section 20(a) of the Exchange Act The Plaintiff's Second Count alleges that Defendants Koenig and Karrels are liable pursuant to Section 20(a) of the Exchange Act. The Defendants contend that because the Plaintiff has failed to allege the underlying violation of Section 10(b), the Plaintiff's claim against the control persons fail as well. Judge Hazel opines that a "claim for controlling person liability under section 20(a) must be based upon a primary violation of the securities laws," citing Svezzese v. Duratek, Inc., 67 F. App'x 169, 174 (4th Cir. 2003). Thus, because the Plaintiff's claim under Section 10(b) is dismissed, the claim under Section 20(a) is dismissed as well. B. Securities Act Claims The rest of the Plaintiff's claims are pursuant to the Securities Act. The claims arise out of MacroGenics' Feb. 13, 2019 secondary public offering. To survive the Motion to Dismiss, the Plaintiff must "state with particularity the circumstances constituting fraud or mistake" for the Section 11 and Section 12(a)(2) claims. 1. Count III: Section 11 of the Securities Act The Plaintiff brings the Third Count pursuant to Section 11 of the Securities Act. It contends that the Registration Statement was "inaccurate and misleading, contained untrue statements of material facts, omitted facts necessary to make the statements made therein not misleading, and omitted to state material facts required to be stated therein." For the reasons he discussed, Judge Hazel holds that the Plaintiff has failed to show a materially misleading statement or omission. Therefore, the Section 11 claim fails. 2. Count IV: Section 12(a) of the Securities Act The Plaintiff brings the Fourth Count pursuant to Section 12(a)(2) of the Securities Act. Because the Plaintiff has failed to establish that any of the statements are materially false or misleading, its Section 12(a)(2) claim fails as well. 3. Count V: Section 15 of the Securities Act The Plaintiff brings its Fifth Count pursuant to Section 15 of the Securities Act. They allege that Officer Defendants Koenig and Karrels as "control persons" are liable because of "the power and authority to control the contents of MacroGenics' quarterly reports, press releases, and presentations." Judge Hazel opines that Section 15 provides that "every person who controls any person liable under sections 77k or 77l of this title will also be liable jointly and severally with and to the same extent as such controlled person." He finds that the claims made against individual defendants under Section 15 "are, essentially, dependent derivatives of their parent statutes, and are thus properly dismissed if the parent statutes fail to state a claim upon which relief may be granted." Because this is a derivative claim, it fails as well. Conclusion For the foregoing reasons, Judge Hazel granted the Defendants' Motion to Dismiss. A separate Order follows. A full-text copy of the Court's Sept. 29, 2021 Memorandum Opinion is available at https://tinyurl.com/2v664sc5 from Leagle.com. MACROGENICS INC: Maryland Judge Dismisses Securities Class Action ----------------------------------------------------------------- Shearman & Sterling LLP, in an article for Mondaq, reports that on September 29, 2021, Judge George J. Hazel of the District of Maryland dismissed a putative class action asserting claims under the Securities Act of 1933 and Securities Exchange Act of 1934 against a pharmaceutical company and certain of its executives. Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge v. Macrogenics, Inc., No. GJH-19-2713, slip op. (D. Md. Sept. 29, 2021). Plaintiff alleged that defendants made misrepresentations regarding clinical trials for a drug that was "critically important" to the company. The Court dismissed the action for failure to adequately allege misrepresentations or scienter. The crux of plaintiff's allegations was that the company allegedly released favorable preliminary data from a clinical trial regarding how long enrolled patients survived without progression of the disease, while withholding less favorable results about how long the patients survived overall regardless of disease progression. The Court rejected plaintiff's argument that the company, by disclosing preliminary data regarding disease progression, left a misleading impression that the overall survival data would also be positive. The Court noted that the company had repeatedly stated that the overall survival data would not be released until months later, and that statements about the disease progression data did not imply that the overall survival results would be statistically significant or commercially successful. Id. at 19. The Court concluded, based on the "total mix of information" available to investors, that a reasonable investor would not be left with the mistaken impression that the overall survival results were "on track" or that the drug was assured to be successful. Id. at 20. The Court further held that challenged statements that the preliminary results provided "clinical validation," were "promising," showed "positive results," and had "demonstrated a superior outcome" were all non-actionable puffery. Id. at 20-21. The Court noted that it was not clear that these statements were factual or inconsistent with "reasonably available data," and that the statements were also accompanied by caveats that the determination of the overall survival data was still ongoing. Id. at 21. The Court next addressed plaintiff's assertion that the company's cautionary statements and risk factor warnings were misleading because they warned in generic terms about a risk that had already come to pass—that the survivor data was not on track. Id. at 22. First, the Court explained that the detailed risk warnings "warned investors of the very risks [p]laintiff claims were not disclosed," and that repeated cautionary statements would not cause a reasonable investor to conclude that "the preliminary positive results would continue." Id. (internal quotations omitted). Further, the Court emphasized that while merely warning of a future risk that has already actually "transpired" or become a "near certainly" could be misleading, it was not clear in this case that at the time of defendants' challenged statements failure had become a near certainty. Id. at 23. The Court also rejected plaintiff's remaining arguments for why the overall survival data should have been disclosed. While plaintiff asserted that the data was "vitally important" to investors, the Court observed that information was not required to be disclosed simply because it would be relevant to investors, and that "[i]nvestors were well-aware that they did not have a clear picture" of the data. Id. at 22-23. Moreover, while plaintiff argued that the company should have been required to disclose the overall survival data after characterizing it as having a "positive trend," the Court noted that there was no allegation that these characterizations were false at the time they were made, and the statements were also accompanied by cautionary language. Id. at 24. Finally, the Court rejected plaintiff's assertion that the company should have released data in the form of a particular type of chart, holding that "investors are not entitled to several forms of data or data in a preferred form." Id. at 24-25. With respect to the Exchange Act claims, plaintiff attempted to establish an inference of scienter by pointing to an increase in the company's stock price and proceeds to the company from a stock offering, but the Court explained that intent to defraud cannot be inferred from "financial motivations common to every company." Id. at 26. Plaintiff also argued that the company's executives, by virtue of their positions, had "actual knowledge" that their statements were misleading and that it "defies credulity" that they would not have been aware of "basic and materially adverse information." Id. at 26-27. The Court concluded, however, that executives' access to information is not enough to establish scienter without additional detailed allegations showing that those individuals actually were exposed to the information in question. Overall, the Court concluded that an inference of scienter was not more cogent and compelling than the competing inference that the overall survival data was not disclosed simply because the study was ongoing. Id. Plaintiff also alleged that two executives had made misstatements about the product with actual knowledge of negative results. But the Court held that it was equally plausible, if not more so, that defendant executives had not had such knowledge and pointed to statements the executives had made promising to provide results at a specified later date. Id. at 27. In addition, the Court rejected plaintiff's allegations under the Securities Act. While plaintiff argued that a lesser pleading standard ought to apply because plaintiff disclaimed fraudulent intent with respect to the Securities Act claims, the Court applied the same heightened pleading as for the Exchange Act, noting that the same challenged statements underlay both sets of claims. Id. at 29-30. Finally, the Court rejected plaintiff's claims under Items 303 and 503 of SEC Regulation S-K with respect to undisclosed uncertainty or risk factors. The Court observed that the company's risk factors were far from "generic or boilerplate," and covered "precisely the uncertainties and risks that [p]laintiff complains of." Id. at 31-32. Noting that there were "fundamental deficiencies" in plaintiff's theory of liability, the Court concluded that further amendment would be futile and denied plaintiff's request for leave to amend. [GN] MALDEN, MA: Court Provisionally Decertifies Owens FLSA Class ------------------------------------------------------------ In the class action lawsuit captioned as JACK OWENS, JEFFREY DREES, KATELYN MURPHY, PATRICK MANOLIAN, SCOTT MANN, and SEAN HUSSEY, on behalf of themselves and all others similarly situated, v. CITY OF MALDEN, Case No. 1:19-cv-11835-WGY (D. Mass.), the Hon. Judge William G. Young entered an order: A. With respect to the Plaintiffs' Wage Act claim, the Court rules that: 1. The Plaintiffs have not yet exhausted their administrative remedies in accordance with Massachusetts General Laws chapter 149, section 150, but the Court nevertheless has jurisdiction to consider and make rulings concerning the Wage Act claim. 2. Compensation received by the Plaintiffs for private detail work constitutes "wages," and the Plaintiffs are "employees" under Massachusetts General Laws chapter 149, sections 148 and 148B. 3. Massachusetts General Laws chapter 44, section 53C requires that the person requesting a private detail must pay the ten percent administrative fee, and the City violated Massachusetts General Laws chapter 44, section 53C if and to the extent that it deducted a ten percent administrative fee from the Officers' wages for private detail work instead of charging the third party that had requested the private detail. 4. Article 23, section 3 of the Agreement – specifically the phrase "maximum patrolman's rate of pay" -- is ambiguous, and the phrase "maximum patrolman's rate of pay" in Article 23, section 3 of the Agreement refers to the rate of pay of the Patrolman who, in addition to his "base pay," had accumulated the maximum amount of additional benefits during a certain time period, embodied in salary augments, namely Quinn Bill pay, hazardous duty pay, longevity pay, and night differential. 5. Multipliers must be taken into account when calculating an applicable detail rate because the Agreement is a partially integrated document. B. With respect to the Plaintiffs' Fair Labor Standards Act (FLSA) claim, the Court rules that: 1. The Court provisionally decertifies the class for the purposes of the Plaintiffs' FLSA claim. 2. The Plaintiffs failed to demonstrate that the City willfully violated the FLSA. 3. Pursuant to 29 U.S.C section 256, the two-year limitation period ends on August 28, 2019 (for the Named Plaintiffs), the opt-in date of August 21, 2020 (for the majority of the Opt-In Plaintiffs), and April 15, 2021 (for the Opt-In Plaintiffs Kenneth Watkins, Amanda Yanovitch, and Lieutenant Richard Correale). 4. The point in time at which a cause of action under the FLSA accrues for the purposes of the application of 29 U.S.C. section 255(a) is different for each individual Plaintiff, depending on whether and to what extent the requirements of 29 U.S.C. section 207(a)(1) can be shown to have been met. 5. Each individual Plaintiff in this matter is required to demonstrate the following to satisfy the requirements of 29 U.S.C. section 207(a)(1) in the present action -- Within a time period of two years between August 28, 2017 and August 28, 2019 (for the Named Plaintiffs), August 21, 2018 and August 21, 2020 (for the Opt-In Plaintiffs), and April 15, 2019 and April 15, 2021 (for the Opt-In Plaintiffs Kenneth Watkins, Amanda Yanovitch, and Lieutenant Richard Correale): C. The calculation of individual claims in this matter -- whether brought in the form of a Wage Act or FLSA claim -- is to be performed in accordance with the requirements further set out in the Timing Order, and the Court does not express an opinion, nor does it enter judgment, with respect to any individual Plaintiff's claims in this matter at this time. Police officers in the City of Malden initiated this putative class action against the City of Malden to recover wages for performing paid detail work for both the City and for third parties. The Plaintiffs allege violations of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, section 148, and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. sections 201-219. On August 28, 2019, Officers Jack Owens, Jeffrey Drees, Katelyn Murphy, Patrick Manolian, Scott Mann, and Sean Hussey filed a class-action complaint in this Court against the City. On November 27, 2019, the Named Plaintiffs filed an amended complaint. The amended complaint alleges a violation of the FLSA in count I, and the Wage Act in count II. Specifically, the Plaintiffs claim that the City violated their rights by unlawfully deducting an administrative fee of ten percent from their respective wage. The City is a municipality located in Middlesex County, Massachusetts. The parties agree that the City employs the Officers who work for the City of Malden Police Department. The City of Malden Police Department distinguishes between Officers on the basis of rank. A copy of the Court's order dated Oct. 4, 2021 is available from PacerMonitor.com at https://bit.ly/2X60xbd at no extra charge.[CC] MARY WATANABE: Smith Files Suit in N.D. California -------------------------------------------------- A class action lawsuit has been filed against Mary Watanabe, et al. The case is styled as Grace Smith, Russell Rawlings, on behalf of themselves and all others similarly situated v. Mary Watanabe, in her capacity as Director of the California Department of Managed Health Care; CALIFORNIA DEPARTMENT OF MANAGED HEALTH CARE; Kaiser Foundation Health Plan, Inc.; KAISER FOUNDATION HEALTH PLAN NORTHERN CALIFORNIA REGION; Case No. 3:21-cv-07872-LB (N.D. Cal., Oct. 7, 2021). The nature of suit is stated as Other Civil Rights for E.R.I.S.A.: Employee Benefits. Mary Watanabe -- https://www.dmhc.ca.gov/aboutthedmhc/leadershipteam.aspx -- is the Director of the California Department of Managed Health Care.[BN] The Plaintiff is represented by: Ernest James Galvan, Esq. ROSEN BIEN GALVAN & GRUNFELD LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 Phone: (415) 433-6830 Fax: (415) 433-7104 Email: egalvan@rbgg.com MEDALLIA INC: Thoma Bravo Merger Deal Lacks Info, Finger Says ------------------------------------------------------------- SUSAN FINGER, Plaintiff v. MEDALLIA, INC., LESLIE J. KILGORE, STANLEY J. MERESMAN, STEVEN C. WALSKE, ROBERT BERNSHTYN, MITCHELL K. DAUERMAN, AMY E. PRESSMAN, BORGE HALD, DOUGLAS M. LEONE, LESLIE J. STRETCH, and JAMES D. WHITE, Defendants, Case No. 1:21-cv-01395-UNA (D. Del., Sept. 29, 2021) is a class action brought by the Plaintiff, on behalf of herself and all others similarly situated, against Medallia, Inc. and the members of Medallia's Board of Directors for their violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and the U.S. Securities and Exchange Commission Rule 14a-9, arising out of their attempt to sell the Company to affiliates of Thoma Bravo, L.P. through Project Metal Parent, LLC and Project Metal Merger Sub, Inc. On July 26, 2021, Medallia announced that it had entered into an Agreement and Plan of Merger with Thoma Bravo pursuant to which, each Medallia stockholder will receive $34.00 in cash for each share of Medallia common stock they own. On September 14, 2021, Medallia filed a Schedule 14A Definitive Proxy Statement with the Securities and Exchange Commission. Allegedly, the Proxy Statement is materially deficient and misleading because, inter alia, it fails to disclose material information regarding: (i) the Company's financial projections and the financial analyses performed by the Company's financial advisor, Morgan Stanley & Co. LLC; (ii) the background of the Proposed Transaction; and (iii) potential conflicts of interest faced by Medallia's additional financial advisors, BofA Securities, Inc. and Wells Fargo Securities. Without additional information, the Proxy is materially misleading in violation of the federal securities laws, adds the complaint. The Plaintiff is, and has been at all times relevant hereto, a continuous stockholder of Medallia. Medallia, Inc., offers cloud for marketing management, digital solutions, and research activities. Medallia serves customers worldwide.[BN] The Plaintiff is represented by: Brian D. Long, Esq. LONG LAW, LLC 3828 Kennett Pike, Suite 208 Wilmington, DE 19807 Telephone: (302) 729-9100 E-mail: BDLong@longlawde.com - and - Alexandra B. Raymond, Esq. BRAGAR EAGEL & SQUIRE, P.C. 810 Seventh Avenue, Suite 620 New York, NY 10019 Telephone: (646) 860-9158 Facsimile: (212) 214-0506 E-mail: raymond@bespc.com NANO-X IMAGING: Robbins Geller Reminds of Dec. 6 Deadline --------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Oct. 5 disclosed that purchasers of Nano-X Imaging Ltd. (NASDAQ: NNOX) securities between June 17, 2021 and August 18, 2021, inclusive (the "Class Period") have until December 6, 2021 to seek appointment as lead plaintiff. The Nano-X class action lawsuit charges Nano-X and certain of its top executives with violations of the Securities Exchange Act of 1934. The Nano-X class action lawsuit was commenced on October 5, 2021 in the Eastern District of New York and is captioned McLaughlin v. Nano-X Imaging Ltd., No. 21-cv-05517. If you wish to serve as lead plaintiff of the Nano-X 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 Nano-X class action lawsuit must be filed with the court no later than December 6, 2021. CASE ALLEGATIONS: On June 17, 2021, Nano-X submitted a 510(k) submission to the U.S. Food and Drug Administration (the "FDA") for its multi-source version of the Nanox.ARC. A 510(k) is a type of premarket submission made to the FDA to demonstrate that a device to be marketed is as safe and effective, that is, substantially equivalent, to a legally marketed device. Following this submission, defendants touted the Nanox.ARC's regulatory and commercial prospects in various public statements and U.S. Securities and Exchange Commission filings. The Nano-X class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) Nano-X's 510(k) application for the Nanox.ARC was deficient; (ii) accordingly, it was unlikely that the FDA would approve the 510(k) application for the Nanox.ARC in its current form; (iii) as a result, Nano-X had overstated the Nanox.ARC's regulatory and commercial prospects; and (iv) consequently, Nano-X's public statements were materially false and misleading at all relevant times. On August 19, 2021, Nano-X reported that Nano-X "received a request for additional information from the [FDA] concerning the Company's last 510(k) submission of its multi-source device, Nanox.ARC," and that "[t]he submission file is placed on hold pending a complete response to the FDA's list of deficiencies," with "[t]he Company's response . . . due within 180 days from the date of the request for additional information." On this news, Nano-X's ordinary share price fell nearly 10%, damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Nano-X securities during the Class Period to seek appointment as lead plaintiff in the Nano-X 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 Nano-X class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Nano-X class action lawsuit. An investor's ability to share in any potential future recovery of the Nano-X 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. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contacts: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, San Diego, CA 92101 J.C. Sanchez, 800-449-4900 jsanchez@rgrdlaw.com [GN] NANO-X IMAGING: Rosen Law Firm Reminds of December 6 Deadline ------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, on Oct. 6 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Nano-X Imaging Ltd. (NASDAQ: NNOX) between June 17, 2021 and August 18, 2021, inclusive (the "Class Period"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than December 6, 2021. SO WHAT: If you purchased Nanox securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Nanox class action, go to http://www.rosenlegal.com/cases-register-2171.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than December 6, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Nanox's 510(k) application for the Nanox.ARC (an imaging system that uses a purportedly novel X-ray source) was deficient; (2) accordingly, it was unlikely that the U.S. Food and Drug Administration (the "FDA") would approve the 510(k) application for the Nanox.ARC in its current form; (3) as a result, Nanox had overstated Nanox.ARC's regulatory and commercial prospects; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Nanox class action, go to http://www.rosenlegal.com/cases-register-2171.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. View source version on businesswire.com:https://www.businesswire.com/news/home/20211006005764/en/ CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] NANO-X IMAGING: Schall Law Firm Reminds of December 6 Deadline -------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, reminds investors of a class action lawsuit against Nano-X Imaging Ltd. ("Nanox" or "the Company") (NASDAQ: NNOX) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between June 17, 2021 and August 18, 2021, inclusive (the "Class Period"), are encouraged to contact the firm before December 6, 2021. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. The 510(k) application submitted by Nanox for the Nanox.ARC was deficient. Based on this deficiency, the FDA was unlikely to approve the application as submitted. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Nanox, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. CONTACT: The Schall Law Firm Brian Schall, Esq. www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] NECTAR PETIT: Suit Alleges 'No Preservatives' Claim Misleading -------------------------------------------------------------- Erin Shaak at classaction.org reports that Nectar Petit products are misleadingly labeled as containing "No Preservatives" despite the fact that the drinks contain two ingredients that function as such, a proposed class action alleges. Per the 12-page case, the Nectar products contain citric acid and ascorbic acid, chemical preservatives that the suit says are misrepresented in the ingredients list as a flavor enhancer and Vitamin C, respectively. Federal regulations require manufacturers to identify ingredients using their "common or usual name," the lawsuit says, claiming that consumers would be misled by the Nectar Petit products' failure to identify the two ingredients accurately as preservatives. The suit claims defendant Kasim International Corporation has charged a premium price for the Nectar products based on the allegedly misleading "No Preservatives" representation. Although the front label of Nectar Petit products represents that the nectar contains no preservatives, the ingredients list states "Citric Acid (as Acidulant)" and "Vitamin C (as Ascorbic Acid)," the lawsuit begins. According to the suit, the two ingredients function as chemical preservatives, which are defined as "any chemical that, when added to food, tends to prevent or retard deterioration." Describing the ingredients as a flavor enhancer, i.e., acidulant, and Vitamin C is misleading to consumers because these descriptions mask the fact that the chemicals function as preservatives, the lawsuit contends. Per the case, while citric acid may act as an acidulant, i.e., a chemical that imparts a tart, sour or acidic flavor to a food, the defendant's self-identification of the chemical deceives consumers into believing that the ingredient is not a preservative. Moreover, listing ascorbic acid in parenthesis causes consumers to "pay it less attention than the more familiar 'Vitamin C,'" the lawsuit alleges. Though ascorbic acid is a chemically modified version of vitamin C, the two terms are authorized as synonyms only in the context of nutrition labeling, not a product's ingredients list, according to the filing. All told, the case claims consumers who view the Nectar Petit beverage's ingredients list will not conclude that citric acid and ascorbic acid are preservatives. Per the suit, the defendant has "prevent[ed] consumers from learning the truth" about the product's ingredients by describing them in such a way. The case looks to cover anyone in New York, Massachusetts or Connecticut who purchased the Nectar Petit product during the applicable statute of limitations period. Get class action lawsuit news sent to your inbox - sign up for ClassAction.org's newsletter here. [GN] NEW BRUNSWICK: Class Action Over Centre's Mistreatment Can Proceed ------------------------------------------------------------------ ctvnews.ca reports that a proposed class action lawsuit against the province of New Brunswick and the Vitalite Health Network over alleged 'abuse, mistreatment and neglect' at the Restigouche Hospital Centre in Campbellton has gotten the green light to proceed to the courts. In a decision that was released, New Brunswick Chief Justice Tracey Deware officially certified the class action lawsuit, giving it the go-ahead. "It's quite emotional because it's been a long time coming," says Darrell Tidd, one of the plaintiffs in the case. "The Chief Justice did a good job as far as I'm concerned in reviewing the information that was provided. It's a detailed report, I think she hit on all the points that were raised." The plaintiffs - Tidd and Reid Smith - are both fathers of sons who have spent years at the psychiatric facility, and the action has been brought forward on behalf of patients from 1954 to the present day. "Darrell and I both agreed that not only are we speaking on behalf of our sons," says Reid, "but we're speaking for anybody else that was a patient at the hospital that can't be heard or is afraid to be outspoken, we will speak on their behalf." The legal action was launched after a damning report from New Brunswick's ombud back in 2019, which described what he called "disturbing" examples of patient mistreatment there. Charles Murray said that the centre was chronically understaffed and failing to provide adequate care. "What we observed was that the incident reporting inside the institution isn't accurate and is compromised in serious ways such that, I'm not sure Vitalite itself is getting an accurate picture of what's happening there," Murray said at the time. Two days after that report was released, a patient at the Restigouche Hospital Centre died unexpectedly. Foul play was ruled out in the death of the 38-year-old man. In 2019, the law firm representing the plaintiffs said that they're seeking $500-million in total damages on behalf of the residents. The next steps for the case include a case management call scheduled for the afternoon of Nov. 3, which will schedule a further hearing on the issues of cost and the litigation plan by the plaintiffs. [GN] NEW YORK LIFE: Linhart Sues Over Illegal Insurance Termination -------------------------------------------------------------- Barbara Linhart, on behalf of herself and all others similarly situated, Plaintiff, v. New York Life Insurance Company, New York Life Insurance and Annuity Corporation, Life Insurance Company of North America and NYLife Insurance Company of Arizona and Does 1 to 50, inclusive, Defendants, Case No. 21-cv-01640 (C.D. Cal., September 28, 2021), seeks redress for Defendants' failure to provide statutorily mandated forms and annual notices to policyholders as required by California law, and therefore, improperly lapsed and refused to pay the benefits of its life insurance policies in breach of contract and in violation of California insurance codes. New York Life is an insurance company licensed to conduct the business of insurance in California. New York Life Insurance and Annuity Corporation is a unit of New York Life Group, a New York based financial services company that issues and administers life insurance policies in the state of California. The complaint alleges that New York Life improperly terminated and refused to pay the benefits of a policy it had issued to James Linhart, Plaintiff's husband, who died on August 7, 2021. Mrs. Linhart is the sole beneficiary of the insurance policy issued by New York Life to her late-husband. Mr. Linhart made his premium payments for over 13 years, some after the Effective Date, and, as a result, the Policy renewed each year and coverage remained in force without interruption during that time. On August 3, 2021, New York Life purportedly sent Mr. Linhart a letter that advised that coverage under his policy was no longer being provided for the alleged nonpayment of the premiums. [BN] Plaintiff is represented by: Christopher Pitoun, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Avenue, Suite 920 Pasadena, CA 91101 Telephone: (213) 330-7150 Email: christopherp@hbsslaw.com - and - Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Ave, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: steve@hbsslaw.com - and - Joseph M. Vanek, Esq. Mitchell H. Macknin, Esq. John P. Bjork, Esq. SPERLING & SLATER, P.C. 55 W. Monroe Street, Suite 3500 Chicago, IL 60603 Telephone: (312) 641-3200 Email: jvanek@sperling-law.com jbjork@sperling-law.com mhmacknin@sperling-law.com - and - David S. Klevatt, Esq. Timothy M. Howe. Esq. KLEVATT & ASSOCIATES, LLC 77 West Wacker Drive, Suite 4500 Chicago, IL 60601 Telephone: (312) 782-9090 Email: dklevatt@insurancelawyer.com tim@chicagolaw.biz - and - Tatiana Kadetskaya, Esq. KADETSKAYA LAW FIRM LLC 630 Freedom Business Center Drive Third Floor, PMB 168 King of Prussia, PA 19406 Telephone: (856) 524-1157 NEW YORK: Judge Sotomayor Allows School Vaccine Mandate ------------------------------------------------------- Andrew Chung at Reuters reports that U.S. Supreme Court Justice Sonia Sotomayor refused to block New York City's requirement that its public school teachers and employees be vaccinated against COVID-19. Sotomayor denied a challenge by four teachers and teaching assistants who sought to halt enforcement of the vaccine mandate while their lawsuit challenging the policy continues in lower courts. Public school system workers were ordered to be vaccinated or face being placed on unpaid leave until September 2022. Some governments and private employers have embraced vaccine mandates to guard against the spread of COVID-19 in the workplace as they try to return to some degree of normalcy after coronavirus pandemic-related disruptions that began last year. Such mandates have become a flash point in the United States, with opponents including those in New York City saying their constitutional rights are being violated. New York City Mayor Bill De Blasio, a Democrat, announced on Aug. 23 that all 148,000 staff in the largest U.S. school district would be required to submit proof of at least one dose of a COVID-19 vaccine. After a lower court temporarily blocked the measure - an order since lifted - the deadline was pushed to Oct. 1. Around 1 million students attend the city's public schools. Sotomayor rejected the emergency request without offering an explanation or referring the matter to the full nine-member court. Her decision mirrored one by Justice Amy Coney Barrett in August denying a bid by Indiana University students to block that school's vaccine mandate. Sotomayor handled the case for the Supreme Court because she is the justice assigned to deal with emergency requests arising from cases in states in a region that includes New York. De Blasio said in a television interview that 90% of the city's education department employees were already vaccinated with at least one dose, including 93% of teachers and 98% of school principals. The New York teachers filed a proposed class action lawsuit in Brooklyn federal court last month, claiming that the vaccine mandate violates their rights to due process and equal protection under the law under the U.S. Constitution's 14th Amendment. The mandate interferes with their freedom to pursue their chosen profession and discriminates against them because other municipal workers can opt out by taking weekly COVID-19 tests, the teachers said. One of the plaintiffs, Rachel Maniscalco, who teaches in the city's borough of Staten Island, expressed concern about the safety of COVID-19 vaccines, while the other plaintiffs contend they should be exempt because they have antibodies from a prior COVID-19 infection. A federal judge and the Manhattan-based 2nd U.S. Circuit Court of Appeals denied the teachers' bid to halt the mandate, prompting their appeal to the Supreme Court. Defending the mandate in a lower court, the city noted that courts have long held that vaccine mandates do not violate constitutional rights. "Put bluntly, plaintiffs do not have a substantive due process right to teach children without being vaccinated against a dangerous infectious disease," lawyers for the city said.[GN] NORWAY MAPLE: Anguiano Sues Over Failure to Pay Proper Wages ------------------------------------------------------------ ISMAEL ANGUIANO, on behalf of similarly situated members of the general public, Plaintiff v. NORWAY MAPLE HOLDINGS, LLC; CALIFORNIA OPCO, LLC; PLUM HEALTHCARE GROUP, LLC; and DOES 1 through 20, inclusive, Defendants, Case No. 37-2021-00041803-CU-OE-CTL (Cal. Super., San Diego Cty., Sept. 30, 2021) alleges that Defendants have engaged in a systematic pattern of wage and hour violations under the California Labor Code and Industrial Welfare Commission Wage Orders. The Plaintiff contends that the Defendants had a consistent policy of violating state wage and hour laws by, among other things, failing to pay all wages, failing to provide lawful meal periods, failing to authorize or permit lawful rest breaks, failing to reimburse all business expenses, failing to provide accurate itemized wage statements, and failing to pay all wages due upon separation of employment. The Plaintiff was employed as a non-exempt employee at Defendants' California business location. The Defendants are in the business of providing healthcare facilities and services.[BN] The Plaintiff is represented by: Kashif Haque, Esq. Samuel A. Wong, Esq. Jessica L. Campbell, Esq. Kristy R. Connolly, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 E-mail: kconnolly@aegislawfirm.com PFIZER INC: Seeley Sues Over Unapproved Varenicline-Containing Drug ------------------------------------------------------------------- Debra Seeley, individually, and on behalf of all others similarly situated v. PFIZER, INC., Case No. 3:21-cv-07892 (N.D. Cal., Oct. 7, 2021), arises from adulterated, misbranded, and unapproved varenicline-containing drugs ("VCDs") that were designed, manufactured, marketed, distributed, packaged, and/or ultimately sold by the Defendant Pfizer, Inc., in the United States under the brand name Chantix. These VCDs are non-merchantable, and are not of the quality represented by the Defendant. The complaint alleges that the Defendant represented and warranted to consumers that its VCDs were therapeutically equivalent to and otherwise the same as the FDA- approved brand name drug Chantix. Specifically, Defendant represented and warranted that the VCDs were fit for their ordinary uses, met the specifications of Defendant's FDA-approved labeling materials, and were manufactured and distributed in accordance with all applicable laws and regulations. However, Defendant willfully ignored warnings about the operating standards, and knowingly and fraudulently manufactured, sold, labeled, marketed, and/or distributed adulterated and/or misbranded VCDs for purchase in the United States by consumers. Defendant's VCDs were adulterated and/or misbranded (and thereby rendered worthless) through contamination with a probable human carcinogen known as n-nitroso- varenicline. Additionally, Defendant was on notice of other potential nitrosamines as well, such as n-nitrosdimethylamine and n-nitrosodiethlamine. Ironically, the Defendant's wrongful acts resulted in persons who sought to use smoking products less end up with a Chantix pill that contained a carcinogen. The Class Plaintiffs paid for VCDs that were illegally and willfully introduced into the market by Defendant, which caused them and the millions of other VCD consumers, to sustain economic damages. Defendant's VCDs were not fit for their ordinary use and Defendant has been unjustly enriched through the sale of these knowingly adulterated and/or misbranded drugs. Defendant's conduct, as detailed in this Complaint, also constitutes actionable common law fraud, consumer fraud, and other violations of state and federal law, says the complaint. The Plaintiff paid money for one or more of Defendant's VCDs in California. Pfizer has been engaged in the manufacturing, sale, and distribution of adulterated and/or misbranded generic VCDs in the United States.[BN] The Plaintiff is represented by: Gillian L. Wade, Esq. Sara D. Avila, Esq. Marc A. Castaneda, Esq. MILSTEIN JACKSON FAIRCHILD & WADE, LLP 10990 Wilshire Blvd., 8th Floor Los Angeles, California 90024 Phone: (310) 396-9600 Fax: (310) 396-9635 Email: gwade@mjfwlaw.com savila@mjfwlaw.com mcastaneda@mjfwlaw.com - and - Ruben Honik, Esq. David J. Stanoch, Esq. HONIK LLC 1515 Market Street, Suite 1100 Philadelphia, PA 19102 Phone: 267-435-1300 Email: ruben@honiklaw.com david@honiklaw.com PHH MORTGAGE: Thacker Suit Removed to N.D. West Virginia -------------------------------------------------------- The case styled as Elbert J. Thacker, individually and on behalf of a class of similarly situated individuals v. PHH Mortgage Corporation, Case No. 21-C-76 was removed from the Circuit Court of Marshall County to the United States District Court for the Northern District of West Virginia on Oct. 7, 2021. The District Court Clerk assigned Case No. 5:21-cv-00174-JPB to the proceeding. The nature of suit is stated as Other Contract. PHH Mortgage Corporation -- https://www.phhmortgage.com/ -- provides mortgage financing solutions.[BN] The Plaintiff is represented by: Jason E. Causey, Esq. BORDAS & BORDAS, PLLC 1358 National Rd Wheeling, WV 26003 Phone: (304) 242-8410 Fax: (304) 242-3936 Email: jason@bordaslaw.com - and - Patricia M. Kipnis, Esq. BAILEY & GLASSER LLP 923 Haddonfield Road, Suite 300 Cherry Hill, NJ 08002 Phone: (856) 324-8219 Fax: (304) 342-1110 Email: pkipnis@baileyglasser.com The Defendants are represented by: Andrew J. Narod, Esq. BRADLEY ARANT BOULT CUMMINGS LLP 1615 L St., NW, Suite 1350 Washington, DC 20036 Phone: (202) 719-8271 Fax: (202) 719-8371 Email: anarod@bradley.com - and - Bruce M. Jacobs, Esq. SPILMAN, THOMAS & BATTLE, PLLC – Charleston PO Box 273 300 Kanawha Blvd., East Charleston, WV 25301 Phone: (304) 340-3863 Fax: (304) 340-3801 Email: bjacobs@spilmanlaw.com PHOENIX FINANCIAL: Moore Files FDCPA Suit in S.D. Ohio ------------------------------------------------------ A class action lawsuit has been filed against Phoenix Financial Services LLC, et al. The case is styled as Joel Moore, individually and on behalf of all others similarly situated v. Phoenix Financial Services LLC, Pendrick Capital Partners II LLC, Case No. 3:21-cv-00279-MJN-SLO (S.D. Ohio, Oct. 8, 2021). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Phoenix Financial -- https://www.phoenixfinancialsvcs.com/ -- is a debt collection agency.[BN] The Plaintiff is represented by: Amichai Eitan Zukowsky, Esq. 23811 Chagrin Blvd., Ste. 160 Beachwood, OH 44122 Phone: (216) 800-5529 Fax: (216) 514-4987 Email: ami@zukowskylaw.com QUALCOMM INC: Class Certification Order in Stromberg Suit Vacated ----------------------------------------------------------------- In the case, KAREN STROMBERG, et al., Plaintiffs v. QUALCOMM INCORPORATED, Defendant-Appellant, Case No. 19-15159 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit vacates the district court's order certifying a nationwide class of up to 250 million class members in an antitrust multi-district litigation raising claims under the Sherman Act and California state law. The other Plaintiffs are SAMUEL ROECKER; THOMAS LAMMEL; MARY GALLOWAY; DANIELLE LAGRAVE; THOMAS McMAHON; BOARDSPORTS SCHOOL LLC; PATRICK BENAD; LINDSEY CARR; RENEE ACOSTA; PATRICIA BURNESS; CAROL HARRIS; ROBERT LINKS; NICHELLE LYONS; NUALA VIGNOLES; RACHEL L. MILLER; JOHN WILLIAM KIEFER III; MATTHEW MITCHELL; SUSAN GONZALEZ-PENDER; TERESE RUSSELL; SARAH KEY; DALIA ZATLIN; BETH CRANDALL; CLARISSA SIMON; KENDALL MARTIN; RODRIGO SAPLA; REBECCA DAVIS; THOMAS McMANUS; KIMBERLY SCAVONE; MELISSA JU; CHRIS THOMPSON; MARTHA COUNTESS; KAREN HOOD; JAIME MARTIN; ADRIAN ESTEBAN; JEFFREY DAVIS; ERICSSON BROADBENT; PAUL SCOTT ERVIN; CARALYN TADA; NAGORE MILES; BETHANY RISING; JIYING SPENCER; DAYAN CRUTCHER; CATHERINE SCHMIDLIN; ALLISON TRIPP; LINDSAY SMITH; KATIE SMITH; KIRSTEN LUENZ; LAUREL VENER; STEPHEN JUDGE; SETH SALENGER; SCOTT HANSEN; JOSEPH KOVACEVICH; MICHELLE REYNOLDS; GEORGE MARUT; JANET ACKERMAN; ALAN SCHLAIKJER; LORI LANDES; JOYCE GRANTZ; GABRIELLE KURDT; JOHN SOLAK; TODD ESPINOSA; ANDREW WESTLEY; LAURA HALLAHAN; MARY C. McDEVITT; PADRAIC J. BRENNAN; JASON SCHWARTZ; SUZANNE BLOCK; KEVIN CALERO; CARLO ENDOZO CARINGAL; IAN CARSON; ANDRE CRUZ; LUCAS RANGEL FERREIRA; MASOOD JAVAHERIAN; DAVID KOPLOVITZ; BRIAN LETULLE; DEIRDRE McELHANEY; CARMEN MINON; ERICA MINON; GABRIEL MINON; BETSY SANTIAGO; JAVIER SANTIAGO; PETER YEE; ALICIA HADNETT; DANIEL CARROLL; DEBRA GRASL; AMANDA NEWSOME; DAVID KREUZER; ARMANDO HERRERA; EDEN WAGNER; NEIL WAGNER; ALLAN ROTMAN; SHARI COLE; PHILLIP JAMES ZACHARIAS; MARY BETH CUMMINS; GUY SNOWDY; CYNTHIA BAMBINI; GRANT HAUSCHILD; DAVID FLOYD; COUGHLIN; BRANDON FULLER; LISA PATNODE; NINA BARTOSHEVICH; LEONIDAS MIRAS; JAMES CLARK, Plaintiffs-Appellees, and JORDIE BORNSTEIN; CORDT BYRNE; ELLIOT CARTER; JEFF CIOTTI; DWIGHT DICKERSON; MATTHEW CHRISTIANSON; LOGAN GRIESEMER; RYAN HART; WILLIAM HORTON; STEVE KRUG; GAIL MARGOLIS; KATE MORTENSEN; ALYSSA NEE; CHRISTOPHER WHALEN; STEPHAN FARID WOZNIAK; CHRISTOPHER ZAYAS-BAZAN; DAVID CARNEY; JULIE EWALD; TOM PARKIN; BRIAN DEPPERSCHMIDT; BRANDON STEELE; KYLE WEBER; CRAIG HOUSENICK; RYAN MARGULIS; RICHARD RIZZO; GUY DIETRICH; JEFFREY M. KURZON; SUSAN NAGY; NICOLAS YOUSIF; SCOTT FREDERICK; CHARLES POON; ANDREA HOGAN; TINA HEIM; MONICA MORROW; MARK CARDILLO; ALLISON SHIPP; MICHELLE MACKAY; COLLEEN SPARKE; JANET SILVERNESS; MELANIE BARCLAY; TIFFANY RINGO; HALLIE LINGO; CRYSTAL HOHENTHANER; DANIEL K. BRENDTRO; DANIEL DELIER; PAUL NELSON; CATHERINE KADERAVEK; KAREN CARLET; DAVID WARING; and LEON THEODORE LIPKA III. Background With its principal place of business in California, Qualcomm is a global leader in cellular technology. Over the years, Qualcomm has contributed notable technological innovations to modern cellular communication standards and holds thousands of cellular patents. Some of Qualcomm's patents are standard essential patents ("SEPs") covering technology that international standard-setting organizations ("SSOs") incorporated into cellular communication standards, such as 3G CDMA or 4G LTE. SSOs "are global collaborations of industry participants that establish technical specifications to ensure that products from different manufacturers are compatible with each other." Manufacturers and suppliers must use technology covered in Qualcomm's SEPs if they want to practice 3G CDMA or 4G LTE standards. Thus, a manufacturer or supplier wanting to comply with 3G CDMA or 4G LTE standards will infringe on Qualcomm's SEPs unless they license those SEPs. Before incorporating patented technology into a standard, SSOs require that patent holders commit to license their SEPs on fair, reasonable, and non-discriminatory ("FRAND") terms. Qualcomm licenses its cellular patent portfolio, including its SEPs, to original equipment manufacturers ("OEMs") with products, like cellphones, that incorporate Qualcomm's patented technologies. Though Qualcomm licenses its patents at the level of completed cellphone devices, it does not license its patents at the level of any given cellphone component. When Qualcomm licenses its patents, it receives a royalty that is typically 5% of the device's wholesale net selling price. Besides licensing technology, Qualcomm also designs and sells semiconductor devices known as modem chips ("chips") to OEMs. Chips enable cellphones to connect with cellular networks as well as provide other functions. Qualcomm is the leading supplier of CDMA and premium LTE chips worldwide. In a separate action brought in January 2017, the Federal Trade Commission ("FTC") sued Qualcomm, alleging that Qualcomm engaged in unfair methods of competition in violation of the Federal Trade Commission Act ("FTCA") and the Sherman Act. Afterward, many follow-on consumer antitrust class actions were filed against Qualcomm, generally alleging that Qualcomm's conduct violated federal and state antitrust and consumer protection laws based on similar claims of anti-competitive conduct. The Judicial Panel on Multidistrict Litigation centralized these consumer class actions as a consolidated class action in the United States District Court for the Northern District of California before the same judge presiding over the separate FTC action. The Plaintiffs in the multidistrict litigation are consumers who bought cellphones and allege that Qualcomm maintained a monopoly in chips by: (1) engaging in a "no-license-no-chips" policy by which Qualcomm sold chips only to OEMs that paid above-FRAND royalty rates to license Qualcomm's SEPs; (2) refusing to license its SEPs to rival chip suppliers; and (3) entering into exclusive dealing arrangements with Apple that prevented rival chip suppliers from competing with Qualcomm to supply Apple's chip demand. The Plaintiffs contend these practices harmed consumers because the amount attributable to the allegedly excessive royalty -- the amount above the FRAND royalty -- was passed through the distribution chain to consumers in the form of higher prices or reduced quality in cellphones. The Plaintiffs seek injunctive and monetary relief against Qualcomm, asserting violations of Sections 1 and 2 of the Sherman Act as well as California's Cartwright Act and Unfair Competition Law ("UCL"). The Plaintiffs sought certification under Federal Rule of Civil Procedure 23 for an indirect purchaser class comprising "all natural persons and entities in the United States who purchased, paid for, and/or provided reimbursement for some or all of the purchase price for all UMTS, CDMA (including CDMAone and cdma2000) and/or LTE cellular phones for their own use and not for resale from Feb. 11, 2001." This class would number between 232.8 and 250 million people, and the lower bound on damages to the consumer class was estimated as $4.84 billion. The district court certified the Plaintiffs' class under Rule 23(b)(2) and (b)(3). Because the Cartwright Act mirrors federal antitrust law, the Plaintiffs' UCL claim is premised at least in part upon the Sherman and Cartwright Act violations, and the parties did not identify any material differences between the federal and state claims, the district court treated the Plaintiffs' federal and state law claims together when certifying the class. Besides certifying the class under Rule 23(b)(3), the district court certified a Rule 23(b)(2) injunctive relief class. Qualcomm seeks interlocutory review under Rule 23(f) of the district court's class certification order. On appeal, Qualcomm challenges the district court's finding of Rule 23(b)(3) predominance, arguing that antitrust impact cannot be shown by common evidence, the class improperly includes millions of iPhone purchasers suffering no antitrust impact, and California law cannot apply to the nationwide class. Qualcomm also argues that the class is unmanageable and not a superior method of adjudicating the claims as required by Rule 23(b)(3) and that the class failed to meet Rule 23(b)(2)'s requirements for injunctive relief. After the case was submitted, the Ninth Circuit issued its opinion in FTC v. Qualcomm, 969 F.3d 974. It directed the parties to file supplemental briefs addressing the effect of that decision, if any, on the case. Qualcomm urges the Ninth Circuit to remand to the district court with instructions to dismiss because FTC v. Qualcomm means that the Plaintiffs lack any viable foundation for their claims. Plaintiffs argue that FTC v. Qualcomm does not affect this Rule 23(f) interlocutory appeal and that the impact, if any, of FTC v. Qualcomm on the Plaintiffs' claims requires further development before the Ninth Circuit can weigh in. Discussion Even though Qualcomm raises various 23(b)(3) predominance arguments on appeal, the Ninth Circuit holds that the 23(b)(3) class was erroneously certified under a faulty choice of law analysis because differences in relevant state laws swamp predominance. Therefore, it vacates the 23(b)(3) class certification order. It also vacates the 23(b)(2) class certification order in light of FTC v. Qualcomm. On remand, the district court should address in the first instance the effect of FTC v. Qualcomm on certification, particularly on the 23(b)(3) and (b)(2) classes' ability to meet the threshold requirements of Rule 23(a) as well as the viability of the Plaintiffs' claims to move forward. After considering Qualcomm's various arguments, the Ninth Circuit holds that most fundamentally the district court failed to properly analyze California's choice of law rules to determine the applicable state laws. When properly analyzed, California's choice of law rules preclude the district court's certification of the 23(b)(3) class because the laws of other states -- beyond California's Cartwright Act -- should apply. As a result, common issues of law do not predominate in the class as currently certified. As for the 23(b)(2) class, the Ninth Circuit holds that the district court did not specify which claims that class would be entitled to pursue for injunctive relief. But the identified variations in state law regarding when indirect purchasers can sue for antitrust damages are not implicated in the 23(b)(2) class. Nonetheless, the Ninth Circuit also vacates the 23(b)(2) class so that on remand the district court can reconsider certification of the entire class given its FTC v. Qualcomm decision, particularly in light of the threshold requirements of Rule 23(a). The Ninth Circuit concluded in FTC v. Qualcomm that Qualcomm's SEP licensing practices, the same practices complained of in the instant case, are lawful and not anticompetitive. Because the Plaintiffs' arguments in this case overlap with those brought in FTC v. Qualcomm, there would have to be some extraordinary difference for the Plaintiffs' claims here to not fail as a matter of law -- for instance, differences between Sherman Act claims brought by the government versus private parties, differences between Sherman Act analysis and other state laws that might apply, or difference in the Plaintiffs' ability to meet their burden of proof under the rule of reason. Conclusion The Ninth Circuit concludes that while FTC v. Qualcomm may well warrant dismissal of the Plaintiffs' claims, that issue is not presently before it on interlocutory appeal. Thus, it vacates the 23(b)(2) class and remand with instructions for the district court to reconsider certification of the entire class given FTC v. Qualcomm. If the district court determines that FTC v. Qualcomm defeats the class on Rule 23(a) grounds -- a threshold requirement before turning to Rule 23(b) -- that would eliminate the need to reconduct the choice of law analysis for the 23(b)(3) class. If the class meets Rule 23(a)'s requirements, then the district court should determine the effect of FTC v. Qualcomm on the 23(b)(2) class and, after it has reconducted its choice of law analysis and determined what state law applies to the class, the effect on the 23(b)(3) class. A full-text copy of the Court's Sept. 29, 2021 Opinion is available at https://tinyurl.com/3k2wt27b from Leagle.com. Robert A. Van Nest (argued), Eugene M. Paige, Steven A. Hirsch, Cody S. Harris, and Justina Sessions, Keker Van Nest & Peters LLP, San Francisco, California; Gary A. Bornstein and Yonatan Even, Cravath Swaine & Moore LLP, New York, New York; Richard S. Taffet, Morgan Lewis & Bockius LLP, New York, New York; Willard K. Tom, Morgan Lewis & Bockius LLP, Washington, D.C.; Geoffrey T. Holtz, Morgan Lewis & Bockius LLP, San Francisco, California; for Defendant-Appellant. Kalpana Srinivasan (argued), Susman Godfrey LLP, Los Angeles, California; Joseph W. Cotchett (argued), Michael A. Montano (argued), Adam Zapala, and Tamarah Prevost, Cotchett Pitre & McCarthy LLP, Burlingame, California; Marc M. Seltzer (argued), Steven G. Sklaver, Amanda Bonn, Oleg Elkhunovich, Krysta Kauble Pachman, and Lora Krsulich, Susman Godfrey LLP, Los Angeles, California; Joseph Grinstein, Susman Godfrey LLP, Houston, Texas; Katherine M. Peaslee, Susman Godfrey LLP, Seattle, Washington; Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, Washington; Jeffrey D. Friedman and Rio S. Pierce, Hagens Berman Sobol Shapiro LLP, Oakland, California; for Plaintiffs-Appellees. Mary Helen Wimberly (argued) and Kristen C. Limarzi, Attorneys; William J. Rinner, Chief of Staff and Senior Counsel; Michael F. Murray, Deputy Assistant Attorney General; Andrew C. Finch, Principal Deputy Assistant Attorney General; Makan Delrahim, Assistant Attorney General; Antitrust Division, United States Department of Justice, Washington, D.C.; Jeff Landry, Attorney General; Elizabeth Baker Murrill, Solicitor General; Louisiana Department of Justice, Baton Rouge, Louisiana; Dave Yost, Attorney General; Benjamin M. Flowers, State Solicitor; Office of the Attorney General, Columbus, Ohio; Ken Paxton, Attorney General; Kyle Hawkins, Solicitor General; Office of the Attorney General, Austin, Texas; for Amici Curiae United States of America and States of Louisiana, Ohio, and Texas. Kevin G. Clarkson, Attorney General, Office of the Attorney General, Anchorage, Alaska; Eric Schmitt, Attorney General, Office of the Attorney General, Jefferson City, Missouri; for Amici Curiae States of Alaska and Missouri. Ashley C. Parrish and Joshua N. Mitchell, King & Spalding LLP, Washington, D.C.; Steven P. Lehotsky and Jonathan D. Urick, U.S. Chamber Litigation Center, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America. Richard A. Samp and Cory L. Andrews, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation. Randy M. Stutz, American Antitrust Institute, Washington, D.C., for Amicus Curiae American Antitrust Institute. Steven N. Williams, Joseph Saveri Law Firm Inc., San Francisco, California, for Amici Curiae Choice of Law Professors. Scott Martin, Hausfeld LLP, New York, New York, for Amici Curiae Economists and Professors. Leslie A. Brueckner and Stephanie K. Glaberson, Public Justice P.C., Oakland, California; Jefffrey R. White and Amy L. Brogioli, American Association for Justice, Washington, D.C.; Richard A. Koffman, Emmy L. Levens, and Bo Uuganbayar, Cohen Milstein Sellers & Toll PLLC, Washington, D.C.; Sandeep Vaheesan, Open Markets Institute, Oakland Park, Florida; for Amici Curiae Public Justice P.C., American Association for Justice, and Open Markets Institute. ROFX.NET: Birmingham Files Suit Over Fraudulent Investment Scheme ----------------------------------------------------------------- RYAN BIRMINGHAM, ROMAN LEONOV, MITCHELL PARENT, JONATHAN ZARLEY STEVEN HANSEN AND JOHN DOES 1-30, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs v. ROFX.NET, AURO ADVANTAGES LLC, AWARE CHOICE LTD., BOONRUK RUAMKIT CO., LTD., BRASS MARKER S.R.O., EASY COM LC, EPAYMENTS SYSTEMS LTD., ESTER HOLDINGS INC., GLOBAL E-ADVANTAGES, GROVEE, LLC, IGORIA TRADE SPOLKA AKCYJNA, IT OUTSOURCING CO., LTD., NOTUS LLC, SHOPOSTAR, LLC, VDD-TRADING, LTD., WEALTHY DEVELOPMENTS LP, ANDREI FETIN, ANNA SHYMKO, ANTON BILOUS, BORYS KONOVALENKO, DMYTRO FOKIN, JORGE LUIS CASTILLO, MANUCHAR DARASELIA, MIKHAIL RYMANOV, NATALIA LOS, NATTPEMOL KRINARA, PAPAHRATSOR NRVIRATPORN, PETER MOGILNIY, STANISLAV KHOMENKO, YOURAS ZIANKOVICH AND JOHN DOES 1-30, Defendants, Case No. 1:21-cv-23472 (S.D. Fla., Sept. 29, 2021) arises from the Defendants' fraudulent conduct, unjust enrichment and violations of federal Racketeer Influenced and Corrupt Organizations Act (RICO) statutes. According to the complaint, the Defendants orchestrated a massive international scheme to defraud Plaintiffs and similarly situated investors by soliciting them to deposit money or cash equivalents with ROFX, a "robotically operated foreign exchange trading" platform that purportedly utilized algorithms to trade on behalf of investors. In exchange for the funds, Defendants falsely promised a return on investment in the form of a percentage of ROFX's daily trading profit that never came to pass. After maximizing their current account balances and creating the illusion of stability for in excess of two years, ROFX distributed little profit to its investors, prevented investors from making withdrawals, and thereafter stole all remaining investment capital to perpetuate a massive fraud that is global in scope, says the suit. The Plaintiff now brings this emergency action for fraud pursuant to Federal Rule of Civil Procedure 23 on behalf of a global class of ROFX investors. In addition to damages, including costs of suit, interest, and reasonable attorneys' fees resulting from Defendants' fraudulent conduct, unjust enrichment and violations of federal RICO statutes, Plaintiffs, on behalf of the class, seek injunctive relief to maintain the status quo and preserve assets for the victims of this fraudulent scheme. Specifically, Plaintiffs seek an immediate order: (i) freezing all ROFX assets and enjoining and restraining Defendants from dissipating or encumbering any of these assets; (ii) preventing the destruction of financial records and any other relevant documents; and (iii) permitting expedited discovery into the facts alleged herein. Plaintiffs Ryan Birmingham, Roman Leonov, Mitchell Parent, Jonathan Zarley, and Steven Hansen are ROFX.net investors. ROFX.net is an unincorporated entity providing unregulated financial services through its web-based platform to investors around the world.[BN] The Plaintiffs are represented by: Jose A. Casal, Esq. Sydney Alexander, Esq. Warren E. Gluck, Esq. Matthew R. DiBlasi, Esq. Ruarri M. Rogan, Esq. HOLLAND & KNIGHT LLP 701 Brickell Avenue, Suite 3300 Miami, FL 33131 Telephone: (305) 374-8500 Facsimile: (305) 789-7799 S.K.F. INTERNATIONAL: Crumwell Files ADA Suit in S.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against S.K.F. International, Inc. The case is styled as Denise Crumwell, on behalf of herself and all other persons similarly situated v. S.K.F. International, Inc., Case No. 1:21-cv-08307 (S.D.N.Y., Oct. 7, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. S.K.F. International -- https://www.skf.com/ -- operates as a jewellery and watch wholesalers.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal SAN FRANCISCO, CA: Court Approves Settlement in Zayas Suit ----------------------------------------------------------- In the class action lawsuit captioned as CANDIDO ZAYAS, et al., v. SAN FRANCISCO SHERIFF'S DEPARTMENT, et al., Case No. 3:18-cv-06155-JCS (N.D. Cal.), the Hon. Judge entered an order: 1. granting final approval of class action settlement and awarding attorneys fees and costs; 2. certifying Settlement Class certified pursuant to Rules 23(a) 15 and 23(b)(3) of the Federal Rules of Civil Procedure as a class action on behalf of the Class; 3. appointing Plaintiffs Candido Zayas, Ruben Soto, Alfredo Ruiz, Jose Poot, Milton Leclaire, Ralph Dominguez, Matthew Brugman, Michael Brown, and Kishawn Norbert as class representatives for purposes of settlement; and 4. appointing Yolanda Huang, Fulvio Cajina and Stanley Goff as class counsel, with Yolanda Huang as lead counsel for purposes of settlement. The Court finds, for purposes of settlement, that the requirements of Rule 23(b)(3) of the Federal Rules of Civil Procedure are met because there are common questions of fact and law regarding Defendants' policies and procedures that in the context of a settlement, predominate over any individual issues. Moreover, a class action settlement is superior to other available methods for the fair and efficient adjudication of the controversy because the injury suffered by each member of the Class, while meaningful on an individual basis, is not of such magnitude as to make the prosecution of individual actions against Defendants economically feasible, and the class action settlement device provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single court. The Court approves payment to the Settlement Administrator, Greenfire Law, PC, of not to exceed $145,000 out of the Gross Settlement Amount. If the Claims Administrator's costs do not exceed $145,000, all unexpended balance (credit) shall be included with Unclaimed Funds and distributed as part of the second-round distribution. The Court finds that the amount of fees and costs requested by class counsel is fair, reasonable and adequate. Accordingly, class counsel shall receive $660,000 in attorney's fees with 50% of the attorneys' fees going to the Law Office of Yolanda Huang and 50% of the attorneys' fees jointly going to attorneys Stanley Goff and Fulvio Cajina. The Court approves the additional award of $35,000 in litigation costs to the Law Office of Yolanda Huang. A copy of the Court's order dated Oct. 4, 2021 is available from PacerMonitor.com at https://bit.ly/3oZi6W2 at no extra charge.[CC] SAN JOSE, CA: Bid to Throw Out Police Brutality Class Suit Rejected ------------------------------------------------------------------- Tran Nguyen at patch.com reports that a federal judge is allowing a class action lawsuit to move forward against alleged police brutality at last year's Black Lives Matter protests. The suit alleges that the city and SJPD used excessive force on demonstrators and issued an unconstitutional curfew to suppress their view of anti-police and anti-racism in violation of their First Amendment rights. In U.S. district judge Phyllis Hamilton's Sept. 24 decision, she rejected the city's motion to dismiss the lawsuit and said it could move forward. Let's go! The Silicon Valley/San Jose NAACP, nonprofit San Jose Peace and Justice Center and 14 individuals injured in the protests filed the lawsuit in March. The lawsuit claims San Jose police used projectiles -- rubber bullets -- on crowds without justification and particularly targeted people of color during the Black Lives Matter protests. "The court's order reaffirms what we already know to be true: The law does not permit a government to suppress the speech of its own citizens through armed, violent opposition," said Tifanei Ressl-Moyer, an attorney representing the case. She works at the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. The class action lawsuit names San Jose Mayor Sam Liccardo, former City Manager David Sykes, former Police Chief Eddie Garcia and some San Jose police officers as defendants, including Jared Yuen. Yuen was recorded licking his lips while holding his rubber round gun and shouting expletives at protesters on May 29, 2020. The plaintiffs want compensation for their injuries and significant reforms in San Jose police tactics and training, Ressl-Moyer said. "(This is) not a ruling that reflects on the truth or accuracy of the allegations, nor does it address legal and factual defenses that may be asserted in the case," city attorney Nora Frimann told San Jose Spotlight, adding that the city routinely submits motions to dismiss lawsuits early in the process to weed out claims or defendants with no legal basis. The plaintiffs include San Jose resident Michael Acosta, who lost his left eye after something struck him "violently" in the face. He now uses a prosthetic. Plaintiff Joseph Cañas also suffered from permanent vision loss after being hit in the face with a rubber bullet. Cañas was playing guitar at a protest. Others were beaten with clubs or shot in the thighs, groins and genital areas, the suit claims. "Under the law, law enforcement needs to have a very specific reaction to that one specific incident," Ressl-Moyer said. "And they don't get to indiscriminately apply violence to everybody in the vicinity, including bystanders, and people who are just passersby and people who were just holding up signs saying 'we don't want racist policing in our city.'" The case will now enter the discovery phase before going to trial, Ressl-Moyer added. A case management conference is scheduled for Oct. 21. Lloyd Alaban contributed to this report. [GN] SELECTQUOTE INC: West Palm Sues Over Misrepresentations & Omissions ------------------------------------------------------------------- West Palm Beach Police Pension Fund, Individually and On Behalf of All Others Similarly Situated v. SELECTQUOTE, INC., TIMOTHY DANKER, RAFFAELE SADUN, DONALD HAWKS III, WILLIAM TOM GRANT, DONALD BRITTON, EARL DEVANNY III, DENISE DEVINE, RAYMOND WELDON, CREDIT SUISSE SECURITIES (USA) LLC, EVERCORE GROUP L.L.C., BARCLAYS CAPITAL INC., CITIGROUP GLOBAL MARKETS INC., MORGAN STANLEY & CO. LLC, RBC CAPITAL MARKETS, JEFFERIES LLC, CANTOR FITZGERALD & CO., KEEFE BRUYETTE & WOODS, INC., PIPER SANDLER & CO., and DREXEL HAMILTON LLC, Case No. 1:21-cv-08279 (S.D.N.Y., Oct. 7, 2021), is brought on behalf of persons and entities that: (a) purchased SelectQuote shares in or traceable to the Company's initial public offering of common stock conducted on or around May 20, 2020; and/or (b) purchased shares of SelectQuote's common stock between May 20, 2020 and August 25, 2021, inclusive; and brought against SelectQuote and certain of the Company's officers, SelectQuote's Board of Directors, including the directors that signed the Registration Statement for the Offering, and the underwriters of the Offering, and arise under the Securities Act of 1933, and the Securities Exchange Act of 1934 and Rule 10b-5. This matter arises from Defendants' material misrepresentations and omissions regarding the revenue the Company earned from Medicare Advantage and Medicare Supplement policy renewals. The Class Period begins on May 20, 2020, when the Company conducted the Offering, through which more than 18 million shares of SelectQuote common stock were sold at $20 per share, with SelectQuote reaping over $360 million in gross proceeds. Prior to the Offering, SelectQuote began experiencing lower-than-expected renewal rates, known as persistency rates, for its 2019 cohort. This decline coincided with the initiation of the Medicare Advantage OEP and customers' new ability to make changes to their insurance plans during the first quarter of their policy year. As a result of this rapid disenrollment, by 2019 the actual renewal commissions SelectQuote earned were falling far below the estimated future renewal commission it had already recognized as revenue. However, in the Offering Materials issued in connection with the Offering, Defendants did not disclose that, as a result of the rapid disenrollment it had been experiencing, the Company's reported revenues, earnings, accounts receivable, and lifetime value of commissions per approved policy were improperly inflated. In addition, Defendants failed to disclose this known trend. During the Offering and continuing throughout the Class Period, the Company repeatedly reported inflated revenues, earnings, and accounts receivable, as well as the revenue per policy and lifetime value per policy. Despite receiving persistency data twice each year that showed SelectQuote's actual renewals were far below the estimates used to calculate the LTV portion of recognized revenue, the Company did not make the necessary adjustments to its financial statements. As a result of these misrepresentations, SelectQuote shares traded at artificially inflated price throughout the Class Period. The truth began to emerge on May 11, 2021, when SelectQuote disclosed that its fourth quarter 2020 results would be impacted by a "negative cohort and tail adjustment" due to "lower second-term persistency for the 2019 cohort," which SelectQuote attributed to the OEP and increased "switching activity." These disclosures caused the Company's share price to decline by $5.50 per share, or 20%. Then, on August 25, 2021, SelectQuote disclosed that lack of policy renewals affected both the 2019 and 2020 cohorts, and that the Company was including a $65 million placeholder for the risk of an additional cohort tail adjustment the following year, driven mostly by lower-than-anticipated persistency results in the 2020 cohort. As a result of these disclosures, SelectQuote's share price declined by an additional $6.46 per share, or 45%. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff West Palm Beach Police is a pension plan providing benefits for eligible police officers in West Palm Beach, Florida. SelectQuote is a direct-to-consumer insurance distribution platform that offers senior health, life, and auto & home insurance policies from a curated panel of insurance carriers.[BN] The Plaintiff is represented by: Hannah Ross, Esq. Avi Josefson, Esq. Scott R. Foglietta, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Phone: (212) 554-1400 Facsimile: (212) 554-1444 Email: hannah@blbglaw.com avi@blbglaw.com scott.foglietta@blbglaw.com - and - Robert D. Klausner, Esq. Bonni S. Jensen, Esq. KLAUSNER KAUFMAN JENSEN & LEVINSON 7080 Northwest 4th Street Plantation, FL 33315 Phone: (954) 916-1202 Email: bob@robertdklausner.com bonni@robertdklausner.com SIRIUS XM HOLDINGS: Obie Files Suit in Fla. Cir. Ct. ---------------------------------------------------- A class action lawsuit has been filed against Sirius XM Holdings Inc. The case is styled as Lylie Obie, individually and on behalf of all others similarly situated v. Sirius XM Holdings Inc., Case No. 16-2021-CA-005246-XXXX-MA (Fla. Cir. Ct., Duval Cty., Sept. 28, 2021). The case type is stated as "Circuit Civil." Sirius XM Holdings Inc. -- https://www.siriusxm.com/corporate -- is an American broadcasting company headquartered in Midtown Manhattan, New York City that provides satellite radio and online radio services operating in the United States.[BN] The Plaintiff is represented by: Phillips Jacob Lawrence, Esq. PO Box 140036 Orlando, FL 32814-0036 SIX FLAGS: November 24 Settlement Claim Form Deadline Set --------------------------------------------------------- Top Class Actions reports that consumers nationwide who paid for a Six Flags monthly membership for their local Six Flags park during the COVID-19 closures may be eligible for a free membership offer thanks to a recent Six Flags season pass refunds class action settlement. Settlement Class Members include consumers with season passes who paid for a Six Flags monthly membership in the United States during the time period when their Six Flags Home Park was closed due to the pandemic. The eligible time period is from March 13, 2020, through Sep. 10, 2021. To be eligible, Class Members must not have received Six Flags season pass refunds for the full amount of their charges. Plaintiffs allege Six Flags season pass holders were still charged while parks were closed as a result of the COVID-19 pandemic. According to the class action lawsuit, Six Flags did not refund the Class Members' membership fees. The company denies any unlawful conduct or wrongdoing of any sort. The Court did not hear the facts of this case, so it did not make any determination of guilt or ruling. Both parties believe the Six Flags season pass refunds settlement agreement is in the best interests of all parties involved. Class Members who have an active or paused membership will receive one free month for each month they were charged during the Class Period (March 13, 2020, to Sep. 10, 2021) or will receive a gift card in the amount of the monthly membership charges that can be used at any park where Six Flags gift cards are accepted. In addition, the Six Flags season pass refunds settlement agreement states Class Members with an active or paused membership can also receive an upgraded membership and either 5,000 Membership Reward Points or one Golden Ticket. Class Members who cancelled their memberships can receive a complimentary admission ticket for each six months they were charged during the Class Period. Class Members who wish to object to the settlement must mail their objection and notice to appear by Nov. 24, 2021. Class Members who want to exclude themselves from the current settlement agreement must mail a request for exclusion by Nov. 24, 2021. Those who do not exclude themselves will be bound by the settlement agreement and will not be eligible to seek out future litigation regarding this matter. A final approval hearing in the Six Flags season pass refunds class action settlement is scheduled for Dec. 15, 2021. The deadline to file a claim is Nov. 24, 2021. Who's Eligible Settlement Class Members include consumers with season passes who paid for a Six Flags monthly membership in the United States during the time period when their Six Flags Home Park was closed due to the pandemic. The eligible time period is from March 13, 2020, through Sep. 10, 2021. To be eligible, Class Members must not have received Six Flags season pass refunds for the full amount of their charges. Potential Award Varies Proof of Purchase Membership number NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 11/24/2021 Case Name Strassburger v. Six Flags Theme Parks Inc., Case No. 2020CH06208, in the Circuit Court of Cook County, Illinois County Department, Chancery Division Final Hearing 12/15/2021 Settlement Website MembershipFeesSettlement.com Claims Administrator Strassburger v Six Flags c/o Settlement Administrator PO Box 5324 New York, NY 10150-5324 833-460-2431 Class Counsel BURSOR & FISHER PA KHASHAYAR LAW GROUP LAW OFFICES OF RONALD A. MARRON Defense Counsel FAEGRE DRINKER BIDDLE & REATH LLP [GN] SUMMIT COMMUNITY: Beavers Files FDCPA Suit in W.D. Virginia ----------------------------------------------------------- A class action lawsuit has been filed against Summit Community Bank, Inc. The case is styled as Bryan Beavers, Wendy Beavers, on behalf of themselves individually and on behalf of a Class of similarly situated persons v. Summit Community Bank, Inc., Case No. 1:21-cv-00042-JPJ-PMS (W.D. Va., Oct. 8, 2021). The nature of suit is stated as Other Real Property for Violation of the Real Estate Settlement Procedures Act. Summit Community Bank Inc. -- https://www.mysummit.bank/ -- provides banking services.[BN] The Plaintiffs are represented by: Dale Wood Pittman, Esq. LAW OFFICES OF DALW W. PITTMAN, P.C. 112-A W Tabb St Petersburg, VA 23803-3212 (804) 861-6000 Fax: (804) 861-3368 Email: dale@pittmanlawoffice.com TACONIC PLASTICS: Residents Offered $23.5M to Settle PFOA Lawsuit ----------------------------------------------------------------- Dan Levy at wnyt.com reports that over the past several decades, Taconic Plastics has dumped large quantities of toxic PFOAs into Petersburgh's drinking water. PFOA exposure has been linked to myriad health problems including testicular and kidney cancer, and Thyroid Disease. The $23.5 M proposed settlement will pay property owners for damages whether they're on the town's public water supply or whether their private wells were contaminated. "For Petersburgh, I feel like it's going to be a sense of vindication that the company had to acknowledge that they did cause damage," said Emily Marpe, one of the plaintiffs in the class action lawsuit brought against Taconic. "They contaminated the town and they hid it for years." What Marpe likes most about the settlement offer is the 15 year medical monitoring program for individuals -- like her three children -- who have had certain levels of PFOA detected in their bloodstreams. "It provides closure in a sense that there is a weight off my shoulders," she says, "I don't have to fight so hard. I have a resolution now to my children's future, and that was huge. My children are my number one priority." Taconic's President Timothy Kosto issued a state that read: Taconic is pleased to have settled with the plaintiffs in the Petersburgh class action lawsuit. For more than 60 years, Taconic has been committed to the success of our local community. We look forward to continuing our commitment to the health and safety of our employees and members of the community and to providing sustainable employment opportunities and economic stability to Petersburgh and the surrounding communities. "It's not a winning scenario," Marpe stresses, "People died. People are ill from the diseases and the illnesses associated with consuming water contaminated with PFOA. So I don't feel like we've won. I feel like the company finally took some accountability." But also, deep down, Marpe knows the PFOA ordeal will likely haunt her for the rest of her life. "For me personally, I can tell you, that it's been a nightmare," she says, "It has consumed my life for the last five and a half years. It has robbed my children of their mother because of my time dedicated to this topic and to staying on top of things." Because Marpe is being treated for Thyroid Disease, she has her own individual lawsuit going against Taconic, which means she is not part of the class action suit and will not benefit from it. Her children will benefit. [GN] TARGET CORP: Seeks Ninth Circuit Review in Bowen Labor Suit ----------------------------------------------------------- Defendant Target Corporation filed an appeal from a court ruling entered in the lawsuit entitled Aisha Bowen, et al. v. Target Corporation, et al., Case No. 2:16-cv-02587-JGB-MRW, in the U.S. District Court for the Central District of California, Los Angeles. As reported in the Class Action Reporter, Plaintiff Aisha Bowen filed a class action complaint against Defendant Target in Los Angeles County Superior Court on December 7, 2015. Target removed the case to the the U.S. District Court for the Central District of California on April 14, 2016. On May 20, 2016, Ms. Bowen amended her complaint for the first time. On June 2, 2016, the Court approved the joint stipulation and ordered proceedings on all meal-period claims stayed for the duration of the Thompson case. On May 14, 2018, the parties in Thompson entered into a settlement agreement settling all meal-period claims through May 5, 2018. The Court approved the settlement on August 2, 2018. On December 3, 2019, Ms. Bowen amended her complaint once again, adding new named Plaintiffs and new claims. The Second Amended Complaint alleges nine causes of action: (1) failure to provide required meal periods; (2) failure to provide required rest periods; (3) failure to pay overtime wages; (4) failure to pay minimum wages; (5) failure to pay all wages due to discharged and quitting employees; (6) failure to furnish accurate itemized wage statements; (7) failure to indemnify employees for necessary expenditures incurred in discharge of duties; (8) unfair and unlawful business practices; and (9) penalties under the California Labor Code Private Attorneys General Act (PAGA), as a representative action. On June 24, 2021, Judge Jesus G. Bernal granted in part and denied in part Plaintiffs' Motion for Class Certification. On July 12, 2021, the Defendant filed a Motion for Judgment On the Pleadings (MJOP) as to Plaintiffs' "RROP" claim or, alternatively, bifurcation of trial of liability on Plaintiffs' RROP Claim. The Court denied the motion on August 4. On August 16, 2021, Defendant filed a motion for Leave to Appeal the Order on Motion for Judgment on the Pleadings; as well as a motion for certification of order for interlocutory appeal and stay of trial court proceedings pending appeal. On September 17, 2021, Judge Bernal granted in part and denied in part Defendants motion for leave to appeal. The Court certified the MJOP Order for interlocutory appeal pursuant to 28 U.S.C. Section 1292(b) on the issue of whether all hours worked in a workweek must be used in calculating RROP. Defendants' request for a stay was denied. The appellate case is captioned as Aisha Bowen, et al. v. Target Corporation, Case No. 21-80102, in the United States Court of Appeals for the Ninth Circuit, filed on September 27, 2021.[BN] Defendant-Petitioner TARGET CORPORATION, a Minnesota corporation,is represented by: Ryan David Derry, Esq. PAUL HASTINGS LLP 515 South Flower Street Los Angeles, CA 90071 Telephone: (213) 683-6292 - and - Jeffrey D. Wohl, Esq. PAUL HASTINGS, LLP 101 California Street, 48th Floor San Francisco, CA 94111 Telephone: (415) 856-7000 E-mail: jeffwohl@paulhastings.com Plaintiffs-Respondents AISHA BOWEN and STACEY WILLIAMS, an individual on behalf of herself and all others similarly situated, are represented by: Matthew Warren Gordon, Esq. Matthew J. Matern, Esq. Mikael H. Stahle, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 E-mail: mgordon@maternlawgroup.com mmatern@maternlawgroup.com TD AMERITRADE: Appeals Class Cert. Approval in Bartle Class Suit ---------------------------------------------------------------- Defendant TD Ameritrade Holding Corporation filed an appeal from a court ruling entered in the lawsuit ANNETTE BARTLE, individually and on behalf of others similarly situated, Plaintiff v. TD AMERITRADE HOLDINGS CORP, Defendant, Case No. 2016-CV02520, in the U.S. District Court for the Western District of Missouri - Kansas City. As reported in the Class Action Reporter, the lawsuit is a class action against the Defendant for breach of contract and unjust enrichment pursuant to the Missouri Rules of Civil Procedure. According to the complaint, the Plaintiff and all others similarly-situated individuals entered into a brokerage account agreement with Scottrade, Inc., a stock brokerage firm acquired by the Defendant in 2017. Scottrade breached the agreement by hypothecating securities in their accounts during the 10-year period preceding the filing of the complaint, and failed to compensate them for the amount that they should have received. As a result of the company's hypothecation activities, the Plaintiff and all others brokerage account owners suffered losses. The Defendant now seeks a review of the Court's Order dated Sept. 15, 2021, granting Plaintiff's motion to certify a class. The appellate case is captioned as Annette Bartle v. TD Ameritrade Holding Corporation, Case No. 21-8007, in the United States Court of Appeals for the Eighth Circuit, filed on Sept. 29, 2021.[BN] Defendant-Petitioner TD Ameritrade Holding Corporation is represented by: Kelly A. Eno, Esq. Eamon Paul Joyce, Esq. SIDLEY & AUSTIN 787 Seventh Avenue New York, NY 10019-0000 Telephone: (202) 839-5300 - and - Jason M. Hans, Esq. GM LAW, PC 1201 Walnut Street, 20th Floor Kansas City, MO 64106 Telephone: (816) 471-7700 E-mail: jasonh@gmlawpc.com - and - Daniel J. Hay, Esq. Alaric R. Smith, Esq. SIDLEY & AUSTIN 1501 K Street, N.W. Washington, DC 20005-0000 Telephone: (202) 736-8000 - and - Theodore Kornobis, Esq. K & L GATES, LLP 1601 K Street, N.W. Washington, DC 20036-0000 Telephone: (202) 466-6300 E-mail: ted.kornobis@klgates.com - and - Stephen G. Topetzes, Esq. K & L GATES, L.L.P. 1800 Massachusetts Avenue, N.W. Washington, DC 20036-0000 Telephone: (202) 778-9328 E-mail: stephen.topetzes@klgates.com Plaintiff-Respondent Annette Mackey Bartle, on behalf of herself and all similarly situated, is represented by: Jared A. Rose, Esq. ROSE LAW OFFICE 919 W. 47th Street Kansas City, MO 64112 Telephone: (816) 221-4335 E-mail: jared@roselawkc.com TENNESSEE: Illegally Jailed Minors Elligble For Settlement ---------------------------------------------------------- bgdailynews.com reports that about 1,450 people jailed illegally as minors in Tennessee can claim part of a $11 million class-action settlement, but fewer than 200 people have filed eligible claims, the Daily News Journal reported. The lawsuit revealed the Rutherford County Juvenile Detention Center regularly locked up children for misdemeanor charges, including truancy, school fights and disobeying parents, plaintiffs' attorney Kyle Mothershead said. The suit started by challenging the incarceration of children arrested at Hobgood Elementary School in Murfreesboro before expanding to include other youth jailed at the detention center on minor charges. Tennessee law strictly prohibits the pretrial incarceration of children unless they are charged with a violent felony, a weapons offense, or a probation violation, according to the complaint filed in July 2017. Under the terms of a June 2021 settlement, eligible plaintiffs will receive $4,800 per each illegal incarceration and $1,000 per arrest. The original plaintiffs will receive a larger settlement. They include Kazmere Watts, who will receive about $31,000 after he was incarcerated for seven days for a school fight. He punched another student but that student wasn't seriously injured. "That was the first time I ever got into trouble," said Watts, who was a freshman at Oakland High School in 2014. "I wasn't trying to hurt him. You're a kid. You do foolish stuff." In June, Nashville Chief U.S. District Court Judge Waverly D. Crenshaw Jr. issued a preliminary injunction ending Rutherford County's policy of incarcerating youths on misdemeanor charges. The county of more than 340,000 people sprawls to the southeast of Nashville and has Murfreesboro as its seat. "Rutherford County should never have arrested (Watts)," Crenshaw wrote. "The juveniles that are arrested in Rutherford County are being deprived of their procedural due process rights, which is unquestionably irreparable harm." Elligible plaintiffs must file their claims by Oct. 29, or they won't receive a share of the settlement. Because of the statute of limitations, only those born on or after Oct. 14, 1997, qualify. "Thousands of children were illegally incarcerated under this regime," said Mothershead. He added that county officials in 2004 ignored a consulting firm's advice that the juvenile detention center was locking up too many children. More information about the settlement is available on the claims administrator website at www.rutherfordjuvenilesettlement.com. [GN] TILRAY INC: New York Judge Tosses Securities Class Action --------------------------------------------------------- Shearman & Sterling LLP, in an article for Mondaq, reports that on September 27, 2021, Judge Paul Crotty of the United States District Court for the Southern District of New York dismissed a putative class action asserting claims under the Securities Exchange Act of 1934 against a cannabis company and its CEO and CFO. Kasilingam v. Tilray, Inc., No. 20-CV-03459 (PAC), 2021 WL 4429788 (S.D.N.Y. Sept. 27, 2021). Plaintiffs alleged defendants made material misrepresentations that inflated the company's stock price ahead of a planned share exchange. The Court held that plaintiffs failed to adequately allege scienter and dismissed the action but granted plaintiffs leave to amend to attempt to cure the deficiencies in their complaint. The claims arose out of the allegation that the company's CEO and his investment group had worked to maintain control of the company while structuring an ability to monetize part of their investment. Id. at *2. To do so, they allegedly orchestrated a share exchange and "downstream merger" with the investment group. Id. Plaintiffs alleged that defendants made two types of misrepresentations to prop up the company's share price in advance of the share exchange. The first concerned the value of a co-marketing agreement with a brand management company, the value of which was eventually impaired and which plaintiffs alleged defendants characterized positively even though they "quickly realized [it] was worth far less than [they] had paid for it." Id. at *3-4. The second related to misrepresentations that allegedly overvalued inventory and understated labor costs. Id. at *4-5. The Court first assessed plaintiffs' claim that their allegations that the CEO was motivated to inflate the company's stock price to facilitate the share exchange established a strong inference of scienter through "motive and opportunity." Because plaintiffs had not alleged that the CEO or his investment company sold any stock during the relevant period, however, or otherwise received any direct benefit from the scheme, the Court rejected that claim. Id. at *7. In fact, the Court noted, plaintiffs' "own pleadings suggest that among those most harmed by the natural and intentional consequences of this purported scheme was the schemer himself," and that when a "purported fraudster 'miss[es] the boat this dramatically,' or in this case, opts to go down with the ship, the fraud inference is weakened." Id. Ultimately, the Court concluded that the inference of scienter, while plausible, was not strong and was outweighed by other competing inferences suggested by the complaint, including of "errant, but genuine, optimism" or negligence. Id. at *8. The Court also rejected plaintiffs' allegations of motive for the CFO, who was not alleged to have been part of the CEO's investment group and instead was alleged in "conclusory fashion" only to have knowledge and intent to deceive "by virtue of his position," which without more was not enough to plead scienter. Id. at *8‑9. The Court further rejected plaintiffs' scienter allegations under a theory of "conscious misbehavior or recklessness." The Court explained that the allegations relied on "the fundamental premise that [d]efendants either knew or should have known their statements were false," which plaintiffs failed to establish through factual allegations. Id. at *10. While plaintiffs argued that defendants made misleadingly optimistic statements about the co-marketing agreement despite knowing "almost instantly" that the agreement was "effectively worthless to the company," the Court emphasized that there were no factual allegations showing that defendants did not sincerely believe that the agreement would be valuable or that favorable regulatory developments might occur in the future to increase the value of the agreement. Id. at *10–11. The Court also rejected plaintiffs' theory that the company's eventual decision to recognize an impairment relating to the co-marketing agreement due to regulatory uncertainty showed that earlier optimistic statements were fraudulent or that defendants were reckless in not sufficiently monitoring related information. Id. at *11. The Court held that this theory amounted to impermissible "fraud by hindsight" and that "being wrong—even embarrassingly so—is not the same as being dishonest." Id. The Court also held that plaintiffs failed to support an inference of "conscious misbehavior or recklessness" with respect to challenged statements that allegedly overvalued the company's inventory and understated labor costs. For these assertions, plaintiffs relied on confidential witness allegations that the Court determined to be "vague" and "insufficiently particular" to satisfy the heightened pleading standard of the PSLRA. Id. at *12. The Court observed that the allegation that a former employee objected to how labor costs were accounted for and was overruled by senior management simply amounted to a disagreement among staff about accounting protocols. Similarly, while plaintiffs asserted that the company overvalued inventory based on the "vague and conclusory assertions" of two mid-level employees, the Court observed that these allegations merely amounted to "discord among [company] staff" and there was no allegation that these employees even spoke to one of the individual defendants. Id. at *12. Moreover, the Court emphasized that the inventory-related claims were "built atop the faulty premise that the Amended Complaint establishes that [d]efendants knew, or should have known, that much of their inventory was worthless," which had not actually been shown, and that the fact that the company later reduced its inventory valuation failed to show that the "failure to do so earlier was fraudulent." Id. at *13. Because plaintiffs failed to adequately alleged scienter with respect to the individual defendants and asserted no "specific corporate scienter allegations" independent of their claims against the CEO and CFO, the Court also concluded that plaintiffs failed to allege that the company acted with corporate scienter. Id. [GN] UNITED ENERGY: Used Schemes to Evade OT Obligations, Suit Says -------------------------------------------------------------- Kim Westerkamp and Theresa Hill, on behalf of themselves and all similarly situated individuals v. UNITED ENERGY WORKERS HEALTHCARE CORPORATION, CHAD SHUMWAY, TRAVIS SHUMWAY, STEPHANIE PETERSON, Case No. 1:21-cv-00655-MRB (S.D. Ohio, Oct. 8, 2021), is brought against the Defendants for willful violation of the Fair Labor Standards Act in operating their home-healthcare agency by using various schemes to evade overtime obligations under the FLSA. Specifically, the Defendants failed to pay the Plaintiffs and similarly situated individuals time-and-a-half compensation for their hours worked in excess of 40 hours per week by: misclassifying them as independent contractors and paying them at a rate equal to or less than their regularly hourly rate of pay for any hours worked over 40 in a week; and/or paying them as employees but only at their regular hourly rate of pay for any hours worked over 40 in a week, says the complaint. The Plaintiffs have been employed by UEW as a registered nurse working out of its Cincinnati office. UEW is an Ohio corporation that operates a home-healthcare agency with at least 23 offices in at least 18 states.[BN] The Plaintiffs are represented by: Brian J. Butler, Esq. Susan L. Butler, Esq. MEZIBOV BUTLER 615 Elsinore Place Cincinnati, OH 45202 Phone: 513.621.8800 Fax: 513.621.8833 Email: bbutler@mezibov.com sbutler@mezibov.com UNITED PARCEL: Cornell Files Suit in Cal. Super. Ct. ---------------------------------------------------- A class action lawsuit has been filed against United Parcel Service, Inc. The case is styled as Matthew Cornell, individually and on behalf of other persons similarly situated v. United Parcel Service, Inc., Does 1 through 50, Inclusive, Case No. CGC21595246 (Cal. Super. Ct., San Francisco Cty., Oct. 7, 2021). The case type is stated as "Other Non-Exempt Complaints." United Parcel Service -- https://www.ups.com/us/en/global.page -- is an American multinational shipping & receiving and supply chain management company founded in 1907.[BN] The Plaintiff is represented by: Kevin B. Piercy, Esq. RAIMONDO & ASSOCAITES 7110 N Marks Ave., Ste. 104 Fresno, CA 93711 Phone: 559-432-3000 Fax: 559-432-2242 Email: kbp@raimondoassociates.com UNITED SERVICES: Bid to Compel Appraisal in Thompson Suit Denied ---------------------------------------------------------------- In the case, BRONSON D. THOMPSON, Plaintiff v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant, Civil Action No. 4:20-CV-123-SA-JMV (N.D. Miss.), Judge Sharion Aycock of the U.S. District Court for the Northern District of Mississippi, Greenville Division, denied: (i) the Report and Recommendation, entered Dec. 16, 2020, of the Magistrate Judge assigned to the case; and (ii) USAA's Motion to Compel Appraisal and Stay Proceedings on Oct. 18, 2020. Background On Oct. 6, 2020, the Plaintiff, Bronson Thompson, filed an Amended Class Action Complaint on behalf of himself and all others similarly situated, for breach of contract. In his Amended Complaint, Thompson seeks damages for breach of contract on his behalf and on behalf of a purported class. Mr. Thompson's vehicle was involved in an accident on Dec. 19, 2017, and thereafter he filed a claim with USAA. Under the policy, if USAA deems the cost to repair the vehicle to be more than the cost, at the time of the loss, to buy a comparable vehicle minus the salvage value, then USAA considers the vehicle to be a "total loss." In such a case, USAA's liability is limited to the actual cash value of the vehicle ("ACV") which is defined as "the amount that it would cost, at the time of loss, to buy a comparable vehicle." After Thompson's accident, USAA deemed his vehicle a "total loss," then paid him the ACV of the vehicle. USAA determined the adjusted value of the vehicle to be $26,548.29, sales tax for the vehicle to be $1,327.41, and title fees for the vehicle to be $10. Thus, excluding title fees, at the time of the wreck, the vehicle was valued at $27,875.70 (adjusted value plus sales tax). USAA subtracted the deductible amount from the total then paid Thompson. The amount USAA paid to Thompson did not include license (registration) fees or dealer fees, and Thompson argues that such fees should have been included in the payment. The contract's appraisal provision reads as follows: "If we and you do not agree on the amount of loss, either may demand an appraisal. In this event, each party will select a competent appraiser. The two appraisers will select an umpire. The appraisers will state separately the actual cash value and the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will pay its chosen appraiser and share the expenses of the umpire equally. Neither we nor you waive any rights under this policy by agreeing to an appraisal." In the case, Thompson asserts that he does not dispute USAA's valuation of the vehicle, nor does he dispute the amount USAA determined it would cost to repair the vehicle. Instead, he asserts that USAA breached the contract by not paying the state license and dealer fees for the purchase of the new vehicle—fees he argues are included in the purchase cost for a vehicle in Mississippi. As a result, USAA invoked the appraisal provision, and Thompson did not comply. On Oct. 18, 2020, USAA filed a Motion to Compel. The Magistrate Judge entered a Report and Recommendation, recommending that the Motion be granted and the case be stayed for 90 days. Thompson then timely filed an Objection. Analysis Mr. Thompson objects to the Report and Recommendation for five reasons. First, he argues that he does not dispute the amount of loss USAA determined his vehicle to have sustained. Second, Thompson asserts that his claim is one of policy interpretation. As such, he argues that his claim is a legal question and is thus not appraisable. Third, Thompson asserts that there is no appraisable issue because this is a question of whether the applicable fees are included in the vehicle's ACV, not a dispute over the amount of damage done to the vehicle. Fourth, Thompson asserts that the language in the Policy's appraisal provision is not intended to invoke appraisal if USAA disagrees with its own valuation of the vehicle. Finally, Thompson asserts that appraisal cannot resolve the parties' legal dispute because this is an issue of policy interpretation and sending the matter to appraisal would merely result in asking an appraiser his opinion as to whether such fees should be included as part of the ACV. USAA points to the definition of "loss" under the contract which reads: "'Loss' means direct and accidental damage to the operational safety, function, or appearance of your covered auto. Loss includes a total loss, but does not include any damage other than the cost to repair or replace." USAA ultimately contends that the appraisal provision is invoked because Thompson disputes the amount he was paid to replace his vehicle, and thus he disputes the amount of loss. Considering the authorities referenced and the specific policy language quoted, Judge Aycock finds that the parties' dispute as to whether license and dealer fees are included in the ACV of a vehicle is an argument pertaining to the coverage of an insurance policy, as opposed to a disagreement as to the monetary value of the property at issue. Therefore, she finds that the subject dispute is not an issue for appraisal. Judge Aycock, in considering an Objection to a Report and Recommendation, applies a de novo standard of review. As such, in order to reject the Report and Recommendation, she need not find that the Magistrate Judge erred. Applying this standard, she declines to adopt the Report and Recommendation. Conclusion For the reasons he stated, Judge Aycock denied the Report and Recommendation and USAA's Motion to Compel Appraisal. The Magistrate Judge will reset any deadlines as necessary in light of the Order. A full-text copy of the Court's Sept. 29, 2021 Order is available at https://tinyurl.com/yv7w2xf8 from Leagle.com. UNITED STATES: Class Action Over Plant's Radioactive Material Fails ------------------------------------------------------------------- Brian Flood, writing for Bloomberg Law, reports that a potential class action on behalf of people who were allegedly exposed to radioactive material released by an Ohio nuclear plant failed because the plaintiffs' state law claims are preempted by federal law, the Sixth Circuit affirmed on Oct. 6. For about fifty years the Portsmouth Gaseous Diffusion Plant in Pike County enriched uranium, and since 2002 the plant has been used as a facility to convert depleted uranium hexafluoride, a coproduct of uranium enrichment, into uranium oxide, a more stable compound. The plant also previously hosted operations for the American Centrifuge Lead Cascade Facility. [GN] UNITED STATES: Summary Judgment Bid in Byrnes v. DOJ Partly OK'd ---------------------------------------------------------------- In the case, KEVIN E. BYRNES, Plaintiff v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, Case No. 19-cv-0761 (APM) (D.D.C.), Judge Amit P. Mehta of the U.S. District Court for the District of Columbia: (i) grants in part and denies in part the Department of Justice's Motion for Summary Judgment; and (ii) grants in part and denies in part Byrnes' Cross-Motion for Summary Judgment. Background Plaintiff Byrnes, a lawyer, brings the Freedom of Information Act ("FOIA") action against Defendant U.S. Department of Justice seeking to compel the Department to conduct a more thorough search of records held by its component Drug Enforcement Administration ("DEA") and to release information withheld pursuant to FOIA Exemption 6. Byrnes' request stems from his experience representing a number of DEA employees, particularly in a class action of 16 DEA special agents who claimed the agency penalized them for their service in the U.S. Armed Forces reserves. After negotiations between Byrnes and the Department on the scope of Byrnes' requests faltered, the parties cross-moved for summary judgment. Discussion Mr. Byrnes has raised a panoply of challenges to DEA's search for responsive records. Judge Mehta first addresses his challenges to DEA's search in response to paragraphs 1 and 2 of his request before turning to his challenges to DEA's partial search in response to paragraph 3. The Judge next considers the parties' arguments regarding DEA's refusal to search for records responsive to paragraphs 4 and 5, and then considers Byrnes's objections to DEA's withholdings under Exemption 6. A. Requests in Paragraphs 1 and 2 Recall that in paragraphs 1 and 2 of Byrnes' request, he sought (1) all communications between DEA and certain third parties that discussed Byrnes or his actions as counsel for specific individuals and (2) all communications obtained by DEA that concern Byrnes -- specifically, any communications from DEA attorney Sandra Stevens, who had previously served as an arbitrator on the Washington, D.C. Bar's Fee Dispute Resolution Panel. Pl.'s Req. at 1-3. In response, DEA searched the records of its Office of Chief Counsel ("CC") with respect to requests 1(a)-1(e), 1(i)-1(n), and 2, and the records of its Office of Congressional and Public Affairs ("CP") with respect to requests 1(f)-1(h). Within CC, current "attorneys assigned to the matters listed in paragraph 6 conducted manual searches of their records," including emails. For attorneys involved in the matters listed in paragraph 6 who were no longer employed by CC, DEA conducted an "automated search" that queried "Byrnes's name against any non-DEA email with a domain address ending in '.gov' for the relevant time period." As DEA clarified on reply, for all records responsive to paragraph 1, CC searched "the relevant legal files associated with each matter" identified in paragraph 6 and "conducted an additional search solely for email communications" of the CC attorneys assigned to the matters listed in paragraph 6. First, Judge Mehta holds that Byrnes has not offered anything other than his own speculation that records responsive to paragraphs 1 and 2 exist in other divisions of DEA to support his argument that DEA's search was unreasonable. DEA thoroughly explained why it identified CC and CP as the offices most likely to have responsive records. Nor has he identified a particular division that DEA clearly should have searched in response to his requests. He therefore has not satisfied his burden to establish that "as yet uncovered documents exist." Second, Judge Mehta finds that Byrnes did not provide DEA with any further information on requests 1(j) and 1(m) that would clearly indicate they were not related to the matters identified in paragraph 6. Each of those offices interfaces with attorneys, and given that all of Byrnes's requests in paragraph 1 explicitly reference his "actions as counsel for the individuals that are listed in paragraph 6,"it was reasonable for DEA to conclude that the legal files for the matters listed in paragraph 6 and the files of attorneys who litigated those matters were the most likely to contain relevant documents. Without providing a sufficient basis to determine that the requests in paragraphs 1(j) and 1(m) exceed the scope of the matters listed in paragraph 6, the Judge holds that Byrnes has not established that DEA's search as to those requests was unreasonable. Third, none of the requests in paragraphs 1(g), 1(h), 1(i), and 1(m) seek communications from government entities. Rather, they seek communications from nonprofits, the media, outside attorneys, and state bar authorities. It therefore makes little sense for the agency to limit the communications searched to those that end in ".gov," the domain for entities of the federal government. Accordingly, the Department of Justice's search of former CC employees' records was not reasonable as to the requests in paragraphs 1(g), 1(h), 1(i), and 1(m), and Byrnes is entitled to summary judgment on this issue. Fourth, Judge Mehta finds that the Hertel declarations are not "reasonably detailed" because they do not "allow the district court to determine if the search was adequate." He thus cannot grant the Department of Justice summary judgment on this issue. To cure this defect, he says, the Department of Justice is ordered to provide a more detailed supplemental declaration that identifies whether Stevens was one of the custodians whose records were searched. If her custodial file was not searched, the Department will do so. Fifth, Judge Mehta orders the Department of Justice to file a supplemental declaration disclosing the custodians whose records were searched. He says, an agency declaration that does not "identify the employees chosen to conduct the search fails to pass muster." Finally, the Judge orders the Department of Justice to produce a supplemental affidavit that provides the terms that current CC attorneys looked for in determining whether a record was responsive and the search terms DEA used in its automated search of former CC attorneys' records. He says, Byrnes' argument raises another concern that precludes the court from granting the Department of Justice summary judgment on this issue: The Hertel declarations do not identify the search terms that CC attorneys employed in manually reviewing legal files and that DEA employed in automatically searching former CC attorneys' files. For him to grant the agency summary judgment, it must produce the Court "a reasonably detailed affidavit setting forth the search terms" that it used. Without disclosing the terms that CC attorneys and DEA searched for, Byrnes does not have a complete "opportunity to challenge the adequacy of the search," and this court cannot "determine if the search was adequate." B. Requests in Paragraph 3 Paragraph 3 of Byrnes' request sought "all records reflecting any surveillance or investigation of Kevin E. Byrnes or any client or agent of Kevin E. Byrnes, for the period Dec. 1, 2013 to the present." DEA responded to the first part of this request -- records relating to Byrnes himself -- by searching its Investigative Reporting and Filing System ("IRFS"), which Hertel explains "accounts for all DEA law enforcement intelligence and investigative records that are maintained on an individual." Because he cannot determine whether an additional search of CC files was conducted, Judge Mehta orders the Department of Justice to produce a supplemental declaration stating either that it searched NADDIS and no additional search was conducted or describing the search method and terms for the search of CC files in response to Byrnes's request in paragraph 3. Moreover, the agency's blanket refusal to search for records related to any of Byrnes' clients indicates that it failed to follow patently obvious leads, and Byrnes is entitled to summary judgment that DEA's search in response to paragraph 3 as it pertains to his clients was unreasonable. C. Requests in Paragraphs 4 and 5 In paragraph 4 of his FOIA request, Byrnes sought any communications from any DEA "employee or agent that seek to monitor or deter any employee of the Agency from selecting or maintaining Mr. Byrnes as a legal representative or which in any way seek to disparage Mr. Byrnes to any third party." And in paragraph 5, Byrnes sought communications by "any employee or agent of DEA that claim that Mr. Byrnes violated any professional code of legal ethics or which respond to any claim of any ethical violation made against an employee or agent of DEA, that mention the conduct or motives of Mr. Byrnes." DEA explained that it declined to search for records in response to these requests because both requests would have required "DEA to search the records of every employee, without a time limitation, because it had no way of knowing which employees" would have responsive records. Judge Mehta holds that given the scope of the requests in paragraphs 4 and 5 and the difficulty inherent in searching for records responsive to them, he agrees with the Department that these requests are impermissibly broad. Moreover, based on the Hertel declarations, simply imposing a time limitation would not cure the defects associated with Byrnes' request because DEA would still need to search 15,000 email accounts across 400 servers. The Juge therefore declines to require DEA to correct Byrnes' requests in paragraphs 4 and 5 for him. D. Exemption 6 Finally, DEA withheld "the names and identities of current DEA and DOJ employees, and third parties," as well as "personal identifying information such as individual phone numbers and email addresses" pursuant to FOIA Exemption 6. Byrnes accepts most of these redactions but argues that DEA has not justified its withholding of attorney names under Exemption 6. Exemption 6 permits an agency to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Judge Mehta opines that both the privacy interests and the public interests implicated by the disputed information are minimal, the law breaks in favor of disclosure. Accordingly, he grants summary judgment to Byrnes and orders DEA to disclose the names of the attorneys that it withheld under Exemption 6. Disposition For the foregoing reasons, Judge Mehta grants the Department of Justice's Motion for Summary Judgment as to its search for records of surveillance of Byrnes in paragraph 3 and as to its decision not to search for records responsive to Byrnes' requests in paragraph 4 and 5. The Department of Justice's Motion is otherwise denied. The Judge grants Byrnes' Motion for Summary Judgment as to the Department of Justice's (1) searches of former CC employees' documents in response to Byrnes's requests in paragraphs 1(g), 1(h), 1(i), and 1(m); (2) search for records responsive to Byrnes's request in paragraph 1(j); (3) failure to search for records of surveillance of Byrnes's clients, as requested in paragraph 3; and (4) withholding of attorney names. Byrnes' Motion is otherwise denied. The Judge further orders the Department of Justice to provide a supplemental declaration identifying: (1) the custodians whose records were searched, (2) the search terms used, (3) whether the entirety of Sandra Stevens' email communications were searched, and (4) whether CC conducted a search for surveillance records of Byrnes beyond the NADDIS search. A full-text copy of the Court's Sept. 29, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/h42ymrwj from Leagle.com. UNITED STATES: Summary Judgment Ruling in Doe v. ATF Appealed ------------------------------------------------------------- Plaintiff John Doe filed an appeal from a court ruling entered in the lawsuit styled JOHN DOE, individually and on behalf of others similarly situated, Plaintiff v. DONALD J. TRUMP, in his official capacity as President of the United States, MATTHEW WHITAKER, in his official capacity as Acting Attorney General of the United States, and THOMAS E. BRANDON, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants, Case No. 19-cv-6-SMY, in the U.S. District Court for the Southern District of Illinois. Following the 2017 Las Vegas mass shooting, Congress urged the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") to re-examine the classification of bump stock devices. In response, the Department of Justice issued a Final Rule, Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) ("Final Rule"). Plaintiff John Doe filed the instant putative class action on behalf of himself and similarly situated persons, claiming the Final Rule exceeds ATF's statutory authority and violates the Administrative Procedure Act ("APA") and the Constitution. Doe asserts the following causes of action in the Complaint: Count I - 18 U.S.C. 922(o) does not prohibit an initial registration period/amnesty; Count II - 18 U.S.C. 922(o) is facially unconstitutional as being in excess of the authority granted to Congress under the Commerce Clause; Count III - 18 U.S.C. Section 922(o) is unconstitutional as applied to firearms registered in the National Firearms Registration and Transfer Record as being in excess of the authority granted to Congress under the Commerce Clause; Count IV - 18 U.S.C. Section 922(o) is an unconstitutional direct tax in violation of Article I of the Constitution; Count V - 18 U.S.C. Section 922(o) is a violation of the Due Process Clause; and Count VI - The Final Rule is a Taking requiring just compensation. As reported in the Class Action Reporter on Oct. 11, 2021, Judge Staci M. Yandle granted the Defendants' Motion for Summary Judgment in its entirety. All pending motions were terminated as moot and the Clerk of Court was directed to enter judgment and to close the case. The Plaintiff now seeks a review of that order in its appellate case captioned John Doe v. Joseph R. Biden, et al., Case No. 21-2777, filed on Sept. 29, 2021, in the United States Court of Appeals for the Seventh Circuit. Joseph R. Biden is sued in his official capacity as the President of the United States. The briefing schedule in the Appellate Case states that: -- Docketing Statement was due for Appellant John Doe on Oct. 5, 2021; -- Transcript information sheet was due Oct. 13, 2021; and -- Appellant's brief is due on Nov. 8, 2021 for John Doe.BN] Plaintiff-Appellant JOHN DOE, individually and on behalf of others similarly situated, is represented by: Thomas G. Maag, Esq. MAAG LAW FIRM, LLC 22 W. Lorena Avenue Wood River, IL 62095 Telephone: (618) 216-5291 Defendants-Appellees JOSEPH R. BIDEN, JR., in his official capacity as President of the United States; MERRICK B. GARLAND, Attorney General of the United States, in his official capacity; and MARVIN G. RICHARDSON, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, are represented by: Michael F. Knapp, Esq. DEPARTMENT OF JUSTICE 1100 L Street, N.W. Washington, DC 20530 Telephone: (202) 514-2071 UNITEDHEALTHCARE: Faces Suit Over Unreimbursed Medical Expenses --------------------------------------------------------------- Corrado Rizzi reports that a proposed class action claims UnitedHealthcare Insurance Company has run afoul of a North Carolina state law by refusing to reimburse certain out-of-network medical expenses the insurer has "artificially created" by "purposefully" terminating certain providers from its network. The 27-page lawsuit alleges North Carolina residents who have or have had health insurance through United Health have received "balance bills" from anesthesia provider Providence Anesthesiology Associates, a plaintiff in the case with whom the defendants are alleged to have unilaterally terminated their relationship before demanding it "cut its rates by more than 60% to return to the network." The complaint alleges United Health "took these steps knowing it would harm patients and planned to make their own insureds responsible for unplanned medical bills in the thousands of dollars each that they knew would result." The suit describes United Health's alleged targeting of certain providers as "unethical and unfair" as the insurer has essentially attempted to strong-arm service providers into better contract terms by "using patients as leverage." The case contends that each plaintiff received medical services at an in-network facility for which Providence's anesthesia portion of their care was out-of-network "only because UHC unilaterally terminated Providence from its network in 2020." As a result, the plaintiffs have been saddled with thousands in unexpected bills for care that should have been covered by United Health, the suit argues. Since the termination of Providence and many other providers nationwide from United Health's network, the insurer has refused to reimburse proposed class members at the reasonable, standard rate for medical services performed by those providers, the complaint claims. "As a result, [United Health's] insured members are forced to bear medical costs which should be borne by UHC," the suit alleges, relaying that North Carolina's Patient Protection Act prohibits insurers who have an insufficient network from "penaliz[ing] an insured or subject[ing] an insured to the out-of-network benefit levels offered under the insured's approved health benefit plan." According to the lawsuit, Providence and United Health normally negotiated new contract rates as part of the Medical Group Participation Agreement renewal process. The suit claims United Health has had a historic pattern during the contract renewal term to wait until before the contract expired to provide a counteroffer to Providence as a means to pressure the provider into accepting lower rates to stay in-network. Per the case, United Health, during an ongoing debate of legislation against surprise billing practices at the federal level in September 2019, began to negotiate for lower rates with Providence. On September 30, 2019, United Health allegedly served a notice of termination of its contract and informed Providence that the contract would end, leaving Providence out-of-network, on March 1, 2020. United Health relayed to Providence at the time that it would remain open to negotiating a mutually agreeable participation agreement with competitive rates that would allow Providence to remain in-network, the complaint says. The suit adds that United Health's September 30 notice was also accompanied by a proposal for Providence to rejoin the network but with its reimbursement reduced by more than 60 percent. "The proposed rate reduction was so drastic that it would be impossible for Providence to continue providing patients with the highest quality of care," the lawsuit says. The suit alleges United Health's termination of Providence's contract was for no legitimate purpose as the insurer never identified any issues with the provider's anesthesia services, certificates, licensure or any other problems that would justify contract termination. "Instead, UHC deemed Providence an out-of-network provider for the purpose of pressuring Providence to accept a substantially lower reimbursement rate than Providence historically accepted from UHC, and a substantially lower reimbursement rate than allowed by North Carolina's Patient Protection Act," the complaint charges. According to the case, United Health admitted in January 2020 that its termination of Providence's contract was part of a negotiation strategy whereby the anesthesia provider was offered the choice to either terminate the contract mutually for all products or have United Health terminate it unilaterally for its commercial line of business only. The lawsuit alleges United Health knew that its termination of Providence and other service providers' contracts would harm patients. "UHC counted on the threat of out-of-network status and resulting hardship to Plaintiff Patients and class members to exert undue pressure on Providence, using patients as leverage in its contract negotiations with Providence," the case says. The case lastly alleges United Health, one of the largest health insurers in the country, has retaliated against certain service providers by "tak[ing] steps to disrupt the relationships" between them and patients. The suit claims United Health, with regard to Providence, has misled patients and interfered with their access to anesthesia services, as some have been forced to cancel scheduled surgeries or otherwise not seek care they would have otherwise sought from Providence. The lawsuit demands that United Health reimburse or pay for the out-of-network medical expenses it has created artificially through "its targeted network terminations."[GN] VALVE CORP: Class Action Over Loot Boxes Moved for Class Cert. -------------------------------------------------------------- Alexander H. Cote, Esq., of Winston & Strawn LLP, in an article for Mondaq, reports that plaintiffs suing Valve Corporation over the company's use of loot box in several top videogames have moved for class certification in Seattle federal court. The suit alleges that the loot boxes in three games-Counter-Strike: Global Offensive, Defense of the Ancients 2, and Team Fortress 2-violates the Washington Consumer Protection Act because they constitute online gambling that Valve failed to disclose. The proposed class consists of the parents of minor children who purchased loot boxes from Valve, a class that could exceed hundreds of thousands of parents. Plaintiffs argue that the same issues exist for the entire class-namely, that Valve has concealed that their games include gambling elements, which are illegal under Washington law-and that damages could be easily determined from Valve's records listing the amount spent by minors on loot boxes in its games. Plaintiffs also seek injunctive relief against Valve that would prohibit loot boxes. Plaintiffs' claims have had a long and tortured history. Although initially filed in December 2016 on behalf of both parents and children, the district court sent the case to arbitration at Valve's request. Valve prevailed in the arbitration, and the court dismissed the case. Plaintiffs appealed, and the Ninth Circuit reversed the order compelling arbitration of the parents' claims but sustained as to the children's claims. With Valve's arbitration victory still binding on the children's claims, the parents may face an uphill battle on their suit against Valve. About Winston's Videogame, Gaming & Esports Group Recognizing that emerging industries require bespoke lawyering, Mike Tomasulo and David Enzminger formed and lead Winston's Videogame, Gaming & Esports Group to provide comprehensive legal solutions to companies in these industries. This multidisciplinary group includes more than 60 lawyers across 10 practices working seamlessly to assist companies in these industries in all areas, including managing IP portfolios, assisting esports companies establish global sports leagues, selling franchises, and developing proactive legal solutions for issues that arise from league operations. We represent videogame publishers in antirust matters and represent both rights owners and gaming companies in licensing issues for game content. In addition, our team helps electronic game clients prepare for all types of regulatory and public scrutiny issues, such as corporate governance, data privacy, and harassment/discrimination claims that are sure to come as the industry continues to grow in both size and influence. Our offices in New York, Silicon Valley, Los Angeles, Shanghai, and Hong Kong provide gaming clients with a global platform for their complex and evolving legal needs. [GN] VIRGINIA MASON: Court Certifies Employment Class Action Lawsuit --------------------------------------------------------------- sgb-law.com reports that a King County Superior Court judge recently certified a class action lawsuit against Seattle-based health system Virginia Mason Medical Center alleging that the organization failed to fully compensate hourly healthcare workers for missed rest and meal breaks. The certified class includes as many as 5,000 hourly employees who worked at Virginia Mason between March 24, 2017, and January 25, 2020. According to the suit, the electronic time keeping system used by Virginia Mason across 11 hospitals and nearly 300 sites of care to track employee time and attendance did not consistently and accurately reflect instances when employees worked through their meal breaks and rest periods. Additionally, the suit alleges that not only are class members owed wages for missed breaks, but that they are entitled to additional compensation and interest for working through their unpaid meal breaks. "Our healthcare workers work hard, and they shouldn't have to double and triple check their paychecks to make sure they're paid fairly," said Schroeter Goldmark & Bender attorney Adam Berger who represents the certified class of workers. "Virginia Mason should do the right thing and pay these frontline healthcare workers what they're owed." Court documents show that Virginia Mason's time keeping system automatically deducted a 30-minute meal break from the daily hours clocked by employees on the assumption that all meal periods would be provided and taken. However, if a meal was missed because an employee was too busy to take a break, for example, employees could cancel the "auto-deduct" by selecting an option on a punch clock, or by accessing their timecards online. Similarly, employees could indicate in Virginia Mason's system whether they had missed a rest break. In theory, these options would cancel the automatic meal-break deduction or add time for missed rest breaks back to the employee's total hours work for the day. In practice, however, employees often received no additional compensation when they reported a missed rest or meal break, as Virginia Mason's system did not necessarily cancel the auto-deduct meal period, nor compensate employees for the missed rest break. "As a healthcare worker, I should only have to worry about keeping patients safe and healthy. I shouldn't have to worry about being shortchanged on my paycheck," said Rheannon Androckitis, a former Virginia Mason employee and the named plaintiff in the lawsuit. "Whether this was an accident or on purpose, it'd be nice if Virginia Mason would take responsibility and pay everyone for the breaks they worked through." On the day the court heard plaintiffs' class certification motion, Virginia Mason began the process of making some retroactive payments to workers for missed rest breaks. However, the organization did not provide any additional compensation for missed meal breaks, and plaintiffs assert that even the rest break payments are inadequate. "Our community is depending on healthcare workers more than ever. The least we can do is recognize the countless and critical hours they spend caring for others with fair pay. This suit is simply asking Virginia Mason to remain accountable to compensating its healthcare workers according to their own agreements," said Schroeter Goldmark & Bender attorney Jamal Whitehead. A notice to all class members was mailed on August 26, 2021. To learn more, visit www.sgb-law.com. About Schroeter Goldmark Founded in 1969, Schroeter Goldmark & Bender (SGB) is a nationally recognized law firm based in Seattle that holds the most powerful companies, government agencies, and people accountable for their wrongdoing. SGB specializes in representing injured persons in asbestos and mesothelioma, catastrophic injury, brain/spinal cord injury, medical malpractice, unsafe products, wrongful death, sexual assault and harassment, as well as individual and class action employment cases. The firm believes the law is a force of good and is committed to achieving justice for people who have been harmed. [GN] VITALITE HEALTH: Suit Involving Mental Health Centre Certified -------------------------------------------------------------- Brad Perry at country94.ca reports that a New Brunswick Court of Queen's Bench judge has certified a class action over alleged abuse, neglect and mistreatment at the Restigouche Hospital Centre. Koskie Minsky LLP filed the suit against the province and Vitalite Health Network on behalf of patients at the mental health centre in Campbellton since 1954. The firm said in 2019 that it was seeking $500 million in total damages on behalf of the former residents. In announcing the certification, lead counsel James Sayce said the allegations in the case are "very serious." "This ruling will allow for current and former residents to have their day in court. Perhaps most importantly, this decision opens the door to improving the allegedly abhorrent conditions at the Restigouche Hospital Centre," Sayce said in a statement. The lawsuit was launched after a scathing report released by New Brunswick's ombud in 2019 outlined "mistreatment and inadequate care" of patients at the centre. Charles Murray called on the province to shrink the mandate of the institution and look at closing a number of units in light of chronic understaffing. "Far from being its intended centre of excellence, the Restigouche Hospital Centre has reverted to an antiquated model of a mental institution operating largely to warehouse New Brunswick residents with serious mental health issues," said Murray at the time. An external advisor hired by the province to review the ombud's report recommended keeping the centre open but accelerating changes needed to improve the facility's safety and quality of care. [GN] WELLA OPERATIONS: Duncan Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Wella Operations US LLC. The case is styled as Eugene Duncan, and on behalf of all other persons similarly situated v. Wella Operations US LLC, Case No. 1:21-cv-05600 (E.D.N.Y., Oct. 7, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Wella -- https://www.wellacompany.com/ -- is a German hair care company headquartered in Geneva, Switzerland.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawfirm.net WHEATLEIGH CORP: Massachusetts Court Certifies Class in Mongue Suit ------------------------------------------------------------------- In the case, ARLETA MONGUE, Plaintiff v. THE WHEATLEIGH CORPORATION, L. LINFIELD SIMON, SUSAN SIMON, and MARC WILHELM, Defendants, Civil No. 3:18-cv-30095-KAR (D. Mass.), Magistrate Judge Katherine A. Robertson of the U.S. District Court for the District of Massachusetts granted the Plaintiff's Motion for Class Certification on her state law claims only. Background Plaintiff Mongue is a former employee of Defendant Wheatleigh, which was owned and operated by the remaining Defendants L. Linfield Simon, Susan Simon, and Marc Wilhelm. The Plaintiff alleges in her amended complaint that the Defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201 et seq., by failing to pay her an overtime premium, paying her less than the federal minimum wage, not providing proper notice before utilizing a tip credit, and operating an illegal tip pool. She also states state law claims against these Defendants under Massachusetts wage laws. Specifically, the Plaintiff claims that the Defendants violated the Massachusetts Fair Minimum Wage Act, Mass. Gen. Laws ch. 151, Sections 1, 7, by paying the Plaintiff the service rate when she should have received full minimum wage due to the Defendants' unlawful distribution of its tip pools, the un-tipped tasks to which she was assigned, and the Defendants' failure to provide proper written notice before utilizing the service rate; the Massachusetts Tips Act, Mass. Gen. Laws ch. 149, Section 152A, by unlawfully distributing wages from the tip pool to non-wait staff employees and supervisors; and the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, Sections 148, 150, by failing to timely pay wages. Before the court is Plaintiff's Motion for Class Certification on her state law claims only. Discussion A. Supplemental Jurisdiction Before considering whether the prerequisites of Rule 23 have been met, Judge Robertson addresses the Defendants' argument that the Court should decline the exercise of supplemental jurisdiction. The Defendants rely primarily on the asserted predominance of state law claims to convince the court to decline the exercise of supplemental jurisdiction. They note that the Plaintiff has put the number of proposed class members at 92 (a figure they dispute), which, with each class member having three state law claims, means that the court would be adjudicating a total of 276 Massachusetts wage claims, as compared to the Plaintiff's three individual FLSA claims. The Defendants rely on one circuit court decision and one district court decision to support the argument that this quantitative difference should lead the Court to decline to exercise supplemental jurisdiction. Judge Robertson holds that the Court will exercise supplemental jurisdiction over the Plaintiff's state law claims. She finds that most of the Plaintiff's state law class claims mirror her federal claims. The Plaintiff brings minimum wage and tip violation claims under both federal and state law. In both cases, they argue that the Defendants were not entitled to pay the service rate and take a tip credit because they cannot show that they satisfied mandated notice requirements or that they operated a valid tip pool. Although not identical, the notification requirements are similar under the FLSA and Massachusetts law. Judge Robertson must also consider questions of judicial economy and fairness. She says, these latter concerns weigh in favor of retaining jurisdiction, insofar as it would be more efficient to decide the issues in one proceeding rather than two and fairer to allow the Plaintiff to proceed in federal court where this case has been pending for over three years, since June 2018. The Judge further notes that this is one of four wage and hour cases brought against the same Defendants, and the other three cases remain pending before the Court. These cases were consolidated for purposes of discovery. The Court recently ruled on summary judgment motions in these cases and has gained general familiarity with Wheatleigh and its operations. B. Class Certification A class may be certified if a plaintiff shows that the class meets the Fed. R. Civ. P. 23(a) and (b)(3) requirements. Pursuant to Rule 23(a), a plaintiff must show: (1) numerosity: "the class is so numerous that joinder of all members is impracticable;" (2) commonality: "there are questions of law or fact common to the class;" (3) typicality: "the claims or defenses of the representative parties are typical of the claims or defenses of the class;" and (4) adequacy: "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). The additional requirements imposed by Rule 23(b)(3) are: (1) predominance: "questions of law or fact common to class members predominate over any questions affecting only individual members;" and (2) superiority: "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Before embarking on the Rule 23 analysis, Judge Robertson addresses the issue of the period for which class damages may be claimed. The Plaintiff's proposed class definition is: "All individuals who worked as wait staff employees, service employees, or service bartenders for Defendants from Dec. 1, 2016, to March 1, 2020, and were paid a Service Rate." The Defendants argue that the class period is overbroad and that it should be limited to the period of June 26, 2017, to March 1, 2020, because Plaintiff did not file her class action complaint until June 26, 2020. The statute of limitations for each of the Plaintiff's state law claims is three years. Judge Robertson concludes that the statute of limitations was tolled by the Plaintiff's filing of the class action complaint on June 26, 2020, and the correct period for which class damages may be recovered is June 26, 2017, through March 1, 2020. That said, for each of the Plaintiff's claims, the statute of limitations is tolled "from the date that the employee or a similarly situated employee files a complaint with the attorney general alleging a violation until the date that the attorney general issues a letter authorizing a private right of action." The Plaintiff included her right to sue letter, which was issued on June 12, 2018, as an attachment to her complaint, but she did not specify when she filed her complaint with the attorney general. Therefore, Judge Robertson cannot determine the appropriate period of time for which the statute of limitations was tolled. To the extent that the Plaintiff wishes to enlarge the class definition to include this additional time, she says, the Plaintiff is directed to file a copy of the complaint she filed with the Attorney General within 14 days. Judge Robertson now turns to the application of Fed. R. Civ. P. 23(a). She finds that the numerosity requirement to be satisfied. The Plaintiff identifies the class as being composed of 92 "Servers," with "Servers" being identified in her complaint as those who "served food and beverages directly to customers and did not have managerial responsibility." The Judge also finds that the Plaintiff identifies a multiplicity of what she contends are common questions of law and fact. The Plaintiff has also identified common questions of fact and law, which are capable of generating common answers. With respect to typicality, Judge Robertson finds that the Plaintiff has met Rule 23's typicality requirement. She finds that the injuries the Plaintiff complains of arose from the course of conduct by the Defendants affecting other server/waitstaff employees. In addition, the claims of the Plaintiff and the proposed class are based on the same legal theories. Moreover, the Judge finds that the Plaintiff has the better of the argument and has established adequacy of representation. She can see no conflict between the Plaintiff and other Wheatleigh Servers, who would have the same interest in recovering unpaid wages from the Defendants. The Plaintiff has also shown her lawyers to be well-qualified and capable of litigating this matter. The Defendants have offered no authority for the proposition that the Plaintiff is an inadequate representative because no other Servers chose to opt-in to a collective action. Judge Robertson next finds the predominance to be satisfied. The same evidence will suffice to establish what written notice regarding tips was or was not given to the putative class members for which the Defendants are relying largely on the posting of the Massachusetts Attorney General's Wage & Hour Laws poster. The same is true about whether the tip pool in which the putative class members were participating was valid or not. Judge Robertson further finds that the Plaintiff has cleared the final Rule 23 hurdle for class certification. She does not anticipate any significant management issues and is aware of no other pending litigation on the same issues. Moreover, "a class action is particularly superior where class treatment can vindicate the claims of 'groups of people whose individual claims would be too small to warrant litigation.' Finally, Judge Robertson finds that there is no insurmountable difficulty with ascertainability. She finds that the Plaintiffs will be able to use the Defendants' records, including the Defendants' Tip Distribution Sheets and ADP Payroll Records to identify the members of the class. Accordingly, the class is sufficiently ascertainable. Conclusion For the stated reasons, Judge Robertson granted the Plaintiff's motion for class certification. She certified the following class: "All individuals who worked as wait staff employees, service employees, or service bartenders for Defendants from June 26, 2017, to March 1, 2020, and were paid a Service Rate." She appointed Jeffrey S. Morneau of Connor & Morneau, LLP as the class counsel. A status conference will be held. If the parties are unavailable, counsel are to confer regarding availability, come up with three mutually agreed upon dates, and so notify the Court for rescheduling. A full-text copy of the Court's Sept. 29, 2021 Memorandum & Order is available at https://tinyurl.com/udwxupvx from Leagle.com. WILLIAMS-SONOMA INC: Barrientos FCRA Suit Removed to N.D. Illinois ------------------------------------------------------------------ The case styled JULIANA BARRIENTOS, Plaintiff v. WILLIAMS-SONOMA, INC., Defendant, Case No. 2021-CH-04285, was removed from the Illinois Circuit Court of Cook County to the United States District Court for the Northern District of Illinois, Eastern Division on Sept. 29, 2021. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:21-cv-05160 to the proceeding. The Plaintiff initiated this civil action against the Defendant on August 26, 2021 by filing a class action complaint in the Circuit Court of Cook County, Illinois for alleged violations of the Fair and Accurate Credit Transactions Act amendment to the Fair Credit Reporting Act. Williams-Sonoma, Inc. is an American publicly traded consumer retail company that sells kitchen-wares and home furnishings. It is headquartered in San Francisco, California, United States.[BN] The Defendant is represented by: David M. Poell, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 70 West Madison Street, 48th Floor Chicago, IL 60602 Telephone: (312) 499-6300 Facsimile: (312) 499-6301 E-mail: dpoell@sheppardmullin.com - and - Craig Cardon, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 1901 Avenue of the Stars, Suite 1600 Los Angeles, CA 90067 Telephone: (310) 228-3749 Facsimile: (310) 228-3701 E-mail: ccardon@sheppardmullin.com ZOOMINFO TECHNOLOGIES: Faces Suit Over Use of Customers' Info ------------------------------------------------------------- Erin Shaak at classaction.org reports that ZoomInfo Technologies Inc. faces a proposed class action over its alleged practice of using California consumers' private information to advertise subscriptions to ZoomInfo.com. According to the 20-page lawsuit, ZoomInfo misappropriates consumers' names, contact information, job titles, work histories and other personal details in "teaser profiles" on ZoomInfo.com to promote the sale of subscriptions that purportedly allow for "Full Access" to the personal information of the "millions of individuals" in ZoomInfo's database. The case alleges the defendant has violated the California Right of Publicity Act, a state law that forbids the use of residents' private information for commercial purposes without their consent. Per the suit, many individuals whose private information has been used in advertisements on ZoomInfo.com never consented to have their data used for promotional purposes: "Plaintiff and the Class have the right not to have their names and personal information exploited to promote a product with which they have no relationship and no interest in supporting. Plaintiffs and the Class have an economic interest in their names and personal information, which ZoomInfo has stolen, and a privacy interest in their names and personal information, which ZoomInfo has violated." The plaintiff, a California citizen, says that although she has never visited, subscribed to or used ZoomInfo.com, the website has displayed her name, phone number, place of work, job title and job description, the organization chart of her workplace, and the names and contact information of her colleagues in a partially redacted "teaser profile." In close proximity to the plaintiff's information are "buttons encouraging the user to subscribe to ZoomInfo" in order to get "Full Access" to the personal information of "125 million business professionals" and other services, the suit alleges. According to the case, subscriptions to ZoomInfo.com cost upward of $10,000 per year. The lawsuit goes on to claim that ZoomInfo also uses the plaintiff's information to advertise subscriptions to the Community Edition version of the website, which provides access to the full profiles of millions of individuals and requires users to download an application that tracks their business contacts. Per the case, ZoomInfo's "sole purpose" in using the plaintiff's information is to advertise subscriptions to its services. The plaintiff says she never consented to the defendant's use of her personal information "in any way" and would not have done so had she been asked permission. According to the complaint, the woman was "seriously distressed" upon discovering that her information was being used for commercial purposes without her consent. "ZoomInfo's illegal actions caused [the plaintiff] mental injury and disturbed her peace of mind. [The plaintiff] is deeply uncomfortable in the knowledge that ZoomInfo is using her name and persona in advertisements for a product with which she has no relationship and which she has no desire to promote. [The plaintiff] believes her name and persona is rightly hers to control. ZoomInfo's illegal use has left her worried and uncertain about her inability to control how her name and persona is used. [The plaintiff] feels that ZoomInfo's use of her name and persona is an alarming invasion of her privacy." The lawsuit looks to represent California residents who are not ZoomInfo subscribers and whose names and personal information was used by the defendant in teaser profiles to promote its products. [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 ***