/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/211103.mbx C L A S S A C T I O N R E P O R T E R Wednesday, November 3, 2021, Vol. 23, No. 214 Headlines 3 JOE'S PIZZA: Perez Sues Over Unpaid Minimum, Overtime Wages A&G DELI: Does not Properly Pay Workers, Ledesma Suit Says AMAZON.COM INC: Class Action Lawsuit Alleges Race Discrimination AMAZON.COM INC: Discrimination Suit Filed by White Male Sellers AMAZON.COM: Correll Files Suit in S.D. California AMBI ENTERPRISES: Estevez Files ADA Suit in S.D. New York AOS GROUP: Estevez Files ADA Suit in S.D. New York ASPEN SURGERY: Violated State Labor Code Violations, Suit Says AVIRA INC: Estevez Files ADA Suit in S.D. New York B&G FOODS: Silva "Ortega Taco" Suit Seeks to Certify Class BAJCO INTERNATIONAL: Can Compel Arbitration in Valesh Wage Suit BAMIA 2 LLC: Faces Furtado Suit Over Failure to Timely Pay Wages BAYER AG: Court Refuses to Dismiss Sheet Metal Workers Suit BAYPORT CREDIT: Barker Seeks Briefing Sched for Class Certification BEAUTY FX SPA: Tatum-Rios Files ADA Suit in S.D. New York BELLA ROSE: Estevez Files ADA Suit in S.D. New York BIRD RIDES: Anderson Slams Misclassification, Illegal Termination BP EXPLORATION: Dismissal of Moore Claims in BELO Suit Upheld BROADRIDGE FINANCIAL: Valle Sues Over Unpaid Overtime Wages BUFFETT SENIOR: Settlement in Ziegler Class Suit Wins Final Nod C.H. ROBINSON: JMR Seeks to Certify Class of Growers CALVERT'S EXPRESS: Fails to Pay Proper Wages, Heitzman Alleges CAMBER ENERGY: Pomerantz Law Discloses Securities Class Action CAMBER ENERGY: Rosen Law Reminds of December 28 Deadline CARBON HEALTH: Olsen Files ADA Suit in S.D. New York CBRE GROUP: California Appeals Court Affirms Judgment in Woods Suit CENTURY DEVELOPMENT: Fails to Pay Proper Wages, Borshchevskiy Says CHASE DENNIS: Amendment of Class Status Briefing Schedule Sought CITGO PETROLEUM: Lucas Sues Over Unpaid Minimum, Overtime Wages CITIZENS DISABILITY: Heather Gaker Seeks Class Certification CLIF BAR: Fitzgerald Joseph LLP Appointed as Class Counsel in Milan COCA-COLA: Sued Over False and Misleading Marketing Practices COLONIAL PARK: $175K Class Deal in Shabazz FLSA Suit Wins Final Nod COMMONSPIRIT HEALTH: Smith Appeals ERISA Suit Dismissal to 6th Cir. COMMONWEALTH BANK: Pleads Guilty to Selling "Junk Insurance" CONFLUENCE GROUP: Mack Files TCPA Suit in N.D. Georgia CONSOL COAL: Faces Fredricks Suit Over Unfair Merger Deal CORPUS CHRISTI, TX: Bentancourt Sues Over Unlawful Discrimination CROWN RESORTS: Settles China Gambling Class Action for $125 Million D&H CONTRACTING: Dawson Seeks Unpaid Overtime Wages D-MARKET ELEKTRONIK: Bernstein Liebhard Reminds of Dec. 20 Deadline D-MARKET ELEKTRONIK: Faces Golden Suit Over Drop in Share Price D-MARKET ELEKTRONIK: Levi & Korsinsky Reminds of Dec. 20 Deadline DELAVAL INC: Seeks Extension to Respond to Bid to Unseal Briefings DIAGEO NORTH: Faces Fischer Suit Over Mislabeled Rum Product DICKINSON COLLEGE: Women's Squash Team Lawsuit Receives Settlement DOCTOR'S BEST: Estevez Files ADA Suit in S.D. New York EARTH RATED: Natale Files Suit in E.D. New York EINSTEIN HEALTHCARE: Faces S.H. Suit Over Medical Data Breach ENERGAGE LLC: Cordes Seeks FLSA Collective Action Certification EPIC ETAILERS: Estevez Files ADA Suit in S.D. New York ETHIKA INC: Estevez Files ADA Suit in S.D. New York EUROPTICS INC: Estevez Files ADA Suit in S.D. New York FACEBOOK INC: Bernstein Liebhard Reminds of December 27 Deadline FERRARA CANDY: Settles $3.7M Class Action Over Illegal Packaging FIAT CHRYSLER: Faces Suit Over Defective CP4 Fuel Injection Pumps FINISH LINE: Faces Stevens Suit Over Failure to Pay Wages FLORIDA: Calls for Probe Into Black Farmer Cannabis License FLORIDA: Class Action Over Unfair Confinement Practices Certified FLOWERS FOODS: Initial Approval of Settlement in Noll Sought FORD MOTOR: Court Narrows Claims in Amended O'Connor Class Suit GATOR PROTECTION: Fails to Pay Proper Wages, Centeno Suit Alleges GREENGEEKS LLC: Estevez Files ADA Suit in S.D. New York HAIN CELESTIAL: Faces Anderberg Suit Over Mislabeled Sunscreens HEALTHCARE INFORMATION: Court Narrows Counterclaims in Federal Suit HOEGH LNG: Johnson Fistel Reminds of December 27 Deadline HOEGH LNG: Rosen Law Reminds of December 27 Deadline HUDSON HALL: Ct. Enters Scheduling Order in Stewart Class Suit HUNGRY PET: Estevez Files ADA Suit in S.D. New York KALA HEALTH: Estevez Files ADA Suit in S.D. New York KATE BROWN: Le Case Stayed Pending Resolution of Maney Class Status KEMPER CORP: Settlement Over Data Breaches Gets Prelim Approval KEMPER CORPORATION: Fails to Pay Proper Wages, Amador Alleges KIDS BEHAVIORAL: Bonanini Suit Seeks to Certify Settlement Class KINGLAND CO: Fails to Pay Overtime, Czarnecki et al. Claim KLEAN KANTEEN: Estevez Files ADA Suit in S.D. New York LA NOPALERA BEACH: Fails to Pay Proper Wages, Briseno Alleges LAND OCEAN: Brooks' Individual Claims Dismissed With Prejudice LIFE ALERT: Andrews Sues Over Unauthorized Bank Fund Transfer LOCKHEED MARTIN: Rosen Law Investigates Potential Securities Claims MADE IN MEXICO: Fails to Pay Proper Wages, Batista Suit Alleges MARRIOTT INT'L: $2.2M Class Settlement in Martin Suit Wins Final OK MCKENDREE UNIVERSITY: Students Appeal Dismissal of Class Action MDL 2972: Claims in Blackbaud Customer Data Breach Suit Narrowed MEDTRONIC INC: Faces Class Action Over Defective Insulin Pumps MICHAEL ANDREWS: Court Dismisses With Prejudice Bostic FDCPA Suit MONTGOMERY COUNTY, PA: Faces ACLU Suit Over Illegal Incarceration MOOSE USA: Slade Files ADA Suit in S.D. New York MUNICIPAL CREDIT: Class Claims in Maldonado's Complaint Dismissed MUNSON HEALTHCARE: Moves to Dismiss "No-Poach" Class Action NEI GENERAL CONTRACTING: Migrant Workers Seek Proper Wages NET RETAILERS: Crosson Files ADA Suit in E.D. New York NOMOLOTUS LLC: Estevez Files ADA Suit in S.D. New York NORTHERN OHIO PIZZA: Shortchanges Delivery Drivers' Pay, Says Suit OAK RIDGE: Unvaccinated Laboratory Employees Can't Return to Work OREGON: Court Extends Discovery, PTO Deadlines in Terril ADA Suit OSI SYSTEMS: Longo Seeks to Certify Settlement Class PACIFICORP: Responsible for Fire Occurence, Class Action Says PELOTON INTERACTIVE: Faces Minnesota Wage and Hour Class Action PHARMACARE US: Court Narrows Claims in Corbett's 1st Amended Suit PHILADELPHIA, PA: Court Dismisses Duplessis' Claims Against CFCF PHILLIPS & COHEN: Initial OK of Settlement Deal in Haston Sought PILGRIM'S PRIDE: Lawyers Ask Judge for $68M Fees in Antitrust Suit PIVOTAL INVESTMENT: Janmohamed Sues Over Unfair Merger Deal PUMPERNICKEL BAGEL: Fails to Pay Proper Wages, Cid Alleges RECONNAISSANCE ENERGY: Responds to Securities Class Action Suit ROGERS COMMUNICATIONS: Privacy Breach Class Action Commenced SAFETY INSURANCE: Summary Judgment in McGilloway Suit Affirmed SHARE NOW : To Pay $1 Million to Settle Suit Over Drivers' Fees SNAP INC: Rosen Law Discloses Securities Class Action SOCLEAN INC: Faces Hill Suit Over Defective Ventilators SOUTH BY SOUTHWEST: Agrees to Settle Lawsuit Over No-Refund Policy SOUTH LAFOURCHE: Nurses File Lawsuit Alleging Unpaid Wages SPECTRUM HEALTH: Abernathy Class Action Junked w/o Prejudice STATE FARM: Court Grants Bid to Compel Appraisal in Clippinger Suit STONECO LTD: Glancy Prongay Investigates Securities Violations TARGET CORP: Class Settlement in Garcia Suit Wins Prelim. Approval TELEFERIC BARCELONA: Resto Staff Seeks Proper Wages TENCENT MUSIC: Bragar Eagel Reminds of December 27 Deadline TESLA INC: Judge Trims Shareholder's Class Action Lawsuit TRACE STAFFING: Bid for Conditional Status Nixed in Gouldie Suit TRUSTEDID INC: O'Leary Appeals Privacy Suit Dismissal to 4th Cir. UNITED STATES: Iraq War Vet With PTSD Wins Class-Action Suit UNIVERSITY OF PITTSBURGH: Nurse Secretly Films Undressed Patients VONACHEN SERVICES: Wins Summary Judgment Bid in Twin City BIPA Suit WALGREENS BOOTS: Dismissal of JR Personal Injury Suit Affirmed WILMINGTON TRUST: Bid for Final Nod of Fink's $5.5MM Deal Denied ********* 3 JOE'S PIZZA: Perez Sues Over Unpaid Minimum, Overtime Wages ------------------------------------------------------------- Julio Perez, on behalf of himself and others similarly situated v. 3 JOE'S PIZZA & REST. CORP. d/b/a ROMEO'S PIZZA & PAST A, JOE VALLONE, and JOHN DOES 1-5, Case No. 1:21-cv-05997 (E.D.N.Y., Oct. 28, 2021), is brought pursuant to the Fair Labor Standards Act and the New York Labor Law, alleging that he is entitled to recover from the Defendants: unpaid minimum wages, unpaid overtime compensation, unpaid "spread of hours" premium for each day he worked a span of greater than 10 hours, liquidated and statutory damages, prejudgment and post-judgment interest, and attorneys' fees and costs. The Plaintiff was paid at the rate of straight time for all hours worked and worked for more than 40 hours per week. Work performed over 40 hours per week was not paid at the statutory rate of time and one-half as required by state and federal law. The Defendants failed to provide Plaintiff with weekly wage statements/pay stubs setting forth Plaintiffs gross wages, deductions, and net wages. The Defendants knowingly and willfully operate their business with a policy of not paying either the FLSA minimum wage or the New York State minimum wage to Plaintiff and other similarly situated employees. The Defendants knowingly and willfully operate their business with a policy of not paying Plaintiff and other similarly situated employees either the FLSA overtime rate (of time and one-half), or the New York State overtime rate (of time and one-half), in direct violation of the FLSA and New York Labor Law and the supporting federal and New York State Department of Labor Regulations, says the complaint. The Plaintiff was hired by the Defendants to work as non-exempt dough maker at the Restaurant from 2010 through September 26, 2021. The Defendants own and operate an Italian restaurant doing business as "Romeo's Pizza & Pasta."[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 200 Park Avenue, 17th Floor New York, NY 10166 Phone: (212) 209-3933 Fax: (212) 209-7102 Email: info@jcpclaw.com A&G DELI: Does not Properly Pay Workers, Ledesma Suit Says ---------------------------------------------------------- Manuel Ledesma, individually and on behalf of all others similarly situated, Plaintiff, v. A&G Deli Grocery Corp. and Alicia Fernandez, Defendants, Case No. 21-cv-08631 (S.D. N.Y., October 21, 2021) seeks unpaid minimum wage and overtime wage pursuant to the Fair Labor Standards Act of 1938, New York Labor Law, NY Wage Theft Prevention Act and the "spread-of-hours" and overtime wage orders of the New York Commission of Labor, including applicable liquidated damages, interest, attorneys' fees, and costs. Ledesma was employed by A&G Deli Grocery as a cashier at the Deli and Produce Sections at their Bronx location. He usually works in excess of 40 hours per week, without appropriate compensation for the hours over 40 per week, asserts the complaint. Defendants also failed to maintain accurate recordkeeping of workers' hours worked and failed to pay the required "spread-of-hours" pay for any day in which Plaintiff had to work over 10 hours a day, the complaint adds. [BN] Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL PC 42 Broadway, 12th Floor New York, NY 10004 Tel: (212) 203-2417 Facsimile: (212) 203-9115 Website: www.FightForUrRights.com AMAZON.COM INC: Class Action Lawsuit Alleges Race Discrimination ---------------------------------------------------------------- Sarah Kimball Stephenson at jurist.org reports that an Amazon seller on Thursday filed a proposed class-action suit claiming the retail giant discriminated against straight white cisgender men by creating support initiatives for creators of color and specialized search filters that allow shoppers to see results from minority-owned sellers. Jonathan Correll alleged that Amazon's diversity campaigns, including Black History Month and Hispanic Heritage Month promotions, "denies equal accommodations, advantages, facilities, privileges, or services to members of every other race, is racist, and violates California Civil Code sections 51 and 51.5." He asserts that the public would be "furious" if Amazon created campaigns and support programs exclusively for straight white men. He also identified Amazon's Black Business Accelerator program as one of the "most brazen" acts of discrimination because many benefits such as free imaging for 50 products and a $500 startup credit are only available to Black sellers. Amazon's Seller Certification program, a feature on Amazon Business accounts, is another source of contention for Correll. He claims it is discriminatory because customers can limit search results to show sellers who are Black, Hispanic, Native American, or Pacific Islander before other uncertified sellers. He says that because straight white men are not eligible for these certificates, Amazon is aiding, inciting, or at least facilitating "prejudiced and bigoted buyers" who prefer to purchase only from minority groups. Correll's complaint concludes that Amazon's diversity promotions deprive heterosexual white men of equal accommodations and that these practices constitute a boycott or blacklist of straight white males. He seeks injunctive relief to eliminate the so-called discriminatory programs. This case comes just days after a federal jury in North Carolina awarded $10 million to a former healthcare company executive who alleged he was fired for being a white man and replaced with two women in the company's push to increase diversity at the corporate level. [GN] AMAZON.COM INC: Discrimination Suit Filed by White Male Sellers --------------------------------------------------------------- lawstreetmedia.com reports that a suit filed in San Diego, California claims that Amazon.com Inc. discriminates against third-party sellers described by the plaintiff as heterosexual white males. The 44-page complaint argues that Amazon disenfranchises the group while preferring sellers who are LGBT, Black, Hispanic, Native American, Pacific Islander, and/or female. The plaintiff is a white heterosexual businessman from southern California who wanted to sell his products on the e-commerce platform when he became aware of the company's allegedly exclusive policies and practices. His harm stems from the denial of his full use of Amazon's seller program and services, the filing says. In support of this argument, the complaint sets forth numerous examples of Amazon's supposed favoritism. In one instance, it points to Amazon's advertisement allowing customers browsing its website to "discover women-owned businesses." Another example, "perhaps the most brazen" exemplifying Amazon's alleged disparate treatment, is an opportunity the company purports to offer to Black sellers, no matter their success. Allegedly, Amazon's Black Business Accelerator Program offers participants $500 in funding to get their business off the ground, $400 in sponsored product advertisements, and other benefits that the complaint claims are unfairly and wholly unavailable to people of other races. The plaintiff seeks to certify a class of similarly situated white, straight men who reside in California and either considered selling products on Amazon but were deterred, or sold them on the site and suffered the company's discriminatory practices. The lawsuit seeks relief from violations of the Unruh Civil Rights Act and a California Civil Code provision prohibiting businesses from denying equal rights under the law. In addition to injunctive relief requiring the company to implement and maintain inclusive practices, the complaint also requests that Amazon officers and employees be ordered to undergo diversity, inclusion, and equity training. The plaintiff also seeks statutory damages and his attorneys' fees and costs. He is represented by Greg Alder P.C. [GN] AMAZON.COM: Correll Files Suit in S.D. California ------------------------------------------------- A class action lawsuit has been filed against Amazon.com, Inc., et al. The case is styled as Jonathan Correll, on behalf of himself and all others similarly situated v. Amazon.com, Inc., Does 1-10, Case No. 3:21-cv-01833-BTM-MDD (S.D. Cal., Oct. 28, 2021). The nature of suit is stated as Other Civil Rights for the Class Action Fairness Act. Amazon.com, Inc. -- https://www.amazon.com/ -- is an American multinational technology company which focuses on e-commerce, cloud computing, digital streaming, and artificial intelligence.[BN] The Plaintiff is represented by: Gregory Lee Adler, Esq. GREG ADLER, P.C. 39899 Balentine Drive, Suite 200 Newark, CA 94560 Phone: (844) 504-6587 Fax: (469) 807-8878 Email: greg@adler.law AMBI ENTERPRISES: Estevez Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against AMBI Enterprises LLC. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. AMBI Enterprises LLC, Case No. 1:21-cv-08840 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ambi Enterprises LLC -- https://ambi.com/ -- is part of the Pharmaceutical and Medicine Manufacturing Industry.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com AOS GROUP: Estevez Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against The AOS Group Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. The AOS Group Inc., Case No. 1:21-cv-08841-JPO (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. AOS Group -- https://aosgroup.ca/ -- provides autonomous decision making softwares.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com ASPEN SURGERY: Violated State Labor Code Violations, Suit Says -------------------------------------------------------------- Patsy Newitt at beckersasc.com reports that a class-action lawsuit was filed against Aspen Surgery Center in Walnut Creek, Calif., alleging the center violated California labor codes, the law office of Blumenthal Nordrehaug Bhowmik De Blouw, which filed the suit, said Oct. 28. The lawsuit, filed Oct. 1 in Contra Costa County, Calif., alleges the center failed to pay minimum wages, pay overtime wages, provide legally required meal and rest periods, provide accurate itemized wage statements, reimburse employees for required expenses and provide wages when due. The lawsuit also alleges Aspen Surgery Center failed to reimburse employees for required business expenses and required plaintiffs to use their personal cellular phones and personal vehicles for work. Aspen Surgery Center didn't immediately respond to a request for comment Oct. 29. This article will be updated if the center responds. [GN] AVIRA INC: Estevez Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Avira, Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Avira, Inc., Case No. 1:21-cv-08834 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Avira -- https://www.avira.com/ -- aims to protect the online world by providing security expertise and advanced antivirus software to more than 500 million customers.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com B&G FOODS: Silva "Ortega Taco" Suit Seeks to Certify Class ---------------------------------------------------------- In the class action lawsuit captioned as SABRINA SILVA and NANCY SCHIER, on behalf of themselves and all others similarly situated, v. B&G FOODS, INC. and B&G FOODS NORTH AMERICA, INC., Case No. 4:20-cv-00137-JST (N.D. Cal.), the Plaintiffs ask the Court to enter an order: 1. certifying the claims in Second Amended Complaint for class treatment; 2. appointing them class representatives; and 3. appointing the Weston Firm class counsel. Their proposed class definition is: "All citizens of California, Connecticut, the District of Columbia, Florida, Hawaii, Illinois, Massachusetts, Michigan, Missouri, Rhode Island, Vermont, and Washington, who purchased, between Jan. 1, 2010 and Dec. 31, 2016, for household or personal use, Ortega taco shell products containing partially hydrogenated oil in packaging bearing the labeling claim "0g Trans Fat!" During the Class Period, B&G promoted Ortega Taco Shells with the front-label nutrient content claim "0g Trans Fat." The claim was always an illegal nutrient content claim. The legality of the claim under this regulation is a predominating common issue. In addition to being an illegal claim, the claim was also fraudulent because B&G added trans fat to every package of Ortega. The evidence here is also common: documents showing the presence of trans fat in the products marketed as free of it, as well as internal documents and expert testimony showing the terrifying health impact of the trans fat added to Ortega Taco Shells. B&G Foods is an American holding company for branded foods. It was founded in 1889 to sell pickles, relish and condiments. A copy of the Plaintiffs' motion to certify class dated Oct. 22, 2021 is available from PacerMonitor.com at at no extra charge.[CC] The Plaintiffs are represented by: Gregory S. Weston, Esq. THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (619) 343-2789 E-mail: greg@westonfirm.com BAJCO INTERNATIONAL: Can Compel Arbitration in Valesh Wage Suit --------------------------------------------------------------- In the case, JOSEPH VALESH, Plaintiff v. BAJCO INTERNATIONAL, LLC et al., Defendants, Cause No. 4:20-CV-28 DRL-JPK (N.D. Ind.), Judge Damon R. Leichty of the U.S. District Court for the Northern District of Indiana, Lafayette Division, grants Bajco Group's motion to compel arbitration. Background Mr. Valesh claims a host of Defendants ("Bajco Group") violated the Fair Labor Standards Act and Indiana wage laws by failing to pay him minimum wage as a pizza delivery driver at Papa John's. His complaint seeks conditional certification under 29 U.S.C. Section 216(b) for similarly situated pizza delivery drivers and ultimately certification of a class action. Mr. Valesh was employed as a pizza delivery driver at Papa John's in Lafayette, Indiana from October 2017 to approximately April 2019. He applied for this position online by creating a user account and providing information through an online portal. He also used the online portal to complete his onboarding process. Although he doesn't recall being asked to agree to a binding individual arbitration agreement, the onboarding process included an "Additional Questions" page with texts on arbitration agreement. At the time Mr. Valesh onboarded, the text box required him to type his agreement into it or request for more time, which was then populated into the arbitration agreement accessible through the "Click Here" link. The agreement also contained a provision requiring all disputes to be resolved individually, and not on a class or collective basis. At the bottom of the arbitration agreement, Mr. Valesh's name and a timestamp appear in the "Employee Signature" box and "I Agree," which Mr. Valesh entered on the "Additional Questions" page, appear in the "Employee Name Printed" box. Bajco Group requests arbitration before reaching these issues. Discussion Bajco Group says a valid arbitration agreement exists, Mr. Valesh refuses to proceed to arbitration, and the scope of the arbitration agreement covers the claims here. In response, Mr. Valesh concedes the agreement's scope and confirms his opposition to arbitration, leaving nothing for the court to address on these two points. The briefs whittle the dispute down to whether a valid arbitration agreement exists -- specifically whether Bajco Group's internet-based or clickwrap arbitration agreement provided an adequate mechanism to create a contract and to confirm mutual assent to arbitration. Judge Leichty will compel arbitration. The FAA requires the "hearing and proceedings," pursuant to an agreement compelled to arbitration, "shall be within the district in which the petition for an order directing such arbitration is filed." That is the case unless an agreement contains a forum selection clause. Then "only the district court in that forum can issue a Section 4 order compelling arbitration. Otherwise, the clause of Section 4 mandating that the arbitration and the order to compel issue from the same district would be meaningless." Judge Leichty finds that the agreement required arbitration "in or near the city" in which Mr. Valesh was employed, so his order to compel appropriately secures arbitration in the district. Although the period to submit a written request for arbitration must occur before the tolling of the statute of limitations for the claim, the time accruing during this federal proceeding is excluded. Conclusion Judge Leichty grants Bajco Group's motion to compel arbitration, dismissed the case without prejudice under Rule 12(b)(3), orders the parties to proceed to arbitration, denies Mr. Valesh's request to stay arbitration, and directs the clerk to enter judgment accordingly. The Order terminates the case. A full-text copy of the Court's Oct. 19, 2021 Opinion & Order is available at https://tinyurl.com/35n589kh from Leagle.com. BAMIA 2 LLC: Faces Furtado Suit Over Failure to Timely Pay Wages ---------------------------------------------------------------- ALEX FURTADO, on behalf of himself and all others similarly situated, Plaintiff v. BAMIA 2, LLC, a California limited liability company; REEF GLOBAL, INC., a corporate form unknown; REEF TECHNOLOGY, INC., a corporate form unknown; and DOES 1-50, inclusive, Defendants, Case No. 21STCV37585 (Cal. Sup. Ct., October 13, 2021) brings this complaint against the Defendants to collect civil penalties under the Private Attorneys General Act. The Plaintiff, who has worked for the Defendants as a non-exempt hourly employee, alleges that the Defendants failed to provide him and other similarly situated aggrieved employees meal periods and rest periods, and failed to pay them one hour's pay at their regular rate of pay for each day the Defendants failed to provide them meal period and rest periods. The Defendants also failed to provide them with complete and accurate wage statements. In addition, the Defendants employed a policy and procedure of rounding the Plaintiff's and other aggrieved employees' time worked for each day worked which when aggregated, reduced the total hours worked by them. As a result, their overtime wages and minimum wages were not properly paid. Moreover, the Defendants failed to timely pay wages during employment, failed to pay all wages due to discharged and quitting employees, and failed to reimburse employees for necessary expenditures, says the Plaintiff. The Plaintiff asserts that hr sent notice to the Defendant and the Labor Workforce Development Agency (LWDA) on or about August 3, 2021 detailing the Defendant's violations. However, there was no respond from the LWDA over 65 days have passed since the postmark date of the notice. Bamia 2, LLC, Reef Global, Inc and Reef Global, Inc. The Plaintiff is represented by: Danny Yadidsion, Esq. Patrick D. Martinez, Esq. LABOR LAW PC 100 Wilshire Blvd., Suite 700 Santa Monica, CA 90401 Tel: (310) 494-6082 E-mail: Danny@LaborLawPC.com Patrick.Martinez@LaborLawPC.com BAYER AG: Court Refuses to Dismiss Sheet Metal Workers Suit ----------------------------------------------------------- In the case, SHEET METAL WORKERS NATIONAL PENSION FUND, et al., Plaintiffs v. BAYER AKTIENGESELLSCHAFT, et al., Defendants, Case No. 20-cv-04737-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California denied the Defendants' motion to dismiss the complaint. Background The putative class action alleges violations of the Securities Exchange Act of 1934 in relation to Bayer's acquisition of Monsanto. The Plaintiffs aver that the Defendants made misstatements concerning the acquisition and concerning glyphosate, the active ingredient in Monsanto's herbicide Roundup. On July 15, 2020, City of Grand Rapids General Retirement System and City of Grand Rapids Police & Fire Retirement System filed a class complaint in the Court against Bayer and the individual defendants, all of whom serve or previously served as executives and as members of Bayer's Board of Management or Supervisory Board. On Oct. 21, 2020, the Court appointed the Sheet Metal Workers National Pension Fund and International Brotherhood of Teamsters Local No. 710 Pension Fund as the Lead Plaintiff pursuant to the PSLRA. On Jan. 19, 2021, the Plaintiffs filed an Amended Class Action Complaint. The Complaint asserted claims under Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. Sections 78j(b) and 78t(a), and the rules and regulations promulgated under the Exchange Act, including Securities and Exchange Commission ("SEC") Rule 10b-5, 17 C.F.R. Section 240.10b-5. These claims stem from Bayer's acquisition of Monsanto. Bayer made an offer to acquire Monsanto in May 2016 and signed a merger agreement with Monsanto in September 2016. The two companies closed the acquisition in June 2018. Acquiring Monsanto expanded Bayer's agrochemical business, but also came with risks. Before, during, and after the acquisition, Monsanto was, and remains today, embroiled in litigation alleging that the chemical glyphosate, the active ingredient in Monsanto's Roundup product, causes cancer. Bayer maintains that it conducted due diligence as to Monsanto's operations, including the legal risks associated with the acquisition. In the months after the acquisition closed, lawsuits against Monsanto concerning glyphosate reached trial, resulting in verdicts against Monsanto and damages of $78 million and $80 million in the first two trials. These verdicts spurred more lawsuits, and many were consolidated via the multi-district litigation process in the Northern District of California. When Bayer announced in June 2020 that it would pay up to $10.9 billion in a global settlement for current and future Roundup claims, the presiding judge indicated that he was unlikely to approve the settlement as to future claims. Following the merger, Bayer's American deposit receipts dropped in price significantly. The complaint was filed on July 15, 2020, just days after the judge indicated he would likely not approve the settlement, and avers that over a four-year period, from May 2016 to June 2020, the Defendants made dozens of false or misleading statements. In their complaint, the Plaintiffs aver that the Defendants deceived investors about lapses in Bayer's due diligence before pursuing a merger with Monsanto, the safety of glyphosate, and Bayer's accounting for legal liability concerning glyphosate. The Defendants move to dismiss for failure to plead falsity, scienter, and loss causation. The Defendants' alleged misleading statements fall into three categories: statements about Bayer's due diligence when acquiring Monsanto, statements concerning the safety of glyphosate, and the accounting for legal risks related to Roundup. Discussion The Defendants argue that the Plaintiffs' claims are grounded in fraud-by-hindsight, and that the Plaintiffs' claim under Section 10(b) of the Exchange Act should be dismissed for failure to plead falsity, scienter, and loss causation. The Defendants also argue that the Plaintiffs' claim under Section 20(a) of the Exchange Act should be dismissed because the Section 10(b) claim fails. Judge Seeborg concludes that although the Plaintiffs have adequately pled falsity and scienter as to Bayer's due diligence efforts, they have not done so as to statements concerning the safety of glyphosate and accounting for legal risks related to Roundup. Further, the Plaintiffs have adequately pled loss causation, but not all of the pled corrective disclosures qualify as such. Despite these shortcomings, the Plaintiffs have successfully pled claims under Sections 10(b) and 20(a) of the Exchange Act. Disposition For the foregoing reasons, Judge Seeborg denied the Defendants' motion. Although not all of the Plaintiffs' pled misstatements meet the pleading standards for falsity or scienter, the Plaintiffs have adequately stated a claim under Section 10(b) of the Exchange Act. As the Plaintiffs have adequately pled an underlying violation of the Exchange Act, the motion to dismiss as to the Plaintiffs' Section 20(a) claims is also denied. While the motion to dismiss is denied, certain theories Plaintiffs have advanced under the 10(b) claim are not viable, and therefore unless and until the Plaintiffs successfully amend the Complaint those theories are foreclosed as the case moves forward. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/37nw4vv7 from Leagle.com. BAYPORT CREDIT: Barker Seeks Briefing Sched for Class Certification ------------------------------------------------------------------- In the class action lawsuit captioned as IRWIN BARKER, individually, and on behalf of all others similarly situated, v. BAYPORT CREDIT UNION, and DOES 1-100, Case No. 2:20-cv-00195-RCY-LRL (E.D. Va.), the Plaintiff asks the Court to enter an order setting a briefing schedule for class certification and amending the Scheduling Order to provide an extension for the parties to file dispositive motions, including motions for summary judgment. A copy of the Plaintiff's motion dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3Czs4Bk at no extra charge.[CC] The Attorneys for Plaintiff Irwin Barker, and the Putative Class, are: Jeffrey A. Breit, Esq. Justin M. Sheldon, Esq. Breit Cantor Grana Buckner 7130 Glen Forest Drive, Ste. 400 Richmond, VA 23226 Telephone: (757) 622-6000 Facsimile: (757) 299-8022 E-mail: jeffrey@breitcantor.com - and - Richard D. McCune, Esq. David C. Wright, Esq. Emily J. Kirk, Esq. MCCUNE WRIGHT AREVALO, LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Telephone: (909) 557-1275 Facsimile: (909) 557-1275 E-mail: rdm@mccunewright.com dcw@mccunewright.com ejk@mccunewright.com BEAUTY FX SPA: Tatum-Rios Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Beauty FX Spa Inc., et al. The case is styled as Lynnette Tatum-Rios, individually and on behalf of all other persons similarly situated v. Beauty FX Spa Inc., BF Townhouse LLC doing business as: BeautyFix, Case No. 1:21-cv-08825 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. BeautyFix -- https://www.beautyfixmedspa.com/ -- is one of the best NYC-based med spas that offer simple, safe, nonsurgical treatments to help rejuvenate your natural beauty, with no downtime.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com BELLA ROSE: Estevez Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Bella Rose Passion Essentials LLC. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Bella Rose Passion Essentials LLC, Case No. 1:21-cv-08845 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bella Rose Passion -- https://www.bellarosepassion.com/ -- has Quality ingredients, beauty & lifestyle brand.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com BIRD RIDES: Anderson Slams Misclassification, Illegal Termination ----------------------------------------------------------------- Deborah Anderson, on behalf of herself and all others similarly situated, Plaintiff, v. Bird Rides Inc. and Does 1 to 100, inclusive, Defendants, Case No. 21STCV39109 (Cal. Super., October 22, 2021), seeks unpaid wages and interest thereon for failure to pay for all hours worked and minimum wage rate, statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest under California Labor Code, Unfair Competition Law of the California Business and Professions Code and applicable Industrial Welfare Commission Wage Orders. Bird Rides, Inc. is a micromobility company specializing in electric scooter rental services where Anderson was employed as a Fleet Manager where he earned piece rate pay and commissions. She claims to be misclassified as an independent contractor and was terminated for complaining. [BN] Plaintiffs are represented by: James R. Hawkins, Esq. Christina M. Lucio, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 Email: James@Jameshawkinsaplc.com Christina@Jameshawkinsaplc.com BP EXPLORATION: Dismissal of Moore Claims in BELO Suit Upheld ------------------------------------------------------------- In the cases, IN RE: DEEPWATER HORIZON, DARLEEN MOORE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SANDRA MORSE, Plaintiff-Appellant v. BP EXPLORATION; PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY, Defendants-Appellees, IN RE: DEEPWATER HORIZON, BARRY DUMOULIN, Plaintiff-Appellant v. BP EXPLORATION; PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY, Defendants-Appellees, IN RE: DEEPWATER HORIZON, JUDY JONES, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HUGH LEE JONES, JR., Plaintiff-Appellant v. BP EXPLORATION; PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY, Defendants-Appellees, Case No. 20-30673, Consolidated With Nos. 20-30675, 20-30729 (5th Cir.), the Court of Appeals for the Fifth Circuit affirms the district court's dismissal of the Appellants' claims against BP Exploration and Production, Inc., stemming from the Deepwater Horizon oil spill in 2010. Background The Deepwater Horizon oil spill prompted hundreds of claims, which were ultimately assigned to the Honorable Carl J. Barbier as part of a multi-district litigation ("MDL"). The appeal concerns the claims for personal injuries resulting from spill-related exposures. In 2012, BP and the class counsel entered into the Medical Benefits Class Action Settlement Agreement, which the court approved. The Settlement Agreement provided two procedures for the class members to seek recovery for physical conditions allegedly caused by the spill or related activities -- the second of which is relevant to the appeal. For class members who alleged physical conditions that were diagnosed after April 16, 2012, the Settlement Agreement established an exclusive remedy: The Back-End Litigation Option ("BELO"). The BELO process required class members to submit a Notice of Intent ("NOI") to the claims administrator prior to filing a lawsuit. The claims administrator had to transmit compliant NOIs to BP within ten days of receipt and BP was then required to decide within thirty days whether to mediate the claim. In cases in which BP decided not to mediate the claim, the class members were given six months to file their BELO lawsuits. Where this final timing requirement was not met, the class members released their claims. Of those who pursued the BELO process, three class members -- Darleen Moore, Barry Dumolin, and Judy Jones -- confronted issues with these requirements. Moore submitted her NOI on March 16, 2018; Dumolin submitted his on Feb. 14, 2018; and Jones submitted hers on Feb. 15, 2018. BP decided not to mediate any of the three claims, and it contends that the claims administrator issued all three notices of BP's elections on Nov. 2, 2018. BP also contends that electronic copies of these notices were uploaded to the claim administrators' online Attorney Portal on or around the same day. BP asserts that this triggered the six-month clock for filing the BELO lawsuits. The class members, on the other hand, claim that they received the notices on January 27, 2020 and March 23, 2020. Accordingly, Moore, Dumolin, and Jones argue that their lawsuits were timely filed on June 22, 2020 and July 13, 2020. Following the filing of these lawsuits, BP filed motions to dismiss on the grounds that the lawsuits were untimely and that equitable tolling did not apply. The magistrate judge issued a report and recommendation, recommending that the district court grant BP's motion and dismiss the class members' complaints with prejudice. The district court adopted the magistrate judge's report and recommendation and so dismissed the complaints. Moore, Dumolin, and Jones timely appealed. Discussion A. The principal issue on appeal concerns the timing of the notices indicating that BP decided not to mediate. If, as the class members impliedly contend, the issuance of the notices alone was insufficient to put them on notice of BP's election, then dismissal of the class members' complaints was inappropriate at the 12(b)(6) stage. However, if the issuances themselves were sufficient to put the class members on notice, then the class members' complaints about the dates of receipt are irrelevant. The Fifth Circuit need not delve into interpretation of the terms of the Settlement Agreement because the parties had both constructive and actual knowledge of the November 2 notices at least a year prior to filing suit. In addition to the notices issued by first-class mail on November 2, electronic copies were uploaded to the claim administrators' online Attorney Portal on or around the same day. None of the Plaintiffs alleged that their counsel did not have access to the Attorney Portal nor that their counsel attempted, but were unable, to access the notices. In addition, the Plaintiffs conceded knowledge of the Nov. 2, 2018, notices in June 2019 -- more than a year prior to filing suit in June and July of 2020. The Fifth Circuit holds that the Plaintiffs had knowledge of the November 2 notices over six months prior to filing suit; thus, their complaints are untimely. B. This leaves one remaining issue: Whether equitable tolling should have applied to the class members' claims. As best as can be discerned from the class members' brief, they contend that -- because the notices were posted on an online portal rather than placed in the mail -- the six-month deadline for filing their BELO complaints should have been equitably tolled. The Fifth Circuit holds that the class members make much of the district court's alleged error in reviewing materials unsuited for Rule 12(b)(6) review. But, they have not made a single allegation that they exercised diligence in pursuing their rights. Neither their complaints nor their briefs assert that they made any conscientious effort to comply with the six-month deadline set forth in the Settlement Agreement. Thus, as it is plain from the face of their complaints that they cannot plausibly satisfy the element for equitable tolling requiring diligence, the Fifth Circuit need not analyze whether extraordinary circumstances prevented them from timely filing. Therefore, the district court did not err in finding that the deadline for filing the BELO complaints was not equitably tolled. Conclusion It has said before that, to invoke equitable tolling and survive a motion under Rule 12(b)(6), a party must make some minimal effort to apprise the District Court of facts which would justify such an exceptional step. A complaint, time-barred on its face, cannot serve as a fishing pole to discover down the road some reason which that party can use to justify his failure to obey the rules. The class members failed to satisfy this edict. Accordingly, the Fifth Circuit affirms the decision of the district court. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/3cvtu65v from Leagle.com. BROADRIDGE FINANCIAL: Valle Sues Over Unpaid Overtime Wages ----------------------------------------------------------- MILAGROS VALLE, individually and on behalf of herself and all others similarly situated, Plaintiff v. BROADRIDGE FINANCIAL SOLUTIONS, INC., Defendant, Case No. 2:21-cv-18546 (D.N.J., October 13, 2021) is a class and collective action complaint brought against the Defendant seeking all available remedies under the Fair Labor Standards Act and the New Jersey Wage and Hour Law. The Plaintiff has worked for the Defendant as a Day Rate Worker in the position of "Project Manager" from April 2020 to present. According to the complaint, the Defendant has employed a policy and patterns or practice of intentionally, willfully, and repeatedly failing to pay its employees premium overtime compensation for all hours they have worked in excess of 40 per workweek. Broadridge Financial Solutions, Inc. provides a broad array of communication and technology services including mailing and printing services to companies around the globe. [BN] The Plaintiff is represented by: Joseph A. Fitapelli, Esq. Dana M. Cimera, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty St., 30th Floor New York, NY 10005 Tel: (212) 300-0375 E-mail: jfitapelli@fslawfirm.com dcimera@fslawfirm.com - and – Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 E-mail: rburch@brucknerburch.com BUFFETT SENIOR: Settlement in Ziegler Class Suit Wins Final Nod --------------------------------------------------------------- In the class action lawsuit captioned as ROBERT A. ZIEGLER; GARTH YATES, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, v. RICHARD P. DALE, JR.; BUFFETT SENIOR HEALTHCARE CORP.; SENIOR HEALTHCARE PARTNERS, INC.; RJR INSURANCE SERVICES, INC., Case No. 1:18-cv-00071-SWS (D. Wyo), the Hon. Judge Scott W. Skavdahl entered an order: 1. granting final approval to the Parties' Rule 23 settlement; 2. granting final certification of the Rule 23 class for purposes of settlement; 3. approving the Class Representatives' service awards; and 4. approving Class Counsel's request for attorneys' fees and costs. The Court certifies the following class for purposes of settlement: "All purchasers of $1299 or $1599 lifetime My Senior Healthcare Partners plans with air ambulance benefits." The Court finds that the Settlement Agreement meets the requirements for final approval pursuant to Fed. R. Civ. P. and orders that the Settlement be completed in accordance with its terms. The Court finds that Class Members were given adequate notice and a fair and reasonable opportunity to object or opt out. No Class Member objected to or opted out of the Settlement. This Order is binding on all Class Members. The Court further approves the releases provided in the Settlement Agreement. The Released Claims are compromised, settled, released, and dismissed with prejudice by virtue of this Order. The Court dismisses this action with prejudice and reserves jurisdiction with respect to future performance of the terms of the Settlement Agreement and enforcement of the agreed injunction addressed by separate order. The Plaintiff Robert Ziegler filed this case on May 3, 2018, alleging that the Defendants marketed and sold benefit plans called My Senior Healthcare Partners ("MySHP") plans to elderly citizens that did not contain the benefits the plans promised. The Plaintiff filed this case as a class action, on behalf of himself and the putative class of "all persons in the United States who purchased one-time payment MySHP policies with MASA benefits, for life, plus a beneficiary," and he named all four Defendants presently in this action. The Complaint asserted causes of action for fraud, breach of contract, breach of the implied duty of good faith and fair dealing, and unjust enrichment. The Plaintiffs allege that Defendants' sale of MySHP plans to senior citizens contained illusory air ambulance benefits, for the life of the purchaser (and spouse, if applicable), plus a beneficiary. In addition to air ambulance, MySHP plans advertise various benefits, from prescription drugs to pet medications, e- cigarettes, and nutritional supplements. A purchaser could select one or more of these benefits for a small monthly fee (either $10 or $30 depending on the chosen benefit), or all of them for $99 per month for an individual plus a beneficiary or $129 per month for two individuals plus a beneficiary. Alternatively, for one time payments of $1299, or $1599 to add a spouse, a MySHP purchaser could obtain all benefit options, including air ambulance benefits, for life, plus a beneficiary to inherit those benefits for their lifetime. The Settlement amount consists of a non-reversionary common fund of $510,000, distributed as follows: -- $296,749 for distribution to Class Members; -- $166,667 for attorneys' fees; -- $26,584 for litigation expenses; -- $10,000 for incentive payments to Plaintiffs, $5,000 each; and -- $10,000 for payment to the Settlement Administrator. A copy of the Court's order dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3mty0pR at no extra charge.[CC] C.H. ROBINSON: JMR Seeks to Certify Class of Growers ---------------------------------------------------- In the class action lawsuit captioned as JMR FARMS, INC, et al., individually and on behalf of all others similarly situated, v. C.H. ROBINSON WORLDWIDE, INC., et al., Case No.: 20-cv-879 (PJS/HB), Case No. 0:20-cv-00879-PJS-HB (D. Minn.), the Plaintiffs Bonne Idee Produce, LLC and Bowles Farming Company, Inc. ask the Court to enter an order: 1. certifying this case as a class action under Fed. R. Civ. P. 23(a) and (b)(3) oin behalf of: "All growers (as that term is defined by 7 C.F.R. section 46.2(p)) in North, Central or South America, for whom CHR, as exclusive sales agent, procured surface transportation and sold growers’ produce in U.S. commerce on a commission basis in one or more growing seasons for the applicable statute of limitations to the date the Court authorizes class notice;" and 2. designating Plaintiffs Bonne Idee Produce, LLC and Bowles Farming Company, Inc., as the Class Representatives and the law firm of Paul LLP as Class Counsel. The class consists of approximately 270 produce growers, and thus easily meets the "numerosity" requirement of Rule 23(a)(1). The Plaintiffs and putative class members are farmers who grow the fresh produce we buy in grocery stores. In 1930, Congress passed the Perishable Agricultural Commodities Act ("PACA"), U.S.C. sections 499a et seq., to protect produce growers from "sharp practices" by middlemen leveraging the perishable nature of produce. This case seeks to remedy Defendants’ violations of this bedrock legislation. Bonne Idee is part of the vegetable and melon farming industry. Bowles Farming Company is a family owned and operated farming operation located near Los Banos in the Central Valley of California. C.H. Robinson is an American Fortune 500 provider of multimodal transportation services and third-party logistics. The company offers freight transportation, transportation management, brokerage and warehousing. It offers truckload, less than truckload, air freight, intermodal, and ocean transportation. A copy of the Plaintiff's motion to certify class dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3pV0rPM at no extra charge.[CC] The Plaintiff is represented by: Richard M. Paul II, Esq. Ashlea G. Schwarz, Esq. Laura C. Fellows, Esq. PAUL LLP 601 Walnut Street, Suite 300 Kansas City, MO 64106 Telephone: (816) 984-8100 E-mail: Rick@PaulLLP.com Ashlea@PaulLLP.com Laura@PaulLLP.com - and - Craig A. Stokes, Esq. STOKES LAW OFFICE LLP 3330 Oakwell Court, Suite 225 San Antonio, TX 78218 Telephone: (210) 804-0011 E-mail: cstokes@stokeslawoffice.com - and - Jennifer Neal, Esq. Francisco Guerra, IV, Esq. Mark Fassold, Esq. WATTS GUERRA LLP Four Dominion Drive Building 8, Suite 100 San Antonio, TX 78257 Telephone: (210) 447-0500 E-mail: Jneal@wattsguerra.com Fguerra@wattsguerra.com Mfassold@wattsguerra.com - and - Robert A. Pollom, Esq. THE LAW OFFICES OF ROBERT A. POLLOM, PLLC 16500 San Pedro Avenue, 3rd Floor San Antonio, TX 78232 Telephone: (210) 490-4357 E-mail: Robert@krwlawyers.com CALVERT'S EXPRESS: Fails to Pay Proper Wages, Heitzman Alleges -------------------------------------------------------------- JEREMY HEITZMAN, individually and on behalf of all others similarly situated, Plaintiff v. CALVERT'S EXPRESS AUTO SERVICE & TIRE, LLC, Defendant, Case 4:21-cv-00767-FJG (W.D. Mo., Oct. 21, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Heitzman was employed by the Defendant as shop manager. CALVERT'S EXPRESS AUTO SERVICE & TIRE, LLC offers auto repair services. [BN] The Plaintiff is represented by: Thomas E. Kennedy, III, Esq. Sarah Jane Hunt, Esq. KENNEDY HUNT P.C. 4500 West Pine Blvd. St. Louis, MO 63108 Telephone: (314) 872-9041 Facsimile: (314) 872-9043 Email: tkennedy@kennedyhuntlaw.com sarahjane@kennedyhuntlaw.com -and- Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 Email: clif@a2xlaw.com austin@a2xlaw.com CAMBER ENERGY: Pomerantz Law Discloses Securities Class Action -------------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Camber Energy, Inc. ("Camber" or the "Company") (NYSE: CEI) and certain of its officers. The class action, filed in the United States District Court for the Southern District of Texas, Houston Division, and docketed under 21-cv-03574, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise, acquired Camber securities between February 18, 2021 and October 4, 2021, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Camber securities during the Class Period, you have until December 28, 2021 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Camber is an independent oil and natural gas company that acquires, develops, and sells crude oil, natural gas, and natural gas liquids. The Company's common stock trades on the NYSE American ("NYSE") under the ticker symbol "CEI". In December 2020, Camber acquired a controlling interest in Viking Energy Group, Inc. ("Viking"), a purported independent exploration and production company. Then, in February 2021, Camber executed a definitive merger agreement with Viking to effect the full combination of the two entities (the "Merger"). Throughout 2021, Camber has failed to timely file required financial statements with the U.S. Securities and Exchange Commission ("SEC"). As a result, financial reporting services such as Yahoo! Finance and Bloomberg were forced to rely on infrequent and outdated updates in SEC filings to estimate the Company's shares of common stock issued and outstanding. For example, before a recent update by the Company on October 6, 2021, the widely-reported estimate of the Company's shares of common stock issued and outstanding amounted to 104.2 million, which itself was based on a filing the Company made with the SEC on July 12, 2021. When the Company provided an update on October 6, 2021, it reported 249.6 million shares of stock issued and outstanding, a significantly higher figure. The complaint alleges that, throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Camber overstated the financial and business prospects of Viking as well as the combined company post-Merger; (ii) Camber failed to apprise investors of, and/or downplayed, the fact that its acquisition of a controlling interest in Viking would exacerbate the Company's delinquent financial statements and listing obligations with the NYSE; (iii) an institutional investor was diluting Camber's shares at a significant rate following the Company's July 12, 2021 update regarding the number of its shares of common stock issued and outstanding; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. On May 24, 2021, Viking filed a quarterly report on Form 10-Q with the SEC, reporting the Company's financial and operating results for the quarter ended March 31, 2021. That quarterly report disclosed, among other results, first-quarter earnings per share ("EPS") of -$0.13 under generally accepted accounting principles ("GAAP"), compared to GAAP EPS of $1.39 in the same quarter the year prior, representing a 109.35% decrease year-over-year ("Y/Y"), and first-quarter revenue of $10.49 million, compared to revenue of $11.79 million in the same quarter the year prior, representing an 11% decrease Y/Y. Later that day, Camber issued a press release disclosing that, on May 21, 2021, the NYSE had notified the Company that it was not in compliance with the NYSE's continued listing standards because of, inter alia, "issues that have arisen in connection with . . . finalizing the determination of the fair values of both assets and liabilities associated with the Company's acquisition of a controlling interest in Viking . . . in December of 2020[.]" Following Viking's reported first-quarter 2021 results, Camber's stock price fell $0.02 per share, or 3.17%, to close at $0.61 per share on May 24, 2021. Camber's stock price continued to decline by an additional $0.04 per share, or 6.56%, to close at $0.57 per share the following day as the market continued to digest Viking's first quarter 2021 results, as well as Camber's non-compliance notice from the NYSE. Then, on August 16, 2021, Viking filed a quarterly report on Form 10-Q with the SEC, reporting its financial and operating results for the quarter ended June 30, 2021. That quarterly report disclosed, among other results, a net loss of $9.85 million for the quarter, and that, "[a]s of June 30, 2021, [Viking] has a stockholders' deficit of $15,054,324 and total long-term debt of $95,961,611." On this news, Camber's stock price fell $0.03 per share, or 6.98%, to close at $0.57 per share on May 25, 2021. Finally, on October 5, 2021, Kerrisdale Capital released a report alleging, among other issues revealed in earlier disclosures, 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 stock price fell $1.56 per share, or 50.49%, to close at $1.53 per share on October 5, 2021. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com. [GN] CAMBER ENERGY: Rosen Law Reminds of December 28 Deadline -------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of Camber Energy, Inc. (NYSE American: CEI) between February 18, 2021 and October 4, 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 28, 2021. SO WHAT: If you purchased Camber 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 Camber class action, go to http://www.rosenlegal.com/cases-register-2170.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 28, 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) Camber overstated the financial and business prospects of Viking Energy Group, Inc. ("Viking") as well as the combined company post-merger; (2) Camber failed to apprise investors of, and/or downplayed, the fact that its acquisition of a controlling interest in Viking would exacerbate the Company's delinquent financial statements and listing obligations with the NYSE; (3) an institutional investor was diluting Camber's shares at a significant rate following the Company's July 12, 2021 update regarding the number of its shares of common stock issued and outstanding; 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 Camber class action, go to http://www.rosenlegal.com/cases-register-2170.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/20211029005566/en/ [GN] CARBON HEALTH: Olsen Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Carbon Health Technologies, Inc. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated v. Carbon Health Technologies, Inc. doing business as: Carbon Health, Case No. 1:21-cv-08822 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Carbon Health -- https://carbonhealth.com/ -- provides smart, hassle-free primary & urgent care.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com CBRE GROUP: California Appeals Court Affirms Judgment in Woods Suit ------------------------------------------------------------------- The Court of Appeals of California for the First District, Division Five, affirms the trial court's ruling in the case, MELISSA WOODS, Plaintiff and Appellant v. CBRE GROUP, INC., Defendant and Respondent, Case No. A160477 (Cal. App.). Melissa Woods (Plaintiff) appeals from the trial court's ruling in favor of Defendant CBRE Group, Inc. (CBRE Group) on her claim pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, Section 2698, et seq.). Background In 2014, the Plaintiff filed a class action lawsuit against CBRE Group, claiming CBRE Group was her former employer, alleging various Labor Code violations, and seeking PAGA penalties. The trial court dismissed the class claims, compelled arbitration of the Plaintiff's individual Labor Code claims, and stayed the PAGA claim pending arbitration. Over a year and a half later, the trial court issued an order to show cause why the action should not be dismissed after the Plaintiff failed to file a case management statement regarding the status of the arbitration. As it turns out, the arbitration had not yet commenced; CBRE Group submitted evidence that it had unsuccessfully attempted to contact the Plaintiff to discuss selection of an arbitrator. Nearly two years after the individual claims were ordered to arbitration, the trial court appointed an arbitrator. In March 2017, the arbitrator issued an order to show cause why the arbitration should not be dismissed for want of prosecution after neither Plaintiff nor her counsel appeared at an arbitration management conference. Ultimately, the arbitrator awarded the Plaintiff a total of $504 plus interest. The arbitrator also awarded the Plaintiff attorney fees and costs "upon proper application," but she never so applied. Six months after the arbitration award issued, the trial court again issued an order to show cause why the action should not be dismissed for failure to file a case management statement regarding the arbitration status. Two months later, the court issued another such order for the same reason, stating it would dismiss the case if the Plaintiff did not appear at the next hearing. In the spring of 2019, a year and a half after the arbitration award issued, litigation of the PAGA claim resumed. At trial, the Plaintiff submitted the arbitration award and her complaint as exhibits, but presented no witnesses or other evidence. The trial court ruled in favor of CBRE Group and issued judgment. Discussion The Plaintiff argues that the arbitrator's decision on the issue is binding in the PAGA litigation. The arbitrator found that the Plaintiff "has named the wrong party in the matter, (CBRE Group, Inc. rather than CBRE, Inc.)," but concluded the error "falls under the 'misnomer rule' that permits corrective amendment under these circumstances" and "deemed the claim in arbitration to be made against CBRE, Inc." Even assuming the arbitrator's decision that the misnomer rule applies is binding on the trial court, the Court of Appeals opines that the Plaintiff has failed to demonstrate error. The misnomer rule provides, "where an amendment does not add a 'new' defendant, but simply corrects a misnomer by which an 'old' defendant was sued, case law recognizes an exception to the general rule of no relation back." Inexplicably, the Plaintiff does not claim (much less demonstrate with record evidence) that she ever sought leave to amend her complaint to add CBRE, Inc. as a defendant. Nor does she provide authority that under the misnomer rule or any other basis the trial court was compelled to add CBRE, Inc. on its own motion. Had the Plaintiff sought leave to amend her complaint when she first determined that CBRE, Inc. was her former employer -- or at any subsequent time during the years of litigation -- the Court of Appeals suspects leave would have been granted. But the Plaintiff cannot fail to seek such leave and hope the trial court, or the Court of Appeals, will ignore her error. Disposition The judgment is affirmed. The Respondent will recover its costs on appeal. A full-text copy of the Court's Oct. 19, 2021 Opinion is available at https://tinyurl.com/pym7wmhe from Leagle.com. CENTURY DEVELOPMENT: Fails to Pay Proper Wages, Borshchevskiy Says ------------------------------------------------------------------ SERGIY BORSHCHEVSKIY, individually and on behalf of all others similarly situated, Plaintiff v. CENTURY DEVELOPMENT PROPERTIES LLC, FRED OHEBSHALOM, and RICHARD OHEBSHALOM, Defendants, Case No. 1:21-cv-08625 (S.D.N.Y., Oct. 20, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Borshchevskiy was employed by the Defendants as front desk doorman. CENTURY DEVELOPMENT PROPERTIES LLC owns and operates a private managing buildings business firm involved in the ownership, management, and development of numerous properties. [BN] The Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL, PC 42 Broadway, 12th Floor New York, NY 10004 Telephone: (212) 203-2417 CHASE DENNIS: Amendment of Class Status Briefing Schedule Sought ---------------------------------------------------------------- In the class action lawsuit captioned as JULIE SAMORA, individually and on behalf of others similarly situated and aggrieved, v. CHASE DENNIS EMERGENCY MEDICAL GROUP, INC., a California corporation; TEAM HEALTH HOLDINGS, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Case No. 5:20-cv-02027-BLF (N.D. Cal.), the Parties submit stipulation to amend class certification briefing schedule as follows: 1. Defendants' Opposition Brief due: December 24, 2021; 2. The Plaintiff's Reply Brief due: February 18, 2022; and 3. Hearing on Plaintiff's Motion for Class Certification (already set): March 3, 2022. On October 15, 2021, the Plaintiff filed her motion for class certification. On October 20, 2021, Plaintiff filed her amended motion for class certification with the same declarations previously filed in support thereof. On that same day, the Defendants' counsel reached out to Plaintiff's counsel seeking dates for depositions of Plaintiff's putative class declarants as well as Plaintiff's experts and proposed an extension of the briefing schedule on the motion for class certification in order to conduct depositions and to participate in mediation without unnecessary additional litigation. Chase Dennis is a provider established in Santa Rosa, California specializing in emergency medicine. Team Health provides professional services. The Company offers staffing, administrative support and management services. A copy of the Parties' motion dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3nJNLIH at no extra charge.[CC] The Plaintiff is represented by: Matthew J. Matern, Esq. Joshua D. Boxer, Esq. Sara B. Tosdal, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 E-mail: mmatern@maternlawgroup.com jboxer@maternlawgroup.com stosdal@maternlawgroup.com The Defendants are represented by: Jonathan L. Brophy, Esq. Michael Afar, Esq. Sofya Perelshteyn, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: jbrophy@seyfarth.com mafar@seyfarth.com sperelshteyn@seyfarth.com CITGO PETROLEUM: Lucas Sues Over Unpaid Minimum, Overtime Wages --------------------------------------------------------------- William Lucas, individually and on behalf of all others similarly situated v. Citgo Petroleum Corporation, a Delaware Corporation, Case No. 1:21-cv-05770 (M.D. Ill., Oct. 28, 2021), is brought under the Fair Labor Standards Act, Illinois Minimum Wage Law, Illinois Wage Payment and Collection Act for the Defendant's failure to pay the Plaintiff and other similarly-situated employees all earned minimum and overtime wages. The Plaintiff regularly worked in excess 40 hours in a given workweek. The Plaintiff was also paid according to a nondiscretionary bonus compensation plan wherein the Plaintiff received a "shift differential" which operates as an increased hourly wage that the Plaintiff is paid for working on less desirable or high demand shifts. The shift differential bonus compensation paid to Plaintiff, the Collective Members and the IMWL Class Members was non-discretionary. When the Plaintiff worked in excess of forty hours per week, the Defendant paid him only one and one-half times his base hourly wage as overtime compensation and Citgo did not include the Plaintiff's nondiscretionary bonus pay as part of his regular rate of pay for the purpose of computing overtime. The Defendant failed to include this non-discretionary bonus income in his regular rate of pay for the purposes of computing the Plaintiff's overtime wage during each and every work week in which the Plaintiff worked in excess of 40 hours, says the complaint. The Plaintiff was employed by Citgo as a maintenance mechanic from February, 2008 through May 31, 2021. Citgo transforms crude oil into energy products at its refineries located in Lemont, Illinois; Corpus Christi, Texas and Lake Charles, Louisiana.[BN] The Plaintiff is represented by: Michael L. Fradin, Esq. 8401 Crawford Ave. Ste. 104 Skokie, IL 60076 Phone: 847-986-5889 Facsimile: 847-673-1228 Email: mike@fradinlaw.com - and - James L. Simon, Esq. THE LAW OFFICES OF SIMON & SIMON 5000 Rockside Road Liberty Plaza – Suite 520 Independence, OH 44131 Phone: (216) 525-8890 Email: james@bswages.com CITIZENS DISABILITY: Heather Gaker Seeks Class Certification ------------------------------------------------------------ In the class action lawsuit captioned as HEATHER GAKER, an individual; on behalf of herself and all others similarly situated, v. CITIZENS DISABILITY, LLC, Case No. 1:20-cv-11031-AK (D. Mass.), the Plaintiff submits her motion for class certification against Defendant Citizens Disability, LLC. The Plaintiff Gaker seeks to be certified as class-representative for the following class: "and any all persons in the United States, who from May 29 2016 until of the date of the Order granting class certification, had registered his or her landline, wireless, cell or mobile telephone number on the National Do-Not Call Registry for at least 31 days, and had his or her telephone number called by Citizens Disability or sometime acting on its behalf on two or more occasions during a 12-month period, where Citizens Disability obtained the person's contact information through a website operated by Digital Media Solutions purported to offer a "sweepstakes." The Plaintiff also moves for Craig Thor Kimmel, Esq. and Jacob U. Ginsburg, Esq. of Kimmel & Silverman, PC to be approved as class counsel. Citizens Disability is a Social Security disability advocacy group. A copy of the Plaintiff's motion to certify class dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3msP4we at no extra charge.[CC] The Attorneys for Plaintiff Heather Gaker and others Similarly Situated, are: Craig Thor Kimmel, Esq. Jacob U. Ginsburg, Esq. KIMMEL & SILVERMAN, P.C. 30 East Butler Ave. Ambler, PA 19002 Telephone: (215) 540-8888 Facsimile: (877) 788-2864 E-Mail: kimmel@creditlaw.com jginsburg@creditlaw.com CLIF BAR: Fitzgerald Joseph LLP Appointed as Class Counsel in Milan ------------------------------------------------------------------- In the class action lawsuit captioned as RALPH MILAN and ELIZABETH ARNOLD on behalf of themselves, those similarly situated and the general public, v. CLIF BAR & COMPANY, Case No. 3:18-cv-02354-JD (N.D. Cal.), the Hon. Judge James Donato entered an order granting plaintiffs' administrative motion to amend class certification order. On October 14, 2021, the Plaintiffs filed an administrative motion to amend the order granting class certification to reflect that Fitzgerald Joseph LLP is appointed Class Counsel, rather than The Law Office of Jack Fitzgerald, PC and The Law Office of Paul K. Joseph, PC. For good cause showing, the motion is granted. Fitzgerald Joseph LLP is appointed Class Counsel, says Judge Donato. Clif Bar & Company is an American company that produces energy foods and drinks. The company's flagship product, CLIF Bar, was created by Gary Erickson and Lisa Thomas. The company is based in Emeryville, California, and is privately held. A copy of the Court's order dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3btODeY at no extra charge.[CC] COCA-COLA: Sued Over False and Misleading Marketing Practices ------------------------------------------------------------- Janie Hawkins, individually and on behalf of all others similarly situated v. The Coca-Cola Company, Case No. 7:21-cv-08788 (S.D.N.Y., Oct. 28, 2021), seeks damages and an injunction to stop the Defendant's false and misleading marketing practices with regards to its pina colada flavored soda under the Fanta brand purporting to have "100% Natural Flavors." According to the complaint, the pina colada is a cocktail made with rum, cream of coconut or coconut milk, and pineapple juice, usually served either blended or shaken with ice. The taste of a piña colada is valued so highly that it has often been associated with non-alcoholic foods, from Italian ices to cookies, and to soda. The Defendant markets the Product with the prominent statement, "100% NATURAL FLAVORS," above pictures of half a coconut and a wedge of pineapple. The Product's ingredients include "Natural Flavors" and "Malic Acid." Malic acid provides a tart and fruity taste. L-Malic Acid occurs naturally in various fruits. D-Malic Acid does not occur naturally. D-Malic Acid is most commonly found as a racemic mixture, DL-Malic Acid, which is commercially made from petroleum products. Based on laboratory analysis, the Product includes the DL-Malic Acid to improve its tart and fruity taste. Ripe pineapples contain high levels of naturally occurring malic acid. The quality and ideal taste of pineapple is determined by the balance of acid to sugar content. The Product could have used natural, L-Malic Acid, or more natural pineapple flavor. However, the Defendant used artificial DL-Malic Acid because it was likely cheaper or more accurately resembled natural flavors. The Product's front label is misleading because it states, "100% Natural Flavors." Consumers are misled by expecting the taste comes exclusively from natural flavors. Consumers are unable to learn the malic acid listed in the ingredients is the artificial version without a chemistry kit. Reasonable consumers must and do rely on a company to honestly identify and describe the components, attributes, and features of the Product, relative to itself and other comparable products or alternatives. The value of the Product that the Plaintiff purchased was materially less than its value as represented by the Defendant. The Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers. Had the Plaintiff and proposed class members known the truth, they would not have bought the Product or would have paid less for it, says the complaint. The Plaintiff purchased the Product on at least one occasion within the statutes of limitations for each cause of action. The Coca-Cola Company manufactures, packages, labels, markets, and sells pina colada flavored soda under the Fanta brand purporting to have "100% Natural Flavors."[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd., Ste. 409 Great Neck NY 11021-3104 Phone: (516) 268-7080 Email: spencer@spencersheehan.com COLONIAL PARK: $175K Class Deal in Shabazz FLSA Suit Wins Final Nod ------------------------------------------------------------------- In the case, DAAIYAH SHABAZZ, et al., Plaintiffs v. COLONIAL PARK CARE CENTER LLC d/b/a COLONIAL PARK CARE CENTER, et al., Defendants, Civil No. 1:17-CV-445 (M.D. Pa.), Magistrate Judge Martin C. Carlson of the U.S. District Court for the Middle District of Pennsylvania granted the Plaintiffs' Unopposed Motion for Final Approval of Settlement of Collective Action. On March 1, 2017, the Plaintiffs filed the Fair Labor Standards Act (FLSA) collective action brought on behalf of Certified Nursing Assistants employed by the Defendants at some 12 facilities. In their complaint, the Plaintiffs brought two wage-and-hour law violations. First, the Plaintiffs alleged that Colonial Park failed to properly calculate the regular rate of pay for CNAs. Specifically, in addition to a base hourly rate, the Plaintiff and the class members often earned shift differential wages. However, it was alleged that Colonial Park often paid employees an overtime rate of just one and one-half times their base hourly rates rather than one and one-half times their regular rates, which was often a higher rate of pay. Second, it was alleged that the Defendant unlawfully rounded time clock punches. According to the complaint, this practice of rounding the time at which employees punched the time clock to the nearest quarter-hour resulted in employees working unpaid overtime hours before and after their shifts in violation of the law. The Defendants have denied these allegations. Nonetheless over the past several years, the parties have engaged in informal discovery and extensive settlement discussion. The Court has worked closely with counsel addressing these issues and facilitating their settlement discussions. In the course of overseeing this litigation, it has been struck by the high level of skill, sophistication, talent, and tenacity displayed by all counsel. Ultimately, those arms-length negotiations culminated with the parties' agreement on the terms of a proposed collective settlement. The parties then consented to magistrate judge jurisdiction, and submitted their proposed settlement agreement to the Court for its approval, as required by the FLSA. The Cort then entered a preliminary approval order relating to this settlement and scheduled a final approval hearing for Oct. 19, 2021. The settlement agreement is embodied in an 18-page document consisting of the proposed agreement and attachments. In pertinent part, the agreement provides for the creation of a total settlement fund of $175,000. From this sum, $58,333.33, approximately 33 1/3% or 1/3 of the total sum, is set aside for attorneys' fees. The agreement also provides for reimbursement of the attorneys' out of pocket costs to date, which are minimal, approximately $802. In addition, pursuant to this agreement, the Court appointed CAC Services Group, LLC, as the claims administrator in the case for purposes of providing notice and distribution of these settlement funds to this collective, which included more than 3,400 potential members and provided for payment of CAC's reasonable fees, which reportedly total approximately $21,354.02. Once these fees and expenses are deducted, there remains more than $89,000 for distribution to members of the collective, and the settlement agreement designated $5,000 as a service payment allocation for the lead plaintiff in the case whose role in the litigation warrants service award payments. The agreement then prescribed a formula for the distribution of these remaining funds to collective members. The Court has now before it an unopposed motion for final approval of the settlement. In the motion, it is represented that the settlement administrator sent the Notice of Class and Collective Action Settlement to 3,409 class members. The Notice described the terms and conditions of the settlement, explained how the class members may opt into the collective action, object to the settlement, and how they may opt out of the Rule 23 class action. To date, the results of the notice process have been singularly positive. It is reported that only one class member has opted out and 516 individuals submitted consent forms to join the collective action. Furthermore, not a single class member has objected to the settlement, including its fees, costs, and distribution methods. Finding (1) that the terms of the settlement that resulted from an arms-length negotiation are fair, reasonable, and adequate as between the parties; and (2) that the purposes of the FLSA are fully satisfied through the proposed resolution of the specific case, Judge Carlson approved the settlement agreement. Having adjudged the terms of the Parties' Settlement Agreement to be fair, reasonable, and adequate, the Settlement Agreement is given final approval by the Court. The preliminarily certified class action for the Named Plaintiff's claim under the Pennsylvania Minimum Wage Act is granted final certification pursuant to Rule 23(a) and 23(b)(3). The preliminarily certified FLSA collective action is also granted final certification. The Claims Administrator will distribute the Settlement Payment from the escrowed funds previously paid by the Defendant pursuant to the Settlement Agreement. Judge Carlson approved (i) the Class Counsel's fee application for reasonable attorney's fees in the amount of $58,333.33 from the escrowed funds previously paid by the Defendant; (ii) the Class Counsel's application for reasonable costs in the amount of $802 from the escrowed funds previously paid by the Defendant; (iii) the requested service award of $5,000 for Named Plaintiff Daaiyah Shabazz from the escrowed funds previously paid by the Defendant is approved; and (iv) the Claims Administrator's reasonable fees of $21,354.02 from the escrowed funds previously paid by the Defendant. Employment Horizons is approved as the cy pres recipient. The case will be dismissed on the merits and with prejudice as to the claims of Named Plaintiff and all Collective and Class Action Members released by the terms of the Settlement Agreement. The Court will retain jurisdiction over the interpretation and implementation of the Settlement Agreement as well as any matters arising out of, or related to, the interpretation or implementation of the Settlement Agreement and of the settlement contemplated thereby. The clerk is directed to otherwise close the case. A full-text copy of the Court's Oct. 19, 2021 Memorandum & Order is available at https://tinyurl.com/4aw98cp3 from Leagle.com. COMMONSPIRIT HEALTH: Smith Appeals ERISA Suit Dismissal to 6th Cir. ------------------------------------------------------------------- Plaintiff Yosaun Smith filed an appeal from a court ruling entered in the lawsuit styled YOSAUN SMITH, Plaintiff v. COMMONSPIRIT HEALTH, et al., Defendants, Civil Action No. 20-95-DLB-EBA, in the U.S. District Court for the Eastern District of Kentucky at Covington. Plaintiff Smith is a former employee of Defendant CommonSpirit Health, a large, not-for-profit corporation that provides hospital services across the United States. As part of her employment with CommonSpirit, Smith paid into an employer-sponsored 401(k) plan. Acting on behalf of a putative class of similarly-situated individuals, the Plaintiff brings the action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001 et seq. ("ERISA"), alleging that the committee overseeing CommonSpirit's 401(k) retirement savings plan breached its fiduciary duty to its members by providing an inadequate selection of investment options and by allowing for unreasonable expenses to be charged for the administration of the plan. The gravamen of her Complaint is that the Defendants violated their fiduciary duties of prudence and loyalty under 29 U.S.C. Section 1104(a) by (1) selecting investment funds with higher fees and subpar performance, (2) offering an investment menu that was more expensive than that of comparable plans, and (3) allowing the Plan to pay excessive recordkeeping fees to Fidelity. The Plaintiff's allegations cover the time period from July 2, 2014 to the present. As reported in the Class Action Reporter on September 27, 2021, Judge David L. Bunning of the U.S. District Court for the Eastern District of Kentucky, Northern Division, Covington, granted the Defendants' Motion to Dismiss and dismissed the Plaintiff's Complaint with prejudice. The Plaintiff seeks a review of Judge Bunning's ruling. The appellate case is captioned as Yosaun Smith v. Commonspirit Health, et al., Case No. 21-5964, in the United States Court of Appeals for the Sixth Circuit, filed on October 14, 2021.[BN] Plaintiff-Appellant YOSAUN SMITH, Individually and as a representative of a class of similarly situated persons and on behalf of Catholic Health Initiatives 401(K) Plan, is represented by: Jeffrey S. Goldenberg, Esq. GOLDENBERG SCHNEIDER 4445 Lake Forest Drive, Suite 490 Cincinnati, OH 45242 Telephone: (513) 345-8291 E-mail: jgoldenberg@gs-legal.com Defendants-Appellees OMMONSPIRIT HEALTH, aka Catholic Health Initiatives; and CATHOLIC HEALTH INITIATIVES RETIREMENT PLANS SUBCOMMITTEE are represented by: Lars C. Golumbic, Esq. GROOM LAW GROUP 1701 Pennsylvania Avenue, N.W., Suite 1200 Washington, DC 20006 Telephone: (202) 861-6615 E-mail: lgolumbic@groom.com - and - Jennifer Orr Mitchell, Esq. DINSMORE & SHOHL 255 E. Fifth Street, Suite 1900 Cincinnati, OH 45202 Telephone: (513) 977-8200 E-mail: jennifer.mitchell@dinsmore.com COMMONWEALTH BANK: Pleads Guilty to Selling "Junk Insurance" ------------------------------------------------------------ Emilia Terzon at abc.net.au the Australian share market is wrapping up a week of trade with Commonwealth Bank admitting to selling more than 150 customers dud insurance and Crown Casino settling a class action against it CBA has pleaded guilty to 30 criminal charges against it for making false or misleading representations over consumer credit insurance (CCI). CCI is often dubbed 'junk insurance' and it has been an endemic problem in the financial sector for years. The action was brought against CBA by the corporate regulator ASIC. "We no longer sell these products and the 165 customers who are the subject of these proceedings have been sent compensation," the bank said in a statement. "We reiterate our apology to customers who were affected by these issues. This conduct was unacceptable." The bank had already joined 10 other financial institutions in stumping up $380 million for 825,400 customers as part of a major remediation program implemented by ASIC after the banking royal commission. CBA is also being pursued as part of a class against over CCI, along with ANZ and Westpac. NAB has already settled. Westpac's also being pursued by ASIC over this sort of insurance. CBA's stock closed down 2 per cent. Crown settles class action for $125 million Meanwhile, Crown announced that it had settled a class action against it for $125 million. The action was brought against the casino operator by shareholders, after the company's stock plunged in 2016 amid revelations employees were arrested in China for promoting illegal gambling. Crown said the settlement was not an admission of wrongdoing. It also said its insurance might cover some of the payout costs. It came just days after it was revealed Crown would keep its operating licence in Victoria despite a royal commission into its operations finding its behaviour had been "disgraceful". Crown's stock has only been on the up all week after its escape. Companies hit by chip shortages and supply woes The ASX 200 started the day in muted territory and things only got worse as the day went on. It closed down 1.4 per cent as the Reserve Bank waved a white flag on government bonds. Overall, the ASX 200 ended the week down 1.3 per cent. The top performers included Reece (+5.6pc) and Pilbara Metals, JB Hi-Fi and Resmed, all with gains around 4.5 per cent. Champion Iron was also up 2.3 per cent. That was after Citi forecast that its September quarter was marginally ahead of expectations, with its iron ore concentrates up 5 per cent on estimates. Mining stocks fared badly, as commodity prices hit shares. Perseus, Chalice and Ramelius took hits of between 1 and 3 per cent. The website Carsales ended down 3 per cent after its annual general meeting. The platform for people to upload cars for sale takes money off listings and commission, and it noted during its presentation that ongoing car shortages were hitting revenue. "Reduction in revenue reflects a challenging OEM advertising environment due to the significant reduction in new car sales in H1 an OEM supply constraints," it said. "New car sales remain below historical levels due to supply chain challenges and semi-conductor chip shortages." Yet there was a silver lining - the strong demand for used cars during COVID has seen it boost takings through dealerships. "This has translated into improved dealer profitability outcomes." It noted it was trying to diversify by pushing further into finance, insurance and non-car markets. It's not just Australian companies battling stock issues. Apple has revealed that supply chain woes have cost it roughly $US6 billion ($7.95 billion) in sales in its last quarter. The company's chief executive Tim Cook said that the impact will be even worse during the current holiday sales period. He told global media that was caused by "larger than expected supply constraints" as well as pandemic-related manufacturing disruptions in South-East Asia. While Apple had seen "significant improvement" by late October in those facilities, the chip shortage has persisted and is now affecting "most of our products", he said. "We're doing everything we can do to get more [chips] and also everything we can do operationally to make sure we're moving just as fast as possible," he added. While Apple's shares did close higher, they have since slumped in after-hours trade. Both the S&P and Nasdaq closed at record highs on Wall Street. Solid results from companies, including Caterpillar and Merck, helped ease concerns about slowing economic growth denting profits. US Treasury yields also rose, despite fresh economic data there that was not as rosy as hoped. Ongoing speculation about RBA policy Meanwhile, the Australian dollar is higher against the greenback at 74.50 US cents. "AUD largely ignored the commotion in the bond market as markets continued to rapidly price in a more aggressive rate hike cycle," ANZ noted. "Today, focus will once again be on whether the Reserve Bank of Australia defends its 0.1 per cent yield target on the April 24 bond." "Our CBA Economics team now expect the RBA will exit yield curve control (and therefore the 2024 cash rate guidance) at its May 2022 Board meeting because rapid vaccination has improved the economic outlook. "But the risk is the RBA moves as soon as the November Board meeting." Over in Europe, its central bank has left policy settings unchanged after a meeting overnight. NAB is speculating it will start formally confirming setting changes at its December meeting. [GN] CONFLUENCE GROUP: Mack Files TCPA Suit in N.D. Georgia ------------------------------------------------------ A class action lawsuit has been filed against Confluence Group II, LLC. The case is styled as Sarah Mack, individually and on behalf of all others similarly situated v. Confluence Group II, LLC doing business as: Orangetheory Fitness Cumberland, Case No. 1:21-cv-04470-AT (N.D. Ga., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act. Confluence Group II, LLC doing business as Orangetheory Fitness Cumberland -- https://www.orangetheory.com/ -- is a fitness gym in located in Marietta, Georgia.[BN] The Plaintiff is represented by: Andrew John Shamis, Esq. SHAMIS & GENTILE P.A. 14 N.E. 1st Ave, Ste. 1205 Miami, FL 33132 Phone: (305) 479-2299 Email: ashamis@sflinjuryattorneys.com CONSOL COAL: Faces Fredricks Suit Over Unfair Merger Deal --------------------------------------------------------- JOHN FREDRICKS, individually and on behalf of all others similarly situated, Plaintiff v. CONSOL COAL RESOURCES, L.P.; JAMES A. BROCK; MARTHA A. WIEGAND; MICHAEL L. GREENWOOD; DEBORAH J. LACKOVIC; KURT R. SALVATORI; DANIEL D. SANDMAN; and JEFFREY L. WALLACE, Defendants, Case No. 2:21-cv-01504-WSS (W.D. Pa., Oct. 21, 2021) alleges that the merger deal of the Defendants violates the Securities Exchange Act of 1934. The complaint is a class action brought by the Plaintiff on behalf of himself and the other former public unitholders (each a "Unitholder") of CONSOL Coal Resources, L.P. ("CCR" or the "Company") against CCR and the former members of the Company's board of directors (collectively referred to as the "Board" or the "Individual Defendants" and, together with the Company, the "Defendants") for their violations of the Securities Exchange Act of 1934 in connection with the acquisition of CCR (the "Merger") by CONSOL Energy, Inc. ("CEIX"). On November 30, 2020, the Board allegedly authorized the filing of a materially incomplete and misleading Schedule 14A Definitive Proxy Statement (the "Proxy") with the SEC. While the Defendants touted the fairness of the Merger Consideration to the Company's unitholders in the Proxy, they failed to disclose material financial information -- the Cash Flow and Net Income Projections (as defined below) -- necessary for unitholders to assess the Merger Consideration, thereby rendering certain statements in the Proxy misleading. As a consequence of the omissions contained in the Proxy, unitholders were unable to assess the value of their equity in the Company. Unsurprisingly therefore, on December 29, 2020, CCR unitholders voted to approve the Merger. Thereafter, the Merger was consummated and, pursuant to the terms and conditions of the Merger Agreement, Transformer Merger Sub, L.L.C. ("Merger Sub"), an indirect wholly owned subsidiary of CEIX, merged with and into CCR, with CCR surviving as an indirect, wholly owned subsidiary of CEIX. Unitholders were not adequately informed when they voted to approve the Merger, because the Proxy omitted the material information and contained the misleading statements, which impeded Unitholders from recognizing the inadequacy of the Merger Consideration. CONSOL Coal Resources LP manages and develops active thermal coal operations. The Company engages in underground mines and related infrastructure that produce high-BTU bituminous thermal coal. [BN] The Plaintiff is represented by: Alfred G. Yates, Jr., Esq. Gerald L. Rutledge, Esq. LAW OFFICE OF ALFRED G. YATES, JR., P.C. 1575 McFarland Road, Suite 305 Pittsburgh, PA 15216 Telephone: (412) 391-5164 Facsimile: (412) 471-1033 E-mail: yateslaw@aol.com -and- Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC 350 Fifth Avenue, Suite 4405 New York, NY 10118 Telephone: (212) 971-1341 -and- Michael J. Palestina, Esq. KAHN SWICK & FOTI, LLC 1100 Poydras Street, Suite 3200 New Orleans, LA 70163 Telephone: (504) 455-1400 Facsimile: (504) 455-1498 CORPUS CHRISTI, TX: Bentancourt Sues Over Unlawful Discrimination ----------------------------------------------------------------- RUDY L. BENTANCOURT, individually and on behalf of all others similarly situated, Plaintiff v. CITY OF CORPUS CHRISTI, TEXAS, Defendant, Case No. 2:21-cv-00241 (S.D. Tex., October 13, 2021) is a collective action complaint brought against the Defendant for its alleged violation of the Fair Labor Standards Act, the Age Discrimination in Employment Act of 1967, and the Texas Commission on Human Rights Act. The Plaintiff was hired by the Defendant on or about December 23, 2021 and retired on or about February 5, 2021. He was the Director of Housing and Community Development when he retired. According to the complaint, the Defendant has engaged in a pattern and practice of knowingly and intentionally discriminating against employees who are age 40 and older, in the company's practices related to retirement. The Plaintiff asserts that the Defendant adversely treated employees who are 40 years old and older, and preferentially treated employees who are under 40 years old. Accordingly, the Plaintiff and similarly situated employees have been denied compensation related to employment/retirement with the Defendant. As a result of the Defendant's alleged unlawful discrimination, the Plaintiff and other similarly situated employees have suffered non-pecuniary losses in the form of emotional pain, suffering, inconvenience, personal humiliation, mental anguish, loss of enjoyment of life, and other non-pecuniary damages. Thus, the Plaintiff seeks to recover actual damages, punitive damages, and liquidated damages in the maximum amount allowed by law, as well as pre- and post-judgment interest, reasonable attorneys' fees, expert witness fees, expenses, and litigation costs, and other relief as the Court deems just and appropriate. City of Corpus Christi is a Texas city on the Gulf of Mexico. [BN] The Plaintiff is represented by: Amie Augenstein, Esq. Christopher J. Gale, Esq. GALE LAW GROUP, PLLC 711 N. Carancahua St., Suite 514 P.O. Box 2591 Corpus Christi, TX 78403 Tel: (361) 808-4444 Fax: (361) 232-4139 E-mail: Amie@GaleLawGroup.com Chris@GaleLawGroup.com CROWN RESORTS: Settles China Gambling Class Action for $125 Million ------------------------------------------------------------------- Patrick Hatch at smh.com.au reports that Crown Resorts will pay $125 million to settle a class action launched over its business dealings in China that led to 19 staff being arrested there in 2016 for illegally promoting gambling. The arrests rocked the ASX-listed casino giant and caused its share price to collapse 14 per cent, prompting Maurice Blackburn to launch a class action on behalf of investors. Crown shares tanked in 2016 when 19 of its staff were arrested in China on gambling crimes. Crown shares tanked in 2016 when 19 of its staff were arrested in China on gambling crimes. CREDIT:JASON SOUTH The lawsuit was set to go to trial but Crown said it had settled the action for $125 million. "Crown's board of directors determined that the agreement to settle the proceeding was a commercial decision made in the best interests of Crown and its shareholders," the company said in an ASX statement. "Crown expects to recover a significant portion of the settlement amount from its insurers but cannot at this stage be certain about the outcome of negotiations with insurers, or the outcome of any necessary formal steps for recovery it may need to take." Maurice Blackburn senior associate Michael Donelly said the class action was the only way shareholders could take effective action against Crown. "Crown's alleged failures in our case were part of what has become one of the most serious and comprehensive breakdowns in corporate governance in Australian history," Mr Donelly said. [GN] D&H CONTRACTING: Dawson Seeks Unpaid Overtime Wages --------------------------------------------------- Josh Dawson, individually and on behalf of all others similarly situated, Plaintiff v. D&H Contracting Inc., Defendant, Case No. 21-cv-00220, (E.D. Ark., October 22, 2021) seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorney's fees for failure to pay lawful minimum and overtime wages as required by the Fair Labor Standards Act and the Arkansas Minimum Wage Act. D&H Contracting Inc. is a licensed contractor in the State of Arkansas that provides electrical contracting services, including installation, maintenance, and repair services for cable television lines. Dawson was employed by Defendant as a lineman. He regularly worked in excess of forty hours per weekly pay period without being paid overtime, asserts the complaint. [BN] Plaintiff is represented by: Chris Burks, Esq. WH LAW, PLLC 1 Riverfront Pl., Suite 745 North Little Rock, AR 72114 Telephone: (501) 891-6000 Email: chris@wh.law D-MARKET ELEKTRONIK: Bernstein Liebhard Reminds of Dec. 20 Deadline ------------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion no later than December 20, 2021 in a securities class action lawsuit that has been filed on behalf of investors who purchased or acquired the securities of Hepsiburada (D-MARKET Elektronik Hizmetler ve Ticaret Anonim Sirketi a/k/a D-MARKET Electronic Services & Trading) ("Hepsiburada" or the "Company") (NASDAQ:HEPS) from July 1, 2021 through August 26, 2021 (the "Class Period"). The lawsuit filed in the United States District Court for the Central District of California alleges violations of the Securities Act of 1934. If you purchased Hepsiburada securities, and/or would like to discuss your legal rights and options please visit Hepsiburada Shareholder Class Action Lawsuit or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com According to the complaint, Hepsiburada and the Registration Statement was materially false and misleading and omitted to state: (1) that Hepsiburada suffered a sharp deceleration in operational and sales growth during second quarter 2021; (2) that, as a result, the Company initiated certain actions to fortify its competitive position, including investing in electronics and high frequency categories and discounting certain categories; (3) that, as a result of the foregoing, Hepsiburada's revenue and GMV had declined during second quarter 2021; 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. On July 1, 2021, Hepsiburada completed its IPO, selling approximately 62 million shares of common stock for $1200 per share. On August 26, 2021, Hepsiburada announced its second quarter 2021 financial results -the quarter which had ended before the IPO closed-and reported that revenue grew 5.2%, reflecting "the shift in GMV mix in favor of Marketplace." The Company also reported that EBITDA was "negative TRY 188.6 million in Q2 2021 compared to positive TRY 71.1 million in Q2 2020 . . . due to lower gross contribution driven primarily by investments to fortify our position in electronics, investments to penetrate in high frequency categories as well as higher customer demand for low margin products." On this news, the Company's share price fell $3.05, or 25%, to close at $8.97 per share on August 26, 2021, on unusually heavy trading volume. By the commencement of this action, the Company's shares were trading as low as $5.30, a nearly 56% decline from the $12.00 per share IPO price, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than December 20, 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 Hepsiburada securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/hepsiburada-heps-shareholder-class-action-lawsuit-fraud-stock-447/ 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. ATTORNEY ADVERTISING. (C) 2021 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. The lawyer responsible for this advertisement in the State of Connecticut is Michael S. Bigin. Prior results do not guarantee or predict a similar outcome with respect to any future matter. [GN] D-MARKET ELEKTRONIK: Faces Golden Suit Over Drop in Share Price --------------------------------------------------------------- GOLDEN HORN ASSET AND MANAGEMENT LTD, individually and on behalf of all others similarly situated, Plaintiff v. D-MARKET ELEKTRONIK HIZMETLER VE TICARET ANONIM SIRKETI a/k/a D-MARKET ELECTRONIC SERVICES & TRADING d/b/a/ HEPSIBURADA; MEHMET MURAT EMIRDAG; HALIL KORHAN OZ; HANZADE VASFIYE DOGAN BOYNER; ERMAN KALKANDELEN; MEHMET EROL CAMUR; CEMAL AHMET BOZER; VUSLAT DOGAN SABANCI; MUSTAFA AYDEMIR; TOLGA BABALI; MORGAN STANLEY & CO. LLC; J.P. MORGAN SECURITIES LLC; GOLDMAN, SACHS & CO. LLC; BOFA SECURITIES, INC.; and UBS SECURITIES LLC, Defendants, Case No. 1:21-cv-08634 (S.D.N.Y., Oct. 21, 2021) is a class action on behalf of persons and entities that purchased or otherwise acquired Hepsiburada American Depositary Receipts ("ADRs") pursuant and/or traceable to the registration statement and prospectus (collectively, the "Registration Statement") issued in connection with the Company's July 2021 initial public offering ("IPO" or the "Offering"), seeking to pursue claims against the Defendants under the Securities Act of 1933. According to the complaint, on July 1, 2021, the Company filed its prospectus on Form 424B4 with the SEC, which forms part of the Registration Statement. In the IPO, the Company sold approximately 62,251,000 ADRs at a price of $12.00 per ADR. Each ADR represents one Class B ordinary share. The Company received proceeds of approximately $783 million from the Offering. The proceeds from the IPO were purportedly to be used for general corporate purposes, including working capital, operating expenses, and capital expenditures. On August 26, 2021, Hepsiburada announced its second quarter 2021 financial results -- the quarter which had ended before the IPO closed -- reporting that revenue grew 5.2%, reflecting "the shift in GMV mix in favor of Marketplace." The Company also reported that EBITDA was "negative TRY 188.6 million in Q2 2021 compared to positive TRY 71.1 million in Q2 2020 . . . due to lower gross contribution driven primarily by investments to fortify our position in electronics, investments to penetrate in high frequency categories as well as higher customer demand for low margin products." On this news, the Company's ADR price fell $3.05, or 25%, to close at $8.97 per ADR on August 26, 2021, on unusually heavy trading volume. As a result of Defendants' alleged 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. D-MARKET ELEKTRONIK HIZMETLER VE TICARET ANONIM SIRKETI (HEPSIBURADA) operates as an online e-commerce company. The Company offers electronic, fashion, home living, stationery, sports, outdoor, cosmetics, and personal care products. [BN] The Plaintiff is represented by: Gregory B. Linkh, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Ave., Suite 358 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: glinkh@glancylaw.com -and- Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 -and- Frank R. Cruz, Esq. THE LAW OFFICES OF FRANK R. CRUZ 1999 Avenue of the Stars, Suite 1100 Los Angeles, CA 90067 Telephone: (310) 914-5007 D-MARKET ELEKTRONIK: Levi & Korsinsky Reminds of Dec. 20 Deadline ----------------------------------------------------------------- Levi & Korsinsky, LLP announces that class action lawsuits have commenced on behalf of shareholders of the following publicly-traded companies. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court. Further details about the cases can be found at the links provided. There is no cost or obligation to you. HEPS Shareholders Click Here: https://www.zlk.com/pslra-1/d-market-elektronik-hizmetler-ve-ticaret-anonim-irketi-a-k-a-d-market-electronic-services-trading-d-b-a-hepsiburada-information-request-form?prid=20743&wire=1 D-MARKET Elektronik Hizmetler ve Ticaret Anonim irketi a/k/a D-MARKET Electronic Services & Trading d/b/a/ Hepsiburada (NASDAQ:HEPS) This lawsuit is on behalf of persons and entities that purchased or otherwise acquired Hepsiburada American Depositary Receipts ("ADRs") pursuant and/or traceable to the registration statement and prospectus issued in connection with the Company's July 2021 initial public offering. Lead Plaintiff Deadline : December 20, 2021 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/d-market-elektronik-hizmetler-ve-ticaret-anonim-irketi-a-k-a-d-market-electronic-services-trading-d-b-a-hepsiburada-information-request-form?prid=20743&wire=1 According to the filed complaint, (1) Hepsiburada suffered a sharp deceleration in operational and sales growth during second quarter 2021; (2) as a result, the Company initiated certain actions to fortify its competitive position, including investing in electronics and high frequency categories and discounting certain categories; (3) as a result of the foregoing, Hepsiburada's revenue and Gross Merchandise Value had declined during second quarter 2021; and (4) 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. You have until the lead plaintiff deadlines to request that the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] DELAVAL INC: Seeks Extension to Respond to Bid to Unseal Briefings ------------------------------------------------------------------ In the class action lawsuit captioned as TERRY BISHOP, DVM; RODNEY, JANEEN, CHAD, and AARON NAEDLER, and NAEDLER FARMS II; DANIEL and ERIN RICHARDS; BERNARD and DENISE ROBILLARD, and ROBILLARD FLAT FARMS, INC., on behalf of themselves and all others similarly situated, v. DELAVAL INC., Case No. 5:19-cv-06129-SRB (W.D. Mo.), the Defendant asks the Court to enter an order pursuant to Federal Rule of Civil Procedure 6(b) and Local Rule 7.0, granting an eight day extension of time until November 10, 2021, to respond to Plaintiffs' Motion to unseal Class Certification and Sanctions briefing and states as follows: 1. On October 19, 2021, Plaintiffs filed a Motion to unseal Class Certification and Sanctions briefing. 2. The Defendant's response to Plaintiffs' Motion is currently due on November 2, 2021. 3. The Defendant submits that an eight-day extension of time is necessary to allow Defendant to review the material in the briefings for confidentiality. 4. The requested extension of time will not unduly delay this matter or prejudice either party. DeLaval is a producer of dairy and farming machinery, with a head office in Tumba, Sweden, and is part of the Tetra Laval group. A copy of Defendant's motion dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3jUcARc at no extra charge.[CC] The Defendant is represented by: Gregory K. Wu, Esq. Anna A. El-Zein, Esq. Robert T. Adams, Esq. Lynn H. Murray, Esq. Peter F. O'Neill, Esq. SHOOK, HARDY & BACON LLP 2555 Grand Boulevard Kansas City, MO 64108 Telephone: (816) 474-6550 Facsimile: (816) 421-5547 E-mail: gwu@shb.com aelzein@shb.com rtadams@shb.com lhmurray@shb.com pfoneill@shb.com DIAGEO NORTH: Faces Fischer Suit Over Mislabeled Rum Product ------------------------------------------------------------ PERRY M. FISCHER; and AVI J. PUSATERI, individually and on behalf of all others similarly situated, Plaintiffs v. DIAGEO NORTH AMERICA, INC., Defendant, Case No. 1:21-cv-08568 (S.D.N.Y., Oct. 19, 2021) is an action against the Defendant's misleading business practices with respect to the marketing and sale of its Ron Zacapa 23 Centenario Rum (the "Product"). According to the complaint, the Defendant marketed and sold the Product with a bold "23" on the front of the packaging, which conveys to a reasonable consumer that the rum contained in the Product has been aged for 23 years. The Plaintiffs purchased the Product and paid a premium price based upon their reliance on the Defendant's representation that the Product was aged for 23 years. Had the Plaintiffs and Class members been aware that the Product has not been aged for 23 years, the Plaintiffs and Class members would not have purchased the Product or would have paid significantly less for the Product, says the suit. DIAGEO NORTH AMERICA, INC. produces, distills, and markets alcoholic beverages. [BN] The Plaintiff is represented by: Nina Varindani, Esq. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 Email: nvarindani@faruqilaw.com -and- Melissa S. Weiner, Esq. PEARSON, SIMON & WARSHAW, LLP 800 LaSalle Avenue, Suite 2150 Minneapolis, MN 55402 Telephone: (612) 389-0600 Email: mweiner@pswlaw.com DICKINSON COLLEGE: Women's Squash Team Lawsuit Receives Settlement ------------------------------------------------------------------ Dickinson College, located out of Carlisle, Pennsylvania, agreed to a settlement to reinstate its women's squash team in a class-action lawsuit led by the male and female athletes of the varsity teams. The lawsuit initiated after the college announced the male and female squash teams would convert to club status following the 2021-2022 academic year. On September 9, 2021, attorney Arthur H. Bryant and his team at Bailey Glasser LLP notified Dickinson College in a letter that it was in violation of the federal Title IX statute due to the school's decision to eliminate both varsity squash teams. Bryant stated that he was "retained by members of the women's varsity squash team to prevent their team's elimination and, if necessary, pursue a sex discrimination class action against Dickinson College." The letter stated that the college's decision to cut the teams were not made public; no article, web search, or press release was indicated at the time of the announcement to cut the teams on August 26. Bryant followed up with "Sadly, there is an obvious reason that could be so: the elimination of the women's squash team flagrantly violates Title IX, which bars sex discrimination by all educational institutions receiving federal funds." Dickinson's overall student proportion of men to women is 43% to 57%, however, the athletic participation is the opposite, with 57% of the spots occupied by men and 43% by women. Dickinson needs to add women's opportunities to compensate for the 14% difference in participation to fully comply with Title IX. The settlement includes optional reinstatement for the men's varsity squash team, developing a gender equity plan, and coming into full compliance with Title IX to avoid depriving the female athletes of equal opportunity. The gender equity plan is set to be implemented no later than August 31, 2022. [GN] DOCTOR'S BEST: Estevez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Doctor's Best Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Doctor's Best Inc., Case No. 1:21-cv-08832 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Doctor's Best, Inc. -- https://www.drbvitamins.com/ -- manufactures and distributes dietary and nutritional supplements.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com EARTH RATED: Natale Files Suit in E.D. New York ----------------------------------------------- A class action lawsuit has been filed against Earth Rated. The case is styled as Meganne Natale, Chelsea Cheng, on behalf of themselves and all others similarly situated v. Earth Rated, Case No. 2:21-cv-05994 (E.D.N.Y., Oct. 28, 2021). The nature of suit is stated as Fraud or Truth-In-Lending. Earth Rated -- https://earthrated.com/en/ -- is a company that began with dog waste bags but has since expanded to offer a variety of pet care products, sold in stores across 40 countries and online.[BN] The Plaintiffs are represented by: Max Stuart Roberts, Esq. BURSOR & FISHER, P.A. 888 Seventh Ave., Third Floor New York, NY 10019 Phone: (646) 837-7150 Fax: (212) 989-9163 Email: mroberts@bursor.com EINSTEIN HEALTHCARE: Faces S.H. Suit Over Medical Data Breach ------------------------------------------------------------- S.H., a minor, individually and on behalf of all others similarly situated, Plaintiff v. EINSTEIN HEALTHCARE NEWORK, Defendant, Case No. 211001435 (Pa. Com. Pleas, Philadelphia Cty., Oct. 19, 2021) is a class action on behalf of individual patients of Einstein whose personally identifying information ("PII") or protected health information ("PHI") was accessed and exposed to unauthorized third parties during a data breach of Einstein's e-mail systems (the "Data Breach") According to the complaint, for the duration of time between August 5, 2020 and August 17, 2020, hackers had unrestricted access to all personally identifying information PII or PHI in certain Einstein email accounts. Despite that Einstein became aware of the Data Breach by August 10, 2020, it failed to notify the Plaintiff and the putative Class members and their parents or guardians within 60 days as required by law. Notably, Einstein failed to notify the Plaintiff and parents or guardians of the Data Breach for more than five months from its discovery of the same, says the suit. EINSTEIN HEALTHCARE NEWORK is a private non-profit healthcare organization based in the Philadelphia, Pennsylvania. [BN] The Plaintiff is represented by: Kenneth J. Grunfeld, Esq. Richard M. Golomb, Esq. GOLOMB SPIRT GRUNFELD, P.C. 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Telephone: (215) 346-7338 Facsimile: (215) 985-4169 Email: rgolomb@GolombLegal.Com kgrunfeld@GolombLegal.Com -and- Gary F. Lynch, Esq. Kelly K. Iverson, Esq. CARLSON CARPENTER, LLP 1133 Penn Ave., Fl. 5 Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 Email: glynch@lcllp.com kelly@lcllp.com ENERGAGE LLC: Cordes Seeks FLSA Collective Action Certification ---------------------------------------------------------------- In the class action lawsuit captioned as JOHN CORDES, individually and on behalf of all others similarly situated, v. ENERGAGE, LLC, Case No. 2:21-cv-02641-CMR (E.D. Pa.), the Plaintiff John Cordes and Defendant Energage, LLC file joint motion for conditional certification of the Fair Labor Standards Act (FLSA) collective action pursuant to 29 U.S.C. section 216(b): "Account Executives in the Sales Department of Energage at any time from June 11, 2018, to the present who were paid on a salary basis." The Parties agree that, by Energage's agreement to conditional certification of the FLSA collective action, Energage does not waive any defenses that it may have to the substantive claims in this lawsuit or any arguments to decertify the FLSA collective action. The Parties have further agreed to and propose the following schedule: DEADLINE SUBJECT -- November 1, 2021 Defendant to provide to Plaintiff's counsel in Excel (.xlsx) format the following information regarding all Putative Collective Members: full name; last known addresses with city, state, and zip Code; last known personal e-mail addresses; last known cell/telephone number, if available; beginning dates of employment; and ending dates of employment (if applicable). -- November 11, 2021 Plaintiff's counsel shall send a copy of approved Notice and Consent Form to the Putative Collective Members by first class US Mail and email. -- December 10, 2021 Plaintiff's counsel is authorized to send by first Class US mail and email a second, identical copy of the Members reminding them of the deadline for the submission of the Consent forms. If first class US Mail and email were returned as undeliverable, -- January 10, 2022 The Putative Collective Members shall have 60 days to return their signed Consent forms to Plaintiff's counsel (60 days from date of initial for filing with the Court. Energage LLC provides human resource technology platform. The Company serves customers in the State of Pennsylvania. A copy of Parties' motion to certify class dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3nLo62w at no extra charge.[CC] The Plaintiff is represented by: Matthew S. Parmet, Esq. PARMET PC 3 Riverway, Ste. 1910 Houston, TX 77056 Telephone 713 999 5228 E-mail: matt@parmet.law - and - James E. Goodley, Esq. GOODLEY LAW LLC 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 394-0541 E-mail: james@goodleylaw.net The Defendants are represented by: Caroline M. Austin, Esq. Danielle M. Dwyer, Esq. Attorney I.D. 318545 DUANE MORRIS LLP 30 South 17 th Street Philadelphia PA 19103 Telephone: (215) 979-1878 E-mail: caustin@duanemorris.com dmdwyer@duanemorris.com - and - Mary J. Pedersen, Esq. WISLER PEARLSTINE, LLP 460 Norristown Road, Suite 110 Blue Bell, PA Telephone: (610) 825-8400 E-mail: mpedersen@wispearl.com EPIC ETAILERS: Estevez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Epic eTailers, LLC. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Epic eTailers, LLC, Case No. 1:21-cv-08838 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Epic eTailers, LLC doing business as Beauty By Earth -- https://beautybyearth.com/ -- is an organization that produces cosmetic, beauty and personal care products with natural and organic ingredients.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com ETHIKA INC: Estevez Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Ethika, Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Ethika, Inc., Case No. 1:21-cv-08829 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ethika -- https://www.ethika.com/ -- is an American men's and women's underwear company founded in 2001 by Malcolm McCassy, Travis Pastrana, and professional skateboarder Ryan Sheckler.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com EUROPTICS INC: Estevez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Europtics Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Europtics Inc., Case No. 1:21-cv-08835 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Europtics -- https://europtics.net/ -- is the locally owned and operated chain of eyewear galleries that manufacturers clamor to put their hottest new designs into first.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com FACEBOOK INC: Bernstein Liebhard Reminds of December 27 Deadline ---------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, announces that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired the securities of Facebook, Inc. ("Facebook" or the "Company") (NASDAQ:FB) from November 3, 2016 through October 4, 2021 (the "Class Period"). The lawsuit filed in the United States District Court for the Eastern District of New York alleges violations of the Securities Exchange Act of 1934. If you purchased Facebook securities, and/or would like to discuss your legal rights and options please visit Facebook Inc. Shareholder Class Action Lawsuit or contact Rujul Patel toll free at (877) 779-1414 or rpatel@bernlieb.com According to the complaint, Facebook made materially false and misleading statements and omitted to disclose that: (1) Facebook misrepresented its user growth; (2) Facebook knew, or should have known, that duplicate accounts represented a greater portion of its growth than stated, and it should have provided more detailed disclosures as to the implication of duplicate accounts to Facebook's user base and growth; (3) Facebook did not provide a fair platform for speech, and regularly protected high profile users via its Cross Check/XCheck system; (4) despite being aware of their use of Facebook's platforms, the Company failed to respond meaningfully to drug cartels, human traffickers, and violent organizations; and (5) Facebook has been working to attract preteens to its platform and services. On September 13, 2021, during trading hours, The Wall Street Journal ("WSJ") published an article titled "Facebook Says Its Rules Apply to All. Company Documents Reveal a Secret Elite That's Exempt." It would be the first of nine articles published by the WSJ based on documents provided by a then-unknown whistleblower (the "Whistleblower"). On this news, Facebook shares dropped by $5.17 to close at $376.51 on September 13, 2021. On September 28, 2021, during market hours, the WSJ published an article titled, "Facebook's Effort to Attract Preteens Goes Beyond Instagram Kids, Documents Show." On this news, Facebook share prices dropped $7.32 to close at $340.65 on September 28, 2021. On October 3, 2021, CBS News aired a television segment on 60 Minutes interviewing the Whistleblower, revealed to be Frances Haugen, on her findings during her time at Facebook. On October 4, 2021, CBS News published an article titled, "Whistleblower's SEC Complaint: Facebook Knew Platform Was Used to ‘Promote Human Trafficking and Domestic Servitude,'" which contained the whistleblower complaints against Facebook filed with the SEC. There were eight complaints shared in the CBS article. As a result of the October 3 and 4 revelations, Facebook's share price dropped $16.78 per share, or approximately 4.9%, from closing at $343.01 on October 1, 2021, the prior trading day, to close at $326.23 on October 4, 2021. If you wish to serve as lead plaintiff, you must move the Court no later than December 27, 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 Facebook securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/facebookinc-fb-shareholder-class-action-lawsuit-fraud-stock-449/ 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. ATTORNEY ADVERTISING (C) 2021 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. The lawyer responsible for this advertisement in the State of Connecticut is Michael S. Bigin. Prior results do not guarantee or predict a similar outcome with respect to any future matter. [GN] FERRARA CANDY: Settles $3.7M Class Action Over Illegal Packaging ---------------------------------------------------------------- absolute-shopping.com reports that there is a New Ferrara and Nestle USA Candies $3.7 million class action settlement. You may be owed cash - with no receipt needed! The settlement resolves class action lawsuits alleging Defendants package its boxed candy products in oversized packaging with nonfunctional empty space. Settlement Class Members include residents of the United States who purchased one or more cardboard boxes of Raisinets, Buncha Crunch, Butterfinger Bites, Tollhouse Semi-Sweet Chocolate Morsels, Rainbow Nerds, SweeTarts, Spree, Sno-Caps, Runts, or Gobstoppers between Feb. 9, 2013, and Sep. 23, 2021. Each candy claim is worth $0.50 - you can claim up to 16 units for a total of $8. [GN] FIAT CHRYSLER: Faces Suit Over Defective CP4 Fuel Injection Pumps ----------------------------------------------------------------- Leading consumer rights law firm Hagens Berman today filed a class-action lawsuit against Fiat Chrysler (FCA) and Cummins on behalf of 600,000 owners and lessors of 2018 - 2020 Dodge RAM Heavy Duty Cummins-equipped diesel trucks containing a defective CP4 fuel injection pump. The lawsuit filed Oct. 22, 2021, in the U.S. District Court for the Eastern District of Michigan states that the defect poses an "imminent safety risk to the public," leaving vehicle owners at risk of sudden and unexpected engine shutoff while in motion. The lawsuit accuses the automaker and manufacturer of colluding to conceal the critical fuel pump defect and its safety risk. If you own or lease a 2018 - 2020 Dodge RAM 2500, 3500, 4500 or 5500 Heavy Duty diesel truck with a 6.7-liter Cummins turbodiesel engine, find out more about the lawsuit and your rights. "Fiat Chrysler has known about the defective design of the pump for more than a decade and left consumers driving ticking time bombs," said Steve Berman, managing partner of Hagens Berman and attorney representing affected truck owners. "No consumer would have purchased these vehicles had they been told the truth, and they deserve to be safe and compensated. Our hearts go out to those who have spent thousands, if not tens of thousands, to fix their truck. Shame on FCA." CP4 Design Defect The CP4 pump uses fuel for lubricating the interior cam, pumping cylinders and rollers. If the fuel used is not sufficiently lubricated - which most U.S. diesel is not - the cam and rollers wear against each other generating tiny metal shavings that disperse throughout the fuel injection system. The lawsuit says FCA and Cummins knew Bosch's CP4 pump design was incompatible with American diesel fuel. The release of metal shavings into the fuel system is catastrophic and the complaint states "failure can occur as early as mile one, as the fuel injection disintegration process begins at the very first fill of the tank and start of the engine, with pump components beginning to deteriorate and dispersing metal shavings throughout the internal engine components and fuel supply system." Failure of the fuel system causes sudden and unexpected shutoff of the vehicle's engine while in motion and an inability to restart the vehicle, presenting a substantial risk to consumer safety. Consumer Complaints A review of consumer complaints by National Highway Transportation Safety Administration's Office of Defects Investigation found that most stall/loss of power incidents occurred at speeds greater than 25 MPH and resulted in "permanent disablement of the vehicle." Owners of affected Dodge RAM trucks have reported: "With 20k miles the High-Pressure Fuel Pump blowup in middle of the freeway" "The contact stated while driving 45 MPH, the vehicle lost motive power. . . . There was no warning light illuminated." "2019 ram 3500 fuel injector pump went out on me pulling a 20k camper almost couldn't stop!" "I was driving on the freeway when the truck suddenly began surging the throttle. I began to make my way to the shoulder. By the time I was in the shoulder the truck lost all power." Costs to repair each vehicle are at least $10,000, and according to attorneys, Fiat Chrysler refuses to fix the trucks under warranty, blaming the issue on contaminated fuel. Additionally, owners of the affected trucks report that repairs are fruitless, as no repair will fix the issue as long as the vehicle is being filled with U.S. diesel fuel. Hagens Berman has filed seven class action lawsuits against Ford, GM and FCA concerning the dangerous CP4 fuel injection pump in other diesel trucks. Find out more about the class-action lawsuit against FCA for the CP4 fuel injection pump defect in its 2018 - 2020 Dodge RAM trucks.[GN] FINISH LINE: Faces Stevens Suit Over Failure to Pay Wages --------------------------------------------------------- PATRICK STEVENS, individually and on behalf of all others similarly situated, Plaintiff v. THE FINISH LINE, INC. d/b/a THE INDIANA FINISH LINE, INC., and DOES 1 through 20, inclusive, Defendants, Case No. 37-2021-00043563-CU-OE-CTL (Cal. Sup. Ct., October 13, 2021) brings this complaint pursuant to the Private Attorneys General Act of 2004 against the Defendants. The Plaintiff asserts these claims: -- The Defendant failed to pay minimum wages and overtime wages at the proper rates; -- The Defendant failed to provide meal periods or compensation in lieu thereof, and to authorize or permit rest breaks or provide compensation in lieu thereof; -- The Defendant failed to provide accurate itemized wage statements; and -- The Defendant failed to pay all wages due upon separation of employment. The Plaintiff seeks monetary relief against the Defendant on behalf of himself and all others similarly situated in California to recover, among other things, unpaid wages and benefits, interest, attorneys' fees, costs and expenses and penalties pursuant to Labor Code law. The Finish Line, Inc. is in the business of athletic shoe and apparel retail. [BN] The Plaintiff is represented by: Samuel A. Wong, Esq. Kashif Haque, Esq. Jessica L. Campbell, Esq. Fawn F. Bekam, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Tel: (949) 379-6250 Fax: (949) 379-6251 E-mail: fbekam@aegislawfirm.com FLORIDA: Calls for Probe Into Black Farmer Cannabis License ----------------------------------------------------------- mjbizdaily.com reports that Florida's agricultural commissioner is calling for the state's top prosecutor to investigate a new rule that provides for a Black farmer medical marijuana license, saying it is discriminatory against Black farmers and "beyond unacceptable." Agricultural commissioner Nikki Fried, who also is running for governor, is critical of a nonrefundable $146,000 application fee for the license and other extensive requirements, according to a letter to Florida Attorney General Ashley Moody. The application fee is more than double what was paid by the initial group of MMJ operators in the state. Florida marijuana regulators passed an emergency rule last week to establish a process for issuing an MMJ license for one Black farmer in the state's fast-growing, billion-dollar industry. The state's 2017 medical marijuana law required a license to be issued to a Black farmer who was part of a class action discrimination lawsuit in the late 1990s against the U.S. Department of Agriculture. Litigation, including a challenge to the 2017 provision by a Black farmer outside the class, has held up additional MMJ licensing in Florida. Fried questioned whether the new rule was created with "discriminatory intent." "Because Black farmers have lost out on this time spent waiting for their chance to apply, they now face significant barriers to entry in the now-established Florida medical marijuana market," Fried wrote in her letter, which also was addressed to Florida's Chief Inspector General Melinda Miguel and the state's Joint Administrative Procedures Committee chairs. "The fact that Black farmers in Florida had to wait years for FDOH (Florida Department of Health) to release a rule that more than doubles their application fees is not only an affront to the legislature's directive but is beyond unacceptable." [GN] FLORIDA: Class Action Over Unfair Confinement Practices Certified ----------------------------------------------------------------- legalreader.com reports that a federal judge has approved a class action against the Florida Department of Juvenile Justice and its solitary confinement practices in juvenile detention centers. According to The Orlando Sentinel, the lawsuit was first filed in 2019 on behalf of several minors. However, U.S. District Judge Robert Hinkle has since approved a request to certify the complaint as a class action. In his ruling, Hinkle observed that up to 3,853 juveniles were placed in solitary confinement each year between 2014 and 2020. Attorneys for the plaintiffs assert that that the use of solitary confinement, especially on children with disabilities, violates the United States Constitution, the Americans with Disabilities Act, and the federal Rehabilitation Act. "To be sure, the plaintiffs have not proven that all -- or even any -- of these individuals were unconstitutionally placed in solitary confinement," Hinkle wrote. "But parties seeking class certification need not establish at the outset that they will ultimately prevail on the merits. It is enough that the plaintiffs have a substantial claim that the department's custom, if not its ostensible policy, is to place children in isolation unnecessarily and to subject them to unconstitutional conditions. "If the plaintiffs' view of constitutional law ultimately wins out -- it might or might not -- the department's method for deciding whether to place a child in solitary confinement will change for all these thousands of children, as will the conditions of their confinement." Leonard J. Laurenceau, a staff attorney for the Southern Poverty Law Center, said his organization has evidence showing that Florida Department of Juvenile Justice officials continued to isolate juvenile offenders even after seeing evidence that such strict disciplinary measures have damaging effects. "We have compelling evidence that state officials have known for years about the damaging effects of solitary confinement but have refused to address them," Laurenceau said in a statement. "We will also prove that the way Florida uses solitary confinement constitutes discrimination against children with disabilities in violation of the Americans with Disabilities Act and the Rehabilitation Act." However, the Florida Department of Juvenile Justice has contested the SPLC's claims, saying that it uses "behavioral confinement" on a case-by-case basis and in a way which complies with state and federal law. "The decision to confine each youth is made on an individualized, case-by-case basis," the department wrote in a brief. "The constellation of variables that go into a decision to place a youth in confinement and what a certain youth experiences while in confinement make it impossible to have a class. Each confinement would have to be individually examined, which does not lend itself to sweeping generalities by looking at numbers alone." Hinkle noted that the lawsuit challenges the standard the Florida Department of Juvenile Justice uses to place children in solitary confinement, rather than the standard applied to the individual plaintiffs. Since an unfair standard would affect every child placed in solitary confinement, Hinkle approved the request for class certification.[GN] FLOWERS FOODS: Initial Approval of Settlement in Noll Sought ------------------------------------------------------------ In the class action lawsuit captioned as TIMOTHY NOLL, individually and on behalf of similarly situated individuals, v. FLOWERS FOODS, INC., LEPAGE BAKERIES PARK STREET, LLC, and CK SALES CO., LLC, Case No. 1:15-cv-00493-LEW (D. Maine), the Parties ask the Court to enter an order: 1. granting preliminary approval of the proposed Settlement; 2. approving Atticus Administration as the Settlement Administrator; 3. approving the form, content, and method of distribution of the Settlement Notice and order Notices to be issued; 4. directing that Class Action Fairness Act of 2005 (CAFA) notice be issued to appropriate state and federal officials; 5. setting a briefing schedule for: the joint motion for final approval, Class Counsel's motion for attorneys' fees, and Named Plaintiff's motion for a Service Award; and 6. scheduling a fairness hearing to consider final approval of the proposed settlement. Flowers Foods, headquartered in Thomasville, Georgia, is a producer and marketer of packed bakery food. The company operates bakeries producing bread, buns, rolls, snack cakes, pastries, and tortillas. Lepage Bakeries is located in Auburn, Minnesota, and is part of the Bakeries and Tortilla Manufacturing Industry. A copy Parties' motion dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/2Y0gwYO at no extra charge.[CC] The Plaintiff is represented by: Amy P. Dieterich, Esq. SKELTON, TAINTOR & ABBOTT 95 Main Street Auburn, Maine 04210 Telephone: (207) 784-3200 E-mail: adieterich@sta-law.com - and - Shawn J. Wanta, Esq. Christopher D. Jozwiak, Esq. Scott A. Moriarity, Esq. BAILLON THOME JOZWIAK & WANTA LLP 100 South Fifth Street, Suite 1200 Minneapolis, MN 55402 Telephone: (612) 252-3570 E-mail: samoriarity@baillonthome.com sjwanta@baillonthome.com cdjozwiak@baillonthome.com - and - J. Gordon Rudd, Jr., Esq. David M. Cialkowski, Esq. IMMERMAN R EED LLP 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 341-0400 E-mail: Gordon.Rudd@zimmreed.com David.Cialkowski@Zimmreed.com - and - Susan E. Ellingstad, Esq. Rachel A. Kitze Collins, Esq Brian D. Clark, Esq LOCKRIDGE GRINDAL NAUEN P.L.L.P.100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 E-mail: seellingstad@locklaw.com rakitzecollins@locklaw.com bdclark@locklaw.com The Defendants Flowers Foods, Inc.; Lepage Bakeries Park Street, LLC; and CK Sales Co., LLC, are represented by: Peter Bennett, Esq. Frederick B. Finberg, Esq. Joanne I. Simonelli, Esq. THE BENNETT LAW Firm, P.A. 75 Market Street, Suite 201 Portland, ME 04101 Telephone: (207) 773-4775 - and - Kevin P. Hishta, Esq. C. Garner Sanford, Jr., Esq. A. Craig Cleland, Esq. Margaret S. Hanrahan, Esq. OGLETREE, DEAKINS, NASH SMOAK & STEWART 191 Peachtree St., NE, Suite 4800 Atlanta, GA 30303 Telephone: (404) 881-1300 FORD MOTOR: Court Narrows Claims in Amended O'Connor Class Suit --------------------------------------------------------------- In the case, JUSTIN O'CONNOR, et al., on behalf of himself and all other similarly situated, Plaintiffs v. FORD MOTOR COMPANY, Defendant, Case No. 19-cv-5045, Consolidated with Case Nos. 20-cv-1981, 20-cv-2095, 20-cv-2612 (N.D. Ill.), Judge Robert M. Dow, Jr., of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part the Defendant's motion to dismiss the Consolidated Amended Class Action Complaint. Background The Plaintiffs bring the class action complaint against Defendant Ford for damages allegedly arising out of the Defendant's sale and lease of 2017 to 2020 Model Year Ford F-150 trucks with defective 10R80 10-speed automatic transmissions. The action was originally brought by Illinois Plaintiff O'Connor on behalf of himself and a proposed class. In July 2020, the executive Committee reassigned three related, higher-numbered cases (Case Nos. 20-cv-1981, 20-cv-2095, and 20-cv-2612) to the Court to be consolidated with Case No. 19-cv-5045. On Aug. 7, 2020, the Court entered an order dismissing the amended complaint in the lead case, but authorizing the Plaintiffs to file a second amended complaint. The Plaintiffs filed their 127-page Consolidated Amended Class Action Complaint ("Complaint") on Sept. 25, 2020. The Defendant is a publicly traded company, incorporated in Delaware and with a principal place of business in Dearborn, Michigan. The 12 named Plaintiffs are individuals who purchased or leased Model Year 2017-2020 Ford F-150 vehicles that were designed, manufactured, distributed, marketed, sold, and leased by the Defendant or the Defendant's parent, subsidiary, or affiliates. Each Vehicle was equipped with a 10R80, which is a 10-speed automatic transmission. The Complaint explains that an automatic transmission is essentially an automatic gear shifter. Instead of manually shifting the gears with a clutch, the automatic transmission does it on its own. The transmission acts as a powertrain to convert the vehicle engine's force into a controlled source of power. It allows drivers to safely and reliably accelerate and decelerate their vehicles. The Plaintiffs have proposed a class that includes at least 100 members and aggregated claims that exceed $5 million, exclusive of interest and costs. The proposed Class is defined as: "All persons in the United States and its territories who formerly or currently own or lease one or more of 2017 to 2020 Model Year Ford F-150 trucks with a 10R80 10-speed automatic transmission." The Complaint also proposes Illinois, California, Florida, Massachusetts, New Jersey, New York, Pennsylvania, and Texas Subclasses. The Complaint details all of the Plaintiffs' decisions to buy or lease their Vehicles from Ford and their experiences driving the Vehicles.At a high level, many or most of the Plaintiffs performed research before deciding to buy or lease their Vehicles, including reviewing Vehicle specifications and advertising touting the Vehicles' performance and reliability, as well as speaking with salespeople at Ford dealerships. None of the Plaintiffs were informed of the problems with the Vehicles' Transmissions. The Plaintiffs allege that they would not have purchased/leased the Vehicles or would have paid significantly less if they had known that the Transmission contain a defect. All of the Plaintiffs report experiencing problems with their Transmissions, including: a loud "clunking" or banging noise when the engine starts; a "clanking" noise from the Transmission; jerky and rough acceleration and deceleration; delayed engagement of the Transmission and gears holding too long then roughly slamming into gear; the Vehicle failing to speed up when trying to accelerate; the Transmission slipping and jerking while accelerating and shifting gears; the Transmission slipping while driving in any gears; and, most seriously, the loss of acceleration and shifting capability while driving. The Complaint alleges that because of the Defect, the Class Vehicles are likely to suffer serious damages and potentially catch fire if accidents occur, causing an unreasonable and extreme risk of serious bodily harm or death to the Vehicle's occupants and others in the vicinity. Nearly all of the Plaintiffs report that they took their Vehicles into Ford dealerships for repairs and/or complained to Ford, but the problems with their Vehicles were not fixed and they were not provided the relief they requested. The Complaint alleges that the Defendant knew or should have known of the Transmission Defect prior to the Plaintiffs' purchase or lease of their Vehicles. It details numerous complaints that consumers filed with the National Highway Traffic Safety Administration ("NHTSA") concerning the Transmissions, beginning in late 2017 and continuing through 2020. The Defendant issued its first Technical Service Bulletin ("TSB") concerning the Defect in March 2018 and additional TSBs after that. The TSBs stated that 2017 and 2018 F-150 vehicles "may exhibit harsh/bumpy upshift, downshift and/or engagement concerns." To address this problem, the TSBs suggested reprogramming the powertrain control module ("PCM"). The TSBs explained that the Vehicles were "equipped with an adaptive transmission shift strategy which allows the vehicle's computer to learn the transmission's unique parameters and improve shift quality. When the adaptive strategy is reset, the computer will begin a re-learning process. This re-learning process may result in firmer than normal upshifts and downshifts for several days." However, the Complaint alleges, the Defendant's "adaptive transmission shift strategy" fails to remedy the Transmission's shifting problems. The Defendant nonetheless took no further steps to remedy the problem, leaving Plaintiffs and other members of the proposed class with knowingly defective Vehicles. Instead, the Complaint alleges, the Defendant misrepresented and actively concealed the Transmission defect "through its website, multimedia advertisements, brochures, and in-person statements by its employees, authorized dealers, agents, sales representatives and/or repair technicians -- touting the defective transmission's safety, reliability, enhanced responsiveness and performance." The Complaint alleges that instead of disclosing the Transmission defect, the Defendant has, "from 2017 to the present, attempted to squelch public recognition of the Transmission Defect by propagating the falsehood that the harsh and bumpy shifting in Class Vehicles was 'normal,' through statements made to consumers and the general public by Ford employees, authorized dealers, agents, sales representatives and/or repair technicians, and through TSBs which sought to normalize the poor performance and safety issues. The Defendant has not recalled the Vehicles to repair the Transmission Defect or offered to reimburse Vehicle owners/lessees who incurred costs relating to the Transmissions' problems. The Defect has allegedly diminished the value of the Vehicles, including their resale value. Ford offers a "New Vehicle Limited Warranty" for three years or 36,000 miles, whichever occurs first. Ford also offers extended warranty coverage for Powertrain components for five years or 60,000 miles, whichever occurs first. This extended warranty coverage includes the Transmission and all internal parts, clutch cover, seals and gaskets, torque converter, transfer case (including all internal parts), transmission case, and transmission mounts. Despite these warranties, however, "Ford refuses to replace or repair the Transmissions and merely states that the abrupt and harsh shifting is normal." Based on these allegations, the Complaint asserts claims for breach of express warranty under all eight states' laws (Count 1); breach of implied warranty under Illinois, Florida, New Jersey, New York, Massachusetts, and Pennsylvania law (Count 2); violation of the federal Magnuson-Moss Warranty Act (Count 3); negligence (Count 4); fraud/fraudulent concealment (Count 5); unjust enrichment (Count 6); violation of Illinois' Consumer Fraud and Deceptive Business Practices Act (Count 7); violation of California's Song-Beverly Consumer Warranty Act based on express warranties (Count 8) and implied warranties (Count 9); breach of California's implied warranty of merchantability (Count 10), Consumer Legal Remedies Act (Count 11), and Unfair Competition Law (Count 12); violation of the Florida Deceptive and Unfair Trade Practices Act (Count 13); breach of Massachusetts' implied warranty of merchantability (Count 14), implied warranty of fitness for a particular purpose (Count 15), and Consumer Protection Law (Count 16); violation of New Jersey's Consumer Fraud Act (Count 17); violation of New York General Business Law Section 349 (Count 18) and Section 350 (Count 19); violation of Pennsylvania's Unfair Trade Practice and Consumer Protection Law (Count 20); and violation of Texas' implied warranty of merchantability (Count 21), implied warranty of fitness for a particular purpose (Count 22), and Deceptive Trade Practices and Consumer Protection Act (Count 23). Currently before the Court is the Defendant's motion to dismiss the Consolidated Amended Class Action Complaint. Discussion Among other things, Judge Dow finds that: a. the Complaint does not allege that Smith ever took his Vehicle to a Ford dealership for repair -- and the Plaintiffs appear to concede, at least for purposes of Count 8, that he did not; b. the Plaintiffs concede the negligence claim (Count 4) to the extent it is brought under Illinois, Florida, Texas, or New Jersey law; c. the Plaintiffs concede the fraud/fraudulent concealment claim (Count 5) to the extent it is based on California or Pennsylvania law, as well as the claim for violation of the Pennsylvania Unfair Trade Practice and Consumer Protection Law (Count 20); d. the Defendant has failed to show that the Complaint is so deficient that dismissal of CLRA (Count 11) is warranted; e. it is certainly plausible that a Vehicle that contains a defective Transmission -- which the Defendant refuses to fix -- is worth less than a comparable vehicle with a properly functioning transmission; f. he sees no basis for dismissing Counts 18 and 19 -- especially as the Court already determined that the sole New York Plaintiff, Heller, has alleged sufficient facts to proceed on her claim for fraudulent concealment; g. as with the New York consumer protection statutes, the Defendant never addresses the specific requirements of a UTPCP claim or how they apply to the Pennsylvania Plaintiff's factual allegations; h. it is not clear that Ford is "insulated from TDTPA liability by upstream manufacturer status" under Chavez v. Ford Motor Co., 2018 WL 6190601 (W.D. Tex. Sept. 26, 2018), as the Defendant contends, because Texas Plaintiff McDonald alleges that Ford directly transacted with him by directly communicating its misrepresentations to him via the Ford website prior to purchase; i. without the benefit of a complete factual record and better developed legal argumentation, the Court declines to dismiss any portion of the complaint on statute of limitations grounds; and j. the Defendant asserts, but makes no attempt to demonstrate, that the fifty states' laws governing express warranty, implied warranty, negligence, fraud/fraudulent concealment, and unjust enrichment are so varied that Plaintiff could not satisfy Rule 23(a)'s commonality requirement; Conclusion Judge Dow granted in part and denied in part the Defendant's motion to dismiss the Plaintiff's amended complaint. In particular, the motion to dismiss: a. Count 1, for breach of express warranty, is granted as to Plaintiff Smith (one of several California Plaintiffs), but otherwise denied; b. Count 2, for breach of implied warranty, is granted to the extent it is based on the Massachusetts, New York, and Pennsylvania implied warranties of fitness for a particular purpose and the Illinois implied warranty of merchantability, but otherwise denied; c. Count 3, for violation of the Magnuson-Moss Warranty Act, is granted as to Plaintiff O'Connor (one of two Illinois Plaintiffs), but otherwise denied; d. Count 4, for negligence, is granted as to California, Florida, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, and Texas; e. Count 5, for fraud and fraudulent concealment, is granted as to the California, Florida, Illinois, New Jersey, and Pennsylvania fraud and fraudulent concealment claims, the New York fraud claim, the Massachusetts and Texas fraudulent concealment claims, and Massachusetts Defendant Barcelona's fraud claim; but denied as to Massachusetts Defendant Marino's fraud claim and the New York fraudulent concealment claim; f. Count 6, for unjust enrichment, is granted as to California, Florida, Illinois, Massachusetts, New Jersey, and New York, but denied as to Pennsylvania and Texas; g. Count 7, for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, is granted; h. Count 8, for violation of California's Song-Beverly Consumer Warranty Act based on express warranties, is granted as to the Plaintiff Smith (one of several California Plaintiffs), but otherwise denied; i. Count 9, for violation of California's Song-Beverly Consumer Warranty Act based on implied warranties, is denied; j. Count 10, for breach of California's implied warranty of merchantability, is denied; k. Count 11, for violation of California's Consumer Legal Remedies Act, is denied; l. Count 12, for violation of California's Unfair Competition Law, is denied; m. Count 13, for violation of Florida's Deceptive and Unfair Trade Practices Act, is denied; n. Count 14, for breach of Massachusetts' implied warranty of merchantability, is granted because it is duplicative of Count 2; o. Count 15, for breach of Massachusetts' implied warranty of fitness for a particular purpose, is granted; p. Count 16, for violation of Massachusetts' Consumer Protection Law, is denied; q. Count 17, for violation of the New Jersey Consumer Fraud Act, is denied; r. Count 18, for violation of the New York General Business Law Section 349, is denied; s. Count 19, for violation of the New York General Business Law Section 350, is denied; t. Count 20, for violation of Pennsylvania's Unfair Trade Practice and Consumer Protection Law, is denied; u. Count 21, for violation of Texas' implied warranty of merchantability, is denied; v. Count 22, for violation of Texas' implied warranty of fitness for a particular purpose, is granted; and w. Count 23, for violation of Texas' Deceptive Trade Practices and Consumer Protection Act, is denied. The counsel is directed to file a joint status report that includes (a) a proposed discovery schedule; and (b) a statement in regard to any settlement discussions and/or any mutual request for a referral to the assigned Magistrate Judge for a settlement conference. A full-text copy of the Court's Oct. 19, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/5cuywfzs from Leagle.com. GATOR PROTECTION: Fails to Pay Proper Wages, Centeno Suit Alleges ----------------------------------------------------------------- MARTA A. CENTENO, individually and on behalf of all others similarly situated, Plaintiff v. GATOR PROTECTION INCORPORATED a/k/a GPI; RYAN C. JURNEY; and CARMEN J. CARABALLO, Defendants, Case No. 1:21-cv-23703-XXXX (S.D. Fla., Oct. 20, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Centeno was employed by the Defendants as staff. GATOR PROTECTION INCORPORATED a/k/a GPI offers professional cleaning for commercial and retail properties across South Florida. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com GREENGEEKS LLC: Estevez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against GreenGeeks LLC. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. GreenGeeks LLC, Case No. 1:21-cv-08846 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. GreenGeeks -- https://www.greengeeks.com/ -- is a leading webhosting provider.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com HAIN CELESTIAL: Faces Anderberg Suit Over Mislabeled Sunscreens --------------------------------------------------------------- HEIDI ANDERBERG, individually and on behalf of all others similarly situated, Plaintiff v. THE HAIN CELESTIAL GROUP, INC., Defendant, Case No. 3:21-cv-01794-BAS-NLS (S.D. Cal., Oct. 20, 2021) is an action arising from the Defendant's misleading business practices with respect to the labeling, marketing, and sale of its Alba Botanica Hawaiian Sunscreen "Reef-Friendly" branded chemical (or non-mineral) sunscreens. According to the complaint, the Defendant's chemical sunscreens are sold and advertised as "Earth-Friendly" or "Reef-Friendly," yet contain avobenzone ad octocrylene, among other harmful ingredients (homosalate and octyl salicylate). Thus, the sunscreens are being falsely advertised to consumers who are purchasing these sunscreens at a premium with reliance on Defendant's false and deceptive language. The Plaintiff would not have purchased the products had the product been truthfully advertised, says the suit. THE HAIN CELESTIAL GROUP, INC. is a natural and organic beverage, snack, specialty food, and personal care products company. [BN] The Plaintiff is represented by: Ronald A. Marron, Esq. Alexis M. Wood, Esq. Kas L. Gallucci, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Email: ron@consumersadvocates.com alexis@consumersadvocates.com kas@consumersadvocates.com HEALTHCARE INFORMATION: Court Narrows Counterclaims in Federal Suit ------------------------------------------------------------------- In the case, FEDERAL INSURANCE COMPANY, Plaintiff v. HEALTHCARE INFORMATION AND MANAGEMENT SYSTEMS SOCIETY, INC., Defendant, Case No. 20 C 6797 (N.D. Ill.), Judge Robert W. Gettleman of the U.S. District Court, N.D. Illinois, Eastern Division, granted in part and denied in part the Plaintiff's motion to dismiss the counterclaim. Introduction Plaintiff Federal Insurance has brought a three-count amended complaint against its insured, Defendant Healthcare Information, seeking a declaration that it has no duty to defend or indemnify the Defendant in two underlying actions brought against the Defendant as a result of the Defendant's cancellation of its 2020 tradeshow. The Defendant answered the amended complaint, raised nine affirmative defenses and brought a six-count counterclaim asserting that each underlying lawsuit is covered by the policy in question, breach of contract by the Plaintiff for denying coverage as to each underlying lawsuit, and claims for bad faith denial of coverage as to each underlying lawsuit. The Plaintiff has moved to dismiss the counterclaim for failure to state a claim. Background The Defendant, a non-profit corporation, describes itself as a "global advisor and thought leader" serving the "global health information and technology communities." It claims to be the country's oldest and most respected non-profit in the field of health information systems. Its annual flagship event is the "HIMSS Global Conference," a tradeshow that attracts nearly 50,000 attendees, exhibitors, staff, and others, making it one of the largest annual conferences of any type in the United States. The products and services defendant provides at the conference include the development, sponsorship, and presentation of a weeklong program of seminars, courses, colloquia, lectures, and other professional education opportunities. To accomplish this, it leases a convention center and then sublets concrete floor space to exhibitors, who spend tens of thousands of dollars for stalls, displays and presentations to promote their products and services. The 2020 Global Conference was scheduled to begin in Orlando in the second week of March, at the start of the COVID-19 pandemic. As a result, on the advice of an independent panel of public health experts, defendant cancelled the conference shortly before it was to start. Not unexpectedly, this decision left a wake of disappointed exhibitors who had paid non-refundable fees to defendant and had also incurred thousands of dollars in non-recoverable expenses for travel, lodging, and unusable booths, displays, and promotional materials. On June 1, 2020, one of the Defendant's exhibitors, Novarad Corp., sued the Defendant in the Illinois state court, seeking return of its $38,325 exhibitor fee and damages for the "significant resources and amounts to prepare for its exhibit presentation at the convention, including travel, accommodation, signage, and booth development, totaling not less than $120,386.72. One week later, on June 8, 2020, another exhibitor, HatchMed Corp., brought a putative class action in this district court, No. 1:20-CV-3377, asserting that defendant breached its contracts with the putative class members by refusing, based on a force majeure clause in the contracts, to refund the fees paid to the Defendant. The Defendant removed the Novarad state court action to federal court in this district court as related to the HatchMed action. HatchMed then filed an amended complaint adding Novarad as a plaintiff. The parties then reached a settlement of the HatchMed class action which the Court finally approved on June 24, 2021. As part of that settlement, the Plaintiffs released any and all claims they had against the Defendant arising from or relating to the 2020 conference, the cancellation of the conference, or any contract or agreement related to the conference. The Plaintiff issued the Defendant a "ForeFront Portfolio Not-For-Profit Organizations Policy covering Oct. 1, 2019, to Oct. 31, 2020. The Policy's Directors & Officers Entity Liability Section ("D&O coverage") provides that the Plaintiff has a duty to defend covered claims. The pertinent insuring clause of the D&O coverage provides that the Plaintiff shall pay, on behalf of the Defendant Loss which it becomes legally obligated to pay on account of any claim first made against it during the policy period. Loss is defined to mean amounts the Defendant becomes legally obligated to pay on account of any covered claim, including damages, judgments, settlements, and defense costs for a" wrongful act committed, attempted, or allegedly committed or attempted by the Defendant." Loss does not include any amount not insurable under the law applicable to the policy. The D&O coverage also contains two arguably applicable exclusions. The "Professional Services Exclusion" provides that "no coverage will be available under this coverage section for Loss on account of any Claim based upon, arising from, or in consequence of any actual or alleged error, misstatement, misleading statement, act, omission, neglect, or breach of any duty committed, attempted, or allegedly committed or attempted in connection with the rendering of, or actual or alleged failure to render, any Professional Services for others by any person or entity otherwise entitled to coverage under this Coverage Section." The second exclusion, the "Contract Exclusion," provides that the Plaintiff "shall not be liable under the insuring clause for Loss, other than Defense Costs, on account of any Claim based upon, arising from, or in consequence of any actual or alleged liability of the Defendant under any written or oral contract or agreement, provided that this Exclusion 6(a) will not apply to the extent the Defendant would have been liable in the absence of such contract or agreement." The Defendant notified the Plaintiff of the underlying actions and sought coverage and defense. The Plaintiff has denied that it owes a duty to defend or indemnify defendant based on the Professional Services Exclusion or the Contract Exclusion, and that any payment by the Defendant would not constitute a loss under the policy. When the parties could not reach agreement on coverage, the Plaintiff filed the instant action. Discussion The Plaintiff has moved under Fed. R. Civ. P. 12(b)(6) to dismiss the counterclaim for failure to state a claim. To survive such a motion, the counterclaim must contain "enough factual matter (taken as true)" to suggest that a plaintiff is entitled to relief. The counterclaim must include "enough facts to state a claim to relief that is plausible on its face." "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." "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Judge Gettleman opines that the counterclaim states in conclusory fashion that the Plaintiff has acted vexatiously and unreasonably in its denial of coverage as to the underlying lawsuits by taking unreasonable positions with respect to the application of those suits' allegations, failing to provide a reasoned response to the Defendant's coverage letter, and by filing the instant lawsuit. These allegations, he says, are insufficient to plead a plausible basis for relief. Additionally, the complaint and counterclaims both establish a bone fide dispute about coverage. Consequently, Judge Gettleman agrees with the Plaintiff that the counterclaim fails to state a claim for Section 5/155 liability. Counts three and six of the counterclaim are dismissed. Conclusion For the reasons he described, Judge Gettleman granted in part and denied in part the Plaintiff's motion to dismiss the counterclaim. Counts three and six of the counterclaim are dismissed. The motion is denied in all other respects. The Plaintiff is directed to answer the counterclaim by Nov. 12, 2021. Telephonic status hearing set for Oct. 26, 2021, is reset to Dec. 10, 2021, at 9:15 a.m. A full-text copy of the Court's Oct. 19, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/4ek7fmht from Leagle.com. HOEGH LNG: Johnson Fistel Reminds of December 27 Deadline --------------------------------------------------------- Shareholder rights law firm Johnson Fistel, LLP announces that a class action lawsuit has commenced on behalf of investors of HOegh LNG Partners LP (NYSE: HMLP) ("HOegh" or the "Company"). The class action is on behalf of shareholders who purchased HOegh common stock between August 22, 2019 and July 27, 2021. If you wish to serve as lead plaintiff in this class action, you must move the Court no later than December 27, 2021. According to the lawsuit, defendants throughout the Class Period made false and misleading statements and failed to disclose: (1) HOegh LNG Partners LP (the "Partnership") was facing issues with the PGN FSRU Lampung charter; (2) as a result, the PGN FSRU Lampung charterer would state that it would commence arbitration to declare the charter null and void, and to terminate the charter, and seek damages; (3) the Partnership would need to find alternative refinancing for its PGN FSRU Lampung credit facility; (4) the PGN FSRU Lampung credit facility matured in September 2021, not October 2021 as previously stated; (5) the Partnership would be forced to accept less favorable refinancing terms with regards to the PGN FSRU Lampung credit facility; (6) HOegh LNG would not extend the revolving credit line to the Partnership past its maturation date; (7) HOegh LNG would reveal that it "will have very limited capacity to extend any additional advances to the Partnership beyond what is currently drawn under the facility"; (8) as a result of the foregoing, the Partnership would essentially end distributions to common units holders; (9) the COVID-19 pandemic was not the sole or root cause of the Partnership's issues in Indonesia, in 2019, before the pandemic, there were already a very low amount of demand in Indonesia for the Partnership's gas; (10) the auditing, tax, nor maintenance of PGN FSRU Lampung were not the sole or root cause(s) of the Partnership's issues in Indonesia; and (11) as a result, defendants' statements about its business, operations, and prospects were materially false and misleading and lacked a reasonable basis at all relevant times. . A lead plaintiff will act on behalf of all other class members in directing the HOegh class-action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class-action lawsuit. An investor's ability to share any potential future recovery of the HOegh class action lawsuit is not dependent upon serving as lead plaintiff. If you suffered a substantial loss and are interested in learning more about being a lead plaintiff, please contact Jim Baker (jimb@johnsonfistel.com) by email or phone at 619-814-4471. If emailing, please include a phone number. Additionally, you can [click here to join this action]. There is no cost or obligation to you. About Johnson Fistel Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. For more information about the firm and its attorneys, please visit www.johnsonfistel.com. Attorney advertising. Past results do not guarantee future outcomes. [GN] HOEGH LNG: Rosen Law Reminds of December 27 Deadline ---------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the securities of Hoegh LNG Partners LP (NYSE: HMLP) between August 22, 2019 and July 27, 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 27, 2021. SO WHAT: If you purchased HOegh 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 HOegh class action, go to http://www.rosenlegal.com/cases-register-2140.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 27, 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: (1) HOegh LNG Partners LP (the "Partnership") was facing issues with the PGN FSRU Lampung charter; (2) as a result, the PGN FSRU Lampung charterer would state that it would commence arbitration to declare the charter null and void, and/or to terminate the charter, and/or seek damages; (3) the Partnership would need to find alternative refinancing for its PGN FSRU Lampung credit facility; (4) the PGN FSRU Lampung credit facility matured in September 2021, not October 2021 as previously stated; (5) the Partnership would be forced to accept less favorable refinancing terms with regards to the PGN FSRU Lampung credit facility; (6) HOegh LNG would not extend the revolving credit line to the Partnership past its maturation date; (7) HOegh LNG would reveal that it "will have very limited capacity to extend any additional advances to the Partnership beyond what is currently drawn under the facility"; (8) as a result of the foregoing, the Partnership would essentially end distributions to common units holders; (9) the COVID-19 pandemic was not the sole or root cause of the Partnership's issues in Indonesia, in 2019, before the pandemic, there were already a very low amount of demand in Indonesia for the Partnership's gas; (10) the auditing, tax, nor maintenance of PGN FSRU Lampung were not the sole or root cause(s) of the Partnership's issues in Indonesia; and (11) 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. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the HOegh class action, go to http://www.rosenlegal.com/cases-register-2140.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. [GN] HUDSON HALL: Ct. Enters Scheduling Order in Stewart Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as DERRICK STEWART, on behalf of himself, FLSA Collective and the Class, v. HUDSON HALL LLC, d/b/a MERCADO LITTLE SPAIN, et al., Case No. 1:20-cv-00885-PGG-SLC (S.D.N.Y.), the Hon. Judge Sarah L. Cave entered a scheduling order: -- Oral Argument concerning Plaintiff's Motion to Certify Class is scheduled for Wednesday, November 10, 2021 at 2:00 pm, in-person, in Courtroom 18A, 500 Pearl Street, New York, New York. A copy of the Court's order dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3w33x5t at no extra charge.[CC] HUNGRY PET: Estevez Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Hungry Pet Nutrition, LLC. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Hungry Pet Nutrition, LLC, Case No. 1:21-cv-08823 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hungry Pet Nutrition -- https://hungrypet.com/home -- is a manufacturer and supplier of personalized food and supplement products for dogs.[BN] The Plaintiff appears pro se. KALA HEALTH: Estevez Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Kala Health Enrichment, Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Kala Health Enrichment, Inc., Case No. 1:21-cv-08833 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. KALA Health, Inc. -- https://kalahealth.com/ -- is a fast growing company that specializes in the manufacture and distribution of dietary supplements for people and their pets.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com KATE BROWN: Le Case Stayed Pending Resolution of Maney Class Status ------------------------------------------------------------------- In the class action lawsuit captioned as HUY LE v. KATE BROWN et al., Case No. 6:21-cv-01027-SB (D. Or.), the Hon. Judge Stacie F. Beckerman entered an order granting the Defendants' motion to stay, and staying this action pending resolution of class certification in the Maney case. The Court said, "A stay in this case will not result in significant delay, as the motion for class certification in Maney will be fully briefed by January 7, 2022. If the Court grants the Maney Plaintiffs' motion for class certification, Le may elect to proceed as a member of the Damages Class, or he may opt out and litigate his own case. On the other hand, if the Court denies class certification, Le faces only a brief delay in this matter. For these reasons, the Court concludes that staying this litigation will conserve judicial resources by avoiding duplicative litigation, and a stay will not unduly prejudice Le." Huy Le, a self-represented litigant in the custody of the Oregon Department of Corrections (ODOC), filed this civil rights action under 42 U.S.C. section 1983 against Governor Kate Brownand ODOC, alleging violations of his Eighth and Fourteenth Amendment rights. A copy of the Court's order dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3GwRvWC at no extra charge.[CC] KEMPER CORP: Settlement Over Data Breaches Gets Prelim Approval --------------------------------------------------------------- businessinsurance.com reports that a federal district court in Chicago approved a class-action settlement valued at $17.6 million against Kemper Corp. in connection with data breaches that occurred in late 2020 and March 2021. Judge Martha M. Pacold gave her preliminary approval for the settlement agreement and set March 15, 2022, for a final approval hearing in the case, Irma Carrera Aguallo, et al. v. Kemper Corp. et al. According to court papers, Kemper unit Infinity Insurance Co., an auto insurer, was the target of two separate security incidents on Dec. 14, 2020, and March 25, 2021, that accessed personal identifying information about 6.2 million employees and customers. Among the settlement provisions, class members can claim up to $10,000 in reimbursement for out-of-pocket expenses and will be provided automatic access to 18 months of credit monitoring and financial account protection without the need to file a claim. [GN] KEMPER CORPORATION: Fails to Pay Proper Wages, Amador Alleges ------------------------------------------------------------- MARIA GUADALUPE AMADOR, individually and on behalf of all others similarly situated, Plaintiff v. KEMPER CORPORATION, Defendant, Case No. 1:21-cv-05539 (N.D. Il., Oct. 19, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Amador was employed by the Defendant as customer service representative. KEMPER CORPORATION is a financial services provider. The Company specializes in property and casualty, life, health, and accident insurance products and services. [BN] The Plaintiff is represented by: Ryan F. Stephan, Esq. James B. Zouras, Esq. Catherine T. Mitchell, Esq. Megan E. Shannon, Esq. STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, Illinois 60606 Telephone: (312) 233-1550 Facsimile: (312) 233-560 Email: rstephan@stephanzouras.com jzouras@stephanzouras.com cmitchell@stephanzouras.com mshannon@stephanzouras.com -and- Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 Email: clif@a2xlaw.com austin@a2xlaw.com KIDS BEHAVIORAL: Bonanini Suit Seeks to Certify Settlement Class ---------------------------------------------------------------- In the class action lawsuit captioned as VALERIE BONANINI, et al., v. KIDS BEHAVIORAL HEALTH OF MONTANA, INC., dba ACADIA MONTANA, dba ALTACARE OF MONTANA, Case No. 2:19-cv-00035-BMM-KLD (D. Mont.), the Plaintiffs asks the Court to enter an order: 1. certifying the Class for settlement purposes only; and 2. preliminarily approving the proposed settlement and directing appropriate procedural orders that direct notice to the class, provides an opportunity for the class members to be heard and an opportunity for the Court to thereafter approve the proposed settlement and its terms including the compromise of claims, the request for attorney fees of putative class counsel and all other matters appropriately addressed in the resolution of a class action. This action was brought by 29 individual named plaintiffs and the Montana Federation of Public Employees ("Plaintiffs") asserting claims on behalf of themselves and a class of others similarly situated under the Worker Adjustment and Retraining Notification Act (the "WARN Act"). The actions arose out of the closure of the Acadia Montana Treatment Center on July 14, 2019 by Defendant Kids Behavioral Health of Montana, Inc. ("Acadia Montana"). The Plaintiffs allege that Acadia Montana's June 17, 2021 notice of the closure of Acadia Montana Treatment Center was not provided sixty days prior to that closure as required by the WARN Act. Acadia Montana asserts that no notice was required under the WARN Act because, based upon its roster of full-time, part-time, and PRN employees and their average work hours per week within the relevant time period, it was not a covered "Employer" within the meaning of the WARN Act, and thus did not have any statutory notice obligations. It also asserts that even if it were a covered "Employer," the timing of the closure resulted from unforeseeable business circumstances, relieving it from strict compliance with the WARN Act's timing requirements, and the June 17 notice was effective under the WARN Act. The Parties have stipulated, for settlement purposes only, to a Class consisting of: "all former employees of Kids Behavioral Health of Montana, Inc., doing business as Acadia Montana, including both those who were represented by Montana Federation of Public Employees and those who were not, who were laid off without cause as part of the closure of Acadia Montana effective July 14, 2019." They have agreed to a settlement of this case as a compromise of the disputed issues, with Acadia Montana paying the total sum of $354,719.41 to be distributed to Class members as provided in the Settlement Agreement." All of 30 original plaintiffs, except Amy Martin, Jean Parnell and Jim Boothe (who have not responded to all attempts to contact them), have electronically executed the settlement agreement. Ten additional class members who were not named that previously retained Robert McCarthy have also electronically executed the proposed agreement including Steven Aanes, Karen Allen, Larry Dorland, Gloria Golimowski, Lisa Horsley, Jessica Keenan, Waynaka Miller, Patricia Peterson, Katheryn Schimming and Scott Wohlman. Kids Behavioral is a mental health care company. A copy of the Plaintiffs' motion to certify class dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3pTe6H5 at no extra charge.[CC] The Plaintiffs are represented by: Robert G. McCarthy, Esq. MCCARTHY LAW, PC 101 Atcheson Lane Butte, MT 59701 Telephone: (406) 494-2500 E-mail: bob@mccarthylaw.net KINGLAND CO: Fails to Pay Overtime, Czarnecki et al. Claim ---------------------------------------------------------- SHANNON CZARNECKI and KENNETH CZARNECKI, on behalf of themselves and all others similarly-situated, Plaintiffs v. THE KINGLAND COMPANY, LTD., CROSBY COMPANY, LTD., MARK M. CROSBY, and ANTOINETTE M. CROSBY, Defendants, Case No. 2:21-cv-05031 (S.D. Ohio, October 13, 2021) is a collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act. The Plaintiffs, who have worked for the Defendants as maintenance workers, claim that they and other similarly situated were misclassified by the Defendants as "independent contractors." The Defendants allegedly denied them of their lawfully earned overtime compensation at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per workweek. Instead, they were only paid a flat, hourly rate for all hours worked. The Crosby Companies are part of a realty and property management business that owns and rents property throughout the Columbus, Ohio region. Mark M. Crosby and Antoinette M. Crosby are co-owners of the Corporate Defendants. [BN] The Plaintiffs are represented by: Chris P. Wido, Esq. THE SPITZ LAW FIRM, LLC 25200 Chagrin Boulevard, Suite 200 Beachwood, OH 44122 Tel: (216) 291-4744 Fax: (216) 291-5744 E-mail: chris.wido@spitzlawfirm.com KLEAN KANTEEN: Estevez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Klean Kanteen, Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Klean Kanteen, Inc., Case No. 1:21-cv-08830 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Klean Kanteen -- https://www.kleankanteen.com/ -- offers insulated water bottles, mugs, cups, tumblers, food containers and steel straws.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com LA NOPALERA BEACH: Fails to Pay Proper Wages, Briseno Alleges ------------------------------------------------------------- ELVIS H. BRISENO; and SEBASTIAN GARZON, individually and on behalf of all others similarly situated, Plaintiffs v. LA NOPALERA BEACH BLVD., INC. A/K/A LA NOPALERA MEXICAN RESTAURANT; and LORENA VALENCIA, Defendants, Case No. 3:21-cv-01059 (M.D. Fla., Oct. 20, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiffs were employed by the Defendants as waiters. LA NOPALERA BEACH BLVD., INC. A/K/A LA NOPALERA MEXICAN RESTAURANT owns and operates a Mexican restaurant in Jacksonville, Florida. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com LAND OCEAN: Brooks' Individual Claims Dismissed With Prejudice -------------------------------------------------------------- In the case, VALERIE BROOKS, individually and on behalf of all others similarly situated, Plaintiff v. LAND OCEAN, INC., a California corporation; and DOES 1 to 10, inclusive, Defendants, Case No. 2:21-cv-00105-AC (E.D. Cal.), Magistrate Judge Allison Claire of the U.S. District Court for the Eastern District of California issued an order granting stipulation of dismissal of the case with prejudice. The Court granted in full Plaintiff Brooks and Defendant Land Ocean's join request for dismissal with prejudice as to the Plaintiff's individual claims in their entirety and without prejudice as to the claims of the absent putative class members. Each party will bear his or its own fees and costs. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/kfdxhza from Leagle.com. LIFE ALERT: Andrews Sues Over Unauthorized Bank Fund Transfer ------------------------------------------------------------- PHYLLIS ANDREWS, individually and on behalf of all others similarly situated, Plaintiff v. LIFE ALERT EMERGENCY RESPONSE, INC.; and DOES 1-10, Defendant, Case No. 5:21-cv-01769 (C.D. Cal., Oct. 19, 2021) alleges violation of the Electronic Funds Transfer Act. According to the complaint, the Defendant's salesperson represented to the Plaintiff that the agreement for the Defendant's services was a month-to-month agreement, requiring her to pay the Defendant $89 dollars on the 3rd day of each month. This payment was made by an automatic debit to the Plaintiff's checking account made by the Defendant. In reality, the agreement was a "negative option", requiring the Plaintiff to inform the Defendant and return the Defendant's equipment in order to cancel the agreement. In or around late February 2021, the Plaintiff called the Defendant and attempted to cancel her agreement with the Defendant. The Plaintiff promptly sought to return the equipment to the Defendant, says the suit. Despite receiving the Plaintiff's notice of cancellation of the agreement, the Defendant continued to automatically withdraw funds from the Plaintiff's account in the amount of $89 dollars. The Plaintiff was surprised by this withdrawal and issued a charge back through her bank account. The Defendant charged the Plaintiff for an automatic renewal offer without first obtaining the Plaintiff's affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms, the suit added. LIFE ALERT EMERGENCY RESPONSE, INC. provides home audio monitoring protection services. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21031 Ventura Blvd, Suite 340 Woodland Hills, CA 91364 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com LOCKHEED MARTIN: Rosen Law Investigates Potential Securities Claims ------------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces an investigation of potential securities claims on behalf of shareholders of Lockheed Martin Corporation (NYSE: LMT) resulting from allegations that Lockheed Martin may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Lockheed Martin 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-2189.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On October 26, 2021, Lockheed Martin announced its third quarter 2021 financial results. In its report, Lockheed Martin indicated that it would incur a $1.7 billion non-cash pension settlement charge, which would decrease the company's net income by $4.72 per share. Following this news, Lockheed Martin's stock fell $44.42 per share, or 11.8%, and closed at $331.91 per share that same day. 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. [GN] MADE IN MEXICO: Fails to Pay Proper Wages, Batista Suit Alleges --------------------------------------------------------------- CYNTHIA BATISTA, individually and on behalf of all others similarly situated, Plaintiff v. MADE IN MEXICO UPTOWN CORP.; MADE IN MEXICO HARLEM CORP.; HENRY BOURDIER; and ISMAEL GARCIA, Defendants, Case No. 1:21-cv-08606 (S.D.N.Y., Oct. 20, 2021) is an action against the Defendant for failure to pay minimum wages, overtime compensation, and provide accurate wage statements. Plaintiff Batista was employed by the Defendants as waitress. MADE IN MEXICO UPTOWN CORP. owns and operates a Mexican restaurant in New York, New York. [BN] The Plaintiff is represented by: Nicola Ciliotta, Esq. KATZ MELINGER PLLC 280 Madison Avenue, Suite 600 New York, NY 10016 Telephone: (212) 460-0047 Facsimile: (212) 428-6811 Email: nciliotta@katzmelinger.com MARRIOTT INT'L: $2.2M Class Settlement in Martin Suit Wins Final OK ------------------------------------------------------------------- In the case, CYRIL MARTIN, et al., Plaintiffs v. MARRIOTT INTERNATIONAL, INC., et al., Defendants, Civil No. 18-00494 JAO-RT (D. Haw.), Judge Jill A. Otake of the U.S. District Court for the District of Hawaii grants: (1) the Plaintiffs' Motion for Final Approval of Class Settlement and Entry of Order and Final Judgment; (2) the Defendants' Motion for Final Approval of Class Action Settlement; and (3) the Plaintiffs' Motion for Award of Attorneys' Fees, Reimbursement of Costs and Expenses, and Class Representative Service Awards. The settlement amount--$1,825,435.48 (original fund) and $350,000.00 (additional funding)--is reasonable under the circumstances, the Court states. Each class member will recover an average of $35.00 per night (nearly $22.00 per night after deduction of fees and administrative expenses) for each night they stayed at one of the subject properties. Background The action arises out of the disruptions caused by the hotel workers' strike at Defendants' properties where the Plaintiffs stayed as guests in late 2018. The Plaintiffs commenced the lawsuit in state court on Nov. 8, 2018, alleging that hotel services and amenities were limited or eliminated due to the strike. They asserted Hawai'i Revised Statutes ("HRS") Chapter 480 unfair and deceptive acts and practices and unjust enrichment claims. On Dec. 20, 2018, the Defendants removed the action. After engaging in mediation, the parties reached a settlement in October 2019 and provided the Court with the key terms. On Aug. 20, 2020, the parties entered into a Settlement Agreement and Release. On Jan. 14, 2021, the Plaintiffs sought class certification for settlement purposes and preliminary approval of a class action settlement, notice, and dissemination plan. On Feb. 19, 2021, the Court issued an Order: (1) Preliminarily Approving Class Action Settlement Agreement, (2) Approving Form of Notice, (3) Establishing Objection Deadline, (4) Directing Dissemination of Notice, and (5) Setting Final Fairness Hearing Re: Settlement between Plaintiffs and Defendants. Pursuant to the Preliminary Approval Order, the parties filed the pending motions: (1) the Plaintiffs' Motion for Final Approval of Class Settlement and Entry of Order and Final Judgment; (2) the Defendants' Motion for Final Approval of Class Action Settlement; and (3) the Plaintiffs' Motion for Award of Attorneys' Fees, Reimbursement of Costs and Expenses, and Class Representative Service Awards. On Oct. 1, 2021, the Court held a final fairness hearing, at which it heard the pending motions. Discussion The Plaintiffs ask the Court to (1) approve the settlement; (2) enjoin further prosecution of the settled claims; (3) dismiss the case with prejudice and release the claims as set forth in the proposed Order and Final Judgment; and (4) award $547,630.64 in attorneys' fees plus general excise tax, $42,290.09 in costs and expenses, and $2,500 per Class Representative as a service award. The Defendants request the same relief regarding the settlement and approval, and they take no position on the fee motion. After carefully considering the motions, the Settlement Agreement, and the applicable law, Judge Otake grants the motions and approves the settlement. Neither the counsel nor the Court have received written objections to the motions or the settlement, and no class members presented objections at the hearing. Order The requirements of FRCP 23(e) have been satisfied and the Settlement Agreement is fair, reasonable, and adequate. Judge Otake certifies the Settlement Class, as described in Section 1.33 of the Settlement Agreement. James J. Bickerton and Bridget G. Morgan-Bickerton of Bickerton Law Group LLLP, are finally appointed as the class counsel for purposes of the settlement. The parties and counsel are directed to implement the Settlement Agreement according to its terms and provisions. Judge Otake approves $547,630.64 in attorneys' fees plus general excise tax and $42,290.09 in costs. These amounts will be paid from the settlement fund. The Settlement Agreement, the Order, and the final judgment will be binding on, and have res judicata and preclusive effect in, all pending and future lawsuits or other proceedings encompassed by the Plaintiffs' releases and/or that are based, in whole or in part, on the released claims. The case (including all individual claims and class claims presented) is dismissed on the merits with prejudice with the parties to bear their own attorneys' fees and costs, except as provided therein. Without affecting the finality of the final judgment for purposes of appeal, the Court retains jurisdiction regarding all matters relating to the administration, consummation, and enforcement of the Settlement Agreement and for any other necessary purpose relating to the settlement. The Plaintiffs and all the class members are barred and permanently enjoined from filing lawsuits or participating in actions based on or relating to the claims falling within the scope of the Settlement Agreement. Judge Otake directs the Clerk's Office to enter final judgment and close the case. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/4vx2zdsw from Leagle.com. MCKENDREE UNIVERSITY: Students Appeal Dismissal of Class Action --------------------------------------------------------------- Steve Korris at madisonrecord.com reports that McKendree University students Kelsey DeLisle and Kaitlin Pennington have asked U.S. Seventh Circuit appellate judges to review an order finding that the school didn't promise to teach them in person. On Oct. 26, they filed an appeal notice with U.S. District Judge Staci Yandle of Benton, who dismissed their class action complaint in September. Yandle found McKendree's catalogs and website didn't contain an explicit promise of services in person. DeLisle and Pennington sued McKendree in September 2020, as representatives of all students who paid in whole or in part for the spring 2020 semester. Richard Cornfeld of St. Louis filed their complaint in St. Clair County circuit court. McKendree removed it to district court, claiming the amount in controversy exceeded the $5 million limit on class actions in state courts. McKendree counsel Kyle Seelbach of St. Louis moved to dismiss in December, claiming Illinois bars educational malpractice claims. "Plaintiffs do not allege that McKendree's actions were motivated by anything other than health and safety concerns," he wrote. Yandle didn't apply the educational malpractice doctrine, ruling instead that she couldn't find a breach of contract. [GN] MDL 2972: Claims in Blackbaud Customer Data Breach Suit Narrowed ---------------------------------------------------------------- In the case, N RE: BLACKBAUD, INC., CUSTOMER DATA BREACH LITIGATION, Case No.: 3:20-mn-02972-JMC, MDL No. 2972 (D.S.C.), Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina, Columbia Division, granted in part and denied in part Blackbaud's Motion to Dismiss four of the Plaintiffs' common law claims. Background Blackbaud is a publicly traded cloud software company incorporated in Delaware and headquartered in Charleston, South Carolina. The company provides data collection and maintenance software solutions for administration, fundraising, marketing, and analytics to social good entities such as non-profit organizations, foundations, educational institutions, faith communities, and healthcare organizations ("Social Good Entities"). Its services include collecting and storing Personally Identifiable Information ("PII") and Protected Health Information ("PHI") from its customers' donors, patients, students, and congregants. In the action, the Plaintiffs represent a putative class of individuals whose data was provided to Blackbaud's customers and managed by Blackbaud. Thus, the Plaintiffs are patrons of Blackbaud's customers rather than direct customers of Blackbaud. The Plaintiffs assert that, from Feb. 7, 2020 to May 20, 2020, cybercriminals orchestrated a two-part ransomware attack on Blackbaud's systems. Cybercriminals first infiltrated Blackbaud's computer networks, copied the Plaintiffs' data, and held it for ransom. When the Ransomware Attack was discovered in May 2020, the cybercriminals then attempted but failed to block Blackbaud from accessing its own systems. Blackbaud ultimately paid the ransom in an undisclosed amount of Bitcoin in exchange for a commitment that any data previously accessed by the cybercriminals was permanently destroyed. The Plaintiffs maintain that the Ransomware Attack resulted from Blackbaud's "deficient security program." They assert that Blackbaud failed to comply with industry and regulatory standards by neglecting to implement security measures to mitigate the risk of unauthorized access, utilizing outdated servers, storing obsolete data, and maintaining unencrypted data fields. The Plaintiffs further allege that after the Ransomware Attack, Blackbaud launched a narrow internal investigation into the attack that analyzed a limited number of Blackbaud systems and did not address the full scope of the attack. They contend that Blackbaud failed to provide them with timely and adequate notice of the Ransomware Attack and the extent of the resulting data breach. They claim that they did not receive notice of the Ransomware Attack "until July of 2020 at the earliest." The Plaintiffs allege that they subsequently received notices of the Ransomware Attack from various Blackbaud customers at different points in time from July 2020 to January 2021. They maintain that although Blackbaud initially represented that sensitive information such as SSNs and bank account numbers were not compromised in the Ransomware Attack, Blackbaud informed certain customers in September and October 2020 that SSNs and other sensitive data were in fact stolen in the breach. Additionally, on Sept. 29, 2020, Blackbaud filed a Form 8-K with the Securities and Exchange Commission stating that SSNs, bank account information, usernames, and passwords may have been exfiltrated during the Ransomware Attack. After the Ransomware Attack was made public, putative class actions arising out of the intrusion into Blackbaud's systems and subsequent data breach were filed in state and federal courts across the country. On Dec. 15, 2020, the Judicial Panel on Multidistrict Litigation consolidated all federal litigation related to the Ransomware Attack into the multidistrict litigation ("MDL") for coordinated pretrial proceedings. On April 2, 2021, 34 named Plaintiffs from 20 states filed a Consolidated Class Action Complaint ("CCAC") alleging that their PII and/or PHI was compromised during the Ransomware Attack. They assert six claims on behalf of a putative nationwide class as well as ninety-one (91) statutory claims on behalf of putative state subclasses. To facilitate the efficient resolution of the litigation, the court ordered various phases of motions practice to address jurisdictional issues, certain statutory claims, and specific common law claims. This phase addresses the common law claims. Blackbaud filed the instant Motion to Dismiss pursuant to Rule 12(b)(6) on July 9, 2021, contending that the Plaintiffs' negligence, negligence per se, gross negligence, and unjust enrichment claims should be dismissed for failure to state a claim. The Plaintiffs filed a Response on Aug. 9, 2021. Judge Childs held a hearing on the Motion to Dismiss on Sept. 2, 2021. Discussion I. Applicable Law Judge Childs applies South Carolina law, for the purpose of the present motion, to determine whether the Plaintiffs have stated claims for negligence, gross negligence, and negligence per se. Unlike the choice of law analysis applicable to tort claims, it is unclear whether South Carolina would apply the First or Second Restatement's choice of law analysis to unjust enrichment claims. For tort claims, South Carolina uses the lex loci delicti analysis of the First Restatement of Conflict of Laws. The goals of the First Restatement were to "reduce forum shopping and increase predictability and uniformity" of result. Factors to consider under this approach include: (1) "the place where a relationship between the parties was centered"; (2) the place where the benefit was received; (3) the place where the acts conferring the benefit were done; and (4) the domicile, place of incorporation and place of business of the parties. In the case, Judge Childs finds that the Plaintiffs do not allege they have a direct or contractual relationship with Blackbaud. Accordingly, her focus under either Restatement test for unjust enrichment claims is on the place where the benefit was received. Blackbaud's headquarters and principal place of business is in South Carolina, therefore Blackbaud received any alleged benefit in South Carolina. Accordingly, South Carolina law applies to determine whether the Plaintiffs have stated claims for unjust enrichment. II. Motion to Dismiss Blackbaud contends that the court should dismiss the Plaintiffs' common law negligence, negligence per se, gross negligence, and unjust enrichment claims for failure to state a claim. Judge Childs evaluates the Plaintiffs' allegations in the light most favorable to them as the nonmovants and remains mindful that a motion to dismiss "tests only the sufficiency of those allegations and not the ultimate success of the Plaintiffs' legal theories." A. Negligence - Duty The Plaintiffs assert negligence claims against Blackbaud on behalf of the Plaintiffs and the Nationwide Class, or alternatively, on behalf of the Plaintiffs and the subclasses. Blackbaud contends the Plaintiffs' claims fail because they cannot establish Blackbaud owed the Plaintiffs a duty of care. Judge Childs finds the Plaintiffs have alleged sufficient facts to support their assertion that Blackbaud owed them a duty based on the special circumstances of its contracts with the Social Good Entities and Blackbaud's alleged creation of the risk. Accordingly, she declines to dismiss the Plaintiffs' general negligence claims based on their failure to allege a duty. B. Gross Negligence Blackbaud also argues that each of the Plaintiffs' claims for gross negligence fail because the Plaintiffs cannot show Blackbaud owed them a duty. Generally, to state a claim for gross negligence a plaintiff must plead the same elements as a claim for negligence. However, negligence is the failure to exercise due care, while gross negligence is the failure to exercise slight care. Because the Judge Childs finds the Plaintiffs have sufficiently alleged the duty owed by Blackabud and Blackbaud has not challenged the Plaintiffs' gross negligence claims on any other basis, she declines to dismiss the Plaintiffs' gross negligence claims at this time. C. Negligence Per Se The Plaintiffs assert claims for negligence per se based upon Blackbaud's alleged violations of the Federal Trade Commission Act ("FTC Act"), the Healthcare Insurance Portability and Accountability Act of 1996 ("HIPAA"), and the Children's Online Privacy Protection Act ("COPPA"). Blackbaud argues the Plaintiffs' negligence per se claims fail because South Carolina law requires that "the underlying statute purporting to form the basis for a negligence per se claim must itself provide a private claim for relief," but the statutes the Plaintiffs cite provide no such relief. Judge Childs dismisses the Plaintiffs' negligence per se claims premised on the HIPAA, the FTC Act, and the COPPA are dismissed. She holds that the Plaintiffs have not sufficiently alleged a cause of action for negligence per se under South Carolina law based on the FTC Act. To base their negligence per se claims on the FTC Act, the Plaintiffs must show that the statute was designed to protect a particular individual or group of people and that they are members of that group. The Plaintiffs have not done so. Although the Plaintiffs broadly allege in the CCAC that they are members of the class the FTC Act was designed to protect, they do not actually define or otherwise explain the parameters of such a group. And even if she were to find the COPPA was an appropriate basis for a negligence per se claim, the Plaintiffs have not adequately alleged they are within the class the statute seeks to protect. The only Named Plaintiff with claims regarding minor children is Plaintiff Coty Martin. Plaintiff Martin, however, does not allege that Blackbaud operated a commercial website or online service directed to children under the age of 13 or that Blackbaud collected information from his minor child as defined by 16 C.F.R. Section 312.2. Accordingly, the Plaintiffs have not sufficiently alleged a cause of action for negligence per se under South Carolina law based on a violation of the COPPA. D. Negligence - Damages Blackbaud asserts the Plaintiffs' claims for negligence, gross negligence, and negligence per se all fail because the Plaintiffs fail to allege damages cognizable in tort because they merely offer "conclusory allegations that they `face an imminent risk of future harm,'" and, "to the extent the Plaintiffs allege they have already been the victims of fraud, their allegations simply reflect temporal proximity between the alleged fraud and the Ransomware Attack, but with no actual causal link." Judge Childs holds that the Plaintiffs assert they have suffered injuries arising from Blackbaud's negligence in the form of risk of extortion, unauthorized disclosure of their Private Information to third-party cybercriminals, loss of value in their Private Information, risk of future identity theft or fraud, and out-of-pocket mitigation expenses. All 34 Named Plaintiffs maintain that they have spent time and money to mitigate their exposure to identity theft or fraud as a result of the Ransomware Attack. Further, the Plaintiffs have sufficiently alleged a causal link between the Ransomware Attack and their damages to survive a motion to dismiss. They plausibly allege that Blackbaud had custody of their Private Information, that Blackbaud's systems were hacked, that these hackers obtained the Plaintiffs' Private Information, and that as a result of the Ransomware Attach, they have suffered identity theft and other fraudulent activity. These allegations are sufficient at the pleading stage to establish that the Ransomware Attack was the cause of these injuries. Therefore, Judge Childs finds the Plaintiffs have alleged injuries cognizable in tort under South Carolina law. E. Unjust Enrichment Blackbaud contends the Plaintiffs' claims for unjust enrichment should be dismissed because several states do not recognize a freestanding claim for unjust enrichment, the Plaintiffs have failed to allege Blackbaud received a benefit from them, and retention of any benefit conferred would not be unjust. The Plaintiffs appear to allege that they conferred a benefit on Blackbaud because Blackbaud was paid to store their information safely and that retaining such a benefit would be unjust because Blackbaud did not safely store the information as promised. Judge Childs opines that the Plaintiffs have not alleged facts to show that they conferred a benefit on Blackbaud to support claims for unjust enrichment. First, the Plaintiffs have not alleged that they provided their Private Information "in consideration for" Blackbaud's services. Second, the Plaintiffs do not allege that they chose to utilize Blackbaud's services in the first place, nor have they alleged that they would not have sought or purchased Blackbaud's services had they known its data security was inadequate. Third, the CCAC does not put forth any allegations that the Plaintiffs paid for Blackbaud's services or directly provided their information to Blackbaud. For these reasons, Judge Childs finds dismissal of the Plaintiffs' unjust enrichment claims appropriate. Conclusion For the foregoing reasons, Judge Childs grants in part and denies in part Blackbaud's Motion to Dismiss. Specifically, she (i) denies Blackbaud's Motion to Dismiss Plaintiffs' negligence and gross negligence claims and (ii) grants Blackbaud's Motion to Dismiss the Plaintiffs' negligence per se and unjust enrichment claims. A full-text copy of the Court's Oct. 19, 2021 Order & Opinion is available at https://tinyurl.com/853fsxj8 from Leagle.com. MEDTRONIC INC: Faces Class Action Over Defective Insulin Pumps -------------------------------------------------------------- Rochon Genova LLP and Cardill Law have commenced a proposed national class action on behalf of Canadian users of Medtronic MiniMed 630G and 670G insulin pumps against Medtronic, Inc., Medtronic MiniMed Inc., and Medtronic of Canada Ltd. The MiniMed 630G and 670G are medical devices used to manage diabetes. They were approved for use in Canada in 2016 and 2018. The MiniMed 600 series of insulin pumps has become one of the most commonly used in Canada and North America. The MiniMed 600 series of insulin pumps have been subject to recalls due to reports of missing or broken retainer rings that could potentially cause over or under delivery of insulin. Health Canada issued a Type II Medical Device Recall for these insulin pumps on November 21, 2019, and a Type I recall on October 15, 2021. The FDA issued a Class 1 recall - the most serious type of recall - on February 7, 2020. At the time of the FDA recall, Medtronic had received over 26,000 complaints including over 2,000 injuries and at least 1 death. The proposed class action alleges, among other things, that the Defendants knew, or ought to have known, that these devices suffered from a defective retainer ring, yet failed to take steps to address this defect or provide any warnings of the users of the pump until the devices had been on the market for several years and were in use by thousands of Canadians resulting in significant harm to the plaintiffs and class members. One of the proposed Representative Plaintiffs began using a MiniMed 630G in 2017. She was hospitalized due to severe hyperglycemia. She says that this episode drastically affected her: "I turned to my mom not able to fully see yet from the swelling in my brain and thought I'm going to die." Joel Rochon, a partner at Rochon Genova LLP, stated, "Canadians have a right to be informed about the risks associated with the medical devices that they use. Failure to provide adequate warnings can have serious consequences. In this case, the plaintiffs needlessly suffered severe hyperglycemia requiring hospitalization." The claims have not yet been proven in court. For information about the proposed class action please contact Jon Sloan at (416) 363-1867 or 1-866-881-2292. [GN] MICHAEL ANDREWS: Court Dismisses With Prejudice Bostic FDCPA Suit ----------------------------------------------------------------- In the case, TONYA E. BOSTIC, Plaintiff v. MICHAEL ANDREWS & ASSOCIATES, LLC, Defendant, Case No. 21-cv-10419 (E.D. Mich.), Judge Paul D. Borman of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants the Defendant's Motion to Dismiss Plaintiff's First Amended Complaint, and denies the Plaintiff leave to amend her First Amended Complaint. Background The case arises out of the Defendant's attempts to collect a debt from Plaintiff Bostic. On March 3, 2021, the Plaintiff filed her First Amended Class Action Complaint. In it, she alleged that in July of 2016, she obtained a "vehicle loan" from First Investors Financial Services. In 2019, she could not keep up with the payments due on that loan, and she "voluntarily surrendered the vehicle to First Investors." After the vehicle was liquidated, an alleged deficiency balance of $5,239.52 ("subject debt") remained, and First Investors sold or assigned this subject debt to Autovest, LLC. On Aug. 5, 2020, Autovest sent the Plaintiff a dunning letter that alleged that she owed them the subject debt and advised her of her dispute rights under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692g. This was Autovest's first communication with the Plaintiff. "Shortly" after sending this letter, Autovest placed the subject debt with the Defendant, a debt collector, for collection. On Aug. 24, 2020, the Plaintiff sent a letter to Autovest "(1) disputing the subject debt; (2) requesting validation of the subject debt; and (3) requesting that Autovest cease any credit reporting until the subject debt [was] validated." Autovest did not respond to this letter. However, "upon information and belief, Autovest forwarded the Plaintiff's dispute letter to the Defendant." The Defendant "attempted to collect the subject debt by placing collection calls to the Plaintiff's cellular phone." On one answered call, the Plaintiff told the Defendant that "she disputed the subject debt with Autovest" and "requested that the collection calls cease." However, the Defendant's representative replied that the "Defendant was allowed to continue its collection efforts until the subject debt was paid." Thereafter, the Defendant continued calling the Plaintiff. On Jan. 8, 2021, "in an effort to further harass Plaintiff and to compel payment on the subject debt, the Defendant accessed the Plaintiff's Experian credit report through a 'hard inquiry.'" This type of inquiry "adversely impacted" the Plaintiff's credit score and "will remain on her Experian credit report until February 2023." Although the Defendant "could have easily accessed the Plaintiff's credit report through a 'soft inquiry,' which does not adversely impact a consumer's credit score," the Defendant chose to conduct a "hard inquiry" "for the sole purpose of compelling payment on the subject debt as the 'hard inquiry' had the natural consequence of leading the Plaintiff to believe that the Defendant would continue harming the Plaintiff's credit score by conducting 'hard inquiries' until the debt was paid." After presenting these factual allegations, the Plaintiff asserted three claims for relief. On Counts I and II, brought on behalf of Plaintiff and members of a putative class, the Plaintiff claimed that the Defendant violated 15 U.S.C. Sections 1692d and 1692f by "(1) repeatedly placing collection calls to the Plaintiff after the Plaintiff requested that the calls cease; and (2) conducting a 'hard inquiry' on the Plaintiff's Experian credit report in an effort to compel payment on the subject debt." On Count III, brought on behalf of the Plaintiff individually, the Plaintiff claimed that the Defendant violated 15 U.S.C. Section 1692g(b) by "continuing its efforts to collect the subject debt after the Plaintiff requested validation of the subject debt" -- in the letter that the Plaintiff sent to Autovest, and that Autovest forwarded to the Defendant -- "and before the subject debt was validated." Discussion A. Defendant's Motion to Dismiss Plaintiff's Section 1692d Claim On April 27, 2021, the Defendant filed its Motion to Dismiss Plaintiff's First Amended Complaint, which alleges that it violated 15 U.S.C. Sections 1692d, 1692f, and 1692g(b) of the FDCPA. On June 14, the Plaintiff filed a Response, and on June 29, the Defendant filed a Reply to the Plaintiff's Response. The Defendant argues that "the allegations do not support a finding that either the pattern or volume of calls suggests intent to harass or annoy." It explains that the Plaintiff "does not contend that the calls were made 'at a time and place known to be inconvenient,'" and that the FDCPA "does not recognize a cause of action based on an oral request to cease calling." Next, the Defendant notes that the FCRA "does not draw distinctions between 'hard' and 'soft' inquiries'" and "there is no limitation on the type of report a debt collector can pull." It observes that "for a communication to be in connection with the collection of a debt, an animating purpose of the communication must be to induce payment by the debtor." The Defendant reasons, it did not "even tell the Plaintiff that it would run a credit check," and thus its purpose could not have been to induce her to pay her debt. In response, the Plaintiff emphasizes that she has alleged "that the Defendant violated Section 1692d of the FDCPA by repeatedly placing collection calls to her (1) after the Defendant had knowledge that she disputed the debt and sought verification of the same; and (2) after she requested that the calls cease. She notes that "the failure to request that a debt collector's communication cease in writing only forecloses a claim under Section 1692c(c)." Additionally, the Plaintiff points out that the "litany of cases" that Defendant cites "to support its position that her allegations of unwanted phone calls are insufficient to sustain a Section 1692d claim at the pleading stage" were "all decided at the summary judgment stage." The Plaintiff then argues that the "hard inquiry" bolsters her claim, because she alleged that the Defendant could have conducted a "soft inquiry," but instead chose a "hard inquiry" for the purpose of compelling payment on the subject debt. She relates that Ramirez found that "just because a hard inquiry is permissible under the FCRA does not mean it cannot violate the FDCPA." She also distinguishes Ramirez and Thiessen by noting that they considered "hard inquiries" in isolation. The Defendant replies that "the FDCPA proscribes specific conduct and the caselaw applying the statute recognizes that all debt collection can be 'unwanted by a debtor' but not all unwanted debt collection efforts violate the FDCPA." It contends that "whether the calls are 'harassing' under the FDCPA is a legal conclusion the Court cannot accept as true" on Plaintiff's Amended Complaint, which alleges "no facts that support an inference that the calls were harassing." The Defendant also argues that the Plaintiff "does not answer the argument that the credit inquiry was not a 'communication' under the FDCPA" and "does not even suggest that the calls," "were related in any way to the 'hard inquiry.' "It concludes, "the FDCPA does not recognize a cause of action based on lawful activity the debtor finds offensive." Judge Borman dismisses this claim. Among other things, she opines that the Plaintiff's phone-call allegations are mostly conclusory and vague. She does not address what was said on all but one of the calls, nor does she specify their frequency, besides twice stating that the Defendant called "repeatedly" -- a characterization that merely "parrots" the statute. Additionally, the Plaintiff makes no allegation that Defendant used rude or threatening language. The Plaintiff's hard inquiry allegation fails to appreciably strengthen her case, Judge Borman notes. Both district courts that have considered the issue have found that a single hard inquiry alone does not support a Section 1692d claim. The Plaintiff's allegation that Defendant used the hard inquiry "for the sole purpose of compelling payment on the subject debt," is speculative. She does not offer any support for her assertion that the Defendant's hard inquiry "had the natural consequence of leading her to believe that the Defendant would continue harming [her] credit score by conducting Thud inquiries' until the debt was paid." Tellingly, she does not allege that Defendant ever performed a second hard inquiry or even mentioned the first one to her. B. Defendant's Motion to Dismiss Plaintiff's Section 1692f Claim The Defendant's Motion to Dismiss and Reply both address Sections 1692d and 1692f together. In her Response, the Plaintiff argues that her "allegations that the harassing unwanted collection calls were unfair, which must be accepted as true at the pleading stage, are sufficient to state a claim under Section 1692f," and that, "at the very least, whether the conduct is unfair is a question of fact that cannot be decided at the pleading stage." Judge Borman dismisses the Plaintiff's Section 1692f claim. He opines, the Defendant's "repeated" phone calls naturally fall under Section 1692d, which explicitly addresses phone calls. The Plaintiff does not include any allegations that paint these calls as "unfair" or "unconscionable" rather than as harassing or oppressive. Therefore, the phone-call allegations should be analyzed under Section 1692d, not Section 1692f. And the Defendant's alleged "hard inquiry" was hardly unfair or unconscionable. To the contrary, the FCRA permits such an inquiry, and been found that it does not, alone, violate the FDCPA. Moreover, the hard inquiry explainer that the Plaintiff cites in her Complaint assures consumers that "while inquiries often can play a part in assessing risk, they play a minor part and are only 10% of what makes up a FICO Score." C. Defendant's Motion to Dismiss Plaintiff's Section 1692g(b) Claim The Defendant asserts that "Section 1962g clearly states that, when a debtor notifies a debt collector in writing that the creditor disputes a debt, the debt collector must cease collection efforts until the debt is validated." Therefore, it concludes, the Plaintiff fails to state a claim under "the plain reading of the statute," because she alleges only that she notified in writing the creditor (Autovest), not the debt collector (Defendant). The Plaintiff's Response claims that "under the FDCPA, knowledge may be imputed to agents." She elaborates that "by alleging that Autovest placed the debt for collection with the Defendant, the Plaintiff has plausibly alleged an agency relationship between Autovest and Defendant" and therefore "Autovest's knowledge that she disputed the debt may be imputed to the Defendant, thus prohibiting it from collecting the debt until it provided verification of the same." She also emphasizes that she alleged that Autovest notified the Defendant of her dispute letter, and that she told it on a call about her dispute of the debt. The Defendant's Reply clarifies that "courts do not impute to debt collectors other information that may be in creditors files." Pursuant to the plain meaning of Section 1692g(b), Judge Borman dismisses this claim. He opines that the Plaintiff's arguments cannot circumvent the straightforward written notification requirement. Section 1692g(b) gives debtors the opportunity to notify debt collectors of disputes with their creditors precisely because debt collectors are not presumed to already know about those disputes. Thus, the Defendant cannot automatically be charged with receipt of a letter that the Plaintiff sent to Autovest. And the Court should not allow the Plaintiff to bridge this separation by simply asserting that "upon information and belief, Autovest forwarded Plaintiff's dispute letter to Defendant." This would allow future plaintiffs an all-too-easy way to avoid the consequences of ignoring Section 1692g(b)'s explicit instructions. Additionally, the fact that the Plaintiff informed Defendant of the dispute over the phone is inapposite because the statute requires notice to be in writing. D. Leave to Amend Judge Borman denies the Plaintiff leave to amend her Complaint. She has already amended her Complaint once. And she did not file a Motion to Amend or a Proposed Amended Complaint. Her single assertion that "leave to amend should be granted," buried at the end of the "Legal Standard" section of her Response to the Defendant's Motion to Dismiss, is not an adequate request. Judge Borman will enter his dismissal with prejudice. Conclusion For the reasons he stated, Judge Borman grants the Defendant's Motion to Dismiss and denies the Plaintiff leave to amend her First Amended Complaint. A full-text copy of the Court's Oct. 19, 2021 Opinion & Order is available at https://tinyurl.com/6cw2t4wv from Leagle.com. MONTGOMERY COUNTY, PA: Faces ACLU Suit Over Illegal Incarceration ----------------------------------------------------------------- Michele Chadwick and Yasmin Homan at davisvanguard.org reports that the ACLU (American Civil Liberties Union) filed a class action lawsuit on behalf of six plaintiffs against Montgomery County and probation officials for unconstitutional incarceration. The lawsuit alleges that Montgomery County is incarcerating nearly every person accused of violating the conditions of their supervision until their revocation hearing, which is many months later. A revocation trial is the hearing in which a judge rules whether or not an individual has violated the terms and conditions of their parole or probation. The ACLU's lawsuit considers this incarceration unlawful because it deprives the individuals of due process by failing to assess whether detention is necessary and denies the plaintiffs "prompt" hearings. The lawsuit alleges that the county is violating both the Pennsylvania Constitution and U.S. constitution because both constitutions require prompt hearings through due process. "The disregard for the constitutional promise of due process by Montgomery County is appalling," said Executive director of the ACLU of Pennsylvania, Reggie Shuford. Shuford believes that locking people up who are suspected of disobeying probation or parole with the absence of proposing a prompt hearing, it puts the individuals "livelihood, their families, and their health in jeopardy" which he said is not tolerable. According to the ACLU, the court records indicate that 89 percent of people facing revocation proceedings were incarcerated and 92 percent of those detained "never received the constitutionally mandated initial hearing to assess if there is probable cause that the alleged violation occurred. The lawsuit requests that the court hold prompt hearings to assess probable cause and whether or not detention is fundamental or appropriate and provide relief for the plaintiffs. [GN] MOOSE USA: Slade Files ADA Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Moose USA Inc. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Moose USA Inc., Case No. 1:21-cv-08814 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Moose USA Inc. -- http://www.mooseknucklescanada.com/-- is located in New York City and is part of the Clothing Stores Industry.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com MUNICIPAL CREDIT: Class Claims in Maldonado's Complaint Dismissed ----------------------------------------------------------------- In the case, SENAIDA MALDONADO, Plaintiff v. MUNICIPAL CREDIT UNION and TRANSUNION LLC, Defendants, Case No. 21cv4540 (DLC) (S.D.N.Y.), Judge Denise Cote of the U.S. District Court for the Southern District of New York dismissed the class allegations asserted in the Amended Class Action Complaint. As set forth at the telephonic pretrial conference held on Oct. 19, 2021, Judge Cote dismissed the class allegations asserted in the Amended Class Action Complaint of June 28, 2021, pursuant to Rule 23, Fed. R. Civ. P. The case management plan entered on Aug. 30, 2021 is amended as follows. The following schedule will govern the further conduct of pretrial proceedings in the case. The case will be referred to mediation to occur in November 2021. The Clerk of Court will contact the parties when a mediator has been selected. All fact discovery must be completed by Jan. 27, 2022. Any motion for summary judgment will be served by Feb. 17, 2022. Any opposition must be served by March 10, 2022. Any reply must be served by March 24, 2022. In the event no motion is filed, the Joint Pretrial Order must be filed by Feb. 17, 2022. As described in greater detail in the Court's Individual Practices in Civil Cases, the following documents must be filed with the Pretrial Order: Voir Dire, Requests to Charge and a Memorandum of Law addressing all questions of law expected to arise at trial. Any responsive papers are due one week thereafter. In the event a party does not file a Memorandum of Law, a responsive Memorandum of Law should not be submitted unless in reply to an unanticipated legal argument in the other party's Memorandum of Law. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/wxfh49yx from Leagle.com. MUNSON HEALTHCARE: Moves to Dismiss "No-Poach" Class Action ----------------------------------------------------------- record-eagle.com reports that a legal team for Munson Healthcare fired back recently in a legal dispute over alleged "no-poach" agreements between the hospital and local medical groups. Lawyers for the regional hospital system moved to dismiss a lawsuit filed in federal court by Joshua Schexnaildre, a Certified Nurse Anesthetist who claims that Munson and Traverse Anesthesia Associates (TAA) struck an agreement not to hire employees who move from one company to the other for a period of one year. The agreement allows the two employers to suppress wages by limiting employment options, Schexnaildre's lawsuit alleged. In response, Munson's lawyers called into question the existence of the agreement, which is also known as a "no-poach" agreement. "Here the only question before this Court is whether Plaintiff's allegations that someone told him something about an alleged agreement, whether considered direct or circumstantial, are sufficient to render Plaintiff's claim plausible," states the brief by Munson's lawyers. "They are not, and the Complaint should be dismissed accordingly." Munson's lawyers cited 40 legal cases in an effort to demonstrate that antitrust litigation "based on assertions" are insufficient. They also quoted several cases in order to suggest that Schexnaildre's litigation would be both expensive and time-consuming for a complaint based on assertions, unnamed employees and private conversations. "In sum, Plaintiff's Complaint does not contain sufficient details about the who, what, when, where, and why of the purported naked, no-hire agreement," the brief states. "This is plainly insufficient." Lawyers for Schexnaildre have not disclosed evidence of the agreement. Schexnaildre said he heard about the agreement when he spoke to an employee from a Munson Healthcare operated hospital. That employee told Schexnaildre that the directives not to hire TAA staff for one year came directly from that hospital's CEO, according to court filings. Schexnaildre said he then spoke with other human resources employees at the same hospital, who "affirmed the existence of the agreement." Lawyers for Schexnaildre declined to comment on the case. In an earlier interview, Schexnaildre's legal counsel, Nathan Fink, expressed confidence that the "no-poach" agreement exists. The case is being tried by Chief Judge Robert J. Jonker in the Western District of Michigan. Lawyers for the plaintiff have until Dec. 14 to file a reply or an amended complaint, after which the defendants can again reply. The case likely will take several months before Jonker rules on dismissing the case or allowing it to move forward into discovery, a pre-trial period in which both parties can compel document production by the other. [GN] NEI GENERAL CONTRACTING: Migrant Workers Seek Proper Wages ---------------------------------------------------------- Jose C. Ruiz, Cruz Eduardo Ruiz, and Lukasz Zajkowski, on behalf of themselves and all others similarly situated, Plaintiffs, v. NEI General Contracting, Inc., Delta Drywall and Framing LLC, Josef Rettman and David Adam Villanueva, Defendants, Case No. 21-cv-11722, (D. Mass., October 21, 2021), seeks unpaid wages, overtime premiums, damages resulting from misclassification as independent contractors, back wages, front wages, and other damages due to Plaintiffs under federal and Massachusetts law. Construction workers Jose C. Ruiz, Cruz Eduardo Ruiz and Lukasz Zajkowski worked for the Defendants on a government-supported project, building low-cost senior housing at the Mary D. Stone property in Auburn, Massachusetts between September 2020 and August 21, 2021. Defendants allegedly failed to pay them any wages for five weeks of hard work, overtime premiums and knowingly misclassified them as independent contractors rather than employees thus denying them paid sick leave and denied them access to government benefit programs designed to assist Massachusetts employees, including unemployment insurance, workers' compensation and paid family and medical leave. After some Plaintiffs complained about not being paid and others threatened to have a mechanics' lien filed on the property, Defendants retaliated by refusing to pay wages to Plaintiffs and terminating all Plaintiffs working on the project. Plaintiffs are mostly immigrants. [BN] Plaintiff is represented by: Chip Muller, Esq. MULLER LAW, LLC 47 Wood Avenue Barrington, RI 02806 Tel: (401) 256-5171 Fax: (401) 256-5025 Email: chip@mullerlaw.com NET RETAILERS: Crosson Files ADA Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Net Retailers, Inc. The case is styled as Aretha Crosson, individually and as the representative of a class of similarly situated persons v. Net Retailers, Inc. doing business as: Luxe Decor, Case No. 1:21-cv-06003-MKB-TAM (E.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Net Retailers doing business as Luxe Decor -- https://www.luxedecor.com/ -- is an eCommerce company that sells finest quality home furniture and Decor.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com NOMOLOTUS LLC: Estevez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Nomolotus LLC. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. Nomolotus LLC, Case No. 1:21-cv-08836 (S.D.N.Y., Oct. 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Nomolotus, LLC doing business as Truvani -- https://www.truvani.com/ -- creates and sells organic health foods and products.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com NORTHERN OHIO PIZZA: Shortchanges Delivery Drivers' Pay, Says Suit ------------------------------------------------------------------ Tonya Pennington, individually and on behalf of all others similarly situated v. Northern Ohio Pizza Company, Inc., Defendant, Case No. 21-cv-01997 (N.D. Ohio, October 21, 2021), seeks to recover monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees for violation of the Fair Labor Standards Act and Ohio labor laws. Northern Ohio Pizza owns and operates multiple Pizza Hut restaurants throughout Ohio. Pennington worked as a delivery driver from approximately August of 2019 until December of 2020. Northern Ohio Pizza took a tip credit from Pennington when she was making deliveries and made her use her own car for deliveries. Plaintiff claims that the delivery fee she gets is not enough to cover here vehicular expenses. [BN] Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Tel: (479) 880-0088 Fax: (888) 787-2040 Email: josh@sanfordlawfirm.com OAK RIDGE: Unvaccinated Laboratory Employees Can't Return to Work ----------------------------------------------------------------- Vincent Gabrielle at Knoxville News Sentinel reports that unvaccinated Oak Ridge National Laboratory employees cannot return to work as their lawsuit against lab operator UT-Battelle plays out in federal court, a judge has ruled. The workers suing their employer were granted religious exemptions to the COVID-19 vaccine mandate. Some also sought medical exemptions. They were told to stay home on unpaid leave instead of being granted other accommodations. The workers filed a class action lawsuit, accusing UT-Battelle of violating the Civil Rights Act and the Americans With Disabilities Act for failing to provide them with adequate accommodations for their approved exemptions to the federal government's COVID-19 vaccination mandate. They asked to be allowed to stay at work, with masks and regular testing, so they could continue to get paid. The judge said UT-Battelle showed "shocking indifference to some of its employees" but that the harm they face wasn't irreparable. "Given the absence of irreparable harm, the court need not examine whether such accommodations were reasonable," U.S. District Judge Charles Atchley in Knoxville wrote in a ruling released. The policy requires federal employees and federal contractors to be vaccinated unless they have an approved medical or religious exemption. Even though the workers sought exemptions, they were put on unpaid leave for 60 days with the option to reconsider at the end of the leave period. The workers will retain their employment benefits during this time but will not be allowed to come on the lab's extensive campus. Several of the plaintiffs testified they were told they would lose security clearance. Loss of clearance means that it is unlikely that some members of the lawsuit would be able to return to their old jobs. People who lose security clearance would be vetted again in order to obtain similar clearance levels in the future, a process that can take months if not years. The lab, according to testimony, is obligated to withdraw security clearance after 90 days if it is not used. UT-Battelle announced Aug. 26 that all employees must be vaccinated or have "an approved medical or religious exemption." Since August, UT-Battelle walked back its initial deadline for exemptions and said in court said there no longer was a deadline to request an exemption. Atchley issued a temporary restraining order Oct. 15, preventing UT-Battelle from terminating or placing workers on unpaid leave if they had a qualified exemption. All six of the workers in the suit requested and received religious exemptions. Two had requested medical exemptions as well. One of those exemption requests is still pending and one had been denied by UT-Battelle. Six Oak Ridge National Lab workers sue over COVID-19 vaccine mandate as deadline nears During this the hearing, the workers testified that they faced financial hardship from loss of pay. Two of the workers, Jessica and Jeffery Bilyeu, are a married couple who said the situation put their young family and farm at risk. The couple had already taken unpaid leave this year during Jessica's pregnancy. Stephanie Bruffey, a radiochemical engineer, testified that she was defending her doctoral dissertation. She anticipates that her dissertation will require revisions, which will require access to her research materials in the lab. "Once my access is revoked I don't know how I'd craft a path to completion," testified Bruffey while wiping tears. "I've worked on this for eight years." UT-Battelle argued at the hearing the unvaccinated workers presented Oak Ridge National Laboratory with an "impossible choice." Return unvaccinated employees to the workplace and put other employees at risk, or go without workers who are performing essential jobs. "At the start of the pandemic working from home was the only arrow in our quiver," testified John Powell, director of environment, safety and health for the lab. "The longer it went, the more we began to see the downsides of working from home." Both Bilyeus, for example, work with radioactive materials. Jeffery Bilyeu, a senior radiological control technician, is responsible for preventing lab personnel from being exposed to radiation. Jessica Bilyeu, a quality representative, oversees a medical isotope production line. Both have been on-site frequently during the pandemic. The unvaccinated workers had asked for accommodations like mandatory masks and COVID-19 testing. Powell testified that continuing the lab's testing program was a major cost. According to briefs submitted to the court, the lab spent $12 million on on-site COVID-19 testing for employees. They anticipate an annual cost of $300,000 if all plaintiffs in the lawsuit require weekly on-site testing at current costs. Oak Ridge National Lab Health Services Director Bart Iddins testified that testing and masking were not good solutions because there can be delays in test turnaround time. "Vaccination is the best tool we have to defeat COVID," Iddins said in court. "A testing program is not a substitute for vaccination." Currently, 96% of Oak Ridge National Lab's over 5,400 employees are vaccinated, according to lab spokesperson Morgan McCorkle. Just over 150 workers at the lab remain unvaccinated. Of those, 105 are workers with religious exemptions who were offered unpaid leave. About 50 employees were granted medical exemptions to vaccination by the lab. These exemptions primarily gave extra time to people who intended to vaccinate but were pregnant or recovering from COVID-19. Vaccination after recent infection is not recommended. The exemptions included at least one long-term accommodation for someone with a hyperactive immune disorder. At the nearby Y-12 facility, nearly 5,200 out of 8,700 employees and contractors had been fully vaccinated as of Oct. 19, according to Consolidated Nuclear Security spokesperson Katheryn King. Consolidated Nuclear Security is the contractor that runs Y-12 on behalf of the Department of Energy. In an email to Knox News, King said Consolidated Nuclear Security had recently been told to implement the same federal vaccine mandate at Y-12 but leaders were not yet finished with that process. "We are working through the implementation timeline now," King wrote. "We continue to offer Pfizer, Moderna and Johnson & Johnson vaccines on site, as well as providing employees time off for off-site vaccination." Y-12 is a Department of Energy Facility that like Oak Ridge National Lab was built nearby as part of the Manhattan Project. It is a manufacturing and storage site for nuclear weapons material. The federal government has issued guidance to federal contractors that they must be fully vaccinated no later than Dec. 8. This means employees must be vaccinated by Nov. 24 to allow the vaccine to take effect, unless they have an exemption. [GN] OREGON: Court Extends Discovery, PTO Deadlines in Terril ADA Suit ----------------------------------------------------------------- In the class action lawsuit captioned as Terrill v. State of Oregon. et al., Case No. 6:21-cv-00588 (), the Hon. Judge Ann L. Aiken entered an order granting joint motion for extension of discovery & PTO deadlines. -- Motion for class certification is due by Dec. 22, 2021. -- Discovery is to be completed 120 days after the Court's ruling on the motion for class certification. -- The parties shall file amended pleadings and join all claims days after the Court's ruling on the motion for class certification. -- Expert Witness Disclosures and Reports are due 30 days after the close of fact discovery. -- Expert Rebuttal Reports are due 30 days after Expert Disclosures. -- Expert Discovery to be completed 30 days after Rebuttal Reports are due. -- Dispositive Motions are due 30 days after close of Expert Discovery. -- Pretrial Order is due 30 days following the Court's ruling on any dispositive motions. The suit alleges violation of the Americans with Disabilities Act.[CC] OSI SYSTEMS: Longo Seeks to Certify Settlement Class ---------------------------------------------------- In the class action lawsuit captioned as CORY LONGO, individually and on behalf of all others similarly situated, et al., v. OSI SYSTEMS, INC., et al., Case No. 2:17-cv-08841-FMO-SK (C.D. Cal.), the Lead Plaintiff asks the Court to enter an order pursuant to Federal Rule of Civil Procedure 23: 1. certifying the Settlement Class for purposes of effectuating the proposed settlement; 2. granting preliminary approval of the Settlement on the terms set forth in the Stipulation and Agreement of Settlement dated October 22, 2021; 3. authorizing the retention of A.B. Data, Ltd. as the administrator for the Settlement; 4. approving the form and manner of notice of the Settlement to the Settlement Class; and 5. setting a hearing date for final approval of the Settlement as well as the schedule for briefing in support of final approval and various other deadlines in connection with the Settlement. Arkansas Teacher Retirement System provides retirement benefits to Arkansas's public school and education employees. OSI Systems is an American company based in California that develops and markets security and inspection systems such as airport security X-ray machines and metal detectors, medical monitoring and anesthesia systems, and optoelectronic devices. A copy of the Lead Plaintiff's motion dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3mtE8i3 at no extra charge.[CC] Counsel for Lead Plaintiff Arkansas Teacher Retirement System and Plaintiff John A. Prokop and Lead Counsel for the Putative Class, are: Eli R. Greenstein, Esq. Stacey M. Kaplan, Esq. Kessler Topaz, Esq. Stacey M. Kaplan, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP One Sansome Street, Suite 1850 San Francisco, CA 94104 Telephone: (415) 400-3000 Facsimile: (415) 400-3001 E-mail: egreenstein@ktmc.com skaplan@ktmc.com egreenstein@ktmc.com skaplan@ktmc.com The Liaison Counsel for the Settlement Class, are: Paul R. Kiesel, Esq. Jeffrey A. Koncius, Esq. KIESEL LAW LLP CHERISSE HEIDI A. CLEOFE E-mail: cleofe@kiesel.law kiesel@kiesel.law koncius@kiesel.law - and - Matt Keil, Esq. KEIL & GOODSON P.A. 406 Walnut Street Texarkana, AR 71854 Telephone: (870) 772-4113 Facsimile: (870) 773-2967 E-mail: mkeil@kglawfirm.com - and - Maya Saxena, Esq. Joseph E. White, Esq. Lester R. Hooker, Esq. SAXENA WHITE P.A. 5200 Town Center Circle, Suite 601 Boca Raton, FL 33486 Telephone: (561) 394-3399 Facsimile: (561) 394-3382 E-mail: msaxena@saxenawhite.com jwhite@saxenawhite.com lhooker@saxenawhite.com PACIFICORP: Responsible for Fire Occurence, Class Action Says ------------------------------------------------------------- Joe Siess at heraldandnews.com reports that a class action lawsuit filed in the Multnomah County Circuit Court alleges infrastructure owned and maintained by PacifiCorp and Pacific Power was responsible for a number of devastating fires during Labor Day weekend in 2020, including the Two Four Two Fire in Klamath County. That fire was first discovered on the Chiloquin Ranger District of the Fremont-Winema National Forest on Sept. 7. It consumed 14,473 acres and the official cause of the fire has not been released. However, the class action lawsuit -- filed on Sept. 20, 2020 by Seattle-based law firm Keller Rohrback, and Portland-based firms Stoll Berne and Nick Kahl -- alleged PacifiCorp and Pacific Power failed to properly maintain and operate their electrical infrastructure, providing the necessary conditions for widespread loss to communities impacted by a number of fires in Sept. 2020. On Oct. 30, 2020, the firms that filed the lawsuit amended their complaint to include plaintiffs residing across the state who were affected by the fires. The suit asks for more than $600 million in damages. A new motion filed this month requests the court to officially certify a "class" in the PacifiCorp, Pacific Power case and contains a detailed report outlining the cause and origin of the fires in question, based on their analysis and findings. Nicole Brewer, a fire investigator working as a consultant for Envista Forensics' Fire and Explosion Division, investigated the cause of the Two Four Two Fire. The report alleged that based on evidence collected and reviewed during an extensive investigation, "errant electrical energy, from power sources owned and maintained by PacifiCorp," were most likely the cause of the Two Four Two. According to the report's conclusion, "Based on the information available to date, including, but not limited to, witness statements, physical evidence, emergency dispatch records, and PacifiCorp's own records and emails; there is a very high probability that arrant electrical activity associated with the power equipment operated, maintained and controlled by PacifiCorp, contributed to, or directly caused, the Echo Mountain Fire, the South Obenchain Fire, the Santiam Fires, and the Two Four Two Fire, which in turn caused, massive destruction of property and natural resources." The report acknowledged hot, dry and windy weather certainly contributed to the fire's rapid spread, but alleged the fire was likely ignited and or contributed to by PacificCorp's electrical infrastructure, due to a failure to utilize public safety power shutoffs. As the certification process moves through court -- which should take a couple of months -- PacifiCorp is permitted to challenge the proceedings. The current trial date for the case is in August 2022. [GN] PELOTON INTERACTIVE: Faces Minnesota Wage and Hour Class Action --------------------------------------------------------------- lawstreetmedia.com reports that a lawsuit filed accuses tech-fitness company Peloton Interactive Inc. of skimping on wages owed to some hourly employees. The plaintiff argues that as a field technician responsible for delivering and setting up indoor cycling bikes, Peloton failed to pay him overtime premiums for any hours he worked over 40 hours but less than 48 hours in a workweek. In particular, the Ramsey County, Minn. complaint alleges that the fitness giant did not pay the plaintiff for work performed during scheduled break periods, resulting in less overtime pay than what the plaintiff actually earned during his September 2019 to March 2021 tenure. In addition, Peloton paid the plaintiff non-discretionary bonuses. In this regard, the complaint accuses the company of failing to include those bonuses into the plaintiff's regular rate of pay when calculating his overtime compensation, once again resulting in underpayment. The lawsuit seeks to certify a class of Minnesota hourly workers who were similarly underpaid during the relevant state or federal liability period. The filing claims that the class will be composed of more than 40 individuals, with the exact number to be determined from records maintained by the defendant. The worker seeks relief from purportedly wilful and knowing violations of the Fair Labor Standards Act and the state's labor code. He seeks his and the putative classes' unpaid overtime wages and liquidated damages. The plaintiff is represented by The Law Office of Joshua R. Williams PLLC and Tarshish Cody PLC. [GN] PHARMACARE US: Court Narrows Claims in Corbett's 1st Amended Suit ----------------------------------------------------------------- In the case, MONTIQUENO CORBETT, DAMARIS LUCIANO, and ROB DOBBS, individually and on behalf of all others similarly situated, Plaintiffs v. PHARMACARE U.S., INC., Defendant, Case No. 21cv137-GPC (AGS) (S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California grants in part and denies in part the Defendant's motion to dismiss the first amended complaint. Background On Jan. 25, 2021, Plaintiffs Corbett, Luciano, and Dobbs filed a putative class action complaint against Defendant PharmaCare for violations of consumer fraud statutes for its sale of Sambucol, a dietary supplement that contains a proprietary extract of black elderberry. Pursuant to the Court's order granting in part and denying in part the Defendant's motion to dismiss the complaint, the Plaintiffs filed a first amended putative class action complaint ("FAC") on July 7, 2021. The operative putative first amended action complaint alleges seven causes of action based on the alleged misleading labeling, advertising and sale of 12 dietary supplement products under the name Sambucol for violations of 1) California's Unfair Competition Law ("UCL") pursuant to California Business & Professions Code section 17200 et seq. on behalf of a national class and the California subclass; 2) California's False Advertising Law ("FAL") under California Business & Profession Code section 17500 et seq. on behalf of the California subclass; 3) California's Consumer Legal Remedies Act ("CLRA") under California Civil Code section 1750 et seq. on behalf of the California subclass; 4) violations of Massachusetts General Laws Chapter 93A, section 2, Mass. Gen. Laws. Ch. 93A, Section 2 ("M.G.L. ch. 93A"), on behalf of the Massachusetts subclass; 5) Missouri Merchandising Practices Act ("MMPA") pursuant to Mo. Ann. Stat. section 407.010 et seq. on behalf of the Missouri subclass; 6) breach of express warranties on behalf of a national class and the subclasses; and 7) breach of the implied warranty of merchantability on behalf of a national class and the subclasses. Elderberry is derived from a flowering plant called Sambucus which has become a popular dietary supplement, and due to the popularity of "natural remedies", has recently generated over $100 million in sales in the United States. In March 2020, sales of the elderberry supplements increased by 415% over prior years as consumers sought to buy products that would offer "immune support" from the coronavirus. The Defendant's Products contain a proprietary extract of black elderberry labeled as "Elderberry Extract." The Plaintiffs allege two theories of consumer fraud: 1) an illegal products theory; and 2) false and misleading labels, packaging and advertising theory as well as omissions claims. On the first theory, the Plaintiffs claim that the Defendant's Products are illegal to sell and are mislabeled as dietary supplements under the Food, Drug and Cosmetic Act ("FDCA"), 21 U.S.C. Section 321(ff), and the Dietary Supplement Health and Education Act, ("DSHEA") which passed in 1994 and established a new framework to govern the "composition, safety, label, manufacturing and marketing of dietary supplements" as well as California's Sherman Law, California Health & Safety Code section 110095, which adopted the federal labeling regulation. Under the DSHEA, a "new" dietary ingredient ("NDI") (those not used in the United States before 1994), may be used in dietary supplements but must first be submitted to the FDA prior to sale unless the ingredient has been "present in the food supply as an article used for food without being chemically altered." After receiving information about the NDI, the FDA may then determine whether the manufacturer or distributor has provided an adequate basis to conclude that the NDI is reasonably expected to be safe. Dietary supplements that contain undisclosed NDIs are "adulterated" for purposes of the FDCA. Because the elderberry extract was not marketed as a dietary ingredient in the U.S. before 1994, and is an NDI, the FAC maintains that the Defendant did not notify the FDA with the required NDI notification for its elderberry extract. As such, the Plaintiffs allege that the Defendant's Products are illegal to sell because the elderberry extract is adulterated and misbranded under the FDCA and California's Sherman. On their illegal products theory, the Plaintiffs allege three additional violations of the FDCA. First, they contend that the Defendant, by marketing the Products as "scientifically tested", "virologist developed", "developed by a world renowned virologist", as well as advertising that the Products "support immunity" or claim "immunity support", is making implied disease claims under 21 C.F.R. Section 101.93(g)(2) and misbranded under 21 U.S.C. Section 343(r)(6). Under the FDCA, these phrases improperly promise that the Products have the ability to mitigate, treat, cure, or prevent diseases. Second, the Plaintiffs allege the Products are misbranded under 21 U.S.C. Section 352(f)(1) because the labeling fails to include adequate directions for use and violate 21 U.S.C. Section 331(a) of the FDCA. Third, the Plaintiffs claim that the Products are misbranded by stating the Products have "high antioxidant levels" and fail to comply with 21 C.F.R. Section 101.54(g). The Plaintiffs' second theory alleges that the claim that the Products have been "scientifically tested" is misleading and deceptive because no published studies that test the Products exist and those that do exist do not contain the same elderberry extract formulation used in published studies. Also, "scientifically tested" improperly suggests that the products are effective in keeping consumers safe from diseases which is false. Plaintiff Corbet is a resident and citizen of San Diego, California, Plaintiff Luciano is a resident and citizen of Holyoke, Massachusetts, and Plaintiff Dobbs is a resident and citizen of Florissant, Missouri. They all purchased certain of the Products at issue after being exposed to, saw and relied on Defendant's materially misleading representations on the either the Products' packaging and labeling, on advertisements on T.V. or on websites. When they purchased the Products, they believed they were legally sold supplements and they all claim they experienced no improvement in their health after using the Products. The Plaintiffs seek to certify a national class defined as: "During the fullest period allowed by law, all persons in the United States who purchased the Products (the `National Class') for personal use and not for resale." They also seek to certify a California, Massachusetts and Missouri subclass. Before the Court is the Defendant's motion to dismiss the first amended complaint pursuant to Federal Rule of Civil Procedure 9(b), 12(b)(1) and 12(b)(6). The Plaintiffs filed an opposition to which Defendant replied. Discussion & Conclusion A. Request for Judicial Notice The Defendant requests judicial notice of (1) a copy of one side of a package of Sambucol's 4 oz. Black Elderberry Syrup taken from the Sambucolusa.com website on Aug. 2, 2012; (2) the FDA's Regulations on Statements Made for Dietary Supplements Concerning the Effect of the Product on the Structure or Function of the Body, 65 Fed. Reg. 1000 (Jan. 6, 2000); (3) a copy of a webpage from Sambucolusa.com website on Aug. 2, 2012; and (4) the Plaintiffs' Dec. 30, 2020 demand letter from Whitfield Bryson LLP. The Plaintiffs did not file an opposition. First, Judge Curiel grants the Defendant's request for judicial notice of the copy of the Defendant's product packaging and copy of a webpage from Sambucolusa.com website. The Plaintiffs do not oppose, and the FAC references the label and website, as well as includes the images of the label in the FAC. Second, Judge Curiel grants the Defendant's request for judicial notice of the FDA publication from the Federal Register. He says, the contents of the Federal Register are noticeable as a matter of law. Finally, the Defendant requests judicial notice of the pre-notice demand letter sent by the Plaintiffs' counsel on Dec. 30, 2020. The Plaintiffs do not oppose notice of the letter and in fact rely on it in their opposition and attaches it as an exhibit. Because the letter is incorporated by reference in the FAC in paragraphs 147, 161, Judge Curiel grants the Defendant's request for judicial notice of the demand letter. B. Motion to Dismiss Judge Curiel grants in part and denies in part the Defendant's motion to dismiss without prejudice. Specifically, he grants dismissal of the CLRA claim for damages and the cause of action under Mass. Gen. Law ch. 93A without prejudice. Among other things, Judge Curiel finds that because the Plaintiffs failed to assert what provision under section 1770 is being violated in the notice letter, he grants the Defendant's motion to dismiss the CLRA cause of action for damages for failing to comply with section 1782(a). Moreover, the Plaintiffs sent a certified letter on Dec. 30, 2020 to the Defendant's registered agent in Dover, Delaware and not its principal place of business in California as required by section 1782(a). The letter was eventually forwarded to the Defendant's counsel in San Francisco, California. The Defendant's principal place of business is alleged to be in San Diego, CA; however, the Plaintiffs failed to send the notice letter to Defendant in San Diego as required by section 1782(a) and provides another basis for dismissal of the CLRA claim for damages. The question becomes whether the dismissal should be with prejudice or without prejudice. Judge Curiel holds that Corbett should be given leave to amend to correct the errors in their pre-suit notice. Accordingly, he grants the Defendant's motion to dismiss the claim for damages on the CLRA claim with leave to amend once Corbett complies with the notice requirement. Judge Curiel also finds that Plaintiff Luciano has sufficiently provided the Defendant notice of the unfair or deceptive act or practice, the injury she suffered and the relief she seeks. However, because she failed to comply with the 30 days requirement before filing a complaint, Judge Curiel grants the Defendant's motion to dismiss the M.G.L. ch. 93A claim. A plaintiff alleging a claim under M.G.L. ch. 93A is required to provide a written demand for relief to the potential defendant no less than 30 days before filing suit. Luciano did not comply with the notice provision because she filed the complaint less than 30 days after the providing the notice letter. Thus, Judge Curiel grants the Defendant's motion to dismiss the M.G.L. ch. 93A claim without prejudice. The Plaintiff may file its Second Amended Complaint within 45 days in order to address the Notice deficiencies identified in section III(G). The Defendant will thereafter file an answer to the FAC within the time prescribed by the Federal Rules of Civil Procedure. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/dvtxr9sc from Leagle.com. PHILADELPHIA, PA: Court Dismisses Duplessis' Claims Against CFCF ---------------------------------------------------------------- In the case, RICARDO DUPLESSIS, Plaintiff v. BLANCHE CARNEY, et al., Defendants, Civil Action No. 21-CV-4377 (E.D. Pa.), Judge Chad F. Kenney of the U.S. District Court for the Eastern District of Pennsylvania dismisses Duplessis' claims without prejudice to him filing an amended complaint. Introduction Plaintiff Ricardo Duplessis, a prisoner incarcerated at the Curran-Fromhold Correctional Facility ("CFCF"), is one of several prisoners who initiated the putative class action pursuant to 42 U.S.C. Section 1983, challenging the constitutionality of various conditions at CFCF. The Complaint in the case initially proceeded before Judge Rufe in Civil Action Number 21-1435. In a Sept. 29, 2021 Memorandum and Order, Judge Rufe: (1) dismissed as Plaintiffs those prisoners who had either failed to pay the fees or moved to proceed in forma pauperis after having been given an opportunity to do so; (2) concluded that the Plaintiffs, who were proceeding pro se, could not represent a class of prisoners and that, in any event, the class claims should be dismissed without prejudice as inadequately pled; and (3) concluded that the individual claims of the three remaining Plaintiffs should be severed from each other. In accordance with her conclusion that joinder of the individual claims was improper, Judge Rufe directed severance of Duplessis' claims (along with his payment of the applicable fees) into a new lawsuit, which was docketed as the instant civil action and assigned to Judge Kenney. Background The Complaint in the case is partially styled as a class action based on allegations supporting class claims and the individualized declarations of six Plaintiffs, including Duplessis. The Complaint names the following Defendants: (1) O. Ford; (2) C/O Antwi; (3) Blanche Carney; and (4) Capt. Harmer. Carney is the Commissioner of the Philadelphia Department of Prisons and the other Defendants are employed at CFCF. Page six of the Complaint lists six additional Defendants: (1) C/O M. Friend; (2) Sgt. Brown; (3) "Oliver_H"; (4) Lt. Reid; (5) Sgt. John Doe; and (6) C/O Felts. The Defendants are sued in their individual and official capacities. In his individualized declaration, Duplessis claims that on Feb. 17, 2021, while incarcerated at CFCF as a pretrial detainee, he was "ambushed" when Correctional Officers Nunes, Corley, Randall, and Petaccio, Sgt. Cherian, and Lt. Rodriguez came to his cell upon learning Duplessis' cellmate was in possession of a cell phone. Nunes and Cherian "forcefully had Duplessis up against the wall" while the other officers wrestled with the cellmate over the phone. Officers indicated that they "found the phone on the floor damaged under the cellmate's bed." At that point, both Duplessis and his cellmate were removed from the room and strip-searched by the officers. While naked, Duplessis was ordered to "use each hand to hold a cheek and to squat and cough 3 times." He was then ordered to "turn around, raise his private, and lift one leg up at a time." Officers then searched the cell, and Officers Randall and Corley took Duplessis's commissary items worth $238.93. Thereafter, Duplessis claims he was placed in "arbitrary detention" by Sgt. Cherian even though he did not receive a disciplinary hearing. He was required to serve 30 days in solitary confinement, followed by "administration," at which point his privileges of commissary, phone calls, and visits would be renewed. Duplessis alleges that he "notified" Commissioner Carney and Warden Gianetta "of the matter" on Feb. 19, 2021 by mail "with their Inmate Grievance form." As noted, the Complaint initially pursued class claims for relief, specifically "on behalf of the Plaintiffs as well as any and all other similarly situated individuals incarcerated at CFCF and housed on A-1-3" for violation of their due process rights, excessive force, deliberate indifference and "collusion." They alleged that "as a result of the customs, policies, practices and actions adopted and undertaken by" the Defendants, they were placed on a "segregation-detention unit," i.e., A-1-3, "and subjected to punitive status without receiving a disciplinary hearing in violation of due process." They also alleged that they were assaulted by correctional officers before they were housed on A-1-3 and subjected to unconstitutional conditions on the unit. The Complaint seeks class certification (which has already effectively been denied by Judge Rufe), $2 million in compensatory and punitive damages "for illegal placement in solitary confinement on A-1-3 during COVID 19 pandemic with no due process hearing" and "immediate release" from A-1-3. Discussion Judge Kenney will dismiss Duplessis' claims against the Defendants in their official capacities, as well as his claims against Carney, on that basis. He finds that Duplessis has not alleged any other basis for municipal liability or a claim against Carney. Duplessis has also failed to state a claim against any of the other named Defendants in their individual capacities. As noted, a defendant in a civil rights action must have personal involvement in the alleged wrongs" to be liable. The remaining Defendants -- O. Ford, C/O Antwi, Capt. Harmer, C/O M. Friend, Sgt. Brown, Oliver_H, Lt. Reid, Sgt. John Doe, and C/O Felts -- appear to have been named solely because they were involved in alleged constitutional violations being pursued by other prisoners, rather than any actions they took with regard to Duplessis. In other words, Duplessis fails to allege that any of these Defendants were personally involved in the alleged violation of his rights or that they harmed him in any way. Accordingly, he has not stated a claim against these Defendants. However, Duplessis' allegations discuss the actions of other prison officials who were not named as Defendants and describe how those individuals allegedly harmed him. Accordingly, Judge Kenney will dismiss the Complaint without prejudice to Duplessis filing an amended complaint against the appropriate defendants about the conditions of his confinement he personally experienced at CFCF. He expresses no opinion on the merits of any of Duplessis' claims at this time. Conclusion For the foregoing reasons, Judge Kenney dismisses Duplessis' claims without prejudice to him filing an amended complaint. An appropriate Order follows, which provides further instruction as to amendment. A full-text copy of the Court's Oct. 19, 2021 Memorandum is available at https://tinyurl.com/33ae63e2 from Leagle.com. PHILLIPS & COHEN: Initial OK of Settlement Deal in Haston Sought ---------------------------------------------------------------- In the class action lawsuit captioned as TIMOTHY HASTON, individually and on behalf of all others similarly situated, v. PHILLIPS & COHEN ASSOCIATES LTD., Case No. 2:20-cv-01069-WSS (W.D. Pa.), the Plaintiff asks the Court to enter an order: 1. granting preliminary approval of the Parties' proposed Settlement Agreement; 2. certifying the Class defined in the Agreement for purposes of settlement and proving notice of the Agreement to the Class; 3. approving the content, form, and method of delivering notice to the Class as set forth in the Agreement; and 4. scheduling a final approval hearing in accordance with the deadlines proposed in the Agreement. Phillips & Cohen is a financial recovery agency specializing in deceased account management, cease and desist solutions, and debt management recovery. A copy of the Plaintiff's motion to certify class dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/2Y1eoQJ at no extra charge.[CC] The Plaintiff is represented by: Kevin Abramowicz, Esq. Kevin Tucker, Esq. Chandler Steiger, Esq. Stephanie Moore, Esq. EAST END TRIAL GROUP LLC 6901 Lynn Way, Suite 215 Pittsburgh, PA 15208 Telephone: (412) 223-5740 Facsimile: (412) 626-7101 E-mail: kabramowicz@eastendtrialgroup.com ktucker@eastendtrialgroup.com csteiger@eastendtrialgroup.com smoore@eastendtrialgroup.com - and - Eugene D. Frank, Esq. LAW OFFICES OF EUGENE D. FRANK, P.C. 3202 McKnight East Drive Pittsburgh, PA 15237 Telephone: (412) 366-4276 Facsimile: (412) 366-4305 E-mail: efrank@edf-law.com The Defendant is represented by: Victoria D. Summerfield, Esq. Ethan G. Ostroff, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 501 Grant Street, Suite 300 Pittsburgh, PA 15219 E-mail: victoria.summerfield@troutman.com ethan.ostroff@troutman.com PILGRIM'S PRIDE: Lawyers Ask Judge for $68M Fees in Antitrust Suit ------------------------------------------------------------------ Scott Holland at cookcountyrecord.com reports that attorneys in a $181 million antitrust price-fixing class action involving America's largest poultry producers want a federal judge to let them claim $68 million in fees. In August, U.S. District Judge Thomas M. Durkin signed off on a settlement between Pilgrim's Pride and attorneys representing a class of potentially many millions of Americans. Worth about $75.5 million, that deal resolved the largest remaining case in a collection of class action lawsuits that, combined, equaled about $181 million in payments from producers. Tyson Foods agreed to pay $99 million, the largest single amount to settle the class action against it. Since 2016, chicken producers have defended themselves against several antitrust lawsuits, divided between those brought by direct buyers, such as supermarkets and other resellers, and end users, including restaurants and consumers. Representing consumers are attorneys Breanna Van Engelen, Shana Scarlett and Rio Pierce, of Hagens Berman Sobol Shapiro, of Seattle and Berkeley, Calif., and Brent Johnson, Benjamin Brown, Daniel Silverman and Alison Deich, of Cohen Milstein Sellers & Toll, of Washington, D.C., along with other attorneys from those firms. The litigation incorporates similar allegations: Chicken producers allegedly boosted profits by sharing internal data to work together to suppress chicken supply so as to elevate prices, even as their price of raising the chickens, such as feed costs, dropped. "Unlike many antitrust cases, this case began without having the benefit of a prior Department of Justice criminal case to use as a template," the attorneys wrote in an Oct. 27 memorandum supporting their fee request. They said they spent almost $9 million, logged more than 67,500 hours on the claims and "conducted discovery on dozens of defendants and third parties," an effort they branded as "extraordinary even when compared to other complex antitrust litigations." The award request breaks down to $59.7 million in legal fees, which is a third of the settlement fund, a reimbursement of $8.75 million for out-of-pocket expenses and service awards of $2,000 for each class representative. That would leave roughly $111 million to be distributed among claimants, a class that could include more than 10 million people. Under the terms of the settlement, anyone who purchased chicken at any time from 2009-2020 could be eligible to claim a slice of the settlement funds. None of the settlement documents to date include an estimate on how many people may ultimately be eligible for such a cut. However, chicken is the meat most commonly consumed in American households, according to industry data, which reports Americans consume nearly 8 billion chickens every year, or more than 80 pounds per person annually. So it remains unknown how much a typical claimant might receive from the settlement. "Hagens Berman and Cohen Milstein were the first to raise the issue that having the commercial indirect class … also represent consumers' interests would lead to a conflict of interest," they wrote in the motion. Although the commercial class "vigorously contested" that issue, the firms "conducted an independent investigation into the consumer channel, retained expert economists to evaluate and explain the different channels and provided the court with a legal ethicist's expert opinion — even though there was no certainty they would be appointed as lead counsel." The firms also said they took the lead in interviewing more than 40 people, including workers for Pilgrim's, Tyson and Perdue, as well as every employee of Agri Stats, the industry publication central to the allegations of sharing proprietary data. Preparing for those depositions included reviewing 13 million documents, they said, not including work done for third-party depositions, which included witnesses representing the U.S. Department of Agriculture. The DOJ ultimately did get involved, winning a stay on the civil litigation. Hagens Berman and Cohen Milstein said the evidence they developed "undoubtedly helped considerably" the federal case, even as progress on their own case was frozen. In arguing for class representative awards, the attorneys noted those people sat through nearly 100 hours of depositions, at an average of four hours each, while some supplied their personal email accounts to be searched. They said $2,000 per representative is a reasonable request, as "courts in this district routinely grant incentive payments in similar or larger amounts." [GN] PIVOTAL INVESTMENT: Janmohamed Sues Over Unfair Merger Deal ----------------------------------------------------------- IRFAN JANMOHAMED, individually and on behalf of all similarly situated, Plaintiff v. JONATHAN J. LEDECKY; KEVIN GRIFFIN; JAMES H.R. BRADY; SARAH SCLARSIC; EFRAT EPSTEIN; KATRINA ADAMS; THOMAS J. HYNES III; DIMITRI N. KAZARINOFF; and PIVOTAL INVESTMENT HOLDINGS II LLC, Defendants, Case No. 2021-0906 (Del. Ch., Oct. 19, 2021) alleges that the Defendants breached its duty of candor by failing to disclose material information stockholders would need to vote their shares and to make a decision whether to redeem their shares or remain invested in the Merger. The Plaintiff alleges in the complaint that while emphasizing potential downside scenarios to liquidation and redemption, the Defendants failed to consider and failed to disclose the fact that Pivotal held cash amounting to less than $8 per share and that, following the Merger and after payment of transaction costs, Pivotal would contribute well under $7 per share to the Merger. For public investors who paid $10 per share, this meant they stood to receive far less value in the Merger than they put into the IPO or that they could receive if they chose to redeem, says the suit. As a result of the Defendants' alleged failure to disclose the heavy dilution of Pivotal's public Class A shares and the inflated value of Legacy XL, the vast majority of Pivotal's public stockholders voted in favor of the Merger, and essentially all Pivotal stockholders declined to exercise their right to redeem their shares before the Merger. By approving the Merger and remaining invested in the Company, Pivotal stockholders saw their shares decline in price to a low of $5.41 within months of the Merger, a loss in value exceeding $105 million. In light of the conflicts of interest, the tainted process, the fact that Pivotal had far less cash per public share to invest in the Merger than it purported to have, and its failure to disclose this to stockholders, the Merger requires judicial review based on an entire fairness standard, a standard the Merger cannot meet, the suit added. PIVOTAL INVESTMENT HOLDINGS II LLC is a engaged as a financial service provider. [BN] The Plaintiff is represented by: Michael J. Barry, Esq. Michael Bell, Esq. GRANT & EISENHOFER P.A. 123 Justison St., 7th Floor Wilmington, DE 19801 Telephone: (302) 622-7000 Email: mbarry@gelaw.com mbell@gelaw.com -and- Richard A. Speirs, Esq. Amy Miller, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street - 14th Fl. New York, NY 10005 Telephone: (212) 838-7797 Email: rspeirs@cohenmilstein.com amiller@cohenmilstein.com -and- Peretz Bronstein, Esq. Eitan Kimmelman, Esq. BRONSTEIN GERWITZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 Email: peretz@bgandg.com eitan@bgandg.com PUMPERNICKEL BAGEL: Fails to Pay Proper Wages, Cid Alleges ---------------------------------------------------------- PAULINA CID, individually and on behalf of all others similarly situated, Plaintiff v. PUMPERNICKEL BAGEL INC. (D/B/A PUMPERNICKEL BAGEL); and ERICK MAKSUMOUV, Defendants, Case No. 1:21-cv-05875 (E.D.N.Y., Oct. 21, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Cid was employed by the Defendants as kitchen staff. PUMPERNICKEL BAGEL INC. (D/B/A PUMPERNICKEL BAGEL) operates as a restaurant. The Company offers breakfast, lunch, salads, and meat products. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, New York 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 RECONNAISSANCE ENERGY: Responds to Securities Class Action Suit --------------------------------------------------------------- Reconnaissance Energy Africa Ltd. (the "Company" or "ReconAfrica") (TSXV: RECO) (OTCQX: RECAF) (Frankfurt: 0XD) reports that on October 25, 2021, Eric Muller, on his behalf and on behalf of all persons and entities (other than the defendants) who purchased or otherwise acquired shares of the Company between February 28, 2019 and September 7, 2021, filed a class action complaint against the Company and related persons (the "Defendants"), in the United States District Court, Eastern District of New York, alleging various violations of the Federal securities laws. The Company has not yet been served with the complaint. ReconAfrica will undertake vigorous action to defend itself against any such claims. About ReconAfrica ReconAfrica is a Canadian oil and gas company engaged in the opening of the newly discovered deep Kavango Sedimentary Basin, in the Kalahari Desert of northeastern Namibia and northwestern Botswana, where the Company holds petroleum licenses comprising approximately 8.5 million contiguous acres. In all aspects of its operations, ReconAfrica is committed to minimal disturbance of habitat, in line with best international standards and will implement environmental and social best practices in all of its project areas. Neither the TSXV nor its Regulation Services Provider (as that term is defined in policies of the TSXV) accepts responsibility for the adequacy or accuracy of this release. [GN] ROGERS COMMUNICATIONS: Privacy Breach Class Action Commenced ------------------------------------------------------------ On October 26, 2021, a proposed $20 million nation-wide privacy breach class action lawsuit was commenced against Rogers Communications Inc. The claim alleges that Rogers regularly and surreptitiously invades the privacy of its customers to advance its own marketing promotional goals. In particular, it checks the credit information of its customers in order to assess customers' suitability for marketing additional services to them. Financial information such as credit scores is highly sensitive and confidential information that can only be accessed by companies for limited purposes - which does not include advancing the companies' own profits through such things as targeted marketing, absent informed consent from the consumer. The proposed class action was commenced by Rogers' customer, David Trueman, who discovered that his credit information was accessed by Rogers no less than three times in a single calendar year. After multiple attempts by Mr. Trueman to obtain answers from Rogers about why it had been pulling his credit information, eventually Rogers explained that the credit information was accessed for "marketing and promotional purposes" and "to evaluate eligibility for other Rogers' products and services" - despite the fact that Mr. Trueman did not apply for additional services when the credit checks were made. Mr. Trueman asserts that he did not consent to Rogers conducting any credit checks after he originally signed up for its services. In the claim, Mr. Trueman alleges that Rogers secretly and repeatedly collects its customers' credit information for its own marketing purposes. He asserts that this is a breach of the customers' privacy, and contrary to privacy protection legislation across the country. Mr. Trueman seeks damages and other remedies on behalf of a class of all Rogers customers across Canada whose credit information was similarly accessed by Rogers without their consent. The law firm of Waddell Phillips PC represents Mr. Trueman. More information is available at www.rogersclassaction.ca. [GN] SAFETY INSURANCE: Summary Judgment in McGilloway Suit Affirmed -------------------------------------------------------------- In the case, JARRETT McGILLOWAY & another vs. SAFETY INSURANCE COMPANY (and a consolidated case), Case No. SJC-13053 (Mass.), Judge Serge Georges, Jr., of the Supreme Judicial Court of Massachusetts, Suffolk, affirms in part and reverses in part the grant of summary judgment in favor of the Defendants. Introduction The Plaintiffs in these consolidated actions, Jarrett McGilloway, Linda Estrella, and Adam Ercolini, each owned an automobile that was involved in a collision with an automobile owned or operated by a party insured by either Safetyor Commerce Insurance Co. The Defendants paid to repair the Plaintiffs' automobiles to their precollision condition but declined to compensate the Plaintiffs for alleged inherent diminished value (IDV) damages to the vehicles. The issues in these cases are (1) whether, under part 4 of the standard Massachusetts automobile insurance policy, 2008 edition (standard policy), an automobile insurer must pay a claim for the IDV of a car that has been damaged and subsequently repaired, and (2) whether the defendants violated either G. L. c. 93A (consumer protection act) or G. L. c. 176D (statute prohibiting unfair and deceptive insurance practices) in the course of their dealings with the Plaintiffs. Background The Plaintiffs purchased their vehicles between 2012 and 2016. Each Plaintiff's vehicle was involved in a collision, resulting in damage to the vehicle caused by another driver who was insured by a standard policy that either Safety or Commerce had issued. Each plaintiff thereafter sought compensation from one of the Defendants for the damage to the Plaintiff's automobile as a third-party claimant pursuant to part 4 of the standard policy. In each case, the insurer paid the Plaintiff the full cost to repair the automobile to its precollision condition, but declined to compensate the Plaintiff for the alleged IDV of the vehicle due to the collision. In June of 2017, McGilloway filed a class action complaint in the Superior Court against Safety, which he later amended to add Estrella as a Plaintiff, seeking a declaration that part 4 of the standard policy provides coverage for IDV damages. In addition to the declaratory relief sought, McGilloway and Estrella's amended complaint asserted claims for (1) breach of contract based on Safety's failure to pay them IDV damages pursuant to part 4 of the standard policy, (2) unfair business practices in violation of G. L. c. 93A, and (3) unfair claim settlement practices as defined by G. L. c. 176D, Section 3 (9). In December 2017, Ercolini commenced an action against Commerce, similarly seeking declaratory relief and making an identical breach of contract claim. Following transfer of Ercolini's case to the business litigation session, the two cases then were consolidated to address whether IDV damages are covered under part 4 of the standard policy. On the parties' cross motions for summary judgment, which were consolidated into one action for this purpose, the judge allowed the Defendants' motions and denied the Plaintiffs' motion, concluding that the Defendants were not required to pay any IDV damages beyond the cost to fully repair the collision damages to the Plaintiffs' vehicles. The judge also concluded that the Defendants had not violated G. L. c. 93A or G. L. c. 176D in the course of their dealings with the Plaintiffs. The Plaintiffs appealed, and the Supreme Judicial Court granted their combined request for direct appellate review. Discussion A. Inherent Diminished Value The Plaintiffs argue that they are entitled to collect IDV damages from the Defendants under part 4 of the standard policy because IDV damages are included as part of "the amounts the claimant is legally entitled to collect for property damage through a court judgment or settlement." Conversely, the Defendants argue that the motion judge did not err in allowing their motions for summary judgment because Massachusetts tort law does not permit IDV recovery. The Defendants also contend that even if IDV damages are recoverable, such damages are not covered under the standard policy because Massachusetts regulations governing the claims made pursuant to the standard policy are silent as to how insurers should treat IDV damages. The Supreme Judicial Court agrees with the Plaintiffs. It conclude that the motion judge's allowance of summary judgment was improper, as IDV damages are indeed recoverable under part 4 of the standard policy, and thus the Defendants are not entitled to judgment as a matter of law. It does not, however, suggest that every automobile that is involved in a collision and is subsequently repaired has suffered an IDV. Rather, and as other jurisdictions have held, individualized proof is required to demonstrate that a given automobile has sustained some form of diminution in value due to a collision or vehicular accident, even after repairs are made. Specifically, a plaintiff must establish (1) that his or her vehicle has suffered IDV damages, and (2) the amount of IDV damages at issue. In the case, a material dispute still exists regarding whether any of the Plaintiffs' vehicles have suffered IDV due to a collision and, if so, whether and in what amount such damage can be quantified; as just stated, each Plaintiff has the burden of proof on these issues. The Supreme Judicial Court thus reverses the motion judge's allowance of summary judgment for the Defendants on the Plaintiffs' breach of contract claims and remand the cases to the Superior Court for further proceedings on these outstanding issues. B. Unfair Business Practices The Plaintiffs also argue that the motion judge erred in allowing the insurers' motion for summary judgment with respect to the claims under G. L. c. 93A and G. L. c. 176D, Section 3 (9). The Supreme Judicial Court does not discern any evidence of "bad faith or ulterior motives" in the Defendants' rejection of the Plaintiffs' claims for IDV damages. The Defendants point out that the commissioner has not yet recognized that part 4 of the standard policy covers IDV damages, and the Supreme Judicial Court previously has not considered the issue. Thus, because the insurers relied on a "plausible, although ultimately incorrect, interpretation of its policy," it cannot find anything "immoral, unethical or oppressive in such an action" requiring recovery under G. L. c. 93A. Accordingly, the Supreme Judicial Court affirms the motion judge's grant of summary judgment in favor of the insurers as to these claims. Conclusion Because Supreme Judicial Court concludes that IDV damages, if adequately proved, are recoverable under part 4 of the standard policy, it vacates the motion judge's allowance of summary judgment with respect to the Plaintiffs' claims of breach of contract. It affirms the motion judge's grant of summary judgment in favor of the Defendants on the Plaintiffs' unfair business practices claims pursuant to G. L. c. 93A and G. L. c. 176D, Section 3 (9). The Supreme Judicial Court remands the cases to the Superior Court for further proceedings consistent with its Opinion. A full-text copy of the Court's Oct. 19, 2021 Opinion is available at https://tinyurl.com/j92nn84w from Leagle.com. Kevin J. McCullough -- kmccullough@forrestlamothe.com -- for Jarrett McGilloway & others. Nelson G. Apjohn -- napjohn@nutter.com -- for Commerce Insurance Company. Peter L. Bosse -- pbosse@boyleshaughnessy.com -- for Safety Insurance Company. The following submitted briefs for amici curiae: Thomas R. Murphy & Kevin J. Powers for Massachusetts Academy of Trial Attorneys. John Pagliaro & Martin J. Newhouse for New England Legal Foundation. Wystan M. Ackerman for American Property Casualty Insurance Association & another. SHARE NOW : To Pay $1 Million to Settle Suit Over Drivers' Fees --------------------------------------------------------------- Abraham Jewett at topclassactions.com reports that Car2Go membership holders may be due compensation after the company agreed to pay $1 million to settle claims it charged drivers an unnecessary fee. Plaintiffs in a class action lawsuit filed against the car sharing company argued Car2Go included an unnecessary "driver protection fee" with every transaction starting in 2015, reports the CBC. Car2Go claimed the $1 fee was put in place to protect consumers from suffering greater financial injury in the event they got into an accident while driving a Car2Go vehicle. By implementing the $1 fee, Car2Go said it was able to lower the insurance deductible for drivers from $1,000 all the way down to $250, reports CBC. Plaintiffs argued, however, that the fee was unnecessary, since many drivers would already be protected from liability through insurance from their credit cards. Car2Go Driver Protection Fee Class Action Settlement The settlement applies to users in BC, Alberta, and Ontario who spent at least $10 in driver protection fees after March 25, 2018 or March 25, 2017 for those in Quebec. Less than two thirds of a prorated $1 million will be made available to claimants, with the rest going towards fees, reports the CBC. Car2Go boasted more than 450,000 users in Canada before the company ended its North America operations last year. The German company has since merged with DriveNow, another car sharing service, operating as "ShareNow" in certain parts of Europe, reports the CBC. A group of Metro Vancouver taxi companies tried to get the licenses of Uber and Lyft overturned early last year in an effort to keep the ride sharing companies from being able to operate in the area. [GN] SNAP INC: Rosen Law Discloses Securities Class Action ----------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces an investigation of potential securities claims on behalf of shareholders of Snap Inc. (NYSE: SNAP) resulting from allegations that Snap may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Snap 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-2188.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On October 21, 2021, Snap reported its third-quarter 2021 earnings, which missed revenue expectations. Snap cited Apple's iPhone privacy changes as the source of disruptions to the Company's advertising business and warned that global supply chain interruptions and labor shortages had reduced the "short-term appetite to generate additional customer demand through advertising." On this news, Snap's stock price fell $19.97 per share, or nearly 27%, to close at $55.14 per share on October 22, 2021. 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. [GN] SOCLEAN INC: Faces Hill Suit Over Defective Ventilators ------------------------------------------------------- ERIC HILL, individually and on behalf of all others similarly situated, Plaintiff v. SOCLEAN, INC., Defendant, Case No. 4:21-cv-00460-CVE-SH (N.D. Okla., Oct. 22, 2021) alleges that the Defendant used false and misleading representations about its devices to market the SoClean 2 CPAP Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing machine, and their predecessor devices (collectively "the SoClean devices"). According to the complaint, SoClean manufactures and markets devices used to clean continuous positive airway pressure ("CPAP") machines, which treat sleep apnea since approximately 2012. Allegedly, SoClean's marketing materials fail to disclose that its devices emit ozone, which is a longstanding requirement of federal law. Instead, SoClean falsely represents that its devices use "activated oxygen" to clean CPAP machines. SoClean markets the devices as "safe" and "healthy," which is false give that they generate toxic ozone gas at levels that substantially exceed federal regulations. SoClean falsely represents that its devices use "no water or chemicals" or "no harsh chemicals" to clean CPAP machines, despite using ozone gas – a harsh chemical that causes respiratory problems in humans. As a direct and proximate result of SoClean's conduct, the Plaintiff and the Class have suffered actual damages in that each product they purchased is worth less than the price they paid and which they would not have purchased at all had they known of the attendant health risks associated with the use of each of SoClean's products, added the suit. SOCLEAN, INC. manufactures cleaning devices. The Company produces automated continuous positive airway pressure (CPAP) cleaners and sanitizers which improves health outcomes and quality of life for those suffering from obstructive sleep apnea and other sleeping disorders. [BN] The Plaintiff is represented by: Stratton Taylor, Esq. Darrell W. Downs, Esq. Logan J. Hathcoat, Esq. TAYLOR FOSTER MALLETT DOWNS & RAMSEY & RUSSELL 400 West Fourth Street Claremore, OK 74018 Telephone: (918) 343-4100 Facsimile: (918) 343-4900 Email: staylor@soonerlaw.com ddowns@soonerlaw.com lhathcoat@soonerlaw.com SOUTH BY SOUTHWEST: Agrees to Settle Lawsuit Over No-Refund Policy ------------------------------------------------------------------ Kara Carlson at Austin American-Statesman reports that some of the people who purchased credentials to attend the canceled South By Southwest festival in 2020 could be eligible to get part of their money back after SXSW LLC, the company behind the annual event, agreed to settle a class-action lawsuit over the event's no-refund policy. SXSW was called off a week before it was scheduled to start in March 2020 when Austin Mayor Steve Adler declared a public disaster amid mounting COVID-19 concerns. The festival, which annually attracts more than 100,000 people to Austin, was among the first major events canceled as the pandemic swept into Texas. After the event was shut down, SXSW LLC said it was in a "dire financial situation." The company laid off about a third of its 175 year-round employees. In April 2020, SXSW LLC said that it lacked the financial resources to issue refunds to people who bought passes. Instead, the company offered a deferral package option, which would allow people to use their entry fees to attend the event in 2021, 2022 or 2023, and get 50% off the walk-up rate in any of those years. About 80% of purchasers accepted the offer and granted SXSW a release of claims, the lawsuit said. Details of the SXSW settlement The list price of SXSW platinum badges, the event's most expensive credential, was $1,600 in 2020, though discounts were available for early purchases. Under the settlement agreement, SXSW will issue a payment of $30 to any member who decided to defer their pass to a later year. Anyone who did not defer their credentials to a future year will receive a refund of 40% of the total amount they paid. Any person affected by the settlement can opt out by Dec 20, according to the settlement agreement. The settlement agreement indicates a "fairness hearing" is scheduled for Feb. 18, during which a judge will determine if the settlement should be approved as "fair, reasonable and adequate." "The pandemic has been extremely challenging for everyone. Though SXSW has a longtime no refunds policy, we recognize these are unprecedented times. We are glad the court preliminarily approved the settlement and look forward to a final resolution," SXSW said in a written statement. The lawsuit, which was filed in April 2020 in U.S. District Court in Travis County, was brought on behalf of Massachusetts resident Maria Bromley and Colorado resident Kleber Pauta. Bromley spent $1,600 on a platinum badge and $70 for "meals and merchandise," according to the suit, while Pauta spent about $1,020. The complaint alleged that SXSW improperly withheld money that was used to pay for wristbands, tickets, passes and badges to the 2020 South by Southwest Conference and Festivals. Statement from SXSW festival organizers In the settlement statement, SXSW LLC denied those allegations. "SXSW denies these allegations and contends, among other things, that its express no-refund policy is legally enforceable, that it did not breach its contracts with the Class Representatives or class members, that the city's cancellation of SXSW 2020 made performance impossible, and that it was not unjustly enriched," the settlement said. The settlement comes after SXSW LLC filed its own lawsuit against its insurance company on Oct 6. The company's lawsuit alleges that its policy with Federal Insurance includes liability coverage and requires the insurance company to pay for the festival's legal defense in the class action lawsuit. It also alleges that Federal Insurance did not follow through with its obligation to defend SXSW. The lawsuit claims that SXSW purchased a $1 million policy from Federal Insurance in August 2019 and that the insurance company is not living up to its obligation to defend and indemnify the event from lawsuits filed against it. The complaint was filed by Austin attorney Peter Kennedy in U.S. District Court for Western Texas. It asks the court to force Federal Insurance to fund SXSW's legal defense and pay damages, interest and legal costs. This past March, SXSW held a fully online event with streamed versions of events, sessions, music and film screenings. The company plans to return to an in-person event for SXSW 2022 on March 11-20. [GN] SOUTH LAFOURCHE: Nurses File Lawsuit Alleging Unpaid Wages ---------------------------------------------------------- Dan Copp at houmatoday.com reports that several employees at a Lafourche Parish nursing home that evacuated to a warehouse in Tangipahoa Parish during Hurricane Ida are suing the facility's owner over unpaid wages. Five nurses at South Lafourche Nursing and Rehab filed a class-action suit Sept. 29 in Jefferson Parish against Baton Rouge businessman Bob Dean and seven nursing homes that he owns. About 850 residents from those nursing homes were evacuated to an Independence-based warehouse owned by Dean ahead of the Category 4 storm which made landfall Aug. 29 in southeast Louisiana. Multiple lawsuits have since been filed against Dean alleging evacuees endured nightmarish conditions as they were crammed into the ill-equipped facility. Dean's facilities have all since been shut down by the state Health Department. An attorney for Dean has said he plans to appeal that action. According to the Department of Health, five deaths have been directly linked to the evacuation but 27 other nursing home residents who were moved to the warehouse have also died. The employees allege in court papers they worked "excessively long hours" at the warehouse from Aug. 27 to Sept. 2 but were not paid in full for the work they performed. According to the complaint, nurses are supposed to earn a special "hurricane pay rate" of $750 to $3,000 per day during evacuations depending on their qualifications, but the plaintiffs' paychecks did not reflect the increased pay. New Orleans attorney Jonathan C. Pedersen, who represents the plaintiffs, said one of the nurses contacted him about the discrepancy. "She was very distraught and told me that she was working around the clock and that she didn't get paid for all of her work," Pedersen said. "Once I met with her and understood the facts, it was a very obvious case that had to get filed. You are given a hurricane pay rate which is a higher amount than your typical 365-day salary because of the nature of what's happening. All of my clients went to the nursing home and helped evacuate all the residents to the facility in Independence. While they were there, they tried to make the best of an absolutely horrid situation." Baton Rouge attorney John McLindon, who represents Dean, said the employees' lawsuit resulted from a misunderstanding. "There was just a breakdown in communication," McLindon said. "Bob was telling them they would get that special pay but they thought that it would be on top of their regular pay. They thought they were entitled to that money on top of their regular salary, but it's going to be resolved." Pedersen said he wants his clients to get what is owed to them after they endured horrendous conditions during the evacuation. "Upper-level management all had hotel rooms where they could go to shower and sleep, but none of my clients had that luxury," he said. "Some of them had to drive 13 miles to a truck stop to take a shower. They didn't feed them properly and they were living on snacks from a gas station. These are human beings and we don't treat our dogs this way." [GN] SPECTRUM HEALTH: Abernathy Class Action Junked w/o Prejudice ------------------------------------------------------------ In the class action lawsuit captioned as FRANKLIN B. ABERNATHY, et al., v. SPECTRUM HEALTH SYSTEMS, et al., Case No. 1:21-cv-11290-LTS (D. Mass.), the Hon. Judge Leo T. Sorokin entered an order dismissing the action without prejudice for failure to comply with the August 13, 2021 Memorandum and Order. The Plaintiff Abernathy, an inmate now in custody at the Pondville Correctional Center, initiated this action on August 5, 2021, by filing a complaint, a motion for leave to proceed in forma pauperis, a motion to certify class action, and an emergency motion for a temporary restraining order and preliminary injunction. On August 13, 2021, the Court denied the pending motions and Abernathy was ordered to file a renewed motion to proceed in forma pauperis accompanied by a copy of his prison account statement. The Order stated that failure of Abernathy to comply may result in the dismissal of this action without prejudice. To date, Abernathy has not responded to the Court's order and the time to do so has expired. "A district court, as part of its inherent power to manage its own docket, may dismiss a case sua sponte for any of the reasons prescribed in Fed. R. Civ. P. 41(b)." "Lack of diligent prosecution is such a reason." A copy of the Court's order dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/3EwqfG6 at no extra charge.[CC] STATE FARM: Court Grants Bid to Compel Appraisal in Clippinger Suit ------------------------------------------------------------------- In the case, JESSICA CLIPPINGER, on behalf of herself and all others similarly situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. and AUDATEX NORTH AMERICA, INC., d/b/a AUDAEXPLORE, a Delaware Corporation, Defendants, Case No. 2:20-cv-02482-TLP-cgc (W.D. Tenn.), Judge Thomas L. Parker of the U.S. District Court for the Western District of Tennessee, Western Division: (i) denies Defendant State Farm's motion for summary judgment on all Plaintiff Clippinger's claims; and (ii) grants Defendant State Farm's motion to compel appraisal and stay the action. Background The Plaintiff has a contract with the Defendant for automobile insurance. The Plaintiff had a car accident in May 2019 and submitted an insurance claim to the Defendant. The Defendant then found the Plaintiff's insured vehicle, a 2017 Dodge Grand Caravan, a "total loss." The Defendant sent the Plaintiff a total loss valuation of her vehicle. And it based that valuation on "a valuation report obtained from Audatex using the AMDV [Autosource Market-Driven Valuation] software program." In that valuation report, Audatex listed the values of four vehicles comparable to the loss vehicle. But Audatex deducted from the value of each vehicle a percentage representing the cost of "typical negotiation." And so the Defendant reduced the value of each of the base values of the comparable vehicles by 5%1. What is more, the Defendant failed to itemize or explain the reasoning for this deduction. The Plaintiff's class action complaint alleges that the Defendant improperly calculated the actual cash value of its insureds' total loss vehicles. She claims that the contract requires the Defendant to cover the total loss of her vehicle, and that it can do so either by replacing it or giving her the "actual cash value" of the loss vehicle. By applying this negotiation reduction, the Plaintiff alleges that the Defendant violates its insurance contracts and Tennessee law by paying its insureds less than the actual cash value of their loss vehicles. She thus sues the Defendant for breach of contract, breach of the covenant of good faith and fair dealing, and for a declaratory judgment that the Defendant's actions breached its insurance contracts and violated Tennessee law. In response, the Defendant argues that the Plaintiff's insurance policy (Policy Form 9842A) contains a mandatory appraisal provision. Under the appraisal provision, if the parties disagree about the actual cash value of the covered vehicle, the disagreement "will be resolved by appraisal upon written request" of either party. The Policy also states that "legal action may not be brought against the Defendant until there has been full compliance with all the provisions of this policy." After the Plaintiff sued the Defendant, the Defendant requested appraisal in writing. But the Plaintiff refused to participate. Because of this refusal, the Defendant now moves for summary judgment. The Defendant now argues that there is no genuine issue of material fact about whether the Plaintiff received the Policy and then refused to participate in appraisal after it invoked that provision. It also contends that the appraisal provision is mandatory under the Policy. So because the Plaintiff refused appraisal, the Defendant claims that the Plaintiff (1) lacks standing, (2) cannot establish an injury or damages, and (3) failed to satisfy a condition precedent to suit. The Plaintiff counters that she has standing because she has proof that the Defendant undervalued her car by applying the negotiation adjustment. She argues that she need not complete appraisal to have standing and that appraisal is not a condition precedent to suit. And finally, the Plaintiff claims that the appraisal provision is unenforceable because it is unconscionable, lacks mutuality of obligation, and because Defendant waived its right to enforce it. Discussion Because the dispute relates to a contract for insurance, Judge Parker applies Tennessee law. Federal courts with jurisdiction under 28 U.S.C. Section 1332 "must apply the law of the forum state, Tennessee, in interpreting the parties' contract and its provisions." So Judge Parker applies Tennessee law to the questions about the parties' insurance contract. The Defendant argues that there is no genuine issue of material fact about whether the Plaintiff received the Policy. Indeed, the Plaintiff no longer disputes that she had Policy Form 9842A. The Defendant also argues that the appraisal provision is mandatory, that once it invoked appraisal, the "Plaintiff is required under the Policy to participate in that process." On the other hand, the Plaintiff argues that the Policy's appraisal provision is unenforceable because it is unconscionable, lacks mutuality of obligation, and because the Defendant waived its right to enforce appraisal. Finally, the Plaintiff argues that the Defendant either waived its right to invoke appraisal or that equitable estoppel should stop it from doing so. In sum, Judge Parker finds that the parties agreed to a valid appraisal provision. Although appraisal is not a condition precedent to suit, the parties must participate in appraisal now that Defendant has invoked the provision. What is more, the Plaintiff has standing to bring her declaratory judgment action. But until the parties participate in appraisal, it is not clear that she suffered any injury from the Defendant's alleged breach of contract. Conclusion With all this mind, Judge Parker denies the Defendant's motion for summary judgment but grants its motion to compel appraisal and stay the case. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/evse5zyj from Leagle.com. STONECO LTD: Glancy Prongay Investigates Securities Violations -------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM"), a national investor rights law firm, continues its investigation on behalf of StoneCo Ltd. ("Stone" or the "Company") (NASDAQ: STNE) investors concerning the Company and its officers' possible violations of the federal securities laws. If you suffered a loss on your Stone 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/stoneco-ltd/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On August 30, 2021, after the market closed, Stone announced its second quarter 2021 financial results in a press release, reporting an 8.1% year-over-year decrease in revenue "mainly due to adjustments in credit fair value and significantly lower credit disbursements." The Company stated that it had "implemented some prudent actions, like temporarily stopping the disbursement of credit and increasing coverage for potential future losses, which impacted [Stone's] reported results for the quarter." On this news, the Company's share price fell $2.96, or 6%, to close at $46.54 per share on August 31, 2021, thereby injuring investors. Then, on October 26, 2021, PAX Global Technology Ltd's Florida offices were raided by the U.S. Federal Bureau of Investigation, the Department of Homeland Security, and several other agencies as part of a federal investigation. As a Viceroy Research report on October 27, 2021 pointed out, Stone states that PAX "is no longer [its] sole provider of POS services, [but the Company is] still substantially dependent on it to manufacture and assemble a substantial amount of [its] POS devices." Moreover, another company replaced its PAX terminals "because it did not receive satisfactory answers from PAX regarding its POS devices connecting to websites not listed in their supplied documentation." On this news, the Company's share price fell $2.64, or 7%, to close at $33.81 per share on October 27, 2021, thereby injuring investors further. Whistleblower Notice: Persons with non-public information regarding Stone should consider their options to aid the investigation or take advantage of the SEC Whistleblower Program. Under the program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Charles H. Linehan at 310-201-9150 or 888-773-9224 or email shareholders@glancylaw.com. About GPM Glancy Prongay & Murray LLP is a premier law firm representing investors and consumers in securities litigation and other complex class action litigation. ISS Securities Class Action Services has consistently ranked GPM in its annual SCAS Top 50 Report. In 2018, GPM was ranked a top five law firm in number of securities class action settlements, and a top six law firm for total dollar size of settlements. With four offices across the country, GPM's nearly 40 attorneys have won groundbreaking rulings and recovered billions of dollars for investors and consumers in securities, antitrust, consumer, and employment class actions. GPM's lawyers have handled cases covering a wide spectrum of corporate misconduct including cases involving financial restatements, internal control weaknesses, earnings management, fraudulent earnings guidance and forward looking statements, auditor misconduct, insider trading, violations of FDA regulations, actions resulting in FDA and DOJ investigations, and many other forms of corporate misconduct. GPM's attorneys have worked on securities cases relating to nearly all industries and sectors in the financial markets, including, energy, consumer discretionary, consumer staples, real estate and REITs, financial, insurance, information technology, health care, biotech, cryptocurrency, medical devices, and many more. GPM's past successes have been widely covered by leading news and industry publications such as The Wall Street Journal, The Financial Times, Bloomberg Businessweek, Reuters, the Associated Press, Barron's, Investor's Business Daily, Forbes, and Money. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] TARGET CORP: Class Settlement in Garcia Suit Wins Prelim. Approval ------------------------------------------------------------------ In the case, SERGIO GARCIA, on behalf of himself and all others similarly situated, Plaintiff v. TARGET CORPORATION, a Minnesota corporation, and DOES 1 through 50, inclusive, Defendants, Case No. 2:19-cv-01249-TLN-DB (E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California granted the parties' Joint Motion for Preliminary Approval of Class Action Settlement. Judge Nunley has read and considered the papers on the motion, the arguments of counsel, and the law. He granted the parties' Settlement Agreement preliminary approval as it meets the criteria for preliminary settlement approval. The Settlement falls within the range of possible approval as fair, adequate and reasonable, and appears to be the product of arm's length and informed negotiations and to treat all Class Members fairly. The parties' proposed notice plan is constitutionally sound because individual notices will be mailed to all Class Members whose identities are known to the parties, and such notice is the best notice practicable. The parties' proposed Notice of Proposed Settlement, Conditional Certification of Settlement Class, Preliminary Approval of Settlement, and Hearing Date for Final Court Approval, and proposed forms of Class Member Settlement Information Sheet and Election Not to Participate in Settlement are sufficient to inform Class Members of the terms of the Settlement, their rights under the Settlement, their rights to object to or comment on the Settlement, their right to receive a Settlement Share or elect not to participate in the Settlement, and the processes for doing so, and the date and location of the final approval hearing and are therefore approved. The proposed class is conditionally certified as it satisfies the requirements of a settlement class because the class members are readily ascertainable and a well-defined community of interest exists in the questions of law and fact affecting the parties. The class is defined as: "All persons who are or were employed by Target in the State of California as an Executive Team Leader (ETL) from April 17, 2015, to Dec. 3, 2018." Judge Nunley appointed (i) Plaintiff Sergio Garcia as the Class Representative, (ii) James R. Hawkins and Isandra Y. Fernandez of James Hawkins, APLC as the Class Counsel, and (iii) Simpluris as the Settlement Administrator. The Class Notice will be disseminated according to the notice plan described in the Settlement Agreement and substantially in the form submitted by the parties. Proof of distribution of the Class Notice will be filed by the parties in conjunction with the motion for an order granting final approval of the Settlement. Target is directed to provide to the Settlement Administrator not later than 30 days after the date of the Order the Class Members' Data as specified by the Settlement Agreement. The Settlement Administrator is directed to mail the approved Class Notice Packet by first-class mail to the Class Members not later than 15 days after receipt of the Class Members' Data. Any Class Member who elects not to participate in the Settlement has until 45 days after the mailing of the Class Notice Packet to submit his or her Election Not to Participate in Settlement pursuant to the procedures set forth in the Class Notice. Class Members will receive a Settlement Share if, not later than 45 days after the Settlement Administrator mails the Class Notice Packet, they do not submit a valid and timely Election Not to Participate in Settlement. Any Class Member who wishes to object to the Settlement has until 45 days after the mailing of the Class Notice Packet to file with the District Court and serve on the counsel for the parties his or her written objection (and, if he or she wishes to appear at the final approval hearing, to indicate in his or her written objection an intention to appear), pursuant to the procedures set forth in the Class Notice. Any Class Member who wishes to object to the requests for the Class Representative Payment or the Class Counsel Fees and Expenses Payment, which will be requested by the Plaintiff in the parties' joint motion for final approval of the settlement, has until 21 days before the Final Approval Hearing to file with the Court and serve on counsel for the parties his or her written objection (and, if he or she wishes to appear at the final approval hearing, to indicate in his or her written objection an intention to appear), pursuant to the procedures set forth in the Class Notice. A final approval hearing will be held on Feb. 17, 2022, at 2:00 p.m. The Court reserves the right to continue the date of the final approval hearing without further notice to Class Members. It retains jurisdiction to consider all further applications arising out of or in connection with the Settlement. A full-text copy of the Court's Oct. 19, 2021 Order is available at https://tinyurl.com/4w4vma3u from Leagle.com. TELEFERIC BARCELONA: Resto Staff Seeks Proper Wages --------------------------------------------------- Miriam Marroquin, Humberto Morales, on behalf of herself and all others similarly situated, Plaintiff, v. Teleferic Barcelona PA, LLC and Does 1 to 100, inclusive, Defendants, Case No. 21CV388821 (Cal. Super., October 21, 2021), seeks unpaid wages and interest thereon for Defendants' failure to pay for all hours worked and minimum wage rate; statutory penalties for failure to provide accurate wage statements; waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment; injunctive relief and other equitable relief; and reasonable attorney's fees, costs and interest under California Labor Code, Unfair Competition Law of the California Business and Professions Code and applicable Industrial Welfare Commission Wage Orders. Plaintiffs worked at Teleferic's restaurant in Palo Alto as servers and food staff. They claim to have worked shifts up to 12 hours but were not provided with compliant breaks. Plaintiffs also claim that Teleferic has a mandatory tip pooling policy that required them to pay out all tips at the end of shifts. However, Teleferic did not disclose what formula it uses (if any) to distribute the tips, says the complaint. [BN] Plaintiffs are represented by: Adam Rose, Esq. FRONTIER LAW CENTER 23901 Calabasas Road, 2074 Calabasas, CA 91302 Telephone: (818) 914-3433 Facsimile: (818) 914-3433 Email: adam@frontierlawcenter.com TENCENT MUSIC: Bragar Eagel Reminds of December 27 Deadline ----------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, announces that a class action lawsuit has been filed against Tencent Music Entertainment Group ("Tencent" or the "Company") (NYSE: TME) in the United States District Court for the Southern District of New York on behalf of all persons and entities who purchased or otherwise acquired Tencent securities between March 22, 2021 and March 29, 2021, both dates inclusive (the "Class Period"). Investors have until December 27, 2021 to apply to the Court to be appointed as lead plaintiff in the lawsuit. According to the lawsuit, Goldman Sachs Group Inc. and Morgan Stanley sold a large amount of Tencent Music American Depository Shares (ADSs) during the Class Period while in possession of material non-public information about Archegos Capital Management (at the time a family office with $10 billion under management) and its need to fully liquidate its position in Tencent Music because of margin call pressure. As a result of these sales, the defendants in the case, Goldman Sachs and Morgan Stanley, avoided billions in losses combined. If you purchased or otherwise acquired Tencent shares and suffered a loss, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Alexandra Raymond by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. About Bragar Eagel Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] TESLA INC: Judge Trims Shareholder's Class Action Lawsuit --------------------------------------------------------- Sierra Jackson at Reuters reports that a Delaware state judge has trimmed a Tesla Inc shareholder's class action suit over CEO Elon Musk's compensation package just days after narrowing a lawsuit over the electric vehicle maker's acquisition of SolarCity. Vice Chancellor Joseph Slights III of the Delaware Chancery Court, with both parties' consent, dismissed direct claims against Musk and other Tesla directors and decertified the class. The order still allows Tesla shareholder Richard Tornetta to sue most of the defendants in their capacity as Tesla board members, though claims against two directors were dismissed. Attorneys for Tornetta and the Tesla directors did not immediately respond to requests for comment. Slights issued a similar order on Oct. 22 in connection with a Tesla shareholder lawsuit accusing Musk of using his influence to push for Tesla's $2.6 billion acquisition of solar panel maker SolarCity. Both orders cited the Delaware Supreme Court's September decision in an unrelated case over Brookfield Asset Management Inc's investment in renewable energy company TerraForm Power Inc. In Brookfield, the state's top court ruled that claims over payment or dilution of existing shareholders could only be brought derivatively. Tornetta filed a proposed class action and derivative complaint against the Tesla board in June 2018 for approving a "staggering" compensation package for Musk that was then valued at $2.6 billion. That figure has increased since Tesla's market value surpassed $1 trillion. The proposed class was certified in January 2021, according to the order. The case is Richard J. Tornetta Plaintiff v. Elon Musk, Defendant, Delaware Court of Chancery, No. 2018-0408. For Tornetta: Jeremy Friedman, Spencer Oster and David Tejtel of Friedman, Oster & Tejtel; and Jeroen van Kwawegen of Bernstein Litowitz Berger & Grossmann For Musk and the other Tesla directors: Evan Chesler, Daniel Slifkin and Vanessa Lavely of Cravath, Swaine & Moore [GN] TRACE STAFFING: Bid for Conditional Status Nixed in Gouldie Suit ---------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL GOULDIE, individually and on behalf of all others similarly situated, v. TRACE STAFFING SOLUTIONS, LLC., Case No. 5:21-cv-00088-TES (M.D. Ga.), the Hon. Judge Tilman E. Self, III entered an order denying the plaintiff's motion for conditional certification and court-authorized notice. The Court said that the Plaintiff's efforts fell shy of meeting that burden, and with consideration to its "responsibility to avoid the 'stirring up' of litigation through unwarranted solicitation," the Court must deny his Motion for Conditional Certification and Court-Authorized Notice. On behalf of himself and all others similarly situated, the Plaintiff Michael Gouldie moves the Court to conditionally certify this Fair Labor Standards Act collective action against Defendant Trace Staffing, LLC. As a staffing agency, Trace Staffing employs recruiters—some of which are paid a set salary -- to make Internet job postings, place phone calls, and generally field candidates according to the criteria established by its customers. However, Trace Staffing exempts these "salaried recruiters" from overtime pay, and Plaintiff claims that this exemption violates the FLSA. Trace Staffing operates as an employment recruiting agency. The Company offers career placement, permanent, and temporary staffing services. A copy of the Court's order dated Oct. 22, 2021 is available from PacerMonitor.com at https://bit.ly/2ZCJuhU at no extra charge.[CC] TRUSTEDID INC: O'Leary Appeals Privacy Suit Dismissal to 4th Cir. ----------------------------------------------------------------- Plaintiff Brady O'Leary filed an appeal from a court ruling entered in the lawsuit styled Brady O'Leary, on behalf of himself and all others similarly situated, Plaintiff v. TrustedID, Inc., Defendant, Case No. 3:20-cv-02702-SAL, in the United States District Court for the District of South Carolina at Columbia. As previously reported in the Class Action Reporter, the lawsuit was transferred from Richland County Court of Common Pleas with the assigned Case No. 2020-CP-40-02429 to the U.S. District Court for the District of South Carolina (Columbia) on July 22, 2020, and assigned Case No. 3:20-cv-02702-MGL. The lawsuit is brought against TrustedID, Inc., a wholly owned subsidiary of Equifax, Inc. The case arises from the Defendant's "Look Up Tool" -- an online tool created following the 2017 Equifax, Inc. data breach. The tool provided a mechanism for individuals to determine "whether they were 'impacted' by Equifax's data breach." To use the tool, an individual would visit Defendant's website (https://trustedidpremier. com) and enter six digits of his/her social security number. In return, the individual would receive a message stating whether the individual's data was or was not impacted by the Equifax breach. In this case, Plaintiff used the Look Up Tool in 2019 -- two years after the data breach -- and learned that his data was "not impacted" by the breach. He thereafter filed this action against Defendant in the South Carolina Court of Common Pleas, alleging the Look Up Tool's access requirement violates South Carolina's Financial Identity Fraud and Identity Theft Protection Act and constitutes a common law invasion of privacy. On July 22, 2020, Defendant removed the action to this court on the basis of 28 U.S.C. Section 1332(d), the Class Action Fairness Act. The Plaintiff now seeks a review of the Court's Order dated September 9, 2021 and Judgment dated September 10, 2021, denying Plaintiff's Motion to Remand and granting Defendant's Motion to Dismiss. The appellate case is captioned as Brady O'Leary v. TrustedID, Inc., Case No. 21-2144, in the United States Court of Appeals for the Fourth Circuit, filed on October 14, 2021.[BN] Plaintiff-Appellant BRADY O'LEARY, on behalf of himself and all others similarly situated, is represented by: David Andrew Maxfield, Esq. TROTTER & MAXFIELD 1701 Richland Street Columbia, SC 29201-0000 Telephone: (803) 799-6000 Defendant-Appellee TRUSTEDID, INC. is represented by: Rita Bolt Barker, Esq. WYCHE, P.A. P. O. Box 728 Greenville, SC 29602-0728 Telephone: (864) 242-8235 E-mail: rbarker@wyche.com UNITED STATES: Iraq War Vet With PTSD Wins Class-Action Suit ------------------------------------------------------------ Stephanie Zimmermann at suntimes.com reports that as a Marine in combat and later as an aimless young veteran, Tyson Manker faced a lot of rough times. But now the Illinois man has won his latest and potentially most broad-reaching battle -- this one fought in court. And it should help him and thousands of other U.S. military vets suffering from post-traumatic stress disorder. A preliminary settlement of his class-action lawsuit against the Navy, once finalized, will help veterans given "other-than-honorable" and "general" military discharges due to PTSD -- and who, as a result, were locked out of health care, injury compensation, college money and other benefits usually available to vets. Like Manker, many went untreated and were flagged for behavioral problems. "Think about how wrong this situation is," Manker says. "We're going to send you home with no benefits and with injuries and with this scarlet letter, and 'Good luck.' " As Manker, who's from the small downstate town of South Jacksonville near Springfield, describes it, he's been to hell and back -- twice. The first time was in Iraq, where he was deployed as a patriotic young Marine with a promising career but left under a cloud as he struggled with what he had seen and experienced there. The second time, years later, was in Texas, when he was nearly stabbed to death. That turned out to be a wake-up call, he says, to fix his own life and do what he could to help other veterans. Now, Manker says he's got a lot to be happy about. "I am finally able to feel totally proud of my service," he says. Manker, 40, enlisted in the Marine Corps in 1999 when he was 18. In 2003, he was deployed to the Middle East during the U.S. invasion of Iraq. Here's what he remembers most from that time: Dead and dismembered fighters and civilians. Land mines and improvised explosive devices. A close friend and comrade who accidentally killed himself with a gunshot to the head. Also, as a mortar gunner, he was subjected to repeated subconcussive blasts. Manker and his unit received the Presidential Unit Citation for "extraordinary heroism in action against an armed enemy" and for "gallantry, determination and esprit de corps in … extremely difficult and hazardous conditions." He received other honors, too, and, in his final two evaluations, was rated "excellent" for proficiency and conduct. Looking back, Manker says he already was showing classic signs of PTSD -- nightmares, hypervigilance, fears for his own life. One night before getting a month of leave at home, Manker says he and two junior Marines shared some marijuana. After he returned from his leave, he was non-judicially charged with use or possession of a controlled substance. Though his medical assessment showed no evidence of substance dependence -- and recommended that his trauma be addressed -- Manker says in the lawsuit that he got no help for his PTSD. Instead, within months, he was pushed out of the military with an "other-than-honorable" discharge -- "bad paper," vets call it. Leaving the service with such a discharge means a vet can't access health care provided by the federal Department of Veterans Affairs, including an assessment and treatment of previously undiagnosed PTSD, traumatic brain injury or trauma from military sexual assault. It also means forfeiting GI Bill money for college and not being able to tap veterans disability benefits, housing assistance or special unemployment programs. Manker says he became unmoored. In time, he found a job, doing motorcycle repair work and living in Texas. That's when he got stabbed. He was out with a friend in Austin. A man pulled what Manker thought at first was a gun to rob the friend. It turned out to be a knife. The man used it to attack Manker. He stabbed him in the face and neck. Manker says he remembers waking up in a hospital room, surprised to be alive. Having that near-death experience far from the battlefield, it turned out, "shook me from this haze that I was in." He came back home to Illinois and enrolled in community college, then went on to the University of Illinois-Springfield, from which he graduated magna cum laude. Because of his other-than-honorable discharge, he couldn't use the GI Bill for his education. So he took out loans -- enough eventually to also pay his way through law school at Western Michigan University. Then, he decided to challenge his discharge, to try to get it upgraded to honorable, based on new understanding of PTSD and a 2014 memo from then-Defense Secretary Chuck Hagel that said such requests should be given "liberal consideration." Manker struck out on his first attempt. So he contacted Yale Law School's legal clinic for veterans, which agreed to help. His class-action suit was filed in early 2018 in federal court in Connecticut. This month, his lawyers and attorneys for the Navy agreed to a settlement that -- once approved by a judge -- will change Manker's discharge to honorable and will lay out a path for other veterans with PTSD to overturn their own "bad paper." The settlement comes as other-than-honorable discharges have, over time, been on the rise. Since 2001, more than 2.7 million military personnel have served on active duty in Iraq and Afghanistan, and about 15% of them left with less-than-honorable discharges, according to the lawsuit. That's far more than the 7% of Vietnam-era vets and 2% of World War II-era veterans who got such discharges. Under the preliminary settlement, which would affect those who served in the Navy, Marines and Navy and Marine reserves, the Navy will automatically reconsider certain discharge upgrade decisions made since March 2, 2012. And vets whose discharge decisions were made between Oct. 7, 2001 and March 2, 2012 will be granted the right to try to get them changed. The Navy also will allow video hearings, making it easier for vets who can't afford to travel to Washington to make their case in person. The Navy declined to comment. A video hearing on final approval of Manker's settlement is set for Dec. 16. Blake Shultz, a recent Yale law grad who's worked on the case for nearly three years, says it has the potential to transform the lives of thousands of veterans with undiagnosed PTSD, some who ended up homeless or with criminal records after leaving the military. "This settlement is a small but very important first step," Shultz says. Manker plans to continue using his legal skills. But he'll also tap his newly won GI Bill for music school, starting in January. In Iraq, Manker promised himself that, when he got home, he'd learn to play the guitar. He says he found solace in playing the instrument and formed a rock band called Neonmoms. "I'm thankful that I can hang an honorable discharge on my wall," Manker says, "and that, when I die, there will be a flag folded in my honor." [GN] UNIVERSITY OF PITTSBURGH: Nurse Secretly Films Undressed Patients ----------------------------------------------------------------- Matt Miller at pennlive.com reports that a ruling issued by a Cumberland County judge Friday clears the way for more than 200 women and girls to sue UPMC and its Carlisle medical center over the actions of a nurse accused of secretly filming them while they were undressed. Judge Carrie E. Hyams opened that window by declaring a lawsuit filed on behalf of nine former patients of nurse Michael Bragg to be a class action. Bragg, 41, of Chambersburg, is facing criminal charges in Franklin and Cumberland counties and in federal court based on allegations that he used a hidden camera to film the patients while working at UPMC Carlisle between July 2017 and his firing in April 2019. Agents of the state attorney general's office said they found those videos and other illegal images, including child pornography, during a raid at Bragg's home. Hyams' order allows all alleged victims to join in the suit filed by the nine original plaintiffs. She appointed the Harrisburg law firm of Andreozzi & Foote as the class counsel for the plaintiffs. That same firm won a $90,000 damage verdict against Bragg for one former patient, a minor, in U.S. Middle District Court. Hyams ruled that the class action status will apply for any trial regarding claims of medical professional liability against UPMC. If UPMC is found liable by a jury, individual trials will then be held to determine damages due each plaintiff, the judge said. [GN] VONACHEN SERVICES: Wins Summary Judgment Bid in Twin City BIPA Suit ------------------------------------------------------------------- In the case, TWIN CITY FIRE INSURANCE CO., Plaintiff v. VONACHEN SERVICES, INC., ANNASTASIA RODRIGUEZ, individually and on behalf of all others similarly situated, and JESSI GUMM, individually and on behalf of all others similarly situated, Defendants. VONACHEN SERVICES, INC., Counter Claimant, v. TWIN CITY FIRE INSURANCE CO., Counter Defendant, Case No. 20-cv-1150-JES-JEH (C.D. Ill.), Judge James E. Shadid of the U.S. District Court for the Central District of Illinois granted Defendant Vonachen's Motion for Summary Judgment, and granted in part and denied in part Twin City's Cross Motion for Summary Judgment. Background The insurance coverage dispute concerns a policy issued by Twin City to Vonachen and two class actions that were filed against Vonachen in Illinois circuit courts alleging violations of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (2018) ("BIPA"). On Nov. 1, 2019, Annastasia Rodriguez filed a putative class action lawsuit against Caterpillar, Inc. in the Circuit Court of Cook County, Illinois - Chancery Division, Case No. 2019-CH-12773. On March 3, 2020, the Rodriguez Action was amended to dismiss without prejudice the action against Caterpillar and to convert Vonachen from a respondent in discovery to the sole named defendant. In her complaint, Rodriguez alleged various statutory violations of BIPA: Vonachen required its workers to use their fingerprints "as a means of authentication" via a biometric tracking system; Vonachen violated its employees' rights to privacy when it captured, collected, stored, used and/or disclosed those fingerprints; and Vonachen failed to inform its workers of the extent and purposes for which it collected their biometric data and whether the data was disclosed to third parties. The complaint also listed requirements imposed upon an entity under 740 ILCS 14/15(b)2: (1) inform the subject or the subject's legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored; (2) inform the subject in writing of the specific purpose and length of time for which a biometric identifier or biometric information is being collected, stored, and used; and (3) receive a written release executed by the subject. On Nov. 6, 2019, Vonachen provided notice of the Rodriguez Action to Twin City. Twin City responded to Vonachen with a denial letter on Jan. 20, 2020, which disclaimed any obligations to defend or indemnify Vonachen regarding the Rodriguez Action. After the Rodriguez Action was amended, the counsel for Vonachen provided the amended complaint to Twin City on March 18, 2020. At that time, the counsel disputed the previous coverage denial and provided a copy of Vonachen's Employee Handbook. On April 10, 2020, Twin City acknowledged counsel's submission and again denied coverage to Vonachen. Twin City further stated, "Underlying Action has no relationship to any alleged violation of the Employee Handbook and BIPA is a statute unrelated to any employee-employer relationship. That same day, Twin City filed the instant lawsuit seeking a declaration that Twin City owes no insurance obligations to Vonachen with respect to the Rodriquez Action. On June 12, 2020, Jessi Gumm filed a putative class action suit against Vonachen in the Tenth Judicial Circuit, Peoria County, Illinois, Case No. 20-CH-00139. Like Rodriguez, Gumm alleged BIPA violations in that Vonachen used, collected, and indefinitely stored employees' fingerprints without informed consent and failed to inform its employees of the specific purpose and length of time for which their biometric identifiers or information would be collected, stored, and used. Gumm also accused Vonachen of "invading the Plaintiff's statutorily protected right to privacy in her biometrics." On July 10, 2020, Vonachen provided notice of the Gumm Action to Twin City. Thereafter, Twin City issued a coverage denial letter to Vonachen and filed an Amended Complaint seeking a declaration that it additionally owes no insurance obligations to Vonachen regarding the Gumm Action. The Court notes that it is undisputed that both Rodriguez and Gumm signed a copy of Vonachen's Employee Handbook. The Parties do not dispute the stated portions of the Handbook but disagree on the effect of such wording and their relevance to the lawsuit. The Handbook require all employees to record their working hours through the use of a designated time system to "punch-in" and "punch-out." An employee who fails to punch in or out within seven minutes before or after her designated work time "will be subject to progressive discipline up to and including termination." The "Employee Conduct and Disciplinary Action" section of the Handbook also lists misuse of timekeeping records as a basis for progressive disciplinary action. The Handbook does not discuss privacy risks related to the collection, storage, use, or disclosure of the employees' biometric information. Twin City issued a Private Choice Premier Policy to Vonachen, Policy Number 83 KB 0336944-19, with a policy period of May 17, 2019 to May 17, 2020. It is undisputed by the Parties that the Rodriguez Action and the Gumm Action are considered a single Claim under the Policy because they are based upon the same "Wrongful Act" or "Interrelated Wrongful Acts" as defined by the Policy's Common Terms and Conditions section. The Directors, Officers and Entity Liability Coverage Part ("D&O") has four "insuring agreements" contained within it. The agreement at issue as it relates to D&O coverage is "(C) Entity Liability," which states, in part, "the Insurer will pay Loss on behalf of an Insured Entity resulting from an Entity Claim first made against such Insured Entity during the Policy Period or Extended Reporting Period, if applicable, for a Wrongful Act by an Insured Entity." The Policy includes Employment Practices Liability Coverage ("EPL"). Both Parties have filed claims for declaratory relief based on the D&O and EPL coverage parts of the Policy. However, Vonachen only moves for summary judgment under the EPL coverage whereas Twin City moves for summary judgment under both the D&O and EPL coverage parts. Vonachen opposes Twin City's position on both. In its Motion and Memorandum in Support of Summary Judgment, Vonachen asks the Court to issue a declaration that Twin City has a duty to defend Vonachen in the underlying actions. It asserts the underlying actions allege "Employment Practices Wrongful Acts," which are covered under the EPL section of the Policy and Twin City cannot meet it burden to demonstrate an exclusion bars coverage. In contrast, in Twin City's Cross Motion for Summary Judgment, it contends it owes no insurance obligations to Vonachen based on the D&O and EPL coverage parts. Therefore, Twin City requests a declaration finding it has no duty to defend and no duty to indemnify Vonachen under either coverage part. Discussion At issue in the case is whether Twin City owes insurance coverage to Vonachen for two BIPA lawsuits initiated against Vonachen: the Rodriguez Action and the Gumm Action. Based on the Court's review and the Parties' lack of citations, hardly any courts have addressed an insurer's duty to defend regarding an underlying lawsuit for BIPA violations. In the case, the Parties have asked the Court to determine whether Twin City has a duty to defend and/or indemnify Vonachen under the D&O or EPL coverage parts. I. Duty to Defend In Illinois, an insurer's duty to defend is "much broader" than its duty to indemnify. An insurer has a duty to defend its insured 'unless it is clear from the face of the underlying complaint that the facts alleged do not potentially fall within the policy's coverage.' To determine whether the duty has been triggered, the Court must look to the allegations in the underlying complaints and compare those allegations to the relevant provisions of the insurance policy. The focus is on the factual allegations in the complaint rather than the legal labels a plaintiff may use. The allegations in the underlying complaints and the insurance policy "must be construed liberally, and any doubt as to coverage must be resolved in favor of the insured." Judge Shadid finds that in Twin City's Statement of Undisputed Material Facts and Additional Statement of Undisputed Facts, it discreetly remarks, "Twin City is unable to confirm whether the Employee Handbooks are true and correct copies and accordingly submits the accompanying Fed. R. Civ. P. 56(d) Affidavit." Notably, Twin City did not file an independent Rule 56(d) motion asking the Court to defer ruling on Vonachen's Motion for summary judgment so that Twin City could obtain additional discovery. Rather, Twin City responded to Vonachen's summary judgment motion and likewise moved for judgment based on the same policy provision as Vonachen. Therefore, Twin City likely waived its opportunity to file a Rule 56(d) motion based on the timing of its submission and failure to clearly articulate it was indeed filing a Rule 56(d) motion. Assuming Twin City properly raised a Rule 56(d) motion, its motion is denied for failure to explain the steps, if any, it undertook to authenticate the Handbook, articulate why further discovery is needed on the authenticity of the Handbook, or provide a compelling argument why discovery should be continued. Rule 56(d) motions are inappropriate if they are based on nothing more than mere speculation and would amount to a fishing expedition. Vonachen maintains the Court must consider the Handbook because one of the coverage parts explicitly provides coverage for violations of obligations arising from the handbook. Therefore, it is impossible to know whether there is potential liability arising from the Handbook without reviewing it. Twin City urges the Court to ignore Vonachen's extrinsic evidence of the Handbook because it is irrelevant to the duty to defend inquiry. Judge Shadid agrees with Vonachen on this issue. He says, the Policy covers "obligations arising from the handbooks." Thus, it is impossible to know whether there is potential liability arising from the Handbook without reviewing it and both Parties rely on provisions of the Handbook for their respective arguments. The Court's mere consideration of whether obligations arising from the handbooks potentially give rise to coverage under the Policy will not determine an ultimate issue in the underlying actions. It will not preclude the plaintiffs from raising a theory of recovery or determine Vonachen's liability in those actions. Thus, Judge Shadid considers the Handbook in determining whether Twin City has a duty to defend Vonachen. With these allegations in mind, Judge Shadid now turns to the D&O and EPL insurance policies. A. D&O Coverage Twin City asserts both the "Insured v. Insured Exclusion" and "Invasion of Privacy Exclusion" bar coverage. Meanwhile, Vonachen maintains Twin City has not met its heavy burden to demonstrate an exclusion bars coverage, therefore it must defend Vonachen under the D&O coverage. Judge Shadid finds that Vonachen has shown the exception to the "Insured v. Insured Exclusion" applies. However, he finds Twin City has met its burden to show it is clear and free from doubt that the "Invasion of Privacy Exclusion" in the D&O coverage applies, thereby defeating coverage under the D&O. With that said, he takes issue with how the insured v. insured exclusion/whistleblower exception in the general exclusions and exclusions appliable to "Insuring Agreement (C)" are to be read together, specifically the "Invasion of Privacy Exclusion." In the next section of Policy, there are also exclusions for claims involving employment-related wrongful acts, discrimination or sexual harassment, and unfair trade practices or any violation of the Federal Trade Commission Act or any similar laws, intellectual property, and categories of products liability. This begs the question of what does the whistleblower exception include? Does the combination mean the whistleblower coverage becomes extremely narrow? The Parties did not address how these exclusions are to be read together. Therefore, Judge Shadid declines to do so. Judge Shadid also finds that there are a number of cases that have held a BIPA violation is an invasion of privacy so regardless of whether the plaintiffs in the underlying actions even used the terminology "invasion of privacy," there is caselaw establishing it. The exclusion broadly encompasses invasions beyond common-law torts with the phrase anything "in any way related to any actual or alleged" invasion of privacy. The discussion of courts' interpretations of BIPA demonstrate violations are actual invasions of privacy (whether one likens it to a statutory claim or common law claim). Thus, the BIPA violations alleged in the case are at least, "related to any actual or alleged" common law invasion of privacy. Therefore, based on the Illinois Supreme Court's interpretation of BIPA, the exclusion for invasions of privacy is clearly broad enough to exclude the BIPA violations alleged in the case. B. EPL Coverage Vonachen argument for EPL coverage is as follows: Because the Handbook requires Vonachen to use the timekeeping system, and Vonachen has obligated itself to comply with all laws associated with that system, including BIPA, Twin City's duty to defend has been triggered based on the alleged BIPA violation in the underlying complaints. In response, Twin City disclaims EPL coverage because the Handbook does not support a breach of contract claim based on the disclaimer in the Handbook that it does not create contractual obligations and the underlying complaints do not implicate the Handbook or a breach of contract claim. In comparing the allegations in the Complaint to the insurance policies, Judge Shadid finds the conduct alleged in the underlying complaints potentially falls within the EPL coverage. Twin City has a duty to defend under the EPL coverage part based on the allegations in the underlying complaints and the broad language it chose to include in its coverage. The underlying complaints clearly alleged an "employment-related invasion of privacy." The alleged invasion occurred at work, for work purposes (timekeeping), and as a result of the employer/employee relationship. Further, the "Employee Data Privacy Wrongful Act includes the failure to notify any employee of the "potential unauthorized access to or use of Private Employment Information of any Employee if such notice was required by state or federal regulation or statute." This fits within the requirements enumerated in sections 15(b) and 15(d) of BIPA to obtain written consent prior to collecting or disseminating a person's biometric information including the purposes for which the data will be used and length for its storage, coupled with the allegations in the underlying complaints that Vonachen failed to inform the plaintiffs of whom Vonachen would disclose the data to or what would happen to their data in the future. The data privacy violations are an integral part of the wrongful employment practice of a breaching an employee handbook obligation because the Handbook imposed the requirements for employees to clock-in and clock-out using the approved device. II. Duty to Indemnify As to indemnification, the Parties disagree as to whether the Breach of Contract Exclusion in the EPL coverage forecloses indemnification and whether the issue of indemnification is ripe. In its Cross Motion, Twin City claims even if it has a duty to defend, it has no duty to indemnify because the EPL Coverage Part contains a "Breach of Contract Exclusion" from coverage for any liability arising from an alleged breach of an employment contract or the employment handbook. Vonachen offers three reasons why this exclusion does not apply: (1) the exclusion does not bar indemnity coverage because its ambiguities must be construed in favor of coverage, (2) Vonachen could be liable under BIPA regardless of an employment contract, and (3) the exclusion allows for the recovery of defense costs which is the only loss Vonachen seeks to recoup at this time, therefore, Twin City must pay based on the plain language of the policy. Judge Shadid finds that the exception to the exclusion applies as the Parties agree Vonachen could be liable for the alleged BIPA violations absent a contract. The provision is not ambiguous because there is only one reasonable interpretation. The exclusion allows for defense costs associated with a breach of contract, but not indemnification obligations. Finally, there is an exception to the exclusion provision stating that it does not apply "to liability that would have been incurred in the absence of such contract." Twin City fails to respond to Vonachen's argument regarding the exception, therefore any argument as to the interpretation of this contractual language is waived. Judge Shadid also finds that there is a duty to defend. Thus, Twin City's indemnification argument fails on that basis. Additionally, there has been no indication from the Parties that the underlying actions have been resolved. A duty to indemnify, which is narrower than the duty to defend, does not arise until the insured becomes obligated to pay damages in the underlying action. At that point, an insurer must indemnify only if the insured's activity and resulting damage "actually fall within" the policy's coverage. Upon these considerations, it is indeed premature to decide the issue of indemnification. Therefore, that portion of Twin City's claim is dismissed, without prejudice, as premature at this stage. Twin City may re-file its claim following liability determinations in the underlying actions, if necessary. Conclusion For the reasons he set forth, Judge Shadid granted Defendant Vonachen's Motion for Summary Judgment and granted in part and denied in part Plaintiff Twin City's Cross Motion for Summary Judgment. He finds the Rodriguez and the Gumm Actions are a single, interrelated claim under the Policy. Twin City has a duty to defend Vonachen with respect to the underlying lawsuits, the Rodriguez Action, Case No. 2019-CH-12773, pending in the Circuit Court of Cook County, Illinois - Chancery Division, and the Gumm Action, Case No. 20-CH-00139, pending in the Tenth Judicial Circuit, Peoria County, Illinois, pursuant to the terms of Twin City's Private Choice Premier Policy to Vonachen, Policy Number 83 KB 0336944-19. Twin City's remaining claims for indemnification are dismissed without prejudice. The Clerk is directed to close the case and enter judgment as set forth in the preceding paragraph. A full-text copy of the Court's Oct. 19, 2021 Order & Opinion is available at https://tinyurl.com/3tnmf67h from Leagle.com. WALGREENS BOOTS: Dismissal of JR Personal Injury Suit Affirmed -------------------------------------------------------------- In the case, J.R., individually and on behalf of her minor children A.R. and H.K.; J.H., individually, and on behalf of all others similarly situated; B.Y., individually, and on behalf of all others similarly situated; J.S., individually, and on behalf of all others similarly situated, Plaintiffs-Appellants v. WALGREENS BOOTS ALLIANCE, INC.; WALGREEN CO., Defendants-Appellees, Case No. 20-1767 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit affirms the district court's dismissal of the Plaintiffs' 12-count class action suit. Background Six pharmacy customers ("Plaintiffs") appeal from the district court's dismissal of their 12-count class action suit against Walgreens Boot Alliance, Inc. ("WBA") and Walgreen Company (collectively, "Walgreens"). At bottom, the Plaintiffs allege that the transfer of their personal identifying information ("PII") from the Walgreens pharmacy filling their prescription to separate, internal company databases violates their rights under various federal and state statutes and state tort claims. Congress enacted the 340B Drug Pricing Program in 1992, which requires participating manufacturers to provide certain prescription drugs at significantly discounted prices to eligible and enrolled health care providers. Covered entities typically serve low-income patients with limited access to health care. Given the cost savings involved, federal law expressly prohibits covered entities from "reselling or otherwise transferring" a 340B drug "to a person who is not a patient of the entity." Covered entities are subject to audits by both the Department of Health and Human Services and participating drug manufacturers. Sometimes lacking the resources to operate in-house pharmacies, covered entities often engage a retail pharmacy ("contract pharmacy") to dispense 340B-eligible drugs purchased by the covered entity to the low-income patient. Walgreens is a 340B contract pharmacy for several covered entities in South Carolina, some of which provided the Plaintiffs with medical services and use Walgreens pharmacies in South Carolina to fill their patients' prescriptions. All South Carolina pharmacies must comply with the South Carolina Pharmacy Practice Act ("PPA"), S.C. Code Ann. Section 40-43-10 et seq.; the South Carolina Prescription Information Privacy Act (the "PIPA"), S.C. Code Ann. Section 44-117-10 et seq.; and the American Pharmaceutical Association Code of Ethics. In 2010, Walgreens created a separate division within its corporate organization, "340B Complete," to oversee administration of its contract pharmacy operations and ensure compliance with the Program. This division is separate from other aspects of Walgreens' operations, including its pharmaceutical, photo, and retail divisions. None of the 160 employees working in the 340B Complete division are licensed pharmacists. When any patient seeks to fill a prescription at a Walgreens pharmacy, the pharmacist first enters the patient's PII into a "proprietary computer software system" called IntercomPlus, which all Walgreens pharmacies nationwide can access. That PII includes: the patient's name, address, date of birth, payment information, and third-party reimbursement rate; the drug's name, dosage, frequency, and refill information; and the prescribing physician's information. The PII in IntercomPlus is then transferred to a "corporate central repository" called Enterprise Data Warehouse ("EDW"), J.A. 41, all of which is part of the same Walgreens corporate entity. Walgreens markets to covered entities a commercial software product registered and trademarked as "340B Complete(R)," which extracts the PII from EDW and compares it to the PII that a given Walgreens pharmacy received from a covered entity. Assuming there is a match, the 340B Complete(R) software transfers the PII on file in EDW into Walgreens' 340B Complete payment process. This data transferring occurs for purposes of replenishing the pharmaceutical drugs that a Walgreens pharmacy dispenses to a 340B patient. Under federal law, only a covered entity may purchase 340B drugs. Walgreens cannot. Using 340B Complete(R), Walgreens performs a financial analysis to determine if it is less expensive to process payment through the patient's insurance company. If so, Walgreens will submit the claim to insurance, retain the full insurance reimbursement amount as it would with any ordinary consumer, and purchase the resupply itself. If, however, it is cheaper for Walgreens to process the transaction as a 340B event, then 340B Complete(R) will designate it as such. This enables Walgreens to replenish the drug inventory through the covered entity for a 340B patient and not run afoul of the distinction between 340B and non-340B prescription drug purchases. Nonetheless, the Plaintiffs claim the transfer of their PII from the pharmacy filling their prescription to EDW, and the transfer from EDW to 340B Complete(R), violates various rights. Among other claims, they allege that they never gave Walgreens permission to use or transfer their PII and that Walgreen's Notice of Privacy Policy ("NPP") did not inform them that their PII would be used in 340B Complete(R). The Plaintiffs filed a 12-count class action Amended Complaint, seeking preliminary and permanent injunctive relief, as well as "compensatory, exemplary, and punitive damages in amounts to be determined." The claims are as follows: (1) invasion of privacy: wrongful appropriation; (2) invasion of privacy: wrongful publicizing of private affairs; (3) negligence per se based on violations of the PIPA; (4) breach of contract; (5) negligence (based on violations of the PIPA, the PPA, and regulations issued by the South Carolina Board of Pharmacy); (6) negligence (based on a duty to disclose to the Plaintiffs "the true facts about Walgreens' substandard patient privacy practices," J.A. 67); (7) respondeat superior; (8) negligent training and supervision; (9) unjust enrichment; (10) violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. Sections 1681-1681x; (11) negligence per se based on violations of the FCRA, the Health Insurance Portability and Accountability Act ("HIPAA"), and the Federal Trade Commission Act ("FTCA"); and (12) declaratory relief. Walgreens filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), which the district court granted. The Fourth Circuit has jurisdiction over the Plaintiffs' timely-filed appeal, and reviews the district court's dismissal de novo, Garnett v. Remedi SeniorCare of Va., LLC, 892 F.3d 140, 142 (4th Cir. 2018). Discussion A. The Invasion of Privacy Claims The Fourth Circuit opines that though the Plaintiffs allege that their PII is accessible by the 160 non-pharmacist employees in Walgreen's 340B Complete division, there is no assertion that Walgreens has publicized that information to the public at large. The alleged internal corporate disclosures are not "public" broadcasts, as the PII is only accessed by those employees for private, business purposes. Therefore, the Fourth Circuit agrees with the district court that Plaintiffs failed to state a claim for invasion of privacy under South Carolina law. B. Negligence Per Se Based on Violation of the PIPA The Fourth Circuit concludes that the district court did not err in limiting the PIPA's scope to external data transfers. Although the statute does not expressly modify the word "transfer," that term's plain meaning supports this narrow construction. Naturally read, then, the PIPA's prohibition on "transfers" is only implicated when a patient's PII leaves the custody of the corporate entity originally entitled to possess it (a "person") to a different legal entity or natural person. There is no textual basis for interpreting "transfer" and "receipt" to apply to movements of data between parts of a single legal entity. As the district court ably expressed it, to adopt that construction would mean that a pharmacy would violate the PIPA any time it moved data "outside of the four walls of the pharmacy, including basic functions such as transmitting information for legal, administrative, or IT services that do not occur within the four walls of the pharmacy." Therefore, the Fourth Circuit affirms the district court's dismissal of this claim. C. Breach of Contract The Plaintiffs raised two breach of contract claims before the district court. First, they argued that when they gave Walgreens their PII, it implicitly agreed to take reasonable measures to secure that data, thereby creating an implied contract. Second, the Plaintiffs claimed that Walgreens' NPP was a contract, which the 340B Complete process violated. The district court rejected both theories. The Fourth Circuit agrees. First, there was no implied contract between Plaintiffs and Walgreens. Second, there was no actionable "breach" of the NPP. Therefore, the Fourth Circuit affirms the district court's dismissal of the Plaintiffs' breach of contract claims. D. Negligence Under the PPA Next, the Plaintiffs argue Walgreens' purported breach of duties established by professional standards amounts to negligence. The district court correctly rejected this claim, the Fourth Circuit opines. The Plaintiffs' claim that the PPA imposes a duty of care to "maintain the confidentiality of their PII," is foreclosed. The Plaintiffs also assert that there is a general duty to "maintain a pharmacy patient record system with adequate security and systems safeguards to prevent unauthorized access of pharmacy patient records." That is one of the PPA's requirements. Assuming that this is sufficient evidence of a duty to do so, the Fourth Circuit holds that the Plaintiffs have nevertheless failed to allege a breach of that duty. There are no allegations that unauthorized persons obtained access to their PII, and the Plaintiffs have cited no authority to plausibly establish that a non-pharmacist Walgreens employee's access to that data to determine if a transaction qualifies for the 340B program is "unauthorized." E. General Negligence The Plaintiffs further allege that Walgreens "failed to conform to the privacy practices universally recognized and accepted in the pharmaceutical profession." The Fourth Circuit finds no factual allegations from the American Pharmaceutical Code of Ethics or the South Carolina Board of Pharmacy's promulgated rules that show what constitutes those "universally recognized and accepted" practices or how Walgreens purportedly violated them. The same logic applies to the alleged duty to "exercise reasonable care to protect [Plaintiffs] against the risk of foreseeable harm from their actions." Without any facts plausibly demonstrating the precise duty Walgreens is alleged to have breached, the district court properly determined that the Plaintiffs failed to plausibly establish that Walgreen's 340B Complete process constitutes a breach. F. Negligent Training and Supervision Claims As the district court observed, there is no allegation of any intentional conduct on the part of any Walgreens employee. Further, because there has been no cognizable "harm" to the Plaintiffs arising from any Walgreens employee's conduct, the Fourth Circuit finds that component of the negligent supervision claim also has not been adequately alleged. Therefore, it affirms the dismissal of these claims. G. Unjust Enrichment The district court dismissed the Plaintiffs' unjust enrichment claim because they failed to allege that they "reasonably expected payment from the unconsented use of their PII." The Plaintiffs argue there is no such requirement in bringing an unjust enrichment claim and that the district court erroneously added this as an additional element. The Fourth Circuit need not resolve this dispute, however, because the Plaintiffs' concession that they voluntarily "provided their PII to Walgreens' pharmacy for the intended purposes of obtaining, and allowing Walgreen's pharmacy to seek third-party payment for, their individual prescriptions," defeats any allegation that its acquisition and use of the PII was somehow "inequitable." Stated differently, Walgreens could not have acted unjustly by using the Plaintiffs' PII for the very purpose they intended for it to be used. Therefore, the Fourth Circuit affirms the district court's dismissal of the Plaintiffs' unjust enrichment claim. H. Negligence Per Se Based on HIPAA and FTCA Violations The Fourth Circuit turns next to the Plaintiffs' negligence per se claims based on violations of HIPAA and the FTCA. "Negligence per se is negligence arising from a defendant's violation of a statute." The district court concluded that there was no implied private right of action under HIPAA, meaning it could not support a negligence per se claim. The Fourth Circuit agrees. It opines that the Amended Complaint highlights supposed shortfalls in Walgreens' information-privacy practices, namely, its purported failure to "maintain the security and privacy of" patient's PII, which they contend resulted "in the unauthorized transfer, receipt, and/or use, disclosure, or dissemination" of that PII. But the only factual basis for this alleged violation is Walgreens' internal transfer of information within various in-house electronic databases to be accessed by Walgreens employees for purposes of processing a patient's health care information for a 340B billing determination. There are no allegations of any attempt—much less a successful endeavor -- by an unauthorized third-party to access the Plaintiffs' PII. The Plaintiffs have thus failed to state a claim under the FTCA, even assuming one exists. Therefore, the Fourth Circuit affirms the district court's dismissal of these claims. I. Declaratory Relief Finally, because all of the Plaintiffs' other claims fail as a matter of law, the Fourth Circuit affirms the district court's determination that they are not entitled to declaratory relief. Conclusion Accordingly, the Fourth Circuit affirms the district court's judgment in full. A full-text copy of the Court's Oct. 19, 2021 Opinion is available at https://tinyurl.com/5d7fhnc8 from Leagle.com. ARGUED: Michael J. Moore -- michaelmoore@popemcglamry.com -- POPE McGLAMRY KILPATRICK MORRISON & NORWOOD, P.C., in Atlanta, Georgia, for the Appellants. Robert N. Hochman -- rhochman@sidley.com -- SIDLEY AUSTIN LLP, in Chicago, Illinois, for the Appellees. ON BRIEF: Charles W. Byrd -- chuckbyrd@popemcglamry.com -- Aimee J. Hall -- aimeehall@popemcglamry.com -- POPE McGLAMRY KILPATRICK MORRISON & NORWOOD, P.C., in Atlanta, Georgia; William N. Nettles -- bill@billnettleslaw.com -- BILL NETTLES LAW, in Columbia, South Carolina, for the Appellants. David E. Dukes -- david.dukes@nelsonmullins.com -- Amanda S. Kitts -- amanda.kitts@nelsonmullins.com -- Adam J. Hegler -- adam.hegler@nelsonmullins.com -- NELSON MULLINS RILEY & SCARBOROUGH LLP, in Columbia, South Carolina; Scott D. Stein -- sstein@sidley.com -- Matthew C. Bergs, Ross O. Kloeber, SIDLEY AUSTIN LLP, in Chicago, Illinois, for the Appellees. WILMINGTON TRUST: Bid for Final Nod of Fink's $5.5MM Deal Denied ---------------------------------------------------------------- In the case, KRISTINA FINK, on behalf of the Nation Safe Drivers Employee Stock Ownership Plan, and on behalf of a class of all other persons similarly situated, Plaintiff v. WILMINGTON TRUST, N.A., ANDREW SMITH, MICHAEL SMITH, and FRANK MENNELLA, Defendants, and WILMINGTON TRUST, N.A., Third-Party Plaintiff v. STOUT RISIUS ROSS, INC. and STOUT RISIUS ROSS, LLC, Third-Party Defendants, Civil Action No. 19-1193-CFC (D. Del.), Judge Colm F. Connolly of the U.S. District Court for the District of Delaware denied the Plaintiff Fink's Unopposed Motion for Final Approval of Settlement and Unopposed Motion for Attorneys' Fees, Litigation Expenses and Class Representative Service Award with leave to file amended motions. Background Pending before the Court are Plaintiff Fink's Motion for Final Approval of Settlement, and her Motion for Attorneys' Fees. These motions have been filed by Fink as an individual and class representative. The parties have agreed to settle the class action for a payment of $5.5 million into a common fund for the benefit of settlement class members. Fink's attorneys argue that this payment will result in vested class members receiving $25,000 on average and non-vested class members receiving $50. Fink's attorneys request a fee award of 30% of the recovery amount. Thus, the actual vested class member recovery will only be, on average, $17,500. As Judge Connolly indicated at the hearing on Sept. 15, 2021, he is willing to approve the proposed settlement agreement but has concerns regarding the requested attorneys' fees. He says, typically, his role is to adjudicate disputes. But, in a class action, the plaintiff often presents an unopposed motion for settlement. When the attorneys' fees are taken from the settlement fund, the defendant has little incentive to object. Class members also have little incentive to object, especially when recovery amounts are small. And, even when recovery amounts are more substantial, the class members may lack the knowledge or experience to lodge objections to the proposed attorneys' fees. There are two primary methods for calculating attorneys' fees: The percentage of recovery method and the lodestar method. The Third Circuit generally suggests using the percentage of recovery method in cases involving a common fund, but it advises district courts to employ the lodestar method to cross-check the reasonableness of the percentage of recovery requested. In the case, Fink's attorneys request 30% of the common fund for attorneys' fees. Viewed in isolation, 30% seems high but not necessarily out of line with other awards in this circuit. But, when Judge Connolly cross-checks this requested percentage with the lodestar method, he finds the percentage to be unreasonably high. At the time that the motion for attorneys' fees was filed, Fink's attorneys calculated their lodestar fees to be $423,690. Thus, in requesting 30% of the fund, they request that Judge Connolly multiplies their lodestar fees by 3.9 to compensate them for the risks associated with taking the case and to account for the complexity of the case. Even after the settlement hearing and additional briefing, he remains unconvinced that attorneys' fees comprising 30% of the recovery fund are reasonable. The Third Circuit identifies 10 factors that may be relevant for district courts to consider when awarding fees: (1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs' counsel; (7) the awards in similar cases; [8] the value of benefits accruing to class members attributable to the efforts of class counsel as opposed to the efforts of other groups, such as government agencies conducting investigations; [9] the percentage fee that would have been negotiated had the case been subject to a private contingent fee agreement at the time counsel was retained; and [10] any innovative terms of settlement. Ms. Fink's attorneys focused on the following factors in briefing and at the settlement hearing: Skill and efficiency of the attorneys, complexity and duration of the litigation, risk of nonpayment, and awards in similar cases. Thus, Judge Connolly too gives these factors the most weight. A. Skill and Efficiency of the Attorneys Ms. Fink's attorneys argue that they "were able to successfully litigate the ERISA case because they are experts in this area of law," and "were able to leverage their vast experience and expertise in ESOP litigation to achieve a positive and meaningful benefit to the Class." Although the lead attorneys have been litigating ERISA cases for numerous years, Judge Connolly finds that they have very limited trial experience, making him question the true extent of their litigation expertise. In any event, the skill and experience of the attorneys would be reflected in their hourly billing rates. Gregory Porter's billing rate is $850, and Dan Feinberg's billing rate is $975. These rates are at the upper limit of what other courts have concluded were reasonable billing rates in ERISA actions. Judge Connolly concludes that the high hourly rates reflect Porter's and Feinberg's expertise and experience; and, given his conclusion, he finds it hard to justify inflating an hourly rate by a multiplier based on the expertise and experience that the rates already assume. The requested lodestar multiplier would be "double counting" the skill and experience already presumedly factored into the hourly rate. B. Complexity and Duration of the Litigation Fink's attorneys argue that ERISA class actions are particularly complex. Judge Connolly does not dispute that ERISA cases can be complex, but the attorneys offer no explanation for why this particular case was complex. Indeed, these attorneys have settled similar causes of action with Wilmington Trust at least twice before the present case, and they were confident that they knew the topics for which Wilmington Trust would designate experts. Thus, although ERISA is a complex area of law, this specific case for these specific attorneys does not seem to warrant a lodestar multiplier of 3.9. Further, as he explained, Judge Connoly finds that the attorneys' hourly rates used in the lodestar fee calculation reflect the complexity of litigating ERISA cases. The attorneys argued at the settlement hearing that they were able to efficiently litigate this case because they are "highly skilled and know how to get to the heart of the matter." The Supreme Court has advised that, in cases "where the experience and special skill of the attorneys will require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue," "the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates." Thus, Judge Connolly would expect that the high hourly rates already account for the attorneys' ability to litigate efficiently. Similarly, he would expect the lodestar fee calculation to account for the complexity of the case even before the multiplier. More complex cases tend to require more of an attorney's time. Thus, the complexity of the case should be captured by the number of recorded billable hours used for the lodestar fee calculation. Even if the hourly rate does not fully offset the low number of recorded billable hours, Judge Connolly is not convinced that the hours are so skewed as to justify a 3.9 multiplier. The parties settled the case in the early stages of litigation before any formal discovery had been conducted. Therefore, Judge Connolly would expect the calculated lodestar fee to already account for complexity and duration of litigation. And, even if the calculated fee were lower than deserved, the attorneys have not justified the requested multiplier. C. Risk of Nonpayment The attorneys argue that they assume the risk of nonpayment when they take cases on contingency. Recognizing that, in the abstract, this statement is accurate, Judge Connolly is skeptical that there was a serious risk of nonpayment in the case given that these attorneys had settled at least two other cases with Wilmington Trust involving similar causes of action (ESOP overpaying for stock). He says, the attorneys are correct that success in litigation is never guaranteed and that trials are unpredictable. But the attorneys were familiar with Wilmington Trust and Wilmington Trust's settlement practices. Although there was certainly a risk that Fink could lose at trial, Fink's attorneys were armed with an understanding of how Wilmington Trust approaches ESOP litigation and settlement. Thus, the risk of absolute nonpayment seems lower than it might be in other cases. D. Awards in Similar Cases Ms. Fink's attorneys have submitted additional briefing explaining how the requested fee in the case compares to requested fees in other cases. Of the cases cited in that briefing, Swain v. Wilmington Trust, N.A., No. 17-cv-71 (D. Del.) is the most similar with the case. In Swain, the plaintiff alleged that Defendant overpaid for its ESOP purchase of stock, and the case settled before discovery was complete and before class certification for a payment of $5 million. Although the plaintiff attorneys in Swain were awarded 33% of the recovery amount as attorneys' fees, the lodestar multiplier was only 1.7. Thus, although the requested fee here is the same as it was in Swain, the lodestar multiplier here is over twice the multiplier used in Swain. The difference in multipliers supports my sense that Fink's attorneys were able to leverage their familiarity with Wilmington Trust to settle this subsequent case with less work. The Swain case thus suggests that a lodestar multiplier closer to 1.7 is more appropriate than a multiplier of 3.9. E. Other Factors The remaining factors cited by the Third Circuit in AT&T, 455 F.3d at 165, do not significantly influence Judge Connolly's decision. Regarding the size of the fund and number of beneficiaries, Fink's attorneys state that they were able to secure 36.6% of the maximum possible recovery as the settlement amount. This percentage is in line with other percentages of maximum possible recovery that the attorneys were able to secure in other ESOP cases. Thus, this recovery does not seem so exceptional as to warrant a lodestar multiplier of 3.9. Regarding objections by the class members, the attorneys note that there are no objections, but, as mentioned before, the incentive for a class member to object is often low. Thus, the lack of objections alone does not justify the requested fees. Regarding the amount of time spent by Fink's attorneys, the attorneys argue that they invested approximately 600 hours into the case, demonstrating a significant commitment to the litigation. Although the attorneys should certainly be compensated for the hours they devoted to the litigation, the time spent does not explain why they should be compensated for substantially more hours than they actually devoted to the case. Regarding the value attributable to Fink's attorneys relative to efforts of other groups, there were no other groups involved, so there is no other effort from another group against which to compare Fink's attorneys' effort. Thus, this factor does not help me determine the reasonableness of the requested fee. Regarding the fee that would have been negotiated had the case been subject to a private contingent fee agreement, Judge Connolly recognizes that private contingency agreements often grant 30% of the recovered amount in attorneys' fees. But he declines to find that this factor outweighs the rest of my analysis, especially considering that the attorneys could not articulate the circumstances under which this class action representation was initiated. Finally, regarding any innovative terms of the settlement, Fink's attorneys state that the agreement allows class members to roll over their payments into an IRA but do not explain how this term is innovative. Thus, this factor does not change Judge Connolly's calculus. Conclusion Finding the requested attorneys' fees unreasonable, Judge Connolly is now forced to adjust the fees himself. Although he believes the attorneys should be compensated for more than just the calculated lodestar fee, Fink's attorneys have given him little more than conclusory statements to justify their requested multiplier of 3.9. Even after the supplemental briefing, Judge Connolly remains unconvinced that the case is special enough to warrant increasing the calculated fees by a multiplier of 3.9. Thus, he bases his fee determination on the fees granted in previous, similar cases. Based on the supplemental briefing, Judge Connolly concludes that Swain is the most analogous to the case. In Swain, the lodestar multiplier was 1.7. The attorneys' lodestar fees as of the filing of the proposed settlement were $423,690. Thus, applying a multiplier of 1.7, Judge Connolly approves attorneys' fees of $720,273. The Plaintiff's Unopposed Motion for Final Approval of Settlement and the Plaintiff's Unopposed Motion for Attorneys' Fees, Litigation Expenses and Class Representative Service Award are denied with leave to file amended motions consistent with Judge Connolly's Memorandum Order. A full-text copy of the Court's Oct. 19, 2021 Memorandum Order is available at https://tinyurl.com/6sw7b7aa from Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. 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