/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/211206.mbx C L A S S A C T I O N R E P O R T E R Monday, December 6, 2021, Vol. 23, No. 237 Headlines 1888 MILLS: Loses Summary Judgment Bid vs Brown 3 RIVERS TELEPHONE: Barnes Files Suit in D. Montana ALLIED WASTE: Recycling Services "Misleading," Cross Suit Claims AMAZON INC: Faces Baron Suit Over Alleged Sale of Digital Content AMAZON.COM: Nov. 22 Deadline to File Class Cert. Bid Vacated AMERIHEALTH CARITAS: Underpays Clinical Care Reviewers, Wood Claims AMICO CORPORATION: Carroll Sues Over Delayed Wages, Discrimination AMWARE PALLET: Beltran Hits Missed Breaks, Seeks Reimbursements ANCIENT BRANDS: Weekes Files ADA Suit in S.D. New York ANGRY SUPPLEMENTS: Weekes Files ADA Suit in S.D. New York ANIMAL MEDICAL: Sosa Files ADA Suit in S.D. New York ANTHEM COMPANIES: Underpays Medical Management Nurses, Baker Claims ARCHON INC: Appeals Default Judgment in Saiyed FLSA Suit ARGENT TRUST: Files Consent Bid to Reset Class Cert. Deadlines ARROW SENIOR: Parties Seek FLSA Conditional Status ASSOCIATION MGMT: Denial of Class Cert. Bid in Liggio Suit Affirmed ATLAS OPERATING: Fails to Pay Overtime Wages, Perez Suit Claims AZARIAHS INNOCENCE: Weekes Files ADA Suit in S.D. New York B&G FOODS: Dec. 17 Deadline to Oppose Class Cert. Bid Sought BANK OF AMERICA: $11.5MM Class Deal in Harrison Suit Has Final OK BAYLOR SCOTT: C.C. Suit Seeks to Certify Settlement Class BEACH HOUSE: Nygaard Seeks to Certify Class BEAUFORT COUNTY, SC: Munday Seeks to Certify Female Detainee Class BEELMAN TRUCK: Guszkiewicz Hits Undisclosed Facial Data Retention BISHOP OF CHARLESTON: Court Denies Aselage's Protective Order Bid BJA MASONRY: Weeks Sues Over Unpaid Wages for Construction Workers BOSCH SOLAR: Objection to Reply Evidence in Rojas Suit Sustained BURGER KING: Inspection Found No Black Mold, Backed-Up Sewage BUTLER MOTORS: Orders Denying Bids to Dismiss Benosky Suit Affirmed CANADA: Claims Submitted in Military Sexual Misconduct Lawsuits CANDID CARE: Thomas Seeks Pay for Off-the-Clock Work CAPITOL CITY: Stovall Sues Over Unpaid Overtime for Caretakers CDR MAGUIRE: Barker Seeks Unpaid Overtime Wages for Safety Workers CELSIUS HOLDINGS: Hezi Sues Over Energy Drink's False Ad CLAMPART LLC: Sosa Files ADA Suit in S.D. New York COLES COUNTY, IL: Seeks Dec. 21 Extension to File Class Cert. Reply CORAL SPRINGS: Faces Zirpoli Suit Over Telemarketing Practices CREDIT SERVICE: Wusterbarth Suit Remanded to Brown County Cir. Ct. CRODA INC: Court Tosses All Claims in Baker Suit Without Prejudice DELIVERY.COM LLC: Contreras Files ADA Suit in S.D. New York DESKTOP METAL: Campanella Files Suit Over ExOne Merger EDGEWELL PERSONAL: Sunscreens Contain Benzene, Chabla Suit Alleges EDGEWELL PERSONAL: Zayas Files Suit in D. Connecticut EL AGUASCALIENTES: Underpays Restaurant Laborers, Banuelos Claims FASTLY INC: Court Dismisses Consolidated Securities Class Suit FCA US LLC: Tavarez Sues Over Non-Blind Friendly Website FIRSTENERGY CORP: Court Vacates Class Cert. Order in Smith Suit FLORIDA INSURANCE: Camunas TCPA Suit Removed to S.D. Florida FORWARD AIR CORP: Garcia Sues Over Data Breach GBC BUSINESS: Mitchell Sues Over Transmission of Unwanted Robocalls GBG SEAN JOHN: Weekes Files ADA Suit in S.D. New York GEBRUEDER KNAUF: Bennett Sues Over Marketing of Defective Drywall GEBRUEDER KNAUF: Dan Blonsky Files Suit in S.D. Florida GEBRUEDER KNAUF: Ferrera Files Suit in S.D. Florida GEBRUEDER KNAUF: Guzman Files Suit in S.D. Florida GEBRUEDER KNAUF: Isidro Calderon Files Suit in S.D. Florida GEBRUEDER KNAUF: Marfelia Calderon Files Suit in S.D. Florida GEBRUEDER KNAUF: Mercedes Gaspard Files Suit in S.D. Florida GEBRUEDER KNAUF: Nicole Gaspard Files Suit in S.D. Florida GENERAL MOTORS: Faces Click Suit Over Automobile's Fuel Pump Defect GEORGIA: Class Cert. Bid Filing Extended to March 28, 2022 GERALD HONDA: Simik Files FCRA Suit in S.D. Texas GLASHAUS INC: Weekes Files ADA Suit in S.D. New York GLOSSLAB LLC: Crosson Files ADA Suit in E.D. New York GOLDEN WEST: Butts Files Suit in Cal. Super. Ct. GOLDMAN SACHS: Faces Chen Suit Over Alleged Inside Trading GPS INTERNATIONAL: Kerr Seeks to Recover Unpaid Overtime Wages GROUPE RENAULT: Faces Class Action Over Diesel Emissions Tests HAMPTON INN: Fultz Sues Over Access Barriers to Disabled Persons HEALTH & HOSPITAL CORP: Crimans Sues Over Data Breach HEALTHCARE SERVICES: Bacon Sues Over Unpaid Overtime for Cooks HENOCH ENTERPRISES: Sosa Files ADA Suit in S.D. New York HOUSING AUTHORITY: Faces Wells Wage-and-Hour Suit in W.D. Ky. HRB BRANDS: Molina Sues Over Antiperspirants' Benzene Content HUGEDOMAINS.COM: Contreras Files ADA Suit in S.D. New York IAS SERVICES: Faces Bradley Suit Over Claim Adjusters' Unpaid OT JJ FOOD MARKET: Flores Seeks Unpaid Overtime Wages, Payslips JOHNSON & JOHNSON: Contreras Files ADA Suit in S.D. New York K&P FACILITIES: Cleaners Sue Over Unpaid Wages KASHI SALES: Faces Hoffman Suit Over Mislabeled Breakfast Bars KAYEM FOODS: Rodriguez Files ADA Suit in E.D. New York KAZ USA: Contreras Files ADA Suit in S.D. New York KELLOGG SALES: Class Settlement in Hadley Suit Wins Final Approval KELLOGG SALES: N.D. California Enters Final Judgment in Hadley Suit KIRKLAND'S STORES: Ct. Modifies August 10, 2021 Scheduling Order KMD PARTNERS: Bradford Files FCRA Suit in S.D. Texas KONINKLIJKE PHILIPS: Mallory Files Suit in W.D. Pennsylvania KROGER CO: Walker Files Suit in Cal. Super. Ct. LANDMARK INFRASTRUCTURE: Proposed Merger Lacks Info, Coffman Says LANDSEA HOMES: Green Sues Over Unpaid Minimum, Overtime Wages LE-VEL: Weekes Files ADA Suit in S.D. New York LEXINFINTECH HOLDINGS: Securities Suit Dismissed Without Prejudice LIGHTNING EMOTORS: Cohen Sues Over Alleged Stock Price Drop LOWE'S COMPANIES: Class Cert. Reply Deadlines in FLSA Suit Amended M2 MANAGEMENT: Laborers Slam Misclassification, Seek Overtime Pay MAGELLAN HEALTHCARE: Civil Rights Suit Removed to N.D. Illinois MASON COMPANIES: LeCompte Files Suit in W.D. Wisconsin MASON COMPANIES: Lloyd Files Suit in W.D. Wisconsin MASON COMPANIES: Ross Files Suit in W.D. Wisconsin MASON COMPANIES: Stevens Files Suit in W.D. Wisconsin MASON COMPANIES: Tanenbaum Files Suit in W.D. Wisconsin MASTERCARD INC: Sells Cardholders' Personal Info, Rivera Alleges MATILDA GOURMET: Faces Ortega Wage-and-Hour Suit in S.D.N.Y. MATTHEW DUTCAVICH: Extension to File Class Cert Bid Sought MCCAFFREE-SHORT TITLE: FLSA Settlement in Craven Suit Approved META PLATFORMS: Perez Hits Share Price Drop MICHIGAN: Amended Crawford Complaint v. MDOC, LCF & State Tossed MICHIGAN: Court Dismisses Anderson Suit for Failure to State Claim MICHIGAN: District Court Tosses Jackson's Suit v. MDOC, LCF & State MICHIGAN: District Court Tosses Johnson's Suit v. MDOC, LCF & State MICHIGAN: Dulin Prisoners Suit Dismissed for Failure to State Claim MICHIGAN: Gaskins v. Blue Dismissed for Failure to State Claim MICHIGAN: Merriweather Suit Dismissed for Failure to State Claim MICHIGAN: Stevens v. Whitmer Dismissed for Failure to State a Claim MICHIGAN: Western District Court Dismisses MacKiehowell v. MDOC MICHIGAN: Western District Court Tosses Amended Holloway Complaint MICHIGAN: Western District Court Tosses Hart's Amended Complaint MIDWEST ARBOR: Zarate Can't File 1st Amended Complaint, Court Says MOWI USA: $1.3MM Class Settlement in Neversink Suit Wins Final OK NATIONAL FOOTBALL: Denial of Gordon's Concussion Claim Affirmed NATURAL ESSENTIALS: Class Deal in Savanich Labor Suit Gets Approval NEW HORIZONS: Summary Judgment Order in Brockington Suit Affirmed NEW YORK CITY: Prelim. Injunction & TRO Bid in Broecker Suit Denied NORTH CENTRAL: Delivery Drivers Win Class Status in Compton Suit NSC TECHNOLOGIES: Hearing on Thompson Deal Prelim. Approval Vacated NYC MEDICAL: Court Approves Proposed Notices in Lawrence Class Suit ONTARIO: Class Settlement Reached in Youth Inmates' Lawsuit OWLET INC: Faces Cherian Securities Suit Over Stock Price Drop OXFORD HEALTH: Suit Seeks Mental Health Benefits Under ERISA PARETEUM SHAREHOLDERS: Investors Seek to Certify Class Action PAX LABS INC: Ortega Sues Over Non-Blind-Friendly Website PETROQUEST ENERGY: Ct. Extends Class Cert. Reply Deadlines PICK-UP & GO: Pearson Sues Over Unpaid OT for Delivery Workers PILOT TRAVEL: Waltrip's Reply to Dismissal Bid May Exceed 30 Pages PROCH.COM INC: Court Allows Preston to File 1st Amended Complaint PROCTER & GAMBLE: Sued Over Benzene-Based Antiperspirant Products PRUDENTIAL FINANCIAL: New Jersey Court Dismisses Stone Class Suit PUBLISHERS CLEARING: Sells Customers' Personal Info, Palmer Claims PUBLISHERS CLEARING: Sells Personal Transactional Data, Suit Says PUBLISHERS CLEARING: Tanenbaum Sues Over Sale of Customers' Info PUSHPAY USA: Blankers et al. Sue Over Failure to Pay Proper OT Q LINK WIRELESS: Faces Brown Sues Over Unsolicited Voice Messages QIHOO 360: Second Circuit Vacates Dismissal of Altimeo Class Suit QUINSTREET PL: Faces Pizarro TCPA Suit Over Prerecorded Messages RCI LLC: N.D. Ohio Dismisses Bryan TCPA Suit With Prejudice REPROSOURCE FERTILITY: Faces Bickham Suit Over Personal Data Breach RESIDEO TECH: Entwistle & Cappucci Reminds of Jan. 27 Deadline ROBINHOOD MARKETS: Fails to Protect Customers' Info, Glinoga Says SANDERSON FARMS: Court Tosses All Remaining Claims in La Fosse Suit SCHEAR CONSTRUCTION: Fails to Pay Proper Wages, Book Suit Alleges SER ENTERPRISES: Hernandez Files Labor Class Action SOCLEAN INC: Philips Devices Contain PE-PUR Foam, Bradley Suit Says SONY INTERACTIVE: Majo Slams Gender Discrimination in Workplace SOUTHERN CALIFORNIA: Beltran Labor Suit Goes to S.D. California SOUTHERN FARM: Breach of Contract Judgment in Smith Suit Affirmed SOUTHWEST GAS: Tender Offer Lacks Info, City Pension Alleges SOUTHWESTERN & PACIFIC: Court Wants More Briefing on Arredondo Deal STAMPS.COM INC: $100MM Class Settlement to be Heard on Jan. 24 STARBUCKS CORPORATION: Faces Oden Suit Over Age Discrimination STATE FARM: Reduces Loss Vehicles' Cash Value, Chadwick Suit Says STRATEGIC DELIVERY: Opposition to Class Cert. Extended to Dec. 13 SUNDA NASHVILLE: Tamminga Suit Alleges Unpaid Wages for Servers TEXAS: Court Rules on Objections to Four Orders in Aiello v. TDCJ THERE TO HERE: Underpays Restaurant Staff, Arellano Suit Claims TOTAL CASH: Sends Unsolicited Telemarketing Calls, Issel Alleges TOTTINI BROOKLYN: Underpays Salesclerks, Pizarro Suit Alleges TRACE STAFFING: Ct. Clarifies Sched/Discovery Order in Gouldie TRANSWORLD SYSTEMS: Court Amends Trial & Related Dates in Hoffman TULARE COUNTY, CA: Criswell's Bid to File Docs Under Seal Denied UBER TECHNOLOGIES: Bid to Compel Arbitration in Singh Suit Granted UNIFIRST CORP: Court Dismisses Garcia Suit Without Prejudice UNILEVER UNITED: Antiperspirant Contains Benzene, Barnes Alleges UNITED AIRLINES: Hoffman ERISA Suit Seeks Payment of Plan Benefits UNITED HEALTHCARE: OHL Seeks to Certify Healthcare Provider Class UNITED STATES: Amended Mossman Complaint v. CDC Dismissed as Moot UNITED STATES: Faces Class Suit Over Vaccine's Religious Exemptions VALVE CORP: W.D. Washington Trims Claims in Dark Catt Class Suit VALVE CORP: Wolfire's Claims in Consolidated Amended Suit Narrowed VEONEER INC: Misleads Stockholders to Approve Merger, Sabatini Says VIATRIS INC: Dvorak Antitrust Suit Moved From E.D. Va. to D. Kan. VIATRIS INC: Sumner Antitrust Suit Moved From E.D. Tenn. to D. Kan. VILLAGE COMPANY: Body Spray Contains Benzene, Ventura Suit Says VISION SOLAR: Sends Unsolicited Telemarketing Calls, Landy Says VOLKSWAGEN AG: Settlement Reached in Transmission Class Action Suit WASATCH ADVANTAGE: Parties Seek to Vacate Class Cert. Schedule WENZAK HEARTLAND: Bachmann Sues Over Storing Employees' Biometrics WISCONSIN: District Court Dismisses Shaw v. RCI With Prejudice ZHANGMEN EDUCATION: Faces Banerjee Suit Over Drop in Share Price ********* 1888 MILLS: Loses Summary Judgment Bid vs Brown ----------------------------------------------- In the class action lawsuit captioned as MELISSA BROWN, individually and on behalf of those similarly situated to her, v. 1888 MILLS, LLC, Case No. 3:20-cv-00224-TCB (N.D. Ga.), the Hon. Judge Timothy C. Batten, Sr. entered an order denying 1888 Mills, LLC's motion for summary judgment. Additionally, the Plaintiff Melissa Brown's motion for conditional certification of collective action under the Faie Labor Standards Act (FLSA) is granted. The Court finds that a plaintiff's acceptance, or lack thereof, is controlling in this circumstance. Because the offer -- and accompanying check -- remains unaccepted, a live controversy still exists. The parties are still adverse, and they "retain the same stake in the litigation they had at the outset." Under Rule 68, the offer can be deemed withdrawn because more than 14 days has passed since it was served upon Brown. Granting summary judgment at this stage would have the effect of depriving Brown of any relief. Accordingly, the Court finds that this case is not moot and summary judgment would be premature. The Court adds that the Plaintiffs have provided a sufficient reasonable basis for finding a violation of the FLSA and the existence of a similarly-situated group of aggrieved individuals. Accordingly, conditional certification of the class is appropriate for purposes of sending notice to potential class members." Ms. Brown is a former employee of 1888 Mills, where she worked from 2015 until she was terminated in July 2020. Brown was paid between $12 and $17 per hour, at a rate that increased during her time with the company. She alleges that the timekeeping system used by 1888 Mills improperly rounds down employees' hours-worked to the nearest 15-minute interval. She also alleges that the system would automatically adjust an employee's clock-out time to their scheduled shift end, depriving them of compensation for any additional time actually worked. On December 17, 2020, Brown filed this suit. Between January 20 and February 17, 2021, three additional employees of 1888 Mills filed consent forms, opting into the lawsuit as Plaintiffs. 1888 Mills is located in Griffin, Georgia, and is part of the furniture and home furnishing merchant wholesalers industry. A copy of the Court's order dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3xQvA8N at no extra charge.[CC] 3 RIVERS TELEPHONE: Barnes Files Suit in D. Montana --------------------------------------------------- A class action lawsuit has been filed against 3 Rivers Telephone Cooperative, Inc. The case is styled as Harry Barnes, John Murray, Robert Desrosier, Kenneth Hoyt, Judy White, on behalf of themselves and all those similarly situated v. 3 Rivers Telephone Cooperative, Inc., Case No. 4:21-cv-00118-BMM (D. Mont., Nov. 30, 2021). The nature if suit is stated as Other Civil Rights for the Civil Rights Act. 3 Rivers Telephone Cooperative, Inc. -- https://3rivers.net/ -- is a telecommunications company based in Fairfield, Montana.[BN] The Plaintiffs are represented by: Jeffrey G. Winter, Esq. HARTELIUS DUROCHER & WINTER P. O. Box 1629 Great Falls, MT 59403-1629 Phone: (406) 727-4020 Fax: (406) 771-7319 Email: jwinter@mtlawyers.net - and - Joseph F. Sherwood, Esq. MATT LAW OFFICE 310 Main Street Cut Bank, MT 59427 Phone: (406) 873-4833 Email: joes@mattlawoffice.com - and - Terryl T. Matt, Esq. 1200 East Main PO Box 428 Cut Bank, MT 59427 Phone: (406) 873-4833 Fax: (406) 873-4944 Email: terrylm@mattlawoffice.com ALLIED WASTE: Recycling Services "Misleading," Cross Suit Claims ---------------------------------------------------------------- KEILA CROSS, individually and on behalf of all others similarly situated, Plaintiff v. ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, D/B/A REPUBLIC SERVICES, Defendant, Case No. 9:21-cv-00145-DLC-KLD (D. Mont., November 29, 2021) is a class action against the Defendant for violation of the Montana Consumer Protection Act. According to the complaint, the Defendant is engaged in deceptive business acts and practices by promoting residential curbside recycling services and representing that it recycles materials that it collects from consumers and charging them for the same. However, the Plaintiff learned that many of the products the Defendant collects and purports to recycle are sent directly to the landfill. As a result of the Defendant's alleged misrepresentation, the Plaintiff and all others similarly situated have suffered an ascertainable loss of money. Allied Waste Services of North America, LLC, doing business as Republic Services, is a provider of collection, recycling, and disposal services, headquartered in Arizona. [BN] The Plaintiff is represented by: Jesse Kodadek, Esq. Martin Rogers, Esq. WORDEN THANE P.C. 321 W. Broadway St., Ste. 300 Missoula, MT 59802 Telephone: (406) 721-3400 E-mail: jkodadek@wordenthane.com mrogers@wordenthane.com AMAZON INC: Faces Baron Suit Over Alleged Sale of Digital Content ----------------------------------------------------------------- MARY BARON; CALHEA JOHNSON; MALIKA MCLEAN; and TONY WATSON, individually and on behalf of all others similarly situated, Plaintiffs v. AMAZON INC., Defendant, Case No. 1:21-cv-09636-PAC (S.D.N.Y., Nov. 19, 2021) is an action against the Defendant's material misrepresentations relating to its "sale" of Digital Content causing the Plaintiffs and the Class to sustain damages by overpayment of Digital Content they can never own because the Defendant does not have the right to transfer title to it in the first place. According to the complaint, the Digital Content sold by the Defendant is actually licensed to Amazon by the Digital Content's owner. These licensing arrangements mean that, unlike in a true sale, the Defendant can never pass title of any licensed Digital Content it claims to be selling consumers. Thus, when a licensing agreement terminates for whatever reason, the Defendant is required to pull the Digital Content from the consumers' Purchased Folder and Music Library, which it does without prior warning, and without providing any type of refund or remuneration to consumers, says the suit. In other words, unlike a Best Buy or Target store that obtains title from a Digital Content's owner that it then conveys to a purchaser for value, the Defendant's licensing arrangements prevent it from ever being able to pass title to Digital Content it claims it "sells" to consumers. Moreover, the Defendant's alleged sale of Digital Content, which it does not actually own, is made more egregious because, as demonstrated below, Amazon charges just as much for that content, at times even more so, than stores that actually transfer title of the Digital Content to its customers, which access can never be revoked. Thus, the Defendant has been, and continues to, mislead consumers into believing it is selling them Digital Content, even though it is merely providing them with a license to view it, which can be terminated at any time, for any reason and without any type of warning so that a consumer can take steps to attempt to preserve it, the suit added. AMAZON.COM, INC. is an online retailer that offers a wide range of products. The Company products include books, music, computers, electronics and numerous other products. Amazon offers personalized shopping services, Web-based credit card payment, and direct shipping to customers. [BN] The Plaintiffs are represented by: Michael R. Reese, Esq. Carlos F. Ramirez, Esq. Charles D. Moore, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025-7524 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 Email: mreese@reesellp.com cramirez@reesellp.com cmoore@reesellp.com -and- George V. Granade, Esq. REESE LLP 8484 Wilshire Boulevard, Suite 515 Los Angeles, CA 90211 Telephone: (310) 393-0070 Facsimile: (212) 253-4272 Email: ggranade@reesellp.com -and- Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Boulevard, Suite 311 Great Neck, NY 11021 Telephone: (516) 303-0552 Facsimile: (516) 234-780 Email: spencer@spencersheehan.com AMAZON.COM: Nov. 22 Deadline to File Class Cert. Bid Vacated ------------------------------------------------------------ In the class action lawsuit captioned as ELIZABETH DE COSTER et al., on behalf of themselves and all others similarly situated, v. AMAZON.COM, INC., a Delaware corporation, Case No. 2:21-cv-00693-RSM (W.D. Wash.), the Hon. Judge Ricardo S. Martinez entered an order vacating the November 22, 2021 deadline for Plaintiffs to file their motion for class certification. The parties shall propose a class certification briefing schedule promptly following disposition of Amazon's motion to dismiss Plaintiffs' consolidated amended complaint, should the Court deny that motion, Judge Martinez says. The parties, by and through their counsel, stipulate and agree as follows: -- The Plaintiffs initially filed this lawsuit on May 26, 2021. -- On June 21, 2021, the Court entered a stipulated order consolidating this case with West v. Amazon.com, Inc., Case No. 2:21-cv-694 (Stipulated Order). -- As permitted by the Stipulated Order, Plaintiffs filed their consolidated amended complaint on July 21, 2021. The Plaintiffs intend to seek to certify a nationwide class of all persons who, on or after May 26, 2017, purchased one or more goods on Amazon's marketplace. Amazon.com is an American multinational technology company which focuses on e-commerce, cloud computing, digital streaming, and artificial intelligence. A copy of the Court's order dated Nov. 30, 2021 is available from PacerMonitor.com at https://bit.ly/3plHAeD at no extra charge.[CC] The Interim Lead Counsel for the Plaintiffs are: Steve W. Berman, Esq. Barbara A. Mahoney, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile : (206) 623-0594 E-mail: steve@hbsslaw.com barbaram@hbsslaw.com - and - Zina G. Bash, Esq. Warren D. Postman, Esq. Albert Y. Pak, Esq. KELLER LENKNER LLC 111 Congress Avenue, Suite 500 Austin, TX, 78701 Telephone: (512) 690-0990 E-mail: zina.bash@kellerlenkner.com wdp@kellerlenkner.com albert.pak@kellerlenkner.com The Plaintiffs' Executive Committee Members, are: Alicia Cobb, Esq. Steig D. Olson, Esq. David D. LeRay, Esq. Nic V. Siebert, Esq. Adam B. Wolfson, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 1109 First Avenue, Suite 210 Seattle, WA 98101 Telephone: (206) 905-7000 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: (212) 849-7000 E-mail: aliciacobb@quinnemanuel.com steigolson@quinnemanuel.com adamwolfson@quinnemanuel.com - and - Derek W. Loeser, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: Dloeser@kellerrohrback.com The Attorneys for Amazon.com, Inc., are: Stephen M. Rummage, Esq. MaryAnn Almeida, Esq. DAVIS WRIGHT TREMAINE LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 Telephone: (206) 622-3150 Facsimile: (206) 757-7700 E-mail: SteveRummage@dwt.com MaryAnnAlmeida@dwt.com - and - Karen L. Dunn, Esq. William A. Isaacson, Esq. Amy J. Mauser, Esq. Martha L. Goodman, Esq. Kyle N. Smith, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 2001 K Street, NW Washington, D.C. Telephone: (202) 223-7300 Facsimile: (202) 223-7420 E-mail: kdunn@paulweiss.com wisaacson@paulweiss.com amauser@paulweiss.com mgoodman@paulweiss.com ksmith@paulweiss.com AMERIHEALTH CARITAS: Underpays Clinical Care Reviewers, Wood Claims ------------------------------------------------------------------- ANN WOOD, individually and on behalf of all others similarly situated, Plaintiff v. AMERIHEALTH CARITAS SERVICES, LLC, Defendant, Case No. 2:21-cv-05258 (E.D. Pa., November 30, 2021) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. The Plaintiff has been employed by the Defendant as a clinical care reviewer from approximately November 2012 to the present. AmeriHealth Caritas Services, LLC is a multi-line health insurance company with its principal place of business located at 200 Stevens Drive, Philadelphia, Pennsylvania. [BN] The Plaintiff is represented by: Patricia Barasch, Esq. SCHALL & BARASCH, LLC Moorestown Office Center 110 Marter Avenue, Suite 105 Moorestown, NJ 08057 Telephone: (856) 914-9200 Facsimile: (856) 914-9420 E-mail: pbarasch@schallandbarasch.com - and – Rachhana T. Srey, Esq. Caroline E. Bressman, Esq. NICHOLS KASTER, PLLP 4700 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 E-mail: srey@nka.com pfishman@nka.com AMICO CORPORATION: Carroll Sues Over Delayed Wages, Discrimination ------------------------------------------------------------------ TONY H. CARROLL, individually and on behalf of all others similarly situated, Plaintiff v. AMICO CORPORATION, Defendant, Case No. 2:21-cv-06631 (E.D.N.Y., November 29, 2021) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated workers on a weekly basis in violation of the New York Labor Law and for racial discrimination in violation of Section 1981 of the Civil Rights Act of 1866 and the New York State Human Rights Law. The Plaintiff was employed by the Defendant as a forklift operator in New York. Amico Corporation is a manufacturer of medical equipment and hardware, headquartered in Richmond Hill, Ontario. [BN] The Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 490 Wheeler Road, Suite 250 Hauppauge, NY 11788 Telephone: (631) 257-5588 E-mail: promero@romerolawny.com AMWARE PALLET: Beltran Hits Missed Breaks, Seeks Reimbursements --------------------------------------------------------------- Faustino Olivar Beltran, individually, and on behalf of others similarly situated, Plaintiffs, v. Amware Pallet Services, LLC and Symbia Global Group LLC, and Does 1 through 50, inclusive, Defendants, Case No. 21STCV43047 (Cal. Super., November 23, 2021), seeks unpaid wages and interest thereon for failure to pay for all hours worked and minimum wage rate, failure to authorize or permit required meal periods, failure to authorize or permit required rest periods, 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, reimbursement of business-related expenses, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest pursuant to California Labor Code and applicable Industrial Welfare Commission Wage Orders. Amware Pallet Services operates as "Symbia Logistics" where Beltran worked as an hourly-paid, non-exempt employee.[BN] Plaintiffs are represented by: Shoham J. Solouki, Esq. Grant Joseph Savoy, Esq. SOLOUKI SAVOY, LLP 316 W. 2nd Street, Suite 1200 Los Angeles, CA 90012 Telephone: (213) 814-4940 Facsimile: (213) 814-2550 ANCIENT BRANDS: Weekes Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Ancient Brands, LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Ancient Brands, LLC, Case No. 1:21-cv-10218 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ancient Brands LLC -- https://www.ancientbrands.com/ -- retails food nutritional and supplement products.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com ANGRY SUPPLEMENTS: Weekes Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Angry Supplements, LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Angry Supplements, LLC, Case No. 1:21-cv-10222 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Angry Supplements -- https://angrysupps.com/ -- is dedicated to producing and distributing high quality all natural and authentic sports nutrition products.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com ANIMAL MEDICAL: Sosa Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against The Animal Medical Center. The case is styled as Yony Sosa, on behalf of himself and all other persons similarly situated v. The Animal Medical Center, Case No. 1:21-cv-10235 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Animal Medical Center (AMC) -- https://www.amcny.org/ -- is the world's largest non-profit animal hospital, provides 24/7 emergency and specialty care to dogs, cats, and exotic pets.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: nyjg@aol.com michael@gottlieb.legal ANTHEM COMPANIES: Underpays Medical Management Nurses, Baker Claims ------------------------------------------------------------------- DEON BAKER, individually and on behalf of all others similarly situated, Plaintiff v. THE ANTHEM COMPANIES, INC., Defendant, Case No. 1:21-cv-04866-WMR (N.D. Ga., November 29, 2021) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff was hired by the Defendant as a medical management nurse II from approximately December 2015 to approximately July 2020. The Anthem Companies, Inc. is a provider of health insurance in the United States, with its principal place of business located at 220 Virginia Ave., Indianapolis, Indiana. [BN] The Plaintiff is represented by: John T. Sparks, Sr., Esq. AUSTIN & SPARKS, P.C. 2974 Lookout Place, N.E., Suite 200 Atlanta, GA 30305 Telephone: (404) 869-0100 Facsimile: (404) 869-0200 E-mail: jsparks@austinsparks.com - and – Rachhana T. Srey, Esq. Caroline E. Bressman, Esq. NICHOLS KASTER, PLLP 4700 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 E-mail: srey@nka.com cbressman@nka.com ARCHON INC: Appeals Default Judgment in Saiyed FLSA Suit -------------------------------------------------------- ARCHON INC., et al., filed an appeal from a court ruling entered in the lawsuit styled AMJAD SAIYED v. ARCHON, INC., et al., Case No. 2:16-cv-09530-JMV-JBC, in the United States District Court for the District of New Jersey. As previously reported in the Class Action Reporter, the Plaintiff commenced the putative class action on Nov. 21, 2014, in the U.S. District Court for the Eastern District of New York alleging, among other things, that the Defendants failed to pay him and other similarly situated employees overtime and minimum wage in violation of the Fair Labor Standards Act ("FLSA"), the New York Labor Law ("NYLL"), and New Jersey Wage and Hour Law ("NJWHL"). The Plaintiff was employed by Defendant Archon Inc. and/or Archon Distribution, Inc. from January 2009 until he was terminated on December 19, 2013. The Plaintiff is from India, and represents that Archon submitted U.S. Citizenship and Immigration Services ("USCIS") Form I-129, which enabled him to obtain a visa to work in the United States. He maintains that throughout his employment, Archon represented on USCIS forms that it paid him vastly different salary amounts than what he was actually paid. The Plaintiff also contends he was forced to work under oppressive conditions and was mistreated. He asserts that he tolerated these conditions out of fear of deportation. In the Amended Complaint, the Plaintiff asserts claims under the Trafficking Victims Protection Reauthorization Act ("TVPRA"); common law fraud; the FLSA; NYLL; quantum meruit; and NJWHL on behalf of himself and a class of similarly situated employees. On April 9, 2018, the Clerk of the Court entered default as to the Defendants for failure to plead or otherwise defend. On November 1, 2021, Judge John Michael Vazquez entered an order denying Defendants' motion to vacate default judgment and denying Plaintiff's cross-motion for attorneys' fees. The Defendants now seek a review of the Court's decision. The appellate case is captioned as Archon Inc., et al. v. Amjad Saiyed, Case No. 21-3135, in the United States Court of Appeals for the Third Circuit, filed on November 18, 2021.[BN] Defendants-Appellants ARCHON INC., ARCHON DISTRIBUTION INC., RASHID PATEL, and MOHAMED ASHIF GAJRA are represented by: Geoffrey T. Bray, Esq. BRAY & BRAY 100 Misty Lane Lanidex Executive Center Parsippany, NY 07054 Telephone: (973) 739-9600 Plaintiff-Appellee AMJAD SAIYED, individually and on behalf of all others similarly situated, is represented by: Michael Farhi, Esq. KATES NUSSMAN RAPONE ELLIS & FARHI 190 Moore Street, Suite 306 Hackensack, NJ 07601 Telephone: (201) 488-7211 E-mail: mfarhi@nklaw.com ARGENT TRUST: Files Consent Bid to Reset Class Cert. Deadlines -------------------------------------------------------------- In the class action lawsuit captioned as JACKIE LYSENGEN, on behalf of the Morton Buildings, Inc. Leveraged Employee Stock Ownership Plan, and on behalf of a class of all other persons similarly situated, v. ARGENT TRUST COMPANY, JAN ROUSE, and EDWARD C. MILLER, GETZ FAMILY LIMITED PARTNERSHIP, ESTATE OF HENRY A. GETZ, and its beneficiaries and successors, and ESTATE OF VIRGINIA MILLER, and its beneficiaries and successors, Case No. 1:20-cv-01177-MMM-JEH (C.D. Ill.), Argent files consent motion to reset class certification deadlines as follows: Current Proposed New Deadlines Deadlines -- Defendants’ Oppositions Dec 6, 2021 Dec. 20, 2021 to Plaintiff’s Motion for Class Certification -- Plaintiff's Reply Dec. 10, 2021 Jan. 7, 2022 Argent operates as an investment management firm. A copy of the Defendant's motion dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3xO5NOy at no extra charge.[CC] The Defendant is represented by: Jeffrey S. Russell, Esq. Barbara A. Smith, Esq. Jacob B. Simon, Esq. BRYAN CAVE LEIGHTON PAISNER LLP One Metropolitan Square 211 N. Broadway, Suite 3600 St. Louis, MO 63102 Telephone: (314) 259-2000 E-mail: jsrussell@bclplaw.com barbara.smith@bclplaw.com jacob.simon@bclplaw.com ARROW SENIOR: Parties Seek FLSA Conditional Status -------------------------------------------------- In the class action lawsuit captioned as KENDALL OLIN-MARQUEZ, on behalf of herself and others similarly situated, Representative, v. ARROW SENIOR LIVING MANAGEMENT, LLC, Case No. 2:21-cv-00996-EAS-CMV (S.D. Ohio), the Parties asks the Court to enter an order approving their joint stipulation of conditional certification pursuant to section 216(b) of the Fair Labor Standards Act. The Parties stipulate that: 1. The following class may be conditionally certified: "All current and former hourly, non-exempt employees at any Arrow senior living community in Ohio who (1) were paid for 40 or more work hours in any workweek they were required to have a meal break deduction taken from their compensable hours worked and/or (2) were paid for more than 40 hours work hours in any workweek that they received nondiscretionary bonus payments, such as a retention bonus (often called a "Sign On Bonus") or a shift pick-up bonus, for working extra shifts or hours beyond what the employee was scheduled to work from June 7, 2018 to the present;" 2. The the Court issue an Order that conditionally certifies a class of all persons that fit the definition of Collective Class Members. 3. The Defendant will provide a list of all Collective Class Members, including their name, dates of employment, last known mailing address, and last known personal email address, if known, within 21 days of the Court's approval of this Motion. 4. The Plaintiff will mail and email the Notice and Consent to all Collective Class Members within 14 days of receipt of the class list. 5. Matthew J.P. Coffman of Coffman Legal, LLC and Shannon M. Draher of Nilges Draher LLC shall serve as Lead Counsel for this collective action and request that the Court issue an order approving same. 6. Kendall Olin-Marquez shall serve as the Representative Plaintiff of this collective action and request that the Court issue an order approving same. Arrow Senior manages a collection of communities that offer care including independent living, assisted living, and memory care. A copy of the Parties' motion dated Nov. 30, 2021 is available from PacerMonitor.com at https://bit.ly/3I5qPND at no extra charge.[CC] The Plaintiff is represented by: Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage St, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 E-mail: sdraher@ohlaborlaw.com - and - Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Keslie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@coffmanlegal.com agedling@coffmanlegal.com khendren@coffmanlegal.com The Defendant is represented by: Monica L. Lacks, Esq. Rebecca J. Bennett, Esq. Monica L. Lacks, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Key Tower 127 Public Square, Suite 4100 Cleveland, OH 44114 Telephone: (216) 241-6100 Facsimile: (216) 357-4733 E-mail: rebecca.bennett@ogletree.com Monica.lacks@ogltree.com ASSOCIATION MGMT: Denial of Class Cert. Bid in Liggio Suit Affirmed ------------------------------------------------------------------- In the case, PAUL LIGGIO, O/B/O THE LIGGIO 1999 REVOCABLE TRUST, FOR HIMSELF AND OTHERS SIMILARLY SITUATED Appellant v. ASSOCIATION MANAGEMENT CONSULTANTS CORP., CIPRESSI CONTRACTING, INC., AND ESTATES CHIMNEY & FIREPLACE LLC, Case No. 266 EDA 2021 (Pa. Super.), Judge Jack A. Panella of the Superior Court of Pennsylvania affirmed the trial court's order denying the Appellant's motion for class certification. Background The Appellant appeals from the order entered in the Bucks County Court of Common Pleas, denying his motion for class certification. Huntingdon Brook Community ("HBC") is a residential townhome and condominium community located in Southampton, Bucks County, Pennsylvania, consisting of approximately 262 units. HBC is collectively managed by a homeowners' association, the Huntingdon Brook Community Association ("the HOA"). The HOA contracted with Association Management Consultants Corp. ("AMCC") to oversee and manage a project for replacing the siding and gutter systems in HBC. As part of that project, AMCC contracted with Cipressi Contracting, Inc., to replace the caps on the chimneys at HBC. Cipressi then subcontracted the project to Estates Chimney & Fireplace, LLC. On Oct. 31, 2018, Estates Chimney sent a letter to the HOA, indicating it had inspected 207 chimneys and replaced the caps on 231 chimneys. Estates Chimney further indicated in the letter that more than half of the chimneys failed inspection and were unsafe to use because they were built in violation of code, as they lacked fire stops. Estates Chimney indicated every chimney in HBC was unsafe for use. The letter was also mailed to all HBC residents. On May 9, 2019, the Appellant filed a collective and class action complaint against AMCC and Estates Chimney, alleging that Estates Chimney had caused permanent damage to the chimney and fireplace systems of the homes located in HBC. In addition, the Appellant alleged that AMCC had breached its fiduciary duty to the homeowners and acted negligently in hiring Estates Chimney to perform the work on the chimneys. In February 2020, Cipressi was joined as an additional defendant. Estates Chimney denied that it had damaged the chimneys, and further, asserted that it had no contractual or fiduciary relationship with Appellant or any homeowner. Estates Chimney reiterated its belief that chimneys had been improperly installed during the original construction of the homes. AMCC similarly denied that the work done by Estates Chimney had caused any damage to the homes. On Oct. 14, 2020, the Appellant filed a motion for class certification. His motion sought to certify a class consisting of "all current and future HBC homeowners, and alleged that the work done on the replacement caps was done negligently." On Nov. 30, 2020, a certification hearing was held. The Appellant did not present any evidence at the hearing, instead advising the court that he intended to rest solely on the facts as presented in the pleadings. On Dec. 9, 2020, the court denied the motion for certification, based on consideration of the arguments presented at the hearing, the pleadings, and the submissions of the parties. The appeal followed. Discussion The Appellant contends the trial court abused its discretion in holding that all of the prerequisites for class certification were not met. We disagree. Judge Panella has reviewed the record and find no abuse of discretion in the trial court's decision. While the trial court more than sufficiently addressed each individual prerequisite, he finds the overall theme was that Appellant plainly did not provide enough evidence for any prerequisite to overcome the burden required. Further, Rule 1702 is written in the conjunctive, meaning that in order to obtain class action status, all prerequisites must be met. Therefore, failure to meet even one of the prerequisites is enough to deny class certification. Judge Panella therefore only addresses one prerequisite that Appellant failed to reach. The Appellant contends there are sufficient common questions of law and fact to warrant class certification. Judge Panella disagrees. He cannot fault the trial court for concluding there are various possible intervening or superseding causes of the fireplaces being inoperable. There is no dispute that the fireplaces have been in the homes since the 1980s. Therefore, it is extremely likely that each fireplace/chimney has been treated differently over the chimney's lifetime. No evidence was presented to show the condition of each chimney before installation of the caps or after. The Appellant himself admits that some of the homes have been re-fitted for gas inserts, while others remained as wood-burning fireplaces. While the Appellant boldly asserts the Appellees' actions were identical with respect to every home in HBC, Judge Panella holds that there was simply no evidence to support this claim. The Appellant had access to such possible evidence, as he attached portions of an inspection from a rival chimney contractor to its complaint. Every cap may have been replaced, but there is no way of knowing if every cap was replaced identically for each individual chimney. As the trial court notes, it "cannot infer that chimney cap replacement is the same for original wood burning stoves as those that have been re-fitted for gas inserts." Critical issues such as condition of the chimneys, prior work done on each chimney, and whether each chimney was usable prior to the cap replacement varies by each homeowner in the HBC and, consequently, would require individual inquiry. The Appellant was not required to poll every single homeowner, but the complete lack of evidence regarding commonality of claims provided the trial court with no basis upon which to evaluate the issue. The court did not err or abuse its discretion in concluding liability could not be determined on a class-wide basis. Accordingly, the court properly concluded Appellant had failed to establish commonality of claims in the proposed class. Conclusion Judge Panella has reviewed the certified record and sees no abuse of discretion in the trial court's conclusion. He, therefore, affirmed the order denying the motion for class certification. Order affirmed. Jurisdiction relinquished. Judgment Entered. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/bdevym2y from Leagle.com. ATLAS OPERATING: Fails to Pay Overtime Wages, Perez Suit Claims --------------------------------------------------------------- The case, FRANKIE PEREZ, individually and on behalf of all others similarly situated, Plaintiff v. ATLAS OPERATING LLC, Defendant, Case No. 4:21-cv-03744 (S.D. Tex., November 16, 2021) arises from the Defendant's alleged violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant from on or about February 12, 2021 through on or about September 13, 2021 as a roustabout pusher, performing various manual labor tasks such as moving tanks, cutting grass, and general maintenance work. According to the complaint, the Plaintiff and other similarly situated manual laborers typically worked approximately eighty hours or more in each 7-day workweek. Regardless of the number of hours they worked, the Defendant compensated them on a straight time hourly basis. The Defendant allegedly did not pay them overtime premium pay at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. The Plaintiff brings this complaint as a collective action against the Defendant to recover unpaid overtime wages and aby other back pay available pursuant to the FLSA, as well as liquidated damages, litigation costs, attorneys' and expert fees, pre-judgment interest, and other relief as the Court may deem just and proper. Atlas Operating LLC operates nearly 1,000 wells and owns non-operated interests in over 1,000 additional wells. [BN] The Plaintiff is represented by: Ricardo J. Prieto, Esq. Melinda Arbuckle, Esq. SHELLIST LAZARS SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Tel: (713) 621-2277 Fax: (713) 621-0993 E-mail: rprieto@eeoc.net marbuckle@eeoc.net AZARIAHS INNOCENCE: Weekes Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Azariahs Innocence, LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Azariahs Innocence, LLC, Case No. 1:21-cv-10216 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Azariahs Innocence doing business as Zandra -- https://zandrabeauty.com/ -- is a social good company that educates + empowers girls & women across the globe via STEAM Education & Entrepreneurship.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com B&G FOODS: Dec. 17 Deadline to Oppose Class Cert. Bid Sought ------------------------------------------------------------ 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 Parties ask the Court to enter an order allowing the Defendants to have until December 17, 2021, to file their opposition to Plaintiff's motion for class certification. 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 Parties' motion dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3Ek5Tjo 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 The Defendants are represented by: J. Noah Hagey, Esq. Matthew Borden, Esq. David H. Kwasniewski, Esq. BRAUNHAGEY & BORDEN LLP 351 California St., Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210 E-mail: hagey@braunhagey.com borden@braunhagey.com kwasniewski@braunhagey.com BANK OF AMERICA: $11.5MM Class Deal in Harrison Suit Has Final OK ----------------------------------------------------------------- In the cases, ANDREA HARRISON, on behalf of themselves and others similarly situated, Plaintiff v. BANK OF AMERICA CORPORATION, and DOES 1-100, inclusive, Defendant. MIGUEL MENDOZA, on behalf of themselves and others similarly situated, Plaintiff v. BANK OF AMERICA CORPORATION, and DOES 1-100, inclusive, Defendant. KIARASH KAFFISHAHSAVAR, on behalf of themselves and others similarly situated, Plaintiff v. BANK OF AMERICA, N.A., a business entity, form unknown, Defendant, Case Nos. 19-cv-00316-LB, 19-cv-02491-LB, 20-cv-02119-LB (N.D. Cal.), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, grants the Plaintiffs' motion for final approval of the settlement and attorney's fees and costs. Background The Plaintiffs -- three classes of current and former nonexempt employees who have various jobs at Bank of America's California branches -- challenge Bank of America's alleged failure to pay them for their off-the-clock work, provide meal-and-rest breaks, or reimburse expenses in violation of the California Labor Code, California's Unfair Competition Law (UCL), and California's Private Attorney's General Act (PAGA). It is a putative class action under Federal Rule of Civil Procedure 23. The parties settled the case. The settlement involves three class-action cases with wage-and-hour claims. There thus are three settlement classes: the Harrison Class (tellers), the Kaffishahsavar Class (bankers, relationship managers and bankers, and lending and sales specialists), and the Mendoza Class (operations managers). The parties engaged in formal and informal discovery (including motions practice) and then agreed to mediation. To prepare for it, the defendant produced, and the Plaintiffs' counsel reviewed, data concerning the class sizes, hourly rates and dates of employment, timekeeping data, policy manuals, and other relevant data and discovery. The Plaintiffs engaged an expert to prepare a damages analysis. The parties had a lengthy mediation with David Rotman, a respected wage-and-hour mediator, and ultimately accepted the mediator's proposal and settled the case on Dec. 31, 2020. As part of that settlement, they stipulated to the filing of a consolidated complaint. Following the Plaintiff's unopposed motion and a hearing, the Court preliminarily approved the settlement. The Plaintiffs moved for final approval of the settlement and attorney's fees and costs. The Court held a fairness hearing on Oct. 28, 2021. There are 20,190 class members (19,895 identified initially plus 295 omitted inadvertently because a job code was not included). The settlement classes are as follows: The Defendant's current and former non-exempt employees that fall within at least one of the following classes: a. Employees working or who worked in the State of California for Defendant as a Teller (meaning Job Codes RT600 — FC Client Service Rep and RT601 - Market Client Service Rep) on or after Oct. 26, 2014, through the date of preliminary approval of the settlement by the Court (the Harrison Class); b. Employees working or who worked in the State of California for Defendant as a Financial Center Operations Manager or a Financial Center Assistant Manager (meaning Job Codes RM019 - Assistant Manager-FCC and RM038 - Financial Center Assistant Manager) on or after March 25, 2015, through the date of preliminary approval of the settlement by the Court (the Mendoza Class); and c. Employees working or who worked in the State of California for Defendant as a Personal Banker (Job Code RS600), Senior Personal Banker (Job Code RS601), Relationship Manager (Job Code BQ055), Relationship Manager and Lending Specialist (Job Code BQ220), Sales and Service Specialist (Job Code RS860), Relationship Banker (Job Code RS861), or a Relationship Banker - Hybrid (Job Code RS862) on or after March 27, 2016, through the date of preliminary approval of the settlement by the Court (the Kaffishahsavar Class). The total non-reversionary Gross Settlement Amount is $11.5 million, and the Net Settlement Amount recovered by the class is approximately $7,497,202.97 after the following deductions: (1) $86,250 in PAGA penalties; (2) $30,000 in enhancement payments to the named Plaintiffs; (3) $84,000 for the claims administration's expenses; (4) $3.45 million in attorney's fees; (5) $54,356.17 in litigation costs; and (6) employer payroll taxes of $298,190.86. The class members will receive a settlement check without submitting a claim form. Each member's settlement share is calculated by multiplying the Net Settlement Amount by a fraction. The numerator is the total number of credited workweeks the class member worked for the defendant in California during the applicable time period as a member of a class, and the denominator is the total number of credited workweeks for the class members who worked for the defendant in California during the applicable class period as members of a class. Any Plaintiff who opts out of the settlement will not receive a share of the settlement proceeds. Settlement checks will be mailed within 10 days after the occurrence of both the effective date of the settlement and the Defendant's deposit of the Gross Settlement Fund into a qualified settlement-fund account created by the settlement administrator. The checks are valid for 180 days. Funds from checks that expire or are returned as undeliverable will be transmitted to the State of California Unclaimed Property Fund. The Plaintiffs did a damages assessment that is summarized in the motion and supporting declarations. The $11.5 million settlement amount is approximately 20% of the estimated recoverable damages (exclusive of the derivate claims) in light of the litigation risks. The settlement results in immediate payment to members of the classes in meaningful amounts (with an average recovery of $460 at an average blended hourly rate of $18.35). Under the settlement terms (with 30% of the settlement fund allocated to attorney's fees), the highest recovery is $1,634.20 and the average recovery is $370.93. The release is, in short, (1) a release of all the class claims under federal or state law for all claims that were pleaded or could have been pleaded under the facts alleged in the complaint, (2) a release of the PAGA claims for claims that were pleaded or could have been pleaded under the facts alleged in the complaint, and (3) a general release by the named Plaintiffs. The Court previously approved Simpluris, Inc. to administer the settlement in accordance with the procedures in the Settlement Agreement. It complied with the procedures. On July 19, 2021, it mailed the notices to 19,895 class members informing them of the lawsuit, the settlement, and their right to opt out or object to its terms. As of Sept. 23, 2021, no class members objected and five class members opted out. On Sept. 23, 2021, the parties reported an error that resulted in 295 Mendoza class members not receiving notice. The parties presented the Court with two solutions, and the Court selected the following solution. The notice was amended to give the 295 class members 35 days from the mailing of the notice to opt out of the class or object to the terms of the settlement. The notices were to be sent to the most recent home address that the Bank has for each class member, or an updated address obtained by Simpluris. If a notice was undeliverable, Simpluris called the class member on the most current phone number that the Bank has on record for that class member. The parties agreed to report to the court within four days after expiration of the opt-out and objection period about whether any of the 295 class members objected or opted out. Ultimately, notice was successful for all, and no class member objected to the settlement or opted out. Analysis Judge Beeler holds the prerequisites of Fed. R. Civ. P. 23(a) and (b)(3) are met. She certifies the class under Federal Rule of Civil Procedure 23(b)(3) for settlement purposes only. With respect to the settlement, Judge Beeler finds that, overall, the settlement appears fair. She says, the settlement agreement was the result of an adversarial, non-collusive, and arms-length negotiation process. It provides good value, given the risks of litigation, the parties' disputes about damages, and the value of money to the Plaintiffs now. As discussed, the parties reached the settlement only after obtaining discovery and conducting a robust damages assessment. Also, off-the-clock claims can be difficult to certify because they can involve individualized determinations. The PAGA allocation is within the range of reasonable settlements. As to the Class Representatives, the Class Counsel, and the Claims Administrator, the Court appointed Andrea Harrison, Miguel Mendoza, Kimberly Jaco, and Kiarash Kaffishahsavar as the class representatives for their respective classes. The Plaintiffs are an adequate representative of the other members of their subclasses and have claims that are typical of the other members' claims. The Court also appointed the Markham Law Firm (for the Harrison Class), Marlin & Saltzman, LLP (for the Mendoza Class), and Quintilone & Associates (for the Kaffishahsavar Class) as the counsel for settlement purposes only. They have the requisite qualifications, experience, and expertise in prosecuting class actions. Judge Beeler approves Simpluris' costs of $84,000, which will be paid out of the Gross Settlement Fund. With respect to the Class Notice, Simpluris provided notice to the members of the class in the form that the Court approved previously. Judge Beeler says, the notice met the legal prerequisites: it was the best notice practicable, satisfied the notice requirements of Rule 23, adequately advised the class members of their rights under the settlement agreement, met the requirements of due process, and complied with the court's order regarding court notice. The form of notice fairly, plainly, accurately, and reasonably provided class members with all required information. Ultimately, the service plan addressed the service issues for the inadvertently omitted 295 class members. Recognizing the presumption in the district of a $5,000 award, but recognizing the work of the named Plaintiffs, Judge Beeler awards $7,500 each as a service award to the four named Plaintiffs, for a total of $30,000 (not the requested $40,000). The Plaintiffs' counsel asks for $3.45 million in attorney's fees (30%of the settlement fund) and $54,356.17 in costs. Judge Beeler awards the fees and costs. Based on the counsel's submissions, the fee award is appropriate as a percentage of the common fund and is supported by a lodestar cross-check, given the results obtained, the case itself, the lack of objections to the settlement, and counsel's litigating the case on a contingency basis. Also, the counsel has expended $54,356.17 in litigation costs to date, which is less than the $100,000 estimated by the Settlement Agreement. Conclusion Judge Beeler (1) certifies the classes for settlement purposes only, (2) approves the settlement and authorizes the distribution of funds set forth, (3) confirms the appointments of the class representatives, the class counsel, and Simpluris, (4) approves $3.45 million in attorney's fees, $54,356.17 in costs, $84,000 for Simpluris' administration costs, $7,500 service awards to each of the four named Plaintiffs ($30,000 total), and (5) orders the parties and Simpluris to carry out their obligations in the settlement agreement. Judge Beeler incorporates by this reference the terms in the proposed order at ECF No. 88-2. The Order disposes of ECF Nos. 80 and 83. A full-text copy of the Court's Nov. 24, 2021 Order is available at https://tinyurl.com/ykt3pee5 from Leagle.com. BAYLOR SCOTT: C.C. Suit Seeks to Certify Settlement Class --------------------------------------------------------- In the class action lawsuit captioned as C.C. & L.C., INDIVIDUALLY AND AS NEXT FRIEND TO L.L.C.; D. C. & H.C., INDIVIDUALLY AND AS NEXT FRIEND TO O.C.; C.S., INDIVIDUALLY AND AS NEXT FRIEND TO J.A., JR.; S.M. & C.S., INDIVIDUALLY AND AS NEXT FRIEND TO E.M., v. BAYLOR SCOTT & WHITE HEALTH; BAYLOR SCOTT & WHITE HEALTH AND WELFARE BENEFITS PLAN; SCOTT & WHITE HEALTH PLAN; and BAYLOR SCOTT & WHITE HOLDINGS, Case No. 4:18-cv-00828-SDJ (E.D. Tex.), the Plaintiffs ask the Court to enter an order: 1. certifying a proposed settlement class defined as: A) All individuals who: (1) were participants or beneficiaries under a Baylor Scott & White Health & Welfare Plan and/or its predecessors at any time between January 1, 2015 and December 31, 2020, inclusive; (2) have been diagnosed with ASD; and (3) while they were eligible for benefits under the Plan and during the Settlement Class Period incurred any out-of-pocket expenses or incurred but not yet paid expenses for ABA or NDT or B) The parents or guardians of the individuals described in Section A. 2. appointing Plaintiffs C.C., L.C., D.C., H.C., Ch.S., S.M., and Ca.S. as the class representatives, and appointing Ms. Bouer and Ms. Rosenberg of Bouer Law, Mr. England of the Harris Firm, and Ms. Hamburger of Sirianni Youtz Spoonemore Hamburger as class counsel. The Settlement Agreement provides both prospective and retrospective relief to proposed class members that address Defendants' treatment limitations and exclusions imposed on Applied Behavior Analysis ("ABA") therapy and speech, occupational and physical therapies (collectively "Neurodevelopmental Therapies" or "NDT") to treat autism spectrum disorder ("ASD"). Specifically, in 2015 and continuing to the present, Defendant Baylor Scott & White Health and Welfare Benefits Plan and its legacy plans, the Baylor Medical Benefit Plan and the Scott & White Health Benefits Plan contained special mental health treatment exclusions and limitations of coverage for ABA and NDT services to treat ASD that Plaintiffs alleged violated the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. While Defendants began covering ABA therapy to treat ASD without treatment limitations in 2019, no notice was provided to participants and beneficiaries of this change, and coverage of NDT services remained limited. The Plan was formed by the merger of its two predecessor health plans, the Baylor Health Benefit Plan (the Baylor Legacy Plan) and the Scott & White Health Benefit Plan (the S&W Legacy Plan). Although the Plan Sponsor, Baylor Scott & White Holdings, was formed as a result of a merger between two health systems that occurred before 2015, the two separate employee health benefit plans were not merged until 2016. A copy of the Plaintiffs' motion to certify class dated Nov. 30, 2021 is available from PacerMonitor.com at https://bit.ly/3EapzpY at no extra charge.[CC] The Plaintiffs are represented by: Eleanor Hamburger, Esq. SIRIANNI YOUTZ SPOONEMORE HAMBURGER PLLC 3101 Western Avenue, Suite 350 Seattle, WA 98121 Telephone: (206) 223-0303 Facsimile: (206) 223-0246 E-mail: ehamburger@sylaw.com - and - Jodi F. Bouer, Esq. Kimberly M. Mack Rosenberg, Esq. BOUER LAW LLC E-mail: jbouer@bouerlaw.com kim@bouerlaw.com 361A Nassau St. Princeton, NJ 08540 Telephone: (609) 924-3990 Facsimile: (609) 228-6750 - and - Austin H. England, Esq. THE HARRIS FIRM, P.C. 5050 West Lovers Lane Dallas, TX 75209 Telephone: (214) 956-7474 Facsimile: (214) 956-7405 E-mail: austin@harrisfirmpc.com BEACH HOUSE: Nygaard Seeks to Certify Class ------------------------------------------- In the class action lawsuit captioned as HOLLY NYGAARD and QUANELL GEE, on behalf of themselves and all others similarly situated, v. BEACH HOUSE HOSPITALITY GROUP, LLC d/b/a BEACH HOUSE BAR & GRILL; and EREZ SUKARCHI, individually, Case No. 4:20-cv-00233-JD (D.S.C.), the PlaintiffS ask the Court to enter an order certifying the putative class for the Defendants' violation of the South Carolina Payment of Wages Act. A copy of the Plaintiffs' motion to certify class dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3DkJmlc at no extra charge.[CC] The Plaintiffs are represented by: Bruce E. Miller, Esq. BRUCE E. MILLER, P.A. 147 Wappoo Creek Drive, Suite 603 Charleston, SC 29412 Telephone: (843) 579-7373 Facsimile: (843) 614-6417 E-mail: bmiller@brucemillerlaw.com BEAUFORT COUNTY, SC: Munday Seeks to Certify Female Detainee Class ------------------------------------------------------------------ In the class action lawsuit captioned as CHERYL A. MUNDAY and MARGARET DEVINE, on behalf of themselves and others similarly situated, v. BEAUFORT COUNTY, PHILIP FOOT, QUANDARA GRANT, JOHN DOES 1-5 and JANE DOES 1-5, Case No. 9:20-cv-02144-DCN-MHC (D.S.C.), the Plaintiffs ask the Court to enter an order certifying a damages class defined as: "All female pre-classification detainees in the custody of Beaufort County Detention Center (BCDC) who, upon their admission or return to BCDC from outside of BCDC, were strip/visual body cavity searched, while pre-classification males were not, from February 27, 2015, until the class period closes." Although there are different legal theories regarding the constitutional violations (essentially Fourth Amendment and Equal Protection), the class is the same for both and this class definition encompasses all claims, the lawsuit says. In the alternative, the Plaintiffs ask that the Court certify a liability issue class pursuant to Fed. R. Civ. P. 23(c)(4), defined the same as the Rule 23(b)(3) class, applicable to the claim that the Defendants' uniform strip/vbc search practices violate Section 1983, and/or as to such claims and issues as the Court may deem appropriate, tne lawsuit adds. Beaufort County is a county in the U.S. state of South Carolina. A copy of the Plaintiffs' motion to certify class dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3Ifmwzh at no extra charge.[CC] The Plaintiffs are represented by: Christy R. Fargnoli, Esq. Bert G. Utsey, III, Esq. Samuel R. Clawson, Jr., Esq. CLAWSON FARGNOLI UTSEY, LLC 2 Amherst Street Charleston, SC 29403 Telephone: (843) 970-2700 Facsimile: (843) 970-1780 E-mail: bert@cfulaw.com sam@cfulaw.com christy@cfulaw.com - and - Robert S. Metro, Esq. BAUER & METRO, P.C. Post Office Box 7965 Hilton Head, SC 29938 Telephone: (843) 842-5297 E-mail: rmetro@bauerandmetro.com BEELMAN TRUCK: Guszkiewicz Hits Undisclosed Facial Data Retention ----------------------------------------------------------------- Rick Guszkiewicz, on behalf of himself and other persons similarly situated, Plaintiff, v. Beelman Truck Company and Samsara Inc., Defendants, Case No. 2021L001248 (Ill. Cir., November 24, 2021), seeks an injunction requiring Defendants to cease all unlawful activity related to the capture, collection, storage and use of biometrics, as well as statutory damages together with costs and reasonable attorneys' fees for violation of the Illinois Biometric Information Privacy Act. Beelman is a long-haul trucking company headquartered in East St. Louis, Illinois. Its trucks are equipped with a driver monitoring system provided by Samsara. This system that collected scans of drivers' facial geometry to analyze driving behaviors and the data is uploaded via a wireless network. Guszkiewicz says that he has not been notified where facial data are being stored, for how long will they be stored and what might happen to this information. [BN] Plaintiff is represented by: Benjamin Scott Thomassen, Esq. Ari J. Scharg, Esq. J. Eli Wade-Scott, Esq. EDELSON P.C. 350 North Lasalle Street, Suite 1300 Chicago, IL 60654 Tel: (312) 589-6370 Fax: (312) 589-6378 Email: bthomassen@edelson.com ascharg@edelson.com ewadescott@edelson.com - and - Randall K. Pulliam, Esq. David F. Slade, Esq. CARNEY BATES AND PULLIAM, PLLC 519 West 7th Street Little Rock, AR 72201 Telephone: (501) 312-8500 Email: rpulliam@cbplaw.com dslade@cbplaw.com BISHOP OF CHARLESTON: Court Denies Aselage's Protective Order Bid ----------------------------------------------------------------- In the case, Gary Nestler, Viewed Student Female 200, Viewed Student Male 300, on behalf of themselves and all others similarly situated, Plaintiffs v. The Bishop of Charleston, a Corporation Sole, Bishop England High School, Tortfeasors 1-10, The Bishop of the Diocese of Charleston, in his official capacity, and Robert Guglielmone, individually, Defendants, Civil Action No. 2:21-613-RMG (D.S.C.), Judge Richard Mark Gergel of the U.S. District Court for the District of South Carolina, Charleston Division, denied nonparty Maria Aselage's motion for protective order regarding redacted portions of her emails. Facts The Plaintiffs bring the putative class action alleging that, for roughly two decades, students at Bishop England High School ("BEHS") were made to disrobe in locker rooms which contained "large glass windows" whereby BEHS employees, agents, and/or others may have viewed students. On May 1, 2019, BEHS employee Jeffrey Scofield was arrested after BEHS reported to law enforcement that he took videos and made photographs of male students changing clothes in one of the school's locker rooms. The Plaintiff filed the suit on Feb. 3, 2021. The next day, the Defendants issued a press release regarding the lawsuit that identified Aselage as Director of Media Relations for the Diocese and provided her contact information. The Plaintiffs deposed Aselage on Oct. 7, 2021. During Aselage's deposition, Aselage's personal attorney instructed her not to answer questions regarding conversations Aselage had with the Diocese's General Counsel. After the deposition, on Oct. 13, 2021, the Plaintiffs served Aselage and her company Hearsay Communications a subpoena requesting various communications relevant to the above cited press release. The very next day, Aselage filed a motion for order of protection and to quash subpoena. Therein, Aselage argued "that her communications and documents with the Defendants and their General Counsel were privileged and protected as confidential attorney client material and work product." Aselage sought a court order shielding her from responding to the subpoena. Aselage's motion included neither documents for the Court's in camera review nor a privilege log. On Nov. 3, 2021, the Court denied Aselage's motion. It found Aselage had not met her burden of showing the subpoenaed documents were privileged or otherwise contained attorney work product. To the contrary, the Court held that Aselage was not the functional equivalent of an employee and that Defendants had waived any privilege in their communications with Aselage. The Court explicitly held that "no attorney-client relationship exists between the Diocese and Aselage and Aselage's communications with the Diocese's General Counsel are not entitled to protection from discovery." Accordingly, it ordered that Aselage respond to Plaintiff's subpoena by Nov. 12, 2021. The Court further ordered that Aselage's deposition be reconvened and terminated in accordance with said order. On Nov. 12, 2021, Aselage filed the instant motion, claiming that "she is producing emails and documents responsive to the subpoena" but that "a small number of emails include legal advice, strategic plans, and development of defense themes by in house and outside counsel." She seeks a protective order regarding various emails she now identifies in a privilege log. On Nov. 18, 2021, the Plaintiffs responded in opposition to the instant motion. They attached correspondence with Aselage's attorney. The correspondence suggests that, prior to filing her First Motion, Aselage's counsel did not review the emails in question. On Nov. 9, 2021, roughly six days after the Court issued the above order, Aselage's counsel wrote to the Plaintiffs' counsel, "I was made aware of the nature of the emails regarding the subpoena, however, there are approximately 200 emails. Ms. Aselage began collecting and sorting the emails after I hade her aware of the subpoena." Legal Standard/Analysis Judge Gergel explains that Fed. R. Civ. P. 26(b)(5)(A) provides that when a party withholds information otherwise discoverable by claiming that the information is privilege, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. According to Judge Gergel, generalized claims of privilege are insufficient. To comply with the requirements set forth in Rule 26(b)(5)(A), a party seeking protection from producing documents must produce a privilege log that "identifies each document withheld, information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document's general subject matter." Judge Gergel denies Aselage's motion. As made clear, the Court already ruled on the very issues Aselage attempts to raise in her current motion. Specifically, it found that Aselage had not met her burden of showing her communications with the Defendants were privileged or that any portion of them were otherwise entitled to protection. Judge Gergel will not revisit this issue. Further, when Aselage filed her First Motion, she provided neither documents for the Court's in camera review nor a privilege log for the Court or the Plaintiffs' consideration. The failure to file a privilege log prior to or with her First Motion is arguably fatal. Conclusion For the reasons he stated, Judge Gergel denied Aselage's motion for protective order. Aselage was to produce all subpoenaed documents in unredacted form on Nov. 26, 2021. Further, on Dec. 3, 2021, Aselage's deposition was due to be reconvened so that the Plaintiffs may question her regarding the documents she was ordered to but did not produce. A full-text copy of the Court's Nov. 19, 2021 Order & Opinion is available at https://tinyurl.com/3925m5h7 from Leagle.com. BJA MASONRY: Weeks Sues Over Unpaid Wages for Construction Workers ------------------------------------------------------------------ DANIEL J. WEEKS, individually and on behalf of all others similarly situated, Plaintiff v. BJA MASONRY, LLC; GILBERT C. BORRADAILE; and CAROL BORRADAILE, Defendants, Case No. 1:21-cv-03064-JMC (D. Md., December 1, 2021) is a class action against the Defendants for their failure to pay the Plaintiff and similarly situated construction workers minimum wages and overtime wages for all hours worked in violation of the Fair Labor Standards Act, the Maryland's Wage and Hour Law, and the Maryland Wage Payment and Collection Law. The Plaintiff worked for the Defendants as a carpenter in and around Ocean City, Maryland from approximately December 2018 until March 15, 2021. BJA Masonry, LLC is a construction and masonry company, with its principal place of business located at 10800 Navy Page Lane, Unit 105, Berlin, Maryland. [BN] The Plaintiff is represented by: Wes P. Henderson, Esq. Patrick D. Gardiner, Esq. HENDERSON LAW, LLC 2127 Espey Court, Suite 204 Crofton, MD 21114 Telephone: (410) 721-1979 Facsimile: (410) 721-2258 E-mail: wes@hendersonlawllc.com patrick@hendersonlawllc.com BOSCH SOLAR: Objection to Reply Evidence in Rojas Suit Sustained ---------------------------------------------------------------- In the case, STEVE R. ROJAS and ANDREA N. ROJAS, on behalf of themselves and all others similarly situated, Plaintiffs v. BOSCH SOLAR ENERGY CORPORATION, Defendant, Case No. 18-cv-05841-BL (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, issued an Order: a. sustaining the Defendant's objection to the Plaintiffs' reply evidence in its entirety; b. denying as moot the Defendant's alternative request for leave to file a sur-reply; and c. denying the Plaintiffs' administrative motion for leave to file a response to the Defendant's objection. The Defendant has filed an objection to certain evidence filed with the Plaintiffs' reply in support of their motion for class certification. In the alternative, the Defendant requests leave to file a sur-reply. The Plaintiffs have filed an administrative motion for leave to file a response to the Defendant's objection, which is opposed by the Defendant. Judge Freeman denied the Plaintiffs' administrative motion for leave to file a response to the Defendant's objection. She says, this district's Civil Local Rules do not contemplate a response to an objection to reply evidence, and she does not find a response to be necessary in the case. The Defendant objects to three pieces of reply evidence: (1) the affidavit of the Plaintiffs' notice expert, Todd B. Hilsee; (2) Paragraphs 2-10 and Exhibits A and D to the supplemental declaration of David M. Birka-White; and (3) the declaration of Michael V. Garcia. With respect to the first piece of evidence, Mr. Hilsee has not previously been disclosed as an expert in the case. He now offers expert opinion on a key issue, the adequacy of the Defendant's recall of the solar modules that are the subject of the class action. The Defendant argues that it would be unfair for the Court to consider Mr. Hilsee's new expert opinion submitted for the first time on reply, as the Defendant has not had an opportunity to depose Mr. Hilsee or to obtain a rebuttal expert. With respect to the other two pieces of evidence, the identified portions of the supplemental declaration of David M. Birka-White, and the declaration of Michael V. Garcia, the Defendant argues that the evidence contains new factual matter on damages and therefore should not be considered on reply. Moreover, the Defendant points out that the identified portions of the supplemental declaration of David M. Birka-White, and the declaration of Michael V. Garcia, are not even mentioned in the Plaintiffs' reply brief. The Court notes that the Plaintiffs filed a "Corrected Reply" after Defendant filed its objection, adding references to the supplemental declaration of David M. Birka-White, and the declaration of Michael V. Garcia. Judge Freeman finds that the consideration of the Plaintiffs' reply evidence would be unfair and prejudicial to the Defendant and, therefore, sustained the Defendant's objection in its entirety. She has considered whether it might be more appropriate to accept the reply evidence and allow the Defendant to file a sur-reply. However, to give the Defendant a fair opportunity to respond to Mr. Hilsee's expert opinion, the Court would have to continue the hearing on the Plaintiffs' motion for class certification for a sufficient length of time that Defendant could depose Mr. Hilsee and obtain a rebuttal expert. Judge Freeman declines to disrupt the case schedule in this manner, particularly since the Court previously granted multiple prior requests by the parties to extend the deadlines for briefing and hearing the Plaintiffs' motion for class certification, before finally denying the most recent request for continuance in an order issued Oct. 14, 2021. Of additional concern is the likelihood that continuance of the class certification hearing would require continuance of the last date for hearing summary judgment motions and continuance of the trial date. The Court currently is setting trials in 2024. Given the age of the case, Judge Freeman does not find potential significant delays in the case schedule to be reasonable. Thus, granting the Defendant leave to file a sur-reply is not a feasible option. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/4as65wac from Leagle.com. BURGER KING: Inspection Found No Black Mold, Backed-Up Sewage ------------------------------------------------------------- Andrew Sullender at Springfield News reports that former Burger King general manager strikes outside of Cherry and National St. on November 22, 2021. Despite allegations from former staff that a Springfield Burger King suffered from black mold and backed-up sewage, a new health inspection only cited lesser issues days after employees walked out. That walkout at the National and Cherry Street Burger King was prompted by an impending health inspection. "I didn't want my name associated with what was going on. The sewage problems alone, according to health department guidelines - I can't open the store. I was being told to open that store anyway," said Victoria Springer, a former manager of the Burger King location who led the walkout. Inspection did not find many of the issues workers described, but health inspectors promised to return after employees shared video and photos of their claims. Since walking out, at least a half-dozen workers have picketed outside the location - yelling "black mold in the kitchen" to potential customers. The new inspection found two "priority violations" at the Burger King. Despite being cleaned, there was still a "moderate buildup" of grease on the kitchen's product hold unit. The inspector observed a drain cleaning tool "stuck between the bottom two trays of plastic wrapped hamburger buns." These items were discarded at the inspector's request. Inspectors also noted the continued uncleanliness of the establishment but did not describe mold or overflowing sewage. "The floors in food preparation area (especially under equipment and near drains), walk-in refrigerator and freezer and dry storage areas were not clean," it read. Inspectors did find that the Burger King's condition warranted another visit, which will take place Dec. 1. "We discussed the issues observed and determined that another visit was warranted to determine compliance." More:Is Whataburger coming to Republic? The city's website indicates it could be In response to the new inspection, Springer said she was glad that their walkout prompted action to clean up the kitchen. "I am glad to have seen that they have had out plumbers and other maintenance since our walkout. This is what myself and other managers and crew fought so hard for before the walkout. I am sorry it took us walking out to make this happen, yet proud to know that we have accomplished our main goal to affect change." Springer added that she and her co-workers are pursuing a class-action lawsuit to address their allegedly poor working conditions. "I hope in the future they will listen to management and crew and not turn a blind eye to the problems. We have had other problems that need addressed and are seeking representation for a possible class-action suit," she said. "Addressing unhealthy work conditions. Unrealistic work expectations. Possible altering of some hours in order for them to avoid paying overtime. Still a long way to go. We hope all fast food workers will fight for better work environments." [GN] BUTLER MOTORS: Orders Denying Bids to Dismiss Benosky Suit Affirmed ------------------------------------------------------------------- In the case, Butler Motors, Inc., et al., Appellants-Defendants v. Michael Benosky, et al., Appellee-Plaintiffs, Court of Appeals Case No. 20A-PL-1871 (Ind. App.), the Court of Appeals of Indiana affirmed the trial court's two interlocutory orders. The orders denied a Rule 12(B)(6) motion to dismiss filed by a group of automobile dealer defendants ("Dealers") and a separate Rule 12(B)(6) motion to dismiss filed by a group of automobile dealers who were named as defendants under the alter ego doctrine ("Alter Ego Dealers"). Introduction The interlocutory appeal involves 14 separate class action causes that were consolidated for pre-trial purposes into one cause in the Indiana Commercial Court in Marion County ("the trial court"). A group of consumers, who had purchased automobiles from various automobile dealers, filed class action complaints against the automobile dealers, who then filed Indiana Trial Rule 12(B)(6) motions to dismiss. The trial court denied the motions and certified its orders for interlocutory appeal. Background The Plaintiffs in the underlying 14 consolidated class action causes ("Consumers") are customers who purchased or leased an automobile for personal use from Dealers. As part of the various transactions, which occurred between 2013 and 2020, the Dealers charged Consumers a document preparation fee ("Doc Fee") of less than $200. The Dealers listed the Doc Fee as an itemized expense in the sales contracts but neither included the Doc Fee in the advertised price of the vehicle nor negotiated the Doc Fee with Consumers. The appeal ultimately stems from the charging of those Doc Fees, and it involves the Deceptive Consumer Sales Act ("DCSA") under INDIANA CODE Section 24-5-0.5-3 ("Deceptive Acts Statute") and the Motor Vehicle Dealer Services Act ("MVDSA") under INDIANA CODE Section 9-32-13-7 ("MVDSA Doc Fee Statue"). In their class action complaints, Consumers raised three claims: (1) a violation of the DCSA; (2) constructive fraud; and (3) unjust enrichment. All these claims were based on the Consumers' allegation that, between 2013 and 2020, Dealers had charged a Doc Fee that was contrary to the MVDSA Doc Fee Statute, INDIANA CODE Section 9-32-13-7. More specifically, Consumers' complaints alleged, in part, that Dealers had affirmatively misrepresented the Doc Fee as a fee incurred by the Dealers for preparation of documents and that Dealers had charged Consumers a Doc Fee that did not reflect expenses actually incurred for the preparation of documents, had not been negotiated, and had not been included in the advertised price, all in violation of the DCSA under INDIANA CODE Section 24-5-0.5-3(a). Additionally, the Consumers alleged that the Dealers' charging of an unduly excessive Doc Fee was in violation of the DCSA under INDIANA CODE Section 24-5-0.5-10(b)(3). Consumers alleged that the Dealers' conduct "constituted an incurable deceptive act because it was done as part of a scheme, artifice, or device, with the intent to defraud or mislead" in violation of the DCSA. In regard to the constructive fraud claim, the Consumers alleged, in part, that the Dealers had a duty of good faith and fair dealing to Consumers and that Dealers, who had superior knowledge, had violated that duty by making various representations and omissions. They further alleged that they had relied upon the Dealers' representations and omissions and that they had been injured. Finally, as for the unjust enrichment claim, Consumers alleged, in part, that Dealers had improperly requested, received, and retained funds from Consumers. The Consumers' complaints that included the Alter Ego Dealers as defendants also alleged that these Alter Ego Dealers "operated as alter egos and as a single business enterprise with respect to the charging of unlawful Doc Fees." Additionally, the Consumers alleged that the Alter Ego Dealers "shared similar corporate names; shared overlapping officers, directors, and employees; had similar business purposes; shared certain offices; advertised together as a single unit on their website; and generally operated in an interconnected and controlled way, such that they could be considered a single unit for liability purposes." On March 2, 2020, the Consumers filed, pursuant to Indiana Trial Rule 42(A), a motion to consolidate their pending Commercial Court cases for pre-trial purposes, and the trial court granted that motion. Additionally, following a request by Consumers and pursuant to INDIANA CODE Section 34-33.1-1-1, the trial court issued an order notifying the Indiana Attorney General that the consolidated cases may call into question the constitutionality of the Doc Fee Statute, INDIANA CODE Section 9-32-13-7, to the extent that Consumers may potentially argue that retroactive application of the statute was unconstitutional. On March 30, 2020, the Dealers filed a consolidated motion to dismiss ("Consolidated MTD") and Alter Ego Dealers filed a combined motion to dismiss ("Alter Ego MTD"). They filed their motions under Indiana Trial Rule 12(B)(6), seeking to dismiss the complaints of all Consumers. On June 16, 2020, the trial court held a hearing on the two pending motions. Thereafter, on July 31, 2020, the trial court issued the two interlocutory orders at issue in the appeal. The trial court's comprehensive orders addressed in detail the arguments raised by Dealers and Alter Ego Dealers and contained the trial court's reasoning for denying their motions to dismiss. In relevant part, the trial court, for purposes of the Dealers' Consolidated MTD, treated the 2019 Doc Fee Amendment as applying retroactively and found that it did not expressly authorize Dealers to charge Doc Fees under $200. Thus, the trial court determined that the Consumers' DCSA claims were not subject to dismissal. The trial court also determined that the MVDSA did not abrogate Consumers' common law claims of constructive fraud and unjust enrichment and that Consumers' complaints had adequately alleged those claims to survive a Rule 12(B)(6) motion to dismiss. Additionally, it determined that Consumers' complaints had adequately alleged fraudulent concealment to survive the Dealers' statute of limitations argument at the motion to dismiss stage. Finally, the trial court determined, in relevant part, that the Consumers' complaints would survive Alter Ego Dealers' MTD because the Consumers had sufficiently demonstrated a claim under the alter ego doctrine and had standing. Thereafter, the Dealers and the Alter Ego Dealers filed motions requesting the trial court to certify its two orders and to stay the proceedings. The trial court granted both requests. The Dealers and the Alter Ego Dealers then sought permission to file the interlocutory appeal, and the Court of Appeals granted their request. Discussion In the appeal, the Dealers challenge the trial court's interlocutory order denying their Consolidated MTD, and the Alter Ego Dealers challenge the trial court's interlocutory order denying their Alter Ego MTD. Given its procedural posture of reviewing the denial of a Trial Rule 12(B)(6) motion to dismiss, the Court of Appeals looks at the allegations of the DCSA claims in the Consumers' complaints, accepting them as true, to determine whether they establish any set of circumstances under which Consumers would be entitled to relief. It finds that the Consumers' complaints alleged that the Dealers' charges of the Doc Fees at issue were in violation of the DCSA under INDIANA CODE Section 24-5-0.5-3(a) and INDIANA CODE Section 24-5-0.5-10(b)(3). The Consumers alleged that the Dealers' conduct "constituted an incurable deceptive act because it was done as part of a scheme, artifice, or device, with the intent to defraud or mislead" in violation of the DCSA. Because the Consumers' complaints, in relation to their DCSA claims, set forth allegations upon which relief could be granted, the Court of Appeals holds that the trial court did not err by denying the Dealers' Consolidated MTD in regard to the Consumers' DCSA claims. The Court of Appeals now turns to the Dealers' argument that the trial court erred by concluding that the Consumers' complaints contained adequate allegations to survive the Dealers' statute of limitations argument. The Dealers had argued that the two-year statute of limitations applicable to DCSA claims barred three of the individual consumer plaintiffs' DCSA claims. The Consumers argue that the 2019 Doc Fee Amendment of the MVDSA did not abrogate their claims under common law. The Court of Appeals agrees with the Consumers and the trial court. It says, the Dealers' abrogation argument seems to rely on the incorrect premise that the Consumers' complaint alleges a claim specifically for a violation of the MVDSA, which has no private right of action. However, the Consumers are not alleging a claim that the Dealers' conduct was in direct violation of the MVDSA. Instead, their claims allege that the Dealers' conduct was in violation of the DCSA and constituted constructive fraud and unjust enrichment. It is presumed that when the legislature amended the 2019 Doc Fee Amendment, "it was aware of the common law and did not intend to make a change unless it expressly or unmistakably implied that the common law no longer controled." In the case, the legislature made no such express implication. Nor did it indicate that the amended statute was "clearly designed as a substitute for the common law." Therefore, the Court of Appeals concludes that the trial court did not err by concluding that the common law claims were not precluded by the 2019 Doc Fee Amendment. The Court of Appeals addresses the Dealers' argument that the Consumers' complaints insufficiently stated claims for relief for constructive fraud and unjust enrichment. Specifically, the Dealers recognize that Consumers alleged that there was a buyer-seller relationship but contend that the Consumers have not sufficiently alleged any express or affirmative statement made to Consumers that would support their claim. They argue that the Consumers' unjust enrichment argument should have been dismissed because the parties had a contract. In regard to the constructive fraud claim, the Consumers alleged, in part, that the Dealers had a duty of good faith and fair dealing to the Consumers and that the Dealers, who had superior knowledge, had violated that duty by making various representations and the omissions. The Consumers further alleged that they had relied upon the Dealers' representations and omissions and that they had been injured. Taking these facts as true and viewing the pleadings with every reasonable inference in the Consumers' favor, the Court of Appeals concludes that the Consumers have pleaded the operative facts necessary to establish a claim of constructive fraud. In other words, because it does not appear to a certainty on the face of the complaints that the Consumers are not entitled to relief, a dismissal of their complaints would have been improper. The trial court also did not err by denying the Dealers' motion to dismiss the Consumers' unjust enrichment claim. Taking the the allegations in the Consumers' complaints as true, the Court of Appeals concludes that the Consumers have established a set of circumstances under which they could be entitled to relief. Accordingly, the trial court did not err in denying the Dealers' motion to dismiss the Consumers' unjust enrichment claim. The final issue the Court of Appeals address in the appeal is the Alter Ego Dealers' challenge to the trial court's interlocutory order denying their Alter Ego MTD. In its order, the trial court determined, in relevant part, that the Consumers' complaints survived the Alter Ego Dealers' motion to dismiss because the Consumers had sufficiently demonstrated a claim under the alter ego doctrine and therefore standing. Because the Consumers' allegations are sufficient to establish circumstances under which they could be entitled to relief if they are able to prove their claim, the Court of Appeals concludes the trial court did not err by denying the Alter Ego Dealers' motion to dismiss for lack of standing under the alter ego doctrine. Order Based on the foregoing, Judge Rudolph Pyle, III, writing for the Court of Appeals, affirmed. Najam, J., and Tavitas, J., concur. A full-text copy of the Court's Nov. 24, 2021 Order is available at https://tinyurl.com/2p9cuu9e from Leagle.com. Michael P. Shanahan, William N. Ivers, Geoffrey Grodner, Indiana Dealer Counsel Mallor/Grodner LLP, in Indianapolis, Indiana; Thomas A. Barnard, Jeffrey D. Stemerick, Taft Stettinius & Hollister LLP, in Indianapolis, Indiana; Wayne C. Turner, Kenneth J. Munson, Hoover Hull Turner LLP, in Indianapolis, Indiana; Sean Burke, Hamish S. Cohen, Ray Biederman, Mattingly Burke Cohen & Biederman Lafayette, LLP, in Indianapolis, Indiana; Donn H. Wray, Glenn Bowman, Stoll Keenon Ogden PLLC, in Indianapolis, Indiana; Karl L. Mulvaney, Margaret M. Christensen, S. Katherine Dickey, Dentons Bingham Greenebaum, LLP, in Indianapolis, Indiana, Attorneys for the Appellants. Irwin B. Levin -- ILEVIN@COHENANDMALAD.COM -- Richard E. Shevitz -- RSHEVITZ@COHENANDMALAD.COM -- Vess A. Miller -- VMILLER@COHENANDMALAD.COM -- Lynn A. Toops -- LTOOPS@COHENANDMALAD.COM -- Cohen & Malad, LLP, in Indianapolis, Indiana; John J. Morse, Michael N. Red, Jr., Rebekah L. Phillips, Morse & Bickel, P.C., in Indianapolis, Indiana; Deborah J. Caruso, Joshua W. Casselman, Rubin & Levin, PC, in Indianapolis, Indiana, Duran L. Keller, Keller Law, Attorneys for the Appellees. CANADA: Claims Submitted in Military Sexual Misconduct Lawsuits --------------------------------------------------------------- Jacques Gallant at thestar.com reports that nearly 19,000 Canadian Armed Forces and Department of Defence personnel have submitted claims in the settlement of class-action lawsuits against the federal government over sexual misconduct in the military. At deadline, 18,796 claims had been filed by current and former CAF and DND employees. Of those 5,055 have already been approved for an initial payment or have been paid. Approximately 57 per cent of the claimants are female, 42 per cent are male, and one per cent identify as other. Nearly 33 per cent of all claims were submitted this month alone. The CAF has been rocked by a sexual misconduct crisis this year, with current and former senior leaders under investigation or facing charges. The federal government has faced intense criticism for failing to get the problem under control. Newly appointed Defence Minister Anita Anand has said dealing with the crisis is her top priority. The settlement was approved by the Federal Court in 2019 following class-action lawsuits filed against the federal government in 2016 and 2017. Those lawsuits alleged sexual harassment, sexual assault and discrimination in the Canadian Forces and at the Defence Department. The settlement provides for compensation up to $155,000, changes to military and veterans affairs policies, and the option for sexual misconduct survivors to participate in restorative engagement, during which they can share their experiences with senior officials. More than 4,800 claimants requested restorative engagement. Although it was not part of the settlement agreement, one of the lawyers who brought the lawsuits said the federal government also indicated in court that it would apologize. "It has been more than two years since that promise has been made and the apology should be provided as soon as possible," Jonathan Ptak said in an email. Anand's office said an apology will take place before the end of the year, and that survivors' groups are being consulted about it. The period within which to submit a claim has now ended, but Ptak said class members can seek a deadline extension based on exceptional personal circumstances. It's important to recognize that sexual misconduct in the Canadian military "is still something that is happening - it's not something that has happened in the past and is now settled," said Colten Skibinsky, who made a successful claim. Skibinsky shared his story with the Star about being sexually assaulted while serving in the army in 2013. He said the high percentage of claims from men shows that the problem is not just a women's issue. "I think anybody who says it's specifically a women's problem is not correct and it's almost an attempt to discredit the true nature of the problem," he said. [GN] CANDID CARE: Thomas Seeks Pay for Off-the-Clock Work ---------------------------------------------------- Kevin Thomas, individually and on behalf of all similarly situated individuals, Plaintiff, v. Candid Care Co., Defendant, Case No. 21-cv-05472 (S.D. Ohio, November 24, 2021), seeks to recover unpaid wages and overtime premiums, liquidated damages, penalties, injunctive and declaratory relief, attorneys' fees and costs, pre- and post-judgment interest and any other remedies under the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards and the Ohio Prompt Pay Act. Thomas worked for Candid Care as an hourly, non-exempt customer service agent. Candid Care required employees to monitor and respond to messages posted on an application named "Slack," which is a messaging application used to communicate with co-workers about work-related questions or issues. They were required to monitor and respond to messages on Slack regardless of whether they were on the clock or off the clock. Candid Care allegedly did not compensate agents for time spent monitoring and responding to messages on Slack when they were off the clock and were paid only when they are ready to take customer calls at the exact start time of their scheduled shift. [BN] Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com - and - Jeffrey J. Moyle, Esq. NILGES DRAHER LLC 1360 E. 9th Street, Suite 808 Cleveland, OH 44114 Telephone: (216) 230-2955 Facsimile: (330) 754-1430 Email: jmoyle@ohlaborlaw.com CAPITOL CITY: Stovall Sues Over Unpaid Overtime for Caretakers -------------------------------------------------------------- JOLANDA STOVALL, individually and on behalf of all others similarly situated, Plaintiff v. CAPITOL CITY RESIDENTIAL HEALTH CARE TN LLC, Defendant, Case No. 1:21-cv-01198-STA-jay (W.D. Tenn., November 30, 2021) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated caretakers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as a full-time caretaker employee in Jackson, Tennessee. Capitol City Residential Health Care TN LLC is a home health care service provider with its principal place of business located at Suite 202, 5100 Poplar Ave., Memphis, Tennessee. [BN] The Plaintiff is represented by: J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Robert E. Morelli, III, Esq. JACKSON, SHIELDS, YEISER, HOLT, OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com CDR MAGUIRE: Barker Seeks Unpaid Overtime Wages for Safety Workers ------------------------------------------------------------------ CODY DWAYNE BARKER, individually and on behalf of all others similarly situated, v. CDR MAGUIRE INC. a Delaware corporation, Case No. 6:21-cv-01720-AA (D. Or., Dec. 1, 2021) seeks to recover unpaid overtime brought under the Fair Labor Standards Act and Oregon Wage and Hour Laws. This action seeks compensatory and liquidated damages, attorney's fees, taxable costs of court, pre- and post-judgment interest and penalty wages for Defendant's willful failure to pay wages when due, including the correct amount of overtime wages, and other relief pursuant to 29 U.S.C. section 216(b) and Oregon Wage and Hour Laws for Plaintiff and for all others similarly situated in the course of their employment with Defendant. CDR Maguire is a Delaware corporation with headquarters in Miami, Florida. The Defendant has an Emergency Management division that provides disaster recovery services. From January 2021 to June 2021, the Defendant employed Plaintiff and other similarly situated individuals in providing disaster recovery services following wildfires that tore through Oregon in 2020. CDR Maguire employed hourly non-exempt employees with general worksite safety oversight responsibilities, including, but not limited to, Safety Officers and Arborists, ("Safety Workers") on the Oregon Wildfire Recovery Projects in 2020 and 2021, which projects aimed to safely clear trees that were damaged in the 2020 Oregon wildfires. Plaintiff Barker was employed by Defendant as a Safety Worker, assigned to work on OWR Projects in Lane, Linn, Marion, Jefferson, Lincoln, and Deschutes Counties, Oregon from on or around January 20th, 2021 to June 30th, 2021. The Plaintiff contends that CDR Maguire set an hourly rate of pay for each hour worked by Safety Workers on the OWR Projects. It was CDR Maguire's practice to pay Safety Workers their hourly rate of pay for all hours worked regardless of how many hours were worked in a workweek. CDR Maguire did not pay him and other similarly situated Safety Workers overtime at the rate of one and one-half times the regular hourly rate for all hours worked over 40 hours in a workweek as required by the FLSA. The Plaintiff alleges that, from February 1, 2021 to June 30, 2021, he was underpaid in each workweek in which he worked overtime and did not receive pay at one and one-half times his regular rate of pay for all hours worked over 40 in a workweek.[BN] The Plaintiff is represented by: Andrew S. Lewinter, Esq. ANDREW LEWINTER, ATTORNEY, P.C 132 E.. Broadway, Suite 821 Eugene, OR 97401 E-mail: andrew@lewinterlaw.com - and - Alan J. Leiman, Esq. LEIMAN LAW, P.C. PO Box 5383 Eugene, OR 97405 E-mail: alan@leimanlaw.com CELSIUS HOLDINGS: Hezi Sues Over Energy Drink's False Ad -------------------------------------------------------- Amit Hezi and Joseph Nina, on behalf of themselves and all others similarly situated, Plaintiff, v. Celsius Holdings Inc., Defendant, Case No. 21-cv-09892, (S.D. N.Y., November 23, 2021), seeks redress over deceptive practices associated with the advertising, labeling and sale of Defendant's fitness beverages in breach of express warranty and in violation of New York general business laws. Celsius manufactures, markets, advertises, and sells a line of fitness beverages that are touted as "healthy energy" drinks with "no preservatives artificial colors or flavors." The beverages are based on a proprietary formulation that provides a number of vitamins, minerals and other healthful ingredients such as guarana, ginger root and green tea. However, Plaintiffs contests that said product derives its taste from a lab synthesized ingredient. [BN] Plaintiff is represented by: Ryan J. Clarkson, Esq. Bahar Sodaify, Esq. Zachary T. Chrzan, Esq. Christina N. Mirzaie, Esq. CLARKSON LAW FIRM, P.C. 555 Madison Ave., 5th Fl. New York, NY 10022 Tel: (213) 788-4050 Fax: (213) 788-4070 Email: rclarkson@clarksonlawfirm.com bsodaify@clarksonlawfirm.com zchrzan@clarksonlawfirm.com cmirzaie@clarksonlawfirm.com CLAMPART LLC: Sosa Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Clampart, LLC. The case is styled as Yony Sosa, on behalf of himself and all other persons similarly situated v. Clampart, LLC, Case No. 1:21-cv-10158 (S.D.N.Y., Nov. 30, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ClampArt -- https://clampart.com/ -- represents a wide range of emerging and mid-career artists of all media with a specialization in photography.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal COLES COUNTY, IL: Seeks Dec. 21 Extension to File Class Cert. Reply ------------------------------------------------------------------- In the class action lawsuit captioned as MERVIN WOLFE, et al., v. COLES COUNTY STATE'S ATTORNEY'S OFFICE, et al., Case No. 2:21-cv-02206-CSB-EIL (C.D. Ill.), the Defendant asks the Court to enter an order extending the deadline to file its response to Plaintiffs' motion for class certification, 23, an additional 21 days from November 30, 2021 to December 21, 2021. The Defendant previously moved to dismiss this action based upon federal abstention doctrine and failure to state a claim. Thereafter, the Plaintiffs filed a motion for class certification. The Defendant's response is due today, November 30, 2021. However, the Defendant requires additional time to consider Plaintiffs' motion and draft an appropriate response. A copy of the Defendant's motion dated Nov. 30, 2021 is available from PacerMonitor.com at https://bit.ly/3I9pEfX at no extra charge.[CC] The Defendant is represented by: Kwame Raoul, Esq. Joseph Bracey, Jr., Esq. ILLINOIS OFFICE OF STATE'S ATTORNEYS APPELLATE PROSECUTOR, 500 South Second Street Springfield, IL 62701 Telephone: (217) 557-0261 Facsimile: (217) 782-8767 E-mail: joseph.bracey@ilag.gov gls@ilag.gov CORAL SPRINGS: Faces Zirpoli Suit Over Telemarketing Practices -------------------------------------------------------------- FALLON ZIRPOLI, individually and on behalf of all others similarly situated, v. CORAL SPRINGS FITNESS PARTNERS, INC. d/b/a ORANGETHEORY CORAL SPRINGS SOUTH, Case No. CACE-21-021279 (Fla. Cir., Broward Cty., Dec. 1, 2021) contends that the Defendant promotes and markets its merchandise, in part, by placing unsolicited telemarketing to wireless phone users, in violation of the Telephone Consumer Protection Act. The Defendant is a franchisee of a nation-wide group fitness center known as Orangetheory Fitness. Allegedly, the Defendant's telephonic sales calls have caused the Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy, the suit says. Through this action, the Plaintiff seeks an injunction and statutory damages on behalf of herself and the Class members, as defined below, and any other available legal or equitable remedies resulting from the unlawful actions of Defendant.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, Florida 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERGLAW P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com CREDIT SERVICE: Wusterbarth Suit Remanded to Brown County Cir. Ct. ------------------------------------------------------------------ In the case, AMBER WUSTERBARTH, individually and on behalf of all others similarly situated, Plaintiff v. CREDIT SERVICE COMPANY, Defendant, Case No. 21-C-1071 (E.D. Wis.), Judge William G. Griesbach of the U.S. District Court for the Eastern District of Wisconsin granted the Plaintiffs motion to remand the matter to state court. Introduction In the putative class action, Plaintiff Wusterbarth alleges that Defendant Credit Service violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Section 1692 et seq. The Defendant removed the action from Brown County Circuit Court on Sept. 14, 2021. The Plaintiff moves to remand the matter to state court, pursuant to 28 U.S.C. Section 1447(c), on the grounds that the Defendant's removal was untimely and that she lacks Article III standing to pursue her claims in federal court. Background On April 16, 2021, the Plaintiff, individually and on behalf of all others similarly situated, initiated the putative class action in state court, alleging that the Defendant violated the FDCPA. The Plaintiff filed an amended complaint on Aug. 25, 2021. In the amended complaint, she alleged that the Defendant, a debt collector, sent her a letter, on Dec. 7, 2020, to collect a debt. The letter states that "this account has been placed with us for collection" and advises that "this communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose." The letter instructed the Plaintiff that "any written correspondence, including an instrument tendered as full satisfaction of a debt, is to be sent to Credit Service Company, Inc., PO Box 2247, Colorado Springs, CO 80901." The Plaintiff claims that the letter violates the FDCPA. In particular, she alleges that, while the letter identifies the original creditor, it does not name the current creditor to whom the debt is owed or inform her who placed the debt for collection in violation of 15 U.S.C. Section 1692g(a)(2). She also asserts that the letter fails to provide a clear and unambiguous statement of the amount of the debt in violation of 15 U.S.C. Section 1692g(a)(1). Analysis As an initial matter, the Plaintiff challenges the timeliness of the removal, asserting that the Defendant was properly served with the summons and complaint on April 20, 2021, and therefore the 30-day period for removal expired on May 20, 2021. She contends that her original complaint provided the facts necessary to support a removal petition by asserting claims under the FDCPA. The Plaintiff also asserts that the Defendant waived its right to remove by joining issue on the merits for several months in state court. Even though the original complaint contained alleged violations of the FDCPA, the Defendant argues that the original complaint failed to allege facts sufficient to establish standing in any court. It asserts that the amended complaint contained "new alleged injuries in fact, which were not included in the original complaint. Judge Griesbach finds that the Defendant removed the action to state court within 30 days of the Plaintiff filing the amended complaint and asserted that the Plaintiff suffered an injury in fact based on the more detailed allegations of injury contained in the complaint. In short, the Defendant's removal was timely. The Plaintiff argues that, even considering the allegations in the amended complaint, the Court does not have subject matter jurisdiction in the case because she lacks Article III standing. She asserts that she does not allege a concrete injury sufficient to confer Article III standing. The Defendant argues that, "taken together, these allegations assert that the Plaintiff was not only confused and unsure about the legitimacy of the debt or what effect payment would have, but that she actually did not pay the debt for those reasons, as interest would not have continued to accrue if the debt had been paid." Judge Griesbach holds that because the amended complaint does not contain allegations of a concrete harm to support standing, the Court lacks subject matter jurisdiction over the Plaintiff's claims. Therefore, the case must be remanded to state court. The Plaintiff asserts that the Court should award her the attorney's fees incurred for bringing the motion. Section 1447 provides that "an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." The Plaintiff asserts that an award of attorney's fees is appropriate because none of the injuries alleged in the amended complaint give rise to Article III standing. Judge Griesbach finds that, given the rapidly evolving litigation over what constitutes a concrete injury in fact in the context of FDCPA claims in the circuit, the Defendant had an objectively reasonable basis to remove the case. Despite the Plaintiff's assertions to the contrary, there is no indication that the Defendant acted in bad faith in removing the case. This is true even though the Defendant asserted the Plaintiff's lack of standing as an affirmative defense in its answer to the amended complaint. Given the uncertainty of the law on the issue, the Defendant's attempt to remove the case based on the Plaintiff's "beefed-up" allegations concerning standing does not mean their affirmative defense was in bad faith. Therefore, Judge Griesbach declines to award fees and costs in the case. Conclusion For these reasons, Judge Griesbach granted the Plaintiff's motion for remand. The matter is remanded to Brown County Circuit Court. The Plaintiff's request for fees is denied. A full-text copy of the Court's Nov. 23, 2021 Decision & Order is available at https://tinyurl.com/2p8bjr6c from Leagle.com. CRODA INC: Court Tosses All Claims in Baker Suit Without Prejudice ------------------------------------------------------------------ In the case, CATHERINE BAKER, individually and on behalf of all others similarly situated, Plaintiff v. CRODA INC., Defendant, Case No. 1:20-cv-01108-SB (D. Del.), Judge Stephanos Bibas of the U.S. District Court for the District of Delaware dismisses all claims without prejudice. Background Croda owns a Delaware chemical plant that uses ethylene oxide, a known carcinogen. In 2018, Croda's plant leaked thousands of pounds of ethylene oxide into the surrounding neighborhood. Although Croda reacted quickly, residents worried that they had inhaled the chemical and now fear they will get cancer. One resident, Baker, brought a class action on behalf of her neighbors, alleging strict liability, public and private nuisance, negligence, willful and wanton conduct, and medical monitoring. She admits that no neighbor "has been currently diagnosed with cancer or illness of the kind caused by ethylene oxide." But she says they all suffer "an increased risk of illness." Now Croda moves to dismiss these claims. It says that the mere risk of disease alone is not a compensable tort injury. Discussion I. Delaware Law Applies Before addressing the merits, Judge Bibas decides whether Delaware or New Jersey law applies. New Jersey law recognizes independent claims for medical monitoring where Delaware law may not. And New Jersey might have a different view of claims for increased risk of disease. Since he sits in Delaware, Judge Bibas will rely on the Court's choice-of-law rules to decide the issue. In doing so, he asks which state has the "most significant relationship" to the tort. In the case, that is Delaware. A corporation incorporated in Delaware and operating a chemical plant in Delaware leaked chemicals into a Delaware neighborhood. Baker's objections do not convince Judge Bibas. Because Croda's headquarters are in New Jersey, she says, "it is entirely reasonable to infer that Croda made the decisions" about using ethylene oxide "from New Jersey." Even so, Delaware has a far closer link to these claims. Baker tries to delay this ruling by asking for discovery. She notes that in complex cases, courts sometimes delay choosing the applicable law until the record is more developed. This is not such a complex case. So Judge Bibas will not delay ruling that Delaware law applies. II. Increased Risk is Not an Injury On to the merits, at this stage, Judge Bibas takes all of Baker's factual assertions as true and asks if they state a plausible claim. He says, all tort claims require an injury. But in Delaware, Croda argues, an increased risk of illness, without more, does not suffice. Baker counters that recovery for increased risk is allowed by several states that, like Delaware, rely on the Second Restatement of Torts. Judge Bibas holds that this is not enough. He says, most courts reject increased-risk claims. Understandably so. Tens of millions of individuals may have suffered exposure to substances that might never result in harm. Allowing lawsuits for any risk of illness would open the floodgates to "limitless and endless" litigation. Without a contrary directive from the Delaware Supreme Court, Judge Bibas will not open those floodgates in the case. So the class cannot recover damages for the risk of diseases that they do not yet have. And because each tort requires an injury, none of Baker's torts survives this flaw. Conclusion Judge Bibas opines that the class cannot show it has suffered any injury under Delaware law, so he dismisses all its claims without prejudice. Baker may amend to show that the class has suffered physical injury. But Judge Bibas will not certify this question to the Delaware Supreme Court. Delaware law already points to my holding today, so certification would not be efficient. A full-text copy of the Court's Nov. 23, 2021 Memorandum Opinion is available at https://tinyurl.com/2p83z2sv from Leagle.com. Kimberly Ann Evans-- kevans@gelaw.com -- Kyle John McGee -- kmcgee@gelaw.com -- Kelly L. Tucker -- ktucker@gelaw.com -- GRANT & EISENHOFER, P.A., in Wilmington, Delaware; Frank M. Petosa, Marcio W. Valladares, Michael Ram, Rene F. Rocha, T. Michael Morgan, MORGAN & MORGAN, in Fort Lauderdale, Florida, Counsel for Plaintiff. Kenneth J. Nachbar -- knachbar@morrisnichols.com -- Miranda N. Gilbert -- mgilbert@morrisnichols.com -- MORRIS NICHOLS ARSHT & TUNNELL LLP, in Wilmington, Delaware; Zi-Xiang Shen, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware; Athena D. Dalton, Stephen A. Swedlow, QUINN EMANUEL URQUHART & SULLIVAN, LLP, in Chicago, Illinois, Counsel for Defendant. DELIVERY.COM LLC: Contreras Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Delivery.com, LLC. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. Delivery.com, LLC, Case No. 1:21-cv-10200 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Delivery.com LLC -- https://www.delivery.com/ -- is an American online platform and suite of mobile apps that enables users to order from local restaurants and stores for on-demand delivery.[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 DESKTOP METAL: Campanella Files Suit Over ExOne Merger ------------------------------------------------------ Pietro Campanella, individually and on behalf of all others similarly situated, Plaintiff, v. S. Kent Rockwell, John Hartner, John Irvin, Gregory F. Pashke, William F. Strome, Roger W. Thiltgen, Bonnie K. Wachtel, Paul A. Camuti, Loretta L. Benec and Desktop Metal Inc., Defendants, Case No. 2021-1013 (Del. Ch., November 22, 2022), seeks to recover damages resulting from the Defendants' failure to comply with their fiduciary duties arising from the merger between Desktop Metal, Inc. and The ExOne Company. On August 11, 2021, Desktop Metal and ExOne announced an agreement and plan of merger pursuant to which ExOne would become a wholly owned subsidiary of Desktop Metal. Pursuant to the terms of the merger agreement, ExOne's common stock shareholders became entitled to receive $8.50 in cash and 2.1416 shares of Desktop Metal Class A common stock which was calculated based on the "average stock price" of Desktop Metal Class A common stock over a twenty-day period. On October 8, 2021, ExOne solicited shareholders to vote in favor of the merger at a special meeting of shareholders that would be held on November 9, 2021. On the evening of November 8, 2021, Desktop Metal disclosed with the SEC that it had engaged a third party to conduct an independent internal investigation as a result of a whistleblower complaint relating to manufacturing and product compliance practices and procedures with respect to a subset of its photopolymer equipment and materials at Desktop Metal subsidiary EnvisionTec US LLC's facility in Dearborn, Michigan and had taken initial actions, including implementing changes in the management of and procedures associated with manufacturing the applicable products. Campanella, owns ExOne common stock prior to the merger. He claims that the whistleblower investigation was not disclosed before the vast majority of ExOne's voting shareholders had already submitted their votes by proxy. He claims that the shareholders were not fully-informed given the incredibly short time between the disclosure of the Whistleblower Investigation and the special meeting. ExOne's shareholders who had submitted their votes by proxy did not have adequate time to rescind or change their vote before the special meeting occurred. Desktop Metal designs and markets 3D printing systems. ExOne's business primarily consisted of manufacturing and selling 3D printing machines and printing products to specification for its customers for both direct and indirect applications. ExOne offered its pre-production collaboration and print products for customers through its network of ExOne Adoption Centers and supplied the associated materials, including consumables and replacements parts, and other services, including training and technical support, necessary for purchasers of its 3D printing machines to print products. [BN] Plaintiff is represented by: Ryan M. Ernst, Esq. BIELLI & KLAUDER, LLC. 1204 N. King St. Wilmington, DE 19801 Tel: (302) 803-4600 Email: rernst@bk-legal.com - and - Guri Ademi, Esq. Jesse Fruchter, Esq. ADEMI LLP 3620 E Layton Ave Cudahy, WI 53110 Tel: (414) 482−8000 Fax: (414) 482−8001 Email: gademi@ademilaw.com jfruchter@ademilaw.com EDGEWELL PERSONAL: Sunscreens Contain Benzene, Chabla Suit Alleges ------------------------------------------------------------------ LUIS CHABLA and JESSICA BARTON, individually and on behalf of all others similarly situated, Plaintiffs v. EDGEWELL PERSONAL CARE BRANDS, LLC, EDGEWELL PERSONAL CARE, LLC, and SUN PHARMACEUTICALS, LLC, Defendants, Case No. 3:21-cv-01579-SRU (D. Conn., November 29, 2021) is a class action against the Defendants for violation of New York General Business Law, breach of express warranty, breach of implied warranty of merchantability, fraudulent concealment, medical monitoring, and unjust enrichment. According to the complaint, the Defendants are engaged in false, deceptive, and misleading advertising, labeling, and marketing of Banana Boat sunscreen line of products. The Defendants failed to disclose that the products contain benzene, a known human carcinogen. As a result of the Defendants' alleged misrepresentations, the Plaintiffs and Class members were injured in fact and lost money. Had they known the truth, they would not have purchased the products. Edgewell Personal Care Brands, LLC is a manufacturer of personal care products, with its headquarters in Shelton, Connecticut. Edgewell Personal Care, LLC is a manufacturer of personal care products, with its headquarters in Shelton, Connecticut. Sun Pharmaceuticals, LLC is a pharmaceutical company, with its headquarters in Shelton, Connecticut. [BN] The Plaintiffs are represented by: Joseph P. Guglielmo, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: jguglielmo@scott-scott.com - and – Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and – David C. Magagna Jr., Esq. Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: dmagagna@lfsblaw.com cschaffer@lfsblaw.com EDGEWELL PERSONAL: Zayas Files Suit in D. Connecticut ----------------------------------------------------- A class action lawsuit has been filed against Edgewell Personal Care Company, et al. The case is styled as Lisa Zayas, Catalina Ocampo, Deborah Jean, Sebe Algofi, individually and on behalf of all others similarly situated v. Edgewell Personal Care Company, Edgewell Personal Care Brands, LLC, Edgewell Personal Care, LLC, Case No. 3:21-cv-01596 (D. Conn., Dec. 1, 2021). The nature of suit is stated as Other Fraud. The Edgewell Personal Care Company -- https://edgewell.com/ -- is an American consumer products corporation headquartered in Shelton, Connecticut.[BN] The Plaintiffs are represented by: Joseph P. Guglielmo, Esq. SCOTT + SCOTT, Attorneys at Law, LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Phone: (212) 223-6444 Fax: (212) 223-6334 Email: jguglielmo@scott-scott.com EL AGUASCALIENTES: Underpays Restaurant Laborers, Banuelos Claims ----------------------------------------------------------------- MANUEL BANUELOS, on his own behalf and on behalf of all others similarly situated, Plaintiff v. EL AGUASCALIENTES, LLC, GUERRERO CORRAL, INC., JESUS RAMIREZ and DANIEL RAMIREZ, Defendants, Case No. 1:21-cv-03074-MEH (D. Colo., November 16, 2021) is a class and collective action complaint brought against the Defendants for its alleged refusal to pay overtime premium in violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants between approximately March 2019 and approximately October 1, 2021 as a restaurant laborer in the Defendants' El Aguascalientes restaurant in Wheat Ridge and El Taco Loco restaurant in Brighton. According to the complaint, the Plaintiff and all other similarly situated restaurant laborers regularly worked more than 40 hours each workweek, and sometimes more than 12 hours per day. However, the Defendants denied them 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. In addition, the Defendants failed to provide them with compensated 10-minute break periods for each 4-hour work period. The Corporate Defendants operate as restaurants co-owned by the Individual Defendants. [BN] The Plaintiff is represented by: Brandt Milstein, Esq. MILSTEIN TURNER, PLLC 2400 Broadway, Suite B Boulder, CO 80304 Tel: (303) 440-8780 E-mail: brandt@milsteinturner.com FASTLY INC: Court Dismisses Consolidated Securities Class Suit -------------------------------------------------------------- In the case, In re FASTLY, INC. SECURITIES LITIGATION, Case No. 20-cv-06024-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted the Defendants' motion to dismiss the Lead Plaintiff's consolidated complaint. Background The case is a putative class action involving allegations of securities fraud. Defendant Fastly is an "edge" cloud platform that enables companies to deliver digital content to users from Fastly's servers rather than their own. Traditionally, websites and digital applications rely on one centralized server to process data for users all over the world, resulting in lag times and poor user experiences. Fastly solves this problem by locating data centers close to end users (the "edge"), which increases internet speed, security, and reliability of digital content for a better user experience. Defendant Joshua Bixby is Fastly's CEO. Defendant Adriel Lares was Fastly's CFO during the putative class period. Plaintiff Andrew Zenoff was appointed the Lead Plaintiff by the Court on Feb. 10, 2021, replacing the originally named Plaintiff, Marcos Betancourt. He earlier presented evidence that he lost $105,848 due to the Defendants' alleged misconduct. The action was initiated by Plaintiff Betancourt on Aug. 27, 2020. Thereafter, another case was related to this one: Rami Habib v. Fastly, Inc., et al. (4:20-cv-06454-JST). The cases were consolidated by the court pursuant to stipulation. Following briefing for appointment of lead plaintiff in the consolidated action, the Court appointed Zenoff as the Lead Plaintiff and Robbins Geller Rudman & Down LLP as the lead counsel. On April 12, 2021, the Lead Plaintiff filed the complaint now at issue, seeking to represent individuals who acquired Fastly stock between May 6 and Oct. 14, 2020. The complaint alleges that Fastly, Bixby, and Lares (together, "defendants"), violated Section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. Sections 78j(b)) and SEC Rule 10b-5 (17 CFR Section 240.10b-5). Specifically, the Plaintiff claims that various statements by the Defendants in May 2020 about Fastly's revenue growth, enterprise customers, and demand for its platform were misleading because the company did not disclose that TikTok was a customer (the "May Statements"). The Plaintiff also claims that after Fastly disclosed TikTok as a customer in August 2020, the Defendants continued to mislead investors about the company's ability to backfill lost TikTok traffic (the "August Statements"). The complaint asserts claims under Section 20(a) against Bixby and Lares as alleged "control persons" of Fastly. The Defendants now ask the Court to dismiss the consolidated complaint in its entirety and with prejudice. They additionally request judicial notice of several documents. Discussion I. Request for Judicial Notice In connection with their motion to dismiss, the Defendants request judicial notice of Fastly's filings with the Securities and Exchange Commission ("SEC"), transcripts of earnings calls and investor presentations, an analyst report, published articles, and information on a U.S. government website. A. Unopposed Exhibits The Plaintiff does not object to the court taking judicial notice of Exhibits 1 and 2, which are public articles. These two documents are referenced in the Defendants' recounting of the facts as context for the Trump Administrations' public statements regarding trade with China. a. Exhibit 1: Zeke Miller, Powerful, Obscure Law Is Basis For Trump `Order' On Trade, Associated Press, August 25, 2019, https://apnews.com/article/asia-pacific-donald-trump-ap-top-news-france-international-news-be18b8619cde4658a418dda4f416968a (last visited 11/23/2021). b. Exhibit 2: Ana Rappeport and Ana Swanson, White House Weighs Blocking Chinese Companies From U.S. Exchanges, The New York Times, Sept. 27, 2019, https://www.nytimes.com/2019/09/27/us/politics/trump-china-stock-exchange.html (last visited 11/23/2021). Judge Hamilton grants the Defendants' unopposed request for notice of these documents. They are considered for the context of their dates and the timing of the statements by the U.S. government, not necessarily for the truth of their contents. B. Incorporation by Reference The Defendants request the court to consider Exhibits 3-8 and 10-23 incorporated in the complaint by reference. The Plaintiff does not object to incorporation by reference of Exhibits 3-8 and 10-23 for the limited purpose of identifying the contents of those documents; however, he urges the Court to reject the Defendants' efforts to have the court resolve issues of fact based these documents as it would be improper at this pleading stage. The Defendant counters that the court may consider the documents incorporated by reference in order to resolve factual disputes and the Plaintiff fails to identify any well-pled allegations that are improperly disputed. The Defendants offer, "the incorporation by reference doctrine is designed to prevent the Plaintiffs from highlighting only the portions of certain documents that support their claims, while omitting portions of those documents that weaken their claims." Judge Hamilton holds that the Defendants have the better argument. The following exhibits are those that the Court considers incorporated by reference: a. Exhibit 3: Tony Romm and Drew Harwell, Marco Rubio Seeks U.S. Government Probe Of TikTok Over Chinese Censorship Concerns, The Washington Post, October 9, 2019. This article is referenced in the complaint at paragraph 18. b. Exhibit 4: Geoffrey Gertz, Is TikTok A Threat To National Security?, The Washington Post, Nov. 11, 2019. This article is referenced in the complaint at paragraph 21. c. Exhibit 5: copy of excerpts of Fastly's Annual Report for the year ended Dec. 31, 2019, filed with the Securities and Exchange Commission (SEC) on Form 10-K on March 4, 2020. This Form 10-K is referenced in the complaint at paragraphs 12, 114, 136, and 151. d. Exhibit 6: press release and shareholder letter attached to and filed with the SEC on Form 8-K on May 6, 2020. This Form 8-K is referenced in the complaint at paragraphs 52-56. e. Exhibit 7: transcript of Fastly's earnings call for the first fiscal quarter of 2020 on May 6, 2020. This transcript is referenced in the complaint at paragraphs 57-61. f. Exhibit 8: copy of excerpts of Fastly's Quarterly Report for the quarter ended March 31, 2020, filed with the SEC on Form 10-Q on May 8, 2020. This Form 10-Q is referenced in the complaint at paragraphs 33-34, 63-69, 124. g. Exhibit 10: Timothy Bella, Pompeo Says U.S. 'Certainly Looking At' Banning TikTok And Other Chinese Apps, The Washington Post, July 7, 2020. This article is referenced in the complaint at paragraph 27. h. Exhibit 11: Naeem Aslam, Trump Says He's Considering a Ban on TikTok in the U.S., Yahoo! Finance, July 8, 2020. This article is referenced in the complaint at paragraph 29. i. Exhibit 12: press release and shareholder letter attached to and filed with the SEC on Form 8-K on Aug. 5, 2020. This Form 8-K is referenced in the complaint at paragraphs 79, 116. j. Exhibit 13: transcript of Fastly's earnings call for the second fiscal quarter of 2020 on Aug. 5, 2020. This transcript is referenced in the complaint at paragraphs 5, 35, 38, 73-79, 117, and 136. k. Exhibit 14: Tali Arbel, Trump Bans Dealings With Chinese Owners Of TikTok, Wechat, Associated Press, Aug. 6, 2020. This article is referenced in the complaint paragraph 29. l. Exhibit 15: Exec. Order No. 13,942, 85 FR 48637 (2020). This Executive Order, signed Aug. 6, 2020, and titled Addressing the Treat Posed by TikTok, and Taking Additional Steps to Address the National Emergency With Respect to the Information and Communications Technology and Services Supply Chain is referenced in the complaint at paragraphs 29, 36, and 138. m. Exhibit 16: excerpts of Fastly's Quarterly Report for the period ended June 30, 2020, filed with the SEC on Form 10-Q, on Aug. 7, 2020. This Form 10-Q is referenced in the complaint at paragraphs 83-89, 114-15. n. Exhibit 17: transcript of Fastly's presentation at the Oppenheimer 23rd Annual Technology, Internet & Communications Conference on Aug. 11, 2020. This transcript is referenced in the complaint at paragraphs 91-92. p. Exhibit 18: transcript of Fastly's presentation at the KeyBanc Capital Markets Future Of Technology Series on Aug. 12, 2020. This transcript is referenced in the complaint at paragraphs 93-95. q. Exhibit 19: press release attached to and filed with the SEC on Form 8-K on Oct. 14, 2020, titled Fastly Provides Preliminary Third Quarter Revenue Results. This press release is referenced in complaint at paragraphs 41, 97-98, 140. r. Exhibit 20: copy of excerpts from Fastly's Registration Statement, on Form S-3, filed with the SEC on Oct. 15, 2020. This Form S-3 is referenced in the complaint at paragraph 106. s. Exhibit 21: report published by Piper Sandler on Oct. 22, 2020, titled Downgrading To UW: Challenging Dynamics A Tough Byte To Swallow. This report is referenced in complaint at paragraphs 104-05, 114, and 141. t. Exhibit 22: press release and shareholder letter attached to and filed with the SEC on Form 8-K on Oct. 28, 2020. This Form 8-K is referenced in the complaint at paragraphs 107-08. 25. u. Exhibit 23: Dan Rayburn, An Update On TikTok's DIY CDN Strategy And The Impact On Third-Party CDNs, Seeking Alpha, Feb. 10, 2021. This article is referenced in the complaint at paragraphs 38, 113. Judge Hamilton grants the request for incorporation by reference given that the Plaintiff does not object, the documents were referenced in the complaint, and he does not dispute their authenticity. C. Opposed Exhibits The Defendants additionally request that the Court takes judicial notice of Exhibits 9, 24, 25, and 26 because they will aid the Court in ruling on the motion. They request judicial notice of SEC reports that are not referenced in the FAC. a. Exhibit 9: Copy of excerpts of a report issued by the Committee on Foreign Investment in the United States to Congress in July 2020, titled Committee on Foreign Investment in the United States Annual Report to Congress for Report Period: CY 2019. b. Exhibit 24: Press release and shareholder letter attached to Fastly's Form 8-K filed with the SEC on Feb. 17, 2021. c. Exhibit 25 is a compilation of copies of all Form 4 Statements of Changes in Beneficial Ownership for Joshua Bixby, filed with the SEC between May 6, 2020 and Oct. 14, 2020. d. Exhibit 26 is a compilation of copies of all Form 4 Statements of Changes in Beneficial Ownership for Adriel Lares, filed with the SEC between May 6, 2020 and Oct. 14, 2020. Judge Hamilton grants the Defendants' request to take judicial notice of Exhibit 9, excerpts from the CFIUS report, because it is not subject to reasonable dispute. She grants the Defendants' request to take judicial notice of Exhibit 24 because the SEC-filed document is not subject to reasonable dispute, and it is relevant to establish Fastly's reported revenues as well as consideration of whether defendants misled investors. Lastly, Judge Hamilton grants the Defendants' request to take judicial notice of Exhibits 25 and 26, noting that the Defendants' sales pursuant to 10b5-1 plans are not determinative on the issue of whether Bixby and Lares' sales were improper insider trades. II. Motion to Dismiss The Plaintiff alleges two causes of action: (1) violations of Section 10(b) of the Exchange Act and SEC Rule 10b-5 promulgated thereunder (against all the Defendants), and (2) violations of Section 20(a) of the Exchange Act (against the individual Defendants). To plead a claim under section 10(b) and Rule 10b-5, Plaintiffs must allege: (1) a material misrepresentation or omission; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance; (5) economic loss; and (6) loss causation." The Defendants do not argue that the Plaintiff failed to allege the following four elements: (1) the connection between the misrepresentations or omissions and the purchase or sale of a security, (2) reliance, (3) economic loss, or (4) loss causation. Judge Hamilton therefore does not address these elements. The Defendants contend that the Plaintiff failed to allege (1) material misrepresentations or omissions and (2) scienter. The parties initially discuss the adequacy of the Plaintiff's pleading from a visual perspective -- whether the Plaintiff's reproduction of the Defendants' statements and use of bold and italic font reflects the challenged portions of the statements to the reader. Judge Hamilton holds that the Defendants' points are well taken. She says, the Plaintiff's complaint relies heavily on bold and italic font without sufficient explanation of the meaning of such emphasis. It is difficult to understand which portions of the Defendants' statements the Plaintiff challenges as a result, especially where at least some of the emphasized text is not contested as false, such as "we generated $63 million in revenue." This practice diminishes the particularity of the Plaintiff's pleading, but this need not serve as the basis for dismissal of the complaint. The complaint will be dismissed on the merits. 1. Material misrepresentations or omissions Judge Hamilton finds that the Plaintiff's claim relies on the departure of TikTok from the Fastly CDN and TikTok's potential ban from the U.S. as facts contrasting the "good shape" suggested by defendants. But such statements, she says, are different than those found misleading in Quality Systems, 865 F.3d at 1143. Compared to the knowingly false statements at issue in that case, the Plaintiff does not establish that the Defendants here knew that TikTok was not in "good shape" at the time of those statements. Even in context, the Defendants' statements were not misleading because unlike Quality Systems, the allegedly concealed facts had not yet transpired. The statements generally referring to a number of customers are not actionable because they are vague assessments that "represent the 'feel good' speak that characterizes 'non-actionable puffing.'" The Plaintiff fails to plead their falsity. 2. Scienter To demonstrate scienter, a complaint must allege that the Defendants made "false or misleading statements either intentionally or with deliberate recklessness." In addition to the particularity considered necessary for falsity, "the Supreme Court has emphasized that courts 'must review all the allegations holistically' when determining whether scienter has been sufficiently pled. The relevant inquiry is 'whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.'" Among other things, Judge Hamilton holds that the facts do not give rise to an inference of scienter that is at least as compelling as the inference of an honest mistake. At no point in his pleading does the Plaintiff establish that the Defendants knew their representations to investors were false. At the beginning of the Class Period, Fastly identified and shared the risks that could cause the company to lose business. These risk disclosures included that the U.S. government could pass laws impacting Fastly's substantial revenues from international customers, especially those in China. The Plaintiff fails to allege a single fact suggesting either Bixby or Lares believed there was any real risk President Trump would ban TikTok prior to August. When the regulatory situation changed in August, Fastly disclosed TikTok as a significant customer. THe Plaintiff fails to establish that defendants knew they could not backfill lost TikTok business as they opined in August. The Defendants subsequently announced their expectation that Fastly would miss its earlier revenue projections and withdrew its 2020 guidance, before its third quarter results were finalized and before it was obligated to so announce. As the Defendants offer, "Fastly consistently went to the market with information as it became aware, and sooner than required." The Plaintiff's theory of scienter relies on the Defendants' withholding of key information regarding the risks faced by and posed by TikTok, but the Plaintiff does not establish that they ever had that information. Therefore, there are insufficient allegations to support a finding of scienter. 3. Second Cause of Action - Section 20 Congress established liability in Section 20(a) for "every person who, directly or indirectly, controls any person liable" for violations of the securities laws. o establish a prima facie case under Section 20(a), a plaintiff must prove: (1) "a primary violation of federal securities law;" and (2) "that the defendant exercised actual power or control over the primary violator." Because the Plaintiff has failed to plead a primary securities law violation, Judge Hamilton holds that the Plaintiff has also failed to plead a violation of Section 20(a). Conclusion For the foregoing reasons, including the Plaintiff's failure to plead the falsity of defendants' representations or scienter, Judge Hamilton grants the Defendants' request for judicial notice as detailed. She granted the Defendants' motion to dismiss the Plaintiff's amended complaint with leave to amend. The Plaintiff will have 28 days from the date of the Order to file a second amended complaint to cure the deficiencies noted in the Order. No new claims or parties may be added without leave of court or the agreement of all parties. Upon the filing of any amended complaint, the Plaintiff must also file a redline clearly demarcating its changes from the existing complaint. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/2p84perp from Leagle.com. FCA US LLC: Tavarez Sues Over Non-Blind Friendly Website -------------------------------------------------------- Victoriano Tavarez, individually and on behalf of all others similarly situated, Plaintiff, v. FCA US LLC, Defendant, Case No. 21-cv-09825 (S.D. N.Y., November 23, 2021), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act and New York City Human Rights Law. FCA US LLC designs, engineers, manufactures and sells vehicles under the Jeep and Chrysler brands. Tavarez is legally blind and claims that Defendant's website, www.jeep.com, cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Joseph H. Mizrahi, Esq. William J. Downes, Esq. 200 Vesey Street, 24th Floor New York, NY 10281 Telephone: (212) 595-6200 Fax: (212) 595-9700 Email: wdownes@mizrahikroub.com FIRSTENERGY CORP: Court Vacates Class Cert. Order in Smith Suit --------------------------------------------------------------- In the cases, JACOB SMITH, Plaintiff v. FIRSTENERGY CORP. AND FIRSTENERGY SERVICE CO., Defendants. BRIAN HUDOCK AND CAMEO COUNTERTOPS, INC., Plaintiff v. FIRSTENERGY CORP., et al., Defendants, JAMES BULDAS, Plaintiff v. FIRSTENERGY CORP., et al., Defendants, Case Nos. 2:20-cv-3755, 2:20-cv-3954, Lead Case No. 2:20-cv-3987 (S.D. Ohio), Judge Edmund A. Sargus, Jr., of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted the Defendants' Motions to Reconsider or Vacate the Order Granting of Class Certification. Background In the summer of 2020, former Speaker of the Ohio House of Representatives Larry Householder and his political associates were indicted for a $60 million. On March 5, 2021, the Court issued a Scheduling Order that contained deadlines for the class certification briefing. The criminal complaint alleged that in exchange for hefty bribes from "Company A," Householder and members of his racketeering enterprise ("Householder Enterprise") worked to pass and uphold House Bill 6, a near billion-dollar nuclear power plant bailout for "Company A" and its affiliates. According to the Complaint, it is widely known that "Company A" is FirstEnergy. On July 27, 2020, the first of these three consolidated civil cases was filed in the Court. The Plaintiffs, individual and commercial ratepayers of FirstEnergy Corp., bring civil claims on behalf of a proposed class against Defendants, FirstEnergy Corp., FirstEnergy Service Co., and various individuals in decision-making roles at either entity. The Plaintiffs allege that as a result of FirstEnergy's racketeering alongside the Householder Enterprise, they have been injured by having to pay costs and fees set forth in HB 6. In October 2020, the Defendants moved to dismiss these consolidated cases for failure to state a claim upon which relief could be granted. After full briefing, the Court denied the request for dismissal. The following month, November 2020, the Defendants moved to stay the action "pending final resolution of the related criminal case that forms the basis of the Plaintiffs' claims." After full briefing, the Court denied the request to stay pending resolution of the criminal action. On March 5, 2021, the Court issued a Scheduling Order. On June 28, 2021, the Plaintiffs filed their Motion for Class Certification. On Nov. 9, 2021, the Court granted as unopposed the Motion for Class Certification. On Nov. 12, 2021, the Defendants filed their Motions to Reconsider or Vacate the Order Granting of Class Certification. The Plaintiffs filed a memorandum in opposition and the Defendants filed a consolidated reply. Discussion The Defendants request reconsideration of the Court's granting as unopposed the Plaintiffs' Motion for Class Certification. They argue: a. The FirstEnergy Defendants respectfully ask the Court to withdraw or vacate its order granting the Plaintiffs' motion for class certification because the Court issued it before Defendants' response to the motion was due. b. Under the Scheduling Order, Defendants' response is due 30 days after the transcripts from all depositions of the named Plaintiffs and the Plaintiffs' experts are available. Those depositions have not yet occurred; accordingly, the Defendants' deadline to respond has not yet passed. c. The Court was therefore mistaken when it understood the class certification motion to be unopposed. The motion is very much opposed, and the FirstEnergy Defendants have a right to submit their written opposition and accompanying materials by the deadline set forth in the Scheduling Order. The Plaintiff responds, inter alia, that the parties modified the Scheduling Order without the Court's permission, even though they suggested twice that the Defendants should request a conference with the Court regarding the deadlines. The Plaintiffs conclude that because the Defendants are in violation of the Court's Scheduling Order, the Court should deny their request to reconsider its class certification order. The Defendants reply that the parties never agreed to any such modification of the Scheduling Order, and FirstEnergy would never purport to alter a deadline for a court filing without the Court's express approval. Rather, the deadline remains the same as it always was, as set forth in the Scheduling Order: 30 days after the transcripts from all depositions of the named Plaintiffs and the Plaintiffs' experts are available. Judge Sargus, however, disagrees. He opines that the case was filed nearly a year and a half ago and the Scheduling Order affecting class certification was issued nine months ago. The parties have been in violation of the Scheduling Order for nearly six months. While the Court denied the Defendants' previous motion to stay this case, the parties' conduct is essentially a de facto stay. Accordingly, the Defendants do not, as they contend, "have a right to submit their written opposition." Nevertheless, the Court endeavors, whenever possible, to decide issues on the merits. Thus, even though the Defendants are in violation of the Court's order, Judge Sargus will grant their request for reconsideration, vacate the decision certifying this case as a class action, and provide them the opportunity to respond to the motion for class certification. Disposition For the reasons he set forth, Judge Sargus granted the Defendants' Motions for Reconsideration: (ECF Nos. 81, 82, 83 in Case No. 2:20-cv-3987); (ECF Nos. 84, 85, 86 in Case No. 2:20-cv-3954); and (ECF Nos. 78, 79, 80 in Case No. 2:20-cv-3755). He vacated the decision granting class certification (ECF No. 77 in Case No. 2:20-cv-3987); (ECF No. 79 in Case No. 2:20-cv-3954); and (ECF No. 73 in Case No. 2:20-cv-3755). The Court will issue a scheduling order forthwith. A full-text copy of the Court's Nov. 19, 2021 Opinion & Order is available at https://tinyurl.com/9y68tpht from Leagle.com. FLORIDA INSURANCE: Camunas TCPA Suit Removed to S.D. Florida ------------------------------------------------------------ The case styled ROLANDO CAMUNAS, individually and on behalf of all others similarly situated v. FLORIDA INSURANCE SERVICES, INC., d/b/a SENIOR LIFE SERVICES, was removed from the Circuit Court of the Nineteenth Judicial Circuit in and for Indian River County, Florida, to the U.S. District Court for the Southern District of Florida on November 29, 2021. The Clerk of Court for the Southern District of Florida assigned Case No. 0:21-cv-62412 to the proceeding. The case arises from the Defendant's alleged violation of the Telephone Consumer Protection Act by placing telemarketing calls to the Plaintiff's cellular phone number without prior express consent. Florida Insurance Services, Inc., doing business as Senior Life Services, is an insurance agency in Vero Beach, Florida. [BN] The Defendant is represented by: Jeffrey A. Backman, Esq. Roy Taub, Esq. 200 E. Broward Blvd., Suite 1800 Ft. Lauderdale, FL 33301 Telephone: (954) 491-1120 E-mail: jeffrey.backman@gmlaw.com roy.taub@gmlaw.com FORWARD AIR CORP: Garcia Sues Over Data Breach ---------------------------------------------- Mario Garcia, on behalf of himself and all others similarly situated, Plaintiffs, v. Forward Air Corporation, Defendant, Case No. 21-cv-00180 (E.D. Tenn., November 22, 2021) seeks injunctive and other equitable relief for violation of California's Consumer Privacy Act and resulting from the failure to properly secure and safeguard personal identifiable information and protected health information that Forward Air acquired from or created for its employees, including without limitation, names, addresses, dates of birth, patient identification numbers, Social Security numbers, driver's license/state ID numbers, passport numbers, credit/debit card information and financial account information. Forward Air is a provider of ground transportation and related logistics services to the North American air freight and expedited market. On December 15, 2020, Forward Air's computer systems was breached involving ransomware, allowing hackers unauthorized access to its computer systems in November and early December 2020, including unauthorized access to information about more than 40,655 current or former employees including Garcia. [BN] Plaintiff is represented by: Micah S. Adkins, Esq. THE ADKINS FIRM, P.C. 1025 Westhaven Blvd., Suite 220 Franklin, TN 37064 Tel: (615) 370-9659 Fax: (205) 208.9632 Email: MicahAdkins@ItsYourCreditReport.com - and - Jean S. Martin, Esq. Francesca Kester, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Tel: (813) 559-4908 Email: jeanmartin@forthepeople.com fkester@forthepeople.com GBC BUSINESS: Mitchell Sues Over Transmission of Unwanted Robocalls ------------------------------------------------------------------- STEVE MITCHELL, individually and on behalf of all others similarly situated, Plaintiff v. GBC BUSINESS GROUP, LLC, Defendant, Case No. CACE-21-021144 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty., November 29, 2021) is a class action against the Defendant for violation of the Telephone Consumer Protection Act. The case arises from the Defendant's practice of transmitting artificial or prerecorded voice calls to the telephone numbers of the Plaintiff and Class members in an attempt to promote its products or services without obtaining prior express written consent. As a result of the Defendant's alleged misconduct, the Plaintiff and other consumers suffered actual harm. GBC Business Group, LLC is a call center outsourcing company, headquartered in Wilmington, Delaware. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com GBG SEAN JOHN: Weekes Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against GBG Sean John LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. GBG Sean John LLC, Case No. 1:21-cv-10223 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. GBG Sean John LLC -- https://www.globalbrandsgroup.com/ -- offers kids men's & women's fashion footwear & accessories brand management.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com GEBRUEDER KNAUF: Bennett Sues Over Marketing of Defective Drywall ----------------------------------------------------------------- ELIZABETH BENNETT, et al., individually and on behalf of all others similarly situated, Plaintiffs v. GEBRUEDER KNAUF VERWALTUNGSGESELLSCHAFT, KG; KNAUF INTERNATIONAL GMBH; KNAUF INSULATION GMBH; KNAUF UK GMBH; KNAUF AMF GMBH & CO., KG; KNAUF DO BRASIL LTD.; PT KNAUF GYPSUM INDONESIA; KNAUF GIPS KG; KNAUF PLASTERBOARD TIANJIN CO., LTD.; KNAUF PLASTERBOARD WUHU, CO., LTD; GUANGDONG KNAUF NEW BUILDING MATERIAL PRODUCTS CO., LTD., Defendants, Case No. 1:21-cv-24164-RNS (N.D. Ala., November 30, 2021) is a class action against the Defendants for alleged negligence, negligence per se, strict liability, breach of express and/or implied warranty, redhibition, private nuisance, negligent discharge of a corrosive substance, unjust enrichment, violations of the Louisiana Products Liability Act and Consumer Protectional Acts, and equitable and injunctive relief and medical monitoring. The Plaintiffs bring this suit on behalf of themselves and similarly situated owners and residents of real property containing defective Chinese manufactured drywall was designed, manufactured, imported, exported, distributed, delivered, supplied, inspected, marketed, sold and/or installed by the Defendants. The Defendants breached their duties to the Plaintiffs and Class members by failing to warn about the defective nature of the drywall. The Defendants, through the exercise of reasonable care, knew or should have known the nature of the defective drywall and the adverse effects that it could have on the homes and bodies of the Plaintiffs and Class members, added the Plaintiff. Gebrueder Knauf Verwaltungsgesellschaft, KG is an investment holding company doing business in the U.S. Knauf International GmbH is a provider of building materials based in Iphofen, Germany. Knauf Insulation GmbH is a manufacturer of insulation products, with a principal place of business in Shelbyville, Indiana. Knauf UK GmbH is a manufacturer of insulation and building products based in Sittingbourne, England. Knauf AMF GmbH & Co., KG is a manufacturer of insulation and building products based in Grafenau, Germany. Knauf Do Brasil Ltd. is a manufacturer of insulation and building products based in Brazil. PT Knauf Gypsum Indonesia is a manufacturer of insulation and building products based in Indonesia. Knauf GIPS KG is a manufacturer of insulation and building products based in Iphofen, Germany. Knauf Plasterboard Tianjin Co., Ltd. is a manufacturer of gypsum drywall based in China. Knauf Plasterboard Wuhu, Co., Ltd. is a manufacturer of gypsum drywall based in China. Guangdong Knauf New Building Material Products Co., Ltd. is a manufacturer of building products based in China. [BN] The Plaintiffs are represented by: James V. Doyle, Jr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Pkwy., Suite 650 Birmingham, AL 35209 Telephone: (205) 533-9500 Facsimile: (205) 332-1362 E-mail: jimmy@doylefirm.com GEBRUEDER KNAUF: Dan Blonsky Files Suit in S.D. Florida ------------------------------------------------------- A class action lawsuit has been filed against Gebrueder Knauf Verwaltungsgesellschaft, KG. The case is styled as Dan Blonsky, on behalf of themselves and all others similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24165-RNS (S.D. Fla., Nov. 29, 2021). The nature if suit is stated as Property Damage Product Liability. Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures building materials.[BN] The Plaintiff is represented by: James V. Doyle, Esq. DOYLE LAW FIRM, PC 201 Biscayne Blvd., 28th Floor Miami, FL 33131 Phone: (305) 677-3388 Fax: (844) 638-5812 Email: jim.doyle@doylefirm.com - and - James Victor Doyle, Jr., Esq. James Victor Doyle, Sr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Phone: (205) 533-9500 Email: jimmy@doylefirm.com GEBRUEDER KNAUF: Ferrera Files Suit in S.D. Florida --------------------------------------------------- A class action lawsuit has been filed against Gebrueder Knauf Verwaltungsgesellschaft, KG. The case is styled as Elvis Ferrera, on behalf of themselves and all others similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24208-RNS (S.D. Fla., Nov. 29, 2021). The nature if suit is stated as Property Damage Product Liability. Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures building materials.[BN] The Plaintiff is represented by: James V. Doyle, Esq. DOYLE LAW FIRM, PC 201 Biscayne Blvd., 28th Floor Miami, FL 33131 Phone: (305) 677-3388 Fax: (844) 638-5812 Email: jim.doyle@doylefirm.com - and - James Victor Doyle, Jr., Esq. James Victor Doyle, Sr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Phone: (205) 533-9500 Email: jimmy@doylefirm.com GEBRUEDER KNAUF: Guzman Files Suit in S.D. Florida -------------------------------------------------- A class action lawsuit has been filed against Gebrueder Knauf Verwaltungsgesellschaft, KG. The case is styled as Santiago Guzman, on behalf of Skyline Glass, LLC, on behalf of itself and all others similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24202-RNS (S.D. Fla., Nov. 29, 2021). The nature if suit is stated as Property Damage Product Liability. Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures building materials.[BN] The Plaintiff is represented by: James V. Doyle, Esq. DOYLE LAW FIRM, PC 201 Biscayne Blvd., 28th Floor Miami, FL 33131 Phone: (305) 677-3388 Fax: (844) 638-5812 Email: jim.doyle@doylefirm.com - and - James Victor Doyle, Jr., Esq. James Victor Doyle, Sr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Phone: (205) 533-9500 Email: jimmy@doylefirm.com GEBRUEDER KNAUF: Isidro Calderon Files Suit in S.D. Florida ----------------------------------------------------------- A class action lawsuit has been filed against Gebrueder Knauf Verwaltungsgesellschaft, KG. The case is styled as Isidro Calderon, on behalf of themselves and all others similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24175-RNS (S.D. Fla., Nov. 29, 2021). The nature if suit is stated as Property Damage Product Liability. Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures building materials.[BN] The Plaintiff is represented by: James V. Doyle, Esq. DOYLE LAW FIRM, PC 201 Biscayne Blvd., 28th Floor Miami, FL 33131 Phone: (305) 677-3388 Fax: (844) 638-5812 Email: jim.doyle@doylefirm.com - and - James Victor Doyle, Jr., Esq. James Victor Doyle, Sr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Phone: (205) 533-9500 Email: jimmy@doylefirm.com GEBRUEDER KNAUF: Marfelia Calderon Files Suit in S.D. Florida ------------------------------------------------------------- A class action lawsuit has been filed against Gebrueder Knauf Verwaltungsgesellschaft, KG. The case is styled as Marfelia Calderon, on behalf of themselves and all others similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24216-RNS (S.D. Fla., Nov. 29, 2021). The nature if suit is stated as Property Damage Product Liability. Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures building materials.[BN] The Plaintiff is represented by: James V. Doyle, Esq. DOYLE LAW FIRM, PC 201 Biscayne Blvd., 28th Floor Miami, FL 33131 Phone: (305) 677-3388 Fax: (844) 638-5812 Email: jim.doyle@doylefirm.com - and - James Victor Doyle, Jr., Esq. James Victor Doyle, Sr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Phone: (205) 533-9500 Email: jimmy@doylefirm.com GEBRUEDER KNAUF: Mercedes Gaspard Files Suit in S.D. Florida ------------------------------------------------------------ A class action lawsuit has been filed against Gebrueder Knauf Verwaltungsgesellschaft, KG. The case is styled as Mercedes Gaspard, on behalf of themselves and all others similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24184-RNS (S.D. Fla., Nov. 29, 2021). The nature if suit is stated as Property Damage Product Liability. Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures building materials.[BN] The Plaintiff is represented by: James V. Doyle, Esq. DOYLE LAW FIRM, PC 201 Biscayne Blvd., 28th Floor Miami, FL 33131 Phone: (305) 677-3388 Fax: (844) 638-5812 Email: jim.doyle@doylefirm.com - and - James Victor Doyle, Jr., Esq. James Victor Doyle, Sr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Phone: (205) 533-9500 Email: jimmy@doylefirm.com GEBRUEDER KNAUF: Nicole Gaspard Files Suit in S.D. Florida ---------------------------------------------------------- A class action lawsuit has been filed against Gebrueder Knauf Verwaltungsgesellschaft, KG. The case is styled as Nicole Gaspard, on behalf of themselves and all others similarly situated v. Gebrueder Knauf Verwaltungsgesellschaft, KG, Case No. 1:21-cv-24186-RNS (S.D. Fla., Nov. 29, 2021). The nature if suit is stated as Property Damage Product Liability. Gebrueder Knauf KG -- https://www.knauf.com/en/ -- manufactures building materials.[BN] The Plaintiff is represented by: James V. Doyle, Esq. DOYLE LAW FIRM, PC 201 Biscayne Blvd., 28th Floor Miami, FL 33131 Phone: (305) 677-3388 Fax: (844) 638-5812 Email: jim.doyle@doylefirm.com - and - James Victor Doyle, Jr., Esq. James Victor Doyle, Sr., Esq. DOYLE LAW FIRM, PC 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Phone: (205) 533-9500 Email: jimmy@doylefirm.com GENERAL MOTORS: Faces Click Suit Over Automobile's Fuel Pump Defect ------------------------------------------------------------------- TYLER ALLEN CLICK, TROY BOWEN, BAILEY HENDERSON, ETHAN GALAN, LUIS G. OCHOA CABRERA, HOMERO MEDINA, MICHAEL GUIDROZ, SCOTT A. HINES, BRYAN J. TOMLIN, and QUENTIN ALEXANDER, individually and on behalf of all others similarly situated, Plaintiffs v. GENERAL MOTORS LLC, Defendant, Case No. 2:21-cv-12761-LJM-APP (S.D. Tex., November 29, 2021) is a class action against the Defendant for fraud by omission/misrepresentation, unjust enrichment, breach of implied warranty of merchantability, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act and the Magnuson-Moss Warranty Act. The case arises from the Defendant's manufacturing, distributing, and marketing of diesel-tank automobiles equipped with Bosch-supplied CP4 high-pressure fuel injection pumps. The CP4 pump is not built to withstand the specifications for U.S. diesel fuel in terms of lubrication or water content, and it struggles to lift a volume of fuel sufficient to lubricate itself. As a result, the pump is forced to run dry and destroy itself as air bubbles allow metal to rub against metal. The defective CP4 pump starts damaging the vehicle's fuel injection system and engine immediately upon the vehicle's first use. The Defendant continues to market the Class vehicles based on superior durability, performance, and fuel efficiency, despite its knowledge that the Class vehicles are defective, incompatible with American diesel fuel, and will experience catastrophic and costly failure. The Plaintiffs and other Class members are seeking recovery for this manifested and immediately damaging defect, in addition to any and all consequential damages stemming therefrom, says the suit. General Motors LLC is an American multinational automotive manufacturing company headquartered in Detroit, Michigan. [BN] The Plaintiffs are represented by: Robert C. Hilliard, Esq. HILLIARD MARTINEZ GONZALES LLP 719 S. Shoreline Blvd. Corpus Christi, TX 78401 Telephone: (361) 882-1612 Facsimile: (361) 882-3015 E-mail: bobh@hmglawfirm.com - and – Rudy Gonzales, Jr., Esq. John B. Martinez, Esq. Marion Reilly, Esq. Bradford P. Klager, Esq. HILLIARD MARTINEZ GONZALES LLP 719 S. Shoreline Blvd. Corpus Christi, TX 78401 Telephone: (361) 882-1612 Facsimile: (361) 882-3015 E-mail: rudy@hmglawfirm.com john@hmglawfirm.com marion@hmglawfirm.com brad@hmglawfirm.com - and – T. Michael Morgan, Esq. MORGAN & MORGAN, P.A. 20 North Orange Ave., Ste. 1600 P.O. Box 4979 Orlando, FL 32801 Telephone: (407) 418-2081 Facsimile: (407) 245-3392 E-mail: mmorgan@forthepeople.com - and – Steve W. Berman, Esq. Sean R. Matt, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com sean@hbsslaw.com GEORGIA: Class Cert. Bid Filing Extended to March 28, 2022 ---------------------------------------------------------- In the class action lawsuit captioned as Delshone Thomas and Gwendolyn Cheney, v. Georgia Department of Community Health; and Caylee Noggle, in her official capacity as Commissioner of the Georgia Department of Community Health, Case No. 1:21-cv-02558-LMM (N.D. Ga.), the Hon. Judge Leigh Martin May entered an order granting plaintiffs' unopposed motion to extend deadline to file motion for class certification. The Plaintiffs' deadline to file their motion for class certification is extended through and including March 28, 2022, says Judge May. The Georgia Department of Community Health (DCH) is one of Georgia's four health agencies serving the state's growing population of over 10 million people. A copy of the Court's order dated Nov. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3piPXHT at no extra charge.[CC] GERALD HONDA: Simik Files FCRA Suit in S.D. Texas ------------------------------------------------- A class action lawsuit has been filed against Gerald Honda of Matteson. The case is styled as Wojciech Simik, individually, and on behalf of all others similarly situated v. Gerald Honda of Matteson, Case No. 1:21-cv-06347 (S.D. Tex., Nov. 29, 2021). The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. Gerald Honda of Matteson -- https://www.geraldhondamatteson.com/ -- is a Honda dealer in Matteson, Illinois.[BN] The Plaintiff is represented by: Mohammed Omar Badwan, Esq. Omar Tayseer Sulaiman, Esq. Victor Thomas Metroff, Esq. Marwan Rocco Daher, Esq. SULAIMAN LAW GROUP, LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (331) 307-7646 Fax: (630) 575-8188 Email: osulaiman@sulaimanlaw.com mbadwan@sulaimanlaw.com vmetroff@sulaimanlaw.com mdaher@sulaimanlaw.com GLASHAUS INC: Weekes Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Glashaus, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Glashaus, Inc., Case No. 1:21-cv-10230 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Glashaus Inc was founded in 1983. The Company line of business includes distributing construction materials.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com GLOSSLAB LLC: Crosson Files ADA Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Glosslab LLC. The case is styled as Aretha Crosson, individually and as the representative of a class of similarly situated persons v. Glosslab LLC, Case No. 1:21-cv-06645 (E.D.N.Y., Nov. 30, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Glosslab -- https://glosslab.com/ -- is a hygiene-first, membership-based NYC nail studio operator.[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 GOLDEN WEST: Butts Files Suit in Cal. Super. Ct. ------------------------------------------------ A class action lawsuit has been filed against Golden West Packaging Group, LLC, et al. The case is styled as Alex John Butts, on behalf of all others similarly situated v. Golden West Packaging Group, LLC, Snelling Staffing, LLC, Does 1-10, Case No. 34-2021-00311468-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Nov. 19, 2021). The case type is stated as "Other Employment - Unlimited Civil." Golden West Packaging Group -- https://goldenwestpackaging.com/ -- is a family of innovative businesses who provide packaging solutions that complement your brand.[BN] The Plaintiff is represented by: Kane Moon, Esq. MOON & YANG, APC 1055 W 7th St., Ste. 1880 Los Angeles, CA 90017-2529 Phone: 213-232-3128 Fax: 213-232-3125 Email: kane.moon@moonyanglaw.com GOLDMAN SACHS: Faces Chen Suit Over Alleged Inside Trading ---------------------------------------------------------- KAI CHEN, individually and on behalf of all others similarly situated, Plaintiff v. GOLDMAN SACHS GROUP INC.; and MORGAN STANLEY, Defendants, Case No. 1:21-cv-09564 (S.D.N.Y., Nov. 18, 2021) is an action on behalf of all those investors who purchased or otherwise acquired Tencent shares contemporaneously with the Defendants' unlawful trades from March 22, 2021 through and including March 29, 2021 (the "Class Period"), pursuant to Sections 20A, 10(b), and 20(a) of the Securities Exchange Act of 1934. The Plaintiff alleges in the complaint that the Defendant is engaged in the unlawful use of material non-public information. The Defendants collectively avoided billions in losses by selling shares of Tencent Music Entertainment Group ("Tencent" or the "Company"), a leading online music and audio entertainment platform in China, to the Plaintiff and other unsuspecting and unwitting public shareholders, after confidentiality learning that Archegos Capital Management ("Archegos"), a family office with $10 billion under management, failed to meet a margin call, requiring it to liquidate its position in the Company. The Defendants knew, or were reckless in not knowing, that they were prohibited from trading based on this confidential market-moving information, but traded anyway, disposing to the Plaintiff and other members of the Class their Tencent stock before the news about Archegos was announced and Tencent's shares plummeted. As a result, the Plaintiff and the Class have been damaged from the Defendants' violations of U.S. securities laws, says the suit. The Goldman Sachs Group, Inc., a bank holding company, is a global investment banking and securities firm specializing in investment banking, trading and principal investments, asset management and securities services. The Company provides services to corporations, financial institutions, governments, and high-net worth individuals.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. James M. LoPiano, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com jlopiano@pomlaw.com -and- Peretz Bronstein, Eq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 Facsimile: (212) 697-7296 Email: peretz@bgandg.com GPS INTERNATIONAL: Kerr Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- BILLY KERR, individually and on behalf of all others similarly situated v. GPS INTERNATIONAL, LLC, Case No. 1:21-cv-1140 (D.N.M., Nov. 30, 2021) seeks to recover unpaid overtime wages and other damages from GPS International under the Fair Labor Standards Act, the New Mexico Minimum Wage Act, and for unjust enrichment under New Mexico law. Mr. Kerr contends that he and the other workers like him were typically scheduled for at least 12-hour shifts, 7 days a week, and their hitches routinely lasted for weeks at a time. They often worked even more than that, but they were not paid overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA and the NMMWA, GPS improperly classified these workers as independent contractors and paid them a single day rate for all hours worked each day, Kerr adds. GPS specializes in servicing the oil and gas industry. GPS's clients are major oil and gas operating companies, multinational energy service companies, multinational engineering and construction companies and small businesses. GPS provides workers for field services, including well testing, flowback operators, flowback water transfer services.[BN] 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 GROUPE RENAULT: Faces Class Action Over Diesel Emissions Tests -------------------------------------------------------------- Jeffrey Clark at aviationanalysis.net reports that according to Auto Claims Foundation, it was recently found that Renault and Dacia brands use special programs to artificially reduce greenhouse gas emissions. "Under normal use, these cars emit up to sixteen times more nitrogen than what is legally permitted," says CEO Guido van Workkom. Deception According to him, Renault and Dacia were aware of this, but decided to keep it quiet about their customers. This misled them," said Van Workkom. They bought a defective product that did not comply with the law and paid a lot for it. In addition to the French Renault and the Romanian sister brand Dacia, the actions are also directed against the Dutch importer and Dutch car dealers of these brands. This relates to all diesel cars sold between September 1, 2009 and September 1, 2019. This is more than 150,000 in the Netherlands. Volkswagen The Volkswagen diesel cheating scandal surfaced in 2015. The German company then admitted that it had tampered with emissions tests on a large scale using cheating software, making diesel cars appear cleaner than they actually were. This has already cost the auto company several billions in fines and repair costs. In the years since, the Diesel Jet has expanded even more. In addition to Volkswagen, Daimler also used cheat programs, which are already costing the parent company of Mercedes-Benz in the United States billions of dollars. Various cases are also pending against Daimler in the Netherlands. So far Renault and Dacia have been added. Big names Last summer, a judge in the Stichting Car Claim case against Volkswagen, supplier Bosch, importer Boone and Dutch car dealers ruled that people and companies who bought diaphragm diesel engines were owed a total of hundreds of millions of euros in compensation. An appeal is still pending on this ruling. The Auto Claims Foundation was established in 2015 to financially compensate victims. The board is made up of big names, including Van Workkom (former director of ANWB), Fausto Pocar (former head of the International Criminal Tribunal for the former Yugoslavia) and Martin Osting (former National Ombudsman and former member of the State Council). [GN] HAMPTON INN: Fultz Sues Over Access Barriers to Disabled Persons ---------------------------------------------------------------- MARK FULTZ, individually and on behalf of all others similarly situated, Plaintiff v. HAMPTON INN AND SUITES, Defendant, Case No. 2021CP1005431 (S.C. Ct. Com. Pl, Charleston Cty., December 1, 2021) is a class action against the Defendant for violation of the Americans with Disabilities Act. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its hotel to be fully accessible to and independently usable by the Plaintiff and similarly situated disabled persons. The Plaintiff has encountered architectural barriers at the Defendant's property. The barriers to access at the property have endangered his safety. The Defendant has discriminated against the Plaintiff by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages and/or accommodations of the buildings, alleges the suit. Hampton Inn and Suites is a hotel operator located at 1104 Isle of Palms, Connector, Mt. Pleasant, South Carolina. [BN] The Plaintiff is represented by: Anthony J. Brady Jr., Esq. 1670-9 Springdale Drive Camden, SC 29020 Telephone: (561) 603-8387 E-mail: ladbrady@gmail.com HEALTH & HOSPITAL CORP: Crimans Sues Over Data Breach ----------------------------------------------------- Stacey Crimans, individually and on behalf of all others similarly situated, Plaintiff, v. Health & Hospital Corporation of Marion County, Defendant, Case No. 21-cv-02906, (S.D. Ind., November 23, 2021), seeks injunctive and other equitable relief for violation of the federal Health Information Portability and Accountability Act and state medical record protection acts and resulting from the failure to properly secure and safeguard personal identifiable information and protected health information that Forward Air acquired from or created for its employees, including without limitation, names, addresses, dates of birth, patient identification numbers, Social Security numbers, driver's license/state ID numbers, passport numbers, credit/debit card information and financial account information. Health & Hospital Corporation of Marion County operates as "Eskenazi Health," an essential health care system. On November 11, 2021, Eskenazi sent a form letter to its former and current patients, employees and providers throughout the country informing them that hackers had gained access to its networks on May 19, 2021. Crimans worked for Eskenazi Health in 2019. [BN] Plaintiff is represented by: Stuart A. Davidson, Esq. Bradley M. Beall, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Fax: (561) 750-3364 Email: sdavidson@rgrdlaw.com bbeall@rgrdlaw.com - and - Paolo C. Meireles, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Rd, Suite 285 Boca Raton, FL 33431 Telephone: (561) 447-8888 Email: pmeireles@shavitzlaw.com HEALTHCARE SERVICES: Bacon Sues Over Unpaid Overtime for Cooks -------------------------------------------------------------- RHONDA MARLEEN BACON, individually and on behalf of all others similarly situated, Plaintiff v. HEALTHCARE SERVICES GROUP, INC., Defendant, Case No. 1:21-cv-00300 (E.D. Tenn., December 1, 2021) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff was employed as a full-time cook at the Defendant's facility named Signature Healthcare of Cleveland located in Cleveland, Tennessee. Healthcare Services Group, Inc. is a provider of housekeeping, laundry, dining, and nutritional services, with its principal place of business located at Suite 300 3220 Tillman Drive, Bensalem, Pennsylvania. [BN] The Plaintiff is represented by: J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Robert E. Morelli, III, Esq. JACKSON, SHIELDS, YEISER, HOLT, OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com HENOCH ENTERPRISES: Sosa Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Henoch Enterprises, Inc. The case is styled as Yony Sosa, on behalf of himself and all other persons similarly situated v. Henoch Enterprises, Inc., Case No. 1:21-cv-10159 (S.D.N.Y., Nov. 30, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Henoch Enterprises, Inc. is in the Business Services, N.E.C. industry in New York City.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal HOUSING AUTHORITY: Faces Wells Wage-and-Hour Suit in W.D. Ky. ------------------------------------------------------------- SUSAN WELLS, individually and on behalf of all others similarly situated, Plaintiff v. HOUSING AUTHORITY OF MADISONVILLE, Defendant, Case No. 4:21-cv-00127-JHM-HBB (W.D. Ky., November 30, 2021) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek and failure to timely pay wages in violation of the Fair Labor Standards Act and the Kentucky Wages and Hours Act. The Plaintiff worked for the Defendant as a maintenance employee. Housing Authority of Madisonville is a government agency that operates and manages public housing in Madisonville, Kentucky. [BN] The Plaintiff is represented by: Mark N. Foster, Esq. LAW OFFICE OF MARK N. FOSTER, PLLC P.O. Box 869 Madisonville, KY 42431 Telephone: (270) 213-1303 E-mail: Mfoster@MarkNFoster.com HRB BRANDS: Molina Sues Over Antiperspirants' Benzene Content ------------------------------------------------------------- MARY MOLINA and CARLO GARCIA, individually and on behalf of all others similarly situated, Plaintiffs v. HRB BRANDS, LLC, HELEN OF TROY LTD., and IDELLE LABS, LTD., Defendants, Case No. 1:21-at-01078 (E.D. Cal., December 1, 2021) is a class action against the Defendants for violations of California's Consumer Legal Remedies Act, California's False Advertising Law, California's Unfair Competition Law, breach of express warranty, breach of implied warranty, and unjust enrichment. According to the complaint, the Defendants are engaged in false, deceptive, and misleading advertising, labeling, and marketing of Sure Unscented Aerosol antiperspirant and Brut Classic 24-Hour Protection aerosol antiperspirant products. The Defendants failed to disclose that the products contain benzene, a known human carcinogen. As a result of the Defendants' alleged misrepresentations, the Plaintiffs and Class members were injured in fact and lost money. Had they known the truth, they would not have purchased the products. HRB Brands, LLC is a consumer goods company, headquartered in Westport, Connecticut. Helen of Troy Ltd. is a multinational consumer goods company, headquartered in El Paso, Texas. Idelle Labs, Ltd. is a wholly-owned subsidiary of Helen of Troy Ltd., headquartered in El Paso, Texas. [BN] The Plaintiffs are represented by: Alex R. Straus, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 280 South Beverly Drive Beverly Hills, CA 90212 Telephone: (917) 471-1894 Facsimile: (310) 496-3176 E-mail: astraus@milberg.com - and – Nick Suciu, III, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 6905 Telegraph Rd., Suite 115 Bloomfield Hills, MI 48301 Telephone: (313) 303-3472 Facsimile: (865) 522-0049 - and – Jennifer Czeisler, Esq. Virginia Ann Whitener, Esq. Russell Busch, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 HUGEDOMAINS.COM: Contreras Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against HugeDomains.com LLC. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. HugeDomains.com LLC, Case No. 1:21-cv-10199 (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. HugeDomains -- https://www.hugedomains.com/ -- is the world leader in premium domains names.[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 IAS SERVICES: Faces Bradley Suit Over Claim Adjusters' Unpaid OT ---------------------------------------------------------------- NIKKI BRADLEY, individually and on behalf of all others similarly situated, Plaintiff v. IAS SERVICES GROUP, LLC, Defendant, Case No. 4:21-cv-03747 (S.D. Tex., November 16, 2021) brings this complaint to recover damages and other legal and equitable relief against the Defendant pursuant to the Fair Labor Standards Act. The Plaintiff has worked for the Defendant as claim adjuster for its Progressive Corp. account to adjust insurance claims made to Progressive. The Plaintiff asserts that she and other similarly situated claim adjusters routinely work in excess of 40 hours per workweek. Although they record their hours worked via the Defendant's timekeeping software called "Workday," the Defendant only pays them based on the that Progressive approves and deems "productive." As a result, the Plaintiff and other similarly situated claims adjusters were not properly compensated for all hours worked, including overtime at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per workweek, says the suit. IAS Services Group, LLC is an insurance claims adjusting company that contracts with insurance agencies to provide them with Claims Adjusters. [BN] The Plaintiff is represented by: Larry Taylor, Esq. Nicole Taylor, Esq. THE COCHRAN FIRM 2646 S Loop W Unit 305 Houston, TX 77054 Tel: (713) 843-3476 Fax: (214) 651-4261 E-mail: Ltaylor@CochranTexas.com Nicole.Taylor@CochranTexas.com - and – James A. Vagnini, Esq. Alexander M. White, Esq. VALLI KANE & VAGNINI LLP 600 Old Country Road, Suite 519 Garden City, NY 11530 Tel: (516) 203-7180 Fax: (516) 706-0248 E-mail: jvagnini@vkvlawyers.com awhite@vkvlawyers.com JJ FOOD MARKET: Flores Seeks Unpaid Overtime Wages, Payslips ------------------------------------------------------------ Jose Antonio Tatacoya Flores, on behalf of himself and all others similarly situated, Plaintiff, v. 153 J and J Food Market Corp. and Julian Ramos, Defendants, Case No. 21-cv-04779, (S.D. N.Y., November 24, 2021), seeks overtime wages, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act and New York labor laws. Defendants own, operate, or control a grocery store, located at 153 99th Street, New York, NY 10029 under the name "JJ Food Market Corp" where Flores worked as an hourly-paid cashier. He claims to have worked in excess of 40 hours per week, without appropriate overtime compensation for the hours that he worked and alleges that J&J failed to maintain accurate record-keeping of the hours worked and failed to pay him appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. [BN] Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, PC 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 JOHNSON & JOHNSON: Contreras Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Johnson & Johnson Consumer Inc. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. Johnson & Johnson Consumer Inc., Case No. 1:21-cv-10169 (S.D.N.Y., Nov. 30, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Johnson & Johnson Consumer Companies Inc. -- https://www.jnj.com/ -- engages in the research and development of 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 K&P FACILITIES: Cleaners Sue Over Unpaid Wages ---------------------------------------------- Fredy Luna Martinez, Jaime Lopez Cruz and Miguel Elescano, individually and on behalf of all those similarly situated, Plaintiff, v. K&P Facilities Maintenance Inc. and Carlos Espinoza, Defendants, Case No. 21-cv-09987, (S.D. N.Y., November 24, 2021), seeks to recover earned but unpaid wages, liquidated damages, liquidated and statutory damages pursuant to New York labor laws and the federal Fair Labor Standards Act, reasonable attorneys' fees, costs and interest, as well as declaratory relief for failure to comply with New York Labor Law, and wage notice and wage statement requirement violations. K&P Facilities Maintenance Inc. is a large-scale commercial cleaning company with major facilities in the New York metropolitan area as well as in neighboring states. Martinez worked at several of its job sites including Vassar Brothers Medical Center, Orange County Hospital, a hospital in Pennsylvania, medical offices in Goshen, NY and New Windsor, NY and K&P's own warehouse in Wappinger Falls. On July 2021, Martinez did not receive his owed wages and complained to Espinoza. He claims to have received multiple threatening messages from Espinoza, including threats of physical violence and threats of reprisals through complaints to law enforcement. Cruz was employed by K&P from approximately March 2021 to August 2021, working at least in two of its job sites including Orange County Hospital and a location in Pennsylvania. He typically worked between six and seven days per week and his shifts were at least seven hours in duration, but some days he worked as many as 16 hours straight. He claims to be never paid a premium rate for overtime hours nor an additional hour of pay when he worked split shifts or more than 10 hours in a day. Elescano was employed by Defendants from approximately March 2020 to April 2021. He worked at least two of K&P's job sites including Vassar Brother Medical Center and Orange County Hospital. He claims to have routinely worked in excess of 40 hours per week and often worked more than 10 hours in a day but was never paid a premium rate for his overtime hours and never paid an extra hour of pay for working more than ten hours in a day. [BN] Plaintiff is represented by: Robert McCreanor, Esq. LAW OFFICE OF ROBERT D. MCCREANOR, PLLC 245 Saw Mill River Road, Suite 106 Hawthorne, NY 10532 Tel: (845) 202 1833 Email: rmccreanor@rdmclegal.com - and - Patricia Kakalec, Esq. KAKALEC LAW PLLC 195 Montague Street, 14th Floor Brooklyn, NY 11201 Tel: (212) 705-8730 Email: patricia@kakaleclaw.com KASHI SALES: Faces Hoffman Suit Over Mislabeled Breakfast Bars -------------------------------------------------------------- PETER HOFFMANN, individually and on behalf of all others similarly situated, Plaintiff v. KASHI SALES, L.L.C., Defendant, Case No. 7:21-cv-09642 (S.D.N.Y., Nov. 21, 2021) alleges that the Defendant mislabeled its Ripe Strawberry Soft Baked Breakfast Bars under the Kashi brand. According to the complaint, the front label shows a bar with bright red filling, a background of various shades of red, defendant's logo with a swaying stalk of wheat, the statements, "Ripe Strawberry, 3g Fiber," "Made with Wildflower Honey," and "10g Whole Grains," and a seal indicating "Non-GMO Project Verified." The back of the package shows a similar red background, two fresh, ripe strawberries, a smattering of freshly harvested oats, the statements, "Simply Delicious," and Delightfully Nutritious,". The representations are allegedly misleading because they give consumers the impression the fruit filling contains a greater relative and absolute amount of strawberry and honey ingredients than it does. Had the Plaintiff and proposed class members known the truth, they would not have bought the Product or would have paid less for it. The Product is sold for a price premium compared to other similar products, no less than approximately $4.59 for six 1.2 OZ (35g), a higher price than it would otherwise be sold for, absent the misleading representations and omissions, added the suit. KASHI SALES, L.L.C. produces healthy, whole-grain foods such as breakfast cereals, frozen dinners, and granola bars. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 409 Great Neck NY 11021 Telephone: (516) 268-7080 Email: spencer@spencersheehan.com KAYEM FOODS: Rodriguez Files ADA Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Kayem Foods, Inc. The case is styled as Angel Rodriguez, individually and as the representative of a class of similarly situated persons v. Kayem Foods, Inc., Case No. 1:21-cv-06616 (E.D.N.Y., Nov. 29, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kayem Foods -- https://www.kayem.com/ -- is a family owned and operated craft meat business that has been making New England's favorite franks, sausages and prepared meats in Chelsea, MA.[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 KAZ USA: Contreras Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Kaz USA, Inc. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. Kaz USA, Inc., Case No. 1:21-cv-10164 (S.D.N.Y., Nov. 30, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kaz, Inc. -- https://www.kaz.com/ -- is a Marlborough, Massachusetts-based manufacturer and distributor of health care 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 KELLOGG SALES: Class Settlement in Hadley Suit Wins Final Approval ------------------------------------------------------------------ In the case, STEPHEN HADLEY, et al., Plaintiffs v. KELLOGG SALES COMPANY, Defendant, Case No. 16-CV-04955-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, granted the Plaintiffs' Motion for Final Approval of Class Action Settlement, and Motion for Attorneys' Fees. Judge Koh has considered the Plaintiffs' Motion for Final Approval and Motion for Attorneys' Fees, including the Nov. 22, 2021 Supplemental Declaration in Support of the Plaintiffs' Motion for Final Approval, which includes an updated lodestar; the arguments at the Nov. 18, 2021 Final Approval Hearing; and the record in the case. The Court has jurisdiction over the subject matter of the Action and over the Parties, including all members of the following Settlement Class certified for settlement purposes in the Court's Preliminary Approval Order: "All persons in the United States who, between August 29, 2012 and May 1, 2020 (the "Class Period"), purchased in the United States, for household use and not for resale or distribution, any of the Class Products identified in the Settlement Agreement." For purposes of settlement, Judge Koh finally certified the Settlement Class. A total of three Settlement Class Members submitted timely and proper Requests for Exclusion, as reported in the declaration of the Class Administrator submitted to the Court. Judge Koh ordered that each of the individuals listed by the Class Administrator as having submitted a valid Request for Exclusion is excluded from the Settlement Class. Those individuals will not be bound by the Settlement Agreement, and neither will they be entitled to any of its benefits. Judge Koh finally approved the Settlement Agreement, the exhibits, and the Settlement contemplated thereby, and directed its consummation pursuant to its terms and conditions. She approved the Class Counsel's application for attorneys' fees and costs in the amount of $3.9 million in fees and $1,157,501 in costs; and approved service awards of $10,000 for Plaintiff Stephen Hadley, and $5,000 each for Plaintiffs Melody DiGregorio, Eric Fishon, Kerry Austin, and Nafeesha Madyun. The Settlement Agreement provides for the Class Counsel's Fee Award to be paid before the time to appeal the Order has expired. If the Fee Award is voided or reduced on appeal, either directly or as a result of the final approval of the Settlement as a whole being vacated, overturned, reversed, or rendered void as a result of an appeal, the Class Counsel will within 30 days repay either to the Settlement Fund or to Kellogg the affected amount of the attorneys' fees and costs paid to the Class Counsel, in an amount proportionate to the distribution among the Class Counsel's firms, in accordance with the directions in the Settlement Agreement. By receiving any payments pursuant to the Settlement Agreement, The Law Office of Jack Fitzgerald, PC and Jackson & Foster, LLC and their shareholders, members, and/or partners submit to the jurisdiction of the Court for the enforcement of the reimbursement obligation set forth and in the Settlement Agreement. If the Class Counsel fails to timely repay the attorneys' fees and costs that are owed under this provision, the Court will be entitled, upon application of Kellogg and notice to the Class Counsel, to summarily issue orders, including but not limited to judgments and attachment orders against each of Class Counsel. Judge Koh dismissed with prejudice, without costs to any party, except as expressly provided for in the Settlement Agreement, the Action, as defined in the Settlement Agreement. Upon the Effective Date as defined in the Settlement Agreement, the Plaintiffs and each and every one of the Settlement Class Members unconditionally, fully, and finally releases and forever discharges the Released Parties from the Released Claims. The Settlement Agreement and any and all negotiations, documents, and discussions associated with it will not be deemed or construed to be an admission or evidence of any violation of any statute, law, rule, regulation, or principle of common law or equity, or of any liability or wrongdoing by the Defendant, or the truth of any of the claims. Evidence relating to the Agreement will not be discoverable or admissible, directly or indirectly, in any way, whether in this Action or in any other action or proceeding, except for purposes of demonstrating, describing, implementing, or enforcing the terms and conditions of the Agreement, the Preliminary Approval Order, or the Order. Judge Koh's findings and rulings in the Order are made for the purposes of settlement only and may not be cited or otherwise used to support the certification of any contested class or subclass in any other action. Judge Koh determined that the Final Order complies in all respects with Federal Rule of Civil Procedure 65(d)(1). Without affecting the finality of the Judgment, the Court reserves jurisdiction over the implementation, administration, and enforcement of the Judgment and the Agreement and all matters ancillary to the same. Within 21 days after the distribution of the settlement funds to the Class Members, the parties should file a Post-Distribution Accounting in accordance with the Northern District of California's Procedural Guidance for Class Action Settlements. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/wj5w2vap from Leagle.com. KELLOGG SALES: N.D. California Enters Final Judgment in Hadley Suit ------------------------------------------------------------------- Judge Lucy J. Koh of the U.S. District Court for the Northern District of California, San Jose Division, entered Judgment in the case, STEPHEN HADLEY, et al., Plaintiffs v. KELLOGG SALES COMPANY, Defendant, Case No. 16-CV-04955-LHK (N.D. Cal.). On Nov. 23, 2021, she granted the Plaintiffs' Motion for Final Approval of Class Action Settlement and Plaintiffs' Motion for Attorneys' Fees. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/yc7s6mf8 from Leagle.com. KIRKLAND'S STORES: Ct. Modifies August 10, 2021 Scheduling Order ---------------------------------------------------------------- In the class action lawsuit captioned as ARIANA MILES, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, v. KIRKLAND'S STORES, INC., Case No. 5:18-cv-01559-JWH-SHK (C.D. Cal.), the Hon. Judge John W. Holcomb entered an order modifying its August 10, 2021 Scheduling Order as follows: -- All outstanding written discovery response deadlines are continued until 30 calendar days after the court enters an order on Plaintiff's Motion for Class Certification; -- Hearing on Plaintiff's certification motion: January 14, 2022, at 9:00 a.m.; -- Case Management Conference: February 11, 2022, at 11:00 a.m., at which time the Court will set deadlines for the following: -- Expert Disclosure (initial) -- Non-Expert Discovery Cutoff -- Expert Disclosure (rebuttal) -- Expert Discovery Cutoff -- Deadline for hearing non-discovery motions -- Hearing on Motions in Limine -- Pretrial conference -- Trial Kirkland's Stores operates as a home furnishing store. A copy of the Court's order dated Nov. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3rmuJf7 at no extra charge.[CC] KMD PARTNERS: Bradford Files FCRA Suit in S.D. Texas ---------------------------------------------------- A class action lawsuit has been filed against KMD Partners, LLC. The case is styled as Radley Bradford, individually, and on behalf of all others similarly situated v. KMD Partners, LLC doing business as: CreditNinja, Case No. 4:21-cv-03881 (S.D. Tex., Nov. 29, 2021). The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. Partners, LLC doing business as CreditNinja -- https://www.creditninja.com/ -- offers personal installment loans to borrowers in need.[BN] The Plaintiff is represented by: Jennifer Ann McLaughlin Filipiak, Esq. Marwan Rocco Daher, Esq. Omar Tayseer Sulaiman, Esq. Victor Thomas Metroff, Esq. Mohammed Omar Badwan, Esq. SULAIMAN LAW GROUP, LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (331) 307-7646 Fax: (630) 575-8188 Email: jennifer.a.filipiak@gmail.com mdaher@sulaimanlaw.com osulaiman@sulaimanlaw.com vmetroff@sulaimanlaw.com mbadwan@sulaimanlaw.com KONINKLIJKE PHILIPS: Mallory Files Suit in W.D. Pennsylvania ------------------------------------------------------------ A class action lawsuit has been filed against Koninklijke Philips N.V., et al. The case is styled as Carol Ann Mallory, individually and on behalf of himself and all others similarly situated v. Koninklijke Philips N.V., Philips North America LLC, Philips RS North America LLC, Case No. 2:21-cv-01741-JFC (W.D. Pa., Nov. 30, 2021). The nature of suit is stated as Personal Injury: Health Care/Pharmaceutical Personal Injury Product Liability. Koninklijke Philips N.V. -- https://www.philips.com/global -- is a Dutch multinational conglomerate corporation that was founded in Eindhoven.[BN] The Plaintiff is represented by: Arthur H. Stroyd, Jr., Esq. DEL SOLE CAVANAUGH STROYD LLC 3 PPG Place, Suite 600 Pittsburgh, PA 15222 Phone: (412) 261-2172 Fax: (412) 261-2110 Email: astroyd@dscslaw.com KROGER CO: Walker Files Suit in Cal. Super. Ct. ----------------------------------------------- A class action lawsuit has been filed against The Kroger Co., et al. The case is styled as Sandra Walker, an individual, on behalf of herself and all others similarly situated v. The Kroger Co., a foreign corporation, Does 1 through 100, Inclusive, Case No. CGC21596857 (Cal. Super. Ct., San Francisco Cty., Nov. 30, 2021). The case type is stated as "Business Tort." The Kroger Company, or simply Kroger -- https://www.thekrogerco.com/ -- is an American retail company founded by Bernard Kroger in 1883 in Cincinnati, Ohio.[BN] The Plaintiff is represented by: Mike Arias, Esq. ARIAS SANGUINETTI WANG & TORRIJOS LLP 6701 Center Dr. W., Ste. 1400 Los Angeles, CA 90045-7504 Phone: 310-844-9696 Fax: 310-861-0168 Email: mike@aswtlawyers.com LANDMARK INFRASTRUCTURE: Proposed Merger Lacks Info, Coffman Says ----------------------------------------------------------------- CATHERINE COFFMAN, individually and on behalf of all others similarly situated, Plaintiff v. LANDMARK INFRASTRUCTURE PARTNERS LP; ARTHUR P. BREAZY JR.; KEITH BENSON; THOMAS CAREY WHITE, III; GERALD A. TYWONIUK; STEVEN SONNENSTEIN; and SADIQ MALIK, Defendants, Case No. 2:21-cv-09055 (C.D. Cal., Nov. 18, 2021) is a class action suit against Landmark Infrastructure Partners LP ("Landmark" or the "Partnership") and the members of the Board of Directors of Landmark's general partner, Landmark Infrastructure Partners GP LLC (the "GP") (the "Board" or the "Individual Defendants") for their violations of the Securities Exchange Act of 1934 (the "Exchange Act"), seeking to enjoin the vote on a proposed transaction, pursuant to which Landmark will be acquired by Landmark Dividend LLC ("LD") through its affiliates LM Infra Acquisition Company, LLC ("LM Infra"), LM DV Infrastructure, LLC ("LM DV Infra"), Digital LD MergerCo LLC ("Merger Sub"), Digital LD MergerCo II LLC ("Merger Sub II", and together with LM DV Infra, LM Infra and Merger Sub, the "Buyer Parties") (the "Proposed Transaction"). According to the complaint, on August 23, 2021, Landmark issued a press release announcing that it had entered into a Transaction Agreement dated August 21, 2021 (the "Transaction Agreement") to sell Landmark to LD. Under the terms of the Transaction Agreement, Landmark unitholders will receive $16.50 in cash for each Landmark common unit they own. The Proposed Transaction is valued at approximately $1 billion. On October 26, 2021, Landmark filed a Schedule 14A Definitive Proxy Statement (the "Proxy Statement") with the SEC. The Proxy Statement, which recommends that Landmark unitholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things, the financial projections for Landmark and the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by the Conflicts Committee of the Board's ("Conflicts Committee") financial advisor, Evercore Group L.L.C. ("Evercore"). The Defendants authorized the issuance of the false and misleading Proxy Statement in violation of the Exchange Act, added the suit. Unless remedied, Landmark's public unitholders will be irreparably harmed because the Proxy Statement's alleged material misrepresentations and omissions prevent them from making a sufficiently informed voting decision on the Proposed Transaction. LANDMARK INFRASTRUCTURE PARTNERS LP is a special purpose entity of Landmark. The Company acquires, owns and manages a portfolio of real property interests that are leased to companies in the wireless communication, outdoor advertising and renewable power generation industries. [BN] The Plaintiff is represented by: Joel E. Elkins, Esq. WEISSLAW LLP 611 Wilshire Blvd., Suite 808 Los Angeles, CA 90017 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 -and- Richard A. Acocelli, Esq. WEISSLAW LLP 305 Broadway, 7th Floor New York, NY 10007 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 LANDSEA HOMES: Green Sues Over Unpaid Minimum, Overtime Wages ------------------------------------------------------------- Jennifer Ann Green, individually, and on behalf of all others similarly situated v. LANDSEA HOMES CORPORATION, a Delaware corporation; and DOES 1 through 10, inclusive, Case No. 30-2021-01232212-CU-OE-CXC (Cal. Super. Ct., Orange Cty., Nov. 17, 2021), is brought against the Defendants for California Labor Code violations and unfair business practices stemming from the Defendants' failure to pay minimum wages, failure to pay overtime wages, failure to provide meal periods, failure to authorize and permit rest periods, failure to maintain accurate records of hours worked and meal periods, failure to timely pay all wages to terminated employees, failure to indemnify necessary business expenses, and failure to furnish accurate wage statements. The complaint alleges that the Defendants maintained a policy and practice of failing to pay Plaintiff and the Class the correct amount of overtime pay in compliance with California law. The Plaintiff and the Class earned non-discretionary bonuses, commissions, and other remuneration. The Defendants, however, failed to include all remuneration earned when determining the correct regular rate of pay. As a result, the Defendants failed to pay the correct overtime rate of pay, double-time rate of pay, meal premium rate of pay, and sick day rate of pay, says the complaint. The Plaintiff is a California resident that worked for the Defendants in the County of Orange, State of California, as a sales counsellor from July 2020 to July 2021. The Defendants own/owned and operate/operated an industry, business, and establishment within the State of California, including Orange County.[BN] The Plaintiff is represented by: Kane Moon, Esq. Allen Feghali, Esq. Enzo Nabiev, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Phone: (213) 232-3128 Facsimile: (213) 232-3125 Email: kane.moon@moonyanglaw.com allen.feghali@moonyanglaw.com enzo.nabiev@moonyanglaw.com LE-VEL: Weekes Files ADA Suit in S.D. New York ---------------------------------------------- A class action lawsuit has been filed against Le-Vel. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Le-Vel, Case No. 1:21-cv-10217-VEC (S.D.N.Y., Dec. 1, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Le-Vel -- https://le-vel.com/ -- is the fastest growing health and wellness movement in the world.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com LEXINFINTECH HOLDINGS: Securities Suit Dismissed Without Prejudice ------------------------------------------------------------------ In the case, In re LEXINFINTECH HOLDINGS LTD. SECURITIES LITIGATION, Case No. 3:20-cv-1562-SI (D. Or.), Judge Michael H. Simon of the U.S. District Court for the District of Oregon granted Defendant Lexin's: (i) Motion to Dismiss, made pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure and Section 21D(b)(1) of the Private Securities Litigation Reform Act (PSLRA) of 1995; and (ii) Request for Incorporation by Reference and Judicial Notice. Background The putative class action securities fraud case is brought by shareholders (the Plaintiffs) of Defendant Lexin. The Plaintiffs allege that Lexin and certain of its current and former directors and officers, Jay Wenjie Xiao, Craig Yan Zeng, Keyi Chen, Yibo Shao, and Jared Yi Wu (Individual Defendants), made material misrepresentations or omissions that artificially inflated Lexin's stock price in violation the Securities Act of 1933 and the Securities Exchange Act of 1934. As alleged in the Amended Class Action Complaint, it is a putative class action on behalf of persons or entities who purchased or otherwise acquired publicly traded LexinFintech securities (a) pursuant or traceable to the Company's initial public offering conducted on Dec. 21, 2017 (the IPO); or (b) between Dec. 21, 2017 and Aug. 24, 2020, both dates inclusive (the Class Period). A putative class seeks to recover compensable damages caused by the Defendants' alleged violations of the Securities Act and the Exchange Act. The claims asserted in the action arise under Sections 11 and 15 of the Securities Act (15 U.S.C. Sections 77k and 77o) and Sections 10(b) and 20(a) of the Exchange Act (15 U.S.C. Sections 78j(b) and 78t(a)) and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commissioner (SEC) (17 C.F.R. Section 240.10b-5). The Amended Complaint alleges that Lexin, through its subsidiaries, purports to operate as an online consumer finance platform for young professionals in the People's Republic of China. Lexin operates Fenqile.com, a retail and online consumer finance platform that offers installment purchase loans, personal installment loans, and other loan products, as well as provides online direct sales with installment payment terms. Lexin also matches consumer loans with diversified funding sources, including individual investors on its Juzi Licai online investment platform and licensed financial institutions. its securities trade on the NASDAQ exchange under the ticker symbol "LX." Id. The Individual Defendants are or were officers or directors of Lexin during the Class Period. On Nov. 13, 2017, Lexin filed with the SEC a registration statement on Form F-1 for the IPO, which, after an amendment, was declared effective on Dec. 20, 2017. On Dec. 21, 2017, Lexin filed a prospectus for the IPO on Form 424B4, which incorporated and formed part of the registration statemen. The Offering Materials were used to sell to the investing public approximately 12 million Lexin American depository shares (ADSs),2 at $9 per ADS. On Aug. 25, 2020, Grizzly Research published a report describing a number of issues that it identified with Lexin's business practices. Specifically, the Grizzly report claimed that, among other things, Lexin: (i) reports artificially low delinquency rates; (ii) issued loans with usurious interest rates, (iii) used harassment to collect on outstanding loans, (iv) conducted undisclosed related party transactions, and (v) was still conducting direct peer-to-peer lending despite claiming otherwise. The day that the Grizzly report was released, Lexin's ADSs fell $0.47 per share, or 5.52%, to close at $8.04 per share on Aug. 25, 2020. The Plaintiffs are investors in Lexin, who allege that Lexin's Offering Materials were negligently prepared and, as a result, contained untrue statements of material fact or omitted to state other facts necessary to make the statements made not misleading and were not prepared in accordance with the rules and regulations governing its preparation. They additionally allege that, throughout the Class Period, the Defendants made materially false and misleading statements regarding Lexin's business, operational, and compliance policies. Before the Court is Defendant Lexin's Motion to Dismiss. Lexin alleges that the Plaintiffs fail to state a claim under both Section 10(b) of the Exchange Act and Section 11 of the Securities Act. Also before the Court is Defendant Lexin's request for judicial notice. Analysis A. Request for Incorporation by Reference and Judicial Notice Lexin requests that the Court takes judicial notice of six exhibits: (1) the Grizzly report, (2) a copy of Lexin's ADS stock price data from August 24, 2020, to March 19, 2021, (3) excerpts of Lexin's 2019 Form 20-F Annual Report, (4) excerpts of Lexin's 2018 Form 20-F Annual Report, (5) excerpts of Lexin's 2017 Form 20-F Annual Report, and (6) excerpts of Lexin's Form F-1 Registration Statement (all attached at ECF 36). It argues that each of these exhibits may be considered by the Court because each either is incorporated by reference in the Amended Complaint or is subject to judicial notice under Rule 201 of the Federal Rules of Evidence. The Plaintiffs do not specifically oppose Lexin's request. Additionally, they submit similar materials, including different excerpts of the same SEC filings, although the Plaintiffs do not specifically request that the Court take judicial notice of those materials. Those materials include excerpts of Lexin's 2017, 2018, and 2019 Form 20-F Annual Reports, the same documents from which different excerpts were submitted by Lexin, and the executed Sarbanes-Oxley Act (SOX) Certification by Principal Executive Officer for those same Forms 20-F. First, because virtually all of Lexin's factual allegations are based on information from the Grizzly report, Judge Simon finds it appropriate to take judicial notice of the existence and contents of the Grizzly report, but not the truth of its contents. Second, there does not appear to be any dispute as to the accuracy of the historic stock prices for which Lexin advocates judicial notice and, given the nature of the Plaintiffs' claims, Judge Simon finds it appropriate to take judicial notice of a copy of Lexin's stock price data during a specific date range (Exhibit 2). Lastly, Judge Simon finds that the various excerpts of Lexin's Forms 20-F contained in Exhibits 3-6 are incorporated by reference in the Amended Complaint. B. Section 10(b) Claims The Defendants argue that the Plaintiffs fail to allege a material misrepresentation or omission, scienter, and loss causation. 1. Alleged Misrepresentations and Omissions To state a claim under either Section 10(b) or Rule 10b-5, a plaintiff must plead with particularity that a defendant has made a material misrepresentation or omission, and such allegations are subject to the heightened pleading standards of both Rule 9(b) and the PSLRA. The Plaintiffs allege generally that the Defendants made material misstatements or omissions regarding the following five topics: a) growth metrics, b) usury and harassment, c) related-party transactions, d) delinquency rates, and e) peer-to-peer lending. Judge Simon finds that the Plaintiffs have not alleged any of the purported misstatements or omissions with sufficient particularity to state a claim under Section 10(b). 2. Scienter In evaluating scienter, courts must look at the complaint in its totality and not just the individual allegations of scienter. First, Judge Simon holds that the Plaintiffs have not, for the most part, made specific scienter allegations with respect to each individual alleged misstatement. Rather, they allege generally that "by virtue of their positions at Lexin, the Defendants had actual knowledge of the materially false and misleading statements and material omissions alleged herein" or, alternatively, that the Defendants "acted with reckless disregard for the truth in that they failed or refused to ascertain and disclose such facts as would reveal the materially false and misleading nature of the statements made, although such facts were readily available to" them. Those general, non-specific allegations do not give rise to a strong inference of scienter that is "as compelling as any opposing inference of nonfraudulent intent." Second, the Amended Complaint does not include particularized allegations that representations made in SOX certifications or GAAP violations give rise to inferences of scienter -- the Plaintiffs make those assertions for the first time in their Response to the Motion to Dismiss. This is insufficient to state a claim for relief. Third, Judge Simon opines that even if the Plaintiffs had adequately alleged in the Amended Complaint that the SOX certifications contained misrepresentations and that representations in SOX certifications gave rise to an inference of scienter, the Ninth Circuit, has previously rejected that argument. Similarly, even if the Plaintiffs had adequately alleged in the Amended Complaint that Defendants violated GAAP with respect to alleged related-party "transactions" and that such violations give rise to an inference of scienter, the Ninth Circuit has also rejected that argument. The Plaintiffs do not make any distinguishing arguments on either point. Neither alleged misrepresentations in SOX certifications nor GAAP violations are sufficient, standing alone, to give rise to an inference of scienter and so the Plaintiffs' newly-raised contentions, even if contained in the Amended Complaint, would be insufficient to show scienter. Finally, with respect to the remaining alleged misrepresentations, Judge Simon holds that the Plaintiffs have not pleaded sufficient facts to avail themselves of either exception to the general rule that a management position alone is insufficient to establish scienter. Notwithstanding his conclusion that the Plaintiffs have not met the required pleading standard with regard to any of the alleged misstatements, Judge Simon finds that none of those misstatements are so clearly false or so integral to the company's functioning that an inference of scienter is appropriate. 3. Loss Causation The Plaintiffs allege that the Grizzly report constitutes a "corrective disclosure" which "revealed new information to the market that has not yet been incorporated into the price," causing a decline in Lexin's stock price. Judge Simon concludes that even if the Grizzly report revealed new information that the market had not previously taken into account, it is not plausible that investors would perceive the Grizzly report as revealing the falsity of statements by Lexin and its officers and directors. The Plaintiffs have not alleged sufficient facts that would allow the Court to conclude otherwise. C. Section 11 Claims Section 11 of the Securities Act, 15 U.S.C. Section 77k, "gives purchasers of securities a right of action against an issuer or designated individuals, including securities underwriters, for any material misstatements or omissions in a registration statement." To prevail in a Section 11 action, "a plaintiff must prove '(1) that the registration statement contained an omission or misrepresentation, and (2) that the omission or misrepresentation was material, that is, it would have misled a reasonable investor about the nature of his or her investment.'" Judge Simon opines that the Plaintiffs' Section 11 claims are not barred by the statute of repose and turns now to the merits of those claims. He also finds that the Plaintiffs have not adequately alleged that the Offering Materials issued pursuant to Lexin's IPO were materially false or misleading. D. Sections 15 and 20(a) Claims Section 15 of the Securities Act and Section 20(a) of the Exchange Act permit causes of action against certain individuals based on violations of Section 11 of the Securities Act and Section 10(b) of the Exchange Act, respectively. In its Motion to Dismiss, Defendant Lexin notes that, to the best of its knowledge, the remaining Defendants -- individuals Xiao, Zeng, Chen, Shao, and Wu -- all live in China, have not been served with the Amended Complaint, and are not represented by counsel. Lexin clarifies that it brought the Motion to Dismiss on behalf of itself only but that because, in its view, the Amended Complaint fails to state a claim under either Section 11 of the Securities Act or Section 10(b) of the Exchange Act, the Plaintiffs' Section 15 and Section 20(a) claims must fail as well. In their response to the Motion to Dismiss, the Plaintiffs state that they are still attempting to serve the Individual Defendants, but do not respond to the Defendants' contention that, if their Section 11 and Section 10(b) claims fail, then their Section 15 and Section 20(a) claims necessarily do as well. Judge Simon opines that Lexin is correct that claims under both Section 15 and Section 20(a) require an underlying primary violation of the securities laws. He says, the Plaintiffs offer no other response than that they are attempting to serve the individual defendants. Thus, the Plaintiffs concede any argument that their Section 15 and Section 20 claims would not fail were their Section 11 and Section 10(b) claims dismissed. Based on the foregoing conclusions that the Plaintiffs' Section 10(b) and Section 11 claims must be dismissed, Judge Simon also concludes that the Plaintiffs' Section 15 and Section 20(a) claims will be dismissed as well. Conclusion Judge Simon granted Defendant Lexin's Request for Incorporation by Reference and Judicial Notice. He also granted without prejudice Defendant Lexin's Motion to Dismiss. The Plaintiffs may file an amended complaint within 30 days from the date of the Opinion and Order if the Plaintiffs believe they can cure the deficiencies identified therein. A full-text copy of the Court's Nov. 24, 2021 Opinion & Order is available at https://tinyurl.com/yckz92h5 from Leagle.com. Jeffrey S. Ratliff -- rgmrl500@gmail.com -- RANSOM, GILBERTSON, MARTIN, & RATLIFF, 5441 South Macadam Avenue, Suite 301, Portland, OR 97239; Phillip Kim -- pkim@rosenlegal.com -- THE ROSEN LAW FIRM PA, 275 Madison Avenue, 40th Floor, New York, NY 10016; Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Joseph Alexander Hood, II -- ahood@pomlaw.com -- and Tamar A. Weinrib, POMERANTZ LLP, 600 Third Avenue, 20th Floor, in New York, NY 10016, Of Attorneys for the Plaintiffs. Kasonni Marie Scales -- kasonni.scales@skadden.com -- Peter B. Morrison -- peter.morrison@skadden.com -- and Virginia F. Milstead -- virginia.milstead@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER AND FLOM LLP, 300 South Grand Avenue, Suite 3400, in Los Angeles, California 90071; Milo Petranovich, LANE POWELL PC, 601 SW Second Avenue, Suite 2100, Portland, OR 97204; Peter D. Hawkes, ANGELI LAW GROUP LLC, 121 SW Morrison St., Suite 400, in Portland, Oregon 97204, Of Attorneys for Defendant LexinFintech. LIGHTNING EMOTORS: Cohen Sues Over Alleged Stock Price Drop ----------------------------------------------------------- JUSTIN COHEN, Individually and On Behalf of All Others Similarly Situated v. LIGHTNING EMOTORS, INC., TIMOTHY R. REESER, TERESA P. COVINGTON, GIGACQUISITIONS3, LLC, GIGCAPITAL GLOBAL, AVI S. KATZ, RALUCA DINU, and GIGFOUNDERS, LLC, Case No. 1:21-cv-03215 (D. Colo., Dec. 1, 2021) is a federal securities class action brought on behalf of all purchasers of Lightning eMotors securities (the "Class") between December 10, 2020 and August 16, 2021, inclusive (the "Class Period"), seeking to pursue remedies under the Securities Exchange Act of 1934. Lightning eMotors began as GigCapital3, a blank check company formed by the Blank Check Sponsor Defendants. A blank check company is sometimes referred to as a special purpose acquisition vehicle, or "SPAC," and does not initially have any operations or business of its own. Rather, it raises money from investors in an initial public offering and then uses the proceeds from the offering to acquire a business or operational assets, usually from a private company that does not publicly report financial or operating results. As a result, investors in blank check companies rely on the skill, transparency and honesty of the blank check company's sponsor to spend the offering proceeds to acquire a fundamentally sound target company that offers attractive risk-adjusted returns for investors. On or about May 18, 2020, GigCapital3 completed its initial public offering, selling 20 million ownership units to investors at $10 per unit for gross proceeds of $200 million (the "IPO"). Each unit consisted of one share of common stock and three-fourths of one redeemable warrant. The IPO was sponsored by defendant GigAcquisitions3, a strategic advisory firm owned and controlled by defendant Katz, which in turn was managed by defendant GigCapital Global, an investment advisory group controlled by defendants Katz and Dinu. While GigCapital3 did not identify any target companies at the time of the IPO, the IPO offering materials stated that the Company planned to pursue an acquisition focused in the technology, media and telecommunications ("TMT") industry. The IPO offering materials claimed that GigCapital3's "management team's distinctive background and record of acquisition and operational success could have a significant impact on target businesses," and the management team's "significant hands-on experience helping TMT companies" would "optimize their existing and new growth initiatives." The IPO offering materials also stated that, utilizing the management team's "extensive experience" and "network of contacts," would "enhance stockholder value." On November 15, 2021, Lightning eMotors issued a release announcing the Company's financial results for the third quarter ended September 30, 2021. The release stated that Lightning eMotors had generated only $16.8 million in revenue for the first nine months of the year and was on track to generate only $4 million to $6 million more in revenue during the fourth quarter. Thus, even assuming the best case revenue scenario, Lightning eMotors would generate only 36% of the revenues purportedly "under firm purchase orders" prior to the Merger. The Company's net loss for the first nine months of the year totaled $123 million, nearly five times more than during the corresponding period in 2020. As of market close on November 22, 2021, the price of Lightning eMotors remained below $8 per share, over 50% below the Class Period high. As a result of the decline in the price of Lightning eMotors stock, investors have suffered millions of dollars in losses, says the suit. The Plaintiff purchased Lightning eMotors securities during the Class Period and has been damaged thereby. Lightning eMotors is an electric vehicle designer and manufacturer, providing complete electrification solutions for commercial fleets. Lightning eMotors common stock and warrants trade on the NYSE under the ticker symbol "ZEV" and "ZEV.WS," respectively. Prior to the Merger, Lightning eMotors was named GigCapital3, Inc. ("GigCapital3"), and its stock, warrants and ownership units traded under the symbols "GIK," "GIK.WS," and "GIK.U," respectively. The Individual Defendants are officers of the company.[BN] The Plaintiff is represented by: Jeffrey A. Berens, Esq. Michael I. Fistel, Esq. JOHNSON FISTEL, LLP 2373 Central Park Boulevard, Suite 100 Denver, CO 80238-2300 Telephone: (303) 861-1764 Facsimile: (303) 861-1764 E-mail: jeffb@johnsonfistel.com michaelf@johnsonfistel.com LOWE'S COMPANIES: Class Cert. Reply Deadlines in FLSA Suit Amended ------------------------------------------------------------------ In the class action lawsuit Re: Lowe's Companies, Inc., Fair Labor Standards Act (FLSA) and Wage and Hour Litigation, Case No. 5:20-md-02947 (W.D.N.C.), the Hon. Judge Judge David S. Cayer entered an order on Motion to amend/correct class certification deadlines as follows: -- All class certification reply briefs or brief(s) in opposition to decertificaton due by March 4, 2022 limited to 23 pages total. -- Daubert replies due by March 4, 2022 and limited to 8 pages. The suit alleges violation of the FLSA. Lowe's Companies, Inc., often shortened to Lowe's, is an American retail company specializing in home improvement. Headquartered in Mooresville, North Carolina, the company operates a chain of retail stores in the United States.[CC] M2 MANAGEMENT: Laborers Slam Misclassification, Seek Overtime Pay ----------------------------------------------------------------- Dwight McDonald, Christopher Atkins and Timothy Provost, individually and on behalf of all others similarly situated, v. M2 Management, Inc. and Michael P. Trainor, Defendant, Case No. 21-cv-06260, (N.D. Ill., November 22, 2021) seeks declaratory judgment, monetary damages, liquidated damages, costs and a reasonable attorneys' fees, as a result of failure to pay sufficient overtime wages under the Fair Labor Standards Act and overtime provisions of the Illinois Minimum Wage Law. Defendants own and operate an industrial and commercial project management and consulting corporation where it employed McDonald as a foreman, and Atkins and Provost as an industrial painters. They claim to have been allegedly misclassified as exempt from overtime, despite regularly working more than 40 hours per week. They also claim to be unpaid for their final weeks of work prior to termination. [BN] Plaintiff is represented by: Josh Sanford, Esq. Colby Qualls, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy., Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com colby@sanfordlawfirm.com MAGELLAN HEALTHCARE: Civil Rights Suit Removed to N.D. Illinois --------------------------------------------------------------- The case styled M.F., on behalf of P.L. and R.L., a minor, and S.D. and D.D., individually and on behalf of all others similarly situated v. MAGELLAN HEALTHCARE, INC., Case No. 1:20-cv-3928, was removed from the Circuit Court of Cook County, Illinois, County Department, to the U.S. District Court for the Northern District of Illinois on December 1, 2021. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:21-cv-06433 to the proceeding. The case arises from the Defendant's alleged violation of the Plaintiffs' constitutional rights to due process under Title 42 of the U.S. Code Section 1983 as well as their rights under federal and state mental health parity laws by denying coverage for certain behavioral health treatment provided to D.D. and R.L. on the basis that such treatment was not medically necessary as required by the Illinois Plan. Magellan Healthcare, Inc. is a provider of behavioral health and health management services, with its principal place of business in Maryland. [BN] The Defendant is represented by: Dan J. Hofmeister, Jr., Esq. Rebecca R. Hanson, Esq. Timothy R. Carwinski, Esq. REED SMITH LLP 10 S. Wacker Dr., 40th Floor Chicago, IL 60606 Telephone: (312) 207-1000 Facsimile: (312) 207-6400 - and – Lee E. Bains, Jr., Esq. John David Collins, Esq. Joshua R. Hess, Esq. MAYNARD COOPER & GALE, P.C. 1901 Sixth Ave. North, Suite 1700 Birmingham, AL 35203 Telephone: (205) 254-1000 Facsimile: (205) 254-1999 MASON COMPANIES: LeCompte Files Suit in W.D. Wisconsin ------------------------------------------------------ A class action lawsuit has been filed against Mason Companies, Inc. The case is styled as Connie LeCompte, individually and on behalf of all others similarly situated v. Mason Companies, Inc., Case No. 3:21-cv-00747 (W.D. Wis., Nov. 29, 2021). The nature if suit is stated as Other P.I. for Personal Injury. Mason Companies -- https://www.masoncompaniesinc.com/ -- is an Internet Retailer e-commerce and catalog company.[BN] The Plaintiff is represented by: Arun G. Ravindran, Esq. Frank Hedin, Esq. HEDIN HALL LLP 1395 Brickell Ave., Suite 1140 Miami, FL 33131 Phone: (305) 357-2107 Fax: (305) 200-8801 Email: fhedin@hedinhall.com MASON COMPANIES: Lloyd Files Suit in W.D. Wisconsin --------------------------------------------------- A class action lawsuit has been filed against Mason Companies, Inc. The case is styled as Carol Lloyd, individually and on behalf of all others similarly situated v. Mason Companies, Inc., Case No. 3:21-cv-00748 (W.D. Wis., Nov. 29, 2021). The nature if suit is stated as Other P.I. for Personal Injury. Mason Companies -- https://www.masoncompaniesinc.com/ -- is an Internet Retailer e-commerce and catalog company.[BN] The Plaintiff is represented by: Arun G. Ravindran, Esq. Frank Hedin, Esq. HEDIN HALL LLP 1395 Brickell Ave., Suite 1140 Miami, FL 33131 Phone: (305) 357-2107 Fax: (305) 200-8801 Email: fhedin@hedinhall.com MASON COMPANIES: Ross Files Suit in W.D. Wisconsin -------------------------------------------------- A class action lawsuit has been filed against Mason Companies, Inc. The case is styled as Franklin Ross, individually and on behalf of all others similarly situated v. Mason Companies, Inc., Case No. 3:21-cv-00749 (W.D. Wis., Nov. 29, 2021). The nature if suit is stated as Other P.I. for Personal Injury. Mason Companies -- https://www.masoncompaniesinc.com/ -- is an Internet Retailer e-commerce and catalog company.[BN] The Plaintiff is represented by: Arun G. Ravindran, Esq. Frank Hedin, Esq. HEDIN HALL LLP 1395 Brickell Ave., Suite 1140 Miami, FL 33131 Phone: (305) 357-2107 Fax: (305) 200-8801 Email: fhedin@hedinhall.com MASON COMPANIES: Stevens Files Suit in W.D. Wisconsin ----------------------------------------------------- A class action lawsuit has been filed against Mason Companies, Inc. The case is styled as Sherry Stevens, individually and on behalf of all others similarly situated v. Mason Companies, Inc., Case No. 3:21-cv-00750 (W.D. Wis., Nov. 29, 2021). The nature if suit is stated as Other P.I. for Personal Injury. Mason Companies -- https://www.masoncompaniesinc.com/ -- is an Internet Retailer e-commerce and catalog company.[BN] The Plaintiff is represented by: Arun G. Ravindran, Esq. Frank Hedin, Esq. HEDIN HALL LLP 1395 Brickell Ave., Suite 1140 Miami, FL 33131 Phone: (305) 357-2107 Fax: (305) 200-8801 Email: fhedin@hedinhall.com MASON COMPANIES: Tanenbaum Files Suit in W.D. Wisconsin ------------------------------------------------------- A class action lawsuit has been filed against Mason Companies, Inc. The case is styled as Ruth Tanenbaum, individually and on behalf of all others similarly situated v. Mason Companies, Inc., Case No. 3:21-cv-00751 (W.D. Wis., Nov. 29, 2021). The nature if suit is stated as Other P.I. for Personal Injury. Mason Companies -- https://www.masoncompaniesinc.com/ -- is an Internet Retailer e-commerce and catalog company.[BN] The Plaintiff is represented by: Arun G. Ravindran, Esq. Frank Hedin, Esq. HEDIN HALL LLP 1395 Brickell Ave., Suite 1140 Miami, FL 33131 Phone: (305) 357-2107 Fax: (305) 200-8801 Email: fhedin@hedinhall.com MASTERCARD INC: Sells Cardholders' Personal Info, Rivera Alleges ---------------------------------------------------------------- PEDRO CARO RIVERA, individually and on behalf of all others similarly situated, Plaintiff v. MASTERCARD INC., Defendant, Case No. 7:21-cv-10181 (S.D.N.Y., November 30, 2021) is a class action against the Defendant for violation of Puerto Rico's Right of Publicity Act. The case arises from the Defendant's practice of selling and renting mailing lists containing the Plaintiff's and all of its other customers' names, addresses, and other personal identifying transactional data on the open market to data miners, data aggregators, data appenders, data cooperatives, list brokers, aggressive marketing companies, and various other parties interested in purchasing them. MasterCard's action of monetizing its customers' names and likenesses for commercial purposes without their consent is not only unlawful, but also dangerous because it allows any member of the public willing to purchase or rent this data to target particular customers, alleges the suit. MasterCard Inc. is an American multinational financial services corporation, headquartered in Purchase, New York. [BN] The Plaintiff is represented by: Arun G. Ravindran, Esq. Frank S. Hedin, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: aravindran@hedinhall.com fhedin@hedinhall.com - and – Thomas L. Laughlin, IV, Esq. Jonathan M. Zimmerman, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: tlaughlin@scott-scott.com jzimmerman@scott-scott.com MATILDA GOURMET: Faces Ortega Wage-and-Hour Suit in S.D.N.Y. ------------------------------------------------------------ MARCO ANTONIO ORTEGA, individually and on behalf of all others similarly situated, Plaintiff v. THE MATILDA GOURMET DELI INC. (DBA GREEN GOURMET DELI), DE REIMER FOOD CORP. (DBA DE REIMER GOURMET DELI & GRILL), NEREID GOURMET DELI INC., GREEN ARROW GOURMET DELI CORP., OMAR TAREB, SAM TAREB and MOIMER MALIK MOHAMMED TAREB, Defendants, Case No. 1:21-cv-10212 (S.D.N.Y., December 1, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay minimum wages, failure to pay overtime wages, failure to pay spread-of-hours compensation, failure to comply with recordkeeping requirements, and failure to provide accurate wage statements. The Plaintiff was employed by the Defendants as a kitchen staff at Green Gourmet Deli and De Reimer Gourmet Deli & Grill in Bronx, New York from December 1, 2014 until November 12, 2021. The Matilda Gourmet Deli Inc. is an owner and operator of a deli under the name Green Gourmet Deli, located at 638 Nereid Ave., Bronx, New York. De Reimer Food Corp. is an owner and operator of a deli under the name De Reimer Gourmet Deli & Grill, located at 3821 Boston Rd., Bronx, New York. Nereid Gourmet Deli Inc. is a deli owner and operator located in Bronx, New York. Green Arrow Gourmet Deli Corp. is a deli owner and operator located in Bronx, New York. [BN] The Plaintiff is represented by: Lina F. Stillman, Esq. STILLMAN LEGAL PC 42 Broadway, 12th Floor New York, NY 10004 Telephone: (800) 933-5620 MATTHEW DUTCAVICH: Extension to File Class Cert Bid Sought ---------------------------------------------------------- In the class action lawsuit captioned as Murray v. Dutcavich, et al., Case No. 7:17-cv-09121-PMH (S.D.N.Y.), the Parties ask the Court to enter an order granting their request to extend the deadlines as follows: Deadline Current Proposed Date Date -- To Serve Rule 56.1 Statement, Dec 3, 2021 Jan. 18, 2022 Pursuant to Individual Practice Rule 4.E -- For Plaintiff to Respond to Dec. 20, 2021 Feb. 7, 2022 the Rule 56.1 Statement, Pursuant to Rule 4.E.iv. -- To file the Pre-Motion Dec. 22, 2021 Feb. 9, 2022 Conference Letter and 56.1 Statement via ECF -- For Plaintiff to Respond Dec. 27, 2021 Feb. 14, 2022 -- To Move for Class Dec. 3, 2021 Jan. 7, 2022 Certification -- To Oppose any Class Dec. 17, 2021 Jan. 28, 2022 Certification Motion -- To File a Reply Dec. 24, 2021 Feb. 4, 2022 A copy of the Parties' motion dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3ltYNBA at no extra charge.[CC] The Plaintiff is represented by: Garrett Kaske, Esq. KESSLER MATURA P.C. Telephone: (888) 605-0371 Facsimile: (631) 499-9120 MCCAFFREE-SHORT TITLE: FLSA Settlement in Craven Suit Approved -------------------------------------------------------------- In the case, DIANA KAY CRAVEN, ET AL., Plaintiffs v. McCAFFREE-SHORT TITLE COMPANY, INC., ET AL., Defendants, Case No. 2:21-cv-02003-TC-GEB (D. Kan.), Judge Toby Crouse of the U.S. District Court for the District of Kansas approved the parties' Joint Motion to Approve FLSA Settlement. Introduction Plaintiffs Diana Kay Craven and Debra Hutson brought a collective action suit against their employer McCaffree-Short and one of its directors, Carl McCaffree, for failure to pay overtime wages in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201, et seq. The parties entered into a settlement agreement. By joint motion, Doc. 30, they seek approval of that agreement. Background Plaintiffs Craven and Hutson worked for McCaffree-Short, providing escrow services. They worked about 50 to 60 hours per week and received a salary. Both allege that the Company misclassified them as exempt from the FLSA's overtime requirements. As a result, the Company failed to pay them overtime wages for their hours worked above 40 each week. The Plaintiffs also allege that Defendant Carl McCaffree is individually liable under the FLSA. The Defendants deny these claims. Although the Plaintiffs originally brought suit on behalf of themselves and similarly situated employees, they have now elected to proceed only on their individual claims. After a status conference and settlement negotiations, the parties filed a Joint Notice of Settlement for Plaintiffs' individual claims. Two months later, they moved to approve the settlement. Discussion When employees sue their employer to recover wages under the FLSA, the parties must present any proposed settlement to the district court for review and a determination of whether the settlement is fair and reasonable. Requiring court approval of FLSA settlements furthers the statute's purpose of "protecting certain groups from substandard wages due to the unequal bargaining power" between employers and employee. To approve an FLSA settlement, the district court must find that the litigation involves a bona fide dispute and that the proposed settlement is fair and equitable to all parties. Also, any attorney's fees must be reasonable. In the case, Judge Crouse will approve the settlement agreement. First, he finds that the parties' pleading establishes that there is a bona fide dispute about whether the Company owed Craven and Hutson overtime wages under the FLSA. As a threshold matter, the parties dispute whether the Plaintiffs' job duties were exempt from overtime requirements. On the other hand, the Defendants claim that the overtime requirements do not apply because the Plaintiffs "performed the duties of an exempt executive, administrative, and/or professional employee." They also claim that the Plaintiffs did exercise independent judgment as to matters of significance, including being asked to provide input on hiring and firing. Even if the Plaintiffs were not exempt under the FLSA and were therefore owed overtime wages, the parties dispute the amount of damages. Finally, the parties dispute whether the Plaintiffs are entitled to liquidated damages. All told, there remain serious questions of law and fact about whether the Plaintiffs are owed overtime wages. Next, Judge Crouse finds that the parties have also sufficiently established that the settlement terms are fair and equitable. The parties reached agreement only after engaging in the procedures in the Court's Scheduling Order, including that the parties "meet and confer in a good faith effort to settle all pending issues." For relief, the settlement provides the Plaintiffs with reasonable compensation in light of the damages sought and the time and expense of uncertain litigation. The settlement provides significant compensation relative to the amount in controversy. As for other concerns, there is no indication that the proposed settlement would thwart the purposes of the FLSA. Nor is there anything in the record to suggest a history of non-compliance by the Defendants or to raise concerns of recurrence. Nor does the settlement purport to resolve other current or former employees' claims against the Defendants. Thus, the settlement is fair and equitable. Lastly, Judge Crouse finds that the parties have sufficiently established that the attorney's fees are reasonable in light of the totality of the litigation. The Plaintiffs' counsel spent 60.7 hours litigating the case, with rates ranging from $90 to $470 per hour, for a total value of $17,842.50 (plus $570 in costs). Compared to this "lodestar," the proposed settlement agreement would provide the counsel with $15,400 for fees and costs. This represents 44% of the total settlement proceeds, and is consistent with recent contingency fee settlements for FLSA misclassification claims. On an hourly basis, the fees come out to an average of $303.33. The parties allege that this rate is consistent with prevailing rates in the relevant market. Finally, nothing in the record indicates a conflict of interest between the counsel and the Plaintiffs. Conclusion For these reasons, Judge Crouse approved the parties' Joint Motion to Approve FLSA Settlement. A full-text copy of the Court's Nov. 24, 2021 Memorandum & Order is available at https://tinyurl.com/rwk5f235 from Leagle.com. META PLATFORMS: Perez Hits Share Price Drop ------------------------------------------- Juan Perez, individually and on behalf of all others similarly situated, Plaintiffs, v. Meta Platforms, Inc., Mark Zuckerberg and David M. Wehner, Defendants, Case No. 21-cv-09041, (N.D. Cal., November 22, 2021), seeks to recover compensable damages caused by violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. Meta Platforms, Inc. is the world's largest online social network operating under the name "Facebook," with 3.3 billion monthly active users. Mark Zuckerberg has been the Chief Executive Officer while David M. Wehner has been the Chief Financial Officer. Facebook's family of products encompasses the platforms and applications called Facebook, Instagram, Messenger, WhatsApp and Facebook Reality Labs. Perez alleges that Facebook conducted detailed in-house research that indicated that it exacerbated negative body image issues for one in three teenage girl users on Instagram's platform and that teens in Facebook's research blamed Instagram for increased rates of anxiety and depression. Facebook allegedly collected up to than a billion individual facial recognition templates. It touted its AI's ability to identify and address hate speech, excessive violence and underage users by implementing an algorithm designed to heighten "meaningful social interaction" in a manner that stoked division and discord, allowing known drug cartels, human traffickers and armed groups to utilize Facebook's platforms to encourage their violent and illegal activities. Facebook was trading at approximately $376 per share in September 2021 prior to the publication of this information. By October 27, 2021, Facebook traded at $312, representing a drop of at least $64 a share, equating to a total drop in excess of hundreds of billions of dollars. Perez owns Facebook stocks. [BN] Plaintiff is represented by: Francis A. Bottini, Jr., Esq. Albert Y. Chang, Esq. BOTTINI & BOTTINI, INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 E-mail: fbottini@bottinilaw.com achang@bottinilaw.com MICHIGAN: Amended Crawford Complaint v. MDOC, LCF & State Tossed ---------------------------------------------------------------- In the case, KENNETH CRAWFORD, Plaintiff v. GRETCHEN WHITMER et al., Defendants, Case No. 1:21-cv-529 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The case is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Crawford, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Crawford now has filed an amended complaint, a motion to amend and/or supplement the complaint, and a second amended complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility, as well as at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County, Michigan, which is where the Plaintiff was incarcerated prior to being housed at LCF. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his amended complaint, the Plaintiff alleges that in March 2020, COVID-19 infections at LCF were rampant and the Defendants failed to adequately protect inmates, including him, from infection. The Plaintiff states that he became infected and suffered from coughing, sneezing, diarrhea, fever, headaches, shortness of breath, and chest pain. He also claims that he has not received any testing to determine the extent of the damage caused to his body by COVID-19. The Plaintiff claims that from the beginning of the pandemic, the Defendants failed to institute a true quarantine, and infected staff members were free to move in and out of facilities, placing prisoners in imminent danger of becoming infected. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to the Plaintiff and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In the Plaintiff's second amended complaint, he names each of the Defendants previously named in his first amended complaint with the exception of Prisoner Counselor Dennis Randall, who is no longer a Defendant in the case. He also asserts additional factual allegations regarding his experience with COVID-19. In his motion to amend and supplement pleadings, the Plaintiff seeks to add new Defendants to his action. His motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, the Plaintiff's supplemental pleading is entirely conclusory. Nowhere in his motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as declaratory relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of the action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 19, 2021 Opinion is available at https://tinyurl.com/2p9e4j6p from Leagle.com. MICHIGAN: Court Dismisses Anderson Suit for Failure to State Claim ------------------------------------------------------------------ In the case, MARK ANDERSON, Plaintiff v. GRETCHEN WHITMER et al., Defendants, Case No. 1:21-cv-525 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The case is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Anderson, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Anderson now has filed an amended complaint and a document regarding "Separability of Provisions, Severability of Defendants, Away from Executives Chief Officers of Government, State, or Political Division." Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his first amended complaint, the Plaintiff alleges that in March 2020, COVID-19 infections at LCF were rampant and the Defendants failed to adequately protect inmates, including him, from infection. He states that he became infected and suffered from loss of taste and smell, loss of appetite, diarrhea, weight loss, fever, low oxygen levels, and a near death experience due to his inability to breathe. THe Plaintiff asserts that each of the named Defendants knew or should have known of the imminent danger posed to the Plaintiff and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. The Plaintiff claims that from the beginning of the pandemic, the Defendants failed to institute a true quarantine, and infected staff members were free to move in and out of facilities, placing prisoners in imminent danger of becoming infected. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as injunctive relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of the action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 19, 2021 Opinion is available at https://tinyurl.com/v5zzrn9w from Leagle.com. MICHIGAN: District Court Tosses Jackson's Suit v. MDOC, LCF & State ------------------------------------------------------------------- In the case, DREMARIS JACKSON, Plaintiff v. GRETCHEN WHITMER, et al., Defendants, Case No. 1:21-cv-526 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. It is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Jackson, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Jackson now has filed an amended complaint, a motion to amend and/or supplement the complaint, and a second amended complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. He sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his amended complaint, the Plaintiff alleges that in March 2020, COVID-19 infections at LCF were rampant and the Defendants failed to adequately protect inmates, including him, from infection. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to him and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. The Plaintiff states that the Defendants' conduct caused him to be exposed to infected prisoners and staff, which ultimately led to him contracting COVID-19. In his motion to amend and supplement pleadings, the Plaintiff seeks to add new Defendants to his action. His motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, the Plaintiff's supplemental pleading is entirely conclusory. Nowhere in his motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as declaratory relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 19, 2021 Opinion is available at https://tinyurl.com/yckhjnrd from Leagle.com. MICHIGAN: District Court Tosses Johnson's Suit v. MDOC, LCF & State ------------------------------------------------------------------- In the case, WILLIAM JOHNSON, Plaintiff v. GRETCHEN WHITMER, et al., Defendants, Case No. 1:21-cv-532 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The lawsuit is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Johnson, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Johnson now has filed an amended complaint and a motion to amend and/or supplement the complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his first amended complaint, the Plaintiff alleges that he was born with bronchial asthma and a host of other respiratory ailments. He has a long history as a chronic care patient and should be routinely monitored by medical staff. Despite his status as a high risk person, he was not monitored when COVID-19 was spreading through LCF. Around the end of March and beginning of April, the Plaintiff began to experience headaches and nosebleeds. Although these were known symptoms of COVID-19, healthcare refused to see the Plaintiff. Shortly thereafter, the Plaintiff was administered a COVID-19 test by Unknown Nurse who refused to change her gloves. On April 23, 2020, the Plaintiff was diagnosed with COVID-19 and suffered from nosebleeds, fever, diarrhea, headaches, dizziness, and weakness. The Plaintiff also claims that he has not received any testing to determine the extent of the damage caused to his body by COVID-19, nor has he received any mental health intervention to help him cope with the psychological effects of the disease. The Plaintiff states that in March and April 2020, COVID-19 infections at LCF were rampant and Defendants failed to institute a true quarantine. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to the Plaintiff and the other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In his motion to amend and supplement pleadings, the Plaintiff seeks to add new Defendants to his action. His motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. The Plaintiff's motion to amend and/or supplement pleadings also sets forth additional allegations regarding his experience with COVID-19 at LCF. The Plaintiff alleges that when COVID-19 began spreading at LCF, he lived in a dormitory setting with 8i2 other prisoners. All the prisoners shared the same telephones, microwaves, kiosks, toilets, and cleaning supplies. The Plaintiff states that on Jan. 29, 2020, he witnessed the death of prisoner Malone-Bey. He believes that the cause of death was COVID-19, although prison officials deny this. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as declaratory relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 24, 2021 Opinion is available at https://tinyurl.com/2p8cp4cm from Leagle.com. MICHIGAN: Dulin Prisoners Suit Dismissed for Failure to State Claim ------------------------------------------------------------------- In the case, DARRYL ARTES DULIN, Plaintiff v. GRETCHEN WHITMER et al., Defendants, Case No. 1:21-cv-531 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The lawsuit is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Dulin, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Dulin now has filed an amended complaint and a motion to amend and/or supplement the complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his first amended complaint, the Plaintiff alleges that in March 2020, COVID-19 infections at LCF were rampant and the Defendants failed to adequately protect inmates, including him, from infection. He states that he became infected and suffered from headaches, fatigue, loss of taste and smell, diarrhea, shortness of breath, coughing, and chills. Plaintiff also claims that he has not received any testing to determine the extent of the damage caused to his body by COVID-19. The Plaintiff claims that from the beginning of the pandemic, the Defendants failed to institute a true quarantine, and infected staff members were free to move in and out of facilities, placing prisoners in imminent danger of becoming infected. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to the Plaintiff and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In his motion to amend and supplement pleadings, the Plaintiff seeks to add new Defendants to his action. His motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, the Plaintiff's supplemental pleading is entirely conclusory. Nowhere in his motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as declaratory and injunctive relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of the action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/3munmhzy from Leagle.com. MICHIGAN: Gaskins v. Blue Dismissed for Failure to State Claim -------------------------------------------------------------- In the case, JEFFREY GASKINS, Plaintiff v. LORI BLUE, et al., Defendants, Case No. 1:21-cv-534 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The lawsuit is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Gaskins, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Gaskins now has filed an amended complaint, a motion to amend and/or supplement the complaint, and a motion for appointment of counsel. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff Lori Blue, J. Traeore, Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Doctor Margaret Quellete, Warden Bryant Morrison, Deputy Warden Robert Ault, Resident Unit Manager Timothy Shaw, Law Librarian Linda Thompson, Corrections Officer Unknown Minor, Medical Provider-Corizon Health E. Coe Hill, Resident Unit Manager Scott Cline, and Corrections Officers Unknown Parties. Plaintiff also names Prisoner Counselors Kevin Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Denise Randall. In his amended complaint, the Plaintiff states that in March and April of 2020, COVID-19 infections at LCF were rampant and Defendants failed to institute a true quarantine. He states that he became infected and suffered from headaches, coughing, diarrhea, shortness of breath, and fatigue. The Plaintiff also claims that he has not received any testing to determine the extent of the damage caused to his body by COVID-19 and that LCF had new infections in July of 2021. He finally asserts that another prisoner died of COVID-19 on July 3, 2021. The Plaintiff claims that from the beginning of the pandemic, the Defendants failed to institute a true quarantine, and infected staff members were free to move in and out of facilities, placing prisoners in imminent danger of becoming infected. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to Plaintiff and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In his motions to amend and/or supplement pleadings, the Plaintiff seeks to add new Defendants to his action. The Plaintiff's motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, his supplemental pleading is entirely conclusory. Nowhere in his motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He is seeking compensatory and punitive damages, as well as declaratory and injunctive relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 24, 2021 Opinion is available at https://tinyurl.com/yckj8rdm from Leagle.com. MICHIGAN: Merriweather Suit Dismissed for Failure to State Claim ---------------------------------------------------------------- In the case, WILLIE ALLEN MERRIWEATHER, Plaintiff v. GRETCHEN WHITMER, et al., Defendants, Case No. 1:21-cv-530 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The lawsuit is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Merriweather, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Merriweather now has filed an amended complaint, a motion to amend and/or supplement the complaint, and a second amended complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his first amended complaint, the Plaintiff alleges that in March 2020, COVID-19 infections at LCF were rampant and the Defendants failed to adequately protect inmates, including him, from infection. He states that he became infected and suffered from chest pain, chills, loss of taste and smell, diarrhea, shortness of breath, coughing, headaches, and fatigue. The Plaintiff also claims that he has not received any testing to determine the extent of the damage caused to his body by COVID-19. The Plaintiff claims that from the beginning of the pandemic, the Defendants failed to institute a true quarantine, and infected staff members were free to move in and out of facilities, placing prisoners in imminent danger of becoming infected. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to the Plaintiff and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In his motion to amend and supplement pleadings, Plaintiff seeks to add new Defendants to his action. His motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, Plaintiff's supplemental pleading is entirely conclusory. Nowhere in Plaintiff's motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as declaratory and injunctive relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of the action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/2s4j2vrn from Leagle.com. MICHIGAN: Stevens v. Whitmer Dismissed for Failure to State a Claim ------------------------------------------------------------------- In the case, RANDY STEVENS, Plaintiff v. GRETCHEN WHITMER et al., Defendants, Case No. 1:21-cv-533 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The case is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Stevens, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Stevens now has filed an amended complaint, a motion for appointment of counsel, and two motions to amend and/or supplement the complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Doctor Margaret Quellete, Registered Nurse Unknown Blue, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Resident Unit Manager Timothy Shaw, Law Librarian Linda Thompson, Corrections Officer Unknown Doffing, Corrections Officer Unknown Donning, Corrections Officer Unknown Minor, Corrections Officers Unknown Parties, and Medical Provider E. Coe Hill. He also names Prisoner Counselors Karen Kowalski, Unknown Randall, Unknown Dirchell, and Unknown Daniels In his amended complaint, the Plaintiff states that in March and April of 2020, COVID-19 infections at LCF were rampant and Defendants failed to institute a true quarantine. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to the Plaintiff and the other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In his motions to amend and/or supplement pleadings, the Plaintiff seeks to add new Defendants to his action. The Plaintiff's motions name Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, the Plaintiff's supplemental pleading is entirely conclusory. Nowhere in his motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. However, he fails to specify the relief he is seeking in the case. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 24, 2021 Opinion is available at https://tinyurl.com/2p8y5kud from Leagle.com. MICHIGAN: Western District Court Dismisses MacKiehowell v. MDOC --------------------------------------------------------------- In the case, FELTON MacKIEHOWELL, Plaintiff v. GRETCHEN WHITMER et al., Defendants, Case No. 1:21-cv-535 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The case is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Mackiehowell, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Mackiehowell now has filed an amended complaint and a motion to amend and/or supplement the complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traeore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. Plaintiff also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Denis Randell. In his amended complaint, the Plaintiff alleges that beginning in March of 2020, COVID-19 infections at LCF were rampant and Defendants failed to adequately protect inmates, including the Plaintiff, from infection. He states that he became infected and suffered from shortness of breath, fatigue, loss of smell and taste, diarrhea, fevers and cold sweats, abnormal heart beats, and heart flutters. He also claims that he has not received any testing to determine the extent of the damage caused to his body by COVID-19. The Plaintiff asserts that LCF was again under quarantine due to new positive cases of COVID on July 7, 2021, and that another prisoner died of the virus on July 3, 2021. The Plaintiff claims that from the beginning of the pandemic, the Defendants failed to institute a true quarantine, and infected staff members were free to move in and out of facilities, placing prisoners in imminent danger of becoming infected. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to Plaintiff and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In his motions to amend and/or supplement pleadings, the Plaintiff seeks to add new Defendants to his action. The Plaintiff's motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, his supplemental pleading is entirely conclusory. Nowhere in his motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as declaratory and injunctive relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 24, 2021 Opinion is available at https://tinyurl.com/mtucwtau from Leagle.com. MICHIGAN: Western District Court Tosses Amended Holloway Complaint ------------------------------------------------------------------ In the case, SPENCER HOLLOWAY, Plaintiff v. GRETCHEN WHITMER et al., Defendants, Case No. 1:21-cv-527 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The lawsuit is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Holloway, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Holloway has now filed an amended complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his amended complaint, the Plaintiff claims that from the beginning of the pandemic, the Defendants failed to follow CDC directives or to institute a true quarantine, and that staff members were free to move in and out of facilities as carriers, which placed prisoners in imminent danger of infection. He alleges that there was an initial exposure to a COVID-19 positive case from the E2 unit on the Westside Yard in March of 2020 but that no notice was given to the population until the virus had spread to the Eastside Yard 48 hours later. The virus spread to B5 unit, C5 unit, Rec, and D-building, as infected prisoners were placed with uninfected prisoners, all sharing the same common areas. The Plaintiff eventually contracted the virus and experienced coughing, sneezing, diarrhea, fatigue, fever, and headaches. He asserts that over 800 prisoners at LCF contracted COVID-19, and that the named Defendants knew, or should have known, of the danger to prisoners such as the Plaintiff. The Plaintiff appears to be claiming that Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as equitable relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of the action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 19, 2021 Opinion is available at https://tinyurl.com/yc4zd5j5 from Leagle.com. MICHIGAN: Western District Court Tosses Hart's Amended Complaint ---------------------------------------------------------------- In the case, LEWIS HART, Plaintiff v. GRETCHEN WHITMER, et al., Defendants, Case No. 1:21-cv-528 (W.D. Mich.), Judge Janet T. Neff of the U.S. District Court for the Western District of Michigan, Southern Division, dismissed the Plaintiff's amended complaint for failure to state a claim. The case is a civil rights action originally brought under 42 U.S.C. Section 1983 by 13 state prisoners housed at the Lakeland Correctional Facility (LCF). On June 22, 2021, the Court denied the request for a class action certification and severed the claims of the 13 prisoner Plaintiffs into separate actions. Each Plaintiff, including Plaintiff Hart, was ordered to file an amended complaint containing only the allegations relevant to that Plaintiff. Plaintiff Hart now has filed an amended complaint, a motion to amend and/or supplement the complaint, and a second amended complaint. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court must read the Plaintiff's pro se complaint indulgently, and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Governor Gretchen Whitmer, MDOC Director Heidi E. Washington, Warden Bryant Morrison, Deputy Warden Robert Ault, Acting Administrative Assistant Janet Traore, Doctor Margaret Quellete, Medical Provider E. Coe Hill, Registered Nurse Lori Blue, Law Librarian Linda Thompson, Resident Unit Manager Timothy Shaw, Resident Unit Manager Scott Cline, Corrections Officer Unknown Part(y)(ies), and Corrections Officer Unknown Minor. He also names Prisoner Counselors Karen Kowalski, Shawanda Cope, Patrick Daniels, Kevin Dirchell, and Dennis Randall. In his amended complaint, the Plaintiff alleges that in March 2020, COVID-19 infections at LCF were rampant and the Defendants failed to adequately protect inmates, including him, from infection. The Plaintiff states that he became infected and suffered from coughing, sneezing, diarrhea, fever, headaches, fatigue, body aches, and loss of taste and smell. The Plaintiff claims that from the beginning of the pandemic, the Defendants failed to institute a true quarantine, and infected staff members were free to move in and out of facilities, placing prisoners in imminent danger of becoming infected. He asserts that each of the named Defendants knew or should have known of the imminent danger posed to the Plaintiff and other prisoners by COVID-19, but failed to act in accordance with their duties to protect him from the virus, or to ensure that he could access the appropriate process to gain early release from prison. In the Plaintiff's second amended complaint, he names each of the Defendants previously named in his first amended complaint with the exception of Prisoner Counselor Dennis Randall, who is no longer a Defendant in the case. He also asserts additional factual allegations regarding his experience with COVID-19. In his motion to amend and supplement pleadings, the Plaintiff seeks to add new Defendants to his action. His motion names Deputy Warden Troy Chrisman, Kirsten Losinski, Counselor Markiyroe Garrett, Business/Mailroom Manager Sue Middlestadt, Mailroom Employees Christine Boden and Michael Stevens, Accounting Assistant Jessica Jones, Lieutenant Christiana Borst, Lieutenant Frank Sobrieski, and Health Unit Manager Nathan Mikel. However, the Plaintiff's supplemental pleading is entirely conclusory. Nowhere in his motion does he allege any specific facts against any of the individuals he seeks to add to the action. The Plaintiff appears to be claiming that the Defendants violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, as well as declaratory relief. Having conducted the review required by the Prison Litigation Reform Act, Judge Neff determines that the Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). She must next decide whether an appeal of the action would be in good faith within the meaning of 28 U.S.C. Section 1915(a)(3). Although she concludes that the Plaintiff's claims are properly dismissed, Judge Neff does not conclude that any issue the Plaintiff might raise on appeal would be frivolous. Accordingly, she does not certify that an appeal would not be taken in good faith. Should the Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant to Section 1915(b)(1), unless the Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If he is barred, he will be required to pay the $505 appellate filing fee in one lump sum. It is a dismissal as described by 28 U.S.C. Section 1915(g). An order and judgment consistent with the opinion will be entered. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/2ha5cbv7 from Leagle.com. MIDWEST ARBOR: Zarate Can't File 1st Amended Complaint, Court Says ------------------------------------------------------------------ In the case, EDGAR ZARATE, on behalf of himself and all other plaintiffs similarly situated, known and unknown, Plaintiff v. MIDWEST ARBOR CORPORATION, an Illinois corporation Defendant, Case No. 20-cv-0809 (N.D. Ill.), Judge Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied Plaintiff Zarate's motion to vacate the stay and for leave to file a first amended complaint. Introduction Plaintiff Zarate brings the putative class action against Defendant Midwest Arbor, his former employer, alleging that it violated the Fair Labor Standards Act ("FLSA"), the Portal-to-Portal Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act ("IWPCA"). On Sept. 4, 2020, the Plaintiff voluntarily filed a motion to stay proceedings pending arbitration given the arbitration agreements between the parties. The Court granted the motion. After further review of the arbitration agreements formed between the parties, the Plaintiff now moves to vacate the stay and for leave to file a first amended complaint. Background The Plaintiff was a seasonal landscaper employed by the Defendant between February 2015 and December 2019. On Feb. 4, 2020, the Plaintiff filed his initial complaint alleging that the Defendant failed to pay all Plaintiffs overtime wages in violation of the FLSA, the Portal-to-Portal Act, and the Illinois Minimum Wage Law. The Plaintiff also claimed that the Defendant made unauthorized deductions from his and other Plaintiffs' paychecks in violation of the IWPCA. After filing his complaint, the Plaintiff discovered that he signed arbitration agreements in 2018 and 2019 requiring the parties arbitrate any dispute or claim arising out of the parties' temporary employment agreements. He then voluntarily filed a motion to stay proceedings pending arbitration, which the Court granted. After discovering an alleged flaw in the arbitration agreements, the Plaintiff filed the current motions to vacate the stay and to amend the complaint. A month after the Plaintiff filed this motion, the Defendant sent him a previously undisclosed arbitration agreement from 2017. Discussion A. Waiver The parties initially agreed to proceed with arbitration based on the 2018 and 2019 agreements. After minimal progress over approximately six months, the Plaintiff filed the motion to vacate the Court's order granting his motion to stay proceedings pending arbitration. To prevail on his motion to vacate, the Plaintiff must show that extraordinary circumstances justify the reopening of the Court's order. The Plaintiff argues that the stay should be vacated because (1) the Defendant impliedly waived its rights under the arbitration agreements by acting in bad faith and delaying arbitration proceedings and 2) the vagueness and scope of the arbitration agreements render them unenforceable. To determine whether a party has impliedly waived its right to arbitrate, the Court must consider the totality of the circumstances and decide whether the party against whom the waiver is to be enforced acted inconsistently with the right to arbitrate. Factors to consider may include "a party's diligence, or lack thereof, in asserting its rights under a contract," and "whether the allegedly defaulting party participated in litigation, substantially delayed its request for arbitration, or participated in discovery." Judge Coleman finds that the Defendant has consistently reflected the desire to arbitrate. It did not issue discovery requests or even file an appearance in this matter. Further, six months elapsed between the order to stay and the motion to vacate the stay. While the Defendant's responses to the Plaintiff may have been slow, the delayed responses have not substantially prejudiced the Plaintiff as he has been on notice since the Defendant informed him of the arbitration agreements that defendant wants to arbitrate. The Plaintiff also asserts that because the Defendant failed to timely provide the signed 2017 arbitration agreement, it waived its right to arbitration under that agreement. But the late disclosure of the 2017 arbitration agreement did not prejudice the Plaintiff or substantially impact his legal strategy; the parties had already agreed to arbitration. Under the totality of the circumstances, Judge Coleman holds that the Defendant has acted consistently with its right to arbitrate and has not waived that right. B. Enforceability of the Agreements The Plaintiff also contends that his motion to vacate should be granted because the arbitration agreement terms are vague and, therefore, unenforceable. The Supreme Court has consistently interpreted the Federal Arbitration Act ("FAA") to favor arbitration and requires arbitration provisions to be enforced according to their terms. Section 2 of the FAA makes arbitration agreements "valid, irrevocable, and enforceable" as written, unless the savings clause applies. The savings clause in the FAA allows arbitration agreements to be invalidated only by "generally applicable contract defenses, such as fraud, duress, or unconscionability," but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. The Plaintiff claims that the agreements are too vague because none of them specify the types of disputes that should be arbitrated. But Judge Coleman holds that each arbitration agreement clearly indicates that any dispute arising out of "the application or candidacy for employment, the employment, and the cessation of employment that are based on local, state, or federal regulatory, statutory or common law" are subject to arbitration. Arbitration provisions such as this that cover a wide range of disputes are not necessarily vague and vagueness is not a valid contract defense under the FAA, Judge Coleman points out. Additionally, she says, the language in the agreements has not changed since the Plaintiff voluntarily agreed to arbitrate. The Plaintiff himself chose to arbitrate. He cannot now feign ignorance and argue that the language is vague. The Plaintiff also argues that the Defendant is required to provide information or documentation to show that the arbitration clauses cover his claims and that the Defendant has not produced any. Judge Coleman holds that document production is not a prerequisite for enforcing arbitration provisions. Given the strong presumption in favor of arbitration and the Plaintiff's failure to present a valid contract defense under the savings clause, the arbitration agreements are enforceable. Since the Defendant has not waived its right to arbitrate and the agreements are enforceable, Judge Coleman cannot grant the Plaintiff the extraordinary remedy of vacating the stay. The Plaintiff's motion to vacate is denied. Because she denies the motion to vacate and an amendment to the complaint would be futile, Judge Coleman must also deny the motion for leave to amend to add the state law claims. She cannot exercise supplemental jurisdiction over the 2015 state law claims because the remaining federal claims are in arbitration and, therefore, the state law claims would be the only claims before the Court. Conclusion For the foregoing reasons, Judge Coleman denied the Plaintiff's motion to vacate and for leave to file a first amended complaint. A full-text copy of the Court's Nov. 19, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/yv5p53pb from Leagle.com. MOWI USA: $1.3MM Class Settlement in Neversink Suit Wins Final OK ----------------------------------------------------------------- In the case, NEVERSINK GENERAL STORE, BRENDA TOMLINSON, individually and on behalf of all others similarly situated, Plaintiffs v. MOWI USA, LLC, MOWI DUCKTRAP, LLC, MOWI USA HOLDING, LLC, and MOWI ASA, Defendants, Case No. 1:20-cv-09293-PAE (S.D.N.Y.), Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York entered an Order granting: a. the motion for final approval of the Class Action Settlement Agreement and Release, dated March 16, 2021, entered into by the Parties; and b. the Settlement Class Counsel's motion for an Attorneys' Fees and Costs Award and for a Class Representative Service Award. The matter came before the Court for a fairness hearing on Nov. 23, 2021, pursuant to the Court's Preliminary Approval Order dated May 13, 2021, and on the motion for final approval, as well as the Fee Motion"). The Court set out its findings in full on the record of that hearing. The "Settlement Class" for purposes of the Final Approval Order means: All persons or entities residing in the United States of America that purchased a Ducktrap Product with packaging that included "sustainably sourced," "all natural," and/or "from Maine" during the period beginning March 1, 2017 and ending on the date of entry of the Preliminary Approval Order. Judge Engelmayer approved the Notice and Settlement Administration Costs in the amount of $219,500, with such costs to be deducted from the $1.3 million Total Class Consideration pursuant to Section 2.4 of the Settlement Agreement. The Plaintiffs have represented that it has received an opt-out from only one class member, Lindsey M. Staten. Accordingly, of the Settlement Class Members, only Ms. Staten is not bound by the Final Approval Order and Judgment and is entitled to no relief under the Settlement. All other persons and entities who fall within the definition of the Settlement Class are Settlement Class Members and part of the Settlement Class, and will be bound by the Final Approval Order and corresponding Judgment and the Settlement Agreement. Judge Engelmayer reaffirmed that the Litigation is properly maintained as a class action, for settlement purposes only, pursuant to Federal Rules of Civil Procedure 23(b)(3). He reaffirmed the Court's its appointment of Plaintiff Neversink General Store and Plaintiff Brenda Tomlinson as the Settlement Class Representatives to represent the Settlement Class, and of the Settlement Class Counsel to represent the Settlement Class. Each Settlement Class Member will receive a payment of up to $2.50 for each Ducktrap Product package purchased in the United States during the Class Period for which the Settlement Class Member has provided valid Proof of Purchase, and up to $2.50 for up to ten Ducktrap Product packages that the Settlement Class Member attests, on the Claim Form, to have purchased in the United States during the Class Period for which the Settlement Class Member cannot provide valid Proof of Purchase. The Motion for Final Approval is granted, and the Settlement Agreement and its terms are found to be and approved as fair, reasonable, and adequate and in the best interest of the Settlement Class. The Parties and Settlement Administrator are directed to consummate and implement the Settlement Agreement in accordance with its terms, including distributing settlement payments to the Settlement Class Members after deduction of the Notice and Settlement Administration Costs and the Class Representative Service Awards (discussed below) from the $1.3 million Total Class Consideration. The Second Amended Complaint is dismissed with prejudice and without costs to any Party, other than as specified in the Settlement Agreement, the Final Approval Order and corresponding Judgment, and any order(s) by the Court regarding Settlement Class Counsel's motion for an Attorneys' Fees and Costs Award and a Class Representative Service Award. As referenced at the Nov. 23, 2021 hearing, the release does not bind Settlement Class Members as to claims based on conduct occurring after the date of the Preliminary Approval Order. All Settlement Class Members and Releasing Parties (including any persons purporting to act on their behalf) have covenanted not to sue any Released Party with respect to any Released Claim and will be permanently barred and enjoined from instituting, commencing, prosecuting, continuing, or asserting any Released Claim against any Released Party, directly or indirectly (including in any action purportedly brought on behalf of the general public of the United States or of a particular state, district, or territory therein). Pursuant to the terms of the Settlement Agreement, Plaintiffs, Settlement Class Counsel, Mowi, and Mowi's Counsel have, and will be deemed to have, released each other from any and all Claims relating in any way to any Party or counsel's conduct in the Litigation. The Final Approval Order and corresponding Judgment is the final, appealable judgment in the Litigation as to all Released Claims. The Fee Motion is also granted. Judge Engelmayer approved: (a) payment of Settlement Class Counsel's Attorneys' Fees and Costs Award in the total amount of $360,000 (consisting of $353,754.30 in attorneys' fees, plus $6,245.70 in reimbursement of litigation expenses); and (b) payment of service awards in the amount of $7,500 to Plaintiff Neversink General Store and $1,500 to Plaintiff Brenda Tomlinson, to compensate them for their commitment and effort on behalf of the Settlement Class, with such service awards to be deducted from the $1.3 million Total Class Consideration pursuant to Section 3.3 of the Settlement Agreement. Pursuant to Rule 54, Judge Engelmayer found that there is no just reason for delay and respectfully directed the Final Approval Order and Judgment and immediate entry by the Clerk of the Court. The Clerk of Court is also respectfully directed to terminate the motions at Dockets 71, 79, 93, and 94, and to terminate the case. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/acusjhnz from Leagle.com. NATIONAL FOOTBALL: Denial of Gordon's Concussion Claim Affirmed --------------------------------------------------------------- In the case, IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION, AMON GORDON, Appellant, Case No. 19-2753 (3d Cir.), the U.S. Court of Appeals for the Third Circuit affirmed the District Court's order upholding the Special Master's denial of Amon Gordon's settlement claim. Introduction Mr. Gordon, a retired National Football League ("NFL") linebacker, seeks a monetary award through the NFL's concussion-settlement program. Gordon submitted a claim through the settlement program, but his claim was denied. He appealed the denial to the District Court, arguing that the Special Master who denied his claim misinterpreted the settlement agreement. The District Court affirmed the Special Master's interpretation, and Gordon now appeals to the Court. Background The case arises out of the class-action settlement resolving retired NFL players' claims that the NFL "failed to inform them of and protect them from the risks of concussions in football." In 2015, after years of negotiation, the NFL and the former players reached a final agreement that was subsequently approved by the District Court. On appeal, the Third Circuit affirmed the District Court's approval of the agreement, and it became effective on Jan. 7, 2017. After the effective date, all former players seeking a diagnosis were required to go through the same Baseline Assessment Program with physicians who were preapproved by the NFL. But the agreement established a different set of requirements for former players who had already received diagnoses from their personal physicians prior to the effective date. Critical to this appeal, even though the agreement established a different avenue for former players with pre-effective-date diagnoses, the agreement explained that all diagnoses were still required to be "based on evaluation and evidence generally consistent with" the diagnostic criteria used in the Baseline Assessment Program. To ensure that pre-effective-date diagnoses are "generally consistent" with the Program's diagnostic criteria, the agreement requires that all pre-effective-date diagnoses be reviewed by an advisory panel of approved physicians. After the panel makes its determination, former players and the NFL have the right to appeal the decision to the District Court. The District Court may refer appeals to a "Special Master," who may reverse the panel "upon a showing by the appellant of clear and convincing evidence." In the event of such referral, either party may appeal the Special Master's decision to the District Court, but the settlement agreement limits the court's review. The factual determinations of the Special Master are "final and binding," and the District Court's review is limited to questions of law. The settlement agreement enables retired players to receive monetary relief if they can show that they have a "Qualifying Diagnosis." Such diagnoses include: (1) Early Dementia, (2) Moderate Dementia, (3) Alzheimer's disease, (4) Parkinson's disease, and (5) amyotrophic lateral sclerosis. Early Dementia is the subject of this appeal. In 2017, Gordon submitted a claim for a monetary award because, two years prior to the settlement, his personal physicians diagnosed him with Early Dementia. Because Gordon received the diagnosis before the effective date, the diagnosis had to be reviewed by the advisory panel. The panel approved Gordon's claim and concluded that his pre-effective-date diagnosis was generally consistent with the diagnostic criteria in the Baseline Assessment Program. But after the panel had already issued its approval, a neuropsychology consultant reviewed the application and recommended that the claim be denied because Gordon's personal physicians did not properly scale Gordon's scores. Gordon's claim was also flagged for an audit. After the audit, the panel again approved Gordon's claim and concluded that Gordon's pre-effective-date diagnosis met the Baseline Assessment Program criteria. In response, the NFL appealed to the Special Master. The parties agreed that Gordon belonged in the Above Average pre-injury baseline. They also agreed that Gordon's personal physicians used many of the same tests that were part of the Baseline Assessment Program. But the NFL claimed that Gordon's personal physicians used improper "scaled scores" rather than the T-scores required by the settlement, which skewed the results. The NFL argued that when the scores were properly converted to T-scores, Gordon failed to meet the Program's criteria for an Early Dementia diagnosis. The Special Master agreed with the NFL, concluding that the diagnosis from Gordon's personal physicians was not "generally consistent" with the diagnostic standards in the settlement agreement. Further, the Special Master concluded that Gordon's test scores did not show the cognitive decline required for a diagnosis, so he denied Gordon's claim. Gordon appealed the Special Master's decision to the District Court. Because the District Court's jurisdiction is limited to legal issues, Gordon's appeal was confined to a single question: Whether the Special Master erroneously required Gordon's pre-effective-date diagnosis to be "generally consistent" with the diagnostic standards listed in the settlement's Baseline Assessment Program. In a well-reasoned and detailed opinion, the District Court sided with the Special Master's interpretation. The court explained that, under the settlement, "all Qualifying Diagnoses must be made consistent with Exhibit 1," and Exhibit 1 unequivocally states that "Retired NFL Football Players diagnosed outside of the Baseline Assessment Program" must be diagnosed "based on evaluation and evidence generally consistent with the Baseline Assessment Program diagnostic criteria." Thus, the District Court concluded that "the terms of the Settlement Agreement plainly state that the 'generally consistent' standard applies to all Qualifying Diagnoses of Early and Moderate Dementia, including pre-Effective Date diagnoses." Mr. Gordon timely appealed. However, he now completely abandons his argument presented to the District Court. He concedes that all pre-effective-date diagnoses must be "generally consistent" with the diagnostic criteria in the settlement's Baseline Assessment Program. He repeated this concession in his reply brief, stating: "Plaintiff-Appellant withdrew any objection he had over the question of whether a pre-effective date claim must be generally consistent with the other claim determinations set forth in the Settlement Agreement, and never raised this issue again after he raised it before Judge Brody and it was clarified." Instead, Gordon now claims that the District Court abused its discretion by failing to explain its reasoning for upholding the Special Master's determination. Gordon presses no other arguments. Discussion Mr. Gordon made only one argument to the District Court: That his claim was not required to be generally consistent with the Baseline Assessment Program. Rather than press that argument, Gordon now asks the Third Circuit to vacate and remand so the court "can explain its reasoning." He claims that the court's analysis was an abuse of discretion because he "cannot discern the factual basis for the District Court's denial of his award." The Third Circuit opines that Gordon's argument is meritless. The court cogently resolved the only question before it: Whether the diagnosis supporting Gordon's claim had to be generally consistent with the standards in the Baseline Assessment Program. Although Gordon claims that the court should have given a more detailed account of the factual underpinnings of his claim, those issues were not before the court and were not germane to its disposition of Gordon's legal objection. The District Court gave a well-reasoned and detailed analysis of the issue Gordon raised. Thus, the Third Circuit discerns no abuse of discretion. Conclusion The Third Circuit concludes that Gordon's present argument fails because the District Court fully analyzed and explained the interpretive question that Gordon raised. The court's failure to discuss background factual issues is irrelevant because those issues were never presented to the court. Accordingly, the District Court's order is affirmed. A full-text copy of the Court's Nov. 24, 2021 Opinion is available at https://tinyurl.com/2s35bdc5 from Leagle.com. NATURAL ESSENTIALS: Class Deal in Savanich Labor Suit Gets Approval ------------------------------------------------------------------- In the case, RUSTY SAVANICH, on behalf of himself and all other similarly situated persons, Plaintiffs v. NATURAL ESSENTIALS, INCORPORATED, Defendant, Case No. 5:20-cv-2088 (N.D. Ohio), Judge Sara Lioi of the U.S. District Court for the Northern District of Ohio, Eastern Division, grants the parties' Joint Sealed Motion for Approval of Settlement and Stipulation of Dismissal with Prejudice. Background Plaintiff Savanich, on behalf of himself and similarly situated employees, filed a collective action against Defendant Natural Essentials, alleging Natural Essentials violated the Fair Labor Standards Act ("FLSA") (29 U.S.C. Section 201 et seq.) and a Rule 23 class action under the Ohio Minimum Fair Wage Standards Act ("Ohio Wage Laws") (Ohio Rev. Code Section 4111 et seq.). Natural Essentials is an Ohio corporation with a manufacturing facility located in Aurora, Ohio that manufactures cosmetics and supplies natural ingredients to its customers. The Plaintiffs are current and former employees of Natural Essentials and allege that Natural Essentials violated the FLSA and Ohio Wage Laws by failing to pay them for time spent changing into and out of personal protective equipment, getting tools and equipment necessary to perform their manufacturing jobs, and walking to their assigned work stations. Natural Essentials denies that it violated the FLSA and Ohio Wage Laws and disputes the amount of time the Plaintiffs allege that they spent engaging in pre- and post-shift work. It also disagrees with the Plaintiffs on the appropriate limitations period to apply to the Plaintiffs' claims and whether they can recover liquidated damages under the FLSA. On Nov. 17, 2020, the parties filed their Joint Stipulation of Conditional Certification and Proposed Notice, in which the parties stipulated to the following class: "All former and current non-exempt manufacturing employees of Natural Essentials, Incorporated between November 1, 2017 and the present." On Nov. 20, 2020, the Court approved the Joint Stipulation of Conditional Certification and Proposed Notice. The notice to all potential class members was issued on Nov. 30, 2020, and the opt-in period closed on Dec. 30, 2020. In addition to Savanich, 63 individuals opted into the class. In order to avoid the burden, expense, and uncertainty of litigation, the parties agreed to discuss early resolution. Between November 2020 and June 2021, the parties engaged in an informal exchange of information, including the production of time and pay data for the opt-in parties and the calculation of potential damages. The parties also engaged in extensive legal and settlement discussions. Ultimately, they agreed to participate in a mediation. On Oct. 21, 2021, at the conclusion of a mediation session before Magistrate Judge Carmen E. Henderson, the parties reached a settlement. On Nov. 3, 2021, the parties filed the present Joint Motion. Discussion At the outset, Judge Lioi finds that the divergent views of the facts and the law presented bona fide disputes that, had the parties not reached settlement, would have necessitated resolution by the Court and/or a jury. The Joint Motion confirms the same. As set forth, the parties disagree as to whether plaintiffs were properly compensated for any and all time spent performing pre- and post-shift work. The parties further disagree as to the appropriate limitations period that applied to the Plaintiffs' claims and whether the Plaintiffs were entitled to liquidated damages. Having reviewed the terms of the Settlement, Judge Lioi finds that the Settlement represents a fair and reasonable resolution to bona fide disputes. Further, she notes that the Settlement was the result of arms-length negotiations between parties that were represented by able counsel. As such, she finds no risk of fraud or collusion. With respect to the monetary awards to the Plaintiffs, the Settlement provides that the Plaintiffs will receive individual payments calculated proportionally on each class member's alleged overtime damages during the relevant period and represent compensation for 100% of each member's overtime work and 100% of liquidated damages for the same during the relevant statutory period for 10 minutes of unpaid pre-shift work. The individual payments are provided as Appendix 1 to the Settlement. Judge Lioi agrees with the parties that the anticipated individual settlement payments represent an excellent result. Moreover, she has taken into account the opinion of counsel in the collective action, who has expressed the opinion that the proposed settlement is a fair and adequate compromise of the disputed claims and in the best interest of the Plaintiffs. As for the award of attorney fees and costs to the Plaintiffs' counsel, Judge Lioi finds that the award, which is supported by a declaration of the counsel, is reasonable, taking into consideration the fact that a settlement was reached early in the litigation and the successful outcome provides substantial relief to the Plaintiffs. Moreover, she notes that the attorneys' fee award amount aligns with the amounts awarded in other FLSA collective action cases in the Northern District of Ohio. In addition, the Settlement provides for a service award to the Plaintiffs' representative, Savanich. Such awards are not uncommon, and "courts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation." Plaintiff Savanich played an active role in assisting the Plaintiffs' counsel. As such, Judge Lioi approves the modest service award set forth in the Settlement to the representative plaintiff in recognition of his service in the action. Conclusion For all of the foregoing reasons, Judge Lioi approves the Settlement. She orders that the settlement payments be distributed in the manner, and subject to the terms and conditions, set forth in the Settlement. The claims in the Plaintiffs' complaint are dismissed with prejudice, and the case is closed. The Court will retain jurisdiction to enforce the parties' Settlement. A full-text copy of the Court's Nov. 19, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/bdhnjzzt from Leagle.com. NEW HORIZONS: Summary Judgment Order in Brockington Suit Affirmed ----------------------------------------------------------------- In the case, ALVIN BROCKINGTON, Individually and On Behalf of All Similarly-Situated, Appellant v. NEW HORIZONS ENTERPRISES, LLC, Respondent, Case No. WD83838 (Mo. App.), the Court of Appeals of Missouri for the Western District affirmed the circuit court's grant of summary judgment to New Horizons. Introduction Appellant Brockington, individually and on behalf of all similarly-situated, appeals the circuit court's grant of summary judgment to New Horizons on his "Amended Class Action Petition," which alleged that New Horizons violated the Missouri Prevailing Wage Act (Sections 290.210-290.340) and the Missouri Minimum Wage Law (Sections 290.500-290.530). The Appellant contends that the circuit court erred in granting New Horizons' motion for summary judgment, arguing that a reasonable jury could find that the prevailing wage act applied to Appellant in that evidence in the record presents a genuine issue of material fact as to whether the Commonwealth Project was performed "on behalf of" a public body. Background On Nov. 20, 2013, Laborers' International Union of North America, Local 264, individually and on behalf of a class of all similarly-situated, filed a Petition alleging New Horizons violated the Missouri Prevailing Wage Act and the Missouri Minimum Wage Law. On Jan. 17, 2017, Brockington was joined as a party and substituted for the Union as the class representative. The Appellant's "Amended Class Action Petition" was filed Jan. 17, 2017, and included the same Missouri Prevailing Wage Act and Missouri Minimum Wage Law allegations. The Appellant alleged that he formerly worked for New Horizons, a construction contractor based in Kansas City, Missouri, focused on asbestos remediation. Beginning in 2011, New Horizons performed work as a subcontractor on a project or series of projects, generally known as the "Commonwealth Project." The Commonwealth Project involved the comprehensive rehabilitation and refinishing of multi-family housing units along Armour Boulevard and Locust Street in midtown Kansas City. The Appellant alleged that the Commonwealth Project was paid for in whole or in part with public funds through tax abatements and incentives. He alleged that the Commonwealth Project was constructed for public use, with the power of eminent domain being conferred in connection with the project. The Appellant alleged that the Commonwealth Project was overseen by the Planned Industrial Expansion Authority ("PIEA"), a governmental agency. He performed construction work on this project for New Horizons. He alleged that New Horizons did not pay the prevailing wages required for any possible applicable wage classification. The Appellant received about $15 per straight-time hour of work. Under Annual Wage Order No. 19, which went into effect in 2012, the Jackson County prevailing wage rate for a second semiskilled laborer -- the category covering asbestos removal -- was $26.55. The fringe benefit amount was an additional $13.75, totaling an hourly compensation of $40.30. The Appellant regularly worked in excess of forty hours per week on the Commonwealth Project. New Horizons only paid one-and-a-half times the $15 hourly rate, and not one-and-a-half times the prevailing wage rate. He alleged that employees complained about the failure of New Horizons to pay prevailing wages, and New Horizons retaliated against some of these employees, firing at least one. The Appellant alleged that New Horizons' semiskilled laborers were employed by or on behalf of a public body engaged in the construction of public works, exclusive of maintenance work. He alleged that New Horizons violated the Missouri Prevailing Wage Act when it paid the semiskilled laborers less than the applicable prevailing wage. Further, he alleged that New Horizons violated the Missouri Minimum Wage Law by failing to pay overtime based on the prevailing wage rate. New Horizons answered the Appellant's petition, denying that it violated Missouri's prevailing or minimum wage laws. It ultimately filed a Motion for Summary Judgment on Dec. 20, 2019. Therein, New Horizons argued that it was undisputed that New Horizons' employees performed work on privately owned property under work orders entered into with a private entity, The Silliman Group, LLC. Further, New Horizons argued that it was undisputed that New Horizons did not enter into any construction contracts with the City of Kansas City, Missouri ("City") or PIEA, for said work. New Horizons argued that Appellant had not produced, and would not be able to produce, evidence showing that its employees who performed work under work orders entered into between New Horizons and The Silliman Group, LLC, were employed by or on behalf of PIEA or the City, which is required for statutory coverage under the Missouri Prevailing Wage Act. Further, as the Appellant's Missouri Minimum Wage Law claim required a finding that New Horizons violated the Missouri Prevailing Wage Act by not paying overtime consistent with the Missouri Prevailing Wage Act, this claim was also unsupported. The Appellant countered that the Prevailing Wage Act applied to the work performed by New Horizons' employees because the Commonwealth Project was publicly-funded. The Appellant filed its own "Appellants' Motion for Partial Summary Judgment on Liability" on the same date New Horizons filed its motion, and noted therein that Appellant anticipated raising most of Appellant's arguments in response to New Horizons' motion. In his own motion, the Appellant argued that, because he performed construction work on a public project, he was entitled to be paid prevailing wage. Appellant asked that the circuit court decide the issue of liability in his favor, and proceed to jury trial on the issue of damages. New Horizons responded that the public funding claimed to have been received from the City was in the form of a grant that was specifically designated to cover the cost of blight remediation work performed by contractors engaged by the developer. It was undisputed that New Horizons did not perform work for any contractor engaged by the developer. Nor was there evidence that New Horizons performed blight remediation work under the controlling documents. New Horizons argued that Appellant had no evidence that the work performed by New Horizons' employees was performed on behalf of a public entity, a requisite showing to establish liability under the Missouri Prevailing Wage Act. On April 6, 2020, the circuit court entered an "Order Overruling Defendant's Motion for Summary Judgment." On April 27, 2020, the circuit court set aside that order, noting that the order was an unfinished draft entered in error. On that same date, the circuit court denied the Appellant's motion for partial summary judgment, granted New Horizons' motion for summary judgment, and entered Judgment for New Horizons. The following day, the circuit court set aside that Judgment to allow the Appellant to obtain a deposition that had previously been ordered and scheduled, but not yet held, in connection with a contempt motion. Following the deposition, the Appellant filed additional exhibits and a supplemental response to New Horizons' Statement of Material Facts. On May 11, 2020, the circuit court again entered an order granting New Horizons' motion for summary judgment, and entered Judgment against the Appellant and in favor of New Horizons. The appeal follows. Discussion In reviewing the summary judgment record, the Appellate Court cannot conclude that the PIEA or the City was engaged in the construction of the Commonwealth Project such that New Horizons' workers could be considered employed by or on behalf of a public body. Contractual provisions and oversight to ensure that public works desired, encouraged, and incentivized by PIEA and the City are completed in a timely manner and in compliance with existing laws speak more to the City's accountability to its citizenry rather than actual engagement in the construction of public works. The Appellate Court finds that the circuit court correctly concluded that there is nothing in the factual record showing that PIEA or the City was involved in the construction of the Commonwealth Project. The circuit court correctly noted that the "factual record lacks any indication that the plans and specification for the public works were supplied only by the City or PIEA; no record that the City or PIEA retained the right to change the plans; no record that the City or PIEA supervised the construction work in the case." The Appellate Court agrees with the circuit court that the facts in this case are more akin to City of Sedalia, where the city issued revenue bonds to finance or sponsor construction on behalf of a private developer, than City of Camdenton, where a private developer financed construction on behalf of the city. Because the summary judgment record shows that neither the PIEA nor the City were engaged in the construction of the Commonwealth Project, New Horizons' workers employed under a contract with subcontractor, The Silliman Group, LLC, were not employed "by or on behalf of any public body engaged in the construction of public works." Hence, the Appellant's point on appeal will be denied. Conclusion For the foregoing reasons, the Appellate Court concludes that the circuit court did not err in granting New Horizons' motion for summary judgment. The circuit court's Judgment is affirmed. All concur. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/2p8ry9td from Leagle.com. NEW YORK CITY: Prelim. Injunction & TRO Bid in Broecker Suit Denied ------------------------------------------------------------------- In the case, Nicole Broecker, et al., Plaintiffs v. New York City Department of Education, City of New York, Meisha Porter, in her official and individual capacities, United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, Michael Mulgrew, in his official and individual capacities, John Doe #1-10, in their official and individual capacities, and Jane Doe #1-10 in their official and individual capacities, Defendants, Case No. 21-CV-6387 (KAM) (RLM) (E.D.N.Y.), Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York denied the Plaintiffs' motion for a preliminary injunction and temporary restraining order. Background The 83 named Plaintiffs are individuals, who have not received at least a first dose of a COVID-19 vaccine and are employees at schools operated by the New York City Department of Education ("NYC DOE"). The Named Defendants are the NYC DOE, the City of New York, Meisha Porter, the Chancellor of the NYC DOE, the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO ("UFT"), and Michael Mulgrew, President of the UFT. Defendants NYC DOE and the City of New York are entities responsible for enacting and enforcing a COVID-19 vaccination mandate issued on Aug. 24, 2021, requiring that all NYC DOE employees receive at least a first dose of a COVID-19 vaccination by Sept. 27, 2021, in order to work at NYC DOE schools. Defendant UFT is a labor organization through which certain named Plaintiffs are covered by a collective bargaining agreement ("CBA") with the NYC DOE. On Sept. 10, 2021, the UFT filed a Declaration of Impasse with the Public Employment Relations Board ("PERB") over the impact of the Vaccination Mandate. Following expedited mediation and discussions between the NYC DOE, the City of New York, and the UFT, the appointed arbitrator, on Sept. 10, 2021, the arbitrator issued a binding arbitration decision ("Impact Arbitration Award"), which established in relevant part (1) a processes for religious and medical exemptions and accommodation requests, namely, processes for staff to apply for, and appeal from adverse determinations for medical and religious accommodations to an independent arbitration panel (and the ability to remain on the DOE payroll and continued medical benefits coverage while such applications and appeals are pending); (2) options to voluntarily separate from DOE service with certain compensation benefits, or to elect for an extended non-disciplinary leave without pay ("LWOP"), all while maintaining health benefits until Sept. 5, 2022; and (3) that as of Dec. 1, 2021, the DOE may seek to unilaterally separate employees who have not complied with the Vaccination Mandate, or who have not obtained an approved exemption or accommodation and have not opted for either separation option. The UFT-specific Impact Arbitration Award covers the majority, but not all, of the named Plaintiffs. The UFT notified its members of the Impact Arbitration Award on Sept. 10, 2021, by circulating the Award and a "plain-language" explanation to UFT members. Following the issuance of the Sept. 10, 2021, Impact Arbitration Award, the City's Office of Labor Relations engaged in impact bargaining with the remaining unions representing NYC DOE employees, including the Council of Supervisors and Administrators ("CSA"), which represents NYC DOE principals and assistant principals, and District Council 37 ("DC 37"), which represents many school-based employees such as school aides, school food workers and Parent Coordinators. This, all parties were subject to similar terms regarding the Vaccine Mandate procedures. The Plaintiffs were notified on Oct. 2, 2021, that lack of compliance with the Vaccination Mandate would result in placement on LWOP as of Oct. 4, 2021, and that NYC DOE would seek to separate noncompliant employees as of Dec. 1, 2021 if they did not opt to extend their LWOP status and remained out of compliance with the Vaccination Mandate. The Plaintiffs allege three categories of claims in their Complaint. First, they allege that the Order violates their right to procedural due process under the Due Process Clause of the Fourteenth Amendment because the Plaintiffs have a property interest in their pay. Second, the Plaintiffs allege that the Vaccine Mandate violates their statutory and contractual rights, as the Plaintiffs have a right to have charges proffered against them and have a hearing before "discipline" is imposed pursuant to N.Y. Education Law Section 3020-1, or N.Y. Civil Service Law Section 75, or the applicable CBA. Third, they allege collusion and aiding and abetting under 42 U.S.C. Section 1983 against the UFT, Mulgrew, Porter, and unnamed Jane and John Doe Defendants. The Plaintiffs seek a preliminary injunction to enjoin and restrain (1) the Defendants from withholding pay from any and all tenured principals, assistant principals, and teachers who have failed to take a COVID-19 vaccine; (2) the Defendants from withholding pay from any and all civil service employees entitled to N.Y. Civil Service Law Section 75 rights who have failed to take a COVID-19 vaccine; (3) the Defendants from withholding pay from any and all employees of the NYC DOE who have failed to take a COVID-19 vaccine and who, as a term of their union's collective bargaining agreement with the NYC DOE, allegedly cannot be terminated or disciplined without a hearing; (4) the NYC DOE from disciplining, including but not limited to terminating, tenured principals, assistant principals, and teachers who have failed to take a COVID-19 vaccine without proffering charges and specifications and granting the tenured employees a hearing on the charges; (5) the NYC DOE from disciplining, including but not limited to terminating, any and all civil service employees entitled to N.Y. Civil Service Law Section 75 rights who have failed to take a COVID-19 vaccine, without proffering charges and specifications; and, (6) the NYC DOE from disciplining, including but not limited to terminating any and all employees of the NYC DOE who have failed to take a COVID-19 vaccine and who, as a term of their union's collective bargaining agreement with the NYC DOE, allegedly cannot be terminated or disciplined without proffering charges and specifications and a hearing. The parties appeared before the Court on Nov. 23, 2021, for a show cause hearing. During the show cause hearing, all parties requested supplemental briefing as to the specific issue of due process surrounding the forthcoming separation of nonexempt, unvaccinated Plaintiffs by the NYC DOE on and after Dec. 1, 2021. Specifically, the parties requested further briefing to address whether a vaccination requirement constitutes a legitimate condition of employment, and what, if any, due process requirements are implicated. Given the parties' request, Judge Matsumoto limit her analysis and decision as to the processes and procedures currently in the record governing the Plaintiffs' current LWOP period prior to separation, from Oct. 4, 2021, up to and including Nov. 30, 2021. Discussion As a threshold matter, Judge Matsumoto notes that the Plaintiffs failed completely in their papers to address the existence and effect of the Impact Arbitration Award reached between the UFT, the Council of Supervisors and Administrators, and District Counsel 37, which provides critical context for evaluating the Plaintiffs' request for preliminary injunction. She considers and incorporates the Sept. 10, 2021, Impact Arbitration Award, raised by the Defendants, into her analysis. I. Preliminary Injunction A. Likelihood of Success on the Merits Judge Matsumoto holds that the Plaintiffs failed, in their motion papers and at oral argument during the Nov. 23, 2021 show cause hearing, to establish a "clear" or "substantial" likelihood of success on the merits on any of their claims. First, it is dubious whether the Plaintiffs have standing to challenge the terms of the Impact Arbitration Award, and similar awards and agreements, because their respective union representatives engaged on their behalf with the NYC DOE, which process resulted in the arbitration awards and agreement. Further, the Impact Arbitration Award provides for an expedited review process for exemptions and accommodations, providing an opportunity to be heard for Plaintiffs challenging their placement on LWOP. In short, Judge Matsumoto finds that the Plaintiffs had, and continue to have, multiple avenues available to them to challenge and address the actions taken against them as a result of the Vaccination Mandate through the procedures established in the CBAs governing the terms of the Plaintiffs' employment, including the Impact Arbitration Award procedures, which provide grievance and arbitration procedures, and undisturbed, well-established state court procedures. B. Irreparable Harm Though the Plaintiffs need not make any further showing of irreparable harm once constitutional deprivations have been alleged, Judge Matsumoto is compelled to note that the harms resulting from noncompliance with the NYC DOE Vaccination Mandate identified by the Plaintiff are by no means irreparable. The Plaintiffs' articulated harms are: Loss of income while on LWOP, and their possible separation from NYC DOE, which they allege will occur without adequate processes. These pecuniary harms are neither irreparable nor sufficient to justify the presently requested injunctive relief. Further, Judge Matsumoto says the Plaintiffs' lengthy delay in seeking to enjoin the NYC DOE's intent to seek separation of noncompliant and nonexempt employees on Dec. 1, 2021 -- an occurrence that was entirely known to the Plaintiffs at least by Oct. 2, 2021, if not earlier -- greatly undermines the strength of their "emergency" motion for preliminary injunction. There was a delay of 44 days between the date of the Plaintiffs' actual placement on LWOP status and the filing of their instant request for preliminary injunction. The Plaintiffs' inaction does not convey a looming, irreparable harm, and does not invoke the "urgent need for speedy action to protect their rights," as is typical when injunctions are sought on an expedited basis. C. Balance of the Equities and D. The Public Interest Judge Matsumoto finds that both the balance of equities and the public interest disfavor the injunctive relief requested by the Plaintiffs. As she has noted, the loss of income while on LWOP status undoubtedly presents a hardship to the Plaintiffs. The Plaintiffs face this continued hardship if they continue to refuse to comply with the Vaccination Mandate. The role of the Court, however, is to "balance the competing claims of injury on each party of either granting or withholding the requested relief, paying particular regard to the public consequences." On balance, the equities at stake and the importance of safeguarding the public health and safety, and the public interest weigh in favor of denying the preliminary injunction. Ultimately, Judge Matsumoto says "it is up to local government, 'not the courts, to balance the competing public health and business interests,'" and in the case, the New York City government and NYC DOE have done so in issuing and enforcing the COVID-19 Vaccination Mandate for employees of the Department of Education. Conclusion Accordingly, Judge Matsumoto denied the Plaintiffs' motion for a preliminary injunction and temporary restraining order. Further, she finds that the Plaintiffs' have not demonstrated that they have standing to challenge the terms of the Impact Arbitration Award between the NYC DOE and the UFT in federal court. Therefore, the Plaintiffs are ordered to show cause by Dec. 15, 2021, why the action should not be dismissed for lack of standing. A full-text copy of the Court's Nov. 24, 2021 Memorandum & Order is available at https://tinyurl.com/ypt43yv4 from Leagle.com. NORTH CENTRAL: Delivery Drivers Win Class Status in Compton Suit ---------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL DEREK COMPTON, individually and on behalf of similarly-situated persons, v. NORTH CENTRAL VIRGINIA RESTAURANTS, INC. d/b/a "Papa John's Pizza," Case No. 5:20-cv-00073-TTC-JCH (W.D.Va.), the Hon. Judge Thomas T. Cullen entered an order: 1. certifying a class action comprised of: "all current and former delivery drivers employed in the Commonwealth of Virginia by Defendant at any time rom January 25, 2018 through the present;" 2. approving the form and content of the proposed notice submitted with the proposed Order granting Plaintiff’s Motion for Rule 23 Class Certification and authorizing dissemination of the notice; 3. directing the Defendant to disclose by December 10, 2021 the last known street address of all class members, to the extent that such contact information was not previously disclosed to Plaintiff’s counsel; 4. appointing Michael Derek Compton as the class representative; and 5. appointing Mark Potashnick of Weinhaus & Potashnick, Kevin Dolley of Dolley Law LLC, and Cary Powell Moseley of the Law Offices of Cary Powell Moseley, PLLC as class counsel; A copy of the Court's order dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3ofnfZo at no extra charge.[CC] NSC TECHNOLOGIES: Hearing on Thompson Deal Prelim. Approval Vacated ------------------------------------------------------------------- In the case, ARTHUR THOMPSON, an individual, and on behalf of others similarly situated, Plaintiff v. NSC TECHNOLOGIES, LLC, et al., Defendants, Case No. 20-cv-00371-JLS-MSB (S.D. Cal.), Judge Janis L. Sammartino of the U.S. District Court for the Southern District of California vacated the hearing on the Plaintiff's unopposed Motion for Preliminary Approval of Class Action Settlement set for Dec. 2, 2021. The Court took the matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). A full-text copy of the Court's Nov. 24, 2021 Order is available at https://tinyurl.com/2p8sfw65 from Leagle.com. NYC MEDICAL: Court Approves Proposed Notices in Lawrence Class Suit ------------------------------------------------------------------- In the case, KEYLEE LAWRENCE, COURTNEY BRACCIA, BRIA WARNER, and WENDY ROSADO, individually and on behalf of all others similarly situated, Plaintiffs v. NYC MEDICAL PRACTICE, P.C. d/b/a Goals Aesthetics and Plastic Surgery, and SERGEY VOSKIN, M.D., Defendants, Case No. 1:18-cv-8649-GHW (S.D.N.Y.), Judge Gregory H. Woods of the U.S. District Court for the Southern District of New York issued an Order approving: a. the parties' proposed Notice of Pendency of Class Action form, which was submitted to the Court on Nov. 18, 2021; and b. the parties' proposed Notice of Lawsuit with Opportunity to Join and Consent Form, which were submitted to the Court on Nov. 22, 2021. The Plaintiffs are directed, within 14 days following the date of the Order, to distribute and transmit the Notice of Lawsuit with Opportunity to Join and Consent Form to all individuals within the definition of the FLSA collective action, by first class U.S. Mail and electronically by personal and business email. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/yp4xe5c4 from Leagle.com. ONTARIO: Class Settlement Reached in Youth Inmates' Lawsuit ----------------------------------------------------------- The Ontario Superior Court of Justice has approved a $15 million settlement in a class action lawsuit involving the use of secure isolation of youth inmates under the age of 18 in Ontario's Youth Justice Facilities. The lawsuit alleged that the Province of Ontario's use of secure isolation in Youth Justice Facilities violated the Charter of Rights and Freedoms as well as other legal duties owed to youth inmates. The Province of Ontario has not admitted to these claims, and they have not been decided by a court. Under the court-approved settlement, persons who while under the age of 18 were segregated for more than 6 consecutive hours at Youth Justice Facilities in Ontario may qualify for damages payments. The segregation must have occurred between April 1, 2004 and December 17, 2018 at one the following Ontario Youth Justice Facilities: -- Bluewater Youth Centre -- Brookside Youth Centre -- Cecil Facer Youth Centre -- Donald Doucet Youth Centre -- Invictus Youth Centre -- Justice Ronald Lester Youth Centre -- Roy McMurtry Youth Centre -- Sprucedale Youth Centre -- Toronto Youth Assessment Centre Compensation for each qualifying placement in segregation is based on duration, and ranges from $1000 per placement to $40,000 per placement. James Sayce, a partner at Koskie Minsky LLP, has stated that "the settlement provides real compensation for a vulnerable class. We believe it is a fair outcome after many years of hard-fought litigation". The deadline for class members to submit claims under the settlement is August 26, 2022. Claim forms and additional information are available online at www.youthsegregationclassaction.ca. Class members may also contact the Claims Administrator by email to info@youthsegregationclassaction.ca or by calling toll-free 1-833-430-7538. [GN] OWLET INC: Faces Cherian Securities Suit Over Stock Price Drop -------------------------------------------------------------- JONES CHERIAN, Individually and on Behalf of All Others Similarly Situated v. OWLET, INC. f/k/a SANDBRIDGE ACQUISITION CORPORATION, KURT WORKMAN, KATE SCOLNICK, KEN SUSLOW, DOMENICO DE SOLE, RAMEZ TOUBASSY, JAMIE WEINSTEIN, KRYSTAL KAHLER, and MICHAEL F. GOSS, Case No. 2:21-cv-09293 (C.D. Cal., Nov. 30, 2021) is class action complaint pursuing claims against the Defendants under the Securities Exchange Act of 1934. This is a class action on behalf of persons and entities: (a) that purchased or otherwise acquired Owlet securities between March 31, 2021 and October 4, 2021, inclusive (the "Class Period"); and/or (b) held Sandbridge common stock held as of June 1, 2021 and were eligible to vote at Sandbridge's special meeting on July 14, 2021. On July 15, 2021, Sandbridge combined with Owlet Baby Care Inc., a company that designs and sells products and services for parents to proactively monitor the health and wellness of their children, and the combined company was renamed Owlet (the "Business Combination"). Owlet's flagship product is called Smart Sock, which is a baby monitor that allows parents to track an infant's oxygen levels, heart rate, and sleep trends in real time using the Owlet application. On October 4, 2021, Owlet revealed that it had received a warning letter from the U.S. Food and Drug Administration ("FDA"), which stated that "the Company's marketing of its Owlet Smart Sock product renders [it] a medical device requiring premarket clearance or approval from FDA." Owlet has not obtained such clearance or approval. Moreover, the FDA "requests the Company cease commercial distribution of the Smart Sock for uses in measuring blood oxygen saturation and pulse rate where such metrics are intended to identify or diagnose desaturation and bradycardia using an alarm functionality to notify users that measurements are outside of preset values," added the suit. On this news, Owlet's stock price fell $1.29, or 23%, to close at $4.19 per share on October 4, 2021, on unusually heavy trading volume. As a result, Sandbridge investors who could have voted against the Business Combination and redeemed their shares at $10.00 per share suffered a loss of $5.81 per share. Throughout the Class Period, the Defendants allegedly 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, the Defendants failed to disclose to investors that Owlet was reasonably likely to be required to obtain marketing authorization for the Smart Sock because the FDA concluded it was a medical device. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages, says the suit. The Plaintiff purchased Owlet securities during the Class Period, and suffered damages as a result of the federal securities law violations and false and/or alleged misleading statements and/or material omissions. Sandbridge was a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination with one or more businesses. The Individual Defendants are officers and directors of the Company.[BN] The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 1100 Glendon Avenue, 15th Floor Los Angeles, CA 90024 Telephone: (310) 405-7190 E-mail: jpafiti@pomlaw.com OXFORD HEALTH: Suit Seeks Mental Health Benefits Under ERISA ------------------------------------------------------------ MOLLY C. AND NAOMI L., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, v. OXFORD HEALTH INSURANCE, INC., Case No. 1:21-cv-10144 (S.D.N.Y., Nov. 30, 2021) involves claims by the Plaintiffs for mental health benefits under an employee benefit plan regulated and governed under Employee Retirement Income Security Act of 1974. According to the complaint, Oxford wrongfully denied both Molly and Naomi's claims for outpatient nutritional counseling for their eating disorders. Although Oxford denied Plaintiffs' nutrition claims, the company provides coverage under Plaintiffs' health plans for nutrition counseling for physical conditions such as diabetes. Oxford's denials for mental health nutritional counseling breached its fiduciary duties and its obligation to provide mental health benefits at a level on par with physical condition benefits, says the suit. Molly C. is a 22 year old woman treated for an eating disorder in 2019 and 2020. Naomi L. is a 24 year old woman treated for an eating disorder, bulimia nervosa, in 2019 and 2020. Both were allegedly denied outpatient nutritional counseling for treatment of their eating disorders under healthcare plans written and administered in a deficient manner by Oxford. Approximately 20 million women and 10 million men suffer from a clinically significant eating disorder at some time in their life. Eating disorders are the third most common chronic illness among adolescents, and the incidence of eating disorders in the United States has doubled since the 1960s. Eating disorders have the highest mortality rate of any mental illness, in excess of 20 percent. They can lead to medical complications including cardiac arrhythmia, heart failure, kidney stones and kidney failure, cognitive impairment, osteoporosis, constipation, electrolyte imbalance, muscle atrophy, amenorrhea, teeth erosion, irritation and tears of the throat, esophagus and stomach, emetic toxicity, infertility, and death. Suicide, depression, and severe anxiety are common side effects throughout the illness and treatment. This action is brought to obtain injunctive, declaratory, and other equitable and remedial relief to enforce the rights of the named Plaintiffs and all class members to have their benefit claims administered in compliance with the requirements of ERISA and the terms of their plans. Plaintiffs seek relief, including but not limited to, payment of health benefits; declaratory and injunctive relief clarifying the manner in which claims must be administered in the future; injunctive relief requiring that claims denied during the class period be re-reviewed in compliance with the law; prejudgment and post-judgment interest; and attorneys' fees and costs. Oxford Health Insurance Inc operates as an insurance company. The Company provides life, accident and health insurance services to its clients.[BN] The Plaintiffs are represented by: Eugene Killian, Jr., Esq. THE KILLIAN FIRM, P.C. 48 Wall Street, 11th Floor New York, NY 10005 Telephone: (212) 537-3866 PARETEUM SHAREHOLDERS: Investors Seek to Certify Class Action ------------------------------------------------------------- In the class action lawsuit RE PARETEUM SECURITIES LITIGATION, Case No. 1:19-cv-09767-AKH (S.D.N.Y.), the Lead Plaintiffs ask the Court to enter an order: 1. certifying this action pursuant to Rule 23 as a class action; 2. appointing them as Class Representatives; 3. appointing Kahn Swick & Foti, LLC as Class Counsel; and 4. granting such other and further relief as the Court may deem just and proper. The Lead Plaintiffs, the Pareteum Shareholder Investor Group (PSIG), comprised of Kevin Ivkovich, Stephen Jones, Keith Moore, Nicholas Steffey, and Robert E. Whitley, Jr. A copy of the Lead Plaintiffs' motion to certify class dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3pnXd5k at no extra charge.[CC] Lead Counsel for the Lead Plaintiff Pareteum Shareholder Investor Group, are: Kim E. Miller, Esq. J. Ryan Lopatka, Esq. Melissa H. Harris, Esq. KAHN SWICK & FOTI, LLC 250 Park Avenue, 7th Floor New York, NY 10177 Telephone: (212) 696-3730 Facsimile: (504) 455-1498 E-mail: kim.miller@ksfcounsel.com j.lopatka@ksfcounsel.com melissa.harris@ksfcounsel.com PAX LABS INC: Ortega Sues Over Non-Blind-Friendly Website --------------------------------------------------------- Juan Ortega, on behalf of himself and all others similarly situated, Plaintiff, v. Pax Labs, Inc., Defendants, Case No. 21-cv-10070, (S.D. N.Y., November 24, 2021), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act and New York City Human Rights Law. Pax Labs is an online retail company of vaporizer for wax and cannabis oil that owns and operates the website www.paxlabs.com offering products for delivery throughout the United States, including New York State. Ortega is legally blind nd claims that Pax Labs' website cannot be accessed by the visually-impaired.[BN] Plaintiff is represented by: Jonathan P. Rubin, Esq. LAW OFFICE OF JONATHAN P. RUBIN, PLLC 3000 Marcus Ave. Suite 1E5 Lake Success, NY 11042 Telephone: (516) 918-9347 Email: jprubinesq@gmail.com PETROQUEST ENERGY: Ct. Extends Class Cert. Reply Deadlines ---------------------------------------------------------- In the class action lawsuit captioned as Lee, et al., v. PetroQuest Energy, LLC, et al., Case No. 6:16-cv-00516 (E.D. Okla.), the Hon. Judge Ronald A. White entered an order granting joint motion to extend class certification reply deadlines. The replies are due by Jan. 14, 2022, says Judge White. Petroquest engages in the acquisition and exploration of oil and natural gas reserves in East Texas, Arkoma Basin, South Louisiana and the Gulf of Mexico.[CC] PICK-UP & GO: Pearson Sues Over Unpaid OT for Delivery Workers -------------------------------------------------------------- CRYSTAL PEARSON, individually and on behalf of all others similarly situated, Plaintiff v. PICK-UP & GO MOVING INTERNATIONAL, INC., Defendant, Case No. 1:21-cv-01595-SGC (N.D. Ala., December 2, 2021) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff handled packages for the Defendant by picking them up and delivering them. Pick-Up & Go Moving International, Inc. is a warehousing company based in North Carolina. [BN] The Plaintiff is represented by: Bernard R. Mazaheri, Esq. MAZAHERI & MAZAHERI P.O. Box 656 Frankfort, KY 40602 Telephone: (502) 475-8201 E-mail: bernie@thelaborfirm.com PILOT TRAVEL: Waltrip's Reply to Dismissal Bid May Exceed 30 Pages ------------------------------------------------------------------ In the case, JUSTON WALTRIP, ET AL., Plaintiffs v. PILOT TRAVEL CENTERS, LLC, and PILOT CORPORATION, Defendants, Civil No. 2:21-cv-00643-SMV-KRS (D. New Mexico), Magistrate Judge Stephan M. Vidmar of the U.S. District Court for the District of New Mexico granted the Plaintiffs' unopposed Motion for Leave to Exceed Page Limitation with respect to their Response to Defendants' Motion to Compel Arbitration, Motion to Enforce Class Action Waiver, and Motion to Dismiss. The Plaintiffs have leave to file a response not to exceed 30 pages. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/2p8mk5tp from Leagle.com. Benjamin W. Allen -- ballen@wallaceallen.com -- Wallace & Allen, LLP, in Houston, Texas, COUNSEL FOR THE PLAINTIFFS. Jessica D. Marshall -- Jessica.Marshall@lewisbrisbois.co -- LEWIS BRISBOIS BISGAARD & SMITH LLP, in Albuquerque, New Mexico, Alan L. Rupe -- Alan.Rupe@lewisbrisbois.com -- Pro Hac Vice LEWIS BRISBOIS BISGAARD & SMITH LLP, in Witchita, Kansas, Attorney for Defendant Pilot Travel Centers LLC and Pilot Corporation PROCH.COM INC: Court Allows Preston to File 1st Amended Complaint ----------------------------------------------------------------- In the case, ARIANA PRESTON, individually and on behalf of all others similarly situated, Plaintiff v. PROCH.COM, INC., a Delaware corporation; HIRE A HELPER LLC, a California limited liability company; KERI MILLER, an individual; and DOES 1 through 50, inclusive, Defendants, Case No. 21-CV-168 JLS (BLM) (S.D. Cal.), Judge Janis L. Sammartino of the U.S. District Court for the Southern District of California granted the Parties' Joint Motion for Leave to File a First Amended Complaint. Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend her complaint once as a matter of course within specified time limits. Courts generally grant leave to amend absent a showing of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment." The Plaintiff seeks leave to amend the FAC to "(1) add additional affiliated Defendants, (2) clarify the putative class definition to conform to the Settlement, and (3) add additional claims that pertain to newly discovered theories of liability that are to be released in the proposed Settlement, including claims for Labor Code Private Attorneys General Act ('PAGA') penalties premised on alleged violations of California Labor Code, as permitted by California Labor Code Section 2698 et seq.; the Defendants' alleged failure to provide meal periods, and authorize and permit rest periods; the Defendants' alleged failure to furnish accurate wage statements; Defendants' alleged failure to reimburse business related expenses; and the Defendants' alleged failure to pay vested vacation wages at the time of separation of employment." In light of the extremely liberal policy in favor of amendment and the Defendants' non-opposition to the Plaintiff's request, Judge Sammartino granted the Joint Motion. In light of the foregoing, she granted the Parties' Joint Motion. The Plaintiff will file the First Amended Class Action Complaint, previously filed as Exhibit A at ECF No. 29, within three Court days of the electronic docketing of the Order. Thereafter, the Clerk of the Court will update the caption and docket accordingly. Pursuant to the Parties' stipulation, the Defendants will not be required to file a responsive pleading to the First Amended Complaint pending approval of the Parties' proposed Settlement. A full-text copy of the Court's Nov. 24, 2021 Order is available at https://tinyurl.com/wc2265k from Leagle.com. PROCTER & GAMBLE: Sued Over Benzene-Based Antiperspirant Products ----------------------------------------------------------------- HALEY CANADAY, individually and on behalf of all others similarly situated, v. THE PROCTER & GAMBLE COMPANY, Case No. 3:21-cv-02024-AJB-JLB (S.D. Cal., Dec. 1, 2021) is a proposed class action complaint brought on behalf of a Class of California consumers who purchased aerosol antiperspirant products manufactured, marketed, advertised, sold and labeled by Defendant under the brand names "Secret" and "Old Spice". The Defendant allegedly failed inform Plaintiff and the Class members that the Products are benzene, a known carcinogen. Making matters worse, the Defendant discloses some ingredients, but failed to disclose the presence of benzene. The Defendant's misrepresentations and omissions about the Products were uniform and were communicated to the Plaintiff, and every other member of the Class, at every point of purchase and consumption throughout the Class Period, says the suit. This lawsuit seeks to enjoin Defendant's false and misleading practices and to recover damages and restitution on behalf of the class under applicable state laws. The Plaintiff purchased Secret Powder Fresh Aerosol from Walmart in San Diego, California, in or around October 2021.The label of the Product she purchased did not identify benzene as an active or inactive ingredient. In fact, it did not disclose the presence of benzene at all. Had Defendant not made the false, misleading, and deceptive representations and omissions in failing to disclose the presence of benzene in the Products, Plaintiff would not have been willing to pay the same amount for the product, and, consequently, she would not have been willing to purchase the Product at all, added the suit. The Defendant manufactures, markets, advertises and sells personal care products, also known as PCPs, including the Products, one or more of which were purchased by the Plaintiff and members of the proposed Class. Defendant manufactured, marketed, advertised, distributed and sold its Products widely throughout the State of California and the Southern District of California during the Class Period. The Defendant is a top manufacturer and distributor of PCPs, including deodorant and antiperspirant products.[BN] The Plaintiff is represented by: Michael R. Reese, Esq. Sue J. Nam, Esq. George V. Granade, Esq. REESE LLP 100 West 93 rd Street, 16 th Floor New York, NY 10025 Telephone: (212) 643-0500 E-mail: mreese@reesellp.com snam@reesellp.com ggranade@reesellp.com - and - Charles D. Moore, Esq. Kenneth D. Quat, Esq. QUAT LAW OFFICES 100 South 5th Street, Suite 1900 373 Winch Street Minneapolis, MN 55402 Framingham, Massachusetts 01701 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: ken@quatlaw.com cmoore@reesellp.com PRUDENTIAL FINANCIAL: New Jersey Court Dismisses Stone Class Suit ----------------------------------------------------------------- In the case, DOYLE C. STONE, individually and on behalf of all others similarly situated, Plaintiff v. PRUDENTIAL FINANCIAL, INC. and PRUCO LIFE INSURANCE COMPANY, Defendants, Civil Action No. 21-14610(SDW)(ESK)(D.N.J.), Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey granted the Prudential Financial and Pruco's motion to dismiss the Plaintiff's putative class action complaint. Background Defendant Prudential Financial is a Fortune 500 company "incorporated under the laws of New Jersey." Defendant Pruco is a wholly-owned subsidiary of Prudential Financial. The Defendants provide "a variety of products and services to both individual and institutional customers, including life and supplemental insurance, annuities, retirement-related services, investment management, and mutual funds." The Plaintiff, a resident of Kentucky, broadly alleges that the Defendants have "engaged in a scheme to deprive institutional participants and their beneficiaries of the value of their retirement, annuity, and insurance plans" by "utilizing deficient notification and identification practices, along with purposefully unclear descriptions of benefits, so that less than the full amount of funds due are distributed to Plan participants and their beneficiaries." Although the Complaint is far from clear, it appears that the Plaintiff is alleging that by failing to give proper notice, the Defendants 1) can mark Plans as "abandoned" and "transfer the unclaimed monies into their own accounts" instead of "transferring the funds to state unclaimed property accounts, as required by law," or 2) improperly invest "the retained funds for their own" benefit. The Plaintiff specifically pleads that Defendants fail to provide proper notice to holders of retirement plans, matured annuities, and life insurance plans that are "transferred to Prudential as a new administrator." The Plaintiff alleges that he is a Plan participant who holds three life insurance policies and one annuity plan and was promised, but did not receive, proper notice of changes to his policies from January 2010 through January 2021, causing him "to lose at least $30,000 in benefits" and incur "thousands of dollars in fees." He does not allege that he holds a retirement plan, a matured annuity, or a transferred life insurance policy. Nor does the Plaintiff identify the terms of his Plans, what changes were made to his policies that required notice, the identities of the individuals who made the alleged promises, or any facts supporting his claim for monetary harm. On Aug. 4, 2021, the Plaintiff filed suit in the Court, asserting claims for: violation of the New Jersey Consumer Fraud Act ("NJCFA"), N.J. Stat. Sections 56:8-1, et seq. (Count I); breach of fiduciary duty (Count II); unjust enrichment (Count III); and common law fraud (Count IV). The Plaintiff brings suit "on behalf of himself and all other persons in the United States who were (1) Plan participants in the retirement, annuity, and insurance Plans in or after January 2105 until the present date (the `Class Period') and were damaged by Defendants' deficient notification practices and/or improper transfer of funds to its own accounts or (2) the beneficiaries of such Plans (the 'Class')." The Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b) on Sept. 24, 2021, and all briefing was timely filed. Discussion A. Common Law Fraud (Count IV) To bring a claim for common law fraud under New Jersey law, a party must show: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Judge Wigenton opines that the Plaintiff's broad allegations fall far short of the specificity required by Rule 9(b). He alleges only that when he signed up for his Plans, "each company promised, through a Sales Representative and the Prudential Representatives who signed the policies, that he would receive proper notices to any changes in his policies." He does not identify who those representatives were, what precisely he was told, what was materially misleading or false about those statements, or that the individuals involved intended him to rely on their statements in order to misappropriate funds or benefits belonging to him. The Plaintiff's allegation that his reliance on those statements cost him $30,000 in benefits is not supported with any specific factual allegations. Therefore, Judge Wigenton holds that the Plaintiff has not sufficiently pled the elements for a claim of common law fraud under New Jersey law and that claim will be dismissed. B. NJCFA (Count I) To state a claim under the NJCFA, a plaintiff must sufficiently plead: "(1) unlawful conduct by the defendant; (2) an ascertainable loss by the plaintiff; and (3) a causal connection between the defendant's unlawful conduct and the plaintiff's ascertainable loss." Unlawful conduct may consist of "affirmative acts, knowing omissions, and violation of regulations promulgated under N.J. Stat. Ann Sections 56:8-2, 56:8-4." Because the NJCFA addresses fraudulent conduct, Judge Wigenton holds that Rule 9(b)'s heightened pleading standards apply. Having failed to satisfy the pleading requirements for common law fraud under New Jersey law, she finds that the Plaintiff has also failed to sufficiently plead a claim under the NJCFA and the Defendants' motion to dismiss Count One will be granted. C. Breach of Fiduciary Duty (Count II) In order to establish a claim for breach of fiduciary duty, a plaintiff must plead the following: (1) the defendant had a duty to the plaintiff, (2) the duty was breached, (3) injury to plaintiff occurred as a result of the breach, and (4) the defendant caused that injury. In order for a fiduciary duty to exist, there must be a 'special relationship of trust and confidence' between the parties. An 'ordinary commercial transaction based in contract' does not give rise" to such a relationship. Judge Wigenton opines that the Plaintiff's position that the Defendants owed him a fiduciary duty because they "performed all of the decisions on whether to restrict the Plaintiff and the Class' members benefits" is simply not enough to give rise to a special relationship of trust or confidence. Because the relationship between the Plaintiff and the Defendants is purely contractual, Juduge Wigenton holds that the Defendants' motion to dismiss Count Two will be granted with prejudice. D. Unjust Enrichment (Count III) Unjust enrichment is an equitable cause of action that imposes liability when a defendant received a benefit and "retention of that benefit without payment would be unjust." To state a claim for unjust enrichment under New Jersey law, a plaintiff must allege that '(1) at plaintiff's expense (2) defendant received benefit (3) under circumstances that would make it unjust for defendant to retain benefit without paying for it.'" However, restitution for unjust enrichment is an equitable remedy, available only when there is no adequate remedy at law. Where, in the case, the parties do not dispute that they entered into a valid contract, an aggrieved party's remedy is a breach of contract claim, not a claim for unjust enrichment. Because the Plaintiff has an adequate remedy at law, Count Three will be dismissed with prejudice. Conclusion For the reasons she set forth, Judge Wigenton granted the Defendants' Motion to Dismiss. The Plaintiff will have 30 days within which to file an amended complaint. The Defendants' pending Motion for Sanctions will be addressed after that amendment and any subsequent motion to dismiss is filed. An appropriate order follows. A full-text copy of the Court's Nov. 19, 2021 Opinion is available at https://tinyurl.com/ycks63du from Leagle.com. PUBLISHERS CLEARING: Sells Customers' Personal Info, Palmer Claims ------------------------------------------------------------------ BECKY PALMER, individually and on behalf of all others similarly situated, Plaintiff v. PUBLISHERS CLEARING HOUSE, INC., Defendant, Case No. 2:21-cv-06686 (E.D.N.Y., December 1, 2021) is a class action against the Defendant for violation of Ohio's Right of Publicity Law (ORPL). The case arises from the Defendant's alleged disregard of the Plaintiff's and Class members' statutorily protected rights under ORPL by selling and renting mailing lists containing the Plaintiff's and all of its other customers' names, addresses, and other personal identifying transactional data on the open market to data miners, data aggregators, data appenders, data cooperatives, list brokers, aggressive marketing companies, and various other parties interested in purchasing them. The Defendant's action of monetizing its customers' names and likenesses for commercial purposes without their consent is not only unlawful, but also dangerous because it allows any member of the public willing to purchase or rent this data to target particular customers, alleges the suit. Publishers Clearing House, Inc. is a direct marketing company, with its headquarters and principal place of business in Jericho, New York. [BN] The Plaintiff is represented by: Thomas L. Laughlin, IV, Esq. Jonathan M. Zimmerman, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: tlaughlin@scott-scott.com jzimmerman@scott-scott.com - and – Frank S. Hedin, Esq. Arun G. Ravindran, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: fhedin@hedinhall.com aravindran@hedinhall.com PUBLISHERS CLEARING: Sells Personal Transactional Data, Suit Says ----------------------------------------------------------------- ATTILIO FIORDIROSA, individually and on behalf of all others similarly situated v. PUBLISHERS CLEARING HOUSE, INC., Case No. 2:21-cv-06682 (E.D.N.Y., Dec. 1, 2021) alleges that Defendant sold, rented, and continues to sell and rent, mailing lists containing the Plaintiff's and all of its other customers' names and addresses (as well as gender, and information pertaining to their purchase of products from PCH (Personal Identifying Transactional Data)) on the open market to data miners, data aggregators, data appenders, data cooperatives, list brokers, aggressive marketing companies, and various other parties interested in purchasing them. Prior to monetizing the Plaintiff's and its other customers' Personal Identifying Transaction Data in this way, PCH did not ask for, much less obtain, consent from any of these individuals, the lawsuit says. The Plaintiff purchased products from PCH while residing in, being a citizen of, and being physically present in, Illinois. Publishers Clearing is a direct marketing company that markets merchandise and magazine subscriptions with sweepstakes and prize-based games.[BN] The Plaintiff is represented by: Thomas L. Laughlin, IV, Esq. Jonathan M. Zimmerman, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: tlaughlin@scott-scott.com jzimmerman@scott-scott.com - and - Frank S. Hedin, Esq. Arun G. Ravindran, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: fhedin@hedinhall.com aravindran@hedinhall.com PUBLISHERS CLEARING: Tanenbaum Sues Over Sale of Customers' Info ---------------------------------------------------------------- RUTH TANENBAUM, individually and on behalf of all others similarly situated, Plaintiff v. PUBLISHERS CLEARING HOUSE, INC., Defendant, Case No. 2:21-cv-06687 (E.D.N.Y., December 1, 2021) is a class action against the Defendant for violation of Puerto Rico's Right of Publicity Act (PRRPA). The case arises from the Defendant's alleged disregard of the Plaintiff's and Class members' statutorily protected rights under PRRPA by selling and renting mailing lists containing the Plaintiff's and all of its other customers' names, addresses, and other personal identifying transactional data on the open market to data miners, data aggregators, data appenders, data cooperatives, list brokers, aggressive marketing companies, and various other parties interested in purchasing them. The Defendant's alleged action of monetizing its customers' names and likenesses for commercial purposes without their consent is not only unlawful, but also dangerous because it allows any member of the public willing to purchase or rent this data to target particular customers. Publishers Clearing House, Inc. is a direct marketing company, with its headquarters and principal place of business in Jericho, New York. [BN] The Plaintiff is represented by: Thomas L. Laughlin, IV, Esq. Jonathan M. Zimmerman, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: tlaughlin@scott-scott.com jzimmerman@scott-scott.com - and – Frank S. Hedin, Esq. Arun G. Ravindran, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: fhedin@hedinhall.com aravindran@hedinhall.com PUSHPAY USA: Blankers et al. Sue Over Failure to Pay Proper OT -------------------------------------------------------------- AUDRA BLANKERS and W.B.T. ARNOLD, on behalf of themselves and others similarly situated, Plaintiffs v. PUSHPAY USA, INC., Defendant, Case No. 2:21-cv-01549 (W.D. Wash., November 16, 2021) bring this class and collective action complaint alleging the Defendant of violations of the Fair Labor Standards Act. The Plaintiffs and other similarly situated employees were employed by the Defendant as inside salespeople in the job title of sales development representative between March 1, 2018 and June 1, 2020. The Plaintiffs claim that they were misclassified by the Defendant as exempt from overtime compensation. Despite regularly working more than 40 hours per week, the Defendant did not pay them overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. Moreover, the Defendant has failed to keep true and accurate time records for all hours worked by its SDRs, and failed to provide them with meal and rest breaks. Pushpay USA, Inc. is a "full mobile giving and engagement solution that serves over 7,000 churches around the world." [BN] The Plaintiffs are represented by: Matthew Crotty, Esq. CROTTY & SON LAW FIRM, PLLC 905 W. Riverside Ave. Ste. 404 Spoken, WA 99201 Tel: (509) 850-7011 E-mail: matt@crottyandson.com - and – Douglas M. Werman, Esq. Michael T. Tresnowski, Esq. WERMAN SALAS P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Tel: (312) 419-1008 E-mail: dwerman@flsalaw.com mtresnowski@flsalaw.com - and – Sally J. Abrahamson, Esq. WERMAN SALAS P.C. 335 18th P. NE Washington, D.C. 20002 Tel: (202) 830-2016 E-mail: sabrahamson@flsalaw.com Q LINK WIRELESS: Faces Brown Sues Over Unsolicited Voice Messages ----------------------------------------------------------------- HADASSAH BROWN, individually and on behalf of all others similarly situated, Plaintiff v. Q LINK WIRELESS, LLC, Defendant, Case No. CACE-21-020554 (Fla. 17th Jud. Cir. Ct. November 16, 2021) is a class action complaint brought against the Defendant for its alleged violations of the Telephone Consumer Protection Act. The Plaintiff claims that the Defendant sent a prerecorded voice message to her cellular telephone number ending in 5288 on or about June 28, 2021 in an attempt to encourage the Plaintiff to purchase its products, goods and/or services. The Plaintiff asserts that she never provided the Defendant with her prior express written consent to call her on her cellular telephone utilizing a prerecorded voice message. As a result of the Defendant's alleged unsolicited call, the Plaintiff and other similarly situated individuals were harmed in the form of invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion, as well as inconvenience and disruption to their daily life. Q Link Wireless, LLC is a telecommunications company. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd., Suite 1400 Ft. Lauderdale, FL 33301 Tel: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and – Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Blvd., Suite 120 Fort Lauderdale, FL 33301 Tel: (954) 533-4092 E-mail: meisenband@eisenbandlaw.com QIHOO 360: Second Circuit Vacates Dismissal of Altimeo Class Suit ----------------------------------------------------------------- In the case, ALTIMEO ASSET MANAGEMENT AND ODS CAPITAL LLC, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants v. QIHOO 360 TECHNOLOGY CO. LTD., ERIC X. CHEN, Defendants-Appellees, HONYI ZHOU, XIANGDONG QI, Defendants, Case No. 20-3074 (2d Cir.), the U.S. Court of Appeals for the Second Circuit vacates the district court's dismissal of the Appellants' claim and remands for further proceedings. Introduction In the case, the Second Circuit must decide whether the Appellants, representing a putative class of investors, plausibly alleged a misstatement or omission of material fact sufficient to state a claim for securities fraud and therefore to survive a motion to dismiss. The Appellants claim that the appellees represented to shareholders that there were no plans to relist the company following a shareholder buyout, when in fact the company had such a plan at the time of the buyout. Usually, to survive a motion to dismiss a complaint need only plead "enough facts to state a claim to relief that is plausible on its face." However, "for complaints alleging securities fraud, the Second Circuit applies heightened pleading requirements imposed by Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act." The district court considered the sources and contents of the pleaded facts, and it held that the Appellants' complaint did not meet those requirements. Background Appellee Qihoo is an internet company, incorporated under the laws of the Cayman Islands and headquartered in Beijing. It was founded by Hongyi Zhou and Xiangdong Qi; Zhou served as the chairman and chief executive officer of Qihoo, while Qi served as its president and a director. In 2011, Qihoo listed its American depository shares on the New York Stock Exchange. Zhou and Qi owned Qihoo securities through their holding vehicles Global Village Associates Limited and Young Vision Group Limited, respectively. In May 2015, Zhou discussed with two investment funds the possibility of taking Qihoo private. He also discussed the possibility with Qi. On June 17, Zhou -- along with four investment funds, Global Village, Young Vision, and other investors (the "Buyer Group") -- provided Qihoo's board with a proposal to acquire all outstanding shares not owned by the board (the "Merger"). The proposal prompted the board to form a Special Committee chaired by director Eric Chen, who is also an appellee in the case. The Special Committee retained J.P. Morgan Securities (Asia Pacific) Limited to evaluate the proposal. Ultimately, J.P. Morgan gave the Special Committee its opinion that the proposal was fair, and in December 2015 the Special Committee "expressly adopted" J.P. Morgan's "analyses and opinion." The Special Committee and the board approved the Merger, and the board recommended that the shareholders approve it as well. On December 18, 2015, Qihoo executed the Merger with the Buyer Group. The Merger was approved with 99.8 percent of the votes cast at the shareholder meeting, and it was closed on July 15, 2016. The outstanding shares were purchased for $9.4 billion. After the Merger, Qihoo spun off its main businesses into 360 Technology Co. Ltd. On Nov. 2, 2017, SJEC -- an elevator-manufacturing company listed on the Shanghai Stock Exchange -- "announced that it would be conducting a backdoor listing," that is, a reverse merger, with 360 Technology Co. Ltd. I About four months later, on Feb. 28, 2018, the necessary asset restructuring was completed and Qihoo shares effectively began trading on the Shanghai Stock Exchange. By the end of the first trading day, Qihoo had a market capitalization of $62 billion. Altimeo Asset Management is a portfolio management company based in France. ODS Capital LLC ("ODS") is a Florida limited liability company with its primary office in Jupiter, Florida. Both Altimeo and ODS, the Appellants in the case, traded Qihoo securities during the period from December 2015 to June 2016. In August 2019, Altimeo and ODS, on behalf of themselves and similarly situated Plaintiffs, filed a putative class action complaint in the U.S. District Court for the Central District of California. The complaint alleged that Qihoo, Zhou, Qi, and Chen violated Section 10(b), Section 20(a), and Section 20A of the Exchange Act, as well as SEC Rule 10b-5. The complaint alleged that the Buyer Group had a plan to relist Qihoo in the Chinese capital market at the time of the Merger and that the financial projections the appellees provided to the Buyer Group differed from the projections provided in the Proxy Materials. Because the appellants did not know of the plan to relist or these more optimistic projections, they sold their securities at "artificially deflated prices." To support its allegations, the complaint refers to several sources. It refers to a confidential witness who "worked in Qihoo's Public Relations department" from 2014 to 2017 and "reported to a senior editor in the department." Among other things, the witness claims that, in mid-2015, the witness "attended a department meeting where Defendant Qi directed the attendees that they needed to keep a low profile concerning the relisting plan and should 'not release this information outside the company.'" The complaint also incorporates news articles in Chinese publications from November and December 2015 in which the authors report that the privatization plan Qihoo distributed to the Buyer Group included plans to relist the company. And the complaint further alleges that "it typically takes companies at least a full year on the quickest possible timeline, and usually longer, from the time they first start to consider a backdoor listing until they reach agreement with a shell company to conduct a reverse merger." Moreover, the complaint states that "Qihoo's fundamental restructuring of its businesses was particularly complex and would have required a significant amount of time to complete following the Merger." The case was transferred to the U.S. District Court for the Southern District of New York on Oct. 30, 2019. The Appellees filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, holding that the complaint "does not adequately allege any material misrepresentations or omissions by the Defendants." In particular, the district court held that the complaint did not adequately plead "that the Defendants, as of the Merger, had in place a concrete plan to relist Qihoo" as opposed merely "to envisioning a possible future relisting." Altimeo and ODS now appeal. Discussion The Second Circuit reviews the district court's dismissal of a complaint de novo. The Appellants' complaint contains three counts. Count I alleges that the Appellees are liable for false or misleading statements in violation of Section 10(b) of the Exchange Act and SEC Rule 10b-5. Count II claims that Qihoo, Zhou, and Qi traded Qihoo securities while in possession of insider information in violation of Section 20A of the Exchange Act. Finally, Count III asserts that Zhou, Qi, and Chen violated Section 20(a) of the Exchange Act as controlling persons of Qihoo during the time Qihoo violated Section 10(b). The district court dismissed the complaint in its entirety. I First, the Second Circuit considers the Appellants' claim under Section 10(b) and Rule 10b-5. The district court held that the appellants failed adequately to allege the first element of a Rule 10b-5 claim -- specifically, the complaint "did not adequately allege any material misrepresentations or omissions by the Defendants." The Second Circuit disagrees that the Appellants failed adequately to allege any material misrepresentations or omissions. It finds that the Appellants adequately alleged misstatements and omissions on the part of the Appellees. The allegations create a plausible inference that a concrete plan was in place at the time Qihoo issued the Proxy Materials. The alleged misstatements and omissions were also material. In sum, "even securities plaintiffs need not prove their entire case within the confines of the complaint." Regardless of whether the Appellants ultimately prove that there are material misstatements or omissions of fact, the Second Circuit holds that they have alleged enough to survive a motion to dismiss on those grounds. II. The Appellants also allege violations of Section 20(a) and Section 20A of the Exchange Act. The district court dismissed the Appellants' claims under Section 20(a) and Section 20A because it held that the appellants did not adequately allege an independent Exchange Act violation -- in the case, the Section 10(b) claim. As the Second Circuit has explained, the district court erred when it held that the Appellants failed adequately to allege a material misstatement or omission. It therefore vacates the district court's dismissal of the Section 20(a) and Section 20A claims as well. Conclusion The Second Circuit concludes that the Appellants adequately alleged a misstatement or omission of material fact. In the complaint, the Appellants included facts from which the Second Circuit can infer that, in order for the company to have been relisted when it was, the Appellees must have been planning to relist at the time of the shareholder vote. The Appellants also included references to news articles indicating that, before the shareholder vote, the Appellees were already planning to relist the company. The Second Circuit therefore vacates the district court's dismissal of the Appellants' claim and remands for further proceedings consistent with its Opinion. A full-text copy of the Court's Nov. 24, 2021 Opinion is available at https://tinyurl.com/y4eybwty from Leagle.com. JEREMY A. LIEBERMAN -- jalieberman@pomlaw.com -- (Michael Grunfeld -- mgrunfeld@pomlaw.com -- on the brief), Pomerantz LLP, in New York City, for the Plaintiffs-Appellants. DAVID KISTENBROKER -- david.kistenbroker@dechert.com -- (Joni Jacobsen -- joni.jacobsen@dechert.com -- Angela Liu -- angela.liu@dechert.com -- Brian Raphel -- brian.raphel@dechert.com -- on the brief), Dechert LLP, in Chicago, Illinois, for the Defendants-Appellees. QUINSTREET PL: Faces Pizarro TCPA Suit Over Prerecorded Messages ---------------------------------------------------------------- Sharon Pizarro, Individually and on Behalf of All Others Similarly Situated v. Quinstreet PL Inc. d/b/a AmOne, a California corporation, Case No. 1:21-cv-10139 (S.D.N.Y., Nov. 30, 2021) is a class action complaint for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Quinstreet, in negligently and/or willfully using prerecorded messages to call Plaintiff on Plaintiff's cellular telephone, without Plaintiff's express consent, in violation of the Telephone Consumer Protection Act. The Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. The Plaintiff also seeks statutory damages on behalf of Plaintiff and members of the Class, and any other available legal or equitable remedies. The Defendant operates under the names AmOne and GuideToLenders and is a wholly-owned subsidiary of QuinStreet, Inc. a publicly traded company. The Defendant offers debt consolidation, auto and home improvement loans to consumers and charges an interest rate and/or other fees for doing so.[BN] The Plaintiff is represented by: Rachel N. Dapeer, Esq. DAPEER LAW, P.A. 20900 N.E. 30th Ave., Ste. 417 Aventura, FL 333180 Telephone: (305) 610-5223 E-mail: rachel@dapeer.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com RCI LLC: N.D. Ohio Dismisses Bryan TCPA Suit With Prejudice ----------------------------------------------------------- Judge J. Philip Calabrese of the U.S. District Court for the Northern District of Ohio, Eastern Division, dismissed the case, TARA BRYAN, Plaintiff v. RCI, LLC, Defendant, Case No. 1:21-CV-00291 (N.D. Ohio), with prejudice pursuant to Rule 41(a)(2). Background Plaintiff Bryan filed the matter as a putative class action alleging Defendant RCI, LLC violated the Telephone Consumer Protection Act. After significant discovery limited to whether any third parties were involved in making the alleged marketing calls at issue, the Plaintiff withdrew the class allegations and now moves to dismiss the case without prejudice under Rule 41(a)(2). Analysis After a defendant has filed an answer, as in the case, or motion for summary judgment, a plaintiff may obtain a voluntary dismissal "only by court order, on terms that the court considers proper." This type of dismissal generally is without prejudice. Requiring court approval "protects the nonmovant from unfair treatment." I. Plain Legal Prejudice Whether to grant dismissal rests "within the sound discretion of the district court." In exercising this discretion, courts consider whether "the defendant would suffer 'plain legal prejudice' as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a second lawsuit." To determine whether a defendant will suffer plain legal prejudice, a court considers factors such as: (1) "the defendant's effort and expense of preparation for trial," (2) "excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action," (3) "insufficient explanation for the need to take a dismissal," and (4) "whether a motion for summary judgment has been filed by the defendant." On the record presented, Judge Calabrese opines that these factors and the interests of justice favor dismissal with prejudice. A. Effort and Expense The effort and expense of preparation for trial weighs in the Defendant's favor. Although the Court did not schedule a trial date, the proceedings advanced considerably toward class certification and resolution on the merits through summary judgment or trial. In addition to exchanging discovery, the Defendant undertook an "extensive investigation of Plaintiff's claims and RCI's business records" to find some factual connection between the allegations and Defendant's conduct. The Defendant moved to strike the class allegations, though the Plaintiff's decision to withdraw her class allegations rendered that motion moot. Further, the Defendant produced two witnesses for deposition as well as a witness to testify under Rule 30(b)(6) regarding a wide range of topics, including its practices and procedures for solicitations, its vendors, and its services. The Plaintiff directs the Court to Moran v. Ruan Logistics, No. 1:18-cv-223, 2020 WL 4732991 (S.D. Ohio Aug. 15, 2020), which held that dismissal after two years of litigation did not prejudice the defendants enough to preclude voluntary dismissal without prejudice. The Moran Court reasoned that most of the discovery could be reused in any re-filed action. Even if that is the case in the matter, though it may not be, the Moran Court noted the "case is a close call." On the different facts and circumstances in the case, the case is not a close call. The Defendant's efforts and expenses expended favor a finding of legal prejudice if the matter is dismissed without prejudice. B. Delay The Plaintiff has not unreasonably delayed her prosecution of the action, Judge Calabrese finds. He states that the Plaintiff has diligently pursued evidence for her claims with targeted discovery under the direction and supervision of the Court. The Defendant argues she has unreasonably delayed in seeking dismissal, but that is not quite what this factor examines. Whether or not the Plaintiff delayed in seeking dismissal, Judge Calabrese opines that she actively prosecuted the case. Under these circumstances, any delay would not amount to plain legal prejudice to the Defendant. C. Reason for Dismissal The Plaintiff claims that she will need to subpoena the third-party entity she believes is connected to Defendant and "hundreds if not thousands" of other international entities to pursue her claims and that such extensive discovery is disproportionate to a case without class allegations. The additional discovery would be necessary to connect the Defendant to the phone calls the Plaintiff allegedly received in violation of the Telephone Consumer Protection Act. As Defendant points out, Judge Calabrese holds that the discovery so far has not yet connected Defendant to the calls, and there is no indication that additional discovery will, no matter how much fishing the Plaintiff undertakes. This factor also supports legal prejudice from a dismissal without prejudice. D. Summary Judgment The Plaintiff is correct that no party has sought adjudication on the merits or moved for summary judgment, Judge Calabrese holds. But, he finds that the voluminous discovery to date indicates that a motion for summary judgment is forthcoming and, as the Defendant notes, but for the Court staying the case, the deadline for such motions is Jan. 10, 2022. At most, this factor is neutral. In Judge Calabrese's view, however, the substantial progress on the merits of the case weigh in favor of dismissal with prejudice. II. Fees Alternatively, the Defendant requests an award of fees under Rule 41(a)(2) in the event the action is dismissed without prejudice. Because he dismisses the matter with prejudice, Judge calabrese declines to award Defendant its fees and costs. In any event, nothing about the litigation justifies a departure from the traditional American Rule under which each party bears its fees and costs. Conclusion For the foregoing reasons, and on consideration of the record as a whole and the parties' respective arguments, Judge Calabrese exercises discretion to dismiss the action with prejudice. In doing so, he finds that the Defendant would suffer plain legal prejudice, not merely the prospect of a second lawsuit. Between the efforts and expense expended already, the Plaintiff's admission that extensive additional international discovery would be necessary to pursue her case against the Defendant, and the progress of the case toward dispositive motions, the record shows the legal prejudice the Defendant would suffer from a dismissal without prejudice. Accordingly, Judge Calabrese granted in part and denied in part the Plaintiff's motion. He dismissed the case with prejudice pursuant to Rule 41(a)(2). The Clerk will enter judgment accordingly. A full-text copy of the Court's Nov. 19, 2021 Opinion & Order is available at https://tinyurl.com/yckzuftk from Leagle.com. REPROSOURCE FERTILITY: Faces Bickham Suit Over Personal Data Breach ------------------------------------------------------------------- JASMYN BICKHAM, individually and on behalf of all others similarly situated, Plaintiff v. REPROSOURCE FERTILITY DIAGNOSTICS, INC., Defendant, Case No. 1:21-cv-11879-GAO (D. Mass., Nov. 19, 2021) is a class action against the Defendant for its failure to exercise reasonable care in securing and safeguarding its patients' sensitive personal data, including names, addresses, email addresses, dates of birth, Social Security numbers, health insurance billing information, and treating physician information, collectively known as personally identifiable information ("PII" or "Private Information"). According to the complaint the sensitive PII of the Plaintiff and the Class were stolen by cybercriminals in a cyber-attack that accessed sensitive patient information through ReproSource's services on or around August 8, 2021 (the "Data Breach"). The alleged Data Breach affected at least 350,000 individual customers of ReproSource's services. ReproSource reported to the Plaintiff that information compromised in the Data Breach included her PII. The Plaintiff was not notified of the data breach until October 21, 2021, more than two months after her information was first accessed. As a result of the Data Breach, the Plaintiff and the Class will experience various types of misuse of their PII in the coming months and years, including but not limited to unauthorized credit card charges, unauthorized access to email accounts, identity theft, and other fraudulent use of their financial accounts, says the suit. There has been no assurance offered by ReproSource that all personal data or copies of data have been recovered or destroyed. ReproSource offered to provide Kroll credit monitoring, which does not guarantee the security of Plaintiff's or Class members' information. To mitigate further harm, the Plaintiff chose not to disclose any more information in order to receive services connected with ReproSource, added the suit. REPROSOURCE FERTILITY DIAGNOSTICS, INC. specializes in diagnostic services, such as genetics-based ovarian health and recurrent pregnancy loss assessments. [BN] The Plaintiff is represented by: David Pastor, Esq. PASTOR LAW OFFICE, LLP 63 Atlantic Avenue, 3rd Floor Boston, MA 02110 Telephone: (617) 742-9700 Facsimile: (617) 742-9701 Email: dpastor@pastorlawoffice.com -and- Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD, LLP 412 H Street, NE, Suite 302 Washington, DC 20002 Telephone: (202) 470-520 Facsimile: (202) 800-2730 Email: nmigliaccio@classlawdc.com RESIDEO TECH: Entwistle & Cappucci Reminds of Jan. 27 Deadline -------------------------------------------------------------- IN RE RESIDEO TECHNOLOGIES, INC. SECURITIES LITIGATION Case No. 19-cv-02863 (WMW/KMM) SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION AND MOTION FOR ATTORNEYS' FEES AND EXPENSES To: All persons and entities who or which purchased or otherwise acquired the common stock of Resideo Technologies, Inc. ("Resideo" or the "Company") during the period from October 15, 2018 through November 6, 2019, inclusive, and were damaged thereby ("Settlement Class"). YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of Minnesota, that Court-appointed Lead Plaintiffs The Gabelli Asset Fund, The Gabelli Dividend & Income Trust, Gabelli Focused Growth and Income Fund f/k/a The Gabelli Focus Five Fund, The Gabelli Multimedia Trust Inc., The Gabelli Value 25 Fund Inc., GAMCO International SICAV, GAMCO Asset Management Inc., Naya 1740 Fund Ltd., Naya Coldwater Fund Ltd., Naya Master Fund LP and Nayawood LP, and additional plaintiff Oklahoma Firefighters Pension and Retirement System, on behalf of themselves and all members of the proposed Settlement Class, and defendants Resideo, Michael G. Nefkens, Joseph D. Ragan III and Niccolo de Masi (collectively, "Defendants"), have reached a proposed settlement of the claims in the above-captioned class action (the "Action") in the amount of $55,000,000 (the "Settlement"). A hearing will be held before the Honorable Wilhelmina M. Wright, either in person or remotely in the Court's discretion, on January 27, 2022, at 9:00 a.m. in Courtroom 7A of the United States District Court for the District of Minnesota, Warren E. Burger Federal Building and U.S. Courthouse, 316 North Robert Street, Saint Paul, MN 55101 (the "Settlement Hearing") to determine whether the Court should: (i) approve the proposed Settlement as fair, reasonable and adequate; (ii) dismiss the Action with prejudice as provided in the Stipulation and Agreement of Settlement, dated August 17, 2021; (iii) approve the proposed Plan of Allocation for distribution of the proceeds of the Settlement (the "Net Settlement Fund") to Settlement Class Members; and (iv) approve Co-Lead Counsel's Fee and Expense Application. The Court may change the date of the Settlement Hearing, or hold it remotely, without providing another notice. You do NOT need to participate at the Settlement Hearing to receive a distribution from the Net Settlement Fund. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO A MONETARY PAYMENT. If you have not yet received a full Notice and Claim Form, you may obtain copies of these documents by visiting the website for the Settlement, www.ResideoTechnologiesSettlement.com, or by contacting the Claims Administrator at: Resideo Technologies Settlement c/o JND Legal Administration P.O. Box 91250 Seattle, WA 98111 www.ResideoTechnologiesSettlement.com 833-823-0043 Inquiries, other than requests for information about the status of a claim, may also be made to Co-Lead Counsel: ENTWISTLE & CAPPUCCI LLP Andrew J. Entwistle, Esq. Frost Bank Tower 401 Congress Avenue, Suite 1170 www.entwistle-law.com 512-710-5960 LABATON SUCHAROW LLP Ira A. Schochet, Esq. 140 Broadway New York, NY 10005 www.labaton.com settlementquestions@labaton.com 888-219-6877 If you are a Settlement Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Claim Form postmarked or submitted online no later than March 4, 2022. If you are a Settlement Class Member and do not timely submit a valid Claim Form, you may not be eligible to share in the distribution of the Net Settlement Fund, but you will nevertheless be bound by all of the terms of the Stipulation and Agreement of Settlement, and all of the terms of the Judgment or any Alternative Judgments or orders entered by the Court relating to the Settlement, whether favorable or unfavorable. If you are a Settlement Class Member and wish to exclude yourself from the Settlement Class, you must submit a written request for exclusion in accordance with the instructions set forth in the Notice so that it is received no later than January 6, 2022. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court relating to the Settlement, whether favorable or unfavorable, and you will not be eligible to share in the distribution of the Net Settlement Fund. Any objections to the proposed Settlement, Co-Lead Counsel's Fee and Expense Application and/or the proposed Plan of Allocation must be filed with the Court, either by mail or in person, and be mailed to counsel for the Parties in accordance with the instructions in the Notice, such that they are received no later than January 6, 2022. PLEASE DO NOT CONTACT THE COURT, DEFENDANTS OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. BY ORDER OF THE COURT UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA [GN] ROBINHOOD MARKETS: Fails to Protect Customers' Info, Glinoga Says ----------------------------------------------------------------- MARK GLINOGA, individually and on behalf of all others similarly situated, Plaintiff v. ROBINHOOD MARKETS, INC.; ROBINHOOD CRYPTO, LLC; ROBINHOOD FINANCIAL LLC; and ROBINHOOD SECURITIES, LLC, Defendants, Case No. 4:21-cv-09290-KAW (N.D. Cal., December 1, 2021) is a class action against the Defendants for negligence, breach of contract, breach of implied contract, unjust enrichment, and violations of California Unfair Competition Law and California's Consumer Privacy Act. The case arises from the Defendants' failure to safeguard the Personal Identifying Information (PII) of their customers, including the Plaintiff, from unauthorized access. The Defendants failed to implement adequate and reasonable cyber-security procedures and protocols necessary to protect PII. As a result, an alleged data breach occurred on the Defendants' customer support systems which compromised the confidential information of its customers. Robinhood Markets, Inc. is a financial services company, headquartered in Menlo Park, California. Robinhood Crypto, LLC is a wholly-owned subsidiary of Robinhood Markets, Inc., with its principal place of business located at 85 Willow Road, Menlo Park, California. Robinhood Financial LLC is a wholly-owned subsidiary of Robinhood Markets, Inc., with its principal place of business located at 85 Willow Road, Menlo Park, California. Robinhood Securities, LLC is a wholly-owned subsidiary of Robinhood Markets, Inc., with its principal place of business located at 85 Willow Road, Menlo Park, California. [BN] The Plaintiff is represented by: Jonathan Shub, Esq. Kevin Laukaitis, Esq. SHUB LAW FIRM LLC 134 Kings Hwy. E., 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 E-mail: jshub@shublawyers.com klaukaitis@shublawyers.com SANDERSON FARMS: Court Tosses All Remaining Claims in La Fosse Suit ------------------------------------------------------------------- Judge Richard Seeborg of the U.S. District Court for the Northern District of California, San Francisco Division, dismissed with prejudice all remaining claims in the case, PAM La FOSSE, et al., Plaintiffs v. SANDERSON FARMS, INC., Defendant, Case No. 3:19-CV-06570 (RS) (N.D. Cal.). After a considerable expenditure of legal resources and a detailed review of the facts and law -- including the Ninth Circuit's decision in Cohen v. ConAgra Brands, Inc., No. 20-55969, 2021 WL 4956243 (9th Cir. Oct. 26, 2021) -- Plaintiff Pam La Fosse has determined to voluntarily dismiss her claims against Sanderson with prejudice. The Plaintiff and her counsel no longer seek to certify a class in the action and withdraw any class allegations. Sanderson has not paid and will not pay to the Plaintiff any consideration in respect of this dismissal, nor has Sanderson provided nor will it provide any other form of relief, and the Plaintiff acknowledges she has not received and will not receive any compensation or relief in voluntarily deciding to dismiss her claims. The Parties all consent to dismissal of the Plaintiff's claims in accordance with and in recognition of the representations. Although the matter was filed as a class action, the class was not certified nor proposed to be certified, such that Court approval of the dismissal pursuant to Rule 23(e) of the Federal Rules of Civil Procedure is not required. The Parties agree to bear their own costs and legal fees as incurred. In recognition of the foregoing, and pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiff La Fosse and Defendant Sanderson stipulate that all remaining claims should be dismissed with prejudice. The Parties agree to bear all costs as incurred. Judge Seeborg so ordered. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/2p8as88d from Leagle.com. SCHEAR CONSTRUCTION: Fails to Pay Proper Wages, Book Suit Alleges ----------------------------------------------------------------- MICHAEL BOOK, individually and on behalf of all others similarly situated, Plaintiff v. SCHEAR CONSTRUCTION, LLC, Defendant, Case: 3:21-cv-00080 (D.V.I., Nov. 18, 2021) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Book was employed by the Defendant as laborer. SCHEAR CONSTRUCTION, LLC is a contractor providing stucco, drywall and metal framing. [BN] The Plaintiff is represented by: Nathan J. Mirocha, Esq. MIROCHALAW LLC 1138 King Street, 108 Christiansted, VI 00820 Telephone: (340) 715-7790 Email: nate@mirochalawvi.com SER ENTERPRISES: Hernandez Files Labor Class Action --------------------------------------------------- Gabriel Hernandez, individually and on behalf of all those similarly situated Plaintiff, v. SER Enterprises, Inc. and DHL Express (USA) Inc., Defendant, Case No. 21-cv-01174 (W.D. Tex., November 23, 2021), seeks all available remedies under the Fair Labor Standards Act. DHL is a logistics that transport goods to customers across the United States, as well as in other countries and territories. SER provides last-mile delivery services to DHL. SER employs courier rrivers, such as Hernandez, to deliver packages to DHL's customers. Hernandez was hired in April 2018 and worked as a Courier Driver for Defendants until August 2019 in DHL's ServicePoint facility in San Antonio, TX, delivering packages on behalf of DHL. He regularly worked more than 40 hours per week without being paid overtime premiums. He also claims to be denied meal breaks yet Defendants automatically deducted 30 minutes for a meal break from each shift worked, regardless of whether he took a break during the workday, asserts the complaint. [BN] Plaintiff is represented by: Shanon J. Carson, Esq. Camille Fundora Rodriguez, Esq. Alexandra K. Piazza, Esq. Daniel F. Thornton, Esq. BERGER & MONTAGUE, P.C. 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Tel: (215) 875-3000 Fax: (215) 875-4620 Email: scarson@bm.net crodriguez@bm.net apiazza@bm.net dthornton@bm.net SOCLEAN INC: Philips Devices Contain PE-PUR Foam, Bradley Suit Says ------------------------------------------------------------------- LEONARD BRADLEY & CHINEDU EKWEOZOH, on behalf of themselves and all others similarly situated v. SOCLEAN, INC., Case No. 1:21-cv-01029 (D.N.H., Dec. 1, 2021) is a class action complaint brought by the Plaintiffs on behalf of themselves and proposed class and subclasses of purchasers and users of SoClean's ozone cleaning devices (the "SoClean Devices"), which are used to clean Continuous Positive Airway Pressure (CPAP), Bi-Level Positive Airway Pressure (BiPAP) devices, and mechanical ventilators manufactured by Philips (the "Philips Devices"). The Philips Devices contain polyester-based polyurethane sound abatement foam ("PE-PUR Foam"). The Philips Devices are commonly used to treat sleep apnea (CPAP and BiPAP) and respiratory failure (ventilators). In general, Philips Devices blow air into patients' airways. CPAP and BiPAP machines are intended for daily use, and ventilators are used continuously while needed. Without these devices, some patients may experience severe symptoms, including heart attack, stroke, and death by asphyxiation. On April 26, 2021, Philips made a public announcement disclosing it had determined there were risks that the PE-PUR Foam used in certain Philips Devices it manufactured may degrade or off-gas under certain circumstances. On June 14, 2021, Philips issued a recall (the "Recall Notice") in the United States of its Philips Devices containing PE-PUR Foam, because Philips had determined that (a) the PE-PUR Foam was at risk for degradation into particles that may enter the devices' pathway and be ingested or inhaled by users, and (b) the PE-PUR Foam may off-gas certain chemicals during operation. The Philips further disclosed the potential risks created by the degradation and off-gassing include "headache, irritation, inflammation, respiratory issues, hypersensitivity, nausea/vomiting, and possible toxic and carcinogenic effects." The Plaintiffs seek to recover damages based on, inter alia, SoClean's misrepresentations, omissions, and breaches of state consumer protection laws in connection with its manufacture, marketing, and sales of the SoClean Devices on behalf of themselves and the proposed Class Members. In addition, the Plaintiffs seek medical monitoring damages for users of the SoClean Devices, who are at risk of suffering from serious injury, including irritation (skin, eye, and respiratory tract), inflammatory response, headache, asthma, adverse effects to other organs (e.g., kidneys and liver) and toxic carcinogenic affects, added the suit. CPAP therapy is a common nonsurgicaltreatment primarily used to treat sleep apnea. CPAP therapy typically involves the use of a hose and a nasal or facemask device that delivers constant and steady air pressure to an individual's throat to help individuals breathe. Sleep apnea is a common sleep disorder characterized by repeated interruptions in breathing throughout an individual's sleep cycle. These interruptions, called "apneas," are caused when the soft tissue in an individual's airway collapses. The airway collapse prevents oxygen from reaching the individual's lungs which can cause a buildup of carbon dioxide. BiPAP therapy is a common alternative to CPAP therapy for treating sleep apnea. Similar to CPAP therapy, BiPAP therapy is nonsurgical and involves the use of a nasal or facemask device to maintain air pressure in an individual's airway. Philips developed, marketed, and sold a variety of CPAP and BiPAP respirator devices and mechanical ventilators under its "Sleep & Respiratory Care" segment of its business designed to assist individuals with a number of sleep, breathing, and respiratory conditions, including obstructive sleep apnea, central sleep apnea, complex sleep apnea syndrome, and Chronic Obstructive Pulmonary Disease ("COPD"), as well as to assist those individuals requiring invasive and non-invasive ventilators for acute and sub-acute hospital environments. Philips's CPAP and BiPAP respirator devices and its mechanical ventilators typically cost hundreds, if not thousands, of dollars. Philips has sold millions of these devices in the United States.[BN] The Plaintiffs are represented by: Matthew V. Burrows, Esq. GALLAGHER, CALLAHAN & GARTRELL, P.C. 214 North Main Street Concord, NH 03301 Telephone: (603) 545-3643 Facsimile: (603) 224-7588 E-mail: burrows@gcglaw.com - and - Gary E. Mason, Esq. Gary M. Klinger, Esq. MASON LIETZ & KLINGER LLP 5101 Wisconsin Avenue NW, Suite 305 Washington, D.C. 20016 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 E-mail: gmason@masonllp.com gklinger@masonllp.com - and - Jonathan Shub, Esq. Kevin Laukaitis, Esq. SHUB LAW FIRM LLC 134 Kings Hwy E., Fl. 2 Haddonfield, NJ 08033 Telephone: (856) 772-7200 E-mail: jshub@shublawyers.com klaukaitis@shublawyers.com - and - Jonathan M. Jagher, Esq. FREED KANNER LONDON & MILLEN LLC 923 Fayette Street Conshohocken, PA 19428 Telephone: (610) 234-6486 E-mail: jjagher@fklmlaw.com SONY INTERACTIVE: Majo Slams Gender Discrimination in Workplace --------------------------------------------------------------- Emma Majo, individually and on behalf of all others similarly situated, Plaintiff, v. Sony Interactive Entertainment LLC, Defendant, Case No. 21-cv-09054 (N.D Cal., November 22, 2021), seeks declaratory judgment that Sony has engaged in systemic gender discrimination against female employees, permanent injunction against such continuing discriminatory conduct, injunctive relief that effects a restructuring of Sony's policies, practices and procedures for promoting and awarding compensation to female employees, equitable relief that effects a restructuring of Sony's compensation system so female employees receive the compensation they would have been paid in the absence of Sony's alleged discrimination, back pay, front pay, reinstatement and other equitable remedies necessary, compensatory and punitive damages to deter similar discriminatory practices in the future, and attorneys' fees, costs and expenses pursuant to the Fair Labor Standards Act of 1938, as amended by the Equal Pay Act of 1963 (denial of equal pay for equal work), the California Equal Pay Act and the California Business and Professions Code. Sony, formerly known as Sony Computer Entertainment, operateS in the consumer technology industry and is headquartered in Tokyo. Majo was an employee of Sony Computer Entertainment America, the America's regional office, regional HQ in San Mateo. Global offices and Sony companies merged to become Sony Interactive Entertainment in April 2016, with global headquarters in San Mateo. Majo claims that she lost her job and was terminated because she is female and because she spoke up about discrimination against females. [BN] Plaintiff is represented by: Stephen Noel Ilg, Esq. George L. Lin, Esq. ILG Legal Office, P.C. 156 South Spruce Ave., Unit 206A South San Francisco, CA 94080 Tel: (415)580-2574 Fax: (415)735-3454 Email: silg@ilglegal.com glin@ilglegal.com SOUTHERN CALIFORNIA: Beltran Labor Suit Goes to S.D. California --------------------------------------------------------------- The case styled GUILLERMO BELTRAN, LUIS JIMENEZ, FRANK ANICOCHE, JR., LOUIS DAWKINS, PAGANINI LOUISSAINT, JOSHUA BOLDEN, and RUDY DELAO, individually and on behalf of all others similarly situated v. SOUTHERN CALIFORNIA EDISON COMPANY, and DOES 1 through 20, inclusive, Case No. 37-2021-00044411-CU-OE-CTL, was removed from the Superior Court of California for the County of San Diego to the U.S. District Court for the Southern District of California on November 29, 2021. The Clerk of Court for the Southern District of California assigned Case No. 3:21-cv-01995-MMA-WVG to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code. Southern California Edison Company is an electricity supply company, headquartered in Rosemead, California. [BN] The Defendant is represented by: John Buchanan, Esq. Amy Gantvoort, Esq. SCE LAW DEPARTMENT 2244 Walnut Grove Avenue Rosemead, CA 91770 Telephone: (626) 302-3712 Facsimile: (626) 302-1910 E-mail: john.buchanan@sce.com amy.gantvoort@sce.com SOUTHERN FARM: Breach of Contract Judgment in Smith Suit Affirmed ----------------------------------------------------------------- In the case, Shawn Smith, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. Southern Farm Bureau Casualty Insurance Company, Defendant-Appellee, Case No. 20-2486 (8th Cir.), the U.S. Court of Appeals for the Eighth Circuit issued an order: a. affirming the judgment of the district court on the breach of contract claim for violation of Regulation 43; b. reversing and remanding on the common law breach of contract claim; and c. denying the Plaintiff's motion to certify questions to the Arkansas Supreme Court. Background Mr. Smith claims that Farm Bureau undervalued his totaled pickup truck -- a Ford F-150 -- insured by Farm Bureau. The truck was totaled in an accident. The policy said that "for each accident Farm Bureau will pay actual cash value of loss or damage less your deductible amount." The policy also said that "actual cash value will include consideration of fair market value, age, and condition of the item in question at the time of loss or damage." To calculate the truck's actual cash value, Farm Bureau used a valuation report prepared by a third party, Mitchell International. The report included prices (pulled from dealers' websites) for three "comparable vehicles" -- 2006 F-150s for sale within 150 miles of Smith's home. For each comparable vehicle, Mitchell adjusted the dealer's listed price to account for features -- trim, mileage, and the like -- different from Smith's F-150. Mitchell also applied a "Projected Sold Adjustment," lowering each comparable vehicle's value by 9% of the listed price. The report explained that the Projected Sold Adjustment "reflected consumer purchasing behavior (negotiating a different price than the listed price)." In other words, Mitchell assumed that most car buyers pay less than the sticker price. Mitchell assigned a "market value" to Smith's F-150 based on the adjusted values for the three comparable vehicles, and Farm Bureau relied on this when it calculated how much it would pay. Mr. Smith says that Farm Bureau breached its duty to pay him the truck's actual cash value. He argues that the Projected Sold Adjustment was made-up and unrealistic, so Farm Bureau undervalued his truck. Mr. Smith filed a class action complaint for breach of contract and declaratory judgment. His breach of contract claim was based, in part, on an alleged violation of Arkansas Insurance Rule and Regulation 43, which he claimed was incorporated into the policy. The district court granted Farm Bureau's motion to dismiss for failure to state a claim, holding that Regulation 43 was not part of the policy. Smith filed a motion to clarify whether the Order also disposed of the common law breach of contract theory. The district court dismissed the motion in a one-sentence minute order. On appeal, Smith argues that the district court improperly dismissed his case by incorrectly applying Arkansas law and by failing to address his common law breach of contract claim. He says that although his complaint included only one breach of contract count, he alleged two different theories: (1) that Farm Bureau breached a duty established by Arkansas Insurance Rule and Regulation 43, which is incorporated into the contract under Arkansas law and the policy's "Conformity Clause"; and (2) that Farm Bureau breached ifocuts contractual obligation to pay actual cash value by applying the Projected Sold Adjustment to the listed price of comparable vehicles, resulting in a lower fair market value. Discussion A. The first question is whether Arkansas Insurance Rule and Regulation 43 is incorporated into the policy. If it is, a violation of the regulation is also a breach of contract. Smith's first theory is that Regulation 43 is automatically incorporated into the policy, based on the "general rule" that a statute governing insurance coverage becomes part of policies affected by it. The Eighth Circuit already held that Regulation 43 does not create a private right of action and is not automatically incorporated into Arkansas insurance policies. Mr. Smith's second theory is that the policy's "Conformity Clause" incorporates Regulation 43 into the policy. The Conformity Clause limits its application to (1) policy terms or conditions that (2) conflict with state law. So the Eighth Circuit must focus on the policy terms, not the challenged practice. It finds that the regulation is more specific about what insurers should disclose about their actual cash value calculations, but it does not say that insurers can't consider the factors mentioned in the policy. And other parts of the same section suggest that insurers should use a car's condition and market value to determine actual cash value. There is no conflict between the policy term and Regulation 43. Because the Conformity Clause isn't triggered, it cannot operate to incorporate Regulation 43 into the policy. B. Mr. Smith argues that his complaint also alleges a common law breach of contract claim. The district court thought Smith's breach of contract claim was based only on Regulation 43. The complaint is not a model of clarity, but a fair read shows that Smith made two distinct breach of contract theories. Although it lists only one breach of contract count, it discusses both Farm Bureau's alleged failure to base its payment on "fair market value" (policy language that is not in Regulation 43) and its failure to use "measurable, discernible, itemized and specified" deductions (Regulation 43 language). So the Eighth Circuit analyzes his common law breach of contract theory to see if it should have survived the motion to dismiss, taking factual allegations as true. It explains that the elements of a common law breach of contract claim in Arkansas are: (1) an enforceable contract exists, (2) the defendant has a duty under the contract, (3) the defendant violated that duty, and (4) the plaintiff was damaged. Farm Bureau does not challenge the contract's existence or enforceability. Under the policy, Farm Bureau had a duty to pay the "actual cash value" of Smith's F-150, based on "consideration of the truck's fair market value, age, and condition at the time of loss." The Complaint says that Farm Bureau breached its duty to consider the truck's fair market value because it based its valuation on "values of comparable vehicles that have been artificially reduced by an unjustified 'Projected Sold Adjustment' that is (a) arbitrary, and (b) contrary to industry practices and consumer experiences (and therefore not reflective of the vehicle's fair market value)." To support this, Smith alleges that "a 9% reduction on a used vehicle is not typical and does not reflect market realities," and that dealers' actual practice is not to inflate prices above market value because of the "intense competition in the context of internet pricing and comparison shopping." If this is true, then Farm Bureau did not consider the truck's fair market value; it considered an artificially lower value, in breach of its contractual duty, so Smith stated a claim for breach of contract based on the policy language. Based on its review of the record, and accepting the Plaintiff's allegations as true, the Eighth Circuit believes that Smith has stated a plausible claim. It does not opine on the ultimate merits of his claim. C. Finally, Smith asked this Court to certify two questions to the Arkansas Supreme Court: (i) Whether under Arkansas law, Arkansas Insurance Rule and Regulation 43, which sets forth the minimum standards for determining a total loss vehicle's actual cash value, can serve as a basis for construing the insurance policy term actual cash value, where that term was undefined in the policy itself; and (ii) Whether, under Arkansas law, an insurance contract's conformity clause, i.e. a clause stating that the insurance policy's provisions will be amended to conform with applicable laws of the State of Arkansas, can serve as a basis for reforming the insurance policy term actual cash value, so that it conforms with the minimum standards for adjusting total loss claims as expressed under Arkansas Insurance Rule and Regulation 43. Because the issues before it are resolved by existing law and the policy, the Eighth Circuit declines to certify to the Arkansas Supreme Court. Disposition The Eighth Circuit agrees that the Arkansas regulation that Farm Bureau allegedly violated is not incorporated into his policy, so Smith can't use it as the basis for a breach of contract claim. But because he also states a breach of contract claim based on the policy language, it reverses in part. Accordingly, the Eighth Circuit affirmed the judgment of the district court on the breach of contract claim for violation of Regulation 43, and reverses and remands on the common law breach of contract claim. It denies Smith's motion to certify questions to the Arkansas Supreme Court. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/yc3jjxc6 from Leagle.com. SOUTHWEST GAS: Tender Offer Lacks Info, City Pension Alleges ------------------------------------------------------------ CITY PENSION FUND FOR FIREFIGHTERS AND POLICE OFFICERS IN THE CITY OF MIAMI BEACH, individually and on behalf of all others similarly situated, Plaintiff v. ROBERT L. BOUGHNER; JOSE A. CARDENAS; STEPHEN C. COMER; JOHN P. HESTER; JANE LEWIS-RAYMOND; ANNE L. MARIUCCI; MICHAEL J. MELARKEY; A. RANDALL THOMAN; THOMAS A. THOMAS; LESLIE T. THORNTON; and SOUTHWEST GAS HOLDINGS, INC., Defendants, Case No. 2021-0990 (Del. Ch., Nov. 18, 2021) alleges breach of fiduciary duty to the Plaintiff and the Class in relation to the Tender Offer of Icahn Enterprises L.P. According to the complaint, Icahn Enterprises L.P. ("Icahn Enterprises") has launched a hostile tender offer to acquire Southwest Gas for $75 per share (the "Tender Offer" or "Offer"). Expressly relying on inadequacy opinions (the "Inadequacy Opinions") from Lazard Frères & Co. LLC ("Lazard") and Moelis & Company LLC ("Moelis"), the Southwest Gas Board is recommending that Company stockholders reject the Tender Offer. Southwest Gas stockholders face a critical decision: whether to (a) tender their shares in support of the Offer, which would provide stockholders with a premium to the Company's current stock price or (b) accept the Board's recommendation that they ultimately will do better by rejecting the Tender Offer. In alleged breach of their fiduciary duties, however, the Board has declined to provide the requisite "fair summary" of the analysis underlying the Inadequacy Opinions on which the Board's recommendation rests. The Board's paternalistic "trust us" approach is currently depriving Southwest Gas stockholders of their fundamental right to make an informed decision whether to support the Tender Offer. Southwest Gas Holdings, Inc. operates as a holding company. The Company, through its subsidiaries, provides natural gas operation, construction, and distribution services. Southwest Gas Holdings serves customers in North America. [BN] The Plaintiff is represented by: Gregory V. Varallo, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 500 Delaware Avenue, Suite 901 Wilmington, DE 19801 Telephone: (302) 364-3601 -and- Mark Lebovitch, Esq. Daniel E. Meyer, Esq. Joseph W. Caputo, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 -and- Jeremy S. Friedman, Esq. David F.E. Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 SOUTHWESTERN & PACIFIC: Court Wants More Briefing on Arredondo Deal ------------------------------------------------------------------- In the case, ALICIA ARREDONDO, Plaintiff v. SOUTHWESTERN & PACIFIC SPECIALTY FINANCE, INC., dba Check (Doc. 'N Go of California, Defendant, Case No. 1:18-cv-01737-DAD-SKO (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California issued an Order directing the filing of supplemental briefing. The matter is before the Court on Plaintiff Arredondo's motion for preliminary approval of the parties' class action settlement. Judge Drozd directed the parties to file supplemental briefing or declarations addressing the following issues: 1. A clarification as to the correct class period. The Plaintiff's pending motion for preliminary approval, the proposed notice to the class members, and the second amended complaint identify a class period of Feb. 25, 2018 through Dec. 31, 2020, but the parties' proposed settlement agreement attached as an exhibit to the pending motion provides for a class period of Feb. 25, 2018 through the date of Preliminary Approval. 2. An explanation of and the authority supporting the breadth of the class member's release, as provided in the parties' proposed settlement agreement. In particular, the settlement agreement provides for the release of claims that are not asserted in the second amended complaint or even mentioned in the Plaintiff's pending motion and that do not appear to have been litigated in the action, including: All claims for expense reimbursements and failure to provide suitable seating, and claims under two regulations implementing the Fair Labor Standards Act. In this regard, Judge Drozd has concerns about the apparent overbreadth of this release. 3. Judge Drozd also is concerned that the proposed class notice may not sufficiently inform putative class members as to the claims that are being released under the proposed settlement agreement. To address this concern, the parties will file a proposed amended notice that clearly identifies the claims that are being released. For example, on page five of the class notice under, WHAT AM I GIVING UP TO GET A PAYMENT?, the notice lists only the claims that are asserted in the complaint. Given that the release of claims is not limited to the claims brought in the second amended complaint, the notice should reference the settlement agreement's release provision and provide a link to the settlement agreement so that a class member can view the release, including the location within the settlement agreement where the release provision can be found. 4. Next, Judge Drozd is concerned that the parties did not comply with the Class Action Fairness Act's (CAFA) notice requirement. In actions subject to CAFA -- as the Plaintiff's counsel contends this one is -- the Defendant must serve notice of the proposed settlement on appropriate state and federal officials, and the settlement may not be finally approved until 90 days thereafter. Accordingly, the parties will file a supplemental brief or declarations addressing these issues with 14 days from the date of service of the Order and are directed to attach to their supplemental briefing as exhibits any proposed amended settlement agreement and/or class notice. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/55jxeva5 from Leagle.com. STAMPS.COM INC: $100MM Class Settlement to be Heard on Jan. 24 -------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP issued this statement regarding the Stamps.com Securities Settlement: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MATT KARINSKI, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. STAMPS.COM, INC., et al., Defendants. CLASS ACTION SUMMARY NOTICE IF YOU PURCHASED OR ACQUIRED STAMPS.COM INC. ("STAMPS.COM") COMMON STOCK FROM MAY 3, 2017 THROUGH AND INCLUDING MAY 8, 2019, AND WERE DAMAGED THEREBY (THE "CLASS"), YOU COULD RECEIVE A PAYMENT FROM A CLASS ACTION SETTLEMENT. CERTAIN PERSONS ARE EXCLUDED FROM THE DEFINITION OF THE CLASS AS SET FORTH IN THE STIPULATION OF SETTLEMENT. PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and Order of the United States District Court for the Central District of California that the above-captioned litigation (the "Litigation") has been certified as a class action and that a Settlement has been proposed for $100,000,000 in cash. A hearing will be held on January 24, 2022, at 10:00 a.m., before the Honorable Michael W. Fitzgerald at the United States District Court for the Central District of California, First Street Courthouse, 350 West First Street, Courtroom 5A, Los Angeles, California 90012, for the purpose of determining whether: (1) the proposed Settlement should be approved by the Court as fair, reasonable and adequate; (2) the proposed Plan of Allocation for distribution of the Settlement proceeds is fair, reasonable and adequate and therefore should be approved; and (3) the application of Lead Plaintiff's counsel for the payment of attorneys' fees and expenses should be approved. IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THE LITIGATION, AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not received a detailed Notice of Pendency and Settlement of Class Action (the "Notice") and a copy of the Claim Form, you may obtain a copy of these documents by contacting the Claims Administrator: Stamps.com Securities Settlement, c/o Gilardi & Co. LLC, P.O. Box 43315, Providence, RI 02940-3315. You may also obtain copies of the Stipulation of Settlement, Notice and Claim Form at www.StampsSecuritiesSettlement.com. If you are a Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Claim Form by mail postmarked no later than February 2, 2022, or submit it online by that date. If you are a Class Member and do not submit a valid Claim Form, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will still be bound by any judgment entered by the Court in this Litigation (including the releases provided for therein). To exclude yourself from the Class, you must submit a written request for exclusion so that it is received by January 3, 2022, in accordance with the instructions set forth in the Notice. If you are a Class Member and do not exclude yourself from the Class, you will be bound by any judgment entered by the Court in this Litigation (including the releases provided for therein) whether or not you submit a Claim Form. If you submit a written request for exclusion, you will have no right to recover money pursuant to the Settlement. Any objection to the proposed Settlement, the Plan of Allocation, or the fees and expenses application must be filed with the Court and delivered such that it is received by each of the following no later than January 3, 2022: CLERK OF THE COURT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA First Street Courthouse 350 West First Street, Suite 4311 Los Angeles, CA 90012 Lead Counsel: ROBBINS GELLER RUDMAN & DOWD LLP ERIC I. NIEHAUS 655 West Broadway, Suite 1900 San Diego, CA 92101 Defendants' Counsel: KATTEN MUCHIN ROSENMAN LLP RICHARD H. ZELICHOV 2029 Century Park East, Suite 2600 Los Angeles, CA 90067 PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. If you have any questions about the Settlement, or your eligibility to participate in the Settlement, you may contact Lead Counsel at the address listed above or by calling 1-800-449-4900. DATED: October 14, 2021 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA STARBUCKS CORPORATION: Faces Oden Suit Over Age Discrimination -------------------------------------------------------------- MARKEL ODEN, individually and on behalf of all others similarly situated, Plaintiff v. STARBUCKS CORPORATION, Defendant, Case No. 1:21-cv-04869-AT-WEJ (N.D. Ga., November 29, 2021) is a class action against the Defendant for violation of the Age Discrimination in Employment Act of 1967 and the Georgia Age Discrimination Act. According to the complaint, the Defendant discriminated against the Plaintiff and similarly situated older employees by utilizing a biased recruitment system that deters prospective applicants ages 40 and older from applying for covered positions and implementing a mandatory early retirement policy. As a result of Defendant's alleged unlawful and discriminatory practices, the Plaintiff has suffered loss of income, pain and suffering and humiliation. Starbucks Corporation is an American multinational chain of coffeehouses and roastery reserves headquartered in Seattle, Washington. [BN] The Plaintiff is represented by: Mitchell L. Feldman, Esq. FELDMAN LEGAL GROUP 6916 W. Linebaugh Ave., Ste. 101 Tampa, FL 33625 Telephone: (813) 639-9366 Facsimile: (813) 639-9376 E-mail: mfeldman@flandgatrialattorneys.com STATE FARM: Reduces Loss Vehicles' Cash Value, Chadwick Suit Says ----------------------------------------------------------------- ROSE CHADWICK, individually and on behalf of all others similarly situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, Case No. 4:21-cv-01161-DPM (E.D. Ark., November 29, 2021) is a class action against the Defendant for breach of contract and declaratory judgment. The case arises from the Defendant's breach of its insurance contracts with the Plaintiff and similarly situated insureds in Arkansas by improperly reducing the actual cash value of insureds' loss vehicles when adjusting total loss claims. The Defendant used typical negotiation adjustments instead of using the fair market price in determining the actual cash value of loss vehicles. These adjustments are based on the factually erroneous assumption that insureds would be able to negotiate a reduction in the list price of comparable used automobiles, which would be highly atypical and contrary to the modern used car industry's market pricing and inventory management practices. As a result of the Defendant's alleged misconduct, the Plaintiff and Class members received an amount less than the actual cash value required by State Farm's insurance contracts. State Farm Mutual Automobile Insurance Company is an automobile insurance company, headquartered in Bloomington, Illinois. [BN] The Plaintiff is represented by: Joseph Henry Bates, III, Esq. Tiffany Wyatt Oldham, Esq. Jake G. Windley, Esq. CARNEY BATES & PULLIAM, PLLC 519 W. 7th St. Little Rock, AR 72201 Telephone: (501) 312-8500 Facsimile: (501) 312-8505 E-mail: hbates@cbplaw.com toldham@cbplaw.com jwindley@cbplaw.com STRATEGIC DELIVERY: Opposition to Class Cert. Extended to Dec. 13 ----------------------------------------------------------------- In the class action lawsuit captioned as Zambrano, et al. v. Strategic Delivery Solutions, LLC, et al., Case No. 1:15-cv-08410-ER (S.D.N.Y.), the Hon. Judge Edgardo Ramos entered an order extending to December 13, 2021, Defendants' deadline to file an opposition to Plaintiffs' Motion for Conditional Certification. The deadline for Plaintiffs' reply brief is extended to December 22, 2021. The Defendants' counsel says that the Defendants' opposition is due on December 3, 2021. "This is the first request for an extension of this deadline. We seek this extension for two reasons. First, Defendants are in the process of providing Defense Counsel certain information necessary to Defendants' opposition in this matter." "However, Thanksgiving-related vacations of certain individuals key to the information gathering process have resulted in a delay. Second, our office has been short staffed due to pre-arranged vacations planned around our office's closure on November 25 and November 26 for the Thanksgiving holiday. The Plaintiffs' Counsel, Hugh Baran, Esq. consents to this request. Should the Court determine to grant the instant request, we would also ask that the deadline for Plaintiffs reply be extended to Wednesday, December 22, 2021," the counsel adds. A copy of the Court's order dated Nov. 29, 2021 is available from PacerMonitor.com at https://bit.ly/3G6h3Zx at no extra charge.[CC] The Defendants are represented by: David F. Jasinski, Esq. JASINSKI, P.C. 2 Hance Avenue, 3 rd floor Tinton Falls, NJ 07724 Telephone: (973) 824-9700 Facsimile: (732) 842-1805 SUNDA NASHVILLE: Tamminga Suit Alleges Unpaid Wages for Servers --------------------------------------------------------------- CHRISTOPHER TAMMINGA, individually and on behalf of all others similarly situated, Plaintiff v. SUNDA NASHVILLE, LLC and SUNDA NASHVILLE MANAGEMENT, LLC, Defendants, Case No. 3:21-cv-00889 (M.D. Tenn., December 1, 2021) is a class action against the Defendants for their failure to pay the Plaintiff and similarly situated tipped employees minimum wages and overtime wages for all hours worked in violation of the Fair Labor Standards Act. The Plaintiff has been employed as a server and bartender at Sunda New Asian in Nashville, Tennessee since approximately March 2021. Sunda Nashville, LLC is an owner and operator of a restaurant known as Sunda New Asian, located at 592 12th Avenue South, Nashville, Tennessee. Sunda Nashville Management, LLC is an owner and operator of a restaurant known as Sunda New Asian, located at 592 12th Avenue South, Nashville, Tennessee. [BN] The Plaintiff is represented by: Charles P. Yezbak, Esq. N. Chase Teeples, Esq. YEZBAK LAW OFFICES PLLC 2002 Richard Jones Road, Suite B-200 Nashville, TN 37215 Telephone: (615) 250-2000 Facsimile: (615) 250-2020 E-mail: yezbak@yezbaklaw.com teeples@yezbaklaw.com - and – Patrick Barrett, Esq. BARRETT LAW OFFICE, PLLC 4205 Hillsboro Pike, Suite 303 Nashville, TN 37215 Telephone: (615) 463-4000 E-mail: pbarrett@barrettlawofficetn.com TEXAS: Court Rules on Objections to Four Orders in Aiello v. TDCJ ----------------------------------------------------------------- Judge Nelva Gonzales Ramos of the U.S. District Court for the Southern District of Texas, Corpus Christi Division, entered an Order on objections to U.S. Magistrate Judge Jason B. Libby's determinations in the case, DANIEL AIELLO, Plaintiff v. BRIAN COLLIER, et al., Defendants, Civil Action No. 2:21-CV-00067 (S.D. Tex.). Introduction Plaintiff Aiello filed the action against Brian Collier, the Executive Director of the Texas Department of Criminal Justice (TDCJ) in his official capacity, complaining of the prison policy requiring him to wear his hair cut short. He claims that his religion requires that he wear his hair long. He asserts claims for (a) violation of his right to equal protection under the Civil Rights Act, 42 U.S.C. Section 1983; and (b) for discrimination under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Section 2000cc, et seq. Before the Court are four matters which U.S. Magistrate Judge Libby has addressed and the Plaintiff's objections. Discussion I. Nondispositive Order Denying Judicial Notice The Plaintiff's first objection challenges a nondispositive order. The Plaintiff's complaint was subject to initial screening pursuant to the Prison Litigation Reform Act (PLRA). On May 17, 2021, Magistrate Judge Libby issued a memorandum and recommendation (M&R-1), recommending that the Court retains the Plaintiff's equal protection and RLUIPA challenges to the TDCJ hair policy. Before the Court had an opportunity to adopt or reject the recommendations the Plaintiff filed a "Motion of Judicial Notice," suggesting that M&R-1 contained factfindings in his favor. Because the Defendant did not file an objection to M&R-1 within the time for doing so, the Plaintiff claimed not only that his claims survived initial screening, but that he had prevailed on the merits by default and that the Magistrate Judge should take judicial notice of that fact. On July 12, 2021, Magistrate Judge Libby issued a nondispositive order, denying judicial notice and explaining that the Court would apply appropriate standards of review and rules of procedure before the Plaintiff would be entitled to relief on the merits and that judicial notice was not appropriate under the circumstances. On July 23, 2021, the Plaintiff timely filed objections to the order. His objections restate the motion with greater emphasis on the time deadline for objections to M&R-1 and the Defendant's failure to object. As such the objections are not proper. They do not focus the Court on a material factfinding or legal conclusion in the Magistrate Judge's order that is challenged as erroneous. Additionally, M&R-1 did not make any factfindings in favor of the Plaintiff's claims on their merits. It only stated that the claims were not subject to immediate dismissal as frivolous, malicious, or failing to state a claim upon which relief can be granted. The allegations (not the evidence) were adequate to allow the Plaintiff to go forward with discovery and a trial at which he must present evidence. Further, at the time the Magistrate Judge issued M&R-1, the Defendant was not a party to the case. The order requiring that the Defendant be served was not entered until after the M&R was issued. And the Defendant did not file an answer, entering his first appearance in the case, until June 29, 2021 -- well after any deadline for objecting to M&R-1. Not only were there no binding factfindings in M&R-1, but the Defendant was not a party and not bound by the screening recommendation in M&R-1. Regarding the Magistrate Judge's order on the Plaintiff's motion for judicial notice, Judge Ramos finds that there are no clearly erroneous findings of fact and the decision is not contrary to law. She overruled the Plaintiff's objections and affirms the Magistrate Judge's order denying the motion seeking judicial notice. II. Two Memoranda and Recommendations to Deny Motions on the Merits On Aug. 5, 2021, the Plaintiff filed a document entitled, "Plaintiff's - Dispositive Motion." In that motion, he claims that he should prevail, analogizing his case to that of Goodman v. Davis, No. 2:12-cv-166 (S.D. Tex. 2019), in which prisoners who practice a Native American faith tradition succeeded, under RLUIPA, in enforcing a right to wear long hair during TDCJ incarceration. The Plaintiff asserts that he is entitled to the same right under RLUIPA and that any violation of that right is also an equal protection violation because he is being discriminated against on the basis of his nationality or religion. On Aug. 31, 2021, Magistrate Judge Libby issued a memorandum and recommendation (M&R-2), construing the motion as one for summary judgment under Federal Rule of Civil Procedure 56 and recommending its denial without prejudice as premature and as unaccompanied by evidence to support the necessary factfindings. The Plaintiff did not object to M&R-2. After due consideration, Judge Ramos now adopts the findings and conclusions of M&R-2 and the motion is denied without prejudice. Instead of objecting to M&R-2, on Sept. 16, 2021, the Plaintiff filed a second "Plaintiff's Dispositive Motion," making the same arguments and again failing to support them with evidence. On Sept. 17, 2021, Magistrate Judge Libby issued a memorandum and recommendation (M&R-3), again construing the motion as one for summary judgment and recommending denial without prejudice because the motion is premature and is not accompanied by evidence. The Plaintiff objected to M&R-3 on a number of grounds. Having reviewed the findings of fact, conclusions of law, and recommendations set forth in M&R-3, as well as the Plaintiff's objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of M&R-3 to which objections were specifically directed, Judge Ramos, among other things, overruled the Plaintiff's objections and adopts as her own the findings and conclusions of the Magistrate Judge. Accordingly, the Plaintiff's Dispositive Motion is denied. III. Memorandum and Recommendation to Deny Temporary Injunctive Relief On May 6, 2021, the Plaintiff filed a motion for temporary injunctive relief, seeking an order that the Defendant be enjoined from enforcing TDCJ's short hair policy against the Plaintiff pending trial of the matter. The Defendant filed a response on Sept. 21, 2021. On Oct. 1, 2021, Magistrate Judge Libby issued a memorandum and recommendation (M&R-4), finding that the Plaintiff had not met his burden to show the first two of the four requirements for issuing preliminary injunctive relief. According to M&R-4, the Plaintiff's arguments, unsupported by evidence, did not demonstrate a likelihood of success on the merits because he failed to address all of the elements of his claims. And the Plaintiff's assertions of irreparable injury were conclusory. M&R-4 thus recommended denial of temporary injunctive relief. On Oct. 15, 2021, the Plaintiff timely filed his objections. He neither addresses the missing elements of his claims nor explains how the Magistrate Judge erred in his analysis when determining the likelihood of success at trial. Instead, he rehashes the arguments in his motion and continues his undue reliance on Goodman v. Davis. Judge Ramos holds that the objections are therefore insufficient to show any error in the findings of fact or conclusions of law in M&R-4. Plaintiff suggests that the burden lies with the Defendant "to provide proof this injustice is not unlawful." As the Magistrate Judge correctly observed, the burden of proof on all four elements supporting injunctive relief lies with the Plaintiff. The Plaintiff has not disputed this proposition of law and has not supplied any authorities to the contrary. Having reviewed the findings of fact, conclusions of law, and recommendations set forth in M&R-4, as well as the Plaintiff's objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of M&R-4 to which objections were specifically directed, Judge Ramos overruled the Plaintiff's objections and adopted as her own the findings and conclusions of the Magistrate Judge. Accordingly, the Plaintiff's motion for temporary injunctive relief is denied. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/cxhvwzxz from Leagle.com. THERE TO HERE: Underpays Restaurant Staff, Arellano Suit Claims --------------------------------------------------------------- RICARDO ARELLANO, RENE GARCIA, and CIPRIANO COJ, individually and on behalf of all others similarly situated, Plaintiffs v. THERE TO HERE LLC (DBA SWEET SCIENCE), JAMES FREEMAN, MATTHEW MADDY, DAMON GORTON, Defendants, Case No. 1:21-cv-06689 (E.D.N.Y., December 1, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay overtime wages, failure to pay spread-of-hours compensation, failure to maintain accurate recordkeeping, and unlawful wage deductions. The Plaintiffs were employed as cooks and dishwashers at Sweet Science located in Brooklyn, New York. There To Here LLC, doing business as Sweet Science, is a restaurant owner and operator, with its headquarters located at 135 Graham Ave., Brooklyn, New York. [BN] The Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL, P.C. 42 Broadway, 12th Floor New York, NY 10004 Telephone: (212) 203-2417 TOTAL CASH: Sends Unsolicited Telemarketing Calls, Issel Alleges ---------------------------------------------------------------- AXEL ISSEL, individually and on behalf of all others similarly situated, Plaintiff v. TOTAL CASH HOME BUYERS, LLC, Defendant, Case No. CACE-21-021324 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty., December 1, 2021) is a class action against the Defendant for violation of the Florida Telephone Solicitation Act. According to the complaint, the Defendant sent numerous telephonic calls to the Plaintiff's cellular telephone number in an attempt to promote its goods and services without obtaining prior express written consent. The Defendant's alleged telephonic sales calls have caused the Plaintiff and Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. Total Cash Home Buyers, LLC is a real estate company with its primary place of business and headquarters in Pembroke Pines, Florida. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and – Scott Edelsberg, Esq. EDELSBERG LAW P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com TOTTINI BROOKLYN: Underpays Salesclerks, Pizarro Suit Alleges ------------------------------------------------------------- CARMEN PIZARRO, individually and on behalf of all others similarly situated, Plaintiff v. TOTTINI BROOKLYN LLC (DBA TOTTINI), MELISSA VAN FLANDERN, MICHAEL FAIGY, and MICHAEL YOSSI, Defendants, Case No. 1:21-cv-06670 (E.D.N.Y., December 1, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay minimum wages, failure to pay overtime wages, failure to pay spread-of-hours compensation, failure to comply with recordkeeping requirements, and failure to provide accurate wage statements. The Plaintiff was employed by the Defendants as a salesclerk in Brooklyn, New York from October 1, 2019 until October 19, 2021. Tottini Brooklyn LLC is a children's clothing retail company based in New York, New York. [BN] The Plaintiff is represented by: Lina F. Stillman, Esq. STILLMAN LEGAL P.C. 42 Broadway, 12th Floor New York, NY 10004 Telephone: (212) 203-2417 TRACE STAFFING: Ct. Clarifies Sched/Discovery Order in Gouldie -------------------------------------------------------------- In the class action lawsuit captioned as GOULDIE v. TRACE STAFFING SOLUTIONS LLC, Case No. 5:21-cv-00088 (M.D. Ga.), the Hon. Judge Tilman E. Self, III entered an order clarifying scheduling/discovery order as follows: -- The Scheduling and Discovery Order states that discovery shall expire on Dec. 22, 2021 or "within 90 days of the date the Court rules on Plaintiff's Motion for Conditional Certification, whichever is later." -- The Court ruled on Plaintiff's Motion to Certify Class on Oct. 22, 2021, so the discovery period expires on Jan. 20, 2022, and the parties' Dispositive and/or Daubert motions are due 30 days after the close of discovery. -- Discovery to be complete by Jan. 20, 2022. Dispositive and/or Daubert motions due by Jan. 21, 2022. The suit alleges violation of the Fair Labor Standards Act involving denial of overtime compensation. Trace Staffing Solutions operates as an employment recruiting agency. The Company offers career placement, permanent, and temporary staffing services.[CC] TRANSWORLD SYSTEMS: Court Amends Trial & Related Dates in Hoffman ----------------------------------------------------------------- In the class action lawsuit captioned as ESTHER HOFFMAN, et al., v. TRANSWORLD SYSTEMS INCORPORATED, et al., Case No. 2:18-cv-01132-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order granting in part and denying in part the Parties' stipulated motion to continue trial and related dates and amending schedule as follows: -- Discovery on class certification issues Dec. 30, 2021 completed by: -- Any motions related to class Jan. 12, 2022 certification must be filed by and noted on the motion March 18, 2022 calendar -- Any opposition to motion for class March 3, 2022 certification must be filed by: -- Plaintiffs' amended response to Feb. 2, 2022 Defendant Transworld Systems' motion for summary judgment must be filed by: -- Disclosure of expert testimony Feb. 24, 2022 under FRCP 26(a)(2): -- All motions related to discovery March 14, 2022 must be filed by: -- All remaining discovery April 11, 2022 completed by The Defendant Transworld Systems' motion for summary judgment renoted to March 18, 2022. All other terms and conditions, and all dates and deadlines not inconsistent herewith, contained in the Minute Order Setting Trial Date and Related Dates, shall remain in full force and effect, says Judge Zilly. Transworld Systems provides receivables collection and management services. A copy of the Court's order dated Nov. 30, 2021 is available from PacerMonitor.com at https://bit.ly/32SF1JF at no extra charge.[CC] TULARE COUNTY, CA: Criswell's Bid to File Docs Under Seal Denied ---------------------------------------------------------------- In the case, CHARLES CRISWELL, et al., Plaintiffs v. MICHAEL BOUDREAUX, in his official capacity as Sheriff of Tulare County, Defendant, Case No. 1:20-cv-01048-DAD-SAB (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California denies the Defendant's notice of request to file documents under seal. The matter is before the Court on the Defendant's notice of request to file documents under seal. Pursuant to Local Rule 141(c), the Plaintiffs timely submitted an opposition to the Defendant's request. The Defendant seeks to file the following documents under seal: The Defendant's response to the Plaintiffs' pending motion for final approval of the parties' class action settlement, and declarations in support of his response from Lieutenant Javier Martinez, Lieutenant Jason Villarreal, Assistant Sheriff Mark Gist, Evan Matshes, Benjamin Mitchell, and Eric Krenz. The Defendant contends that these documents contain Protected Health Information ("PHI") of certain inmates in the Tulare County Jails who submitted declarations in support of the pending motion for final approval of the settlement agreement and who voluntarily disclosed their own PHI in those declarations. The documents "include certain PHI of those inmates solely for the purpose of responding to the claims asserted by these inmates against the Defendant." However, in making his request, Judge Drozd finds that the Defendant has not even attempted to make the requisite showing under either the "compelling reasons" or "good cause" standard to support blanket sealing of these documents, which span nearly 400 pages, rather than targeted redactions of any PHI contained therein. For example, the Defendant requests to file under seal his response to the pending motion for final approval -- a motion that he does not oppose -- "for the purpose of clearing the factual record," and "so that the Court has a complete picture of the Defendant's and his command staff's conduct and ongoing efforts to minimize the risk of COVID-19 infections within the Tulare County Jails." The Defendant does not explain why there is "good cause" or "compelling reasons" to "maintain the secrecy" of any cleared up factual record or complete picture of his efforts to minimize COVID-19 in the Jails. Shielding such information from public view is contrary to the well-established principle that all documents filed with the Court are presumptively public. Indeed, in opposing the Defendant's request, the Plaintiffs assert that the documents "are of tremendous interest to the public" and "concern the Defendant's response to an outbreak of COVID-19 in the Tulare County Jails, which has received extensive media coverage." The Plaintiffs also argue that "it is in the public's interest to know and understand the Defendant's purported justifications for his inadequate response to the outbreak." Having considered the Defendant's request to seal and the Plaintiffs' opposition thereto, Judge Drozd concludes that the Defendant has not shown either good cause or compelling reasons to support allowing defendant to file the requested documents under seal. Accordingly, he will deny the Defendant's request, without prejudice. To the extent the Defendant believes that redacting the documents is appropriate to maintain the secrecy of PHI, the Defendant may seek an order authorizing him to file documents with limited redactions of PHI. Any such request will comply with Local Rule 140 and Judge Drozd's standing orders in civil cases. Conclusion For the reasons set forth, Judge Drozd denies the Defendant's request to file documents under seal. Where such a request to file under seal is denied, he returns the filing to the party which sought sealing and does not enter them on the docket. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/35heczkh from Leagle.com. UBER TECHNOLOGIES: Bid to Compel Arbitration in Singh Suit Granted ------------------------------------------------------------------ In the cases, JASWINDER SINGH, on behalf of himself and all those similarly situated, Plaintiff v. UBER TECHNOLOGIES, INC., Defendant. JAMES CALABRESE, GREGORY CABANILLAS, and MATTHEW MECHANIC, individually and on behalf of all those similarly situated, Plaintiffs v. UBER TECHNOLOGIES, INC., and RASIER, LLC, Defendants, Case Nos. 16-3044 (FLW), 19-18371 (FLW) (D.N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey granted Uber's motion to compel arbitration. Introduction Plaintiffs Jaswinder Singh, James Calabrese, Gregory Cabanillas, and Matthew Mechanic were drivers with the rideshare company Uber who allege individually, and on behalf of a class of similarly situated New Jersey drivers, that Uber misclassified them as independent contractors, thereby depriving them of overtime pay and other benefits afforded to employees. Uber moves to compel arbitration under the Federal Arbitration Act ("FAA") pursuant to a clause in Plaintiffs' contracts. The Plaintiffs argue that arbitration is inappropriate because they fall within an exemption to the FAA as transportation workers who move riders across state lines. Uber responds that the Plaintiffs do not belong to such a class of workers because interstate rides constitute a small fraction of all rides, and in any event, the Court should order arbitration under the New Jersey Arbitration Act ("NJAA"), which embodies the same pro-arbitration policy as the FAA without the exemptions. Background Uber is a billion-dollar technology company whose ridesharing app enables drivers to connect with riders, based on location, at the click of a button. Def. Statement of Material Facts I ("SUMF"). The Plaintiffs are gig-economy workers who used the Uber app to provide rides between 2014 and 2020. They allege that Uber must reimburse certain business expenses (e.g., the cost of maintaining cars, gas, insurance, and phone/data expenses), comply with guaranteed minimum wage laws, and pay overtime, as state law requires for employees. The present dispute centers on the validity of an arbitration provision in their contracts. Drivers who sign up with Uber must accept the company's Technology Services Agreement ("TSA") before completing any rides. Uber presents the TSA to drivers as soon as they login to the app by populating a "TERMS AND CONDITIONS" screen with a hyperlink. Clicking the hyperlink opens the TSA. After drivers scroll through the document for as long as they need to review it, the app prompts them to click "YES, I AGREE." As this screen makes clear, "by clicking below, you represent that you have reviewed all the documents above and that you agree to all the contracts above." Once a driver indicates agreement, the app generates another screen, which reads: "PLEASE CONFIRM THAT YOU HAVE REVIEWED ALL THE DOCUMENTS AND AGREE TO ALL THE NEW CONTRACTS." At this point, drivers may select buttons reading "NO" or "YES, I AGREE."If drivers select yes, Uber stores the executed TSA in an online portal, reviewable to this day. Singh joined Uber on June 21, 2014. Mechanic joined on Dec. 11, 2015. Calabrese joined on June 8, 2017. Cabanillas joined on Aug. 18, 2017. Each driver accepted the TSA as a condition of signing up. The applicable version of the TSA contains an arbitration provision visible on the first page. The arbitration provision specifies the Federal Arbitration Act ("FAA") as the governing law and contains a class action waiver. The arbitration provision also contains a delegation clause, which encompasses a wide range of potential disputes between drivers and Uber, including threshold questions such as whether a particular dispute is arbitrable. At the same time, the TSA offers an opt-out provision, which drivers may exercise for up to 30 days after accepting the TSA by emailing Uber. Though thousands of drivers exercised their opt-out rights, the Plaintiffs did not. While state law forms the substantive basis for most of the Plaintiffs' claims, the present arbitration dispute arises under the FAA. Congress enacted the FAA in 1925 "in response to a perception that courts were unduly hostile to arbitration." The statute provides that "agreements to arbitrate are 'valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.'" In this sense, the FAA places arbitration agreements on equal footing with all other contracts and requires courts to enforce them according to their terms. Notwithstanding the arbitration provision in the TSA and the federal policy in the FAA, Singh filed suit in the Court alleging that Uber misclassified him as an independent contractor (a status conferring flexibility but little security) and owes, inter alia, overtime pay plus reimbursement for business expenses under the Fair Labor Standards Act ("FLSA"), the New Jersey Hour and Wage Law, and the New York Labor Law. Uber moved to dismiss and to compel arbitration pursuant to the TSA. Singh opposed, arguing that he fell under the Section 1 exemption described above for transportation workers on par with seaman and railroad employees. Judge Wolfson granted Uber's motion. In doing so, she found the TSA's arbitration provision to be valid and enforceable. She also found that the TSA's class waiver provision is permissible under the National Labor Relations Act ("NLRA") because Singh could opt out within thirty days without consequence, and that the delegation clause is lawful under Rent-A-Center. Further, Judge Wolfson construed the FAA to exempt only transportation workers engaged in moving goods across state lines, not people, and ordered the parties to arbitrate. She did not address any state law questions. On appeal, the Third Circuit vacated and remanded. Fundamentally, the court held that the FAA's exemption for transportation workers is not limited to those engaged in moving interstate goods, but may encompass those who move interstate passengers, like Uber drivers, or whose work is "so closely related to interstate commerce as to be in practical effect part of it." It upheld my determination that the arbitration provision (including the delegation clause) is valid and enforceable, and that the class waiver is permissible, while declining to reach other issues raised by the parties, such as state law arbitrability questions, to the extent that they "are contingent on the FAA's applicability." Plaintiffs Calabrese, Cabanillas, and Mechanic subsequently filed a separate suit seeking unpaid wages and unreimbursed expenses under the FLSA, the New Jersey Wage and Hour Law, and the New York Labor Law. When Uber moved to dismiss, Judge Wolfson noted identical issues to Singh's case, terminated the motion, and ordered limited discovery on the question whether the Plaintiffs are exempt under the FAA. Discovery has closed, and Uber has renewed dismissal motions in both cases. As before, the Plaintiffs seek to avoid arbitration under the FAA based on the residual clause, compel Uber to comply with state labor laws, and classify them as employees not independent contractors. Discussion Since Judge Wolfson's decision in 2019, many district courts have decided similar FAA cases based on varying levels of factual development. The majority view is that rideshare drivers nationwide do not engage in interstate commerce and are not covered by the residual clause in the FAA. These courts reason that nationwide rideshare drivers complete a small percentage of cross-border rides (e.g., just over 2%), and their overall driving activities demonstrate that they serve a fundamentally local transportation function. The majority view culminated in a recent Ninth Circuit decision, where a court of appeals directly addressed the issue for the first time, found in favor of Uber, and compelled arbitration -- Capriole v. Uber Techs., Inc., 7 F.4th 854 (9th Cir. 2021). Specifically, the Ninth Circuit found Uber drivers nationwide not to be "engaged in interstate commerce" in the sense of the FAA because "Uber trips are often short and local" as well as "primarily intrastate in nature," crossing state lines just a fraction of the time largely as a result of geography, they "only infrequently involve a trip to a transportation hub" such as an airport, and interstate movement "cannot be said to be" central to what drivers do. A few months later, the First Circuit rejected the same twin arguments as the Ninth Circuit, finding that drivers do not "fit within the section 1 exemption just because some of them occasionally transport passengers across state lines" and because they occasionally transport passengers to Logan International Airpor -- Cunningham v. Lyft, Inc., Nos. 20-1373, 20-1379, 20-1544, 20-1549, 20-1567, 2021 WL 5149039, at *3 (1st Cir. Nov. 5, 2021). According to that court, drivers are "among a class of workers engaged primarily in local intrastate transportation, some of whom infrequently find themselves crossing state lines, and are thus fundamentally unlike seamen and railroad employees when it comes to their engagement in interstate commerce." Two district courts have bucked this trend, holding that rideshare drivers are transportation workers engaged in interstate commerce under the FAA -- Islam, 524 F.Supp.3d 338; Haider v. Lyft, Inc., No. 20-2997, 2021 WL 1226442 (S.D.N.Y. Mar. 31, 2021). What matters to these courts is that rideshare drivers nationwide complete tens of millions of interstate trips per year, regardless of whether that equals just 2% of all rides, and frequently pick up and drop off passengers at airports. Notwithstanding the limited momentum (in the Southern District of New York) for the Plaintiffs' theory, Judge Wolfson agrees with the majority view that nationwide rideshare drivers are not a class of transportation workers engaged in interstate commerce. In sum, Judge Wolfson finds that nationwide Uber drivers are not exempt from the FAA, consistent with holdings in virtually every other court to address the issue, including two circuits. In doing so, she rejects both pillars of the Plaintiffs' argument: That they are engaged in interstate commerce because drivers have crossed state lines 140 million times in 10 years and because 10% of trips begin or end at an airport. This data (though certainly true) is not dispositive when viewed against uncontroverted evidence that such rides constitute just 2% of all rides, resemble in character the other 98% of rides, and likely occur due to the happenstance of geography; and that airport trips are unaffiliated with and independent from the interstate commerce in which passengers partake once at airports. Uber drivers nationwide are in the "general business of giving people local rides, not the particular business of offering interstate transportation to passengers," unlike railroad workers and seamen, whose jobs revolve around interstate travel/movement. The FAA therefore applies and the parties must arbitrate pursuant to the TSA. Because she compels arbitration under the FAA and TSA, Judge Wolfson need not decide the state law issues. In any case, she holds that state law would furnish an alternative basis to arbitrate. Notwithstanding the TSA's choice of law clause, a district court sitting in diversity (such as the Court, assuming the Plaintiffs are exempt from the FAA) applies the choice of law rules of the forum state (in the case, New Jersey). Under New Jersey choice of law rules, "the law of the state which has 'the most significant relationship' with the transaction would apply." Again, that is New Jersey, where the Plaintiffs live and work and where the bulk of the allegations arise. And under New Jersey law, which does not contain a residual clause exemption, the arbitration provision in the TSA is lawful and controlling. Accordingly, while she need not reach the issue, even if the Plaintiffs' contract with Uber fell outside the FAA, Judge Wolfson would apply New Jersey law and compel arbitration all the same. Conclusion For the foregoing reasons, Judge Wolfson granted Uber's motions and compelled arbitration under the FAA. In accordance with the Third Circuit's instruction in Singh, all other issues are reserved for the arbitrator. The Plaintiffs' motion for class certification is denied as moot. A full-text copy of the Court's Nov. 23, 2021 Opinion is available at https://tinyurl.com/2y4z54m5 from Leagle.com. UNIFIRST CORP: Court Dismisses Garcia Suit Without Prejudice ------------------------------------------------------------ In the case, JUANA GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. UNIFIRST CORPORATION, a Massachusetts corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 5:21-cv-01796-DSF-SP (C.D. Cal.), Judge Dale S. Fischer of the U.S. District Court for the Central District of California granted the Parties' Stipulation to Dismiss the Individual and Class Action Claims without Prejudice. Judge Fischer has read and considered the Parties' Stipulation, and finding good cause, he granted it. The individual claims of the Plaintiff against the Defendant are dismissed in their entirety without prejudice pursuant to the Federal Rules of Civil Procedure, Rule 41(a)(1)(A)(ii). The class action claims against the Defendant are dismissed in their entirety without prejudice pursuant to the Federal Rules of Civil Procedure, Rule 41(a)(1)(A)(ii). The Plaintiff has not sought class certification, a class was not certified, and no notice was sent to a prospective class. Except as otherwise agreed upon, each party will bear his, her, or its own costs and attorneys' fees. The dismissal will not operate as an adjudication on the merits. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/y675cpeh from Leagle.com. UNILEVER UNITED: Antiperspirant Contains Benzene, Barnes Alleges ---------------------------------------------------------------- YVONNE BARNES; and PATRICIA DEAN, individually and on behalf of all others similarly situated, Plaintiffs v. UNILEVER UNITED STATES INCORPORATED, Defendant, Case No. 1:21-cv-06191 (N.D. Ill., Nov. 18, 2021) is a class action lawsuit regarding the Defendant's manufacturing, distribution, and sale of Suave 24-hour Protection Powder aerosol antiperspirant ("Suave Antiperspirant" or the "Product") that contain dangerously high levels of benzene, a carcinogenic impurity that has been linked to leukemia and other cancers. According to the complaint, the Defendant manufactures, markets, advertises, distributes, and sells Suave 24-hour Protection Powder aerosol antiperspirant ("Suave Antiperspirant" or the "Product") to consumers throughout the United States, including in the State of Illinois. However, the Product is defective because it contains the chemical benzene, a known carcinogen that offers no therapeutic deodorant or antiperspirant benefit The Defendant represents that the Product is safe for its intended use. In reality, the Product contains significant concentrations of benzene, a harmful carcinogen. If the Plaintiffs had been aware of the existence of benzene in the Product, she would not have purchased the Product or would have paid significantly less, says the suit. Unilever United States, Inc. manufactures personal care products. The Company offers , laundry detergents, shampoos, soaps, fragrances, and body washes. as well as provides ice creams, oils, mayonnaise, spreads, sauces, tea. [BN] The Plaintiffs are represented by: Virginia Ann Whitener, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 Email: gwhitener@milberg.com -and- Nick Suciu III, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 6905 Telegraph Rd., Suite 115 Bloomfield Hills, MI 48301 Telephone: (313) 303-3472 Facsimile: (865) 522-0049 Email: nsuciu@milberg.com -and- Jennifer Czeisler, Esq. Russell Busch, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 Email: jczeisler@milberg.com rbusch@milberg.com UNITED AIRLINES: Hoffman ERISA Suit Seeks Payment of Plan Benefits ------------------------------------------------------------------ MICHEAL (SUSIE) HOFFMAN, on behalf of herself and all others similarly situated v. UNITED AIRLINES, INC., UNITED AIRLINES FRONTLINE VOLUNTARY SEPARATION PROGRAM (VSP2), UNITED AIRLINES FRONTLINE VOLUNTARY SEPARATION LEAVE (VSL) PROGRAM, UNITED AIRLINES CONSOLIDATED WELFARE BENEFIT PLAN, and UNITED AIRLINES RETIREE MEDICAL PROGRAM, Case No. 1:21-cv-06395 (N.D. Ill., Nov. 30, 2021) is a class action complaint against the defendant United Airlines and the plan defendants for violations of the Employee Retirement Income Security Act seeking payment of benefits. Ms. Hoffman brings this action on her own behalf and on behalf of the class of employees who are similarly situated, including all employees who retired within 36 months of the VSL and were not paid the benefits offered by the VSL (which they were entitled to under the Early Out Policy). Ms. Hoffman worked as an international flight attendant for United, or its predecessor, Continental Airlines, from July 1998 until she accepted an early retirement plan in July 2020. On October 30, 2020, United issued a memorandum to its employees stating it would be "sunsetting" (ending) its Early Out Policy as of January 1, 2021, but that the policy would still apply to anyone who retired prior to that date. Because Ms. Hoffman retired before January 1, 2021, the sunsetting policy does not affect her situation. On January 22, 2021, United announced that it would offer a new early out program called the Frontline Voluntary Separation Leave ("VSL") Program. The VSL also had two variations – Option A and Option B. The VSL is an "employee welfare benefit plan" under 29 U.S.C. section 1002(1). It is covered by ERISA under 29 U.S.C. section 1003(a). The VSL provided significantly richer benefits than the VSP2 had provided. Depending on the option chosen, individuals who retired under the VSL could receive up to $112,500 in additional pay, a $125,000 contribution to a retiree health account, an additional year of benefits added to the employee's retirement plan, and enhanced travel benefits. United Airlines, Inc. is an international airline incorporated in Delaware with its corporate headquarters in Chicago, Illinois. United Airlines Frontline Voluntary Separation Program 2 ("VSP2") is an employee welfare benefit plan that offers severance benefits to employees who voluntarily retire. United Airlines Frontline Voluntary Separation Leave ("VSL") Program is an employee welfare benefit plan that offers severance benefits to employees who voluntarily retire. United Airlines Consolidated Welfare Benefit Plan is an employee welfare benefit plan that offers health, disability, and retirement benefits to employees. United Airlines Retiree Medical Program is an employee welfare benefit plan that offers retirement benefits to employees. The benefits plans are employee benefit plans as defined in 29 U.S.C. section 1002(3) that are both sponsored and administered by United.[BN] The Plaintiff is represented by: Jamie S. Franklin, Esq. THE CIVIL LITIGATION CLINIC AT CHICAGO-KENT COLLEGE OF LAW 565 West Adams Street, Suite 600 Chicago, IL 60661 Telephone: (312) 906-5048 Facsimile: (312) 906-5299 E-mail: jfranklin5@kentlaw.iit.edu UNITED HEALTHCARE: OHL Seeks to Certify Healthcare Provider Class ----------------------------------------------------------------- In the class action lawsuit captioned as OMEGA HOSPITAL, LLC, v. UNITED HEALTHCARE SERVICES, INC., AND UNITED HEALTHCARE OF LOUISIANA, INC., Case No. 3:16-cv-00560-JWD-EWD (M.D. La.), the Plaintiff asks the Court to enter an order: 1. certifying the instant lawsuit as a class action pursuant to Fed. R. Civ. Pro. 23(b)(3) on behalf of the following class: "All healthcare providers in the State of Louisiana who, from (10) years prior to the filing date of this action to its final termination, provided or will provide out-of network healthcare services or supplies to patients covered under healthcare plans governed byEmployee Retirement Income Security Act of 1974 (ERISA) and insured or administered by United, and who, after receiving reimbursement pursuant to an assignment from a United plan member, were subject either to United's unilateral recovery of all or a part of such payment by cross-plan offset or offset against other funds belonging or owed to the healthcare provider for subsequent services provided to patients;" 2. apointing itself as representatives for the class; and 3. appoinitng the following attorneys to serve as class counsel for the class: -- Paul A. Lea, Jr. -- Stephen B. Murray, Jr. -- Arthur M. Murray. The Proposed Class satisfies the requisites for class certification under Rule 23(b)(3) and for equitable relief under Rule 23(b)(2), the Plaintiff contends. UHS is a comprehensive provider of healthcare services in upstate New York's Southern Tier. A locally owned, not-for-profit system, it is governed by a volunteer board of directors composed of residents from around the region. Omega Hospital is Louisiana's specialty surgical hospitals. A copy of the Plaintiff's motion to certify class dated Nov. 30, 2021 is available from PacerMonitor.com at https://bit.ly/3DdqvIQ at no extra charge.[CC] The Plaintiff is represented by: Stephen B. Murray, Jr., Esq. Arthur M. Murray, Esq. Kenneth J. Wink, Jr., Esq. MURRAY LAW FIRM 701 Poydras Street, No. 4250 New Orleans, LA 70139 Telephone: (504) 525-8100 Facsimile: (504) 584-5249 E-mail: smurrayjr@murray-lawfirm.com amurray@murray-lawfirm.com kwink@murray-lawfirm.com - and - Paul A. Lea, Jr., Esq. 724 E. Boston Street Covington, LA 70433 Telephone: (985) 292-2300 Facsimile: (985) 249-6006 E-mail: paul@paullea.com UNITED STATES: Amended Mossman Complaint v. CDC Dismissed as Moot ----------------------------------------------------------------- In the case, ASA MOSSMAN, et al., Plaintiffs v. UNITED STATES CENTERS FOR DISEASE CONTROL AND PREVENTION, et al., Defendants, Case No. 21-CV-28-CJW-MAR (N.D. Iowa), Judge Charles Joseph Williams of the U.S. District Court for the Northern District of Iowa, Cedar Rapids Division, granted the Defendants' motion to dismiss the Plaintiffs' Amended Complaint as moot. Background On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), Pub. L. 116-136. Included in the CARES Act was a temporary moratorium on evictions from certain federally backed housing that expired on July 24, 2020. On Sept. 1, 2020, Defendant Acting Chief of Staff of the Centers for Disease Control and Prevention ("CDC") Nina Witkofsky issued a nationwide order that was not limited to federally backed housing, which went into effect on Sept. 4, 2020. The Order cited to Section 361 of the Public Health Service Act, 42 U.S.C. 264, and 42 C.F.R. 70.2 as the sources of its authority. To invoke the Order's protections, a tenant needed to complete and sign a declaration certifying under the penalty of perjury that they were unable to pay rent "due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;" "used best efforts to make timely partial payments that are as close to the full payment as circumstances permit"; "used best efforts to obtain all available government assistance for rent or housing"; earned less than $99,000 per year, if an individual (or $198,000 for joint filers); and were "likely to become homeless" if evicted. Landlords found in violation of the Order were subject to a $100,000 fine if the violation did not result in death, or a $250,000 fine with possible incarceration if it did. According to its terms, the Order was effective Sept. 4, 2020, through Dec. 31, 2020, unless extended. Congress extended the Order until Jan. 31, 2021. On Feb. 3, 2021, the CDC extended the Order until March 31, 2021. Meanwhile, on March 18, 2021, the Plaintiffs filed their complaint against the Defendants in the Court. The Plaintiffs are individual landlords, members of the National Apartment Association, and members of the National Association of Residential Property Managers. The Defendants are the CDC, its leaders, and related agencies. Since the Plaintiffs filed their complaint, activity in the case has somewhat ebbed and flowed depending on the proximity to the current order's current expiration date. For instance, the CDC extended the Order until June 30, 2021. On June 11, 2021, the Defendants' counsel first entered an appearance and requested an extension of time to answer the complaint in light of the then-expiration date of June 30. Magistrate Judge Mark A. Roberts granted an extension until July 22, 2021. In June, the CDC extended the Order again, this time until July 31, 2021. The Defendants asked for another extension in anticipation of the Order's new expiration date, which the Plaintiffs did not resist. As this case wound through the early stages of litigation, Alabama Association of Realtors v. U.S. Department of Health and Human Services addressed the core issues in dispute. In early May, the U.S. District Court for the District of Columbia ("D.C. District Court") found that the CDC did not possess the statutory authority to issue or extend a nationwide eviction moratorium as provided for in the Order. Accordingly, the D.C. District Court held that the order violated the constitutional separation of powers and ordered that it be set aside. On May 14, 2021, however, the district court stayed its order pending appeal because it found "the CDC's nationwide eviction moratorium raises serious legal questions." The Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") upheld the district court stay on June 2, 2021. On June 29, 2021, as the Order's expiration loomed, the Supreme Court considered the the Plaintiffs' appeal from the D.C. Circuit's ruling. It denied the application to vacate the stay but did not issue an opinion. Four justices, however, would have vacated the stay. A fifth justice, Justice Brett Kavanaugh, concurred in affirming the stay but wrote a three-sentence concurrence to clarify that his vote turned on the fact that the Order was set to end "in only a few weeks, on July 31." According to Justice Kavanaugh, "clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31." Following the Order's expiration, President Joe Biden addressed its constitutional concerns at a press conference on Aug. 3, 2021. There, the President remarked that "the courts made it clear that the existing moratorium was not constitutional; it wouldn't stand." Addressing rumors of a new partial eviction moratorium, the President stated that "the bulk of the constitutional scholarship says that it's not likely to pass constitutional muster. But there are several key scholars who think that it may and it's worth the effort." The President concluded that "at a minimum, by the time it gets litigated, it will probably give some additional time" to Americans in need. On Aug. 3, later that same day, the CDC issued a second order, extending the eviction moratorium until Oct. 3, 2021.2 Thus, by Aug. 6, 2021, when the Defendants filed their answer in the Court, they were no longer arguing to dismiss the case on grounds that it was moot because the Second Order was in effect. As the President described at an Aug. 5, 2021 press conference, the rationale justifying the Second Order was the rapid spread of COVID-19 via the Delta variant. Upon its review of the Second Order, the D.C. District Court observed that the new eviction moratorium applied only "in the U.S. counties experiencing substantial or high levels or community transmission of SARS-CoV-2 as defined by CDC" (Ala. Assoc. of Realtors v. HHS, 2021 WL 3577367, at *2 (D.D.C. Aug. 13, 2021)). There, the plaintiffs filed an emergency motion to vacate the stay, which the district court denied. The D.C. Circuit again upheld the stay. The Supreme Court granted the Plaintiffs' emergency motion to vacate the stay. In a six-to-three per curiam opinion, the Supreme Court wrote that the Plaintiffs "not only have a substantial likelihood of success on the merits -- it is difficult to imagine them losing." It found "it is up to Congress, not the CDC, to decide whether the public interest merits further action." Back in the Northern District of Iowa, the Plaintiffs continued to pursue their claims. On Aug. 24, 2021, the Plaintiffs filed their Amended Complaint. On August 30, 2021, they filed a motion for partial summary judgment. On Sept. 3, 2021, the Defendants filed a motion to stay briefing on summary judgment and class certification pending disposition of a forthcoming motion to dismiss the case as moot. The Court granted the Defendants' motion. On Sept. 13, 2021, the Defendants filed their motion to dismiss the Plaintiffs' claims as moot based on the Supreme Court and D.C. District Court rulings in Alabama Association of Realtors v. U.S. Department of Health and Human Services. The Plaintiffs allege the Defendants caused them to suffer irreparable harm because the CDC's Order and Second Order have prevented them from evicting tenants and recovering their property. According to them, "the very existence of the orders had the natural consequence of emboldening and causing tenants to cease paying rent." The Plaintiffs allege that each plaintiff lost several thousand to nearly a hundred thousand dollars in lost rent and property damage because they could not evict tenants for nonpayment. They further assert they are also unable to access the properties they own. Finally, the Plaintiffs assert that the CDC's Order and Second Order are inherently unjust because they do not allow them to contest their tenants' self-certification of financial hardship. Specifically, the Plaintiffs bring eleven claims, alleging: (1) unlawful agency action under the Administrative Procedure Act, 5 U.S.C. Section 706(2)(A-C), by exceeding statutory and regulatory authority; (2) unlawful agency action under the Administrative Procedure Act, 5 U.S.C Section 706(2)(A), by issuing arbitrary and capricious orders; (3) Due Process violations for denying the Plaintiffs' right to contest their tenants' self-certified declaration of financial hardship; (4) violation of their right to access courts under the United States Constitution by denying the Plaintiffs' only lawful means of evicting delinquent tenants; (5) the orders are not constitutional and therefore cannot preempt other laws; (6) Tenth Amendment and Contract Clause violations because the orders do not validly preempt state law; (7) Tenth Amendment violation because the orders unlawfully commandeer state resources; (8) violation of the Non-Delegation Doctrine under U.S. Constitution Art. 1 Section 1; (9) unlawful suspension of law; (10) that the Orders exceeded Article 1, Section 8 powers and would be unlawful if enacted by Congress; and (11) the Plaintiffs' right to certify a class action. Of this Court, the Plaintiffs request vacatur of the CDC Order, setting it aside; a declaratory judgment against the CDC Order, holding it invalid; an injunction prohibiting its enforcement and prohibiting the entry, reentry, promulgation, or extension of the CDC Order or any order like it denying access to state courts for evictions; and any other relief that may be appropriate, including but not limited to attorneys' fees and costs. The Defendants now ask that the Court dismiss all of the Plaintiffs' claims as moot. Discussion The Defendants argue the Court should dismiss the Plaintiffs' claims because they are moot following the Supreme Court and D.C. District Court rulings and their nationwide effect. Accordingly, they argue that any ruling on the merits of the case would constitute an advisory opinion, divorced from any ongoing case or controversy as required by the Constitution. In response, the Plaintiffs argue the case is not moot because the Court can still grant relief. They assert this is because the Supreme Court did not rule on the merits of the case, so its rationale is not law. Further, the Plaintiffs argue the Court can hear the case because the Court is not bound to follow the decisions of other district courts. The Plaintiffs also argue that even if the Court finds the case is moot, the voluntary cessation exception applies because the Defendants have intentionally evaded judicial review. The Defendants, however, argue no exception to mootness applies. Regarding the voluntary cessation exception, the Defendants argue their cessation was court-ordered, not voluntary, and the Plaintiff cannot show it is reasonable to expect that they will reinstitute the order. A. Mootness Judge Williams finds that the case is moot. He says, the Plaintiffs are correct that the D.C. District Court ruling does not bind the Court. It does bind the Defendants, however, and with nationwide effect. The Plaintiffs assert the fact that they cannot benefit from the ruling as evidence that their claims are not moot. The ruling, however, rendered the Plaintiffs' claims moot for another reason. Specifically, the D.C. District Court held there was no statutory support for the orders. As the Plaintiffs admit, the Defendants dismissed its appeal of the D.C. District Court's decision and are no longer enforcing their Second Order. Thus, the eviction moratorium is no longer in place and the Plaintiffs are no longer subject to it. In their complaint, the Plaintiffs request that the Court free them of the order, whether by vacatur, declaratory judgment, or injunction. After the district court ruling, however, such remedies no longer apply. Thus, there is no existing order for the Court to vacate, issue a declaratory judgment against, or enjoin. Accordingly, the issue of whether the Defendants' eviction moratorium exceeds statutory authority is no longer live. Thus, the case is moot and the Court does not have jurisdiction to hear it. B. Voluntary Cessation Judge Williams finds the voluntary cessation exception to mootness does not apply. Even viewing the evidence in the light most favorable to the Plaintiff and interpreting the Defendants' past actions as evading judicial review, he holds that the current circumstances are sufficiently different such that the Court cannot say it is reasonable to expect that the Defendants will reinstate an order requiring an eviction moratorium. To be sure, the Defendants are legally barred from reinstating the order anywhere in the country. In arguing that the voluntary cessation exception applies, the Plaintiffs argue that (1) the Defendants' cessation was voluntary and (2) it is reasonable to expect another comparable order from Defendant CDC. As to the first argument, Judge Williams finds that the fact that the Defendants have since obeyed court rulings vacating the stay and finding the Defendants' exercise of statutory authority unconstitutional is not evidence that the Defendants voluntarily changed their position. Instead, it is evidence that defendants are respecting the Court and the rule of law. Additionally, the Defendants are not required to appeal a ruling to prove the genuineness of their interpretation, nor must they advertise the end of their orders in the same fashion and degree they used to advertise their beginning. The Plaintiffs make no showing that defendants are leading the American public to believe they are still under protection of the order. With respect to the second argument, Judge Williams holds that with nearly three months having passed since the Supreme Court ruling on August 26, he finds it reasonable to view the Defendants' Second Order as a last-ditch effort, with no reasonable expectation it will recur. The Defendants have not reinstituted the eviction moratorium. Despite the Defendants past delays and sudden changes in plans, whether they be the result of miscommunication or strategic trickery or some combination thereof, Judge Williams cannot say it is reasonably expected at this point that the Defendants will ignore such clear guidance from the Supreme Court. The Plaintiffs are correct that the Supreme Court's August 26th ruling was not a decision on the merits. Nevertheless, the August ruling substantially altered circumstances such that it is no longer reasonable to expect the Defendants to reinstate their nationwide eviction moratorium. Thus, the voluntary cessation exception to mootness does not apply. Conclusion For these reasons, Judge Williams granted the Defendants' motion to dismiss the case as moot. The Clerk of Court is directed to term all outstanding motions. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/yumnuetd from Leagle.com. UNITED STATES: Faces Class Suit Over Vaccine's Religious Exemptions ------------------------------------------------------------------- Calvin Shomaker at The Daily News reports that as the deadline for all U.S. troops to get vaccinated against COVID-19 approaches, lawsuits challenging the mandate are heating up. Whether it's attorneys who served at local Marine bases leading litigation, or multiple North Carolina Marines involved as plaintiffs, the Jacksonville area is connected to the cases. Religious freedoms suit filed On Nov. 9, First Liberty Institute filed a lawsuit - SEALs v. Biden - in a federal court in Texas against President Joe Biden, Secretary of Defense Lloyd Austin, the Department of Defense (DoD) and Secretary of the Navy Carlos Del Toro on behalf of 35 Navy SEALs and special warfare service members. The complaint, which claims a violation of the service members' first amendment right to religious freedoms, said the plaintiffs "object to receiving a COVID-19 vaccination based on their sincerely held religious beliefs." The case also argues that the SEALs are being harassed and punished even as their religious exemptions are pending. In a interview with The Daily News, Mike Berry, a lieutenant colonel in the Marine Corps Reserve and the lead attorney on the case, said the Navy is discriminating by not granting any religious exemptions from the COVID-19 vaccine. "There is a Navy Special Warfare Command regulation that states that even if their religious exemption is approved, it will render them medically disqualified," Berry said. "Once that happens, they forfeit their special operations pay [and are] removed from the special operations community . . . . They're really in a Catch 22." "When you join the military, we all know that there are certain freedoms you give up but you don't give up your religious freedom," Berry said. "We have strong protection in the law for religious freedom, even in the military." Lawsuits challenge legality of mandate Dale Saran, a retired Marine Corps major who was a pilot with Marine Light Attack Helicopter Squadron 269 at Marine Corps Air Station New River in the 1990s, is one of two lawyers representing a North Carolina soldier and Marine in their lawsuit - Robert v. Austin - against U.S. agencies DoD, the Department of Health and Human Services and the Food and Drug Administration (FDA). The lawsuit was originally filed in August in a Colorado court. On Nov. 2, a preliminary injunction was filed where the suing parties claim DoD is "engaged in an illegal vaccination program involving all active duty, National Guard, and reserve members of the all volunteer force." An updated complaint filed Nov. 6 said Austin and the DoD are "coercing and forcing military members to be injected with unlicensed drugs in violation of federal law and the U.S. Constitution." "Our argument is first and foremost that it's not a licensed vaccine and it can't be mandated," Saran said. The complaint argued the Pfizer-BioNTech vaccine is "legally distinct" from the FDA-approved form by the name of Comirnaty. Furthermore, the complaints said "all DOD units are using the EUA Pfizer-(BioNTech) vaccine that is not yet licensed by FDA." According to court documents, the two plaintiffs in the case are Staff Sgt. Daniel Robert of Fort Bragg and Staff Sgt. Hollie Mulvihill of Marine Corps Air Station New River. "The military has systematically violated people's rights," Saran said, who claims some service members who request religious accommodation have been removed from their positions. On Oct. 15, a class action lawsuit, Navy SEAL 1 v. Biden, was filed by Liberty Counsel in a Florida federal court against Biden, Austin and Security of Homeland Security Alejandro Mayorkas on behalf of members from the Army, Navy, Air Force, Marine Corps and Coast Guard, as well as federal employees and civilian contractors. The lawsuit claims plaintiffs "have been unlawfully mandated to get the COVID shots or face dishonorable discharge from the military or termination from employment," said a news release from the firm. Military plaintiffs in the lawsuit, which claims the mandate violates federal Emergency Use Authorization law and religious freedom, include Marine Corps personnel - two lieutenant colonels, one major, one captain and two lance corporals. Plaintiffs are unnamed in court documents released to date; however, the major and a lance corporal are stationed in North Carolina. "The COVID shots cannot be mandatory under the federal Emergency Use Authorization law (EUA)," said a Oct. 15 press release from Liberty Counsel. "All of the COVID-19 shots (Pfizer, Moderna, Johnson & Johnson's Janssen) have received only EUA authorization and not full FDA approval." In a Nov. 11 release from Liberty Counsel announcing they "filed a reply brief and additional affidavits supporting the need for immediate relief for plaintiffs," the firm doubled down on its stance. "Dr. Robert Malone, who discovered in-vitro and in-vivo RNA transfection and invented mRNA vaccines while he was at the Salk Institute in 1988, provided an affidavit in Liberty Counsel's brief," the release said. "Dr. Malone testified, based on the statements from the National Institutes of Health, the Centers for Disease Control, and the FDA letters concerning the vaccines, the 'FDA regulated product labeled COMIRNATY is the only FDA licensed SARSCoV-2 vaccine . . . but it is not yet available for use in the United States.'" 'Harmful to national security' Last month, Jacksonville congressman Greg Murphy wrote Austin objecting to the vaccine mandate for service members, calling it "reprehensible" that the department would consider relieving service members who refused the shot. "I worry that dismissing or refusing to deploy unvaccinated servicemembers could critically impede operational readiness and undermine U.S. national security," Murphy wrote, who is a physician. "It is also highly disturbing that servicemembers who do not receive the COVID-19 vaccine will not only be excused from their duties, but they could have to retroactively pay back any bonuses received for their service or lose additional benefits." Berry said the crackdown on unvaccinated service members could be detrimental to the military as a whole. "If you have to choose between your faith and serving your country, then I don't think that's a very good position for our military to be in," Berry said. "I think that is actually harmful to national security to begin forcing service members to choose between their faith and their service." [GN] VALVE CORP: W.D. Washington Trims Claims in Dark Catt Class Suit ---------------------------------------------------------------- In the case, DARK CATT STUDIOS HOLDINGS, INC., and DARK CATT STUDIOS INTERACTIVE LLC, on behalf of themselves and all others similarly situated. Plaintiffs v. VALVE CORPORATION, Defendant, Case No. C21-0872-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, granted in part and denied in part the Defendant's motion to dismiss. Background Plaintiffs Dark Catt Studios Holdings, Inc. and Dark Catt Studios Interactive LLC (collectively "Dark Catt") develop and publish personal computer ("PC") games. The Defendant is the creator of the Steam gaming website, the world's largest PC game distributor. Dark Catt alleges in a class action complaint that the Defendant utilizes its market power to impose anticompetitive pricing and marketing restrictions on Dark Catt and similarly situated PC game developers and publishers (collectively "publishers"). The resulting alleged injuries include, inter alia, the payment of supracompetitive fees. Dark Catt asserts these practices violate Section 2 of the Sherman Act, along with the Washington Consumer Protection Act ("CPA"). The Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). It argues that Dark Catt fails to allege facts plausibly supporting an antitrust injury, fails to plausibly allege Defendant's market power, and fails to provide facts supporting unlawful antitrust conduct. Discussion A. Injury To support an antitrust claim, a plaintiff must allege "(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were intended to prevent." A key consideration then is whether Dark Catt's complaint plausibly alleges injury. As the Court indicates in a similar putative class action, an injury based on the payment of supracompetitive fees cannot be plausibly alleged if the fee charged remains the same when a defendant allegedly controlled the market and when it did not. According to the complaint, except for recent volume discounts, the Defendant has consistently charged the same 30% supracompetitive fee. However, Judge Coughenour finds that Dark Catt's complaint does not contain allegations suggesting that, at any point, the Defendant was not the market leader for PC game delivery. While the Defendant asks the Court to infer as much, this would violate the fundamental principle that, at least at this point, reasonable inferences must be drawn in Dark Catt's favor. Turning to the substance of Dark Catt's allegations, the complaint alleges that the Defendant's 30% fee is supracompetitive because it is far above what other storefronts charge. This is sufficient to allege injury; therefore, Judge Coughenour need not address Dark Catt's arguments regarding whether non-price injury has been adequately plead. B. Market Power The Defendant next argues that Dark Catt fails to provide sufficient allegations to support its assertions regarding its market power, specifically its 75% market share. Judge Coughenour disagrees. According to the complaint, Steam "holds approximately 75% of the global market" which, in 2017 generated over $4 billion worth of sales" and last year "recorded 120 million monthly active players." As a result, game publishers consistently list their games for sale on Steam "to be where the players are." At this stage in the proceeding, no more is required. C. Alleged Antitrust Conduct The final issue for the Court's consideration is antitrust conduct. According to the complaint, the Defendant engages in the following: (1) uses Steam Keys, which are alphanumeric codes that allow Steam-hosted games to be purchased outside of Steam, to impose anti-competitive terms to game publishers, (2) uses contractual agreements with game publishers whose games are hosted by Steam to impose similar anti-competitive terms to the sale of a publisher's non-Steam hosted games, and (3) controls the game review system within Steam in such a manner so as to punish game publishers who choose to sell games outside of the Steam environment. In moving to dismiss, the Defendant argues that none are adequately plead. 1. Steam Keys The Defendant provides game publishers with Steam Keys, which allow for the sale of Steam-hosted versions of games through third-party storefronts. ) According to Dark Catt's complaint, Valve tightly controls to whom, how many, and on what terms it provides Steam Keys and, in doing so, engages in anti-competitive conduct. But, Judge Coughenour finds that the Defendant has no duty to deal. So long as it has a valid business reason for the terms it attaches to its Steam Keys, those terms cannot, as a matter of law, represent unlawful antitrade conduct. And nothing in Dark Catt's complaint suggests that the Defendant's Steam Key terms are irrational. 2. Contractual Limitations Game publishers often create parallel versions of their games -- a version to be hosted on Steam and another to be hosted elsewhere. The Steam version is governed by the Steam Distribution Agreement ("SDA"), which requires publishers to offer the most current version of a game and downloadable content ("DLC") on Steam. The complaint also alleges that the SDA contains (a) anti-competitive exclusivity provisions and (b) price controls, requiring that non-Steam versions of games be sold at the same price as the Steam version. Dark Catt describes these collective requirements as a most-favored-nation ("MFN") provision. According to the complaint, the MFN "chills competition between Valve and it rivals by preventing Publishers from offering better deals to consumers through rival distributors." First, Judge Coughenour holds that while the SDA does require game publishers to provide Steam customers with the most current version of their games and DLC, nothing in the SDA requires that they be offered at comparable prices. Therefore, the complaint's allegations regarding the SDA's price controls are not plausible. Second, Judge Coughenour does not read the SDA as containing an exclusivity provision. Instead, it provides that game publishers may "offer special and unique promotional content through other distribution channels, provided that material parity is maintained between Steam Account Owners and users of other distribution channels who make a comparable investment in the Application and the associated DLC." And in any case, according to the complaint, exclusive offerings are common in the industry. Therefore, it would seem implausible that such agreements could constitute anti-competitive conduct. Third, the SDA's requirement that Steam customers receive the most current version of a game and DLC, like any contractual term, is only anti-competitive if not supported by a valid business reason. In the case, it stands to reason that Steam would expect its customers to receive a comparable product to that offered through other storefronts. This is a basic business principle. 3. Game Reviews Finally, the complaint alleges that the Defendant manages the game review system in a manner so as to further its anticompetitive efforts. According to the complaint, the Defendant uses the game review system, which it hosts, to penalize publishers who choose to sell a particular game exclusively through another storefront. But it is not clear how the resulting harms would "flow from that which makes the conduct unlawful" or represent "the type of conduct the antitrust laws [a]re intended to prevent." Conlusion & Order Judge Coughenour concludes that Dark Catt's complaint plausibly alleges an injury and plausibly alleges that the Defendant holds market power, but it fails to allege unlawful antitrust conduct. Therefore, it fails to adequately plead a violation of Section 2 of the Sherman Act or a violation of the CPA. For these foregoing reasons, Judge Coughenour granted in part and denied in part the Defendant's motion to dismiss. The Plaintiffs' complaint is dismissed without prejudice and with leave to amend. An amended complaint, addressing the infirmities described, as well as any other changes it elects to make, may be filed within 30 days of the Order. If no such amendment is filed, the Clerk is directed to close the case. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/3wf3fur6 from Leagle.com. VALVE CORP: Wolfire's Claims in Consolidated Amended Suit Narrowed ------------------------------------------------------------------ In the case, WOLFIRE GAMES, LLC, SEAN COLVIN, SUSANN DAVIS, DANIEL ESCOBAR, WILLIAM HERBERT, RYAN LALLY, HOPE MARCHIONDA, and EVERETT STEPHENS, individually and on behalf of all others similarly situated, Plaintiffs v. VALVE CORPORATION, Defendant, Case No. C21-0563-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S. District Court for the Western District of Washington, at Seattle, granted in part and denied in part the Defendant's motion to dismiss. Plaintiff Wolfire Games, LLC alleges, in a Consolidated Amended Class Action Complaint ("CAC"), that the Defendant utilizes anticompetitive practices and its monopoly power to force Wolfire and similarly situated personal computer ("PC") desktop game publishers to pay Defendant supracompetitive fees for the sale of their games. The CAC also contains allegations and claims for relief from game consumers. However, the Court already granted Defendant's motion to compel arbitration of those claims pursuant to the Defendant's Steam Subscriber Agreement. The Defendant operates a PC desktop gaming platform (the "Steam Platform") and a retail electronic game store (the "Steam Store"). Wolfire asserts, through the CAC, that the Defendant forces game publishers to sell their games through the Steam Store, which results in anti-competitive injury to Wolfire and similarly situated game publishers. According to the CAC, the Defendant initially created the Steam Platform to facilitate the delivery of patches and updates for its own games. It later launched the Steam Store. At the time, it sold its own games through the Steam Store, which could only be played on the Steam Platform. TThis is because PC desktop games are generally not compatible across platforms due to the "unique functionality" of each platform. At some point, the Defendant opened up the Steam Platform to third-party game publishers. However, like its own games, those third-party games, if compatible with the Steam Platform, were generally not compatible with other platforms Also, like the Defendant's own games, absent the limited use of Steam Keys, those games had to be purchased through the Steam Store. The Defendant does not charge a direct fee for consumers' use of the Steam Platform or its hosting of a third-party publishers' games. Instead, it generates revenue through a fee that it charges for each third-party game sold in the Steam Store and for in-app purchases. The Defendant initially set the fee at 30% but now provides limited discounts to high-volume developers and/or publishers. The initial appeal of the Steam Platform to game consumers was the ability to maintain and update their game libraries in one location, regardless of which device they use to access the game. However, over time, the Defendant added more functionality to the platform. This included social networking features and other services, including a game achievement tracking service. Based in part on this increased functionality, demand for the platform steadily rose. Today, the "vast majority of all PC desktop games are played on the Steam Gaming Platform." As a result, Steam compatibility is considered to be a "must-have." According to the CAC, the Defendant uses this market dominance to unlawfully tie Steam Store sales to use of its Steam Platform and to impose price controls through contractual provisions and coercion. The CAC asserts that these practices violate Sections 1 and 2 of the Sherman Act as well as the Washington Consumer Protection Act ("CPA"). The Defendant moves to dismiss, at least with respect to Wolfire, pursuant to Federal Rule of Civil Procedure 12(b)(6). It argues, inter alia, that CAC's tying claims are not supportable, given the integrated platform and distribution market described in the CAC, and that the CAC fails to allege facts supporting an antitrust injury. Discussion a. Relevant Market According to the CAC, by 2020, the Defendant reported 45,000 Steam-compatible games and 120 million monthly active Steam Platform users. The Steam Store, where those games are generally purchased, presently accounts for 75% of the $10 billion2 PC desktop game market. Judge Coughenour need not weigh in on the debate because, under either standard, the CAC's allegations do not support Wolfire's contention that the game platform and game transaction markets are, in fact, separate. According to the CAC, games developed for a particular platform cannot be played on another platform and, with limited exceptions, game platforms generally do not charge for their use; instead, they generate revenue to support the platform through the sale of platform-compatible games and in-app purchases. Granted, Steam-enabled games can be purchased on a limited basis elsewhere. But those games are of no value unless the publisher includes a Steam Key, which the Defendant provides at no charge and only serves to allow the game to be played on the Steam Platform. Therefore, under either Jefferson Parish's consumer demand standard or Rick-Mik's essential ingredient standard, the CAC's allegations suggest that the Steam Platform and Steam Store are a single product within the integrated game platform and transaction market. b. Antitrust Injury To support an antitrust claim, a plaintiff must allege "(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were intended to prevent." The Defendant's motion to dismiss focuses on the CAC's failure to establish the second element. The CAC asserts that the Defendant's utilization of its monopoly power and platform most-favored-nation provision injures Wolfire through its payment of its supracompetitive fee. It further asserts that its coercive conduct reduces output and stifles competition in the marketplace, resulting in fewer, lower quality games as well as other ancillary anti-competitive effects First, Judge Coughenour finds that the market reality, at least as plead in the CAC, is that, in spite of the Defendant's "supracompetitive" fee, others who charge less have failed, even though they had significant resources at their disposal. Therefore, it would appear that the market reality, at least as plead, is that the Defendant's fee is commensurate with the Steam Platform's value to game publishers. Next, he finds that the CAC lacks allegations supporting the assertion that the Defendant's coercive practices result in non-price antitrust injuries, namely a reduction in output and quality. If anything, the facts provided by the CAC, at least with respect to output, suggest the opposite -- a consistent increase in the number of games available in the market and on the Steam Platform. Moreover, to the extent that this injury is predicated on Wolfire's payment of the Defendant's allegedly supracompetitive fee, it is not adequately plead. And finally, the CAC does not provide facts describing how Wolfire directly suffered from an alleged reduction in output and/or quality. Instead, it only addresses the impact on the industry. In addition, the CAC describes other harms arising from the Defendant's practices, namely cybersecurity issues and a failure to police game consumers' inappropriate behavior. But it does not describe how those harms "flow from that which makes the conduct unlawful" or are "the type the antitrust laws are intended to prevent." Conclusion Judge Coughenour concludes that while the CAC provides a viable alternative market to support its Sherman Act and CPA causes of action -- the integrated game platform and transaction market -- it does not articulate sufficient facts to plausibly allege an antitrust injury based on that market. Accordingly, the CAC fails to state a claim upon which relief can be granted. For these reasons, Judge Coughenour granted in part and denied in part the Defendant's motion to dismiss. Wolfire's causes of action in the CAC are dismissed without prejudice and with leave to amend. Wolfire may file a second amended complaint, addressing the infirmities described, as well as any other changes it elects to make, within 30 days of the order. A full-text copy of the Court's Nov. 19, 2021 Order is available at https://tinyurl.com/ycynhknn from Leagle.com. VEONEER INC: Misleads Stockholders to Approve Merger, Sabatini Says ------------------------------------------------------------------- ERIC SABATINI, individually and on behalf of all others similarly situated, Plaintiff v. VEONEER, INC., ROBERT W. ALSPAUGH, JAN CARLSON, JAMES M. RINGLER, MARK DURCAN, JONAS SYNNERGREN, KAZUHIKO SAKAMOTO, and WOLFGANG ZIEBART, Defendants, Case No. 2:21-cv-09292 (C.D. Cal., November 30, 2021) is a class action against the Defendants for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the Defendants authorized the issuance of a materially false and misleading Schedule 14A Definitive Proxy Statement with the Securities and Exchange Commission in order to convince Veoneer stockholders to approve the proposed acquisition of Veoneer by Qualcomm Incorporated and SSW Investors LP. The Proxy Statement allegedly omits or misrepresents material information concerning, among other things: (i) the data and inputs underlying the financial valuation analyses that support the fairness opinions provided by Veoneer's financial advisors, Morgan Stanley & Co. LLC and Rothschild & Co US Inc.; and (ii) Morgan Stanley's potential conflicts of interest. Veoneer's public stockholders will be irreparably harmed because the Proxy Statement's material misrepresentations and omissions prevent them from making a sufficiently informed voting or appraisal decision on the proposed transaction. The Plaintiff seeks to enjoin the stockholder vote on the proposed transaction unless and until such securities violations are cured. Veoneer, Inc. is an American Swedish provider of automotive technology based in Stockholm, Sweden. [BN] The Plaintiff is represented by: Joel E. Elkins, Esq. WEISSLAW LLP 611 Wilshire Blvd., Suite 808 Los Angeles, CA 90017 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 - and – Richard A. Acocelli, Esq. 305 Broadway, 7th Floor New York, NY 10007 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 VIATRIS INC: Dvorak Antitrust Suit Moved From E.D. Va. to D. Kan. ----------------------------------------------------------------- The case styled DONNA DVORAK, individually and on behalf of all others similarly situated v. VIATRIS INC., Successor-in-Interest to Mylan N.V.; MYLAN SPECIALTY L.P.; MYLAN PHARMACEUTICALS, INC.; and HEATHER BRESCH, Case No. 1:21-cv-01213, was transferred from the U.S. District Court for the Eastern District of Virginia to the U.S. District Court for the District of Kansas on November 30, 2021. The Clerk of Court for the District of Kansas assigned Case No. 2:21-cv-02561-DDC-TJJ to the proceeding. The case arises from the Defendants' alleged conspiracy, monopolization, attempted monopolization, and tying in violation of the Tennessee Antitrust Statute, the Racketeer Influenced and Corrupt Organizations Act, and the Virginia State Consumer Protection Law. Viatris Inc. is a global pharmaceutical company, headquartered in Pennsylvania. Mylan Specialty L.P. is a pharmaceutical company located in West Virginia. Mylan Pharmaceuticals, Inc. is a pharmaceutical company, headquartered in Pennsylvania. [BN] The Plaintiff is represented by: Elizabeth K. Tripodi, Esq. LEVI & KORSINSKY LLP 1101 30th Street NW, Suite 115 Washington, DC, 20007 Telephone: (202) 524-4290 Facsimile: (212) 363-7171 E-mail: etripodi@zlk.com - and – Courtney E. Maccarone, Esq. LEVI & KORSINSKY LLP 55 Broadway, 10th Floor New York, NY 10006 Telephone: (212) 363-7500 E-mail: cmaccarone@zlk.com - and – Rosemary M. Rivas, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: rmr@classlawgroup.com VIATRIS INC: Sumner Antitrust Suit Moved From E.D. Tenn. to D. Kan. ------------------------------------------------------------------- The case styled APRIL SUMNER, individually and on behalf of all others similarly situated v. VIATRIS INC., Successor-in-Interest to Mylan N.V.; MYLAN SPECIALTY L.P.; MYLAN PHARMACEUTICALS, INC.; and HEATHER BRESCH, Case No. 1:21-cv-00270, was transferred from the U.S. District Court for the Eastern District of Tennessee to the U.S. District Court for the District of Kansas on November 29, 2021. The Clerk of Court for the District of Kansas assigned Case No. 2:21-cv-02555-DDC-TJJ to the proceeding. The case arises from the Defendants' alleged conspiracy, monopolization, attempted monopolization, and tying in violation of Tennessee Antitrust Statute, the Racketeer Influenced and Corrupt Organizations Act, and Tennessee State Consumer Protection Law. Viatris Inc. is a global pharmaceutical company, headquartered in Pennsylvania. Mylan Specialty L.P. is a pharmaceutical company located in West Virginia. Mylan Pharmaceuticals, Inc. is a pharmaceutical company, headquartered in Pennsylvania. [BN] The Plaintiff is represented by: John Spragens, Esq. SPRAGENS LAW PLC 311 22nd Ave. N. Nashville, TN 37203 Telephone: (615) 983-8900 E-mail: john@spragenslaw.com - and – Rosemary M. Rivas, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: rmr@classlawgroup.com VILLAGE COMPANY: Body Spray Contains Benzene, Ventura Suit Says --------------------------------------------------------------- MARIA VENTURA, individually and on behalf of all others similarly situated, Plaintiff v. THE VILLAGE COMPANY, LLC, Defendant, Case No. 1:21-cv-10226 (S.D.N.Y., December 1, 2021) is a class action against the Defendant for violations of New York General Business Law, breach of express warranty, breach of implied warranty of merchantability, fraudulent concealment, medical monitoring, and unjust enrichment. According to the complaint, the Defendant is engaged in false, deceptive, and misleading advertising, labeling, and marketing of Soft & Dri - Classic, Signature Soft Scent body spray product. The Defendant failed to disclose that the product contains benzene, a known human carcinogen. As a result of the Defendant's alleged misrepresentations, the Plaintiff and Class members were injured in fact and lost money. Had they known the truth, they would not have purchased the product. The Village Company, LLC is a manufacturer of personal care products, with its headquarters and principal place of business located in Eden Prairie, Minnesota. [BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and – David C. Magagna Jr., Esq. Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: dmagagna@lfsblaw.com cschaffer@lfsblaw.com VISION SOLAR: Sends Unsolicited Telemarketing Calls, Landy Says --------------------------------------------------------------- BRENNAN LANDY, individually and on behalf of all others similarly situated, Plaintiff v. VISION SOLAR, LLC d/b/a SOLAR EXCHANGE, Defendant, Case No. 1:21-cv-20241 (D.N.J., November 29, 2021) is a class action against the Defendant for violation of the Telephone Consumer Protection Act. The case arises from the Defendant's practice of placing unsolicited telemarketing calls without prior express written consent to consumers who registered their phone numbers on the National Do Not Call Registry. As a result of the Defendant's alleged misconduct, the Plaintiff and other consumers suffered actual harm including aggravation, nuisance, and invasion of privacy. Vision Solar, LLC, doing business as Solar Exchange, is a solar energy company based in Cherry Hill, New Jersey. [BN] The Plaintiff is represented by: Jeffrey S. Arons, Esq. ARONS & ARONS, LLC 76 South Orange Ave., Suite 100 South Orange, NJ 07079 Telephone: (973) 762-0795 Facsimile: (973) 762-0279 E-mail: ja@aronslaw.net - and – Steven L. Woodrow, Esq. Patrick H. Peluso, Esq. Taylor T. Smith, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Avenue, Suite 300 Denver, CO 80210 Telephone: (720) 213-0675 Facsimile: (303) 927-0809 E-mail: swoodrow@woodrowpeluso.com ppeluso@woodrowpeluso.com tsmith@woodrowpeluso.com VOLKSWAGEN AG: Settlement Reached in Transmission Class Action Suit ------------------------------------------------------------------- David A. Wood at CarComplaints.com reports that a VW transmission class action lawsuit settlement has been reached after customers complained the 8-speed transmissions have multiple defects. Volkswagen denies all the allegations and maintains the 2019 VW Jetta and 2018-2020 VW Tiguan transmissions function properly and are not defective. But the judge allowed the plaintiffs to amend their class action lawsuit four times which finally sent Volkswagen to the settlement table. The VW transmission class action lawsuit was filed by three customers. California plaintiff Dominique Parrish owns a 2019 Volkswagen Jetta and says the transmission rattles and hasn't been repaired by a dealer. California plaintiff Ludwig Combrinck leased a new 2018 Volkswagen Tiguan and complained about a transmission oil leak which was repaired under warranty, and hard shifting from first to second gear which he claims was not repaired. Utah plaintiff Trine Utne leased a new 2019 Volkswagen Tiguan and complained of transmission hesitation problems which were not repaired. The plaintiffs allege Volkswagen "calibrated the Transmission's software to engage higher gears at insufficient speeds and insufficient revolutions per minute ('RPMs') and likewise programmed the torque converter to lock up at insufficient speeds and at insufficient RPMs." The transmission class action lawsuit alleges the 8-speed transmission "grates, scuffs, scrapes, grinds, suffers hard and sudden shifts, delayed acceleration, hesitation, banging into gear, and ultimately suffers broken seals and oil leaks, resulting in catastrophic failure." The 8-speed transmissions allegedly contain separate problems, with certain 2019 Volkswagen Jetta vehicles suffering rattling noise from the transmissions. Then other 2019 Jettas suffer from transmission oil leaks from the cooler seal rings, and 2018-2020 Volkswagen Tiguans allegedly experience transmission hesitation or jerking. VW Transmission Class Action Settlement All current and former owners and lessees of 2019 Jettas may receive software updates of the transmission control modules and damper weights installed on the driveshafts. The Jetta must be diagnosed as making rattling noise due to the transmission, and the update will be available up to one year after the class action notice date. In addition, current or former owners or lessees of 2019 Volkswagen Jettas may be reimbursed for expenses paid to repair a diagnosed transmission rattling noise. The repairs must have been paid prior to the notice date and within 72,000 miles from the in-service date of the vehicle. If the past transmission repair for noise was performed by a non-Volkswagen dealership, the Jetta owner will need to show documents to prove the owner first tried to have the repair performed by a dealer under warranty but the VW dealer declined or was unable to perform the repair for free under warranty. Model year 2019 VW Jetta customers may also receive a warranty extension based on the vehicle identification numbers. The extension will cover repairs of transmission oil leaks caused by the O-rings during a period of 12 months or 12,000 miles from the original transmission warranty. "The Warranty Extension is conditioned upon either (i) Service Action 38C5 (entitled 'Transmission Oil Cooler Seals', issued by VWGoA on March 25, 2020) having been performed on the vehicle prior to said repair, or (ii) the Settlement Class Member providing a declaration (that VWGoA's records do not otherwise contradict), attesting that he/she/it was not previously notified of the availability of Service Action 38C5, and that he/she/it had the Service Action performed on that vehicle within thirty (30) days after the Notice Date." - VW transmission settlement VW Jetta customers may also be eligible for other reimbursements, but several conditions currently exist to receive payments. For customers of 2018-2020 Volkswagen Tiguans, the warranty will be extended for 12 months or 12,000 miles for repairs related to transmission hesitation and jerking. Emissions Recall 24GB (entitled Engine and Transmission Control Module (ECM/TCM issued by VW on September 16, 2020) must have been previously performed prior to the extended warranty repair. "Volkswagen is providing an Engine and Transmission Control Module (ECM/TCM) software update to address elevated tailpipe emissions that were found during vehicle testing. This software will also improve drivability and provide other diagnostic improvements." - Emissions Recall Code: 24GB Tiguan customers may also be eligible for certain reimbursements for paid repairs related to transmissions jerking and hesitating. However, conditions apply and customers will need to provide documentation. Nothing about the VW transmission class action settlement is official until the judge grants preliminary and then final approval of the settlement agreement. The VW transmission class action lawsuit was filed in the U.S. District Court for the Central District of California: Parrish, et al., v. Volkswagen Group of America, Inc. The plaintiffs are represented by Capstone Law, and Berger Montague. [GN] WASATCH ADVANTAGE: Parties Seek to Vacate Class Cert. Schedule -------------------------------------------------------------- In the class action lawsuit captioned as UNITED STATES OF AMERICA, ex rel. DENIKA TERRY, ROY HUSKEY III, and TAMERA LIVINGSTON, and each of them for themselves individually, and for all other persons similarly situated and on behalf of the UNITED STATES OF AMERICA, v. WASATCH ADVANTAGE GROUP, LLC, et al., Case No. 2:15-cv-00799-KJM-DB (E.D. Cal.), the parties stipulate and jointly ask that the court order as follows: 1. That the deadline announced during the Scheduling Conference for the Parties to file their Stipulation to Amend the Class Certification Order is vacated; and 2. That no later than January 17, 2021, the Parties shall either file their Stipulation to Amend the Class Certification Order or a Status Report regarding the same. This Court has previously certified both a Rule 23(b)(3) Class and a Rule 23(b)(2) Class in this case. The Defendants include WASATCH PROPERTY MANAGEMENT, INC., WASATCH POOL HOLDINGS, LLC, CHESAPEAKE APARTMENT HOLDINGS, LLC, LOGAN PARK APARTMENTS, LLC, LOGAN PARK APARTMENTS, LP, ASPEN PARK HOLDINGS, LLC, BELLWOOD JERRON HOLDINGS, LLC, BELLWOOD JERRON APARTMENTS, LP, BENT TREE APARTMENTS, LLC, CALIFORNIA PLACE APARTMENTS, LLC, CAMELOT LAKES HOLDINGS, LLC, CANYON CLUB HOLDINGS, LLC, COURTYARD AT CENTRAL PARK APARTMENTS, LLC, CREEKSIDE HOLDINGS, LTD, HAYWARD SENIOR APARTMENTS, LP, HERITAGE PARK APARTMENTS, LP, OAK VALLEY APARTMENTS, LLC, OAK VALLEY HOLDINGS, LP, PEPPERTREE APARTMENT HOLDINGS, LP, PIEDMONT APARTMENTS, LP, POINT NATOMAS APARTMENTS, LLC, POINT NATOMAS APARTMENTS, LP, RIVER OAKS HOLDINGS, LLC, SHADOW WAY APARTMENTS, LP, SPRING VILLA APARTMENTS, LP, SUN VALLEY HOLDINGS, LTD, VILLAGE GROVE APARTMENTS, LP, WASATCH QUAIL RUN GP, LLC, WASATCH PREMIER PROPERTIES, LLC, WASATCH POOL HOLDINGS III, LLC, and DOES 1-4. A copy of the Parties' motion dated Dec. 1, 2021 is available from PacerMonitor.com at https://bit.ly/3ppZuNk at no extra charge.[CC] The Plaintiffs are represented by: Laura L. Ho, Esq. Anne Bellows, Esq. Kristen A. Burzynski, Esq. GOLDSTEIN, BORGEN, DARDARIAN & HO 155 Grand Avenue, Suite 900 Oakland, CA 94612 Telephone: (510) 763-9800 E-mail: lho@gbdhlegal.com abellows@gbdhlegal.com kburzynski@gbdhlegal.com - and - Andrew Wolff, Esq. LAW OFFICES OF ANDREW WOLFF, PC 1615 Broadway, 4th Floor Oakland, CA 94612 Telephone: (510) 834-3300 Facsimile: (510) 834-3377 E-mail: andrew@awolfflaw.com - and - Jesse Newmark, Esq. CENTRO LEGAL DE LA RAZA 3022 International Blvd., Suite 410 Oakland, CA 94601 Telephone: (510) 437-1863 Facsimile: (510) 437-9164 E-mail: jessenewmark@centrolegal.org - and - Jocelyn D. Larkin, Esq. Lindsay Nako, Esq. THE IMPACT FUND 2080 Addison Street, Suite 5 Berkeley, CA 94701 Telephone: (510) 845-3473 Facsimile: (510) 845-3654 E-mail: lnako@impactfund.org jlarkin@impactfund.org WENZAK HEARTLAND: Bachmann Sues Over Storing Employees' Biometrics ------------------------------------------------------------------ MICHAEL BACHMANN, individually and on behalf of all others similarly situated, Plaintiff v. WENZAK HEARTLAND, INC. and WENZAK, INC., Defendants, Case No. 2021L001253 (Ill. Cir. Ct., 18th Jud. Ct., Dupage Cty., November 29, 2021) is a class action against the Defendants for violation of the Biometric Information Privacy Act. According to the complaint, the Defendants disregarded their employees' statutorily protected privacy rights by unlawfully collecting, storing, and using their biometric data. Specifically, Wenzak has allegedly violated the BIPA because it did not: (a) properly inform the Plaintiff and Class members in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, and used; (b) provide a publicly available retention schedule and guidelines for permanently destroying the Plaintiff and Class members' fingerprints; nor (c) receive a written release from the Plaintiff or Class members to collect, capture, or otherwise obtain fingerprints. Wenzak Heartland, Inc. is a corporation based in Naperville, Illinois. Wenzak, Inc. is a food production company doing business in Illinois. [BN] The Plaintiff is represented by: Mara Baltabols, Esq. FISH POTTER BOLANOS, P.C. 200 East Fifth Avenue, Suite 123 Naperville, IL 60563 Telephone: (312) 861-1800 WISCONSIN: District Court Dismisses Shaw v. RCI With Prejudice -------------------------------------------------------------- Judge Joseph Peter Stadtmueller of the U.S. District Court for the Eastern District of Wisconsin dismissed the case, TERRANCE J. SHAW, Plaintiff v. PAUL S. KEMPER, JASON WELLS, STEPHANIE ONEIL, LIEUTENANT CRUZ, JOHN/JANE DOE 1-21, LEAH M. ZENI, EMILY DAVIDSON, and CINDY ODONNELL, Defendants, Case No. 21-CV-622-JPS (E.D. Wis.), with prejudice. I. Introduction Initially, the case had multiple pro se Plaintiffs -- a group of inmates at Racine Correctional Institution ("RCI") -- who filed a complaint alleging that the Defendants violated their First, Fifth, Eighth, and Fourteenth Amendment rights. The Plaintiffs filed a motion for class certification, and a motion to appoint counsel. On June 7, 2021, the Court denied the Plaintiffs' motion for class certification and denied their motion to appoint counsel. Additionally, the Court ordered that the Plaintiffs wishing to proceed in the case jointly sign and file one complaint by July 7, 2021. It warned that any Plaintiff that did not sign the complaint and/or did not file a motion to proceed in forma pauperis or pay the full $402 filing fee by July 7, 2021, would be dismissed from the case without prejudice. On July 19, 2021, the Court dismissed all the Plaintiffs except Terrance J. Shaw because they failed to file a jointly-signed complaint and failed to file a motion to proceed in forma pauperis or paid the full $402 filing fee by the July 7, 2021 deadline. Accordingly, the case now only has one Plaintiff, Shaw, a former inmate of RCI. The Plaintiff's pro se complaint under 42 U.S.C. Section 1983 alleges that the Defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights. Additionally, on July 27, 2021, the Plaintiff filed another motion to appoint counsel, and motion for class certification. Judge Stadtmueller screens the Plaintiff's complaint and resolves his pending motions. II. Screening the Complaint A. Plaintiff's Allegations The alleged events took place at RCI during the COVID-19 pandemic. The Plaintiff names the following RCI employees as Defendants: Warden Paul S. Kemper, Deputy Warden Jason Wells, security director Stephanie O'Neil, supervisor Lieutenant Cruz, and 21 John/Jane Doe correctional officers. Additionally, the Plaintiff has named inmate complaint examiner ("ICE") Leah M. Zeni ("ICE Zeni"), corrections complaint examiner ("CCE") Emily Davidson ("CCE Davidson"), and Office of the Secretary Cindy O'Donnell as Defendants. The Plaintiff states that all the Defendants are sued in their official and individual capacities. On March 4, 2021, around 9:30 p.m., the Plaintiff and the approximately 192 other inmates on the Kenosha Housing Unit at RCI were subjected to a "shake-down" search of their cells. The search was authorized by O'Neil and carried out by Cruz and the Doe Officers. The Plaintiff asserts that Cruz and the Doe Officers were not wearing face masks during the search. While the search was being conducted, the Kenosha Unit inmates were forced to go outside in the freezing cold without coats, socks, hats, gloves, or scarves, and walk approximately 100 yards to the RCI Gym where they were directed to stay until the search was completed. While inside the Gym, the Plaintiff and the other Kenosha Unit inmates were forced to sit side-by-side on the bleachers for two hours, putting them at risk of contracting COVID-19. He alleges that requiring the Kenosha Unit inmates to sit side-by-side was a violation of Wisconsin's COVID-19 pandemic procedures which required six feet of separation between the inmates. Because the COVID-19 procedures were not followed, Plaintiff claims that evening was a "super-spreader event." Additionally, the Plaintiff states that RCI closed the Gym to all inmates during the COVID-19 pandemic because it did not have enough space for the inmates to adequately socially distance. He also states that during the times when the Gym was open to inmates during the COVID-19 pandemic, RCI only allowed half of a housing unit to occupy it at one time. However, on March 4, 2021, the entire Kenosha Unit -- consisting of approximately 192 inmates -- was put inside the Gym to wait while the search was completed. On March 5, 2021, the Plaintiff filed an inmate complaint regarding the March 4, 2021 event. In the inmate complaint, the Plaintiff stated that the RCI security staff and Cruz violated his medical health rules and put his "life at risk of exposure to COVID-19 from a Super-Spreader event" that did not follow the RCI Health Service Unit ("HSU") and Wisconsin's COVID-19 protocol regarding social distancing. Ultimately, the Plaintiff's inmate complaint was dismissed, and his appeal was dismissed as well. On March 9, 2021, RCI's Kenosha Unit was put on lockdown because new COVID-19 cases were discovered during testing. The Plaintiff alleges that the new COVID-19 cases were a result of the "super-spreader event" on March 4, 2021. However, he contracted COVID-19. Lastly, the Plaintiff states that the "Action Is for Money Damages for Eighth Amendment Violations" and requests the following relief: (1) "Declaratory Judgment, or an Order that RCI Violated a State Protection Covid-19 Mandate, and the workplace did Not follow the U.S. Constitution;" (2) "Compensatory Damages pursuant to Fed. R. Civ. P. 23(b)(3) from each of the Defendants to each Class Action Plaintiff the amount of $250,000;" (3) "Punitive Damages pursuant to Fed. R. Civ. P. 23(b)(3) from each of the Defendants to each Class Action Plaintiff the amount of $250,000;" and (4) "Presumed Damages pursuant to Fed. R. Civ. P. 23(b)(3) from each of the Defendants to each Class Action Plaintiff the amount of $250,000." Analysis In order to demonstrate a violation of the Eighth Amendment, a prisoner must make two showings. "First, the deprivation alleged must be, objectively, sufficiently serious." "For a claim based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." The second requirement is that the prison official was deliberately indifferent "to inmate health or safety," meaning that the prison official was both aware of and disregarded "an excessive risk to inmate health or safety." 1. Outside in Freezing Temperatures The Plaintiff claims that his Eighth Amendment rights were violated when he and the other Kenosha Unit inmates were forced to walk outside in freezing temperatures, without coats, socks, hats, gloves, or scarves, and walk approximately 100 yards to the RCI Gym. He does not allege that he was subjected to the freezing temperatures for a long period of time or that he suffered any injury as a result of going outside to travel 100 yards. Although undoubtably uncomfortable, Judge Stadtmuller holds that this event is not sufficiently serious to rise to the level of a Constitutional violation. The Plaintiff's allegations, taken as true, do not constitute "extreme deprivations" that denied him the minimal life necessities. Therefore, he will dismiss the Plaintiff's claims arising from the 100-yard walk outside in freezing temperatures for failure to state a claim. 2. Risk of COVID-19 Exposure The Plaintiff claims that his Eighth Amendment rights were violated when he was forced to sit side-by-side on the Gym bleachers for two hours, which put him at risk of contracting COVID-19. He alleges that requiring the Kenosha Unit inmates to sit side-by-side with other inmates was a violation of the RCI HSU and Wisconsin's COVID-19 pandemic protocols, which required six feet of separation between the inmates. Judge Stadtmueller finds that the Plaintiff has failed to state a claim on these allegations. First, the Plaintiff's claim that the Defendants violated the CDC guidelines which the RCI HSU and the State of Wisconsin incorporated into their COVID-19 protocols do not state a federal or constitutional claim under Section 1983. Second, the Plaintiff's allegations that Defendants violated the RCI HSU and Wisconsin's COVID-19 protocols do not state a claim under Section 1983. Third, the Plaintiff has not alleged that he has suffered any injury from the alleged Eighth Amendment violation. Therefore, because the Plaintiff has not alleged that he suffered any injury from the Defendants' deliberate indifference, he has failed to state a claim. IV. Conclusion In sum, Judge Stadtmueller concludes that the Plaintiff has failed to state a claim, and he will dismiss his case. Accordingly, the Judge will deny the Plaintiff's as moot pending motion to appoint counsel, and motion to certify class. Accordingly, the case is dismissed with prejudice under 28 U.S.C. Section 1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a claim. The Plaintiff's motion to appoint counsel and motion to certify class are denied as moot. The Clerk of Court document that this inmate has incurred a "strike" under 28 U.S.C. Section 1915(g). The Order and the judgment to follow are final. A dissatisfied party may appeal the Court's decision to the Court of Appeals for the Seventh Circuit by filing in the Court a notice of appeal within 30 days of the entry of judgment. The Court may extend this deadline if a party timely requests an extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline. ). Under limited circumstances, a party may ask the Court to alter or amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of judgment. The Court cannot extend this deadline. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally no more than one year after the entry of the judgment. The Court cannot extend this deadline. A party is expected to closely review all applicable rules and determine, what, if any, further action is appropriate in a case. The Clerk of Court is directed to enter judgment accordingly. A full-text copy of the Court's Nov. 23, 2021 Order is available at https://tinyurl.com/7bzur49z from Leagle.com. ZHANGMEN EDUCATION: Faces Banerjee Suit Over Drop in Share Price ---------------------------------------------------------------- SAURAV BANERJEE, individually and on behalf of all others similarly situated, Plaintiff v. ZHANGMEN EDUCATION INC.; YI ZHANG; RICKY KWOK YIN NG; TENG YU; COGENCY GLOBAL INC.; COLLEEN A. DE VRIES; MORGAN STANLEY & CO. LLC; and CREDIT SUISSE SECURITIES (USA) LLC, Defendants, Case No. 1:21-cv-09634 (S.D.N.Y., Nov. 19, 2021) is a federal securities class action on behalf of all those who purchased or otherwise acquired the American Depositary Shares ("ADSs") of Zhangmen in or traceable to the Company's initial public offering (the "IPO"), conducted on or about June 8, 2021, pursuant to the IPO prospectus (the "Prospectus") and Form F-1 registration statement, as amended (together with the Prospectus, the "Registration Statement"), seeking to pursue remedies under the Securities Act of 1933 (the "Securities Act"). The Plaintiff alleges in the complaint that the Registration Statement prepared by the Defendants was negligently prepared and, as a result, contained untrue statements of material fact, omitted material facts necessary to make the statements contained therein not misleading, and failed to make adequate disclosures required under the rules and regulations governing the preparation of such documents. Zhangmen was the registrant for the IPO. As an issuer of securities to the public, Zhangmen is strictly liable to the Plaintiff and the Class for the materially inaccurate statements in the Registration Statement, the failure of the Registration Statement to be complete, and the failure of the Registration Statement to disclose material information required pursuant to the regulations governing its preparation. As of the filing of this Complaint, Zhangmen ADSs trade at less than $2 per ADSs, more than 80% below the IPO price, says the suit. Zhangmen Education Inc. operates as an online education company. The Company focuses on providing personalized online courses to K-12 students. Zhangmen Education serves students in China. [BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 Email: srudman@rgrdlaw.com -and- Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 200 South Wacker Drive, 31st Floor Chicago, IL 60606 Telephone: (312) 674-4674 Facsimile: (312) 674-4676 Email: bcochran@rgrdlaw.com -and- Ralph M. Stone, Esq. 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