/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/211217.mbx C L A S S A C T I O N R E P O R T E R Friday, December 17, 2021, Vol. 23, No. 246 Headlines ALIERA COMPANIES: Involuntary Chapter 11 Petition Filed BISHOP OF CHARLESTON: Loses Bid to Protect E-mails in Nestler Suit BRISTOL-MYERS SQUIBB: Khalil Sues Over Misleading Statements CALIFORNIA PIZZA KITCHEN: Morales Sues Over Data Breach CANNTRUST HOLDINGS: Court Approves A&DS in U.S. Securities Suit CEBRIDGE TELECOM: Appeals Arbitration Bid Denial in Vasquez Suit CGH TECHNOLOGIES: Pennington Appeals Final Judgment in FLSA Suit CLEANSPARK INC: Lead Roles Appointed in Bishins Securities Suit COSTCO WHOLESALE: Loses Bid to Dismiss Charleston Consumer Suit E.I. DU PONT: Court Has Subject Matter Jurisdiction Over Banks Suit FLEETCOR TECH: Marion Sues to Recover Unpaid Overtime FORWARD CORP: Architectural Barriers Violate ADA, Lucio Alleges HIBU PLC: 3rd Cir. Affirms Dismissal of Levien Shareholder Suit JEFFERSON COUNTY COMMITTEE: Kemp Sues Over WARN Act Violations JP MORGAN: Dutka Files Suit in Cal. Super. Ct. KAYNE GRIFFIN: Murphy Files ADA Suit in S.D. New York LINDSAY CLARK: Cohn Files Suit in Cal. Super. Ct. LOS ANGELES COLLECTIVE: Chenault Sues Over Failure to Pay Wages MASALAWALA LLC: Kabir Seeks Overtime, Spread-of-Hours Pay MDL 2873: Lewis Suit Claims PFAS Exposure From AFFF Products MUSICTODAY II LLC: Ortega Sues Over Non-Blind-Friendly Website NORTH STATE: Napoles Files Suit in Cal. Super. Ct. PARTNERS PERSONNEL: Enciso Sues Over Unfair Labor Practices POWER SOLUTIONS: Bid to Continue Treadwell Suit Stay Partly Granted PRATT INSTITUTE: Sosa Files ADA Suit in S.D. New York RIVER VALLEY: Underpays Professional Counselors, Frinkle Says RTI PROPERTIES: Pendleton Sues Over Unpaid Minimum, Overtime Wages SPOTON TRANSACT: Predmore Files Suit in Cal. Super. Ct. TRADER JOE'S: Swanberg Sues Over Mislabeled Honey Graham Crackers UNITEDHEALTH GROUP: Court Refuses to Dismiss Snyder ERISA Suit WELLSPAN HEALTH: Technicians Sue Over Time-Shaving Practices Asbestos Litigation ASBESTOS UPDATE: GMS Inc. Defends 1,026 PI Suits at Oct. 31 ASBESTOS UPDATE: Mallinckrodt's Claimants Call for Probe Denied ASBESTOS UPDATE: Nash's Asbestos Liabilities Forces Chapter 7 ********* ALIERA COMPANIES: Involuntary Chapter 11 Petition Filed -------------------------------------------------------- In the case docketed as Hanna Albina and Austin Willard, individually and on behalf of others similarly situated, Plaintiffs, v. The Aliera Companies, Inc., Trinity Healthshare, Inc. and Oneshare Health, LLC Unity Healthshare, LLC, Case No. 20-CV-00496, (E.D. Ky., December 11, 2020), Plaintiffs filed an Involuntary Petition under Chapter 11 of the Bankruptcy Code against the Defendant with the U.S. Bankruptcy Court for the District of Delaware on December 3, 2021, which was assigned Case No. 21-11548. Prior to this, default judgment in favor of Austin Willard, Hanna Albina against The Aliera Companies, Inc. was entered by Judge Joseph M. Hood on November 17, 2021. The Court granted the amount of $16,255.54 in favor of Austin Willard while it granted default judgment in favor of the class of all persons who, while a Kentucky resident, purchased or were covered by a plan from Aliera and Trinity Healthshare, Inc., that purported to be a "health care sharing ministry," the amount of $4,679,868.46 for aggregate rescission damages or reformation damages of the class, presuming each individual class member elects the higher measure of available damages. [BN] Plaintiffs are represented by: William H. Anderson, Esq. HANDLEY FARAH & ANDERSON, PLLC 200 Massachusetts Avenue, NW, Seventh Floor Washington, DC 20001 Tel: (303) 800-9109 Email: wanderson@hfajustice.com - and - David Todd Varellas, Esq. James John Varellas, III, Esq. VARELLAS & VARELLAS 249 W Short Street Suite 201 Lexington, KY 40507 Tel: (859) 252-4473 Email: tvarellas@varellaslaw.com jayvarellas@varellaslaw.com - and - George F. Farah, Esq. HANDLEY FARAH & ANDERSON PLLC 200 Massachusetts Avenue, NW, Seventh Floor Washington, DC 20001 Tel: (212) 477-8090 Email: gfarah@hfajustice.com - and - Jerome Park Prather, Esq. GARMER & PRATHER, PLLC 141 N Broadway Lexington, KY 40507 Tel: (859) 254-9351, 254-9352 Email: jprather@garmerprather.com - and - Eleanor Hamburger, Esq. Richard E. Spoonemore, Esq. SIRIANNI YOUTZ SPOONEMORE HAMBURGER PLLC 3101 Western Avenue, Suite 350 Seattle, WA 98121 Tel: (206) 223-0303 Email: ehamburger@sylaw.com rspoonemore@sylaw.com - and - Rebecca P. Chang, Esq. HANDLEY FARAH & ANDERSON PLLC - NEW YORK 200 Massachusetts Avenue, NW, Seventh Floor Washington, DC 20001 Tel: (347) 480-1030 Email: rchang@hfajustice.com Oneshare Health, LLC is represented by: Kyle G.A. Wallace, Esq. SHIVER HAMILTON, LLC 355-F Commercial Drive, Savannah, GA 31406 Tel: (404) 220-8165 Email: kwallace@shiverhamilton.com - and - Chadwick Aaron McTighe, Esq. STITES & HARBISON, PLLC 400 West Market Street, Suite 1800 Louisville, KY 40202-3352 Tel: (502) 681-0392 Email: cmctighe@stites.com - and - Gregory P. Parsons, Esq. STITES & HARBISON PLLC 250 West Main Street, Suite 2300 Lexington, KY 40507-1758 Tel: (859) 226-2314 Email: gparsons@stites.com - and - Janet Craig, Esq. Robin E. McGuffin, Esq. STITES & HARBISON PLLC - LEXINGTON 250 West Main Street, Suite 2300 Lexington, KY 40507-1758 Tel: (859) 226-2377, 226-2216 Email: jcraig@stites.com rmcguffin@stites.com The Aliera Companies, Inc. is represented by: Benjamin Brock Coulter, Esq. BURR & FORMAN LLP 420 North 20th Street, Suite 3400 Birmingham, AL 35203 Tel: (205) 458-5420 Email: bcoulter@burr.com Trinity Healthshare, Inc. is represented by: Jon A. Woodall, Esq. Scott A. Schuette, Esq. Daniel Luke Morgan, Esq. MCBRAYER PLLC 201 East Main Street, Suite 900 Lexington, KY 40507 Tel: (859) 231-8780 Email: jwoodall@mmlk.com sschuette@mcbrayerfirm.com lmorgan@mmlk.com BISHOP OF CHARLESTON: Loses Bid to Protect E-mails in Nestler Suit ------------------------------------------------------------------ In the lawsuit titled 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, Case No. 2:21-613-RMG (D.S.C.), the U.S. District Court for the District of South Carolina, Charleston Division, denies the Defendants' motion for protective order regarding redacted portions of Maria Aselage's emails. Facts The Plaintiffs bring this 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 Plaintiffs filed this 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 cited press release. On Oct. 13, 2021, the Defendants filed a motion for protective order requesting that the Court find Aselage was not required to testify or provide documents or other discovery regarding her discussions with the Diocese's General Counsel. On Oct. 14, 2021, Aselage filed a motion for order of protection and to quash subpoena requesting similar relief. The Defendants argued that Aselage's communications with the Defendants and their General Counsel were privileged and confidential as attorney client material and work product. Neither of the cited motions included documents for the Court's in camera review nor a privilege log. On Nov. 3, 2021, the Court denied both motions, Gary Nestler, et al. v. The Bishop of Charleston, a Corp. Sole, et al., No. CV 2:21-613-RMG, 2021 WL 5122059, (D.S.C. Nov. 3, 2021). The Court found that neither the Defendants nor Aselage had met their burden of showing that Aselage was the functional equivalent of the Defendants' employee nor that 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 the 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 the 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, the Defendants filed the instant motion, claiming that, while Aselage is producing emails and documents responsive to the subpoena, a small number of emails include legal advice, strategic plans, and development of defense themes by in house and outside counsel. They, thus, seek a protective order regarding various emails now identified in a privilege log. On Nov. 18, 2021, the Plaintiffs responded in opposition to the instant motion. The Plaintiffs attached correspondence with Aselage's attorney. The correspondence suggests that, prior to either the Defendants or Aselage filing their initial motions for protection, neither Aselage nor the Defendants had reviewed the emails in question. On Nov. 9, 2021, roughly six days after the Court issued the 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 made her aware of the subpoena" (testifying that Aselage sent the subpoenaed documents to her attorney on Nov. 5, 2021). Legal Standard/Analysis Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure provides that when a party withholds information otherwise discoverable by claiming that the information is privileged, 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. District Judge Richard Mark Gergel notes that generalized claims of privilege are insufficient, citing Richardson v. Sexual Assault/Spouse Abuse Research Center, Inc., No. MJG-09-3404, 2010 WL 4290327, *5 (D. Md. Oct. 28, 2010). 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. The Court denies the Defendants' motion. As made clear, the Court already ruled on the very issues the Defendants attempt to raise in the current motion. Specifically, it found that the Defendants had not met their burden of showing their communications with Aselage were privileged or that any portion of them was otherwise entitled to protection. The Court says it will not revisit this issue. Further, when the Defendants filed their initial motion for protection, they 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 with their initial motion is arguably fatal, Judge Gergel points out. Conclusion For the reasons stated, the Court denies the Defendants' motion for protective order. Aselage must produce all subpoenaed documents unredacted. Further, Aselage's deposition must 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 Order and Opinion dated Dec. 2, 2021, is available at https://tinyurl.com/y2kpzpp8 from Leagle.com. BRISTOL-MYERS SQUIBB: Khalil Sues Over Misleading Statements ------------------------------------------------------------ EHAB KHALIL, on behalf of himself and all others similarly situated, Plaintiffs v. BRISTOL-MYERS SQUIBB COMPANY, GIOVANNI CAFORIO, CHARLES BANCROFT, KAREN M. SANTIAGO, DAVID V. ELKINS, SAMIT HIRAWAT, VICKI L. SATO, PETER J. ARDUINI, ROBERT BERTOLINI, MATTHEW W. EMMENS, MICHAEL GROBSTEIN, ALAN J. LACY, DINESH C. PALIWAL, THEODORE R. SAMUELS, GERALD L. STORCH and KAREN H. VOUSDEN, Defendants, Case No. 1:21-cv-10351 (S.D.N.Y., December 3, 2021) is a federal securities class action on behalf of (i) all former Celgene shareholders, including Plaintiff, that received Bristol-Myers Squibb Contingent Value Rights in exchange for their Celgene shares pursuant to Bristol's $74 billion acquisition of Celgene on November 20, 2019, and (ii) all persons who purchased CVRs between November 20, 2019 and December 31, 2020 and who were damaged thereby. The lawsuit arises from Bristol's subversion of the FDA approval process for a blockbuster cancer therapy - JCAR017 a/k/a lisocabtagene maraleucel - for the purpose of avoiding a $6.4 billion payment to contingent value rights holders. A CVR is a security payable upon the occurrence of a specified future event often used by acquiring companies as partial merger consideration to the target company's shareholders. By Bristol's own design, the CVR payout required approval of three therapies, including Liso-Cel, by specified dates (the "Milestones"). A single therapy missing its Milestone by a single day was all Bristol needed to avoid payment to CVR holders -- but only if Bristol deceived investors into believing that it was, in fact, diligently aiming to hit its Milestone. The case alleges materially false and misleading statements and omissions of material facts in the Registration Statement (filed on or about February 20, 2019) made in violation of Sections 11 and 12(a)(2) of the Securities Act of 1933; false and misleading statements and omissions of material fact made in the Joint Proxy (the relevant substance of which was also included in the Registration Statement, and which was filed on February 22, 2019) made in violation of Sections 14(a) and/or 20(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder; and false and misleading statements and omissions of material fact made throughout the Class Period in violation of Sections 10(b) and/or 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder. Bristol-Myers Squibb Company is an American multinational pharmaceutical company, headquartered in New York City.[BN] The Plaintiff is represented by: Michael B. Eisenkraft, Esq. Laura H. Posner, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street 14th Floor New York, NY 10005 Telephone: (212) 838-7797 E-mail: meisenkraft@cohenmilstein.com lposner@cohenmilstein.com - and - Steven J. Toll, Esq. Joshua C. Handelsman, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W East Tower, Ste. 500 Washington, DC 20005 Telephone: (202) 408-4600 E-mail: stoll@cohenmilstein.com jhandelsman@cohenmilstein.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: peretz@bgandg.com CALIFORNIA PIZZA KITCHEN: Morales Sues Over Data Breach ------------------------------------------------------- Esteban Morales, individually and on behalf of all others similarly situated, Plaintiff, v. California Pizza Kitchen, Inc., Defendant, Case No. 21-cv-09345, (C.D. Cal., December 2, 2021), seeks injunctive and other equitable relief for violation of the California Unfair Competition Law and various states' Data Breach Statutes and resulting from the failure to properly secure and safeguard personal identifiable information and protected information 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. California Pizza Kitchen is a chain of restaurants specializing in California-style pizza. It owns and operates 270 full-service restaurants in 32 States, numerous smaller locations in airports and stadiums across the United States, and employs tens of thousands of workers, the vast majority of whom are located in the United States. In September 15, 2021, it experienced a data breach through which unauthorized individuals accessed personal data of its current and former employees. Morales was employed by California Pizza Kitchen at its Bakersfield, California location from 2011 to mid-2016. [BN] Plaintiff is represented by: Roland Tellis, Esq. Adam Tamburelli, Esq. BARON & BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, CA 91436 Telephone: (818) 839-2333 Facsimile: (818) 986-9698 Email: rtellis@baronbudd.com atamburelli@baronbud.com - and - Daniel O. Herrera, Esq. Nickolas J. Hagman, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 135 S. LaSalle, Suite 3210 Chicago, IL 60603 Telephone: (312) 782-4880 Facsimile: (312) 782-4485 Email: dherrera@caffertyclobes.com nhagman@caffertyclobes.com - and - Bryan L. Clobes, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 205 N. Monroe St. Media, PA 19063 Telephone: (215) 864-2800 Email: bclobes@caffertyclobes.com CANNTRUST HOLDINGS: Court Approves A&DS in U.S. Securities Suit --------------------------------------------------------------- Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York approves the allocation and distribution scheme in connection with the U.S. Class Action entitled In Re: CANNTRUST HOLDINGS INC. SECURITIES LITIGATION, Case No. 1:19-cv-06396-JPO (S.D.N.Y.). The matter came before the Court for a hearing on Dec. 2, 2021, on the motion of Lead Plaintiffs Granite Point Master Fund, LP and Granite Point Capital Scorpion Focused Ideas Fund for final approval of proposed class action settlements as they relate to the litigation (the "U.S. Class Action") and approval of the proposed Allocation and Distribution Scheme ("A&DS") for the proceeds of the settlements. Judge Oetken notes that this Order incorporates by reference the definitions in the Court's Order Granting Preliminary Approval of Class Action Settlements, Approving Form and Manner of Notice, and Setting Date for Hearing on Final Approval of Settlements, entered Sept. 2, 2021 (the "Preliminary Approval Order"). Pursuant to and in compliance with Rule 23 of the Federal Rules of Civil Procedure, the Court finds and concludes that due and adequate notice was directed to members of the U.S. Settlement Class who could be identified with reasonable effort, advising them of the A&DS and of their right to object thereto, and a full and fair opportunity was accorded to members of the U.S. Settlement Class to be heard with respect to the A&DS. There has been one objection to the A&DS. On Nov. 12, 2021, the Court received the objection of Myron V. Guidry. Mr. Guidry objects to the A&DS provision that "purchases made after 9/17/19 are not eligible for recovery because investors were allegedly disclosed the full truth about CannTrust. I believe the full truth was not disclosed to investors and still has not been regarding the allegations against CannTrust." The Court has considered the objection, the allegations in the Lead Plaintiffs' Consolidated Class Action Complaint, the provisions of the A&DS, that the A&DS was crafted by Lead Counsel and Ontario Class Action Counsel in consultation with Lead Plaintiffs' consulting damages expert, and that the A&DS was approved by the Canadian Court in the CCAA Sanction Order on July 16, 2021. The A&DS, as it relates to the Settlements in this U.S. Class Action, provides a fair and reasonable method to allocate the Class Compensation Fund, Judge Oetken holds. Accordingly, Mr. Guidry's objection to the A&DS is overruled. Mr. Guidry's objection concerning an African American subclass is addressed in the Court's accompanying U.S. Final Judgment as to Settling Defendants. The Court finds and concludes that the A&DS, in connection with the Settlements in this U.S. Class Action, provides a fair and reasonable basis upon which to allocate the Class Compensation Fund. It finds and concludes that the A&DS is, in all respects, fair, reasonable, and adequate and the Court approves the A&DS. A full-text copy of the Court's Order dated Dec. 2, 2021, is available at https://tinyurl.com/bdzee4us from Leagle.com. CEBRIDGE TELECOM: Appeals Arbitration Bid Denial in Vasquez Suit ---------------------------------------------------------------- Cebridge Telecom CA, LLC, et al., filed an appeal from a court ruling entered in the lawsuit entitled NICK VASQUEZ, Plaintiff v. CEBRIDGE TELECOM CA, LLC, et al., Defendants, Case No. 21-cv-06400-EMC, in the U.S. District Court for the Northern District of California, San Francisco. Plaintiff Nick Vasquez, individually, as a private attorney general, and on behalf of a putative class of other customers similarly situated, alleges that Defendants Cebridge Telecom CA, LCC and Altice, USA, Inc., doing business as Suddenlink Communications (collectively, "Suddenlink" or "Defendants"), engaged in false advertising by failing to disclose a "Network Enhancement Fee" for Internet services, and misrepresenting that the fee is a tax or government regulation. Vasquez asserts claims under California law pursuant to the Consumer Legal Remedies Act, False Advertising Law and Unfair Competition Law seeking public injunctive relief, declaratory relief and restitution. The operative complaint alleges that Suddenlink has engaged, and continues to engage, in a false advertising scheme in California by publicly advertising specific flat monthly rates for its Internet service plans for a specified time period, but then charging" higher monthly rates during that period via a disguised and fabricated extra charge on the bill (which Suddenlink calls the 'Network Enhancement Fee')." The Second Amended Complaint alleges the "Network Enhancement Fee" was concocted by Suddenlink as a means to covertly increase customers' rates, including during their advertised and promised fixed-rate promotional period. Furthermore, the SAC alleges that Suddenlink does not disclose that it can increase customers' monthly service rates, even during a promised fixed-rate promotional period, by increasing the amount of the Network Enhancement Fee. The Plaintiff brings claims under the Consumer Legal Remedies Act ("CLRA"), California Civil Code Section 1750 et seq., False Advertising Law ("FLA"), Cal. Bus. & Prof. Code Section 17500 et seq., and Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Section 17200 et seq. The SAC seeks public injunctive relief to stop Suddenlink's allegedly ongoing false and deceptive price advertising to the general public under the UCL, FAL, and CLRA. As reported in the Class Action Reporter on November 23, 2021, Judge Edward M. Chen denied Suddenlink's motion to compel the entirety of the action to arbitration. The Defendant seeks a review of this order. The appellate case is captioned as Cebridge Telecom CA, LLC, et al. v. Nick Vasquez, Case No. 21-17009, in the United States Court of Appeals for the Ninth Circuit, filed on December 3, 2021. The briefing schedule in the Appellate Case states that: -- Appellants Altice USA, Inc. and Cebridge Telecom CA, LLC Mediation Questionnaire was due on December 10, 2021; -- Transcript shall be ordered by January 3, 2022; -- Transcript is due on January 31, 2022; -- Appellants Altice USA, Inc. and Cebridge Telecom CA, LLC opening brief is due on March 14, 2022; -- Appellee Nick Vasquez answering brief is due on April 13, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Defendants-Appellants CEBRIDGE TELECOM CA, LLC, DBA Suddenlink Communications; and ALTICE USA, INC. are represented by: Daniel Jones, Esq. Archis Ashok Parasharami, Esq. MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3860 E-mail: aparasharami@mayerbrown.com - and - Kyle Seelbach, Esq. HUSCH BLACKWELL LLP 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 Telephone: (314) 480-1500 Plaintiff-Appellee NICK VASQUEZ, For Himself, As a Private Attorney General, and/or On Behalf of All Others Similarly Situated, is represented by: Che Corrington, Esq. Daniel Hattis, Esq. HATTIS & LUKACS 400 108th Avenue NE, Suite 500 Bellevue, WA 98004 Telephone: (425) 233-8633 E-mail: dan@hattislaw.com - and - Paul Karl Lukacs, Esq. HATTIS & LUKACS 936 Woodlawn Drive Thousand Oaks, CA 91360 Telephone: (805) 233-8062 E-mail: pkl@hattislaw.com CGH TECHNOLOGIES: Pennington Appeals Final Judgment in FLSA Suit ---------------------------------------------------------------- Plaintiff Matthew Pennington filed an appeal from a court ruling entered in the lawsuit entitled MATTHEW PENNINGTON, individually and on behalf of all others similarly situated, Plaintiff v. CGH TECHNOLOGIES, INC., a Foreign for Profit Corporation, Defendant, Case No. 6:19-cv-02056-PGB-EJK, in the United States District Court for the Middle District of Florida. As reported in the Class Action Reporter, the lawsuit alleges that the Defendant did not compensate the Plaintiff and all other similarly situated non-exempt workers at the proper overtime rate of time and a half as required by the Fair Labor Standards Act. Mr. Pennington was employed by the Defendant as a "Technician," performing basic computer and security services at airports monitored by the Federal Aviation Authority (FAA) throughout Florida. He alleges that he and other similarly situated co-workers customarily worked more than 40 hours in a work week but the Defendant paid them straight time for each hour worked regardless of whether the work performed was in excess of 40 hours in a week. The Plaintiff now seeks a review of the Court's Final Judgment Order dated October 19, 2021, Judgment dated October 21, 2021, and Order dated August 18, 2021, wherein Judge Paul G. Byron denied Plaintiff's motion for summary judgment, motion to strike, and adopted a Report and Recommendation filed on July 8, 2021 regarding the said motions. The appellate case is captioned as Matthew Pennington v. CGH Technologies, Inc., Case No. 21-14101, in the United States Court of Appeals for the Eleventh Circuit, filed on November 23, 2021. The briefing schedule in the Appellate Case states that: -- Appellant's Certificate of Interested Persons was due on December 7, 2021 as to Appellant Matthew Pennington; and -- Appellee's Certificate of Interested Persons is due on or before December 21, 2021 as to Appellee CGH Technologies, Inc.[BN] Plaintiff-Appellant MATTHEW PENNINGTON, Individually and on behalf of all others similarly situated, is represented by: David Victor Barszcz, Esq. Mary Evelyn Lytle, Esq. LYTLE & BARSZCZ, PA 533 Versailles Dr Fl 2 Maitland, FL 32751 Telephone: (407) 622-6544 Defendant-Appellee CGH TECHNOLOGIES, INC., a Foreign For Profit Corporation, is represented by: Jason Devon Byrd, Jr., Esq. Nancy A. Johnson, Esq. LITTLER MENDELSON, PC 111 N Orange Ave Ste 1750 Orlando, FL 32802 Telephone: (407) 393-2900 E-mail: jabyrd@littler.com najohnson@littler.com - and - Paul Kennedy, Esq. LITTLER MENDELSON, PC 1150 17th St NW Ste 900 Washington, DC 20036-4655 Telephone: (202) 772-2518 E-mail: pkennedy@littler.com - and - Christiane Mary McKnight, Esq. ULMER & BERNE, LLP 500 W Madison Ste 3600 Chicago, IL 60661-4587 Telephone: (312) 658-6500 - and - Christopher Kip Schwartz, Esq. ULMER & BERNE LLP 1010 Wisconsin Ave NW Ste 540 Washington, DC 20007 Telephone: (202) 342-0413 E-mail: kschwartz@ulmer.com CLEANSPARK INC: Lead Roles Appointed in Bishins Securities Suit --------------------------------------------------------------- In the lawsuit entitled SCOTT BISHINS, et al., Plaintiffs v. CLEANSPARK, INC., et al., Defendants, Case No. 21 CV 511 (LAP) (S.D.N.Y.), Senior District Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York issued an Opinion & Order: -- appointing Darshan Hasthantra as lead plaintiff pursuant to the Private Securities Litigation Reform Act ("the PSLRA"); and -- selecting counsel for Darshan Hasthantra--Glancy Prongay & Murray LLP--as Lead Counsel for the class in this action. Before the Court are the issues of: (1) appointing lead plaintiff in the above-captioned securities class action pursuant to the Private Securities Litigation Reform Act ("the PSLRA"), see 15 U.S.C. Section 78u-4; and (2) approving the selection of counsel for lead plaintiff, also pursuant to the PSLRA. Four parties initially moved for the status of lead plaintiff in this action: Kenneth Upton, JunMin Liu, Darshan Hasthantra, and Amir Kasbidi. Subsequently, two parties withdrew their motions upon determining that they did not appear to have the "largest financial interest" in this litigation within the meaning of the PSLRA. On April 16, 2021, the Court granted JunMin Liu's request to withdraw his motion for appointment as lead plaintiff and approval of lead counsel. On the same day, Amir Kasbidi filed a notice of non-opposition to competing motions for appointment as lead plaintiff and approval of lead counsel. Thus, only Kenneth Upton and Darshan Hasthantra remain pressing their respective claims through briefs to the Court. Factual Background The instant dispute arises out of a securities class action brought against Defendant CleanSpark--a provider of "advance software and controls technology solutions, including end-to-end microgrid energy modeling, energy market communications, and energy management solutions." The Plaintiffs allege that between Dec. 31, 2020, and Jan. 14, 2021, CleanSpark and its executives (1) overstated the Company's customer and contract figures; (2) failed to disclose that several of the Company's recent acquisitions involved undisclosed related party transactions; and (3) that, as a result, the Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. The Plaintiffs allege that these misrepresentations and omissions artificially increased the value of the Company's securities, caused the Plaintiffs to purchase the securities at inflated prices, and damaged the Plaintiffs when the price of the securities dropped after the release of Culper Research's report on Jan. 14, 2021. On Jan. 20, 2021, the same day as the commencement of the action against the Defendants, Plaintiff Bishins published notice of the securities action via Business Wire. The notice provided for 60 days, i.e., until March 22, 2021, the last day permitted under the PSLRA, for parties to submit their applications to serve as lead plaintiff. Both Mr. Upton and Mr. Hasthantra filed motions seeking appointment as lead plaintiff on March 22, 2021. Mr. Upton claims a loss of approximately $12,110 on his class period transactions in CleanSpark securities. Mr. Hasthantra claims a loss of approximately $28,244. A. Selection of Lead Plaintiff At the outset, the Court notes that both parties have filed timely motions. Mr. Hasthantra, who claims $34,425.27 in total losses, is the largest stakeholder in this litigation. The Court further finds that Mr. Hasthantra has made a prima facie demonstration that he otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. Therefore, Mr. Hasthantra would become lead plaintiff absent proof that he will not fairly and adequately protect the interests of the class or is subject to unique defenses that render such plaintiff incapable of adequately representing the class. Mr. Upton argues that Mr. Hasthantra is not an adequate class representative because Mr. Hasthantra submitted inaccurate information regarding his stock trades in his PSLRA certification. Specifically, Mr. Upton claims that Mr. Hasthantra reported trades that exceeded the Company's highest trading price on Jan. 5, 2021, and Jan. 6, 2021. In support of this position, Mr. Upton cites to Michelle, in which the court denied a motion for appointment of lead plaintiff because the prices movant claimed to have paid did not fall within the high and low range listed on the Company's website. Mr. Hasthantra, however, defended the veracity of his PSLRA certification. According to Mr. Hasthantra, pricing data from Bloomberg Finance L.P. shows that his trades fell within the Company's after-market pricing data for Jan. 5, 2021, and Jan. 6, 2021. Because Mr. Hasthantra and his counsel, Gregory Linkh, certified the veracity of Mr. Hasthantra's trading as compared against the Company's after-market price ranges, the Court finds no errors in Mr. Hasthantra's PSLRA certification. Moreover, the Court does not find that Mr. Hasthantra's after-market purchases render him inadequate or atypical. Like other class members, Mr. Hasthantra purchased CleanSpark securities during the class period at prices that he contends were inflated by the Company's alleged false statements and was damaged thereby. Accordingly, the Court is satisfied that Mr. Hasthantra has made a preliminary showing of typicality. The Court is convinced that Mr. Hasthantra can serve adequately as lead plaintiff. B. Selection of Lead Counsel Although the Court maintains discretion in appointing lead counsel to protect the interests of the class, the PSLRA evidences a strong presumption in favor of appointing a properly-selected lead plaintiff's decision as to counsel selection and counsel retention, Judge Preska notes, citing Casper v. Song Jinan, No. 12-cv-4202 (NRB), 2012 WL 3865267, at *3 (S.D.N.Y. Sept. 6, 2012). The Court sees no reason to upset this process, as Mr. Hasthantra has hired capable, experience lead counsel in Glancy Prongay & Murray LLP. Accordingly, the Court approves their selection as lead counsel. Conclusion For these reasons, Darshan Hasthantra is appointed lead plaintiff, and Glancy Prongay & Murray LLP is appointed lead counsel for the class. The Clerk of the Court will close the open motions. A full-text copy of the Court's Opinion & Order dated Dec. 2, 2021, is available at https://tinyurl.com/46n47vj9 from Leagle.com. COSTCO WHOLESALE: Loses Bid to Dismiss Charleston Consumer Suit --------------------------------------------------------------- The U.S. District Court for the District of South Carolina, Charleston Division, denies the Defendants' motion to dismiss the lawsuit styled Commissioners of Public Works of the City of Charleston (d.b.a. Charleston Water System), Individually and on Behalf of All Others Similarly Situated, Plaintiff v. Costco Wholesale Corporation, CVS Health Corporation, Kimberly-Clark Corporation, The Proctor & Gamble Company, Target Corporation, Walgreens Boots Alliance, and Wal-Mart, Inc., Defendants, Case No. 2:21-cv-42-RMG (D.S.C.). Defendants Costco Wholesale Corp., CVS Health Corporation, and Target Corp., moved to dismiss the Plaintiff's amended complaint under the doctrine of primary jurisdiction. Background In this putative class action, the Plaintiff, the Commissioners of Public Works of the City of Charleston (d.b.a. "Charleston Water System"), on behalf of itself and all others similarly situated, alleges that Defendants CostcoCVS, Kimberly-Clark Corp., The Proctor & Gamble Company ("P&G"), Target, Walgreen Co. ("Walgreens"), and Wal-Mart, Inc., design, market, manufacture, distribute, and/or sell wipes labeled as "flushable" which are not actually flushable. These wipes allegedly damage sewer systems across the country. The Plaintiff brings claims for nuisance, trespass, strict products liability--defective design, strict products liability--failure to warn, and negligence. The Plaintiff seeks--in addition to reasonable attorney's fees and costs for class counsel--prospective injunctive relief only. The Defendants move to dismiss the Amended Complaint based on the "primary jurisdiction" doctrine. As pertinent to this motion, the Defendants note that the Federal Trade Commission previously investigated Nice-Pak Products Inc. ("Nice-Pak") and its advertising and labeling of flushable wipes. The Defendants argue this is relevant because Nice-Pak manufactures the flushable wipes the Defendants currently sell. On Oct. 30, 2015, as result of said investigation, the FTC entered into a consent decree with Nice-Pak. As defined therein, "covered product" means all wipes and any moist toilet tissue or cloth. The consent decree prohibits Nice-Pak from advertising covered products as flushable unless the representation is non-misleading, and, at the time the representation is made, Nice-Pak possesses and relies upon competent and reliable evidence, which, when appropriate based on the expertise of professionals in the relevant area must be competent and reliable scientific evidence, that, when considered in light of the entire body of relevant and reliable evidence, is sufficient in quantity and quality based on standards generally accepted in the relevant fields to substantiate that the representation is true. Nice-Pak was directed to retain, for a period of five years, advertising, labels, packaging, and promotional materials to this effect. The consent decree terminates on Oct. 30, 2035. On Oct. 12, 2021, the Defendants filed the instant motion. The Plaintiff opposes. The Defendants filed a reply. The Defendants' motion is fully briefed and ripe for disposition. Analysis District Judge Richard Mark Gergel notes that the doctrine of primary jurisdiction is a doctrine specifically applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency. Courts consider four factors in determining whether to stay or dismiss an action in favor of the jurisdiction of an administrative agency: (1) whether the question at issue is within the conventional experience of judges or it is within the agency's particular field of expertise; (2) whether the question at issue is particularly within the agency's discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made (Cent. Tel. Co. of Va. v. Sprint Communications Co. of Va. Inc., 759 F.Supp.2d 772, 786 (E.D. Va. 2011) aff'd 715 F.3d 501 (4th Cir. 2013) cert. denied 571 U.S. 969 (2013)). The Defendants argue, based on the doctrine of primary jurisdiction, that the Court should exercise its discretion and dismiss this case. The Defendants argue that the relief the Plaintiff seeks in its Amended Complaint is "irreconcilable" with the consent decree between the FTC and Nice-Pak. The Defendants argue that the FTC has committed to closely monitoring Nice-Pak's compliance with the consent decree and that, if the Court were to permit the Plaintiff's Amended Complaint to proceed, the Court would be forced to "second-guess" the FTC's monitoring efforts. After careful consideration of the parties' argument, the Court declines to apply the primary jurisdiction doctrine and denies the Defendants' motion. As to the first factor, the Court finds the subject matter of this lawsuit--whether the Defendants' allegedly "flushable" wipes are in fact flushable or otherwise properly labeled--falls within the court's expertise. As the Plaintiff notes, courts routinely hear flushable wipes cases, citing Pettit v. Proctor & Gamble Co., No. 15-cv-2150-RS (N.D. Cal.), et al. This factor, therefore, weighs in the Plaintiff's favor. As to the second factor, the Court finds it weighs, if at all, in favor of the FTC as the FTC has, at least in the past, investigated the labeling of Nice-Pak's flushable wipes. As to the third factor, the factor weighs in favor of the Plaintiff as the Court finds little danger that litigation of the Plaintiff's claims would result in rulings inconsistent with any current FTC actions. The FTC stated courts could look to its consent decree with Nice-Pak as "guidance"--implying that courts could and would hear flushable wipes cases. Last, the Court finds that there is no pending application before the FTC regarding the subject matter of this litigation. In their briefing, the Defendants elide specific discussion of this factor. Instead, the Defendants' principal argument for applying the primary jurisdiction doctrine is that the FTC's commitment to "closely monitoring" Nice-Pak's future labeling activities is "dispositive." Or put differently, the Defendants argue that, until the consent decree between Nice-Pak and the FTC expires in 2035, no lawsuits may be brought against flushable wipes distributors or manufacturers because such actions could, despite all indications to the contrary, impede on the FTC's passive monitoring efforts. That contention, however, is simply unreasonable and, for the reasons stated, contrary to settled law, Judge Gergel holds. Conclusion For the reasons stated, the Defendants' motion is denied. A full-text copy of the Court's Order and Opinion dated Dec. 2, 2021, is available at https://tinyurl.com/ycet3yrv from Leagle.com. E.I. DU PONT: Court Has Subject Matter Jurisdiction Over Banks Suit ------------------------------------------------------------------- Magistrate Judge Jennifer L. Hall concludes that the U.S. District Court for the District of Delaware has subject matter jurisdiction over the lawsuit entitled DORIS BANKS, CANDY CAPORALE, BRUCE DAVIS, GENE SULLENBERGER, and CHRISTINE WOOTTEN, for themselves and on behalf of all others similarly situated, Plaintiffs v. E.I. DU PONT DE NEMOURS AND COMPANY, THE 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co. ATOTECH USA, LLC, MacDERMID, INC., PROCINO PLATING, INC., a/k/a PROCINO ENTERPRISES, a/k/a PROCINO, and BLADES DEVELOPMENT LLC, Defendants, Case No. 19-1672-MN-JLH (D. Del.). The Plaintiffs filed this case as a proposed class action. They allege that the Defendants caused the groundwater in Blades, Delaware, to be contaminated with perfluorinated chemicals, resulting in harm to the class members' health and property. The Court had questions about the existence of subject matter jurisdiction and requested briefing from the parties. This Memorandum Opinion concludes that the Court has subject matter jurisdiction and should exercise it. I. Background The Plaintiffs originally filed this action in the Superior Court of the State of Delaware (Case No. S19C-05-024 (Del. Super. Ct. May 17, 2019)). The original Complaint named as Defendants E.I. DuPont de Nemours and Co., Chemours Co, 3M Co., Procino Plating, Inc., and Blades Development LLC. On Sept. 6, 2019, Defendant 3M removed to this Court pursuant to the Class Action Fairness Act, 28 U.S.C. Section 1332(d) ("CAFA"). On Sept. 27, 2019, the Plaintiffs filed a motion to remand back to state court. Among other things, the Plaintiffs argued that remand was appropriate under CAFA's local controversy exception, 28 U.S.C. Section 1332(d)(4)(A), its home state exception, Section 1332(d)(4)(B), and its discretionary exception, Section 1332(d)(3). The motion was fully briefed. However, on Feb. 7, 2020, prior to any decision by the Court, the parties filed a joint stipulation that resolved the motion to remand. The stipulation indicated that the Plaintiffs had agreed to withdraw their motion in exchange for the Defendants' agreement not to oppose the Plaintiffs' request for leave to file a first amended complaint. The Court entered an order confirming the withdrawal of the Plaintiffs' motion to remand and granting the Plaintiffs leave to file an amended complaint. The Plaintiffs filed a First Amended Complaint on Feb. 7, 2020. The FAC dropped Chemours as a Defendant and added new Defendants Atotech USA, LLC and MacDermid, Inc. The FAC alleges, in pertinent part, that two electroplating facilities in Blades, Delaware (which are now owned by Defendants Procino and Blades Development), used products containing perfluorinated chemicals ("PFCs")--including perfluorooctane sulfonate ("PFOS") and perfluorooctanoic acid ("PFOA")--manufactured and sold by Defendants Atotech and MacDermid. The FAC further alleges that Defendants DuPont and 3M, despite being aware of the adverse health effects associated with PFCs, manufactured and sold PFOS and PFOA-containing products used in the Blades facilities and also manufactured PFOS and PFOA that were used to produce PFC-containing products. The Plaintiffs contend that the groundwater in Blades has been contaminated by PFCs, causing damage to property and residents, and the FAC alleges various causes of action. Procino answered the FAC, but the other Defendants moved to dismiss for failure to state a claim. While the motions to dismiss were pending, the Court had questions about the existence of subject matter jurisdiction. In accordance with its independent duty to satisfy itself of its subject matter jurisdiction, the Court ordered the parties to submit supplemental briefing. The parties submitted briefing and the Court heard argument on Sept. 9, 2021. For the reasons discussed in this Memorandum Opinion, the Court concludes that it has subject matter jurisdiction and that it will not decline to exercise it pursuant to the CAFA exceptions. II. Discussion The Defendants argue that the Court has subject matter jurisdiction under CAFA. Judge Hall agrees. CAFA expanded diversity jurisdiction for class actions for the purpose of getting cases involving matters of national importance before federal courts, citing Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 165 (2014), et al. Specifically, 28 U.S.C. Section 1332(d)(2) "provides district courts with original jurisdiction over cases that have (1) an amount in controversy over $5,000,000; (2) minimally diverse parties, meaning at least one member of the plaintiff class is a citizen of a state different from any defendant; and (3) a class consisting of at least 100 members" (Walsh v. Defenders, Inc., 894 F.3d 583, 586 (3d Cir. 2018)). The Plaintiffs do not currently dispute that each of those elements is met (and the Court agrees). Rather, the Plaintiffs contend that this case falls within CAFA's local controversy exception, its home state exception, and its discretionary exception. Before examining the applicability of those exceptions, however, the Court will first address the parties' dispute over whether the CAFA exceptions are jurisdictional. Why does that matter? Judge Hall explains that it matters because the Defendants say that the Plaintiffs have waived their right to assert those exceptions. If the exceptions are jurisdictional, they cannot be waived, because a party cannot waive a challenge to subject matter jurisdiction. If they are not jurisdictional, the Court may consider the Defendants' waiver argument. Judge Hall finds that the CAFA exceptions are not jurisdictional. The Third Circuit Court of Appeals has not squarely confronted the issue, but other Circuit Courts have concluded that the CAFA exceptions are not jurisdictional, Judge Hall states, citing for example Dutcher v. Matheson, 840 F.3d 1183, 1190 (10th Cir. 2016), et al. Because the CAFA exceptions are not jurisdictional, a party can waive their right to rely on them. The Defendants contend that the Plaintiffs waived their right to assert the exceptions in support of a remand. Judge Hall agrees. Here, the Plaintiffs clearly and unequivocally waived their right to rely on the CAFA exceptions when they (1) voluntarily agreed to withdraw their pending motion to remand based on those exceptions and then (2) invoked the jurisdiction of this Court by filing the FAC, Judge Hall explains. Even if the Plaintiffs had not waived the argument, Judge Hall concludes that the CAFA exceptions do not apply here. The parties agree that the burden to prove the applicability of a CAFA exception is on the Plaintiffs. Judge Hall also notes that the local controversy exception requires district courts to decline to exercise jurisdiction only when a number of requirements are satisfied, including the following: "during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons." The Plaintiffs have failed to demonstrate that the requirement is met here, Judge Hall says, holding that the "no other class action" requirement is not met. For either the home state or discretionary exception to apply, all the "primary defendants" must be "citizens of the State in which the action was originally filed." The FAC alleges, and it is not disputed, that Defendant MacDermid is not a Delaware citizen. Thus, if MacDermid is a "primary defendant" within the meaning of the statute, the home state and discretionary exceptions are inapplicable, Judge Hall points out. The Plaintiffs' briefs did not respond to Defendants' contention that MacDermid is a primary defendant. And Judge Hall agrees with the Defendants that it is. The FAC names MacDermid as a Defendant in five of its eight counts, and it contends that MacDermid is directly liable for its own actions in manufacturing and selling PFC-containing products. Moreover, the FAC seeks similar relief against MacDermid and the other Defendants. Because MacDermid is a primary defendant, the home state and discretionary exceptions are inapplicable. III. Conclusion The Court has jurisdiction under CAFA. The CAFA exceptions are not jurisdictional, the Plaintiffs waived the right to rely on them, and they don't apply anyway. The Court will exercise jurisdiction over this matter. A full-text copy of the Court's Memorandum Opinion dated Dec. 2, 2021, is available at https://tinyurl.com/2p928csp from Leagle.com. R. Joseph Hrubiec -- rhrubiec@napolilaw.com -- NAPOLI SHKOLNIK LLC, in Wilmington, Delaware. Paul Napoli -- pnapoli@nsprlaw.com -- NSPR LAW SERVICES LLC, in Hato Rey, Puerto Rico, Attorneys for the Plaintiffs. Michael P. Kelly -- mkelly@mccarter.com -- Andrew S. Dupre -- adupre@mccarter.com -- Janine L. Faben -- jfaben@mccarter.com -- Travis J. Ferguson -- tferguson@mccarter.com -- McCARTER & ENGLISH LLP, in Wilmington, Delaware, Attorneys for Defendant E.I. DuPont de Nemours and Company Kelly E. Farnan -- farnan@rlf.com -- RICHARDS, LAYTON, & FINGER, P.A., in Wilmington, Delaware. Richard Bulger -- rbulger@mayerbrown.com -- Michael A. Olsen -- molsen@mayerbrown.com -- Joshua D. Yount -- jdyount@mayerbrown.com -- Tyler D. Alfermann -- talfermann@mayerbrown.com -- MAYER BROWN LLP, in Chicago, Illinois, Attorneys for Defendant 3M Company. Catherine A. Gaul -- CGaul@ashbygeddes.com -- Andrew Colin Mayo -- AMayo@ashbygeddes.com -- Randall J. Teti -- RTeti@ashbygeddes.com -- ASHBY & GEDDES, P.A., in Wilmington, Delaware. Neil K. Gilman -- ngilman@HuntonAK.com -- HUNTON ANDREWS KURTH LLP, in Washington, District of Columbia. Alexandra B. Cunningham -- acunningham@HuntonAK.com -- Thomas R. Waskom -- twaskom@HuntonAK.com -- HUNTON ANDREWS KURTH LLP, in Richmond, Virginia, Attorneys for Defendant Atotech USA, LLC Barry M. Klayman -- bklayman@cozen.com -- COZEN O'CONNOR, in Wilmington, Delaware. James H. Heller -- jimheller@cozen.com -- Paul K. Leary, Jr. -- pleary@cozen.com -- COZEN O'CONNOR, in Philadelphia, Pennsylvania. Michael de Leeuw -- mdeleeuw@cozen.com -- COZEN O'CONNOR, in New York City, Attorneys for Defendant MacDermid, Inc. FLEETCOR TECH: Marion Sues to Recover Unpaid Overtime ----------------------------------------------------- Jaan Marion, on behalf of herself and all others similarly situated, Plaintiff, v. Fleetcor Technologies Operating Company, LLC And Fleetcor Technologies Inc., Defendants, Case No. 21-cv-04936, (N.D. Ga., December 2, 2021), seeks unpaid overtime, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act. Fleetcor provides fuel cards and workforce payment products to businesses, commercial fleets, oil companies, petroleum marketers and government entities throughout the United States where Marion worked as an Outbound Sales Representative on May 21, 2019 and has continued his employment working in the Norcross office, and remotely as an inside sales representative engaged in fuel card sales. His current job title with Defendant is ISR-Outbound III. Marion claims to have worked over 40 hours routinely every week without being paid overtime. [BN] Plaintiff is represented by: Mitchell L. Feldman, Esq. FELDMAN LEGAL GROUP 1201 Peachtree Street NE, 2nd Floor Atlanta, GA 30361 Tel: (813) 639-9366 Fax: (813) 639-9376 EMail: Mfeldman@flandgatrialattorneys.com FORWARD CORP: Architectural Barriers Violate ADA, Lucio Alleges --------------------------------------------------------------- LOLA LUCIO, Individually, Plaintiff v. FORWARD CORPORATION A Domestic Company Defendant, Case No. 4:21-cv-12839-GAD-JJCG (E.D. Mich., December 5, 2021) is brought by the Plaintiff, on behalf of all other persons with disabilities, seeking injunctive relief, and attorney's fees, litigation expenses, and costs pursuant to the Americans with Disabilities Act and damages pursuant to the Michigan Persons With Disabilities Civil Rights Act. The Plaintiff is a resident of Genesee County, suffers from mobility issues, must ambulate with a cane, and is an individual with a disability within the meaning of the ADA. According to the complaint, when Plaintiff visited the Defendant's property, she encountered numerous architectural barriers that prevent and/or restrict access by her. As a result of being denied full access to the property, Plaintiff has allegedly suffered, and will continue to suffer, emotional distress, humiliation, anxiety, anger, a loss of enjoyment of life, and other consequential and incidental damages. Forward Corporation distributes energy and heating products for homes and businesses.[BN] The Plaintiff is represented by: Pete M. Monismith, Esq. 3945 Forbes Ave., #175 Pittsburgh, PA 15213 Telephone: (724) 610-1881 Facsimile: (412) 258-1309 E-mail: Pete@monismithlaw.com HIBU PLC: 3rd Cir. Affirms Dismissal of Levien Shareholder Suit --------------------------------------------------------------- In the lawsuit captioned THOMAS LEVIEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; JAMES WESTHEAD, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Appellants v. HIBU PLC; HIBU GROUP LIMITED; HIBU (UK) LIMITED, YH LIMITED; HIBU INC; HIBU (USA) LLC; HIBU HOLDINGS (USA) INC.; HIBU OF PENNSYLVANIA, INC.; ESTATE OF JOHN MICHAEL POCOCK; ROBERT CHARLES MICHAEL WIGLEY; ELIZABETH GRACE CHAMBERS; JOHN BERNARD COGHLAN; TOBY RUFUS COPPEL; CARLOS ESPINOSA DE LOS MONTEROS; ESTATE OF KATHLEEN FLAHERTY; RICHARD HOOPER; ANTONY JEFFREY BATES, Case No. 20-2731 (3d Cir.), the United States Court of Appeals for the Third Circuit affirms the dismissal of the Shareholder Plaintiffs' putative class action. The Shareholder Plaintiffs appeal the District Court's dismissal of their putative class action arguing that the Court abused its discretion in dismissing on grounds of forum non conveniens various claims under British law. I. Circuit Judge Theodore Alexander McKee, writing for the Panel, notes that when considering a motion to dismiss on forum non conveniens grounds, a district court must first determine whether an adequate alternative forum can entertain the case, citing Windt v. Qwest Commc'ns Int'l, Inc., 529 F.3d 183, 189-90 (3d Cir. 2008). If an adequate alternative forum exists, the district court must then determine the appropriate amount of deference to be given the plaintiff's choice of forum. Next, the district court must balance the relevant public and private interests. If, after balancing these interests, the district court determines that trial in plaintiff's chosen forum would result in oppression or vexation to the defendant out of all proportion to the plaintiff's convenience, the district court may, in its discretion, dismiss the case on forum non conveniens grounds. The Plaintiffs claim the District Court abused its discretion by ignoring that their claims are time-barred in England and by concluding that the strong showing of convenience favoring an English forum outweighs the deference due their choice of forum. The Court of Appeals' scope of review of a district court's forum non conveniens determination is quite constrained, Judge McKee notes. The district court may be reversed only when there has been a clear abuse of discretion. Where the district court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. The threshold issue when considering a motion to dismiss on forum non conveniens grounds is the existence of an adequate alternative forum, Judge McKee holds. The test for determining whether an alternative forum is adequate is whether the defendant is amenable to process and the plaintiffs' claims are cognizable in the alternative forum. There is no dispute that England has been found to be a competent forum by numerous courts. Accordingly, the District Court's conclusion that England is an adequate forum to litigate these claims is clearly correct. The Plaintiffs' sole argument that England is not an appropriate forum rests on the fact that their claims are now time-barred there. Judge McKee points out that the Court of Appeals has never held that a forum is inadequate because the applicable statute of limitations has expired there, and the Plaintiffs identify no such binding precedent. Instead, they rely upon decisions from other circuit courts of appeals, including DiFederico v. Marriott Int'l, Inc., 714 F.3d 796, 801 (4th Cir. 2013). However, as the District Court explains in its exceptionally thorough and able Memorandum, the fact that claims are time-barred in the alternative forum is an irrelevant consideration in a forum non conveniens inquiry where plaintiffs made a deliberate and tactical decision to run the statute of limitations for the purpose of avoiding dismissal in her preferred forum. Judge McKee finds that the District Court properly noted that the Plaintiffs made a strategic decision to delay filing their claims in the Eastern District until the very day their claims were time-barred in England. The District Court correctly relied upon Gulf Oil Corp. v. Gilbert 330 U.S. 501, 508 (1947) in explaining that there is no valid reason to ignore precedent and require the Defendants to defend in this Court. The District Court properly exercised its discretion in ruling that, the Plaintiffs should not be allowed to assert the unavailability of an alternative forum when they deliberately allowed any deadline for filing claims in the alternative forum to pass, Judge McKee holds. II. The Plaintiffs also argue that the District Court abused its discretion in according their choice of forum only a "moderate amount of deference." The deference analysis, however, largely turns on the convenience of a plaintiff's chosen forum, Judge McKee finds. Generally, the greater the plaintiff's or the lawsuit's bona fide connection to the United States the more difficult it will be for the defendant to gain dismissal for forum non conveniens, Judge McKee points out, citing Kisano, 737 F.3d at 876 (quoting Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001)). The Plaintiffs also argue that the District Court should have afforded greater deference to their choice of forum because they represent a putative class of worldwide shareholders that includes Americans. However, Judge McKee holds, affording less deference to representative plaintiffs does not mean they are deprived of all deference in their choice of forum. Additionally, citizenship nor residence, nor the degree of deference given to the choice of forum, necessarily controls the outcome. In essence, there is little sense to allowing a U.S. citizen to hale a group of foreign defendants into a U.S. court on transactions having little or nothing to do with this country where there is an available foreign forum significantly better suited to handling the litigation, Judge McKee states. The District Court reasonably concluded that litigating in England would be more convenient for the parties and explained that conclusion in its fine Memorandum, Judge McKee says. Moreover, for the reasons the District Court explained, the public and private interests also far outweigh the moderate amount of deference that the Plaintiffs' choice of forum is entitled to. The Plaintiffs attempt to pirouette around the District Court's carefully crafted Memorandum by delving into the evidentiary details of their claims, Judge McKee notes. However, "we need not [and will not] scrutinize all of these materials to perform our function of appellate review, nor was it necessary for the District Court to have done so," Judge McKee points out. III. For these reasons, the Court of Appeals affirms the District Court's dismissal on forum non conveniens grounds. A full-text copy of the Court's Opinion dated Dec. 2, 2021, is available at https://tinyurl.com/yckm4dxa from Leagle.com. JEFFERSON COUNTY COMMITTEE: Kemp Sues Over WARN Act Violations -------------------------------------------------------------- VERONICA KEMP, and all other similarly situated persons, Plaintiff v. JEFFERSON COUNTY COMMITTEE FOR ECONOMIC OPPORTUNITY, Defendant, Case No. 2:21-cv-01609-AMM (N.D. Ala., December 3, 2021) is a class action brought by the Plaintiff and putative class members who were subject to the lay-off which occurred without warning on November 24, 2021, in violation of the Worker Adjustment and Retraining Notification Act. The Plaintiff and the class members were employed by the JCCEO in various jobs delivering services to the low-income residents of Jefferson County, Alabama. Kemp and hundreds of others formerly employed by JCCEO in Jefferson County, Alabama, lost their employment without 60 days advance warning when JCCEO shutdown and/or laid them off without 60 day-notice, says the suit. Jefferson County Committee for Economic Opportunity is a nonprofit organization incorporated to provide a wide range of services to low-income residents of Jefferson County, Alabama.[BN] The Plaintiff is represented by: Lee D. Winston, Esq. Roderick T. Cooks, Esq. WINSTON COOKS, LLC 351 24th Street North Box 122 Birmingham, AL 35203 Telephone: (205) 502-0970 Facsimile: (205) 278-5876 E-mail: lwinston@winstoncooks.com rcooks@winstoncooks.com - and - Eric L. Welch-Guster, Esq. THE GUSTER LAW FIRM, LLC 9964 Parkway East Birmingham, AL 35215 Telephone: (205) 240-1236 Facsimile: (205) 581-9777 JP MORGAN: Dutka Files Suit in Cal. Super. Ct. ---------------------------------------------- A class action lawsuit has been filed against JP Morgan Chase Bank N.A., et al. The case is styled as Greg J. Dutka, on behalf of himself and others similarly situated v. JP Morgan Chase Bank N.A., Chase Home Finance LLC, Case No. 34-2021-00311828-CU-NP-GDS (Cal. Super. Ct., Sacramento Cty., Nov. 29, 2021). The case type is stated as "Non-PI/PD/WD tort - Other." JPMorgan Chase Bank, N.A. -- http://www.jpmorganchase.com/-- doing business as Chase Bank or often as Chase, is an American national bank headquartered in Manhattan, New York City, that constitutes the consumer and commercial banking subsidiary of the U.S. multinational banking and financial services holding company, JPMorgan Chase.[BN] The Plaintiff is represented by: Richard L. Antognini, Esq. LAW OFFICE OF RICHARD L. ANTOGNINI 2036 Nevada City Hwy Pmb 636 Grass Valley, CA 95945-7700 Phone: 916-295-4896 Email: rlalawyer@yahoo.com - and - Craig C. Marchiando, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. Suite 1A, 763 J. Clyde Morris Boulevard Newport News, VA 23601 Phone: (757) 930-3660 Email: craig@clalegal.com KAYNE GRIFFIN: Murphy Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Kayne Griffin Corcoran, LLC. The case is styled as James Murphy, for himself and on behalf of all other persons similarly situated v. Kayne Griffin Corcoran, LLC, Case No. 1:21-cv-10545 (S.D.N.Y., Dec. 9, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kayne Griffin Corcoran -- https://www.kaynegriffin.com/ -- is a contemporary gallery based in Los Angeles, formed by partners Maggie Kayne, Bill Griffin, and James Corcoran.[BN] The Plaintiff is represented by: Justin A. Zeller, Esq. THE LAW OFFICE OF JUSTIN ALEXANDER ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007 Phone: (212) 229-2249 Fax: (212) 229-2246 Email: jazeller@zellerlegal.com LINDSAY CLARK: Cohn Files Suit in Cal. Super. Ct. ------------------------------------------------- A class action lawsuit has been filed against Dr. Lindsay M Clark, MD, et al. The case is styled as Gabrielle Cohn, individually and on behalf of all others similarly situated v. Dr. Lindsay M Clark, MD, Entrada Medical Group, Does 1-50, inclusive, Case No. CGC21597023 (Cal. Super. Ct., San Francisco Cty., Dec. 9, 2021). The case type is stated as "Fraud." Dr. Lindsay M Clark, MD -- https://drlindsayclark.com/ -- is the Medical Director and CEO of Enhance Medical Group, a Skin Care Center & Metabolic/Regenerative Medicine Practice located in San Mateo, Ca.[BN] The Plaintiff is represented by: Daniel Louis Feder, Esq. THE LAW OFFICE OF DANIEL FEDER 235 Montgomery St., Ste. 1019 San Francisco, CA 94104-3003 Phone: 415-391-9476 Fax: 415-391-9476 Email: daniel@dfederlaw.com LOS ANGELES COLLECTIVE: Chenault Sues Over Failure to Pay Wages --------------------------------------------------------------- Charles Chenault, individually and on behalf of all other Aggrieved Employees v. LOS ANGELES COLLECTIVE, LLC, a California Limited Liability Company, L'AGENCE, INC., a California Corporation, and DOES 1 through 50, inclusive, Case No. 21STCV43550 (Cal. Super. Ct., Los Angeles Cty., Nov. 29, 2021), is brought against the Defendants for their violations of the California Labor Code by failing to pay minimum and overtime wages. The Defendants violated the California Labor Code for their: failure to provide employment records; failure to pay overtime and double time; failure to provide rest and meal periods; failure to pay minimum wage; failure to keep accurate payroll records and provide itemized wage statements; failure to pay reporting time wages; failure to pay split shift wages; failure to pay all wages earned on time; failure to pay all wages earned upon discharge or resignation; and failure to reimburse necessary, business-related expenses, says the complaint. The Plaintiff was hired by the Defendants with the job title of R&D Coordinator on February 1, 2020. LOS ANGELES COLLECTIVE, LLC is a California Limited Liability Company.[BN] The Plaintiff is represented by: Haig B. Kazandjian, Esq. Cathy Gonzalez, Esq. Kevin P. Crough, Esq. HAIG B. KAZANDJIAN LAWYERS, APC 801 North Brand Boulevard, Suite 970 Glendale, CA 91203 Phone: 1-818-696-2306 Facsimile: 1-818-696-2307 Email: haig@hbklawyers.com cathy@hbklawyers.com kevin@hbklawyers.com MASALAWALA LLC: Kabir Seeks Overtime, Spread-of-Hours Pay --------------------------------------------------------- Mohammed H. Kabir, on behalf of himself and all others similarly situated, Plaintiff, v. The Masalawala LLC and Debabrata Roni Mazumdar, Defendants, Case No. 21-cv-10289, (S.D. N.Y., December 2, 2021), seeks unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest, unpaid spread-of-hours premium, redress for failure to provide wage statements, and reasonable attorneys' fees pursuant to the Fair Labor Standards Act and New York labor laws. Defendants own and operate a restaurant where Kabor worked as a kitchen helper. Throughout his employment, his job consisted of washing dishes, stocking merchandise, mopping, sweeping, cleaning the floors and taking out trash. He claims to have worked in excess of 40 hours per week without overtime pay and did not receive wage statements and notices. [BN] Plaintiff is represented by: Louis M. Leon, Esq. LAW OFFICES OF WILLIAM CAFARO 108 West 39th Street, Suite 602 New York, NY 10018 Tel: (212) 583-7400 Email: LLeon@Cafaroesq.com MDL 2873: Lewis Suit Claims PFAS Exposure From AFFF Products ------------------------------------------------------------ BARRY LEWIS, Plaintiff v. 3M COMPANY, f/k/a Minnesota Mining and Manufacturing Co.; AGC CHEMICALS AMERICAS INC.; AGC, INC., f/k/a Asahi Glass Co., Ltd.; AMEREX CORPORATION; ARCHROMA MANAGEMENT, LLC; ARCHROMA U.S. INC.; ARKEMA, INC., individually and as successor-in-interest to Atofina S.A.; BASF CORPORATION, individually and as successor-in-interest to Ciba Inc.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION, individually and as successor-in-interest to Kidde-Fenwal, Inc.; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHUBB FIRE, LTD; CLARIANT CORPORATION, individually and as successor-in-interest to Sandoz Chemical Corporation; CORTEVA, INC., individually and as successor-in-interest to DuPont Chemical Solutions Enterprise; DEEPWATER CHEMICALS, INC.; DUPONT DE NEMOURS INC, f/k/a Dowdupont Inc., individually and as successor-in-interest to DuPont Chemical Solutions Enterprise; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY, individually and as successor-in-interest to DuPont Chemical Solutions Enterprise; KIDDE-FENWAL, INC., individually and as successor-in-interest to Kidde Fire Fighting, Inc.; KIDDE PLC, INC.; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY, individually and as successor-in-interest to DuPont Chemical Solutions Enterprise; THE CHEMOURS COMPANY FC, LLC, individually and as successor-in-interest to DuPont Chemical Solutions Enterprise; TYCO FIRE PRODUCTS LP, individually and as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; and UTC FIRE & SECURITY AMERICAS CORPORATION, f/k/a GE Interlogix, Inc. Defendants, Case No. 2:21-cv-03930-RMG (D.S.C., December 3, 2021) is a class action seeking damages for Plaintiff's personal injury resulting from exposure to aqueous film-forming foams (AFFF) containing the toxic chemicals collectively known as per and polyfluoroalkyl substances (PFAS). According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of AFFF products containing synthetic, toxic PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and firefighter trainees who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. He relied on the Defendants' instructions as to the proper handling of the products, added the suit. As a result of the alleged exposure to the Defendants' AFFF products, the Plaintiff was diagnosed with prostate cancer. The Lewis case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: James L. Ferraro, Esq. James L. Ferraro, Jr., Esq. Dick M. Ortega, Esq. THE FERRARO LAW FIRM 600 Brickell Avenue, 38th Floor Miami, FL 33131 Telephone: (305) 375-0111 E-mail: jlf@ferrarolaw.com jjr@ferrarolaw.com dmo@ferrarolaw.com MUSICTODAY II LLC: Ortega Sues Over Non-Blind-Friendly Website -------------------------------------------------------------- Juan Ortega, on behalf of himself and all others similarly situated, Plaintiff, v. Musictoday II, LLC, Defendants, Case No. 21-cv-10295, (S.D. N.Y., December 2, 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. Musictoday is an online merchandise retail company that owns and operates the website shop.asapferg.com offering American rapper "A$ap Ferg" merchandise that it delivers throughout the United States, including New York State. Ortega who is legally blind claims that the 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 NORTH STATE: Napoles Files Suit in Cal. Super. Ct. -------------------------------------------------- A class action lawsuit has been filed against North State Grocery, Inc. et al. The case is styled as Mary Napoles, on behalf of all others similarly situated v. North State Grocery, Inc., Does 1-10, Case No. 34-2021-00311860-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Nov. 29, 2021). The case type is stated as "Other Employment - Civil Unlimited." North State Grocery, Inc., doing business as Holiday Market -- https://www.shopholidaymarket.com/ -- operates as a retail food market.[BN] The Plaintiff is represented by: Erica T. Khaine, Esq. James R. Hawkins, Esq. Samantha A Smith, Esq. JAMES HAWKINS APLC 9880 Research Drive Suite 200 Irvine, CA 92618 Phone: (949) 387-7200 Fax: (949) 387-6676 Email: erica@jameshawkinsaplc.com james@jameshawkinsaplc.com samantha@jameshawkinsaplc.com PARTNERS PERSONNEL: Enciso Sues Over Unfair Labor Practices ----------------------------------------------------------- SUSAN ENCISO, on behalf of herself and all others similarly situated, and the general public, Plaintiff v. PARTNERS PERSONNEL - MANAGEMENT SERVICES, LLC, a Delaware limited liability company; and DOES 1 through 50, inclusive, Defendants, Case No. 21STCV44278 (Cal. Super., Los Angeles Cty., December 3, 2021) seeks to recover unpaid wages, restitution, civil and statutory penalties, and related relief pursuant to the California Labor Code. The complaint alleges that the Defendants failed to provide Plaintiff and all other similarly situated individuals with meal and rest periods; pay premium wages for missed meal and/or rest periods; pay premium wages for missed meal and/or rest periods at the regular rate of pay; pay at least minimum wage for all hours worked; pay overtime wages at the correct rate; pay double time wages at the correct rate; pay premium wages, overtime and/or double time wages by failing to include all applicable remuneration in calculating the regular rate of pay; reimburse for all necessary business expenses; provide with accurate written wage statements; and pay them all of their final wages following separation of employment. The Plaintiff worked for Defendants as an hourly, non-exempt employee at all times during the applicable statutory period. Partners Personnel-Management Services, LLC operates as a staffing agency.[BN] The Plaintiff is represented by: Shaun Setareh, Esq. William M. Pao, Esq. Nolan Dilts, Esq. SETAREH LAW GROUP 9665 Wilshire Boulevard, Suite 430 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com william@setarehlaw.com nolan@setarehlaw.com POWER SOLUTIONS: Bid to Continue Treadwell Suit Stay Partly Granted ------------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part the Defendant's motion to continue the stay in the lawsuit titled JEROME TREADWELL, individually and on behalf of all others similarly situated, Plaintiff v. POWER SOLUTIONS INTERNATIONAL, INC., Defendant, Case No. 18-cv-8212 (N.D. Ill.). Plaintiff Jerome Treadwell, an employee of Defendant Power Solutions, brings this proposed class action against Power Solutions for alleged violations of the Illinois Biometric Information Privacy Act, 740 ILCS 14/15 (BIPA). Specifically, Treadwell alleges violations of sections 14/15(a), (b), and (d) of BIPA, on behalf of himself and the proposed class. Before the Court is Power Solutions' motion to continue the existing stay of discovery until the following decisions are issued: (1) Illinois Court of Appeals decisions on the applicable statute of limitations before two Illinois Appellate Courts in Tims v. Black Horse Carriers, Inc., No. 1-20-0563, and Marion Ring Container Technologies, LLC, No. 3-20-0184; (2) appellate decisions on the accrual of BIPA claims from the Seventh Circuit in Cothron v. White Castle System, Inc., No. 20-8029 and the Illinois Appellate Court in Watson v. Legacy Healthcare Financial Services, Inc., No. 1-21-0279; and (3) the Illinois Supreme Court's decision McDonald v. Symphony Bronzeville, Ill. Sup. Ct. 126511 on whether BIPA statutory damages claims are preempted by the Illinois Workers' Compensation Act (IWCA). Power Solutions contends that each pending appeal will inform the Court's analysis regarding the statute of limitations and IWCA's exclusive remedy provisions, and either end the case or control the size of any putative class, the discovery to be done, the scope of Treadwell's claims, and any damages to be awarded to Treadwell or any putative class. Treadwell opposes Power Solution's motion to continue the stay. Background On April 1, 2020, the previously assigned judge granted Power Solution's opposed motion to stay the proceedings pending the Illinois Appellate Court's decision in McDonald v. Symphony Bronzeville Park, LLC, Case No. 1-19-2398. On Sept. 18, 2020, the Illinois Appellate Court issued its ruling, unanimously holding that the exclusivity provisions of the IWCA do not preclude BIPA claims (McDonald, 174 N.E.3d 578 (Ill. App. Ct. 2021)). On Oct. 13, 2020, the parties filed a joint motion to continue stay to discuss settlement, which was granted by the Court on Oct. 14, 2020. Judge Cole held a settlement conference on May 26, 2021, but the case did not settle. Power Solutions subsequently filed its motion to continue the stay pending decisions regarding: IWCA preemption, accrual of BIPA claims, and the applicable statute of limitations. Treadwell opposes the motion. I. Statute of Limitations -- Tims and Marion Power Solutions contends that the Court should continue the stay pending decisions from the Illinois Appellate Court in Tims and Marion. Both Tims and Marion, respectively, have addressed or will address the currently unsettled question of which statute of limitations period applies to BIPA claims. In this case, Treadwell's claims arise under Illinois law. Since the parties finished briefing the motion to continue the stay, the Illinois First District Appellate Court issued its decision in Tims. In Tims, the court established a 5-year limitations period for BIPA claims under 740 ILCS 14/15(a), (b), and (e), and a 1-year limitations period for BIPA claims under 740 ILCS 14/15(c) and (d). Marion has been fully briefed but is stayed pending the Illinois Supreme Court's decision in McDonald, No. 126511. District Judge Franklin U. Valderrama notes that because Tims has been decided since briefing on the instant motion, it is no longer a basis to continue the stay. Because the Illinois Supreme Court has not yet decided the applicable statute of limitations for BIPA claims, a decision from the Illinois Appellate Court, like Tims, controls, to the extent there are not persuasive indications that the Illinois Supreme Court would rule differently. Judge Valderrama notes that it is possible that the Illinois Third District Appellate Court may decide the statute of limitations question differently than the First District did in Tims, in which case a District split would exist and this Court would still have to predict how the Illinois Supreme Court would decide the issue. Given the Court's need to balance competing interests, it finds that granting an indefinite stay pending a second Illinois Appellate Court decision of indeterminate persuasive value is not warranted here. As Treadwell points out, the majority of trial courts that have considered the statute of limitations argument have held that a five-year limitations period applies to all BIPA claims. Even if the Court follows the Tims holding that a one-year limitations period applies to Treadwell's and the classes claims under section 14/15(d), the Court disagrees with Power Solutions' that such a holding would significantly reduce Treadwell's and the class' claims in scope and value, given that Tims held that a five-year limitations period applies to section 14/15(a) and (b) claims, and there likely will be significant overlap between each potential class members' claims. True, several other courts in this District have recently granted stays pending a decision from the Illinois Appellate Court in Marion or from the Illinois Supreme Court in Tims, Judge Valderrama states. However, unlike those cases, which were filed in 2021, this case was filed in 2018, so Treadwell's counsel could not have been aware of the pending appeals on the statute of limitations issue being litigated in Illinois courts. The Court, therefore, does not find it appropriate to continue the stay in this case pending the Marion Illinois Appellate Court decision on the applicable statute of limitations. II. Accrual of BIPA Claims -- Cothron and Watson Power Solutions also seeks to stay this case pending the Seventh Circuit's decision on an interlocutory appeal in Cothron and the Illinois Appellate Court's decision in Watson. Both courts are deciding whether a private entity violates BIPA only when it first collects an individual's biometric information, or whether a violation occurs each time a private entity collects or discloses the biometric data in violation of 740 ILCS 15(b) or 15(d). In opposing a stay pending the decisions in Cothron and Watson, Treadwell argues that, regardless of the outcome, his claims are timely. However, the accrual question will impact the size and scope of Treadwell's proposed class, as well as discovery related to that class. Unlike the statute of limitations question (which has generally been held to be five-years, Judge Valderrama notes, but for the Tims decision applying a one-year limitations period to section 14/15(c) and (d) claims), which should not significantly impact the scope of the class claims, the Court finds that the accrual question almost certainly will significantly impact the size and scope of Treadwell's proposed class. Mr. Treadwell further argues that the certified question on appeal in Cothron is unlikely to change the statute of limitations analysis, because the plain language of the statute makes clear that BIPA is violated each and every time an entity collects or discloses an individual's biometric data. Contrary to Treadwell's argument that BIPA is "unambiguous and dispositive" as to when a violation occurs, as the district court in Cothron noted upon certification of the interlocutory appeal, reasonable minds can and have differed as to the clarity of BIPA's statutory text and the extent to which suppositions about legislative intent should shape courts' application of it, Judge Valderrama holds. The district court in Cothron stayed proceedings pending the Seventh Circuit's interlocutory review, and the Seventh Circuit held that such a stay was "warranted." Moreover, the trial court decision currently on appeal in Watson held that BIPA claims accrue only upon the first collection of the biometric information. In the case, the Seventh Circuit's decision in Cothron may limit Treadwell's and the classes' timely claims and a stay is appropriate pending the interlocutory appeal, Judge Valderrama states. And Seventh Circuit's decision in Cothron will be binding on this Court. But because Cothron will be binding, that means that, even if the Illinois Appellate Court reaches a different conclusion in Watson, it will matter not to this Court, Judge Valderrama points out. Therefore, there is no reason for the Court to continue the stay pending a decision in Watson. Finally, Mr. Treadwell argues that a continued stay would result in Power Solutions' continued violations of BIPA. Although the Court is mindful of the harms associated with the retention and potential misuse of sensitive data, a stay will cause minimal, if any, additional harm to Treadwell in this case, given the limited nature of the stay, Judge Valderrama finds. Therefore, the Court finds that a stay is also appropriate pending the Seventh Circuit's Cothron decision on when an injury occurs under BIPA. III. Illinois Workers Compensation Act -- McDonald Finally, Power Solutions also requests that the Court stay this case pending the Illinois Supreme Court's decision in McDonald. As noted above, the previously assigned judge stayed the case pending the Illinois Appellate Court's decision in McDonald. Since that time, the Illinois Appellate Court unanimously held that the exclusivity provisions of the IWCA do not bar claims brought under BIPA. The Illinois Supreme Court subsequently granted the defendant's petition for leave to appeal, 163 N.E.3d 746 (Ill. 2021), and heard oral argument on Sept. 23, 2021. Power Solutions maintains that, if the Supreme Court overrules the Illinois Appellate Court's holding and holds that the IWCA preempts BIPA statutory damages claims, such a holding would end the case before the Court (although not necessarily altogether). Additionally, many state courts and several federal courts, including this Court, have refused to stay BIPA litigation pending resolution of an appeal of the IWCA preemption issue. Without ruling on the question directly, the Court reiterates its prior finding that it is unlikely that the Illinois Supreme Court would rule that IWCA preempts BIPA. Therefore, the Court denies Power Solutions' motion to continue the stay pending the Illinois Supreme Court's decision in McDonald. Order For these reasons, Power Solutions' motion to continue the stay is granted in part and denied in part. The Court stays this case pending the Seventh Circuit's decision in Cothron v. White Castle System, Inc., No. 20-8029. The parties are to file a joint status report as soon as Cothron has been decided, or by Feb. 15, 2022, to update the Court on the status of these cases, whichever occurs first. A full-text copy of the Court's Memorandum Opinion and Order dated Dec. 2, 2021, is available at https://tinyurl.com/49zcs68f from Leagle.com. PRATT INSTITUTE: Sosa Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Pratt Institute. The case is styled as Yony Sosa, on behalf of himself and all other persons similarly situated v. Pratt Institute, Case No. 1:21-cv-10550 (S.D.N.Y., Dec. 9, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Pratt Institute -- https://www.pratt.edu/ -- is a global leader in higher education situated 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 RIVER VALLEY: Underpays Professional Counselors, Frinkle Says ------------------------------------------------------------- ASHLEY FRINKLE, individually and on behalf of all others similarly situated v. RIVER VALLEY COUNSELING AND THERAPY, PA, and AMANDA JONES-SHELTON, Case No. 2:21-cv-02196-PKH (W.D. Ark., December 3, 2021) seeks a declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and reasonable attorney's fee and costs as a result of the Defendants' failure to pay proper minimum wage and overtime compensation under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Plaintiff was employed by the Defendants as a licensed professional counselor from August 2019 to June 2021. Based in Clarksville, Arkansas, River Valley Counseling and Therapy, PA provides mental health counseling of various types and provides mental health assessments.[BN] The Plaintiff is represented by: Lydia H. Hamlet, Esq. Josh Sanford, 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 E-mail: lydia@sanfordlawfirm.com josh@sanfordlawfirm.com RTI PROPERTIES: Pendleton Sues Over Unpaid Minimum, Overtime Wages ------------------------------------------------------------------ Erica Garcia Pendleton, and the other similarly situated aggrieved employees v. RTI PROPERTIES, INC.; ROBERT ABBASI; and DOES 1 to 25, inclusive, Case No. 21STCV43414 (Cal. Super. Ct., Los Angeles Cty., Nov. 29, 2021), is brought alleging that RTI has violated numerous Labor Code Sections against the Plaintiff and other similarly situated aggrieved employees by failing to pay minimum and overtime wages. RTI did not provide the Plaintiff and other similarly situated aggrieved employees with the minimum wages to which they were entitled for work performed and as such did not compensate the Plaintiff and others for all hours worked at the minimum wage rate pursuant to California Labor Code. Due to the "off the clock" work as alleged above, RTI violated Labor Code because it failed to pay the Plaintiff and other similarly situated aggrieved employees overtime, even though they worked more than 8 hours per day, 12 hours per day and/or 40 hours per week throughout their employment. The Plaintiff's work hours were set in stone on paper and through contract (3 hours a day; 30 hours per pay period), however, that did not conform with reality as Plaintiff was constantly working and subject to the control of RTI, up to 12-15 hours per day. As such, the Plaintiff is entitled to overtime compensation for those work hours, says the complaint. The Plaintiff started working for RTI on January 2020 as a Resident Manager for the property located in Los Angeles, California. RTI PROPERTIES, INC. do business in the County of Los Angeles.[BN] The Plaintiff is represented by: Harout Messrelian, Esq. MESSRELIAN LAW INC. 500 N. Central Ave., Suite 840 Glendale, CA 91203 Phone: (818) 484-6531 Facsimile: (818) 956-1983 Email: hm@messrelianlaw.com SPOTON TRANSACT: Predmore Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against SpotOn Transact, LLC. The case is styled as Julia Predmore, individually and on behalf of all others similarly situated v. SpotOn Transact, LLC, Case No. CGC21597029 (Cal. Super. Ct., San Francisco Cty., Dec. 9, 2021). The case type is stated as "Other Non-Exempt Complaints." SpotOn Transact, LLC -- http://www.spoton.com/-- operates as a payments and software company. The Company offers a platform that provides payment processing solutions.[BN] The Plaintiff is represented by: Anne Rebecca Kramer, Esq. LICHTEN & LISS-RIORDAN 729 Boylston St., Ste. 2000 Boston, MA 02116-2648 TRADER JOE'S: Swanberg Sues Over Mislabeled Honey Graham Crackers ----------------------------------------------------------------- Heather Swanberg, individually and on behalf of all others similarly situated, Plaintiff v. Trader Joe's Company, Defendant, Case No. 1:21-cv-06496 (N.D. Ill., December 4, 2021) arises from the Defendant's false and deceptive representations of its "Honey Graham Crackers" under the Trader Joe's brand in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act and the Magnuson Moss Warranty Act. According to the complaint, the Defendant's relevant front label representations include "Honey Graham Crackers," with a stylized "Honey," a honeybee buzzing across the label, "No Artificial Colors, Flavors, or Preservatives," and pictures of dark hued crackers. The suit alleges that the product's name and the dark-colored crackers cause consumers, including the Plaintiff, to expect that whole grain graham flour is the primary and predominant flour ingredient used. The Defendant sold more of the product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers, added the suit. Trader Joe's Company operates as a convenience store. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 409 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com UNITEDHEALTH GROUP: Court Refuses to Dismiss Snyder ERISA Suit -------------------------------------------------------------- The U.S. District Court for the District of Minnesota denied the Defendants' motion to dismiss and motion for summary judgment in the lawsuit styled KIM SNYDER, on behalf of herself and all others similarly situated, Plaintiff v. UNITEDHEALTH GROUP, INC., BOARD OF DIRECTORS OF UNITEDHEALTH GROUP, INC., DAVID S. WINCHMANN, UNITEDHEALTH GROUP EMPLOYEE BENEFITS PLANS INVESTMENT COMMITTEE, UNITEDHEALTH GROUP EMPLOYEE BENEFITS PLANS ADMINISTRATIVE COMMITTEE, DOES 1-30, Defendants, Case No. 21-1049 (JRT/BRT) (D. Minn.). Plaintiff Kim Snyder brought this class action on behalf of herself and all other similarly situated participants and beneficiaries of UnitedHealth's 401(k) Savings Plans. Snyder brings this action for breach of fiduciary duties under the Employee Retirement Income Security Act ("ERISA") against Defendants UnitedHealth, its Board of Directors and its members, David S. Winchmann, the UnitedHealth Group Employee Benefits Plans Investment Committee and its members, and the UnitedHealth Group Employee Benefits Plans Administrative Committee and its members. Ms. Snyder alleges that the Defendants breached their duty of prudence and duty to monitor the performance of individuals to whom they delegated fiduciary responsibilities. The Defendants have brought a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment. Background UnitedHealth sponsors the Plan for 200,000 employees, former employees, and their beneficiaries. Plan participants may make contributions to their retirement accounts and UnitedHealth matches those contributions. The Plan has approximately $15 billion in assets under management. Snyder was a participant in the Plan during the Class Period and the Defendants are the fiduciaries of the Plan. Participants of the Plan can select from various investment options for their 401(k), one of which is a target date retirement fund. UnitedHealth's target date funds are all managed by Wells Fargo. UnitedHealth has designated the Wells Fargo TDFs as the default option for participants of the Plan, so when a participant fails to select one of the other investment options for their 401(k), they are automatically enrolled into their respective Wells Fargo TDF. Fidelity, T. Rowe Price, State Street, and Vanguard offer target date funds as well. Morningstar, a highly regarded financial services and research firm, classified these four target date funds (the "Morningstar Comparators") as being within the same peer universe as the Wells Fargo TDFs. Morningstar determined that the funds all had the same underlying portfolio holdings. In reaching this conclusion, Morningstar considered: (1) the purpose of the target date funds; (2) how the funds allocate assets among asset classes; and (3) how the funds intend to gradually reduce potential market risk exposure over time. The Complaint alleges that Wells Fargo TDF 2010 through 2060 each chronically underperformed these six different benchmarks over the course of eleven years. The Complaint compiles 33 tables detailing this underperformance. As demonstrated by Table 5.a, the Wells Fargo TDFs had a lower cumulative return and lower annualized return than every other comparator for the five years prior to the Class Period. Ms. Snyder filed a class action on behalf of herself and all other similarly situated Plan participants and beneficiaries. The Defendants filed a Motion to Dismiss or, in the alternative, a Motion for Summary Judgment. Though discovery has yet to commence, along with their motion the Defendants produced 254 documents to Snyder which the Defendants claim constitutes the entire fiduciary record. Snyder identified several deficiencies in the production, but the parties have been unable to resolve these issues. Discussion I. Defendants' Motion for Summary Judgment Chief District Judge John R. Tunheim notes that as a general rule, summary judgment is proper only after the nonmovant has had adequate time for discovery, citing Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th Cir. 1999). Discovery has not yet begun in this case. While the Defendants claim they have produced the entire fiduciary record, Snyder has properly submitted a declaration, which details how further discovery will enable her to rebut the assertion that there is no genuine issue of material fact. Thus, the Court will deny Defendants' Motion for Summary Judgment as premature. II. Defendants' Motion to Dismiss ERISA imposes two primary duties on fiduciaries: loyalty and prudence. The fiduciary must discharge its duties "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. The Defendants contend that Snyder has failed to sufficiently plead that the Wells Fargo TDFs underperformed the benchmarks identified in the Complaint. The Defendants point to the fact that the Wells Fargo TDFs performed better than some of the benchmarks in both 2018 and 2021. While true, Judge Tunheim points out that the Defendants gloss over the key allegation in the Complaint--the Wells Fargo TDFs' cumulative performance for every single fund was significantly lower than all other benchmarks for eleven years. Judge Tunheim states that outperformance by the Wells Fargo TDFs in one year alone does not preclude Snyder from arguing that the Defendants acted imprudently in retaining the funds based upon their cumulative underperformance. The Court must consider the Complaint as a whole, which plausibly alleges that the Wells Fargo TDFs underperformed the benchmarks over the course of, not only the Class Period, but eleven years in total. The Defendants argue that the Morningstar Comparators cannot constitute meaningful benchmarks because they employed different risk strategies and asset allocations than the Wells Fargo TDFs. They contend that any underperformance is a result of a more conservative investment strategy intended to sustain investments in down markets, therefore, it was not imprudent to maintain the Wells Fargo TDFs. Ms. Snyder claims that the Morningstar Comparators are meaningful benchmarks since Morningstar classified these funds as falling within the "same peer universe" as the Wells Fargo TDFs because they share similar purposes, allocate funds among asset classes similarly, and gradually reduce market risk exposure in comparable ways. To the extent that Defendants dispute the similarities between the Wells Fargo TDFs and the Morningstar Comparators, these are factual issues that the Court cannot resolve on a motion to dismiss, Judge Tunheim notes. At this stage, because the Court must construe all reasonable inferences in Snyder's favor and take all allegations in the Complaint as true, it would be inappropriate to reach a conclusion other than what the Complaint asserts--the Morningstar Comparators fall within the same peer universe as the Wells Fargo TDFs. Though the Defendants rely on Meiners v. Wells Fargo & Co., 898 F.3d 820, 823 (8th Cir. 2018) to argue for dismissal, the case in fact supports denial of their motion, Judge Tunheim finds, among other things. In Meiners, the Eighth Circuit held that the plaintiff failed to identify a meaningful benchmark. The plaintiff had identified only one benchmark that had outperformed the fund at issue and the Eight Circuit concluded that the fact that one fund with a different investment strategy ultimately performed better does not establish anything about whether the Wells Fargo TDFs were an imprudent choice at the outset. But here, Snyder has identified not one, but six different meaningful benchmarks, all of which the Wells Fargo TDFs underperformed against over the course of eleven years, Judge Tunheim points out. Snyder's claims amount to more than a bare allegation that cheaper investments exist in the marketplace. She has demonstrated that there was long-term underperformance of the Wells Fargo TDFs in comparison to meaningful benchmarks, which plausibly raises an inference of imprudence and is sufficient to survive a motion to dismiss. Thus, the Court will deny the Defendants' motion. Order Based on the foregoing, and all the files, records, and proceedings, the Court ruled that: 1. Defendants' Motion for Summary Judgment is denied; and 2. Defendants' Motion to Dismiss is denied. A full-text copy of the Court's Order dated Dec. 2, 2021, is available at https://tinyurl.com/y6an5dn2 from Leagle.com. Alexandra Harwin -- aharwin@sanfordheisler.com -- SANFORD HEISLER SHARP, in New York City; Charles Henry Field, Jr. -- cfield@sanfordheisler.com -- SANFORD HEISLER SHARP, in San Diego, California; David Sanford -- dsanford@sanfordheisler.com -- and R. Johan Conrad Jr., SANFORD HEISLER SHARP, in Washington, D.C.; Kevin H. Sharp -- ksharp@sanfordheisler.com -- and Leigh Anne St. Charles -- lstcharles@sanfordheisler.com -- SANFORD HEISLER SHARP, in Nashville, Tennessee; Susan M. Coler -- coler@halunenlaw.com -- HALUNEN LAW, in Minneapolis, Minnesota, for the Plaintiff. Brian D. Boyle -- bboyle@omm.com -- and Meghan McLane VerGow -- mvergow@omm.com -- O'MELVENY & MYERS LLP, in Washington, D.C.; Debora A. Ellingboe -- debbie.ellingboe@faegredrinker.com -- and Isaac B. Hall -- isaac.hall@faegredrinker.com -- FAEGRE DRINKER BIDDLE REATH LLP, in Minneapolis, Minnesota, for the Defendants. WELLSPAN HEALTH: Technicians Sue Over Time-Shaving Practices ------------------------------------------------------------ Michael Keller and Kevin Schaeffer, on behalf of themselves and all others similarly situated, Plaintiff, v. Wellspan Health, Defendant, Case No. 21-cv-02025, (M.D. Pa., December 2, 2021), seeks to recover unpaid overtime compensation, liquidated damages, unlawfully withheld wages, statutory penalties and damages under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. WellSpan owns and/or operates hospitals and other healthcare facilities throughout the Commonwealth of Pennsylvania, including the WellSpan Good Samaritan Hospital in Lebanon, Pennsylvania where Keller worked as a technician from August 2020 through July 2021 while Schaeffer, also a technician, has been employed since November 2020. They claim that their timecards were altered to reflect lesser hours. [BN] Plaintiff is represented by: Peter C. Wood, Jr., Esq. Matthew Mobilio, Esq. MOBILIO WOOD 900 Rutter Ave., Box 24 Forty Fort, PA 18704 Phone: (570) 234-0442 Fax: (570) 266-5402 Email: peter@mobiliowood.com matt@mobiliowood.com - and - Alex Pisarevsky, Esq. Erika R. Piccirillo, Esq. COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP Park 80 West-Plaza One 250 Pehle Avenue, Suite 401 Saddle Brook, NJ 07663 Phone: (201) 845-9600 Fax: (201) 845-9423 Email: ep@njlawfirm.com ap@njlawfirm.com Asbestos Litigation ASBESTOS UPDATE: GMS Inc. Defends 1,026 PI Suits at Oct. 31 ----------------------------------------------------------- GMS Inc., since 2002 and as of October 31, 2021, is a defendant of approximately 1,026 asbestos-related personal injury lawsuits filed against them, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Of these, 981 have been dismissed without any payment by us, 35 are pending and only 10 have been settled, which settlements have not materially impacted our financial condition or operating results. "The building materials industry has been subject to personal injury and property damage claims arising from alleged exposure to raw materials contained in building products as well as claims for incidents of catastrophic loss, such as building fires. As a distributor of building materials, we face an inherent risk of exposure to product liability claims in the event that the use of the products we have distributed in the past or may in the future distribute is alleged to have resulted in economic loss, personal injury or property damage or violated environmental, health or safety or other laws. Such product liability claims have included and may in the future include allegations of defects in manufacturing, defects in design, a failure to warn of dangers inherent in the product, negligence, strict liability or a breach of warranties. In particular, certain of our subsidiaries have been the subject of claims related to alleged exposure to asbestos-containing products they distributed prior to 1979." A full-text copy of the Form 10-Q is available at https://bit.ly/30prAA7 ASBESTOS UPDATE: Mallinckrodt's Claimants Call for Probe Denied --------------------------------------------------------------- Rick Archer of Law360 reports that a Delaware bankruptcy judge , denied a call for a probe into votes cast for the Mallinckrodt Chapter 11 plan by parties with asbestos claims against the drugmaker, saying the company had met the legal standard for checking the validity of the ballots. U.S. Bankruptcy Judge John Dorsey delivered a virtual bench ruling rejecting arguments by a group with antitrust claims against Mallinckrodt that an examiner is needed in part because an attorney representing asbestos claimants in this case was found to have submitted an invalid ballot in the Imerys Talc America bankruptcy last October 2021, saying there are significant differences. ASBESTOS UPDATE: Nash's Asbestos Liabilities Forces Chapter 7 ------------------------------------------------------------- JD Supra reports that pump manufacturer Nash Engineering Company appears to have recently become the latest casualty of asbestos litigation. On October 19, 2021, Nash Engineering filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the District of Connecticut. If Nash Engineering's petition for relief is approved, this will spell the end of the 100-year-old corporation. Nash Engineering now joins a list of more than 60 other companies that have been forced to declare bankruptcy due to the burden of their asbestos-related liabilities. While Nash Engineering has not made any public statement explaining its pending dissolution, signs point to settlement and defense costs associated with its ongoing asbestos litigation playing a significant role. As NERA Economic Consulting has reported, the average cost for a defendant to resolve an asbestos claim continues to climb year over year. The list of creditors filed by Nash Engineering is replete with asbestos plaintiffs' firms, indicating that the lion's share of the company's debts come from asbestos litigation. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***